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PURSUIT OF DEFENDANT, WHO RAN, HOLDING HIS WAISTBAND, WHEN POLICE TOLD HIM TO STOP, NOT JUSTIFIED, FIREARM AND DRUGS SHOULD HAVE BEEN SUPPRESSED.

The Second Department, reversing Supreme Court, determined the police did not have a reasonable suspicion of criminal activity. Therefore the pursuit of the defendant was not justified and the firearm and drugs in his possession should have been suppressed. The police observed the car in which defendant was a passenger make a turn without signaling and roll through a stop sign. As the car was moving at one mile an hour, the defendant got out, holding his waistband. After an officer said “police, stop” defendant ran:

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“In order to justify police pursuit, the officers must have reasonable suspicion that a crime has been, is being, or is about to be committed'” … . “Police pursuit of an individual significantly impede[s]’ the person’s freedom of movement and thus must be justified by reasonable suspicion that a crime has been, is being, or is about to be committed” … . “A suspect’s [f]light alone . . . even [his or her flight] in conjunction with equivocal circumstances that might justify a police request for information, is insufficient to justify pursuit'” … . “However, flight, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit'” … .

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Here, the police officers’ observations that the defendant exited a slow moving vehicle and held his waistband did not constitute specific circumstances indicative of criminal activity so as to establish the reasonable suspicion that was necessary to lawfully pursue the defendant, even when coupled with the defendant’s flight from the police … . The People failed to adduce testimony showing, for example, that the police officers observed the defendant in possession of what appeared to be a gun or that the defendant’s conduct in adjusting his waistband was indicative of gun possession … . People v Furrs, 2017 NY Slip Op 03192, 2nd Dept 4-26-17

 

CRIMINAL LAW (PURSUIT OF DEFENDANT, WHO RAN WHEN POLICE TOLD HIM TO STOP, NOT JUSTIFIED, FIREARM AND DRUGS SHOULD HAVE BEEN SUPPRESSED)/STREET STOPS (CRIMINAL LAW, PURSUIT OF DEFENDANT, WHO RAN WHEN POLICE TOLD HIM TO STOP, NOT JUSTIFIED, FIREARM AND DRUGS SHOULD HAVE BEEN SUPPRESSED)/SUPPRESS, MOTION TO (CRIMINAL LAW, PURSUIT OF DEFENDANT, WHO RAN WHEN POLICE TOLD HIM TO STOP, NOT JUSTIFIED, FIREARM AND DRUGS SHOULD HAVE BEEN SUPPRESSED)

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PROSECUTOR’S FAILURE TO INSTRUCT THE GRAND JURY ON THE DEFENSE OF COMMON OWNERSHIP REQUIRED REVERSAL AND DISMISSAL OF THE INDICTMENT IN THE INTERESTS OF JUSTICE.

The Second Department, reversing Supreme Court, determined the grand jury proceedings were defective because of the prosecutor’s failure to instruct the jury on the defense of common ownership. Defendant testified in the grand jury that the property alleged to have been stolen was jointly owned with the complainant, who was a partner in the business. The conviction was reversed in the interest of justice and the indictment was dismissed:

” [A] prosecutor should instruct the Grand Jury on any complete defense supported by the evidence which has the potential for eliminating a needless or unfounded prosecution'” … . If the District Attorney fails to instruct the grand jury on a defense that would eliminate a needless or unfounded prosecution, the proceeding is defective, mandating dismissal of the indictment… .

