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THE JURY’S FINDING THAT DEFENDANT’S ACTIONS IN THIS MANSLAUGHTER CASE WERE NOT JUSTIFIED WAS AGAINST THE WEIGHT OF THE EVIDENCE, CONVICTION REVERSED AND INDICTMENT DISMISSED 4TH DEPT.

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, over a two-justice dissent, determined the conviction was against the weight of the evidence. Defendant raised the justification defense in this manslaughter case. Once the defense was raised, the People were required to prove, beyond a reasonable doubt, the defendant’s act was not justified. The Fourth Department held that the jury’s finding the defendant’s act was not justified was against the weight of the evidence:

… [T]he People were required to prove either that defendant lacked a subjective belief that her use of deadly physical force was necessary to protect herself against decedent’s use or imminent use of deadly physical force, or that “a reasonable person in the same situation would not have perceived that deadly force was necessary”… . Although the jury found that the People met that burden, we conclude, upon our independent assessment of the proof… , that the jury “failed to give the evidence the weight it should be accorded”… . Defendant’s statements at the scene and in her police interview evinced a belief that deadly force was necessary to protect her from decedent, and we conclude that the People did not demonstrate beyond a reasonable doubt that her belief was objectively unreasonable. Instead, the credible evidence established that decedent was in a drunken rage during a heated argument with defendant, that he had threatened “trouble” if the police came, that he had repeatedly forced open doors in the course of pursuing defendant through the apartment, that he was not deterred even when she armed herself with a knife, that he had cornered her in the bathroom and pulled her hair, and that he had grabbed her by the hair to prevent her from leaving the bathroom just before she stabbed him. Under those circumstances, we conclude that the People failed to meet their burden of establishing that defendant lacked a reasonable belief that decedent was about to use deadly physical force against her, even though decedent was not armed … . In other words, this is not a case in which the force employed by defendant ” exceeded that which was necessary to defend [herself]’ ” … . People v Marchant, 2017 NY Slip Op 05918, 4th Dept 7-27-17

CRIMINAL LAW (JUSTIFICATION DEFENSE, THE JURY’S FINDING THAT DEFENDANT’S ACTIONS IN THIS MANSLAUGHTER CASE WERE NOT JUSTIFIED WAS AGAINST THE WEIGHT OF THE EVIDENCE, CONVICTION REVERSED AND INDICTMENT DISMISSED 4TH DEPT)/EVIDENCE (CRIMINAL LAW, JUSTIFICATION DEFENSE, THE JURY’S FINDING THAT DEFENDANT’S ACTIONS IN THIS MANSLAUGHTER CASE WERE NOT JUSTIFIED WAS AGAINST THE WEIGHT OF THE EVIDENCE, CONVICTION REVERSED AND INDICTMENT DISMISSED 4TH DEPT)/JUSTIFICATION DEFENSE (MANSLAUGHTER,  THE JURY’S FINDING THAT DEFENDANT’S ACTIONS IN THIS MANSLAUGHTER CASE WERE NOT JUSTIFIED WAS AGAINST THE WEIGHT OF THE EVIDENCE, CONVICTION REVERSED AND INDICTMENT DISMISSED 4TH DEPT)

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FAILURE TO INSTRUCT THE JURY ON THE NEED FOR CORROBORATION OF THE TESTIMONY OF AN ACCOMPLICE REQUIRED A NEW TRIAL 2ND DEPT.

The Second Department, reversing defendant’s murder conviction and ordering a new trial, determined the trial judge should have given the jury the accomplice-in-fact instruction concerning the need for corroboration of the testimony of an accomplice:

“A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense” (CPL 60.22[1]). A witness in a criminal action is an accomplice if he or she “may reasonably be considered to have participated in . . . the offense charged or an offense based upon the same or some of the same facts or conduct which constitute the offense charged”… . A witness who is a criminal facilitator is an accomplice for corroboration purposes … . The factual issue of whether a particular witness is an accomplice should be submitted to the jury if different inferences may reasonably be drawn from the proof regarding complicity … .

