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Issuance of a “No Knock” Warrant to Take a DNA Sample Was Not Justified—Sample Should Have Been Suppressed

The Third Department suppressed DNA evidence taken from the defendant pursuant to a “no knock” warrant and reversed defendant’s conviction. No exigent circumstances justified the “no knock” warrant which allowed the police to enter defendant’s home without notice and take the DNA sample:

The search warrant application to obtain DNA from defendant included the unsubstantiated and inaccurate allegations that the “search warrant cannot be executed between the hours of 6:00 A.M. and 9:00 P.M.,” “the property sought will be removed or destroyed if not seized forthwith,” and “[t]he property sought may be easily and quickly destroyed or disposed of.” There were no factual allegations reflecting exigent circumstances justifying the lack of any notice to defendant of the application to obtain a DNA sample from him. He could not destroy or dispose of his own DNA, and the People’s speculation in their brief that he might have fled was not alleged or supported by facts in the application.

The ensuing search warrant inconsistently stated both that it was to be executed between 6:00 a.m. and 9:00 p.m. and that it could be executed at any time day or night; and it further authorized police to enter the premises where defendant resided without giving notice of their authority or purpose. Under the authority of the warrant, police arrived unannounced at the place where defendant lived demanding his DNA. The total absence of notice to defendant of the search warrant application, which had obvious defects regarding the manner purportedly necessary to obtain defendant’s DNA, violated his constitutional rights and the DNA obtained in such search must be suppressed and the judgment reversed… . People v Walker, 2014 NY Slip Op 02975, 3rd Dept 5-1-14

 

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Preservation by Objection Not Required When Defendant First Learns of Post-Release Supervision Moments Before Sentencing

In a full-fledged opinion by Justice Egan, the Third Department vacated defendant's plea to a probation violation because no mention of a period of post-release supervision was made until moments before sentencing.  The court determined there was no need to preserve the error by objection because the defendant had so little time between notification of the post-release supervision and sentencing:

…[W]hether preservation is necessary hinges upon whether the defendant “had ample opportunity to object after the initial [reference to postrelease supervision] was made and before sentence was formally imposed” … . Thus, where “the court first mention[s] postrelease supervision only moments before imposing the sentence,” thereby depriving the defendant of a meaningful opportunity to weigh his or her options at that stage of the proceeding, preservation is not required … .

Although we are mindful that the matter before us concerns a plea of guilty to a violation of probation — as opposed to a plea of guilty to a crime — the analysis employed by the Court of Appeals …is equally applicable here. As noted previously, County Court made no mention of postrelease supervision during the course of defendant's plea colloquy …, nor does the record indicate that defendant otherwise was made aware — prior to entering her plea to the probation violation — that postrelease supervision would be a component of her sentence … . Rather, the need to impose a period of postrelease supervision was first raised at sentencing — quite literally moments before defendant's sentence actually was imposed … . Under these circumstances, preservation was not required, and County Court's failure to apprise defendant that postrelease supervision would be a component of her sentence mandates reversal. People v Bolivar, 2014 NY Slip Op 02980, 3rd Dept 5-1-14

 

Defendant’s Statement Was Made In Response to the Functional Equivalent of a Question Designed to Elicit an Incriminatory Response and Should Have Been Suppressed

The Third Department determined a statement made by the defendant after he had been arrested and was being transported to the police station was not “spontaneous” (as County Court found) and should have been suppressed. At the arrest scene one of defendant’s “associates” indicated defendant might have drugs in his anal cavity.  In the police car, an officer said to the defendant that he hoped defendant did not have any more drugs on him and the defendant said he probably did.  During a subsequent search drugs were found in defendant’s anal cavity. Although defendant’s statement indicating he probably had more drugs on him should have been suppressed because it was made in response to a police statement designed to elicit an incriminating response, the drugs themselves were not subject to suppression.  The Third Department determined the search which turned up the drugs was not triggered by the statement:

The admissibility of a statement made by a defendant in custody depends on whether it was “the product of ‘express questioning or its functional equivalent'” … . The operative question is whether, in context, “the officer should have known that his statement was ‘reasonably likely to evoke an incriminating response from the suspect'” … . In our view, County Court erred in concluding that the inculpatory statement was admissible because it was simply a spontaneous response to a declaration by [the officer]. For a statement to be spontaneous, it must be self-generated without “inducement, provocation, encouragement or acquiescense, no matter how subtly employed” … . Coming on the heels of [the officer’s] explanation that defendant would be searched as part of the booking process, and having been informed by the passenger that defendant may have hidden additional drugs on his person, we find [the officer’s] statement to be the functional equivalent of a question intended to elicit an incriminating response … . Since defendant was in custody and had not been given Miranda warnings, the statement should have been suppressed as involuntary. People v George, 2015 NY Slip Op 03574, 3rd Dept 4-30-15

 

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Juvenile Delinquency Adjudications Can Not Be Considered in the Criminal History Categories of a Risk Assessment Instrument (RAI)—However the Adjudications Can Be Considered When Deciding Whether to Depart from the Recommended Risk Level

The Third Department, in a full-fledged opinion by Justice Rose, indicated its prior rulings should not be followed and determined that juvenile delinquency adjudications may not be considered under risk factors 8 and 9 (criminal history) for the purpose of assessing points in the risk assessment instrument (RAI). However the adjudications may be considered in determining whether to depart from the recommended risk level:

Relying on People v Campbell (98 AD3d 5 [2d Dept 2012], lv denied 20 NY3d 853 [2012]), defendant contended that Family Ct Act § 381.2 (1) precluded the use of the juvenile delinquency adjudication and, without the 30 points for criminal history, defendant would be presumptively classified as a risk level I sex offender. County Court, citing our previous decisions in People v Pride (37 AD3d 957 [2007], lv denied 8 NY3d 812 [2007]) and People v Dort (18 AD3d 23 [2005], lv denied 4 NY3d 885 [2005]), denied defendant’s challenge to the 30-point assessment and classified defendant as a risk level II sex offender. Defendant appeals.

We reverse. We agree with the holding of People v Campbell (supra) that the Board “exceeded its authority by adopting that portion of the [Sex Offender Registration Act] Guidelines which includes juvenile delinquency adjudications in its definition of crimes for the purpose of determining a sex offender’s criminal history” (id. at 12; see Family Ct Act § 380.1 [1]…). Contrary to the People’s argument, the fact that the points at issue in Campbell were assessed under risk factor 8 of the RAI does not require a different conclusion because both risk factor 8 and risk factor 9 fall within the criminal history category of the RAI. To the extent that our prior decisions suggest that juvenile delinquency adjudications may be considered crimes for purposes of the RAI, we note that the conflict between the Guidelines and the Family Ct Act was not raised in those cases and they should no longer be followed. Our ruling is limited, however, to precluding the use of juvenile delinquency adjudications to assess points for criminal history under the RAI, and we do not hold that the facts underlying a juvenile delinquency adjudication may not be considered when determining whether to depart from the recommended risk level … . People v Shaffer, 2015 NY Slip Op 03586, 3rd Dept 4-30-15

 

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The Fact that One of Four Men Approached for a Level One Street Inquiry Ran Did Not Provide the Police with Reasonable Suspicion that Defendant, Who Obeyed the Police Commands, Was Involved in a Crime

The First Department determined that the police did not have sufficient cause to detain four men, including the defendant, on the street. The fact that one of the four men subsequently ran did not provide any additional justification for detaining defendant. The police had enough information about a near-by robbery only to justify a “level one” street inquiry of the four men, not detention.  While detained without sufficient cause, defendant was asked by the police to lift up his shirt, revealing a gun.  Absent “reasonable suspicion” of involvement in a crime, the defendant should not have been detained to await the show-up. Absent an indication defendant posed a danger to the police officers, the defendant should not have been asked to lift his shirt:

…[T]he group of men was in a location to which a group of robbers had been reported to have fled only minutes earlier, giving the officers an articulable reason for inquiring into why the men were in the area … . The question, then, is whether the encounter ever escalated to a point that the police would have been justified in holding the men at the scene while the complainant was transported to it.

…[R]easonable suspicion is a necessary predicate to a detention for a showup identification … . Further, a person’s flight is sufficient to create the reasonable suspicion necessary to escalate a level one or level two encounter to a level three detention, so long as other circumstances are attendant, such as a high-crime location and activity suggesting, although not alone creating, reasonable suspicion that the person fleeing the scene may be engaged in criminal conduct … . In all of the cases which discuss flight as the determining factor in creating reasonable suspicion, however, the defendant is the person who fled. Here, of course, defendant did not flee; he obeyed the officers’ direction to stop and to submit to their questioning. People v Thompson, 2015 NY Slip Op 03605 1st Dept 4-30-15

 

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Defendant Convicted of Violating an Unconstitutional Statute Has Committed No Crime

The Second Department, in vacating defendant’s conviction for attempted aggravated harassment, explained that when a substantive criminal statute, here Penal Law 240.30 (1), has been held unconstitutional, the defendant convicted of violating the statute has committed no crime:

“Where a substantive criminal statute has been held unconstitutional, there is no alternative but to give the decision retroactive effect for the declaration of unconstitutionality is a statement that the defendant has committed no crime” … [.] … [T]he Court of Appeals held that Penal Law § 240.30(1), as written at the time of the defendant’s conviction, was unconstitutionally vague and overbroad under both the state and federal constitutions … . Accordingly, the defendant’s conviction of attempted aggravated harassment in the second degree must be vacated … . People v Cesaire, 2015 NY Slip Op 03556, 2nd Dept 4-29-15

 

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The Defendant Had an Expectation of Privacy In an Envelope Containing His Personal Belongings—The Belongings Were Placed in the Envelope Upon Defendant’s Admission to a Hospital—Even though the Police Were Under the Impression the Defendant Was a Crime Victim, Not a Perpetrator, at the Time the Contents of the Envelope Were Examined, the Search Was Not Justified—Defendant Had an Expectation of Privacy Re: the Contents of the Envelope—The People Were Unable to Meet their “Burden of Going Forward” at the Suppression Hearing Because They Could Not Demonstrate the Legality of the Police Conduct

The Second Department ordered a new trial after determining defendant’s motion to suppress should have been granted.  Defendant was admitted to a hospital with a gunshot wound and a ring and his cell phone in his possession were placed in an envelope by hospital personnel.  Defendant was later identified as the perpetrator of a robbery who was shot by the homeowner.  The ring in the envelope had been stolen in the robbery.  At the time the police at the hospital opened the envelope, however, they were under the impression the defendant was a victim and the cell phone was examined in an attempt to identify next of kin. The Second Department held that, notwithstanding the defendant’s ostensible status as a “victim,” not a perpetrator, he had an expectation of privacy in the contents of the envelope and the police not were not justified in opening the envelope and examining its contents.  The People failed to meet their “burden of going forward” at the suppression hearing because the legality of the police conduct was not demonstrated:

“On a motion by a defendant to suppress physical evidence, the People have the burden of going forward to show the legality of the police conduct in the first instance'” … . Here, the People did not meet this burden. The People’s contention that the police had probable cause to search the bag containing the defendant’s personal belongings because it contained evidence of a crime is without merit … . The defendant had an expectation of privacy in his personal belongings despite the fact that he was being treated at the hospital and his belongings had been taken by hospital personnel and given to the police for the purpose of safeguarding them … . “[T]he fact that the [police] perceived the defendant to be a victim rather than a suspect did not strip the defendant of Fourth Amendment protection” …, regardless of the Nassau detective’s testimony that the cell phone was searched for the purpose of finding next of kin information. People v Salvodon, 2015 NY Slip Op 03570, 2nd Dept 4-29-15

 

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The Decision Whether to Raise the Defense of Justification Is for the Defendant, Not Defense Counsel, to Make—Counsel Was Not Ineffective for Failing to Raise the Defense Over Defendant’s Objection—The Court Did Not Err By Failing to Instruct the Jury, Sua Sponte, on the Justification Defense In Response to a Jury Note Which Indicated the Jury Was Considering It

The Second Department, in a detailed and extensive opinion by Justice Mastro (not fully summarized here), over an equally detailed and extensive two-justice dissent, determined that defense counsel was not ineffective, and the court did not err, in rejecting the justification defense.  The defendant, accused of murder, insisted on a misidentification defense in this one-eyewitness case.  The defendant made it clear he did not want to rely on the justification defense (which would contradict his claim of innocence). In response to a jury note which implied the jury was considering whether the defendant had acted in self-defense, the judge, in accordance with the wishes of defense counsel, did not explain the justification defense to the jury and directed the jury to consider only the issue of intent.  On appeal, the defendant argued defense counsel was ineffective in not raising the justification defense and the judge erred by not instructing the jury on the defense sua sponte in response to the jury’s note.  In rejecting those arguments, the Second Department held that the decision whether to rely on the justification defense was for the defendant, not defense counsel, to make, and no error was made by defense counsel or the judge in following defendant’s wishes:

…[W]hen a defendant accepts the assistance of counsel, he or she retains authority only over certain fundamental decisions, such as whether to plead guilty, whether to waive a jury trial, whether to testify at trial, and whether to take an appeal … . Matters of strategy and tactics, such as whether to request the submission of lesser-included offenses for the jury’s consideration …, whether to seek or consent to a mistrial … , or whether to introduce certain evidence at trial …, generally fall within the purview of counsel. However, and of particular significance in the present case, the Court of Appeals has made clear that “a defendant unquestionably has the right to chart his own defense” … . Contrary to the defendant’s current position, his decision to pursue a defense based solely on misidentification, and to affirmatively reject an alternate defense based on justification in steadfast furtherance of that misidentification defense, involved a matter that was “personal” and “fundamental” to him …, and “did not implicate a matter of trial strategy or tactics” … . Indeed, under our law there simply is no more personal and fundamental right than that of the accused to rise before the trial justice and proclaim—to the court and to the world—his or her complete factual innocence of the crimes with which he or she has been charged. To require defense counsel in this case, over his client’s objection, to undermine that assertion of innocence by the injection into the case of a factually and logically inconsistent defense would, under the circumstances presented, impermissibly compromise that personal right. People v Clark, 2015 NY Slip Op 03558, 2nd Dept 4-29-15

 

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The Prosecutor’s Acting As an Unsworn Witness (Suggesting He Had Been Present at a Trial In Which the Defense Expert Had Lied) and The Prosecutor’s Repeated Questioning of the Expert and Another Defense Witness About Their Alleged Lying Deprived Defendant of a Fair Trial on the Murder Count

The Second Department reversed defendant’s murder conviction because of the misconduct of the prosecutor in questioning the defense expert and another defense witness.  The prosecutor acted as an unsworn witness by suggesting he was present in a trial where the defense expert lied and the prosecutor improperly and repeatedly questioned the expert and another defense witness about their alleged lying:

The prosecutorial misconduct during the voir dire questioning and cross-examination of the defense’s expert included statements that the expert had repeatedly lied to judges in other cases and during his testimony in the instant case. In addition, the prosecutor presented himself as an unsworn witness at the trial, suggesting that he had been present at the trial of another case at which the defendant’s expert had lied. The prosecutor furthermore repeatedly questioned another defense witness about lying. The cumulative effect of this misconduct … unfairly deprived the defendant of the ability to present his defense of extreme emotional disturbance to the charge of murder in the second degree … . People v Martinez, 2015 NY Slip Op 03568, 2nd Dept 4-29-15

 

Attempted Criminal Possession of a Weapon Third Degree Is Not a Violent Felony When It is the Top Count of an Indictment—It is a Violent Felony Only If It Is a “Lesser Included” Offense

The Second Department determined defendant was improperly sentenced as a second violent felony offender.  Attempted criminal possession of a weapon in the third degree is not a violent felony when it is the top count in an indictment (as it was in this case).  It is only considered a violent felony when it is a “lesser included” offense:

In People v Dickerson (85 NY2d 870, 871-872), the Court of Appeals determined that a plea of guilty to attempted criminal possession of a weapon in the third degree, when charged in “the top count” of a superior court information, did not constitute a violent felony pursuant to Penal Law § 70.02(1)(d). Under Penal Law § 70.02(1)(d), the crime of attempted criminal possession of a weapon in the third degree constitutes a class E violent felony offense only when the defendant is convicted of such charge as “a lesser included offense . . . as defined in section 220.20 of the criminal procedure law.” CPL 220.20(1) defines a “lesser included offense” as one where the defendant pleads “to an offense of lesser grade than one charged in a count of an indictment.” “Thus, according to the plain statutory language, a class E violent felony offense is reserved for accuseds who plead guilty to attempted criminal possession of a weapon in the third degree as a lesser included offense under an indictment charging a greater offense” (People v Dickerson, 85 NY2d at 872). Here, in 2005, the defendant entered a plea of guilty to attempted criminal possession of a weapon in the third degree as the sole count of a superior court information. Therefore, the defendant’s conviction of that crime, upon his plea of guilty, did not constitute a violent felony pursuant to Penal Law § 70.02 (1)(d) … . People v Millazzo, 2015 NY Slip Op 03569, 2nd Dept 4-29-15

 

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