AD4: Defendant must be allowed to withdraw entire plea if agreed sentence is illegal as to one count

People v Ciccarelli, 2006 NY Slip Op 06655 [available here].)

The defendant pled guilty back in 1989 to one count of Criminal Sale of a Controlled Substance in the First Degree (CSCS 1st) and one count of Attempted CSCS 1st. The parties to the plea were operating under the understanding that Attempted CSCS1st was a class A-II felony, and the agreed-upon sentence (4 years to life) reflected this erroneous understanding. Attempted CSCS 1st is actually an A-I felony, making the agreed-upon sentence illegal. Defendant made a 440 motion to withdraw his entire plea based on the illegal sentence; the 440 court only allowed him to withdraw his plea to the Attempted CSCS1st count, and let the plea and sentence on the other count stand. The Fourth Department reversed:

The court erred, however, in granting the motion only to the extent of vacating the sentence imposed on that count and permitting defendant to withdraw his plea of guilty on that count. "Where the plea bargain includes a sentence which is illegal because the minimum imposed is less than that required by law, . . . the proper remedy is to vacate the sentence and afford . . . defendant, having been denied the benefit of the bargain, the opportunity to withdraw the plea" . Further, "[i]nasmuch as the entire sentence is part and parcel of the plea bargain,' it must be vacated in its entirety regardless of whether portions of the sentence are legal".

(Ciccarelli, 2006 NY Slip Op 06655 [citations omitted].)

New decisions from the AD4 coming this afternoon.

AD4: Crawford v Washington not applicable at probation violation hearing

People v Brown, 2006 NY Slip Op 06706 [available here]

In another less-than-surprising decision, the Fourth Department confirms that the testimonial hearsay rule promulgated by the Supreme Court in Crawford v Washington (based on the Confrontation Clause) does not apply at any proceeding other than a full criminal trial; in this case a probation revocation hearing. (Brown, 2006 NY Slip Op 06706.) As I noted here, the Supreme Court telegraphed as much in Crawford.

If at first you don't succeed . . .

People v Rodriquez, 2006 NY Slip Op 06683 [available here]

On the day before he killed a woman, Mr. Rodriquez tried to purchase a rifle. Having failed to acquire the gun, defendant opted for a less conventional method of murder--he doused his victim in gasoline and fired a flare gun at her. (Rodriquez, 2006 NY Slip Op 06683.) The trial court allowed the evidence of the failed rifle purchase, and the Fourth Department affirmed because the "testimony concerning his failed attempt to purchase a rifle . . . provided necessary background information and completed the narrative of events." (Id.) Of course. Because if you did not know that defendant tried to buy a gun the day before, you might attribute innocent intent to defendant's attempt to light his gasoline-soaked victim on fire with a flare gun.

AD4: Police officer's creepy come-ons not misdemeanor stalking

People v Watson, 2006 NY Slip Op 06680 [available here

A police officer in Jamestown, New York was charged with multiple counts of Stalking in the Fourth Degree (a B misdemeanor) and Stalking in the Third Degree (an A misdemeanor) based on his aggressive perverted pursuit of at least three women. The B misdemeanor counts were based on the allegations of three women that the cop (among many other things) "exposed his genitals", made inappropriate phone calls, "would sit outside ... in his patrol vehicle and shine the vehicle's lights into her bedroom, and he would grab his genitals while asking her questions such as whether she had dreamed about him." (Watson, 2006 NY Slip Op 06680.) The trial court dismissed some of the B misdemeanor Stalking counts because the women testified that, while they were creeped out by defendant, they were never afraid for their physical safety. The Fourth Department affirmed, noting that a required element of Stalking in the Fourth Degree is that defendant "knew or should have known that his conduct was likely to cause reasonable fear of material harm to the physical health or safety of the women", and the women's testimony that they harbored no such fear precluded the charge. (Id.)

