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UNWARNED STATEMENTS MADE WHEN THE POLICE APPROACHED DEFENDANT GETTING OUT OF HIS CAR AND HANDCUFFED HIM SHOULD HAVE BEEN SUPPRESSED; THE SUBSEQUENT CONSENT TO SEARCH, MADE AFTER MIRANDA WARNINGS, WAS NOT TAINTED BY THE UNWARNED CUSTODIAL QUESTIONING; DEFENDANT’S CONSTITUIONAL CHALLENGES TO NEW YORK’S GUN LICENSING REGIME WERE NOT PRESERVED (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a two-judge dissent, reversing (modifying) the Appellate Division, determined defendant was in custody when the police approached him after defendant got out of his car and handcuffed him. Statements made at that time about the presence of weapons in the car should have been suppressed. However defendant’s subsequent consent to search the car, given an hour and a half after the officers initially approached defendant and after the Miranda warnings, was not tainted by the initial custodial questioning. The dissent argued the consent to search was in fact tainted. The court rejected defendant’s constitutional arguments attacking the validity of New York’s gun-licensing regime as unpreserved:

Preservation of a constitutional challenge, in particular, “ensures that the drastic step of striking duly enacted legislation will be taken not in a vacuum but only after the lower courts have had an opportunity to address the issue and the unconstitutionality of the challenged provision has been established beyond a reasonable doubt” … . For these reasons, we have carefully guarded the preservation rule against “erosion” … . * * *

… [A] reasonable innocent person in Cabrera’s {defendant’s] position could not have felt free to leave when three law enforcement officers approached him at night, on a residential street, and handcuffed him before questioning him about the firearms in his vehicle. The level to which the police restricted Cabrera’s movement was of a degree associated with a formal arrest. Nor does the record suggest that the defendant had any reason to believe that he would be handcuffed only for a limited duration. … [T]here is no record support for the conclusion of the courts below that Cabrera was not in custody for Miranda purposes. On appeal, the People have conceded that the defendant was subject to interrogation and that they did not argue below that the public safety exception applied. Custodial status is therefore dispositive; in the absence of warnings, his statements should have been suppressed. People v Cabrera, 2023 NY Slip Op 05968, CtApp 11-21-23

Practice Point: Statements made after police approached defendant on the street and handcuffed him should have been suppressed, but the unwarned custodial questioning did not taint a subsequent consent to search given after Miranda warnings.

Practice Point: Constitutional arguments, here attacking New York’s gun-licensing regime, must be preserved before the Court of Appeals can address them.

 

THE SENTENCING COURT’S REJECTION OF YOUTHFUL-OFFENDER STATUS FOR THE DEFENDANT UPHELD (CT APP).

The Court of Appeals, affirming the Appellate Division, determined the sentencing court properly rejected youthful-offender status for the defendant. People v Rivera, 2023 NY Slip Op 05967, CtApp 11-21-23

 

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THE ROADBLOCK VEHICLE-STOP WAS VALID; THE SEARCH BASED UPON AN ODOR OF MARIJUANA WOULD NOT HAVE BEEN VALID UNDER THE MARIHUANA REGULATION AND TAXATION ACT (MRTA) BUT THE COURT REFUSED TO APPLY THE MRTA RETROACTIVELY; ONE DISSENT ARGUED DEFENDANT’S CHALLENGE TO PROHIBITING FELONS FROM OBTAINING GUN LICENSES HAD MERIT; THE OTHER DISSENT ARGUED THE ROADBLOCK PROCEDURE WAS NOT DEMONSTRATED TO BE CONSTITUTIONAL (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over a single-judge dissent and a separate two-judge dissent, affirmed defendant’s conviction, finding the roadblock vehicle-stop procedure was valid and the search based upon an odor of marijuana was valid. The search would not have been valid after the Mariihuana Regulation and Taxation Act (MRTA) was enacted in 2021. The court refused to apply the MRTA retroactively. Judge Rivera’s dissenting opinion, argued defendant’s argument against the ban on felons obtaining gun licenses had merit and the matter should have been sent back to create a record. Judge Halligan’s dissent argued the constitutionality of the roadblock was not demonstrated. People v Pastrana, 2023 NY Slip Op 05966, CtApp 11-21-23

Practice Point: The Marihuana Regulation and Taxation Act (MRTA), which under certain circumstances (which were present in this case) prohibits a search based upon the odor of marijuana, does not apply retroactively.

 

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THE COURT OF APPEALS, OVERRULING PRECEDENT, DETERMINED THE AUTOPSY REPORTS WERE “TESTIMONIAL” IN NATURE AND SHOULD NOT HAVE BEEN ADMITTED THROUGH AN EXPERT WHO DID NOT PARTICIPATE IN THE AUTOPSIES; ADMISSION OF THE REPORTS AND THE EXPERT’S TESTIMONY VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, reversing (modifying) the Appellate Division, determined the admission of two autopsy reports through an expert witness who did not perform the autopsies, as well as the witness’s testimony, violated defendant’s right to confront the witnesses against him. The Court of Appeals overruled its decision in Frycinet (11 NY3d at 39) which concluded autopsy reports were not “testimonial” and therefore did not implicate the Confrontation Clause. The erroneous admission of the evidence here, however, was deemed harmless by both the Appellate Division and the Court of Appeals:

Pursuant to [the] Confrontation Clause, a witness’s out-of-court “testimonial” statement may only be admitted for its truth where the witness appears at trial or, if the witness is unavailable for trial, where the defendant has had a prior opportunity to cross-examine that witness (Crawford v Washington, 541 US 36, 68 [2004]). …

This Court had occasion to consider the impact of Crawford and its progeny on the admission of autopsy reports in Freycinet, where it held that a redacted autopsy report was not testimonial for purposes of the Confrontation Clause (11 NY3d at 39). In reaching this conclusion, the Court evaluated four purported “indicia of testimoniality”: (1) “the extent to which the entity conducting the procedure is an arm of law enforcement”; (2) “whether the contents of the report are a contemporaneous record of objective facts”; (3) “whether a pro-law-enforcement bias is likely to influence the contents of the report”; and (4) “whether the report’s contents are directly accusatory in the sense that they explicitly link the defendant to the crime” … . All four factors, the Court concluded, weighed in the People’s favor and thus, the autopsy report at issue was not testimonial … . * * *

We now hold that Freycinet should no longer be followed because it is inconsistent with the demands of the Confrontation Clause as articulated more recently by the Supreme Court.  * * *

… [I]t is the People’s obligation to establish that their testifying experts, who did not perform or observe the relevant autopsy, reached their conclusions themselves based upon a review of the proper materials rather than the conclusions of the performing examiner. People v Ortega, 2023 NY Slip Op 05956, CtApp 11-21-23

Practice Point: Autopsy reports are testimonial in nature and must be admitted in evidence through an expert who participated in the autopsies. The erroneous admission of the testimonial evidence was deemed harmless here, however.

 

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THE POLICE WERE ALLOWED INTO THE VESTIBULE OF A TWO-FAMILY RESIDENCE BUT WERE NOT GIVEN PERMISSION TO ENTER THE APARTMENT WHERE DEFENDANT WAS SEIZED; DEFENDANT’S SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, reversing the Appellate Division, over a three-judge dissent, determined the police were only given permission to enter the vestibule of a two-family residence, not the apartment where defendant was seized:

Well before daybreak, four armed officers knocked repeatedly on the exterior door and window of a two-family residence. Someone responded by coming to the exterior door and opening it. The officers identified themselves as police, the person moved aside, and the officers entered the vestibule. Through the doorway of the downstairs apartment, they saw the person they wished to arrest, entered that apartment, and arrested him. The question before us is whether the suppression court should have granted Mr. Cuencas’s [defendant’s] motion to suppress for lack of consent for police to enter the apartment. * * *

… [T]he officers never sought consent to enter Mr. Cuencas’s apartment — only to enter the common vestibule to speak the person who answered the exterior door. The record shows that there were separate doors inside the vestibule, one for each of the two apartments in the building, each bearing a lock, and that each door was open. When the People asked Detective Fogelman to describe how he perceived the building upon his arrival at 5:30 AM, he testified that “It may have had two apartments, an upstairs and a downstairs.” Detective Fogelman asked for consent to enter through the exterior door into the vestibule, not into either of the two apartments, and it is not disputed that Mr. Cuencas’s apartment had a door separating it from the vestibule. People v Cuencas, 2023 NY Slip Op 05974, CtApp 11-21-23

Practice Point: The person who answered the door allowed the police to enter the vestibule of a two-family residence. But consent to enter the vestibule did not constitute consent to enter the first-floor apartment where defendant was seized. The suppression motion should have been granted.

 

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​ THE NEW YORK CITY ADMINSTRATIVE CODE PROVISION CRIMINALIZING THE USE OF CERTAIN RESTRAINTS WHICH RESTRICT AIR AND BLOOD FLOW IS VALID (CT APP). ​

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Garcia, determined the New York City Administrative Code provision which criminalizes the use of restraints which restrict air or blood flow is valid:

We are asked to determine whether section 10-181 of the Administrative Code of the City of New York, which makes criminal the use of certain restraints by police officers during an arrest, violates the New York Constitution on either preemption or due process grounds. Because section 10-181 does not conflict with state law or regulate in a field in which the state has expressly or impliedly precluded local legislation, it is a permissible exercise of local lawmaking authority. The language of the section also provides fair notice of the conduct prohibited and is sufficiently definite to avoid arbitrary or discriminatory enforcement and is therefore not void for vagueness.

In July 2020, New York City Administrative Code § 10-181 became law, making it a misdemeanor offense for any “person” to “restrain an individual in a manner that restricts the flow of air or blood by compressing the windpipe or the carotid arteries on each side of the neck, or sitting, kneeling, or standing on the chest or back in a manner that compresses the diaphragm, in the course of effecting or attempting to effect an arrest” (Administrative Code of City of NY § 10-181 [a], [b]).

… [T]he enactment of section 10-181 was spurred, in large part, by the widely publicized deaths of Eric Garner and George Floyd following the use of force by police officers during their arrests … . Police Benevolent Assn. of the City of New York, Inc. v City of New York, 2023 NY Slip Op 05960, CtApp 11-21-23

Practice Point: A NYC Administrative Code provision criminalizing restraints which restrict blood or air flow is valid and enforceable.

 

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TO COMPLY WITH THE CONFRONTATION CLAUSE, THE ANALYST WHO TESTIFIES ABOUT A DNA PROFILE MUST HAVE PARTICIPATED IN THE FINAL STAGE OF THE DNA ANALYSIS OR MUST HAVE CONDUCTED AN INDEPENDENT ANALYSIS USING ONLY THE RAW DATA; THE WITNESS HERE DID NOT MEET THAT CRITERIA (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, reversing the Appellate Division, determined the People did not demonstrate the witness through whom the DNA evidence was admitted had the necessary involvement in the DNA analysis:

We have held that “a single analyst” may testify so long as it is “an analyst who witnessed, performed or supervised the generation of defendant’s DNA profile, or who used his or her independent analysis on the raw data, as opposed to a testifying analyst functioning as a conduit for the conclusions of others” … . Accordingly, testimony from an analyst is sufficient where the witness has engaged in ” ‘the final-level DNA analysis, reviewed the results of the preliminary evidence processing conducted by colleagues, produced the relevant DNA profiles, and expressed her expert opinion’ ” as to the DNA match … . …

… [T]he testifying analyst must have either participated in or directly supervised this “final” step that generates the DNA profile, or must conduct an “independent analysis” of the data used to do so in a manner that enables replication of the determinations made at that stage in order to verify the profile …. The record here fails to establish that the testifying analyst had the requisite involvement with either of the DNA profiles. People v Jordan, 2023 NY Slip Op 05957, CtApp 11-21-23

Practice Point: Here the People did not demonstrate the witness testifying about defendant’s DNA profile participated in the final stage of the DNA analysis or conducted an independent analysis using only the raw data. Therefore the analysist’s testimony violated the Confrontation Clause.

 

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DEFENDANT DROVE ON THE RIGHT SHOULDER TO GO AROUND A VEHICLE THAT WAS TURNING AND THEN SUDDENLY CROSSED THE DOUBLE LINE AND STRUCK A MOTORCYCLIST IN THE ONCOMING LANE; THE EVIDENCE WAS NOT LEGALLY SUFFICIENT TO CONSTITUTE “RECKLESS” CONDUCT WITHIN THE MEANING OF THE MANSLAUGHTER STATUTE (FOURTH DEPT).

The Fourth Department, reversing defendant’s manslaughter conviction and dismissing the indictment, determined the evidence of how defendant was driving before his vehicle crossed into the oncoming lane and struck the victim’s motorcycle did not rise to the level of recklessness:

The People introduced eyewitness testimony at trial that, before the accident, defendant was tailgating a sport utility vehicle (SUV), “hitting his fist on the steering wheel[,] and looking a little agitated.” The driver and front passenger of the SUV testified that, as they made a left-hand turn, defendant passed their vehicle by driving onto the right shoulder of the two-lane roadway, yelling out that he was “going to get [them].” After defendant passed the SUV, his vehicle sharply turned left, crossed into the opposite lane, and struck the motorcycle.

… A defendant’s conduct is reckless with respect to the death of another person when the defendant “is aware of and consciously disregards a substantial and unjustifiable risk” that death will result from it … . “The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation” … .

Here … the only risk-creating conduct by defendant supporting his conviction of manslaughter in the second degree was his briefly driving on the shoulder of the road to pass a vehicle in front of him that was turning and his subsequently making a sharp left turn and crossing over the double yellow line into the opposite lane. … [T]hat conduct, standing alone, did not exhibit “the kind of seriously blameworthy carelessness whose seriousness would be apparent to anyone who shares the community’s general sense of right and wrong” necessary to establish recklessness with respect to the death of another … . People v Lavelle, 2023 NY Slip Op 05920, Fourth Dept 11-17-23

Practice Point: The facts of this case, defendant’s suddenly crossing a double yellow line and striking a motorcyclist in the oncoming lane, do not rise to the level of “recklessness” within the meaning of the reckless manslaughter statute.

 

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FAILURE TO RULE ON A MOTION FOR A TRIAL ORDER OF DISMISSAL IS NOT A DENIAL OF THE MOTION; THE MATTER MUST BE SENT BACK FOR A RULING (FOURTH DEPT).

The Fourth Department, sending the matter back for a ruling, noted that the failure to rule on motion for a trial order of dismissal is not a denial which can be raised on appeal.  People v Keane, 2023 NY Slip Op 05915, Fourth Dept 11-17-23

 

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AT THE SUPPRESSION HEARING THE PEOPLE DEMONSTRATED THE TRAFFIC STOP OF DEFENDANT’S VEHICLE WAS BASED ON A POLICE OFFICER’S COMPUTER DMV CHECK WHICH SHOWED DEFENDANT’S INSURANCE HAD LAPSED; IN SUPPORT OF THE SUPPRESSION MOTION THE DEFENDANT SUBMITTED VERIFICATION THAT THE INSURANCE HAD NOT LAPSED; AT THAT POINT THE PRESUMPTION OF RELIABILITY DISAPPEARED AND THE PEOPLE WERE REQUIRED TO SHOW THE RELIABILITY OF THE DMV CHECK, WHICH THEY FAILED TO DO (FOURTH DEPT).

The Fourth Department, reversing Supreme Court’s denial of suppression and dismissing the indictment, determined the People did not meet their burden of going forward at the suppression hearing by demonstrating the legality of the police conduct. The traffic stop was justified by a DMV check showing the insurance of defendant’s vehicle had lapsed. In support of defendant’s motion to suppress, defendant presented a verification of insurance form demonstrating coverage had not lapsed. At that point the presumption that the DMV check was accurate disappeared and the People were required to demonstrate the information relied upon by the police was accurate. The People failed to so demonstrate:

… [D]efendant’s submission of the verification of insurance form in support of his supplemental motion was sufficient to challenge the presumed reliability of the information obtained by the officer that the vehicle’s registration was suspended due to an insurance lapse … . It was therefore incumbent upon the People to submit proof at the suppression hearing in addition to the officer’s testimony to establish the reliability of the information received by the officer, and the People failed to meet that burden … . People v Walker, 2023 NY Slip Op 05902, Fourth Dept 11-17-23

Practice Point: At a suppression hearing the People must first demonstrate the police conduct was legal. Here the traffic stop was based on a DMV check showing an insurance lapse. Defendant presented proof the insurance had not lapsed. At that point the presumption the DMV check was reliable disappeared and the People were required to show the DMV check was in fact reliable, which they failed to do. Suppression should have been granted.

 

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