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STREET STOP JUSTIFIED, FACTS AND LAW EXPLAINED IN DETAIL (FOURTH DEPT).

The Fourth Department, in finding the street stop of defendant was justified, provided a useful, detailed discussion of the facts and the law (too detailed to summarize here):

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… [W]e agree with the People that the officer had at least the requisite founded suspicion that criminal activity was afoot, and thus that his initial approach of defendant was proper under level two.

When defendant then immediately fled, the officer pursued him, which was a level three intrusion requiring reasonable suspicion that defendant had committed or was committing a crime. “In determining whether a pursuit was justified by reasonable suspicion, the emphasis should not be narrowly focused on . . . any . . . single factor, but [rather should be based] on an evaluation of the totality of circumstances, which takes into account the realities of everyday life unfolding before a trained officer” … . We also note that, although “flight alone is insufficient to justify pursuit, defendant’s flight in response to an approach by the police, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, may give rise to reasonable suspicion, the necessary predicate for police pursuit’ ” … . Here, we agree with the People that the specific information known to the officer, coupled with the officer’s observations of defendant’s actions, furtive behavior, and immediate flight, gave the officer reasonable suspicion to believe that defendant was engaged in criminal activity, thereby justifying the officer’s pursuit, detainment, and search of defendant.  People v Jones, 2017 NY Slip Op 07808, Fourth Dept 11-9-17

 

CRIMINAL LAW (STREET STOP JUSTIFIED, FACTS AND LAW EXPLAINED IN DETAIL (FOURTH DEPT))/STREET STOPS (CRIMINAL LAW, STREET STOP JUSTIFIED, FACTS AND LAW EXPLAINED IN DETAIL (FOURTH DEPT))

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SECTION EIGHT HOUSING SUBSIDIES ARE NOT ADMINISTERED BY THE DEPARTMENT OF SOCIAL SERVICES, THEREFORE A WELFARE FRAUD PROSECUTION CANNOT BE BASED UPON SECTION EIGHT BENEFITS (FOURTH DEPT).

The Fourth Department, reversing defendant’s welfare fraud conviction, determined the statute required that the fraud involve a program administered by the department of social services. Here the fraud involved the federal section eight housing subsidy program, which was not administered by the department of social services:

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… [D]efendant’s interpretation of the statutory definition of public assistance benefits is supported by the legislative history of the statute, which shows that it was enacted primarily to combat Medicaid fraud … , and Medicaid benefits are administered by the department of social services or social services district. In addition, we note that the People’s interpretation of the statute would extend its reach beyond its intended meaning to include any “money, property or services provided directly or indirectly through programs of the federal government,” without qualification … For example, under the People’s interpretation, veteran’s benefits would be “money, property or services” falling within the definition of “[p]ublic assistance benefits” … , but it seems unlikely that the Legislature intended the improper receipt of such benefits to be considered welfare fraud.

We conclude that both [the People’s and defendant’s] interpretations of the statute are plausible. In such situations, the rule of lenity applies and we must adopt the interpretation of the statute that is more favorable to defendant … . The People were therefore required to establish that the Section 8 funds were “administered by the department of social services” … , which they failed to do. People v Davis, 2017 NY Slip Op 07800, Fourth Dept 11-9-17

 

CRIMINAL LAW (SECTION EIGHT HOUSING SUBSIDIES ARE NOT ADMINISTERED BY THE DEPARTMENT OF SOCIAL SERVICES, THEREFORE A WELFARE FRAUD PROSECUTION CANNOT BE BASED UPON SECTION EIGHT BENEFITS (FOURTH DEPT))/WELFARE FRAUD (CRIMINAL LAW, SECTION EIGHT HOUSING SUBSIDIES ARE NOT ADMINISTERED BY THE DEPARTMENT OF SOCIAL SERVICES, THEREFORE A WELFARE FRAUD PROSECUTION CANNOT BE BASED UPON SECTION EIGHT BENEFITS (FOURTH DEPT)))/SECTION EIGHT (CRIMINAL LAW, WELFARE FRAUD, SECTION EIGHT HOUSING SUBSIDIES ARE NOT ADMINISTERED BY THE DEPARTMENT OF SOCIAL SERVICES, THEREFORE A WELFARE FRAUD PROSECUTION CANNOT BE BASED UPON SECTION EIGHT BENEFITS (FOURTH DEPT))

