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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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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

 

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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

 

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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Failure to Move to Sever Unrelated Counts of Indictment Constituted Ineffective Assistance of Counsel

The Second Department determined defense counsel’s failure to move to sever unrelated counts of the indictment constituted ineffective assistance of counsel:

In this case, based solely on the complainant’s identification, the defendant and his codefendant were charged with robbery in the first degree and robbery in the second degree in connection with a robbery that occurred on November 6, 2005. The same indictment also separately charged the defendant with four drug offenses and resisting arrest, stemming from his arrest at his mother’s home on January 16, 2006, despite the fact that the drug and resisting arrest charges had no connection to the November 6, 2005, robbery. Defense counsel failed to make an on-the-record pretrial motion to sever the robbery charges from the other charges and did not raise the issue at trial, and the defendant was tried on all counts in the indictment. * * *

As a result of defense counsel’s error, the same jury that heard evidence regarding the robbery also heard voluminous evidence concerning the defendant’s arrest and the large quantity of drugs found in his mother’s home. Consequently, the jury could have inferred that the robbery at issue was committed for a drug-related purpose, and it is probable that the improper joinder tainted the jury’s evaluation of the separate, unrelated incidents … . Under the circumstances presented here, the defendant was deprived of the effective assistance of counsel, based on defense counsel’s failure to make a proper pretrial motion to sever the charges of robbery from the drug charges. People v Hall, 2014 NY Slip Op 05802, 2nd Dept 8-13-14

 

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Decision Offers a Rare, Detailed Discussion of the Probable-Cause Analysis of a Search Warrant Application Which Included Hearsay from Confidential Informants (Analyzed Under the Aguilar-Spinelli Reliability Tests), Controlled Buys and Surveillance

In a rare, detailed analysis of the sufficiency of a search warrant application which relied on confidential informants, surveillance, controlled buys, and hearsay found sufficient under the Aguilar-Spinelli tests, the Fourth Department determined the motion to suppress was properly denied.  The decision is notable for the depth of discussion and the full range of issues involved in the analysis of a search warrant application. People v Myhand, 2014 NY Slip Op 05742, 4th Dept 8-8-14

 

In a Matter of First Impression, the Fourth Dept Determined that Criminal Records Are Eligible for Sealing Pursuant to CPL 160.58 Even If They Relate to Convictions that Predate the Statute

The Fourth Department, in a full-fledged opinion by Justice Whalen, determined that criminal records are eligible for sealing pursuant to Criminal Procedure Law 160.58 even if they related to convictions that predate the statute. People v M.E., 2014 NY Slip Op 05748, 4th Dept 8-8-14

 

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SORA Point Assessments Affirmed Over Two-Justice Dissent Arguing the Proof of Online Sexual Conduct Was Insufficient, the Evidence of “Grooming” the Victims Was Insufficient, and the Social Immaturity of the Defendant Should Have Been Considered as a Mitigating Factor

The Third Department, over a two-justice dissent, determined that the points assessed by County Court in a SORA proceeding were appropriate.  The charges were based entirely upon online communication between the defendant and three underage girls.  The decision is notable for the extensive dissent which found the evidence defendant had masturbated during online communication through a webcam, and the evidence that the defendant engaged in “grooming” the victims was insufficient, and further found that certain mitigating factors, including that defendant functioned socially at the level of a young teenager, should have been considered:

FROM THE DISSENT:

Here, the record lacks clear and convincing proof of prohibited sexual conduct with the third victim referenced in the indictment — as to whom defendant pleaded guilty to endangering the welfare of a child and aggravated harassment in the second degree. During the plea allocution, defendant admitted that he had engaged in conversations of a sexual nature with this victim, and the victim testified before the grand jury that defendant had contacted her by webcam video, during which time he touched himself in the area of his genitals, over his clothing. There was no physical sexual contact between the two at any time. As defendant argues, the grand jury testimony included too little factual detail to constitute clear and convincing evidence that he was masturbating. Although this might be inferred, it was not clearly revealed; viewed objectively, the testimony demonstrates nothing more than a brief swipe of defendant’s hand in his genital region, accompanied by innuendo. Our precedent establishes a significantly higher standard of misconduct … .

We further find that the record supports defendant’s contention that he was improperly assessed 20 points under risk factor 7 because his conduct was not “directed at a stranger or a person with whom a relationship had been established or promoted for the primary purpose of victimization” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 12 [2006]). The majority accepts County Court’s finding that defendant and the victims were not “strangers,” but that defendant had engaged in “grooming” behavior; we disagree. An example of grooming behavior provided in the guidelines is that of a scout leader who chose the position in order to gain access to his victims (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 12 [2006]). As defendant argues, the record does not establish this type of calculated behavior on his part, nor was there a showing of emotional manipulation, undue influence or other customary indicia of grooming conduct. People v Izzo, 2014 NY 05679, 3rd Dept 8-7-14

 

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