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FOUR TRAMADOL PILLS DID NOT CONSTITUTE DANGEROUS CONTRABAND, PROMOTING PRISON CONTRABAND FIRST DEGREE REDUCED TO SECOND DEGREE (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Curran, determined the Tramadol pills possessed by the inmate defendant did not constitute dangerous contraband, requiring a reduction of the conviction from promoting prison contraband first degree to second degree. The Fourth Department disagreed with the cases from other departments which held small amounts of drugs to constituted dangerous contraband:

The Court of Appeals in People v Finley (10 NY3d 647 [2008]) considered the unrelated prosecutions of two inmates for promoting and attempted promoting prison contraband in the first degree, both involving small amounts of marihuana. The Court pronounced the test for courts to apply: “[T]he test for determining whether an item is dangerous contraband is whether its particular characteristics are such that there is a substantial probability that the item will be used in a manner that is likely to cause death or other serious injury, to facilitate an escape, or to bring about other major threats to a detention facility’s institutional safety or security” (id. at 657). * * *

We recognize that, after Finley was decided, some courts have considered cases involving the possession of drugs other than marihuana and have concluded that the possessed drugs were dangerous contraband on what may be viewed as less “specific, competent proof” of a substantial probability that the item will be used in a manner that is likely to cause death or other serious injury, to facilitate an escape, or to bring about other major threats … . For example, testimony that the defendants were engaged in drug trafficking has been held to be sufficient to establish that there was dangerous contraband (see e.g. People v Ariosa, 100 AD3d 1264, 1265-1266 [3d Dept 2012], lv denied 21 NY3d 1013 [2013]; People v Cooper, 67 AD3d 1254, 1256-1257 [3d Dept 2009], lv denied 14 NY3d 799 [2010]). We disagree with those cases to the extent that they do not focus on the dangerousness of the use of the particular drug at issue, but instead focus on broad concerns that could involve any sort of contraband, such as alcohol, cigarettes or other items that are not dangerous in themselves … . People v Flagg, 2018 NY Slip Op 07849, Fourth Dept (11-16-18

CRIMINAL LAW (FOUR TRAMADOL PILLS DID NOT CONSTITUTE DANGEROUS CONTRABAND, PROMOTING PRISON CONTRABAND FIRST DEGREE REDUCED TO SECOND DEGREE (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, DANGEROUS CONTRABAND, FOUR TRAMADOL PILLS DID NOT CONSTITUTE DANGEROUS CONTRABAND, PROMOTING PRISON CONTRABAND FIRST DEGREE REDUCED TO SECOND DEGREE (FOURTH DEPT))/DANGEROUS CONTRABAND (CRIMINAL LAW, FOUR TRAMADOL PILLS DID NOT CONSTITUTE DANGEROUS CONTRABAND, PROMOTING PRISON CONTRABAND FIRST DEGREE REDUCED TO SECOND DEGREE (FOURTH DEPT))/INMATES (CRIMINAL LAW, CONTRABAND, FOUR TRAMADOL PILLS DID NOT CONSTITUTE DANGEROUS CONTRABAND, PROMOTING PRISON CONTRABAND FIRST DEGREE REDUCED TO SECOND DEGREE (FOURTH DEPT))/CONTRABAND (CRIMINAL LAW, INMATES, FOUR TRAMADOL PILLS DID NOT CONSTITUTE DANGEROUS CONTRABAND, PROMOTING PRISON CONTRABAND FIRST DEGREE REDUCED TO SECOND DEGREE (FOURTH DEPT))

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DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE OF A WITNESS’S MOTIVE TO LIE, PROMPT OUTCRY EVIDENCE SHOULD NOT HAVE INCLUDED THE IDENTITY OF THE ASSAILANT, CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined two evidentiary errors deprived defendant of a fair trial. Defendant was precluded from presenting evidence of a witness’s motive to lie, and the evidence of prompt outcry should not have included the identity of the assailant:

It is well settled that ” [t]he right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations’ “… . “It is also well settled that in presenting the defense, counsel for the defendant may establish, during both cross[-]examination and on [defendant’s] direct case, the [complainant’s] . . . motive to lie . . . This is not a collateral inquiry, but is directly probative on the issue of credibility’ ” … , “the excluded evidence was not speculative . . . or cumulative . . . , as it went directly to the credibility of the complainant[, and] the defense counsel offered a good faith basis for the excluded line of questioning [and evidence].” “Because it cannot be said that there is no reasonable possibility that the error contributed to the verdict, the error cannot be deemed harmless beyond a reasonable doubt and reversal therefore is required” … .

