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Failure to Read Defendant His Miranda Rights, After the Defendant Interrupted the Reading of the Rights by Telling the Officer He Knew His Rights, Required Suppression of the Statements

The Fourth Department determined that defendant was entitled to a new trial with respect to the charges related to unwarned statements he made to the police.  When an officer started to read the Miranda rights to the defendant he stopped the officer by saying he knew his rights.  The defendant thereafter made several statements in the absence of any Miranda warnings:

It is well settled that “[a]n individual taken into custody by law enforcement authorities for questioning must be adequately and effectively apprised of his rights’ safeguarded by the Fifth Amendment privilege against self-incrimination” … . The Miranda warnings “are an absolute prerequisite to interrogation’ ” … . Here, the court concluded that defendant understood his rights based on the fact that he had been given Miranda warnings before he gave his August 16, 2010 statement [re: a different, unrelated offense]. A court, however, does not ” inquire in individual cases whether the defendant was aware of his rights without a warning being given’ ” … . Defendant’s statements made on November 17, 2010 must therefore be suppressed because the Miranda warnings were not given until after defendant was interrogated… . People v Jackson, 2015 NY Slip Op 02623, 4th Dept 3-27-15

 

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Recorded Conversation In Which Defendant Did Not Respond to Statements by Victim that He Had Broken Her Ribs Was Admissible

The First Department determined portions of a recorded phone call in which defendant did not respond to the victim’s statements that he had broker her ribs were admissible because a person in defendant’s position would have been expected to answer:

The court properly exercised its discretion in admitting a phone call placed by defendant to the victim while defendant was incarcerated, in which the victim repeatedly stated that defendant had broken her ribs. The record supports the court’s findings that defendant heard and understood the victim’s accusation, and that a person in defendant’s position would have been expected to answer … . Rather than directly addressing the victim’s statement, defendant repeatedly attempted to change the subject, such as by asking the victim whether she meant that he posed a “threat” to her. It is not dispositive that defendant asked the victim to repeat herself after the fourth out of five times she stated that he had broken her ribs, since defendant did not otherwise indicate that he was unable to hear or understood her. Although the phone call was recorded by the Department of Correction pursuant to a standard policy made known to all inmates, the rule excluding “silence in the face of police interrogation” … was not implicated, since defendant’s admissions by silence were made to a civilian. Moreover, the court’s thorough limiting instructions also minimized any potential unfair prejudice. People v Vining, 2015 NY Slip Op 02570, 1st Dept 3-26-15

 

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Whether Arresting Officers Had Reasonable Suspicion to Stop and Detain Is a Mixed Question of Law and Fact Which Cannot Be Reviewed by the Court of Appeals

The Court of Appeals, over a strong dissent, determined it did not have jurisdiction to consider whether the police had reasonable suspicion to justify the stop and detention of the defendant, a mixed question of law and fact:

Whether the circumstances of a particular case rise to the level of reasonable suspicion presents a mixed question of law and fact … . Because the Appellate Division’s reversals were thus not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]), these appeals are not authorized to be taken.

While acknowledging that “determinations as to reasonable suspicion typically present a mixed question of law and fact,” the dissent cites People v McRay (51 NY2d 594 [1980]) for the proposition that these cases instead involve a straight-up question of law — namely, “the minimum showing necessary to establish reasonable suspicion” … . In McRay, though, the Appellate Division reversed the suppression court on the ground that the People’s proof was insufficient as a matter of law to support probable cause to arrest (id. at 605). When we disagreed and reversed, we therefore remitted to the Appellate Division for factual review, emphasizing that an inference of probable cause was permitted, but not required, on the facts established (id. at 605, 606). Here, by contrast, the Appellate Division reversed the suppression court because, when exercising its independent fact-finding powers, it drew a different inference from the established facts, thus deciding a mixed question of law and fact. The dissenting Judge strongly disagrees with the Appellate Division. But the views of individual Judges of this Court on the merits of defendants’ suppression motions are beside the point because the Criminal Procedure Law simply does not vest us with jurisdiction to entertain these appeals… . People v Brown, 2015 NY Slip Op 02552, CtApp 3-26-15

 

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Misinformation from Defense Counsel, Prosecutor and Judge Re: Defendant’s Eligibility for Shock Incarceration Warranted Vacation of Guilty Plea In Spite of Appeal Waiver/Overnight Guest Has Standing to Contest Search of Residence

The Third Department, over a dissent, determined that misinformation from the judge, prosecutor and defense counsel about defendant’s eligibility for the shock incarceration program justified the vacation his guilty plea, despite an appeal waiver. In addition, the court determined defendant was entitled to a hearing on whether he had standing to contest the search of another’s mobile home.  The owner of the mobile home (Orrego) had supplied an affidavit stating defendant was an overnight guest, a status the provided standing to contest the search:

Given the mistake by all involved in the plea proceeding, and counsel’s failure to provide meaningful representation on this issue, we agree with defendant’s contention that his motion to withdraw his guilty plea should have been granted. * * *

… [A] trial court is not obligated to conduct a suppression hearing “unless the accused alleges facts that, if true, demonstrate standing to challenge the search or seizure” … . Pertinent here, “an overnight guest has an expectation of privacy in the host’s home” and, thus, standing to contest a search of that home … . In our view, the facts set forth in the Orrego affidavit necessitated, at a minimum, that a hearing be held to determine whether defendant had standing to contest the search… . People v Wiggins, 2015 NY Slip Op 02517, 3rd Dept 3-26-15

 

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Nervous and Uncooperative Actions by Defendant Justified Search of Area Inside Defendant’s Car After Defendant Was Out of the Car and Had Been Frisked

The First Department, over a dissent, determined the nervous and uncooperative actions of the defendant justified the warrantless search of a bag inside the car defendant was driving, after defendant was outside the car and had been frisked:

The testimony supports the trial court’s finding that the facts available to the officers, including defendant’s furtive behavior, suspicious actions in looking into the back seat on multiple occasions and refusal to follow the officers’ legitimate directions, went beyond mere nervousness. Rather, defendant’s actions both inside and outside of the vehicle created a “perceptible risk” and supported a reasonable conclusion that a weapon that posed an actual and specific danger to their safety was secreted in the area behind the front passenger seat, which justified the limited search of that area, even after defendant had been removed from the car and frisked … . People v Hardee, 2015 NY Slip Op 02573, 1st Dept 3-26-15

 

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Criteria for Emergency Exception to the Warrant Requirement (Re: Entry of an Apartment) Not Met

The Second Department determined the police should not have entered and apartment without a warrant because the emergency exception to the warrant requirement did not apply.  The landlord had simply indicated a woman was in the apartment without any indication the woman was in distress:

Under the emergency exception to the warrant requirement, the police may make a warrantless entry into a protected area if (1) they have reasonable grounds to believe that there was an emergency at hand and an immediate need for their assistance for the protection of life or property; (2) the search was not primarily motivated by an intent to arrest and seize evidence; and (3) there was some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched … . The United States Supreme Court has determined that the second prong, regarding the subjective intent of the police, is no longer relevant under the Fourth Amendment (see Brigham City v Stuart, 547 US 398, 404-405). However, we need not decide whether the second prong of Mitchell is still viable under the New York Constitution because we conclude that the People did not satisfy the first prong of Mitchell … . The mere sound of unspecified banging and a woman’s voice coming from the upstairs apartment was insufficient to show that there was an emergency at hand requiring the immediate assistance of the police in order to protect life or property … . The owner did not say that she heard the woman screaming or crying for help, and the officers did not observe any indicia of an emergency … . People v Hammett, 2015 NY Slip Op 02498, 2nd Dept 3-25-15

 

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Observing a “Bulge” Did Not Justify Forcible Detention

The Second Department reversed defendant’s conviction, finding that the police officer’s observation of a bulge did not justify forcible detention:

…[T]he arresting officer did not have reasonable suspicion to believe that the defendant had committed or was about to commit a crime … . The officer briefly observed what he initially characterized only as a “bulge” on the right side of the defendant’s pants. Despite this initial characterization, the officer later testified that he thought he had observed a holster, which turned out to be a buckle attached to the right side of the defendant’s pants. This observation, without more, was not sufficient to permit the officer to forcibly detain the defendant … . Accordingly, the physical evidence recovered from the defendant as a consequence of the unlawful detention and arrest should have been suppressed… . People v Severino, 2015 NY Slip Op 02509, 2nd Dept 3-25-15

 

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Motion to Vacate Conviction Based Upon Victim’s Recantation Should Not Have Been Denied Without a Hearing

The Fourth Department determined Supreme Court erred when it denied defendant’s motion to vacate his conviction without a hearing.  The motion was primarily based upon the victim’s, defendant’s daughter’s, recantation of her rape allegations:

In her affidavit, the victim, who was the sole witness to give testimony at trial with respect to the crimes, averred that she wanted to live with her maternal grandmother. In order to effectuate that move, her maternal grandmother advised her to accuse defendant of having sexually assaulted her. The victim averred that she did not care about defendant at the time and, therefore, she agreed to accuse defendant of sexually assaulting her. She further averred that, since the trial, she had reconnected with her paternal grandmother and had seen how the latter was suffering because defendant was in prison. Witnessing that suffering resolved her to tell the truth. Although the court found the victim’s recantation to be inherently unbelievable or unreliable, we conclude that, based on the totality of the circumstances, such a finding was unwarranted in the absence of a hearing … .

The victim’s trial testimony that defendant had sexually assaulted her was crucial to the prosecution’s case. Her subsequent averments that she was encouraged by her maternal grandmother to accuse defendant of crimes so that she could live with her maternal grandmother indicate that she had a motive to lie at trial. We therefore conclude that the victim’s trial testimony, if false, was extremely prejudicial to defendant inasmuch as, without that testimony, there would have been no basis for the jury to convict defendant … . Under those circumstances, the court’s denial without a hearing of that branch of defendant’s motion based on the victim’s recantation was an improvident exercise of discretion … . People v Martinez, 2015 NY Slip Op 02286, 4th Dept 3-20-15

 

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References to Defendant’s Prior Bad Acts in a Recorded Phone Call Were Not Inextricably Intertwined with Admissible Statements and Should Have Been Redacted—Conviction Reversed

The Fourth Department determined the inadmissible statements about defendant’s prior bad acts were not inextricably intertwined with the admissible portions of a recorded phone call.  The failure to redact the references to prior bad acts required reversal:

County Court committed reversible error by admitting evidence of prior bad acts of sexual abuse against the victim’s mother and another woman. With the assistance of the police, the victim’s mother recorded a telephone conversation between herself and defendant, and she made repeated references to the prior bad acts throughout the conversation in her attempt to have defendant admit to sexually abusing the victim. We conclude that the court erred in determining that the references to the prior bad acts were admissible because they were inextricably interwoven with the allegations against the victim. In the context of a recorded call, when references to prior bad acts in the conversation are “inextricably interwoven with the crime charged in the indictment,” the entire conversation “may be received in evidence . . . where . . . the value of the evidence clearly outweighs any possible prejudice” … . ” To be inextricably interwoven . . . the evidence must be explanatory of the acts done or words used in the otherwise admissible part of the evidence’ ” … . Here, we conclude that the disputed references were not explanatory of the rest of the conversation. The statements regarding defendant’s prior bad acts were numerous, but they could have been redacted from the transcript of the recorded call without making the statements regarding the victim incomprehensible … . In other words, the statements concerning the victim are “clearly understandable” by themselves and are “not dependent upon” the statements concerning defendant’s prior bad acts … . We further conclude that the prejudicial effect of those numerous references to the prior bad acts outweighed any probative value, and the references therefore should have been redacted … . People v Gibbs, 2015 NY Slip Op 02362, 4th Dept 3-20-15

 

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Criteria for Presentation of Exculpatory Evidence to the Grand Jury Explained (Not Met Here)

The Third Department explained the prosecutor’s obligations re: the presentation of exculpatory evidence to the grand jury. [The decision also includes good discussions the criteria re: (1) shackling defendant during pre-trial hearings, (2) the court’s discretion to deny defendant’s request to call a witness (the victim) at the Wade hearing, and (3) serious prosecutorial misconduct, which are worth reading, although reversible error was not found.]:

With respect to the issue of exculpatory evidence, “[t]he People generally enjoy wide discretion in presenting their case to the [g]rand [j]ury and are not obligated to search for evidence favorable to the defense or to present all evidence in their possession that is favorable to the accused even though such information undeniably would allow the [g]rand [j]ury to make a more informed determination. . . . [Nor] do the People have the same obligation of disclosure at the [g]rand [j]ury stage as they have at the trial stage” … . Here, the exculpatory evidence cited by defendant “bore principally upon the victim’s credibility and, as such, was more appropriately reserved for presentation to the petit jury than to the [g]rand [j]ury” … . People v Goldston, 2015 NY Slip Op 02146, 3rd Dept 3-19-15

 

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