Viewing the evidence before the grand jury in the light most favorable to the defendant … , we find that there was a reasonable view of the evidence warranting instructions on the definition of joint or common owner and the defense of claim of right. Penal Law § 155.00(5) provides that “[a] joint or common owner of property shall not be deemed to have a right of possession thereto superior to that of any other joint or common owner thereof.” Consequently, a partner may not be charged with stealing the partnership’s assets from another partner … . Pursuant to Penal Law § 155.15(1) “[i]n any prosecution for larceny committed by trespassory taking or embezzlement, it is an affirmative defense that the property was appropriated under a claim of right made in good faith.” The defendant’s grand jury testimony indicated that the defendant’s relationship with the complaining witness was that of a partner, not an employee … and that the defendant took the funds at issue under a claim of right … . Consequently, the District Attorney’s failure to instruct the grand jury with respect to the definition of joint or common owner and the defense of claim of right so substantially impaired the integrity of the proceedings as to require the dismissal of the indictment … . People v Tunit, 2017 NY Slip Op 03201, 2nd Dept 4-26-17

 

CRIMINAL LAW (PROSECUTOR’S FAILURE TO INSTRUCT THE GRAND JURY ON THE DEFENSE OF COMMON OWNERSHIP REQUIRED REVERSAL AND DISMISSAL OF THE INDICTMENT IN THE INTERESTS OF JUSTICE)/GRAND JURY (PROSECUTOR’S FAILURE TO INSTRUCT THE GRAND JURY ON THE DEFENSE OF COMMON OWNERSHIP REQUIRED REVERSAL AND DISMISSAL OF THE INDICTMENT IN THE INTERESTS OF JUSTICE)/COMMON OWNERSHIP DEFENSE (CRIMINAL LAW, PROSECUTOR’S FAILURE TO INSTRUCT THE GRAND JURY ON THE DEFENSE OF COMMON OWNERSHIP REQUIRED REVERSAL AND DISMISSAL OF THE INDICTMENT IN THE INTERESTS OF JUSTICE)

DEFENDANT NEVER ADMITTED THE PRIOR FELONY CONVICTION AND WAS NEVER PROPERLY NOTIFIED THE PRIOR CONVICTION WOULD BE USED AS A PREDICATE, RESENTENCING REQUIRED.

The First Department determined the flawed procedure leading to sentencing defendant as a second felony offender required remittal for resentencing:

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… [D]efendant never admitted the prior felony conviction upon which his second violent felony adjudication was predicated, and the court never adjudicated defendant a second violent felony offender. Moreover, there is no record evidence that the predicate felony statement was filed prior to sentencing, as required by CPL 400.15(2) … . Further, the record does not reflect that defendant was given a copy of the predicate felony statement, as CPL 400.15(3) requires. Thus, the record is devoid of any indication that defendant received adequate notice that the prior felony conviction in question would be used as the basis for enhancement of his sentence or had an opportunity to be heard as to the validity of that conviction … . The brief, incidental, logistical comments made by Supreme Court, the clerk and the prosecutor in defendant’s presence during the plea proceedings concerning the existence of a predicate felony statement are insufficient to constitute substantial compliance with CPL 400.15 requirements … . People v Traylor, 2017 NY Slip Op 03111, 1st Dept 4-25-17

CRIMINAL LAW (DEFENDANT NEVER ADMITTED THE PRIOR FELONY CONVICTION AND WAS NEVER PROPERLY NOTIFIED THE PRIOR CONVICTION WOULD BE USED AS A PREDICATE, RESENTENCING REQUIRED)/SECOND FELONY ADJUDICATION (DEFENDANT NEVER ADMITTED THE PRIOR FELONY CONVICTION AND WAS NEVER PROPERLY NOTIFIED THE PRIOR CONVICTION WOULD BE USED AS A PREDICATE, RESENTENCING REQUIRED)

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COURT IMPROPERLY REQUIRED DEFENDANT TO WAIVE HIS RIGHT TO APPEAL, DEFENDANT’S PLEA WAS NOT SUBJECT TO A PLEA BARGAIN.

