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UPON REMITTITUR FROM THE COURT OF APPEALS, DEFENDANT’S IDENTITY THEFT CONVICTION AFFIRMED, DEFENDANT ATTEMPTED TO PURCHASE ITEMS USING A CREDIT CARD AND DRIVER’S LICENSE WITH A FICTITIOUS NAME (FIRST DEPT)

The First Department, upon remittitur from the Court of Appeals, determined defendant’s conviction for identity theft was not against the weight of the evidence. The defendant had tried to purchase items from a store using a credit card and driver’s license with a fictitious name. The First Department had reversed the conviction finding that, because the name was fictitious, defendant had not assumed the identity of another. The Court of Appeal held that using a fictitious name was prohibited by the identity theft statute:

On appeal, we modified to the extent of vacating the conviction for identity theft, and otherwise affirmed … . We reasoned that in order to establish the crime, a defendant had to both use the victim’s personal identifying information and assume the victim’s identity. We reasoned that while defendant had used the victim’s personal identifying information, he had not assumed her identity, but rather, that of a fictitious person.

The Court of Appeals reversed, reasoning that defendant had assumed the identity of the victim within the meaning of the statute. The Court rejected defendant’s argument that “the requirement that a defendant assumes the identity of another is not a separate element of the crime,” explaining that the statutory language “simply summarizes and introduces the three categories of conduct through which an identity may be assumed” … . People v Roberts, 2018 NY Slip Op 05220, First Dept 7-12-18

CRIMINAL LAW (UPON REMITTITUR FROM THE COURT OF APPEALS, DEFENDANT’S IDENTITY THEFT CONVICTION AFFIRMED, DEFENDANT ATTEMPTED TO PURCHASE ITEMS USING A CREDIT CARD AND DRIVER’S LICENSE WITH A FICTITIOUS NAME (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, IDENTITY THEFT, UPON REMITTITUR FROM THE COURT OF APPEALS, DEFENDANT’S IDENTITY THEFT CONVICTION AFFIRMED, DEFENDANT ATTEMPTED TO PURCHASE ITEMS USING A CREDIT CARD AND DRIVER’S LICENSE WITH A FICTITIOUS NAME (FIRST DEPT))/APPEALS (CRIMINAL LAW, IDENTITY THEFT, UPON REMITTITUR FROM THE COURT OF APPEALS, DEFENDANT’S IDENTITY THEFT CONVICTION AFFIRMED, DEFENDANT ATTEMPTED TO PURCHASE ITEMS USING A CREDIT CARD AND DRIVER’S LICENSE WITH A FICTITIOUS NAME (FIRST DEPT))/IDENTITY THEFT  (CRIMINAL LAW, IDENTITY THEFT, UPON REMITTITUR FROM THE COURT OF APPEALS, DEFENDANT’S IDENTITY THEFT CONVICTION AFFIRMED, DEFENDANT ATTEMPTED TO PURCHASE ITEMS USING A CREDIT CARD AND DRIVER’S LICENSE WITH A FICTITIOUS NAME (FIRST DEPT))

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IMPROPER CROSS-EXAMINATION OF THE SOLE DEFENSE WITNESS DEPRIVED DEFENDANT OF A FAIR TRIAL, REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing defendant’s conviction in the interest of justice, determined the prosecutor deprived defendant of a fair trial by improper cross-examination of the sole defense witness:

The prosecutor repeatedly injected her own credibility into the trial while cross-examining the complainant’s grandmother, who was the sole witness for the defense other than the defendant, about pretrial out-of-court statements the grandmother made to the prosecutor concerning the complainant’s outcry … . Given the importance of the grandmother’s testimony to the defense, this conduct deprived the defendant of his right to a fair trial … . People v Moulton, 2018 NY Slip Op 05203, Second Dept 7-11-18

CRIMINAL LAW (PROSECUTORIAL MISCONDUCT, IMPROPER CROSS-EXAMINATION OF THE SOLE DEFENSE WITNESS DEPRIVED DEFENDANT OF A FAIR TRIAL, REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT,  IMPROPER CROSS-EXAMINATION OF THE SOLE DEFENSE WITNESS DEPRIVED DEFENDANT OF A FAIR TRIAL, REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/APPEALS (CRIMINAL LAW, INTEREST OF JUSTICE, IMPROPER CROSS-EXAMINATION OF THE SOLE DEFENSE WITNESS DEPRIVED DEFENDANT OF A FAIR TRIAL, REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/PROSECUTORIAL MISCONDUCT (IMPROPER CROSS-EXAMINATION OF THE SOLE DEFENSE WITNESS DEPRIVED DEFENDANT OF A FAIR TRIAL, REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))

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ALTHOUGH THE SEARCH OF DEFENDANT’S PERSON INCIDENT TO ARREST WAS PROPER, THE SEARCH INSIDE DEFENDANT’S WALLET WAS NOT, CREDIT CARDS SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department determined defendant’s motion to suppress credit cards taken from his wallet after he was placed under arrest after a traffic stop should have been granted. The defendant was arrested after a police officer saw what looked like marijuana in a plastic bag on the floor of the car. Defendant was charged with possessing forged credit cards:

While the police officer’s search of the defendant’s pockets was justified since it arose from a search incident to a lawful arrest… , the subsequent search of the defendant’s wallet was akin to searching a small bag or change purse and was unlawful. “The protections embodied in article I, § 12 of the New York State Constitution serve to shield citizens from warrantless intrusions on their privacy interests, including their personal effects”… . “[E]ven a bag within the immediate control or grabbable area’ of a suspect at the time of his [or her] arrest may not be subjected to a warrantless search incident to the arrest, unless the circumstances leading to the arrest support a reasonable belief that the suspect may gain possession of a weapon or be able to destroy evidence located in the bag”… . The proof adduced at the suppression hearing failed to establish the presence of such circumstances … . People v Geddes-Kelly, 2018 NY Slip Op 05195, Second Dept 7-11-18

CRIMINAL LAW (EVIDENCE, ALTHOUGH THE SEARCH OF DEFENDANT’S PERSON INCIDENT TO ARREST WAS PROPER, THE SEARCH INSIDE DEFENDANT’S WALLET WAS NOT, CREDIT CARDS SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION, ALTHOUGH THE SEARCH OF DEFENDANT’S PERSON INCIDENT TO ARREST WAS PROPER, THE SEARCH INSIDE DEFENDANT’S WALLET WAS NOT, CREDIT CARDS SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/SEARCH AND SEIZURE (TRAFFIC STOP,  ALTHOUGH THE SEARCH OF DEFENDANT’S PERSON INCIDENT TO ARREST WAS PROPER, THE SEARCH INSIDE DEFENDANT’S WALLET WAS NOT, CREDIT CARDS SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/SUPPRESSION (TRAFFIC STOP, ALTHOUGH THE SEARCH OF DEFENDANT’S PERSON INCIDENT TO ARREST WAS PROPER, THE SEARCH INSIDE DEFENDANT’S WALLET WAS NOT, CREDIT CARDS SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/TRAFFIC STOPS (EVIDENCE, ALTHOUGH THE SEARCH OF DEFENDANT’S PERSON INCIDENT TO ARREST WAS PROPER, THE SEARCH INSIDE DEFENDANT’S WALLET WAS NOT, CREDIT CARDS SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/WALLETS (CRIMINAL LAW, SEARCH AND SEIZURE, ALTHOUGH THE SEARCH OF DEFENDANT’S PERSON INCIDENT TO ARREST WAS PROPER, THE SEARCH INSIDE DEFENDANT’S WALLET WAS NOT, CREDIT CARDS SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))

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PROSECUTOR’S IMPROPER REMARKS DESIGNED TO ELICIT THE JURY’S SYMPATHY FOR THE VICTIM DID NOT DEPRIVE DEFENDANT OF A FAIR TRIAL, HOWEVER A NEW TRIAL ON THE MURDER CHARGE IS REQUIRED BECAUSE THE TRIAL JUDGE ERRONEOUSLY DENIED DEFENDANT’S REQUEST TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF MANSLAUGHTER (SECOND DEPT).

The Second Department, reversing defendant’s murder conviction, determined the trial judge should have instructed the jury on the lesser included offense of manslaughter. Although the defendant told the police he went to the victim’s house intending to kill him, there was evidence the gun went off when the victim grabbed the gun. The Second Department also noted the prosecutor improperly tried to elicit the jury’s sympathy for the victim:

… [T]he prosecutor’s comments in his opening statement about the grand jury’s indictment were improper. The prosecutor’s comments in his opening statement about the victim and his family, which could only have been intended to evoke the jury’s sympathy, were also improper… . Further, the prosecutor elicited certain testimony from the medical examiner and the victim’s father about the victim’s personal background and the victim’s family that was irrelevant to the issues at trial, and was likewise intended to evoke the jury’s sympathy … . Nonetheless, under the circumstances of this case, the prosecutor’s improprieties did not deprive the defendant of a fair trial, and any other error in this regard was harmless, as there was overwhelming evidence of the defendant’s guilt and no significant probability that any error contributed to his convictions … . …

Here, the court should have granted the defendant’s request to charge manslaughter in the second degree (reckless manslaughter) as a lesser included offense of murder in the second degree (intentional murder). Reckless manslaughter is a lesser included offense of intentional murder in the second degree … . Moreover, there is a reasonable view of the evidence that the defendant did not intentionally pull the trigger at the time the gun was fired … .  People v Cherry, 2018 NY Slip Op 05190, Second Dept 7-11-18

CRIMINAL LAW (PROSECUTORIAL MISCONDUCT, LESSER INCLCUDED OFFENSE, PROSECUTOR’S IMPROPER REMARKS DESIGNED TO ELICIT THE JURY’S SYMPATHY FOR THE VICTIM DID NOT DEPRIVE DEFENDANT OF A FAIR TRIAL, HOWEVER A NEW TRIAL ON THE MURDER CHARGE IS REQUIRED BECAUSE THE TRIAL JUDGE ERRONEOUSLY DENIED DEFENDANT’S REQUEST TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF MANSLAUGHTER (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, LESSER INCLUDED OFFENSE, PROSECUTOR’S IMPROPER REMARKS DESIGNED TO ELICIT THE JURY’S SYMPATHY FOR THE VICTIM DID NOT DEPRIVE DEFENDANT OF A FAIR TRIAL, HOWEVER A NEW TRIAL ON THE MURDER CHARGE IS REQUIRED BECAUSE THE TRIAL JUDGE ERRONEOUSLY DENIED DEFENDANT’S REQUEST TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF MANSLAUGHTER (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT, PROSECUTOR’S IMPROPER REMARKS DESIGNED TO ELICIT THE JURY’S SYMPATHY FOR THE VICTIM DID NOT DEPRIVE DEFENDANT OF A FAIR TRIAL, HOWEVER A NEW TRIAL ON THE MURDER CHARGE IS REQUIRED BECAUSE THE TRIAL JUDGE ERRONEOUSLY DENIED DEFENDANT’S REQUEST TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF MANSLAUGHTER (SECOND DEPT))/LESSER INCLUDED OFFENSE A NEW TRIAL ON THE MURDER CHARGE IS REQUIRED BECAUSE THE TRIAL JUDGE ERRONEOUSLY DENIED DEFENDANT’S REQUEST TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF MANSLAUGHTER (SECOND DEPT))/JURY INSTRUCTIONS (LESSER INCLUDED OFFENSE,  A NEW TRIAL ON THE MURDER CHARGE IS REQUIRED BECAUSE THE TRIAL JUDGE ERRONEOUSLY DENIED DEFENDANT’S REQUEST TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF MANSLAUGHTER (SECOND DEPT))