Similar reasoning underpinned the dismissal of the A misdemeanor stalking counts (also affirmed by the AD4). To sustain that charge, the People had to prove that defendant's conduct "was likely to cause such person to reasonably fear . . . the commission of a sex offense against . . .such person [...]." (Id..) Again, the defendants were weirded out by defendant's conduct, but all testified that they did not believe defendant would actually commit a sexual assault. Given that testimony, the Fourth Department held the trial court's dismissal of the A misdemeanor stalking charges was appropriate.

Pigott's Last Packet

Justice Pigott handed down his leftover decisions last Friday (presumably on his way out of town for Albany), a week ahead of the rest of the Court. I'll post on the significant criminal decisions from this last packet between now and Friday (when the rest of the decisions from a busy September term come down).

Small town "justice"

The New York Times has a fascinating series of articles up exploring the system of Town and Village Justice Courts in New York. You can read the whole thing here. In my hometown, the village Justice also ran the "Chuck Wagon" (a converted Winnebago serving hamburgers and hotdogs) at the County Fair.

UPDATE: Nicole at Sui Generis links to the same article and has her own Town Court war stories here.

UPDATE 2: Part two of the series is up here.

UPDATE 3: And Part three is here.

AD4: warrantless arrest for violation only appropriate where offense occurs within officer's presence

People v Solomon, 2006 NY Slip Op 05459 [available here]

A woman called 911 and told them that defendant would not leave her house. When the police responded, defendant was seen "leaving the caller's home." (People v Solomon, 2006 NY Slip Op 05459.) Defendant was chased down and arrested, and was eventually charged with harassment in the second degree (a violation). Citing CPL 140.10, the Fourth Department held that, because the alleged harassment did not occur in the presence of the arresting officer, the warrantless arrest was illegal and the evidence found subsequent to arrest should have been suppressed. (See id. [The police may arrest a person for a violation without a warrant when, inter alia, they have 'reasonable cause to believe that such person has committed such offense in [t]heir presence'. The warrantless arrest of defendant for a violation, i.e., harassment, that did not occur in the presence of the arresting officers was therefore illegal [...].")

AD4: legal sufficiency issue still not preserved if trial defense counsel fails to renew TOD

People v Adamus, 2006 NY Slip Op 05520 [available here]

Just a reminder: if you are a practicing criminal defense attorney in the Fourth Department, you must renew any motion for a trial order of dismissal at the close of all proof to preserve any legal sufficiency issues for appeal. (See People v Adamus, 2006 NY Slip Op 05520 ["By failing to renew his motion to dismiss the indictment at the close of the proof, defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction"].) Carry on.

AD4: more than mere residence required to prove defendant constructively possessed drugs found in roommate's dresser

People v Gautreauz-Perez, 2006 NY Slip Op 05519 [available here]

Defendant was charged with Criminal Possession of a Controlled Substance in the Third Degree after police found cocaine "in a closed dresser drawer" in her roommate's bedroom. She was convicted after trial; the Fourth Department reversed and held her conviction was not supported by legally sufficient evidence. From the decision:

The mere fact that defendant lived at the residence where the drugs were found is, without more, legally insufficient to establish that she exercised the requisite dominion and control over the drugs "by a sufficient level of control over the area in which the [drugs were] found". Indeed, the evidence at trial established that only male clothing and male shoes were found in the southeast bedroom and that a male roommate of defendant was involved in a drug deal previously observed by the officers while on surveillance.

(People v Gautreauz-Perez, 2006 NY Slip Op 05519.)

A reassuring case for anyone who is unwittingly sharing his or her apartment with a drug dealer.

AD4: "right to be left alone" alive and well in New York

People v Lobley, 2006 NY Slip Op 05444 [available here]

Police responded to a citizen complaint of drug dealing at a certain address in Buffalo, and saw defendant hanging out with a group of men on the stoop. One of the officers "made eye contact with defendant and asked him to 'stop', [and] defendant ran into the downstairs apartment of the residence." (People v Lobley, 2006 NY Slip Op 05444.) The police chased defendant and, after being let into the apartment by an unidentified woman, observed defendant with a gun inside the apartment. Not done yet, "Defendant threw the gun into the air and ran through the backyard." (Id. at __.) He was caught and arrested later. The trial court refused to suppress the gun, and the Fourth Department reversed. The People on appeal conceded that the police did not have the requisite "reasonable suspicion" to justify the initial chase of the defendant, but instead argued that "the illegal pursuit ended when the police reached the locked door and that, when the door was opened, the observation of the police of defendant holding a gun provided probable cause for his arrest." (Id. at __.) The AD4 rejected this bit of constructive legal time travel. After first noting that flight alone "or even in conjunction with equivocal circumstances" is insufficient to justify pursuit, the Court held,

When the officers first observed defendant, he was imply standing next to a group of men seated on the stoop, and '[d]efendant's later conduct cannot validate an encoutner that was not justified at its inception'. Indeed, "[i]f these circumstances could combine with flight to justify pursuit, then in essence the right to inquire would be tantamount to the right to seize, and there would, in fact, be no right "to be let alone."

(Id. at __.)

It is worth noting that the New York constitution does the heavy lifting here, as the U.S. Supreme Court has arguably held the mere fact of flight sufficient to justify police pursuit. (See Illinois v Wardlow, 528 US 119 [2000].)

Upon further review . . .

People v Linnan, 2006 NY Slip Op 05482 [available here

Back in November, 2005, the Fourth Department considered Paul Linnan’s appeal from his murder conviction. The transcripts from jury voir dire showed that a prospective juror indicated she would have a hard time remaining fair and impartial if forced to look at gruesome photographs. But instead of reversing Mr. Linnan’s conviction (based on the juror’s failure to give adequate unequivocal assurances of impartiality), the Fourth Department held decision and remanded to the trial court. Why? Because in their brief on appeal, “the People assert[ed] that the exchange attributed by the transcript to the prospective juror not challenged for cause ‘may well have’ involved the prospective juror challenged for cause, and that the prospective juror challenged for cause may thereby have rehabilitated herself as an impartial juror.” (People v Linnan, 23 AD2d 1013, 1013 [4th Dept 2005].) This seemed odd to me at the time.

So what happened on remand? The People “in effect conceded that the prospective juror challenged for cause was not the same prospective juror who made the expurgatory statements [...].” (People v Linnan, 2006 NY Slip Op 05482.) In other words, the People’s assertion in their first appellate brief was so much hog-wash, and the People conceded as much on remand. Meanwhile, Mr. Linnan’s reversal was delayed 8 months.

Save some for the rest of us

People v Carter, 2006 NY Slip Op 05448 [available here]

Even while waging an (ultimately) unsuccesful campaign for mayor of Rochester, defense attorney John Parrinello managed to get the Fourth Department to reverse his client's conviction for various counts of Sodomy--on four separate legal grounds. Way to hog the issues. The Fourth Department agreed with Mr. Parrinello that, 1) the trial court erred in refusing to allow Mr. Parrinello to present "testimony concerning the reputation of the victim" where a proper foundation was laid and Parrinello agreed "to limit his direct examination of the witnesses to the general reputation of the victim in the community for truth and veracity"; 2) the trial court "also committed reversible error in allowing the People to present the testimony of a witness concerning his sexual acts with defendant" where the sex acts were consensual; 3) the prosecutor engaged in misconduct during opening argument, summation and cross-examination of defense witnesses (i.e. continually referring to defendant as a dangerous sexual predator, among other things), and; 4) the search warrant was overbroad "because it allowed the police to obtain evidence not specifically connected to the alleged crimes related to the victim." (People v Carter, 2006 NY Slip Op 05448.)

Given the Fourth Department's multiple pro-defendant reversals in the June packet, and further given this case (that contains more grounds for substantive pro-defendant reversals than usually show up in a whole term's worth of decisions), I can only conclude that either, 1) the end is near, or 2) the Fourth Department will not reverse another conviction until April, 2010.