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ADJOURNMENT IN CONTEMPLATION OF DISMISSAL WHICH HAS RESULTED IN DISMISSAL IS NOT APPEALABLE (SECOND DEPT).

The Second Department determined no appeal lies from an adjournment in contemplation of dismissal (ACD) which has resulted in dismissal:

“It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal. This principle, which forbids courts to pass on academic, hypothetical, moot, or otherwise abstract questions, is founded both in constitutional separation-of-powers doctrine, and in methodological strictures which inhere in the decisional process of a common-law judiciary” … .

Thus, an appeal is academic “unless an adjudication of the merits will result in immediate and practical consequences to the parties” … .

The application of these principles to the facts of this case establish that the appeal is academic. In the order appealed from, the Family Court adjourned the proceedings in contemplation of dismissal until July 18, 2017. Where a proceeding is adjourned in contemplation of dismissal, and the proceeding is not restored to the calendar and no applications by the petitioner or the child's attorney or motions by the court to restore the proceeding to the calendar are pending, “the petition is, at the expiration of the adjournment period, deemed to have been dismissed by the court in furtherance of justice” (Family Ct Act 1039[f]). Thus, the petition has been dismissed, by operation of law and in the furtherance of justice… . Given that the appellants have received the exact relief they seek, any determination we might make in this matter would have no direct effect on the rights of the parties before us … . Matter of Priciliyana C. (Jacklyn L.), 2018 NY Slip Op 05927, Second Dept 8-29-18

APPEALS (ADJOURNMENT IN CONTEMPLATION OF DISMISSAL WHICH HAS RESULTED IN DISMISSAL IS NOT APPEALABLE (SECOND DEPT))/CRIMINAL LAW (APPEALS, ADJOURNMENT IN CONTEMPLATION OF DISMISSAL WHICH HAS RESULTED IN DISMISSAL IS NOT APPEALABLE (SECOND DEPT))/FAMILY LAW (APPEALS, ADJOURNMENT IN CONTEMPLATION OF DISMISSAL WHICH HAS RESULTED IN DISMISSAL IS NOT APPEALABLE (SECOND DEPT))/ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD, ADJOURNMENT IN CONTEMPLATION OF DISMISSAL WHICH HAS RESULTED IN DISMISSAL IS NOT APPEALABLE (SECOND DEPT))

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RESUMPTION OF QUESTIONING THE NEXT MORNING DID NOT REQUIRE REPEATING THE MIRANDA WARNINGS, EVIDENCE OF A PRIOR UNCHARGED CRIME WAS ADMISSIBLE TO COMPLETE THE NARRATIVE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO INTERVIEW A PROSECUTION WITNESS WITHOUT A PROSECUTOR OR DETECTIVE PRESENT (SECOND DEPT).

The Second Department determined the questioning of defendant, without repeating the Miranda warnings, was appropriate. Defendant had not unequivocally invoked his right to remain silent the night before and the questioning continued the next morning. The court noted that the admission of evidence of prior uncharged crime was not error because the evidence completed the narrative. The court further noted that defendant should have been allowed to interview a prosecution witness without the presence of a prosecutor or a detective. The error was deemed harmless however:

The defendant's morning statement was properly admitted at trial. Had the defendant unequivocally and unqualifiedly invoked her right to remain silent the previous evening, the request would have had to be scrupulously honored … , and further interrogation would have had to cease… . Under such circumstances, further inquiry can be made, but only if a significant period of time has passed and the police reiterate the requisite warnings … . However, since the defendant in this case had not unequivocally and unqualifiedly invoked her right to remain silent … and remained in continuous custody in the interim, police and prosecutors were free to resume their questioning of the defendant within a reasonable time, and to do so without repeating the Miranda warnings … . The further questioning at issue here was within a reasonable time under this Court's precedent … . People v Wisdom, 2018 NY Slip Op 05950, Second Dept 8-29-18

CRIMINAL LAW (RESUMPTION OF QUESTIONING THE NEXT MORNING DID NOT REQUIRE REPEATING THE MIRANDA WARNINGS, EVIDENCE OF A PRIOR UNCHARGED CRIME WAS ADMISSIBLE TO COMPLETE THE NARRATIVE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO INTERVIEW A PROSECUTION WITNESS WITHOUT A PROSECUTOR OR DETECTIVE PRESENT (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, RESUMPTION OF QUESTIONING THE NEXT MORNING DID NOT REQUIRE REPEATING THE MIRANDA WARNINGS, EVIDENCE OF A PRIOR UNCHARGED CRIME WAS ADMISSIBLE TO COMPLETE THE NARRATIVE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO INTERVIEW A PROSECUTION WITNESS WITHOUT A PROSECUTOR OR DETECTIVE PRESENT (SECOND DEPT))/MIRANDA  (RESUMPTION OF QUESTIONING THE NEXT MORNING DID NOT REQUIRE REPEATING THE MIRANDA WARNINGS, EVIDENCE OF A PRIOR UNCHARGED CRIME WAS ADMISSIBLE TO COMPLETE THE NARRATIVE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO INTERVIEW A PROSECUTION WITNESS WITHOUT A PROSECUTOR OR DETECTIVE PRESENT (SECOND DEPT))/MOLINEUX (CRIMINAL LAW, RESUMPTION OF QUESTIONING THE NEXT MORNING DID NOT REQUIRE REPEATING THE MIRANDA WARNINGS, EVIDENCE OF A PRIOR UNCHARGED CRIME WAS ADMISSIBLE TO COMPLETE THE NARRATIVE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO INTERVIEW A PROSECUTION WITNESS WITHOUT A PROSECUTOR OR DETECTIVE PRESENT (SECOND DEPT))/SUPPRESS, MOTION TO (RESUMPTION OF QUESTIONING THE NEXT MORNING DID NOT REQUIRE REPEATING THE MIRANDA WARNINGS, EVIDENCE OF A PRIOR UNCHARGED CRIME WAS ADMISSIBLE TO COMPLETE THE NARRATIVE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO INTERVIEW A PROSECUTION WITNESS WITHOUT A PROSECUTOR OR DETECTIVE PRESENT (SECOND DEPT))

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CPL 450.10 (1), WHICH PURPORTS TO PROHIBIT AN ‘EXCESSIVE SENTENCE’ APPEAL AFTER A GUILTY PLEA, IS UNCONSTITUTIONAL, DEFENDANT’S WAIVER OF APPEAL, HOWEVER, WAS VALID (SECOND DEPT).

The Second Department noted that Criminal Procedure Law 450.10(1), which purports to prohibit an “excessive sentence” appeal after a guilty plea, is unconstitutional in that it limits the jurisdiction of the Appellate Division, in violation of the NYS Constitution. But the court went on to find that defendant's waiver of appeal was valid and precluded contesting his sentence:

CPL 450.10(1) provides a criminal defendant with the right to appeal a judgment “unless the appeal is based solely upon the ground that a sentence was harsh or excessive when such sentence was predicated upon entry of a plea of guilty and the sentence imposed did not exceed that which was agreed to by the defendant as a condition of the plea.” As the People acknowledge, the Court of Appeals has held that this provision is unconstitutional because “it imposes a limitation or condition on the jurisdiction of the Appellate Division of Supreme Court in contravention of NY Constitution, article VI, § 4(k)” … . * * *

Here, the record of the plea proceeding demonstrates that the defendant understood that the appeal waiver was separate and distinct from those rights automatically forfeited upon a plea of guilty and that the defendant was voluntarily relinquishing that right in consideration for the promised sentence … . Furthermore, the record of the plea proceeding demonstrates that the defendant received an explanation of the nature of the right to appeal and the consequences of waiving that right … . People v Swen, 2018 NY Slip Op 05949, Second Dept 8-29-18

