AD1: Decisions for May 8, 2007

Lots of small plastic bags in plain view = probable cause to search vehicle

People v Jackson, 2007 NY Slip Op 03964 [available here]

The police pulled over Mr. Jackson's car, and "observed in plain view a large quantity of small plastic bags [...]." (Jackson, 2007 NY Slip Op 03964.) Based on that information alone, the First Department held there was probable cause to search the car. The officer opined that the bags were "narcotics paraphernalia" based on "his experience and training" (of course), and that was enough to establish "probable cause to believe that the vehicle contain narcotics, thereby justifying a search under the automobile exception to the warrant requirement that resulted in the recovery of a handgun." (Id. at __.) Notice how the search turned up no narcotics.

Also note this is the same Court that just last week upheld a trial court's curtailment of a defense attorney's cross-examination of a narcotics officer concerning the relevance of certain evidence in a drug case because the officer's "subjective opinion" as to the nature of the drug evidence was "not relevant", and the trial court was correct when it "directed counsel to only ask questions that would elicit the facts of the case." (People v Cestalano, 2007 NY Slip Op 03782.) Yet in Jackson, the road patrol's officer opinion as to the significance of the little baggies was not only relevant, but alone sufficient to establish probable cause to search the car.

The lesson, as always: the First Department hates me.


Defendant not deprived of right to appear before grand jury where failure to appear was attributable to defense counsel's shenanigans

People v Watkins, 2007 NY Slip Op 03978 [available here]

After notifying the prosecutor that his client wished to testify before the grand jury, defense counsel essentially went into hiding, avoiding the prosecutor and refusing to confirm that the defendant would be appearing before the grand jury. Defendant claimed on appeal that he had been deprived of his right to testify before the grand jury. Nice try, says the First Department; the People made "considerable and repeated attempts to contact defense counsel" and postponed "the grand jury presentation on two occasions," and that was enough to "provide defendant with a reasonable and meaningful opportunity to testify before the grand jury." (Id. at __.) The Court condemned defense counsel's "deliberately dilatory and evasive conduct", calling it "nothing more than a blatant attempt to use the People's obligations under CPL 190.50 as an opportunity for gamesmanship, conduct of which we strongly disapprove." (Id. at __.) But, defense counsel was not ineffective. (Id. at __.)


Defense attorney's testimony contradicting defendant's alibi A-OK

People v McGraw, 2007 NY Slip Op 03988 [available here]

Before the defendant's case was presented to the grand jury, defense counsel made statements to the prosecutor ("with defendant's consent", according to the opinion) about the defendant's whereabouts at the time of the crime. (McGraw, 2007 NY Slip Op 03988.) The defendant changed his story at trial, providing a different alibi than the one first given by the defense attorney. The People called the defense attorney as a rebuttal witness to testify that he had previously given the prosecutor a different alibi than the one posited by the defendant at trial. The trial court allowed the testimony, over defendant's objection. (Id.)

Perfectly kosher, says the First Department. The original attorney was the defendant's agent, and therefore the statement could come in "as an admission against the party." (Id. at __.) While recognizing that the People cannot use a withdrawn alibi notice to impeach a defendant, the Court refused to characterize the original attorney's statement to the prosecutor (putting the People on notice that the defendant had an alibi) as an official alibi notice. "[T]here never was an alibi notice relating to the first alibi; instead, the first alibi was volunteered in an effort to forestall indictment." (Id. at __.) According to the Court, Defense counsel's statement was not given "as a form of disclosure mandated by CPL 250.20", and therefore "there was nothing to trigger the special protections against impeachment that apply when a defendant withdraws a mandated alibi notice." (Id.) A distinction without a meaningful difference, perhaps, but apparently enough for the First Department.