The Third Department noted that it was improper for County Court to require defendant to waive his right to appeal because there was no agreement associated with his guilty plea:

… [I]it was improper for County Court to require defendant to waive his right to appeal, as the record establishes that “there was no promise, plea agreement, reduced charge, or any other bargain or consideration given to . . . defendant in exchange for his plea” … . As such, defendant’s challenge to the sentence is not precluded. People v Tarver, 2017 NY Slip Op 03079, 3rd Dept 4-20-17

CRIMINAL LAW (COURT IMPROPERLY REQUIRED DEFENDANT TO WAIVE HIS RIGHT TO APPEAL, DEFENDANT’S PLEA WAS NOT SUBJECT TO A PLEA BARGAIN)/APPEALS (CRIMINAL LAW, COURT IMPROPERLY REQUIRED DEFENDANT TO WAIVE HIS RIGHT TO APPEAL, DEFENDANT’S PLEA WAS NOT SUBJECT TO A PLEA BARGAIN)/WAIVER OF APPEAL (CRIMINAL LAW, COURT IMPROPERLY REQUIRED DEFENDANT TO WAIVE HIS RIGHT TO APPEAL, DEFENDANT’S PLEA WAS NOT SUBJECT TO A PLEA BARGAIN)

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COURT REJECTS ARGUMENT DEFENDANT DID NOT CONSENT TO THE RELEASE TO THE PROSECUTION OF RECORDINGS OF HIS PHONE CALLS FROM JAIL.

The Second Department. over a dissent, rejected defendant’s argument that he did not consent to the release to the prosecution of recordings of his phone conversations from jail. Defendant acknowledged he was aware the conversations could be monitored and recorded, but noted that the stated reason for recording in the jail handbook was for jail security. The Second Department instructed that the better practice would be to notify inmates the recordings could be turned over to the prosecution:

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We note that “convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison,” and certainly “pretrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that . . . are enjoyed by convicted prisoners” … . Since any concern that the notice provided to inmates by the DOC is inadequate can be readily ameliorated by an express notification that the recorded calls may be turned over to the District Attorney, the better practice going forward may be for the DOC to include such a warning … . Rather, the trial court must weigh the probative value of the recordings against the potential for prejudice to the defendant … . “[D]ue to the possibility of prejudice inherent in the prosecutor’s use of inmate recordings, the trial judge’s role as gatekeeper remains unchanged and necessary to ensure compliance with constitutional mandates and the usual rules of evidence and criminal procedure” … . People v Diaz, 2017 NY Slip Op 03013, 2nd Dept 4-19-17

CRIMINAL LAW (COURT REJECTS ARGUMENT DEFENDANT DID NOT CONSENT TO THE RELEASE TO THE PROSECUTION OF RECORDINGS OF HIS PHONE CALLS FROM JAIL)/EVIDENCE (CRIMINAL LAW, COURT REJECTS ARGUMENT DEFENDANT DID NOT CONSENT TO THE RELEASE TO THE PROSECUTION OF RECORDINGS OF HIS PHONE CALLS FROM JAIL)/RECORDINGS (CRIMINAL LAW, COURT REJECTS ARGUMENT DEFENDANT DID NOT CONSENT TO THE RELEASE TO THE PROSECUTION OF RECORDINGS OF HIS PHONE CALLS FROM JAIL)

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DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA, MATTER REMITTED, PROCEDURE ON REMITTAL EXPLAINED.

The Second Department sent the matter back because defendant was not informed of the deportation consequences of his guilty plea. The court explained the relevant law and procedure:

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In People v Peque (22 NY3d 168), the Court of Appeals held that, as part of its independent obligation to ascertain whether a defendant is pleading guilty voluntarily, a trial court must alert a noncitizen defendant that he or she may be deported as a consequence of the plea of guilty (see id. at 193). Although no particular litany is required, “[t]he trial court must provide a short, straightforward statement on the record notifying the defendant that, in sum and substance, if the defendant is not a United States citizen, he or she may be deported upon a guilty plea” (id. at 197).

