You are here: / Criminal Law
,

ADMISSION AND ALLOCUTION DID NOT MEET THE REQUIREMENTS OF THE FAMILY COURT ACT, JUVENILE DELINQUENCY PETITION DISMISSED (THIRD DEPT).

The Third Department, dismissing the juvenile delinquency petition, determined the juvenile’s admission to endangering the welfare of a child did not meet the criteria required by the Family Court Act:

​

Family Court “shall not consent to the entry of an admission unless it advises the respondent of his or her right to a fact-finding hearing and, further, ascertains through allocution of the respondent and his or her parent that the respondent committed the acts underlying the admission, is voluntarily waiving a fact-finding hearing and is aware of the possible specific dispositional orders” … . Even though Family Court partially complied with Family Ct Act § 321.3, we agree with respondent that the allocution was insufficient overall … .

At the hearing, Family Court merely asked respondent whether he “engaged in conduct that was likely to pose a risk of injury to a child.” Although Family Court specified the date and the location of the alleged crime, the court did not mention any other specific underlying fact forming the basis of the alleged crime… .. As such, Family Court did not “elicit a sufficient factual basis to support respondent’s admission” … . Furthermore, while Family Court advised respondent of his right to a hearing and his right to remain silent, the record does not indicate that respondent was advised of his right to present witnesses on his behalf, his right to confront witnesses and that the presentment agency had to prove beyond a reasonable doubt that he committed the alleged act, which if committed by an adult, would constitute a crime … . Nor do we find that merely asking respondent’s mother as to whether respondent’s admission to the charge of endangering the welfare of the child was done with her approval constituted a sufficient allocution of respondent’s parent as required by Family Ct § 321.3 (1) … . Matter of Kameron Vv., 2017 NY Slip Op 09215, Third Dept 12-28-17

FAMILY LAW (JUVENILE DELINQUENCY, ADMISSION AND ALLOCUTION DID NOT MEET THE REQUIREMENTS OF THE FAMILY COURT ACT, JUVENILE DELINQUENCY PETITION DISMISSED (THIRD DEPT))/JUVENILE DELINQUENCY (FAMILY LAW, ADMISSION AND ALLOCUTION DID NOT MEET THE REQUIREMENTS OF THE FAMILY COURT ACT, JUVENILE DELINQUENCY PETITION DISMISSED (THIRD DEPT))/CRIMINAL LAW (JUVENILE DELINQUENCY, FAMILY LAW, ADMISSION AND ALLOCUTION DID NOT MEET THE REQUIREMENTS OF THE FAMILY COURT ACT, JUVENILE DELINQUENCY PETITION DISMISSED (THIRD DEPT))/ADMISSION (JUVENILE DELINQUENCY, FAMILY LAW, ADMISSION AND ALLOCUTION DID NOT MEET THE REQUIREMENTS OF THE FAMILY COURT ACT, JUVENILE DELINQUENCY PETITION DISMISSED (THIRD DEPT))/ALLOCUTION (JUVENILE DELINQUENCY, FAMILY LAW,  ADMISSION AND ALLOCUTION DID NOT MEET THE REQUIREMENTS OF THE FAMILY COURT ACT, JUVENILE DELINQUENCY PETITION DISMISSED (THIRD DEPT))

,

PRIOR BURGLARY CONVICTION SHOULD NOT HAVE BEEN ALLOWED AS MOLINEUX AND SANDOVAL EVIDENCE IN THIS ROBBERY PROSECUTION, ERROR HARMLESS HOWEVER (THIRD DEPT).

The Third Department determined a prior burglary should not have been allowed as Molineux and Sandoval evidence in this robbery prosecution. The error was deemed harmless however:

​

“The Molineux rule requires that evidence of a defendant’s prior bad acts or crimes be excluded unless it is probative of a material issue other than criminal propensity and its probative value outweighs the risk of prejudice to the defendant”… . Although defendant’s intent was at issue, given his defense that he was an innocent bystander who had no knowledge that the codefendants planned to rob [the victim] when he drove them to her residence, the prior conviction was of limited probative value with respect to defendant’s intent because the prior conviction arose from an incident that was not similar to the charged conduct. The prior burglary did not involve a robbery, but, rather, arose from an incident during which defendant entered the residence of another with the intent to assault an occupant. Moreover, [a co-defendant’s] testimony, if believed, was sufficient to permit the jury to find that defendant had the requisite intent to the commit burglary and robbery. Accordingly, the evidence that defendant had committed a prior burglary would serve only to demonstrate that defendant had a propensity to commit burglary and, therefore, the court should have determined that the prior conviction was inadmissible as proof of defendant’s intent … .

