You are here: / Fourth Department

Tag Archive for: Fourth Department

,

Statement Correctly Admitted as Dying Declaration

In affirming the conviction, the Fourth Department held that a statement was correctly admitted as a dying declaration:

[The trial court admitted] as a dying declaration exception to the hearsay rule the testimony of a prosecution witness that, after being shot in the inner thigh, the victim stated, “I got robbed” and “I got shot.”    The People presented evidence establishing that, when the witness arrived at the scene, the victim was bleeding heavily from a femoral artery wound, his clothes were soaked in blood from the waist down, and he was inhaling and exhaling very hard.  The victim stated to the witness, “I’m gonna die, I’m gonna die”; he then became totally unresponsive and, shortly thereafter, he died. Thus, we conclude that the court properly determined that the victim’s statements were made with “a sense of impending death, with no hope of recovery” …  .  People v Elder, 713, 4th Dept 7-5-13

 

,

Valid Waiver of Appeal Did Not Encompass Challenge to Severity of Sentence in this Case

The Fourth Department noted that a valid waiver of the right to appeal does not encompass a challenge to the severity of the sentence when the defendant was not advised of the potential periods of incarceration or the potential maximum term of incarceration.  The court, however, concluded the sentence was not unduly harsh or severe. People v Virgil, 783, 4th Dept 7-5-13

 

Suppression of Evidence Reversed—Search of Interconnected Rooms Did Not Violate Terms of Search Warrant

The Fourth Department reversed County Court’s suppression ruling.  The Fourth Department determined that a search warrant for “a business store front style building…” allowed the officers to search a series of inter-connected rooms behind the storefront area:

We agree with the People that the warrant sufficiently described the premises to be searched …. Although “a warrant to search a subunit of a multiple occupancy structure is void if it fails to describe the subunit to be searched and . . . describes [only] the larger structure” …, here the series of interconnected rooms were not “subunits,” but were instead part of the single rental unit ….  People v Cook, 691, 4th Dept 7-5-13

 

All But Rape First Charges Were Time-Barred—Different Statute of Limitations for Rape First

The Fourth Department determined all charges but the Rape in the First Degree charge had to be dismissed as time-barred.  A change in the statute of limitations for Rape First applied to all such charges not time-barred at the time of the statutory change:

In 2002, when the crimes were committed, the statute of limitations for the charged offenses was five years (see CPL 30.10 former [2] [b]).  Because he was not charged until more than seven years later, defendant raised a facially viable statute of limitations defense, and the burden thus shifted to the People to prove beyond a reasonable doubt that the statute of limitations was tolled or otherwise inapplicable  We conclude that the People satisfied their burden with respect to the charge of rape in the first degree.  As the People correctly contend, the legislature amended CPL 30.10 in 2006 so as to abolish the statute of limitations for four sex offenses, including rape in the first degree and criminal sexual act in the first degree (see L 2006, ch 3, § 1).  The amendment applied not only to crimes committed after its effective date of June 23, 2006, but also to offenses that were not yet time-barred (see L 2006, ch 3, § 5 [a]).  People v Burroughs, 690, 4th Dept 7-5-13

 

,

Defendant Was Lawfully Seized by Police Under these Facts

The Fourth Department affirmed Supreme Court’s denial of defendant’s suppression motion, finding that the defendant was not unlawfully seized under the following facts:

At the suppression hearing, a police officer testified that he stopped defendant because defendant was riding the motorbike in the road without a helmet.  When the officer asked defendant whether he had any identification, defendant answered, “no,” and took a step back, whereupon the officer reached toward defendant in an attempt to frisk him.  Before the officer could detain him, however, defendant ran away and, during his flight, punched another officer who had joined in the pursuit. Defendant was soon apprehended and found to be in possession of a loaded firearm, 20 bags of marihuana, and more than $2,000 in cash. People v Bradley, 685, 4th Dept 7-5-13

STREET STOPS, SEARCH AND SEIZURE

,

Officer Outside Village Limits Did Not Have Jurisdiction to Arrest for Traffic Offenses but Arrest for DWI Okay

The Fourth Department determined a police officer, who was outside his jurisdiction when he arrested the defendant for DWI and traffic offenses, did not have the authority to arrest for the “petty offenses” but did have the authority to arrest for DWI:

The authority of a police officer to arrest an individual for a “petty offense” is limited to circumstances in which the officer “has reasonable cause to believe that such person has committed such offense in his or her presence” (CPL 140.10 [1] [a]), and “only when .. . [s]uch offense was committed or believed by him or her to have been committed within the geographical area of such police officer’s employment or within one hundred yards of such geographical area” (CPL140.10 [2] [a]).  The term “petty offense” is defined as “a violation or a traffic infraction” (CPL 1.20 [39]). Here, the arresting officer is employed by the Village of Gowanda, and it is undisputed that the arrest did not take place within 100 yards of the village limits. Thus, we conclude that the officer exceeded his jurisdictional authority when he arrested defendant for committing the traffic infractions, and the court should have granted defendant’s motion insofar as it sought dismissal of those counts.

We further conclude, however, that the court properly refused to dismiss counts one and four of the indictment, charging defendant with felony driving while intoxicated and resisting arrest, respectively. Pursuant to CPL 140.10 (3), a police officer may arrest a person for a crime, as opposed to a petty offense, “whether or not such crime was committed within the geographical area of such police officer’s employment, and he or she may make such arrest within the state, regardless of the situs of the commission of the crime.”  People v Twoguns, 668, 4th Dept 7-5-13

 

,

Motion to Vacate Conviction Based upon Co-Defendant’s Affidavit Stating Defendant Not Involved Denied

In affirming the denial of a 440 motion to vacate defendant’s conviction based upon a co-defendant’s affidavit stating the defendant was not involved in the crimes, the Fourth Department wrote:

It is well settled that on a motion to vacate a judgment of conviction based on newly discovered evidence, the movant must establish, inter alia, that “there is newly discovered evidence: (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and[] (6) which does not merely impeach or contradict the record evidence” ….  People v Smith, 642, 4th Dept 7-5-13

 

, ,

Evidence Insufficient to Support Criminal Contempt in the First Degree—No Evidence of Intent to Harass (Two Dissenting Justices)

The Fourth Department, over a dissent by two justices, determined the evidence was legally insufficient to support criminal contempt in the first degree:

Even assuming, arguendo, that the evidence is legally sufficient to establish that defendant repeatedly made telephone calls to his ex-girlfriend, we agree with him that the evidence is legally insufficient to establish that he intended by those calls to harass, annoy, threaten or alarm her, with no purpose of legitimate communication (see § 215.51 [b] [iv];….    Rather, the only inference to be drawn from the evidence is that defendant made the calls with the intent to discuss issues of child support and visitation, not to harass, annoy, threaten or alarm his ex-girlfriend. We therefore modify the judgment accordingly.  People v Webb, 619, 4th Dept 7-5-13

 

,

440 Motion Seeking DNA Testing of Evidence Properly Denied

In affirming the denial of a 440 motion by a defendant convicted of murder seeking DNA testing of blood evidence, the Fourth Department wrote:

We conclude that the court properly denied that part of the motion seeking testing … “because defendant failed to establish that there was a reasonable probability that, had those items been tested and had the results been admitted at trial, the verdict would have been more favorable to defendant”… .  People v Swift, 617, 4th Dept 7-5-13

 

Sentence Deemed Unduly Harsh and Severe

The Fourth Department reduced defendant’s sentence for criminal possession of stolen property in the third degree from 2 to 7 years to 7 months.  The People conceded the original sentence was unduly harsh and severe.  People v Raszl, 596, 4th Dept 7-5-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy