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Robbery Guilty Plea Rendered Insufficient By Statement Weapon Used Was “Fake”

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

 

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Post-Arrest Exception to Warrant Requirement for Automobile Search Explained

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

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Kicking In Window Satisfies Entry Element of Burglary

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

 

Procedure for Resentencing Under Drug Law Reform Act Not Followed

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

 

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Violent Felony Conviction for which Defendant Not Yet Sentenced Can Be Considered in SORA Assessment

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

 

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Post-Arrest Search of Purse Not in Grabbable Area and Not in Vehicle Invalid

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

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Issue Whether Son of Sam Law Supersedes Retirement and Social Security Law Protection of Pension Benefits Not Preserved for Review​

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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Department of Corrections Has Right to Force-Feed Inmate on Hunger Strike

The Court of Appeals determined that the state has the right to force-feed an inmate (Dorsey) who is on a hunger strike, once the inmate’s life is in jeopardy.  The opinion by Judge Graffeo is lengthy and deals with preservation requirements, the mootness doctrine, as well as the constitutional rights implicated in the refusal of medical care.  Judge Lippman dissented, addressing primarily his view that the issues discussed on appeal had not been preserved and the “exception to mootness” doctrine had been misapplied.  Judge Graffeo wrote:

It is therefore evident that DOCCS’ decision to intervene when Dorsey’s hunger strike progressed to the point that his life was in jeopardy was reasonably related to legitimate penological objectives. Taking action to interrupt an inmate hunger strike not only serves to preserve life and prevent a suicide but also to maintain institutional order and security. There was no way that DOCCS could effectuate these interests other than to seek a judicial order permitting feeding by nasogastric tube — less intrusive means had been attempted without success. Dorsey had been moved to the infirmary and medical staff within the facility had repeatedly counseled him in an attempt to get him to voluntarily abandon the hunger strike (as he had done before) to no avail. Matter of Bezio v Dorsey, No 65, CtApp, 5-2-13

 

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Conviction Reversed on Ineffective Assistance of Counsel Grounds

After reviewing a litany of errors made by defense counsel which demonstrated a lack of familiarity with the procedural and evidentiary principles underlying a criminal prosecution, the Court of Appeals, in a full-fledged opinion by Judge Pigott, reversed defendant’s conviction because of the ineffectiveness of his counsel:

In order to sustain a claim of ineffective assistance of counsel, a court must consider whether defense counsel’s actions at trial constituted “‘egregious and prejudicial’ error such that defendant did not receive a fair trial” ….. While a single error by defense counsel at trial generally does not constitute ineffective assistance …, courts must examine defense counsel’s entire representation of defendant …. “[T]he claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole” …. “Defense counsel are charged with managing the day-to-day conduct of defendant’s case and making strategic and tactical decisions” …. Counsel’s performance in fulfilling this role is “objectively evaluated” …”to determine whether it was consistent with strategic decisions of a ‘reasonably competent attorney'” ….  While defense counsel’s errors in thiscase individually may not constitute ineffective assistance, “the cumulative effect of defense counsel’s actions deprived defendant of meaningful representation” …. Defense counsel’s actions throughout this case showed an unfamiliarity with or disregard for basic criminal procedural and evidentiary law. At the very least, a defendant is entitled to representation by counsel that has such basic knowledge, particularly so, when that defendant is facing a major felony with significant liberty implications. Considering the seriousness of the errors in their totality, we conclude that defendant was deprived of a fair trial by less than meaningful representation. People v Oathout, No 81, CtApp, 5-2-13

 

Procedure for Sentencing a Second Felony Offender Not Followed

The Second Department sent the matter back for resentencing because of the sentencing court’s failure to follow the statutory procedure for adjudicating defendant a second felony offender:

As the People correctly concede, the sentencing court adjudicated the defendant a second felony offender (see Penal Law § 70.06) absent any indication of compliance with the procedural requirements of CPL 400.21, or any showing that the defendant was given notice and an opportunity to be heard …. Accordingly, we remit the matter to the County Court, Suffolk County, for resentencing in accordance with the mandates of CPL 400.21 ….  People v Puca, 2013 NY Slip Op 03114, 2nd Dept, 5-1-13

 

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