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Suppression Should Have Been Granted—People Failed to Meet Their Burden of Going Forward at Suppression Hearing​

The Fourth Department ruled that suppression of tangible evidence and statements should have been granted because the People failed to meet their burden of going forward at the suppression hearing by demonstrating the legality of the police conduct.  The Fourth Department further determined that the error was not harmless with respect to all but one of the charges:

We agree with defendant, however, that County Court erred in denying that part of his omnibus motion seeking suppression of the physical evidence that was seized from his vehicle and the statements he made to New York State Police Investigators, inasmuch as the People failed to meet their “burden of going forward to show the legality of the police conduct in the first instance” … . * * *
Because the People failed to present evidence at the suppression hearing establishing the legality of the police conduct, defendant’s purported consent to the search of his vehicle was involuntary and all evidence seized from the vehicle as a result of that consent should have been suppressed … .Additionally, defendant’s statements to the police must be suppressed as fruit of the poisonous tree.. .  People v Purdy, KA 12-00534, 488, 4th Dept, 5-3-13

 

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Post-Arrest Exception to Warrant Requirement for Automobile Search Explained

In upholding a search of a purse inside a vehicle after a traffic stop for a seatbelt violation, the Third Department explained the post-arrest exception to the warrant requirement for an automobile search:

Under the automobile exception to the warrant requirement, the police may search an automobile – including containers found inside – when they have arrested one of its occupants and there is “‘probable cause to believe that the vehicle contains contraband, evidence of the crime, a weapon or some means of escape’ “The search, however, need not be limited to items related to the crime for which the occupant is being arrested; it may be instituted when the circumstances provide probable cause to believe that any crime has been or is being committed … .  * * *

The Trooper testified that his search was prompted by his observation of the marihuana stem, the suspicious behavior of the front passenger with respect to the brown purse, the fact that none of the vehicle’s occupants  acknowledged  ownership of such purse and the inconsistent statements made by them regarding their destination. Viewing these circumstances as an integrated whole, we conclude that the Trooper had probable cause to believe that a crime had  been or was  being  committed,  which  justified a search of the vehicle, including the brown purse found therein ….. Since we find no error in the search of the vehicle, we also reject defendant’s claim that the statements he made thereafter should have been suppressed as “fruit of the  poisonous  tree.”  People v Thompson, 104836, 3rd Dept, 5-2-13

SEARCH, SUPPRESSION, SUPPRESS

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Kicking In Window Satisfies Entry Element of Burglary

In this case, the Third Department determined kicking in a window satisfies the “entry” element of burglary and the recording by the police of a phone conversation between the defendant and his sister, although it may have violated the eavesdropping statute, was not an error preserved for appeal:

“[T]he entry element of burglary is satisfied ‘when a person intrudes within a building, no matter how slightly, with any part of his or her body'” …, and kicking in a window constitutes an entry even when the perpetrator then flees without further intruding into the building ….  *  *  *

Defendant contended  that he  had  a reasonable expectation of privacy during this conversation,  and  now  further asserts that  police committed the crime of eavesdropping by recording this conversation (see Penal Law § 250.05).  We agree with Supreme Court’s rejection of the privacy claim, and the unpreserved eavesdropping claim does not warrant modification in the interest of justice ….  People v McFarland, 104491, 3rd Dept, 5-2-13

 

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Post-Arrest Search of Purse Not in Grabbable Area and Not in Vehicle Invalid

The Third Department made a careful analysis of the police actions after receiving an anonymous tip that two women in car were taking drugs.  The court determined the police acted properly in escalating the police intrusion from questioning to arrest, including the search of the car without a warrant.  However, the Third Department held that the post-arrest search of a purse that was not inside the car, and was not in the defendant’s “grabbable area,” was not valid.  In addition the Third Department held the defendant’s answer to a police officer’s question about who owned the purses should have been suppressed, because, at the time of the question, the defendant would not have reasonably believed she was free to go and she had not waived her right to remain silent.  But because her statement was not “involuntary” it would be available for impeachment at trial should she testify.  People v Boler, 104092, 3rd Dept, 5-2-13

SUPPRESSION, SUPPRESS

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Summary Judgment in Neglect Proceeding Based Upon Proceeding Concerning Other Children in Another County Upheld​

In upholding the grant of summary judgment in a neglect proceeding based upon a prior “derivative neglect” determination (based upon drug abuse) with respect to other children in another county, the Third Department wrote:

“Although it is a drastic procedural device, Family Court is authorized to grant summary judgment in a neglect proceeding where no triable issue of fact exists” ….  We note that “evidence of abuse of one child will not, in and of itself, establish a prima facie case of derivative neglect or abuse of another” … . Rather, a prima facie case of “‘[d]erivative neglect is established where the evidence demonstrates an impairment of parental judgment to the point that it creates a substantial risk of harm for any child left in that parent’s care, and the prior neglect determination is sufficiently proximate in time to reasonably conclude that the problematic conditions continue to exist'” … . * * * Here, the prior neglect determination was proximate in time– the order reflecting respondent’s consent to a finding of neglect based upon excessive drug use was entered in January 2012, and petitioner moved for summary judgment in this proceeding less than one month later.  Matter of Alyssa WW … v Cortland County DSS, 514585, 3rd Dept, 5-2-13