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INSUFFICIENT EVIDENCE TO SUPPORT ASSESSMENT OF POINTS FOR SUBSTANCE ABUSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the SORA court assessment of points for substance abuse was not supported by the evidence:

Assessment of points under risk factor 11 may be appropriate if the offender has a “history” of substance abuse or if the offender “was abusing drugs and or alcohol at the time of the offense” … . Here, the People did not meet their burden of proving the facts underlying the disputed point assessment by clear and convincing evidence … . The presentence report contained only ambiguous information about the extent of the defendant’s use of alcohol and marijuana between the ages of 16 and 20, at least 7 years before the sex offense at issue in this proceeding, and no information about the defendant’s use of those substances in the 7 years before the sex offense. Moreover, the evidence at the hearing did not establish that the defendant abused or was under the influence of alcohol or marijuana at the time of the offense … . People v Trotter, 2018 NY Slip Op 05211, Second Dept 7-11-16

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA), INSUFFICIENT EVIDENCE TO SUPPORT ASSESSMENT OF POINTS FOR SUBSTANCE ABUSE (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) ( INSUFFICIENT EVIDENCE TO SUPPORT ASSESSMENT OF POINTS FOR SUBSTANCE ABUSE (SECOND DEPT))/SUBSTANCE ABUSE (SEX OFFENDER REGISTRATION ACT (SORA), INSUFFICIENT EVIDENCE TO SUPPORT ASSESSMENT OF POINTS FOR SUBSTANCE ABUSE (SECOND DEPT))

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MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN SUMMARILY GRANTED WITHOUT A HEARING, THREE CRITERIA FOR VACATING A CONVICTION EXPLAINED, HERE DEFENDANT ALLEGED HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN CORRECTLY INFORMED BY COUNSEL OF THE DEPORTATION CONSEQUENCES OF HIS PLEA (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction should not have been summarily granted and remanded the matter for a hearing. The defendant alleged defense counsel was ineffective for failure to correctly inform him of the deportation consequences of his guilty plea. The First Department offered a detailed explanation of the three criteria for granting a motion to vacate in this context on ineffective assistance of counsel grounds.

CPL 440.30 authorizes the summary granting of a motion to vacate a judgment of conviction where the moving papers allege a ground constituting a legal basis for the motion (CPL 440.30[3][a]); where that ground, if factually based, is supported by sworn allegations of fact essential to support the motion (CPL 440.30[3][b]); and where the sworn allegations of essential fact are either conceded by the People to be true or are conclusively substantiated by unquestionable documentary proof (CPL 440.30[3][c]). If all three of these statutory criteria are not met, the court may not grant a CPL 440.10 motion without first conducting a hearing (CPL 440.30[5]). …

… [T]he People did not concede the essential factual allegations on the issue of prejudice. Indeed, they expressly noted that defendant’s allegations of longstanding ties to the United States and lack of any connection to Haiti were entirely unsubstantiated. Neither did defendant proffer documentary proof conclusively substantiating his sworn factual allegations in support of his claim that “but for [his plea] counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial” … . …Thus, defendant’s CPL 440.10 motion failed to satisfy the third criterion of CPL 440.30(3), and for that reason, the motion court abused its discretion in granting defendant’s CPL 440.10 motion without first conducting a hearing and making findings of fact … . People v Gaston, 2018 NY Slip Op 05122, First Dept 7-10-18

CRIMINAL LAW (MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN SUMMARILY GRANTED WITHOUT A HEARING, THREE CRITERIA FOR VACATING A CONVICTION EXPLAINED, HERE DEFENDANT ALLEGED HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN CORRECTLY INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS PLEA (FIRST DEPT))/IMMIGRATION LAW (CRIMINAL LAW, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN SUMMARILY GRANTED WITHOUT A HEARING, THREE CRITERIA FOR VACATING A CONVICTION EXPLAINED, HERE DEFENDANT ALLEGED HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN CORRECTLY INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS PLEA (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, (MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN SUMMARILY GRANTED WITHOUT A HEARING, THREE CRITERIA FOR VACATING A CONVICTION EXPLAINED, HERE DEFENDANT ALLEGED HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN CORRECTLY INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS PLEA (FIRST DEPT))/VACATE CONVICTION, MOTION TO (MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN SUMMARILY GRANTED WITHOUT A HEARING, THREE CRITERIA FOR VACATING A CONVICTION EXPLAINED, HERE DEFENDANT ALLEGED HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN CORRECTLY INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS PLEA (FIRST DEPT))/DEPORTATION (CRIMINAL LAW, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN SUMMARILY GRANTED WITHOUT A HEARING, THREE CRITERIA FOR VACATING A CONVICTION EXPLAINED, HERE DEFENDANT ALLEGED HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN CORRECTLY INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS PLEA (FIRST DEPT))

CONTRARY TO THE TRIAL JUDGE’S RULING, DEFENDANT HAD SATISFIED THE FIRST STEP OF A BATSON CHALLENGE TO THE PEOPLE’S STRIKING OF AN AFRICAN-AMERICAN PROSPECTIVE JUROR, THE BURDEN THEN SHIFTED TO THE PEOPLE TO ARTICULATE A NONDISCRIMINATORY REASON, THE MATTER IS SENT BACK FOR A DETERMINATION OF THE BATSON CHALLENGE USING THE CORRECT PROCEDURE (FOURTH DEPT).

The Fourth Department sent the case back for a determination of a Batson challenge to the People’s use of peremptory challenge to strike an African-American prospective juror. The court had not used the correct procedure on first step. The Fourth Department held that defendant had satisfied the first step:

In order for the moving party to satisfy its burden at step one, it must ” show[ ] that the facts and circumstances of the voir dire raise an inference that the other party excused one or more jurors for an impermissible reason’ ” … . “A defendant need not show [either] a pattern of discrimination’ ” … or, as the court stated here, “a systematic approach by the prosecution.” Rather, a defendant may satisfy his or her burden under the first step by demonstrating that “members of the cognizable group were excluded while others with the same relevant characteristics were not” or that the People excluded members of the cognizable group “who, because of their background and experience, might otherwise be expected to be favorably disposed to the prosecution” … .

We conclude that defendant met his burden under step one by establishing that there is a basis in the record to infer that the People exercised the peremptory challenge in a discriminatory manner. Here, defense counsel explained to the court that the relevant prospective juror was the first African-American male “that’s been available without a [for]-cause” challenge and that the prospective juror provided answers during voir dire that were favorable to the prosecution, i.e., that the prospective juror had a number of family members in law enforcement, had a college degree and had at one time been robbed. Defense counsel thus implied that he could not ascertain from the prospective juror’s answers a reason for the peremptory challenge other than racial bias. The court did not provide defense counsel with any further opportunity to develop that argument and, instead, interrupted defense counsel and concluded that a pattern of discrimination had not been established.

Inasmuch as there is a basis in the record to infer that the People exercised the peremptory challenge in a discriminatory manner, we conclude that “the burden shifted to the People to articulate a nondiscriminatory reason for striking the juror, and the court then should have determined whether the proffered reason was pretextual” … . People v Herrod, 2018 NY Slip Op 05110, Fourth Dept 7-6-18

