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Exclusion of Defendant’s Brother from the Courtroom Based Upon the Fear of a Testifying Witness Was Proper, Despite Lack of Express Findings by Trial Judge

The First Department determined the exclusion of a single spectator (defendant’s brother) during the testimony of a witness was proper, despite the absence of express findings by the trial judge. The witness expressed her fear of defendant’s brother. The court explained the analytical criteria:

The People established an overriding interest that warranted a courtroom closure that was limited to the exclusion of a single spectator during the testimony of a single witness … . Contrary to defendant’s arguments, the witness articulated a specific fear of testifying in the presence of defendant’s brother, and we find that this fear justified the limited closure … . The trial court was in the best position to determine whether the witness’ expression of fear rose to a level justifying the closure. We note that the court was aware of the brother’s approach to a different witness. Although “a timely objection . . . would have permitted the court to rectify the situation instantly by making express findings” …, defendant made no such objection, and thus did not preserve his complaint that the court failed to set forth express findings of fact to justify the exclusion of defendant’s brother. Accordingly, we decline to review this claim in the interest of justice. As an alternative holding, we find that the court’s ruling “implicitly adopted the People’s particularized showing” and was “specific enough that a reviewing court can determine whether the closure order was properly entered” .. . People v Williams, 2015 NY Slip Op 07335, 1st Dept 10-8-15

 

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Defendant’s Nodding In Agreement With a Statement Made by a Nontestifying Codefendant Properly Admitted as an Adoptive Admission

In finding that a prosecution witness was properly allowed to testify about a nontestifying codefendant’s statement and defendant’s nodding  in agreement. The defendant’s nodding was deemed an “adoptive admission:”

[Defendant’s] rights to due process and a fair trial, and his right of confrontation were not violated when Supreme Court allowed a prosecution witness to testify that defendant nodded in agreement to a statement made by a nontestifying codefendant. Defendant’s nonverbal response was admissible as an adoptive admission (… People v Lourido, 70 NY2d 428, 433), and the court properly instructed the jury in accordance with Lourido that the codefendant’s statements were being admitted solely to establish defendant’s “reaction . . . to that statement . . . [and] not for the truth of the statement” made by the codefendant … . People v Nafi, 2015 NY Slip Op 07132, 4th Dept 10-2-15

 

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Absence of Corroboration of Confession to Attempted Robbery Required Dismissal of Attempted Robbery Count—However Dismissal of the First Degree Murder and Felony Murder Counts, Both of Which Were Based Upon the Attempted Robbery, Was Not Required—The Death Itself Provided the Requisite Corroboration

The Fourth Department, in a detailed decision addressing several substantive issues not summarized here, found there was no proof of the attempted robbery count except defendant’s confession. The absence of corroboration required reversal of the attempted robbery count. However, with respect to the first degree murder and felony murder counts (for which attempted robbery was the underlying felony) the death itself provided sufficient corroboration:

“A person may not be convicted of any offense solely upon evidence of a confession or admission made by him [or her] without additional proof that the offense charged has been committed” (CPL 60.50…). With respect to the counts of murder in the first degree and felony murder, it is well settled that “CPL 60.50 does not require corroboration of defendant’s confession to the underlying predicate felony” to sustain a conviction of murder in the first degree or felony murder, when the charge is based on a murder committed in the course of and in furtherance of one of many enumerated felonies … . “The effect of the confession corroboration statute is to require proof of the corpus delicti” … . With felony murder and murder in the first degree, the corpus delicti is a death resulting from someone’s criminality, i.e., a death that did not occur by suicide, disease or accident … . The fact that the victim was found dead as the result of a gunshot wound is sufficient corroboration … .

The same analysis does not apply to the underlying felony itself. Where, as here, there is no corroboration of a defendant’s confession with respect to the underlying felony, that count of the indictment charging the defendant with the underlying felony must be dismissed … . People v Harper, 2015 NY Slip Op 07064, 4th Dept 10-2-15

 

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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