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DEFENDANT-PETITIONER WAS ENTITLED TO RELEASE FROM PRE-INDICTMENT CUSTODY PURSUANT TO CPL 30.30 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the habeas corpus petition seeking defendant-petitioner’s release from pre-indictment custody should have been granted:

… [P]etitioner demonstrated that more than 90 days elapsed from the commencement of the defendant’s confinement on April 27, 2023, until July 31, 2023, the date the petitioner made an application to the Supreme Court pursuant to CPL 30.30(2)(a) for the defendant’s release. The Supreme Court nonetheless denied the petitioner’s application, concluding that the People were entitled to exclude an unspecified period of time attributable to a delay in satisfying their obligation to produce relevant portions of the grand jury minutes. The People asserted that this delay in complying with their obligation pursuant to CPL 245.20(1)(b) was caused by a backlog on the part of a court reporter in producing the minutes. The Supreme Court incorrectly determined that the circumstances surrounding the People’s production of the minutes constituted excludable delay, whether based on exceptional circumstances or some other ground set forth in CPL 30.30(4). Among other reasons, the People failed to demonstrate that the timing of the production of the minutes was beyond their control, or that they engaged in diligent efforts to produce the outstanding discovery by their trial readiness deadline … . People ex rel. Fast v Molina, 2023 NY Slip Op 04641, Second Dept 9-20-23

Practice Point: Here the reasons provided by the People for their inability to be ready for trial should not have been deemed adequate to meet the criteria for excludable delay pursuant to CPL 30.30.

 

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THE MAJORITY DETERMINED THE DEFENDANT DEVELOPED THE RELATIONSHIP WITH THE COMPLAINANT FOR THE PRIMARY PURPOSE OF VICTIMIZING HER AND THEREFORE 20 POINTS WERE PROPERLY ASSESSED UNDER RISK FACTOR 7; THE COMPREHENSIVE DISSENT ARGUED THERE WAS A PRE-EXISTING RELATIONSHIP WITH THE COMPLAINANT WHICH RENDERD RISK FACTOR 7 INAPPLICABLE UNDER THE COURT OF APPEALS RULING IN COOK (SECOND DEPT).

The Second Department determined, over a comprehensive dissent, that defendant was properly assessed 20 points because his relationship with the 13-year-old victim was deemed to have been established for the primary purpose of victimizing her. The dissent argued there was a pre-existing relationship and, therefore, defendant did not develop the relationship for the purpose of victimization:

… [T]he record indicates that the defendant did not have a long-standing preexisting relationship with the complainant’s parents, and was not involved in the complainant’s life since her infancy. Rather, the defendant had worked with the complainant’s uncle and was invited to the uncle’s house for lunch, where he met the complainant. Thus, this case is readily distinguishable from the circumstances of Cook [29 NY3d at 121]. Contrary to the position of our dissenting colleague, the fact that the defendant’s initial contact with the complainant was unplanned and in person, rather than through the internet, is not determinative with respect to the assessment of points under risk factor 7 based on an offender’s establishment or promotion of a relationship with the victim for the primary purpose of victimization … . The Guidelines, which were created in 1996, do not limit the assessment of points under those circumstances to situations where the offender and the victim initially met online. People v Jony, 2023 NY Slip Op 04674, Second Dept 9-20-23

Practice Point: A long-standing relationship between a defendant and a victim of sexual abuse may demonstrate the relationship was not established for the primary purpose of victimization rendering the assessment of 20 points under risk factor 7 inapplicable. Here the majority concluded there was no such pre-existing relationship, but the dissent made a strong contrary argument.

 

 

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PLAINTIFF WAS ELIGIBLE FOR RELEASE FROM JAIL PURSUANT TO CPL 180.80 BUT WAS KEPT INCARCERATED FOR AN ADDITIONAL 2 1/2 MONTHS; PLAINTIFF’S FALSE IMPRISONMENT AND NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Ford, reversing Supreme Court, determined plaintiff’s causes of action for false imprisonment and negligence should not have been dismissed. Plaintiff sued the town because he was not released from custody pursuant to Criminal Procedure Law 180.80:

CPL 180.80 “requires the release of individuals being held in pretrial detention pending action of a Grand Jury after 120 or 144 hours of custody unless, among other neutralizing circumstances, an indictment has been voted” … . * * *

The allegation that the defendant detained the plaintiff for an additional 2½ months after it was required to release him pursuant to CPL 180.80 is a very serious one. This Court notes that the defendant does not deny this allegation outright, but instead attempts to shift blame to the plaintiff for what would, if true, be its own grievous error. McKay v Town of Southampton, 2023 NY Slip Op 04664, Second Dept 9-20-23

Practice Point: Here the plaintiff was not released from jail when he was eligible for release pursuant to CPL 180.80. His lawsuit against the town for false imprisonment and negligence should not have been dismissed.

 

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A 911 CALLER WHO PROVIDES ONLY HIS FIRST NAME IS AN ANONYMOUS INFORMANT AND PROVIDES THE POLICE WITH ONLY THE COMMON-LAW RIGHT TO INQUIRE (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court’s denial of suppression and dismissing the indictment, determined the 911 call was from an anonymous informant, even though the caller provided his first name. Because the informant was anonymous, the information about a black man in an orange jacket carrying a handgun gave rise only to the common-law right to inquire. One of the officer’s approached with his gun drawn and the defendant ran, discarding the jacket and handgun:

As a preliminary matter, we conclude that the 911 caller, who identified himself only by a first name, was anonymous inasmuch as he provided no other information from which the police could identify or locate him , and he was not present at the scene when the police arrived  Indeed, it is not clear from the record that the name by which the caller identified himself was the caller’s real first name. Under the circumstances, we analyze the propriety of the police conduct under the law applicable to tips from anonymous informants. * * *

… [T]he anonymous tip was simply that of a man with a gun at a particular location. It follows that the officer’s gunpoint stop of defendant was unlawful, as was the officers’ subsequent pursuit of defendant after he took flight. People v Johnson, 2023 NY Slip Op 04493, Fourth Dept 9-8-23

Practice Point: A 911 caller who only provides his first name is an anonymous informant. Any information provided by the caller triggers only a police officer’s common-law right to inquire. Here the officer approached with his gun drawn. The gun discarded when the defendant ran should have been suppressed.

 

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THE SORA RISK-LEVEL MOTION COURT SHOULD NOT HAVE RE-OPENED THE HEARING TO AMEND ITS ORIGINAL RISK-LEVEL DETERMINATION; THE CRITERIA FOR A MOTION TO RENEW WERE NOT MET; THE “INHERENT AUTHORITY” TO RE-OPEN APPLIES ONLY WHEN THE ORIGINAL RULING WAS BASED ON A MISTAKE; THE PEOPLE WERE NOT DEPRIVED OF THE OPPORTUNITY TO APPLY FOR AN UPWARD DEPARTURE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the SORA court should not have reopened the SORA risk-level hearing to amend its prior risk-level ruling. The criteria for a motion to renew were not met and the other justifications for re-opening the hearing were not applicable:

… [T]here are three ways in which a court could amend its SORA determination…. First, a party may move for leave to renew. A court may grant a motion for leave to renew only where (1) the motion alleges new facts and (2) the movant provides reasonable justification for not offering those facts in the original proceedings (CPLR 2221[e][2], [3]; …). The court has discretion to determine what constitutes a reasonable justification … and to relax the requirements of CPLR 2221(e) in the interest of justice … . * * *

Second, a court has an inherent authority to reopen a hearing “to correct its own order to rectify a mistake of law or fact” on a SORA decision … . This inherent authority stems from the “overriding purposes and objectives of SORA” to, inter alia, “protect [] vulnerable populations and . . . the public from potential harm” …. .

Here, the motion court could not have acted based on its inherent authority because the motion court did not make a mistake in its initial decision … . * * *

Third, a new hearing can be ordered to give the People an opportunity to make an application for an upward modification where the People refrained from making that argument when the motion court assessed points which resulted in the defendant being assigned presumptively to the level sought by the People … . * * *

Here, the motion court properly gave the People time to respond to defendant’s assertions and the People chose to introduce the new materials only belatedly.  People v Adams, 2023 NY Slip Op 04490, First Dept 9-7-23

Practice Point: The three ways a SORA motion court can amend a risk-level determination are described in detail. None were applicable here.

 

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DEFENSE COUNSEL RAISED A BATSON OBJECTION TO THE STRIKING OF FIVE JURORS; THE JUDGE RESTRICTED THE CHALLENGES TO TWO OF THE FIVE STRUCK IN THE MOST RECENT ROUND OF JURY SELECTION; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined the trial judge should not have limited the defense Batson objections to the prosecutor’s striking non-white potential jurors. Defense counsel challenged the striking of five jurors but the judge limited the challenges to the two struck in the most recent round of jury selection:

… [D]efense counsel made an application pursuant to Batson as to the five prospective nonwhite jurors stricken from the three rounds. Defense counsel stated: “that will be a total of . . . five non-white jurors that were struck by the People, and there have not been that many non-white potential jurors we have seen.” Defense counsel added, “so out of the 11 strikes, five of them were for non-white jurors,” and “I believe that makes a prima facie case regarding the protective class”. The court responded: “Let’s talk about this round only.” The People proceeded to proffer reasons for striking only the two panelists from the third round. The defense renewed its Batson challenge when the prosecution struck a sixth nonwhite potential juror in a subsequent round, stating that the People “are deliberately striking non-white jurors.” The court specifically stated it was “not going to address that” and defense counsel noted their exception. …

The trial court erred in denying defendants an opportunity to present their full Batson challenge when it improperly limited the inquiry to only two of the challenged prospective jurors. As this Court held in People v Frazier (125 AD3d 449, 449 [1st Dept 2015]), “[a]lthough the court did not make a specific ruling that defendants satisfied step one of Batson (prima facie case of discrimination), once it ordered the prosecutor to provide the reasons for his peremptory challenges to two of the . . . panelists who were the subject of defendants’ application, it should have required the prosecutor to articulate his reasons for striking the remaining . . . panelists, as defendants specifically requested.” The People argue that unlike Frazier, the trial court here simply directed the parties to focus on the panelists challenged in round three of jury selection and the prosecutor volunteered race-neutral reasons without being ordered to do so. This is a distinction without a difference. As in Frazier, once the trial court asked the prosecutor to offer race-neutral reasons for striking two of the prospective jurors, it should have also requested an explanation for striking the remaining panelists that were part of the same application. The court failed to do so, and consequently, the case should be remanded for a new trial. People v Julio, 2023 NY Slip Op 04349, First Dept 8-17-23

Practice Point: When defense counsel raised Batson challenges to five jurors who had been struck, the judge limited the challenges to the two struck in the most recent round of jury selection. That was reversible error.

 

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THE SEARCH WARRANT FOR DEFENDANT’S CELL PHONE DID NOT MEET THE PARTICULARITY REQUIREMENT, THE EVIDENCE GLEANED FROM THE CELL PHONE SHOULD HAVE BEEN SUPPRESSED; NEW TRIAL ORDERED; KIDNAPPING SECOND DEGREE IS AN INCLUSORY CONCURRENT COUNT OF KIDNAPPING SECOND DEGREE AS A SEXUALLY MOTIVATED FELONY, THE COUNTS MUST BE SUBMITTED TO THE JURY IN THE ALTERNATIVE (FOURTH DEPT). ​

he Fourth Department, reversing defendant’s conviction, determined the search warrant for defendant’s cell phone was overly broad. Therefore the evidence derived from the cell phone should have been suppressed. The court noted that kidnapping in the second degree is an inclusory concurrent count of kidnapping in the second degree as a sexually motivated felony … and that the court upon retrial should submit to the jury the kidnapping in the second degree count in the alternative only:

A warrant must be “specific enough to leave no discretion to the executing officer” … . To meet the particularity requirement, a warrant must (1) “identify the specific offense for which the police have established probable cause,” (2) “describe the place to be searched,” and (3) “specify the items to be seized by their relation to designated crimes” … . Here, the search warrant simply stated that the police were directed to search defendant’s cellular phone for “digital and/or electronic evidence from August 13, 2016 to August 15, 2016.” The warrant contained no language incorporating any other documents or facts. Significantly, the search of the phone was not restricted by reference to any particular crime. Thus, the search warrant failed to meet the particularity requirement and left discretion of the search to the executing officers … . People v Saeli, 2023 NY Slip Op 04268, Fourth Dept 8-11-23

Practice Point: A search warrant for a cell phone which simply states to search for “digital and/or electronic evidence from August 13, 2016 to August 15, 2016” does not meet the particularity requirement (the warrant is overly broad).

Practice Point: Kidnapping in the second degree is an inclusory concurrent count of kidnapping in the second degree as a sexually motivated felony.

 

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THE SUPPRESSION MOTION WAS PROPERLY GRANTED; THE POLICE DID NOT HAVE REASONABLE SUSPICION WHEN DEFENDANT’S CAR WAS BLOCKED BY A POLICE CAR; THE APPELLATE COURT MAY CONSIDER A RULING WHICH WAS NOT EXPLICIT BASED ON THE CONTEXT OF THE RULING WITHIN THE RECORD (SECOND DEPT).

The Second Department, over a two-justice dissent, determined the suppression motion was properly granted because the police blocked defendant’s car before there was reasonable suspicion of criminal activity or danger to the public. The majority also concluded the issue could be decided on appeal in the absence of a specific ruling by the motion court by relying on the record for the context of the ultimate ruling:

Officer Cox’s conduct in stopping the police vehicle “directly in front of the driveway” in a position “blocking the location” where the Audi was stopped with the engine running “constituted a stop, which required reasonable suspicion that the defendant or other occupants of the vehicle were either involved in criminal activity or posed some danger to the police” … . Joyette, the driver of the Audi, could not have pulled out of the driveway due to the police vehicle blocking the driveway, and thus, the police conduct constituted a “‘significant interruption with an individual’s liberty of movement'” … .

Further, the People failed to present any evidence showing that Officer Cox and his fellow officers observed any criminal activity at the time Officer Cox blocked the Audi from leaving the driveway. * * *

While CPL 470.15 bars this Court from deciding an appeal on a ground not ruled upon by the trial court … , “nothing in the language of CPL 470.15(1) . . . prohibits an appellate court from considering the record and the proffer colloquy with counsel to understand the context of the trial court’s ultimate determination” … . Moreover, “where the trial court gives a reason [for its decision] and there is record support for inferences to be drawn from that reason, the Appellate Division does not act beyond the parameters legislatively set forth in CPL 470.15(1) when it considers those inferences” … . People v Joyette, 2023 NY Slip Op 04216, Second Dept 8-9-23

Practice Point: When the police blocked defendant’s car they did not have reasonable suspicion of criminal activity. Therefore the suppression motion was properly granted.

Practice Point: When a court’s ruling is not explicit the context of the ruling can be turned to by the appellate court to determine the exact nature of the ruling.

 

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ALTHOUGH THE ERROR WAS DEEMED HARMLESS, THE FORENSIC STATISTICAL TOOL (FST) DNA ANALYSIS SHOULD NOT HAVE BEEN ADMITTED WITHOUT HOLDING A FRYE HEARING (SECOND DEPT).

The Second Department determined the DNA analysis using the forensic statistical tool (FST) should not have been admitted in the absence of a Frye hearing. However, there error was deemed harmless:

Supreme Court improperly admitted into evidence the results of DNA analysis conducted using the forensic statistical tool (hereinafter FST) without first holding a hearing pursuant to Frye v United States (293 F 1013 [DC Cir]) … . However, this error was harmless. The evidence of the defendant’s guilt was overwhelming. The surviving police officer who was shot at by the defendant at close range, under good lighting conditions, and without obstruction identified the defendant within hours of the shooting. Other uncontested, single-source, non-FST DNA testing connected the defendant to the gun used in the shooting. Witnesses who knew the defendant and lived in the vicinity of the shooting testified that they saw the defendant running through their yards just after they heard the gun shots, holding a gun similar to the gun identified as the one used in the shooting. The defendant provided a false name to law enforcement officers canvassing the area of the shooting when he was approached by them, by which point he had abandoned some of the clothing he was wearing during the shooting, and he was apprehended wearing someone else’s ill-fitting clothes and shoes. Additionally, the People’s evidence offered in rebuttal to the defendant’s extreme emotional disturbance defense was compelling. Therefore, there is no significant probability that the jury would have acquitted the defendant had it not been for this error. People v Blackwell2023 NY Slip Op 04211, Second Dept 8-9-23

Practice Point: A DNA analysis using the forensic statistical tool (FST) should not be admitted in the absence of a Frye hearing.

 

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​ PETITIONER’S APPLICATION FOR A PISTOL PERMIT SHOULD NOT HAVE BEEN DENIED BASED UPON A 23-YEAR-OLD ARREST THAT DID NOT RESULT IN PROSECUTION; PETITIONER SHOULD HAVE BEEN GIVEN THE OPPORTUNITY TO RESPOND TO THE OBJECTIONS TO THE APPLICATION (SECOND DEPT).

The Second Department, reversing County Court, determined petitioner’s application for a residential/sportsman pistol permit should not have been denied based upon a single arrest 23 years before which did not result in prosecution. The Second Department noted that petitioner was not given the opportunity to respond to the objections to his application:

… [T]he respondent’s determination denying the petitioner’s application for a pistol permit was arbitrary and capricious … . Although the respondent was entitled to consider the petitioner’s prior arrest, the circumstances thereof did not, under the particular facts of this case, warrant the denial of the petitioner’s application. The record reflects, among other things, that the petitioner properly disclosed his arrest in his application, that the weapon in question belonged to a hitchhiker the petitioner picked up while driving his vehicle when he was 19 years old, that an investigation by the District Attorney’s office determined that the weapon belonged to the hitchhiker, that the petitioner testified before a grand jury in connection with the subject matter, that the grand jury entered a no true bill against the petitioner, and that the petitioner has no other criminal record in the 23 years between his single arrest and the date of the pistol permit application. Further, based upon the record before us, it is apparent that the respondent did not give the petitioner an opportunity to respond to the stated objections to his pistol permit application … . Matter of Cambronne v Russo, 2023 NY Slip Op 04121, Second Dept 8-2-23

Practice Point: Here the denial of petitioner’s pistol-permit application was deemed arbitrary and capricious because it was based on a 23-year-old arrest that did not result in prosecution.

Practice Point: An applicant for a pistol permit should be given an opportunity to respond to objections to the application.

 

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