​CRIMINAL LAW (CONTRARY TO THE TRIAL JUDGE’S RULING, DEFENDANT HAD SATISFIED THE FIRST STEP OF A BATSON CHALLENGE TO THE PEOPLE’S STRIKING OF AN AFRICAN-AMERICAN PROSPECTIVE JUROR, THE BURDEN THEN SHIFTED TO THE PEOPLE TO ARTICULATE A NONDISCRIMINATORY REASON, THE MATTER IS SENT BACK FOR A DETERMINATION OF THE BATSON CHALLENGE USING THE CORRECT PROCEDURE (FOURTH DEPT))/JURORS (CRIMINAL LAW, BATSON, CONTRARY TO THE TRIAL JUDGE’S RULING, DEFENDANT HAD SATISFIED THE FIRST STEP OF A BATSON CHALLENGE TO THE PEOPLE’S STRIKING OF AN AFRICAN-AMERICAN PROSPECTIVE JUROR, THE BURDEN THEN SHIFTED TO THE PEOPLE TO ARTICULATE A NONDISCRIMINATORY REASON, THE MATTER IS SENT BACK FOR A DETERMINATION OF THE BATSON CHALLENGE USING THE CORRECT PROCEDURE (FOURTH DEPT))/BATSON PROCEDURE (CRIMINAL LAW, ONTRARY TO THE TRIAL JUDGE’S RULING, DEFENDANT HAD SATISFIED THE FIRST STEP OF A BATSON CHALLENGE TO THE PEOPLE’S STRIKING OF AN AFRICAN-AMERICAN PROSPECTIVE JUROR, THE BURDEN THEN SHIFTED TO THE PEOPLE TO ARTICULATE A NONDISCRIMINATORY REASON, THE MATTER IS SENT BACK FOR A DETERMINATION OF THE BATSON CHALLENGE USING THE CORRECT PROCEDURE (FOURTH DEPT))

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POLICE DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY AT THE TIME DEFENDANT WAS STOPPED ON THE STREET, SHOWUP IDENTIFICATION SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the show up identification of the defendant should have been suppressed because the police did not have a reasonable suspicion of criminal activity at the time the police approached and stopped the defendant. The police responded to a 911 dispatch indicating three black men, one with a book bag, had robbed a taxi driver on State Street and were headed east. Within two or three minutes a police officer spotted three men dressed in black, one with a book bag walking on a street west of State Street. Two of the men fled, but defendant remained. After defendant was taken into custody he was identified by the victim in a showup procedure. The Fourth Department noted that the three men were half a mile from the area indicated by the unidentified 911 caller and did not appear to be out of breath. The court also noted the fact that two of the men fled was not enough to create a reasonable suspicion of criminal activity on defendant’s part. The defendant also moved to suppress a cell phone that was found near where defendant was stopped. Denial of suppression was proper because there was no showing the phone was discarded because of unlawful conduct by the police. A new trial was ordered:

The necessary predicate for stopping and detaining defendant was that the officer have ” at least a reasonable suspicion that [defendant] ha[d] committed, [was] committing, or [was] about to commit a crime’ “… . Here, even assuming, arguendo, that the as-yet unidentified 911 caller was reliable and had a sufficient basis of knowledge… , we conclude that the information available to the detaining officer did not provide reasonable suspicion to stop and detain defendant. People v Spinks, 2018 NY Slip Op 05103, Fourth Dept 7-6-18

​CRIMINAL LAW (STREET STOPS, POLICE DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY AT THE TIME DEFENDANT WAS STOPPED ON THE STREET, SHOWUP IDENTIFICATION SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION, STREET STOPS, POLICE DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY AT THE TIME DEFENDANT WAS STOPPED ON THE STREET, SHOWUP IDENTIFICATION SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/SHOWUP IDENTIFICATION (STREET STOPS, POLICE DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY AT THE TIME DEFENDANT WAS STOPPED ON THE STREET, SHOWUP IDENTIFICATION SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/SUPPRESSION  (STREET STOPS, POLICE DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY AT THE TIME DEFENDANT WAS STOPPED ON THE STREET, SHOWUP IDENTIFICATION SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/SEARCH AND SEIZURE (STREET STOPS, POLICE DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY AT THE TIME DEFENDANT WAS STOPPED ON THE STREET, SHOWUP IDENTIFICATION SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/STREET STOPS (CRIMINAL LAW, POLICE DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY AT THE TIME DEFENDANT WAS STOPPED ON THE STREET, SHOWUP IDENTIFICATION SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/DE BOUR (STREET STOPS, POLICE DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY AT THE TIME DEFENDANT WAS STOPPED ON THE STREET, SHOWUP IDENTIFICATION SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))

SPECTATOR’S CLAIM JURORS REFERRED TO DEFENDANT AS A ‘SCUMBAG’ WAS NOT CREDIBLE, TRIAL JUDGE PROPERLY DECIDED A JUROR-BIAS (BUFORD) HEARING WAS NOT REQUIRED (FOURTH DEPT).

The Fourth Department, upon remittitur from the Court of Appeals, determined that the weight of the evidence supported the trial judge’s conclusion a spectator’s claim that jurors had referred to the defendant as a “scumbag” was not credible and therefore no juror-bias (Buford) hearing was required:

Upon exercising our factual review power, we conclude that the weight of the evidence supports the court’s implicit factual determination that the spectator was not credible. Initially, we note that the better practice would have been for the court, when making its determination, to make specific factual findings regarding whether and why it found the spectator not credible, and to set forth its determination and the reasons for it. Nevertheless, in view of the evidence regarding the spectator’s credibility, including the internal inconsistencies in her testimony as well as the differences between her description of the sequence of events and the court’s record of the proceedings, and after according the requisite “[g]reat deference . . . to the fact[]finder’s opportunity to view the witness[ ], hear the testimony and observe demeanor” … , we conclude that the weight of the evidence supports the court’s credibility determination. Consequently, the court “was justified in finding the spectator incredible and therefore determining [that] the Buford inquiry was not required” … . People v Kuzdzal, 2018 NY Slip Op 05099, Fourth Dept 7-6-18

​CRIMINAL LAW (SPECTATOR’S CLAIM JURORS REFERRED TO DEFENDANT AS A ‘SCUMBAG’ WAS NOT CREDIBLE, TRIAL JUDGE PROPERLY DECIDED A JUROR-BIAS (BUFORD) HEARING WAS NOT REQUIRED (FOURTH DEPT))/JURORS (CRIMINAL LAW, SPECTATOR’S CLAIM JURORS REFERRED TO DEFENDANT AS A ‘SCUMBAG’ WAS NOT CREDIBLE, TRIAL JUDGE PROPERLY DECIDED A JUROR-BIAS (BUFORD) HEARING WAS NOT REQUIRED (FOURTH DEPT))/BUFORD HEARING (CRIMINAL LAW, JUROR BIAS, SPECTATOR’S CLAIM JURORS REFERRED TO DEFENDANT AS A ‘SCUMBAG’ WAS NOT CREDIBLE, TRIAL JUDGE PROPERLY DECIDED A JUROR-BIAS (BUFORD) HEARING WAS NOT REQUIRED (FOURTH DEPT))

RESENTENCING IN SUPREME COURT AFTER CONVICTION IN COUNTY COURT WAS ILLEGAL (FOURTH DEPT).

The Fourth Department determined defendant, who had been convicted in County Court was illegally resentenced in Supreme Court:

We agree with defendant … that he was illegally resentenced in Supreme Court after his trial was conducted in County Court. It is well settled that “in order to remove a criminal action from County Court to Supreme Court, the Uniform Rules for the New York State Trial Courts require that such removal be authorized by the Chief Administrator and that it occur prior to the entry of a plea or commencement of trial” … . Here, although the case was removed by the Chief Administrator, it did not occur prior to the commencement of trial. Thus, Supreme Court lacked authority to resentence defendant, thereby rendering the resentence illegal … . People v Williams, 2018 NY Slip Op 05090, Fourth Dept 7-6-18

​CRIMINAL LAW (RESENTENCING IN SUPREME COURT AFTER CONVICTION IN COUNTY COURT WAS ILLEGAL (FOURTH DEPT))

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