You are here: / Criminal Law
,

Suppression Motion Should Have Been Granted—Defendant Arrested Before Police Had Probable Cause

The Fourth Department reversed the suppression court and granted defendant’s motion to suppress and dismissed the indictment. The Fourth Department concluded that the evidence of which the police were aware at the time defendant was handcuffed and placed in the back of a police care did not amount to probable cause.  A baggie containing drugs and a dagger were not found until after the illegal arrest:

…[T]he police were justified in approaching the vehicle outside the bar because they had a “founded suspicion that criminal activity [was] afoot,” rendering the police encounter lawful at its inception … . We further conclude that the police were justified in pursuing the vehicle inasmuch as “defendant’s flight in response to an approach by the police, combined with other specific circumstances indicating that [he] may be engaged in criminal activity, [gave] rise to reasonable suspicion, the necessary predicate for police pursuit” … .  Such reasonable suspicion also gave the police the authority to stop the vehicle … .

…[W]e conclude that an arrest occurred here when defendant was handcuffed and placed in the back of a police car.  Under such circumstances, “a reasonable man innocent of any crime, would have thought” that he was under arrest … .  “[V]arious factors, when combined with the street exchange of a ‘telltale sign’ of narcotics, may give rise to probable cause that a narcotics offense has occurred.  Those factors relevant to assessing probable cause include the exchange of currency; whether the particular community has a high incidence of drug trafficking; the police officer’s experience and training in drug investigations; and any ‘additional evidence of furtive or evasive behavior on the part of the participants’ ” … .  Here, the police observed neither a “ ‘telltale sign’ ” of narcotics, such as a glassine baggie, nor the exchange of currency … .  Thus, despite the observations of the police outside the bar, their experience in drug investigations, and defendant’s flight, we conclude that the police did not have probable cause to arrest defendant before the dagger and first baggie were observed. People v Lee, 1005, 4th Dept 10-4-13

STREET STOPS, SUPPRESSION

,

Case Sent Back to Suppression Court for Hearing to Determine Admissibility of Statements

The Fourth Department sent the case back to the suppression court for a hearing to determine the admissibility of statements that had not been included in the initial 710.30 notice provided in connection with a prior indictment that had been dismissed. The statements were included in the 710.30 notice provided in connection with the superseding indictment. The Fourth Department determined the defendant was entitled to a hearing on the admissibility of the statements:

…[W]e conclude that the court properly refused to preclude the additional statements included in the CPL 710.30 notice served by the People after the superseding indictment was filed … .  “Those [statements] were not referenced in the CPL 710.30 notice that was served in connection with the original indictment, but the record establishes that the People filed the superseding indictment out of necessity after the court dismissed . . . the original indictment” … .  We agree with defendant, however, that the court erred in determining the admissibility of the additional statements without reopening the Huntley hearing and affording defendant a further opportunity to contest their admissibility.  The court concluded that the statements were spontaneously made and therefore not subject to suppression.  At the time of the Huntley hearing conducted in conjunction with the initial indictment, however, the only issue before the court with respect to the additional statements was whether they should be precluded on the ground that they had not been included in the first CPL 710.30 notice.  Consequently, inasmuch as the voluntariness of the additional statements was not at issue at that time, defendant had no reason or opportunity to explore the issues of spontaneity or the effect of the previously-given Miranda warnings, or to raise any other issues regarding the admissibility of those statements.  Thus, “the hearing must be reopened” to afford him that opportunity… . People v Roberts, 945, 4th Dept 10-4-13

 

Restitution to Police Department Re: Expenses of Drug Bust Proper

The Fourth Department determined defendant was properly ordered to pay restitution to the police department in a drug case, but that payment of a surcharge should not have been ordered:

… [A] defendant convicted of, inter alia, a class C “ ‘felony involving the sale of a controlled substance’ may be ordered to repay a law enforcement agency ‘the amount of funds expended in the actual purchase’ of a controlled substance” … .  Section 60.27 (9) was amended in 1991 “to authorize restitution to law enforcement agencies for unrecovered funds utilized to purchase narcotics as part of investigations leading to convictions” … .  We therefore conclude … that the court properly directed defendant to pay restitution to the City of Oswego Police Department for the funds it expended in buying drugs from him.

