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SEARCH INSIDE DEFENDANT’S UNDERWEAR WAS AN ILLEGAL STRIP SEARCH.

The Fourth Department, reversing County Court, determined what amounted to a strip search at a traffic stop was illegal. The officer searched defendant’s underwear and seized drugs which were inside defendant’s underwear:

… [B]ecause the officer intended to transport defendant to the police station to charge him with the traffic infractions, he was justified in conducting a pat search for weapons before placing defendant in the patrol vehicle … . We note that a person’s underwear, “unlike a waistband or even a jacket pocket, is not a common sanctuary for weapons’ ” …  and, in any event, the officer did not pat the outside of defendant’s clothing to determine whether defendant had secreted a weapon in his underwear after defendant leaned forward. Instead, he conducted a strip search by engaging in a visual inspection of the private area of defendant’s body … . …  We conclude that a visual inspection of the private area of defendant’s body on a city street was not based upon reasonable suspicion that defendant was concealing a weapon or evidence underneath his clothing… . People v Smith, 2015 NY Slip Op 09517, 4th Dept 12-23-15

CRIMINAL LAW (SEARCH OF DEFENDANT’S UNDERWEAR AT TRAFFIC STOP ILLEGAL)/SEARCH AND SEIZURE (SEARCH OF DEFENDANT’S UNDERWEAR AT TRAFFIC STOP ILLEGAL)/EVIDENCE (SEARCH OF DEFENDANT’S UNDERWEAR AT TRAFFIC STOP ILLEGAL)/SUPPRESSION (SEARCH OF DEFENDANT’S UNDERWEAR AT TRAFFIC STOP ILLEGAL)

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SEARCH OF DEFENDANT’S JACKET, WHICH WAS NOT ON HIS PERSON, AFTER DEFENDANT WAS HANDCUFFED AND IN CUSTODY VIOLATED THE STATE CONSTITUTION.

The Fourth Department determined the search of the pockets of defendant’s jacket (which was not on his person) after defendant was handcuffed and in custody was illegal under the State Constitution and the drugs found in the pockets should have been suppressed. The court further found that the illegally-seized drugs presented as evidence at trial may have influenced the jury to find an “intent to sell” with respect to the remaining drug count. A new trial was ordered on the remaining count:

After securing the jacket, the officers replaced the handcuffs on defendant and escorted him to the rear seat of their patrol car. One of the officers placed the jacket on the floor of the front seat of the patrol car, where it remained while defendant was transported to the Public Safety Building. Defendant was taken to an interview room, and the jacket was searched in another room at the Public Safety Building. A variety of drugs was discovered in the jacket pockets. * * *

“Under the State Constitution, to justify a warrantless search incident to an arrest, the People must satisfy two separate requirements. The first imposes spatial and temporal limitations to ensure that the search is not significantly divorced in time or place from the arrest . . . The second, and equally important, predicate requires the People to demonstrate the presence of exigent circumstances” … . We conclude that, here, neither requirement is satisfied. At the time the jacket was searched, defendant was handcuffed in an interview room at the Public Safety Building. “[T]he jacket had been reduced to the exclusive control of the police[,] and there was no reasonable possibility that defendant could have reached it” … . Nor was there any exigency that would justify the warrantless search of the jacket in these circumstances … . People v Wilcox, 2015 NY Slip Op 09457, 4th Dept 12-23-15

CRIMINAL LAW (SEARCH OF DEFENDANT’S JACKET VIOLATED STATE CONSTITUTION)/EVIDENCE (SEARCH OF DEFENDANT’S JACKET VIOLATED THE STATE CONSTITUTION)/SEARCH AND SEIZURE (SEARCH OF DEFENDANT’S JACKET VIOLATED STATE CONSTITUTION)/SUPPRESSION (SEARCH OF DEFENDANT’S JACKET VIOLATED STATE CONSTITUTION)

INFORMATION ADEQUATELY ALLEGED CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE; THE APPEARANCE OF BURNT RESIDUE IN A GLASS PIPE, TOGETHER WITH ALLEGATIONS THE OFFICER HAD THE REQUISITE TRAINING AND EXPERIENCE SUFFICIENT.

The Court of Appeals determined the heightened requirements for a misdemeanor information were met by the information charging defendant with criminal possession of a controlled substance seventh degree:

Here, …  the information was facially sufficient because it contained adequate allegations that the officer had the requisite training and experience to recognize the substance in defendant's possession as a controlled substance and that the officer reached his conclusion about the nature of the substance based on its appearance and placement within a favored apparatus of drug users, a glass pipe.

