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Defendant’s Reaching for Something in His Pocket, Without More, Did Not Justify Police Pursuit

The Fourth Department, over a dissent, determined that the defendant’s reaching for something in his pocket, without more, did not justify police pursuit. Therefore defendant’s suppression motion was properly granted:

Here, although defendant was reaching for his jacket pocket as he walked or ran away from the second officer, neither officer testified that he saw a bulge or the outline of a weapon in defendant’s jacket. Rather, the second officer believed that defendant had a gun only because, in his experience, if an individual pulled vigorously at an object in his or her pocket, but the object did not come out easily, that object usually was a weapon. While we are mindful that an officer may rely on his or her knowledge and experience in determining whether reasonable suspicion exists, we respectfully disagree with our dissenting colleagues that the above circumstances were sufficient to establish the requisite reasonable suspicion “in the absence of other objective indicia of criminality” … . Here, before pursuing defendant, the second officer knew only that defendant was walking across the street in a high-crime area, in the general vicinity of a house where an unnamed person of unestablished reliability claimed to have seen guns, and that, when the police approached, defendant walked or ran away while grabbing at his jacket pocket. We cannot conclude, based on the totality of those circumstances, that the police were justified in pursuing defendant… . People v Ingram, 1115, 4th Dept 2-14-14

 

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Appellate Review of Conviction Based Upon Circumstantial Evidence Explained

In a full-fledged opinion by Judge Pigott, the Court of Appeals determined there was sufficient circumstantial evidence to support defendant’s conviction, even though innocent explanations for the evidence could be offered. The court explained appellate review of circumstantial evidence:

…[I]t is well-established that “[t]he standard of appellate review in determining whether the evidence before the jury was legally sufficient to support a finding of guilt beyond a reasonable doubt is the same for circumstantial and non-circumstantial cases” … . That standard, of course, is whether, viewing the evidence in the light most favorable to the prosecution, “there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” … . A jury, faced with a case in which the proof of a particular charge, or element thereof, consists entirely of circumstantial evidence, “must exclude to a moral certainty every other reasonable hypothesis” … . But an appellate court's duty, when reviewing the jury's finding, is not to determine whether it would have reached the same conclusion as the jury, with respect to a proposed innocent explanation of the evidence (see Grassi, 92 NY2d at 699 [“Defendant has offered myriad innocent explanations or inferences that could be drawn by a jury to counter this evidence. That, however, is not the legal standard by which this Court is bound for reviewing a sufficiency of the evidence appeal”]). Rather, the appellate court, viewing the evidence in the light most favorable to the People, must decide whether a jury could rationally have excluded innocent explanations of the evidence offered by the defendant and found each element of the crime proven beyond a reasonable doubt. People v Reed, 3, CtApp 2-13-14

 

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Warrantless Entry Into Defendant’s Backyard Constituted a Search/Defendant Had a Legitimate Expectation of Privacy in His Backyard

The Second Department determined that the police officer’s warrantless entry into defendant’s backyard constituted a search because the defendant had an expectation of privacy there. The fact that the officer was aware of an apparently false report of a fire in the area did not justify the application of the emergency doctrine (also analyzed in the decision). The seized evidence (marijuana and a firearm) should have been suppressed:

A search occurs, thereby triggering the protection of the Fourth Amendment to the United States Constitution and article I, section 12 of the New York Constitution, when the police invade an area where a person has a legitimate expectation of privacy … . A legitimate expectation of privacy exists where a person has manifested a subjective expectation of privacy that society recognizes as reasonable … . The curtilage of the home–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 determination of whether an area falls within the home’s curtilage may be made by reference to four factors: “the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by” … .Consideration of these factors in connection with the evidence in this record, including two photographs of a portion of the subject premises, compels us to conclude that the defendant’s rear yard was within the curtilage of the home. The rear yard was in close proximity to the home, shielded from view by those on the street, and within the natural and artificial barriers enclosing the home. This physical arrangement made manifest the defendant’s expectation of privacy, and that expectation is one that society recognizes as reasonable… . People v Theodore, 2014 NY Slip Op 01025, 2nd Dept 2-13-14

 

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Failure to Turn Over Brady Material Until the Day of Trial Required Reversal

The Fourth Department determined the prosecution’s failure to turn over Brady material (911 tape recording) until the day of trial required reversal:

“To establish a Brady violation, a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material . . . In New York, where a defendant makes a specific request for [an item of discovery], the materiality element is established provided there exists a ‘reasonable possibility’ that it would have changed the result of the proceedings” … .

Here, the 911 recording is exculpatory because it includes the voice of an unidentified person referring to a white male suspect, and defendant herein is a black male.  Although defendant received the 911 recording as part of the Rosario material provided to him on the first day of trial, he was not “given a meaningful opportunity to use the exculpatory evidence”… . People v Carver, 1311, 4th Dept 2-7-14

 

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Eugenics Argument Should Be Rejected in a Lead-Paint Poisoning Case/Notice Criteria Explained

In a lead-paint poisoning case, the Fourth Department determined that the trial court’s denial of plaintiff’s motion to preclude the defendant from “claiming socioeconomic, genetic, eugenic or euthenics alternative and/or negating cause[s]” was not appealable. But Justice Fahey made it clear in a concurring opinion that the eugenics argument should be rejected.  In addition the Fourth Department explained the notice criteria in lead-paint cases:

We note at the outset that the appeal from the order insofar as it denied that part of the motion seeking to “preclud[e] defendants’ attorneys and hired experts from claiming socioeconomic, genetic, eugenic or euthenics alternative and/or negating cause[s]” must be dismissed.  “ ‘[A]n evidentiary ruling, even when made in advance of trial on motion papers constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission’ ”… .

[Justice Fahey, in a concurring opinion, wrote:] … I am troubled by the concept that an individual’s family history may be relevant to establishing a baseline for the purpose of measuring cognitive disability or delay.  I acknowledge that an explanation for cognitive problems may arise from one’s personal history, but as a conceptual and general matter I cannot agree with the principle of the eugenics defense that defendants propose here.  To my mind, the family of a plaintiff in a lead paint case does not put its medical history and conditions at issue, and the attempt to establish biological characteristics as a defense to diminished intelligence, i.e., a eugenics argument, cannot be countenanced and is something I categorically reject.

[With respect to notice, the Fourth Department explained:] .  “It is well settled that in order for a landlord to be held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that the landlord had actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, it should have been corrected” … .  Under the circumstances of this case, we conclude that there is an issue of fact whether defendants had notice of the dangerous lead paint condition in the subject apartment “for such a period of time that, in the exercise of reasonable care, it should have been corrected” …  With respect to constructive notice, we note that the Court of Appeals in Chapman v Silber (97 NY2d 9, 15) wrote that constructive notice of a hazardous, lead-based paint condition may be established by proof “that the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before leadbased interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment.” Heyward v Shanne, 1358, 4th Dept 2-7-14

 

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Impeachment of Defendant With a Statement Made by Defendant’s Attorney Deemed Proper

The First Department determined the impeachment of the defendant with a statement made by the defendant’s attorney at arraignment was proper:

The court properly admitted a statement made at arraignment by defendant’s counsel, who was also trial counsel, to impeach defendant after he testified to a different version of the events … At the arraignment, the attorney stated that defendant was the source of the information, and the attorney was clearly acting as defendant’s authorized agent when she provided this information to the arraignment court for her client’s benefit …, notwithstanding her assertion at trial that she had inaccurately conveyed her client’s version of the incident. Introduction of the statements did not require the People to call counsel as a witness against her client … , and the People never sought to do so. People v Ortiz, 2014 NY Slip Op 00616, 1st Dept 2-4-14

 

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Documentary Evidence Can Be Considered In CPLR 3211(a)(7) Motion to Dismiss/Disclaimer Not Specific Enough to Preclude Fraud Cause of Action

In a full-fledged opinion by Justice Renwick, with a concurring opinion by Justice DeGrasse, the First Department determined that arbitration could not be compelled in the absence of a specific, written agreement and a fraud cause of action against Goldman Sachs based upon the sale of mortgage-backed securities to the plaintiff hedge fund could go forward. The court concluded that documentary evidence submitted by the defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) was properly considered by Supreme Court, and the disclaimer relied upon by the defendant was not specific enough to warrant dismissal of the fraud cause of action:

A CPLR 3211(a)(7) motion may be used by a defendant to test the facial sufficiency of a pleading in two different ways. On the one hand, the motion may be used to dispose of an action in which the plaintiff has not stated a claim cognizable at law. On the other hand, the motion may be used to dispose of an action in which the plaintiff identified a cognizable cause of action but failed to assert a material allegation necessary to support the cause of action. As to the latter, the Court of Appeals has made clear that a defendant can submit evidence in support of the motion attacking a well-pleaded cognizable claim … When documentary evidence is submitted by a defendant “the standard morphs from whether the plaintiff has stated a cause of action to whether it has one”… . * * *

The law is abundantly clear in this state that a buyer’s disclaimer of reliance cannot preclude a claim of justifiable reliance on the seller’s misrepresentations or omissions unless (1) the disclaimer is made sufficiently specific to the particular type of fact misrepresented or undisclosed; and (2) the alleged misrepresentations or omissions did not concern facts peculiarly within the seller’s knowledge … . Accordingly, only where a written contract contains a specific disclaimer of responsibility for extraneous representations, that is, a provision that the parties are not bound by or relying upon representations or omissions as to the specific matter, is a plaintiff precluded from later claiming fraud on the ground of a prior misrepresentation as to the specific matter… . Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc, 2014 NY Sliip Op 00587, 1st Dept 1-30-14

 

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Attorney Conflict Waiver Criteria Discussed/Whether Molineux Analysis Should Be Applied to “Prior Bad Thoughts” in Journal Entries Discussed

In two concurring opinions, one by Judge Lippman and the other by Judge Abdus-Salaam, the Court of Appeals determined defendant did not raise an error warranting reversal.

The defendant contended (1) his attorney had personal interests which conflicted with her professional obligations to him, and (2) journal entries which were unrelated to the murder with which defendant was charged should not have been admitted in evidence.

One of defendant’s attorneys was under indictment by the same district attorney’s office for allegedly smuggling drugs to a client in jail. The defendant waived the conflict. The two judges disagreed about what such a conflict waiver should include and agreed the defendant’s conflict waiver was inadequate, but determined reversal was not required because there was an insufficient showing the conflict operated on the defense.

The journal entries were essentially “bad thoughts” about women other than the victim.  Judge Lippman determined that the “prior bad thoughts” should have been analyzed under the Molineux criteria for the admission of evidence of prior crimes and bad acts.  Judge Abdus-Salaam determined that Molineux should not be extended to such “prior bad thoughts,” which should simply be scrutinized under relevancy criteria. Both judges determined the erroneous admission of the “bad thoughts” evidence was harmless error.  People v Cortez, 225, CtApp 1-21-14

 

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Level Three Forcible Stop Not Justified, Convictions Reversed—Prior Arrest of One of the Defendants and the Fact that Both Defendants Were Running While Looking Back Over their Shoulders Was Not Enough to Justify the Forcible Stop

In a two separate full-fledged opinions by Justice Manzanet-Daniels, over dissents, the First Department reversed defendants’ convictions, finding that their motions to suppress should have been granted.  Defendants were stopped after the police observed them running at 4:40 am.  Both men, Thomas and Brown, were looking back over their shoulders as they ran.  Brown (but not Thomas) was known to the police as someone who “engaged in fraudulent accosting in that area…”. The First Department determined the stop was not justified for either defendant:

A level three forcible stop is constitutional only if the police have a “reasonable suspicion that a particular person was involved in a felony or misdemeanor” … . In determining whether the police officers had the requisite reasonable suspicion, only the information known to the officers prior to the forcible stop is relevant … .

The officers’ knowledge of defendant Brown’s prior criminality in the same neighborhood was not sufficient to give rise to reasonable suspicion justifying a level three intrusion as to Brown; perforce, knowledge of Brown’s prior criminality was insufficient to justify a level three intrusion as to [Thomas], who was merely in Brown’s company and was not even known by the officers to have a criminal record. The police sergeant only knew [Thomas] by face, and the officer did not know [Thomas] personally and had never arrested him. … The motion court, in denying [Thomas’] motion to suppress, appears to have endorsed a theory of “guilt by association,” which must vigorously be rejected.

 “[A] stop based on no more than that a suspect has previously been arrested . . . is premature and unlawful and cannot be justified by subsequently acquired information resulting from the stop”… . * * *

The fact that the officers observed [Thomas] and Brown running does not elevate the level of suspicion. Flight, accompanied by equivocal circumstances, does not supply the requisite reasonable suspicion … . The police did not observe conduct indicative of criminality, nor did they even possess information that a crime had occurred in the area. People v Thomas, 2014 NY Slip Op 00291, 1st Dept 1-16-14; same result in People v Brown, 2014 NY Slip Op 00292, 1st Dept 1-16-14

 

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Motion to Vacate a Conviction Can Be Based Upon a Freestanding Claim of Actual Innocence—All Reliable Evidence, Even If Previously Barred at Trial or After Prior Motions to Vacate, May Be Presented at the Hearing

In a comprehensive opinion by Justice Hinds-Radix, the Second Department determined that a CPL 440 motion to vacate a conviction can be based upon a “freestanding claim of actual innocence.”  The defendant, who had brought several unsuccessful 440 motions, was deemed to have presented sufficient evidence of actual innocence to justify a hearing, in which all reliable evidence previously barred could be presented and considered:

The Due Process Clause in the New York State Constitution provides “greater protection than its federal counterpart as construed by the Supreme Court” … . Since a person who has not committed any crime has a liberty interest in remaining free from punishment, the conviction or incarceration of a guiltless person, which deprives that person of freedom of movement and freedom from punishment and violates elementary fairness, runs afoul of the Due Process Clause of the New York Constitution (see NY Const, art I, § 6… ). Moreover, because punishing an actually innocent person is inherently disproportionate to the acts committed by that person, such punishment also violates the provision of the New York Constitution which prohibits cruel and unusual punishments (see NY Const, art I, § 5…). Thus, we conclude that a freestanding claim of actual innocence may be addressed pursuant to CPL 440.10(1)(h), which provides for vacating a judgment which was obtained in violation of an accused’s constitutional rights… . * * *

At the hearing, all reliable evidence, including evidence not admissible at trial based upon a procedural bar—such as the failure to name certain alibi witnesses in the alibi notice—should be admitted … . If the defendant establishes his actual innocence by clear and convincing evidence, the indictment should be dismissed pursuant to CPL 440.10(4), which authorizes that disposition where appropriate. There is no need to empanel another jury to consider the defendant’s guilt where the trial court has determined, after a hearing, that no juror, acting reasonably, would find the defendant guilty beyond a reasonable doubt.  People v Hamilton, 2014 NY Slip Op 00238, 2nd Dept 1-15-14

 

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