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SENTENCING COURT DID NOT MAKE THE APPROPRIATE FINDINGS FOR THE IMPOSITION OF ELECTRONIC MONITORING, MATTER SENT BACK, BECAUSE THE LEGALITY OF THE SENTENCE IS IMPLICATED THE ISSUE NEED NOT BE PRESERVED FOR APPEAL (FOURTH DEPT).

The Fourth Department determined Supreme Court did not make the appropriate findings in support of imposing electronic monitoring as a condition probation. The matter was sent back. The court noted that the issue involves the legality of the sentence and therefore need not be preserved for appeal:

A sentencing court imposing probation may require the defendant, pursuant to the statute, to submit to electronic monitoring (see § 65.10 [4]). “Such condition may be imposed only where the court, in its discretion, determines that requiring the defendant to comply with such condition will advance public safety, probationer control or probationer surveillance” (id.). Here, the court failed to make such a determination. To the contrary, it is evident from our review of the sentencing minutes that the court did not consider defendant or his actions to pose a threat to public safety. There may, however, be a legitimate purpose for the electronic monitoring based on probationer control or probationer surveillance. Therefore, we modify the judgment by striking the condition of probation requiring that defendant submit to surveillance via electronic monitoring and pay the fees associated therewith, and we remit the matter to Supreme Court to make a discretionary determination whether to impose electronic monitoring based on appropriate findings. People v Fitch, 2019 NY Slip Op 01973, Fourth Dept 3-15-19

 

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DEFENDANT’S INSTRUCTING ANOTHER TO KILL HIS WIFE AND HER MOTHER DID NOT COME NEAR ENOUGH TO ACCOMPLISHING MURDER TO SUPPORT THE ATTEMPTED MURDER CONVICTIONS (FOURTH DEPT).

The Fourth Department, reversing the attempted murder convictions, determined the evidence did not demonstrate that the defendant came near enough to accomplishing murder to support the convictions. The defendant, who was in jail, gave detailed instructions to kill his wife and her mother to another inmate, who immediately informed jail authorities:

“Acts of preparation to commit an offense do not constitute an attempt . . . There must be a step in the direct movement towards the commission of the crime after preparations have been made . . . Likewise, acts of conspiring to commit a crime, or of soliciting another to commit a crime do not per se constitute an attempt to commit the contemplated crime” … . Consequently, the People must establish that defendant “engaged in conduct that came dangerously near commission of the completed crime” … . …

The evidence establishes only that defendant planned the crimes, discussed them with the inmate in the next cell and with that inmate’s girlfriend, and exchanged notes about them. Thus, inasmuch as ” several contingencies stood between the agreement in the [jail] and the contemplated [crimes],’ defendant[] did not come very near’ to accomplishment of the intended crime[s]” … . Where, as here, the evidence fails to establish that defendant took any action that brought the crime close to completion, no matter how slight … , the evidence is not legally sufficient to support a conviction of attempt to commit that crime … . People v Lendof-Gonzalez, 2019 NY Slip Op 01904, Fourth Dept 3-15-19

 

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STOP AND ARREST OF PLAINTIFF PURSUANT TO NYC’S STOP AND FRISK POLICY STATED VALID CAUSES OF ACTION PURSUANT TO 42 USC 1983 AGAINST THE POLICE OFFICERS AND THE CITY (FIRST DEPT).

The First Department determined the allegations describing the stop and arrest of the plaintiff pursuant to NYC’s stop and frisk policy stated causes of action pursuant to 42 USC 1983 against the individual officers and the city:

The complaint, as amplified by plaintiff’s opposition papers, alleges that, on February 13, 2013, plaintiff and a friend, both black men, were driving in a luxury sports car in the Bronx. They were not driving recklessly or violating any traffic laws. Nevertheless, they were pulled over by the police, and five or six officers, including the individual defendants, removed them from the car and searched them and the car. The police found marijuana in the friend’s pocket, but recovered no other contraband, either in the car or on plaintiff’s person. Nevertheless, plaintiff was arrested and held for two days. Charges against him were dismissed in October 2013.

The complaint alleges further that, during this time period, the New York City Police Department employed a “stop and frisk” policy, pursuant to which every year the police stopped hundreds of thousands of overwhelmingly and disproportionately minority persons, including black men, and subjected them to searches, for no reason other than that they were in supposedly high-crime areas. The complaint alleges that the “stop and frisk” policy, rather than some constitutionally cognizable cause, was the reason plaintiff was detained, searched, and arrested. To prove the existence of this policy, plaintiff submitted, among other things, the New York City Bar Association’s 24-page “Report on the NYPD’s Stop-and-Frisk Policy,” dated May 2013, which examined the policy and made recommendations for its reform and the protection of city residents’ civil liberties.

The foregoing states a cause of action under 42 USC § 1983 against the individual defendants … . At this procedural juncture, it is not necessary for plaintiff to allege that any of the individual defendants did any more than participate in his unlawful arrest.

By alleging the existence of an extraconstitutional municipal “stop and frisk” policy, and that the individual defendants unlawfully arrested plaintiff pursuant to that policy, the complaint states a cause of action under 42 USC § 1983 against the City … . Smith v City of New York, 2019 NY Slip Op 01828, First Dept 3-14-19

 

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HANDCUFFING THE DEFENDANT PENDING IDENTIFICATION BY THE UNDERCOVER OFFICER AMOUNTED AN ARREST WITHOUT PROBABLE CAUSE, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined handcuffing the defendant pending identification by the undercover officer amounted to an arrest without probable cause. Defendant’s motion to suppress the identification and the buy money should have been granted:

The hearing court expressly determined that the police detention of defendant was supported by reasonable suspicion, but that probable cause did not exist until the undercover officer who allegedly bought drugs from defendant made an identification. Because the record provides no reason for the officers to have concluded that defendant, a suspect in a street drug sale, was armed or dangerous, or likely to resist arrest or flee, handcuffing him was inconsistent with an investigatory detention and elevated the intrusion to an arrest not based on probable cause … . Accordingly, the undercover officer’s identification of defendant and the buy money recovered as a result of the unlawful arrest should have been suppressed, and defendant is entitled to a new trial preceded by an independent source hearing … . People v Perez, 2019 NY Slip Op 01822, First Dept 3-14-18

 

COURT DID NOT CONSIDER THE APPROPRIATE FACTORS BEFORE PROCEEDING TO TRIAL IN DEFENDANT’S ABSENCE, DEFENDANT HAD MADE ALL PRIOR APPEARANCES AND NO EFFORT WAS MADE TO SECURE HIS PRESENCE AT THE TRIAL (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined County Court did not consider the appropriate factors before ordering the trial in defendant’s absence. Defendant had made all prior appearances and no effort was made to secure his presence:

Defendant had been present at all prior appearances, and there was no explanation for his failure to appear at trial. Defendant’s counsel stated that he had been calling defendant for a week without success. That morning, counsel had contacted local jails and hospitals looking for defendant. Despite counsel’s request for an adjournment, County Court concluded that defendant had been warned of the consequences of failing to appear and had voluntarily decided to be absent. The court then issued a bench warrant and immediately began the trial.

County Court abused its discretion in conducting the trial in defendant’s absence, as the record does not reflect that the court considered the appropriate factors. Nothing in the record indicates any difficulty in rescheduling the trial, fear that evidence or witnesses would be lost or that further efforts to locate defendant would be futile … . “Moreover, the fact that trial was commenced immediately after issuance of a bench warrant demonstrates only a minimal effort to locate defendant prior to trial” … . The court did not provide even a short adjournment for execution of the warrant or a determination as to whether defendant could be located within a reasonable time … . Because the court violated defendant’s right to be present at his trial, we reverse. People v Smith, 2019 NY Slip Op 01858, Third Dept 3-14-19

 

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CONFLICTING PSYCHIATRIC EVALUATIONS REQUIRED A COMPETENCY HEARING, EVEN IF ONE OF THE PSYCHIATRISTS HAD CHANGED HIS OR HER MIND (THIRD DEPT).