County Court also erred in its Sandoval ruling. Although the crime was not too remote to be relevant and the nature of the conviction was probative of defendant’s credibility, allowing the prior crime to be identified as burglary improperly suggested that defendant had a propensity to commit one of the crimes with which he was charged … . People v Williams, 2017 NY Slip Op 09196, Third Dept 12-28-17

CRIMINAL LAW (EVIDENCE, PRIOR BURGLARY CONVICTION SHOULD NOT HAVE BEEN ALLOWED AS MOLINEUX AND SANDOVAL EVIDENCE IN THIS ROBBERY PROSECUTION, ERROR HARMLESS HOWEVER (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, RIOR BURGLARY CONVICTION SHOULD NOT HAVE BEEN ALLOWED AS MOLINEUX AND SANDOVAL EVIDENCE IN THIS ROBBERY PROSECUTION, ERROR HARMLESS HOWEVER (THIRD DEPT))/MOLINEUX EVIDENCE (CRIMINAL LAW, PRIOR BURGLARY CONVICTION SHOULD NOT HAVE BEEN ALLOWED AS MOLINEUX AND SANDOVAL EVIDENCE IN THIS ROBBERY PROSECUTION, ERROR HARMLESS HOWEVER (THIRD DEPT))/SANDOVAL EVIDENCE (CRIMINAL LAW, PRIOR BURGLARY CONVICTION SHOULD NOT HAVE BEEN ALLOWED AS MOLINEUX AND SANDOVAL EVIDENCE IN THIS ROBBERY PROSECUTION, ERROR HARMLESS HOWEVER (THIRD DEPT))

, ,

DEFENDANT’S PRO SE MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING BASED UPON THE ABSENCE OF AN ATTORNEY AFFIDAVIT, DEFENDANT ALLEGED HIS ATTORNEY DID NOT ACCURATELY INFORM HIM OF THE DEPORTATION CONSEQUENCES OF THE GUILTY PLEA AND THE FACTS CORROBORATED THE ALLEGATION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, determined defendant’s motion to vacate his conviction (by guilty plea) should not have been denied without a hearing. The pro se papers were deemed sufficient to raise the issues of ineffective assistance (failure to accurately inform defendant of the deportation consequences of the plea) and prejudice should defendant be deported after he had successfully sought asylum. The court found that the absence of an attorney affidavit from the motion to vacate papers was explained and should have been excused. Although defendant pled to endangering the welfare of a child, his attorney allowed an allocution on the elements of sexual abuse in the first degree:

​

Here, the absence of an affidavit by defendant’s counsel does not support the summary denial of defendant’s motion for three reasons.

First, defendant’s allegations are corroborated by other parts of the record … . They are corroborated by defendant’s application to naturalize, postplea, which exposed him to detection by Immigration and Customs Enforcement (ICE), since he certainly would not have made the application if he had known that he was in any danger of deportation. In addition, counsel’s failure to object to the court’s unnecessary allocution on the elements of sexual abuse in the first degree … suggests that counsel may not have accurately understood the consequences of the plea.

Second, where, as here, defendant’s application is adverse and hostile to his trial attorney, “[r]equir[ing] the defendant to secure an affidavit, or explain his failure to do so, is wasteful and unnecessary” … .

