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Warrantless Entry Into Defendant’s Backyard Constituted a Search/Defendant Had a Legitimate Expectation of Privacy in His Backyard

The Second Department determined that the police officer’s warrantless entry into defendant’s backyard constituted a search because the defendant had an expectation of privacy there. The fact that the officer was aware of an apparently false report of a fire in the area did not justify the application of the emergency doctrine (also analyzed in the decision). The seized evidence (marijuana and a firearm) should have been suppressed:

A search occurs, thereby triggering the protection of the Fourth Amendment to the United States Constitution and article I, section 12 of the New York Constitution, when the police invade an area where a person has a legitimate expectation of privacy … . A legitimate expectation of privacy exists where a person has manifested a subjective expectation of privacy that society recognizes as reasonable … . The curtilage of the home–the area immediately surrounding and associated with the home or the area that is related to the intimate activities of the home—is part of the home itself … . The determination of whether an area falls within the home’s curtilage may be made by reference to four factors: “the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by” … .Consideration of these factors in connection with the evidence in this record, including two photographs of a portion of the subject premises, compels us to conclude that the defendant’s rear yard was within the curtilage of the home. The rear yard was in close proximity to the home, shielded from view by those on the street, and within the natural and artificial barriers enclosing the home. This physical arrangement made manifest the defendant’s expectation of privacy, and that expectation is one that society recognizes as reasonable… . People v Theodore, 2014 NY Slip Op 01025, 2nd Dept 2-13-14

 

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Family Court Should Have Granted an Adjournment in Contemplation of Dismissal as the Least Restrictive Dispositional Alternative in a Juvenile Delinquency Proceeding

In a juvenile delinquency proceeding, the First Department, over a dissent, determined the appellant should have been granted an adjournment of contemplation of dismissal (ACD) as the appropriate least restrictive disposition of the case:

…[W]e conclude that an adjournment in contemplation of dismissal (ACD) would have been the least restrictive dispositional alternative consistent with appellant’s needs and the community’s need for protection … . We note that an ACD could have been made subject to conditions, such as counseling and educational requirements. This was appellant’s first offense, and he had an exemplary academic record, along with strong recommendations from school personnel … . There is no indication that he has unsavory friends or a record of school disciplinary problems, truancy or poor grades … . On the contrary, appellant, who has a strong social support network, received an award for perfect school attendance and, upon graduation from eighth grade, an assemblyman and senator from the area awarded him a certificate of merit for academic achievement. He has also demonstrated leadership in sports. Additionally, appellant participated in a sexual behavior program and expressed remorse for his actions. Furthermore, appellant … stayed out of trouble for the 18 months that the case was pending. Based on all these factors, there is no reason to believe that appellant needed any supervision beyond that which could have been provided under an ACD. Matter of Juan P, 2014 NY Slip Op 00879, 1st Dept 2-11-14

 

Failure to Address Youthful Offender Eligibility Required Remittal

The Fourth Department determined the trial court did not consider whether the defendant should be adjudicated a youthful offender and sent the matter back:

At sentencing, defense counsel made several applications for defendant to be treated as a youthful offender, but the court did not expressly rule on them; instead, the court imposed a sentence that was incompatible with youthful offender treatment.

“Upon conviction of an eligible youth, the court must order a [presentence] investigation of the defendant.  After receipt of a written report of the investigation and at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender” (CPL 720.20 [1]).  A sentencing court must determine whether to grant youthful offender status to every defendant who is eligible for it because, inter alia, “[t]he judgment of a court as to which young people have a real likelihood of turning their lives around is just too valuable, both to the offender and to the community, to be sacrificed in plea bargaining” … .  “[W]e cannot deem the court’s failure to rule on the. . . [applications] as . . . denial[s] thereof” … .  Furthermore, even if the court had denied the applications, there is no information in the record from which we could ascertain whether the court properly did so in the exercise of its discretion, or whether it improperly acceded to the prosecutor’s plea conditions.  People v Potter, 1199, 4th Dept 2-7-14

 

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Failure to Turn Over Brady Material Until the Day of Trial Required Reversal

The Fourth Department determined the prosecution’s failure to turn over Brady material (911 tape recording) until the day of trial required reversal:

“To establish a Brady violation, a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material . . . In New York, where a defendant makes a specific request for [an item of discovery], the materiality element is established provided there exists a ‘reasonable possibility’ that it would have changed the result of the proceedings” … .