SUPERIOR COURT INFORMATION (SCI) JURISDICTIONALLY DEFECTIVE BECAUSE THE A FELONY COMPLAINT WAS NOT DISMISSED UNTIL AFTER THE PLEA TO THE SCI (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction by waiver of indictment and plea to a superior court information (SCI), noted that defendant was still charged with an A felony at the time of the waiver and plea. The A felony complaint was not dismissed until after the plea:

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In a prior appeal, we reversed the judgment of conviction, determining that the superior court information (SCI) was jurisdictionally defective inasmuch as defendant had been charged with, inter alia, a class A felony and thus could not validly waive indictment or consent to be prosecuted by an SCI … . We thus vacated the plea and waiver of indictment and dismissed the SCI, noting that ” the People may present the case to the [g]rand [j]ury’ ” … .

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On remittal, the People did not present the case to a grand jury but, rather, made a second attempt to proceed by SCI. As the People correctly concede, the SCI is again jurisdictionally defective inasmuch as the felony complaint charging defendant with the class A felony was not dismissed until after the waiver of indictment and plea to the SCI. As a result, defendant was still “charged” with a class A felony when he waived indictment and consented to be prosecuted by an SCI. “Where, as here, a defendant is charged with a class A felony, the defendant cannot validly waive indictment or consent to be prosecuted by a superior court information” … . We therefore vacate defendant’s plea and his waiver of indictment, and we dismiss the SCI, noting again that ” the People may present the case to the [g]rand [j]ury’ ” … . People v Priest, 2017 NY Slip Op 07859, Fourth Dept 11-9-17

 

CRIMINAL LAW (SUPERIOR COURT INFORMATION (SCI) JURISDICTIONALLY DEFECTIVE BECAUSE THE A FELONY COMPLAINT WAS NOT DISMISSED UNTIL AFTER THE PLEA TO THE SCI (FOURTH DEPT))/WAIVER OF INDICTMENT (SUPERIOR COURT INFORMATION (SCI) JURISDICTIONALLY DEFECTIVE BECAUSE THE A FELONY COMPLAINT WAS NOT DISMISSED UNTIL AFTER THE PLEA TO THE SCI (FOURTH DEPT))/SUPERIOR COURT INFORMATION (SCI) (SUPERIOR COURT INFORMATION (SCI) JURISDICTIONALLY DEFECTIVE BECAUSE THE A FELONY COMPLAINT WAS NOT DISMISSED UNTIL AFTER THE PLEA TO THE SCI (FOURTH DEPT))

BECAUSE PROMISE IN PLEA AGREEMENT RE CREDIT FOR JAIL TIME COULD NOT BE FULFILLED, SENTENCE VACATED AND CASE REMITTED FOR A SENTENCE WHICH COMPORTS WITH DEFENDANT’S LEGITIMATE EXPECTATIONS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that defendant was entitled to a sentence which comported with his expectations based upon the plea agreement. The Fourth Department vacated his sentence. It turned out defendant could not be credited with jail time in accordance with the plea agreement:

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The promise with respect to jail time credit … could not be fulfilled. Penal Law § 70.30 (3) provides that “[t]he term of a definite sentence . . . imposed on a person shall be credited with and diminished by the amount of time the person spent in custody prior to the commencement of such sentence as a result of the charge that culminated in the sentence.” Such credit, however, “shall not include any time that is credited against the term . . . of any previously imposed sentence . . . to which the person is subject” … . Thus, “a person is prohibited from receiving jail time credit against a subsequent sentence when such credit has already been applied to time served on a previous sentence’ “… . The correctional facility to which defendant was committed therefore properly determined that defendant was prohibited from receiving jail time credit against his sentence on the conviction of attempted CPCS in the fourth degree for the time that he had served between sentencing on the prior conviction and the subsequent sentencing proceeding … .

