The Third Department noted that imposition of both a fine and imprisonment for Driving While Intoxicated is discretionary. County Court’s indication that the fine was “mandatory” required remittal for resentencing. People v Olmstead, 105214, 3rd Dept 11-21-13
After determining defendant’s request to represent himself at trial was properly granted, the Third Department noted that a suppression hearing should have been held to determine whether excessive force (taser) was used to retrieve a bag of cocaine from defendant’s mouth:
As for the cocaine recovered from defendant’s mouth after he was tased more than once, defendant raised a question as to whether that evidence was seized from him through the use of excessive force, which requires an analysis “under the Fourth Amendment’s ‘objective reasonableness’ standard” .. . Defendant’s affirmation described his version of the arrest and search, and his motion papers asserted that use of a taser constituted excessive force under the circumstances. The People failed to substantively respond to this argument. As the motion papers raised a factual dispute concerning the use of a taser and whether it might be considered excessive force, giving rise to a potentially unreasonable search and seizure that may require suppression of the evidence, a hearing was required… . People v Atkinson, 105126, 3rd Dept 11-21-13
The Third Department determined defendant should have been provided with new counsel after defense counsel took a position adverse to defendant’s pro se motion to withdraw his guilty plea:
We agree with defendant’s contention that he should have been assigned new counsel to pursue his motion to withdraw the guilty plea because his counsel was essentially called as a witness against him. While defense counsel is not required to support a pro se motion to withdraw a guilty plea, counsel “may not take a position . . . that is adverse to the defendant” … . Doing so creates an actual conflict of interest that requires the trial court to assign a new attorney to represent the defendant on the motion … .
Here, defendant claimed that defense counsel coerced him into entering the guilty plea by failing to communicate with him, telling him that he did not want to represent him and that he had to take the offer “or that’s it.” Defendant claimed that he was unprepared for any pretrial proceedings based on the lack of communication and felt that he had to take the plea to “get away” from counsel and avoid having to go to trial with him. Defense counsel specifically refuted defendant’s assertions and, in response to County Court’s questioning, provided detailed information as to the discussions he had with defendant about the case and his options. In response, defendant claimed that counsel’s statements were untruthful. Given that defense counsel took a position adverse to defendant’s claim of coercion, County Court should have assigned new counsel to pursue defendant’s motion to withdraw his plea… . People v Zaorski, 103901, 3rd Dept 11-21-13
In a full-fledged opinion by Judge Lippman, the Court of Appeals determined that the unusually egregious circumstances of the three cases before them, all resulting in convictions for depraved indifference murder stemming from outrageously reckless driving while intoxicated, supported the depraved-indifference-murder verdicts. Because of the fact-specific nature of the analysis, the relevant facts of one of the three cases are provided here:
When viewed in the light most favorable to the People, there was legally sufficient evidence to support Heidgen’s convictions for depraved indifference murder. The jury could have determined that defendant was unhappy and self-destructive. Defendant’s friends who observed him at the party thought that he was intoxicated but not so intoxicated that he was incoherent, unsteady on his feet or slurring his speech. Heidgen drove the wrong way on the highway for over two miles without reacting to other drivers coming at him, car horns, or wrong way signage. Perhaps most significantly, more than one witness testified that defendant appeared to follow, or track, the headlights of oncoming vehicles. In addition, the toxicologist testified that defendant’s blood alcohol level would have caused delayed reaction time, but that it would not have rendered him incapable of reacting at all. Based on this evidence, the jury could have found that, despite defendant’s intoxication, he perceived his surroundings. The jury could have reasonably concluded that defendant drove, knowing that he was on the wrong side of the road and with an appreciation of the grave risks involved in that behavior. One who engages in what amounts to a high speed game of chicken, with complete disregard for the value of the lives that are thereby endangered, is undoubtedly an individual whose culpability is the equivalent of an intentional murderer. People v Heidgen…, 174, 175, 176, CtApp 11-21-13
In a full-fledged opinion by Judge Abdus-Salaam, the Court of Appeals determined that where aggregate one-year consecutive sentences are capped at 2 years pursuant to Penal Law section 70.30 (2) (b), jail time and good time credits should be applied to the two-year period, not the longer aggregate term on which the two-year cap was imposed:
Having determined that Penal Law § 70.30 (2) (b) imposes a two-year aggregate term of imprisonment, we turn to whether this two-year aggregate term may be reduced by jail time and good time credit a prisoner has earned while incarcerated. Penal Law § 70.30 (3) (b) and (4) (b) provide that, where a prisoner is serving consecutive definite sentences, jail time and good time credit must be applied against the prisoner’s aggregate term of imprisonment (see Penal Law § 70.30 [3] [b]; [4] [b] [emphasis added]), although good time credit may not exceed one third of that aggregate term (see id. at [4] [b]; Correction Law § 804 [1]).
Considering these directives together with section 70.30 (2) (b), it follows that, in cases where the two-year limit on consecutive definite sentences applies, jail time and good time credit must be applied against the two-year aggregate term rather than the aggregate term imposed by the sentencing court. Under such circumstances, correctional authorities should calculate the time to be served under the sentences by reducing the two-year aggregate term by the available jail time credit and any good time credit that does not exceed 243 days (or one-third of the two-year aggregate term) (see Penal Law § 70.30 [3] [b]; [4] [b]). People ex rel Ryan… v Cheverko…, 183, CtApp 11-21-13
In a full-fledged opinion by Judge Read, the Court of Appeals determined the People should not have been allowed to reopen a suppression hearing and present additional evidence after the hearing officer had ruled the seized evidence, including a handgun, must be suppressed. The key inquiry is whether the People had a full and fair opportunity to present evidence of the dispositive issues at the hearing. If so, the hearing cannot be reopened, either after trial (on remand after an appeal) or, as in this case, at the pretrial stage:
In People v Havelka (45 NY2d 636 [1978]), we held that the People, if afforded a full and fair opportunity to present evidence of the dispositive issues at a suppression hearing, are not entitled to a remand after appeal for a reopened hearing. We hold that the principles underlying Havelka have equivalent force in the pretrial setting, and preclude a trial judge from reopening a suppression hearing to give the People an opportunity to shore up their evidentiary or legal position absent a showing that they were deprived of a full and fair opportunity to be heard. People v Kevin W, 187, CtApp 11-21-13
The Court of Appeals reversed defendant’s conviction because the plea colloquy negated an essential element of the offense. The defendant pled guilty to rape 3rd (Penal Law 130.25(3)), the so-called “date rape” statute. The statute requires a lack of consent by the victim, not a lack of capacity to consent (caused by drugs, for example). The plea allocution indicated only a lack of capacity to consent. Even though the error was not preserved, the Court of Appeals determined the case fell within the narrow exception to the preservation requirement recognized in Lopez (71 NY2d at 666) where the court fails to ensure the guilty plea is knowing and voluntary:
Penal Law § 130.25 (3) addresses “so-called date rape or acquaintance rape situations [where] there [might] be consent to various acts leading up to the sexual act, but at the time of the act, the victim clearly says no or otherwise expresses a lack of consent” … . Accordingly, the statutory provision requires the victim to have “clearly expresse[d] an unwillingness to engage in the sexual act in such a way that a neutral observer would have understood that the victim was not consenting” … .
Despite the statute’s plain terms, questions posed by the prosecutor during the brief colloquy indicate an intention to elicit from defendant that the complainant was unable to consent because she was incapacitated. Moreover, the court’s single query during the factual allocution suggests that the court similarly misunderstood that key element of the crime. In an apparent attempt to establish a causal relationship between thr complainant’s incapacity and her lack of consent, the court asked defendant, “[a]nd [the complainant] didn’t give you consent because she took too much medication and she has a mental illness, correct?” By answering in the affirmative, defendant unequivocally negated an element of the crime to which he was pleading guilty. People v Worden, 203, CtApp 11-21-13
The Second Department determined defendant’s waiver of his right to appeal was invalid:
The defendant’s purported waiver of his right to appeal was invalid … . Although the defendant signed a Rockland County pre-printed form waiver, as we have previously stated, this form “contained erroneous statements with regard to the waiver of the right to appeal” and should not have been utilized … . The Supreme Court’s terse colloquy at the plea allocution failed to sufficiently advise the defendant of the nature of his right to appeal. Further, the defendant never orally confirmed that he grasped the concept of the appeal waiver and the nature of the right he was forgoing … . Under these circumstances, the record does not establish that the defendant knowingly, voluntarily, and intelligently waived his right to appeal. People v Salgado, 2013 NY Slip Op 07755, 2nd Dept 11-20-13
The Second Department affirmed Supreme Court’s suppression of evidence. Based upon a confidential informant’s vague description of a man who was about to be part of a drug sale, a police officer followed the defendant. The defendant started running and threw a small object away. The defendant then entered an apartment with a key. The police ultimately broke the door down and saw the defendant throw bags of marijuana and heroin out the window. A subsequent search warrant turned up more drugs. The Second Department wrote:
“Police pursuit of an individual significantly impede[s]’ the person’s freedom of movement and thus must be justified by reasonable suspicion that a crime has been, is being, or is about to be committed” … . Flight, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit … . “Flight alone, however, or even in conjunction with equivocal circumstances that might justify a police request for information is insufficient to justify pursuit because an individual has a right to be let alone and refuse to respond to police inquiry” … .
Here, there were no specific circumstances indicating that the defendant might be engaged in criminal activity. The fact that the defendant matched the extremely vague description given by the informant of someone who would conduct a drug transaction somewhere in the vicinity, sometime later that day, was not sufficiently indicative of criminal activity … . * * *
Moreover, the detective compounded the unlawful pursuit by entering the apartment without consent or probable cause and exigent circumstances … . While retreat into one’s home cannot thwart an otherwise proper arrest set in motion in a public place, probable cause for the arrest is required … . When the detective entered the apartment, he did not have probable cause to believe that the defendant had committed a crime. Accordingly, all of the physical evidence was properly suppressed. People v Nunez, 2013 NY Slip Op 07753, 2nd Dept 11-20-13
The First Department, contrary to the suppression-hearing court, determined the act of handcuffing the defendant constituted an arrest. [The matter was sent back to allow the hearing court to determine whether a radio transmission from a fellow officer provided probable cause for the arrest, an issue the hearing court had not ruled upon.]:
…[W]e reject the People’s argument that defendant was not under arrest at the point when he was handcuffed. Although the use of handcuffs is not dispositive of whether an investigatory detention on reasonable suspicion has been elevated to an arrest, handcuffing is permissible in such a detention only when justified by the circumstances (see People v Acevedo, 179 AD2d 465, 465-66 [1st Dept 1992], lv denied 79 NY2d 996 [1992]). In this case, the police had no reason to believe that defendant was either armed or dangerous. Nor was there any indication on the record that defendant offered any resistance prior to the handcuffing, or gave the police any reason to believe that he might flee. The fact that defendant was “a little resistant” when told to put up his hands is not, on its own, sufficient to establish that the officers had any difficulty restraining defendant. Rather, like Acevedo, this case presents a situation in which the officers’ initial use of handcuffs was not warranted by the threat confronting them…, so that the detention exceeds the proper bounds of an intrusion made on less than probable cause. People v Blanding, 2013 NY Slip Op 07692, 1st Dept 11-19-13
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