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Syracuse Police Officer Did Not Have Authority to Arrest in Town of DeWitt, Judge Abused Discretion During Jury Selection.

A City of Syracuse police detective was assigned to a security detail for a college athletic event.  The detective saw codefendant walk toward the gymnasium, turn around and walk back the way he came.  The detective followed the codefendant to a car. The detective then approached the codefendant and asked to speak with him.  Defendant, who had been in the car, got out of the car.  The detective smelled burnt marihuana and both codefendant and defendant admitted they had been smoking marihuana.  A consent search of the car turned up a loaded revolver leading to the defendant’s and codefendant’s arrest.  The encounter with the City of Syracuse detective actually took place in the Town of DeWitt, not the City of Syracuse.  The Fourth Department held, pursuant to Criminal Procedure Law section 140.50 (1), the City of Syracuse detective did not have statutory authority to stop and question the defendant outside “the geographical area of such officer’s employment…”.  The physical evidence was suppressed and the indictment dismissed on that basis.  The Fourth Department went on to hold that there was a valid alternative ground for reversal.  The jury selection process went very fast, proceeding group to group.  The judge told counsel that once the peremptory challenges for a particular group were finished, there would be no further opportunity to challenge anyone in that group.  One of the defense attorneys told the judge that the jury selection process was moving too fast and the defense did not want one of the jurors in the previous group.  The judge refused to allow a challenge of that juror.  The Fourth Department held the judge’s refusal was an abuse of discretion requiring reversal stating:  “ ‘We can detect no discernable interference or undue delay caused by [the] momentary oversight [of the attorneys for defendant and codefendant] that would justify [the court’s] hasty refusal to entertain [their] challenge….’ ”.  People v McGrew, 1453, KA 09-01308 Fourth Dept. 2-1-13

vehicle stops, street stops

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Victim’s Testimony About Her Own Statements Not Hearsay.

In affirming a rape conviction, the Fourth Department noted it was not necessary to apply the “prompt outcry” hearsay exception to the victim’s testimony about her own out-of-court statements because the statements were not hearsay. People v Curran, 1323, KA 08-01510 Fourth Dept. 2-1-13

 

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Guilty Plea Waives All Nonjurisdictional Pre-Trial and Trial Defects.

Defendant went to trial before he pled guilty.  On appeal he argued the court erred in admitting recorded conversations. The Fourth Department determined, by pleading guilty, the defendant forfeited his right to seek review of any nonjurisdictional defects in the proceedings, including issues arising from an audibility hearing and evidentiary rulings during trial.  People vs Alvarado, 130, KA 11-02011 Fourth Dept. 2-1-13

 

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Defendant’s Flight Did Not Justify Police Pursuit.

Flight was not sufficient to justify police pursuit.  A police officer had been shot in the afternoon.  About eight hours after the shooting, uniformed officers approached the defendant as he was walking within a block or two of where the shooting occurred.  The defendant said “What, we can’t go to the store?” turned his back, made a gesture toward his waistband, and ran. The police pursued him and saw him discard a handgun from his pocket as he was being tackled by an officer.  The defendant subsequently pled guilty to criminal possession of a weapon.  The Fourth Department reversed the conviction and vacated the sentence. “Flight alone … is insufficient to justify pursuit because an individual has a right to be let alone and refuse to respond to police inquiry …”.  Because there were no “specific circumstances indicating that the suspect [was] engaged in criminal activity,” there was no “reasonable suspicion” of criminal activity, “the necessary predicate for police pursuit…”.  People v Cady, 1427, KA 12-00337 Fourth Dept. 2-1-13

DeBour, street stops

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General Question Whether Defendant Was “A Law Abiding Person” Violated Sandoval Ruling and Required Reversal.

The prosecutor’s violation of the trial court’s Sandoval ruling required reversal and new trial.  Defendant was charged with rape.  Prior to trial defendant sought a Sandoval ruling that he could not be cross-examined about a nine-year-old conviction for sexual abuse.  The trial court ruled the defendant could not be cross-examined about the sexual abuse conviction because it did “relate to the two charges that are presently before the Court…” [and therefore could unduly prejudice the defendant in the eyes of the jury].   “The prosecutor, despite the court’s Sandoval ruling, asked a series of general questions regarding prior bad acts by defendant, and then questioned him specifically regarding the precluded prior conviction.”  The prosecutor started the prohibited line of questioning by asking the defendant whether he was “a law abiding person,” to which the defendant replied that he had been “for the last three years.” The Fourth Department held that the defendant’s answer did not “open the door” to questioning about the sexual abuse conviction, noting that “a defendant opens the door to cross-examination concerning previously-precluded evidence where…’defendant’s testimony was meant to elicit an incorrect jury inference’…”. The Fourth Department stated unequivocally that the “People may not elicit a general statement by asking questions that violate the Sandoval ruling for the sole purpose of circumventing that ruling.”  People v Snyder, 1370, KA 11-00316 Fourth Dept. 2-1-13

 

Missing Witness Charge Must Be Requested When It Is Known Witness Will Not Testify.

Request for a missing witness jury instruction must be made when it is learned the witness will not be called, not after the close of proof.  Midstate Mutual Insurance Co vs Camp Road Transmission, Inc., 1462, CA 12-00961 Fourth Dept. 2-1-13

 

 

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Successful Challenge to Property Tax Assessment Affirmed,

The board of managers of a condominium complex successfully challenged the town valuation of the property for real estate tax purposes.  The town appealed and the Fourth Department affirmed (with two justices dissenting).  The lengthy decision includes detailed discussions of the nuts and bolts of commercial property tax assessments, including the determination of the capitalization rate, the necessary documentation for an appraisal, the necessary qualifications for an appraiser, and the use of opinion evidence. In the Matter of French Oaks Condominium v Town of Amherst, et al, 1040, CA 12-00434 Fourth Dept. 2-1-13

 

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Arbitrator’s Rulings Largely Unreviewable

An arbitrator’s interpretation of a collective bargaining agreement was vacated by the trial court.  The Fourth Department reversed and confirmed the arbitration award.  The decision includes a substantive discussion of the criteria that must be met before an arbitration award can be disturbed by a court.   “[A]n arbitrator’s rulings, unlike a trial court’s, are largely unreviewable…”.  An arbitrator’s interpretation of a contract may be set aside “only if the [arbitrator] gave a completely irrational construction to the provisions in dispute and, in effect, made a new contract for the parties…”.  Matter of the Arbitration between Professional, Clerical, Technical, Employees Association and Board of Education for Buffalo City School District, 1317, CA 12-01143 Fourth Dept. 2-1-13

 

 

Liability for Providing Alcohol to Under-Age Purchaser Only Triggered by Injury Caused by the Purchaser.

There is no common-law cause of action for the negligent provision of alcohol.  Under General Obligations Law section 11-100, liability for furnishing alcohol is triggered only if the person who unlawfully received the alcohol causes injury.  In this case, a clerk in a convenience store sold alcohol to a 17-year-old with a fake ID who then shared the alcohol with friends.  One of the friends became intoxicated and had an automobile accident, injuring the plaintiff. Because it was not the purchaser of the alcohol who caused the accident, General Obligations Law section 11-100 did not apply.  Gutierrez vs. Devine, 1489, CA 12-01209 Fourth Dept. 2-1-13

 

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19-Year Preindictment Delay Okay; Prior Incidents of Domestic Violence Probative of Motive, Intent and Identity; Admissions Are Direct, Not Circumstantial, Evidence

A 19-year preindictment delay did not violate defendant’s speedy trial and due process rights. The charge was murder. The defendant was at liberty until indicted. The People established good cause for the delay in that the case was not ready to bring to a grand jury until the statements of three witnesses and DNA test results were obtained. The Fourth Department held that there was no need for a Singer hearing to determine the reason for the delay because there was no issue of fact with respect to the cause of the delay and the record provided County Court with a sufficient basis to determine whether the delay was justified. The admission of prior incidents of domestic violence against the victim (defendant’s wife) was proper because the evidence was probative of defendant’s motive, intent and identity. The defendant was not entitled to a circumstantial evidence charge because the admissions he made about killing his wife constituted direct evidence. People v Rogers, 1425, KA 11-00012 4th Dept. 2-1-13

 

 

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