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No “Exigent Circumstances”/Warrantless Search of Defendant’s Purse Incident to Arrest for Trespassing Not Justified

In a full-fledged opinion by Judge Lippman, over a partial dissent, the Court of Appeals determined the “exigent circumstances” exception to the warrant requirement did not apply and, therefore, the search of defendant’s purse incident to a “trespassing” arrest was not justified. The loaded handgun in the purse should have been suppressed. The court explained the relevant law:

Under the State Constitution, to justify a warrantless search incident to arrest, the People must satisfy two separate requirements. The first imposes spatial and temporal limitations to ensure that the search is “not significantly divorced in time or location from the arrest” … .The second, and equally important, predicate requires the People to demonstrate the presence of exigent circumstances … . We have recognized two interests underlying the exigency requirement: “the safety of the public and the arresting officer; and the protection of evidence from destruction or concealment” … . Exigency must be affirmatively demonstrated. Accordingly, even a bag “within the immediate control or 'grabbable area' of a suspect at the time of his arrest may not be subjected to a search incident to arrest, unless the circumstances leading to the arrest support a reasonable belief that the suspect may gain possession of a weapon or be able to destroy evidence located in the bag” … . People v Jimenez, 23, CtApp 2-25-14 

 

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Counsel’s Failure to Object to Prosecutor’s PowerPoint Presentation Did Not Require Reversal for Ineffective Assistance

In a full-fledged opinion by Judge Pigott, over a dissent, the Court of Appeals determined that defense counsel’s failure to object to a PowerPoint presentation used by the prosecutor in summation did not require reversal. During the presentation, the postmortem image of the child, Justice (whom the defendant was accused of suffocating), faded to white at 30-second intervals over six minutes:

Defendant does not dispute that the postmortem photograph itself was properly admitted at trial … . The slides depicting an already admitted photograph, with captions accurately tracking prior medical testimony, might reasonably be regarded as relevant and fair, albeit dramatic, commentary on the medical evidence, and not simply an appeal to the jury's emotions. The jury was being asked to decide not only whether defendant killed Justice, but also whether she intended to do so, an issue to which the question of how long she would have had to cover Justice's mouth and nose was certainly relevant. On the other hand, the relevance of the visual device whereby the postmortem picture faded at 30-second intervals over a six-minute period – with each slide fading more and more to white, and the final slide appearing totally white – is difficult to discern. This did not show how Justice's death occurred nor would it have aided the jury in its fact-finding function.If the issue had been preserved for our review by timely objection – and had the trial court ruled against defendant and the issue reached our Court – this Court would have had the opportunity to decide whether the trial court abused its discretion and the error required a reversal of the judgment of conviction. But that did not occur and the objection to the PowerPoint presentation that defendant now raises is not so “clear-cut” or “dispositive” an argument that its omission amounted to ineffective assistance of counsel… . People v Santiago, 22, CtApp 2-25-14

 

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Defendant Implicitly and Explicitly Waived His Right to Be Present During Side-Bar Conferences

In a full-fledged opinion by Judge Smith, over a dissent, the Court of Appeals determined defendant had implicitly and explicitly waived his right to be present during side-bar conferences (the “Antommarchi” right). The implicit waiver was the defendant’s inaction after the trial judge informed him he was welcome to attend the side-bar conferences. And the explicit waiver was defense counsel’s statement to the judge, which was made outside the hearing of the defendant, that the defendant has waived his right to attend the conferences:

Defendant waived his Antommarchi right both implicitly and explicitly. He did so implicitly when, after hearing the trial judge say that he was “welcome to attend” the bench conferences, he chose not to do so. And he waived it explicitly by his lawyer’s statement to the court. People v Flinn, 20, CtApp 2-25-14

“Rubbing” Constitutes “Forcible Touching”

In a full-fledged opinion by Judge Read, the Court of Appeals determined that the allegation defendant “rubbed” his exposed penis on a subway passenger’s buttocks was sufficient to meet the pleading requirements for “forcible touching” in violation of Penal Law 130.52:

…[W]e hold that, when done with the relevant mens rea, any bodily contact involving the application of some level of pressure to the victim's sexual or intimate parts qualifies as a forcible touch within the meaning of Penal Law § 130.52. The allegation in the information here easily meets this test. People v Guaman, 29, CtApp 2-25-14

 

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No Prosecutorial Misconduct Where Prosecutors Told the Grand Jury that the Witness Defendant Asked the Grand Jury to Call Would Not Provide Relevant Evidence/Prosecutor’s Role in Grand Jury Explained in Some Detail

In a full-fledged opinion by Judge Abdus-Salaam, over a dissent, the Court of Appeals determined the prosecutors did not impair the integrity of the grand jury proceedings by suggesting a witness the defendant asked the grand jury to subpoena would not provide relevant testimony. The court explained the prosecutor’s role in the grand jury:

CPL article 190 governs the conduct of the grand jury and the parties which appear before that body, and it requires that all grand jury proceedings remain secret to protect the essential functions of those various actors (see generally CPL 190.05; 190.25 [4] [a]). Under this statutory regime, the exclusive “legal advisors of the grand jury are the court and the district attorney” (CPL 190.25 [6]), and their decision to present certain items of evidence and to exclude others is for the most part limited only by the rules of evidence applicable at trial (see CPL 190.30 [1]…).  In the same vein, the prosecutor enjoys “broad powers and duties, as well as wide discretion in presenting the People's case” to the grand jury … . Indeed, the prosecutor “determines the competency of witnesses to testify,” and he or she “must instruct the jury on the legal significance of the evidence” … .