Here, the 911 recording is exculpatory because it includes the voice of an unidentified person referring to a white male suspect, and defendant herein is a black male.  Although defendant received the 911 recording as part of the Rosario material provided to him on the first day of trial, he was not “given a meaningful opportunity to use the exculpatory evidence”… . People v Carver, 1311, 4th Dept 2-7-14

 

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Counsel’s Failure to Object to References to Defendant’s Nickname Constituted Ineffective Assistance/Court’s Dismissal of an Entire Jury Panel Was Reversible Error

The Fourth Department reversed defendant’s conviction finding defense counsel ineffective for failure to object to the repeated references (by witnesses and the prosecutor) to the defendant’s nickname “killer.”  In addition, the Fourth Department determined the trial judge committed reversible error when he dismissed an entire jury panel:

Where, as here, a jury panel is “properly drawn and sworn to answer questions truthfully, there must be legal cause or a peremptory challenge to exclude a [prospective] juror” (…see CPL 270.05 [2]).  By dismissing the entire jury panel without questioning the ability of the individual prospective jurors to be fair and impartial …, the court deprived defendant of a jury chosen “at random from a fair cross-section of the community” (Judiciary Law § 500…). People v Collier, 8, 4th Dept 2-7-14

 

Court Was Not Authorized to Deny a 440 Motion Without a Hearing Where People Submitted No Opposition to the Defendant’s Adequate Papers

The Fourth Department determined the trial court was not authorized to deny a 440 motion to vacate defendant’s conviction without a hearing because the defendant submitted affidavits supporting the motion and the People submitted no opposition:

County Court erred in denying without a hearing defendant’s motion seeking to vacate the judgment convicting him of, inter alia, murder in the second degree (Penal Law § 125.25 [1]) on the grounds that material evidence adduced at his trial was false and was known by the prosecutor to be false prior to the entry of judgment and that the judgment was obtained in violation of his due process rights (see CPL 440.10 [1] [c], [h]).  Defendant submitted two affidavits from a prosecution witness that “tend[ ] to substantiate all the essential facts” necessary to support defendant’s claims (CPL 440.30 [4] [b]).  The People submitted nothing in opposition to the motion that would require or indeed allow the court to deny the motion without a hearing (see CPL 440.30 [2], [4]) and, therefore, the court “was not statutorily authorized to deny defendant’s motion without a hearing”… . People v Parsons, 48, 4th Dept 2-7-14

 

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Court Should Have Granted a Hearing on Defendant’s Motion to Vacate His Conviction on Ineffective-Assistance Grounds

The Fourth Department determined defendant’s 440 motion to vacate his conviction should not have been denied without a hearing:

Defendant’s submissions “tend[ ] to substantiate all the essential facts” necessary to support his claim of ineffective assistance of counsel (CPL 440.30 [4] [b]). Moreover, his allegations are not contradicted by a court record and are supported by other affidavits, and “it cannot be said that ‘there is no reasonable possibility that [they are] true’ ” …   Specifically, defendant averred that defense counsel advised him that, if he pleaded guilty and cooperated with the District Attorney’s office in its investigation of other criminal matters, he would receive a sentence of no more than five years of incarceration.  Three other people averred that defense counsel told defendant’s fiancé, mother and father that defendant would receive “no more than” a five-year sentence.  At the time of the plea, the court informed defendant that the agreed-upon sentence was a term of incarceration of 10 years, but noted that it would approve a lesser sentence if one were recommended by the People “based upon any cooperation [from defendant that the People] deem[ed] satisfactory and helpful.”  After defendant met with representatives of the District Attorney’s office to fulfill his obligation under the cooperation agreement, the court sentenced him to a term of incarceration of 10 years.  According to defendant, defense counsel miscommunicated to him the level of cooperation necessary for the People to recommend a lesser sentence and misled him concerning what his sentence would be if he entered a plea to the indictment. The affidavits submitted by defendant in support of the motion raise factual issues that require a hearing … .  People v Hill, 108, 4th Dept 2-7-14

 

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Defense Counsel’s Failure to Move for Suppression Constituted Ineffective Assistance

The Fourth Department determined that the failure of defense counsel to make a suppression argument constituted ineffective assistance of counsel:

The facts of this case are similar to those in People v Clermont (22 NY3d 931), where the Court of Appeals held that the defendant was deprived of effective assistance of counsel at his suppression hearing.  The Court reasoned that defense counsel’s failure to marshal the facts adduced at the hearing, “coupled with his failure to make appropriate argument in his motion papers or to submit a post-hearing memorandum, meant that the defense never supplied the hearing court with any legal rationale for granting suppression” (id. at 933).  * * *

Here, as in Clermont, suppression was the only viable defense strategy.  Nevertheless, defense counsel inexplicably failed to move for suppression of the cocaine or the knife seized by the police from defendant’s vehicle.  Defense counsel also failed to move for suppression of defendant’s incriminating statement to the officer about the knife, which the court thereafter suppressed in response to defendant’s pro se motion.  Like the attorney in Clermont, defense counsel did not marshal the facts for the court, made no legal argument regarding suppression, and submitted no post-hearing memorandum.  In short, as in Clermont, defense counsel “never supplied the hearing court with any legal rationale for granting suppression” (id. at 933).  People v Layou, 1309, 4th Dept 2-7-14

 

Unlawful Imprisonment Charge Merged With Assault Charge

The Fourth Department determined the doctrine of judicial merger required dismissal of the unlawful imprisonment charge because it merged with the charged assault:

“Under the doctrine of judicial merger, an unlawful imprisonment or kidnapping that is incidental to and inseparable from the commission of another crime merges with such other crime” … .  In determining whether the merger doctrine applies herein, “our guiding principle is whether [defendant’s] restraint [of the victim] was so much the part of another substantive crime [, i.e., the crime of assault,] that the substantive crime could not have been committed without such acts [constituting the crime of unlawful imprisonment] and that independent criminal responsibility may not fairly be attributed to them” … .  Here, the brief “abduction” of the victim, i.e., the moment when defendant grabbed the victim and pulled him outside the dwelling at issue, was “merely ‘preliminary, preparatory, or concurrent action’ in relation to the ultimate crime [of assault]” …, and we thus conclude that the unlawful imprisonment count merged with the assault count… . People v James, 1314, 4th Dept 2-7-14

 

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Verdict Properly Set Aside Based Upon Trial Court’s Own Denial of Defendant’s Request for an Adjournment to Retain New Counsel/Criteria for Trial Court’s Setting Aside a Verdict Explained

The Fourth Department, after explaining the criteria for setting aside a verdict, ruled the trial court had properly set aside the verdict in this case due to the trial court’s own erroneous denial of defendant’s request for an adjournment to seek new counsel:

“Pursuant to CPL 330.30 (1), following the issuance of a verdict and before sentencing a court may set aside a verdict on ‘[a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court’ ” … . “The power granted a Trial Judge is, thus, far more limited than that of an intermediate appellate court, which is authorized to determine not only questions of law but issues of fact . . . , to reverse or modify a judgment when the verdict is against the weight of the evidence . . . , and to reverse ‘[a]s a matter of discretion in the interest of justice’ ”… . * * *

In our view, the court’s refusal to grant defendant’s request for an adjournment was “an abuse of discretion as a matter of law” and effectively denied defendant the fundamental right to be represented by counsel of his own choosing …   On the date scheduled for suppression hearings, defense counsel, who had been retained by defendant’s family while defendant was incarcerated, withdrew defendant’s requests for suppression and sought an expedited trial without defendant’s knowledge or consent.  At the next court appearance, defendant requested an adjournment of the expedited trial to afford him time in which to retain another attorney.  The court, in denying that request, did not afford defendant “[a] reasonable time and a fair opportunity to secure counsel of his own choice”…, particularly in view of the fact that the trial was expedited without defendant’s knowledge or consent… .  Inasmuch as we conclude that defendant was denied the fundamental right to be represented by counsel of his own choosing, reversal of the judgment of conviction on that ground would be required as a matter of law upon an appeal therefrom (see CPL 330.30 [1]), and the court therefore properly set aside the verdict. People v Rohadfox, 1367, 4th Dept 2-7-14

 

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