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No Right to Counsel in Presentence Interview.

There is no right to counsel in a presentence interview with the probation department.  People vs McNamara, 1472, KA 12-00204 Fourth Dept. 2-8-13

 

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Multiplicitous Indictment Count Dismissed in the Interest of Justice.

The Fourth Department dismissed one count of an indictment finding the indictment “multiplicitous” (charging a single offense in more than one count).  The error was not preserved but the Court reviewed the issue “in the interest of justice.”  People vs Quinn, 1131, KA 11-00278 Fourth Dept. 2-8-13

 

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Sentence Could Be Challenged In Spite of Waiver of Appeal.

A valid waiver of the right to appeal did not preclude defendant from challenging the severity of his sentence where the sentencing court did not inform the defendant of the maximum term of incarceration and there was no specific sentence promise at the time of the waiver.  People vs Scott, 107, KA 11-01655 Fourth Dept. 2-8-13

 

Frisk of Defendant After a Vehicle Stop Okay, Officer Had Reasonable Suspicion of Criminal Activity and an Articulable Basis to Fear for His Safety.

The Fourth Department determined a police officer had the right to frisk the passengers in a lawfully stopped car to the extent necessary to protect his safety because he was acting on reasonable suspicion that criminal activity was afoot and on an articulable basis to fear for his own safety.   Before the defendant got into the car which was stopped for a traffic infraction, the officer had observed the defendant “engage in a number of ‘handshakes’ “which the officer determined were either hand to hand drug sales or “gang signals.”  When the car was stopped the officer saw the defendant either take something out of or put something into his pocket. People vs Daniels, 9, KA 09-287 Fourth Dept. 2-8-13

DeBour, vehicle stop, street stops, search

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Suppression Motion Should Not Have Been Granted, Officers Had “Objective Credible Reason” to Approach.

In an appeal by the People, the Fourth Department determined the suppression motion should not have been granted for the reasons relied on by the suppression court.  The Fourth Department found that the officers who approached two men and asked the non-threatening question “What’s up guys” had “an objective credible reason not necessarily indicative of criminality” for doing so.  The men were seen walking from a private driveway toward a car in a public parking lot for a recreation area.  The men were dressed “pretty heavy” for the mid-70-degree weather, unlike the bikers and hikers who use the park.  And there had been a number of daytime burglaries in the area.  People vs Johnston, 8, KA 12-01414 Fourth Dept. 2-8-13

DeBour, street stops

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Evidence Seized in Search Suppressed, Police Officer Did Not Have a Founded Suspicion of Criminal Activity When He Questioned Defendant

A police officer approached the defendant’s car which was illegally parked.  The officer asked the defendant “What’s going on” and the defendant answered that he was seeking a prostitute.  The officer asked if there was anything in the car he “should be aware of” and then asked for and received permission to search the car.  A gun was found.  Defendant eventually pled guilty to attempted criminal possession of a weapon.  The Fourth Department determined the search was illegal and suppressed the evidence seized in the search.  The Court determined the officer’s question whether there was anything in the car he should be aware of, a question that rose to the level of “a common-law inquiry under De Bour,” was not based on a “founded suspicion that criminal activity is afoot.”  People vs Carr, 3, KA 08-02222 Fourth Dept. 2-8-13

DeBour, street stops

Permission to Re-Submit Charges to a Second Grand Jury Was Required.

The prosecutor’s failure to get the court’s permission to re-submit charges to a second grand jury was a jurisdictional defect requiring dismissal of the indictment after a guilty plea.  The first grand jury took “no affirmative action” on drug charges before them. There were not enough votes to indict on or dismiss the charges.  The prosecutor then submitted the drug charges to a second grand jury which voted to indict.  The First Department noted: “Even without a formal grand jury vote, a charge can be deemed “dismissed” within the meaning of CPL 190.75(3) if the prosecutor “prematurely takes the charge away from the grand jury…”.  People vs Smith, 7310, 135/10, 801/10 First Dept. 2-7-13

 

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Defendant’s Behavior Did Not Justify Arrest for Disorderly Conduct

The defendant’s arrest for “disorderly conduct” was not supported by probable cause.  Specifically, the proof was insufficient to support the “public harm” element of the offense.  “During daylight hours on a public street, defendant made two abusive statements claiming harassment to a police officer who was seated in a patrol car. …[T]he public outburst was extremely brief, lasting about 15 seconds. The statements were not accompanied by menacing conduct … . And there is no basis to infer that [the officer] felt threatened by the statements.”  The “risk to public order” was not sufficient to justify the arrest.  People vs. Baker, No. 16, CtApp 2-7-13

 

Judge’s Failure to Follow Statutory Requirements for Handling Jury Questions Required Reversal.

The jury sent out a note asking “Is intent defined as premeditated desires or actions once engaged?”  The trial judge responded to the question by reading an expanded definition of intent and explaining “intent does not require premeditation.”  Defense counsel did not object to the way the judge handled the jury’s question.  The First Department explained  the statutory procedure for answering jury questions and held that the judge’s failure comply with CPL 310.30 by affording  “counsel … the opportunity to suggest appropriate responses …,” was a reversible “mode of proceedings” error.  People vs McGhee, 2010-05026, Ind. No. 2434/08 Second Dept. 2-6-13

 

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“Searching Inquiry” Required Before Proceeding Without Attorney in SORA Hearing.

In reversing a SORA determination, the Fourth Department determined that the SORA court did not make a “searching inquiry” to make sure the defendant’s decision to proceed with the SORA hearing without an attorney was knowing, intelligent and voluntary.  “The requisite inquiry ‘should affirmatively disclose that a trial court has delved into a defendant’s age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver’ “… . People vs Wilson, 1475, KA 11-01197 Fourth Dept. 2-1-13

 

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