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Here, we agree with the defendant that the County Court did not provide him with such a statement on the record. However, contrary to the defendant’s contention, he is not entitled to reversal of the judgment of conviction at this juncture. In order to withdraw or obtain vacatur of a plea based upon a Peque error, “a defendant must show that there is a reasonable probability that he or she would not have pleaded guilty and would have gone to trial had the trial court informed the defendant of potential deportation” (id. at 198). Accordingly, we remit the matter to the County Court, Suffolk County, to afford the defendant an opportunity to move to vacate his plea, and for a report by the County Court thereafter. Any such motion shall be made by the defendant within 60 days after the date of this decision and order, and upon such motion, the defendant shall have the burden of establishing that there is a “reasonable probability” that he would not have pleaded guilty had the court advised him of the possibility of deportation (id. at 176 ,,, ). In its report to this Court, the County Court shall state whether the defendant moved to vacate his plea of guilty, and if so, shall include its findings as to whether the defendant has made the requisite showing to entitle him to vacatur of the plea … . People v Lopez-Alvarado, 2017 NY Slip Op 03018, 2nd Dept 4-19-17

 

CRIMINAL LAW (DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA, MATTER REMITTED, PROCEDURE ON REMITTAL EXPLAINED)/GUILTY PLEA (DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA, MATTER REMITTED, PROCEDURE ON REMITTAL EXPLAINED)/DEPORTATION (CRIMINAL LAW, GUILTY PLEA, DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA, MATTER REMITTED, PROCEDURE ON REMITTAL EXPLAINED)

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DEFENDANT, WHO WAS CONVICTED IN VIRGINIA OF THE MURDER OF A 15-YEAR-OLD WITH NO SEXUAL COMPONENT, AND WHO WAS REQUIRED TO REGISTER AS A SEX OFFENDER IN VIRGINIA, NEED NOT REGISTER AS A SEX OFFENDER IN NEW YORK.

The First Department, in a full-fledged opinion by Justice Andrias, determined requiring defendant to register as a sex offender in New York based upon the murder of a 15-year-old in Virginia violated defendant’s right to substantive due process. Defendant shot and killed his 15-year-old half sister when he was 19. There was no sexual component to the crime. Upon his release from prison after 25 years, defendant, under Virginia law, was required to register as a sex offender (based on the age of the victim). New York has no similar registration requirement. When defendant relocated to New York he was assessed a level three sex offender in a SORA proceeding:

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…[T]he connection between defendant’s crime and the legislative purpose behind SORA is too attenuated to support finding a legitimate governmental interest in applying Correction Law § 168-a(2)(d)(ii) to defendant. The record does not establish a correlation between the murder of a victim under 15 years of age and the propensity to commit sexual offenses. Thus, the legislative purpose of protecting the public from sex offenders is not served by requiring defendant to register as a sex offender in New York pursuant to section 168-a(2)(d)(ii) solely because he is obligated to do so under a broader Virginia statute, which designates the murder of a person under the age of 15, without a sexual component, as an offense subject to registration in a registry that encompasses both sex crimes and crimes against minors.

Requiring such individuals to register as sex offenders in New York also diminishes the registry’s usefulness by including offenders who bear no meaningful relationship to SORA’s legislative purpose. There is no evidence to suggest that one who commits homicide of a minor in Virginia is more likely to commit a sex offense than one who commits homicide of a minor in New York. The statute also fails to consider the harm caused to the individual who is forced to register, even though he or she has committed a crime that has no sexual component. Being labeled as a sex offender does far more than impose a stigma to one’s reputation. It often results in the offender being subjected to social ostracism and abuse, and impedes the person’s ability to access schooling, employment, housing, and many other areas. People v Diaz, 2017 NY Slip Op 02915, 1st Dept 4-13-17

 

CRIMINAL LAW (DEFENDANT, WHO WAS CONVICTED IN VIRGINIA OF THE MURDER OF A 15-YEAR-OLD WITH NO SEXUAL COMPONENT, AND WHO WAS REQUIRED TO REGISTER AS A SEX OFFENDER IN VIRGINIA, NEED NOT REGISTER AS A SEX OFFENDER IN NEW YORK)/SEX OFFENDER REGISTRATION ACT (SORA)  (DEFENDANT, WHO WAS CONVICTED IN VIRGINIA OF THE MURDER OF A 15-YEAR-OLD WITH NO SEXUAL COMPONENT, AND WHO WAS REQUIRED TO REGISTER AS A SEX OFFENDER IN VIRGINIA, NEED NOT REGISTER AS A SEX OFFENDER IN NEW YORK)

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COUNTY COURT DID NOT HAVE AUTHORITY TO ALLOW AMENDMENT OF CONSPIRACY COUNT BY ADDING AN OVERT ACT, ISSUE HEARD ON APPEAL DESPITE LACK OF PRESERVATION AND FAILURE TO RAISE ON APPEAL.

The Third Department determined County Count did not have the authority to amend a defective conspiracy count by allowing the People to add an overt act. The court entertained the issue even though it was not preserved and it was not raised on appeal. The Third Department had made the same ruling in the codefendant’s (Placido’s) appeal:

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In connection with Placido’s appeal, this Court has held that count 2 of the indictment was jurisdictionally defective and that County Court lacked the authority to grant the People’s motion to amend that count … ). In light of the fact that count 2 of the indictment was identical in respect to Placido and defendant, it necessarily follows that this Court’s holding in People v Placido … applies with equal force to defendant. Accordingly, notwithstanding the fact that defendant did not raise this issue before County Court and does not raise it on appeal, we exercise our interest of justice jurisdiction and reverse defendant’s conviction for conspiracy in the fourth degree. People v Deleon, 2017 NY Slip Op 02848, 3rd Dept 4-13-17

CRIMINAL LAW (COUNTY COURT DID NOT HAVE AUTHORITY TO ALLOW AMENDMENT OF CONSPIRACY COUNT BY ADDING AN OVERT ACT, ISSUE HEARD ON APPEAL DESPITE LACK OF PRESERVATION AND FAILURE TO RAISE ON APPEAL)/APPEALS (CRIMINAL LAW, COUNTY COURT DID NOT HAVE AUTHORITY TO ALLOW AMENDMENT OF CONSPIRACY COUNT BY ADDING AN OVERT ACT, ISSUE HEARD ON APPEAL DESPITE LACK OF PRESERVATION AND FAILURE TO RAISE ON APPEAL)/INDICTMENTS (COUNTY COURT DID NOT HAVE AUTHORITY TO ALLOW AMENDMENT OF CONSPIRACY COUNT BY ADDING AN OVERT ACT, ISSUE HEARD ON APPEAL DESPITE LACK OF PRESERVATION AND FAILURE TO RAISE ON APPEAL)

STATUTE PROHIBITING CRIMINAL POSSESSION OF A WEAPON AS AN ACT OF TERRORISM NOT PREEMPTED BY FEDERAL LAW AND NOT UNCONSTITUTIONAL.

The First Department determined the statute prohibiting criminal possession of a weapon as an act of terrorism was not preempted by federal law and was not unconstitutional:

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Defendant has not met his burden of showing a “clear and unambiguous” congressional intent to preempt state legislation in the field of counterterrorism … . The statute is not expressly preempted by 18 USC § 2338, which states that federal district courts have exclusive jurisdiction over actions brought under 18 USC part I, chapter 113B. Although Penal Law § 490.25(1) uses language substantially identical to the federal definition of “domestic terrorism” (18 USC § 2331[5]), the Penal Law provision is a separate statute limited to the commission of enumerated state offenses.

Defendant also fails to establish implied federal preemption of state counterterrorism laws. Since a local community will typically be the most directly affected by a terrorist attack there … , the “federal interest” in counterterrorism is not “so dominant” as to “preclude” local enforcement of state laws against attempts to commit terrorist attacks … . Moreover, Congress has not enacted “a framework of regulation so pervasive” as to leave “no room for the States to supplement it” … . This is evident from the strong federal policy of cooperating with state and local governments to combat terrorism … .

The statute is not unconstitutionally vague in proscribing the “intent to intimidate or coerce a civilian population” … , in light of the Court of Appeals’ construction of the emphasized phrase in People v Morales (20 NY3d 240, 247-249 [2012]). Defendant’s arguments that the statute is unconstitutionally vague in using the phrase “unit of government” among other terms are likewise unpersuasive … .

We also reject defendant’s challenges to the statute under the Free Speech Clause of the First Amendment and article I, § 8 of the New York Constitution. We are unpersuaded by defendant’s argument that the statute amounts to an impermissible content-based restriction of speech by increasing the felony level and sentencing range imposed on those who commit an enumerated criminal offense with the “intent to intimidate or coerce a civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by murder, assassination or kidnapping” … . Such heightened punishment for defendant’s admitted intent of, among other things, influencing the United States government’s foreign policy by building and possessing a pipe bomb does not infringe his right to free speech … . Moreover, defendant’s argument that the statute is overbroad in chilling political speech is unavailing, since any overbreadth is not “substantial . . . in relation to the statute’s plainly legitimate sweep” … of prohibiting criminal conduct perpetrated with an intent commonly associated with terrorism … . People v Pimentel, 2017 NY Slip Op 02891, 1st Dept 4-13-17

 

CRIMINAL LAW (STATUTE PROHIBITING CRIMINAL POSSESSION OF A WEAPON AS AN ACT OF TERRORISM NOT PREEMPTED BY FEDERAL LAW AND NOT UNCONSTITUTIONAL)/TERRORISM, CRIMINAL POSSESSION OF A WEAPON AS AN ACT OF (STATUTE PROHIBITING CRIMINAL POSSESSION OF A WEAPON AS AN ACT OF TERRORISM NOT PREEMPTED BY FEDERAL LAW AND NOT UNCONSTITUTIONAL)/CRIMINAL POSSESSION OF A WEAPON AS AN ACT OF TERRORISM  (STATUTE PROHIBITING CRIMINAL POSSESSION OF A WEAPON AS AN ACT OF TERRORISM NOT PREEMPTED BY FEDERAL LAW AND NOT UNCONSTITUTIONAL)

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SEX OFFENDERS HAVE A RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN MENTAL HYGIENE LAW ARTICLE 10 PROCEEDINGS.

The Second Department determined a respondent in a Mental Hygiene Law article 10 proceeding (re: civil commitment of sex offenders) has a right to effective assistance of counsel (not usually the case in a civil proceeding). Respondent’s writ of error coram nobis, alleging ineffective assistance, however, was denied on the merits:

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Generally, in the context of civil litigation, an attorney’s errors or omissions are binding on the client and a claim of ineffective assistance of counsel will not be entertained in the absence of extraordinary circumstances … . However, a respondent in a Mental Hygiene Law article 10 proceeding has a statutory right to counsel …  and, as in proceedings pursuant to the Sex Offender Registration Act (Correction Law art 6-C) and certain Family Court proceedings, the consequences of an unfavorable determination in these particular civil proceedings are uniquely severe … . Indeed, a respondent in a Mental Hygiene Law article 10 proceeding “arguably faces an even more severe threat to his or her liberty than that faced by a criminal defendant. When successfully litigated by the State, such a proceeding can result in civil confinement, after a respondent is released from prison, which is involuntary and indefinite, and can last the remainder of a respondent’s life” … . Further, a respondent’s statutory right to counsel in a Mental Hygiene Law article 10 proceeding would be eviscerated if counsel were ineffective… .  Thus, a claim of ineffective assistance of counsel may be raised in a Mental Hygiene Law article 10 proceeding … . Matter of State of New York v Wayne J., 2017 NY Slip Op 02798, 2nd Dept 4-12-17

MENTAL HYGIENE LAW (SEX OFFENDERS HAVE A RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN MENTAL HYGIENE LAW ARTICLE 10 PROCEEDINGS)/ATTORNEYS (MENTAL HYGIENE LAW, SEX OFFENDERS HAVE A RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN MENTAL HYGIENE LAW ARTICLE 10 PROCEEDINGS)/SEX OFFENDERS (MENTAL HYGIENE LAW, SEX OFFENDERS HAVE A RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN MENTAL HYGIENE LAW ARTICLE 10 PROCEEDINGS)

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