That the substance at issue here was a burnt residue does not dictate a different result. …[A]n information's description of the characteristics of a substance combined with its account of an officer's training in identifying such substances, the packaging of such substance and the presence of drug paraphernalia, can support the inference that the officer properly recognized the substance as a controlled substance. People v Smalls, 2015 NY Slip Op 09188, CtApp 12-15-15

CRIMINAL LAW (SUFFICIENCY OF MISDEMEANOR INFORMATION, POSSESSION OF CONTROLLED SUBSTANCE)/MISDEMEANOR INFORMATION (SUFFICIENT ALLEGATION OF POSSESSION OF A CONTROLLED SUBSTANCE)/POSSESSION OF A CONTROLLED SUBSTANCE (SUFFICIENCY OF MISDEMEANOR INFORMATION)

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Evidence of Constructive Possession of Contraband Insufficient, Convictions Reversed

The defendant was convicted of possession of marijuana and weapons found in a bedroom of an apartment in which defendant and several others were present. The Second Department determined there was insufficient evidence that defendant constructively possessed the contraband and reversed:

The element of constructive possession may be established, inter alia, where it is shown that the defendant exercised ” dominion or control'” over the property by exercising a sufficient level of control over the place where the contraband is found or over the person from whom the contraband is seized … . “Constructive possession may be established by direct evidence or by circumstantial evidence with inferences drawn from the facts presented in the case” … . “Where . . . the prosecution relies wholly upon circumstantial evidence to establish the guilt of the accused, the circumstances must be satisfactorily established and must be of such a character as, if true, to exclude to a moral certainty every other hypothesis except that of the accused’s guilt” … .

Viewing the evidence in the light most favorable to the People …, it was legally insufficient to establish the possession elements of the weapons possession and marijuana possession counts, as charged here. Although the defendant was present in the apartment when the search warrant was executed, “it is settled that one’s mere presence in an apartment or house where contraband is found does not constitute sufficient basis for a finding of constructive possession” … . There was no evidence specifically connecting the defendant to the bedroom where the contraband was found, or otherwise connecting the defendant to the contraband. Under these specific circumstances, the People failed to prove that the defendant exercised dominion and control over the contraband, and therefore failed to prove the possession element of the counts as charged … . People v Brown, 2015 NY Slip Op 08428. 2nd Dept 11-18-15

 

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Pedigree Question “Where Do You Reside,” Under the Circumstances, Was Designed to Elicit an Incriminating Response, the Answer, Therefore, Should Have Been Suppressed; New Trial on Possessory Counts Ordered

The Fourth Department ordered a new trial on the drug possession and drug paraphernalia counts. Defendant was convicted based upon a “constructive possession” theory (i.e., possession of contraband based upon defendant’s dominion and control over the premises where the contraband is found). As police officers were conducting a search, and as defendant was handcuffed and lying on the floor, an officer asked defendant where he resided. Defendant answered “here.” The People relied heavily on defendant’s answer to prove constructive possession of contraband found on the premises. Under these circumstances, the pedigree question (where do you reside) was designed to elicit an incriminating response and, because the statement was “unwarned,” the answer should have been suppressed:

Generally, a defendant’s answer concerning his address, when “elicited through routine administrative questioning that [is] not designed to elicit an incriminating response” … , will be considered pedigree information not subject to CPL 710.30 notice requirements even if the statement later proves to be inculpatory … . That is “[b]ecause responses to routine booking questions—pedigree questions . . . —are not suppressible even when obtained in violation of Miranda [and, therefore, a] defendant lacks a constitutional basis upon which to challenge the voluntariness of his [or her] statement” … . “[W]here there is no question of voluntariness, the People are not required to serve defendant with notice” … .

As the Court of Appeals recognized, however, “the People may not rely on the pedigree exception if the questions, though facially appropriate, are likely to elicit incriminating admissions because of the circumstances of the particular case” (id.). Although the question concerning defendant’s address appears to have been a facially appropriate question, we conclude that, under the circumstances of this case and, more specifically, under the circumstances in which the question was asked, the question was likely to elicit an incriminating admission and had a “necessary connection to an essential element of [the possessory] crimes charged” under Penal Law §§ 220.16 and 220.50 (2) … . We agree with defendant that the error in admitting that statement cannot be considered harmless insofar as it relates to the possessory counts of the indictment inasmuch as the People relied heavily on that statement to establish defendant’s constructive possession of the drugs and drug paraphernalia … . People v Slade, 2015 NY Slip Op 08252, 4th Dept 11-13-15

 

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Possession of Modest Amount of Drugs Is Not Sufficient to Make Out a Prima Facie Case of an Intent to Sell

The Fourth Department determined the defendant’s possession of less than an ounce of drugs was not sufficient to make out a prima facie case of defendant’s intent to sell:

We reject the People’s contention that the evidence was sufficient to make out a prima facie case that defendant possessed the cocaine with the intent to sell it. Although “defendant’s possession of a substantial’ quantity of drugs can be cited as circumstantial proof of an intent to sell . . . , it cannot be said as a matter of law that the quantity of uncut and unpackaged drugs possessed in this case permitted an inference that defendant intended to sell them. More than mere possession of a modest quantity of drugs, not packaged for sale and unaccompanied by any other saleslike conduct, must be present for such an inference to arise” … .Consequently, the court properly concluded that the evidence was insufficient to establish that defendant possessed a controlled substance with intent to sell it … . People v Nellons, 2015 NY Slip Op 08305, 4th Dept 11-13-15

 

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Improper Evidence of Uncharged Offenses, a Police Officer’s Vouching for the Reliability and Credibility of the People’s Central Witness, and the Court’s Failure to Give Limiting Instructions to the Jurors after Sustaining Objections to Improper Testimony Deprived Defendant of a Fair Trial

The Third Department reversed defendant’s conviction based upon several errors including the improper presentation of evidence of uncharged crimes attributed to the defendant and a police officer’s vouching for the reliability and credibility of the confidential informant (CI), upon whose testimony the People’s case depended. The jury heard evidence of defendant’s participation in a drug offense identical to that for which he was on trial. Even though objection to the testimony was sustained and the testimony struck, no limiting instructions were given to the jury. Evidence of defendant’s sitting at a table on which were large amounts of heroin and crack cocaine was also improperly presented. Objection to that testimony was overruled. With respect to the police officer’s vouching for the credibility and reliability of the CI, the defense objection to that testimony was sustained, but no curative instructions were given to the jury:

At trial … the CI testified that defendant was not only present during [a] controlled purchase of crack cocaine, but that he had also participated in the transaction by providing the actual drugs. County Court denied defendant’s prompt motion for a mistrial, but otherwise sustained his objection and struck this portion of the CI’s testimony, without further limiting instructions to the jury. In our view, this revelation was highly prejudicial, as it related to a recent uncharged crime that was nearly identical to the sale for which defendant was on trial … . Shortly thereafter, the CI recounted that, upon entering the apartment on October 9, 2012, he had observed defendant sitting at a table “with large amounts of heroin and crack cocaine in front of him.” Although no reference to “heroin” was included in the People’s Molineux proffer, or otherwise previously disclosed, the court overruled defendant’s objection, permitting further testimony from the CI about the presence of heroin. Because defendant was not charged with possession or sale of heroin, it cannot be said that this evidence was directly related to or in any way necessary to explain his alleged possession and sale of crack cocaine such that it was inextricably interwoven into the CI’s narrative … . Significantly, the court did not attempt to cure the prejudice arising from the CI’s improper testimony by issuing an instruction either at the time of defendant’s objection or during the jury charge … . * * *

Further prejudice resulted from the People’s redirect examination of [officer] Gillis, who stated that the CI was “very reliable and very trustworthy.” After County Court overruled defendant’s objection, and characterized the testimony as “opinion,” Gillis elaborated that the CI had “never given [him a] reason to not believe anything that [the CI] is telling [him].” Allowing Gillis to vouch for the CI’s credibility was clearly improper … . The effect was compounded by the People’s summation, wherein the prosecutor surmised that law enforcement had used the CI for several years because of his reliability … . While we recognize that County Court sustained defendant’s objection, no curative instruction was issued, and we remain concerned that the prosecutor’s remark amplified the effect of Gillis’ improper vouching … . People v Nicholas, 2015 NY Slip Op 06269, 3rd Dept 7-23-15

 

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Concurrent Inclusory Counts Dismissed and Sentences Vacated—Defense Counsel’s Failure to Request that the Greater and Lesser Counts Be Submitted to the Jury in the Alternative, Although a Clear-Cut Error, Did Not Deprive the Defendant of Meaningful Representation

The Third Department determined defendant was entitled to dismissal of the inclusory concurrent counts and the vacation of the sentences imposed thereon, but was not entitled to reversal based upon defense counsel’s failure to request the that the inclusory concurrent counts be presented to the jury in the alternative (conviction on the greater count is deemed a dismissal of every lesser count).  Although the omission was clear-cut error on defense counsel’s part, the error did not deprive defendant of effective assistance:

…. [T]he two counts of criminal possession of a controlled substance in the seventh degree are inclusory concurrent counts of criminal possession of a controlled substance in the third degree … . “When inclusory counts are submitted for consideration, they must be submitted in the alternative since a conviction on the greater count is deemed a dismissal of every lesser count” … . Therefore, defendant’s misdemeanor convictions of criminal possession of a controlled substance in the seventh degree must be reversed and the concurrent, one-year sentences vacated … .