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It is well established that ” [a] guilty plea induced by an unfulfilled promise either must be vacated or the promise honored’ ” … . ” The choice rests in the discretion of the sentencing court’ and there is no indicated preference for one course over the other’ ” … . Where, as here, “the originally promised sentence cannot be imposed in strict compliance with the plea agreement, the sentencing court may impose another lawful sentence that comports with the defendant’s legitimate expectations” … . We therefore modify the judgment by vacating the sentence, and we remit the matter to Supreme Court to impose a sentence that comports with defendant’s legitimate expectations of the negotiated plea agreement or to afford defendant an opportunity to withdraw his plea. People v Drake, 2017 NY Slip Op 07844, Fourth Dept 11-9-17

 

CRIMINAL LAW (SENTENCING, BECAUSE PROMISE IN PLEA AGREEMENT RE CREDIT FOR JAIL TIME COULD NOT BE FULFILLED, SENTENCE VACATED AND CASE REMITTED FOR A SENTENCE WHICH COMPORTS WITH DEFENDANT’S LEGITIMATE EXPECTATIONS (FOURTH DEPT))PLEA AGREEMENT (SENTENCING, BECAUSE PROMISE IN PLEA AGREEMENT RE CREDIT FOR JAIL TIME COULD NOT BE FULFILLED, SENTENCE VACATED AND CASE REMITTED FOR A SENTENCE WHICH COMPORTS WITH DEFENDANT’S LEGITIMATE EXPECTATIONS (FOURTH DEPT))/SENTENCING (CRIMINAL LAW, PLEA AGREEMENT, BECAUSE PROMISE IN PLEA AGREEMENT RE CREDIT FOR JAIL TIME COULD NOT BE FULFILLED, SENTENCE VACATED AND CASE REMITTED FOR A SENTENCE WHICH COMPORTS WITH DEFENDANT’S LEGITIMATE EXPECTATIONS (FOURTH DEPT))

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UNEXPECTED ABSENCE OF A PROSECUTION WITNESS AFTER ARRESTING OFFICERS TESTIFIED ABOUT THE WITNESS’S INVOLVEMENT IN DEFENDANT’S ARREST DEPRIVED DEFENDANT OF HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined, in the interest of justice (error not preserved), the defendant was deprived of his right to confront a witness against him. A witness to the stabbing, Torres, could not be located and did not testify at the trial. Before it was clear Torres would not testify, two officers had already testified to facts that made it obvious Torres had identified the defendant as the perpetrator:

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The record reveals … that the trial court understood full well the risk that the jurors, based on the detailed testimony of the arresting officers, might conclude that Torres—now a nontestifying witness—had identified the defendant as one of the perpetrators. Before summations, the court expressly warned both sides: “if I find that either of you are making any representation to this jury that Mr. Jose Torres made an identification of the defendant you will regret it.” Later, the court again warned the prosecutor in the following terms: “[S]ince Jose Torres did not testify, there is no way you are going to argue to this jury or infer to this jury in any way, shape or form that Jose Torres made an identification. Because that’s clearly the only import of your subsequent questioning about what did you do afterwards? Of course, the defendant got arrested. So it doesn’t take a rocket scientist to understand Jose Torres obviously identified something in this case.”

Both sides followed the court’s instructions during summations. However, during the jury’s deliberations, the jurors specifically requested a readback of [a police officer’s] testimony regarding “what Jose Torres told him relating to the perpetrator’s identification and what happened when he identified the defendant.” The requested testimony was read to the jury without any limiting instruction.

Under the unusual circumstances presented, the jury’s note demonstrates that the risk foreshadowed by the trial court had materialized, namely, that the jury had inferred from the arresting officers’ testimony that Torres had identified the defendant as one of Rivera’s attackers. Although neither side can be faulted for the introduction of the arresting officers’ testimony at a time when everyone believed in good faith that Torres would testify, once it became clear that Torres would not be produced as a witness, the arresting officers’ testimonial hearsay regarding the information conveyed to them by Torres violated the defendant’s constitutional right to confront the witnesses against him … . People v Tavarez, 2017 NY Slip Op 07756, Second Dept 11-8-17

 

CRIMINAL LAW (UNEXPECTED ABSENCE OF A PROSECUTION WITNESS AFTER ARRESTING OFFICERS TESTIFIED ABOUT THE WITNESS’S INVOLVEMENT IN DEFENDANT’S ARREST DEPRIVED DEFENDANT OF HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/EVIDENCE (CRIMINAL LAW,  (UNEXPECTED ABSENCE OF A PROSECUTION WITNESS AFTER ARRESTING OFFICERS TESTIFIED ABOUT THE WITNESS’S INVOLVEMENT IN DEFENDANT’S ARREST DEPRIVED DEFENDANT OF HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/CONSTITUTIONAL LAW (CRIMINAL LAW, CONFRONTATION, UNEXPECTED ABSENCE OF A PROSECUTION WITNESS AFTER ARRESTING OFFICERS TESTIFIED ABOUT THE WITNESS’S INVOLVEMENT IN DEFENDANT’S ARREST DEPRIVED DEFENDANT OF HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/APPEALS (CRIMINAL LAW, INTEREST OF JUSTICE, UNEXPECTED ABSENCE OF A PROSECUTION WITNESS AFTER ARRESTING OFFICERS TESTIFIED ABOUT THE WITNESS’S INVOLVEMENT IN DEFENDANT’S ARREST DEPRIVED DEFENDANT OF HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/CONFRONTATION CLAUSE (CRIMINAL LAW, UNEXPECTED ABSENCE OF A PROSECUTION WITNESS AFTER ARRESTING OFFICERS TESTIFIED ABOUT THE WITNESS’S INVOLVEMENT IN DEFENDANT’S ARREST DEPRIVED DEFENDANT OF HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT)

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DUCT TAPE USED TO SILENCE AND RESTRAIN THE VICTIM WAS A DANGEROUS INSTRUMENT WITHIN THE MEANING OF THE ROBBERY FIRST STATUTE, KIDNAPPING BASED UPON THE RESTRAINT OF THE VICTIM DID NOT MERGE WITH ROBBERY, DISSENT DISAGREED (SECOND DEPT).

The Second Department affirmed, over a dissent, defendant’s robbery and kidnapping convictions. The robbery first degree conviction was premised upon the use of duct tape over the victim’s mouth and around the victim’s wrists as constituting a dangerous instrument capable of inflicting serious injury. The kidnapping conviction was premised upon the restraint of the victim with duct tape. The dissent argued the tape was not a dangerous instrument and, under the facts, kidnapping merged with the robbery:

Here … the duct tape used by the defendant constituted a dangerous instrument. “Any instrument, article or substance, no matter how innocuous it may appear to be when used for its legitimate purpose, becomes a dangerous instrument when it is used in a manner which renders it readily capable of causing serious physical injury. The object itself need not be inherently dangerous. It is the temporary use rather than the inherent vice of the object which brings it within the purview of the statute” … . …

… [T]he convictions of kidnapping in the second degree and unlawful imprisonment in the first degree did not merge with the robbery convictions. The defendant’s act of locking the complainant inside the storage unit was a crime in itself committed after the robbery had been completed that did not merge therewith … . People v Williams, 2017 NY Slip Op 07758, Second Dept 11-8-17

