Monday, March 05, 2007

AD3: Decisions for March 1, 2007

Rare reduction of sentence as harsh and excessive

People v Val, 2007 NY Slip Op 01631 [available here]

Defendant was convicted after trial of sexual abuse in the first degree. Although the Third Department found the jury's verdict was not against the weight of the evidence, the Court nevertheless reduced defendant's sentence from 7 to 5 years. "Defendant had no criminal record, was employed and was attempting to further his education. The jury rejected significant portions of the victim's testimony. The presentence investigation report indicates that the victim elected not to file an impact statement and the report characterized defendant as intelligent and motivated to succeed in life." (People v Val, 2007 NY Slip Op 01631.)

Defendant not entitled to DNA protocols, frequency tables as part of mandatory discovery.

People v Alvarez, 2007 NY Slip Op 01632 [available here]

Prior to trial, defendant made a discovery demand requesting (among other things) the frequency tables and testing protocols related to certain DNA testing. The Third Department held that those materials did not fall under the mandatory discovery provisions of CPL 240.20. From the decision:

Courts have held that CPL 240.20 (1) (c) requires the prosecution to disclose any notes or documents used in the preparation of reports or related to the specific tests of items in a defendant's case, but not the lab's generic DNA testing protocols or procedure manuals. The protocol utilized by the State Police lab to determine when its employees may designate a DNA profile as a match was not a document concerning the particular test performed at the request of the prosecutor, but instead applied to all DNA tests performed at the lab. While this protocol may have been discoverable by defendant on a motion properly made and supported with proof "that discovery with respect to such property is material to the preparation of his defense, and that the request is reasonable", defendant's request for this information was not supported with any affidavits establishing materiality or reasonableness. It is interesting that defendant did not object to the lack of foundation for the test results on any basis, defense counsel did not specifically question the People's expert regarding the lab's protocol on determining DNA profile matches and the calling of alleles at each locus, and the defense expert did not conduct independent testing, as he could have done, but instead ran the raw data through a gene profiling computer program which reviewed the data and called some of the prosecution's results into question. Under the circumstances, the prosecution provided all documents required to be disclosed under CPL 240.20 or which were constitutionally required.

(Alvarez, 2007 NY Slip Op 01632.)

Officer's general suspicion that suspect "was secreting something in his pants" justified strip search

People v Banks, 2007 NY Slip Op 01636 [available here]

Schenectady police officers stopped the defendant, and learned he had outstanding warrants from the town of Amsterdam. The Schenectady cops turned the defendant over to the Amsterdam police, and one of the Schenectady officers told the Amsterdam officers his "suspicion that defendant was secreting something in his pants [...]." (Banks, 2007 NY Slip Op 01636.) Once in the Amsterdam police car, "the Amsterdam police observed defendant . . . attempting to reach in his pants, causing the officer to conclude that the information from the Schenectady police was accurate and that defendant was attempting to remove something and secrete it in the police car." (Id. at __.) Once at the Amsterdam police station, defendant was strip searched. (Id. at __.) The cops testified at suppression that Amsterdam had "a policy of conducting strip searches of every arrestee remanded to the local correctional facility." (Id. at __.)

The Third Department upheld the strip search. While noting that a policy of strip-searching every arrestee is unconstitutional, the Court nevertheless concluded that "the Amsterdam police properly formed a reasonable suspicion that defendant had contraband on his person and that the strip search was therefore reasonable." (Id. at __.)