You are here: / Criminal Law
,

Police Violated Defendant’s Constitutional Rights by Pushing Door Open and Entering Apartment When Defendant Answered the Door—The “Payton” Violation (a Warrantless Arrest Inside Home) Mandated Suppression of Defendant’s Statement

Over a two-justice dissent, the Second Department determined defendant was arrested pursuant to a Payton violation (a warrantless arrest inside defendant’s home) and his subsequent statement should have been suppressed. The police were at defendant’s door with the complainant who told the police defendant had assaulted her.  When defendant opened the door, the complainant identified him as the assailant.  The defendant tried to shut the door, but the police pushed their way in and arrested him. The trial court felt there was no Payton violation the defendant’s attempt to shut the door after the identification was akin to “fleeing” or “exigent circumstances.”  The Second Department, in a full-fledged opinion by Justice Balkin, disagreed and wrote:

In Payton v New York (445 US 573), the United States Supreme Court announced a clear and easily applied rule with respect to warrantless arrests in the home: “the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant” (Payton v New York, 445 US at 590). The rule under the New York Constitution is the same (see NY Const, art 1, § 12; People v Levan, 62 NY2d 139, 144). Payton and Levan require suppression of the defendant’s statement under the clear, undisputed facts of this case.

Certainly, if the defendant’s encounter with the police had begun outside his home, or even on the threshold of it, the defendant could not have avoided arrest by fleeing into his home (see United States v Santana, 427 US 38, 43). But, contrary to the hearing court’s characterization, the defendant’s attempt to close his door was not “akin” to “fleeing”; he had never left the constitutionally protected interior of his home in the first place, even partially, so he did not flee “into” his home … . People v Gonzales, 2013 NY Slip Op 06381, 2nd Dept 10-2-13

 

,

Ineffective Assistance of Counsel Mandated New Trial—Difference Between Federal and State Ineffectiveness Criteria Explained

In determining the defendant was entitled to a new trial because of the ineffectiveness of his trial counsel, the Second Department explained the difference between the federal and state criteria for ineffective assistance.  Supreme Court had vacated defendant’s murder conviction (ineffective assistance) but allowed the conviction for criminal possession of a weapon to stand.  The Second Department explained that, even though there was evidence to support the criminal possession of a weapon charge, the state ineffective assistance criteria required a new trial on all counts:

A defendant is guaranteed the effective assistance of counsel under both the federal and state constitutions (see US Const, amend VI; NY Const, art I, § 6…). The state standard is considered “somewhat more favorable to defendants,” focusing on “the fairness of the process as a whole rather than its particular impact on the outcome of the case” …. “[T]he constitutional requirements [for the effective assistance of counsel] are met when the defense attorney provides meaningful representation” …. While prejudice to the defendant is a necessary factor under the federal standard, embodied in a “but for” test …, under the state standard, “a defendant’s showing of prejudice is a significant but not indispensable element in assessing meaningful representation” …. “To meet the New York standard, a defendant need not demonstrate that the outcome of the case would have been different but for counsel’s errors” … . Generally, harmless error analysis is inapplicable to an ineffective assistance of counsel claim arising from counsel’s performance at trial … .

Here, the litany of failures by defense counsel documented by the Supreme Court established that the defendant was denied “meaningful representation” by his trial attorney. Notwithstanding the fact that there was strong evidence that the defendant possessed a loaded firearm during the incident in question, the New York State constitutional standard for the effective assistance of counsel “is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case” … . People v Canales, 2013 NY Slip Op 06376, 2nd Dept 10-2-13

 

,

“Anders” Brief Rejected

In rejecting an “Anders” brief, the Second Department noted:

The brief submitted by the appellant’s counsel pursuant to Anders v California (386 US 738) was deficient. The body of the brief—which was only 1½ pages in length—did not contain a statement of facts, and did not contain any case citations. The brief failed to analyze potential appellate issues or highlight facts in the record that might arguably support the appeal … . Since the brief does not demonstrate that assigned counsel acted “as an active advocate on behalf of his . . . client” … or that he diligently examined the record, we must assign new counsel to represent the appellant… .  People v McNair, 2013 NY Slip Op 06389, 2nd Dept 10-2-13

 

, ,

Writ of Prohibition Barring Retrial Granted—Mistrial Granted Without Consent of Defendant Was Not Justified

The First Department granted a writ of prohibition barring a retrial of the defendant because the judge ordered a mistrial without the consent of the defendant based upon a comment made by defense counsel in summation. The First Department determined the comment was not sufficiently prejudicial to justify the mistrial:

Jeopardy attaches once a jury has been selected and sworn … . When a mistrial is declared without the consent or over the objection of a criminal defendant, the prohibition against double jeopardy contained in the Fifth Amendment of the United States Constitution and in section 6 of article I of the New York State Constitution bars retrial for the same offense or offenses unless there is a manifest necessity for the mistrial or the ends of public justice would otherwise be defeated … . Here, as the People concede, counsel’s summation comment was not overly prejudicial and provided no basis for a mistrial on “manifest necessity” or “ends of public justice” grounds. Matter of Smith v Williams, 2013 NY Slip Op 06329, 1st Dept 10-1-13

 

,

Canadian Attorney Practicing in New York Properly Convicted of Unlicensed Practice of Law

The First Department affirmed the conviction of a Canadian attorney (not admitted in New York) whose New York law firm, which employed members of the New York bar, represented clients in immigration matters. The complainants were former clients who testified they retained the defendant’s law firm based upon their belief defendant was licensed to practice in New York. The complainants testified they did not receive the services they paid for and were not refunded their money.  The defendant was charged with grand larceny, scheme to defraud and unlicensed practice of law.  The First Department determined there was sufficient evidence to support the convictions even though there was no evidence defendant explicitly represented she was licensed to practice law in New York.  Several unique issues were discussed including: the Attorney General’s (AG’s) loss of documentary evidence (advertisements and retainer agreements) so the appellate court was unable to review them; the Attorney General’s jurisdiction over the criminal prosecution under Executive Law 63; the power of the Division of State Police to request that the Attorney General prosecute the case; the law of the case with respect to the First Department’s reversal of defendant’s conviction after her first trial and its refusal to dismiss the indictment; and the trial court’s refusal to substitute counsel for the defendant and giving defendant the choice to proceed pro se (which she did).  In discussing the sufficiency of the evidence, the First Department wrote:

Viewing the evidence in the light most favorable to the AG, as we must …, we find that the evidence was sufficient to convict defendant. It was not unreasonable for the jury to have concluded that by promoting herself in an advertisement as being a lawyer specializing in immigration, and having an office in New York, defendant intended to signal that she was licensed to practice in New York. That some of the lawyers working in the office were admitted in New York is of little moment, since defendant traded almost exclusively on her own reputation and expertise in seeking to attract clientele. Further, the fact that defendant’s advertisements made clear that she was admitted to practice in Canada did not preclude the possibility that a client would reasonably believe that she was also admitted in New York, but found it unnecessary to publicize that fact based on her location in Manhattan.

It was also not irrational for the jury to conclude that defendant had an economic motive for concealing her lack of a New York license, despite the fact that such a license was not necessary to process her clients’ immigration applications. Aside from the cachet that prospective clients would have attributed to having a lawyer who was a member of the New York bar, the jury could have concluded that CPI’s clients valued the fact that the attorney they retained was subject to the jurisdiction of local disciplinary authorities if they were unsatisfied with defendant’s work (as many of them were). Indeed, it is clear that CPI’s clients placed a large premium on defendant’s bar status, given that each of them testified that they would not have retained the firm had they known that defendant was not admitted to practice in New York. People v Codina, 2013 NY Slip Op 06291, 1st Dept 10-1-13

 

,

Resentencing After Original Sentence Expired Violates Double Jeopardy Clause

The Fourth Department explained that a resentencing which takes place after the original sentence has been completed violates the double jeopardy clause.  People v Alvarado, 961, 4th Dept 9-27-13

 

Court, Not Prosecutor, Must Determine Whether Defendant Is Eligible for Youthful Offender Adjudication

In remitting the matter to determine whether defendant should be sentenced as a youthful offender, the Fourth Department explained that is was unclear whether the court, as opposed to the prosecutor, made the determination not to afford defendant youthful offender status:

“After receipt of a written report of the [preplea or presentence] 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]).  In People v Rudolph (___ NY3d ___ [June 27, 2013]), the Court of Appeals held that section 720.20 mandates that, when the sentence is imposed, the sentencing court must determine whether to grant youthful offender status to every defendant who is eligible for it.  The Court of Appeals stated that “[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” … . People v Brownell, 946, 4th Dept 9-27-13

 

Persistent Felony Offender Statute Does Not Require Prior Felonies to be Equivalent to New York Felonies

The Fourth Department determined that the persistent felony offender statute did not require that the prior felonies taken into consideration for persistent felon status be equivalent to New York felonies:

The persistent felony offender statute … contains no language requiring that the underlying out-of-state conviction be for a crime that would constitute a felony in New York, i.e., “an offense for which a sentence to a term of imprisonment in excess of one year may be imposed” (Penal Law § 10.00 [5]), or that the elements of the foreign crime be equivalent to the elements of a New York crime (see § 70.10 [1] [b] [i]).  Rather, as noted by the Second Circuit in upholding the constitutionality of the persistent felony offender statute, “[s]ection 70.10 (1) (b) does not distinguish among felony convictions that arise under federal, New York State, or out-of-state law.  Thus, if the acts constitute a felony under federal or another state’s law, they will be deemed a felony for purposes of persistent offender status under [s]ection 70.10 even if there is no counterpart felony in New York law.  By contrast, under [s]ection 70.06 [the second felony offender statute], the underlying acts of a federal or out-of-state felony must be recognized as a felony in New York to qualify as a predicate felony” … .  People v Jones, 853, 4th Dept 9-27-13

 

Judge Properly Relied on Presentence Report to Refuse to Adjudicate Defendant a Youthful Offender

The Fourth Department determined that the trial judge’s refusal to adjudicate defendant a youthful offender, after a promise to do so, based upon information in the presentence report, constituted an adequate reason and explanation for the refusal:

“As a matter of law and strong public policy, a sentencing promise made in conjunction with a plea is conditioned upon ‘its being lawful and appropriate in light of the subsequent presentence report or information obtained from other reliable sources’ ” … .  Contrary to defendant’s contention, “the court’s reliance on the presentence report for its determination that defendant would not be afforded youthful offender status ‘constitutes an adequate explanation for the denial of defendant’s request for such status’ ” … . The presentence report “included mitigating and aggravating factors, [and therefore] adequately explained the court’s reasons for denying youthful offender status on the instant indictment” … .  People v Jamal H, 831, 4th Dept 9-27-13

 

Furtive Behavior Justified Pat Down Search

The Fourth Department determined the police properly searched (frisked) the defendant after a valid vehicle-stop based on his “furtive” behavior:

As defendant correctly concedes, the police officer lawfully stopped defendant’s vehicle because it had a broken taillight …, and defendant voluntarily exited the vehicle.  Given defendant’s furtive behavior before and after exiting his vehicle, including being “fidgety” and “evasive” when answering the police officer’s questions, turning the right side of his body away from the police officer, and placing his right hand in his jacket pocket, the police officer “reasonably suspected that defendant was armed and posed a threat to [his] safety” … .  “Based upon [his] reasonable belief that defendant was armed, the officer[] lawfully conducted [the] pat frisk” that resulted in the seizure of the gun … . People v Carter, 965, 4th Dept 9-27-13

 

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