You are here: / Criminal Law
,

Criteria for Strip and Cavity Search Met

The Third Department determined the circumstances justified a strip search and a visual cavity search of the defendant. The court explained the relevant criteria:

…[T]he principles governing strip searches and body cavity examinations are set forth in People v Hall (10 NY3d 303 [2008], cert denied 555 US 938 [2008]). Insofar as is relevant here, “a strip search must be founded on a reasonable suspicion that the arrestee is concealing evidence underneath clothing and the search must be conducted in a reasonable manner. To advance to . . . a visual cavity inspection, the police must have a specific, articulable factual basis supporting a reasonable suspicion to believe the arrestee [has] secreted evidence inside a body cavity and the [ensuing] visual inspection must be conducted reasonably” … . Although the police cannot routinely subject all drug arrestees to visual cavity inspections, the police are permitted — in the context of formulating the particularized factual basis required for such inspections — “to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person”… . People v Cogdell, 2015 NY Slip Op 106031, 3rd Dept 3-12-15

 

,

Failure to Transcribe Portion of Voir Dire Not Reversible Error—Criteria Explained

The Third Department determined the failure to transcribe a portion of the voir dire did not require reversal (because the defendant did not request that it be transcribed and could show no prejudice).  The court explained the relevant analysis:

“Although we agree that verbatim recordation of the trial proceedings is the better practice, unless waived, the case law makes clear that the absence of a stenographic record does not, per se, require reversal of a defendant’s conviction” … . “‘Rather, a defendant must show that a request was made that the voir dire proceedings be recorded, the request was denied, and the failure to record the proceedings prejudiced him or her in some manner'” … . Here, voir dire was recorded, except one portion during which each counsel exercised peremptory challenges to the first panel of jurors. However, defendant did not request that this part (or any part) of voir dire be recorded … and, importantly, he does not assert that an incorrect ruling or any prejudicial error occurred during the omitted portion … . People v Chappelle, 2015 NY Slip Op 105486, 3rd Dept 3-12-15

 

,

“Constructive Possession” Theory Applied to Weapon Deemed to Have Been Discarded by Defendant During a Police Pursuit

The Third Department determined there was sufficient evidence defendant constructively possessed a weapon which was found near him after the police saw him discard something during a pursuit:

Constructive possession can be demonstrated where there is evidence — either direct or circumstantial — that defendant exercised “dominion and control over the weapon or the area in which it was found” … . The People presented testimonial evidence of several police officers, including Gregory McGee, who averred that, after hearing a gun shot during his overnight shift, his investigation led him to observe defendant turning a street corner on a bicycle. When defendant saw McGee’s marked police car, he became visibly nervous and immediately clutched the right side of his waistband. Believing that defendant was armed, McGee exited his vehicle, drew his firearm and ordered defendant to show his hands. Defendant refused to comply with the directive and a physical encounter ensued. As McGee holstered his handgun and attempted to grab his taser, defendant fled on his bicycle. McGee then radioed for assistance while pursuing defendant on foot and a responding police officer, Jason Seward, pulled his patrol car onto the sidewalk in order to block defendant. McGee testified that, as defendant ran around the patrol car, he observed defendant’s hand emerge from under his sweatshirt and throw something, which created a sound of “metal hitting the ground.” As Seward continued to pursue defendant, McGee found a handgun on the sidewalk a few feet from Seward’s patrol car. Shortly thereafter, defendant was apprehended and the handgun was later confirmed to contain three rounds of “live” ammunition and one spent shell casing, indicating that the handgun had been fired once.

… “[V]iewing the evidence in a neutral light and according deference to the jury’s credibility determinations,” we find that defendant had constructive possession of the gun such that the conviction was not contrary to the weight of the evidence … . People v Butler, 2015 NY Slip Op 105216, 3rd Dept, 3-12-15

 

, ,

Presentation of Hearsay to Grand Jury Did Not Taint the Proceedings—Criteria Explained

The Third Department determined that the admission of hearsay before the grand jury (the audio of a videotape which could not be muted) did not constitute reversible error, mainly because the prosecution did not intentionally present inadmissible evidence:

We first address defendant’s argument that the grand jury’s exposure to inadmissible hearsay so tainted the proceedings that dismissal of the indictment is required. Dismissal of an indictment is an extreme remedy that is limited to “‘those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the [g]rand [j]ury'” … . Defendant’s challenge relates to a recording of the bar’s security camera footage that depicted the attack on the victim. Specifically, the victim’s son made a video recording of a monitor as it played the surveillance footage, during which recording he and another person can be heard making several comments regarding the severity of the attacks upon the victim. The People explained to Supreme Court that they were unable to mute the video as it was being played during grand jury proceedings, and that the prosecutor provided an instruction to disregard the audio component of the video recording. Thus, it is apparent that the People did not intentionally present inadmissible hearsay or otherwise engage in an “over-all pattern of bias and misconduct” … . Moreover, in light of the ample evidence supporting the assault in the second degree charge against defendant, we find no basis to determine that the hearsay evidence rendered the indictment defective … . People v Boddie, 2015 NY Slip Op 105524, 3rd Dept 3-12-15

 

,

Defendant Properly Precluded from Introducing Medical Records Without Accompanying Medical Testimony

The Third Department determined defendant was properly precluded from placing his hospital records into evidence in the absence of any accompanying medical testimony.  The defendant in this DWI case wanted to use the hospital records to demonstrate his failure of the sobriety tests was due to his medical condition, not intoxication.  The trial court correctly ruled that, without accompanying medical testimony, the jury would have to speculate about the meaning of the hospital records:

In support of his theory that his failure of the field sobriety tests was caused by his medical ailments as opposed to intoxication, defendant sought the admission of his hospital records — unaccompanied by any testimony from a medical professional. County Court denied the relief, concluding that defendant’s hospital records, while generally admissible pursuant to CPLR 4518, would lead the jury to speculate as to defendant’s medical condition unless a medical professional offered an explanation. The court did permit defendant to testify regarding his physical condition and hospital treatment, and to introduce photographs of his injuries at trial … . Inasmuch as the hospital records, without explanatory testimony, would have required the jury to speculate as to whether defendant’s injuries caused him to fail the sobriety tests, we find that the court properly excluded them … . People v Collins, 2015 NY Slip Op 105558, 3rd Dept 3-12-15

 

, ,

Criteria for Balancing the Need for a Public Trial and First Amendment Rights (Freedom of the Press) With the Defendant’s Right to a Fair Trial Discussed in Some Detail—Here the Court’s Sealing of Some Records and Closures of the Courtroom Reflected a Proper Discretionary Balance

The First Department, in a detailed decision, determined Supreme Court had properly balanced the requirement that a criminal trial be open to the public and the defendant’s right to a fair trial.  Because the court properly used its discretion to balance the two concerns neither mandamus nor prohibition was an available remedy.  The decision is worth reading—many of the issues discussed are not noted here:

The First Amendment guarantees the public and the press a qualified right of access to criminal trials … . This right must be kept in balance with the compelling interest of the defendant’s Sixth Amendment right to a fair trial and the right to privacy of prospective jurors … . The public’s right of access may be limited where there is a compelling governmental interest and closure is narrowly tailored to serve that interest … .

New York’s approach to courtroom closure is “comparable to the federal analysis” … . The press is not imbued with any special right of access, and while it possesses “the same right of access as the public,” it has no right to information about a trial that is “greater” or “superior” to that of the general public … . A ” trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity'” … . Decisions to seal or disclose records fall within the inherent power of the court to control the records of its own proceedings … . While a court must guarantee that the defendant receives a fair trial, it must do so in a manner that balances the interests of “the defendant, jurors, witnesses, attorneys and the public at large” … . Matter of Daily News, L.P. v Wiley, 2015 NY Slip Op 02010, 3rd Dept 3-12-15

 

,

Delay In Coming Forward With Defendant’s Alibi Was a Proper Subject of Cross-Examination After Foundational Requirements Were Met

The Second Department determined defendant’s girlfriend was properly cross-examined about her delay in coming forward with defendant’s alibi.  The prosecutor laid the proper foundation for the cross-examination:

…[T]he People properly elicited testimony from his girlfriend during cross-examination regarding her delay in coming forward to the authorities with certain exculpatory information. Before a defense witness may be cross-examined regarding his or her failure to come forward with exculpatory information at an earlier date, certain foundational requirements must first be met … . Here, the prosecutor laid the necessary foundation prior to cross-examining the defendant’s girlfriend about her apparent delay in informing law enforcement authorities of the defendant’s alibi. The record indicates that, during a bench conference, it was ascertained that the defendant’s girlfriend had not refrained from speaking to authorities under the advice of defense counsel. Moreover, the court instructed the jury that the defendant’s girlfriend had no obligation to volunteer exculpatory information to law enforcement authorities. Under these circumstances, the People properly elicited evidence during the cross-examination of the defendant’s girlfriend that she delayed in contacting the authorities with exculpatory evidence … . People v Webster, 2015 NY Slip Op 01974, 2nd Dept 3-11-15

 

,

Failure to Follow Statutory Risk-Level-Determination Procedure Violated Defendant’s Due Process Rights

The Second Department determined that ignoring the statutory SORA risk-level-determination procedure violated defendant’s due process rights. The court exercised its interest of justice jurisdiction in the absence of an objection by the defendant:

Supreme Court sentenced the defendant to two one-year terms of incarceration, without any probation supervision. The court conducted the risk assessment hearing and made its risk level determination immediately prior to imposing sentence, and did so using a risk level assessment instrument prepared by the District Attorney’s office. This procedure violated SORA and deprived the defendant of his right to due process … . Pursuant to the SORA statutory scheme, a risk level determination should not have been made until 30 days before the defendant’s release from custody (see Correction Law § 168-n[2]…). The court’s determination should have been preceded by the Board’s risk level recommendation, and the defendant should have been notified of the opportunity to submit to the Board any information that he believed was relevant for its review … . People v Grabowski, 2015 NY Slip Op 01930, 2nd Dept 3-11-15

 

,

Search of Backpack Which Was No Longer In Defendant’s Possession, After Defendant Had Been Handcuffed, Justified by Exigent Circumstances

In finding the suppression motion was properly denied. The Second Department explained the law which justified the pre-arrest detention of the defendant and the search of defendant’s backpack after defendant was handcuffed. The officer received a report of a shooting at a residence. The officer knew the defendant lived at the residence and saw blood on defendant’s clothes.  The defendant was handcuffed and his backpack was placed on a car about three feet away.  After the defendant was handcuffed he told the officer his brother had been shot and the guns were in the backpack.  At that point the officer had probable cause to arrest for criminal possession of a weapon and could search the backpack incident to arrest due to exigent circumstances:

Supreme Court properly denied that branch of his omnibus motion which was to suppress physical evidence recovered incident to his arrest. “On a motion to suppress physical evidence, the People bear the burden of going forward to establish the legality of police conduct in the first instance” … . “Under the State Constitution, an individual’s right of privacy in his or her effects dictates that a warrantless search incident to arrest be deemed unreasonable unless justified by the presence of exigent circumstances” … . For “compelling reasons,” including the safety of the officers or the public, “a search not significantly divorced in time or place from the arrest’ may be conducted even though the arrested person has been subdued and his closed container is within the exclusive control of the police” … . People v Alvarado, 2015 NY Slip Op 01955, 2nd Dept 3-11-15

 

,

Defendant’s Counsel Took a Position Adverse to Defendant’s Motion to Vacate His Guilty Plea—Court Should Have Appointed New Counsel Before Hearing the Motion

The Second Department determined defendant should be appointed new counsel because his original counsel took a position adverse to the defendant’s motion to withdraw his guilty plea:

Prior to the imposition of sentence upon the defendant’s conviction of criminal possession of a controlled substance in the seventh degree, the defendant moved to withdraw his plea of guilty to that charge on the ground that his plea was not knowingly, intelligently, and voluntarily made. At sentencing, assigned counsel stated that the defendant’s plea was validly entered, and denied certain factual allegations raised by the defendant.

The defendant’s right to counsel was adversely affected when his attorney took a position adverse to his … . The Supreme Court should have assigned a different attorney to represent the defendant before it determined the motion … . People v Armstead,2015 NY Slip Op 01956, 2nd Dept 3-11-15

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy