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Emergency Exception to Warrant Requirement Misapplied

The police officers chased defendant when defendant ran and an officer thought he saw a handle of a gun on defendant’s person. The officers entered defendant’s house and found drugs. The Second Department determined the drugs should have been suppressed because there was no emergency justifying the warrantless entry and search of the house:

Under the emergency exception, the police may make a warrantless entry into a protected area if (1) they have reasonable grounds to believe that there was an emergency at hand and an immediate need for their assistance for the protection of life or property, (2) the search was not primarily motivated by an intent to arrest and seize evidence, and (3) there was some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched … . … There was no evidence of any circumstances which would have provided a reasonable basis for the patrol officers to believe that there was an emergency at hand and an immediate need for police assistance for the protection of life or property inside the house … .

Furthermore, even where exigent circumstances justify the warrantless entry into a protected area, the scope and duration of the warrantless search must be limited by and reasonably related to the exigencies of the situation … . Here, the subject drugs were not discovered by the ESU officers during their protective sweep. Rather, they were discovered by the patrol officers, who conducted an evidentiary search after the ESU officers had secured the house and removed the defendant, who was the only occupant. At the time of the patrol officers’ search, any purported exigency had abated, the police were in complete control of the house, and there was no danger that the defendant, who was in custody, would dispose of or destroy the weapon. Accordingly, the police were required to obtain a warrant prior to conducting the evidentiary search … . Moreover, contrary to the suppression court’s findings, it is of no avail that the contraband was found in plain view, since the patrol officers’ warrantless entry was illegal … . People v Scott, 2015 NY Slip Op 08445, 2nd Dept 11-18-15

 

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Portable Breath Test Device (PBT) Results Should Not Have Been Admitted, Driving While Intoxicated Conviction Reversed

The Second Department reversed defendant’s driving while intoxicated (DWI) conviction because the results of the portable breath test device (PBT) were allowed in evidence in the People’s direct case:

Generally, the result of a PBT, such as an Alco-sensor, “is not admissible to establish intoxication, as its reliability for this purpose is not generally accepted in the scientific community” … . Contrary to the trial court’s determination, isolated remarks during defense counsel’s opening statement did not open the door for the People to introduce incriminating testimony about the PBT result as part of their case-in-chief, particularly in the absence of appropriate limiting instructions … . We note that the opening remarks at issue, regarding the officer discarding the PBT “cap,” were at least partly offered in support of the defense theory that the defendant was not aware that he was the subject of a lawful arrest on the night in question, which theory was offered to undermine the charges of assault in the second degree and resisting arrest. Further, we find that the People adequately responded to this remark by eliciting the officer’s testimony that he disposed of the plastic cap because it was unsanitary, and this was standard procedure. Nonetheless, the People elicited testimony that, according to the PBT, the defendant’s BAC was .128%, significantly higher than the legal limit of .08%, before defense counsel had an opportunity to raise this issue during cross-examination … . Under these circumstances, it cannot be said that the defendant opened the door for the People to adduce evidence of an insufficiently reliable PBT result in order to prove the defendant’s intoxication … .

Thereafter, the trial court did not provide the jury with any limiting instructions regarding the PBT result …, but instead directed the jury to consider the PBT result as direct proof of the defendant’s intoxication. The court told the jury that the PBT was a “generally accepted instrument in determining blood alcohol content,” and that no scientific expert was necessary. This was error … . Under the circumstances, including the lack of evidence of admissible field sobriety tests, we find that this error was not harmless beyond a reasonable doubt. People v Krut, 2015 NY Slip Op 08439, 2nd Dept 11-18-15

 

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People Were Not Required to Disclose (Prior to Trial) Confession Made by Defendant to Health Care Worker

The First Department noted the People were not required to disclose, prior to trial, a confession defendant made to a health care worker (because the health care worker was not connected to law enforcement):

… [M]idway through their case, the People introduced a previously undisclosed confession that defendant made to a health care worker at a hospital where he was being treated for a suicide attempt. This statement tended to corroborate a similar confession that defendant made to a detective shortly thereafter. It is undisputed that the People had no statutory duty to disclose this statement, because it was not made to anyone connected with law enforcement (see CPL 240.20[1][a]), and because no Rosario material was involved. Defendant nevertheless complains that his due process right to a fair trial was violated by the timing of the disclosure, because he would have formulated a different defense had he known the People intended to introduce a confession to a civilian witness. However, we find no evidence of deceit or trickery on the part of the People, and defendant’s claim of prejudice is unpersuasive. … [T]here was no misrepresentation that the undisclosed evidence did not exist, and the trial had not progressed to the point where defendant could not have adjusted his defense, or requested less drastic relief than a mistrial.

Defense counsel did not object to the health care worker’s testimony on the ground of physician-patient privilege, and we decline to review this unpreserved claim in the interest of justice. People v Tayo, 2015 NY Slip Op 08353, 1st Dept 11-17-15

 

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Pedigree Question “Where Do You Reside,” Under the Circumstances, Was Designed to Elicit an Incriminating Response, the Answer, Therefore, Should Have Been Suppressed; New Trial on Possessory Counts Ordered

The Fourth Department ordered a new trial on the drug possession and drug paraphernalia counts. Defendant was convicted based upon a “constructive possession” theory (i.e., possession of contraband based upon defendant’s dominion and control over the premises where the contraband is found). As police officers were conducting a search, and as defendant was handcuffed and lying on the floor, an officer asked defendant where he resided. Defendant answered “here.” The People relied heavily on defendant’s answer to prove constructive possession of contraband found on the premises. Under these circumstances, the pedigree question (where do you reside) was designed to elicit an incriminating response and, because the statement was “unwarned,” the answer should have been suppressed:

Generally, a defendant’s answer concerning his address, when “elicited through routine administrative questioning that [is] not designed to elicit an incriminating response” … , will be considered pedigree information not subject to CPL 710.30 notice requirements even if the statement later proves to be inculpatory … . That is “[b]ecause responses to routine booking questions—pedigree questions . . . —are not suppressible even when obtained in violation of Miranda [and, therefore, a] defendant lacks a constitutional basis upon which to challenge the voluntariness of his [or her] statement” … . “[W]here there is no question of voluntariness, the People are not required to serve defendant with notice” … .

As the Court of Appeals recognized, however, “the People may not rely on the pedigree exception if the questions, though facially appropriate, are likely to elicit incriminating admissions because of the circumstances of the particular case” (id.). Although the question concerning defendant’s address appears to have been a facially appropriate question, we conclude that, under the circumstances of this case and, more specifically, under the circumstances in which the question was asked, the question was likely to elicit an incriminating admission and had a “necessary connection to an essential element of [the possessory] crimes charged” under Penal Law §§ 220.16 and 220.50 (2) … . We agree with defendant that the error in admitting that statement cannot be considered harmless insofar as it relates to the possessory counts of the indictment inasmuch as the People relied heavily on that statement to establish defendant’s constructive possession of the drugs and drug paraphernalia … . People v Slade, 2015 NY Slip Op 08252, 4th Dept 11-13-15

 

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CRIMINAL LAW/EVIDENCE

A court may issue an order to obtain corporeal evidence, such as blood or saliva, from a suspect where the People establish: “(1) probable cause to believe the suspect has committed the crime, (2) a clear indication’ that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable” … . In opposition to the People’s motion, defendant conceded that the People had established the third factor. … With respect to the remaining two factors, we conclude that the court properly granted the People’s motion. Where, as here, the request was made after the defendant has been indicted, “the indictment provided the court with the requisite clear indication that probative evidence could be discovered from [the] buccal swab” …, as well as the requisite “statutory authority and probable cause”… . People v Hogue, 2015 NY Slip Op 08254, 4th Dept 11-13-15

 

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Possession of Modest Amount of Drugs Is Not Sufficient to Make Out a Prima Facie Case of an Intent to Sell

The Fourth Department determined the defendant’s possession of less than an ounce of drugs was not sufficient to make out a prima facie case of defendant’s intent to sell:

We reject the People’s contention that the evidence was sufficient to make out a prima facie case that defendant possessed the cocaine with the intent to sell it. Although “defendant’s possession of a substantial’ quantity of drugs can be cited as circumstantial proof of an intent to sell . . . , it cannot be said as a matter of law that the quantity of uncut and unpackaged drugs possessed in this case permitted an inference that defendant intended to sell them. More than mere possession of a modest quantity of drugs, not packaged for sale and unaccompanied by any other saleslike conduct, must be present for such an inference to arise” … .Consequently, the court properly concluded that the evidence was insufficient to establish that defendant possessed a controlled substance with intent to sell it … . People v Nellons, 2015 NY Slip Op 08305, 4th Dept 11-13-15

 

Probationers Do Not Lose All Privacy and Fourth Amendment Rights; Condition that Probationer Waive His Fourth Amendment Rights and Consent to the Search of His Home Struck

The Fourth Department determined the condition of probation requiring the probationer to consent to the search of his home, which was not part of the plea agreement, was not enforceable. A probationer does not lose all Fourth Amendment protections:

We agree with defendant … that the waiver of the right to appeal does not encompass his challenge to the condition of probation that required him to sign a consent to waive his Fourth Amendment rights against a search of his home on the ground that it is related to defendant’s “drug/alcohol abuse,” inasmuch as that condition was not part of the plea agreement … . We also agree with defendant that the condition does not relate to “the probationary goal of rehabilitation” and thus is not enforceable on that ground … . Indeed, the presentence report indicated that the 51-year-old defendant, a first-time offender, does not have a history of drug or alcohol abuse and that he was not under the influence of drugs or alcohol at the time of the offense. It is well established that “a probationer’s home is protected by the constitutional requirement that searches be reasonable . . . [A] probationer loses some privacy expectations and some part of the protections of the Fourth Amendment, but not all of both” … . We therefore modify the judgment by striking as a condition of probation the requirement that defendant consent to the waiver of his Fourth Amendment rights against a search of his home. People v Mead, 2015 NY Slip Op 08304, 4th Dept 11-13-15

 

Evidence Insufficient to Support Attempted Rape Conviction, Ordering Victim to Take Off Her Clothes, Without More, Was Not Enough

The Second Department determined the evidence did not support the attempted rape conviction. Although it could be inferred defendant intended to commit a sexual offense (he twice told the victim to take off her clothes), he never touched the victim, made a verbal demand for sex, or removed any of his clothes:

… [W]e find that it was legally insufficient to establish the defendant’s guilt of attempted rape in the first degree beyond a reasonable doubt. The complainant testified that she was sleeping in her bedroom when she awakened to find the defendant, who had entered her house through a window, standing in her bedroom. He initially demanded money from her. After she told him twice that she had none, he yelled at her “take your clothes off.” He then walked around the left side of the bed towards her, again yelled “take your clothes off,” and pulled back her bed covers. After he pulled down the covers, she began screaming and he turned and ran out. There was no evidence that the defendant touched the complainant or that he made a verbal demand to have sexual intercourse with her. Additionally, there was no evidence that the defendant undressed or that any of the complainant’s clothes were removed.

Although it could be reasonably inferred from the evidence adduced at trial that the defendant intended to engage in some type of criminal sexual conduct, it cannot be inferred that he attempted to engage in sexual intercourse by forcible compulsion pursuant to Penal Law § 130.35(1) … . People v Mais, 2015 NY Slip Op 08195, 2nd Dept 11-12-15

 

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Reversible Error to Admit Hearsay Statements Made by the Victim Four Years After the Alleged Incident Under the “Prompt Outcry” Exception to the Hearsay Rule

The Third Department ordered a new trial in a sexual assault case because hearsay testimony about what the victim said four years after the alleged assault was admitted under the “prompt outcry” exception to the hearsay rule (without any substantive explanation for the delay):

Whether a complaint is sufficiently prompt so as to fall within the exception is not a matter of precision and depends upon the facts of a given case … . That being said, “courts traditionally have required the complaint to be made ‘at the first suitable opportunity'” …, and “[a]ny significant delay must be adequately explained” … . Here, the victim did not disclose the abuse until 2011, four years after she and her sister were placed in the custody of her father and the abuse had ended. The victim testified that she waited so long to disclose the abuse because defendant had threatened to kill her if she told anyone, but that threat was made during a supervised visit between the victim and defendant. The visitation had ceased well before the disclosures were made, and the victim had neither seen nor spoken to defendant since 2009. We are left, in other words, with disclosures that were made four years after the abuse ended and over two years after the victim last interacted with defendant … .

The People suggest that this prolonged delay can be attributed to the facts that the victim had sustained psychological trauma and suffered from a mild neurological impairment. Research indeed “suggest[s] that withholding a complaint may not be unusual,” but that fact is not dispositive in assessing whether a complaint was made promptly … . To hold otherwise would run against the very purpose of the exception, namely, to address “the tendency of some jurors to doubt the victim in the absence of” a prompt complaint of abuse … . As for the victim’s neurological condition, it suffices to say that no proof in the record suggests that it would have compelled her to remain silent for such a long period of time. Thus, given the absence of any adequate explanation for the victim’s prolonged delay in disclosing the abuse, her disclosures cannot be described as prompt outcries, and the hearsay testimony regarding them should not have been admitted into evidence … . Inasmuch as the evidence of guilt in this case was not overwhelming — indeed, the verdict hinged on the question of whether the victim was credible — we cannot say that the erroneous admission of this bolstering hearsay was harmless … . People v Stone, 2015 NY Slip Op 08205, 3rd Dept 11-12-15

 

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Intoxication Jury Instruction Was Warranted, Conviction Reversed

In reversing defendant’s conviction, the Second Department determined there was sufficient evidence of defendant’s intoxication to warrant the intoxication jury instruction:

The defendant’s convictions of assault in the second degree and criminal possession of a weapon in the fourth degree arise out of an incident during which the defendant allegedly struck another man (hereinafter the complainant) with a metal pipe in the presence of the complainant’s wife. Viewing the intoxication evidence in the light most favorable to the defendant …, we conclude, contrary to the Supreme Court’s determination, that an intoxication instruction (see Penal Law § 15.25) was warranted … . The complainant’s wife testified that, just prior to the subject assault, she observed the defendant with a can of beer in his hand and that the defendant seemed drunk. She further testified that the defendant’s breath smelled like beer, his speech was slurred, and that the defendant, with whom she was familiar, was “not himself.” Under these circumstances, there is “sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis” … . Accordingly, the Supreme Court erred in denying the defendant’s request to give an intoxication instruction to the jury and, thus, reversal is warranted … . People v Goldring, 2015 NY Slip Op 08189, 2nd Dept 11-12-15

 

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