 

 

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Evidence of Physical Injury (re Assault) Insufficient

In reversing an Assault 3rd conviction, the Second Department determined, under a weight of the evidence analysis, the proof of “physical injury” was insufficient:

Upon reviewing the record here, we find that the verdict of guilt was against the weight of the evidence, since the evidence presented at trial did not establish, beyond a reasonable doubt, that the complainant sustained a “physical injury” within the meaning of Penal Law § 10.00(9). Physical injury is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). The complainant testified that he sustained bruising and scraping to his right arm, neck, and back, but he did not seek any medical treatment or miss any work. The complainant also provided no details that would corroborate his subjective description of pain, nor did he take any pain medication. Accordingly, there was insufficient evidence that the complainant suffered a “physical injury”…, and the judgment must be reversed and the indictment dismissed. People v Boley, 2013 NY Slip Op 03109, 2nd Dept, 5-1-13

 

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Legal Criteria for Determining Visitation Rights of Incarcerated Father Clarified

The Court of Appeals, in a full-fledged opinion by Judge Pigott, held that there is a rebuttable presumption in favor of a child’s visitation with an incarcerated parent and that denial of such visitation must be supported by “substantial evidence.” In order to clarify the law in this area, the court explained:

A rebuttable presumption that a noncustodial parent will be granted visitation is an appropriate starting point in any initial determination regarding custody and/or visitation. Moreover, the rebuttable presumption in favor of visitation applies when the parent seeking visitation is incarcerated. A parent who is in prison does not forfeit his or her visitation rights by being incarcerated. “[P]etitioner’s incarceration, standing alone, does not make a visitation order inappropriate,” but a demonstration “that such visitation would be harmful to the child will justify denying such a request” …. In deciding whether the presumption is rebutted, the possibility that a visit to an incarcerated parent would be harmful to the child must be considered, together with other relevant facts. Visitation should be denied where it is demonstrated that under all the circumstances visitation would be harmful to the child’s welfare, or that the right to visitation has been forfeited. In speaking of the manner in which the presumption of visitation may be rebutted, the Appellate Division has frequently used the terms “substantial proof” and “substantial evidence.” “[T]he sweeping denial of the right of the father to visit or see the child is a drastic decision that should be based upon substantial evidence” … . This language is intended to convey to lower courts and practitioners that visitation will be denied only upon a demonstration “ that visitation would be harmful to the child “ that proceeds by means of sworn testimony or documentary evidence. Matter of Granger v Misercola, No 72, CtApp, 4-30-13

 

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Insufficient Foundation for Cross Examination About Witness’ Mental Health

In upholding the limits the trial court placed upon the cross-examination of a witness concerning the witness’ mental health history, the Fourth Department wrote:

A defendant may question a witness about his or her mental health or psychiatric history upon a showing that the witness’s “capacity to perceive and recall events was impaired by a psychiatric condition” …or that “such evidence would bear upon [the witness’s] credibility or otherwise be relevant” … . Here, we conclude that defendant failed to make the requisite showing that the witness in fact had a history of mental illness or that such evidence would bear upon her capacity to perceive or recall the events at issue …. Defense counsel’s statement that the witness was “suffering from or being treated for some variety of mental health issue” was speculative…  People v Rivera, KA 08-01758, 203, 4th Dept, 4-26-13

 

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Juvenile Delinquency Petition Jurisdictionally Defective; Insufficient Allegations that Pills Were a Controlled Substance

The Fourth Department determined a juvenile delinquency petition was jurisdictionally defective because it included only the conclusory allegation that the juvenile possessed Adderall without any evidentiary facts to support it:

The petition alleged that respondent knowingly and unlawfully sold a controlled substance, i.e., Adderall (see Penal Law § 220.31).The Court of Appeals has made clear that “[s]tanding alone, a conclusory statement that a substance seized from a defendant was a particular type of controlled substance does not meet the reasonable cause requirement” … . Petitioner must provide factual allegations that establish a reliable basis for inferring the presence.  The petition here is supported by only the conclusory statements of respondent’s classmate and an officer that the substance was Adderall. Their statements are not “supported by evidentiary facts showing the basis for the conclusion that the substance sold was actually[Adderall]” … .  Matter of Brandon A, CAF 12-01651, 231, 4th Dept, 4-26-13

 

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Warrantless Arrest in Home in Absence of Exigent Circumstances Mandated Suppression; Package from Paraguay Addressed to Defendant Properly Opened as a “Border Search”

The Fourth Department determined drugs seized from defendant’s person incident to his arrest should have been suppressed because defendant’s warrantless arrest took place in his home in the absence of exigent circumstances. The court also noted that the search and seizure of a package from Paraguay addressed to defendant did not violate defendant’s constitutional rights because opening the package “constituted a border search … which may be conducted ‘without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country’ “… . People v Boyson, KA 11-01343, 229, 4th Dept, 4-26-13

SUPPRESSION, SEARCH

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