Wednesday, February 07, 2007

AD3: Decisions for February 1, 2007

Not too much of note from the Third Department this packet. Only two cases merit mention, and neither one breaks any new ground.

In trouble with the law and with his girlfriend

People v Jacobs, 2007 NY Slip Op 00697 [available here]

At his trial for rape and burglary, defendant admitted to entering an 84-year-old woman's home in the middle of the night, stripping naked from the waist down, and climbing into bed with the elderly woman. His defense? He was drunk, and "he mistook the victim for his 33-year-old girlfriend." (Jacobs, 2007 NY Slip Op 00697.) I'm guessing this is now his ex-girlfriend. After noting that the "jury obviously did not credit defendant's testimony," the Court held the evidence sufficient to support his rape and burglary convictions. While the victim "'blanked out' during certain portions of the assault", the forensic evidence and the victim's testimony established the required elements. (Id. at __.)

Can you hear me now? Good, you're under arrest.

People v Turner, 2007 NY Slip Op 00702 [available here]

A homeowner awoke at 3:30 a.m. to the sounds of someone breaking in to his house. He yelled at the intruder, "who took the victim's cell phone and left." (Turner, 2007 NY Slip Op 00702.) "The victim called 911 and the person who had been in his home was described as a black male dressed in two-tone tan clothes." (Id.) The cell phone was described as "silver-colored", and this information was broadcast to the responding officers.

About ten minutes later, a police officer about 2-3 blocks from the crime scene "observed defendant, a black male who was wearing two-tone tan clothing, walking in an area where there was very little pedestrian traffic and talking on what appeared to be a silver cell phone." (Id. at __.) The officer approached defendant and told him to hang up the phone. The officer radioed back to the scene and had another officer call the victim's cell phone number; the cell phone in defendant's hand rang and defendant was arrested. (Id. at __.)

On those facts, the Third Department held that the officer had reasonable suspicion to justify the initial approach of defendant, and that reasonable suspicion ripened into probable cause for arrest once it was established that the cell phone in defendant's hand belonged to the burglary victim. "Defendant's race and clothes were consistent with the description of the perpetrator, he was located close in time and proximity to the crime scene (at an hour of day when few people were out on the streets), and he was openly using a cell phone that matched the one reportedly stolen from the crime scene. The evidence provided [the officer] with reasonable suspicion of defendant's involvement, and upon confirming that the cell phone was, in fact, the one removed from the victim's residence, there was probable cause to arrest defendant." (Id. at __.)