Third, in any event, defendant explained the absence of an affidavit by his counsel … . People v Mebuin, 2017 NY Slip Op 09276, First Dept 12-28-17

 

CRIMINAL LAW (DEFENDANT’S PRO SE MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING BASED UPON THE ABSENCE OF AN ATTORNEY AFFIDAVIT, DEFENDANT ALLEGED HIS ATTORNEY DID NOT ACCURATELY INFORM HIM OF THE DEPORTATION CONSEQUENCES OF THE GUILTY PLEA AND THE FACTS CORROBORATED THE ALLEGATION (FIRST DEPT))/VACATE CONVICTION, MOTION TO  (DEFENDANT’S PRO SE MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING BASED UPON THE ABSENCE OF AN ATTORNEY AFFIDAVIT, DEFENDANT ALLEGED HIS ATTORNEY DID NOT ACCURATELY INFORM HIM OF THE DEPORTATION CONSEQUENCES OF THE GUILTY PLEA AND THE FACTS CORROBORATED THE ALLEGATION (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENDANT’S PRO SE MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING BASED UPON THE ABSENCE OF AN ATTORNEY AFFIDAVIT, DEFENDANT ALLEGED HIS ATTORNEY DID NOT ACCURATELY INFORM HIM OF THE DEPORTATION CONSEQUENCES OF THE GUILTY PLEA AND THE FACTS CORROBORATED THE ALLEGATION (FIRST DEPT))/INEFFECTIVE ASSISTANCE (DEFENDANT’S PRO SE MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING BASED UPON THE ABSENCE OF AN ATTORNEY AFFIDAVIT, DEFENDANT ALLEGED HIS ATTORNEY DID NOT ACCURATELY INFORM HIM OF THE DEPORTATION CONSEQUENCES OF THE GUILTY PLEA AND THE FACTS CORROBORATED THE ALLEGATION (FIRST DEPT))

, ,

ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE DAMAGES WERE PROPERLY REQUESTED IN THE AD DAMNUM CLAUSE IN THIS DRUNK DRIVING ACCIDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s separate cause of action for punitive damages should have been dismissed. However, the demand for punitive damages in the ad damnum clause was proper. Plaintiff was a passenger in the car driven by defendant, who was drunk and lost control of the car:

​

The plaintiff erroneously denominated her request for punitive damages as a separate cause of action. “New York does not recognize an independent cause of action for punitive damages”… . Accordingly, the Supreme Court erred in denying that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the separately pleaded sixth cause of action insofar as asserted against him.

However, the plaintiff’s request for punitive damages in the ad damnum clause of the complaint was proper. Whereas compensatory damages are intended to assure that the victim receives “fair and just compensation commensurate with the injury sustained,” punitive damages are meant to “punish the tortfeasor and to deter this wrongdoer and others similarly situated from indulging in the same conduct in the future” … . With regard to the availability of punitive damages in personal injury cases involving drunk drivers, while this Court has held that “[e]vidence that a defendant was driving while intoxicated is insufficient by itself to justify the imposition of punitive damages”… , this Court has also held that “driving while intoxicated may support an award for punitive damages where there is additional evidence that the defendant engaged in wanton and reckless’ conduct evincing heedlessness and an utter disregard for the safety of others”… . Indeed, punitive damages were properly imposed where the driver was excessively drunk …  or was a repeat offender… . Accordingly, a request for punitive damages can be stated in a case arising from drinking and driving. Furthermore, at this stage it would be premature to conclude that the allegations in the complaint are insufficient to support a claim that the defendant acted so recklessly or wantonly as to warrant an award of punitive damages … Thus, to the extent the plaintiff sought punitive damages in her ad damnum clause, she stated a request for such damages, and that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss that request for punitive damages insofar as asserted against him was properly denied … . Gershman v Ahmad, 2017 NY Slip Op 09117, Second Dept 12-27-17

 

NEGLIGENCE (TRAFFIC ACCIDENTS, DAMAGES, DRUNK DRIVING, ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE DAMAGES WERE PROPERLY REQUESTED IN THE AD DAMNUM CLAUSE IN THIS DRUNK DRIVING ACCIDENT CASE (SECOND DEPT))/CIVIL PROCEDURE (PUNITIVE DAMAGES, ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE DAMAGES WERE PROPERLY REQUESTED IN THE AD DAMNUM CLAUSE IN THIS DRUNK DRIVING ACCIDENT CASE (SECOND DEPT))/CRIMINAL LAW (DRUNK DRIVING, NEGLIGENCE, PUNITIVE DAMAGES, ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE DAMAGES WERE PROPERLY REQUESTED IN THE AD DAMNUM CLAUSE IN THIS DRUNK DRIVING ACCIDENT CASE (SECOND DEPT))/TRAFFIC ACCIDENTS (NEGLIGENCE, DRUNK DRIVING, PUNITIVE DAMAGES, ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE DAMAGES WERE PROPERLY REQUESTED IN THE AD DAMNUM CLAUSE IN THIS DRUNK DRIVING ACCIDENT CASE (SECOND DEPT))/PUNITIVE DAMAGES (DRUNK DRIVING, ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE DAMAGES WERE PROPERLY REQUESTED IN THE AD DAMNUM CLAUSE IN THIS DRUNK DRIVING ACCIDENT CASE (SECOND DEPT))/DRIVING WHILE INTOXICATED (NEGLIGENCE, PUNITIVE DAMAGES, ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE DAMAGES WERE PROPERLY REQUESTED IN THE AD DAMNUM CLAUSE IN THIS DRUNK DRIVING ACCIDENT CASE (SECOND DEPT))