Here, different inferences may reasonably be drawn … as to whether the second eyewitness drove Gill and the shooter to the scene, with the knowledge that one or the other of them intended to use the gun. Under these circumstances, the Supreme Court erred in failing to provide the jury with an accomplice-in-fact charge. The error was not harmless, because the evidence of the defendant’s guilt was not overwhelming. It is possible that the jury, properly charged on whether to treat the second eyewitness as an accomplice, and, if so, how to consider his testimony, could have discounted his version of the events. In that case, it was for the jury to decide whether the remaining evidence established the defendant’s guilt beyond a reasonable doubt … . People v Riley, 2017 NY Slip Op 05755, 2nd Dept 7-19-17

CRIMINAL LAW (FAILURE TO INSTRUCT THE JURY ON THE NEED FOR CORROBORATION OF THE TESTIMONY OF AN ACCOMPLICE REQUIRED A NEW TRIAL)/EVIDENCE (CRIMINAL LAW, ACCOMPLICE TESTIMONY, FAILURE TO INSTRUCT THE JURY ON THE NEED FOR CORROBORATION OF THE TESTIMONY OF AN ACCOMPLICE REQUIRED A NEW TRIAL)/JURY INSTRUCTIONS (CRIMINAL LAW, ACCOMPLICE TESTIMONY, FAILURE TO INSTRUCT THE JURY ON THE NEED FOR CORROBORATION OF THE TESTIMONY OF AN ACCOMPLICE REQUIRED A NEW TRIAL)

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JUDGE SHOULD NOT HAVE VACATED DEFENDANT’S GUILTY PLEA OVER DEFENDANT’S OBJECTION 2ND DEPT.

The Second Department, reversing Supreme Court, determined the sentencing judge should not have vacated defendant’s guilty plea. Under the plea bargain defendant was promised an 18-year sentence. After trial he was sentenced to 50 years. Although defendant indicated he didn’t remember the underlying events because he was intoxicated, both he and his attorney objected when the judge vacated the plea:

“[I]n the absence of fraud, misrepresentation, deceit, or trickery, courts have no inherent power to set aside a plea of guilty absent the defendant’s consent other than to correct their own mistakes” … . Moreover, a court may not vacate a plea over a defendant’s objection … .

Here, the People fail to identify, nor is there apparent, any error or mistake made by the Supreme Court in accepting the defendant’s plea. Nor is there any evidence of fraud, misrepresentation, deceit, or trickery presented on this record … .. The defendant’s statements to the probation department to the effect that he was intoxicated and did not remember what had occurred on the night of the shootings cannot be said to constitute consent on the part of the defendant to the vacatur of his plea of guilty and the reinstatement of his plea of not guilty … . Further, notwithstanding the court’s conclusion and the People’s assertion to the contrary, in response to the court’s questioning as to whether the defendant wished to proceed to trial and assert an intoxication defense, the defendant merely indicated that he had wished to do so in the past, not that he wished to withdraw the plea and go to trial now. Nor did the defendant unequivocally inform the court that he had been coerced into pleading guilty … . Instead, the record shows that, when the court stated that it would strike the plea and set the matter down for trial, the defendant and his attorney immediately protested, but the court overruled their objections and moved on. The court erred in vacating the plea over the defendant’s objections … . People v Brown, 2017 NY Slip Op 05748, 2nd Dept 7-19-17

CRIMINAL LAW (JUDGE SHOULD NOT HAVE VACATED DEFENDANT’S GUILTY PLEA OVER DEFENDANT’S OBJECTION)/GUILTY PLEA, VACATION OF (JUDGE SHOULD NOT HAVE VACATED DEFENDANT’S GUILTY PLEA OVER DEFENDANT’S OBJECTION)

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INSUFFICIENT PROOF OF CRIMINAL POSSESSION OF A WEAPON UNDER AN ACCESSORIAL LIABILITY THEORY 3RD DEPT.

The Third Department determined there was insufficient proof of defendant’s criminal possession of a weapon under an accessorial liability theory:

… [A]s for defendant’s convictions of criminal possession of a weapon in the second degree, the conclusion that defendant was an accessory to Anderson or Bost [co-defendants] in their unlawful possession of weapons is against the weight of the evidence … . There was no proof presented during the trial that defendant ever personally possessed one of the handguns or in any way encouraged or intentionally aided Anderson or Bost in their possession of the handguns … .. Accordingly, as “there was no evidence that . . . defendant solicited, requested, commanded, importuned, or intentionally aided another individual to possess the firearm” … , we reverse defendant’s convictions of counts 3 and 4 of the indictment for criminal possession of a weapon in the second degree and dismiss said counts. People v Spencer, 2017 NY Slip Op 05631, 3rd Dept 7-13-17

CRIMINAL LAW (INSUFFICIENT PROOF OF CRIMINAL POSSESSION OF A WEAPON UNDER AN ACCESSORIAL LIABILITY THEORY 3RD DEPT)/EVIDENCE (CRIMINAL LAW, INSUFFICIENT PROOF OF CRIMINAL POSSESSION OF A WEAPON UNDER AN ACCESSORIAL LIABILITY THEORY 3RD DEPT)

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DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, DEFENDANT ALLEGED COUNSEL’S ADVICE ON THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA WAS ERRONEOUS 1ST DEPT.

The First Department, reversing Supreme Court, determined defendant was entitled to a hearing on his motion to vacate his conviction because of counsel’s (alleged) advice on the deportation consequences of his guilty plea:

Defendant alleged in support of his CPL 440.10 motion that counsel at his plea affirmatively misadvised him …  that he “could” be deported, but “maybe” could avoid deportation if he stayed out of further trouble. However, since defendant pleaded guilty to an aggravated felony under federal law, deportation was mandatory irrespective of subsequent good behavior … . Defendant also alleged that, although he was innocent, he accepted what he thought was a favorable plea because it involved a sentence of probation, whereas, had he known that deportation was mandatory, he would have asked counsel to negotiate a disposition with less onerous deportation consequences or would have proceeded to trial, in light of the fact that he has family here.

Defendant raised sufficient questions of fact concerning the effectiveness of counsel’s assistance to warrant a hearing on the content of counsel’s immigration advice, and whether defendant was prejudiced … . People v Candel, 2017 NY Slip Op 05680, 1st Dept 7-13-17

CRIMINAL LAW (ATTORNEYS, DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, DEFENDANT ALLEGED COUNSEL’S ADVICE ON THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA WAS ERRONEOUS 1ST DEPT)/ATTORNEYS (CRIMINAL LAW, DEPORTATION ADVICE, DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, DEFENDANT ALLEGED COUNSEL’S ADVICE ON THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA WAS ERRONEOUS 1ST DEPT)/VACATE CONVICTION, MOTION TO (ATTORNEYS, DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, DEFENDANT ALLEGED COUNSEL’S ADVICE ON THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA WAS ERRONEOUS 1ST DEPT)/DEPORTATION (CRIMINAL LAW, ATTORNEYS, DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, DEFENDANT ALLEGED COUNSEL’S ADVICE ON THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA WAS ERRONEOUS 1ST DEPT)/INEFFECTIVE ASSISTANCE (DEPORTATION ADVICE, DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, DEFENDANT ALLEGED COUNSEL’S ADVICE ON THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA WAS ERRONEOUS 1ST DEPT)

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COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT.

The Third Department, vacating defendant’s guilty plea in the interest of justice, determined the judge did not adequately ensure defendant was aware of the rights he was giving up:

Defendant … contends that his guilty plea to criminal sale of a controlled substance in the third degree and violating his probation was not knowing, voluntary and intelligent because County Court failed to inform him of the constitutional rights he was waiving by pleading guilty. Although this contention is unpreserved for our review, inasmuch as he failed to make an appropriate postallocution motion … , we find that the error warrants reversal of the judgment in the interest of justice … .

“While there is no mandatory catechism required of a pleading defendant, there must be an affirmative showing on the record that the defendant waived his or her constitutional rights”… . During the plea allocution, County Court merely asked whether defendant understood “what the attorneys have told me about you waiving your rights and entering pleas of guilty to a felony, violation of probation and all of that stuff” and whether defendant had “[a]ny questions at all regarding you giving up your rights to a jury trial, your rights to presumption of innocence, your rights to a violation of probation hearing, anything like that.” County Court further failed to ascertain whether defendant had discussed with counsel the trial-related rights being waiving by a guilty plea or its constitutional consequences. Rather, County Court simply inquired whether defendant “[had] the time, and did you talk to [counsel] regarding this case, the disposition, and anything else that is important to you, with respect to these charges” … . Additionally, County Court did not advise defendant of his rights or the consequences regarding an admission to violating probation … , including that he understood that he was entitled to a hearing on the issue and that he was waiving that right … . “With no affirmative showing on the record that defendant understood and waived his constitutional rights when he entered the guilty plea, the plea was invalid and must be vacated” … . People v Aubain, 2017 NY Slip Op 05632, 3rd Dept 7-13-17

CRIMINAL LAW (COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT)/APPEALS (INTEREST OF JUSTICE JURISDICTION, COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT)/GUILTY PLEA (COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT)

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EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT.

The Second Department, under a weight of the evidence analysis, determined the evidence of the appellant’s liability as an accomplice in this juvenile delinquency proceeding was insufficient. The complainant testified appellant was present during the assault and theft by another. Presence is not enough:

A determination premised upon accessorial liability requires proof beyond a reasonable doubt that the accused acted with the mental culpability necessary to commit the act charged and that, in furtherance thereof, he solicited, requested, commanded, importuned, or intentionally aided the principal to commit such act… . “A person’s mere presence at the scene of the crime, even with knowledge of its perpetration, cannot render him or her accessorially liable for the underlying criminal conduct” … .  Here, we agree with the appellant that the Family Court’s finding of accessorial liability was against the weight of the credible evidence. The appellant is alleged to have been an accomplice with another youth who punched the complainant in the face and took his iPhone. However, at the fact-finding hearing, when asked about the appellant’s actions at the time of the assault and robbery, the complainant testified that the appellant was standing near the perpetrator and watched the incident occur. The presentment agency’s evidence with respect to the crimes of robbery in the second degree, robbery in the third degree, grand larceny in the fourth degree, and attempted assault in the third degree established only that the appellant was present at the scene of the offense… . Accordingly, the determination of the Family Court with respect to those crimes was against the weight of the evidence, and the order of disposition must be modified accordingly. Matter of Justin M., 2017 NY Slip Op 05605, 2nd Dept 7-12-17

FAMILY LAW (JUVENILE DELINQUENCY, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)/JUVENILE DELINQUENCY (FAMILY COURT, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)/CRIMINAL LAW (FAMILY LAW, JUVENILE DELINQUENCY, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)/EVIDENCE (JUVENILE DELINQUENCY, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)/ACCESSORIAL LIABILITY  (JUVENILE DELINQUENCY, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)

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INSUFFICIENT PROOF DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER WITHIN THE MEANING OF THE CRIMINAL PROCEDURE LAW 2ND DEPT.

The Second Department, reversing County Court, determined the evidence at this civil commitment hearing supported a finding defendant was not suffering from a “dangerous mental disorder,” but rather was “mentally ill,” within the meaning of the Criminal Procedure Law (CPL) 330.20:

… County Court accepted the appellant’s plea of not responsible by reason of mental disease or defect to the charge of strangulation in the second degree. After the court issued an examination order pursuant to CPL 330.20(3), the appellant was remanded to Mid-Hudson Forensic Psychiatric … , where he was evaluated by three psychiatric examiners. Two of the examiners found him to be suffering from a dangerous mental disorder, while the third determined that he was mentally ill. * * *

The opinions expressed by the People’s experts were based, in large part, upon speculation and an overly narrow focus on the appellant’s conduct during the relatively brief period of time between the instant offense and the time when the appellant began taking medication. As evidenced by the unrebutted testimony of the appellant’s experts, the appellant has had no history of relapses into violent behavior. Moreover, he had no notable history of substance or alcohol abuse, had always been compliant with treatment, both during the 18-month period he was released on bail and during his subsequent time at Mid-Hudson, and had a positive support system. Therefore, the preponderance of the record evidence did not support the conclusion of the People’s experts that the appellant suffered from a dangerous mental disorder…  Contrary to the County Court’s determination, the preponderance of the evidence adduced at the hearing demonstrated only that the appellant was mentally ill … .

Accordingly, the County Court’s findings of fact must be vacated and the matter remitted to the County Court, Orange County, for the entry of a finding that the appellant is mentally ill pursuant to CPL 330.20(1)(d), and the issuance of such further orders as may be appropriate under the Mental Hygiene Law and CPL 330.20(7). Matter of Eric F., 2017 NY Slip Op 05594, 2nd Dept 7-12-17

CRIMINAL LAW (CIVIL COMMITMENT, INSUFFICIENT PROOF DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER WITHIN THE MEANING OF THE CRIMINAL PROCEDURE LAW 2ND DEPT)/MENTAL HYGIENE LAW (CRIMINAL LAW, CIVIL COMMITMENT, INSUFFICIENT PROOF DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER WITHIN THE MEANING OF THE CRIMINAL PROCEDURE LAW 2ND DEPT)/MENTAL ILLNESS (CRIMINAL LAW, INSUFFICIENT PROOF DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER WITHIN THE MEANING OF THE CRIMINAL PROCEDURE LAW 2ND DEPT)

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PEOPLE’S REQUEST FOR AN ADJOURNMENT WHEN TWO DEPUTIES DID NOT SHOW UP FOR A MAPP HEARING SHOULD HAVE BEEN GRANTED 4TH DEPT.

The Fourth Department, reversing County Court, determined County Court should have granted the People’s request for an adjournment after two deputies did not show up for a Mapp hearing:

We agree with the People that the court erred in refusing to grant their request for an adjournment. It is well settled that “the decision to grant an adjournment is a matter of discretion for the hearing court”… . There are, however, well settled considerations to help guide a court in the exercise of its discretion. As relevant herein, for instance, “when [a] witness is identified to the court, and is to be found within the jurisdiction, a request for a short adjournment after a showing of some diligence and good faith should not be denied merely because of possible inconvenience to the court or others” … . Additional relevant considerations in determining whether to grant a request for an adjournment include whether it was the moving party’s first request, whether the subject witness or witnesses would offer material testimony favorable to that party, and the degree of prejudice to the nonmovant … . Here, the deputies who conducted the warrantless search were under subpoena and were identified to the court. Contrary to defendant’s contention, the court was entitled to rely on the prosecutor’s representation in open court concerning the issuance of subpoenas inasmuch as a prosecutor is an officer of the court with an ” unqualified duty of scrupulous candor’ ” … . Moreover, the request was the People’s first request for an adjournment, the testimony of the witnesses would be material and favorable to the People, and there was minimal prejudice to defendant, who had been released from custody on his own recognizance. In contrast, the People suffered severe prejudice because the refusal to grant an adjournment resulted in the suppression of all physical evidence. People v Schafer, 2017 NY Slip Op 05551, 4th Dept 7-7-17

CRIMINAL LAW (PEOPLE’S REQUEST FOR AN ADJOURNMENT WHEN TWO DEPUTIES DID NOT SHOW UP FOR A MAPP HEARING SHOULD HAVE BEEN GRANTED 4TH DEPT)/ADJOURNMENTS (CRIMINAL LAW, PEOPLE’S REQUEST FOR AN ADJOURNMENT WHEN TWO DEPUTIES DID NOT SHOW UP FOR A MAPP HEARING SHOULD HAVE BEEN GRANTED 4TH DEPT)

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TROOPER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN DEFENDANT WAS QUESTIONED ABOUT THE CONTENTS OF BAGS IN HIS VEHICLE, DEFENDANT’S NERVOUSNESS AND INCONSISTENT ANSWERS DID NOT JUSTIFY THE QUESTIONING, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED 4TH DEPT.

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, determined the trooper who stopped defendant’s vehicle did not have a founded suspicion of criminal activity at the time the trooper asked questions which amounted to a De Bour level two inquiry:

Defendant appeals from a judgment convicting him upon his plea of guilty of possessing or transporting 30,000 or more unstamped cigarettes … . When a State Trooper pulled over defendant for speeding on Interstate 81, he noticed “several large nylon bags” with “square edged contours” filling the area behind the driver’s seat. The Trooper initially asked defendant what was inside the bags, i.e., whether there was luggage in the bags, and defendant gave a series of increasingly implausible answers, including “clothing,” “presents,” “riding toys,” and “bicycles.” Defendant asked if he could leave, but the Trooper instead requested that he exit the vehicle while the Trooper spoke to two passengers. When the Trooper returned to speak to defendant, but before he advised defendant of his Miranda rights, defendant admitted that the bags contained nearly 300 cartons of untaxed cigarettes purchased from an Indian reservation.

We conclude that the court erred in refusing to suppress the physical evidence and statements at issue. Contrary to defendant’s contention, however, our rationale is not grounded in custody and/or Miranda issues. “In light of the heightened dangers faced by investigating police officers during traffic stops, a police officer may, as a precautionary measure and without particularized suspicion, direct the occupants of a lawfully stopped vehicle to step out of the car” … . Here, defendant was not in custody during his temporary roadside detention, and it was permissible for the Trooper to engage in a reasonable interrogation of defendant without first advising him of his Miranda rights … .

We conclude, however, that the Trooper’s initial inquiry concerning the contents of the bags constituted a level two common-law inquiry, which required a founded suspicion of criminality that was not present at the time … . Indeed, we note that nervousness, fidgeting, and illogical or contradictory responses to level one inquiries do not permit an officer to escalate an encounter to a level two De Bour confrontation … . Here, the facts are even more strongly in favor of defendant inasmuch as defendant’s evasive and inconsistent answers were themselves induced by a level two inquiry from the Trooper. Because a founded suspicion of criminality did not arise until after the Trooper asked defendant what was inside the bags, the court erred in refusing to suppress the evidence. People v Gates, 2017 NY Slip Op 05549, 4th Dept 7-7-17

 

CRIMINAL LAW (STREET STOP, SUPPRESSION, TROOPER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN DEFENDANT WAS QUESTIONED ABOUT THE CONTENTS OF BAGS IN HIS VEHICLE, DEFENDANT’S NERVOUSNESS AND INCONSISTENT ANSWERS DID NOT JUSTIFY THE QUESTIONING, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED 4TH DEPT)/STREET STOPS (SUPPRESSION, TROOPER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN DEFENDANT WAS QUESTIONED ABOUT THE CONTENTS OF BAGS IN HIS VEHICLE, DEFENDANT’S NERVOUSNESS AND INCONSISTENT ANSWERS DID NOT JUSTIFY THE QUESTIONING, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED 4TH DEPT)/SUPPRESS, MOTION TO  (STREET STOP, TROOPER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN DEFENDANT WAS QUESTIONED ABOUT THE CONTENTS OF BAGS IN HIS VEHICLE, DEFENDANT’S NERVOUSNESS AND INCONSISTENT ANSWERS DID NOT JUSTIFY THE QUESTIONING, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED 4TH DEPT)/TRAFFIC STOPS (SUPPRESSION, TROOPER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN DEFENDANT WAS QUESTIONED ABOUT THE CONTENTS OF BAGS IN HIS VEHICLE, DEFENDANT’S NERVOUSNESS AND INCONSISTENT ANSWERS DID NOT JUSTIFY THE QUESTIONING, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED 4TH DEPT)/DE BOUR (LEVEL TWO INQUIRY, TROOPER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN DEFENDANT WAS QUESTIONED ABOUT THE CONTENTS OF BAGS IN HIS VEHICLE, DEFENDANT’S NERVOUSNESS AND INCONSISTENT ANSWERS DID NOT JUSTIFY THE QUESTIONING, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED 4TH DEPT)

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