We are not persuaded, however, that defense counsel’s failure to request an alternative charge on these counts “elevates this case to the level of one of those rare cases where a single lapse can constitute ineffective assistance of counsel” … . Although counsel erred on a clear-cut issue …, such an error must be viewed in the context of the entire representation, particularly in light of the other charges that defendant faced. Most importantly here, counsel’s error appears to arise from his failure to properly consider the misdemeanor charges of criminal possession of a controlled substance in the seventh degree. While defendant was certainly entitled to representation on those charges, defendant had previously been convicted of a felony drug offense and faced felony charges of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. Given the vastly disparate potential outcomes related to the felony and misdemeanor offenses with which defendant was charged, particularly in light of his prior felony drug conviction …, and absent any proof that counsel’s failure was greater than that of failing to properly attend to the misdemeanor charges, we do not find that defendant was deprived of meaningful representation … . People v Vanguilder, 2015 NY Slip Op 06175, 3rd Dept 7-16-15

 

Defendant Entitled to Jury Instruction on Agency Defense Re: Drug Sale and Possession Charges

The Third Department determined defendant was entitled to a jury instruction on the agency defense to drug sale and possession charges. Because the request for the instruction was denied, the defendant was granted a new trial.  The Third Department explained the relevant facts and law:

“Under the agency doctrine, ‘a person who acts solely as the agent of a buyer in procuring drugs for the buyer is not guilty of selling the drug to the buyer, or of possessing it with intent to sell it to the buyer'” … . “The issue of whether a defendant is criminally responsible as a seller, or merely a purchaser doing a favor for a friend, is generally a factual question for the jury to resolve on the circumstances of the particular case” … . “A trial court must grant a request for an agency charge when, viewed in the light most favorable to the defendant, some evidence, however slight[,] supports the inference that the [defendant] was acting, in effect, as an extension of the buyer” … .

Here, defendant did not initiate the subject transactions. Rather, the CI, who was acquainted with defendant, contacted him to initiate both buys. Before the first buy, defendant said to the CI, with regard to the supplier, “when she meets me and you she’s going to sell us the eight,” which shows that defendant aligned himself with the CI on the buyer’s side of the transaction. At the time of the first buy, defendant and the CI met in defendant’s driveway and talked about defendant’s girlfriend, car and job while they waited for the supplier to arrive with the drugs. When the supplier arrived, the CI asked defendant to get the drugs from her so that he could see them before he paid, and defendant complied. Defendant retrieved nine bags of heroin from the supplier, explaining to the CI that there were “nine here cause [he was] gonna get one too”; again, he was identifying himself on the buyer’s side of the transaction. Defendant’s girlfriend testified that he did not benefit from the sales to the CI. People v Nowlan, 2015 NY Slip Op 05973, 3rd Dept 7-9-15

 

Defendant’s Statement Was Made In Response to the Functional Equivalent of a Question Designed to Elicit an Incriminatory Response and Should Have Been Suppressed

The Third Department determined a statement made by the defendant after he had been arrested and was being transported to the police station was not “spontaneous” (as County Court found) and should have been suppressed. At the arrest scene one of defendant’s “associates” indicated defendant might have drugs in his anal cavity.  In the police car, an officer said to the defendant that he hoped defendant did not have any more drugs on him and the defendant said he probably did.  During a subsequent search drugs were found in defendant’s anal cavity. Although defendant’s statement indicating he probably had more drugs on him should have been suppressed because it was made in response to a police statement designed to elicit an incriminating response, the drugs themselves were not subject to suppression.  The Third Department determined the search which turned up the drugs was not triggered by the statement:

The admissibility of a statement made by a defendant in custody depends on whether it was “the product of ‘express questioning or its functional equivalent'” … . The operative question is whether, in context, “the officer should have known that his statement was ‘reasonably likely to evoke an incriminating response from the suspect'” … . In our view, County Court erred in concluding that the inculpatory statement was admissible because it was simply a spontaneous response to a declaration by [the officer]. For a statement to be spontaneous, it must be self-generated without “inducement, provocation, encouragement or acquiescense, no matter how subtly employed” … . Coming on the heels of [the officer’s] explanation that defendant would be searched as part of the booking process, and having been informed by the passenger that defendant may have hidden additional drugs on his person, we find [the officer’s] statement to be the functional equivalent of a question intended to elicit an incriminating response … . Since defendant was in custody and had not been given Miranda warnings, the statement should have been suppressed as involuntary. People v George, 2015 NY Slip Op 03574, 3rd Dept 4-30-15

 

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