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No “Reasonable Suspicion,” Defendant Should Not Have Been Stopped and Detained.

A new trial was ordered and the defendant’s motion to suppress identification evidence was granted by the Second Department.  A police radio broadcast described a robbery in progress by two males wearing black jackets, one wearing blue jeans, the other wearing black jeans. The complainant described the robbers only as “wearing dark clothing,” one taller than the other, and one with a hood.  The Court held that these descriptions were not sufficient to provide reasonable suspicion to stop and detain the defendant, who was dressed in a dark gray and dark green camouflage jacket and was standing alone 20 blocks from the crime scene.  People v Polhill, 2010-01680, Ind. No. 943/09 Second Dept. 1-30-13

DeBour, street stops

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Queens County District Attorney’s Standard “Preamble” to the Miranda Warnings Struck Down.

In a full-fledged opinion by Justice Skelos, the Second Department struck down a so-called “program” which had been put in place by the Queens County District Attorney’s Office.  Pursuant to the “program,” a “preamble” was read to the defendant just before the Miranda warnings were given.  The Second Department determined the preamble rendered the Miranda warnings ineffective.  The Court noted that the defendant was told of his privilege against self-incrimination only after being told (in the preamble) that this was his “only opportunity” to refute what others have said, to correct any misperceptions, and to try to help himself.  The preamble suggested that the prosecutor would not investigate his version of events if he declined to speak with the prosecutor at that time.  Conversely the preamble suggested that, if the defendant agreed to be interviewed, the prosecutor would assist him with such an investigation.  This suggestion, the Second Department held, “is contrary to the very purpose of the warning that anything a suspect says can be used against him … . In essence, the preamble suggests that invoking [the right to remain silent] will bear adverse, and irrevocable, consequences.”  People v Dunbar, 2010-04786, Ind. No. 1217/09 Second Dept. 1-30-13

 

Criminal Impersonation—Falsely Attributed E-Mails.

Defendant was convicted of criminal impersonation (and other offenses) because he sent e-mails which he falsely attributed to scholars who disagreed with the defendant’s father, an expert on the Dead Sea Scrolls.  The First Department explained why the defendant’s falsely-attributed e-mails were not protected by the First Amendment: “Defendant was not prosecuted for the content of any of the emails, but only for giving the false impression that his victims were the actual authors of the emails.” People v Golb, 9101, Ind. 2721/09 1st Dept. 1-29-13

Substantially modified by the Ct. of Appeals in People v Golb, 2014 NY Slip Op 03426 [23 NY3d 455], CtApp 5-13-14

 

Flight Elevated Level of Suspicion and Justified Pursuit.

The police received a late-night report that three men had committed a robbery and fled into a park. At the park, the police saw the defendant and two other men.  The defendant’s flight upon seeing the officers, who were in plainclothes and were getting out of an unmarked police car, “elevated the level of suspicion to reasonable suspicion of criminality and justified pursuit.”  People v Pitman, 9092, Ind. 2908/10 First Dept. 1-29-13

DeBour, street stops

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Insufficient Proof of Value in Grand Larceny Case.

In a Grand Larceny 3rd case, based on the theft of cell phones, the value of the stolen phones was proved by the testimony of the store manager who did not provide “a basis of knowledge” for her statement of value.  The Second Department noted that “ ‘[c]onclusory statements and rough estimates of value’ that are unsupported by a basis of knowledge are insufficient…”. The conviction was reduced to petit larceny, which requires no proof of value.  People v Sutherland, 2011-06497, Ind. No. 12436/08 Second Dept. 1-23-13

 

Answering Juror’s Question Outside Presence of Defendant, Counsel and Other Jurors Required Reversal.

The Second Department determined the trial judge committed reversible error when he answered a juror’s questions in the robing room outside the presence of the defendant, the lawyers and the other jurors. The questions included “when the defendant could be deemed to be responsible ‘by the law’ ….”.  Because the questions were not “ministerial’ and related to “the substantive legal and factual issues of the trial…” the error affected the “organization of the court or the mode of proceedings prescribed by law.”  Preservation is not required for such a “mode of proceedings” error.  People v Rivera, 2009-11428, Ind. No. 9921/07 Second Dept. 1-23-13

 

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Throwing Objects Off Balcony Evinces Depraved Indifference.

The defendant, who claimed to have been intoxicated at the time, threw bottles and plates off a 26th floor hotel balcony overlooking 7th Avenue during morning rush hour.  He was convicted of first degree reckless endangerment, which requires a “depraved indifference to human life.” In affirming the conviction, the First Department, in a full-fledged opinion by Justice Friedman, included a substantive discussion of the relationship among the legal concepts “depraved indifference,” ” recklessness,” and “specific intent to cause harm.”  In addition, the Court found sufficient “exigent circumstances” to justify the warrantless entry by the police into defendant’s hotel room. People v Green, 7860, Ind. 4295/05 First Dept. 1-22-13.

 

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“Weight of the Evidence” Review.

The Third Department upheld the defendant’s rape conviction in a full-fledged opinion by Justice Spain.  The case is interesting because it is a true “weight of the evidence” analysis where the appellate court conducted “a full review of the testimony adduced at trial,” acting in the role of a jury. There was a strong dissent which argued the conviction should be reversed because the trial judge did not turn over to the defense certain records concerning the complainant’s mental health after an in camera review.  People v McCray, 103682 Third Dept 1-17-13

 

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Waiver of Right to Appeal Unenforceable.

A waiver of the right to appeal is unenforceable where there is “no promise, plea agreement, reduced charge, or any other bargain or consideration given to the defendant in exchange for [her] plea…”.  For that reason the Second Department determined defendant’s waiver of appeal was invalid and she could appeal her sentence.  People v Brady-Laffer, 2011-11051, Ind. No. 1783-11 Second Dept. 1-16-13

 

 

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Preservation of Error, DNA Expert, Confrontation Clause.

Defendant’s claim that a DNA analyst’s expert testimony violated the Confrontation Clause because it was based on reports made by non-testifying witnesses was rejected, principally because the claim was deemed unpreserved.  There is a substantive discussion of preservation requirements. The Court, however, noted that the Court of Appeals held a similar DNA report was nontestimonial for Confrontation Clause purposes.  People v Rios, 7651, Ind. 1037/08 First Dept. 1-15-13.

 

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