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Conviction on a Lesser Inclusory Count Can Not Stand Even In the Absence of Preservation

The Fourth Department determined defendant’s conviction of criminal possession of a controlled substance in the seventh degree could not stand because that charge was a lesser inclusory count of another count of which the defendant was convicted (criminal possession of a controlled substance in the fifth degree):

Although defendant failed to preserve this contention for our review, the People … correctly concede that “we may review the issue as a matter of law despite defendant’s failure to raise it in the trial court” … . People v Roberts, 2014 NY Slip Op 06707, 4th Dept 10-3-14

 

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Suppressed Statement Improperly Allowed to Be Used to Impeach Defendant—Defendant Did Not Open the Door for Use of the Statement by Contradicting It On Direct

The Fourth Department determined statements made by the defendant, which had been suppressed, were improperly admitted to impeach the defendant (harmless error however):

…Supreme Court erred in permitting the prosecutor to impeach him with the statement that he made to State University police officers. That statement had been suppressed, and defendant did not open the door to its use for impeachment by giving testimony contrary to the statement during his direct examination… . People v Blair, 2014 NY Slip Op 06730, 4th Dept 10-3-14

 

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“Door-Opening Rule” Applied to Allow Otherwise Inadmissible Evidence/Jury-Note Error Not Preserved

The Fourth Department determined evidence of a phone conversation which was otherwise inadmissible was properly admitted to rebut a “misleading impression” created by the defendant under the “door-opening rule.”  In addition the court held that the failure to notify defense counsel of the contents of a jury note, although error, was not preserved for appeal:

Under the “door-opening” rule …, otherwise inadmissible evidence, such as the telephone conversation at issue here, may be admitted in evidence for the purpose of rebutting a “misleading impression” created by the defendant … . Here, defendant was attempting to evoke the jury’s sympathy by testifying about her remorse and anguish over the victim’s death. Specifically, defendant testified that, upon learning of the victim’s death, she “started flipping out,” “bouncing my head off walls,” “screaming,” and “going nuts.” She further testified that she “didn’t want to live,” “refused to eat,” and was “on suicide watch.” We conclude that the court properly permitted the People to introduce the telephone conversation in evidence to rebut defendant’s testimony of remorse and anguish … . * * *

Defendant contends in the supplemental brief submitted by appellate counsel with leave of this Court that the court failed to apprise her of a jury note and that such a failure constitutes a mode of proceedings error requiring reversal of the judgment, even if unpreserved … . We reject defendant’s contention that preservation was not required. Here … “the record does not indicate that the court gave defense counsel notice of the contents of the note outside the presence of the jury, but it establishes that the court read the note verbatim before the jury, defense counsel, and defendant. Defense counsel raised no objection” … . Under such circumstances, defendant was required to preserve the alleged error by objection … . We decline to exercise our power to address defendant’s contention as a matter of discretion in the interest of justice … . People v Stoutenger, 2014 NY Slip Op 06688, 4th Dept 10-3-14

 

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Police Did Not Demonstrate They Had a “Founded Suspicion Criminality Was Afoot” Before Asking For and Receiving Defendant’s Permission to Search His Car

The Fourth Department determined the police failed to demonstrate they had a “founded suspicion that criminality was afoot” when they asked defendant for permission to search his car.  The marijuana and firearm found in the search should have been suppressed:

The law is well settled that the police may not ask an occupant of a lawfully stopped vehicle if he or she has any weapons unless they have a founded suspicion that criminality is afoot … . It is equally well settled that the police may not ask for consent to search a vehicle absent that same degree of suspicion … . Here, as both defendant and the People recognize, the legality of the police conduct turns on whether the officer who engaged defendant at the side of his vehicle smelled or observed marihuana in the vehicle before asking defendant whether he had any guns or drugs and before asking for consent to search. We conclude that there is no basis in the record to support the court’s finding that the officers smelled marihuana as soon as they approached the vehicle.  People v Wideman, 2014 NY Slip Op 06698, 4th Dept 10-3-14

 

