Thursday, May 17, 2007

AD3: Decisions for May 17, 2007

"The Third Department will never understand our love"

People v Sylvester, 2007 NY Slip Op 04189 [available here]

Ms. Sylvester "met and married" her husband while he was "incarcerated for a murder conviction [...]." (Sylvester, 2007 NY Slip Op 04189.) Perhaps frustrated by the excessive per-minute charges for prison telephone calls in New York, Ms. Sylvester mailed her husband "three cell phones, along with chargers and headsets, in a typewriter [...]." (Id. at __.) Upon being caught and arrested, Ms. Sylvester pleaded guilty to one count of attempted promoting prison contraband in the first degree, and was sentenced to probation. "One term of probation prohibited her from entering any state correctional facility." (Id. at __.)

On appeal, Ms. Slyvester argued her plea colloquy was not sufficient because she was charged "with unlawfully and knowingly introducing dangerous contraband into a detention facility," and she told the court during her plea, "'I didn't know it was dangerous contraband.'" (Id. at __.) Not enough to invalidate the plea, says the Third Department; the "knowing" element required that she knew she was sending cell phones into prison, and whether or not she realized that cell phones were "dangerous" for purposes of the statute was irrelevant. (Id. at __.)

Ms. Sylvester also objected to the condition of probation that prohibited her from entering any state prison (and thus preventing her from seeing her husband). The Court upheld the provision, and struck a paternal tone; while recognizing that the condition "will preclude her from visitation with her husband," the Court nevertheless held the provision was valid because the "defendant met and married him while he was incarcerated for a murder conviction and she had no involvement with the criminal justice system prior to his manipulation and negative influence." (Id. at __.)

Leaving store with stolen merchandise through "employees only" area sufficient for burglary conviction

People v Athanasatos, 2007 NY Slip Op 04190 [available here]

Mr. Athanasatos waited in the car while his buddy went into a Staples, filled a 41-quart trash can with inkjet cartridges, and left the store via an "employees only" area without paying for the merchandise. (Athanasatos, 2007 NY Slip Op 04190.) Both men were convicted of third-degree burglary. On appeal, Mr. Athanasatos argued that the burglary conviction was not supported by legally sufficient evidence, because the larceny was complete before his friend entered the employees only area of the store, and thus he could not have entered the restricted area with the intent to commit a crime. The Third Department disagreed, noting

that there is no indication that Dellisanti concealed, attempted to secret the stolen property or moved the property towards an exit while he was in the public area of the Staples store; rather, defendant asserts that the evidence showed that Dellisanti carried the items openly i.e., "in a manner . . . [that was] in accord with that of a prospective purchaser" until he entered the restricted area of the store. Under these circumstances, Dellisanti's possession was not inconsistent with the continued rights of the owner until he took the property from the general shopping area into the restricted area. Accordingly, in our view, there was a legally sufficient basis from which the jury could conclude that Dellisanti unlawfully entered the restricted area of the store with the contemporaneous intent to commit a larceny.

The Court also upheld the trial court's Molineux ruling that allowed questioning about an identical crime committed by the same two men a few days earlier at a different Staples store. The evidence was "properly admitted . . . as proof of a preconcerted common scheme or plan," and any error was harmless. (Id. at __.)

Stand by your man . . . or not

People v Lownes, 2007 NY Slip Op 04193 [available here]

In a textbook display of passive-aggression, Mr. Lownes' girlfriend called his parole officer and told him that "defendant would be traveling from his residence to another location in the City of Albany with a large amount of crack cocaine." (Lownes, 2007 NY Slip Op 04193.) Real nice. After a short surveillance, the police pulled over Mr. Lownes' vehicle, but, alas, no drugs were found. (Id. at __.) But since he was on parole, Mr. Lownes was detained for further questioning anyway.

Meanwhile, back at the apartment Mr. Lownes shared with his girlfriend, the girlfriend was signing a written consent giving police permission to search the apartment. This time, the police found "22 grams of crack and a digital scale [...]." (Id. at __.) The decision does not explain exactly how Mr. Lownes ticked off his girlfriend, but I'm guessing it was bad.

The Third Department upheld the trial court's refusal to suppress the crack and the scale. The defendant's detention "was rationally and reasonably related to the performance of the parole officer's duties", and "inasmuch as defendant's girlfriend consented in writing to the search of their apartment, the search was permissible." (Id. at __.) The lesson: treat your woman right, especially if she knows where you keep your drugs.