As previously noted, the September term of the Fourth Department was not a great one for criminal decisions. Here are the best of the rest, in no particular order:
People v Rodriguez (or, note my exception, again): the Fourth refused to reach the merits of defendant's Sandoval issue because "[b]y failing to object to the court's ultimate Sandoval ruling, defendant failed to preserve for our review his contention that the ruling constitutes an abuse of discretion." (People v Rodriguez, 2005 WL 2404602, 2005 NY Slip Op 07179 [decision available here].) I think this "ultimate objection" requirement is unnecessary for preservation, and revives in fact if not in verbiage the old technical "exception" requirement for preservation. Alas, the Fourth Department still does not agree. See my previous post on the subject here.
People v Mayo: defendant's guilty plea to SCI vacated because "[w]here, as here, a defendant is charged with a class A felony, the defendant cannot validly waive indictment or consent to be prosecuted by a superior court information." (People v Mayo, 2005 WL 2404043, 2005 NY Slip Op 07082 [decision available here].)
People v Chambers: duration of an order of protection improper because the trial court "failed to take into account the jail time credit to which he was entitled." (People v Chambers, 801 NYS2d 171 [decision available here].) The issue was not preserved, but the Fourth Department reached it in the interests of justice.
People v Davis: a rare reduction of defendant's sentence as harsh and excessive. (See People v Davis, 2005 WL 2404142, 2005 NY Slip Op 07110 [decision available here].)
People v Cooke & People v Robinson: vacating defendants' sentences in the interest of justice: "because restitution was not part of the plea agreement, the court should have afforded defendant the opportunity to withdraw his plea before ordering him to pay restitution." (People v Robinson, 2005 WL 2404422, 2005 NY Slip Op 07136 [decision available here].)
The decision in People v Kilgore deserves somewhat lengthier treatment. The majority reversed defendant's drug possession conviction, finding that defendant's "motion to suppress physical evidence by the police following a warrantless entry into his apartment" should have been granted because "exigent circumstances" did not exist to justify the warrantless entry. (See People v Kilgore, 2005 WL 2403327, 2005 NY Slip Op 07019 [decision available here].) The Court set out the relevant factors to consider:
'Although not to be taken as a rigid formula, the following factors should be considered in determining whether exigent circumstances exist: (1) the gravity or violent nature of the offense; (2) whether there is a reason to believe the suspect is armed; (3) whether there is a clear showing of probable cause; (4) whether there is a strong reason to believe the subject is in the premises being entered; (5) the likelihood the suspect will escape if not swiftly apprehended; and (6) the peaceful circumstances of the entry.'
(Id [citing the relevant factors from People v Burr, 124 AD2d 5.].)
The majority found no exigent circumstances existed because "[a]lthough the alleged victim herein reported to the police that she had been raped, there was no indication that defendant was armed. Additionally, the alleged victim told the police that she left defendant's apartment after defendant had fallen asleep, and thus there was no suggestion that defendant would have escaped if not swiftly apprehended." (Id.)
Justice Hayes dissented, and would have applied the Burrfactors differently in finding exigent circumstances existed; from the dissent:
A violent offense had been reported, i.e., a rape, and the police had probable cause to believe that defendant had committed the offense. The police had 'strong reason to believe' that defendant was inside the apartment, based on the statement of the victim that her attacker was asleep when she left the apartment and the sounds heard by one of the officers coming from inside the apartment. Although there was no specific evidence that defendant would attempt to escape, 'there [also] is no indication that he was not seeking to escape.' The police entered the apartment peacefully through the apartment door, which was left ajar. Thus, in my view, the court properly refused to suppress the physical evidence seized from defendant's apartment.
(Id. at ___ [HAYES, J., dissenting].)
It is hard to fault either the majority or dissent--each picked those Burr factors that supported their respective outcomes and downplayed the others. My hunch is that the fact that this was a drug possession conviction--and not a conviction for the reported rape--made the difference for the majority.
