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CROSSING THE CENTER LINE AND TRAVELING IN THE ONCOMING LANE PROVIDED PROBABLE CAUSE FOR THE VEHICLE STOP, GRANT OF MOTION TO SUPPRESS REVERSED.

The Fourth Department, reversing County Court, determined there was probable cause for the stop in this DWI case. Defendant was observed the deputy driving in the oncoming traffic lane for two tenths of a mile:

We agree with the People that the stop was based on probable cause and thus that County Court erred in granting that part of defendant’s motion seeking suppression. The arresting deputy testified at the Dunaway hearing that he personally observed defendant’s vehicle cross the center line and proceed into the lane for oncoming traffic. The vehicle remained in that lane for approximately two-tenths of a mile, in violation of Vehicle and Traffic Law § 1120 (a). Thus, the deputy, having personally observed the violation, had probable cause to stop the vehicle … . Once the deputy effectuated the stop, he noticed that defendant’s eyes were watery and bloodshot, and he smelled the strong odor of alcohol on her breath. He conducted a series of field sobriety tests, all of which defendant failed. Thus, the deputy had probable cause to arrest defendant for driving while intoxicated ,,, , People v Lewis, 2017 NY Slip Op 01059, 4th Dept 2-10-17

CRIMINAL LAW (CROSSING THE CENTER LINE AND TRAVELING IN THE ONCOMING LANE PROVIDED PROBABLE CAUSE FOR THE VEHICLE STOP, GRANT OF MOTION TO SUPPRESS REVERSED)/VEHICLE STOPS (CROSSING THE CENTER LINE AND TRAVELING IN THE ONCOMING LANE PROVIDED PROBABLE CAUSE FOR THE VEHICLE STOP, GRANT OF MOTION TO SUPPRESS REVERSED)

JUDGE DID NOT PUT ON THE RECORD THE REASONS FOR DENIAL OF YOUTHFUL OFFENDER STATUS, CASE REMITTED.

The Fourth Department remitted the case to Supreme Court because the reasons for denial of youthful offender status were not put on the record:

Where, as here, “a defendant has been convicted of an armed felony or an enumerated sex offense pursuant to CPL 720.10 (2) (a) (ii) or (iii), and the only barrier to his or her youthful offender eligibility is that conviction, the court is required to determine on the record whether the defendant is an eligible youth by considering the presence or absence of the factors set forth in CPL 720.10 (3). The court must make such a determination on the record even where [the] defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request’ pursuant to a plea bargain . . . If the court determines, in its discretion, that neither of the CPL 720.10 (3) factors exist and states the reasons for that determination on the record, no further determination by the court is required. If, however, the court determines that one or more of the CPL 720.10 (3) factors are present, and the defendant is therefore an eligible youth, the court then must determine whether or not the eligible youth is a youthful offender’ ” … . People v Dukes, 2017 NY Slip Op 01105, 4th Dept 2-10-17

CRIMINAL LAW (JUDGE DID NOT PUT ON THE RECORD THE REASONS FOR DENIAL OF YOUTHFUL OFFENDER STATUS, CASE REMITTED)/YOUTHFUL OFFENDER (JUDGE DID NOT PUT ON THE RECORD THE REASONS FOR DENIAL OF YOUTHFUL OFFENDER STATUS, CASE REMITTED)

LATE REQUEST TO EXERCISE A PEREMPTORY CHALLENGE TO A JUROR SHOULD NOT HAVE BEEN DENIED, CONVICTION REVERSED.

The Fourth Department, reversing defendant’s conviction, determined defense counsel’s late request to exercise a peremptory challenge to a juror should not have been denied:

Here, defense counsel momentarily lost count of the number of jurors who had been selected. As a result, defense counsel declined to exercise a peremptory challenge to prospective juror 21. When informed that prospective juror 21 was the 12th juror seated, defense counsel immediately asked the court to allow defendant to exercise his last peremptory challenge to that juror. The jury had not yet been sworn, the panel from which the alternates would be selected had not yet been called, and prospective juror 21 had not yet been informed that he had been selected. Furthermore, the People expressly declined to object to the request. Under the circumstances of this case, we conclude that the court abused its discretion in denying defendant’s request. Indeed, ” we can detect no discernable interference or undue delay caused by [defense counsel’s] momentary oversight . . . that would justify [the court’s] hasty refusal to entertain [the] challenge’ ” … . Such an error cannot be deemed harmless … . People v Scerbo, 2017 NY Slip Op 01073, 4th Dept 2-10-17

CRIMINAL LAW (LATE REQUEST TO EXERCISE A PEREMPTORY CHALLENGE TO A JUROR SHOULD NOT HAVE BEEN DENIED, CONVICTION REVERSED)/JURORS (CRIMINAL LAW, LATE REQUEST TO EXERCISE A PEREMPTORY CHALLENGE TO A JUROR SHOULD NOT HAVE BEEN DENIED, CONVICTION REVERSED)/PEREMPTORY CHALLENGE CRIMINAL LAW, JURORS, (LATE REQUEST TO EXERCISE A PEREMPTORY CHALLENGE TO A JUROR SHOULD NOT HAVE BEEN DENIED, CONVICTION REVERSED)

PLACE OF BUSINESS EXCEPTION TO CRIMINAL POSSESSION OF A WEAPON DID NOT APPLY WHERE DEFENDANT’S EMPLOYER PROHIBITED POSSESSION OF FIREARMS IN THE WORKPLACE.

The Fourth Department, over a dissent, determined defendant was not entitled to the exception to the criminal possession of a weapon statute for possession in a person’s “place of business” (reducing the offense to a misdemeanor). Here defendant brought a firearm to work at McDonald’s and shot himself in the leg. The court reasoned the “place of business” exception did not apply because McDonald’s prohibited its employees from carrying firearms:

Although the “place of business” exception is not statutorily defined, it has been “construed narrowly by the courts in an effort to balance the State’s strong policy to severely restrict possession of any firearm’ . . . with its policy to treat with leniency persons attempting to protect certain areas in which they have a possessory interest and to which members of the public have limited access” … . Inasmuch as the evidence at trial established that defendant was prohibited from bringing a gun to work, we conclude that to permit defendant to be subjected only to a misdemeanor “would certainly controvert the meaning and intent of the statute” … . People v Wallace, 2017 NY Slip Op 01071, 4th Dept 2-10-17

CRIMINAL LAW (PLACE OF BUSINESS EXCEPTION TO CRIMINAL POSSESSION OF A WEAPON DID NOT APPLY WHERE DEFENDANT’S EMPLOYER PROHIBITED POSSESSION OF FIREARMS IN THE WORKPLACE)/WEAPONS, CRIMINAL POSSESSION (PLACE OF BUSINESS EXCEPTION TO CRIMINAL POSSESSION OF A WEAPON DID NOT APPLY WHERE DEFENDANT’S EMPLOYER PROHIBITED POSSESSION OF FIREARMS IN THE WORKPLACE)

DEFENDANT SHOULD HAVE BEEN ALLOWED TO TESTIFY BEFORE THE GRAND JURY EVEN THOUGH THE REQUEST WAS MADE AFTER THE GRAND JURY HAD VOTED TO INDICT.

The Fourth Department, reversing County Court, determined defendant was entitled to testify before the grand jury, even though his request was received by the district attorney after deadlines had passed and after the grand jury had voted to indictment (but before filing of the indictment):

As the Court of Appeals has noted, a defendant has a right “under CPL 190.50 (5) (a) to provide notice and, therefore, the concomitant right to give testimony even perhaps after an indictment has been voted but before it is filed” … . Where, as here, defendant’s request to testify is received after the grand jury has voted, but before the filing of the indictment, defendant is entitled to a reopening of the proceeding to enable the grand jury to hear defendant’s testimony and to revote the case, if the grand jury be so advised … . People v White, 2017 NY Slip Op 01070, 4th Dept 2-10-17

CRIMINAL LAW (DEFENDANT SHOULD HAVE BEEN ALLOWED TO TESTIFY BEFORE THE GRAND JURY EVEN THOUGH THE REQUEST WAS MADE AFTER THE GRAND JURY HAD VOTED TO INDICT)/GRAND JURY (DEFENDANT SHOULD HAVE BEEN ALLOWED TO TESTIFY BEFORE THE GRAND JURY EVEN THOUGH THE REQUEST WAS MADE AFTER THE GRAND JURY HAD VOTED TO INDICT)

INSUFFICIENT PROOF GUNSHOT CAUSED SERIOUS PHYSICAL INJURY, ASSAULT FIRST CONVICTION REDUCED TO ASSAULT SECOND.

The Fourth Department reduced defendant’s conviction from assault first to assault second based upon insufficient proof of serious physical injury. The victim was shot in the leg:

Although the victim displayed to the jury scars on his leg caused by his gunshot wounds, “the record does not contain any pictures or descriptions of what the jury saw so as to prove that these scars constitute serious or protracted disfigurement” … . Furthermore, although the victim testified that he “feel[s] pain in [his] leg” in cold weather, we conclude that such testimony does not constitute evidence of persistent pain so severe as to cause “protracted impairment of health” … . People v Romero, 2017 NY Slip Op 01069, 4th Dept 2-10-17

CRIMINAL LAW (INSUFFICIENT PROOF GUNSHOT CAUSED SERIOUS PHYSICAL INJURY, ASSAULT FIRST CONVICTION REDUCED TO ASSAULT SECOND)/ASSAULT (CRIMINAL LAW, INSUFFICIENT PROOF GUNSHOT CAUSED SERIOUS PHYSICAL INJURY, ASSAULT FIRST CONVICTION REDUCED TO ASSAULT SECOND)/SERIOUS PHYSICAL INJURY (CRIMINAL LAW, ASSSAULT, INSUFFICIENT PROOF GUNSHOT CAUSED SERIOUS PHYSICAL INJURY, ASSAULT FIRST CONVICTION REDUCED TO ASSAULT SECOND)

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ELEMENTS OF OFFICIAL MISCONDUCT, MALFEASANCE AND NONFEASANCE, EXPLAINED; COCONSPIRATOR STATEMENTS MADE BEFORE A DEFENDANT JOINS A CONSPIRACY AND AFTER A DEFENDANT LEAVES A CONSPIRACY ARE ADMISSIBLE.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, affirmed the conviction of a Nassau County Police Department detective on two counts of official misconduct and conspiracy. The opinion is too detailed to fairly summarize here. The charges stemmed from allegations defendant participated in an attempt to prevent the arrest of the son of a prominent supporter of the police department. It was alleged the supporter's son stole electronic equipment from his high school. Despite many attempts by members of the police department to have the high school withdraw the charges, the school refused. The opinion explains in detail the proof requirements for official misconduct, based upon malfeasance and nonfeasance. In a question of first impression, the Court of Appeals ruled that statements made by coconspirators before a defendant joins the conspiracy and after a defendant leaves the conspiracy are admissible:

We now hold that when a conspirator subsequently joins an ongoing conspiracy, any previous statements made by his or her coconspirators in furtherance of the conspiracy are admissible against the conspirator pursuant to the coconspirator exception to the hearsay rule. …

We further conclude, in line with federal case law, that statements made after a conspirator's alleged active involvement in the conspiracy has ceased, but the conspiracy continues, are admissible unless this conspirator has unequivocally communicated his or her withdrawal from the conspiracy to the coconspirators … . People v Flanagan, 2017 NY Slip Op 01018. CtApp 2-9-17

CRIMINAL LAW (ELEMENTS OF OFFICIAL MISCONDUCT, MALFEASANCE AND NONFEASANCE, EXPLAINED, COCONSPIRATOR STATEMENTS MADE BEFORE A DEFENDANT JOINS A CONSPIRACY AND AFTER A DEFENDANT LEAVES A CONSPIRACY ARE ADMISSIBLE)/EVIDENCE (CRIMINAL LAW, COCONSPIRATOR STATEMENTS MADE BEFORE A DEFENDANT JOINS A CONSPIRACY AND AFTER A DEFENDANT LEAVES A CONSPIRACY ARE ADMISSIBLE)/CONSPIRACY (CRIMINAL LAW, COCONSPIRATOR STATEMENTS MADE BEFORE A DEFENDANT JOINS A CONSPIRACY AND AFTER A DEFENDANT LEAVES A CONSPIRACY ARE ADMISSIBLE)/OFFICIAL MISCONDUCT (ELEMENTS OF OFFICIAL MISCONDUCT, MALFEASANCE AND NONFEASANCE, EXPLAINED)

NO EVIDENCE JURY COULD SEE ORANGE CORRECTIONS DEPARTMENT PANTS WORN BY DEFENDANT ON THE FIRST DAY OF TRIAL, DEFENDANT NOT DENIED A FAIR TRIAL.

The Court of Appeals determined the fact that defendant appeared on the first day of the trial wearing orange sweat pants issued by the department of corrections did not require reversal. There was no evidence the jury could see the defendant's legs:

Under the circumstances described here by the trial judge on the record, there is no merit to defendant's contention that he was denied a fair trial because he was compelled to appear before the jury in correctional garb. We have previously held that “to require [a defendant] to appear in convict's attire — a continuing visual communication to the jury — is to deny” the defendant the right to appear “with the dignity and self-respect of a free and innocent” person … , consistent with the Supreme Court's holding that “[t]he State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes” … . These concerns are not implicated here, however, where there is no evidence that defendant's orange correctional pants were visible to the jury and the clothing that was visible to the jury was clearly not identifiable as correctional garb … . People v Then, 2017 NY Slip Op 01021, CtApp 2-9-17

CRIMINAL LAW (NO EVIDENCE JURY COULD SEE ORANGE CORRECTIONS DEPARTMENT PANTS WORN BY DEFENDANT ON THE FIRST DAY OF TRIAL, DEFENDANT NOT DENIED A FAIR TRIAL)/PRISON CLOTHES (CRIMINAL LAW, (NO EVIDENCE JURY COULD SEE ORANGE CORRECTIONS DEPARTMENT PANTS WORN BY DEFENDANT ON THE FIRST DAY OF TRIAL, DEFENDANT NOT DENIED A FAIR TRIAL)

FAILURE TO READBACK THE CROSS OF AN IMPORTANT WITNESS PURSUANT TO THE JURY’S REQUEST REQUIRED REVERSAL IN THE INTEREST OF JUSTICE.

The Second Department, in a case remitted after reversal by the Court of Appeals, determined the trial judge’s failure to respond to the deliberating jury’s request for a witness’s (Richard’s) testimony by reading both the direct and the cross deprived defendant of a fair trial. The Second Department had previously found the error to be a mode of proceedings error that required reversal in the absence of an objection. The Court of Appeals held the error was not a mode of proceedings error. On remand the Second Department addressed the unpreserved error in the interest of justice:

Although the defendant’s contentions regarding the jury note are unpreserved for appellate review, as no objections were raised (see CPL 470.05[2]), we reach them in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a]). Under the circumstances of this case, the trial court’s failure to meaningfully respond to the jury note requesting a readback of Richards’ testimony deprived the defendant of a fair trial … . ” [A] request for a reading of testimony generally is presumed to include cross-examination which impeaches the testimony to be read back, and any such testimony should be read to the jury unless the jury indicates otherwise'” ,,, . Richards was the only witness to the argument and the shooting, other than the complainant and the defendant. Richards’ cross-examination testimony included testimony that was relevant to the defense, directly impeached significant portions of his direct examination testimony, and was detrimental to the prosecution. As a result, the trial court’s readback of only Richards’ direct examination testimony in response to the jury’s request seriously prejudiced the defendant … . People v Morris, 2017 NY Slip Op 01007, 2nd Dept 2-8-17

CRIMINAL LAW (FAILURE TO READBACK THE CROSS OF AN IMPORTANT WITNESS PURSUANT TO THE JURY’S REQUEST REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/JURY NOTES (CRMINAL LAW, FAILURE TO READBACK THE CROSS OF AN IMPORTANT WITNESS PURSUANT TO THE JURY’S REQUEST REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)

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ATTEMPTED FIRST DEGREE MURDER CONVICTIONS PRECLUDED BY FAILURE TO PROVE THE 38-YEAR-OLD DEFENDANT WAS MORE THAN 18 YEARS OLD, RECKLESS ENDANGERMENT FIRST DEGREE CONVICTION NOT SUPPORTED BY PROOF OF A GRAVE RISK OF DEATH.

The Fourth Department determined the failure to offer any proof the 38-year-old defendant was more than 18 years old precluded conviction of attempted first degree murder (defendant shot at police officers). The convictions were reduced to attempted second degree murder. The Fourth Department further determined the reckless endangerment first degree was not supported by sufficient evidence that the passenger in defendant’s vehicle was exposed to a “grave risk of death” when defendant rammed a police vehicle. The conviction was reduced to recklessd endangerment second degree:

As the People correctly concede, however, the evidence is legally insufficient to establish that defendant was more than 18 years old at the time of the crimes. Although defendant failed to preserve that contention for our review … , we exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Defendant was in fact 38 years old at the time of the crimes in September 2011, and the jury naturally had the opportunity to observe his appearance during his trial in 2012, but that opportunity “does not, by itself, satisfy the People’s obligation to prove defendant’s age” … , and there was no evidence at trial bearing on his age … . The evidence is sufficient to establish that defendant intended to kill each of the officers … , and we reject defendant’s further contention that the verdict is against the weight of the evidence with respect to his intent … . We therefore modify the judgment by reducing the conviction under counts one and two to attempted murder in the second degree (§§ 110.00, 125.25 [1]), and we remit the matter to County Court for sentencing on those counts. * * *

There was evidence that defendant “rammed” the side of the police vehicle with the part of his truck in which his girlfriend was sitting, but neither officer could estimate how fast defendant was going at impact, and the relatively short distance he traveled toward the police vehicle tended to show that he could not have been going very fast. Furthermore, both vehicles remained operable after the collision, and there was no evidence that anyone sustained any injury from it. Even viewing the evidence in the light most favorable to the People … , we conclude that it is legally insufficient to establish that the collision created a grave risk of death to defendant’s girlfriend … . People v VanGorden, 2017 NY Slip Op 00877, 4th Dept 2-3-17

 

CRIMINAL LAW (ATTEMPTED FIRST DEGREE MURDER CONVICTIONS PRECLUDED BY FAILURE TO PROVE THE 38-YEAR-OLD DEFENDANT WAS MORE THAN 18 YEARS OLD, RECKLESS ENDANGERMENT FIRST DEGREE CONVICTION NOT SUPPORTED BY PROOF OF A GRAVE RISK OF DEATH)/EVIDENCE (CRIMINAL LAW, ATTEMPTED FIRST DEGREE MURDER CONVICTIONS PRECLUDED BY FAILURE TO PROVE THE 38-YEAR-OLD DEFENDANT WAS MORE THAN 18 YEARS OLD, RECKLESS ENDANGERMENT FIRST DEGREE CONVICTION NOT SUPPORTED BY PROOF OF A GRAVE RISK OF DEATH)

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