Notably, though, due process imposes upon the prosecutor a “duty of fair dealing to the accused and candor to the courts,” thus requiring the prosecutor “not only to seek convictions but also to see that justice is done” … . This duty extends to the prosecutor's instructions to the grand jury and the submission of evidence … . The prosecutor also cannot provide “an inaccurate or misleading answer to the grand jury's legitimate inquiry” …, nor can the prosecutor accept an indictment that he or she knows to be based on false, misleading or legally insufficient evidence … .

Even under those principles, “[a] Grand Jury proceeding is not a mini trial, but a proceeding convened primarily to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to a criminal prosecution” … . That being so, the prosecutor need not tread too lightly in pressing the People's case or rebutting the defendant's assertions. For example, where the defendant chooses to testify, the prosecutor may, within limits, ask probing or even skeptical questions of the defendant about issues raised by his or her testimony … . Similarly, in the role of legal advisor, the prosecutor need not instruct the grand jury on the full extent of its investigatory and deliberative powers … . The prosecutor may decline to instruct the grand jury about a variety of defenses, and he or she need not disclose certain forms of exculpatory evidence or reveal to the grand jury the circumstances surrounding the authorities' investigation of the case … . These examples illustrate that, in occupying a “dual role as advocate and public officer” … , the prosecutor is not obligated to present the evidence or make statements to the grand jurors in the manner most favorable to the defense. People v Thompson, 10, CtApp 2-20-14

 

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Deception Used By Interrogators Rendered Confession Involuntary As a Matter of Law

In a full-fledged opinion by Judge Lippman, the Court of Appeals determined, as a matter of law, defendant’s confession had been coerced by impermissible deception. The confession was suppressed and a new trial ordered. The interrogators told the defendant (1) his wife would be arrested if he did not confess to responsibility for injuries to their child and (2) disclosure of the circumstances of the injury was necessary to allow the doctors to save the child’s life (the child already had been declared brain-dead):

It is the People's burden to prove beyond a reasonable doubt that statements of a defendant they intend to rely upon at trial are voluntary … . To do that, they must show that the statements were not products of coercion, either physical or psychological …, or, in other words that they were given as a result of a “free and unconstrained choice by [their] maker” … . The task is the same where deception is employed in the service of psychologically oriented interrogation; the statements must be proved, under the totality of the circumstances … — necessarily including any potentially actuating deception — the product of the maker's own choice. The choice to speak where speech may incriminate is constitutionally that of the individual, not the government, and the government may not effectively eliminate it by any coercive device. It is well established that not all deception of a suspect is coercive, but in extreme forms it may be. Whether deception or other psychologically directed stratagems actually eclipse individual will, will of course depend upon the facts of each case, both as they bear upon the means employed and the vulnerability of the declarant. There are cases, however, in which voluntariness may be determined as a matter of law — in which the facts of record permit but one legal conclusion as to whether the declarant's will was overborne … . This, we believe, is such a case. What transpired during defendant's interrogation was not consonant with and, indeed, completely undermined, defendant's right not to incriminate himself — to remain silent. People v Thomas, 18, CtApp 2-20-14

 

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Presentation of Evidence of an Uncharged Offense Without Seeking a Ruling on Its Admissibility in Advance Deprived Defendant of a Fair Trial

The Third Department determined the presentation of evidence of an uncharged sexual offense deprived defendant of a fair trial. Without seeking a ruling in advance, and without presenting an argument why the evidence was relevant to anything other than criminal propensity, the prosecutor presented evidence alleging defendant’s sexual misconduct involving a child other than the victim in the charged offense. In ordering a new trial, the Third Department explained:

It is beyond dispute that evidence of a defendant’s uncharged crimes or prior bad acts cannot be admitted solely for the purpose of proving criminal propensity … . Rather, “evidence of uncharged crimes or prior bad acts may be admitted where they fall within the recognized Molineux exceptions – motive, intent, absence of mistake, common plan or scheme and identity – or where such proof is inextricably interwoven with the charged crimes, provide[s] necessary background or complete[s] a witness’s narrative” …, and the trial court further determines that the probative value of such evidence outweighs its prejudicial effect … . Here, the record does not reflect that the People sought any sort of ruling from County Court regarding the admissibility of defendant’s uncharged crime/prior bad act before eliciting such testimony from the victim’s mother on their case-in-chief …, nor does the record reveal that the People made any attempt to “identify some issue, other than mere criminal propensity, to which the evidence [was] relevant”… . People v Brown, 105062, 3rd Dept 2-20-14

 

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Questioning of Defendant Did Not Constitute “Custodial Interrogation”

The Third Department determined County Court should not have suppressed defendant’s statements as the product of custodial interrogation. The police investigation had led to defendant’s IP address being associated with accessing child pornography on the Internet. The investigator went to defendant’s place of employment and asked the defendant to accompany him to the police station, which the defendant agreed to do:

The testimony … revealed that defendant was brought to a room at the police station where he was interviewed for a total of no more than 30 minutes. During the brief period that preceded the Miranda warnings, defendant was not handcuffed or restrained in any manner and the investigators did not do anything to convey that defendant was not free to leave … . Moreover, the two questions that preceded the Miranda warnings – the first asked defendant for his address and the second inquired into defendant’s Internet service – were investigatory, as opposed to accusatory. Considering the totality of the circumstances, and in light of County Court’s determinations that [the interrogating officer] was “frank, candid, and trustworthy and [that] his testimony had the general force and flavor of credibility,” we find that the People met their burden of establishing beyond a reasonable doubt that defendant’s pre-Miranda statements were not the product of a custodial interrogation… . People v Henry, 106048, 3rd Dept 2-20-14

 

Handling Of Consecutive Sentences Under the Drug Law Reform Act Explained

Finding the resentence excessive, the Second Department reduced defendant’s resentence under the Drug Law Reform Act (DLRA) from five consecutive 20-year terms to five consecutive 15-year terms, noting that because the original sentence (five 25-to-life terms) was consecutive, the terms imposed under the Drug Law Reform Act must also be consecutive:

Here, the defendant sought to be resentenced for the convictions of criminal sale of a controlled substance in the first degree, for which he had originally received consecutive sentences amounting to a total aggregate term of imprisonment of 125 years to life. Although the Supreme Court correctly observed that it was powerless, under the DLRA, to alter the defendant’s sentence so that the five terms of imprisonment imposed for the convictions of criminal sale of a controlled substance in the first degree run concurrently with each other …, it was nevertheless permitted to “consider any facts or circumstances relevant to the imposition of a new sentence” (L 2004, ch 738, § 23…). Accordingly, under the circumstances, in evaluating the appropriate terms of imprisonment to impose upon resentencing, the Supreme Court should have considered the fact that the sentences that were originally imposed for the convictions of criminal sale of a controlled substance in the first degree were directed to run consecutively to each other … . Here, since the resentences imposed by the Supreme Court were required to run consecutively with each other, the total aggregate term of imprisonment for the convictions of criminal sale of a controlled substance in the first degree still amounted to 100 years in prison. * * *Under the circumstances of this case, including the fact that the courts are constrained from giving effect to the ameliorative purpose of the DLRA by directing resentences to run concurrently with each other when they were originally directed to run consecutively …, we conclude that the resentence imposed was excessive to the extent indicated… . People v Cole, 2014 NY Slip Op 01182, 2nd Dept 2-19-14

 

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Re: A Mental Hygiene Law Civil Commitment Proceeding for a Sex Offender, Failure to Give the Jury an Adequate Explanation of the Meaning of “Sex Offense” May Have Resulted in an Unsupported “Mental Abnormality” Finding

The Second Department determined the trial court committed reversible error by not, upon defense counsel’s request, giving a further instruction to the jury on the meaning of “sex offense” as part of the jury charge on mental abnormality. The jury found the appellant had committed a sexually motivated felony and suffers from a mental abnormality (re: civil commitment of a sex offender under the Mental Hygiene Law). The appellant had pled guilty to the burglary of a woman’s home. During the burglary the appellant allegedly had “touched that woman’s vagina and buttocks with a hard object.” At the “Mental Hygiene Law” trial, the State presented evidence of appellant’s sexual behavior in prison which did not constitute a sex offense enumerated under the Mental Hygiene Law. The jury may not have understood how to evaluate the “unenumerated” behavior under the Mental Hygiene Law:

Here, the State’s evidence consisted predominantly of instances of the appellant’s sexually inappropriate acts that would not constitute sex offenses under Mental Hygiene Law article 10. Specifically, the State’s expert testified at length regarding instances in which the appellant masturbated while he could be observed by prison officers or by staff members while placed at a secure treatment facility, and his propensity to continue to act in a sexually improper manner. The appellant’s conduct, however, at most, might constitute the crime of public lewdness (Penal Law § 245), a class B misdemeanor, which is not one of the sex offenses enumerated under Mental Hygiene Law article 10. In light of the particular circumstances presented in this proceeding, the Supreme Court should have granted the appellant’s request to issue an expanded charge to the jury containing supplemental information as to the specific statutory meaning of “sex offense,” so that the jury could make a proper evaluation of the evidence.…

[T]he Supreme Court’s failure to either provide the statutory definition of “sex offense” under Mental Hygiene Law article 10 or to inform the jury that there is a distinction between a predisposition to commit a “sex offense” and a predisposition to commit nonenumerated acts of sexual misconduct could have misled the jury into making a finding of mental abnormality, based solely upon the evidence of the appellant’s predisposition to commit any improper sexual conduct. Consequently, a new trial is required … . Matter of State of New York v Adrien S, 2014 NY Slip Op 01175, 2nd Dept 2-19-14

 

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