CRIMINAL LAW (CPL 450.10 (1), WHICH PURPORTS TO PROHIBIT AN 'EXCESSIVE SENTENCE' APPEAL AFTER A GUILTY PLEA, IS UNCONSTITUTIONAL, DEFENDANT'S WAIVER OF APPEAL, HOWEVER, WAS VALID (SECOND DEPT))/CONSTITUTIONAL LAW (CRIMINAL LAW, CPL 450.10 (1), WHICH PURPORTS TO PROHIBIT AN 'EXCESSIVE SENTENCE' APPEAL AFTER A GUILTY PLEA, IS UNCONSTITUTIONAL, DEFENDANT'S WAIVER OF APPEAL, HOWEVER, WAS VALID (SECOND DEPT))/APPEALS (CRIMINAL LAW, CPL 450.10 (1), WHICH PURPORTS TO PROHIBIT AN 'EXCESSIVE SENTENCE' APPEAL AFTER A GUILTY PLEA, IS UNCONSTITUTIONAL, DEFENDANT'S WAIVER OF APPEAL, HOWEVER, WAS VALID (SECOND DEPT))/WAIVER OF APPEAL (CRIMINAL LAW, CPL 450.10 (1), WHICH PURPORTS TO PROHIBIT AN 'EXCESSIVE SENTENCE' APPEAL AFTER A GUILTY PLEA, IS UNCONSTITUTIONAL, DEFENDANT'S WAIVER OF APPEAL, HOWEVER, WAS VALID (SECOND DEPT))/SENTENCING (APPEALS, CPL 450.10 (1), WHICH PURPORTS TO PROHIBIT AN 'EXCESSIVE SENTENCE' APPEAL AFTER A GUILTY PLEA, IS UNCONSTITUTIONAL, DEFENDANT'S WAIVER OF APPEAL, HOWEVER, WAS VALID (SECOND DEPT))

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RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, over a dissent, reversed defendant's convictions for reckless endangerment and reckless assault. Defendant had picked up a gun that his friend (Morales) had brought to his house. In handling the gun it went off injuring his friend's leg. His friend was asleep when the gun fired. Defendant immediately said he was sorry, put the gun in a garbage can and accompanied his friend to the hospital. The Second Department determined the convictions were against the weight of the evidence because there was insufficient proof that defendant acted recklessly:

… [T]he People failed to prove beyond a reasonable doubt that the defendant was aware of and consciously disregarded a substantial risk that his conduct would cause physical injury to another person. The People did not introduce evidence that the defendant was familiar with weapons, or the particular gun. Indeed, the gun was brought to the defendant's home by Morales, and it is undisputed that the gun discharged as the defendant handled it out of curiosity. There was no evidence from which it could be inferred that the defendant knew the gun was loaded with live ammunition, or even knew how the particular gun operated. There was no evidence introduced that the defendant was aware of and consciously disregarded the risk that the gun might misfire … . Indeed, Morales testified that the defendant appeared “scared” when the gun discharged and that the defendant immediately stated that he was “sorry.” The defendant attempted to dispose of the gun and helped the victim get medical care. Contrary to the People's contention, there was no testimony that the defendant was pointing the gun at Morales when it discharged, and there was no evidence introduced establishing that the only way the pellets could have struck Morales's leg was by pointing the gun directly at Morales. People v Marin, 2018 NY Slip Op 05942, Second Dept 8-29-18

CRIMINAL LAW (RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))/APPEALS (CRIMINAL LAW, RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))/RECKLESSNESS (CRIMINAL LAW, RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, APPEALS, RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))

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POLICE OFFICER RESPONDED APPROPRIATELY TO AN ESCALATING SITUATION AFTER A STREET STOP, MOTION TO SUPPRESS ABANDONED HANDGUN AND STATEMENTS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department determined defendant's motion to suppress a handgun and statements should not have been granted in this street stop case. The Second Department found that the officer who stopped the defendant properly responded to an escalating situation which culminated in the defendant's flight and abandonment of a backpack containing the handgun:

There is no dispute that upon receiving a radio transmission of an anonymous tip that a man of a specific description wearing a black backpack and possessing a gun was traveling on the B6 bus toward Canarsie, the responding police officer had a common-law right of inquiry upon encountering the defendant exiting that bus and matching the description … . The responding officer testified at the suppression hearing that he approached the defendant and asked something to the effect of, “Hey, what's up, man, you know, you got a second for the police?” The defendant's eyes widened, he appeared visibly nervous, and he started to back up. The defendant then thrust his right hand in his right pants pocket and refused to comply with the officer's command to remove it. These actions by the defendant escalated the encounter to justify the officer drawing his weapon, placing it across his own chest in a “depressed position,” and attempting to forcibly remove the defendant's hand from his pocket as a self-protective measure … . Further, the defendant's subsequent flight, coupled with all of the other indicia of criminality, justified the police pursuit …  and, ultimately, the recovery of a semi-automatic handgun from the defendant's backpack, which he abandoned in a nearby bodega … . People v King, 2018 NY Slip Op 05941, Second Dept 8-29-18

CRIMINAL LAW (POLICE OFFICER RESPONDED APPROPRIATELY TO AN ESCALATING SITUATION AFTER A STREET STOP, MOTION TO SUPPRESS ABANDONED HANDGUN AND STATEMENTS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/STREET STOPS (POLICE OFFICER RESPONDED APPROPRIATELY TO AN ESCALATING SITUATION AFTER A STREET STOP, MOTION TO SUPPRESS ABANDONED HANDGUN AND STATEMENTS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, POLICE OFFICER RESPONDED APPROPRIATELY TO AN ESCALATING SITUATION AFTER A STREET STOP, MOTION TO SUPPRESS ABANDONED HANDGUN AND STATEMENTS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SUPPRESS, MOTION TO (POLICE OFFICER RESPONDED APPROPRIATELY TO AN ESCALATING SITUATION AFTER A STREET STOP, MOTION TO SUPPRESS ABANDONED HANDGUN AND STATEMENTS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SEARCH AND SEIZURE  (POLICE OFFICER RESPONDED APPROPRIATELY TO AN ESCALATING SITUATION AFTER A STREET STOP, MOTION TO SUPPRESS ABANDONED HANDGUN AND STATEMENTS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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POSSESSION OF SEXUAL PERFORMANCE OF A CHILD CONVICTIONS REVERSED, PHOTOGRAPHS DID NOT MEET STATUTORY CRITERIA, ALTHOUGH THE MAJORITY AFFIRMED DEFENDANT’S CONVICTION IN THIS RAPE, CRIMINAL SEXUAL ACT, AND POSSESSION OF SEXUAL PERFORMANCE BY A CHILD PROSECUTION, THE DISSENT WOULD HAVE REVERSED BECAUSE THE PHOTOGRAPHIC EXHIBITS UPON WHICH THE PROSECUTION RELIED WERE NOT PROPERLY AUTHENTICATED (THIRD DEPT).

The Third Department, over a dissent, affirmed defendant's conviction and long prison sentence for rape, criminal sexual act, possessing a sexual performance by a child and criminal solicitation. Three of the four possession of a sexual performance by a child were reversed because the “the lewd exhibition of the genitals” element was not present, only the victim's bare chest was depicted. The dissenting justice argued that the photographic exhibits were not supported by a proper foundation and should not have been admitted. With the photographs deemed inadmissible, the dissent would have reversed defendant's convictions:

From the dissent: The People's foundational questioning here, generously described by the majority as “brief,” was wholly lacking in substance. Although the People asked appropriate witnesses, including the victim, to identify the subject matter of the photographs to which they had knowledge, little or no additional information was elicited. Fatally, the People did not elicit any testimony that could establish that any of the photographs fairly and accurately depict the subject matter identified therein … . …

Specifically, with respect to the 16 photographic exhibits depicting the victim in various stages of undress, the People simply asked the victim whether each photograph “look[ed] familiar.” Contrary to the assertions of the majority, the victim's general testimony identifying herself as the person depicted in those photographs was insufficient to properly authenticate them. Even if the victim's testimony demonstrated that the photographs admitted into evidence were a fair representation of the photographs that she took or were taken of her, as the majority contends, no one testified that the admitted photographs had not been altered or that they were true and accurate representations of the photographs actually recovered from defendant's cell phone and computer … . There was simply no sworn testimony to refute the possibility that the photographs had been manipulated.