The Third Department, over a dissent, determined a hearing was required to assess defendant’s competency to stand trial because conflicting reports from the two psychiatric evaluations. The fact that one of the psychiatrists apparently changed his or her opinion was deemed irrelevant. The matter was sent back for a reconstruction hearing:

… [T]here can be no dispute that, after receiving conflicting examination reports, County Court failed to conduct a competency hearing. Although the People rely on defense counsel’s representation that the psychiatric examiner who filed a report stating that defendant was not competent to stand trial had changed his mind, this representation and subsequent withdrawal of the request for a hearing did not relieve the court of its statutory duty to conduct a hearing pursuant to CPL 730.30 (4) for the purpose of determining defendant’s mental capacity to stand trial … . We agree with the dissent that, pursuant to CPL 730.30 (2), a competency hearing need not always be held “[w]hen the examination reports submitted to the court show that each psychiatric examiner is of the opinion that the defendant is not an incapacitated person” (emphasis added). However, we do not agree that CPL 730.30 (2) applies when the record demonstrates that the court has been provided with two conflicting examination reports, even if the defendant’s attorney represents that one of the examiners has since changed his or her opinion.

Given the circumstances present here, reconstruction of defendant’s mental capacity at the time of his violation hearing should be possible by means of “contemporaneous observation and records” … . People v Vandegrift, 2019 NY Slip Op 01854, Third Dept 3-14-19

 

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RECORDED JAIL PHONE CALLS MAY NOT HAVE RELATED TO THE OFFENSE WHICH WAS THE SUBJECT OF THE TRIAL, CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined recordings of jail phone calls made by the defendant should not have been admitted in this criminal possession of a weapon case. It was possible the recordings related to a subsequent weapons charge, not the charge before the jury:

… [T]he timing and content of the telephone calls made it highly unlikely that the defendant was referencing his September 2014 arrest for the instant offense, rather than his subsequent arrest on the unrelated gun possession charge. Moreover, in addition to the lack of relevance of this evidence to the charges in this case, the jury was unaware of the defendant’s subsequent May 2015 arrest, and therefore was unable to properly evaluate the weight to be accorded to the recordings as evidence of the defendant’s guilt of the instant offense. Thus, there was a substantial risk that the jury would be misled into believing that the defendant’s admissions in the telephone recordings referred to the instant offense. The admission of the recordings into evidence placed the defendant in the untenable position of deciding whether to accept this misleading narrative that the telephone recordings referred to the instant offense or disclose his later arrest on a similar gun possession charge, which disclosure itself would have caused him undue prejudice … . People v Robinson, 2019 NY Slip Op 01799, Second Dept 3-13-19

 

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EVIDENCE DEFENDANT’S STEPFATHER APOLOGIZED TO THE ROBBERY VICTIM FOR THE DEFENDANT’S ACTIONS AND THE TESTIMONY ABOUT AN ANONYMOUS INFORMANT’S IDENTIFICATION OF THE DEFENDANT SHOULD NOT HAVE BEEN ADMITTED, PROSECUTOR SHOULD NOT HAVE ENCOURAGED INFERENCE OF GUILT BASED ON FACTS NOT IN EVIDENCE, APPELLATE ISSUES CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, reaching the appellate issues in the interest of justice, determined that improperly admitted evidence warranted a new trial, noting that the prosecutor also acted improperly. The identity of the defendant was a key issue in this robbery case. The victim (Fernandez) should not have been allowed to testify that the defendant’s stepfather told the victim he was sorry for what defendant had done and returned the victim’s keys. Also, the investigating detective should not have been allowed to testify that an anonymous informant had identified the defendant:

There was no showing that the defendant participated in or was in any way connected to his stepfather’s actions … .

… [T]he testimony of an investigating detective recounting a conversation with an anonymous informant, a nontestifying witness, violated the defendant’s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution… . The informant reportedly was an eyewitness to the crime and identified the defendant by name. The testimony “went beyond the permissible bounds of provid[ing] background information as to how and why the police pursued [the] defendant” … . …

Upon retrial, we remind the People that, on summation, a prosecutor may not “improperly encourage[ ] inferences of guilt based on facts not in evidence” … . Here, there was no evidence to support the prosecutor’s assertion that Fernandez had identified the defendant as the robber “immediately” by recognizing a distinctive “dot” on the defendant’s face. People v Gonsalves, 2019 NY Slip Op 01792, Second Dept 3-13-19

 

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DEFENDANT’S FLIGHT WHEN APPROACHED BY POLICE IN PLAINCLOTHES AND DRIVING AN UNMARKED CAR DID NOT JUSTIFY PURSUIT, MOTION TO SUPPRESS WEAPON DISCARDED BY THE DEFENDANT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, over two separate full-fledged dissenting opinions, determined that the police did not have justification for pursuing defendant when he ran as the police (in plainclothes driving an unmarked car) approached. The police had a report of a shooting by a black man wearing a black jacket. Defendant was wearing a gray jacket and was walking out of an apartment complex with a black man wearing a black jacket. Defendant’s motion to suppress the weapon he discarded during the chase should have been granted:

“Flight alone, even if accompanied by equivocal circumstances that would justify a police request for information, does not establish reasonable suspicion of criminality and is insufficient to justify pursuit, although it may give rise to reasonable suspicion if combined with other specific circumstances indicating the suspect’s possible engagement in criminal activity” … . “Police pursuit of an individual ‘significantly impede[s]’ the person’s freedom of movement and thus must be justified by reasonable suspicion that a crime has been, is being, or is about to be committed” … . …

… [T]he radio report simply indicated a sole perpetrator with a vague description — black man in a black jacket. There was nothing at all about defendant that matched any aspect of the suspect in the radio report, except that he was black. Nor was defendant wearing a black jacket. He was wearing a gray jacket and was with a second individual, several minutes after the radio report of shots fired. The men did not appear to be fleeing the scene, but rather, were exiting an apartment complex. Thus, unlike the cases relied on by the People, defendant did not match any description, general or otherwise … . Further, there was insufficient evidence to support the conclusion that defendant knew Pengel and his colleagues were police officers… .

That defendant was with someone who matched an extremely vague, generic description of the suspect, which contained no information about the suspect’s height or weight, was not sufficiently indicative of criminal activity on defendant’s part … . People v Bilal, 2019 NY Slip Op 01673, First Dept 3-7-19

 

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POLICE OFFICER’S ALLEGED OBSERVATION OF A DRUG DEAL WAS DEEMED INCREDIBLE AS A MATTER OF LAW, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, INDICTMENT DISMISSED (SECOND DEPT).

The Second Department determined defendant’s motion to suppress evidence should have been granted and the indictment dismissed in this drug possession case. The police officer’s (Borden’s) testimony that he observed the drug transaction, which took place inside a car, through his rearview mirror, was incredible as a matter of law:

… [W]e find that the People failed to establish the legality of the police conduct in the first instance, as Borden’s testimony was incredible and patently tailored to meet constitutional objections. Borden’s claim that he observed the alleged transaction through his rearview mirror with sufficient clarity to see that the object passed between the occupants of the car was Suboxone strains credulity and defies common sense … . Rather, common experience dictates that the dashboard of the defendant’s vehicle would have obscured Borden’s view of a hand-to-hand transaction between the defendant and the front-seat passenger. Borden’s testimony that the transaction occurred at a height sufficient for “public view” lacked credibility and suggested that his testimony was tailored to meet constitutional objections … . Moreover, the difference in size between the eight-inch by two-inch object Borden claimed to have seen passed between the occupants of the vehicle, and the two-inch by one-inch object recovered … , casts significant doubt on Borden’s testimony that he recognized the object as Suboxone. Accordingly, exercising our independent power of factual review, we conclude that the defendant’s motion to suppress the physical evidence recovered incident to his arrest should have been granted. People v Maiwandi, 2019 NY Slip Op 01618, Second Dept 3-6-19

 

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