Sentence Greater than that Promised in a Plea Bargain Did Not Constitute Punishment for Exercising the Right to Go to Trial

The Fourth Department rejected defendant’s argument that his sentence was increased as punishment for going to trial:

” [T]he mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof that defendant was punished for asserting his right to trial . . . , and there is no indication in the record before us that the sentencing court acted in a vindictive manner based on defendant’s exercise of the right to a trial’ ” …, or that the court ” placed undue weight upon defendant’s ill-advised decision to reject [a] favorable plea bargain and proceed to trial’ ” … . People v Odums, 2014 NY Slip OP 06692, 4th Dept 10-3-14

 

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Parole Officer Was Not Acting “Merely as a Conduit” for the Police In Conducting a Search—The Search Was Related to the Parole Officer’s Duties

In rejecting the defendant’s argument that the search by his parole officer was illegal because the search was not related to the performance of the parole officer’s duties, the Fourth Department explained the relevant law:

A parolee’s right to be free from unreasonable searches and seizures is not violated if a parole officer’s search of the parolee’s person or property “is rationally and reasonably related to the performance of his duty as a parole officer” … . A parole officer’s search is unlawful, however, when the parole officer is “merely a conduit’ for doing what the police could not do otherwise” … . Stated differently, “a parolee’s status ought not to be exploited to allow a search which is designed solely to collect contraband or evidence in aid of the prosecution of an independent criminal investigation” … .

Here, defendant’s contention that the parole officer was acting as an agent of the DEA is undermined by the uncontroverted testimony of the parole officer that she was informed by a DEA agent prior to the search that the federal prosecutor “will most likely not want to get involved” in the case if an arrest were made, and by the fact that no federal charges were ever lodged against defendant. Rather, the parole officer testified that she conducted the search because she received credible information from law enforcement sources that defendant possessed a large quantity of cocaine in his apartment, which violated his parole conditions, and the court found her testimony in that regard to be credible. We thus conclude that the court properly determined that the search was rationally and reasonably related to the performance of the parole officer’s duties, and that suppression was therefore not warranted … . People v Escalera, 2014 NY Slip Op 06700, 4th Dept 10-3-14

 

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Hearing Ordered to Reconstruct Contents of Missing Recording of 911 Call

The Fourth Department would not reverse defendant’s conviction due to the post-trial loss of the recording of a 911 call, the contents of which were important on appeal.  Instead, the court ordered a reconstruction hearing to create a record of the contents of the call.  People v Thomas, 2014 NY Slip Op 06710, 10-3-14

 

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Right to Counsel Did Not Attach When Community Activist Told Police Defendant’s Attorney Was On His Way to the Station

The Fourth Department determined that the right to counsel attaches only when the defendant or his attorney invokes it, not when someone informs the police defendant’s attorney is on his way to the station:

We reject defendant’s contention that his right to counsel indelibly attached when the community activist told the arresting police officers at the television station that defendant had an attorney who was on his way. “It is well settled that the right to counsel is personal’ to the accused… and thus cannot be invoked by a third party on behalf of an adult defendant” … . Thus, where, as here, a third party not affiliated with a lawyer or law firm indicates that defendant may have an attorney, “it would be unreasonable to require the police to cease a criminal investigation and begin a separate inquiry to verify whether the defendant is actually represented by counsel. Direct communication by an attorney or a professional associate of the attorney to the police assures that the suspect has actually retained a lawyer in the matter at issue’ ” … . Absent such direct communication, the police herein had no duty to investigate whether defendant was represented by counsel, and defendant’s right to counsel did not indelibly attach until an attorney later called the police directly. Inasmuch as all questioning ceased at that time, we conclude that the court properly refused to suppress the statements defendant made before that time.  People v McCray, 2014 NY Slip Op 06720, 4th Dept 10-3-14

 

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Warrantless Cell Phone Search Required Suppression and a New Trial

The First Department ordered a new trial because the police searched defendant’s phone without a warrant and used photos found on the phone as the basis for a search warrant:

The court should have granted defendant’s motion to suppress photographs obtained from his cell phone. After the police arrested defendant and seized his phone, an officer looked through it without a warrant, and found two photos stored on the phone that depicted a pistol resembling the pistol recovered in this case. It was not disputed that the search of defendant’s cell phone was unlawful. Moreover, a recent decision of the United States Supreme Court holds that a cell phone is not a proper subject of a warrantless search incident to arrest … .

After finding the photos on the phone, the same officer averred in an affidavit in support of an application for a search warrant, which specifically sought to search photographs among other things on the phone, that there was reasonable cause to believe that evidence concerning defendant’s possession of a firearm existed on defendant’s phone. This evidence demonstrated that the “decision to seek the warrant was prompted by what [the police] had seen during the initial entry” … . Rather than applying for a warrant on the basis of mere probable cause, the officer “achieve[d] certain cause by conducting an unlawful confirmatory search,” which “undermines the very purpose of the warrant requirement and cannot be tolerated” … . Accordingly, even if there were independent probable cause for the warrant, it would not immunize the initial warrantless search, or permit the subsequently-granted warrant to render the photos admissible … . Nor may the inevitable discovery doctrine be applied to this evidence; the exception does not apply where “the evidence sought to be suppressed is the very evidence obtained in the illegal search” … . People v Marinez, 2014 NY Slip Op 06668, 1st Dept 10-2-14

 

Meaning of Imprecise and Confusing Term “Violent Felony Override” Explained

The Second Department, in response to the defendant’s request for a “violent felony override” at sentencing, explained that the confusing term relates to a document that sets force the precise statute, including the section and subdivision, of which the defendant was convicted.  Certain specific enumerated offenses, although violent felonies, will not disqualify an inmate from eligibility for temporary release. Only the Department of Corrections can make the determination whether a conviction disqualifies an inmate from eligibility:

“Violent felony override” is not a term contained in a statute or regulation. It is an imprecise and potentially confusing term that is sometimes used to describe a document referred to in 7 NYCRR 1900.4(c)(1)(iii) that permits the Department of Corrections and Community Supervision (hereinafter DOCCS) to ascertain whether an inmate has met one of the threshold requirements to be eligible for a temporary release program despite conviction of a specified violent felony offense (see Correction Law § 851[2]; Executive Order [Spitzer] No. 9 [9 NYCRR 6.9]; Executive Order [A. Cuomo] No. 2 [9 NYCRR 8.2]; 7 NYCRR 1900.4[c][1][ii], [iii]; [2]). Certain subdivisions of the specified violent felony offenses will not disqualify an inmate from eligibility for temporary release. The document provided for in 7 NYCRR 1900.4(c)(1)(iii) need only set forth the exact offense, including the section, and subdivision if any, of the crimes of which the inmate was convicted. When the document indicates that the inmate was convicted of a subdivision of one of the enumerated violent felony offenses that does not automatically disqualify the inmate from eligibility for temporary release, the inmate may use it to establish that he has met one of the threshold requirements for eligibility … . One source of confusion that may arise from the use of the term “violent felony override” is that the term may imply that the document itself qualifies the inmate for eligibility for temporary release. It does not. It is for DOCCS, and not the court or the district attorney, to determine whether conviction under a particular section and subdivision disqualifies an inmate from eligibility (see generally 7 NYCRR 1900.4).

A second source of confusion that may arise from the use of the term “violent felony [*2]override” to describe the document specified in 7 NYCRR 1900.4(c)(1)(iii) is the erroneous belief that the issuance of the document is discretionary. Although this provision refers to “a court-generated document or document generated by the Office of the District Attorney,” a defendant is entitled to have the exact subdivision of the statutory provisions under which he or she was convicted specified in the sentence and commitment: “[a] sentence and commitment or certificate of conviction, specifying the section, and to the extent applicable, the subdivision, paragraph and subparagraph of the penal law or other statute under which the defendant was convicted, or a certified copy thereof . . . must be delivered to the person in charge of the correctional facility or office of children and family services facility to which the defendant is committed at the time the defendant is delivered thereto” … . People v Lynch, 2014 NY Slip Op 06608, 2nd Dept 10-1-14

 

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