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JOINDER OF DEFENDANT AND CO-DEFENDANT FOR TRIAL WAS LAWFUL BUT, BECAUSE OF IRRECONCILABLE DEFENSES, JOINDER RESULTED IN DENIAL OF DEFENDANT’S RIGHT TO A FAIR TRIAL.

The Second Department, reversing defendant’s conviction, determined defendant should not have been jointly tried with a co-defendant because of an irreconcilable conflict between his defense, and that of the co-defendant:

Where, as here, joinder is lawful, because the defendant and the codefendant were “jointly charged with every offense alleged” in their separate indictments, and “all the offenses charged [were] based upon the same criminal transaction” … , a defendant’s motion for a separate trial is “addressed to the discretion of the trial court, which may for good cause shown’ order severance. Good cause under the statute includes, but is not limited to, a finding that a defendant will be unduly prejudiced by a joint trial'” … . “[A] strong public policy favors joinder, because it expedites the judicial process, reduces court congestion, and avoids the necessity of recalling witnesses” … . However, “compromise of a defendant’s fundamental right to a fair trial free of undue prejudice as the quid pro quo for the mere expeditious disposition of criminal cases will not be tolerated” … . ” [S]everance is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant’s guilt'” … . People v Lessane, 2016 NY Slip Op 05765, 2nd Dept 8-10-16

CRIMINAL LAW (JOINDER OF DEFENDANT AND CO-DEFENDANT FOR TRIAL WAS LAWFUL BUT, BECAUSE OF IRRECONCILABLE DEFENSES, JOINDER RESULTED IN DENIAL OF DEFENDANT’S RIGHT TO A FAIR TRIAL)/EVIDENCE (CRIMINAL LAW, JOINDER OF DEFENDANT AND CO-DEFENDANT FOR TRIAL WAS LAWFUL BUT, BECAUSE OF IRRECONCILABLE DEFENSES, JOINDER RESULTED IN DENIAL OF DEFENDANT’S RIGHT TO A FAIR TRIAL)/JOINDER (CRIMINAL LAW, JOINDER OF DEFENDANT AND CO-DEFENDANT FOR TRIAL WAS LAWFUL BUT, BECAUSE OF IRRECONCILABLE DEFENSES, JOINDER RESULTED IN DENIAL OF DEFENDANT’S RIGHT TO A FAIR TRIAL)

PAT-DOWN SEARCH AFTER VEHICLE STOP OKAY, CRITERIA EXPLAINED.

The Second Department, affirming the denial of defendant’s suppression motion, explained the analytical criteria for a pat-down search of defendant’s person after a vehicle stop:

“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” … . However, a police officer’s questions regarding whether an individual has a weapon is a common-law inquiry which must be supported by founded suspicion … . In addition, a pat-down search of a suspect’s outer clothing is reasonable and constitutionally permissible when an officer observes facts and circumstances that give rise to a reasonable suspicion that a person is armed or poses a threat to his or her safety … . Among the factors relevant to determining whether a pat-down search is justified are “the substance and reliability of the report that brought the officers to the scene, the nature of the crime that the police are investigating, the suspect’s behavior and the shape, size, and location of any bulges in the suspect’s clothing” … .

Under the circumstances of this case, including, among other things, the time of night, the fact that the livery cab in which the defendant was a passenger was speeding, the neighborhood, the officer’s observations of the defendant make what he interpreted as a furtive movement indicating that he was hiding something, the defendant’s refusal to answer questions or look at the officer in comparison to the other passenger’s animated responses, and the abnormal bulge in an unusual spot near the defendant’s groin, the officer was justified in inquiring about the bulge and performing the minimally intrusive measure of touching the bulge to verify that it was, in fact, a gun and not, as the defendant stated, cash … . People v Graves, 2016 NY Slip Op 05763, 2nd Dept 8-10-16

 

CRIMINAL LAW (PAT-DOWN SEARCH AFTER VEHICLE STOP OKAY, CRITERIA EXPLAINED)/SEARCHES AND SEIZURES (PAT-DOWN SEARCH AFTER VEHICLE STOP OKAY, CRITERIA EXPLAINED)/VEHICLE STOPS (CRIMINAL LAW, (PAT-DOWN SEARCH AFTER VEHICLE STOP OKAY, CRITERIA EXPLAINED)

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DEFENDANT’S ACTIONS UPON SEEING THE POLICE IN A HOUSING AUTHORITY BUILDING FREQUENTED BY TRESPASSERS JUSTIFIED INITIAL QUESTIONING; REMAND OF PRIOR CONVICTION FOR YOUTHFUL OFFENDER DETERMINATION DID NOT ALTER DATE OF THAT CONVICTION FOR PREDICATE-FELONY PURPOSES.

The First Department, over a two-justice dissent, determined: (1) the police were justified in following and questioning defendant who “retreated” into an elevator of a New York City Housing Authority (NYCHA) building upon seeing the police; (2) the defendant’s refusal to tell the police whether he lived in the building and a bulge in defendant’s clothing justified pulling up defendant’s sleeve, which revealed the tip of a machete; (3) the show up identification by a recent robbery victim was proper; (4) and remanding a prior conviction for a youthful offender determination  did not affect use of the prior conviction as a predicate felony in the current proceeding. The depth of the discussion of these issues cannot be fairly summarized here. The fact that the NYCHA building was a high crime area and was frequented by trespassers was deemed to justify the initial approach by the police to determine if defendant lived in the building:

 

… [T]he building’s trespass history, together with defendant’s apparently panicked attempt to avoid contact with them upon their attempt to enter the elevator, gave the officers the right to inquire of defendant. * * *

… [D]efendant is entitled to vacatur of his sentence for the earlier assault conviction and to a resentencing that considers whether he qualifies for youthful offender status … . Nevertheless, defendant is not entitled to vacatur of the sentence for the robbery conviction. It is true that, for a prior conviction to serve as a predicate violent felony conviction, “[s]entence upon such prior conviction must have been imposed before commission of the present felony” … . However, we find that a remand for an adjudication of youthful offender status is, for purposes of determining such sequentiality, analogous to a remand for the imposition of postrelease supervision under People v Sparber (10 NY3d 457 [2008]). A Sparber resentencing has been held not to upset sequentiality for purposes of determining whether the conviction for which the remand was ordered can serve as a predicate for multiple felony offender status … . People v Perez, 2016 NY Slip Op 05730, 1st Dept 8-4-16

CRIMINAL LAW (DEFENDANT’S ACTIONS UPON SEEING THE POLICE IN A HOUSING AUTHORITY BUILDING FREQUENTED BY TRESPASSERS JUSTIFIED INITIAL QUESTIONING; REMAND OF PRIOR CONVICTION FOR YOUTHFUL OFFENDER DETERMINATION DID NOT ALTER DATE OF THAT CONVICTION FOR PREDICATE-FELONY PURPOSES)/STREET STOPS (DEFENDANT’S ACTIONS UPON SEEING THE POLICE IN A HOUSING AUTHORITY BUILDING FREQUENTED BY TRESPASSERS JUSTIFIED INITIAL QUESTIONING)/SENTENCING (REMAND OF PRIOR CONVICTION FOR YOUTHFUL OFFENDER DETERMINATION DID NOT ALTER DATE OF THAT CONVICTION FOR PREDICATE-FELONY PURPOSES)/SECOND FELONY OFFENDERS (REMAND OF PRIOR CONVICTION FOR YOUTHFUL OFFENDER DETERMINATION DID NOT ALTER DATE OF THAT CONVICTION FOR PREDICATE-FELONY PURPOSES)/YOUTHFUL OFFENDER DETERMINATION (REMAND OF PRIOR CONVICTION FOR YOUTHFUL OFFENDER DETERMINATION DID NOT ALTER DATE OF THAT CONVICTION FOR PREDICATE-FELONY PURPOSES)

PROTECTIVE SWEEP WHICH UNCOVERED METH LAB NOT JUSTIFIED; MIRANDIZED STATEMENTS NOT SUFFICIENTLY ATTENUATED FROM IMPROPER QUESTIONING; SUPPRESSION SHOULD HAVE BEEN GRANTED.

The Third Department determined meth-lab evidence and defendant’s Mirandized statements should have been suppressed. The police were called to an apartment and heard the sounds of a physical altercation inside. The police opened the unlocked door and separated the two men who were fighting. Defendant then came out the bathroom and was asked to sit down. The officers heard someone in the back bedroom which defendant rented. Defendant told the police his wife was in the back bedroom. The officers knocked on the locked bedroom door and defendant’s wife said she had to get dressed. She then came out of the bedroom into the living room. One of officers smelled a chemical odor in the back bedroom, went in, lifted up a shirt and found the meth lab equipment. The Third Department held that a protective sweep of the back bedroom was not justified (the concurrence disagreed). In addition the Third Department determined the People did not demonstrate defendant’s Mirandized statements were sufficiently attenuated from the improper questioning of the defendant at the apartment. With regard to the protective sweep, the court wrote:

… [T]he question is whether, on these facts, the officers were entitled to enter and look under clothing in defendant’s bedroom as part of a protective sweep, which “is a quick and limited search of premises . . . conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding” … . Recognizing the dangers faced by police officers who enter homes, the Supreme Court of the United States has held that officers may, “as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched” … . Beyond that precautionary measure, the Court held that, to conduct a further protective sweep, “there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene” … . People v Harris, 2016 NY Slip Op 05670, 3rd Dept 7-28-16

 

CRIMINAL LAW (PROTECTIVE SWEEP WHICH UNCOVERED METH LAB NOT JUSTIFIED; MIRANDIZED STATEMENTS NOT SUFFICIENTLY ATTENUATED FROM IMPROPER QUESTIONING; SUPPRESSION SHOULD HAVE BEEN GRANTED)/SUPPRESSION (PROTECTIVE SWEEP WHICH UNCOVERED METH LAB NOT JUSTIFIED; MIRANDIZED STATEMENTS NOT SUFFICIENTLY ATTENUATED FROM IMPROPER QUESTIONING; SUPPRESSION SHOULD HAVE BEEN GRANTED)/SEARCH AND SEIZURE (PROTECTIVE SWEEP WHICH UNCOVERED METH LAB NOT JUSTIFIED; MIRANDIZED STATEMENTS NOT SUFFICIENTLY ATTENUATED FROM IMPROPER QUESTIONING; SUPPRESSION SHOULD HAVE BEEN GRANTED)/STATEMENTS (CRIMINAL LAW, MIRANDIZED STATEMENTS NOT SUFFICIENTLY ATTENTUATED FROM IMPROPER QUESTIONING; SUPPRESSION SHOULD HAVE BEEN GRANTED)/ATTENUATION (CRIMINAL LAW, MIRANDIZED STATEMENTS NOT SUFFICIENTLY ATTENUATED FROM IMPROPER QUESTIONING; SUPPRESSION SHOULD HAVE BEEN GRANTED)

OKLAHOMA FIREARM STATUTE DOES NOT HAVE AN OPERABILITY ELEMENT AND CANNOT THEREFORE SERVE AS A PREDICATE FELONY IN NEW YORK.

The Third Department determined the Oklahoma statute prohibiting possession of a firearm could not be used as a predicate felony in New York. The Oklahoma statute does not have an operability element. In New York operability is a required element:

County Court erred in sentencing defendant as a second felony offender, as the elements of his predicate Oklahoma felony were not “equivalent to those of a New York felony” … . As relevant here, the inquiry regarding equivalency is “limited to a comparison of the crimes’ elements as they are respectively defined in the foreign and New York penal statutes” … . Defendant was previously convicted under an Oklahoma statute prohibiting possession of a firearm by a felon; however, operability is not a required element of the Oklahoma statute … . In New York “[o]perability is a required element of the crime of criminal possession of a handgun, rifle or shotgun” … . Thus, as the comparable New York statute requires an element that the Oklahoma crime does not, defendant’s Oklahoma conviction cannot support a finding that he was a second felony offender … . People v Gibson, 2016 NY Slip Op 05668, 3rd Dept 7-28-16

CRIMINAL LAW (OKLAHOMA FIREARM STATUTE DOES NOT HAVE AN OPERABILITY ELEMENT AND CANNOT THEREFORE SERVE AS A PREDICATE FELONY IN NEW YORK)/PREDICATE FELONY (OKLAHOMA FIREARM STATUTE DOES NOT HAVE AN OPERABILITY ELEMENT AND CANNOT THEREFORE SERVE AS A PREDICATE FELONY IN NEW YORK)/SECOND FELONY OFFENDER (OKLAHOMA FIREARM STATUTE DOES NOT HAVE AN OPERABILITY ELEMENT AND CANNOT THEREFORE SERVE AS A PREDICATE FELONY IN NEW YORK)/SENTENCING (SECOND FELONY OFFENDER, OKLAHOMA FIREARM STATUTE DOES NOT HAVE AN OPERABILITY ELEMENT AND CANNOT THEREFORE SERVE AS A PREDICATE FELONY IN NEW YORK)

RELIANCE ON A JURISDICTIONAL THEORY AT TRIAL WHICH DIFFERED FROM THE JURISDICTION CRITERIA ALLEGED IN THE INDICTMENT DEPRIVED DEFENDANT OF FAIR NOTICE OF THE CHARGES AGAINST HIM, NEW TRIAL ORDERED.

The Second Department, reversing defendant’s conspiracy conviction, determined the difference between the jurisdictional allegations in the indictment and the jurisdiction theory relied on at trial deprived defendant of fair notice of the charges against him:

Proof at trial that varies from an indictment may compromise the defendant’s right to fair notice of the charges and his or her right to have those charges determined by the grand jury … . Here, the indictment alleged jurisdiction in Kings County on the basis of overt acts committed in Kings County. However, the proof at trial did not support that theory and, as charged to the jury, jurisdiction in Kings County was based on conduct which had, or was likely to have, a particular effect upon Kings County pursuant to CPL 20.40(2)(c). As the evidence presented at trial varied from the indictment, and, contrary to the People’s contention, the defendant did not have fair notice of the jurisdictional theory presented to the jury, the judgment convicting the defendant of conspiracy in the second degree must be reversed and the matter remitted to the Supreme Court, Kings County, for a new trial … . People v Wilson, 2016 NY Slip Op 05660, 2nd Dept 7-27-16

CRIMINAL LAW (RELIANCE ON A JURISDICTIONAL THEORY AT TRIAL WHICH DIFFERED FROM THE JURISDICTION CRITERIA ALLEGED IN THE INDICTMENT DEPRIVED DEFENDANT OF FAIR NOTICE OF THE CHARGES AGAINST HIM, NEW TRIAL ORDERED)/INDICTMENTS (RELIANCE ON A JURISDICTIONAL THEORY AT TRIAL WHICH DIFFERED FROM THE JURISDICTIONAL CRITERIA ALLEGED IN THE INDICTMENT DEPRIVED DEFENDANT OF FAIR NOTICE OF THE CHARGES AGAINST HIM, NEW TRIAL ORDERED)/JURISDICTION (CRIMINAL LAW, CONSPIRACY CHARGE, RELIANCE ON A JURISDICTIONAL THEORY AT TRIAL WHICH DIFFERED FROM THE  JURISDICTIONAL CRITERIA ALLEGED IN THE INDICTMENT DEPRIVED DEFENDANT OF FAIR NOTICE OF THE CHARGES AGAINST HIM, NEW TRIAL ORDERED)

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TESTIMONY OF DNA EXPERT, WHICH WAS BASED ON DATA COLLECTED BY NON-TESTIFYING WITNESSES, DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION; ILLEGAL STOP DID NOT REQUIRE SUPPRESSION OF STATEMENT, SUFFICIENT ATTENUATION.

The Third Department, in affirming defendant’s conviction, determined the testimony of the DNA expert (Pasqualino) did not violate defendant’s right of confrontation. Although the expert relied on data collected by non-testifying witnesses, the conclusions drawn from the data were entirely her own. In addition, the Third Department determined the concededly illegal stop of the defendant did not require suppression of his statement because the statement was sufficiently attentuated from the stop. An officer illegally stopped the defendant to tell him the police wanted to speak to him. The defendant  then drove to the station where he was read his Miranda rights. With respect to the DNA evidence, the court wrote:

Pasqualino testified that she analyzed raw data compiled by the nontestifying lab technicians and that she did not rely on the opinions or interpretation of anyone else in forming her scientific conclusions linking defendant’s DNA profile to the victim’s rape kit, which conclusions were contained in the reports that she authored… . * * *

There is no evidence in the record that any lab technician or analyst who participated in the preliminary processing and testing of this DNA evidence engaged in any data editing, analysis, comparisons or interpretations of the evidence or rendered any opinions regarding whether the data collected from the rape kit matched defendant’s DNA profile; likewise, there is no proof that Pasqualino relied upon any such opinions or conclusions drawn by others … . Further, the technicians’ compilation of objective data was not accusatory and did not, without Pasqualino’s expert analysis and testimony, link defendant to these crimes … . Under these circumstances, defendant’s right of confrontation was not violated when Pasqualino relied upon and made reference to data collected by nontestifying lab technicians … . People v Stahl, 2016 NY Slip Op 05597, 3rd Dept 7-21-16

 

CRIMINAL LAW (TESTIMONY OF DNA EXPERT, WHICH WAS BASED ON DATA COLLECTED BY NON-TESTIFYING WITNESSES, DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION)/EVIDENCE (CRIMINAL LAW, TESTIMONY OF DNA EXPERT, WHICH WAS BASED ON DATA COLLECTED BY NON-TESTIFYING WITNESSES, DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION)/CONFRONTATION, RIGHT TO (CRIMINAL LAW, TESTIMONY OF DNA EXPERT, WHICH WAS BASED ON DATA COLLECTED BY NON-TESTIFYING WITNESSES, DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION)/DNA (TESTIMONY OF DNA EXPERT, WHICH WAS BASED ON DATA COLLECTED BY NON-TESTIFYING WITNESSES, DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION)/STREET STOPS (ILLEGAL STOP DID NOT REQUIRE SUPPRESSION, STATEMENT SUFFICIENTLY ATTENUATED FROM THE STOP)/SUPPRESSION (ILLEGAL STOP DID NOT REQUIRE SUPPRESSION, STATEMENT SUFFICIENTLY ATTENUATED FROM THE STOP)/ATTENUATION (CRIMINAL LAW, (ILLEGAL STOP DID NOT REQUIRE SUPPRESSION, STATEMENT SUFFICIENTLY ATTENUATED FROM THE STOP)

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ACTUAL INNOCENCE IS A GROUND FOR VACATION OF A CONVICTION PURSUANT TO CPL 440.10; PROOF HERE INSUFFICIENT TO WARRANT A HEARING; HEARING REQUIRED ON WHETHER PROSECUTOR WITHHELD BRADY MATERIAL.

The First Department, in an extensive opinion by Justice Mazzarelli, determined defendant was entitled to a hearing on his motion to vacate his conviction. Defendant had sufficiently alleged the prosecutor may have withheld information which could have been used to impeach the testimony of an important witness in this murder case (Brady material). In addition, the First Department held that “actual innocence” can be raised as a ground for vacation of a conviction pursuant to Criminal Procedure Law 440.10. Although the First Department found the defendant did not present sufficient evidence of actual innocence to warrant a hearing, the “actual innocence” discussion is most significant part of the opinion:

We agree with the [2nd] Department [People v Hamilton, 115 AD3d 12} that CPL 440.10(1)(h) embraces a claim of actual innocence. If depriving a defendant of an opportunity to prove that he or she has not committed a crime for which he or she has been convicted is not a “violation of a right . . . under the constitution of this state or of the United States,” then that section of the statute is virtually hollow. Both constitutions guarantee liberty through their due process clauses, and a wrongful conviction represents the ultimate deprivation of liberty. Notably, the People do not contest the applicability, in theory, of Hamilton to this case.

Nevertheless, defendant did not clear the threshold set by the Hamilton court as necessary to gain a hearing on an actual innocence claim, because he did not present “a sufficient showing of possible merit to warrant a fuller exploration by the court” … . This is the sole articulation in Hamilton of a standard governing when a hearing is warranted on such a claim. However, this specific standard for actual innocence claims should be considered in light of, and alongside, the more general standard applicable on any motion to vacate a conviction brought under CPL 440.10. Thus, statements of fact supporting the motion must be sworn … . Further, hearsay statements in support of such motions are not probative evidence … . People v Jimenez, 2016 NY Slip Op 05620, 1st Dept 7-21-16

CRIMINAL LAW (ACTUAL INNOCENCE IS A GROUND FOR VACATION OF A CONVICTION PURSUANT TO CPL 440.10; PROOF HERE INSUFFICIENT TO WARRANT A HEARING; HEARING REQUIRED ON WHETHER PROSECUTOR WITHHELD BRADY MATERIAL)/EVIDENCE (CRIMINAL LAW, MOTION TO VACATE CONVICTION, ACTUAL INNOCENCE IS A GROUND FOR VACATION OF A CONVICTION PURSUANT TO CPL 440.10; PROOF HERE INSUFFICIENT TO WARRANT A HEARING; HEARING REQUIRED ON WHETHER PROSECUTOR WITHHELD BRADY MATERIAL)/MOTION TO VACATE CONVICTION (ACTUAL INNOCENCE IS A GROUND FOR VACATION OF A CONVICTION PURSUANT TO CPL 440.10; PROOF HERE INSUFFICIENT TO WARRANT A HEARING; HEARING REQUIRED ON WHETHER PROSECUTOR WITHHELD BRADY MATERIAL)/BRADY MATERIAL (HEARING REQUIRED ON WHETHER PROSECUTOR WITHHELD BRADY MATERIAL)/ACTUAL INNOCENCE (CRIMINAL LAW, MOTION TO VACATE CONVICTION, ACTUAL INNOCENCE IS A GROUND FOR VACATION OF A CONVICTION PURSUANT TO CPL 440.10)

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WEIGHT OF THE EVIDENCE REVIEW RESULTED IN REVERSAL IN THIS JUVENILE DELINQUENCY PROCEEDING, TESTIMONY OF POLICE OFFICERS REJECTED.

The Second Department, reversing Family Court, determined the finding that appellant, had he been an adult, would have committed criminal possession of a weapon (and related offenses) was against the weight of the evidence. The Second Department clearly explained its role in a weight of the evidence review and essentially rejected the testimony of the arresting officers:

 

In conducting our weight of the evidence review, we have a responsibility to affirmatively review the record; independently assess all of the proof; substitute our own credibility determinations for those made by the Family Court in an appropriate case; determine whether the Family Court’s determination was factually correct; and acquit the appellant if we are not convinced that the Family Court’s adjudication of the appellant as a juvenile delinquent was proven beyond a reasonable doubt … . * * *

The reasonable inferences to be made from the officers’ collective testimony were that at least two other individuals were with the appellant at the time of his arrest and, contrary to the initial testimony that the appellant was the only person observed in the area of the firearm, multiple individuals were in the vicinity of the firearm at the relevant time.

In addition, when the appellant was brought to the precinct, he denied possessing the firearm and asked Officer Thomas to check to see if there were cameras in the area of the incident. Officer Thomas testified that at the end of his shift on the date in question, he returned to the scene and viewed surveillance video from a store in the area. However, he did not take notes or ask for a copy of the video, and he “completely forgot to notify anybody” of his investigation or record it in his memo book. At the time of the fact-finding hearing, he could not recall whether the video he viewed depicted the street at the relevant time. Matter of Trevor S., 2016 NY Slip Op 05574, 2nd Dept 7-20-16

 

FAMILY LAW (JUVENILE DELINQUENCY, WEIGHT OF THE EVIDENCE REVIEW RESULTED IN REVERSAL IN THIS JUVENILE DELINQUENCY PROCEEDING, TESTIMONY OF POLICE OFFICERS REJECTED)/EVIDENCE (JUVENILE DELINQUENCY, WEIGHT OF THE EVIDENCE REVIEW RESULTED IN REVERSAL IN THIS JUVENILE DELINQUENCY PROCEEDING, TESTIMONY OF POLICE OFFICERS REJECTED)/CRIMINAL LAW (JUVENILE DELINQUENCY, WEIGHT OF THE EVIDENCE REVIEW RESULTED IN REVERSAL IN THIS JUVENILE DELINQUENCY PROCEEDING, TESTIMONY OF POLICE OFFICERS REJECTED)/APPEALS (JUVENILE DELINQUENCY, WEIGHT OF THE EVIDENCE REVIEW RESULTED IN REVERSAL IN THIS JUVENILE DELINQUENCY PROCEEDING, TESTIMONY OF POLICE OFFICERS REJECTED)/JUVENILE DELINQUENCY (WEIGHT OF THE EVIDENCE REVIEW RESULTED IN REVERSAL IN THIS JUVENILE DELINQUENCY PROCEEDING, TESTIMONY OF POLICE OFFICERS REJECTED)

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SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED.

 

The Third Department, reversing defendant’s conviction, determined the police did not have justification for searching defendant’s duffel bag and the evidence seized from the bag should have been suppressed. Defendant was arrested in his residence on an outstanding warrant. The defendant was handcuffed when the duffel bag was retrieved by a police officer (Gillis) from behind the couch:

To justify a warrantless search of a closed container incident to arrest, the People must satisfy two requirements: “The first imposes spatial and temporal limitations to ensure that the search is not significantly divorced in time or place from the arrest. The second, and equally important, predicate requires the People to demonstrate the presence of exigent circumstances” … . Two interests underlie the exigency requirement: “‘the safety of the public and the arresting officer; and the protection of evidence from destruction or concealment'” … .

The People failed to establish the existence of exigent circumstances justifying the search of defendant’s duffel bag. Gillis testified that the bag was still against the wall when defendant was handcuffed and personally searched pursuant to the outstanding warrant, and Gillis had to physically retrieve the bag from behind the couch in order to search it. In addition, the officers had searched the residence prior to arresting defendant and did not find any evidence of drug activity or paraphernalia, the owner told Gillis that there was nothing illegal in the apartment and defendant denied that there was contraband in the bag when questioned about its contents. Thus, the search of the subject bag was improper and its contents — namely, crack cocaine, cell phones and train tickets — should have been suppressed … . People v Ortiz, 2016 NY Slip Op 05521, 3rd Dept 7-14-16

 

CRIMINAL LAW (SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED)/EVIDENCE (CRIMINAL LAW, SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED)/SUPPRESSION (CRIMINAL LAW, SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED)/SEARCH AND SEIZURE  (SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED)/CLOSED CONTAINERS (CRIMINAL LAW, SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED)

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