AD4: Crawford does not apply to suppression hearing

People v Brink, 2006 NY Slip Op 05428 [available here]

In a decision confirming what was already suspected, the Fourth Department held in People v Brink that the so-called "testimonial" rule of Crawford v Washington [541 US 36] is a trial right that does not apply at a pretrial suppression hearing. From the decision:

We reject the contention of defendant that Crawford v Washington applies to his pretrial suppression hearing and that reversal is required because his right of confrontation was violated at the hearing. As the Supreme Court has written, "[t]he right [of] confrontation is basically a trial right." Indeed, "the interests at stake in a suppression hearing are of a lesser magnitude than those in the criminal trial itself. At a suppression hearing, the [suppression] court may rely on hearsay and other evidence, even though that evidence would not be admissible at trial."

(People v Brink, 2006 NY Slip Op 05428.)

Unlike the murkiness surrounding the definition of "testimonial", the Supreme Court has pretty consistently telegraphed that it will apply the Confrontation Clause formulation of Crawford only at trial. So the Fourth Department's decision refusing to apply Crawford at sentencing is no big surprise.

AD4: refusal to allow cross-examination concerning motive to fabricate rape allegations = denial of right to present a defense

People v Mc Farley, 2006 NY Slip Op 05447 [available here]

At his trial on allegations of raping a high school student, defendant Mc Farley attempted to elicit testimony that the complainant and her mom had a monetary motive for making the allegations, and that the complainant had commented to a friend (after watching the movie "Wild Things") that she would like to try falsely accusing somebody of rape. The trial court refused to allow defense counsel to explore these areas, and specifically restricted counsel's cross-examination accordingly. The Fourth Department reversed, holding that the trial court's ruling thwarted the defendant's right to present a defense. From the decision:

Defendant was entitled to explore his theory that the victim and her mother had a profit motive in accusing defendant of rape five months after the alleged rape occurred and his theory that the victim accused defendant of rape based on a movie she had seen.

[quotes from United States Supreme Court cases guaranteeing the right to present a defense and to cross-examine witnesses omitted]

Here, defendant sought to cross-examine a witness with respect to a statement by the victim's mother in which she had threatened to "sue." In addition, he sought to present testimony that the victim had watched the movie "Wild Things," which dealt with high school students who made false allegations of rape against a teacher, and that the victim had commented to a defense witness that she would like to "try it on somebody." "[E]xtrinsic proof tending to establish a reason to fabricate is never collateral," and the court erred in precluding defense counsel from presenting that proof.

(People v Mc Farley, cite.)

I'm sure there is a Denise Richards joke in here somewhere.

AD4: No cocaine, no arrest

People v Ortiz, 2006 NY Slip Op 05409 [available here]

The police stopped the vehicle driven by Mr. Ortiz after listening in on some phone calls where a sale of cocaine between Ortiz and a police informant was discussed. But despite this bit of intelligence, a search of Mr. Ortiz and his car turned up no cocaine. Undeterred, the police (there were five officers on the scene at this point) placed Mr. Ortiz in the back of a police cruiser and continued to question him. After some "accusatory" questioning, Mr. Ortiz consented to a search of his home (where cocaine was later found) and signed a statement admitting to possessing cocaine. The trial court refused to suppress the cocaine and the statement, and the Fourth Department reversed. From the AD4's opinion:

The record establishes that the police lacked probable cause for the roadside arrest inasmuch as the search of defendant's person and vehicle did not result in the recovery of any illegal substances or any other basis upon with to arrest defendant. [...] Indeed, we note that the People do not contend on appeal that the police had probable cause for a roadside arrest but, rather, they contend that the police arrested defendant only after drugs were found at his home following his consent to that search and defendant had signed a statement in which he admitted that he sold drugs. "The fact that the police were ultimately successful does not justify defendant's arrest. The police are not at liberty to arrest and hold a suspect while they search for evidence sufficient to justify their action."

(People v Ortiz, __ AD3d at __.)

A particularly nice aspect of this decision is that the Fourth Department found the defendant subject to a "roadside arrest" (i.e. in custody for purposes of triggering a full-blown probable cause analysis) when the defendant was placed in the back of the police cruiser at the scene. Notably, the Court went out of its way to note the defendant was not handcuffed and that he was "asked" (and not ordered) to "sit in the police vehicle." (Id. at __.) Nevertheless, the Court found defendant to be under de facto arrest at this point, and not subject to the amorphous, supposedly less onerous "investigatory detention" (justifiable on the less stringent showing of "reasonable suspicion"). Pegging the precise moment of de facto arrest is critical in this type of case, because only after a de facto arrest is shown is the probable cause requirement triggered. That the Fourth Department found a "roadside arrest" occurred even absent handcuffing or the use of coercion to get defendant into the police vehicle is encouraging.

Justice Pigott nominated to Court of Appeals

This past Friday, Governor Pataki announced his nomination to the Court of Appeals of Justice Eugene Pigott, Jr., currently presiding Justice of the Fourth Department. If confirmed, Justice Pigott will take the seat currently occupied by Judge G.B. Smith. The New York Law Journal has a nice article about the appointment here.

AD4: not all blue cars are created equal

People v Taylor, 2006 NY Slip Op 05429 [available here]

At about 10:30 p.m., a police radio call "reported that 'two male blacks' . . . had committed an armed robbery in the area of Conkey Avenue and were observed leaving the scene in a 'light blue Ford Contour'". (People v Taylor, cite.) About 2 1/2 hours later, police officers "observed a light blue Mercury Mystique containing two occupants at the intersection of Clifford Avenue and Conkey Avenue." (Id.) Although not able "to discern the race of the occupants", the police pulled over the Mystique with the stated intention to identify the occupants and question them about the robbery. (Id. at __.) The trial court upheld the stop, and the Fourth Department reversed; from the AD4 decision:

It is well settled that the police may stop a vehicle based upon a "reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime". [...] Here, the facts known to the police, along with any rational inferences to be drawn therefrom, were insufficient to establish reasonable suspicion that the driver or occupants of the vehicle had committed the robbery. Indeed, the stated purpose of the stop was to "identify the occupants of the vehicle" and to "ask them if they had possibly known anything" about the robbery, and we thus conclude that the stop was not based on the requisite reasonable suspicion.

(Id. at __ [citations omitted].)

As a someone who drives, I find it comforting that the Fourth Department has ruled that you cannot be stopped and questioned by the police for driving the same color car as a suspected criminal.

CA: trial court must charge jury that victim's prior threats may be used to determine initial aggressor

People v Petty, 2006 NY Slip Op 05232 [available here]

In an opinion that escaped my attention when it was handed down about a month ago, the Court of Appeals held that a trial court erred in failing to instruct the jury that a victim's prior threats could be considered by the jury not only in determining the reasonableness of defendant's conduct but also to determine whether the victim was the initial aggressor for justification purposes. Yes, I just started a post with a 66-word sentence.

The defendant in People v Petty shot his victim in the back of the neck. At trial, the defendant argued that his use of force was justified based on the victim's prior threats against defendant's life. Defense counsel asked that the jury be charged that these prior threats could be considered in determining whether the victim was the initial aggressor. The trial court refused to give the requested charge, and instructed the jury instead that the prior threats were relevant only in determining the reasonableness of defendant's use of force. From the Court's opinion:

Here, having instructed the jury on the use of Torrence's prior threats against defendant for the purpose of determining defendant's reasonableness, the trial court, based on this Court's long-standing precedent, should have also instructed the jury that, for its initial aggressor determination, it was permitted to use the prior threats that it heard throughout the trial.

(People v Petty, 2006 NY Slip Op 05232.)

Despite finding error, the Court declined to reverse defendant's conviction; the Court concluded that the People disproved the justification defense beyond a reasonable doubt and the charging error was therefore harmless. (Id. at __.)

Upcoming arguments at the Court of Appeals

Three cases out of the Fourth Department are currently pending argument before the Court of Appeals (Big Hat Tip to the fine folks at the Center for Appellate Litigation). Here they are, in no particular order:

People v Bolling: the issue in Bolling is whether a trial court is required to instruct the jurors that they must acquit defendant of all charges (including lesser-included offenses) if they find defendant justified as to a top count. Both the First and Second Departments require such a charge, and failure to give it is reversible error. In Bolling, the Fourth Department refused to reverse based on a trial court's failure to give the requested charge, and recognized the split thus created among the Appellate Division Departments. See my previous post on Bolling here. The case will be argued October 12, 2006. (Full disclosure: I am Mr. Bolling's attorney and will be arguing his case before the Appeals.)

People v Cagle: the defendant in Cagle was sentenced as a second felony offender based on the trial court's determination that he had been convicted of a prior felony within 10 years of the commission of the crime he was being sentenced on. In calculating the 10-year period, the trial court excluded time defendant spent on work release supervision, reasoning that "work release" was the equivalent of "incarceration" for purposes of tolling the 10-year time period. The Fourth Department, in a 3-2 decision, affirmed the trial court's decision and held that "the tolling provision applies to the period of time in which defendant was in the day-reporting work release program inasmuch as he remained under the control and custody of the Department of Correctional Services." (Cagle, 26 AD3d 735 [2006].) As the dissenters noted, the Second Department has held just the opposite, and the Justice Pine (one of the AD4 dissenters) granted leave to resolve the question. The case will be argued October 19, 2006.

People v Carter: the primary issue in Carter is whether the trial court erred in failing to charge depraved indifference Assault 1st and intentional Assault 2nd in the alternative. The Fourth Department found the issue to be unpreserved and declined to reach it in the interests of justice.

You can see the entire list of the upcoming Court of Appeals arguments over at the Center for Appellate Litigation.