The People correctly concede with respect to defendant’s further contention … that the court erred in imposing a surcharge on that restitution order.  Penal Law § 60.27 (9) further provides that “[a]ny restitution which may be required to be made to a law enforcement agency pursuant to this section . . . shall not include a designated surcharge.”  People v Boatman, 940, 4th Dept 10-4-13

 

,

Case Sent Back to Suppression Court to Determine Whether Police Had Sufficient Reason for Asking About Drugs and Weapons After Traffic Stop

The Fourth Department sent the case back for a determination whether the police had a founded suspicion of criminal activity to justify an inquiry about the presence of drugs of weapons after a traffic stop:

We agree with defendant that Supreme Court erred in refusing to suppress the gun recovered from the vehicle based upon the inevitable discovery doctrine.  The testimony at the suppression hearing established that, during a lawful traffic stop, one of the police officers asked defendant whether there were any drugs or weapons in the vehicle before instructing defendant to exit the vehicle.  After defendant admitted to having marihuana on his person, the police officer asked defendant to exit the vehicle and, following suspicious behavior by another occupant of the vehicle, searched the vehicle and found a gun in plain view.  Notably, the court did not address whether the officer had the requisite founded suspicion of criminal activity to justify an inquiry concerning the presence of drugs or weapons in the vehicle … . Instead, the court refused to suppress the gun on the ground that the police “could” have taken various actions after the traffic stop that would have inevitably led to the discovery of the gun.  The People, – however, did not raise the inevitable discovery doctrine as a ground for denying suppression of the gun, nor did they meet their burden of “demonstrat[ing] a very high degree of probability that normal police procedures would have uncovered the challenged evidence independently of [a] tainted source”… . People v Sykes, 849, 4th Dept 10-4-13

STREET STOPS, SUPPRESSION

,

Erroneous Molineux Rulings Required Reversal

The Fourth Department reversed defendant’s conviction, finding error in the trial court’s ruling evidence of prior bad acts was admissible:

Before the trial, the court granted the People’s motion to present Molineux evidence for the limited purpose of proving the absence of mistake in defendant’s possession of the forged checks (see People v Molineux, 168 NY 264, 293-294).  Pursuant to the court’s ruling, the People presented evidence on their direct case concerning three of defendant’s prior convictions as well as one investigation that did not result in criminal charges, arising from defendant’s conduct in writing checks on his accounts with knowledge that those accounts either were closed or had insufficient funds.  The court erred in ruling that such evidence was relevant to establish the absence of mistake.  The disputed issues at trial were whether defendant knew that the checks were forged and whether defendant was a knowing participant in, or an innocent victim of, a fraudulent check scheme.  Defendant’s prior bad acts were not “directly relevant” to the absence of mistake in defendant’s possession of the forged checks because those prior bad acts are not probative of defendant’s ability to recognize that the checks were forgeries or that he had become knowingly involved in a fraudulent check scheme … .  Contrary to the People’s contention, the Molineux evidence was not admissible to prove defendant’s “familiarity with check frauds and his ability to deceive individuals through banking schemes” inasmuch as such evidence “tends only to demonstrate the defendant’s propensity to commit the crime charged” .. .  Furthermore, the Court of Appeals has expressly declined to create a “ ‘specialized crime’ exception to Molineux” when the charged crime is one “that require[s] unusual skills, knowledge and access to the means of committing it” … .  We therefore conclude that evidence of defendant’s prior bad acts was inadmissible as a matter of law … .

