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MIDTRIAL ORAL MOTION TO SUPPRESS, MADE AFTER THE PEOPLE BELATEDLY PROVIDED THE SEARCH WARRANT APPLICATION, REQUIRED A HEARING; COURT’S SUA SPONTE DENIAL OF THE MOTION WAS IMPROPER.

The Fourth Department determined the denial of defendant's midtrial motion to suppress evidence seized pursuant to a search warrant should not have been denied without a hearing. The search warrant application was not provided to the defense until after the trial had begun. The application indicated probable cause for the warrant was gained through a prior “security sweep” of the building:

In determining whether a hearing is required pursuant to CPL 710.60, “the sufficiency of defendant's factual allegations should be evaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) defendant's access to information” … . We note that the motion was not required to be made in writing, as would be required for a pretrial motion to suppress (see CPL 710.60 [1]) and, because it was properly “made orally in open court” during trial, the court was required, “where necessary, [to] conduct a hearing as provided in [CPL 710.60 (4)], out of the presence of the jury if any, and make findings of fact essential to the determination of the motion” (CPL 710.60 [5]).

We conclude that a hearing was necessary herein. Defendant's allegation that the search was of his home was sufficient “to demonstrate a personal legitimate expectation of privacy in the searched premises” … . * * * … [T]he People's current contention [that the sweep was justified by exigent circumstances] … ” raise[s] a factual dispute on a material point which must be resolved before the court can decide the legal issue' of whether evidence was obtained in a constitutionally permissible manner” … . Thus, before ruling on the motion, “it was incumbent upon [Supreme C]ourt to conduct a hearing to determine whether there were sufficient exigent circumstances [or other factors such as an ongoing emergency situation that would] justify the . . . warrantless entry” into the building … . Therefore, we hold the case, reserve decision, and remit the matter to Supreme Court for a hearing on defendant's midtrial suppression motion … . People v Samuel, 2016 NY Slip Op 02222, 4th Dept 3-25-16

CRIMINAL LAW (MIDTRIAL ORAL MOTION TO SUPPRESS, MADE AFTER THE PEOPLE BELATEDLY PROVIDED THE SEARCH WARRANT APPLICATION, REQUIRED A HEARING; COURT'S SUA SPONTE DENIAL OF THE MOTION WAS IMPROPER)/EVIDENCE (CRIMINAL LAW, MIDTRIAL ORAL MOTION TO SUPPRESS, MADE AFTER THE PEOPLE BELATEDLY PROVIDED THE SEARCH WARRANT APPLICATION, REQUIRED A HEARING; COURT'S SUA SPONTE DENIAL OF THE MOTION WAS IMPROPER)/SUPPRESSION (CRIMINAL LAW, MIDTRIAL ORAL MOTION TO SUPPRESS, MADE AFTER THE PEOPLE BELATEDLY PROVIDED THE SEARCH WARRANT APPLICATION, REQUIRED A HEARING; COURT'S SUA SPONTE DENIAL OF THE MOTION WAS IMPROPER)/SEARCHES AND SEIZURES (MIDTRIAL ORAL MOTION TO SUPPRESS, MADE AFTER THE PEOPLE BELATEDLY PROVIDED THE SEARCH WARRANT APPLICATION, REQUIRED A HEARING; COURT'S SUA SPONTE DENIAL OF THE MOTION WAS IMPROPER)

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JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION, NEW TRIAL ORDERED.

The Fourth Department reversed defendant's conviction for possession of a weapon, finding the People's request for a constructive-possession jury instruction should not have been granted. The defendant had been seen holding an object that appeared to have been fired and DNA evidence tied defendant to a revolver that was found five feet away from where defendant was lying, shot, in a parking lot.  There was no evidence which warranted a jury charge on constructive, as opposed to physical, possession of the weapon:

To meet their burden of proving defendant's constructive possession of the [revolver], the People had to establish that defendant exercised dominion or control over [the revolver] by a sufficient level of control over the area in which [it was] found” … . Here, we conclude that there is no view of the evidence that defendant had constructive possession of the revolver … . Defendant's “mere presence in an area where” the revolver was found “is not sufficient to establish that he exercised such dominion and control as to establish constructive possession” … . We further conclude that the error is not harmless inasmuch as we cannot determine if the verdict was based upon defendant's physical possession of the revolver or his constructive possession of it … . People v Diallo, 2016 NY Slip Op 02213, 4th Dept 3-25-16

CRIMINAL LAW (JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION, NEW TRIAL ORDERED)/EVIDENCE (CRIMINAL LAW, JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION, NEW TRIAL ORDERED)/CONSTRUCTIVE POSSESSION (CRIMINAL LAW, JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION, NEW TRIAL ORDERED)

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SEARCH WARRANT WAS NOT BASED UPON PROBABLE CAUSE TO BELIEVE THE EVIDENCE SOUGHT WOULD BE AT THE SEARCHED LOCATION, MOTION TO SUPPRESS WAS PROPERLY GRANTED AND INDICTMENT WAS PROPERLY DISMISSED.

The Fourth Department affirmed Supreme Court's granting of defendant's motion to suppress the fruits of a search warrant for a house (285 Lincoln Avenue). The search warrant sought evidence of a murder at a residence on Grafton Street. The defendant had been driven to the Grafton Street residence on the day of the murder. The search warrant at issue was for a different residence, 285 Lincoln Avenue. The search warrant application was based upon evidence the defendant's cell phone had been in the vicinity of the 285 Lincoln Avenue, the defendant had been seen in the driveway of 285 Lincoln Avenue, and defendant was a Facebook friend of the person to whom the utilities at 285 Lincoln Avenue were registered. However defendant was never seen entering 295 Lincoln Avenue and the search warrant application did not provide probable cause to believe evidence of the Grafton Street murder would be found at the property:

It is well settled that a search warrant may be issued only upon a showing of probable cause to believe that a crime has occurred, is occurring, or is about to occur … , and where there is sufficient evidence from which to form a reasonable belief that evidence of the crime may be found inside the location sought to be searched … . Here, we conclude that the Supreme Court properly determined that the application for the search warrant contained no specific factual allegations that tied the location of 285 Lincoln Avenue to the evidence sought to be seized; failed to establish any dominion and control of 285 Lincoln Avenue by defendant; and failed to tie defendant to the Grafton Street murder, or to his possession of evidence or contraband pertaining to that murder … . People v Moxley, 2016 NY Slip Op 02192, 4th Dept 3-25-16

CRIMINAL LAW (SEARCH WARRANT WAS NOT BASED UPON PROBABLE CAUSE TO BELIEVE THE EVIDENCE SOUGHT WOULD BE AT THE SEARCHED LOCATION, MOTION TO SUPPRESS WAS PROPERLY GRANTED AND INDICTMENT WAS PROPERLY DISMISSED)/EVIDENCE (CRIMINAL LAW, SEARCH WARRANT WAS NOT BASED UPON PROBABLE CAUSE TO BELIEVE THE EVIDENCE SOUGHT WOULD BE AT THE SEARCHED LOCATION, MOTION TO SUPPRESS WAS PROPERLY GRANTED AND INDICTMENT WAS PROPERLY DISMISSED)/SUPPRESSION (SEARCH WARRANT WAS NOT BASED UPON PROBABLE CAUSE TO BELIEVE THE EVIDENCE SOUGHT WOULD BE AT THE SEARCHED LOCATION, MOTION TO SUPPRESS WAS PROPERLY GRANTED AND INDICTMENT WAS PROPERLY DISMISSED)/SEARCHES AND SEIZURES  (SEARCH WARRANT WAS NOT BASED UPON PROBABLE CAUSE TO BELIEVE THE EVIDENCE SOUGHT WOULD BE AT THE SEARCHED LOCATION, MOTION TO SUPPRESS WAS PROPERLY GRANTED AND INDICTMENT WAS PROPERLY DISMISSED)

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FORCIBLE DETENTION AMOUNTED TO ARREST WITHOUT PROBABLE CAUSE, GUILTY PLEA VACATED, INDICTMENT DISMISSED.

The Fourth Department determined the forcible detention of defendant prior to finding heroin in plain view in a vehicle in which defendant was a passenger constituted an illegal arrest. The seized evidence, therefore, should have been suppressed and the indictment dismissed:

We … agree with defendant that he was unlawfully arrested without probable cause prior to the police finding packets of heroin in plain view in the vehicle. Although “[i]t is well established that not every forcible detention constitutes an arrest” … , we conclude that defendant was arrested when an officer, with his weapon drawn, opened the unlocked front seat passenger door of the vehicle, physically removed defendant, had him lie down on the ground, handcuffed and searched him, and placed him in a patrol vehicle … . “Under such circumstances, a reasonable [person] innocent of any crime, would have thought' that he [or she] was under arrest” … . Contrary to the People's contention and the court's determination, the officer's conduct ” went beyond merely ordering defendant from [the vehicle]. [He] took the additional “protective measures” of frisking defendant, handcuffing him and placing him in a police car . . . [S]uch an intrusion amounts to an arrest[,] which must be supported by probable cause' ” … . Inasmuch as the police lacked probable cause to arrest defendant before the officer returned to the vehicle and discovered the packets of heroin, the court should have suppressed that evidence, as well as the evidence subsequently found on defendant's person, as fruit of the poisonous tree … . People v Finch, 2016 NY Slip Op 02191, 4th Dept 3-25-16

CRIMINAL LAW (FORCIBLE DETENTION AMOUNTED TO ARREST WITHOUT PROBABLE CAUSE, GUILTY PLEA VACATED, INDICTMENT DISMISSED)/EVIDENCE (CRIMINAL LAW, FORCIBLE DETENTION AMOUNTED TO ARREST WITHOUT PROBABLE CAUSE, GUILTY PLEA VACATED, INDICTMENT DISMISSED)/SUPPRESSION (FORCIBLE DETENTION AMOUNTED TO ARREST WITHOUT PROBABLE CAUSE, GUILTY PLEA VACATED, INDICTMENT DISMISSED)/STREET STOPS (FORCIBLE DETENTION AMOUNTED TO ARREST WITHOUT PROBABLE CAUSE, GUILTY PLEA VACATED, INDICTMENT DISMISSED)

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DEFENDANT’S STARING AT THE POLICE FROM ACROSS THE ROAD DID NOT JUSTIFY THE INITIAL APPROACH BY THE POLICE, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED AND INDICTMENT FOR POSSESSION OF A WEAPON SHOULD HAVE BEEN DISMISSED.

The Fourth Department determined defendant's motion to suppress should have been granted and the indictment must be dismissed. The police approached the defendant and others in a patrol car merely because they had observed the defendant staring at the police from the other side of the road. The police pulled along side defendant and asked “what's up guys?” Defendant walked away and discarded a weapon. The Fourth Department found that the initial approach by the police was not warranted:

We conclude that merely staring at or otherwise looking in the direction of police officers or a patrol vehicle in a high crime area while continuing to proceed on one's way, absent any indicia of nervousness, evasive behavior, or other movements in response to seeing the police, i.e., “attendant circumstances . . . sufficient to arouse the officers' interest” … , is insufficient to provide the police with the requisite “objective, credible reason, not necessarily indicative of criminality” to justify a level one encounter … . Here, beyond the fact that defendant had stared at the police in a “higher crime area” while continuing to walk down the sidewalk, the officers testified to no further observations of defendant or the other men that drew their attention … and, to the extent that the court found that defendant displayed any nervous or evasive behavior upon initially seeing the officers, we conclude that such a finding is unsupported by the record. We agree with defendant that the officers lacked other attendant circumstances to arouse their interest inasmuch as the encounter occurred at 6:30 in the evening rather than late at night and there was automobile traffic in the area at that time … . People v Savage, 2016 NY Slip Op 02184, 4th Dept 3-25-16

CRIMINAL LAW (DEFENDANT'S STARING AT THE POLICE FROM ACROSS THE ROAD DID NOT JUSTIFY THE INITIAL APPROACH BY THE POLICE, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED AND INDICTMENT FOR POSSESSION OF A WEAPON SHOULD HAVE BEEN DISMISSED)/SUPPRESSION (DEFENDANT'S STARING AT THE POLICE FROM ACROSS THE ROAD DID NOT JUSTIFY THE INITIAL APPROACH BY THE POLICE, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED AND INDICTMENT FOR POSSESSION OF A WEAPON SHOULD HAVE BEEN DISMISSED)/EVIDENCE (CRIMINAL LAW, DEFENDANT'S STARING AT THE POLICE FROM ACROSS THE ROAD DID NOT JUSTIFY THE INITIAL APPROACH BY THE POLICE, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED AND INDICTMENT FOR POSSESSION OF A WEAPON SHOULD HAVE BEEN DISMISSED)/STREET STOPS (DEFENDANT'S STARING AT THE POLICE FROM ACROSS THE ROAD DID NOT JUSTIFY THE INITIAL APPROACH BY THE POLICE, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED AND INDICTMENT FOR POSSESSION OF A WEAPON SHOULD HAVE BEEN DISMISSED)

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THE SOLE REMEDY WHEN A CONVICTION IS DEEMED AGAINST THE WEIGHT OF THE EVIDENCE IS DISMISSAL OF THE INDICTMENT, REDUCTION TO A LESSER INCLUDED OFFENSE IS NOT AVAILABLE.

The Fourth Department, over a two-justice dissent, determined: (1) the defendant's conviction for robbery second degree was against the weight of the evidence because the physical injury element was not proved beyond a reasonable doubt (the injury at issue was a small cut on the victim's finger); and (2) when a conviction is deemed against the weight of the evidence, the only remedy is dismissal of the indictment and not a reduction to a conviction of a lesser included offense. The dissent saw no reason reduction to a conviction of a lesser included offense should not be available as a remedy:

“CPL 470.20 (5) provides that the determination by an intermediate appellate court that a verdict is against the weight of the evidence requires dismissal of the indictment . . . [T]he power to reduce a conviction to a lesser included offense is limited to cases in which it is determined that the evidence is not legally sufficient to establish the defendant's guilt of an offense of which he [or she] was convicted but is legally sufficient to establish his [or her] guilt of a lesser included offense' (CPL 470.15 [2] [a]).” Thus, we conclude that “CPL 420.20 (5) requires dismissal of the indictment if it is determined that the verdict is against the weight of the evidence” (id. at 31). Indeed, the Court of Appeals has explained that “[a]n important judicial bulwark against an improper criminal conviction is not only the restrictive scope of review undertaken during a sufficiency analysis, but the protection provided by weight of the evidence examination in an intermediate appellate court. This special power requires the court to . . . determine whether the verdict was factually correct[,] and acquit a defendant if the court is not convinced that the jury was justified in finding that guilt was proven beyond a reasonable doubt” … . As we explained in Heatley (116 AD3d at 30), “if the legislature had intended to provide the same relief to modify a judgment in the event that the weight of the evidence failed to support the conviction but supported a lesser included offense, it would have done so.” People v Cooney, 2016 NY Slip Op 02203, 4th Dept 3-25-16

CRIMINAL LAW (APPEALS, THE SOLE REMEDY WHEN A CONVICTION IS DEEMED AGAINST THE WEIGHT OF THE EVIDENCE IS DISMISSAL OF THE INDICTMENT, REDUCTION TO A LESSER INCLUDED OFFENSE IS NOT AVAILABLE)/APPEALS (CRIMINAL LAW, THE SOLE REMEDY WHEN A CONVICTION IS DEEMED AGAINST THE WEIGHT OF THE EVIDENCE IS DISMISSAL OF THE INDICTMENT, REDUCTION TO A LESSER INCLUDED OFFENSE IS NOT AVAILABLE)/WEIGHT OF THE EVIDENCE REVIEW (CRIMINAL LAW, THE SOLE REMEDY WHEN A CONVICTION IS DEEMED AGAINST THE WEIGHT OF THE EVIDENCE IS DISMISSAL OF THE INDICTMENT, REDUCTION TO A LESSER INCLUDED OFFENSE IS NOT AVAILABLE)

THE JUDGE REMOVED ELEMENTS OF THE CHARGED OFFENSES FROM THE JURY’S CONSIDERATION, NEW TRIAL ORDERED.

The Fourth Department determined the trial judge took away consideration of elements of the charged offenses from the jury and ordered a new trial. Defendants were charged with assault (on a police officer) and obstructing governmental administration. The charges arose when one of the defendants tried to stop police officers from entering her home and a struggle ensued. The assault charge required proof the police were performing a lawful duty and the arrest was authorized. The obstruction charge required proof the police were performing a governmental function. When defense counsel asked a police officer whether a warrant was necessary to enter defendants' home, the judge wouldn't allow the question and instructed the jury no search warrant was required. “The court thereby improperly removed the abovementioned elements from the jury's consideration …”. People v O'Dell, 2016 NY Slip Op 02262, 4th Dept 3-25-16

CRIMINAL LAW (JUDGE REMOVED ELEMENTS OF THE CHARGED OFFENSES FROM THE JURY'S CONSIDERATION, NEW TRIAL ORDERED)/JURY INSTRUCTIONS (CRIMINAL LAW, JUDGE REMOVED ELEMENTS OF THE CHARGED OFFENSES FROM THE JURY'S CONSIDERATION, NEW TRIAL ORDERED)

IN PLEADING GUILTY TO A LESSER CRIME, DEFENDANT ADMITTED AN ACTION WHICH NEGATED AN ELEMENT OF THE CRIME TO WHICH HE PLED, MOTION TO WITHDRAW PLEA SHOULD HAVE BEEN GRANTED.

The Third Department reversed County Court finding that defendant should have been allowed to withdraw his guilty plea on the ground it was not knowingly and voluntarily entered. Although plaintiff was pleading to a lesser crime, during the plea colloquy County Court elicited an admission to an act which negated an element of the crime defendant was pleading to. Defendant pled to a rape where the victim was unable to consent. However, in the plea colloquy defendant admitted the victim demonstrated she did not consent:

Where, as here, a defendant pleads to a lesser crime as part of a plea bargain, the court is not required to engage in a factual recitation in order to establish the elements of the crime … , and, in fact, “under such circumstances defendants can even plead guilty to crimes that do not exist” … . In this instance, although not required to do so, County Court nevertheless sought to elicit the details of the crime from defendant prior to accepting his plea and led him in a factual recitation. The questions posed by the court during the allocution appeared to be designed to elicit from defendant facts supporting the elements of rape in the third degree, a crime which had been charged in the indictment, but was to be dismissed as part of the plea to rape in the second degree; notably, rape in the third degree includes the element that the victim's “words and acts” demonstrated that he or she did not consent to sexual intercourse with the defendant (Penal Law § 130.05 [2] [d]; see Penal Law § 130.25). In response to the court's inquiries, defendant admitted that he had engaged in nonconsensual sexual intercourse with the victim and that the intercourse was nonconsensual because the victim had “indicated to [him], by words or actions, that she did not wish to engage in sexual intercourse with [him].” This factual recitation was inconsistent with the crime to which he was pleading and, in fact, negated an element of that crime, namely that the victim be “incapable of consent by reason of being mentally disabled or mentally incapacitated” (Penal Law § 130.30 [2] … ).

County Court failed to conduct any further inquiry prior to accepting the plea in order “to ensure that defendant underst[ood] the nature of the charge and that the plea [was] intelligently entered” … . People v Banks, 2016 NY Slip Op 02127, 3rd Dept 3-24-16

CRIMINAL LAW (IN PLEADING GUILTY TO A LESSER CRIME, DEFENDANT ADMITTED AN ACTION WHICH NEGATED AN ELEMENT OF THE CRIME TO WHICH HE PLED, MOTION TO WITHDRAW PLEA SHOULD HAVE BEEN GRANTED)/ GUILTY PLEA (IN PLEADING GUILTY TO A LESSER CRIME, DEFENDANT ADMITTED AN ACTION WHICH NEGATED AN ELEMENT OF THE CRIME TO WHICH HE PLED, MOTION TO WITHDRAW PLEA SHOULD HAVE BEEN GRANTED)

EXIGENT CIRCUMSTANCES JUSTIFIED WARRANTLESS SEARCH OF A BACKPACK.

The Court of Appeals determined the warrantless search of appellant's backpack when appellant was handcuffed and seated in the police car was justified by exigent circumstances. Prior to searching the backpack, the officer had determined the presence of a weapon by feel. It is not clear from the facts described how “exigent circumstances”—stemming from a legitimate concern for officer safety—arose after the appellant was handcuffed:

When the touching revealed the shape of a gun in the bag, appellant was arrested. Appellant became agitated and upset, and resisted being handcuffed, such that two officers were required to handcuff him. Notably, the officers knew that on the occasion of appellant's prior arrest he had started to walk away while being handcuffed. By this time, a crowd had gathered, yelling at the officers, who placed appellant in their police vehicle. Once in the vehicle, one of the officers opened and searched the backpack. He found what was later confirmed to be an air pistol. Significantly, the unmarked police vehicle had no partition, and the officer who searched the bag was seated next to appellant on the back seat.

In these circumstances, there is record support for the conclusion that the officers reasonably believed that appellant might gain possession of a weapon, so that exigent circumstances — a legitimate concern about the safety of the arresting officers — justified the warrantless search of appellant's backpack. Matter of Kenneth S., 2016 NY Slip Op 02123, CtApp 3-24-16

CRIMINAL LAW (EXIGENT CIRCUMSTANCES, A CONCERN FOR OFFICER SAFETY, JUSTIFIED WARRANTLESS SEARCH OF BACKPACK)/SEARCHES AND SEIZURES (EXIGENT CIRCUMSTANCES, A CONCERN FOR OFFICER SAFETY, JUSTIFIED WARRANTLESS SEARCH OF BACKPACK)

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JURY SHOULD HAVE BEEN INSTRUCTED ON THE DEADLY-FORCE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED.

The Fourth Department reversed defendant's assault and manslaughter convictions and ordered a new trial, finding the jury should have been charged on the “deadly force” justification defense. There was evidence defendant acted to defend her brother who was struck with a champagne bottle. The assault with the bottle could constitute deadly force, justifying the use of deadly force in defense:

… [T]he court erred in denying her request to charge the jury on justification using deadly physical force in defense of a third party for the assault count. There was a reasonable view of the evidence, viewed in the light most favorable to defendant, that the first victim was using deadly physical force by striking defendant's brother in the head with a champagne bottle when defendant assaulted her … . We further agree with defendant that the error in failing to give the justification charge on the assault count requires reversal of the manslaughter count as well. Although the court instructed the jury on justification for that count, there was a “significant factual relationship” between the two counts … , particularly on the issue whether defendant was the initial aggressor (see Penal Law § 35.15 [1] [b]). We therefore reverse the judgment and grant a new trial on both … . People v James, 2016 NY Slip Op 01946, 4th Dept 3-18-16

CRIMINAL LAW (JURY SHOULD HAVE BEEN CHARGED ON THE DEADLY-FORCE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED)/EVIDENCE (ASSAULT WITH A CHAMPAGNE BOTTLE CONSTITUTED USE OF DEADLY FORCE, JURY SHOULD HAVE BEEN CHARGED ON THE DEADLY-FORCE JUSTIFICATION DEFENSE)/JUSTIFICATION DEFENSE (CRIMINAL LAW, JURY SHOULD HAVE BEEN CHARGED ON THE DEADLY-FORCE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED)

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