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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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Insufficient Evidence Defendant Shared the Intent of the Seller of Heroin—Conviction Under an “Acting in Concert” or “Accomplice” Theory Reversed

Using its “interests of justice” jurisdiction over an unpreserved error, the Fourth Department determined the evidence was insufficient to support defendant’s conviction under an “acting in concert” or “accomplice” theory.  There was insufficient evidence the defendant shared the intent to sell heroin:

“To establish an acting-in-concert theory in the context of a drug sale, the People must prove not only that the defendant shared the requisite mens rea for the underlying crime but also that defendant, in furtherance of the crime, solicited, requested, commanded, importuned or intentionally aided the principal in the commission of the crime . . . The key to our analysis is whether a defendant intentionally and directly assisted in achieving the ultimate goal of the enterprise–—the illegal sale of a narcotic drug” … .

We conclude that the evidence is legally insufficient to establish that defendant acted in concert with the codefendant to sell heroin to the buyer inasmuch as he did nothing “more than simply direct the [buyer] to a location where [she] could purchase [heroin]” … . “While this evidence certainly demonstrated that the defendant was able to identify a local purveyor of narcotics, it did not show . . . that he shared the seller’s intent to bring the transaction about . . . [Indeed], by merely responding to the [buyer’s] inquiry as to who had drugs for sale, the defendant did nothing to solicit or request, much less demand[,] importune[, or assist in] the illicit sale” … . We therefore reverse the judgment of conviction and dismiss the indictment. People v Davila, 2015 NY Slip Op 00016, 4th Dept 1-2-15

 

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Defendant’s “Agency” Defense to a Drug Sale Addressed Under a “Weight of the Evidence” Review (Defense Was Disproved Beyond a Reasonable Doubt)

The Third Department noted that, although the defendant did not preserve his claim his conviction was not supported by legally sufficient evidence, an appellate court will review whether a conviction is supported by proof beyond a reasonable doubt under a “weight of the evidence” review.  The Third Department then went on to find the defendant’s agency defense had been disproved by the People beyond a reasonable doubt.  The court explained the agency defense:

To the extent that defendant contends that the underlying conviction is not supported by legally sufficient evidence, we note that defendant’s generalized motion to dismiss at the close of the People’s case was insufficient to preserve his present claim, i.e., that the People failed to disprove his agency defense beyond a reasonable doubt … . Additionally, defendant, who testified upon his own behalf, failed to renew this motion at the close of all proof; accordingly, defendant’s challenge to the legal sufficiency of the evidence is not preserved for our review … . “That said, our weight of the evidence [analysis] necessarily involves an evaluation of whether all elements of the charged crime[s] were proven beyond a reasonable doubt at trial” … .

Insofar as is relevant here, “[a] person is guilty of criminal sale of a controlled substance in the third degree when he or she knowingly and unlawfully sells . . . a narcotic drug” (Penal Law § 220.39 [1]). Defendant does not dispute that he sold a narcotic drug, i.e., cocaine, to the undercover deputy on the dates in question, but contends that he acted solely as the deputy’s agent in this regard and, at best, is guilty of criminal possession of a controlled substance … . Under the agency doctrine, a person who procures drugs solely as the agent of a buyer is not guilty of either criminal sale or of possession with the intent to sell … . “[W]hether the defendant was a seller, or merely a purchaser doing a favor for a friend, is generally a factual question for the [factfinder] to resolve on the circumstances of the particular case” … . Such a determination, in turn, may hinge upon a number of factors, including “the nature and extent of the relationship between the defendant and the buyer, whether it was the buyer or the defendant who suggested the purchase, whether the defendant has had other drug dealings with this or other buyers or sellers and, of course, whether the defendant profited, or stood to profit, from the transaction” … . Notably, profit does not necessarily equate with pecuniary gain; indeed, this Court has recognized that a defendant may stand to benefit from the underlying sale when such transaction was undertaken in the hopes of receiving either assistance in getting a job … in exchange for obtaining the requested drugs. People v Robinson, 2014 NY Slip Op 08672, 3rd Dept 12-11-14

 

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Heroin Upon Which Defendant Overdosed in His Cell Constituted “Dangerous Contraband”—Conviction for Promoting Prison Contraband in the First Degree Was Not Against the Weight of the Evidence

The Third Department determined defendant’s conviction for promoting prison contraband in the first degree was supported by the evidence.  The contraband, heroin, was “dangerous” with the meaning of the statute because it endangered the safety of the defendant, who overdosed on the drug in his cell:

As noted by County Court, contraband will be considered dangerous under the statutory definition as long as it endangers the safety of “any person” (Penal Law § 205.00 [4]). Inasmuch as the heroin possessed by defendant clearly endangered his own safety, and he freely admitted that he used it to harm himself, there was legally sufficient evidence from which the jury could reasonably conclude that it constituted dangerous contraband and we do not find that the verdict was against the weight of the evidence… . People v Verley, 2014 NY Slip Op 07208, 3rd Dept 10-23-14

 

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“Drug Factory” Presumption re: Possession of Drugs to Which the Defendant Is In “Close Proximity” Does Not Apply to A Defendant Who Is Arrested Outside the Building Where the Drugs Are Located and Who Was Not Trying to Escape/Where a Jury Is Instructed It Can Consider Two Different Theories of Possession, and One of Those Theories Should Not Have Been Available for the Jury’s Consideration, the Relevant Convictions Must Be Reversed—the Jury Could Have Based Its Verdict on the Erroneously-Charged Theory

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that the trial judge should not have allowed the jury to consider whether the defendant, who was arrested outside the apartment, was in “close proxity” to the cocaine in the apartment.  Penal Law 220.25(2) creates a presumption that persons in “close proximity” to drugs that are being mixed or packaged possesses those drugs (the so-called “drug factory” presumption). The trial judge also instructed the jury they could consider whether the defendant constructively possessed the drugs by virtue of his control over the area where the drugs were found.  Because it can not be determined whether the jury based its verdict on the erroneous “drug factory” charge or the correct “constructive possession” charge, the relevant convictions were reversed and a new trial ordered.  The Court of Appeals went through all the scenarios which have been held to constitute “close proximity” to drugs and concluded that where a defendant is outside the structure where the drugs are located and is not in the process of fleeing, the “drug factory” presumption does not apply:

…[T]he presumption may apply even in cases where a defendant has exited the premises, when the defendant is caught in immediate flight, or apprehended fleeing the premises “upon the sudden appearance of the police” … . We need not determine on this appeal how far from the premises defendant may be apprehended and still be subject to the presumption. We note, however, that the boundary in these cases is not limitless. Suffice it to say, that each incremental enlargement of the distance between the defendant and the premises where the drugs are found tests the underlying justification of the presumption, and makes it susceptible to challenge. …

Applying these principles to the record before us, we conclude that defendant was not in close proximity to the drugs when they were found within the meaning of section 220.25(2). He was not in the room where the drugs were found, in an adjacent room within the same apartment, or in a “closet, bathroom or other convenient recess[].” Nor was he found immediately outside the premises while trying to escape.  People v Kims, 2014 NY Slip Op 07196, CtApp 10-23-14

 

Conviction on a Lesser Inclusory Count Can Not Stand Even In the Absence of Preservation

The Fourth Department determined defendant’s conviction of criminal possession of a controlled substance in the seventh degree could not stand because that charge was a lesser inclusory count of another count of which the defendant was convicted (criminal possession of a controlled substance in the fifth degree):

Although defendant failed to preserve this contention for our review, the People … correctly concede that “we may review the issue as a matter of law despite defendant’s failure to raise it in the trial court” … . People v Roberts, 2014 NY Slip Op 06707, 4th Dept 10-3-14

 

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Decision Offers a Rare, Detailed Discussion of the Probable-Cause Analysis of a Search Warrant Application Which Included Hearsay from Confidential Informants (Analyzed Under the Aguilar-Spinelli Reliability Tests), Controlled Buys and Surveillance

In a rare, detailed analysis of the sufficiency of a search warrant application which relied on confidential informants, surveillance, controlled buys, and hearsay found sufficient under the Aguilar-Spinelli tests, the Fourth Department determined the motion to suppress was properly denied.  The decision is notable for the depth of discussion and the full range of issues involved in the analysis of a search warrant application. People v Myhand, 2014 NY Slip Op 05742, 4th Dept 8-8-14

 

Nature of a Repugnant Verdict Explained—Here the Verdict Convicting Defendant of Criminal Possession of a Controlled Substance and Acquitting Defendant of Criminal Sale of a Controlled Substance Was Not Repugnant—The Proof at Trial Plays No Part in the Repugnancy Analysis

The Third Department determined County Court should not have determined a verdict was repugnant and sent the jury back for further deliberations.  The Third Department vacated the defendant's conviction on the relevant count.  In the course of the decision the Third Department explained the nature of a repugnant verdict, noting that the proof at trial plays no part in the analysis:

Contrary to defendant's assertion, the jury's initial verdict — convicting him of criminal possession of a controlled substance in the third degree and acquitting him of criminal sale of a controlled substance in the third degree — was not repugnant. “[A]; verdict as to a particular count shall be set aside [as repugnant]; only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury” … . In assessing a repugnancy claim, “we must review the elements of the offenses as charged to the jury without regard to the proof that was actually presented at trial. Thus, [i];f there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support. . . . In this context, the apparently illogical nature of the verdict — as opposed to its impossibility — is viewed as a mistake, compromise or the exercise of mercy by the jury, none of which undermine[s]; a verdict as a matter of law” … .

