CA: 1,000 words are worth a picture

People v Kozlow, 2007 NY Slip Op 03592 [available here]

The defendant in Kozlow was convicted of disseminating indecent materials to minors in the first degree. To be guilty under the statute, a defendant must disseminate indecent materials to a minor and use the communication to convince the minor to engage in sexual contact with the defendant. (Kozlow, 2007 NY Slip Op 03592.) To fall within the statute, the electronic communication must "depict" nudity or sexual conduct. (Id. at __.)

The defendant in Kozlow sent emails to an investigator posing as a minor. The emails described, in writing, various sexual acts. (Id. at __.) No pictures were sent. On appeal, the defendant argued that, since the emails did not include pictures, the messages did not "depict" sexual acts. The Court of Appeals (in a majority opinion by Judge Pigott) disagreed. While noting that the word "depict" has its origins in a Latin word meaning "to paint", and that one definition is "to represent in a picture", "the word 'depict' also has a standard sense of 'to represent or portray in words' and it has been used in that manner since the colonial era." (Id. at __.) "Defendant's argument . . . that the Legislature was seeking to criminalize the luring of a child into a sexual encounter by transmission of visual images, while leaving a loophole allowing a predator to lure a child into sex through transmission of words alone, falls of its own weight." (Id. at __.)

Justice Smith dissented, and would have interpreted "depicts" in its common, narrow sense; "to represent by a picture." (Kozlow, 2007 NY Slip Op 03592 [SMITH, J., dissenting].)

AD4: Decisions for April 20, 2007

People v Garrison, 2007 NY Slip Op 03367 [available here]

A majority of the Court voted to reverse Mr. Garrison's conviction for depraved indifference murder in the interest of justice, noting "the trial evidence establishes defendant's use of a weapon with a 'manifest intent to kill' the victim, thus negating the essential elements of recklessness and depraved indifference and rendering the evidence legally insufficient to support a conviction of depraved indifference murder." (Garrison, 2007 NY Slip Op 03367 at __.)

Justices Smith and Lunn dissented. First, they would not have reached the issue in the interest of justice. Second, they would have found the evidence legally sufficient to sustain Mr. Garrison's depraved indifference murder conviction. The dissent notes "[t]here is no indication that defendant had any animosity toward decedent" (except the fact that defendant shot decedent in the head from point-blank range) and "[w]ithout provocation, defendant raised a gun, which discharged, and the projectile struck decedent in the head." (Id. at __.) "In addition, in light of the confined quarters in the foyer and the number of people there, it was unquestionably reckless to brandish a loaded weapon." (Id. at __.) On that last score, the dissenters are arguably correct; as to all of the other people in the room, defendant acted recklessly. As to the guy he shot point blank in the head, it is hard to see how defendant acted other than intentionally. A strange dissent.


People v Martinez, 2007 NY Slip Op 03383 [available here]

Mr. Martinez was "forcibly detained" because he matched the description of a robber, he was 1 1/2 blocks from the robbery scene, and he "was sweating and breathing hard." (Martinez, 2007 NY Slip Op 03383.) A roll of coins was found in defendant's pocket, and he later gave a statement to the police. (Id. at __.) The trial court refused to suppress the coins and the statement, reasoning that they "were the products of a lawful arrest." (Id. at __.) The Fourth Department took the unusual step of substituting its own judgment in place of the lower court's, and concluded that defendant was not under arrest but rather "forcibly detained." According to the Court, the police "had reasonable suspicion to believe that he was involved in the robbery and thus were entitled to detain him for purposes of a showup identification procedure." (Id. at __.)

This is a dangerous (but all-too-common) shortcut in the Court's Fourth Amendment analysis. The police are only entitled to "detain" someone for purposes of a showup if the detention is substantially less intrusive than full custody. The test for custody is whether a reasonable, innocent person in defendant's position would feel free to leave. In this case, defendant was handcuffed even after the police determined that he was not armed, and there is not indication from the decision that the defendant was anything less than cooperative or that the police explained that they were detaining him for purposes of conducting a quick showup identification. Given that, it would seem a reasonable, innocent person in the defendant's position, i.e. a person who is presumably cooperating, is not armed, did not attempt to flee, and who is nevertheless handcuffed and locked in the back of the police cruiser without explanation, would not feel free to leave. (See e.g. People v Hicks, 68 NYd 234 [1986].) The Fourth Department does not even mention the test for custody, and instead collapses the analysis down to reductive algebra; if the defendant is ultimately detained only briefly and a showup is conducted, any detention--no matter how intrusive--will be consistent with the Fourth Amendment.

People v Jones, 2007 NY Slip Op 03391 [available here]

The defendant in Jones was stopped based on a "noise ordinance" violation. As the officer reviewed the defendant's license and registration, the officer "observed defendant reach toward the passenger side of the vehicle, and they feared that defendant was retrieving or concealing a weapon." (Jones, 2007 NY Slip Op 03391.) The police took Jones out of the vehicle, and proceeded to toss his car; the officers searched not only the front passenger area (i.e. the area where Jones was grabbing for what the police thought might be a weapon), but also the back seat. The police found nothing in the front seat, but found a scale with some crack residue on it in the back seat.

The Fourth Department held that the officer's search exceeded the justification that existed. "Under those circumstances, the police were justified in conducting a limited search of those parts of the vehicle in which they had observed defendant's furtive movements, i.e., the front passenger area and center console. The search should have ended, however, when the police found no weapon or contraband in the front passenger area and center console." (Id. at __.)

People v Martin, 2007 NY Slip Op 03444 [available here]

Then 17-year old Jovan Martin asked to speak to his grandmother while being interrogated by a Rochester police investigator. The investigator told Mr. Martin that he could speak with his grandmother when the interrogation was over. On appeal, Mr. Martin argued that the police were not at liberty to ignore his request to contact his family, and by doing so the police deliberately cut off the avenue by which Mr. Martin was most likely to obtain counsel. The Fourth Department affirmed, holding that because Mr. Martin was legally an adult he had no right to have police present, and that suppression is only required if "the isolation result from official deception or trickery." (Martin, 2007 NY Slip Op 03444.) The Court is wrong on both scores.

The first part of the Court's analysis misses the point; Mr. Martin was not arguing that he had the constitutional right to have grandma ride shotgun for the interrogation. Rather, Mr. Martin's argument was based on the premise (expressly embraced by the Court of Appeals) that a youthful suspect's request to contact family is the equivalent of a request for an attorney because a young person will view his family as the best way to go about securing counsel. (See Bevilaqua, 45 NY2d 508, 513 [1978].)

The second part of the Court's analysis--grafting on some requirement of chicanery by the police--imports caselaw that is only applicable to a very different factual scenario. If the defendant does not request to speak with his family, but the family shows up anyway and requests to see the defendant, the police are under no obligation to cease questioning if the defendant is legally an adult. (People v Lewis, 277 AD2d 1010 [4th Dept 2000].) However, if the police lie to the family members--by telling them the police don't have the defendant in custody, or sending the family to a different precinct--then suppression is appropriate even if the defendant never asks to consult with his family. (See Page, 225 AD2d at 833; Salaam, 83 NY2d at 55.)

The facts of Martin are very different; the suspect himself asked to call his family. The Court of Appeals has been quite clear that the police are not at liberty to simply ignore a youthful suspect's request to contact family. (See Bevilacqua, 45 NY2d at 513 [suppressing then 18-year-old's statement where defendant requested to contact his mother during interrogation and that request was denied].) The Fourth Department ignores Bevilacqua, and instead imports a requirement from Salaam and Page--requiring some sort of trickery where it is the family trying to contact the suspect--and clumsily applies it to a factual scenario it was never intended to cover.

People v Owens, 2007 NY Slip Op 03500 [available here]

At defendant's hearing to determine if he was a persistent violent felony offender, a fingerprint examiner testified that he compared defendant's known prints to those on file with NYSDOCs and the prints matched. The fingerprint examiner took notes while conducting the comparison, but threw them in the trash before testifying. The trial court imposed no sanction, and the Fourth Department reversed. "Here, the notes were the only written record of the 10 points of similarity between the various sets of fingerprints and were the only means by which defendant could effectively cross-examine the fingerprint examiner. Defendant thus was prejudiced by the destruction of the notes, and the court erred in failing to impose any sanction." (Owens, 2007 NY Slip Op 03500.)

CA: Decisions for April 3, 2007

People v Havrish, 2007 NY Slip Op 02787 [available here]

Pursuant to an order of protection, the defendant in Havrish was required to surrender his firearms to police. (Havrish, 2007 NY Slip Op 02787.) Defendant complied with the order and turned over his guns; one of the handguns was not licensed, and defendant was ultimately charged with criminal possession of a weapon in the fourth degree. (Id. at __.)

The defendant argued that his Fifth Amendment right against self-incrimination covered the act of turning over the weapons, and the Court of Appeals (in a decisions written by Judge Graffeo) agreed. While acknowledging that "a person can be forced to produce real or physical evidence without offending the privilege against self-incrimination," the Court nonetheless held that in Havrish's case "the very act of production ha[d] communicative or testimonial aspects." (Id. at __.) "The statements defendant made — advising police that he owned a revolver and indicating where it was — went no further than what a person complying with such an order would have been expected to communicate. They were therefore central to and part of the act of production. And that act was the exclusive source of evidence the People relied on in pursuing the prosecution for criminal possession of a weapon." (Id. at __.)

CA: Decisions for March 27 & 29, 2007

People v LeGrand, 2007 NY Slip Op 02588 [available here]

The Court holds that the trial court's refusal to allow the defense to put on an expert witness to testify about the reliability of eyewitness identification was an abuse of discretion where the "case turned solely on the accuracy of the witnesses' identification." (LeGrand, 2007 NY Slip Op 02588.) If there is other corroborating evidence beyond the eyewitness testimony, then a defendant is probably out of luck. "In the event that sufficient corroborating evidence is found to exist, an exercise of discretion excluding eyewitness expert testimony would not be fatal to a jury verdict convicting defendant." (Id. at __.) Not sure how this squares with Holmes v South Carolina, 2006 WL 1131853 ["The point is that, by evaluating the strength of only one party's evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt. [...] It follows that the rule applied in this case . . . violates a criminal defendant's right to have 'a meaningful opportunity to present a complete defense.'"].)

People v Rowland, 2007 NY Slip Op 02630 [available here]

It is well-settled that a defendant is "entitled to withdraw his guilty plea where the plea had been induced by a promise that the defendant's prison sentence would be concurrent with his sentence on a previous conviction and where, because the previous conviction was overturned, the promise could not be kept." (People v Rowland, 2007 NY Slip Op 02630 [available here].) Usually, the prior sentence is longer than the guilty plea sentence, and the reason the defendant pleads guilty is because the promise of a concurrent sentence means no additional jail time. But what if the guilty plea sentence is the longer of the two? Not dispositive, says the Court of Appeals; "the rule of Pichardo applies even where the second sentence is longer, and thus the promise of concurrent sentencing does not mean that no additional time will result from the guilty plea." (Id.) "The critical question is whether the removal or reduction of the pre-existing sentence nullified a benefit that was expressly promised and was a material inducement to the guilty plea . . . here, we cannot say defendant would have accepted the plea bargain in the murder case had it not been for his two-to-four-year sentence in the stolen property case, now reduced to a year." (Id. at __.)

Judge Graffeo dissented, reasoning that the Pichardo should not apply because "there is ample record support for the conclusion that defendant would have accepted the plea offer even if he had not been previously convicted of criminal possession of stolen property." (Id. at __ [GRAFFEO, J., dissenting.)