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Criteria for Strip and Cavity Search Met

The Third Department determined the circumstances justified a strip search and a visual cavity search of the defendant. The court explained the relevant criteria:

…[T]he principles governing strip searches and body cavity examinations are set forth in People v Hall (10 NY3d 303 [2008], cert denied 555 US 938 [2008]). Insofar as is relevant here, “a strip search must be founded on a reasonable suspicion that the arrestee is concealing evidence underneath clothing and the search must be conducted in a reasonable manner. To advance to . . . a visual cavity inspection, the police must have a specific, articulable factual basis supporting a reasonable suspicion to believe the arrestee [has] secreted evidence inside a body cavity and the [ensuing] visual inspection must be conducted reasonably” … . Although the police cannot routinely subject all drug arrestees to visual cavity inspections, the police are permitted — in the context of formulating the particularized factual basis required for such inspections — “to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person”… . People v Cogdell, 2015 NY Slip Op 106031, 3rd Dept 3-12-15

 

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Failure to Transcribe Portion of Voir Dire Not Reversible Error—Criteria Explained

The Third Department determined the failure to transcribe a portion of the voir dire did not require reversal (because the defendant did not request that it be transcribed and could show no prejudice).  The court explained the relevant analysis:

“Although we agree that verbatim recordation of the trial proceedings is the better practice, unless waived, the case law makes clear that the absence of a stenographic record does not, per se, require reversal of a defendant’s conviction” … . “‘Rather, a defendant must show that a request was made that the voir dire proceedings be recorded, the request was denied, and the failure to record the proceedings prejudiced him or her in some manner'” … . Here, voir dire was recorded, except one portion during which each counsel exercised peremptory challenges to the first panel of jurors. However, defendant did not request that this part (or any part) of voir dire be recorded … and, importantly, he does not assert that an incorrect ruling or any prejudicial error occurred during the omitted portion … . People v Chappelle, 2015 NY Slip Op 105486, 3rd Dept 3-12-15

 

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“Constructive Possession” Theory Applied to Weapon Deemed to Have Been Discarded by Defendant During a Police Pursuit

The Third Department determined there was sufficient evidence defendant constructively possessed a weapon which was found near him after the police saw him discard something during a pursuit:

Constructive possession can be demonstrated where there is evidence — either direct or circumstantial — that defendant exercised “dominion and control over the weapon or the area in which it was found” … . The People presented testimonial evidence of several police officers, including Gregory McGee, who averred that, after hearing a gun shot during his overnight shift, his investigation led him to observe defendant turning a street corner on a bicycle. When defendant saw McGee’s marked police car, he became visibly nervous and immediately clutched the right side of his waistband. Believing that defendant was armed, McGee exited his vehicle, drew his firearm and ordered defendant to show his hands. Defendant refused to comply with the directive and a physical encounter ensued. As McGee holstered his handgun and attempted to grab his taser, defendant fled on his bicycle. McGee then radioed for assistance while pursuing defendant on foot and a responding police officer, Jason Seward, pulled his patrol car onto the sidewalk in order to block defendant. McGee testified that, as defendant ran around the patrol car, he observed defendant’s hand emerge from under his sweatshirt and throw something, which created a sound of “metal hitting the ground.” As Seward continued to pursue defendant, McGee found a handgun on the sidewalk a few feet from Seward’s patrol car. Shortly thereafter, defendant was apprehended and the handgun was later confirmed to contain three rounds of “live” ammunition and one spent shell casing, indicating that the handgun had been fired once.

… “[V]iewing the evidence in a neutral light and according deference to the jury’s credibility determinations,” we find that defendant had constructive possession of the gun such that the conviction was not contrary to the weight of the evidence … . People v Butler, 2015 NY Slip Op 105216, 3rd Dept, 3-12-15

 

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Corroboration Requirements for Child’s Out-of-Court Statements Described

The Second Department agreed with Family Court’s ruling that the child’s out-of-court statements were sufficiently corroborated to be allowed in evidence.  The court explained the analytical criteria:

“A child’s prior out-of-court statements may provide the basis for a finding of abuse, provided that these hearsay statements are corroborated, so as to ensure their reliability'” … . “Any other evidence tending to support the reliability of the previous statements . . . shall be sufficient corroboration” (Family Ct Act § 1046[a][vi]). ” The Family Court has considerable discretion in deciding whether a child’s out-of-court statements alleging incidents of abuse have been reliably corroborated'” … . “The Family Court’s credibility findings must be accorded considerable deference on appeal” … . Matter of Zeeva M. (Abraham M.), 2015 NY Slip Op 01948, 2nd Dept 3-11-15

 

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Search of Backpack Which Was No Longer In Defendant’s Possession, After Defendant Had Been Handcuffed, Justified by Exigent Circumstances

In finding the suppression motion was properly denied. The Second Department explained the law which justified the pre-arrest detention of the defendant and the search of defendant’s backpack after defendant was handcuffed. The officer received a report of a shooting at a residence. The officer knew the defendant lived at the residence and saw blood on defendant’s clothes.  The defendant was handcuffed and his backpack was placed on a car about three feet away.  After the defendant was handcuffed he told the officer his brother had been shot and the guns were in the backpack.  At that point the officer had probable cause to arrest for criminal possession of a weapon and could search the backpack incident to arrest due to exigent circumstances:

Supreme Court properly denied that branch of his omnibus motion which was to suppress physical evidence recovered incident to his arrest. “On a motion to suppress physical evidence, the People bear the burden of going forward to establish the legality of police conduct in the first instance” … . “Under the State Constitution, an individual’s right of privacy in his or her effects dictates that a warrantless search incident to arrest be deemed unreasonable unless justified by the presence of exigent circumstances” … . For “compelling reasons,” including the safety of the officers or the public, “a search not significantly divorced in time or place from the arrest’ may be conducted even though the arrested person has been subdued and his closed container is within the exclusive control of the police” … . People v Alvarado, 2015 NY Slip Op 01955, 2nd Dept 3-11-15

 

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Police Were Not Justified In Entering the Curtilage of Defendant’s Home (By Climbing a Fence) After Defendant Ignored the Officers’ Command to “Stop”

The Second Department determined evidence seized after officers climbed a fence to gain access to defendant’s property was properly suppressed. The officers had enough information to approach the defendant, who was in his yard, to request information, but did not have sufficient information to justify entering defendant’s property after defendant dropped a bag and went into his house, ignoring the officers’ request to stop:

The curtilage of the home, defined as the area immediately surrounding and associated with the home or the area that is related to the intimate activities of the home—is part of the home itself … . The Supreme Court properly determined that the defendant’s driveway and front yard, which were completely fenced-in and located in close proximity to his home, were within the curtilage of his home. The defendant manifested his expectation of privacy and that expectation is one that society recognizes as reasonable … . Further, while the officers had an objective, credible reason to approach the defendant to request information … , the defendant’s conduct of dropping the bag, which produced “a heavy thud or a clank,” and ignoring the officer’s request to stop did not escalate the encounter to justify pursuit … . People v Morris, 2015 NY Slip Op 01967, 2nd Dept 3-11-15

 

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Denial of Guilt to Department of Probation (DOP) Was Not a Violation of a Condition that Defendant Cooperate With the DOP

The Second Department determined defendant’s denial of guilt to the Department of Probation (DOP) prior to sentencing was not a violation of a condition that he cooperate with the DOP.  The sentencing court therefore was not justified in imposing an enhanced sentence:

As a condition of the court’s promised sentence, the defendant agreed (1) to cooperate with the Department of Probation (hereinafter the DOP), (2) to appear on any scheduled court dates, and (3) to remain arrest free. The defendant appeared for his interview with the DOP and answered all of the questions asked, but in doing so, he also denied his guilt. However, he did not express any intention to withdraw his plea of guilty. At sentencing, the defendant contended that he did not deny his guilt to the DOP. Nonetheless, the court found that the defendant violated the “cooperation” condition by lying to the DOP. The court then imposed an enhanced sentence without first giving the defendant an opportunity to ask to withdraw his plea of guilty.

Although the violation of an explicit and objective plea condition that was accepted by the defendant can result in the imposition of an enhanced sentence …, here, the defendant’s denial of his guilt to the DOP was not a violation of the condition that he cooperate with the DOP … . While a court is free to impose a condition requiring a defendant not to deny his or her guilt when interviewed by the DOP, the Supreme Court in the instant matter did not impose such a condition … . Accordingly, it erred in imposing an enhanced sentence based on its conclusion that the defendant violated a condition of the plea of guilty… . People v Pianaforte, 2015 NY Slip Op 01969, 2nd Dept 3-11-15

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Child’s Disclosure of Sexual Abuse One Year After Abuse Ended Properly Admitted Under the “Prompt Outcry” Exception to the Hearsay Rule

The Second Department determined a child’s disclosure of sexual assault one year after the abuse ended was properly admitted under the “prompt outcry” exception to the hearsay rule:

Evidence that a sexual assault victim promptly complained about the incident is admissible to corroborate the allegation that an assault took place … . “An outcry is prompt if made at the first suitable opportunity’ …, and is a relative concept dependent on the facts’ … . “There can be no iron rule on the subject. The law expects and requires that it should be prompt, but there is and can be no particular time specified” … . “[W]hat might qualify as prompt in one case might not in another” … .

Here, the trial court permitted testimony concerning the victim’s first “outcry” to a friend which occurred approximately one year after the abuse had ended … . Under all of the circumstances of this case, including the victim’s young age, and the fact that she lived with the defendant during the relevant period, the trial court properly admitted evidence of the victim’s outcry to her friend … . People v Caban, 2015 NY Slip Op 01959, 2nd Dept 3-11-15

 

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Delay In Coming Forward With Defendant’s Alibi Was a Proper Subject of Cross-Examination After Foundational Requirements Were Met

The Second Department determined defendant’s girlfriend was properly cross-examined about her delay in coming forward with defendant’s alibi.  The prosecutor laid the proper foundation for the cross-examination:

…[T]he People properly elicited testimony from his girlfriend during cross-examination regarding her delay in coming forward to the authorities with certain exculpatory information. Before a defense witness may be cross-examined regarding his or her failure to come forward with exculpatory information at an earlier date, certain foundational requirements must first be met … . Here, the prosecutor laid the necessary foundation prior to cross-examining the defendant’s girlfriend about her apparent delay in informing law enforcement authorities of the defendant’s alibi. The record indicates that, during a bench conference, it was ascertained that the defendant’s girlfriend had not refrained from speaking to authorities under the advice of defense counsel. Moreover, the court instructed the jury that the defendant’s girlfriend had no obligation to volunteer exculpatory information to law enforcement authorities. Under these circumstances, the People properly elicited evidence during the cross-examination of the defendant’s girlfriend that she delayed in contacting the authorities with exculpatory evidence … . People v Webster, 2015 NY Slip Op 01974, 2nd Dept 3-11-15

 

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Rebuttal Evidence Re: a Defense that Was Not Asserted Should Not Have Been Allowed (Harmless Error)/Partial Closure of Courtroom During Testimony of Undercover Officers Proper

The First Department, over a dissent, determined that, although Supreme Court erred when it allowed the prosecution to reopen its case to present rebuttal evidence, the error was harmless in this bench trial. Defense counsel had mentioned an agency defense to the drug-sale charge, but then explained that the only defense raised at trial was defendant’s complete noninvolvement. Under those circumstances evidence rebutting the agency defense, which was never asserted, should not have been allowed. The First Department also held that Supreme Court properly closed the courtroom during the testimony of undercover officers.  With regard to the partial closure of the courtroom, the First Department wrote:

The Hinton hearing court, which closed the courtroom for the testimony of two undercover officers and which offered to permit family members or other persons designated by defendant to enter, properly exercised its discretion in rejecting defense counsel’s proposal that a court officer screen members of the general public who sought to enter during the testimony. The court concluded that this suggestion would have been impracticable because there was no additional court officer available to be posted outside the courtroom, and because in any event the officer would frequently have to interrupt the testimony to report the presence of persons seeking to enter. Therefore, under the circumstances presented, defendant’s proposal was not a “reasonable alternative[] to closing the proceeding” … . People v Mallard, 2015 NY Slip Op 01882, 1st Dept 3-10-15

 

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