We further conclude in any event with respect to the court’s Molineux ruling that the probative value of the evidence did not outweigh its prejudicial effect … .  The evidence was “of slight value when compared to the possible prejudice to [defendant]” and therefore should not have been admitted … .  We further conclude that the error in admitting the evidence is not harmless …, even in view of the court’s limiting instruction.  People v Mhina, 871, 4th Dept 10-4-13

 

,

Mode of Proceedings Error Re: Jury Note Required Reversal, Molineux Rulings Flawed

The Fourth Department reversed defendant’s conviction finding the trial court committed a mode of proceedings error in responding to a jury note. The judge instructed the jury in the jury room outside the presence of the defendant.  In addition, the Fourth Department found fault with the procedure used by the trial court to address the admission into evidence of defendant’s prior bad acts, as well as some of the rulings that such evidence was admissible:

We agree with defendant that County Court committed a mode of proceedings error when it responded to a jury note off the record, in the jury room, and outside the presence of defendant, with no indication that defendant had waived his right to be present.  CPL 310.30 provides that, upon receiving a request for further instruction or information from the jury during deliberations, “the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper.”  It is beyond cavil that “[a] defendant has a fundamental right to be present at all material stages of a trial . . . [and] CPL 310.30 makes a defendant’s right to be present during instructions to the jury absolute and unequivocal” … .  The court properly read the jury note on the record in the presence of defendant, defense counsel, and the prosecutor, and it then obtained a clear stipulation from both attorneys concerning the accuracy of its intended response to the jury’s request for information.  We nevertheless conclude that the court committed reversible error by subsequently instructing the jury off the record, in the jury room, and outside the presence of defendant (see CPL 310.30…).

Because there must be a retrial, we deem it appropriate to address defendant’s contention that the court abused its discretion by permitting testimony concerning defendant’s prior bad acts in the days, months, and years preceding the subject arson.  “[A] defendant is not entitled as a matter of law to pretrial notice of the People’s intention to offer evidence pursuant to People v Molineux (168 NY 264) or to a pretrial hearing on the admissibility of such evidence” ….  Nevertheless, “a prosecutor seeking to introduce Molineux evidence ‘should ask for a ruling out of the presence of the jury’ . . . and . . . any hearing with respect to the admissibility of such evidence should occur either before trial or, at the latest, ‘just before the witness testifies’ ” … .

Here, that procedure was not followed.  Instead, the court improperly afforded defense counsel a standing objection with respect to testimony concerning defendant’s prior bad acts while affording the prosecutor the opportunity to ask one of the victims of the arson, who was defendant’s neighbor, about defendant’s prior bad acts over a period as long as 10 years before the arson.  It was particularly improper to allow that witness to testify that, as a result of defendant’s prior bad acts, he had concerns about the safety of his children and pets.  “It is fundamental that evidence concerning a defendant’s uncharged crimes or prior misconduct is not admissible if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate that the defendant was predisposed to commit the crime charged” … .  Although defendant’s bad acts within a few days of the arson could be deemed relevant to such issues as motive and intent, testimony concerning defendant’s bad acts in the preceding weeks, months or years was irrelevant to any issue in the case and only could have prejudiced defendant by suggesting to the jury that he was an erratic and potentially dangerous person who had the propensity to commit the crime at issue … . People v Cornell, 870, 4th Dept 10-4-13

 

,

Revocation of Pistol Permit (After Acquittal) Not Supported by Evidence

The Fourth Department, in an Article 78 proceeding initiated in the appellate court, annulled the revocation of petitioner’s pistol permit.  The permit was suspended temporarily when petitioner was charged with menacing but was revoked after an acquittal:

We agree with petitioner that the determination is arbitrary and capricious, and constitutes an abuse of discretion inasmuch as the record from the hearing is devoid of any evidence upon which respondent could have based his determination … .  We further agree with petitioner that his due process rights were violated inasmuch as the record from the hearing does not demonstrate that he was afforded the opportunity to review the alleged documentation upon which respondent based his determination … .  We therefore annul the determination.  We note, however, that our determination does not preclude the commencement of a new revocation proceeding… . Matter of Curts v Randall, 890, 4th Dept 10-4-13

 

,

Trial Judge Should Have Allowed Slightly Late Peremptory Challenge—Conviction Reversed

The Fourth Department reversed defendant’s conviction based on the trial court’s refusal to allow the defense a peremptory challenge.  Defense counsel had mistakenly crossed out the juror’s name and quickly let the court know about the mistake:

After several prospective jurors had been excused for cause, the court directed the attorneys to exercise their peremptory challenges to the first group of prospective jurors in the panel.  The prosecutor exercised several challenges, followed by defense counsel.  As the court began to indicate the number of challenges that remained for each side, defense counsel immediately asked if he could exercise a peremptory challenge to the prospective juror in question on appeal.  When the court said no, defense counsel indicated that he had “crossed [the prospective juror’s name] out by mistake.”  The court reiterated that it would not permit the challenge, indicating that it had warned the attorneys about adhering to the court’s procedures.

“Under these circumstances, ‘we can detect no discernable interference or undue delay caused by [defense counsel’s] momentary oversight . . . that would justify [the court’s] hasty refusal to entertain [his] challenge,’ ” and we thus conclude that the court’s refusal to permit the challenge was an abuse of discretion … .  Inasmuch as “the right to exercise a peremptory challenge against a specific prospective juror is a ‘substantial right’ . . . , reversal is mandated” … . People v Rosario-Boria, 1007, 4th Dept 10-4-13

 

,

Failure to Make Motion for Trial Order of Dismissal Not Ineffective Assistance

In affirming defendant’s conviction, the Fourth Department determined defense counsel’s failure to make a motion for a trial order of dismissal did not amount to ineffective assistance of counsel:

…“[D]efense counsel’s failure to make a specific motion for a trial order of dismissal at the close of the People’s case [does] not constitute ineffective assistance of counsel, inasmuch as any such motion would have had no chance of success” … .  Indeed, we note that defendant does not contend on appeal that the evidence at trial is legally insufficient to support the conviction.  People v Hicks, 1008, 4th Dept 10-4-13

 

Flawed Jury Instruction Re: Assisted Suicide Affirmative Defense to Murder Required New Trial

In a full-fledged opinion by Justice Richter, the First Department determined the trial court’s jury instruction on the assisted-suicide affirmative defense to murder did not accurately instruct the jury on the elements of the defense and a new trial was required. Apparently there was no question that the decedent wanted to die and that the defendant participated in some way in decedent’s death.  The central questions were whether defendant held the knife while the decedent leaned into it or whether defendant actively stabbed the decedent. The First Department noted that the prosecutor was not obligated to instruct the grand jury on the assisted-suicide affirmative defense because it is a mitigating defense (reducing the charge from murder) not a complete defense.  With respect to the elements of the assisted-suicide affirmative defense, the court wrote:

If the decedent took no part whatsoever in the ultimate act that led to his death, it cannot be characterized as suicide, even if the record shows the decedent wanted to die. In this regard, we find that the jury’s verdict convicting defendant of murder was based on legally sufficient evidence and was not against the weight of the evidence … . The testimony of the People’s medical expert provided ample proof that defendant repeatedly stabbed the decedent. Based on this evidence, the jury was entitled to reject defendant’s claim that he merely held the knife.

But the jury was also free to accept defendant’s account of events. Under that version, a jury could have found that the decedent committed suicide because he committed the final overt act that caused his death, i.e., thrusting himself into the knife. Notably, the People did not argue below that defendant’s version, if believed, would not satisfy the affirmative defense to murder. In fact, the record shows that the People acquiesced to the defense being charged, and they do not argue otherwise on appeal. The People made no objection to the charge, and in fact offered their own proposed language to the court. The trial court determined that defendant’s version supported the assisted suicide defense because it decided to give the charge … .

Under these circumstances, the portion of the court’s instruction that the assisted suicide defense is not made out if defendant “actively” caused the decedent’s death, along with the expansive definition of the word “active” given in the supplemental charge, was confusing and conveyed the wrong standard. Neither the word “active,” nor its antonym “passive,” appears in the statutory language and thus, by giving this charge, the court added an element that is not part of the defense. People v Minor, 2013 NY Slip Op 06444, First Dept 10-3-23

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy