Friday, May 11, 2007

AD2: Decisions for May 10, 2007

Exigency must justify "grab area" search even if incident to arrest

People v Hernandez, 2007 NY Slip Op 04143 [available here]

When he was arrested on suspicion of robbery, Mr. Hernandez was handcuffed and sitting in a chair. Mr. Hernandez's knapsack was on a table in front of him. The arresting officer searched the knapsack and found certain proceeds of the robbery. (Hernandez, 2007 NY Slip Op 04143.) The trial court refused to suppress, holding the search of the knapsack was incident to a lawful arrest and therefore the People did not need to prove exigence circumstances justified the search. The Second Department reversed, noting that "the Court of Appeals has explicitly stated that exigent circumstances are, indeed, a prerequisite to a search incident to arrest of a defendant's effects in the defendant's immediate control or 'grabbable area' [...]" (Id. at __.) Absent proof that the knapsack search was necessary to prevent the destruction of evidence or to protect the police and public, the "People failed in their burden . . . of establishing the reasonableness of the police conduct." (Id. at __.)

Trial court's refusal to allow evidence of complainant's HIV status is harmless error

People v Taylor, 2007 NY Slip Op 04149 [available here]

Police officers conducting an unrelated investigation heard a woman "crying, calling for help, and saying 'stop'" from an apartment. Upon entry, the officers

saw the victim hog-tied with an electrical cord and a shoelace, and the codefendant over her with a pillow in his hands. The defendant was by the door with money in his left hand. When he saw the police, he said, "oh, shit," and ducked behind the door. After a struggle, the defendant was arrested and eight dollar bills were recovered from under a chair behind the door. The officers testified that the victim appeared very scared, and was crying and asking for help.

(Taylor, 2007 NY Slip Op 04149.)

I think "oh shit" about covers it. The woman testified at trial, and claimed Mr. Taylor and another man entered her room while she was sleeping, "tied her up, placed a pillow over her head, and demanded money." (Id. at __.) Mr. Taylor and his co-defendant both testified and told a different story; both admitted that they tied up the woman, but they claimed it was for the purpose of "consensual bondage-style sexual intercourse [..]." (Id. at __.) According to the defendants' version, the woman started "screaming and crying and everything" because Mr. Taylor told his co-defendant that the victim was HIV positive. (Id. at __.)

The trial court refused to allow "the testimony concerning the victim's HIV status," instead limiting defense counsel to specifying the revelation of the victim's HIV status as a generic breach of confidence. Id. at __.) On appeal, Mr. Taylor argued the trial court's ruling deprived him of his right to present a defense because evidence of the victim's HIV status "was necessary to explain the victim's extreme emotion state when the police arrived, and to establish her bias, hostility, and motive to fabricate criminal charges out of what was in fact a consensual sexual encounter." (Id.)

While recognizing that the evidence of the HIV status would not be collateral because it "is directly probative on this issue of credibility," the Second Department declined to reverse. According to the Court, the victim's HIV status was properly excluded under New York's "rape shield" law, and even if the application of that statute served to violate Mr. Taylor's right to present a defense, any error was harmless. The "defendant was not precluded from presenting his defense to the jury that the victim's highly emotional state when the police entered was the product of her anger and outrage and the defendant's betrayal of a confidence . . . he was only precluded from presenting direct evidence as the exact nature of the confidence." (Taylor, 2007 NY Slip Op 04149.) Given the other evidence of defendant's guilt, the Court found "no reasonable possibility that the striking of testimony concerning the victim's HIV status contributed to the conviction." (Id. at __.)

I'm sure there is case law on this, but is a victim's HIV status properly covered by the rape shield law? Isn't it just as likely that the victim got HIV from a non-sexual source, i.e. a dirty needle, a blood transfusion, etc.? The fact that a person has HIV does not necessarily speak to that person's sexual history. If that direct link cannot be conclusively made, it seems the rape shield law should not come in to play.

Automobile drug possession presumption does not apply to marijuana

People v Gabbidon, 2007 NY Slip Op 04141 [available here]

Defendant was indicted for Criminal Possesion of Marijuana in the Fourth Degree. At the grand jury, the prosecutor "charged the grand jury that the statutory presumption of knowing possession of a controlled substance in an automobile, as set forth in Penal Law 220.25[1], was applicable to possession of marihuana." (Gabbidon, 2007 NY Slip Op 04141.) The trial court dismissed the indictment, and the Second Department affirmed. The presumption charged by the prosecutor to the grand jury "applies only to the presence of a controlled substance in an automobile", and the Penal Law "specifically excludes marihuana from the definition of controlled substance." (Id. at __.) Since the grand jury may well have relied on the presumption in charging Mr. Gabbidon with marijuana possession, the trial court "correctly dismissed the indictment." (Id. at __.)