CRIMINAL LAW (DUCT TAPE USED TO SILENCE AND RESTRAIN THE VICTIM WAS A DANGEROUS INSTRUMENT WITHIN THE MEANING OF THE ROBBERY FIRST STATUTE, KIDNAPPING BASED UPON THE RESTRAINT OF THE VICTIM DID NOT MERGE WITH ROBBERY, DISSENT DISAGREED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, DUCT TAPE USED TO SILENCE AND RESTRAIN THE VICTIM WAS A DANGEROUS INSTRUMENT WITHIN THE MEANING OF THE ROBBERY FIRST STATUTE, KIDNAPPING BASED UPON THE RESTRAINT OF THE VICTIM DID NOT MERGE WITH ROBBERY, DISSENT DISAGREED (SECOND DEPT))/ROBBERY (DUCT TAPE USED TO SILENCE AND RESTRAIN THE VICTIM WAS A DANGEROUS INSTRUMENT WITHIN THE MEANING OF THE ROBBERY FIRST STATUTE, KIDNAPPING BASED UPON THE RESTRAINT OF THE VICTIM DID NOT MERGE WITH ROBBERY, DISSENT DISAGREED (SECOND DEPT))’KIDNAPPING  (DUCT TAPE USED TO SILENCE AND RESTRAIN THE VICTIM WAS A DANGEROUS INSTRUMENT WITHIN THE MEANING OF THE ROBBERY FIRST STATUTE, KIDNAPPING BASED UPON THE RESTRAINT OF THE VICTIM DID NOT MERGE WITH ROBBERY, DISSENT DISAGREED (SECOND DEPT))/MERGER (CRIMINAL LAW, DUCT TAPE USED TO SILENCE AND RESTRAIN THE VICTIM WAS A DANGEROUS INSTRUMENT WITHIN THE MEANING OF THE ROBBERY FIRST STATUTE, KIDNAPPING BASED UPON THE RESTRAINT OF THE VICTIM DID NOT MERGE WITH ROBBERY, DISSENT DISAGREED (SECOND DEPT))/DUCT TAPE (CRIMINAL LAW, DANGEROUS INSTRUMENT, DUCT TAPE USED TO SILENCE AND RESTRAIN THE VICTIM WAS A DANGEROUS INSTRUMENT WITHIN THE MEANING OF THE ROBBERY FIRST STATUTE, KIDNAPPING BASED UPON THE RESTRAINT OF THE VICTIM DID NOT MERGE WITH ROBBERY, DISSENT DISAGREED (SECOND DEPT))

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FAILURE TO REQUEST A JURY CHARGE ON THE INTOXICATION DEFENSE MAY HAVE BEEN A STRATEGIC DECISION WHICH THE APPELLATE COURT WILL NOT SECOND GUESS IN HINDSIGHT (SECOND DEPT).

The Second Department determined defense counsel was not ineffective for failing to request a jury instruction on the intoxication defense in this murder and manslaughter case (two victims). Defense counsel had requested jury charges on the justification defense and lesser included offenses. It is possible defense counsel made a strategic decision against requesting the intoxication defense instruction:

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Assuming, without deciding, that the evidence at trial was sufficient to warrant an intoxication charge … , defense counsel was not ineffective for failing to request that charge in this case … . Defense counsel prudently pursued a justification defense, which would have been a total defense to the top count of murder in the second degree. Moreover, defense counsel successfully requested the lesser-included offenses of manslaughter in the first degree and manslaughter in the second degree, and the latter count was submitted over the People’s objection. Defense counsel could have strategically determined that requesting an intoxication charge would have undermined, or distracted from, the justification defense in this particular case. Although reasonable legal minds may differ on the better strategy with respect to a charge of intoxication, we cannot second-guess defense counsel’s decision with the benefit of hindsight. Accordingly, the defendant has not demonstrated the absence of strategic or other legitimate explanations for defense counsel’s failure to request an intoxication charge … . People v Pagan, 2017 NY Slip Op 07753, Second Dept 11-8-17

 

CRIMINAL LAW (FAILURE TO REQUEST A JURY CHARGE ON THE INTOXICATION DEFENSE MAY HAVE BEEN A STRATEGIC DECISION WHICH THE APPELLATE COURT WILL NOT SECOND GUESS IN HINDSIGHT (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, AILURE TO REQUEST A JURY CHARGE ON THE INTOXICATION DEFENSE MAY HAVE BEEN A STRATEGIC DECISION WHICH THE APPELLATE COURT WILL NOT SECOND GUESS IN HINDSIGHT (SECOND DEPT))/INEFFECTIVE ASSISTANCE (FAILURE TO REQUEST A JURY CHARGE ON THE INTOXICATION DEFENSE MAY HAVE BEEN A STRATEGIC DECISION WHICH THE APPELLATE COURT WILL NOT SECOND GUESS IN HINDSIGHT (SECOND DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, FAILURE TO REQUEST A JURY CHARGE ON THE INTOXICATION DEFENSE MAY HAVE BEEN A STRATEGIC DECISION WHICH THE APPELLATE COURT WILL NOT SECOND GUESS IN HINDSIGHT (SECOND DEPT))