Here, upon reviewing the elements of the subject offenses, it is readily apparent that the jury's verdict was not repugnant. Criminal sale of a controlled substance in the third degree requires proof that the defendant knowingly and unlawfully sold a narcotic drug (see Penal Law § 220.39 [1]), whereas criminal possession of a controlled substance in the third degree requires only, insofar as is relevant here, that the defendant knowingly and unlawfully possessed a narcotic drug with intent to sell it (see Penal Law § 220.16 [1]). Notably, a “[d];efendant's acquittal on the [sale count]; does not negate the elements of the [possession count], for a person can possess and intend to sell a narcotic drug, but not actually accomplish a sale” … . Defendant's argument to the contrary is predicated upon the specific proof adduced at trial, which — the Court of Appeals has instructed — is to play no role in our analysis of a repugnancy claim … . As the jury's initial verdict was not repugnant, County Court should have denied defendant's motion, accepted the jury's verdict and adjourned the matter for sentencing. Instead, County Court implicitly granted defendant's motion, devised a special verdict sheet and directed the jury to resume deliberations. People v Kramer, 2014 NY Slip Op 04085, 3rd Dept 6-5-14

 

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Court Review of Sufficiency of Evidence Before a Grand Jury Explained

The Fourth Department determined the circumstantial evidence of constructive possession of a package containing drugs was legally sufficient to support the indictment.  The court explained how the sufficiency of evidence before a grand jury is analyzed:

On a motion to dismiss the indictment pursuant to CPL 210.20 (1) (b), “the inquiry of the reviewing court is limited to the legal sufficiency of the evidence; the court may not examine the adequacy of the proof to establish reasonable cause” … . The “reviewing court must consider ‘whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury’ ” … . In the context of grand jury proceedings, “legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt” … . Thus, we must determine “ ‘whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes,’ and whether ‘the [g]rand [j]ury could rationally have drawn the guilty inference’ ” … .  People v Forsythe, 359, 4th Dept 3-28-14

 

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Failure to Call One of the Parties Who Signed a Drug-Analysis Report Did Not Violate the Confrontation Clause/No Evidence the Party Conducted Any Testing or Analysis

The Third Department determined that the Confrontation Clause was not violated because a party [Lafond] who had signed the report identifying the controlled substance defendant was accused of selling did not testify.  The court determined Lafond had nothing to do with the chemical tests and analysis.  The party who actually did the chemical tests and analysis, Brant, testified:

…Brant – the analyst who identified the oxycodone, performed the chemical tests on it, determined the nature of the substance, and authored the report – in fact testified and was subject to crossexamination … .  The report is certified pursuant to CPL 190.30 (2) with the following language: “I, Clifford E. Brant, . . . hereby certify” and then states that it is “my [i.e. Brant’s] report and contains the opinions and interpretations of the examination I performed in the above referenced case” (emphasis added).  Brant also testified that Lafond cosigned the report after an administrative review of it, as required by State Police protocol.  There is no support in the record for the proposition that Lafond examined or analyzed the substance, observed Brant doing so, or was signing the report in that capacity.  Indeed, Brant testified that after he alone performed the forensic chemical testing, he sealed, signed and dated the laboratory bag containing the pill, which remained intact as of the trial, supporting the conclusion that Lafond only read and signed the report after it was completed to ensure that proper procedure was followed …, and she had no role in ascertaining or verifying the identity of the substance in issue.  Thus, the “actual analyst who performed the tests” … and “wr[o]te [the] report[]” … testified.   We find that Lafond, who neither analyzed the substance in issue nor authored the report, was not a “witness” against defendant for purposes of the Confrontation Clause … and, accordingly, no Crawford violation occurred as a result of the People admitting Brant’s report into evidence without calling Lafond to testify. People v Wolz, 104909, 104910, 3rd Dept 12-19-13

 

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