,

DEFENDANT’S SUBMISSION OF RE-OFFENSE RISK ASSESSMENTS OTHER THAN NEW YORK’S RISK ASSESSMENT INSTRUMENT (RAI) DID NOT CONSTITUTE A MITIGATING FACTOR WARRANTING DOWNWARD DEPARTURE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Eng, determined Supreme Court properly denied defendant’s request for a downward departure in this Sex Offender Registration Act (SORA) risk assessment proceeding. Defendant submitted two psychological risk assessments, the Static-99R and the Vermont Assessment, in support of the request for downward departure:

​

To recognize a low or moderate-low score on the Static-99R and/or the Vermont Assessment as a mitigating factor would, in essence, permit SORA courts to rely on those instruments in lieu of the RAI [New York’s Risk Assessment Instrument} promulgated by the Board [of examiners of sex offenders] and designed to account for the specific factors prescribed by the Legislature. This would amount to a rejection of the RAI in favor of assessment instruments that serve the more limited function of attempting to measure risk of reoffense alone, in clear contravention of the legislative intent to require consideration of both risk of reoffense and the danger of harm posed by reoffense … . …

​

Even were we to accept the proposition that the fact that a sex offender received a more favorable assessment on the Static-99R or Vermont Assessment could constitute an appropriate mitigating factor, we would find that the defendant failed to sustain his burden of proof in support of his request for a downward departure on this basis. …

​

Our conclusion that an offender’s lower risk score on an alternate risk assessment instrument is not itself a mitigating factor that can support a downward departure does not necessarily mean that an offender cannot rely upon one or more of the individual risk factors included on such instruments to demonstrate that he or she is at a lower risk of reoffense or poses less of a danger to the community. While some of the risk factors included on the Static-99R and Vermont Assessment are also taken into account by the RAI, other risk factors are unique to those instruments. Here, however, the defendant has not identified any specific, unique risk factors on the Static-99R or Vermont Assessment that could qualify as a mitigating factor. People v Curry, 2017 NY Slip Op 09184, Second Dept 12-27-17

 

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA), DEFENDANT’S SUBMISSION OF RE-OFFENSE RISK ASSESSMENTS OTHER THAN NEW YORK’S RISK ASSESSMENT INSTRUMENT (RAI) DID NOT CONSTITUTE A MITIGATING FACTOR WARRANTING DOWNWARD DEPARTURE (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) ( DEFENDANT’S SUBMISSION OF RE-OFFENSE RISK ASSESSMENTS OTHER THAN NEW YORK’S RISK ASSESSMENT INSTRUMENT (RAI) DID NOT CONSTITUTE A MITIGATING FACTOR WARRANTING DOWNWARD DEPARTURE (SECOND DEPT))/MITIGATING FACTORS  (SEX OFFENDER REGISTRATION ACT (SORA), DEFENDANT’S SUBMISSION OF RE-OFFENSE RISK ASSESSMENTS OTHER THAN NEW YORK’S RISK ASSESSMENT INSTRUMENT (RAI) DID NOT CONSTITUTE A MITIGATING FACTOR WARRANTING DOWNWARD DEPARTURE (SECOND DEPT))/

,

THE PARAMEDIC DEFENDANT WAS ACCUSED OF ASSAULTING WAS NOT A PEACE OFFICER AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED, THEREBY EFFECTIVELY NEGATING THE JUSTIFICATION DEFENSE (SECOND DEPT).