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ARREST WAS NOT AUTHORIZED, CONVICTION FOR RESISTING ARREST REVERSED IN THE INTEREST OF JUSTICE (ERROR NOT PRESERVED) (SECOND DEPT).

The Second Department, reversing defendant’s conviction for resisting arrest in the interest of justice (error not preserved), determined the arrest was not authorized. The complainant told the police a man in a white BMW had pointed a gun at him. When the complainant saw the defendant and another man standing near a white BMW he said “that’s them.” Because the officers did not know which of the two men pointed the gun at the complainant, they did not have probable cause to arrest the defendant at the time he fled:

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A person is guilty of resisting arrest when he or she intentionally prevents or attempts to prevent a police officer from effectuating an authorized arrest of himself or herself or another person … . “A key element of resisting arrest is the existence of an authorized arrest, including a finding that the arrest was premised on probable cause” … . Although the defendant’s contention that the prosecution failed to present legally sufficient evidence of an authorized arrest is unpreserved for appellate review … , we reach it in the exercise of our interest of justice jurisdiction … . Viewing the evidence in the light most favorable to the People … , we agree with the defendant that the evidence was not legally sufficient to establish the element of authorized arrest because, as a matter of law, the evidence failed to establish that the police had probable cause to arrest the defendant. Generally, information provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest … . However, at the time that the complainant pointed to the defendant and [another] and stated “that’s them,” the police officers had only been informed that one individual pointed a firearm at the complainant. Therefore, under the circumstances presented here, the officers could not have concluded that it was more probable than not that the defendant … had been driving the white BMW and pointed a firearm at the complainant. Accordingly, the evidence was legally insufficient to establish the defendant’s guilt of the crime of resisting arrest. People v Andrews, 2017 NY Slip Op 07747, Second Dept 11-8-17

 

CRIMINAL LAW (ARREST WAS NOT AUTHORIZED, CONVICTION FOR RESISTING ARREST REVERSED IN THE INTEREST OF JUSTICE (ERROR NOT PRESERVED) (SECOND DEPT))/APPEALS  (CRIMINAL LAW, INTEREST OF JUSTICE, ARREST WAS NOT AUTHORIZED, CONVICTION FOR RESISTING ARREST REVERSED IN THE INTEREST OF JUSTICE (ERROR NOT PRESERVED) (SECOND DEPT))/RESISTING ARREST (ARREST WAS NOT AUTHORIZED, CONVICTION FOR RESISTING ARREST REVERSED IN THE INTEREST OF JUSTICE (ERROR NOT PRESERVED) (SECOND DEPT))/ARREST (PROBABLE CAUSE, ARREST WAS NOT AUTHORIZED, CONVICTION FOR RESISTING ARREST REVERSED IN THE INTEREST OF JUSTICE (ERROR NOT PRESERVED) (SECOND DEPT))

ASKING DEFENDANT DURING A TRAFFIC STOP WHETHER HE HAD ANYTHING ILLEGAL IN THE CAR WAS NOT JUSTIFIED BY A FOUNDED SUSPICION, ALL PHYSICAL EVIDENCE TAKEN FROM THE CAR AND SUBSEQUENT STATEMENTS AT THE POLICE STATION SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, over a dissent, determined the motion to suppress physical evidence (stolen property and a handgun) and subsequent statements made at the police station should have been granted. All charges except the traffic violations which led to the vehicle stop were dismissed. The arresting officer observed the defendant make an illegal turn and run a red light. Shortly after the vehicle stop, before the officers had any reason to suspect defendant’s involvement in a recent robbery, the arresting officer asked defendant whether he had anything illegal in the car. The Second Department held that question was not justified by a suspicion of criminal activity:

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The evidence established that the officer did not have a “founded suspicion that criminality [was] afoot” that would justify his question as to whether the defendant had anything illegal in the vehicle … . Although the stop was justified by the traffic violations, the intrusiveness of the officer’s conduct exceeded that which is permissible during a normal traffic stop … . …

 “[A] request for information involves basic, nonthreatening questions regarding, for instance, identity, address or destination. . . . Once [an] officer asks more pointed questions . . . the officer is no longer merely seeking information . . . [and the inquiry] must be supported by a founded suspicion that criminality is afoot”… .

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Thus, the … handbag, the cell phone, and the camera should have been suppressed as fruit of an illegal search, as well as the gun that was subsequently found upon an inventory of the vehicle … .

…[T]he suppression record did not demonstrate that the causal connection between the illegal search and the defendant’s statements was sufficiently attenuated to purge the taint of the illegal search… . People v Newson, 2017 NY Slip Op 07752, Second Dept, 11-8-17

 

CRIMINAL LAW (ASKING DEFENDANT DURING A TRAFFIC STOP WHETHER HE HAD ANYTHING ILLEGAL IN THE CAR WAS NOT JUSTIFIED BY A FOUNDED SUSPICION, ALL PHYSICAL EVIDENCE TAKEN FROM THE CAR AND SUBSEQUENT STATEMENTS AT THE POLICE STATION SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/STREET STOPS (ASKING DEFENDANT DURING A TRAFFIC STOP WHETHER HE HAD ANYTHING ILLEGAL IN THE CAR WAS NOT JUSTIFIED BY A FOUNDED SUSPICION, ALL PHYSICAL EVIDENCE TAKEN FROM THE CAR AND SUBSEQUENT STATEMENTS AT THE POLICE STATION SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/TRAFFIC STOPS (ASKING DEFENDANT DURING A TRAFFIC STOP WHETHER HE HAD ANYTHING ILLEGAL IN THE CAR WAS NOT JUSTIFIED BY A FOUNDED SUSPICION, ALL PHYSICAL EVIDENCE TAKEN FROM THE CAR AND SUBSEQUENT STATEMENTS AT THE POLICE STATION SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/SUPPRESSION (CRIMINAL LAW, TRAFFIC STOPS, ASKING DEFENDANT DURING A TRAFFIC STOP WHETHER HE HAD ANYTHING ILLEGAL IN THE CAR WAS NOT JUSTIFIED BY A FOUNDED SUSPICION, ALL PHYSICAL EVIDENCE TAKEN FROM THE CAR AND SUBSEQUENT STATEMENTS AT THE POLICE STATION SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/SEARCH AND SEIZURE (SUPPRESSION, TRAFFIC STOPS, ASKING DEFENDANT DURING A TRAFFIC STOP WHETHER HE HAD ANYTHING ILLEGAL IN THE CAR WAS NOT JUSTIFIED BY A FOUNDED SUSPICION, ALL PHYSICAL EVIDENCE TAKEN FROM THE CAR AND SUBSEQUENT STATEMENTS AT THE POLICE STATION SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/STATEMENTS (CRIMINAL LAW, SUPPRESSION, ASKING DEFENDANT DURING A TRAFFIC STOP WHETHER HE HAD ANYTHING ILLEGAL IN THE CAR WAS NOT JUSTIFIED BY A FOUNDED SUSPICION, ALL PHYSICAL EVIDENCE TAKEN FROM THE CAR AND SUBSEQUENT STATEMENTS AT THE POLICE STATION SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))

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BECAUSE INCARCERATION IMPOSED AS PART OF A FAMILY COURT NEGLECT/PROTECTIVE-ORDER-VIOLATION DISPOSITION WAS REMEDIAL, NOT PUNITIVE, CRIMINAL PROSECUTION FOR CONTEMPT STEMMING FROM THE VIOLATIONS OF THE PROTECTIVE ORDER NOT PRECLUDED BY THE DOUBLE JEOPARDY RULE (THIRD DEPT).

The Third Department determined criminal contempt charges were not precluded by the double jeopardy rule. As part of a neglect proceeding defendant admitted violating orders of protection. Although a 60-day period of incarceration was part of the disposition, it was repeatedly delayed as the court monitored defendant’s compliance (and was never imposed). Because the incarceration was deemed to induce compliance with Family Court’s orders, it was remedial, not punitive in nature. Therefore a subsequent prosecution for criminal contempt, arising from the violations of the orders of protection, did not violate the double jeopardy prohibition:

 

The double jeopardy protections of the US and NY Constitutions “shield a defendant from multiple criminal punishments arising from the same offense” … . Whether double jeopardy bars a criminal prosecution subsequent to a finding of contempt or similar violation of a court order depends not on the labels used to describe the previously imposed sentence, but on “the character and purpose” of that sentence … . In a contempt matter, the sentence imposed for violation of a court order is remedial if it was intended “to coerce compliance” with a court order … . By contrast, when “a contemnor is sentenced to imprisonment for a definite period which cannot be affected — that is, ended — by the contemnor’s compliance with the law [or a court order], then the contempt is not remedial but punitive” … . Double jeopardy precludes “a subsequent prosecution where a prior contempt sentence serves a punitive rather than remedial purpose” … . However, if the imposed sentence was remedial, double jeopardy does not apply … . People v Lamica, 2017 NY Slip Op 07646, Third Dept 11-2-17

 

FAMILY LAW (ORDERS OF PROTECTION, BECAUSE INCARCERATION IMPOSED AS PART OF A FAMILY COURT NEGLECT/PROTECTIVE-ORDER-VIOLATION DISPOSITION WAS REMEDIAL, NOT PUNITIVE, CRIMINAL PROSECUTION FOR CONTEMPT STEMMING FROM THE VIOLATIONS OF THE PROTECTIVE ORDER NOT PRECLUDED BY THE DOUBLE JEOPARDY RULE (THIRD DEPT))/CRIMINAL LAW (FAMILY LAW, ORDERS OF PROTECTION, CONTEMPT, DOUBLE JEOPARDY, ORDERS OF PROTECTION, BECAUSE INCARCERATION IMPOSED AS PART OF A FAMILY COURT NEGLECT/PROTECTIVE-ORDER-VIOLATION DISPOSITION WAS REMEDIAL, NOT PUNITIVE, CRIMINAL PROSECUTION FOR CONTEMPT STEMMING FROM THE VIOLATIONS OF THE PROTECTIVE ORDER NOT PRECLUDED BY THE DOUBLE JEOPARDY RULE (THIRD DEPT))/CONTEMPT (FAMILY LAW, ORDERS OF PROTECTION, CONTEMPT, DOUBLE JEOPARDY, ORDERS OF PROTECTION, BECAUSE INCARCERATION IMPOSED AS PART OF A FAMILY COURT NEGLECT/PROTECTIVE-ORDER-VIOLATION DISPOSITION WAS REMEDIAL, NOT PUNITIVE, CRIMINAL PROSECUTION FOR CONTEMPT STEMMING FROM THE VIOLATIONS OF THE PROTECTIVE ORDER NOT PRECLUDED BY THE DOUBLE JEOPARDY RULE (THIRD DEPT))/DOUBLE JEOPARDY (FAMILY LAW, ORDERS OF PROTECTION, CRIMINAL CONTEMPT, ORDERS OF PROTECTION, BECAUSE INCARCERATION IMPOSED AS PART OF A FAMILY COURT NEGLECT/PROTECTIVE-ORDER-VIOLATION DISPOSITION WAS REMEDIAL, NOT PUNITIVE, CRIMINAL PROSECUTION FOR CONTEMPT STEMMING FROM THE VIOLATIONS OF THE PROTECTIVE ORDER NOT PRECLUDED BY THE DOUBLE JEOPARDY RULE (THIRD DEPT))

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