Defendant also correctly contends that the court erred in permitting the People to present prompt outcry testimony that exceeded the proper scope of such testimony. Although “evidence that a victim of sexual assault promptly complained about the incident is admissible to corroborate the allegation that an assault took place” … , such evidence is limited to “only the fact of a complaint, not its accompanying details,” including the identity of the assailant … . We thus conclude that the court erred in permitting two of the three prompt outcry witnesses to testify concerning the identity of the alleged assailant … .

We thus conclude that either error, alone, would justify reversal and that the cumulative effect of the errors denied defendant a fair trial … . People v Vo, 2018 NY Slip Op 07909, Fourth Dept 11-16-18

CRIMINAL LAW (EVIDENCE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE OF A WITNESS’S MOTIVE TO LIE, PROMPT OUTCRY EVIDENCE SHOULD NOT HAVE INCLUDED THE IDENTITY OF THE ASSAILANT, CONVICTION REVERSED (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE OF A WITNESS’S MOTIVE TO LIE, PROMPT OUTCRY EVIDENCE SHOULD NOT HAVE INCLUDED THE IDENTITY OF THE ASSAILANT, CONVICTION REVERSED (FOURTH DEPT))/LIE, MOTIVE TO (CRIMINAL LAW, DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE OF A WITNESS’S MOTIVE TO LIE, PROMPT OUTCRY EVIDENCE SHOULD NOT HAVE INCLUDED THE IDENTITY OF THE ASSAILANT, CONVICTION REVERSED (FOURTH DEPT))/PROMPT OUTCRY (CRIMINAL LAW, DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE OF A WITNESS’S MOTIVE TO LIE, PROMPT OUTCRY EVIDENCE SHOULD NOT HAVE INCLUDED THE IDENTITY OF THE ASSAILANT, CONVICTION REVERSED (FOURTH DEPT))/HEARSAY (CRIMINAL LAW, PROMPT OUTCRY, DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE OF A WITNESS’S MOTIVE TO LIE, PROMPT OUTCRY EVIDENCE SHOULD NOT HAVE INCLUDED THE IDENTITY OF THE ASSAILANT, CONVICTION REVERSED (FOURTH DEPT))/IDENTIFICATION (CRIMINAL LAW, PROMPT OUTCRY,  DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE OF A WITNESS’S MOTIVE TO LIE, PROMPT OUTCRY EVIDENCE SHOULD NOT HAVE INCLUDED THE IDENTITY OF THE ASSAILANT, CONVICTION REVERSED (FOURTH DEPT))

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FAMILY COURT DID NOT MAKE FACTUAL FINDINGS IN SUPPORT OF ITS GRANT OF SOLE CUSTODY, MATTER REMITTED (FOURTH DEPT).

The Fourth Department reversed Family Court’s custody ruling because the ruling was not supported by factual findings. The matter was remitted:

It is “well established that the court is obligated to set forth those facts essential to its decision’ ” (…see CPLR 4213 [b]; Family Ct Act § 165 [a]). Here, the court utterly failed to follow that well-established rule inasmuch as it made no findings to support its determination. “Effective appellate review, whatever the case but especially in child visitation, custody or neglect proceedings, requires that appropriate factual findings be made by the trial court—the court best able to measure the credibility of the witnesses” … . We therefore reverse the order, reinstate the mother’s petition, and remit the matter to Family Court to make a determination on the petitions, including specific findings as to a change in circumstances and the best interests of the child, following an additional hearing if necessary … . Matter of Brown v Orr, 2018 NY Slip Op 07905, Fourth Dept 11-16-28

FAMILY LAW (CUSTODY, APPEALS, FAMILY COURT DID NOT MAKE FACTUAL FINDINGS IN SUPPORT OF ITS GRANT OF SOLE CUSTODY, MATTER REMITTED (FOURTH DEPT))/CUSTODY (FAMILY LAW, APPEALS, FAMILY COURT DID NOT MAKE FACTUAL FINDINGS IN SUPPORT OF ITS GRANT OF SOLE CUSTODY, MATTER REMITTED (FOURTH DEPT))/APPEALS (FAMILY LAW, CUSTODY, FAMILY COURT DID NOT MAKE FACTUAL FINDINGS IN SUPPORT OF ITS GRANT OF SOLE CUSTODY, MATTER REMITTED (FOURTH DEPT))/CUSTODY (FAMILY LAW, APPEALS, FAMILY COURT DID NOT MAKE FACTUAL FINDINGS IN SUPPORT OF ITS GRANT OF SOLE CUSTODY, MATTER REMITTED (FOURTH DEPT))

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TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SNOWPLOW TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE SNOWPLOW OPERATOR’S ACTIONS ROSE TO THE RECKLESS DISREGARD STANDARD IN THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant town’s motion for summary judgment in this snowplow traffic accident case should have been granted. Defendant alleged the plow blade was in his lane, but there was evidence the road markings were covered with snow:

Vehicle and Traffic Law § 1103 (b) “exempts all vehicles actually engaged in work on a highway’—including [snowplows]—from the rules of the road” … . Here, defendants established as a matter of law that the snowplow was “actually engaged in work on a highway” at the time of the incident… , and plaintiff’s evidence that the plow blade was up at the time of the accident did not raise a triable issue of fact with respect thereto inasmuch as plaintiff did not dispute that Farr [the snowplow driver] was “working his run or beat at the time of the accident” … . …

At most, plaintiff established that Farr did not see plaintiff’s vehicle and that a portion of the snowplow crossed the center line of the road, which does not amount to recklessness. Moreover, plaintiff failed to submit competent evidence that Farr’s operation of the snowplow without either a “wing man” or certification to operate the snowplow without a wing man was reckless. Finally, while plaintiff and Farr provided different versions of the accident, those differences alone do not create a question of fact on the issue of reckless disregard here … . Clark v Town of Lyonsdale, 2018 NY Slip Op 07870. Fourth Dept 11-16-18

NEGLIGENCE (TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SNOWPLOW TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE SNOWPLOW OPERATOR’S ACTIONS ROSE TO THE RECKLESS DISREGARD STANDARD IN THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT))/MUNICIPAL LAW (TRAFFIC ACCIDENTS, SNOWPLOWS, TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SNOWPLOW TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE SNOWPLOW OPERATOR’S ACTIONS ROSE TO THE RECKLESS DISREGARD STANDARD IN THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT))/SNOWPLOWS (MUNICIPAL LAW, TRAFFIC ACCIDENTS, TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SNOWPLOW TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE SNOWPLOW OPERATOR’S ACTIONS ROSE TO THE RECKLESS DISREGARD STANDARD IN THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT))/VEHICLE AND TRAFFIC LAW (MUNICIPAL LAW, SNOWPLOWS, TRAFFIC ACCIDENTS, TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SNOWPLOW TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE SNOWPLOW OPERATOR’S ACTIONS ROSE TO THE RECKLESS DISREGARD STANDARD IN THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT))/TRAFFIC ACCIDENTS (MUNICIPAL LAW, SNOWPLOWS, TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SNOWPLOW TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE SNOWPLOW OPERATOR’S ACTIONS ROSE TO THE RECKLESS DISREGARD STANDARD IN THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT))

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POLICE OFFICER TOOK PRECAUTIONS BEFORE ATTEMPTING A U-TURN TO PURSUE A SUSPECT AND COLLIDING WITH PLAINTIFF’S VEHICLE, MOMENTARY JUDGMENT LAPSE DOES NOT MEET RECKLESS DISREGARD STANDARD, CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant city’s motion for summary judgment in this police-car traffic accident case should have been granted because the officer’s actions did not rise to the reckless disregard standard of Vehicle and Traffic La 1104. Plaintiff was behind the police car when the officer made an abrupt u-turn to pursue a suspect in a domestic incident. There was evidence the officer did not activate the emergency lights until after the collision:

Before [the officer] attempted the U-turn, he checked his driver’s side and rearview mirrors, turned his head, and saw no vehicles behind him. …

We agree with defendants that Supreme Court erred in denying their motion for summary judgment dismissing the complaint. “[T]he reckless disregard standard of care . . . applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104 (b)” … . When the accident occurred, Baldwin was operating an “authorized emergency vehicle” (§ 1104 [a]), and he “was engaged in an emergency operation by virtue of the fact that he was attempting a U-turn in order to pursu[e] an actual or suspected violator of the law’ ” … . Thus, Baldwin’s conduct was exempted from the rules of the road by section 1104 (b) (4) and is governed by the reckless disregard standard of care in section 1104 (e) … .

A ” momentary judgment lapse’ does not alone rise to the level of recklessness required of the driver of an emergency vehicle in order for liability to attach” … . In support of their motion, defendants submitted evidence of the precautions Baldwin took before he attempted the U-turn and established as a matter of law that Baldwin’s conduct did not rise to the level of reckless disregard for the safety of others, i.e., “he did not act with conscious indifference’ to the consequences of his actions” … .  Flood v City of Syracuse, 2018 NY Slip Op 07869, Fourth Dept 11-16-18

NEGLIGENCE (MUNICIPAL LAW, POLICE OFFICER TOOK PRECAUTIONS BEFORE ATTEMPTING A U-TURN TO PURSUE A SUSPECT AND COLLIDING WITH PLAINTIFF’S VEHICLE, MOMENTARY JUDGMENT LAPSE DOES NOT MEET RECKLESS DISREGARD STANDARD, CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/MUNICIPAL LAW (POLICE OFFICERS, TRAFFIC ACCIDENTS, POLICE OFFICER TOOK PRECAUTIONS BEFORE ATTEMPTING A U-TURN TO PURSUE A SUSPECT AND COLLIDING WITH PLAINTIFF’S VEHICLE, MOMENTARY JUDGMENT LAPSE DOES NOT MEET RECKLESS DISREGARD STANDARD, CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/POLICE OFFICERS (TRAFFIC ACCIDENTS, POLICE OFFICER TOOK PRECAUTIONS BEFORE ATTEMPTING A U-TURN TO PURSUE A SUSPECT AND COLLIDING WITH PLAINTIFF’S VEHICLE, MOMENTARY JUDGMENT LAPSE DOES NOT MEET RECKLESS DISREGARD STANDARD, CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/TRAFFIC ACCIDENTS (POLICE OFFICER TOOK PRECAUTIONS BEFORE ATTEMPTING A U-TURN TO PURSUE A SUSPECT AND COLLIDING WITH PLAINTIFF’S VEHICLE, MOMENTARY JUDGMENT LAPSE DOES NOT MEET RECKLESS DISREGARD STANDARD, CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/VEHICLE AND TRAFFIC LAW (TRAFFIC ACCIDENTS, POLICE OFFICER TOOK PRECAUTIONS BEFORE ATTEMPTING A U-TURN TO PURSUE A SUSPECT AND COLLIDING WITH PLAINTIFF’S VEHICLE, MOMENTARY JUDGMENT LAPSE DOES NOT MEET RECKLESS DISREGARD STANDARD, CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/RECKLESS DISREGARD (POLICE OFFICERS, TRAFFIC ACCIDENTS, POLICE OFFICER TOOK PRECAUTIONS BEFORE ATTEMPTING A U-TURN TO PURSUE A SUSPECT AND COLLIDING WITH PLAINTIFF’S VEHICLE, MOMENTARY JUDGMENT LAPSE DOES NOT MEET RECKLESS DISREGARD STANDARD, CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))

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DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER BECAUSE THE PENNSYLVANIA BURGLARY WAS NOT THE EQUIVALENT OF A NEW YORK FELONY, ALTHOUGH THE ERROR WAS NOT PRESERVED THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department determined, in the interest of justice, that defendant should not have been sentenced as a second felony offender based upon a Pennsylvania burglary conviction:

… [T]he predicate conviction, i.e., the Pennsylvania crime of burglary (18 Pa Cons Stat § 3502), is not the equivalent of a New York felony. Although defendant failed to preserve that contention for our review … , we exercise our power to address it as a matter of discretion in the interest of justice … . Upon our review of Pennsylvania statutory and case law, “there is no element in the Pennsylvania statute comparable to the element in the analogous New York statute that an intruder knowingly’ enter or remain unlawfully in the premises . . . [and t]he absence of this scienter requirement from the Pennsylvania burglary statute renders improper the use of the Pennsylvania burglary conviction as the basis of the defendant’s predicate felony adjudication” … . People v Funk, 2018 NY Slip Op 07558, Fourth Dept 11-9-18

CRIMINAL LAW (SECOND FELONY OFFENDER, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER BECAUSE THE PENNSYLVANIA BURGLARY WAS NOT THE EQUIVALENT OF A NEW YORK FELONY, ALTHOUGH THE ERROR WAS NOT PRESERVED THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/APPEALS (CRIMINAL LAW, SECOND FELONY OFFENDER, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER BECAUSE THE PENNSYLVANIA BURGLARY WAS NOT THE EQUIVALENT OF A NEW YORK FELONY, ALTHOUGH THE ERROR WAS NOT PRESERVED THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/SENTENCING (SECOND FELONY OFFENDER, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER BECAUSE THE PENNSYLVANIA BURGLARY WAS NOT THE EQUIVALENT OF A NEW YORK FELONY, ALTHOUGH THE ERROR WAS NOT PRESERVED THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/SECOND FELONY OFFENDER (DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER BECAUSE THE PENNSYLVANIA BURGLARY WAS NOT THE EQUIVALENT OF A NEW YORK FELONY, ALTHOUGH THE ERROR WAS NOT PRESERVED THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT))

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POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT).

The Fourth Department determined the ruling by the US Supreme Court in Riley v California (124 S Ct 2473) did not provide grounds for defendant’s second and untimely motion to suppress evidence seized from a search of his cell phone pursuant to a warrant. Before applying for the warrant, at the time of arrest, a police officer sent a text to a phone number used in communications between the victim and defendant and noted that a text message arrived on defendant’s phone shortly thereafter. The Fourth Department held that sending the text and observing the arrival of a text did not violate Riley:

The Riley Court determined that “officers must generally secure a warrant before conducting [a search of data stored in a cell phone]” … . Here, the search warrant application for defendant’s phone indicates, among other things, that, after defendant’s arrest and the recovery of a cell phone from him during a search incident to the arrest, the applicant officer sent a text message to the phone number that had been used during earlier communications between the victim and defendant, and the officer noted that the phone recovered from defendant upon his arrest signaled the arrival of a new text message moments later. Contrary to defendant’s contention, however, nothing in the warrant application supports the inference that the police opened or manipulated the phone to get inside to retrieve data prior to obtaining the search warrant. Although Riley prohibits warrantless searches of cell phones incident to a defendant’s arrest, Riley does not prohibit officers from sending text messages to a defendant, making observations of a defendant’s cell phone, or even manipulating the phone to some extent upon a defendant’s arrest …  Indeed, Riley provides that the search incident to arrest exception to the warrant requirement entitles law enforcement officers to “examine the physical aspects of the phone” after it has been seized … . Inasmuch as the information included in the warrant application is not suggestive of a warrantless search of the phone, we conclude that the Supreme Court’s decision in Riley did not provide good cause for defendant’s untimely second suppression motion. Thus, the motion was properly denied … .

Moreover, even if the officer’s actions in sending a confirmatory text message to defendant’s phone did constitute an unlawful search under Riley, we nevertheless conclude that the validity of the warrant to search defendant’s phone was not vitiated. The police did not use the alleged illegal search ” to assure themselves that there [was] cause to obtain a warrant’ in the first instance” … , and the remaining factual allegations in the warrant application provided probable cause to search the cell phone that was recovered from defendant at the time of his arrest. People v Hackett, 2018 NY Slip Op 07557, Fourth Dept 11-9-18

CRIMINAL LAW (POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, CELL PHONES, POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))/SUPPRESSION (CELL PHONES, POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))/SEARCH AND SEIZURE (CELL PHONES, POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))/CELL PHONES (CRIMINAL LAW, SEARCH AND SEIZURE, POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))

DENIAL OF YOUTHFUL OFFENDER TREATMENT WAS NOT AN ABUSE OF DISCRETION, 35-YEAR SENTENCE WAS HARSH AND EXCESSIVE (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, determined that Supreme Court did not abuse its discretion when it declined to sentence youthful offender treatment. The majority deemed the 35 year sentence excessive and directed that the sentences be served concurrently. The dissenters argued that the sentences were not excessive:

CPL 720.10 (3) provides that “a youth who has been convicted of an armed felony offense . . . is an eligible youth if the court determines that one or more of the following factors exist: (i) mitigating circumstances that bear directly upon the manner in which the crime was committed; or (ii) where the defendant was not the sole participant in the crime, the defendant’s participation was relatively minor although not so minor as to constitute a defense to the prosecution.” Contrary to defendant’s contention, “traditional sentencing factors, such as the criminal’s age, background and criminal history, are not appropriate to the mitigating circumstances analysis . . . Rather, the court must rely only on factors related to the defendant’s conduct in committing the crime, such as a lack of injury to others or evidence that the defendant did not display a weapon during the crime”… , or other factors that are directly related to the crime of which defendant was convicted … . Here, we perceive no basis to disturb the court’s determination that defendant is not an eligible youth because, in the first crime of which he was convicted, “defendant carried a gun to an encounter with known gang members, displayed the gun, . . . and . . . fired a shot that struck one of the” gang members… , and he was again armed with a loaded weapon when he was arrested several weeks later. …

The victim in this case is a rival gang member who attempted to rob members of defendant’s gang. Defendant arrived at the scene of the attempted robbery and shot at the victim, who was struck by a bullet but survived. Defendant obviously deserves a stern sentence but, in our view, 35 years is too severe. Indeed, the maximum punishment for intentional murder is 25 years to life … . Defendant has no prior criminal record (he was adjudicated a youthful offender on a misdemeanor), he was only 18 years old when he committed the crimes, and the People offered him a 20-year sentence prior to trial as part of a plea bargain. Under the circumstances, and considering that the victim was attempting to commit an armed robbery when he was shot, we conclude that defendant’s sentence is unduly harsh and severe. People v Jones, 2018 NY Slip Op 07556, Fourth Dept 11-9-18

CRIMINAL LAW (DENIAL OF YOUTHFUL OFFENDER TREATMENT WAS NOT AN ABUSE OF DISCRETION, 35-YEAR SENTENCE WAS HARSH AND EXCESSIVE (FOURTH DEPT))/YOUTHFUL OFFENDER DENIAL OF YOUTHFUL OFFENDER TREATMENT WAS NOT AN ABUSE OF DISCRETION, 35-YEAR SENTENCE WAS HARSH AND EXCESSIVE (FOURTH DEPT))/SENTENCING (HARSH AND EXCESSIVE, DENIAL OF YOUTHFUL OFFENDER TREATMENT WAS NOT AN ABUSE OF DISCRETION, 35-YEAR SENTENCE WAS HARSH AND EXCESSIVE (FOURTH DEPT))/YOUTHFUL OFFENDER DENIAL OF YOUTHFUL OFFENDER TREATMENT WAS NOT AN ABUSE OF DISCRETION, 35-YEAR SENTENCE WAS HARSH AND EXCESSIVE (FOURTH DEPT))/HARSH AND EXCESSIVE SENTENCE (DENIAL OF YOUTHFUL OFFENDER TREATMENT WAS NOT AN ABUSE OF DISCRETION, 35-YEAR SENTENCE WAS HARSH AND EXCESSIVE (FOURTH DEPT))

FATHER’S PETITION TO MODIFY SUPPORT SHOULD HAVE BEEN GRANTED, ALTHOUGH FATHER VOLUNTARILY LEFT A BETTER PAYING JOB IN VIRGINIA, HE DID SO TO BE NEARER TO HIS SON WHO HAD MOVED WITH MOTHER TO NEW YORK FROM VIRGINIA (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined that, although father left his job in Virginia voluntarily, his petition to modify his support after taking a lower-paying job in New York should have been granted. Father left the better paying job to be closer to his son, who had recently moved with his mother from Virginia to New York:

“It is well settled that a loss of employment may constitute a change in circumstances justifying a downward modification of [child support] obligations where [such loss] occurred through no fault of the [party seeking modification] and the [party] has diligently sought re-employment” … . As a general rule, a parent who voluntarily quits a job will not be deemed without fault in losing such employment… . Nevertheless, that general rule should not be inflexibly applied where a parent quits a job for a sufficiently compelling reason, such as the need to live closer to a child … . As one court has explained, a “parent who chooses to leave his [or her] employment rather than [live] hundreds of miles away from his [or her] children is not voluntarily unemployed or underemployed. Instead, he [or she] is a loving parent attempting to do the right thing for his [or her] children. To punish such a parent by requiring higher child support . . . is neither good law nor good policy” … . Matter of Parmenter v Nash, 2018 NY Slip Op 07553, Fourth Dept 11-9-18

FAMILY LAW (SUPPORT, FATHER’S PETITION TO MODIFY SUPPORT SHOULD HAVE BEEN GRANTED, ALTHOUGH FATHER VOLUNTARILY LEFT A BETTER PAYING JOB IN VIRGINIA, HE DID SO TO BE NEARER TO HIS SON WHO HAD MOVED WITH MOTHER TO NEW YORK FROM VIRGINIA (FOURTH DEPT))/SUPPORT (FAMILY LAW, FATHER’S PETITION TO MODIFY SUPPORT SHOULD HAVE BEEN GRANTED, ALTHOUGH FATHER VOLUNTARILY LEFT A BETTER PAYING JOB IN VIRGINIA, HE DID SO TO BE NEARER TO HIS SON WHO HAD MOVED WITH MOTHER TO NEW YORK FROM VIRGINIA (FOURTH DEPT))

DEFENDANT WAS NOT INFORMED OF THE POSTRELEASE SUPERVISION ASPECT OF HIS SENTENCE, PLEA VACATED (FOURTH DEPT).

The Fourth Department vacated defendant’s guilty plea because he was not informed of the postrelease supervision aspect of the sentence:

On appeal from a judgment convicting him upon his plea of guilty of criminal sexual act in the first degree …, defendant contends that reversal of the judgment and vacatur of the plea are required because County Court failed to advise him, at the time of the plea, of the period of postrelease supervision that would be imposed at sentencing. We agree … . People v Hemingway, 2018 NY Slip Op 07587, Fourth Dept 11-9-18

CRIMINAL LAW (DEFENDANT WAS NOT INFORMED OF THE POSTRELEASE SUPERVISION ASPECT OF HIS SENTENCE, PLEA VACATED (FOURTH DEPT))/SENTENCING (DEFENDANT WAS NOT INFORMED OF THE POSTRELEASE SUPERVISION ASPECT OF HIS SENTENCE, PLEA VACATED (FOURTH DEPT))/GUILTY PLEA  (DEFENDANT WAS NOT INFORMED OF THE POSTRELEASE SUPERVISION ASPECT OF HIS SENTENCE, PLEA VACATED (FOURTH DEPT))/POSTRELEASE SUPERVISION (DEFENDANT WAS NOT INFORMED OF THE POSTRELEASE SUPERVISION ASPECT OF HIS SENTENCE, PLEA VACATED (FOURTH DEPT))

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