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Gun Found In Juvenile’s Shoe (After Juvenile Was Told to Remove His Shoes) Should Have Been Suppressed—Juvenile Could Not Be Arrested and Detained for a Violation (Disorderly Conduct Is Not a Crime) and Nothing More than a Frisk Is Justified During a Temporary Detention Pending the Arrival of a Juvenile’s Parents

The Second Department, over a two-justice dissent, determined that the search of the 15-year-old appellant (Jamal) was illegal and the gun found in appellant's shoe should have been suppressed.  The appellant, who had already been searched twice, was being wrongfully detained on a disorderly conduct charge (a violation, not a crime) at the time he was told to take off his shoes:

CPL 140.10 permits a police officer to arrest a person for any “offense” that is committed in the officer's presence. The term “offense” is broadly defined to include conduct for which a sentence to a term of imprisonment or a fine is provided by state or local law (see Penal Law § 10.00 [1]). Family Court Act § 305.2(2), however, provides that “[a]n officer may take a child under the age of sixteen into custody without a warrant in cases in which he [or she] may arrest a person for a crime . . . .” The term “crime” includes only misdemeanors and felonies, not violations (see Penal Law § 10.00[6]). Accordingly, a search may be conducted where a juvenile is taken into custody for conduct which, if committed by an adult, would constitute a crime … . As disorderly conduct is not a crime, Family Court Act § 305.2(2) prohibited Jamal's warrantless arrest for that offense … . Based on this record, it is clear that upon learning that Jamal was a juvenile the police nonetheless kept him under arrest with no statutory authority for doing so. * * *

…[W]hen Jamal was being held pending his parents' arrival, he was under temporary detention as opposed to arrest. “A temporary detention justifies only a frisk, not a full-fledged search” … . The removal of Jamal's shoes was far more intrusive than a frisk or a patdown … . We find no merit to the presentment agency's argument that safety required the removal of Jamal's shoes. “The touchstone of the Fourth Amendment is reasonableness . . .” … . Considerations of safety provide no justification in this case where Jamal was continuously in police custody and had been searched twice before being directed to remove his shoes. It is of no moment that Jamal was directed to remove his shoes pursuant to an alleged standard procedure. “[A]n unreasonable search is not somehow rendered reasonable, and therefore constitutionally permissible, by the mere fact that a departmental procedure was followed” … . The standard of reasonableness still applies … . We recognize that in appropriate cases law enforcement officers are authorized to employ reasonable measures to guard against detainees' self-infliction of harm. Such reasonable measures may include the removal of belts and shoelaces … . Nonetheless, the removal of Jamal's shoes cannot be justified as a protective measure where, as noted above, he had been twice searched by police officers who had no reason to expect that he had “anything on him” or otherwise posed a danger. Matter of Jamal S, 2014 NY Slip Op 08470, 1st Dept 12-4-14

 

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Criteria for a Legal Malpractice Action Re: the Attorney’s Performance In a Criminal Trial Explained—Here Plaintiff’s Conviction Was Reversed and Plaintiff Made a Colorable Claim of Innocence

The Third Department determined a legal malpractice action brought by a client represented by the defendant-attorney in a criminal trial properly survived summary judgment.  The defendant's conviction had been overturned by the Third Department and he was not reprosecuted.  Deficiencies in defendant's representation were noted in the reversal-decision:

In a legal malpractice claim, proximate cause is established by demonstrating that “but for the attorney's negligence, [the plaintiff] would have prevailed in the underlying matter or would not have sustained any ascertainable damages”… . Stated differently, “[t]he test is whether a proper defense would have altered the result of the prior action” … which, in the context of a criminal action, requires proof that the criminal defendant would not have been convicted … . Further, “[f]or malpractice actions arising from allegations of negligent representation in a criminal matter, the plaintiff must have at least a colorable claim of actual innocence” … . We find that a colorable claim has been demonstrated here based upon plaintiff's expressed assertions of innocence, together with our reversal of the judgment of conviction, as well as the District Attorney's decision not to reprosecute plaintiff and the consequent dismissal of the indictment … . * * *

Contrary to defendant's argument, plaintiff has sufficiently alleged pecuniary damages …, i.e., damages that “compensate the victim for the economic consequences of the injury” … . Arnold v Devane, 2014 NY Slip Op 08534, 3rd Dept 12-4-14

 

Statute of Limitations Defense Waived If Not Raised in a Timely Motion to Dismiss

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

 

Superior Court Information Jurisdictionally Defective—It Did Not Include Any Offense (or Any Lesser-Included) Which Was in the Original Felony Complaint

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

 

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The Arresting Officer’s Stepping in Front of the Appellant As the Appellant Walked Away Was Not a Seizure But Rather Was a Continuation of the Officer’s Common-Law Right to Inquire

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

 

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Grand Larceny 4th and Criminal Possession of Stolen Property 4th, as Those Statutes Relate to Credit/Debit Cards, Require the Theft and Possession of the Physical Card Itself, Not Merely the Unauthorized Use of the Credit/Debit Card Number—Other Offenses in the Penal Law Criminalize the Unauthorized Use of Credit/Debit Card Numbers

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

 

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Trial Court Abused Its Discretion When It Disqualified Defense Counsel Over Defendant’s Objection on Conflict of Interest Grounds—The Fact that a Co-Defendant Had Been Represented by Another Attorney from the New York County Defender Services (NYCDS) Did Not Create a Conflict for Defendant’s NYCDS Attorney—Defendant’s Attorney Did Not Have Access to Any Information Provided by the Co-Defendant (Who Had Already Pled Out)—Client Confidences Are Not Generally Shared by Attorneys Within a Large Institution Like the NYCDS, As They Might Be Within a Private Law Firm

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


 

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Criteria for Presentation of Defense Expert Re: the Accuracy of Eyewitness Testimony Explained (Criteria Not Met Here)

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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Mistrial Declaration Over Defendant’s Objection Was “Manifestly Necessary”—Double Jeopardy Prohibition Not Triggered

The Second Department determined the trial judge had no choice but to declare a mistrial when defense counsel could not proceed because of a conflict and new counsel needed a two-month adjournment.  Because the mistrial, granted over defendant’s objection, was “manifestly necessary” the double jeopardy prohibition of a second trial was not triggered:

The double jeopardy clauses of the New York State and United States Constitutions protect an accused from multiple prosecutions for the same offense . “In a jury trial, once the jury is empaneled and sworn, jeopardy attaches, and the defendant has a valued right to have his trial completed by a particular tribunal'” … .

When a mistrial is granted over the defendant’s objection or without the defendant’s consent, a retrial is precluded unless ” there was manifest necessity for the mistrial or the ends of public justice would be defeated'” … . “Manifest necessity” means a ” high degree of necessity'” based on reasons that are ” actual and substantial'” … . Moreover, before declaring a mistrial, a court must explore all appropriate alternatives and must provide a sufficient basis in the record for resorting to this “drastic measure” …  . Matter of Roey v Lopresto, 2014 NY Slip Op 08340, 2nd Dept 11-26-14

 

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Retroactive Application of New Regulations Affecting the Revocation of Driver’s Licenses for Alcohol- and Drug-Related Convictions or Incidents Okay—No Vested Right Re: License to Drive

The Third Department determined the new regulations concerning the effect of alcohol- or drug-related convictions or incidents can be applied retroactively because they do not affect a vested right:

“Retroactive statutes are those which impair vested rights or alter past transactions or considerations” … . Here, however, petitioner’s driver’s license is not generally viewed as a vested right, but merely a personal privilege subject to reasonable restrictions and revocation by respondent under her discretionary powers (see Vehicle and Traffic Law §§ 510 [c]; 1192 [2]…). Thus, respondent remained free to apply her most recent regulations when exercising her discretion in deciding whether to grant or deny petitioner’s application for relicensing. This is especially so in light of the rational, seven-month moratorium placed on all similarly-situated applicants for relicensing — i.e., persons with three or more alcohol-related driving convictions (see NY Reg, Mar. 13, 2013 at 46…). Furthermore, inasmuch as the revised regulations operated only to nominally change the effect of petitioner’s past acts on his future eligibility to obtain a driver’s license and was not imposed as punishment but, rather, to promote public safety, respondent’s application of 15 NYCRR 136.5 (b) (2) was proper under these circumstances (see … State Administrative Procedure Act § 202 [6]). Matter of Scism v Fiala, 2014 NY Slip Op 08283, 3rd Dept 11-26-14

 

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