The Second Department noted that the statute of limitations defense to misdemeanors is waived if not raised in a timely motion to dismiss. The misdemeanor convictions therefore are valid:
The defendant waived his claim that the two misdemeanor counts of which he was convicted were barred by the statute of limitations by not making a timely motion to dismiss on that ground … . People v Sylvestre, 2014 NY Slip Op 08464, 2nd Dept 12-3-14
The Second Department determined the superior court information to which defendant pled guilty after waiving indictment was jurisdictionally defective because it did not include at least one offense that was in the original felony complaint (or a lesser-included offense):
The defendant was charged, by felony complaint, with criminal possession of a controlled substance in the third degree under Penal Law § 220.16(12), a class B felony. He waived indictment by a grand jury and pleaded guilty under a superior court information to attempted criminal possession of a controlled substance in the third degree under Penal Law §§ 110.00 and 220.16(1), a class C felony. As the defendant contends and the People correctly concede, the judgment of conviction must be reversed, the plea vacated, and the superior court information dismissed.
The single count in the superior court information was not an “offense for which the defendant [had been] held for action of a grand jury” (CPL 195.20), in that it was not an offense charged in the felony complaint or a lesser-included offense of an offense charged in the felony complaint … . Attempted criminal possession of a controlled substance in the third degree under Penal Law §§ 110.00 and 220.16(1) is not a lesser included offense of criminal possession of a controlled substance in the third degree under Penal Law § 220.16(12), because the former crime contains the element “with intent to sell” that is not an element of the latter crime (Penal Law § 220.16[1]; see CPL 1.20[37]…). Thus, it is clear that the superior court information upon which the defendant's plea was based did not “include at least one offense that was contained in the felony complaint” or a lesser-included offense of an offense charged in the felony complaint …, and the superior court information was jurisdictionally defective … . This defect survives the defendant's failure to raise this claim in the Supreme Court, his plea of guilty, and his waiver of the right to appeal … . People v Nemnon, 2014 NY Slip Op 08460, 2nd Dept 12-3-14
The Second Department determined the police officer who followed appellant as appellant walked away from him and then stepped in front of appellant acted properly. Suppression of the handgun seized from appellant after a pat down search, therefore, was not required. The arresting officer responded to a call describing a disturbance at a restaurant. The officer saw the appellant leave the restaurant and noticed a bulge in appellant's jacket pocket. The officer then began following the appellant and eventually caught up to him (and stepped in front of him). The court found that the officer's stepping in front of the appellant was not a seizure, but rather was a continuation of the officer's common-law right to inquire:
Contrary to the appellant's contention, the totality of the circumstances gave the officers a founded suspicion that criminal activity was afoot, which gave rise to the officers' common-law right to inquire … . While the appellant is correct that, initially, he had a constitutional right ” to be let alone' and to refuse to respond to police inquiry” …, under the circumstances presented here, the arresting officer's conduct in following and stepping in front of the appellant in an attempt to engage him was a continuation of the officer's own common-law right to inquire, not a seizure … . Hence, the conduct of the arresting officer in this regard was not improper.
Moreover, although the appellant continued to walk away from the arresting officer, the arresting officer kept pace with him, and ultimately approached him until they were only an arm's length away from each other. As such, it was proper for the officer to request that the appellant make his hands visible as a reasonable precautionary measure … . Additionally, from this close proximity, the officer observed what appeared to be the outline of a firearm in the appellant's right jacket pocket, which appeared to be pointed at the officer, placing him in fear for his safety. The officer thus properly conducted a limited pat-down search to determine if the bulge was a weapon … . Matter of Shariff H, 2014 NY Slip Op 08435, 2nd Dept 12-3-14
The Second Department, in a full-fledged opinion by Justice Balkin, determined that the crimes of grand larceny (4th degree) and criminal possession of stolen property (4th degree), as they relate to credit/debit cards, require the theft and possession of the physical card, not simply the use of the card number to make a purchase. [The 1st Department recently reached the opposite conclusion.] Here the juvenile (Luis) used his grandfather’s debit card number to purchase sneakers. The Second Department noted that there are provisions of the penal law which criminalize the unauthorized use of credit/debit card numbers (without physical possession of the card), but those crimes were not charged here:
…[G]iven the text of the provisions at issue, the context of the law and its development over the years, we agree with Luis and the Presentment Agency that “debit card” as used in Penal Law §§ 155.30(4) and 165.45(2) means the physical card, not the intangible account information associated with it. We also agree that, at bottom, this case involves errors made when the petition was drafted. Luis’s acts undoubtedly violated provisions of the Penal Law, but not the provisions charged in the petition.
A person who appropriates account information is not immune from punishment. The legislature has enacted laws to protect account information, in addition to the laws relating to the cards themselves. Specifically, in chapter 619 of the Laws of 2002, the legislature amended or added sections to various statutes in order to address the problem of people who engage in identity theft or use other people’s personal information without authorization. That legislation added the crimes of identity theft in the third, second, and first degrees (Penal Law §§ 190.78, 190.79, and 190.80), as well as unlawful possession of personal identification information in the third, second, and first degrees (Penal Law §§ 190.81, 190.82, and 190.83). Later, the legislature added “aggravated identity theft” (Penal Law § 190.80-a; see L 2008, ch 226, § 2). These provisions, similar to the provisions at issue in this case, make the criminal possession of account information a completed crime; no proof is required that the information was actually used.
One of the crimes added in 2002, unlawful possession of personal identification information in the third degree (Penal Law § 190.81), directly proscribes what Luis did in this case when he used his grandfather’s debit card number, without permission, to buy sneakers * * *:
Thus, just as the legislature added credit cards to the penal provisions of the law when the use of credit cards became widespread, and added debit cards when the use of debit cards became widespread, it also added provisions related to the unauthorized possession of the intangible account information when technology demanded.
We also note that crimes relating to the theft or possession of cards or account information are distinct from the crimes committed when the cards or account information are subsequently misused; the subsequent misuse is an additional crime, distinct from the taking of the card or the obtaining of the numbers … . Matter of Luis C, 2014 NY Slip Op 08428, 2nd Dept 12-3-14
The First Department, in a full-fledged opinion by Justice Kapnick, over a dissent, determined that the fact that a co-defendant (Stephens) had been represented by a New York County Defender Services (NYCDS) attorney did not create a conflict requiring the disqualification of defendant's trial attorney (Fisher), who also worked for the NYCDS. The court noted that Fisher was not privy to any confidences of Stephens (who had pled out shortly after arraignment) and there was little danger attorneys within a large institution like the NYCDS would share their clients' confidential information. Therefore Fisher could effectively cross-examine Stephens should he be called to testify (the People did not intend to call Stephens). The defendant did not want Fisher disqualified and was willing to waive any conflict:
As both the United States Supreme Court and the Court of Appeals have explained, the Sixth Amendment encompasses a right to select and be represented by one's preferred counsel. However, that right is not absolute …, and it must be balanced with the right to effective assistance of counsel … . Thus, trial courts are given “substantial latitude in refusing waivers of conflicts of interests not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses” … . …
Here … defendant not only challenges the trial court's refusal to accept his waiver of the potential conflict of interest, but also questions whether there was even a potential conflict of interest, in the first instance, where Fisher, who is a staff attorney at an institutional defense organization, never personally represented Stephens. It is crucial to recognize that here, unlike in other right to counsel cases, the proper initial inquiry is not whether defendant's waiver should have been accepted, but whether there was even a conflict or potential conflict of interest to waive in the first place. The court need only reach the issue of whether the waiver was properly accepted or denied after it has been established that there was a conflict or potential conflict of interest to waive. I find that on this record, no conflict or potential conflict of interest existed. * * *
Here, defendant and Stephens were arrested in connection with the same incident, but Stephens's case was already concluded by the time of Fisher's disqualification and, again, there was no evidence or suggestion that information concerning Stephens was ever shared with Fisher. Indeed, Fisher acknowledged that he would be barred from viewing his office's file on Stephens or using the address on file to try to locate Stephens; similarly no other attorney would have had access to NYCDS's file either. Thus … it cannot be said that the prior representation of Stephens by the same public defense organization created a potential conflict of interest. Although this Court is aware that the trial court's “discretion is especially broad” when balancing the right to counsel of a criminal defendant's choosing and the right to effective assistance of counsel free of conflicts … , under the specific circumstances here, we find that the trial court abused its discretion in disqualifying defendant's counsel. People v Watson, 2014 NY Slip Op 08383, 1st Dept 12-2-14
The Third Department explained the criteria for constructive possession. The fact that others might have access to the contraband does not disprove constructive possession, contraband can be possessed jointly with others:
“Where, as here, the People proceed upon the theory of constructive possession, they bear the burden of establishing that defendant exercised dominion and control over the contraband or the area where the contraband was found”… . Such possession may be shown through direct or circumstantial evidence, and does not require proof that no one else had access to the contraband or the premises … . While mere presence in the same location where contraband is found does not prove constructive possession …, the evidence here established that defendant–who was wearing only boxer shorts when he was found and identified one of the bedrooms where contraband was found as the one where he kept his clothes and belongings–was not merely present in the residence by happenstance at the time of the search, but lived there. When found, he was lying in close proximity to the laundry basket that contained the disassembled weapon, as though he had just placed it there. Further, shortly before the search, he had been seen in physical possession of a weapon by witnesses who identified him as the individual who fired a black handgun in the direction of a vehicle, and, later on the day of the shooting, another witness saw him holding a black semiautomatic pistol. Accordingly, the evidence went beyond defendant’s mere presence in the residence at the time of the search and established “a particular set of circumstances from which a jury could infer possession” of the contraband … . The fact that some of the contraband was found in defendant’s brother’s bedroom and other parts of the house to which family members also had access does not preclude a finding of constructive possession, as such possession may be joint, and all of the items were “readily accessible and available” to defendant… . People v McGough, 2014 NY Slip Op 08269, 3rd Dept 11-26-14
The Second Department determined the contents of an envelope containing defendant’s personal belongings, which included evidence of a robbery of which defendant was convicted, should have been suppressed. The defendant was in the hospital when the police officer asked for identification. The defendant indicated his belongings had been taken by the hospital. The officer then retrieved the envelope from the hospital security office and opened it. The Second Department determined that the fact that the officer thought the defendant was a crime victim (he had been stabbed) at the time he opened the envelope did not change the fact that the defendant’s fourth amendment rights were thereby violated:
“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” … . The People failed to meet their burden in this instance.
Initially, we note that the defendant had a legitimate expectation of privacy in his personal belongings, notwithstanding the fact that he was a hospital patient and his belongings were being temporarily stored in the hospital’s security office … . In addition, the fact that the officer perceived the defendant to be a victim rather than a suspect did not strip the defendant of Fourth Amendment protection … . People v Alston, 2014 NY Slip Op 08344, 2nd Dept 11-26-14
The Third Department determined a photo array was unduly suggestive because the nature of defendant’s picture was significantly different from the other photos:
Initially, a pretrial identification that is unduly suggestive violates due process and is therefore inadmissible against the defendant … . In this regard, a photo array is unduly suggestive if it “depicts a unique characteristic which draws the viewer’s attention so as to indicate that the police have selected a particular individual” … . “While the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure, it is the defendant who bears the ultimate burden of proving that the procedure was unduly suggestive” … . Where suggestiveness is shown, it is the People’s burden to demonstrate the existence of an independent source by clear and convincing evidence … .
Finding that the People met their initial burden to establish that the police conduct was reasonable and their procedure was not unduly suggestive, we turn to defendant’s ultimate burden. … The array depicts six individuals of equivalent age and ethnicity who are reasonably similar in appearance. However, we nonetheless find the array to be unduly suggestive to the extent that defendant’s photo draws the viewer’s immediate attention. Specifically, while the other five photos depict individuals from the shoulders up with the upper portion of their photos consisting of nothing more than a blank, gray background, defendant is shown from the chest up with the top of his head reaching to the very top of the photo. Thus, defendant’s face occupies the space that, in all of the other photos, is bare. In our view, this difference cannot be deemed minor and impermissibly “create[d] a substantial likelihood that the defendant would be singled out for identification” … . Thus, County Court improperly held that the photo array was not unduly suggestive. People v Smith, 2014 NY Slip Op 08268, 3rd Dept 11-26-14
The Second Department determined the arresting officer did not have reasonable suspicion that defendant posed a threat to his safety when he patted defendant down and retrieved a weapon from defendant’s waistband. Defendant, who was first observed merely standing and smoking a cigarette, had walked away from the police, turned his back to them and made a motion as if shoving something into his front waistband. The officer, seeing the bulge in defendant’s waistband, immediately patted the defendant down:
In People v De Bour (40 NY2d 210), the Court of Appeals established a “graduated four-level test for evaluating street encounters initiated by the police” … . The first level permits a police officer to request information from an individual, and merely requires that the request be supported by an objective credible reason, not necessarily indicative of criminality … . The second level, known as the “common-law right of inquiry,” requires a founded suspicion that criminal activity is afoot, and permits a somewhat greater intrusion short of a forcible seizure … . The third level permits a seizure, meaning that a police officer may forcibly stop and detain an individual, based upon a reasonable suspicion that an individual is committing, has committed, or is about to commit, a crime … . Finally, the fourth level authorizes an arrest based on probable cause to believe that a person has committed a felony or misdemeanor … .
Here, those branches of the defendant’s omnibus motion which were to suppress the gun and his statements should have been granted. Assuming that Officer Castillo was justified in conducting a common-law inquiry, he lacked reasonable suspicion to believe that the defendant posed a threat to his safety when he conducted a pat-down search of the bulge in his waistband … . The police were not responding to a report of a crime involving a weapon and, at most, suspected the defendant of being involved in the burglary of an abandoned house … . In addition, “[a]n unidentifiable bulge which is readily susceptible of an innocent as well as a guilty explanation’ is not sufficient to justify a pat-down search” … . The waistband bulge as described by Officer Castillo only permitted him to ask the defendant if he was carrying a weapon based on a founded suspicion that criminality was afoot … . Moreover, Officer Castillo did not testify that the defendant, upon turning to face the officers, reached for or had his hand on the bulge, or made any threatening or menacing gesture … . Under the totality of the circumstances, Officer Castillo was not justified in searching the defendant’s waistband bulge as a minimally intrusive self-protective measure. Accordingly, the hearing court should have granted those branches of the defendant’s omnibus motion which were to suppress the physical evidence and his subsequent statements to law enforcement officials. Since, in the absence of the suppressed evidence, there is insufficient evidence to prove the defendant’s guilt, the indictment must be dismissed … . People v Harris, 2014 NY Slip Op 08351, 2nd Dept 11-26-14
In finding that the defendant’s request to present expert evidence on the accuracy of eyewitness testimony was properly denied, the Second Department explained the relevant criteria:
Where a case “turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness’s identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror” … . Here, however, there was sufficient corroborating evidence connecting the defendant to the crimes to obviate the need for expert testimony * * *. People v Granger, 2014 NY Slip Op 08349, 2nd Dept 11-26-14
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