You are here: / Criminal Law
,

ABSENT EXIGENT CIRCUMSTANCES, A MANUAL BODY-CAVITY SEARCH MUST BE SPECIFICALLY AUTHORIZED BY A WARRANT; THE DRUGS REMOVED FROM DEFENDANT’S BODY SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT). ​

The Third Department, reversing County Court, determined the drugs were removed from defendant’s body during a manual body-cavity search, which requires a warrant specifically allowing it absent exigent circumstances. The warrant allowing the search of defendant’s person did not specifically authorize a manual body-cavity search and no exigent circumstances were alleged. The drugs should have been suppressed:

“There are three distinct and increasingly intrusive types of bodily examinations undertaken by law enforcement after certain arrests”; namely, a strip search, a visual body cavity inspection, and a manual body cavity search … . As relevant here, “[a] ‘strip search’ requires the arrestee to disrobe so that a police officer can visually inspect the person’s body” … , whereas “a visual body cavity inspection involves the inspection of the subject’s anal or genital areas without any physical contact by the officer and, in contrast, a manual body cavity search includes some degree of touching or probing of a body cavity that causes a physical intrusion beyond the body’s surface” … . * * *

Here, the search warrant that had been previously obtained authorized the search of defendant’s person but did not authorize a manual body cavity search. Notably, the warrant application made no such request. Moreover, although exigent circumstances bypassing the warrant requirement may be shown where “the drugs were in imminent danger of being destroyed, disseminated or lost, or that defendant was in medical distress” .. , no such showing has been made here. People v Chase, 2024 NY Slip Op 01837, Third Dept 4-4-24

Practice Point; Here there were no exigent circumstances and the warrant permitting a search of defendant’s person did not specifically authorize a manual body-cavity search. The drugs removed from defendant’s person during a manual body-cavity search should have been suppressed.

 

,

HERE THE JUDGE’S DECISION TO EMPANEL AN ANONYMOUS JURY WAS NOT SUPPORTED BY SUFFICIENT REASONS; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s convictions and ordering a new trial, determined the judge had not set forth sufficient reasons for withholding the identities of the jurors. The jury remained anonymous throughout the trial. Jurors were referred to solely by their juror numbers:

… County Court did not cite any threats to this jury and instead based its refusal to disclose the identities of prospective jurors upon a ground that the Court of Appeals has specifically found to be inadequate, namely, “anecdotal accounts from jurors in unrelated cases” … . The People concede that County Court erred in empaneling an anonymous jury, in fact, but argue that reversal is not required because the issue is unpreserved and the error is, in any event, harmless. We disagree on both counts. First, when County Court announced that it would not disclose the names of the prospective jurors, defense counsel immediately “object[ed] to that” and argued that no factual showing of a need for anonymity had been made in this matter. County Court then “den[ied] [the] application” and “note[d] [the] exception.” Defendant therefore preserved the argument for our review by registering an objection to County Court’s refusal to disclose the identities of the jurors in a manner that permitted the trial court to address the issue (see CPL 470.05 [2] …). Second, for the reasons set forth in People v Flores (153 AD3d at 193-195), we are unpersuaded that harmless error analysis is applicable to such an error. Thus, reversal and remittal for a new trial is required. People v Heidrich, 2024 NY Slip Op 01841, Third Dept 4-4-24

Practice Point: Although an anonymous jury may be appropriate is some circumstances, the failure to support the decision to withhold the identities of the jurors must be justified by sufficient reasons. Here the reasons (anecdotal account from jurors in other cases) were deemed insufficient and a new trial was ordered.

 

, , ,

BRADY MATERIAL TURNED OVER TO DEFENDANT AFTER HE PLED GUILTY MAY HAVE AFFECTED HIS DECISIONS ABOUT WHAT PLEA OFFER TO ACCEPT AND WHETHER TO MOVE TO DISMISS CERTAIN CHARGES; THEREFORE DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS MOTION TO VACATE THE CONVICTION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to a hearing on his motion to vacate his conviction by guilty plea. After the plea a new prosecutor turned over Brady material which had not been disclosed prior to the plea. Under the facts of the case, defendant’s awareness of the Brady material may have affected his decision to plead guilty to criminal possession of a weapon, a C felony. Therefore a hearing on the 440 motion should have been held:

… [T]he [Brady] evidence may have had an impact on the other charges that may have had an effect on what defendant was allowed to plead to — specifically, the attempted murder in the second degree and assault in the first degree counts … . … [T]hese charges meant that because defendant was indicted with a class B armed felony offense, his plea of guilty was required to be at least to a class C violent felony offense (see CPL 220.10 [5] [d] [i]). The lowest charge that satisfied this requirement was criminal possession of a weapon in the second degree, meaning that, based on the evidence before defendant at the time of his plea and sentencing, this was the most favorable charge that he could obtain — a point acknowledged at sentencing. Assuming, without deciding, that such evidence constituted Brady materials that were not disclosed, and further recognizing that the gravamen of the People’s main argument suggests that this evidence does impact the other charges against defendant, the record is unclear what impact the disclosure of this evidence may have had on defendant’s decision to accept or reject the plea offer — particularly in the context of CPL 220.10 (5) (d) (i) and a potential motion to dismiss certain charges (see CPL 245.25 [2]; see also CPL 440.10 [1] [b], [h] … ). Therefore, under the unique circumstances of this case … it was an error for County Court to decide the motion without an evidentiary hearing … . People v Harries, 2024 NY Slip Op 01843, Third Dept 4-4-24

Practice Point: Where the Brady material turned over to the defendant after he pled guilty may have affected his decisions about what plea offer to accept and whether to move to dismiss certain charges, defendant’s motion to vacate his conviction should not have been denied without first holding an evidentiary hearing.

 

, , ,

THE TRANSFER OF DEFENDANT’S CASE TO A SPECIAL PROSECUTOR WAS JUSTIFIED BY THE EXPLANATION OF A CONFLICT WITHIN THE DA’S OFFICE; HOWEVER, THE TRANSFER BACK TO THE DA’S OFFICE WAS NOT BASED ON AN EXPLANATION WHY THE CONFLICT WAS NO LONGER A PROBLEM; THE TRANSFER BACK TO THE DA’S OFFICE WAS REVERSIBLE ERROR (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Pritzker, reversing County Court, determined the prosecution of defendant’s case should not have been transferred from the special prosecutor, appointed two months before because of a conflict within the DA’s office, back to the DA’s office. The Third Department noted that the initial decision to appoint a special prosecutor based on a conflict was supported by the application, but there was no explanation why that conflict no longer existed such that the DA’s office could ultimately handle the case:

County Law § 701 does not specifically detail the procedure to be followed when a special prosecutor is relieved of his or her appointment, and there is little case law relevant to this issue …; however, it is apparent that the only options are to either appoint another special prosecutor or to return the matter, if appropriate, to the DA’s office. Indeed, certain policy considerations weigh in favor of allowing the DA’s office to prosecute the case, namely, a “public interest in having prosecutorial duties performed, where possible, by the constitutional officer chosen by the electorate” … . Here, however, the DA’s office had, less than two months prior, sought appointment of a special prosecutor based upon a conflict. Based upon this sworn assertion of a conflict, County Court (Lambert, J.) entered an order disqualifying the DA’s office and appointing the special prosecutor. Then, when subsequently returning the matter to the disqualified DA’s office, no record was made as to why disqualification was no longer necessary. From the scant record of what occurred here, it is clear that defendant’s concerns regarding the DA’s office’s prior disqualification and possible conflict fell on deaf ears. Thus, because on this record we cannot determine why County Court (Burns, J.) deemed it appropriate to no longer disqualify the DA’s office, we find that the court committed reversible error in returning the matter to the DA’s office … . People v Faison, 2024 NY Slip Op 01836, Third Dept 4-4-24

Practice Point: Just as the transfer of a criminal prosecution from the DA’s office to a special prosecutor based upon a conflict within the DA’s office requires a valid explanation, the transfer of the criminal prosecution from the special prosecutor back to the DA’s office requires a valid explanation why the conflict is no longer a problem. Here the absence of an explanation rendered the transfer back to the DA’s office reversible error.

 

,

THE VICTIM DIED BY STRANGULATION; THE DEFENSE WAS DEFENDANT DID NOT INTEND TO KILL; THE VICTIM’S HEARSAY STATEMENTS ABOUT DOMESTIC VIOLENCE WERE NOT ADMISSIBLE TO SHOW THE DEFENDANT’S, AS OPPOSED TO THE VICTIM’S, STATE OF MIND; CONVICTION REVERSED (SECOND DEPT). ​

The Second Department, reversing defendant’s murder conviction, determined the victim’s hearsay statements about domestic violence should not have been admitted. There was no applicable exception the the hearsay rule and Molineux evidence of prior bad acts must be in admissible form. The victim died of strangulation. The defense argued defendant did not intend to kill the victim, his girlfriend:

… [T]he admission into evidence of prior statements of the victim regarding instances of domestic violence involving the defendant as proof of murder in the second degree, was error which may not be deemed harmless. This hearsay evidence was admitted, purportedly not for its truth, but to establish the victim’s state of mind, the nature of the parties’ relationship, the defendant’s motive and intent, and the absence of an accident. The victim’s state of mind may be an issue in certain circumstances, warranting the admission of hearsay evidence on that issue pursuant to a recognized hearsay exception … , but it was not at issue in this case. Rather, the evidence was used to establish the defendant’s state of mind, based upon the victim’s characterization of the defendant’s conduct and the acceptance of that characterization for its truth. In People v Brooks (31 NY3d 939, 942), the Court of Appeals ruled that a “witness’s testimony as to the victim’s statement that defendant had previously threatened her constituted double hearsay and was not properly admitted pursuant to any exceptions to the hearsay rule. . . . Nor is there any blanket hearsay exception providing for use of such statements as ‘background’ in domestic violence prosecutions” (citation omitted). Assuming arguendo that evidence of the defendant’s prior bad acts was admissible under People v Molineux (168 NY 264]) and its progeny, “there is no Molineux exception to the rule against hearsay . . . . [S]uch evidence must still be in admissible form” … . This purported evidence of the defendant’s state of mind, in this case where intent became the primary issue, was not in admissible form. Thus, the admission of that evidence was error. The error cannot be deemed harmless because the evidence of the defendant’s intent was not overwhelming … . People v Rivers, 2024 NY Slip Op 01731, Second Dept 3-17-24

Practice Point: Here the murder victim’s hearsay statements about domestic violence were allowed in evidence to show the defendant’s, not the victim’s, state of mind. The statements were not admissible under any exception to the hearsay rule. The error was not harmless because the defendant argued he did not intend to kill the victim (who died by strangulation).

 

, ,

STANDING OUTSIDE A VEHICLE AND REACHING INSIDE IS NOT “OCCUPYING” THE VEHICLE SUCH THAT THE AUTOMOBILE PRESUMPTION OF POSSESSION OF THE CONTENTS OF A VEHICLE CAN BE CHARGED TO THE JURY (SECOND DEPT). ​

The Second Department, reversing defendant’s possession of a weapon conviction, determined the judge should not have charged the jury with the automobile presumption which ascribes possession of contraband inside a vehicle to the occupants of the vehicle. The evidence did not support the allegation that defendant “occupied” the vehicle. He was seen standing outside the vehicle and reaching inside through an open window. In addition the police officers should have been allowed to narrate the video saying the defendant could be seen inside the vehicle and reaching into the back seat:

… [T]he People admitted a surveillance video, which showed that the defendant briefly leaned his upper body through the open rear passenger side door of the Lincoln Navigator while standing on the vehicle’s running board. However, the video reflected that the defendant never lifted his feet from the running board to climb into the Lincoln Navigator or take a seat inside the vehicle … . Under the circumstances presented, the People’s contention that the defendant “occup[ied]” the vehicle within the meaning of Penal Law § 265.15(3) is without merit. … Supreme Court erred in charging the jury with respect to the automobile presumption. People v Lewis, 2024 NY Slip Op 01728, Second Dept 3-27-24

Practice Point: The automobile presumption of possession of the contents of a vehicle by the occupants of the vehicle does not apply to a person standing outside a vehicle and reaching inside through a window.

 

, , , ,

IT WAS ALLEGEDLY EVIDENT FROM THE EMPLOYEE’S JOB APPLICATION THAT HE HAD BEEN IN PRISON; THE ALLEGED FAILURE TO INVESTIGATE RAISED QUESTIONS OF FACT IN SUPPORT OF THE NEGLIGENT HIRING AND SUPERVISION CAUSE OF ACTION; THE CORRECTION LAW DOES NOT PROHIBIT CONSIDERATION OF PRIOR CONVICTIONS (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the negligent hiring and supervision cause of action against defendant LLC stemming from an altercation between plaintiff and the LLC’s employee (McIntosh) should not have been dismissed. It was allegedly evident from McIntosh’s employment application that he had been in prison:

… [P]laintiff raised triable issues of fact as to whether the LLC “should have known of the employee’s propensity for the conduct which caused the injury” … . It is well settled that “an employer has a duty to investigate a prospective employee when it knows of facts that would lead a reasonably prudent person to investigate that prospective employee” … . McIntosh’s handwritten job application provided facts that should have led the LLC to investigate, as he indicated that he worked at the address of a state prison, he earned a “stipend” instead of the typical hourly wage, and one of his supervisors was a corrections officer, or “C.O.” Although “the depth of inquiry prior to hiring, irrespective of convictions, may vary in reasonable proportion to the responsibilities of the proposed employment,” the record shows that the LLC made no effort to investigate … . Its owner-witness admitted that no background check was performed. She did not know whether a restaurant manager called McIntosh’s past employers, and she had no knowledge of his criminal background, as would have been revealed by a call to the past employer … . Contrary to the LLC’s contention, the Correction Law does not prohibit consideration of a job applicant’s prior convictions, but instead provides a balancing test to determine whether there was a “direct relationship between” a prior offense and the job or whether the employment “would involve an unreasonable risk . . . to the safety or welfare of . . . the general public” (Correction Law §§ 752[1]- Darbeau v 136 W. 3rd St., LLC, 2024 NY Slip Op 01672, First Dept 3-26-24

Practice Point: Where an applicant’s job application indicates the applicant had been incarcerated, an employer’s failure to investigate may support a negligent hiring and supervision cause of action. The Correction Law does not prohibit an inquiry into prior convictions.

 

,

THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION (DOCCS) VIOLATED THE LESS IS MORE ACT (LIMA) BY FAILING TO HOLD A RECOGNIZANCE HEARING WITHIN 24 HOURS, AND FAILING TO HOLD A PRELIMINARY HEARING WITHIN FIVE DAYS OF THE EXECUTION OF THE PAROLE-VIOLATION WARRANT; HABEAS CORPUS PETITION PROPERLY GRANTED (FIRST DEPT).

The First Department, affirming the grant of the habeas corpus petition, in a full-fledged opinion by Justice Gonzalez, determined the Department of Corrections and Community Supervision’s (DOCCS’s) failure to hold a recognizance hearing on petitioner’s alleged violation of parole within 24 hours as required by the Less is More Act (LIMA) (Executive Law 259-i) violated due process:

LIMA’s plain language was abrogated when petitioner’s recognizance hearing was held five days after the execution of the warrant, instead of within the requisite 24 hours. This error was compounded when the preliminary hearing was held seven days after the execution of the warrant, instead of the requisite five days (Executive Law § 259-i[3][c][i][B]). The interpretation that DOCCS advances would bypass LIMA and effectively remove its statutory duty to ensure that recognizance hearings are timely held within 24 hours of the warrant execution … . Matter of People of the State of N.Y. v Annucci, 2024 NY Slip Op 01685, First Dept 3-26-24

Practice Point: The statutory requirement that a recognizance hearing must be held within 24 hours and a preliminary hearing must be held within five days of the execution of a parole-violation warrant is strictly enforced. Failure to comply with the statutory time-limits violates due process and warrant granting a habeas corpus petition.

 

,

THE MAJORITY CONCLUDED THE TRIAL JUDGE PROPERLY HANDLED ALLEGATIONS OF RACIAL BIAS WHICH INVOLVED HALF THE JURORS IN THIS MURDER CASE; TWO JUSTICES DISSENTED (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the trial judge correctly and adequately handled allegations of racial bias among the jurors. The decision is detailed and comprehensive and cannot be fairly summarized here:

From the dissent:

We recognize that “a trial court’s investigation of juror misconduct or bias is a delicate and complex task” … . On this record, however, the disclosure of alleged racial bias harbored by approximately half of the members of the jury warranted, at the very least, a question posed to each of the members of the panel of whether they could perform their duties as jurors without bias or prejudice. We also conclude that, in its voir dire of juror No. 10, the court did not explore whether juror No. 10 harbored any racial prejudice toward Black people, a prerequisite to determining whether she, in fact, could be unequivocally fair and impartial in deliberations. Under these circumstances, the court should also have determined on the record “whether the juror’s statements created a substantial risk of prejudice to the rights of the defendant by coloring the views of the other jurors as well as her own” … . People v Wiggins, 2024 NY Slip Op 01659, Fourth Dept 3-22-24

Practice Pont: Here a juror alleged half the jurors exhibited racial bias. The majority held the judge properly handled the question and properly determined defendant would get a fair trial. There was a two-justice dissent which argued further questioning of the jurors was required.

 

,

THE TRIAL TESTIMONY RENDERED THE COUNT DUPLICITOUS, NEW TRIAL REQUIRED (FOURTH DEPT).

The Fourth Department, reversing the conviction and ordering a new trial, determined the trial testimony rendered the count duplicitous:

“Even if a count facially charges one criminal act, that count is duplicitous if the evidence makes plain that multiple criminal acts occurred during the relevant time period, rendering it nearly impossible to determine the particular act upon which the jury reached its verdict” … . Here, count 2 of the indictment charged defendant with sexual abuse in the first degree regarding an alleged instance, occurring between July 2012 and January 2013, in which she subjected the victim to sexual contact when he was less than 11 years old. At trial, however, the victim testified to multiple acts of sexual contact during the relevant time frame, any one of which could serve as the sexual contact necessary to prove defendant’s guilt of count 2.

Because each act of alleged sexual contact constitutes “a separate and distinct offense” … , the victim’s testimony that numerous such acts occurred during the relevant time frame rendered count 2 of the indictment duplicitous. Indeed, ” ‘it is impossible to verify that each member of the jury convicted defendant for the same criminal act’ ” in connection with count 2 … . People v Zona, 2024 NY Slip Op 01652, Fourth Dept 3-22-24

Practice Point: If the indictment charges one incident during the described time-frame and the trial testimony reveals more than one incident, it is impossible to know whether the jury reached a unanimous verdict on any one incident.

 

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