The Fourth Department determined the trial court properly ruled that the defendant’s statements during the first 15 hours of a 60-hour interrogation need not be suppressed as the product of coercion. People v Collins, KA 09-00932, 1367, 4th Dept, 5-3-13
SUPPRESS, SUPPRESSION
The Fourth Department ruled that suppression of tangible evidence and statements should have been granted because the People failed to meet their burden of going forward at the suppression hearing by demonstrating the legality of the police conduct. The Fourth Department further determined that the error was not harmless with respect to all but one of the charges:
We agree with defendant, however, that County Court erred in denying that part of his omnibus motion seeking suppression of the physical evidence that was seized from his vehicle and the statements he made to New York State Police Investigators, inasmuch as the People failed to meet their “burden of going forward to show the legality of the police conduct in the first instance” … . * * *
Because the People failed to present evidence at the suppression hearing establishing the legality of the police conduct, defendant’s purported consent to the search of his vehicle was involuntary and all evidence seized from the vehicle as a result of that consent should have been suppressed … .Additionally, defendant’s statements to the police must be suppressed as fruit of the poisonous tree.. . People v Purdy, KA 12-00534, 488, 4th Dept, 5-3-13
The Fourth Department noted the criteria for a defendant’s right to specific performance of a plea agreement (criteria not met in this case):
“ ‘The remedy of specific performance in the context of plea agreements applies where a defendant has been placed in a no-return position in reliance on the plea agreement . . . , such that specific performance is warranted as a matter of essential fairness’ ” … Inasmuch as neither the prosecution nor the defense had taken any action on the second plea agreement …defendant was not placed in a “ ‘no-return position’ ” in reliance on the second plea agreement and is thus not entitled to specific performance of that agreement… . People v Weather, KA 11-01247, 482, 4th Dept, 5-3-13
The Fourth Department reversed defendant’s robbery convictions (by guilty pleas) because, in the plea allocution, defendant indicated the weapon involved was “fake.” People v Burroughs, KA 10-00663, 462, 4th Dept, 5-3-13
In upholding a search of a purse inside a vehicle after a traffic stop for a seatbelt violation, the Third Department explained the post-arrest exception to the warrant requirement for an automobile search:
Under the automobile exception to the warrant requirement, the police may search an automobile – including containers found inside – when they have arrested one of its occupants and there is “‘probable cause to believe that the vehicle contains contraband, evidence of the crime, a weapon or some means of escape’ “The search, however, need not be limited to items related to the crime for which the occupant is being arrested; it may be instituted when the circumstances provide probable cause to believe that any crime has been or is being committed … . * * *
The Trooper testified that his search was prompted by his observation of the marihuana stem, the suspicious behavior of the front passenger with respect to the brown purse, the fact that none of the vehicle’s occupants acknowledged ownership of such purse and the inconsistent statements made by them regarding their destination. Viewing these circumstances as an integrated whole, we conclude that the Trooper had probable cause to believe that a crime had been or was being committed, which justified a search of the vehicle, including the brown purse found therein ….. Since we find no error in the search of the vehicle, we also reject defendant’s claim that the statements he made thereafter should have been suppressed as “fruit of the poisonous tree.” People v Thompson, 104836, 3rd Dept, 5-2-13
SEARCH, SUPPRESSION, SUPPRESS
In this case, the Third Department determined kicking in a window satisfies the “entry” element of burglary and the recording by the police of a phone conversation between the defendant and his sister, although it may have violated the eavesdropping statute, was not an error preserved for appeal:
“[T]he entry element of burglary is satisfied ‘when a person intrudes within a building, no matter how slightly, with any part of his or her body'” …, and kicking in a window constitutes an entry even when the perpetrator then flees without further intruding into the building …. * * *
Defendant contended that he had a reasonable expectation of privacy during this conversation, and now further asserts that police committed the crime of eavesdropping by recording this conversation (see Penal Law § 250.05). We agree with Supreme Court’s rejection of the privacy claim, and the unpreserved eavesdropping claim does not warrant modification in the interest of justice …. People v McFarland, 104491, 3rd Dept, 5-2-13
County Court failed to comply with the statutory procedure for resentencing pursuant to the Drug Law Reform Act of 2004 (Criminal Procedure Law 440.46). County Court did not issue a written order re: the new sentence, did not issue written findings of fact and reasons for the sentence, and did not inform the defendant of his right to appeal the resentence or his right to withdraw his motion for resentencing. The Third Department wrote:
Resentencing under CPL 440.46 incorporates the detailed procedures of the Drug Law Reform Act of 2004 (L 2004, ch 738, § 23…). Those procedures require, as relevant here, that an order issued by the court informing a defendant of the sentence it will impose in the event of resentencing “must include written findings of fact and reasons for such order” (L 2004, ch 738, § 23 …). Defendant must also be notified that he or she has a right to appeal that written order of proposed resentencing as well as a right – which can be exercised after the appeal and upon remand – to be given an opportunity to withdraw the application for resentencing before any resentence is imposed…. People v Delayo, 104402, 3rd Dept, 3-2-13
The First Department determined a violent felony conviction for which the defendant had not yet been sentenced could be used as a risk factor in a SORA risk level assessment. People v Franco, 2013 NY Slip Op 03168, 1st Dept, 5-2-13
The Third Department made a careful analysis of the police actions after receiving an anonymous tip that two women in car were taking drugs. The court determined the police acted properly in escalating the police intrusion from questioning to arrest, including the search of the car without a warrant. However, the Third Department held that the post-arrest search of a purse that was not inside the car, and was not in the defendant’s “grabbable area,” was not valid. In addition the Third Department held the defendant’s answer to a police officer’s question about who owned the purses should have been suppressed, because, at the time of the question, the defendant would not have reasonably believed she was free to go and she had not waived her right to remain silent. But because her statement was not “involuntary” it would be available for impeachment at trial should she testify. People v Boler, 104092, 3rd Dept, 5-2-13
SUPPRESSION, SUPPRESS
This case was remitted to the Third Department after the Court of Appeals determined the issue whether the Son of Sam Law (allowing the victims of crimes to seek compensation from the perpetrator) superseded Retirement and Social Security Law 110, which protects pension payments from creditors, had not been preserved for review. The Third Department made it clear that it believes the Son of Sam Law does supersede the Retirement and Social Security Law, but the court was prohibited from addressing the subject due to the procedural posture of the case. Matter of NYS Office of Victim Services v Raucci, 513039, 3rd Dept, 5-2-13
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