TASERS – New York Appellate Digest https://www.newyorkappellatedigest.com Sun, 06 Dec 2020 02:20:11 +0000 en-US hourly 1 https://wordpress.org/?v=7.0 https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/Favicon-Blue-01-36x36.png TASERS – New York Appellate Digest https://www.newyorkappellatedigest.com 32 32 171315692 Suppression Hearing Should Have Been Held to Determine Whether Property Seized by Use of Excessive Force (Taser) https://www.newyorkappellatedigest.com/2013/11/21/suppression-hearing-should-have-been-held-to-determine-whether-property-seized-by-use-of-excessive-force-taser/ Thu, 21 Nov 2013 18:23:13 +0000 http://newyorkappellatedigest.com/?p=19405 After determining defendant’s request to represent himself at trial was properly granted, the Third Department noted that a suppression hearing should have been held to determine whether excessive force (taser) was used to retrieve a bag of cocaine from defendant’s mouth:

As for the cocaine recovered from defendant’s mouth after he was tased more than once, defendant raised a question as to whether that evidence was seized from him through the use of excessive force, which requires an analysis “under the Fourth Amendment’s ‘objective reasonableness’ standard” .. .  Defendant’s affirmation described his version of the arrest and search, and his motion papers asserted that use of a taser constituted excessive force under the circumstances.  The People failed to substantively respond to this argument.  As the motion papers raised a factual dispute concerning the use of a taser and whether it might be considered excessive force, giving rise to a potentially unreasonable search and seizure that may require suppression of the evidence, a hearing was required… . People v Atkinson, 105126, 3rd Dept 11-21-13

 

]]>
19405
Taser or Stun Gun Is Not a “Dangerous Instrument” for Purposes of Burglary and Menacing Statutes; Court Must Articulate Specific Reasons for Shackling Defendant During Trial https://www.newyorkappellatedigest.com/2013/03/13/taser-or-stun-gun-is-not-a-dangerous-instrument-for-purposes-of-burglary-and-menacing-statutes-court-must-articulate-specific-reasons-for-shackling-defendant-during-trial/ Wed, 13 Mar 2013 20:56:19 +0000 http://newyorkappellatedigest.com/?p=33696 Proof that the defendant threatened the complainant with a taser or stun gun was legally insufficient to establish the “dangerous instrument” element of burglary in the first degree and menacing in the second degree.  Although the Second Department determined it was harmless error, the Court also noted that it was error to shackle the defendant and put black bunting around the defense table, without also putting black bunting around the prosecution table. The jury, in that circumstance, may have inferred the bunting was designed to hide shackles.  “The federal constitution ‘forbids the use of visible shackles … unless that use is justified by an essential state interest … specific to the defendant on trial’ …”.  County Court, in this instance, failed to articulate on the record an adequate justification individualized to the defendant for the shackling … .  People v Morillo, 2013 NY Slip Op 01572, 2010-11438, Ind No 2052/09, 2nd Dept. 5-13-13

 

]]>
33696