Although not discussed by the majority in detail, the remaining 10 photographic exhibits allegedly depict a motel room, different areas in the victim's bedroom and defendant's home computers, vehicle and residence. These photographs were offered into evidence to corroborate the victim's testimony, to provide background information and/or to allow the jury to assess whether the photographs of the victim were taken in either the motel room or the victim's bedroom. As with the photographs of the victim, the People did not elicit any testimony whatsoever to establish that these photographs fairly and accurately represented the subject matter depicted therein, as required … . People v Pendell, 2018 NY Slip Op 05899, Third Dept 8-23-18

CRIMINAL LAW (EVIDENCE, PHOTOGRAPHS, ALTHOUGH THE MAJORITY AFFIRMED DEFENDANT'S CONVICTION IN THIS RAPE, CRIMINAL SEXUAL ACT, AND POSSESSION OF SEXUAL PERFORMANCE BY A CHILD PROSECUTION, THE DISSENT WOULD HAVE REVERSED BECAUSE THE PHOTOGRAPHIC EXHIBITS UPON WHICH THE PROSECUTION RELIED WERE NOT PROPERLY AUTHENTICATED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, PHOTOGRAPHS, ALTHOUGH THE MAJORITY AFFIRMED DEFENDANT'S CONVICTION IN THIS RAPE, CRIMINAL SEXUAL ACT, AND POSSESSION OF SEXUAL PERFORMANCE BY A CHILD PROSECUTION, THE DISSENT WOULD HAVE REVERSED BECAUSE THE PHOTOGRAPHIC EXHIBITS UPON WHICH THE PROSECUTION RELIED WERE NOT PROPERLY AUTHENTICATED (THIRD DEPT))/PHOTOGRAPHS (CRIMINAL LAW, EVIDENCE, ALTHOUGH THE MAJORITY AFFIRMED DEFENDANT'S CONVICTION IN THIS RAPE, CRIMINAL SEXUAL ACT, AND POSSESSION OF SEXUAL PERFORMANCE BY A CHILD PROSECUTION, THE DISSENT WOULD HAVE REVERSED BECAUSE THE PHOTOGRAPHIC EXHIBITS UPON WHICH THE PROSECUTION RELIED WERE NOT PROPERLY AUTHENTICATED (THIRD DEPT))

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PROSECUTOR’S REPEATED USE OF THE TERM ‘STATUTORY RAPE’ TO GIVE THE JURY THE MISIMPRESSION THE VICTIM OF THE SHOOTING IN THIS MANSLAUGHTER CASE HAD NOT BEEN CHARGED WITH A VIOLENT RAPE DEPRIVED DEFENDANT OF A FAIR TRIAL BECAUSE DEFENDANT WAS RELYING ON THE JUSTIFICATION DEFENSE (SECOND DEPT).

The Second Department, reversing defendant's manslaughter conviction, determined the prosecutor's repeated use of the term “statutory rape” to describe the charge against the victim deprived the defendant of a fair trial. The defendant raised the justification defense. Defendant had been working with the police to capture the victim, who had confessed to the defendant he was wanted for rape. Defendant shot the victim when he was attempting to turn the victim over to the police. By using the term “statutory rape,” the jury was given the mistaken impression that the rape was not a violent offense:

The County Court correctly determined that the use of the term “statutory rape” when describing the victim's alleged criminal conduct was not proper as such a colloquial term may have been misinterpreted by some jurors to mean that the sexual contact between the victim and his alleged victim was consensual, but illegal solely because of the age difference between them. Indeed, the People had initially contended to the County Court that the crime for which the victim was charged, rape in the second degree… , was not a “violent” crime. Here, because the defendant's defense was based on justification, the County Court was properly concerned that use of the term “statutory rape” by the prosecutor may have been interpreted by jurors to imply that the victim was not violent, and thus properly instructed the potential jurors that the victim was a fugitive charged with rape in the second degree. However, the court's failure to issue curative instructions to the entire jury pool, including those already sworn and seated, was error and deprived the defendant of his fundamental right to a fair trial … . People v Carlson, 2018 NY Slip Op 05859, Second Dept 8-22-18

