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THE SEARCH OF A SMALL EARBUD CASE IN DEFENDANT-PAROLEE’S POCKET WAS NOT REASONABLY RELATED TO THE CLAIMED PURPOSE OF THE PAROLE OFFICERS’ PRESENCE IN DEFENDANT’S RESIDENCE, I.E., A SEARCH FOR A PAROLE ABSONDER; THE HEROIN FOUND IN THE EARBUD CASE SHOULD HAVE BEEN SUPPRESSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, reversing the Appellate Division, determined the search of defendant-parolee’s person by a parole officer was not rationally and reasonably related to the parole officers’ duty. The parole officers claimed they entered defendant’s residence to look for a parole absconder. The search of a small earbud case found inside defendant’s pocket, which turned up heroin, was not reasonably related to the claimed purpose of the parole officers’ presence:

… [T]he People failed to meet their burden to establish that the search of defendant’s pocket was substantially related to the performance of the parole officers’ duties in the particular circumstances presented, i.e., the search of defendant’s residence for a parole absconder. Nor did the People present any evidence at the hearing that circumstances that developed after the parole officers arrived at defendant’s residence rendered the search of his pocket substantially related to the performance of their duties. On this record, the parole officer had no reason to continue the brief pat-down search of the exterior of defendant’s person by searching his pocket and investigating the contents of an earbud case. People v Lively, 2024 NY Slip Op 02767, CtApp 5-21-24

Practice Point: Here the parole officers claimed to be in defendant-parolee’s residence to search for a parole absconder. Therefore the search of a small earbud case found in defendant-parolee’s pocket was not reasonably related to the parole officers’ duties and the drugs found in the case should have been suppressed.

 

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THE SEARCH OF DEFENDANT-PAROLEE’S RESIDENCE WAS “RATIONALLY AND REASONABLY RELATED TO THE PERFORMANCE OF THE PAROLE OFFICER’S DUTY” AND THEREFORE DENIAL OF THE MOTION TO SUPPRESS THE WEAPON FOUND IN THE RESIDENCE WAS PROPER (CT APP).

The Court of Appeals, affirming the Appellate Division, determined the search of defendant-parolee’s residence after a tip from defendant’s mother about defendant’s possession of a firearm was “rationally and reasonably related to the performance of the parole officer’s duty:”

As a condition of his parole, defendant agreed not to “own, possess, or purchase” any firearm without permission from his parole officer. Defendant was given “the most severe” mental health designation from the Department of Corrections and Community Supervision, OMH Level 1-S, indicating there were “serious” concerns regarding his mental health. Shortly after defendant’s release to parole, his parole officer received information from his supervisor that defendant’s mother contacted the parole office to inform them that she saw a photograph of defendant with a firearm, and gave the parole officers permission to search the residence that she shared with defendant … . Acting on this information, defendant’s parole officer, with the assistance of other officers, conducted a search of defendant’s home and recovered an AR-15 style rifle and two thirty-round extended magazines with extra gun parts from defendant’s bedroom.

Based on the foregoing, there is record support for the lower courts’ conclusion … that the search of defendant’s residence by defendant’s parole officer was “rationally and reasonably related to the performance of the parole officer’s duty” and so defendant’s motion to suppress this evidence was properly denied … . The Aguilar-Spinelli test … for evaluating whether a tip provides police with probable cause for a search or seizure does not apply in these circumstances … . People v Spirito, 2024 NY Slip Op 02766, Fourth Dept 5-21-24

Practice Point: The criteria for a search of a parolee’s residence by a parole officer is not subject to the same constitutional restraints as are searches by the police. Here a tip from defendant’s mother about her son’s possession of a weapon was sufficient to justify the parole-officer search.

 

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THE POLICE MAY STOP A VEHICLE IN THE EXERCISE OF THE “COMMUNITY CARETAKING” FUNCTION IF THERE IS CAUSE TO BELIEVE SOMEONE IN THE VEHICLE NEEDS ASSISTANCE; THE QUICK OPENING AND CLOSING OF A PASSENGER DOOR WAS NOT ENOUGH (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Troutman, over a two-judge concurrence, recognized that a vehicle may be stopped by the police exercising the “community caretaking” function if the police have cause to believe someone in the vehicle needs assistance. Here defendant’s car was stopped after the passenger door opened and closed quickly. The defendant driver was arrested after admitting he possessed ecstasy. The Court of Appels, after describing the criteria for a “community caretaking” vehicle stop, found that the quick opening and closing of the passenger door was not enough to conclude an occupant needed help:

We conclude that the police may stop an automobile in an exercise of their community caretaking function if two criteria exist. First, the officers must point to specific, objective, and articulable facts that would lead a reasonable officer to conclude that an occupant of the vehicle is in need of assistance. Second, the police intrusion must be narrowly tailored to address the perceived need for assistance. Once assistance has been provided and the peril mitigated, or the perceived need for assistance has been dispelled, any further police action must be justified under the Fourth Amendment and Article I, section 12 of the State Constitution. People v Brown, 2024 NY Slip Op 02765, CtApp 5-21-24

Practice Point: The police may stop a vehicle if there is cause to believe someone in the vehicle needs assistance. Here the quick opening and closing of a passenger door was not enough to justify the stop.

 

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HERE THERE WAS NO VALID REASON TO DENY DEFENDANT’S REQUEST TO REPRESENT HIMSELF; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined defendant’s request to represent himself should have been granted:

The court deprived defendant of his constitutional right to self-representation when it denied defendant’s motion to proceed pro se despite defendant’s knowing and voluntary waiver of his right to counsel. A defendant may invoke the right to self-representation where “(1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues” … . Here, defendant made a timely and unequivocal request to represent himself, and during an extensive inquiry, at which time the court repeatedly warned defendant of the dangers and disadvantages of proceeding pro se, defendant affirmed that he understood the risks and insisted on representing himself at trial … . Defendant’s lack of familiarity with the law was not a proper basis for the denial of his motion … . Further, nothing in the record indicates that defendant’s motion was calculated to undermine or delay the progress of the trial— indeed, the court determined that defendant was not malingering—and defendant’s purported “outbursts” during two prior pretrial video conferences did not suggest an intent to disrupt the proceedings … . People v Ivezic, 2024 NY Slip Op 02785, First Dept 5-21-24

Practice Point: A defendant’s lack of knowledge of the law is not a valid reason for denying defendant’s request to represent himself at trial.

 

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THE DA HANDLING THE APPEAL WAS A LAW CLERK TO THE JUDGE WHO PRESIDED OVER THE TRIAL; THE CONFLICT OF INTEREST REQUIRES THE APPOINTMENT OF A SPECIAL PROSECUTOR FOR THE APPEAL (THIRD DEPT).

The Third Department determined the District Attorney handling the appeal had a conflict of interest because she was a law clerk to the County Court judge who presided over the trial. A special prosecutor must be appointed to handle the appeal:

During oral argument on this appeal, the Chief Assistant District Attorney (hereinafter ADA) who appeared on behalf of the People confirmed that she served as the confidential law clerk to the County Court Judge who presided over this matter and did so at the time of the underlying trial. Oral argument was permitted to proceed on the merits, but the Court directed the parties to submit letter briefs addressing the impact, if any, of the ADA’s prior position on her ability to represent the People on appeal. Two days later, this Court handed down People v Pica Torres (___ AD3d ___, 2024 NY Slip Op 02345, *1-2 [3d Dept 2024]), which determined that a similar conflict situation required the appointment of a special prosecutor to handle the appeal. In her responding letter brief, the ADA acknowledges that she was personally and substantially involved in this matter as the trial judge’s law clerk, raising a conflict of interest under Rule 1.12 of the Rules of Professional Conduct (see Rules of Prof Conduct [22 NYCRR 1200.00] rule 1.12 [d] [1]). In her responding letter, counsel for defendant acknowledges that the appointment of a special prosecutor is required. Given the foregoing, we remit the matter for the expeditious appointment of a special prosecutor to handle this appeal. People v McNealy, 2024 NY Slip Op 02728, Third Dept 5-16-24

Practice Point: If the DA handling the appeal was a law clerk to the judge presiding over the trial there is a conflict of interest requiring the appointment of a special prosecutor for the appeal.

 

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THE DETECTIVE’S TESTIMONY AT THE SUPPRESSION HEARING THAT THE VEHICLE WAS PULLED OVER BECAUSE OF “EXCESSIVELY TINTED WINDOWS” WAS NOT SUFFICIENT TO DEMONSTRATE PROBABLE CAUSE FOR THE STOP; SUPPRESSION SHOULD HAVE BEEN GRANTED (CT APP).

The Court of Appeals, reversing the Appellate Term, determined the police officer’s testimony at the suppression hearing the vehicle in which defendant was a passenger was stopped based on “excessively tinted window” was not sufficient to demonstrate probable cause for the vehicle stop. Therefore the drugs seized from the defendant should have been suppressed:

Vehicle and Traffic Law § 375 (12-a) (b) generally provides that “[n]o person shall operate any motor vehicle upon any public highway, road[,] or street” with windows which have a light transmittance of less than 70%. * * *

When a defendant challenges “the sufficiency of the factual predicate for the stop,” it is the People’s burden “to come forward with evidence sufficient to establish that the stop was lawful” … . “Summary statements that the police had arrived at a conclusion that sufficient cause existed will not do” … . * * *

… Detective Fortunato’s testimony that the tint was “excessive” is … a legal conclusion that the tint violated the Vehicle and Traffic Law. Yet, the People failed to elicit any factual basis for this conclusion. The detective did not testify, for example, that the windows were so dark that he could not see into the vehicle … or that he had training and experience in identifying illegally tinted windows or conducting this type of stop … . Nor did the detective testify that he measured the tint after stopping the vehicle and the results confirmed that the tint level violated the Vehicle and Traffic Law, which could have provided objective, corroborative evidence of the reasonableness of his conclusion … . People v Nektalov, 2024 NY Slip Op 02725, CtApp 5-16-24

Practice Point: To demonstrate probable cause for a vehicle stop based upon “excessively tinted windows” there must be some demonstration the tint violated the Vehicle and Traffic Law (less that 70% light transmittance). Simply testifying the windows were “excessively tinted” is not enough.

 

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EVIDENCE FATHER POSSESSED COCAINE WITH INTENT TO SELL WAS NOT SUFFICIENT TO SUPPORT A NEGLECT FINDING; THERE WAS NO EVIDENCE FATHER USED DRUGS, EXPOSED THE CHILDREN TO DRUG-DEALING, OR STORED THE DRUGS WHERE THE CHILDREN COULD ACCESS THEM (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence that father possessed four ounces of cocaine did not support the neglect finding. There was no evidence the children were exposed to drug-dealing and the drugs were stored above where the children could access them:

Family Court’s finding that the father neglected the children was not supported by a preponderance of the evidence … . … [Father’s] intent to sell these illicit drugs was insufficient, without more, to warrant a finding of neglect. The record … contained no evidence establishing that the father engaged in drug transactions within the house or that he otherwise exposed the children to drug-trafficking activities … . Nor was there evidence adduced at the hearing as to whether the father regularly engaged in the sale of drugs, or the manner in which he intended to sell the cocaine. Moreover, although the officers discovered the cocaine within the father’s bedroom closet, it was located on a five- or six-foot-high shelf and was otherwise stored in a manner that was not readily accessible to the children … . Finally, there was no indication in the record that the father ever used cocaine or any other illicit drugs. Absent evidence that the father’s conduct caused the requisite harm to the children or otherwise placed them in imminent danger of such harm, the court should not have found that he neglected them … . Matter of Jefferson C.-A. (Carlos T.-F.), 2024 NY Slip Op 02701, Second Dept 5-15-24

Practice Point: Storing four ounces of cocaine in a closet where the children could not access it, without more, is not sufficient for a neglect finding against father. Although there was evidence father intended to sell the drugs, there was no evidence father used drugs or exposed the children to drug-dealing.

 

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FORMER PRESIDENT TRUMP’S PETITION FOR A WRIT OF PROHIBITION CHALLENGING A RESTRAINING ORDER RESTRICTING HIS ABILITY TO MAKE STATEMENTS DIRECTED AT POTENTIAL WITNESSES IN A CRIMINAL TRIAL DENIED (FIRST DEPT). ​

The First Department determined the restraining order restricting former President Donald Trump’s speech during his criminal trial was valid. Trump’s petition for a writ of prohibition was denied:

The Federal Restraining Order is nearly identical to the Restraining Order issued against petitioner in the underlying criminal case … .

Petitioner brings this petition because he disagrees with where the circuit court drew the line in balancing the competing considerations of his First Amendment rights to free expression and the effective functioning of the judicial, prosecutorial and defense processes … . Weighing these concerns, the circuit court ultimately concluded that, given the record, the court had “a duty to act proactively to prevent the creation of an atmosphere of fear or intimidation aimed at preventing trial participants and staff from performing their functions within the trial process” … . This Court adopts the reasoning in the circuit court’s Federal Restraining Order Decision.

The Federal Restraining Order Decision properly found that the order was necessary under the circumstances, holding that “Trump’s documented pattern of speech and its demonstrated real-time, real-world consequences pose a significant and imminent threat to the functioning of the criminal trial process” … . First, the circuit court concluded that petitioner’s directed statements at potential witnesses concerning their participation in the criminal proceeding posed a significant and imminent threat to their willingness to participate fully and candidly, and that courts have a duty to shield witnesses from influences that could affect their testimony and undermine the integrity of the trial process … . Justice Merchan properly determined that petitioner’s public statements posed a significant threat to the integrity of the testimony of witnesses and potential witnesses in this case as well. Matter of Trump v Merchan, 2024 NY Slip Op 02680, First Dept 5-14-24

Practice Point: A court has the power to restrict speech by a defendant in a criminal trial which is directed at potential trial witnesses and which could threaten the witnesses’ willingness to testify.

 

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THE SHOOTER, WHO WAS NEVER FOUND OR IDENTIFIED, WAS A PASSENGER IN A CAR DRIVEN BY DEFENDANT WHEN THE SHOOTER SHOT AT AND MISSED A PERSON SITTING IN A PARKED CAR; THE ATTEMPTED MURDER AND ASSAULT CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing defendant’s attempted murder and assault convictions as against the weight of the evidence, over a two-justice dissent, determined there was no evidence defendant shared the shooter’s intent. It was alleged defendant was the driver when his passenger shot at and missed a person sitting in a parked car. The shooter was never identified. There was no evidence defendant knew the victim:

… [T]he question is whether defendant shared the shooter’s intent to kill or seriously injure the victim. Even assuming, arguendo, that the conviction is supported by legally sufficient evidence … , we conclude that the verdict is against the weight of the evidence … . Viewing the evidence in light of the elements of those crimes as charged to the jury … and considering that “a defendant’s presence at the scene of the crime, alone, is insufficient for a finding of criminal liability” … , here the People failed to prove beyond a reasonable doubt that defendant “shared the [shooter’s] intent to kill” or cause serious physical injury to the victim, or the intent to use the gun unlawfully against the victim … , particularly given the lack of evidence “that defendant knew that the [shooter] was armed at the time defendant transported him” … .

From the dissent:

Defendant drove the vehicle while the shooter fired several times at the parked vehicle in which the victim was sitting in the front passenger seat, and the victim heard someone say “yo” as soon as the gunshots started. The police found the parked vehicle’s driver’s side windows shattered and shell casings on the ground next to the vehicle. A permissible and eminently reasonable inference from the facts was that defendant stopped or slowed down the vehicle in order to allow the shooter to fire several shots at the parked vehicle … . In other words, defendant shared the shooter’s intent to use a gun to kill or cause serious physical injury to the victim and “intentionally aid[ed]” the shooter to engage in such conduct (Penal Law § 20.00). In addition, defendant fled from the scene after the gunshots were fired and collided with another vehicle. The driver of that vehicle testified that, when she asked defendant to exchange paperwork and information, he told her to “move the f*** out of the way,” before he pushed her vehicle with his vehicle and drove off again. People v Lathrop, 2024 NY Slip Op 02618, Fourth Dept 5-10-24

Practice Point: Here the appellate court found the evidence of attempted murder legally sufficient but the verdict against the weight of the evidence (a difficult concept).

 

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PROOF OF THE VALUE OF STOLEN PROPERTY WAS INSUFFICIENT; CONVICTION REDUCED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, reducing defendant’s possession-of-stolen-property conviction, determined the value of the property was not established:

We agree with defendant that, with respect to his conviction of criminal possession of stolen property in the third degree under count 1 of the indictment, there is legally insufficient evidence establishing the value of the items seized from the storage unit. Although defendant did not preserve that issue for our review, we exercise our power to address it as a matter of discretion in the interest of justice … . “A person is guilty of criminal possession of stolen property in the third degree when [that person] knowingly possesses stolen property, with intent to benefit [that person] or a person other than an owner thereof or to impede the recovery by an owner thereof, and when the value of the property exceeds three thousand dollars” … . It is well settled that “a victim must provide a basis of knowledge for [their] statement of value before it can be accepted as legally sufficient evidence of such value” … . “Conclusory statements and rough estimates of value are not sufficient” to establish the value of the property … . Although the People elicited some valuation testimony from the victims at trial, such testimony did not include the basis for the victims’ knowledge of the value of most of the items in the storage unit … . We conclude on this record that the evidence is legally insufficient to establish that the value of the property taken exceeded $3,000 … . The evidence is legally sufficient, however, to establish that defendant committed the lesser included offense of criminal possession of stolen property in the fifth degree (see § 165.40). People v Hensley, 2024 NY Slip Op 02650, Fourth Dept 5-10-24

Practice Point: The basis for the victim’s knowledge of the value of the stolen property was not demonstrated; possession-of-stolen-property conviction reduced.

 

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