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Perjury Allegations Lacked Requisite Specificity, Indictment Should Have Been Dismissed

The Fourth Department determined the indictment did not meet the “specificity” pleading-requirements for perjury, and the charge to the grand jury was similarly defective:

“An indictment for perjury must contain all of the essential elements of the offense . . . and must set forth the alleged false testimony so as to apprise the defendant of the particular offense with which he [or she] is charged” … . Here, “[n]othing in the record before us gives any indication what the [grand] jury thought was false” … . Because the indictment failed to identify the particular falsehoods alleged to have been made by defendant, the indictment failed to provide her with the requisite “fair notice of the accusations made against [her], so that [she would] be able to prepare a defense” … .

Moreover, despite numerous pretrial requests for particularization by defense counsel, the People never identified the particular falsehoods allegedly made by defendant … . Rather, the prosecutor identified particular subject “areas that [he] believe[d] [were] perjurious.” ” To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jur[ors] at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him [or her]’ . . . The lack of specific allegations in the District Attorney’s charge to the [g]rand [j]ury on the perjury count renders it impossible to determine which specific statement or statements of [defendant] the [g]rand [j]ury found to be false. It is impossible to determine what the [g]rand [j]ury intended when it voted on the perjury charge . . . Since the [g]rand [j]ury presentation and legal instructions do not answer these questions, the perjury count [should have been] dismissed”… . People v Heatherly, 2015 NY Slip Op 07111, 4th Dept 10-2-15

 

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Gun Found Wedged Under a Rock After an Illegal Police Pursuit Was Not “Abandoned,” Suppression of Gun Was Proper

The Fourth Department determined that all the fruits of an illegal pursuit and arrest of the defendant were properly suppressed. Defendant crossed a street, causing a car to stop abruptly to avoid hitting him. The police pursued defendant, intending to arrest him for disorderly conduct. The police noticed defendant was carrying a bulky object held in his shirt. After capturing the defendant, the police found a gun wedged under a rock. The People conceded that the pursuit of defendant was unlawful because his crossing the street did not constitute disorderly conduct. The only question on appeal was whether the gun was abandoned, and therefore not subject to suppression. The court explained the relevant test for abandoned property in this context:

It is well established that property seized as a result of an unlawful pursuit must be suppressed, unless that property was abandoned … . “Property which has in fact been abandoned is outside the protection of the constitutional provisions . . . There is a presumption against the waiver of constitutional rights . . . [and, thus,] [t]he proof supporting abandonment should reasonably beget the exclusive inference of . . . throwing away’ ” … . “The test to be applied is whether defendant’s action . . . was spontaneous and precipitated by the illegality or whether it was a calculated act not provoked by the unlawful police activity and was thus attenuated from it” … . Here, the court properly concluded that defendant’s action was spontaneous and precipitated by the unlawful pursuit by the police … . The court thus properly determined that the People failed to establish that defendant had abandoned the gun and, consequently, properly suppressed the gun. People v Mueses, 2015 NY Slip Op 07088, 4th Dept 10-2-15

 

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Absence of Information About the Source of Double Hearsay in the Search Warrant Application Required Suppression

The Fourth Department determined a search warrant application which was based upon double hearsay did not provide probable cause to search because the initial source of the information was inadequately described.  There was no way to determine the reliability of the source or the basis of the source’s information (Aguilar-Spinelli test). An amended warrant which sought seizure of items in plain sight during the search was rendered invalid by the defective initial warrant:

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 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 … . It is equally well settled that, under New York law, “[p]robable cause may be supplied, in whole or part, through hearsay information . . . New York’s present law applies the Aguilar-Spinelli rule for evaluating secondhand information and holds that if probable cause is based on hearsay statements, the police must establish that the informant had some basis for the knowledge he [or she] transmitted to them and that he [or she] was reliable” … . “Notably, where the information is based upon double hearsay, the foregoing requirements must be met with respect to each individual providing information” … .People v Bartholomew, 2015 NY Slip Op 07112, 4th Dept 10-2-15

 

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Pat-down Search Pursuant to a Stop for a Traffic Infraction Unlawful—Injury to Officer During Unlawful Search Will Not Support Assault Conviction (Which Requires the Officer Be Injured Performing a Lawful Duty)

The Fourth Department determined the pat-down search of defendant after he was stopped for walking in the street was unlawful. Therefore the assault charge stemming from injury to the police officer during the unlawful search was not supported by legally sufficient evidence. The officer was not performing a “lawful duty” at the time of the injury (a required element of the assault charge):

A person is guilty of assault in the second degree under Penal Law § 120.05 (3) when, “[w]ith intent to prevent . . . a police officer . . . from performing a lawful duty . . . , he or she causes physical injury to such . . . police officer” (id.). Here, a police officer stopped defendant for walking in the middle of a roadway in violation of Vehicle and Traffic Law § 1156 (a), and the suppression court found that the search of defendant’s person by another officer was not lawful … . We have previously held that even the more limited pat-down search of a traffic offender “is not authorized unless, when the [person or] vehicle is stopped, there are reasonable grounds for suspecting that the officer is in danger or there is probable cause for believing that the offender is guilty of a crime rather than merely a simple traffic infraction’ ” (People v Everett, 82 AD3d 1666, 1666, …). Here, as in Everett, the search of defendant was unauthorized, and the officer was injured only after he attempted to perform the unlawful search (see id.). Viewing the evidence in the light most favorable to the People …, we thus conclude that the evidence is legally insufficient to establish that the officer was injured while undertaking a lawful duty … . People v Richardson, 2015 NY Slip Op 07069, 4th Dept 10-2-15

 

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Where Arrest Was Not Authorized, Conviction for Resisting Arrest Was Against the Weight of the Evidence

The People conceded defendant’s actions (apparently simply standing with a group) did not constitute disorderly conduct. Therefore, the Fourth Department determined, defendant’s arrest for disorderly conduct was unauthorized and his conviction of resisting arrest was against the weight of the evidence:

As the People correctly concede, the evidence fails to establish beyond a reasonable doubt that the arrest of defendant for disorderly conduct was authorized. The Court of Appeals has “made clear that evidence of actual or threatened public harm (inconvenience, annoyance or alarm’) is a necessary element of a valid disorderly conduct charge” …, and there is no evidence of such actual or threatened harm here. Inasmuch as it “is not disorderly conduct . . . for a small group of people, even people of bad reputation, to stand peaceably on a street corner” …, the arrest of defendant for engaging in that conduct was not authorized. “There being no probable cause that authorized defendant’s arrest, [he] cannot be guilty of resisting arrest” … . Thus, we conclude that the jury “failed to give the evidence the weight it should be accorded” … . People v Howard, 2015 NY Slip Op 07100, 4th Dept 10-2-15

 

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Ornaments Hanging from Rear-View Mirror Justified Vehicle Stop

The Second Department, over a dissent, determined the police officer had probable/reasonable cause to believe defendant had committed a traffic infraction.  Therefore, the vehicle stop and the subsequent search of the vehicle (which turned up a weapon) were proper. There was an ornamental sandal and necklace hanging from the rear-view mirror. The court held the officer had reasonable cause to believe the sandal and necklace obstructed the driver’s view in violation of Vehicle and Traffic Law 375 (30):

Under the Fourth Amendment to the United States Constitution and article I, § 12, of the New York State Constitution, a police officer may stop a vehicle when the officer has probable cause to believe that the driver of the vehicle has committed a traffic infraction … . In this case, the credible evidence adduced at the suppression hearing established that the police had probable cause to stop the Altima. The officer who stopped the Altima testified that when he stopped his patrol car behind the Altima, he saw an ornamental sandal on a string and a necklace hanging from the Altima’s rearview mirror. The officer further testified that the sandal was four to five inches long and “[p]ossibly about [two] inches in width,” and that it was hanging about four to five inches beneath the rearview mirror. Contrary to the defendant’s contention and to our colleague’s dissent, this testimony demonstrated that the officer had reasonable cause to believe that the sandal was hung “in such a manner as to obstruct or interfere with the view of the operator through the windshield” (Vehicle and Traffic Law § 375[30]…). Accordingly, the officer’s stop of the Altima was not improper .. . Probable cause does not require certainty, and the officer’s testimony about the size and location of the ornaments was sufficient to establish probable cause. People v Bookman, 2015 NY Slip Op 07037, 2nd Dept 9-30-15

 

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[Harmless] Error to Deny Defense a Hearing to Determine Admissibility of Testimony of Private Investigator About What Could Be Seen from a Certain Vantage Point (Calling Into Question Testimony Identifying the Defendant)

The Second Department, over a vehement and detailed dissent, affirmed defendant’s assault and attempted murder convictions. The majority and dissent agreed that defendant should have been allowed to present the testimony of a private investigator about what could be seen from a certain vantage point (calling into question testimony identifying defendant), but disagreed about whether the error was harmless. The dissent explained the defendant’s right to present a defense:

FROM THE DISSENT:

The People correctly concede that it was error by the court to preclude the defense counsel from calling his private investigator as a witness. A defendant’s right to call witnesses in his or her behalf is a constitutional right essential to due process of law … . In the absence of bad faith, the general rule is that where the defendant seeks to call a witness, the witness should be sworn and asked questions, to permit the court, upon proper objection, to rule upon the admissibility of the evidence offered … .

Here, the defense counsel’s request for a hearing on the admissibility of the witness’s testimony was improperly denied on the ground that opinion testimony from lay witnesses is inadmissible. However, there is no categorical proscription against the admission of opinions from lay witnesses … . Further, the proposed testimony about the ability to see a point from another stated vantage point constituted testimony as to the facts—and would not necessarily include opinions … . Since the defendant had a constitutional right to put forth a defense, contrary to the conclusion of my colleagues, the error cannot be deemed harmless … . People v Smith, 2015 NY Slip Op 07043, 2nd Dept 9-30-15

 

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Under the Facts, the Prosecutor Was Not Obligated to Present Exculpatory Evidence to the Grand Jury—Defendant Did Not Exercise His Right to Testify Before the Grand Jury

The First Department determined defendant’s motion to set aside the verdict on the ground the prosecutor did not charge the grand jury on the justification defense was properly denied. The indictment alleged the defendant attacked the victim, Valdez, with a machete. At trial, the defendant testified that Valdez attacked him with a baton and he used a knife in self-defense. It was revealed at trial that Valdez did in fact have a baton at the time of incident, that Valdez had not told the police about the baton, and that, months later, he told the prosecutor about the baton before the matter was presented to the grand jury. The defendant chose not to testify before the grand jury. No mention of the baton, or that the defendant made a statement claiming he acted in self-defense, was made in the grand jury proceedings and the grand jury was not instructed on the justification defense. The First Department held that the prosecutor’s failure, in the grand jury proceedings, to present evidence the victim had a baton, or that defendant stated he acted in self-defense, did not amount to misconduct justifying the dismissal of the indictment. The court emphasized the defendant’s failure to exercise his right to testify before the grand jury to present exculpatory evidence, and explained the nature of the prosecutor’s duty to present exculpatory evidence to the grand jury:

It is axiomatic that a prosecutor, in presenting evidence and potential charges to a grand jury, is ” charged with the duty not only to secure indictments but also to see that justice is done'” … . The role of the grand jury is not only to investigate criminal activity to see whether criminal charges are warranted but also to protect individuals from needless and unfounded charges … . For that reason, justification, as an exculpatory defense that if accepted eliminates any grounds for prosecution, should be presented to the grand jury when warranted by the evidence … . However, a prosecutor, in presenting a case to a grand jury, is “not obligated to search for evidence favorable to the defense or to present all evidence in [the People’s] possession that is favorable to the accused . . . In the ordinary case, it is the defendant who, through the exercise of his own right to testify . . . , brings exculpatory evidence to the attention of the Grand Jury” … . Thus, a prosecutor is not obligated to present to the grand jury a defendant’s exculpatory statement made to the police upon arrest … . Where, however, a prosecutor introduces a defendant’s inculpatory statement to the grand jury, he is obligated to introduce an exculpatory statement given during the course of the same interrogation which amplifies the inculpatory statement if it supports a justification defense … . * * *

Assuming arguendo that, as claimed by defendant and denied by the People, the ADA did know about the … baton at the time of the grand jury proceedings, dismissal of the indictment based on the failure to charge the grand jury on justification still would not be warranted. “[A] Grand Jury proceeding is not a mini trial . . . The prosecutor . . . need not disclose certain forms of exculpatory evidence . . . [Nor is] the prosecutor . . . obligated to present the evidence or make statements to the grand jurors in the manner most favorable to the defense” … . As previously noted, a prosecutor is “not obligated to search for evidence favorable to the defense or to present all evidence in [the People’s] possession that is favorable to the accused . . . In the ordinary case, it is the defendant who, through the exercise of his own right to testify . . . , brings exculpatory evidence to the attention of the Grand Jury”… . People v Morel, 2015 NY Slip Op 06865, 1st Dept 9-22-15

 

Several Similar Thefts from the Same Store Constituted a Single, Continuing Crime

The Second Department, over a dissent, determined defendant, who stole items from a store on a series of separate occasions, had committed a continuing crime and therefore was properly prosecuted for stealing merchandise worth more than $1000.00:

The evidence presented at trial demonstrated that the defendant took similar expensive electronic merchandise from the same store on each occasion, under virtually the same circumstances, and with the assistance of the driver of the minivan. Contrary to the position of our dissenting colleague, we find that this evidence sufficiently established that the defendant stole merchandise “with a single [ongoing] intent, carried out in successive stages” (People v Rossi, 5 NY2d at 401), and that this was not merely a series of distinct petty thefts (see People v Daghita, 301 NY 223, 225 [affirming the defendant’s conviction of a single continuing grand larceny where he stole a “considerable quantity of merchandise over a period of time” from the same store and “used a large portion of it to furnish his home and to outfit his family”]; see also People v Henderson, 163 AD2d 888; cf. People v Seymour, 77 AD3d 976, 980 [insufficient proof that two thefts from the same store constituted a common scheme or plan, where the defendant stole one television during the first incident, a variety of merchandise during the second incident, and each theft was perpetrated in a different manner, since “there was no evidence of the defendant’s intent to commit fraud or of his intent to engage in a plan of continuous fraud”]). People v Malcolm, 2015 NY Slip Op 06829, 2nd Dept 9-16-15

 

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The Unjustified Denial of Defense Counsel’s Request to Withdraw a Peremptory Challenge Was, Under the Facts, Subject to a Harmless Error Analysis

The Second Department determined the trial court erred when it denied defense counsel’s request to withdraw a peremptory challenge to a juror. However, the error was deemed harmless because of the nature of the evidence against the defendant. On appeal the Second Department primarily addressed whether the harmless error analysis applied to the withdrawal of a peremptory challenge:

The defendant contends that the Supreme Court’s improper denial of his request to withdraw his peremptory challenge is not subject to harmless error analysis, since the error deprived him of his constitutional right to a jury in whose selection he had a voice … . We disagree. While peremptory challenges “are a mainstay in a litigant’s strategic arsenal,” they are “not a trial tool of constitutional magnitude” … . The right to exercise peremptory challenges “is protected by the Criminal Procedure Law, which provides that each party must be allowed’ an equal number of peremptory challenges and that a court must exclude’ any juror challenged” … . Therefore, “the unjustified denial of a peremptory challenge violates CPL 270.25(2) and requires reversal without regard to harmless error” … . However, there is no statutory right to withdraw a peremptory challenge. Further, the instant case does not involve a situation in which the People attempted to peremptorily challenge a juror who had been accepted by the defense in violation of CPL 270.15(2), inasmuch as the People did not object to the defendant’s request to withdraw the peremptory challenge … . Moreover, the defendant was not prejudiced by the loss of the peremptory challenge since, at the conclusion of jury selection, defense counsel had exercised only 9 of his 15 peremptory challenges … . Accordingly, under the circumstances of this case, the error was harmless. People v Marshall, 2015 NY Slip Op 06830, 2nd Dept 9-16-15

 

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