The Court of Appeals determined the accusatory instrument charging attempted criminal possession of a controlled substance was sufficient. The police officer observed defendant drop a glass pipe which contained cocaine “residue.” The court noted that “possession of a controlled substance ‘may be proven circumstantially,’ and ‘possession suffices to permit the inference that possessors know what they possess.’ ” People v Jennings, 256, CtApp 12-10-13
The Fourth Department determined defendant was properly ordered to pay restitution to the police department in a drug case, but that payment of a surcharge should not have been ordered:
… [A] defendant convicted of, inter alia, a class C “ ‘felony involving the sale of a controlled substance’ may be ordered to repay a law enforcement agency ‘the amount of funds expended in the actual purchase’ of a controlled substance” … . Section 60.27 (9) was amended in 1991 “to authorize restitution to law enforcement agencies for unrecovered funds utilized to purchase narcotics as part of investigations leading to convictions” … . We therefore conclude … that the court properly directed defendant to pay restitution to the City of Oswego Police Department for the funds it expended in buying drugs from him.
The People correctly concede with respect to defendant’s further contention … that the court erred in imposing a surcharge on that restitution order. Penal Law § 60.27 (9) further provides that “[a]ny restitution which may be required to be made to a law enforcement agency pursuant to this section . . . shall not include a designated surcharge.” People v Boatman, 940, 4th Dept 10-4-13
The First Department, over a dissent, reversed Supreme Court’s order that petitioner, who had been convicted of two drug offenses (felonies) in the past, be certified as a NYC Department of Education school bus driver. The First Department explained the relevant criteria as follows:
Where the applicant seeks employment with the New York City Department of Education, the School Chancellor’s regulations apply and Regulation C-105 establishes procedures to be followed …for background investigations of pedagogical and administrative applicants. Regulation C-105 incorporates by reference article 23-A of the Correction Law. Correction Law § 752 (et seq.) prohibits unfair discrimination against a person previously convicted of a crime “unless: (1) there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or (2) the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals.” Correction Law § 753(a) – (h), which set forth eight factors a public agency must consider in connection with an application for a license, include the person’s duties and responsibilities, the bearing, if any, the criminal offense(s) will have on the person’s “fitness or ability” to perform his or her duties, the time that has elapsed since the occurrence of the crime(s), the seriousness of the crime, information about the applicant’s reputation, etc., and the legitimate interest of the agency in protecting the safety and welfare of specific individuals or the general public. Regulation C-105 provides further that in reviewing the record of an applicant who has a prior criminal conviction, DOE is particularly concerned with offenses, among others, that involve the possession, distribution or selling of controlled substances.
The Chancellor’s Regulation, like the Corrections Law, provides that where the applicant has a certificate of relief from disabilities, that certificate “shall” also be considered (Correction Law § 753[3]). The certificate, however, only creates a “presumption of rehabilitation” with respect to the crime the individual was convicted of, it does not create a prima facie entitlement to the license the person is applying for… . Matter of Dempsey v NYC Dept of Educ, 2013 NY Slip Op 05289, 1st Dept 7-16-13
In a full-fledged opinion by Justice Saxe, the First Department upheld the conviction for rape and for facilitating a sex offense with a controlled substance. The controlled substance referenced in the indictment and the subject of proof at trial was ecstasy. However, expert evidence of the effects of another drug, GBH, was allowed in at trial. The First Department determined the unsupported testimony about GBH did not require reversal because it could be assumed the jury relied upon the allegations supported by the evidence:
…[T]he reference in the experts’ testimony to GHB and its symptoms, and the People’s reference to that evidence in support of their summation, did not impermissibly present the jury with a new, legally inadequate theory…. Rather, at worst, the suggestion that the complainant may have also been drugged with GHB was merely a “factually unsupported theory” …. “[W]here jurors are given a choice between a factually supported and factually unsupported theory, it is assumed they have chosen the one with factual support” …. Here, we can assume that in determining whether the complainant was “rendered temporarily incapable of appraising or controlling [her] conduct owing to the influence of a narcotic or intoxicating substance administered to [her] without [her] consent,” the jurors relied on those of the People’s assertions that were supported by the evidence. People v Blackwood, 2013 NY Slip Op 03764, 2nd Dept, 5-23-13
In finding defendant’s conviction for possession with intent to sell was against the weight of the evidence, the Second Department (with a dissent) wrote:
…[T]he amount of cocaine recovered from the defendant was relatively small and not inconsistent with personal use. Indeed, convictions for criminal possession of a controlled substance involving intent to sell generally stem from situations where a significantly greater quantity of drugs is recovered from the defendant’s person…. Even more important, the defendant was found to be in possession of no drug paraphernalia or weapons, and he had only $20 in cash … .Although there was testimony that street drug sales often involve bags of drugs costing $20 each, the mere fact that the defendant was in possession of a single $20 bill cannot be considered indicative of an intent to sell. People v McFadden, 2013 NY Slip Op 03690, 2nd Dept, 5-22-12
The Fourth Department determined the sentence of a determinate term of incarceration for 2 ½ years for criminal possession of marijuana in the second degree was unduly harsh and severe. The sentence was reduced to 1 ½ years. People v Hirsh, KA 12-00043, 4th Dept, 5-17-13
The Third Department determined evidence of defendant’s gang affiliation and uncharged drug offenses were admissible in defendant’s murder trial under Molineux. In addition, the Third Department determined defendant’s statements made after he said he didn’t want to answer any more questions should have been suppressed. [The Third Department rejected the People’s argument that the suppression issue was decided in a prior prosecution and the doctrine of collateral estoppel should apply.] With respect to the Molineux and “right to remain silent” issues, the Court wrote:
“Generally speaking, evidence of uncharged crimes or prior bad acts may be admitted where they fall within the recognized Molineux exceptions – motive, intent, absence of mistake, common plan or scheme and identity – or where such proof is inextricably interwoven with the charged crimes, provide[s] necessary background or complete[s] a witness’s narrative” … . Here, defendant’s drug-related activities and purported gang membership provided necessary background information, explained how [the other parties] and defendant knew one another (as well as why defendant’s acquaintances went along with his plan to rob the weed spot[where the murder took place]) and, viewed in the context of the activities that occurred prior to the shooting, established both defendant’s awareness of the weed spot and a motive for the shooting; thus, such “evidence was highly probative of several relevant and material issues at trial and genuinely interwoven with the facts surrounding the shooting” … .
The case law makes clear that “[a] defendant’s invocation of the right to remain silent must be scrupulously honored” … once the right is asserted in an “unequivocal and unqualified” fashion … Whether a defendant’s request in this regard is “unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request[,] including the defendant’s demeanor, manner of expression and the particular words found to have been used by the defendant” … . People v Johnson, 104081, 3rd Dept, 5-16-13
SUPPRESSION, SUPPRESS
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
In a decision by Justice Lahtinen, the Third Department determined the defendant had raised a question whether he was afforded ineffective assistance of counsel because counsel did not independently verify the weight of the cocaine he was charged with possessing. The matter was sent back to the motion court for a hearing on defendant’s CPL 440 motion to vacate his conviction. The Third Department wrote:
While failing to independently verify the weight of drugs does not necessarily constitute ineffective assistance …, this record contains sufficient factual issues as to whether defendant was affirmatively given incorrect information by his counsel on an issue assertedly important in his decision to accept the plea and, as such, a hearing is required on his claim of ineffective assistance of counsel … People v Johnson, 103457, 3rd Dept 3-28-13
A warrantless search of “every part of [defendant’s] vehicle” as well as a strip search of the defendant was upheld by the Third Department. The search of the vehicle was justified by the same evidence which provided probable cause for the arrest (a controlled drug purchase by a confidential informant). And the strip search was justified by the failure to find narcotics or buy money in the preliminary vehicle search. “[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… Some of the factors that may be considered in determining the reasonableness of such a search are the circumstances of the arrest, the defendant’s nervousness or unusual conduct, tips from informants, and ‘an itinerary suggestive of wrongdoing’…”. People v Anderson, 104220, 104447, 3rd Dept. 3-7-13
STREET STOPS, SUPPRESSION, SUPPRESS, SEARCH
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