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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

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plaintiff entitled to a potential bias jury instruction when fact witness called by defendant receives a fee much higher than the minimum fee required by cplr 8001.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that the plaintiff in this personal injury action was entitled to a potential bias jury instruction. The fact witness subpoenaed by the defendant (CSI) was paid $10,000 and the high fee was not explained:

Plaintiff testified that she stepped into a “dip in the trench” that caused her to fall. To rebut this testimony, CSI subpoenaed a physician who had treated plaintiff in the emergency room shortly after the accident. The doctor was called merely as a fact witness to testify concerning his entry in the “history” section of his consultation note that plaintiff “tripped over a dog while walking last night in the rain” (emphasis supplied). He testified consistently with his documented note. During cross-examination, plaintiff’s counsel elicited from the doctor that CSI had paid him $10,000 for appearing and testifying. The doctor denied that his testimony was influenced by the payment, stating simply that he was there to “testify[ ] to my records.” His testimony consisted only of his verification that he made the entry into the emergency room record. No professional opinion was sought nor given. Plaintiff’s counsel requested that the court strike the doctor’s entire testimony or, in the alternative, issue either a curative instruction or a jury charge concerning monetary influence.

The following day, before summations, plaintiff’s counsel asked that the court charge the jury that, pursuant to CPLR 8001, the doctor, as a fact witness, was entitled to a witness fee of $15 per day and $.23 per mile to and from the place where he was served with the subpoena. Defense counsel countered that the witness fee was the statutory minimum and that [*3]there was no prohibition against paying a fact witness for time missed from work. * * *

We agree with plaintiff that Supreme Court should have issued a bias charge specifically tailored to address the payment CSI made to the doctor. Supreme Court generally instructed the jury that bias or prejudice was a consideration that it should consider in weighing the testimony of any of the witnesses, but this was insufficient as it pertained to CSI’s payment to the doctor. To be sure, Supreme Court properly acted within its discretion in concluding that the fee payment was fertile ground for cross-examination and comment during summation. But because CSI did not even attempt to justify the $10,000 payment for one hour of testimony, Supreme Court should have also crafted a charge that went beyond the CPLR 8001 requirements. Supreme Court should have instructed the jury that fact witnesses may be compensated for their lost time but that the jury should assess whether the compensation was disproportionately more than what was reasonable for the loss of the witness’s time from work or business. Should the [*5]jury find that the compensation is disproportionate, it should then consider whether it had the effect of influencing the witness’s testimony (see PJI 1:904) … . Caldwell v Cablevision Sys. Corp., 2013 NY Slip Op 00783 [20 NY3d 365], CtApp 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

 

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Syracuse Police Officer Did Not Have Authority to Arrest in Town of DeWitt, Judge Abused Discretion During Jury Selection.

A City of Syracuse police detective was assigned to a security detail for a college athletic event.  The detective saw codefendant walk toward the gymnasium, turn around and walk back the way he came.  The detective followed the codefendant to a car. The detective then approached the codefendant and asked to speak with him.  Defendant, who had been in the car, got out of the car.  The detective smelled burnt marihuana and both codefendant and defendant admitted they had been smoking marihuana.  A consent search of the car turned up a loaded revolver leading to the defendant’s and codefendant’s arrest.  The encounter with the City of Syracuse detective actually took place in the Town of DeWitt, not the City of Syracuse.  The Fourth Department held, pursuant to Criminal Procedure Law section 140.50 (1), the City of Syracuse detective did not have statutory authority to stop and question the defendant outside “the geographical area of such officer’s employment…”.  The physical evidence was suppressed and the indictment dismissed on that basis.  The Fourth Department went on to hold that there was a valid alternative ground for reversal.  The jury selection process went very fast, proceeding group to group.  The judge told counsel that once the peremptory challenges for a particular group were finished, there would be no further opportunity to challenge anyone in that group.  One of the defense attorneys told the judge that the jury selection process was moving too fast and the defense did not want one of the jurors in the previous group.  The judge refused to allow a challenge of that juror.  The Fourth Department held the judge’s refusal was an abuse of discretion requiring reversal stating:  “ ‘We can detect no discernable interference or undue delay caused by [the] momentary oversight [of the attorneys for defendant and codefendant] that would justify [the court’s] hasty refusal to entertain [their] challenge….’ ”.  People v McGrew, 1453, KA 09-01308 Fourth Dept. 2-1-13

vehicle stops, street stops

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Victim’s Testimony About Her Own Statements Not Hearsay.

In affirming a rape conviction, the Fourth Department noted it was not necessary to apply the “prompt outcry” hearsay exception to the victim’s testimony about her own out-of-court statements because the statements were not hearsay. People v Curran, 1323, KA 08-01510 Fourth Dept. 2-1-13

 

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Guilty Plea Waives All Nonjurisdictional Pre-Trial and Trial Defects.

Defendant went to trial before he pled guilty.  On appeal he argued the court erred in admitting recorded conversations. The Fourth Department determined, by pleading guilty, the defendant forfeited his right to seek review of any nonjurisdictional defects in the proceedings, including issues arising from an audibility hearing and evidentiary rulings during trial.  People vs Alvarado, 130, KA 11-02011 Fourth Dept. 2-1-13

 

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Defendant’s Flight Did Not Justify Police Pursuit.

Flight was not sufficient to justify police pursuit.  A police officer had been shot in the afternoon.  About eight hours after the shooting, uniformed officers approached the defendant as he was walking within a block or two of where the shooting occurred.  The defendant said “What, we can’t go to the store?” turned his back, made a gesture toward his waistband, and ran. The police pursued him and saw him discard a handgun from his pocket as he was being tackled by an officer.  The defendant subsequently pled guilty to criminal possession of a weapon.  The Fourth Department reversed the conviction and vacated the sentence. “Flight alone … is insufficient to justify pursuit because an individual has a right to be let alone and refuse to respond to police inquiry …”.  Because there were no “specific circumstances indicating that the suspect [was] engaged in criminal activity,” there was no “reasonable suspicion” of criminal activity, “the necessary predicate for police pursuit…”.  People v Cady, 1427, KA 12-00337 Fourth Dept. 2-1-13

DeBour, street stops

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General Question Whether Defendant Was “A Law Abiding Person” Violated Sandoval Ruling and Required Reversal.

The prosecutor’s violation of the trial court’s Sandoval ruling required reversal and new trial.  Defendant was charged with rape.  Prior to trial defendant sought a Sandoval ruling that he could not be cross-examined about a nine-year-old conviction for sexual abuse.  The trial court ruled the defendant could not be cross-examined about the sexual abuse conviction because it did “relate to the two charges that are presently before the Court…” [and therefore could unduly prejudice the defendant in the eyes of the jury].   “The prosecutor, despite the court’s Sandoval ruling, asked a series of general questions regarding prior bad acts by defendant, and then questioned him specifically regarding the precluded prior conviction.”  The prosecutor started the prohibited line of questioning by asking the defendant whether he was “a law abiding person,” to which the defendant replied that he had been “for the last three years.” The Fourth Department held that the defendant’s answer did not “open the door” to questioning about the sexual abuse conviction, noting that “a defendant opens the door to cross-examination concerning previously-precluded evidence where…’defendant’s testimony was meant to elicit an incorrect jury inference’…”. The Fourth Department stated unequivocally that the “People may not elicit a general statement by asking questions that violate the Sandoval ruling for the sole purpose of circumventing that ruling.”  People v Snyder, 1370, KA 11-00316 Fourth Dept. 2-1-13

 

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19-Year Preindictment Delay Okay; Prior Incidents of Domestic Violence Probative of Motive, Intent and Identity; Admissions Are Direct, Not Circumstantial, Evidence

A 19-year preindictment delay did not violate defendant’s speedy trial and due process rights. The charge was murder. The defendant was at liberty until indicted. The People established good cause for the delay in that the case was not ready to bring to a grand jury until the statements of three witnesses and DNA test results were obtained. The Fourth Department held that there was no need for a Singer hearing to determine the reason for the delay because there was no issue of fact with respect to the cause of the delay and the record provided County Court with a sufficient basis to determine whether the delay was justified. The admission of prior incidents of domestic violence against the victim (defendant’s wife) was proper because the evidence was probative of defendant’s motive, intent and identity. The defendant was not entitled to a circumstantial evidence charge because the admissions he made about killing his wife constituted direct evidence. People v Rogers, 1425, KA 11-00012 4th Dept. 2-1-13

 

 

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No “Reasonable Suspicion,” Defendant Should Not Have Been Stopped and Detained.

A new trial was ordered and the defendant’s motion to suppress identification evidence was granted by the Second Department.  A police radio broadcast described a robbery in progress by two males wearing black jackets, one wearing blue jeans, the other wearing black jeans. The complainant described the robbers only as “wearing dark clothing,” one taller than the other, and one with a hood.  The Court held that these descriptions were not sufficient to provide reasonable suspicion to stop and detain the defendant, who was dressed in a dark gray and dark green camouflage jacket and was standing alone 20 blocks from the crime scene.  People v Polhill, 2010-01680, Ind. No. 943/09 Second Dept. 1-30-13

DeBour, street stops

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