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AFTER A VALID TRAFFIC STOP BASED ON THE LICENSE PLATES NOT MATCHING THE VEHICLE, DEFENDANT PRESENTED HIS TEMPORARY REGISTRATION AND EXPLAINED THE PLATES HAD BEEN TRANSFERRED FROM A DIFFERENT VEHICLE; AT THAT POINT THE AUTHORIZATION TO DETAIN DEFENDANT CEASED; THE SEIZED DRUGS SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT). ​

The Fourth Department, reversing defendant possession of a controlled substance conviction and dismissing the indictment, determined the police, after making a valid traffic stop of defendant’s vehicle, did not have the authority to detain him after he presented his temporary registration and explained that the license plates had been transferred from another vehicle:

… [T]he justification for the officer’s initial detention ceased once defendant showed the officer the temporary registration that had been issued for the vehicle and explained that the license plates on the vehicle had recently been transferred from another vehicle … .. We further conclude that the record does not support the court’s determination that the circumstances following the initial stop provided the officer with probable cause to believe that defendant was violating Vehicle and Traffic Law § 507 (2) … . Indeed, the record does not support the court’s finding that, when defendant produced a learner’s permit upon being asked to produce his driver’s license, the officer asked defendant to exit the vehicle due to the lack of a valid driver’s license. Thus, inasmuch as “the initial justification for seizing and detaining defendant . . . was exhausted” at the time of defendant’s removal from the vehicle, the evidence seized during the ensuing search of defendant’s person, as well as the statements that he made to the police thereafter, should have been suppressed … .People v Betsey-Jones, 2022 NY Slip Op 01924, Fourth Dept 3-18-22

Practice Point: Here the police stopped defendant because the license plates did not match the color and make of defendant’s vehicle in the DMV database. Once the the defendant showed the officer his temporary registration and explained the license plates had been transferred from a different vehicle, the justification for the detention of the defendant ceased. Any statements made and evidence seized after that point should have been suppressed.

 

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THERE WAS NO PROOF DEFENDANT EXERCISED DOMINION AND CONTROL OVER THE AREA WHERE THE DRUGS WERE FOUND; DEFENDANT’S MERE PRESENCE IN THE VICINITY OF THE DRUGS DID NOT PROVE HIS POSSESSION OF THE DRUGS (FOURTH DEPT).

The Fourth Department, reversing defendant’s possession of a controlled substance conviction and dismissing the indictment, determined defendant’s constructive possession of the drugs was not demonstrated. There was no proof defendant exercised dominion and control over the area in which the drugs were found, as opposed to merely being present in the vicinity of the drugs:

Where there is no evidence that the defendant actually possessed the controlled substance, the People are required to establish that the defendant “exercised ‘dominion or control’ over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized” … . The People may establish constructive possession by circumstantial evidence … , but a defendant’s mere presence in the area in which contraband is discovered is insufficient to establish constructive possession … . People v Mighty, 2022 NY Slip Op 01923, Fourth Dept 3-18-18

Practice Point: If a defendant does not physically possess the drugs, to prove constructive possession, the People must demonstrate the defendant exercised dominion and control over the area where the drugs were found, perhaps by proving defendant resided there, for example.

 

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THE JUDGE’S FAILURE TO PRONOUNCE THE DEFINITE TERM COMPONENT OF DEFENDANT’S SENTENCE REQUIRED VACATION OF THE SENTENCE AND REMITTAL FOR RESENTENCING; THE ISSUE SURVIVES A WAIVER OF APPEAL (FOURTH DEPT).

The Fourth Department, vacating defendant’s sentence and remitting for resentencing, determined the definite term component of the sentence was not pronounced by the court:

CPL 380.20 provides that a court “must pronounce sentence in every case where a conviction is entered.” That statutory requirement is “unyielding” … . A violation of CPL 380.20 “may be addressed on direct appeal notwithstanding [any] valid waiver of the right to appeal or the defendant’s failure to preserve the issue for appellate review” … . “When the sentencing court fails to orally pronounce a component of the sentence, the sentence must be vacated and the matter remitted for resentencing in compliance with the statutory scheme” … .

Here, although the certificate of conviction states that defendant was sentenced to a split sentence of a definite term of time served in jail and five years of probation, which is consistent with the sentencing promise made during the plea proceeding, the court failed to orally pronounce during the sentencing proceeding the definite term component of defendant’s sentence as required by CPL 380.20 … . People v Adams, 2022 NY Slip Op 01921, Fourth Dept 3-18-22

Practice Point: Every component of a sentence must be “pronounced” by the judge in open court or the sentence will be vacated.

 

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IN RESPONSE TO A BATSON INQUIRY, THE PROSECUTOR’S REASON FOR STRIKING THE PROSPECTIVE JUROR IN FACT RELATED TO ANOTHER PROSPECTIVE JUROR FOR WHOM DEFENDANT HAD EXERCISED A PEREMPTORY CHALLENGE; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s convictions and ordering a new trial, determined that, in response to a Batson inquiry, the prosecutor’s reason for striking the prospective juror did not, in fact, relate to the correct prospective juror. Rather, the prosecutor’s reason related to another prospective juror for whom the defendant had exercised a peremptory challenge:

… [T]he prosecutor stated that the reason that he exercised a peremptory challenge on the prospective juror at issue was due to “her answer as to why she wanted to sit on the jury.” Specifically, the prosecutor explained that the prospective juror expressed an “odd interest in the defendant’s right to remain silent, right to testify,” and that “[t]he way she answered the question . . . was very strange.” However, … the statements the prosecutor attributed to the prospective juror at issue were, in fact, made by a prospective juror upon whom defendant exercised a peremptory strike. Because “a proffered race-neutral reason cannot withstand a Batson objection where it is based on a statement that the prospective juror did not in fact make” … , “an equal protection violation was established” … .People v Douglas, 2022 NY Slip Op 01919, Fourth Dept 3-18-22

Practice Point: If, pursuant to a Batson inquiry, the prosecutor refers to answers given by the wrong prospective juror, a new trial will be ordered.

 

THE SUPPORT MAGISTRATE SHOULD NOT HAVE DEVIATED FROM THE PRESUMPTIVE SUPPORT OBLIGATION CALCULATED PURSUANT TO THE CHILD SUPPORT STANDARDS ACT (CSSA) BASED UPON THE EXPENSES INCURRED BY MOTHER WHEN THE CHILDREN WERE WITH HER; THE EXPENSES DID NOT QUALIFY AS “EXTRAORDINARY EXPENSES” (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the support magistrate should not have deviated from the presumptive support obligation calculated pursuant to the Child Support Standards Act (CSSA):

… [T]he Support Magistrate determined that, because the children spent approximately 50% of the parenting time with the mother and because the mother incurred expenses for the children’s “food, clothing, shelter, utilities, cell phones, transportation[,] and extracurricular activities” during the times they were with her, she should be granted a variance from the presumptive support obligation. That was error. Although “extraordinary expenses incurred by the non-custodial parent in exercising visitation” with a child not on public assistance may support a finding that the presumptive support obligation is unjust or inappropriate … , “[t]he costs of providing suitable housing, clothing and food for [a child] during custodial periods do not qualify as extraordinary expenses so as to justify a deviation from the presumptive amount” … , “nor is the cost of entertainment, including sports, an extraordinary visitation expense for purposes of calculating child support” … . Matter of Livingston County Support Collection Unit v Sansocie, 2022 NY Slip Op 01914, Fourth Dept 3-18-22

Practice Point: Mother’s expenses for the children when they stayed with her did not qualify as “extraordinary expenses.” Therefore the support magistrate should not have deviated from the presumptive support obligation calculated pursuant to the Child Support Standards Act (CSSA).

 

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THE CRITERIA FOR IMPOSING THE MAXIMUM RESTITUTION SURCHARGE OF 10% WERE NOT MET (FOURTH DEPT).

The Fourth Department, reversing (modifying) County Court, determined the criteria for imposing the maximum restitution surcharge of 10% were not met:

… [T]he judgment … is … modified as a matter of discretion in the interest of justice by reducing the surcharge to 5% of the amount of restitution … . * * *

… [T]he court erred in imposing the 10% surcharge because there was no ” ‘filing of an affidavit of the official or organization designated pursuant to [CPL 420.10 (8)] demonstrating that the actual cost of the collection and administration of restitution . . . in [this] particular case exceeds five percent of the entire amount of the payment or the amount actually collected’ ” … . People v Webber, 2022 NY Slip Op 01904, Fourth Dept 3-18-22

Practice Point: Before the maximum restitution surcharge of 10% can be imposed, an affidavit must be filed demonstrating the actual cost of collection.

 

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WHERE AN ORDER CONFLICTS WITH A DECISION, THE DECISION CONTROLS (FOURTH DEPT).

The Fourth Department, modifying Supreme Court in this post-judgment matrimonial case, determined the decision controls the discrepancy between the order and the decision:

… [B]oth parties expressly agreed in the oral stipulation that plaintiff’s benefits would be distributed “[i]n accordance with the Majauskas formula.” That oral stipulation was an unambiguous expression of the parties’ intent to follow Majauskas, …

… [T]he amended order conflicts with the court’s written decision insofar as the … amended order purports to award defendant 23.86% of a former spouse survivor annuity under 5 USC § 8341 (h) (1). The stated percentage represents defendant’s share of plaintiff’s gross monthly annuity, as calculated by the court pursuant to the Majauskas formula, but the court in its decision made no award to defendant of a former spouse survivor annuity, which, had it been awarded, would have expressly conflicted with the parties’ agreement. Where, as here, there is a conflict between the decision and the order, the decision controls, and we therefore modify the amended order accordingly … . Reukauf v Kraft, 2022 NY Slip Op 01898, Fourth Dept 3-18-22

Practice Point: If there is a conflict between an order and a decision, the decision controls.

 

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THE NEGLECT FINDING WAS NOT SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE, CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing Family Court’s neglect finding, determined the finding was not supported by the preponderance of the evidence:

“[A] party seeking to establish neglect must show, by a preponderance of the evidence … , first, that a child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship” … .. In considering whether the requisite minimum degree of care was provided, “[c]ourts must evaluate parental behavior objectively: would a reasonable and prudent parent have so acted, or failed to act, under the circumstances then and there existing” … . Here, the evidence at the fact-finding hearing establishes that the mother acknowledged her mental health issues and had been compliant with treatment following her discovery that she was pregnant … ; and that she was engaged in a supportive housing program that would allow her to care for the child, thereby limiting any extended need for foster care … . Matter of Isabella S. (Nicole S.), 2022 NY Slip Op 01897, Fourth Dept 3-18-22

Practice Point: Although the specific allegations of neglect are not described in this decision, the criteria for a neglect finding are clearly explained.

 

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THE POLICE MISTAKENLY BELIEVED THE MAN IN A MOTEL ROOM (DEFENDANT) WAS A SUSPECT IN A SHOOTING; AN INFORMANT HAD TOLD THE POLICE THE MAN IN THE ROOM WAS FROM ROCHESTER, HIS NICKNAME WAS “JAY” AND HE “HAD A WARRANT;” WHEN THE MAN LEFT THE ROOM, THE POLICE STOPPED HIS TAXI; THE PEOPLE DID NOT DEMONSTRATE THE LEGALITY OF THE STOP (FOURTH DEPT).

The Fourth Department, reversing the denial of defendant’s suppression motion and dismissing the indictment, determined the People did not demonstrate the legality of the defective’s order to stop the taxi in which defendant was a passenger. An informant told the police a man in a motel room was from Rochester, his nickname was “Jay,” and he “had a warrant.” The detective believed the man in the motel room was a suspect in a shooting which occurred a month before. Surveillance was set up and the detective was told a man had left the room and gotten into a taxi. The defective, who did not see the man leave the room, ordered the stop of the taxi: It turned out that defendant was not the shooting suspect. He was charged with possession of a controlled substance:

At the suppression hearing, a police detective testified that he directed the stop of the taxi based on a belief that defendant was in fact a different man whom authorities had identified as a suspect in a shooting that had occurred over a month earlier. …

The detective conceded that he had never seen a still photo of the suspect, that the video of the shooting that he did view lacked detail, and that he was unaware of whether the suspect’s actual height, weight, skin tone, or other specific discernable characteristic were on the arrest warrant for the shooting suspect. Further, the informant never identified the man in the motel room as the shooter, and the vague description given, i.e., that the man was from Rochester, that his nickname was the ubiquitous “Jay,” and that he “had a warrant”, is too generalized to support the reasonable suspicion required for the officers’ stop of the taxi … . … This is also not a case in which the “proximity of the defendant to the site of the crime[ and] the brief period of time between the crime and the discovery of the defendant near the location of the crime” added to the totality of circumstances supporting the detective’s reasonable suspicion … . People v Singleton, 2022 NY Slip Op 01893, Fourth Dept 3-18-22

Practice Point: The police mistakenly thought the man in a motel room (defendant) was a shooting suspect based upon vague and general allegations made by an informant. When he left the motel room, the defendant’s taxi was stopped and he was subsequently charged with possession of a controlled substance. The People did not demonstrate the legality of the stop.

 

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THE JUDGE SHOULD NOT HAVE RELIED ON EVIDENCE GIVEN AT A MATERIAL WITNESS HEARING, FROM WHICH DEFENDANT WAS PROPERLY EXCLUDED, AT A SUBSEQUENT SIROIS HEARING AT WHICH THE WITNESS DID NOT TESTIFY (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the judge should not have relied upon evidence given at a material witness hearing, from which the defendant was properly excluded, at a subsequent Sirois hearing at which the material witness did not testify:

At [the material witness] hearing, the witness … testified that she had been threatened by defendant, the codefendant, and others in an attempt to prevent her from testifying at trial. Although the court granted the People’s application for a material witness order and set bail to ensure the witness’s availability, the next day the People requested a Sirois hearing and sought a determination that the witness had been made constructively unavailable to testify at trial by threats attributable to defendant … . …

A defendant generally has no constitutional right to be present at a material witness hearing … ; however, a “[d]efendant’s absence from [a Sirois] hearing[] could have a substantial effect on his [or her] ability to defend” … . Here, although there is no dispute that the initial material witness hearing was not intended to address any Sirois or other evidentiary issues … , the court erred in relying on the unchallenged testimony taken therein in making its Sirois determination … . Indeed, the court effectively, and erroneously, incorporated the material witness hearing into the subsequent Sirois hearing by expressly relying on that testimony and on its own observations of the witness’s demeanor in making its determination. People v Phillips, 2022 NY Slip Op 01710, Fourth Dept 3-11-22

Practice Point: The judge relied on the witness’s testimony at a material witness hearing, at which defendant was not present, for his ruling in a Sirois hearing, at which the witness did not testify. Defendant was thereby deprived of his right to confront the witnesses against him at the Sirois hearing. New trial ordered.

 

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