CRIMINAL LAW (PROSECUTOR'S REPEATED USE OF THE TERM 'STATUTORY RAPE' TO GIVE THE JURY THE MISIMPRESSION THE VICTIM OF THE SHOOTING IN THIS MANSLAUGHTER CASE HAD NOT BEEN CHARGED WITH A VIOLENT RAPE DEPRIVED DEFENDANT OF A FAIR TRIAL BECAUSE DEFENDANT WAS RELYING THE JUSTIFICATION DEFENSE (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT, PROSECUTOR'S REPEATED USE OF THE TERM 'STATUTORY RAPE' TO GIVE THE JURY THE MISIMPRESSION THE VICTIM OF THE SHOOTING IN THIS MANSLAUGHTER CASE HAD NOT BEEN CHARGED WITH A VIOLENT RAPE DEPRIVED DEFENDANT OF A FAIR TRIAL BECAUSE DEFENDANT WAS RELYING THE JUSTIFICATION DEFENSE (SECOND DEPT))/PROSECUTORIAL MISCONDUCT  (PROSECUTOR'S REPEATED USE OF THE TERM 'STATUTORY RAPE' TO GIVE THE JURY THE MISIMPRESSION THE VICTIM OF THE SHOOTING IN THIS MANSLAUGHTER CASE HAD NOT BEEN CHARGED WITH A VIOLENT RAPE DEPRIVED DEFENDANT OF A FAIR TRIAL BECAUSE DEFENDANT WAS RELYING THE JUSTIFICATION DEFENSE (SECOND DEPT))

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ANONYMOUS PHONE CALL DESCRIBING ‘A MAN WITH A GUN’ AND DESCRIBING THE MAN’S CAR, INCLUDING THE LICENSE PLATE NUMBER, DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION SUFFICIENT TO JUSTIFY STOPPING THE CAR, APPROACHING WITH GUNS DRAWN, AND FRISKING THE DEFENDANT, MOTION TO SUPPRESS SHOULD HAVE GRANTED, CRIMINAL POSSESSION OF A WEAPON CONVICTIONS REVERSED (SECOND DEPT).

The Second Department, reversing defendant's criminal possession of a weapon convictions, determined that defendant's motion to suppress the weapon, identification and statements should have been granted. The police stopped the defendant's car and approached with guns drawn on the basis of an anonymous phone call which described “a man with a gun” and described the car the man was driving, including the license plate number. The Second Department determined the anonymous call did not provide the officers with reasonable suspicion sufficient to justify stopping and frisking a suspect:

“It is fundamental that in order to stop a vehicle the police must have a reasonable suspicion, based on objective evidence, that the occupants were involved in a felony or misdemeanor” … . “Reasonable suspicion has been defined as that quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand'”… .. “[W]here an anonymous phone tip giving a general description and location of a man with a gun' is the sole predicate, it will generate only a belief that criminal activity is afoot,” and “will not of itself constitute reasonable suspicion thereby warranting a stop and frisk of anyone who happens to fit that description”… . “Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her [or his] allegations turn out to be fabricated, an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity'” … . However, “there are situations in which an anonymous tip, suitably corroborated, exhibits sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop'” … . Further, reasonable suspicion “requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person” … .

Here, while the individual who reported a man with a gun ultimately disclosed his identity to Officer Travitt, his identity was unknown at the time the police stopped the vehicle and ordered the defendant out of the car at gunpoint … . The police lacked reasonable suspicion to stop the vehicle based only on an anonymous tip of “a man with a gun,” since the tip came from an individual ” who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about [the defendant],'” and the report ” [did] not show that the tipster ha[d] knowledge of concealed criminal activity'” … . People v Bailey, 2018 NY Slip Op 05856, Second Dept 8-22-18

CRIMINAL LAW (ANONYMOUS PHONE CALL DESCRIBING 'A MAN WITH A GUN' AND DESCRIBING THE MAN'S CAR, INCLUDING THE LICENSE PLATE NUMBER, DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION SUFFICIENT TO JUSTIFY STOPPING THE CAR, APPROACHING WITH GUNS DRAWN, AND FRISKING THE DEFENDANT, MOTION TO SUPPRESS SHOULD HAVE GRANTED, CRIMINAL POSSESSION OF A WEAPON CONVICTIONS REVERSED (SECOND DEPT))/STREET STOPS (ANONYMOUS PHONE CALL DESCRIBING 'A MAN WITH A GUN' AND DESCRIBING THE MAN'S CAR, INCLUDING THE LICENSE PLATE NUMBER, DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION SUFFICIENT TO JUSTIFY STOPPING THE CAR, APPROACHING WITH GUNS DRAWN, AND FRISKING THE DEFENDANT, MOTION TO SUPPRESS SHOULD HAVE GRANTED, CRIMINAL POSSESSION OF A WEAPON CONVICTIONS REVERSED (SECOND DEPT))/EVIDENCE (SUPPRESSION, ANONYMOUS PHONE CALL DESCRIBING 'A MAN WITH A GUN' AND DESCRIBING THE MAN'S CAR, INCLUDING THE LICENSE PLATE NUMBER, DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION SUFFICIENT TO JUSTIFY STOPPING THE CAR, APPROACHING WITH GUNS DRAWN, AND FRISKING THE DEFENDANT, MOTION TO SUPPRESS SHOULD HAVE GRANTED, CRIMINAL POSSESSION OF A WEAPON CONVICTIONS REVERSED (SECOND DEPT))/SUPPRESS, MOTION TO  (ANONYMOUS PHONE CALL DESCRIBING 'A MAN WITH A GUN' AND DESCRIBING THE MAN'S CAR, INCLUDING THE LICENSE PLATE NUMBER, DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION SUFFICIENT TO JUSTIFY STOPPING THE CAR, APPROACHING WITH GUNS DRAWN, AND FRISKING THE DEFENDANT, MOTION TO SUPPRESS SHOULD HAVE GRANTED, CRIMINAL POSSESSION OF A WEAPON CONVICTIONS REVERSED (SECOND DEPT))/REASONABLE SUSPICION (CRIMINAL LAW, ANONYMOUS PHONE CALL DESCRIBING 'A MAN WITH A GUN' AND DESCRIBING THE MAN'S CAR, INCLUDING THE LICENSE PLATE NUMBER, DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION SUFFICIENT TO JUSTIFY STOPPING THE CAR, APPROACHING WITH GUNS DRAWN, AND FRISKING THE DEFENDANT, MOTION TO SUPPRESS SHOULD HAVE GRANTED, CRIMINAL POSSESSION OF A WEAPON CONVICTIONS REVERSED (SECOND DEPT))

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MATTER SENT BACK TO RECONSTRUCT THE RECORD ABOUT POSSIBLE BRADY MATERIAL THAT WAS TO BE REVIEWED BY THE JUDGE, CURRENT RECORD IS SILENT ON THE ISSUE (SECOND DEPT).

The Second Department sent the matter back for a hearing to reconstruct the record as to what, if any, material was provided to the court for in camera review. Defendant alleged statements which constituted Brady material were to be given to the judge for a determination whether the material should be provided to the defense. But the record gave no indication what the materials were:

On appeal, the defendant argues that the failure to disclose the requested material constituted a Brady violation. The People were unable to provide to this Court any material they provided to the trial court for in camera review. They indicate that they have no record in their files of what material may have been submitted to the trial court. The People assert that, nevertheless, the defendant's Brady claim is based on matter dehors the record, and thus cannot be reviewed on direct appeal. However, to the extent that material was produced to the trial court for in camera review, it is properly part of the record, and the defendant's Brady claim would thus be reviewable on direct appeal. Under these circumstances, we deem it appropriate to remit the matter for a hearing to reconstruct the record as to what, if any, material was provided to the trial court for in camera review … , and thereafter to report to this Court with all convenient speed. The appeal is held in abeyance in the interim, and we do not decide any other issues at this time. People v DeFelice, 2018 NY Slip Op 05781, Second Dept 8-15-18

CRIMINAL LAW (APPEALS, RECORD, MATTER SENT BACK TO RECONSTRUCT THE RECORD ABOUT POSSIBLE BRADY MATERIAL THAT WAS TO BE REVIEWED BY THE JUDGE, CURRENT RECORD IS SILENT ON THE ISSUE (SECOND DEPT))/APPEALS (CRIMINAL LAW, RECORD, MATTER SENT BACK TO RECONSTRUCT THE RECORD ABOUT POSSIBLE BRADY MATERIAL THAT WAS TO BE REVIEWED BY THE JUDGE, CURRENT RECORD IS SILENT ON THE ISSUE (SECOND DEPT))

PETITIONER, A LEVEL THREE SEX OFFENDER UNDER POST-RELEASE SUPERVISION, CAN BE PLACED IN RESIDENTIAL CORRECTIONS FACILITIES PENDING THE AVAILABILITY OF COMMUNITY HOUSING THAT IS MORE THAN 1000 FEET FROM A SCHOOL (SECOND DEPT).

The Second Department, applying standard rules of statutory construction, determined the Department of Corrections and Community Supervision (DOCCS) had the authority to place petitioner, a level-three sex offender under post-release supervision, in residential corrections facilities pending the availability of Sexual Assault Reform Act (SARA) compliant housing (more 1000 feet from a school):

” Statutes which relate to the same subject matter must be construed together unless a contrary legislative intent is expressed'” … . “The courts must harmonize the various provisions of related statutes and . . . construe them in a way that renders them internally compatible'” … . “In the case of a conflict between a general statute and a special statute governing the same subject matter, the general statute must yield” … . “Finally, [a] construction rendering statutory language superfluous is to be avoided'” … . …

… [C]onstruing the relevant statutes together, DOCCS has authority to temporarily place a level three sex offender who has already completed more than six months of his or her postrelease supervision, as did the petitioner in this case, into residential treatment facility housing in the event such offender is unable to locate SARA-compliant community housing. Moreover, it is clear that DOCCS's authority to keep such an offender in residential treatment facility housing ends when the offender successfully identifies or otherwise obtains SARA-compliant community housing.  People v Warden, Westchester County Corr. Facility, 2018 NY Slip Op 05777, Second Dept 8-15-18

CRIMINAL LAW (SEX OFFENDERS, POST-RELEASE SUPERVISION, PETITIONER, A LEVEL THREE SEX OFFENDER UNDER POST-RELEASE SUPERVISION, CAN BE PLACED IN RESIDENTIAL CORRECTIONS FACILITIES PENDING THE AVAILABILITY OF COMMUNITY HOUSING THAT IS MORE THAN 1000 FEET FROM A SCHOOL (SECOND DEPT))/SEX OFFENDERS (POST-RELEASE SUPERVISION,  PETITIONER, A LEVEL THREE SEX OFFENDER UNDER POST-RELEASE SUPERVISION, CAN BE PLACED IN RESIDENTIAL CORRECTIONS FACILITIES PENDING THE AVAILABILITY OF COMMUNITY HOUSING THAT IS MORE THAN 1000 FEET FROM A SCHOOL (SECOND DEPT))/SEXUAL ASSAULT REFORM ACT (SARA) (SEX OFFENDERS, POST-RELEASE SUPERVISION, PETITIONER, A LEVEL THREE SEX OFFENDER UNDER POST-RELEASE SUPERVISION, CAN BE PLACED IN RESIDENTIAL CORRECTIONS FACILITIES PENDING THE AVAILABILITY OF COMMUNITY HOUSING THAT IS MORE THAN 1000 FEET FROM A SCHOOL (SECOND DEPT))

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