Recent Third Department Reversals, Modifications and Dissents

by Tim Davis, Esq.


People v Hackett, 47 AD3d 1122 (January 24, 2008)

Late one night, a State Trooper observed the defendant drive his vehicle over the fog line. The Trooper activated his emergency lights. After pulling over to the side of the road, the defendant leaned toward the passenger seat of his vehicle before the Trooper approached. The Trooper requested both license and registration, but defendant produced only the registration. Upon questioning defendant concerning his movement within the vehicle, defendant explained he was reaching for his cell phone, which he then showed to the Trooper.

The Trooper ordered defendant out, and decided to detain him for a traffic violation. The Trooper handcuffed defendant for safety reasons, and placed him in his patrol car while he ran a warrant check. He made no effort to determine whether defendant possessed a valid driver's license. Once a second Trooper arrived, the first went to defendant's vehicle, opened the passenger door and looked at the floor board. Seeing nothing, he bent down and shone his flashlight underneath the passenger seat, discovering a loaded handgun. A later search revealed a quantity of cocaine as well.

Indicted for two counts of Criminal Possession of a Controlled Substance in the Third Degree and three counts of Criminal Possession of a Weapon in the Third Degree, defendant moved to suppress the handgun and cocaine. The lower court relied on the minutes of the preliminary hearing - at which just the Trooper testified - and denied the request.

The Third Department, relying on People v Torres, 74 NY2d 224 [1989], held that the Trooper had no probable cause to return and search under the front passenger seat of defendant’s vehicle, when the defendant was secured and there was no imminent threat the Trooper’s safety. Although the defendant was driving erratically and disappeared from sight when he leaned toward the passenger seat, he explained this movement and produced his cell phone. Further, although the Trooper thought the defendant seemed nervous and repeatedly looked at his vehicle, this conduct was insufficient to justify a search. The search was unlawful because 1) there was no basis for the Trooper to believe a weapon was within the vehicle, and 2) no actual or specific danger threatened the safety of the officers.



People v Hasenflue, 48 AD3d 888 (February 21, 2008)

In March 2003, the defendant represented himself at trial, and was convicted of Attempted Aggravated Assault on a Police Officer, Reckless Endangerment in the First Degree and Aggravated Harassment in the Second Degree. He appealed, and argued that the court erred in proceeding to trial without completing a 730 exam, which was ordered by another judge at arraignment. Before trial, two psychologists attempted to examine the defendant, but made no determination as he refused to cooperate. In People v Hasenflue, 24 AD3d 1017, the Third Department held that the defendant was “deprived of his right to a full and fair determination of his mental capacity to stand trial,” and remitted the case for a reconstruction hearing.

Both counsel and the two psychologists who tried to interview defendant testified at the reconstruction hearing. The psychologists reviewed all the defendant’s psychiatric records and the court proceedings, leading them to opine that he was competent. Based upon this testimony, the court determined that the People established defendant’s competency to stand trial by a fair preponderance of the evidence.

The Third Department reversed, concluding it was not possible to determine defendant's competency given the lack of any contemporaneous psychiatric examinations/evaluations at the time of trial. While relevant to the ultimate issue, neither his observed demeanor at trial nor his self representation was sufficient to establish his competence.


People v Revette, 48 AD3d 886 (February 21, 2008)

Defendant was charged with setting two fires to the home of her ex-boyfriend, with whom she was involved in a custody dispute. She was convicted after trial of Arson in the Third Degree (two counts) and Burglary in the Third Degree (two counts).

Before trial, defendant sought dismissal of the indictment pursuant to CPL § 210.35(5), arguing that a grand juror was married to one of the three deputy sheriffs who investigated the fire and testified before the grand jury.

As a close relationship between a grand juror and a witness raises the risk of prejudice, the Third Department held that the prosecutor should have enquired whether the juror could fairly evaluate the evidence. Although the prosecutor asked the juror if she could remain impartial, he received an ambiguous response which he never asked her to clarify. This was significant as the number of jurors voting to indict was not recorded, and the testimony of the juror’s husband was important to the case.

People v Ramos, 48 AD3d 984 (February 28, 2008)

Defendant was convicted after trial of Burglary in the Second Degree and Criminal Mischief in the Third Degree. The court sentenced him to twelve years determinate on the burglary and four years determinate on the criminal mischief.

On appeal, defendant argued he should have been sentenced to an indeterminate term on the criminal mischief as it is a non-violent felony. The People conceded this was error. The Third Department vacated the sentence and remitted the case to the trial court.


People v Westerling, 48 AD3d 965 (February 28, 2008)

Defendant was charged with abducting and then raping his estranged girlfriend. He was convicted after trial of Rape in the First Degree, Criminal Sexual Act in the First Degree (two counts), Kidnaping in the Second Degree, Coercion in the First Degree, Criminal Use of a Firearm in the First Degree, Criminal Contempt in the First Degree (two counts) and Resisting Arrest.

The main issue on appeal was the trial court’s Molineux ruling permitting the People to introduce evidence of numerous domestic violence incidents between defendant and the complainant. In addition to a number of specific instances of violence, the trial court permitted the complainant to testify that defendant hit, bit or threw her approximately 100 times during their three-year relationship. The Third Department ruled it was improper for the court to allow her to testify to unparticularized acts occurring over such a lengthy period.

The potential prejudice of this testimony was exacerbated by the court’s failure to provide the jury with cautionary instructions regarding the limited purpose of this evidence. The court's final instructions were insufficient to cure this deficiency after the jury heard such evidence without any guidance as to its purpose.


People v Haddock, 48 AD3d 969 (February 28, 2008)

Defendant was convicted after trial of failing to comply with SORA - failing to register on an annual basis, and failing to register within ten days of a change of address.
On appeal, defendant raised the trial court’s refusal to charge the jury that the People were required to prove he knowingly failed to comply with SORA's registration requirements.

Although Correction Law § 168-t contains no requirement of a culpable mental state, the Third Department held that the legislature did not intend to create a strict liability crime. The Court found support for this position in the Pattern Criminal Jury Instructions, which set forth knowledge as an element. Although the People's proof included ample evidence of defendant's knowledge, the Third Department held that the failure to provide such a charge could not be regarded as harmless error.


People v Karika, 48 AD3d 980 (February 28, 2008)

Defendant was charged with Criminal Sexual Act in the First Degree and Sexual Abuse in the First Degree.

During his preliminary instructions, the trial judge correctly advised the jury not to consider the sentence the defendant might receive if convicted, as that was a matter solely for the court to determine. However, immediately before making this statement, the court inexplicably related a recent out-of-court conversation in which someone asked what the court might do when a person commits the charged crime without really meaning to, or knowing the proscribed conduct is unlawful. The court replied: “[I]f a jury decides they are guilty, I give them an unconditional discharge or conditional discharge. It reflects itself in the sentence.”

Defense counsel did not immediately object to this statement, but during the charge conference asked for a curative instruction as the jury might believe the defendant in this case - if found guilty - could receive a conditional or unconditional discharge.
The Third Department first ruled that counsel preserved this challenge even though he waited until the charge conference to request a curative instruction. The issue was raised in time for the court to act.

The Court then reversed, finding that the trial judge basically told the jury the defendant could receive a conditional or unconditional discharge if he were convicted of Criminal Sexual Act in the First Degree. This may have led the jury “to a scrutiny of the evidence less close than that to which defendant was entitled”