You are here: / Criminal Law
, ,

County Court’s Suppression of Statements and Fruits of Search Reversed

The Third Department reversed County Court’s suppression of defendant’s statements and County Court’s finding that defendant had not voluntarily consented to the search of his car (both based on the absence of Miranda warnings).   The Third Department determined a reasonable person innocent of a crime would still have felt he was free to leave (i.e., that he was not in custody) after his failure of field sobriety tests and a negative alcosensor test.  The Third Department further noted that the failure to provide Miranda warnings would not necessarily render a consent to search involuntary:

The court ….overlooked the settled proposition that “[a] temporary roadside detention pursuant to a routine traffic stop is not custodial within the meaning of Miranda” … .The facts here reveal a reasonable initial interrogation attendant to a roadside detention that was merely investigatory…. The Troopers’ inquiries, the mixed results of the field sobriety tests and a negative alcosensor test would not have caused a reasonable person innocent of any wrongdoing to believe that he or she was in custody….   In our view, the Troopers’ observations of defendant’s condition justified the further  detention  for the  limited  purpose  of  investigating whether  he  was  operating his motor  vehicle in an  impaired condition… .  People v Brown, 105134, 3rd Dept 6-27-13

 

,

Failure to Fully Inform About Postrelease Supervision Required Reversal

After noting that a waiver of appeal does not preclude a challenge to the voluntariness of a guilty plea, the Third Department reversed because the defendant was not fully informed about the promised duration or potential range of postrelease supervision:

Here, the record reflects, as the People concede, that while the plea agreement included a specific negotiated sentence and a mention of postrelease supervision, defendant was never advised by the court of either a promised specific duration or the potential range of the mandatory postrelease supervision component prior to sentencing. Accordingly, his decision to plead guilty was not a knowing, voluntary and intelligent one and, therefore, the judgment of conviction must be reversed… . People v Brown, 105107, 3rd Dept 6-27-13

 

,

Ineffective Assistance of Counsel Required Reversal

In reversing the defendant’s conviction, the Third Department determined the defendant did not receive effective assistance of counsel:

Here, defense counsel did not give an opening statement. The People produced five witnesses and, during their testimony, there were no objections despite some objectionable questions. The  People’s  exhibits  were  received  without  objection,  including one  after proof  was  closed. Cross-examination, when conducted, was cursory and elicited little information that  would  be  useful or pertinent to a defense strategy. No witnesses were called on behalf of defendant.    Defense counsel’s summation,  which  was  only four sentences, started with the unhelpful comment  that “the reason we are here today is because [defendant] was unable to successfully  enter  a  plea  of  guilty by  way  of  providing an adequate  colloquy,”  and  added  little else  other  than  the conclusory request  for “the  [c]ourt  to  consider  this matter simply in regard to whether  there is reasonable doubt.” With no opening statement, no witnesses called and a feckless summation, counsel’s strategy  of  defense  is not apparent. In  addition,  pretrial efforts to  suppress  or  limit evidence – such as defendant’s statement to police and evidence about  uncharged  conduct  –  were  not  pursued. People v Bush, 105005, 3rd Dept 6-25-13

 

,

Defendant’s Being in the “General Area” Where Was Weapon Was Found and Defendant’s DNA on the Weapon Was Not Enough to Support Possession Conviction

The Third Department reversed defendant’s conviction for criminal possession of a weapon as against the weight of the evidence.  The evidence demonstrated that the defendant was in the general area where the gun was found and the defendant could not be excluded from the mixed DNA found on the gun.  The court wrote:

No one saw defendant with the gun, he was just near where it was found and his DNA was on it. The officer testified that defendant was 20 to 30 feet past the house, whereas Fox [defendant’s companion] was off his bicycle and appeared to be doing something near the house. The officer further testified that he found the gun in front of that house, and vaguely stated that defendant  was  in “the general area” where the gun was found. This does not prove that defendant possessed the gun on Sheridan Avenue at that time. Based  on  the  testimony  of the  officer and  the  forensic scientist, it is possible that Fox – who  the officer had seen directly in front of the house – could have had the gun and left it on the ground at that time, and defendant’s DNA could have been there from handling  it previously (which  may  prove  that defendant handled the  gun at some  point, but not  at the date and time alleged in the  indictment) or through  secondary  transfer (i.e., if Fox  touched defendant  and  then  the  gun,  transferring some  of defendant’s DNA onto the gun). Because this scenario is equally likely to have occurred, we cannot say that the weight of the evidence supports the verdict finding defendant guilty  ….  People v Graham, 104177, 3rd Dept 6-27-13

 

County Court’s Jurisdiction Over Crimes Committed in Other Counties, Among Many Other Issues, Explained

In a full-fledged opinion by Justice Egan, the Third Department affirmed the conviction of the director of facilities for the Schenectady City School District for arson, criminal possession of a weapon, criminal mischief and other offenses.  Among the issues (all resolved against the defendant) addressed in substantive discussions: (1) whether Schenectady County Court had jurisdiction over the counts of the indictment which were alleged to have occurred in other counties; (2) whether the jurisdictional facts were sufficiently alleged and proven; (3) severance of counts; (4) suppression of evidence found in a briefcase in an area for which a search warrant had been issued; (5) whether questions amounted to impermissible interrogation; (6) the admission of Molineux evidence; (7) whether testimony relating to non-testifying chemist’s findings in a report was a Crawford violation (a violation of the right of confrontation); (8) and the admissibility of demonstrative evidence.  With respect to the jurisdiction issue, the court wrote:

…[I]n order for prosecutorial jurisdiction to lie in Schenectady County for the extraterritorial crimes, defendant’s conduct must have “had, or was likely to have, a particular effect upon [the] [C]ounty . . . or part thereof, and [have been] performed with intent that it would, or with knowledge that it was likely to, have such particular effect therein” ….To that end criminal conduct has a “particular effect” upon a county when the consequences thereof “have a materially harmful impact upon the governmental processes or community welfare” of that county (CPL 20.10 [4]) such that the defendant’s out-of-county conduct “expose[s] a large number of county residents to a specific harm”… .In this regard, the injury alleged must  be  “concrete and  identifiable” and of the type that can be demonstrated by proof… .  The People bear the burden of proving  that venue is proper by a preponderance of the evidence, and whether the subject county has geographic jurisdiction over each of the charged offenses presents a factual issue for the jury to resolve … .  People v Raucci, 103996, 3rd Dept 6-27-13

 

Grand Jury Proceeding Not Tainted by Excused Juror’s Statements About Having Arrested and Having Been Threatened by Defendant

The Third Department reversed County Court’s dismissal of indictments based upon a finding the integrity of the grand jury had been impaired.  A potential grand juror was excluded after stating he had arrested the defendant at least once and the defendant had threatened his family.  The Third Department wrote:

The prosecutor immediately excused this juror and instructed the remaining grand jurors to disregard and ignore the comment and to base their deliberations solely on the evidence provided by the sworn witnesses. While County Court found the prosecutor’s efforts in that regard to be inadequate, “the grand jury is presumed to have followed the prosecutor’s curative instructions, dispelling any prejudice to [] defendant”….  Furthermore, given the strength of the evidence supporting the indictments, the grand juror’s comment lacked the potential to prejudice the grand jury’s ultimate decision….   Accordingly, dismissal of the indictments was unwarranted.  People v Farley, 103105, 3rd Dept 6-27-13

 

Resentencing (Re: Postrelease Supervision) of Defendants Who Have Completed Determinate Sentence But Are Still Serving Aggregate Sentence Does Not Violate Double Jeopardy

In a full-fledged opinion by Judge Rivera, the Court of Appeals determined defendants who have completed the determinate sentence for which mandatory postrelease supervision was not imposed but have not completed their aggregated sentences under Penal Law 70.30 can be resentenced to postrelease supervision without violating the Double Jeopardy Clause:

In these unrelated cases, each defendant claims that the imposition of mandatory postrelease supervision (PRS) to his determinate sentence at resentencing violates the Fifth Amendment Double Jeopardy Clause of the federal constitution. Defendants claim that they have completed their determinate sentences, therefore imposition of PRS violates the prohibition against multiple punishments. We conclude that the respective resentences do not constitute violations of the Double Jeopardy clause because defendants do not have a legitimate expectation of finality until they have completed their aggregated sentences under Penal Law § 70.30.  People v Brinson… Nos 135, 136, CtApp 6-26-13

 

, , ,

Article 78 Petition in Nature of Prohibition Against Judge and District Attorney Granted

The Second Department explained the criteria for an Article 78 action (against a judge and district attorney) in the nature of prohibition.  In this case Supreme Court had ordered defendant to appear for resentencing after the Appellate Division had ruled without remitting the matter to Supreme Court for further proceedings.  The Second Department granted the petition and prohibited the resentencing:

The remedy of prohibition generally lies when a court or an officer acts or threatens to act without jurisdiction or exceeds its authorized powers in a proceeding over which it has jurisdiction (see CPLR 7803[2];…). To warrant the extraordinary remedy of prohibition, it is not enough that the court made a mere legal error. Rather, the court’s error must implicate its very powers and thereby be subject to correction by prohibition….  Matter of Dow v Tomei, 2013 NY Slip Op 04799, 2nd Dept 6-26-13

 

Motion for Resentencing Under CPL 440.46 (Drug Reform Law) Properly Denied

The Second Department affirmed Supreme Court’s denial of defendant’s motion for resentencing pursuant to CPL 440.46:

When a defendant is eligible for resentencing pursuant to CPL 440.46, there is ” a presumption in favor of granting a motion for resentencing relief absent a showing that substantial justice dictates the denial thereof'”…. “However, resentencing is not automatic, and the determination is left to the discretion of the Supreme Court”…. In exercising its discretion, a court may “consider any facts or circumstances relevant to the imposition of a new sentence which are submitted by [the defendant] or the people” (L 2004, ch 738, § 23), including the defendant’s institutional record of confinement, the defendant’s prior criminal history, the severity of the current offense, whether the defendant has shown remorse, and whether the defendant has a history of parole or probation violations…. Relevant considerations include the defendant’s status as a probation or parole violator as a consequence of the conviction for which resentencing is sought…, and the defendant’s conviction of a violent felony subsequent to the commission of the narcotics felony for which resentencing is sought…. People v Parker, 2013 NY Slip Op 04831, 2nd Dept 6-26-13

 

Plea Colloquy Raised Concerns Requiring Further Inquiry Re: Defendant’s Mental Health

The Second Department determined that defendant’s plea colloquy raised concern about defendant’s mental health requiring inquiry by the sentencing court:

Here, in light of the defendant’s known history of mental illness, and the finding within six days after commission of the instant sex offense that the defendant was suffering from psychotic symptoms attributable to bipolar disorder, for which he required hospitalization, certain statements made during the defendant’s plea allocution—specifically, statements regarding the complainant’s impression that, at the time of incident, the defendant was “very very much mentally unwell”—“signaled that [the defendant] may have been suffering from a mental disease or defect” when the offense was committed, thereby triggering the Supreme Court’s duty to inquire…. The trial court’s failure to conduct any inquiry as to a potential affirmative defense to the charges based upon mental disease or defect (see Penal Law 40.15), requires vacatur of the defendant’s plea of guilty…. While the People are correct that the defendant’s argument is unpreserved for appellate review, preservation is not required where, as here, under the totality of the circumstances, the defendant’s guilt and the voluntariness of the plea were called into question before the court….  People v Grason, 2013 NY Slip Op 04827, 2nd Dept 6-26-13

 

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