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DEFENSE COUNSEL DID NOT OBJECT TO THE COURT’S FAILURE TO INSTRUCT THE JURY DEFENDANT’S PRIOR CONVICTIONS COULD NOT BE CONSIDERED AS EVIDENCE OF GUILT OF THE OFFENSE ON TRIAL, DEFENSE COUNSEL TOLD THE JURY THEIR JOB WAS TO SEARCH FOR THE TRUTH THEREBY DIMINISHING THE PEOPLE’S BURDEN OF PROOF, AND DEFENSE COUNSEL INDICATED TO THE JURY DEFENDANT HAD TEN PRIOR CONVICTIONS, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the defendant did not receive effective assistance of counsel:

Defense counsel repeatedly stated to the jury during voir dire that the trial was to be “a search for the truth.” It is settled that a “prosecutor’s characterization of [a] trial as a search for the truth’ [is] indeed improper” … , inasmuch as it is a way of “proposing that the jury might convict even in the absence of proof beyond a reasonable doubt so long as the jury concluded that its verdict represented the truth” … . Here, by making that statement to the jury during voir dire then repeating it at least three times during summation, defense counsel improperly diminished the People’s burden of proof.

Furthermore, it is also well settled that, when a defendant testifies and is cross-examined regarding his prior convictions, he or she is entitled to have the court “charge the jury that such prior convictions could only be used in evaluating defendant’s credibility, and that they could not be used as evidence of defendant’s guilt”… . Here, counsel requested such a charge, the prosecutor conceded that the charge should be given, and the court agreed to give it. Nevertheless, the court’s instructions indicated that the jury may rely upon evidence of a previous conviction in evaluating the credibility of the witnesses, including defendant, but the court did not instruct the jury that they may not consider the prior conviction as evidence of defendant’s guilt. Defense counsel did not object or otherwise bring the omission to the court’s attention. …

Furthermore, defense counsel exacerbated the harmful impact of defendant’s prior convictions during the cross-examination of the People’s fingerprint expert by eliciting evidence that gave the impression that defendant had 10 or more prior arrests and/or convictions. People v Mccallum, 2018 NY Slip Op 04898, Fourth Dept 6-29-18

​CRIMINAL LAW (ATTORNEYS, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL DID NOT OBJECT TO THE COURT’S FAILURE TO INSTRUCT THE JURY DEFENDANT’S PRIOR CONVICTIONS COULD NOT BE CONSIDERED AS EVIDENCE OF GUILT OF THE OFFENSE ON TRIAL, DEFENSE COUNSEL TOLD THE JURY THEIR JOB WAS TO SEARCH FOR THE TRUTH THEREBY DIMINISHING THE PEOPLE’S BURDEN OF PROOF, AND DEFENSE COUNSEL INDICATED TO THE JURY DEFENDANT HAD TEN PRIOR CONVICTIONS, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL DID NOT OBJECT TO THE COURT’S FAILURE TO INSTRUCT THE JURY DEFENDANT’S PRIOR CONVICTIONS COULD NOT BE CONSIDERED AS EVIDENCE OF GUILT OF THE OFFENSE ON TRIAL, DEFENSE COUNSEL TOLD THE JURY THEIR JOB WAS TO SEARCH FOR THE TRUTH THEREBY DIMINISHING THE PEOPLE’S BURDEN OF PROOF, AND DEFENSE COUNSEL INDICATED TO THE JURY DEFENDANT HAD TEN PRIOR CONVICTIONS, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE (FOURTH DEPT))/INEFFECTIVE ASSISTANCE OF COUNSEL (CRIMINAL LAW, DEFENSE COUNSEL DID NOT OBJECT TO THE COURT’S FAILURE TO INSTRUCT THE JURY DEFENDANT’S PRIOR CONVICTIONS COULD NOT BE CONSIDERED AS EVIDENCE OF GUILT OF THE OFFENSE ON TRIAL, DEFENSE COUNSEL TOLD THE JURY THEIR JOB WAS TO SEARCH FOR THE TRUTH THEREBY DIMINISHING THE PEOPLE’S BURDEN OF PROOF, AND DEFENSE COUNSEL INDICATED TO THE JURY DEFENDANT HAD TEN PRIOR CONVICTIONS, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE (FOURTH DEPT))

NUMEROUS FAILURES BY THE JUDGE TO FOLLOW THE PROTOCOL FOR BATSON CHALLENGES TO THE PROSECUTION’S ELIMINATION OF JURORS REQUIRED A NEW TRIAL, THE FOURTH DEPT NOTED THAT BATSON CHALLENGES MAY BE BASED UPON COLOR AS OPPOSED TO ETHNICITY, AND THE ETHNICITY OF THE DEFENDANT IS NOT A RELEVANT FACTOR IN A BATSON CHALLENGE (FOURTH DEPT).

The Fourth Department, reversing County Court, determined that the County Court judge did not follow the required steps and procedures for addressing defendant’s Batson challenges to the prosecution’s exercise of peremptory challenges. In one instance the judge indicated the prospective juror was “Carribean,” not “African American.” The Fourth Department noted that a Batson challenge may be based on color alone, as opposed to ethnicity. The County Court judge questioned another Batson challenge to an African-American prospective juror on the ground that the defendant was Caucasion. The Fourth Department pointed out that the race or ethnicity of a defendant is not relevant. Among the many problems cited by the Fourth Department:

When the prosecutor struck prospective juror number 13, defense counsel raised a Batson claim, asserting that the prospective juror had never been involved in the criminal justice system in any way and that she unequivocally stated that she could be fair and impartial. In response, the prosecutor explained that he struck prospective juror number 13 because she was in nursing school and stated on her juror questionnaire that she was going to school because she wanted to help people, which in the prosecutor’s view indicated that she may be sympathetic to defendant.

Instead of determining whether the race-neutral explanation offered by the prosecutor was pretextual, the court engaged defense counsel in an extended colloquy during which the court asked how defendant, as a Caucasian, could assert a Batson claim with respect to an African-American prospective juror. Defense counsel answered, correctly, that a defendant need not be the same race as the stricken prospective juror …. . …

We … conclude that, based on the court’s wholesale failure to comply with the Batson protocol with respect to multiple African-American prospective jurors who were the subject of peremptory challenges by the People, defendant is entitled to a new trial … . People v Pescara, 2018 NY Slip Op 04927, Fourth Dept 6-29-18

​CRIMINAL LAW (JURORS, BATSON CHALLENGE, NUMEROUS FAILURES BY THE JUDGE TO FOLLOW THE PROTOCOL FOR BATSON CHALLENGES TO THE PROSECUTION’S ELIMINATION OF JURORS REQUIRED A NEW TRIAL, THE FOURTH DEPARTMENT NOTED THAT BATSON CHALLENGES MAY BE BASED UPON COLOR AS OPPOSED TO ETHNICITY, AND THE ETHNICITY OF THE DEFENDANT IS NOT A RELEVANT FACTOR IN A BATSON CHALLENGE (FOURTH DEPT))/JURORS (CRIMINAL LAW, BATSON CHALLENGES, NUMEROUS FAILURES BY THE JUDGE TO FOLLOW THE PROTOCOL FOR BATSON CHALLENGES TO THE PROSECUTION’S ELIMINATION OF JURORS REQUIRED A NEW TRIAL, THE FOURTH DEPARTMENT NOTED THAT BATSON CHALLENGES MAY BE BASED UPON COLOR AS OPPOSED TO ETHNICITY, AND THE ETHNICITY OF THE DEFENDANT IS NOT A RELEVANT FACTOR IN A BATSON CHALLENGE (FOURTH DEPT))/BATSON CHALLENGES (CRIMINAL LAW, JURORS,  NUMEROUS FAILURES BY THE JUDGE TO FOLLOW THE PROTOCOL FOR BATSON CHALLENGES TO THE PROSECUTION’S ELIMINATION OF JURORS REQUIRED A NEW TRIAL, THE FOURTH DEPARTMENT NOTED THAT BATSON CHALLENGES MAY BE BASED UPON COLOR AS OPPOSED TO ETHNICITY, AND THE ETHNICITY OF THE DEFENDANT IS NOT A RELEVANT FACTOR IN A BATSON CHALLENGE (FOURTH DEPT))

JUROR MISCONDUCT, INCLUDING COMMUNICATIONS WITH THIRD PARTIES AND WEB BROWSING IN VIOLATION OF THE JUDGE’S ADMONITIONS, WARRANTED A NEW TRIAL IN THIS MURDER CASE (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined that juror misconduct warranted a new trial in this murder case:

We begin by noting that, at the hearing on the CPL 330.30 motion, defendant established that during the trial juror number 12 engaged in text messaging with third parties about the trial. Indeed, after being selected to serve on the jury, juror number 12 received a text message from her father that stated: “Make sure he’s guilty!” During the trial, juror number 12 received a text message from a friend asking if she had seen the “scary person” yet. Juror number 12 responded: “I’ve seen him since day 1.” … * * *

Forensic examination of her cell phone revealed that juror number 12 had selectively deleted scores of messages or parts thereof and that she had deleted her entire web browsing history. At the hearing, juror number 12 was unable to provide any explanation for why she had done that. * * *

We observe that, had this juror’s misconduct been discovered during voir dire or during the trial, rather than after the verdict, the weight of authority under CPL 270.35 would have compelled her discharge on the ground that she was grossly unqualified and/or had engaged in misconduct of a substantial nature … .  Here, due to juror number 12’s flagrant failure to follow the court’s instructions and her concealment of that substantial misconduct, defendant, through no fault of his own, was denied the opportunity to seek her discharge during trial on the ground that she was grossly unqualified and/or had engaged in substantial misconduct. People v Neulander, 2018 NY Slip Op 04925, Fourth Dept 6-29-18

​CRIMINAL LAW (JUROR MISCONDUCT, INCLUDING COMMUNICATIONS WITH THIRD PARTIES AND WEB BROWSING IN VIOLATION OF THE JUDGE’S ADMONITIONS, WARRANTED A NEW TRIAL IN THIS MURDER CASE (FOURTH DEPT))/JURORS (CRIMINAL LAW, (JUROR MISCONDUCT, INCLUDING COMMUNICATIONS WITH THIRD PARTIES AND WEB BROWSING IN VIOLATION OF THE JUDGE’S ADMONITIONS, WARRANTED A NEW TRIAL IN THIS MURDER CASE (FOURTH DEPT))

THE PROPONENT OF A MISSING WITNESS CHARGE MUST FIRST DEMONSTRATE THE TESTIMONY OF THE MISSING WITNESS WOULD NOT MERELY BE CUMULATIVE (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined that the proponent of a missing witness jury instruction must first demonstrate the testimony of the witness would not have been cumulative:

In the [1st] , [2nd], and [3rd] Departments, it is well established that the proponent of such a charge has the ” initial burden of proving,’ ” inter alia, that the missing witness has ” noncumulative’ ” testimony to offer on behalf of the opposing party … . That rule has been explicitly and consistently reiterated by our sister appellate courts … .

We have never held otherwise. * * *

Here, defendant—as the proponent of the missing witness charge—failed to meet his initial burden of proving, prima facie, that the missing witness had noncumulative testimony to offer on the People’s behalf… . Neither defendant nor the dissent claim otherwise; instead, they argue only that defendant had no such initial burden and, as discussed above, we reject that view of the law. Further, although our holding does not rest on this point, we note our disagreement with the dissent that defendant met his initial burden of demonstrating that the uncalled witness would have testified favorably to the People. People v Smith, 2018 NY Slip Op 04863, Fourth Dept 6-29-18

​CRIMINAL LAW (MISSING WITNESS CHARGE, THE PROPONENT OF A MISSING WITNESS CHARGE MUST FIRST DEMONSTRATE THE TESTIMONY OF THE MISSING WITNESS WOULD NOT MERELY BE CUMULATIVE (FOURTH DEPT))/MISSING WITNESS CHARGE (CRIMINAL LAW, THE PROPONENT OF A MISSING WITNESS CHARGE MUST FIRST DEMONSTRATE THE TESTIMONY OF THE MISSING WITNESS WOULD NOT MERELY BE CUMULATIVE (FOURTH DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, THE PROPONENT OF A MISSING WITNESS CHARGE MUST FIRST DEMONSTRATE THE TESTIMONY OF THE MISSING WITNESS WOULD NOT MERELY BE CUMULATIVE (FOURTH DEPT))

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DEFENSE COUNSEL PROVIDED DEFENDANT WITH ERRONEOUS INFORMATION ABOUT THE LENGTH OF HIS SENTENCE SHOULD HE BE CONVICTED AFTER TRIAL AND ERRONEOUSLY TOLD THE DEFENDANT HIS PLEA TO SEX TRAFFICKING WOULD NOT MAKE HIM SUBJECT TO THE SEX OFFENDER REGISTRATION ACT (SORA), DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL. CONVICTION BY GUILTY PLEA REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction by guilty plea, determined defendant did not receive effective assistance of counsel. Defense counsel told the defendant he could receive a 75-year sentence if convicted on the charged offenses, when the most the defendant could receive was 15 to 30 years. Defense counsel also erroneously told the defendant the sex trafficking offense to which he pled guilty would not make him subject to the Sex Offender Registration Act (SORA):

The evidence, including a letter from defense counsel to the prosecutor during plea negotiations and the testimony of defendant and defense counsel at the hearing on defendant’s motion to vacate the judgment, established that defendant and defense counsel perceived a viable defense to the sex trafficking charges and were leaning toward going to trial, but defendant—under the misapprehension that he risked the possibility of an aggregate maximum term of imprisonment that would be the equivalent of a life sentence for him—relied upon defense counsel’s erroneous advice in accepting a plea that addressed his primary concerns by providing the ostensible benefit of greatly reducing his sentencing exposure while also avoiding any SORA implications. We thus conclude on this record that defendant was denied meaningful representation inasmuch as defense counsel’s erroneous advice compromised the fairness of the process as a whole by depriving defendant of the ability to make an intelligent choice between pleading guilty or proceeding to trial … . People v Oliver, 2018 NY Slip Op 04885, Fourth Dept 6-29-18

​CRIMINAL LAW (DEFENSE COUNSEL PROVIDED DEFENDANT WITH ERRONEOUS INFORMATION ABOUT THE LENGTH OF HIS SENTENCE SHOULD HE BE CONVICTED AFTER TRIAL AND ERRONEOUSLY TOLD THE DEFENDANT HIS PLEA TO SEX TRAFFICKING WOULD NOT MAKE HIM SUBJECT TO THE SEX OFFENDER REGISTRATION ACT (SORA), DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL. CONVICTION BY GUILTY PLEA REVERSED (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL PROVIDED DEFENDANT WITH ERRONEOUS INFORMATION ABOUT THE LENGTH OF HIS SENTENCE SHOULD HE BE CONVICTED AFTER TRIAL AND ERRONEOUSLY TOLD THE DEFENDANT HIS PLEA TO SEX TRAFFICKING WOULD NOT MAKE HIM SUBJECT TO THE SEX OFFENDER REGISTRATION ACT (SORA), DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL. CONVICTION BY GUILTY PLEA REVERSED (FOURTH DEPT))/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, DEFENSE COUNSEL PROVIDED DEFENDANT WITH ERRONEOUS INFORMATION ABOUT THE LENGTH OF HIS SENTENCE SHOULD HE BE CONVICTED AFTER TRIAL AND ERRONEOUSLY TOLD THE DEFENDANT HIS PLEA TO SEX TRAFFICKING WOULD NOT MAKE HIM SUBJECT TO THE SEX OFFENDER REGISTRATION ACT (SORA), DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL. CONVICTION BY GUILTY PLEA REVERSED (FOURTH DEPT))

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INSUFFICIENT EVIDENCE DEFENDANT INTENDED TO DESTROY A MOTORCYCLE WHEN SHE STARTED A FIRE IN A GARAGE, CRIMINAL MISCHIEF CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction under a weight of the evidence analysis, determined there was insufficient proof that defendant intended to destroy a motorcycle that was in the garage in which she started a fire. She testified she started the fire because she was angry with her husband and she expected he would put the fire out. The fire was started in an area of the garage which was not near the motorcycle:

We agree with defendant, however, that the verdict finding her guilty of criminal mischief in the third degree is against the weight of the evidence. County Court instructed the jurors that defendant was guilty of that crime if they found that she intentionally “damage[d] property of another person in an amount exceeding $250,” specifically “a Suzuki motorcycle.” The People presented evidence that a motorcycle belonging to defendant’s husband was completely destroyed by the fire that defendant allegedly set, a loss valued at over $4,000. No evidence was offered of the value of any damage caused by defendant prior to the fire, and the only evidence of how and why the fire started came from defendant’s statements to law enforcement, wherein she stated that she did not know why she started the fire, but that she was angry at her husband with whom she had been fighting and thought that he would return to the garage to put out the fire. Moreover, defendant told law enforcement that she started the fire by igniting a fleece blanket in a part of the garage different from where the motorcycle was located. Defendant’s statements are consistent with the testimony of the fire protection inspector regarding the origin of the fire and are not contradicted by any other evidence in the record. Thus, viewing the evidence in light of the elements of the crime of criminal mischief in the third degree as charged to the jury …, we conclude that the jury’s determination that defendant set the fire with the intention of damaging her husband’s motorcycle is against the weight of the evidence … . People v Colbert, 2018 NY Slip Op 04879, Fourth Dept 6-29-18

​CRIMINAL LAW (INSUFFICIENT EVIDENCE DEFENDANT INTENDED TO DESTROY A MOTORCYCLE WHEN SHE STARTED A FIRE IN A GARAGE, CRIMINAL MISCHIEF CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (FOURTH DEPT))/APPEALS  (INSUFFICIENT EVIDENCE DEFENDANT INTENDED TO DESTROY A MOTORCYCLE WHEN SHE STARTED A FIRE IN A GARAGE, CRIMINAL MISCHIEF CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (FOURTH DEPT))/EVIDENCE (INSUFFICIENT EVIDENCE DEFENDANT INTENDED TO DESTROY A MOTORCYCLE WHEN SHE STARTED A FIRE IN A GARAGE, CRIMINAL MISCHIEF CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (FOURTH DEPT))/WEIGHT OF THE EVIDENCE  (INSUFFICIENT EVIDENCE DEFENDANT INTENDED TO DESTROY A MOTORCYCLE WHEN SHE STARTED A FIRE IN A GARAGE, CRIMINAL MISCHIEF CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (FOURTH DEPT))/CRIMINAL MISCHIEF (INSUFFICIENT EVIDENCE DEFENDANT INTENDED TO DESTROY A MOTORCYCLE WHEN SHE STARTED A FIRE IN A GARAGE, CRIMINAL MISCHIEF CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (FOURTH DEPT))/INTENT (CRIMINAL LAW, CRIMINAL MISCHIEF, (INSUFFICIENT EVIDENCE DEFENDANT INTENDED TO DESTROY A MOTORCYCLE WHEN SHE STARTED A FIRE IN A GARAGE, CRIMINAL MISCHIEF CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (FOURTH DEPT))

STRICT REQUIREMENTS FOR NOTIFICATION OF COUNSEL OF THE CONTENTS OF JURY NOTES AND THE CREATION OF A COMPLETE RECORD OF HOW THE NOTES WERE HANDLED REAFFIRMED (CT APP).

The Court of Appeals, in a memorandum decision with an extensive three-judge dissent, determined that the trial judge’s failure to comply with the notice requirements for jury notes pursuant to Criminal Procedure Law 310.30 and O’Rama mandated reversal:

“[M]eaningful notice means notice of the actual specific content of the jurors’ request'” … . Although the record demonstrates that “defense counsel was made aware of the existence of the note, there is no indication that the entire contents of the note were shared with counsel”… . We therefore reject the People’s argument that defense counsel’s awareness of the existence and the “gist” of the note satisfied the court’s meaningful notice obligation, or that preservation was required. “Where the record fails to show that defense counsel was apprised of the specific, substantive contents of the note—as it is in this case—preservation is not required” …  .

Moreover, “[w]here a trial transcript does not show compliance with O’Rama’s procedure as required by law, we cannot assume that the omission was remedied at an off-the-record conference that the transcript does not refer to” (id.). In other words, “[i]n the absence of record proof that the trial court complied with its [meaningful notice obligation] under CPL 310.30, a mode of proceedings error occurred requiring reversal”… . We again decline “to disavow our holding in Walston [23 NY3d 986] . . . that imposes an affirmative obligation on a trial court to create a record of compliance under CPL 310.30 and O’Rama” … . People v Morrison, 2018 NY Slip Op 04777, CtApp 6-28-18

​CRIMINAL LAW (JURY NOTES, STRICT REQUIREMENTS FOR NOTIFICATION OF COUNSEL OF THE CONTENTS OF JURY NOTES AND THE CREATION OF A COMPLETE RECORD OF HOW THE NOTES WERE HANDLED REAFFIRMED (CT APP))/JURY NOTES (CRIMINAL LAW, STRICT REQUIREMENTS FOR NOTIFICATION OF COUNSEL OF THE CONTENTS OF JURY NOTES AND THE CREATION OF A COMPLETE RECORD OF HOW THE NOTES WERE HANDLED REAFFIRMED (CT APP))/O’RAMA (CRIMINAL LAW, JURY NOTES, STRICT REQUIREMENTS FOR NOTIFICATION OF COUNSEL OF THE CONTENTS OF JURY NOTES AND THE CREATION OF A COMPLETE RECORD OF HOW THE NOTES WERE HANDLED REAFFIRMED (CT APP))

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VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over two dissents, reversing the Appellate Division, determined that the street stops and searches of the defendants (Nonni and Parker) were valid under the DeBour criteria. The police had received a report of a robbery at the location, the defendants were the only persons seen when the police arrived, and both ran or walked away when asked to stop. The court noted that justification for street stops presents a mixed question of law and fact which can be reviewed by the Court of Appeals only to the extent of determining whether the lower court rulings have support in the record. The Court of Appeals reversed, however, because the record did not allow review of two jury notes received by the judge but not specifically addressed by the trial judge or counsel:

Here, for both defendants, the police had a founded suspicion of criminal activity to support a common-law right of inquiry. The police received a radio transmission of a burglary in progress, and their encounter with defendants at the reported address occurred a mere five minutes later. The officers first saw defendants exiting private property, the scene of a suspected crime. The officers observed no other persons or cars in the secluded, residential area, and it was early in the morning on a federal holiday. In accordance with De Bour, those circumstances were sufficient to justify the officers asking defendants what they were doing and where they were going, and to continue inquiring when defendants did not respond after the officers identified themselves. Further, the officers’ testimony, credited by the court, that defendant Nonni then “actively fled from the police,” combined with the specific circumstances observed by the officers during their initial encounter with defendants, provides sufficient record support for the court’s determination that there was reasonable suspicion of criminal activity to justify defendant Nonni’s pursuit, forcible stop, and detainment … .  …

According to the arresting officers’ testimony, after defendant Parker saw defendant Nonni run and some police officers give chase, defendant Parker increased his pace, acted in an evasive manner, and crossed the street onto the front lawn of another property. The officer twice characterized Parker’s movements as “running,” albeit at a slow pace. While active avoidance of a confrontation between the police and an acquaintance does not itself give rise to reasonable suspicion, its combination with the specific, highly-suspicious circumstances observed by the police may give rise to heightened suspicion. Thus, record support exists for the court’s conclusion that the officers had reasonable suspicion, and that the pursuit, stop, and detainment of defendant Parker, as well as the subsequent search of his bag, were permissible. * * *

… .[T]he court did not read into the record the contents of the notes at issue here …. Further, there is no hint in the record that the court provided counsel the contents of the notes; rather, an inference may be drawn to the contrary. Tellingly, while the court had read other notes, and had confirmed that counsel had read their contents on the record in the past, there is no such record regarding these two substantive notes. Indeed, the court’s reference with respect to the first note—that it believed counsel had agreed to the readback it would provide in response—made no reference to the other two notes, suggesting that there was no discussion about those notes. Whether the record demonstrates a court has shown counsel prior jury notes as a matter of practice is irrelevant, since there must be specific, record proof that the court did so for each note. People v Parker, 2018 NY Slip Op 04776, CtApp 6-28-18

​CRIMINAL LAW (VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/APPEALS (CRIMINAL LAW, VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/STREET STOPS  (VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/EVIDENCE (CRIMINAL LAW, VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/SUPPRESSION (CRIMINAL LAW, STREET STOPS, VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/DE BOUR (STREET STOPS, VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/EVIDENCE (CRIMINAL LAW, STREET STOPS, VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/JURY NOTES (CRIMINAL LAW, COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/O’RAMA (JURY NOTES, CRIMINAL LAW, COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))

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SEIZURE OF CREDIT CARDS FROM UNDER THE HOOD OF DEFENDANT’S CAR WAS NOT THE RESULT OF AN ILLEGAL SEARCH, POLICE WERE FOLLOWING A PROCEDURE TO SAFEGUARD THE CAR FROM THEFT (FIRST DEPT).

The First Department determined the seizure of credit cards from under the hood of defendant’s car was not the result of an illegal search. The police had validly impounded the car and were following a procedure which required that the car be disabled to thwart theft:

Police entry into the car and under its hood was reasonable because it was done in compliance with the Police Department Patrol Guide’s safeguarding procedure, requiring police to disable all vehicles being safeguarded, in order to prevent theft. The limited entry into the car was done to protect the owner’s property, and was not an attempt to search for incriminating evidence, as shown by the fact that, upon discovering the credit cards in the hood, the police did not search any other part of the vehicle … . The officers’ failure to perform this safeguarding procedure within the 48-hour period allowed by the Patrol Guide, after which a vehicle is to be moved from the precinct to the Property Clerk’s storage facility, was a minor deviation from procedure, and did not undermine the reasonableness of the limited search, where the remainder of the procedure was followed and, as noted, there was no indication that the police were using the procedure as a pretext to search for incriminating evidence … . People v Keita, 2018 NY Slip Op 04847, First Dept 6-28-18

​CRIMINAL LAW (SEIZURE OF CREDIT CARDS FROM UNDER THE HOOD OF DEFENDANT’S CAR WAS NOT THE RESULT OF AN ILLEGAL SEARCH, POLICE WERE FOLLOWING A PROCEDURE TO SAFEGUARD THE CAR FROM THEFT (FIRST DEPT))/SEARCH AND SEIZURE (SEIZURE OF CREDIT CARDS FROM UNDER THE HOOD OF DEFENDANT’S CAR WAS NOT THE RESULT OF AN ILLEGAL SEARCH, POLICE WERE FOLLOWING A PROCEDURE TO SAFEGUARD THE CAR FROM THEFT (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, SEARCH AND SEIZURE, SEIZURE OF CREDIT CARDS FROM UNDER THE HOOD OF DEFENDANT’S CAR WAS NOT THE RESULT OF AN ILLEGAL SEARCH, POLICE WERE FOLLOWING A PROCEDURE TO SAFEGUARD THE CAR FROM THEFT (FIRST DEPT))/SUPPRESSION (CRIMINAL LAW, SEARCH AND SEIZURE, SEIZURE OF CREDIT CARDS FROM UNDER THE HOOD OF DEFENDANT’S CAR WAS NOT THE RESULT OF AN ILLEGAL SEARCH, POLICE WERE FOLLOWING A PROCEDURE TO SAFEGUARD THE CAR FROM THEFT (FIRST DEPT)

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DEFENDANT DID NOT HAVE NOTICE OF OR A CHANCE TO OBJECT TO A 20 POINT ASSESSMENT MADE BY THE JUDGE SUA SPONTE, NEW HEARING ORDERED (THIRD DEPT).

The Third Department, ordering a new SORA hearing, determined defendant did not have notice of or an opportunity to object to a 20 point assessment made by the judge sua sponte:

“A defendant has both a statutory and constitutional right to notice of points sought to be assigned to him or her so as to be afforded a meaningful opportunity to respond to that assessment” … . To that end, SORA requires the People to provide defendant with written notice, at least 10 days prior to the hearing, if they intend to seek a presumptive risk level classification that differs from the Board’s recommendation along with their reasons for doing so… . Similarly, “a court’s sua sponte departure from the Board’s recommendation at the hearing, without prior notice, deprives the defendant of a meaningful opportunity to be respond” … . People v Maus, 2018 NY Slip Op 04796, Third Dept 6-28-18

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA), DEFENDANT DID NOT HAVE NOTICE OF OR A CHANCE TO OBJECT TO A 20 POINT ASSESSMENT MADE BY THE JUDGE SUA SPONTE, NEW HEARING ORDERED (THIRD DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (DEFENDANT DID NOT HAVE NOTICE OF OR A CHANCE TO OBJECT TO A 20 POINT ASSESSMENT MADE BY THE JUDGE SUA SPONTE, NEW HEARING ORDERED (THIRD DEPT))

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