The Second Department, reversing defendant’s assault conviction, determined the jury should not have been instructed that the paramedic defendant was accused of assaulting was a peace officer (thereby negating the justification defense). The paramedic (Cohn) was a member of the NYC Fire Department, and was not authorized to arrest:

​

Penal Law § 35.27 provides that “[a] person may not use physical force to resist an arrest, whether authorized or unauthorized, which is being effected or attempted by a police officer or peace officer when it would reasonably appear that the latter is a police officer or peace officer.” CPL 2.10 sets forth the “[p]ersons designated as peace officers,” including, as relevant here, “[a]ll officers and members of the uniformed force of the New York city fire department as set forth and subject to the limitations contained in section 487a-15.0 of the administrative code of the city of New York” (CPL 2.10[28]). The relevant section of the New York City Administrative Code provides, with limited exceptions not applicable here, that “[i]n the performance of their duties, all officers and members of the uniformed force [of the FDNY] . . . shall have the powers and perform the duties of peace officers, but their power to make arrests and to serve process in criminal actions shall be restricted to cases arising under laws relating to fires and the extinguishment thereof, and to fire perils” … .

… EMS personnel are not members of the uniformed force of the FDNY … . Accordingly, Paramedic Cohn was not acting as a peace officer within the meaning of CPL 2.10(28) at the time that the defendant allegedly assaulted him, and the Supreme Court erred when it instructed the jury that Penal Law § 35.27 applied with respect to the charge of assault in the second degree related to Paramedic Cohn. Since the court’s charge effectively removed from the jury’s consideration the defendant’s justification defense, under the circumstances, the defendant is entitled to a new trial on count one of the indictment charging her with assault in the second degree relating to Paramedic Cohn … . People v Thomas, 2017 NY Slip Op 09178, Second Dept 12-27-17

 

CRIMINAL LAW (THE PARAMEDIC DEFENDANT WAS ACCUSED OF ASSAULTING WAS NOT A PEACE OFFICER AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED, THEREBY EFFECTIVELY NEGATING THE JUSTIFICATION DEFENSE (SECOND DEPT))/MUNICIPAL LAW (NYC) (CRIMINAL LAW, THE PARAMEDIC DEFENDANT WAS ACCUSED OF ASSAULTING WAS NOT A PEACE OFFICER AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED, THEREBY EFFECTIVELY NEGATING THE JUSTIFICATION DEFENSE (SECOND DEPT))/JUSTIFICATION DEFENSE (CRIMINAL LAW, PEACE OFFICERS, THE PARAMEDIC DEFENDANT WAS ACCUSED OF ASSAULTING WAS NOT A PEACE OFFICER AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED, THEREBY EFFECTIVELY NEGATING THE JUSTIFICATION DEFENSE (SECOND DEPT))/PARAMEDICS (CRIMINAL LAW, PEACE OFFICERS, THE PARAMEDIC DEFENDANT WAS ACCUSED OF ASSAULTING WAS NOT A PEACE OFFICER AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED, THEREBY EFFECTIVELY NEGATING THE JUSTIFICATION DEFENSE (SECOND DEPT))/RESISTING ARREST  (THE PARAMEDIC DEFENDANT WAS ACCUSED OF ASSAULTING WAS NOT A PEACE OFFICER AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED, THEREBY EFFECTIVELY NEGATING THE JUSTIFICATION DEFENSE (SECOND DEPT))

,

POLICE OFFICER DID NOT HAVE REASON TO REACH INSIDE DEFENDANT’S POCKET DURING A FRISK FOR WEAPONS, THE PEOPLE DID NOT DEMONSTRATE THE INVENTORY SEARCH OF A VEHICLE WHICH LACKED A VALID INSPECTION STICKER WAS PROPER (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, determined the police officer did not have the authority to reach inside defendant’s pocket and the People did not demonstrate the defendant’s vehicle was searched pursuant to a valid inventory search. The officer approached the defendant who was sitting in a parked vehicle lacking a valid inspection:

​

With respect to the marihuana seized from defendant’s pocket, we agree with defendant that the police officer lacked any basis upon which to search defendant’s person. The police officer observed defendant sitting inside a parked vehicle lacking a valid inspection. The officer approached the vehicle and, upon seeing a kitchen knife on the floorboard of the vehicle, asked defendant to exit the vehicle. Without any further provocation from defendant, the officer conducted a search of defendant’s person, discovering a small amount of marihuana in defendant’s pocket. That search was unlawful for a variety of reasons.

