You are here: / Criminal Law
,

Proof Requirements for Constructive Possession of Contraband Explained

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

 

,

Defendant’s Fourth Amendment Rights Violated When Officer Opened an Envelope Containing Defendant’s Personal Belongings at the Hospital Where Defendant Was Being Treated—The Fact that the Officer Thought Defendant Was a Crime Victim at the Time Does Not Matter—The Personal Belongings, Which Included Evidence of a Robbery, Should Have Been Suppressed

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

 

Photo Array Unduly Suggestive—Proof Burdens Explained

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

 

,

Officer Did Not Have Reasonable Suspicion Defendant Posed a Danger—Pat-Down Search Triggered by a Bulge In Defendant’s Waistband Was Not Justified Under the DeBour Test

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

 

,

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

 

, ,

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

 

, ,

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

 

,

Anonymous Tip Alone, In the Absence of “Predictive Information,” Sufficient to Provide “Reasonable Suspicion” Justifying a Vehicle Stop

The Court of Appeals, in a short memorandum decision followed by lengthy concurring/dissenting opinions, determined that anonymous tips were sufficient to justify a vehicle stop in two cases (tips alleged possession of a weapon), but insufficient in a third case (tip alleged driver was sick or intoxicated). The concurring/dissenting opinions dealt with whether the “Aguilar-Spinelli” test or the “totality of the circumstances” test should be applied where reasonable suspicion (not probable cause) was required to justify a vehicle stop, and whether an anonymous tip alone, in the absence of so-called “predictive information,” could be sufficient to justify a vehicle stop.  The significance of the decision is that an anonymous tip alone was found sufficient, under both the “Aguilar-Spinelli” and “totality of the circumstances” tests, in two of the three cases:

Regardless of whether we apply a totality of the circumstances test or the Aguilar-Spinelli standard (see Spinelli v United States, 393 US 410 [1969]; Aguilar v Texas, 378 US 108 [1964]), there is record support for the lower courts’ findings that the stops were lawful in People v Argyris and People v DiSalvo. The police had reasonable suspicion to stop defendants’ vehicle based on the contents of a 911 call from an anonymous individual and the confirmatory observations of the police. Specifically, because sufficient information in the record supports the lower courts’ determination that the tip was reliable under the totality of the circumstances, satisfied the two-pronged Aguilar-Spinelli test for the reliability of hearsay tips in this particular context and contained sufficient information about defendants’ unlawful possession of a weapon to create reasonable suspicion, the lawfulness of the stop of defendants’ vehicle is beyond further review. Furthermore, under these circumstances, the absence of predictive information in the tip was not fatal to its reliability … .

In People v Johnson, whether evaluated in light of the totality of the circumstances or under the Aguilar-Spinelli framework, the reliability of the tip was not established. The caller’s cursory allegation that the driver of the car was either sick or intoxicated, without more, did not supply the sheriff’s deputy who stopped the car with reasonable suspicion that defendant was driving while intoxicated (see generally People v DeBour …) . Although the deputy observed defendant commit a minor traffic infraction, this did not authorize the vehicle stop because he was outside his geographical jurisdiction at the time of the infraction (see CPL 140.10 [2] [a]), and defendant’s actions in committing the violation did not elevate the deputy’s suspicion sufficiently to justify the stop of defendant’s car. People v Argyris, 2014 NY Slip Op 08220, CtApp 11-25-14

 

Defendant’s Inability to Articulate a Reason for the Withdrawal of His Plea Was a Proper Basis for Refusal of His Request for An Adjournment of Sentencing to Consider Withdrawal of the Plea

The Court of Appeals, over a dissent, determined defendant’s request for an adjournment of sentencing to consider whether he should withdraw his plea was properly denied (despite the absence of prejudice to the People) because defendant was unable to articulate a reason for withdrawing the plea:

Whether to grant an adjournment is within Supreme Court’s discretion … . Based upon the colloquy at sentencing, defendant had more than a fair amount of time to speak with counsel regarding his interest in withdrawing his plea. Although defendant was out of custody for two months, having been released on his own recognizance following his plea allocution, the record reflects that he only contacted defense counsel the day before sentencing in order to discuss his plea concerns. Despite defense counsel’s inability to meet with defendant that day, defense counsel stated during sentencing that she had spoken with defendant that morning. People v Spears, 2014 NY Slip Op 08221, CtApp 11-25-14

 

,

Indictment Rendered Duplicitous By Trial Evidence Is Not a Mode of Proceedings Error—The Error Must Therefore Be Preserved by an Objection to Be Raised on Appeal

Resolving a split among the appellate division departments, the Court of Appeals determined that an indictment rendered duplicitous by the trial evidence is not a “mode of proceedings” error and the error must therefore be preserved in order to raise it on appeal. The indictment charged one count of attempted murder.  But the evidence presented two different occurrences to which the single count could apply:

The [1st] and [2nd] Departments have held that where it is claimed that the trial evidence has rendered a count duplicitous, the issue must be preserved for review … . The [4th] Department, however, has held that duplicity created by trial evidence violates a defendant’s right to be tried and convicted only of the crimes and theories charged in the indictment, which is a fundamental and non-waivable right, and that such error also violates a defendant’s right under CPL 310.80 to a unanimous verdict, and that preservation is unnecessary … .

As we held in People v Alvarez (20 NY3d 75, 81 [2012], cert denied — US &mdash, 133 S Ct 1736 [2013]), in relation to the constitutional right to a public trial, “preservation of public trial claims is still required. Bringing a public trial violation to a judge’s attention in the first instance will ensure the timely opportunity to correct such errors” … . Therefore, defendant’s argument that he need not preserve an issue that has constitutional significance is unconvincing.

Any uncertainty could have easily been remedied with an objection during opening statements, the witness testimony, or to the jury charge. Requiring preservation will prevent unnecessary surprise after the conduct of a complete trial. Accordingly, we hold that issues of non-facial duplicity, like those of facial duplicity, must be preserved for appellate review. People v Allen, 2014 NY Slip Op 08222, CtApp 11-25-14

 

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