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THE GRAND JURY WAS PROPERLY INSTRUCTED ON THE DEFINITION OF “IMPAIRED” IN THE CONTEXT OF VEHICLE AND TRAFFIC LAW 1192 (4-A) (FELONY AGGRAVATED DRIVING WHILE INTOXICATED); THE FOURTH DEPARTMENT DISAGREED WITH THE DEFINITION OF “IMPAIRED” ADOPTED BY THE THIRD DEPARTMENT (FOURTH DEPT).

The Fourth Department, reversing County Court’s dismissal of the felony aggravated driving while intoxicated count, in a full-fledged opinion by Justice Curran, determined the grand jury was properly instructed on the definition of “impaired.” The Fourth Department noted its disagreement with the Third Department on this issue:

… [T]he People correctly instructed the grand jury that the term “impaired” in the context of Vehicle and Traffic Law § 1192 (4-a) is defined as the defendant’s consumption of a combination of drugs and alcohol to the point that it “has actually impaired, to any extent, the physical and mental abilities which [the defendant] is expected to possess in order to operate a vehicle as a reasonable and prudent driver” … .

In reaching that conclusion, we also note our respectful disagreement with the Third Department’s decision in People v Caden N. (189 AD3d 84 [3d Dept 2020], lv denied 36 NY3d 1050 [2021]), which defined the term “impaired” in the context of drug consumption in accordance with the heightened standard typically applicable in cases of “intoxication” by alcohol … . Ultimately, we conclude that the term “impaired” should be defined consistently across the Vehicle and Traffic Law—whether in the context of impairment by alcohol or in the context of impairment by drugs or a combination of drugs and alcohol. * * *

… [T]he Court of Appeals, in Cruz, clearly defined the term “impaired” to mean—in the context of alcohol consumption—that a defendant “has actually impaired, to any extent, the physical and mental abilities which [they are] expected to possess in order to operate a vehicle as a reasonable and prudent driver” (48 NY2d [419] at 427 …). In defining “impaired” that way, the Court sharply distinguished the term “impaired” from the separate term “intoxication,” as used in Vehicle and Traffic Law § 1192 (3), noting that the latter term denoted “a greater degree of impairment which is reached when [a] driver has voluntarily consumed alcohol to the extent that [they are] incapable of employing the physical and mental abilities which [they are] expected to possess in order to operate a vehicle as a reasonable and prudent driver” (Cruz, 48 NY2d [419] at 428). The Court concluded that the terms impaired and intoxicated are not interchangeable … . People v Dondorfer, 2024 NY Slip Op 06432, Fourth Dept 12-20-24

Practice Point: In the Fourth Department “impaired” in the context of felony aggravated driving while intoxicated (Vehicle and Traffic Law 1104 (4-a)” means impairment “to any extent [of] the physical and mental abilities which [the defendant] is expected to possess in order to operate a vehicle as a reasonable and prudent driver” … .

 

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A HANDGUN USED AS BLUDGEON IS A “DANGEROUS INSTRUMENT” WHICH WILL SUPPORT A BURGLARY FIRST DEGREE COUNT; COUNTY COURT SHOULD NOT HAVE REDUCED THE CHARGE TO BURGLARY SECOND (FOURTH DEPT).

The Fourth Department, reversing County Court and reinstating the reduced count, determined the handgun with which the victim was allegedly struck was a “dangerous instrument” despite the fact it had not been fired. County Court had reduced the charge from Burglary first to Burglary second on the ground the handgun had not been shown to be a “dangerous instrument:”

The People were required to present competent evidence to the grand jury demonstrating that defendant or another participant in the crime used, or threatened the immediate use of, a dangerous instrument (see Penal Law § 140.30 [3]). A dangerous instrument is defined as “any instrument, article or substance . . . which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury” (§ 10.00 [13]).

At the grand jury hearing, the victim testified that three men entered her apartment and the first man who walked in had a gun. She further testified that, at one point, “the guy with the gun” became “more upset” and hit her “upside the head” with the gun.

It is well established that “a ‘gun [that is] used as a bludgeon’ is a dangerous instrument” … because it ” ‘is readily capable of causing death or other serious physical injury’ ” … . Here, County Court ruled that the evidence before the grand jury was legally insufficient to establish that the item used by defendant or another participant in the crime was a dangerous instrument because it was not discharged during the incident and there was no evidence that the item was recovered or tested. That was error. We agree with the People that they were not required to submit evidence that the item described by the victim as a gun was an operable or loaded firearm in order to meet the dangerous instrument element of the crime … . We further agree with the People that they were not required to prove that the victim suffered an injury but, rather, needed only to establish that “under the circumstances in which [the instrument, article, or substance was] used . . . or threatened to be used, [it was] readily capable of causing death or other serious physical injury” (Penal Law § 10.00 [13] …). It is reasonable for a grand jury to infer that hitting the victim on the side of the victim’s head with a gun could cause serious physical injury. Thus, the evidence was sufficient to permit the inference that defendant or another participant in the crime used a dangerous instrument … . People v Delee, 2024 NY Slip Op 06491, Fourth Dept 12-20-24

Practice Point: A handgun used as a bludgeon is a “dangerous instrument” within the meaning of the Penal Law and the Burglary First Degree statute. The People need not show the handgun was operable or that the victim suffered a serious injury.

 

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ON THE PEOPLE’S APPEAL, THE TRIAL COURT’S VACATION OF THE JUDGMENT OF CONVICTION BASED ON NEW EVIDENCE WAS REVERSED; THE NEW EVIDENCE INDICATED THAT, ALTHOUGH DEFENDANT WAS NOT THE SHOOTER, DEFENDANT WAS AN ACCOMPLICE TO THE SHOOTER; AN INTERMEDIATE APPELLATE COURT CAN ONLY CONSIDER THE TRIAL COURT’S GROUNDS FOR ITS RULINGS, OR RULINGS ADVERSE TO THE APPELLANT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and denying the motion to vacate the criminal possession of a weapon conviction, determined new evidence which indicated defendant was not the shooter but had provided the machine gun to the shooter (Scott)  would not have resulted in a more favorable verdict. Defendant would have been convicted as an accomplice. In rejecting an argument on appeal that was not part of the ruling below, the Fourth Department explained that its appellate jurisdiction is limited to grounds relied on by the trial court which were adverse to the appellant:

… [W]e conclude that the evidence in question is not “of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” (CPL 440.10 [1] [g] …). Scott’s deposition testimony establishes that defendant possessed the loaded machine gun, provided it to Scott, transported Scott to the vicinity of the crime, and had a motive to harm the victims because his family had “beef” with theirs, thus providing sufficient evidence to support a verdict of guilty as an accomplice to the weapons possession of which he was convicted … . ” ‘[W]hether one is the actual perpetrator of the offense or an accomplice is, with respect to criminal liability for the offense, irrelevant’ ” … .

Defendant requests that we affirm on the ground, which he asserted in the court below, that consideration of the new evidence in light of a theory of accessorial liability requires an impermissible amendment to the indictment. We agree with the People that we have no authority to affirm on that basis … .

Under CPL 470.15 (1), “[u]pon an appeal to an intermediate appellate court from a judgment, sentence or order of a criminal court, such intermediate appellate court may consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant.” * * * The Appellate Division engages in “the type of appellate overreaching prohibited by CPL 470.15 (1)” when it “renders a decision on grounds explicitly different from those of the trial court, or on grounds that were clearly resolved in [the appellant’s] favor” … .

Here, the court determined that “the accessorial liability theory, if presented at a new trial, would not constitute an impermissible amendment to the indictment in violation of the defendant’s constitutional rights,” clearly resolving that issue in the People’s favor.  People v Dixon, 2024 NY Slip Op 06473, Fourth Dept 12-20-24

Practice Point: New evidence indicated defendant was not the shooter but had provided the weapon to the shooter with the requisite intent. Because the new evidence would not have resulted in a more favorable verdict on the criminal possession of a weapon charge, defendant’s motion to vacate the judgment of conviction should have been denied.

Practice Point: An intermediate appellate court can only consider grounds for rulings relied on by the trial court or rulings adverse to the appellant.

 

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THE DENIAL OF DEFENDANT’S MOTION TO SEVER THE CHARGES RELATING TO TWO SEPARATE MURDERS, COMMITTED NEARLY TWO YEARS APART, WAS NOT AN ABUSE OF DISCRETION; DEFENDANT DID NOT DEMONSTRATE THE JURY WOULD HAVE HAD DIFFICULTY CONSIDERING SEPARATELY THE PROOF FOR EACH OFFENSE (CT APP).

The Court of Appeals, affirming defendant’s murder convictions, in a full-fledged opinion by Judge Halligan, over two comprehensive dissenting opinions, determined the denial of defendant’s motion to sever the charges relating to two separate murders, committed nearly two years apart, was not error:

The first victim was the defendant’s roommate, who was found dead in their shared apartment in 2013 after a fire that occurred under circumstances that later raised questions about her cause of death. The second victim was a woman whom defendant had hired to go on a date with him in December 2014; her body was found in a shallow grave in May 2015. The defendant was arrested in 2017 … . * * *

Where counts have been joined under CPL 200.20 (2) (c), the CPL provides that the trial court has discretion to sever them if doing so would be “in the interest of justice and for good cause shown” (id. 200.20 [3]). This provision has its origins in a 1936 amendment to the Code of Criminal Procedure that allowed joinder of “two or more acts or transactions constituting crimes of the same or a similar character which are neither connected together nor parts of a common scheme or plan” … .

The statute specifies two situations that establish good cause: first, where there is “[s]ubstantially more proof on one or more such joinable offenses than on others and there is a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense”; and second, where there is “[a] convincing showing that a defendant has both important testimony to give concerning one count and a genuine need to refrain from testifying on the other, which satisfies the court that the risk of prejudice is substantial” … . The statute expressly notes that good cause is not limited to these grounds … , and we have explained that “a defendant’s fundamental right to a fair trial free of undue prejudice” must be protected when offenses are joined for trial … . …

… The defendant asserts that “the jury was incapable of considering the proof separately with respect to each offense” because the proof of each crime was “markedly different” and “dissimilar.” … [But] the key question is whether it would be difficult for the jury to consider separately the proof for each offense … . People v Mero, 2024 NY Slip Op 06385, CtApp 12-19-24

Practice Point: Consult this opinion, especially the extensive dissents, for a comprehensive discussion of the issues raised by trying a defendant for two unrelated murders, separated by years, in a single trial.

 

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DEFENDANT’S CROSSING THE FOG LINE ON THE RIGHT SIDE OF THE HIGHWAY THREE TIMES IN SECONDS CONSTITUTED PROBABLE CAUSE FOR THE TRAFFIC STOP (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined there was probable cause for the traffic stop which resulted in a DWI conviction. Defendant’s car crossed the fog line on the right side of the roadway three times within seconds:

When a driver swerves over the fog line repeatedly, in quick succession, they have failed to “drive[ ] as nearly as practicable entirely within a single lane” in violation of VTL § 1128 (a) (see e.g. Schoonmaker v New York State Dept. of Motor Vehicles, 33 NY3d 926, 928 [2019] [testimony that vehicle “ma(de) an erratic movement off the right side of the road, crossing the fog line and moving off the shoulder with the vehicle’s right front tire” provided substantial evidence that stop was lawful under VTL § 1128 (a)]; People v Tandle, 71 AD3d 1176, 1177, 1178 [2d Dept 2010]; People v Parris, 26 AD3d 393, 394 [2d Dept 2006]; cf. People v Davis, 58 AD3d 896, 898 [3d Dept 2009] [police officer’s testimony that driver had made “brief contacts with the fog line,” but not that driver was, for example, “weaving, driving erratically or even that he drove onto the shoulder” was insufficient to support traffic stop under VTL § 1128 (a)]). On these facts, the troopers’ observations, which were credited by the suppression court, established probable cause for the traffic stop. Therefore, the court properly denied the motion to suppress. People v Rufus, 2024 NY Slip Op 06384, CtApp 12-19-24

Practice Point: Here defendant’s crossing the fog line on the right side of the highway three times in seconds violated the Vehicle and Traffic Law and constituted probable cause for the traffic stop.

 

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IN THIS JUVENILE DELINQUENCY PROCEEDING, THE JUVENILE’S BEHAVIOR—LOOKING AT THE UNDERCOVER VEHICLE AND TURNING HIS BICYCLE AROUND—DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION JUSTIFYING THE STREET STOP (FIRST DEPT). ​

The First Department, reversing Family Court’s finding there was reasonable suspicion justifying the street stop of the juvenile, determined the officers’ observation of the juvenile’s “look[ing] in the direction of one of the unmarked vehicles, back pedal[ing], duck[ing], turn[ing] the bicycle around and rid[ing] in the opposite direction” was not sufficient. The police had been alerted to a gunshot in the area. A handgun was retrieved from the juvenile:

… [T]he totality of the circumstances did not support Family Court’s finding that the officer had reasonable suspicion to justify the stop, and his detention was unlawful because appellant’s “equivocal or innocuous behavior” was “susceptible of an innocent as well as a culpable interpretation” … . Police, in two unmarked vehicles, while canvassing the area in response to a “Shotspotter” sensor report of shots fired, observed appellant riding a bicycle on the sidewalk. An officer observed appellant look in the direction of one of the unmarked vehicles, back pedal, duck, turn the bicycle around and ride in the opposite direction. The officer found appellant’s actions suspicious, exited the vehicle, approached appellant, ordered him to stop, grabbed him by both wrists and pushed him against the wall. While appellant was detained another officer observed a bulge in appellant’s pocket, squeezed the pocket area and retrieved a firearm.

Although an officer observed an L-shaped object in appellant’s pocket during the detention, there is no evidence or any reasonable inference that the officer “was in a position to view the contraband absent the unlawful detention” … . Matter of W.P., 2024 NY Slip Op 06426, First Dept 12-19-24

Practice Point: Here the police were canvassing the area after a report of a gunshot. They stopped the juvenile after observing him look at their undercover vehicle and turn his bicycle around. A handgun was retrieved during the stop. The First Department held the observations did not provide the police with “reasonable suspicion” and the street stop was therefore not justified.

 

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A WAIVER OF APPEAL DOES NOT PRECLUDE A CHALLENGE TO A PROBATION CONDITION REQUIRING CONSENT TO WARRANTLESS SEARCHES; IN THE PLEA PROCEEDINGS, DEFENDANT ADMITTED PUNCHING THE VICTIM; THE PROBATION CONDITION ALLOWING SEARCHES FOR DRUGS AND WEAPONS HAD NO CONNECTION TO THE UNDERLYING OFFENSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined (1) a waiver of appeal does not preclude challenging a condition of probation requiring warrantless searches, and (2) there was no basis for requiring defendant to consent to warrantless searches:

… [D]efendant’s challenge to the condition of probation requiring that he consent to warrantless searches survives even a valid waiver … . Here, during the plea proceedings, defendant admitted that he intentionally caused injury to the victim by punching him with a closed fist. The Department of Probation recommended that, as a condition of probation, defendant consent to warrantless searches for illegal drugs and weapons to help ensure the safety of the public and probation officers. We find that the condition of probation was not reasonably related to defendant’s rehabilitation, given that defendant’s conviction did not involve the use of a weapon and did not appear connected to the sale or use of drugs … . People v Thomas, 2024 NY Slip Op 06427, First Dept 12-19-24

Practice Point: A waiver of appeal does not preclude a challenge to a probation condition requiring consent to warrantless searches.

Practice Point: The probation condition requiring consent to warrantless searches must have some connection to the underlying offense. Searches for drugs and weapons had no connection to the underlying offense in this case where defendant admitted punching the victim with his fist.

 

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THE JUDGE SHOULD NOT HAVE SUMMARILY DENIED DEFENDANT’S REQUEST TO REPRESENT HIMSELF WITHOUT CONDUCTING A COLLOQUY; THE SEARCH WARRANT DID NOT DEMONSTRATE PROBABLE CAUSE FOR THE SEARCH OF DEFENDANT’S CELL PHONES; NEW TRIAL ORDERED (THIRD DEPT). ​

The Third Department, reversing defendant’s conviction and ordering a new trial, determined (1) defendant’s request to represent himself should not have been summarily denied, and (2) the search warrant did not provide probable cause for the search of defendant’s cell phones:

A court may not summarily deny a defendant’s request to represent himself or herself, even if the court believes it to be in the defendant’s best interest to be represented by counsel … . Once defendant made his request, which was unequivocal and timely, County Court was required to conduct a colloquy to determine whether he was making a voluntary and intelligent waiver of his right to counsel … . * * *

While we defer to all reasonable inferences that the magistrate could have made in issuing the initial search warrant, we find the original affidavit did not establish the probable cause required to issue a search warrant for defendant’s cell phones. … [T]he warrant was supported by [investigator] Bruno’s affidavit, which stated that he believed the phones “may” contain digital data, including call histories, that would evidence the commission of criminal possession of a controlled substance in the third degree. However, the statute requires that a statement of reasonable cause based upon information and belief must also state “the sources of such information and the grounds of such belief” (CPL 690.35 [3] [c]), which was lacking here. Stated differently, even where there is probable cause to suspect the defendant of a crime, law enforcement may not search his or her cell phone unless they have information demonstrating that evidence is likely to be found there; some link sufficient to connect the two must be provided. Our review of the affidavit of probable cause in this case reveals no such link. People v Poulos, 2024 NY Slip Op 06239, Third Dept 12-12-24

Practice Point: A defendant’s request to represent himself should not be summarily denied. The judge should conduct a colloquy to determine whether defendant is making a voluntary and intelligent waiver of his right to counsel.​

Practice Point: The assertion in an affidavit that defendant’s cell phones “may” contain evidence of a drug offense does not provide probable cause for the search of the cell phones.

 

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AT THE SUPPRESSION HEARING THE PEOPLE FAILED TO PROVE THE LEGALITY OF THE TRAFFIC STOP, WHICH WAS BASED UPON DEFENDANT’S MAKING U-TURNS, AND THE SUPPRESSION MOTION WAS GRANTED; THE PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO REARGUE THE MOTION AND PRESENT EVIDENCE DEMONSTRATING THE U-TURNS WERE, IN FACT, ILLEGAL (CT APP).

The Court of Appeals, reversing the Appellate Term, determined the judge in this DWI prosecution should not have granted the People’s motion to reargue the suppression motion. The court had initially granted defendant’s motion to suppress because the People failed to prove U-turns made by the defendant were illegal. When the suppression motion was reargued, the People presented evidence the U-turns were, in fact, illegal and the court denied suppression:

… [I]f the People have had a full and fair opportunity to oppose suppression, and the suppression court has issued a ruling on the merits, the People may not have an additional “opportunity to shore up their evidentiary or legal position” … . Under the circumstances of this case, where the People were unprepared for the suppression hearing and sought to reargue the legal issue to remedy their lack of preparedness, the same principle should apply.

At a suppression hearing, the People bear the burden of showing the legality of the police conduct in the first instance … . Here, the court granted defendant’s motion for suppression because the People failed to demonstrate that defendant’s U-turns were illegal and therefore that the stop was lawful. Neither the Assistant District Attorney nor the arresting officer could identify any traffic law provision violated by defendant. Moreover, the People did not request a recess or adjournment to determine the statutory basis for the stop, nor did they request permission to furnish a post-hearing submission to identify any relevant provision of law. Instead, the People returned a month after the court granted suppression, offering a different legal theory that they had not raised at the original suppression hearing. On that new legal theory, the court changed course and denied defendant’s motion to suppress.

Of course, “[b]efore sentence is imposed, trial courts in criminal cases have the general inherent authority to correct their own mistakes” … , which may include granting leave to reargue. Although the People may be permitted to reargue the legal or factual issues of the suppression proceedings, allowing the suppression court to grant the People’s motion to reargue in these circumstances would run afoul of our “full and fair opportunity” principle and the policies of finality and judicial efficiency underlying it. People v Lawson, 2024 NY Slip Op 06238, CtApp 12-12-24

Practice Pont: As a general rule, the People should have only one chance to demonstrate the legality of a traffic stop in the context of a suppression hearing. Once a suppression motion is granted, the People should not be allowed to reopen the hearing to present evidence which could have been presented the first time around.

 

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THE PEOPLE’S “READY FOR TRIAL” STATEMENT, MADE BEFORE THE INDICTMENT WAS FILED, WAS CONCEDEDLY ILLUSORY; DEFENDANT’S MOTION TO DISMISS THE INDICTMENT ON SPEEDY-TRIAL GROUNDS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that the People conceded the statement of readiness for trial was illusory. Therefore defendant’s motion to dismiss the indictment on speedy-trial grounds should have been granted:

“Ready for trial” for purposes of CPL 30.30 means “present readiness, not a prediction or expectation of future readiness” … . “A statement of readiness at a time when the People are not actually ready is illusory and insufficient to stop the running of the speedy trial clock” … .

Here, as the People correctly concede, their statement of readiness filed on November 9, 2021, before the filing of the indictment, was illusory and thus ineffective to stop the speedy trial clock … . The People also acknowledge that they did not thereafter declare their readiness until after the six-month period had expired and, therefore, that the defendant’s motion pursuant to CPL 30.30 to dismiss the indictment on the ground that he was deprived of his statutory right to a speedy trial should have been granted … . People v Moore, 2024 NY Slip Op 06214, Second Dept 12-11-24

Practice Point: A “ready for trial” statement which is a prediction or an expectation of future readiness is illusory and invalid.

 

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