First, the search cannot be justified as a frisk for officer safety inasmuch as there was no evidence that, after defendant exited the vehicle, the officer “reasonably suspected that defendant was armed and posed a threat to [the officer’s] safety”… . Second, even assuming, arguendo, that the officer was entitled to conduct a protective frisk, we conclude that he was not entitled to search defendant’s pockets. “A protective frisk is an intrusion tailored to discover the presence of concealed weapons, usually consisting of a pat-down of a person’s outer clothing . . . [It] should not be extended beyond its purpose of securing the safety of the officer and preventing an escape’ ” … . Where, as here, there is no evidence that the officer believed that the individual’s pockets contained weapons, the search of those pockets is unlawful … . …

​

We likewise agree with defendant that the court erred in refusing to suppress the physical evidence found inside the uninspected vehicle inasmuch as the People failed to establish that the purported inventory search was valid (… . Even if we were to conclude that the uninspected vehicle could be impounded and subjected to an inventory search, a questionable proposition at best, the People failed to establish the existence of any departmental policy concerning inventory searches or that the officer properly conducted the search in compliance with established and standardized procedures … . People v Solivan, 2017 NY Slip Op 09021, Fourth Dept 12-22-17

 

CRIMINAL LAW (POLICE OFFICER DID NOT HAVE REASON TO REACH INSIDE DEFENDANT’S POCKET DURING A FRISK FOR WEAPONS, THE PEOPLE DID NOT DEMONSTRATE THE INVENTORY SEARCH OF A VEHICLE WHICH LACKED A VALID INSPECTION STICKER WAS PROPER (FOURTH DEPT))/SEARCH AND SEIZURE (POLICE OFFICER DID NOT HAVE REASON TO REACH INSIDE DEFENDANT’S POCKET DURING A FRISK FOR WEAPONS, THE PEOPLE DID NOT DEMONSTRATE THE INVENTORY SEARCH OF A VEHICLE WHICH LACKED A VALID INSPECTION STICKER WAS PROPER (FOURTH DEPT))/INVENTORY SEARCH   (POLICE OFFICER DID NOT HAVE REASON TO REACH INSIDE DEFENDANT’S POCKET DURING A FRISK FOR WEAPONS, THE PEOPLE DID NOT DEMONSTRATE THE INVENTORY SEARCH OF A VEHICLE WHICH LACKED A VALID INSPECTION STICKER WAS PROPER (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, SEARCH AND SEIZURE, POLICE OFFICER DID NOT HAVE REASON TO REACH INSIDE DEFENDANT’S POCKET DURING A FRISK FOR WEAPONS, THE PEOPLE DID NOT DEMONSTRATE THE INVENTORY SEARCH OF A VEHICLE WHICH LACKED A VALID INSPECTION STICKER WAS PROPER (FOURTH DEPT))/STREET STOPS (CRIMINAL LAW, POLICE OFFICER DID NOT HAVE REASON TO REACH INSIDE DEFENDANT’S POCKET DURING A FRISK FOR WEAPONS, THE PEOPLE DID NOT DEMONSTRATE THE INVENTORY SEARCH OF A VEHICLE WHICH LACKED A VALID INSPECTION STICKER WAS PROPER (FOURTH DEPT))

,

ACQUISITION OF CELL PHONE LOCATION DATA, PLACING DEFENDANT NEAR THE MURDER SCENE, DID NOT REQUIRE A WARRANT SUPPORTED BY PROBABLE CAUSE (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Whalen, determined the acquisition of data indicating the location of defendant’s cell phone close in time to the murder did not require a warrant supported by probable cause. The court also found that the reason for the prosecutor’s elimination of a juror, offered in response to defendant’s Batson challenge, was not pretextual. With respect to the cell phone location data, the court wrote:

​

… [W]e conclude that the acquisition of the cell site location information was not a search under the Fourth Amendment to the federal constitution because defendant’s use of the phone constituted a voluntary disclosure of his general location to his service provider, and a person does not have a reasonable expectation of privacy in information voluntarily disclosed to third parties … . In contending otherwise, defendant relies on United States v Jones (565 US 400 [2012]) — particularly Justice Sotomayor’s concurring opinion in that case (565 US at 413-418) — and Riley v California (___ US ___, 134 S Ct 2473 [2014]). In our view, that reliance is misplaced. Jones is distinguishable because it involved direct surveillance of the defendant by the police using a GPS device as opposed to information that the defendant had voluntarily disclosed to a third party …  Notwithstanding Justice Sotomayor’s suggestion that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties” … , we remain bound by the third-party doctrine when interpreting the Fourth Amendment “[u]ntil a majority of justices on the [Supreme] Court instructs us otherwise” … . Riley, in turn, is distinguishable because it involved an inspection of the contents of the defendant’s phone, rather than mere location information … . People v Jiles, 2017 NY Slip Op 08944, Fourth Dept 12-22-17

 

CRIMINAL LAW (ACQUISITION OF CELL PHONE LOCATION DATA, PLACING DEFENDANT NEAR THE MURDER SCENE, DID NOT REQUIRE A WARRANT SUPPORTED BY PROBABLE CAUSE (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, (ACQUISITION OF CELL PHONE LOCATION DATA, PLACING DEFENDANT NEAR THE MURDER SCENE, DID NOT REQUIRE A WARRANT SUPPORTED BY PROBABLE CAUSE (FOURTH DEPT))/CELL PHONE LOCATION DATA (CRIMINAL LAW, ACQUISITION OF CELL PHONE LOCATION DATA, PLACING DEFENDANT NEAR THE MURDER SCENE, DID NOT REQUIRE A WARRANT SUPPORTED BY PROBABLE CAUSE (FOURTH DEPT))/SEARCH AND SEIZURE (CELL PHONE LOCATION DATA, (ACQUISITION OF CELL PHONE LOCATION DATA, PLACING DEFENDANT NEAR THE MURDER SCENE, DID NOT REQUIRE A WARRANT SUPPORTED BY PROBABLE CAUSE (FOURTH DEPT))/SUPPRESSION (CELL PHONE LOCATION DATA, (ACQUISITION OF CELL PHONE LOCATION DATA, PLACING DEFENDANT NEAR THE MURDER SCENE, DID NOT REQUIRE A WARRANT SUPPORTED BY PROBABLE CAUSE (FOURTH DEPT))

, ,

EVIDENCE DEFENDANT CONSTRUCTIVELY POSSESSED DRUGS THAT WERE LOCATED IN HIS SISTER’S (NOT HIS) RESIDENCE SUFFICIENT, SENTENCE REDUCED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department determined the evidence of constructive possession of drugs found in defendant’s sister’s (not defendant’s) residence was sufficient. Defendant’s sentence was deemed too harsh, even for a repeat offender, and was reduced in the interest of justice:

​

” Constructive possession can be established by evidence that the defendant had dominion and control over the [drugs and drug paraphernalia] or the area in which [they were] found’ . . . Exclusive access, however, is not required to sustain a finding of constructive possession’ ” … . Here, the drugs and drug paraphernalia were recovered from various locations inside a residence in which defendant’s sister, her boyfriend and her children resided. It is undisputed that defendant did not reside in that residence. Nevertheless, there was ample evidence that defendant constructively possessed the contraband. * * *

Unlike other constructive possession cases, where the testimony at trial is limited to physical evidence linking a defendant to a location and possession of the drugs must be inferred from the defendant’s ties to the residence … , here there was testimony that defendant on three occasions admitted that the drugs in the house belonged to him, and the sister’s boyfriend testified that the drugs in his residence belonged to defendant. Moreover, the evidence established that defendant had sold cocaine from that residence less than three weeks before the search warrant was executed. People v Tuff, 2017 NY Slip Op 08971, Fourth Dept 12-22-17

 

