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Probation Department’s Unauthorized Taking of DNA Evidence Required Suppression/Inevitable Discovery Doctrine Applied to Deny Suppression of Identification Evidence and Defendant’s Statement

The Second Department determined the unauthorized taking of a buccal swap from a probationer for DNA testing required suppression of the DNA evidence.  The fact that the defendant was on probation did not strip the defendant of his Fourth Amendment rights.  However, because another DNA sample had been properly taken from the defendant a few days before, the identification evidence and defendant’s statement should not have been suppressed pursuant to the inevitable discovery doctrine:

The hearing court properly suppressed DNA evidence as tainted since the Nassau County Probation Department (hereinafter the Probation Department) took an unauthorized buccal swab from the defendant, which was a bodily intrusion subject to the constraints of the Fourth Amendment … . * * * The defendant’s status as a probationer did not “justify departures from the customary constitutional standards that apply in other settings” …, where, as here, it is undisputed that the provision of a DNA sample was not a condition of the defendant’s probation under any statutory or judicial authority. Moreover, since the DNA sample taken from the defendant implicated his constitutional rights, we reject the People’s argument that the Probation Department, in taking the unauthorized buccal swab, only committed a statutory violation that did not warrant suppression of evidence … .

The record reveals that an authorized DNA sample was taken from the defendant in connection with another, unrelated charge only days before he was arrested on the charges at issue on this appeal. Since another DNA sample had been taken from the defendant prior to his arrest, the People established a very high degree of probability that the evidence in question would have been obtained independently of the tainted source during the normal course of police investigation … . Accordingly, the hearing court should not have suppressed the identification evidence and the defendant’s statement to the police.  People v Adams, 2014 NY Slip Op 06098, 2nd Dept 9-10-14

 

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Guilty Plea Precluded Litigation on Liability

The Second Department noted that a guilty plea in a criminal matter (in which plaintiff was injured by the defendant) can bar the convicted defendant from litigating liability in the related civil matter under the doctrine of collateral estoppel:

…[L]iability was established in accordance with the legal principle that ” [w]here a criminal conviction is based upon facts identical to those in issue in a related civil action, the plaintiff in the civil action can successfully invoke the doctrine of collateral estoppel to bar the convicted defendant from litigating the issue of . . . liability'” … . Abdelzaher v Sallustio, 2014 NY Slip Op 06040, 2nd Dept 9-10-14

 

Sentence Reduced In Interest of Justice Despite Extensive Criminal Record

The Second Department, over a partial dissent, reduced the defendant’s sentence in the interest of justice based upon the facts of the offense, the defendant’s mental health issues, and the defendant’s efforts to improve his life:

The evidence at trial showed that, although the defendant entered his neighbor’s home unlawfully with the intent to commit a crime therein, no items were taken from the home, and no one was threatened or physically harmed.

… [T]he defendant has been diagnosed with bipolar disorder, a mental illness that runs in his family, and has also been diagnosed with major depression and has struggled with drug addiction. Following the defendant’s release from prison in 2009, he made positive strides in his life by participating in outpatient mental health counseling and taking medication, and enrolling in college full-time. He performed well academically, was working toward a bachelor’s degree, and had plans to pursue a master’s degree, and a career in youth counseling. However, the defendant experienced a setback in July 2011, one month before the instant offenses were committed, when his 28-year-old son was shot and killed, causing his depression to worsen. The instant offenses were committed during this period of his life. Nonetheless, the defendant had been living in the community for two years without incident before committing the instant offenses. While we agree with our dissenting colleague that the defendant’s criminal history is extensive, such criminal history is adequately taken into consideration by the Penal Law provisions providing increased sentences for persistent violent felony offenders (see Penal Law § 70.08[2], [3]). Based on the circumstances of the defendant’s commission of burglary in the second degree and his efforts at rehabilitation, a sentence of imprisonment longer than the statutory minimum of 16 years to life is unduly harsh and excessive, and we modify the sentence accordingly … . People v Howard, 2014 NY Slip Op 06105, 2nd Dept 9-10-14

 

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Justice Should Have Recused Himself—Law Clerk Married to Hearing Witness

The Second Department determined the justice who presided over a suppression hearing should have recused himself because his law clerk was married to the detective who testified at the hearing:

Here, the hearing Justice was the trier of fact, and the credibility of Detective William Wilkerson, who was married to the Justice’s law clerk, was a critical issue at the hearing. The marital relationship between Detective Wilkerson and the hearing Justice’s law clerk created, at a minimum, the appearance that the hearing Justice could not be impartial in assessing Detective Wilkerson’s credibility. While it is true that, unlike a lay jury, a judge is “uniquely capable . . . of making an objective determination based upon appropriate legal criteria, despite awareness of facts which cannot properly be relied upon in making the decision” …, “judges are human,” and not immune from “psychological” and unconscious influences … . Under these circumstances, the hearing Justice should have recused himself “in a special effort to maintain the appearance of impartiality” … . People v Suazo, 2014 NY Slip Op 06114, 2nd Dept 9-10-14

 

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Court Should Have Held a Hearing to Determine Whether Exigent Circumstances Justified Warrantless Forced Entry to an Apartment

The First Department determined that the motion court should have held a hearing to determine whether the forced entry of an apartment was justified by exigent circumstances.  At the time of defendant’s motion for a hearing, the facts surrounding the incident were not available to the defendant and the People’s response to the motion was “conclusory:”

In denying defendant’s application for a hearing, the Court summarily found that exigent circumstances justified the pursuit and warrantless entry, based upon the individuals in the hallway reportedly having smoked marijuana, then racing into the apartment and locking the door, and the need to prevent destruction of evidence. Defendant argues in his brief that at most some individuals were seen smoking marijuana, a class B misdemeanor that would not present exigent circumstances sufficient for a forced entry.

Under the circumstances presented here, where the information proffered by the People to support the forcible entry was conclusory and defendant did not have access to available information, we find that it was incumbent upon the motion court to conduct a hearing to determine whether there were sufficient exigent circumstances to justify the forced warrantless entry… . People v Chamlee, 2014 NY Slip Op 05921, 1st Dept 8-21-14

 

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Defense Counsel Should Have Been Allowed to Cross-Examine Cooperating Accomplice/Witness to Demonstrate Motivation and Bias

The First Department, in a full-fledged opinion by Justice Acosta, determined that the curtailment of cross-examination of a cooperating witness deprived defendant of his right to confront the witnesses against him.  Four were charged in a robbery.  One of the four, referred to as “M,” entered a cooperation agreement and testified against the defendant. Defense counsel was prohibited from asking M a line of questions intended to reveal M’s motivation and bias:

Here, defendant sought … [to question] M. in an attempt to cast doubt on his credibility by revealing his bias and motive to fabricate testimony. Defense counsel’s theory was that M. had implicated defendant in the prior uncharged robberies in order to bolster the value of his cooperation agreement with the People. This was unquestionably an appropriate trial strategy, since “exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination” … . That M. intended to invoke his Fifth Amendment privilege and refuse to answer the questions does not abrogate defendant’s Sixth Amendment right of confrontation. As an accomplice witness, M.’s credibility, bias, and motive to fabricate were not collateral issues … . Therefore, defense counsel should have been permitted to question him on the prior crimes. If he subsequently invoked his Fifth Amendment privilege, the trial court should have gone as far as striking all or some of his direct testimony … . At a minimum, the court should have pursued the “least drastic relief” (typically reserved for “collateral matters or cumulative testimony concerning credibility”) by instructing the jury that it could consider M.’s invocation of the Fifth Amendment in determining his credibility … . People v McLeod, 2014 NY Slip Op 05926, 1st Dept 8-21-14

 

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Non-Sex-Offense Committed While On Supervised Released for a Sex Offense Was a “Related Offense” Within the Meaning of Article 10 of the Mental Hygiene Law

The Second Department, in a full-fledged opinion by Justice Hall, determined that a sex offender who had been released and was serving a period of post-release supervision at the time he was arrested and re-incarcerated on a credit-card charge, was incarcerated on a “related offense” within the meaning of the Mental Hygiene Law.  Therefore, the state could properly proceed with civil management proceedings pursuant article 10 of the Mental Hygiene Law.  The respondent argued, and Supreme Court had held, that the credit card offense was not related to his sex offense and therefore the state could not start a civil management proceeding based upon his current incarceration:

The respondent’s 2011 conviction of criminal possession of stolen property in the fourth degree clearly does not fall within the first two categories of a “related offense,” i.e., offenses which are prosecuted as part of the same criminal action or proceeding as the sex offense, and offenses which are part of the same criminal transaction as the sex offense (see Mental Hygiene Law § 10.03[l]). However, the crime of criminal possession of stolen property does fall within the third category, which covers offenses “which are the bases of the orders of commitment received by [DOCCS] in connection with an inmate’s current term of incarceration” (Mental Hygiene Law § 10.03(l)). This category covers “inmates” serving their “current term[s] of incarceration” (…  see Mental Hygiene Law § 10.03[l]). The Court of Appeals has recognized that this third category of “[r]elated offenses” is “broadly worded, reflecting the legislature’s apparent decision to give the State more leeway to pursue civil commitment against soon-to-be-released [DOCCS] inmates than parolees” (Matter of State of New York v Rashid, 16 NY3d at 14 n 12).

When the State initiated this civil management proceeding, the respondent was in the custody of DOCCS, and still subject to the sex offense order of commitment, inasmuch as he had not yet completed the postrelease supervision portion of that sentence. In other words, he was incarcerated on a “related offense,” because he was convicted of that offense while still serving his sentence for the underlying sex offense. Matter of State of New York v Claude McC, 2014 NY Slip Op 05885, 2nd Dept 8-20-14

 

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Allowing the Prosecutor to Tell the Jury in Summation that the Person Who Provided the Police with a Tip Must Have Identified the Defendant as the Perpetrator Was Reversible Error—The Prosecutor Effectively Told the Jury Another “Witness” Had Identified the Defendant, But that “Witness” Did Not Testify and Could Not, Therefore, Be Cross-Examined

The Second Department reversed defendant’s conviction because the prosecutor, in summation, had improperly been allowed to tell the jury that the person who provided the police with a tip must have identified the defendant as the perpetrator.  Because the person who provided the tip did not testify, the defendant was effectively deprived of the opportunity to cross-examine a “witness against him:”

During summation, the prosecutor strongly implied that whoever had provided the tip had implicated the defendant: “Someone calls 577-TIPS . . . . [The detective] gets this information and where does he go? 82-01 Rockaway Beach Boulevard, make a left out of the elevator. I’m looking for a guy named Rick who lives on the sixth floor. Ricardo Benitez.” After defense counsel’s objection to this remark was overruled, the prosecutor continued: “Gave Detective Lopez the following address. 82-01 Rockaway Beach Boulevard, 6B. Rick. Ladies and gentlemen, I introduce you to Rick.” Defense counsel again objected, but the Supreme Court again overruled the objection.

The only purpose of the prosecutor’s improper comments was to suggest to the jury, in this one-witness identification case, that the complainant was not the only person who had implicated the defendant in the commission of the robbery (see People v Mendez, 22 AD3d 688, 689). Moreover, in overruling defense counsel’s objections, the Supreme Court “legitimized” the prosecutor’s improper remarks (People v Lloyd, 115 AD3d 766, 769). The defendant, of course, was given no opportunity to cross-examine the unnamed witness who had allegedly provided the tip … . The evidence against the defendant was not overwhelming, so there is no basis for the application of harmless error analysis … . To the extent that the defendant failed to preserve the claim by specific objection, we reach the issue in the exercise of our interest of justice jurisdiction, and reverse the judgment … . People v Benitez, 2014 NY Slip Op 05890, 2nd Dept 8-20-14

 

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Husband, Criminally Responsible for the Death of His Mother-in-Law, Could Not Inherit the Mother-in-Law’s Estate Indirectly After the Death of His Wife

The Second Department, in a full-fledged opinion by Justice Hall, determined the husband, Brandon, who was criminally responsible for the death his mother-in-law, could not inherit the mother-in-law’s estate indirectly after the death of his wife, Deanna:

The principle that a wrongdoer may not profit from his or her wrongdoing is deeply rooted in this State’s common law. In 1889, the Court of Appeals decided the seminal case of Riggs v Palmer (115 NY 506) . In Riggs, a grandson, who had intentionally killed his grandfather in order to ensure his inheritance, was prevented from inheriting under the grandfather’s will. In reaching this determination, the Court of Appeals held that, “[n]o one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime” (id. at 511). In short, the Riggs rule “prevents wrongdoers from acquiring a property interest, or otherwise profiting from their own wrongdoing” … . * * *

The issue here is whether the Riggs doctrine may be extended to prevent a wrongdoer from indirectly profiting from his or her own wrongdoing. More specifically, we are asked to determine whether Brandon may inherit assets of the decedent’s estate indirectly through Deanna’s estate. While it is clear that Brandon would not be able to inherit from the decedent’s estate directly, the issue of whether he may do so indirectly through Deanna’s estate is less settled. Indeed, this is an issue of first impression, as there is no appellate precedent from New York addressing whether the Riggs doctrine applies where a killer seeks to inherit assets from his or her victim indirectly through the estate of a person not implicated in the unlawful killing. * * *

Here … there is a clear causal link between the wrongdoing and the benefits sought … . But for Brandon’s killing of the decedent, the estate of Deanna would not likely include any assets from the decedent’s estate. Furthermore, since only a relatively short period of time elapsed between the decedent’s death and the death of Deanna, it is clear that Deanna’s estate would include assets traceable to the decedent. Indeed, according to [the] petition for letters of administration, Deanna’s estate consists only of funds Deanna received as beneficiary of the decedent’s retirement plan, and the expected inheritance from the decedent. Significantly, the decedent’s estate has not yet been distributed to Deanna’s estate, and no commingling of any funds between the two estates has occurred.

Under these circumstances, the Surrogate’s Court appropriately exercised its equitable powers (see SCPA 201[2]) in extending the Riggs doctrine to prevent Brandon from inheriting any portion of the decedent’s estate through the estate of Deanna … . Matter of Dianne Edwards, 2014 NY Slip Op 05873, 2nd Dept 8-20-14

 

Pointing Finger and Saying “I’m Going to Shoot You” Did Not Support Harassment and Menacing Charges

The First Department determined that the allegations supporting  harassment and menacing charges were insufficient:

…[T]he accusatory instrument was insufficient as a matter of law with regard to the harassment and menacing charges. The allegation that defendant pointed his finger in a shooting motion and stated, “I’m going to shoot you,” without any indication that defendant was armed at the time, did not set forth an imminent threat of harm to the complainant. Nor were any facts alleged showing the statement should have been taken seriously … . People v Harris, 2014 NY Slip Op 05814, 1st Dept 8-14-14

 

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