CRIMINAL LAW (EVIDENCE DEFENDANT CONSTRUCTIVELY POSSESSED DRUGS THAT WERE LOCATED IN HIS SISTER’S (NOT HIS) RESIDENCE SUFFICIENT, SENTENCE REDUCED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, CONSTRUCTIVE POSSESSION, EVIDENCE DEFENDANT CONSTRUCTIVELY POSSESSED DRUGS THAT WERE LOCATED IN HIS SISTER’S (NOT HIS) RESIDENCE SUFFICIENT, SENTENCE REDUCED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/CONSTRUCTIVE POSSESSION  (EVIDENCE DEFENDANT CONSTRUCTIVELY POSSESSED DRUGS THAT WERE LOCATED IN HIS SISTER’S (NOT HIS) RESIDENCE SUFFICIENT, SENTENCE REDUCED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/APPEALS (INTEREST OF JUSTICE, SENTENCE REDUCED IN THE INTEREST OF JUSTICE (FOURTH DEPT))

,

PETITION FOR WRIT OF CORAM NOBIS GRANTED, APPEAL CONSIDERED DE NOVO, TRIAL COURT’S FAILURE TO PUT REASONS FOR RESTRAINING DEFENDANT ON THE RECORD REQUIRED REVERSAL AND A NEW TRIAL (FOURTH DEPT).

The Fourth Department granted the petition for a writ of coram nobis, considered the appeal (which had affirmed the conviction) de novo, and ordered a new trial in this attempted murder, assault case. The reversal was based upon the trial judge’s failure to put on the record the reasons for restraining the defendant in the presence of the jury (an issue not raised in the appeal). The court rejected the People’s argument that the applicable Court of Appeals ruling should not be applied retroactively:

​

… [W]e agree with defendant “that the court erred in failing to make any findings on the record establishing that defendant needed to wear a stun belt during the trial . . . Contrary to the People’s contention, harmless error analysis is not applicable” (… see People v Buchanan, 13 NY3d 1, 4 [2009] … . We therefore reverse the judgment and grant a new trial … .

We reject the People’s further contention that defendant’s conviction became final before the Court of Appeals’s decision in Buchanan and that the decision should not be applied retroactively to allow a collateral attack on the judgment. In granting defendant’s motion for a writ of error coram nobis, we vacated our prior order and are considering the appeal de novo … . This appeal is therefore not a collateral attack on the judgment. In addition, we are not persuaded by the People’s position that Buchanan should be applied prospectively only. Buchanan did not announce ” new’ rules of law that represent sharp departures from precedent or raise concerns about the orderly administration of justice” … . Instead, we apply the “traditional common-law” rule of deciding this appeal in accordance with the law as it now exists… . People v Hall, 2017 NY Slip Op 09074, Fourth Dept 12-22-17

 

CRIMINAL LAW (PETITION FOR WRIT OF CORAM NOBIS GRANTED, APPEAL CONSIDERED DE NOVO, TRIAL COURT’S FAILURE TO PUT REASONS FOR RESTRAINING DEFENDANT ON THE RECORD REQUIRED REVERSAL AND A NEW TRIAL (FOURTH DEPT))/CORAM NOBIS (CRIMINAL LAW, APPEALS, PETITION FOR WRIT OF CORAM NOBIS GRANTED, APPEAL CONSIDERED DE NOVO, TRIAL COURT’S FAILURE TO PUT REASONS FOR RESTRAINING DEFENDANT ON THE RECORD REQUIRED REVERSAL AND A NEW TRIAL (FOURTH DEPT))/APPEALS (CRIMINAL LAW, CORAM NOBIS, FAILURE TO RAISE IMPORTANT ISSUES ON APPEAL, ETITION FOR WRIT OF CORAM NOBIS GRANTED, APPEAL CONSIDERED DE NOVO, TRIAL COURT’S FAILURE TO PUT REASONS FOR RESTRAINING DEFENDANT ON THE RECORD REQUIRED REVERSAL AND A NEW TRIAL (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, CORAM NOBIS, FAILURE TO RAISE IMPORTANT ISSUES ON APPEAL, ETITION FOR WRIT OF CORAM NOBIS GRANTED, APPEAL CONSIDERED DE NOVO, TRIAL COURT’S FAILURE TO PUT REASONS FOR RESTRAINING DEFENDANT ON THE RECORD REQUIRED REVERSAL AND A NEW TRIAL (FOURTH DEPT))

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy