AD4: "prior criminal history" for purposes of SORA classification = prior to date of commission of underlying sex crime

People v Milks, __ AD3d __ [available here]

In New York, all sex offenders are classified on a scale of "1" to "3", with "3" being reserved for those offenders most likely to reoffend (and thus subject to the most onerous post-release reporting requirements). The appropriate classification is determine using a point assessment system. When a sex offender is released from prison, a hearing is held and certain points are assessed for different categories. If force was used in the commission of the sex crime, a certain number of points are added; if there were multiple victims, some more points are tacked on, and so on.

One of the point categories used to classify sex offenders is based on an offender's "prior . . . criminal history" not involving sex crimes or felonies; if an offender has a prior criminal history, five extra points are added to the assessment. Since sex offenders are not classified until they get out of prison on the underlying sex offense, there can be quite a lag between the commission of the underlying sex crime and the SORA classification hearing. Plus, all sex offenders in New York were recently reclassified as a result of the lawsuit in Doe v Pataki, and some of those offenders had been out of prison for years before being reclassified for SORA. So the question for purposes of assessing points for "prior . . . criminal history" was, "prior" to what? Prior to the conviction for the underlying sex crime, or prior to the SORA classification hearing?

The Fourth Department answered that question in People v Milks, and held that the category for "prior . . . criminal history" means "prior" to the underlying sex conviction. From the decision:

With respect to risk factor nine, the SORA Risk Assessment Guidelines and Commentary (Nov. 1997) provides that a sex offender's 'concurrent or subsequent criminal history is not covered by this category, [although] it may be the basis for an upward departure if it provides reason to believe that the offender poses an increased risk to public safety'. Here, defendant was convicted of the underlying sex crime in 1991 and released from prison in 1997, but the 'criminal history' considered by the court under risk factor nine concerned acts committed in 1999 and a conviction entered in 2000. The record thus does not contain the requisite clear and convincing evidence supporting the assessment of five points under risk factor nine [...].

(Milks, __ AD3d at __.)

This issue came up a lot during the SORA reclassification hearings pursuant to Doe v Pataki, so it is nice to see the Fourth Department clarifying the issue.

AD4: defendant not deprived of fair trial by improper tactics from "derisive and sarcastic" prosecutor

People v Williams, __ AD3d __ [available here]

The prosecutor at Mr. Williams' murder trial was "derisive and sarcastic", accusing a main defense witness of smoking crack and asking that same witness to apologize "to the victim's wife for lacking 'the courage to stand up and tell [the] jury the truth.'" (Williams, __ AD3d at __ [GORSKI & GREEN, Js, dissenting).) During summation, the prosecutor personally opined on the credibility of the witnesses ("I wouldn't believe [that witness] if she told me I had a gray pinstripe suit on") and "accused defendant, the final witness to testify at trial, of tailoring his testimony to the evidence presented, and the prosecutor invited the jury to 'assume [defendant's] right. Let's--let's go to Disney World for a minute.'" (Id.)

On appeal, Mr. Williams argued that the prosecutor's misconduct deprived him of his right to a fair trial and reversal was necessary. A majority of the Fourth Department disagreed, noting "that certain of the prosecutor's comments during cross-examination of a defense witness were improper," but the misconduct was not "so egregious as to deprive defendant of a fair trial." (Williams, __ AD3d at __.) As to the misconduct during summation, the majority concluded "the prosecutor's comments . . . were fair comment on the evidence," and in any event were "alleviated" by the trial court's charge that the summations of counsel were not evidence. (Id. at __.)

Justices Gorski and Green dissented, and would have reversed. From the dissent:

Although we recognize that reversal 'is an ill-suited remedy for prosecutorial misconduct', reversal for prosecutorial misconduct is nevertheless warranted when the prosecutor's conduct is so egregious that the defendant was deprived of his or her right to a fair trial. [...]

Here, the evidence of defendant's guilt is not overwhelming and, as we previously noted, the outcome of the case was dependent solely on the credibility of the witnesses. It is our conclusion that the prosecutor's cross-examination of the defense witness as set forth herein, in conjunction with the prosecutor's improper comments on summation regarding that witness as well as the alibi witnesses, could have 'tip[ped] the scales'' against defendant.

(Williams, __ AD3d at __ [GORSKI & GREEN, Js, dissenting].)

More on the leftovers from the Fourth Department's April term over the next few days.

CA: juror's "unsettling gaze", like of detective stories and resemblance to African-American judge sufficiently race-neutral reason for peremptory

People v Wells, __ NY3d __ [available here]

During jury selection for Mr. Wells' murder trial, the prosecutor exercised a peremptory challenge against an African-American woman. Defense counsel raised a Batson challenge (for the basics of Batson, go here and scroll down). The prosecutor's response is set out in the Court's majority decision (written by Judge Graffeo):

When asked by the trial court to provide race-neutral reasons for the removal of this woman, the prosecutor stated that the prospective juror had held her hand over her mouth when answering questions, which indicated to the prosecutor that the jury 'had something to hide.' The prosecutor also claimed that the jury had 'an unsettling gaze' that was 'difficult to deal with,' and remarked that the juror reminded her of a particular New York City judge.

(Wells, __ NY3d at __.)

The trial court found the prosecutor's explanation race neutral, and denied defense counsel's Batson challenge. The Appeals affirmed; from the majority opinion:

The prosecutor's reasons for exercising the peremptory challenge focused on the juror's demeanor (placing her hand over her mouth and having an "unsettling gaze") and fondness for detective stories (which might cause her to have certain expectations about the trial evidence). Furthermore, the prosecutor's reference to a particular judge, although in 'poor taste' as noted by the Appellate Division, was not facially race-based. Because the People's burden "is met by offering any facially neutral reason for the challenge--even if that reason is ill-founded--so long as the reason does not violate equal protection", and the trial court's findings are entitled to deference, we cannot say that the prosecutor's justifications for the use of the peremptory challenge were inadequate.

(Id. at __.)

Judge G.B. Smith concurred, and would have affirmed defendant's conviction only because trial defense counsel "fail[ed] to make an objection that the reason proffered by the prosecution was not clearly race/gender-neutral [and] failed to preserve this argument for appellate review." (Id. at __ [G.B. SMITH, J., dissenting].) From the concurrence:

[A]fter a defendant makes out a prima facie case of discrimination in the selection of jurors under Batson, the prosecution's explanation for the peremptory challenge must be unequivocally race/gender-neutral and related to the particular case to be tried. [...] Because one of the prosecutor's reasons for exercising a peremptory strike against this prospective juror was not unequivocally race/gender-neutral, I disagree with the above-mentioned conclusions reached by this Court and the Appellate Division. [...]

The prosecutor's statement regarding how the prospective juror reminded her of a named Supreme Court Justice, who is also an African-American woman, and how this made the prosecutor "anxious in a sort of [] emotional way," raised issues that should have been pursued during the voir dire. Not only is this statement insulting and irrational, it is wholly ambiguous. The proffered reason, on its face, is neither clearly race/gender-neutral, nor clearly race/gender-based, i.e., there is no indication from the prosecutor's explanation as to what about the prospective juror reminded the prosecutor of the name Supreme Court Justice.

(Id.)

Since at least one of the reasons given by the prosecutor was arguably based on gender or race, the trial court should have either clarified the prosecutor's statement or upheld the Batson challenge. (Id.)

This case also dealt with the issue of duplicity as it relates to a charge of Attempted Murder. In a nutshell: defendant took potshots at two cops and was indicted on one count of Attempted Murder in the Second Degree. On appeal, defendant argued that the one count of the indictment actually alleged two crimes because there were two potential and intended victims. Since actual death is not an element of Attempted Murder 2nd, Judge Graffeo (I think correctly) held that the charge was not duplicitous because the indictment "charged a single crime based on a single incident--engaging in conduct (the shooting at Detectives Molina and Weston) that tended to effect the crime of murder while acting with the intent to cause the death of a police officer or another person." (Id at __.) Nicole at Sui Generis has her own thoughts on Wells here.

Rochester man free after 10 years in prison, DNA proves innocence

From an article in today's Rochester Democrat and Chronicle:

State Supreme Court justice Thomas Van Strydonck today freed an AIDS-stricken man who has been imprisoned a decade for a murder prosecutors now say he did not commit.

Recent DNA testing showed that Douglas Warney, 44, is innocent of the 1996 slaying of civil rights activist William Beason, prosecutors acknowledged in state Supreme Court today.

Warney was convicted in 1997 of the slaying. The case against him was largely based on a confession he gave in 1996. His lawyers contended that the admission was riddled with errors, and were the rambling of a man with an IQ of 68 who suffered from AIDS-related dementia.

The confession did contain some facts consistent with the crime scene, and defense lawyers now argue that police must have given those facts to Warney then included them in the confession. Warney did know Beason and may have been familiar with Beason's city home, according to trial testimony.

The New York Times also is running an article on Mr. Warney's case here. The Monroe County District Attorney (Michael Green) has fought the DNA testing for the last two years. The Fourth Department affirmed Mr. Warney's conviction back in 2002 (People v Warney, 249 AD2d 956 [4th Dept 2002]).

CA: trial prosecutor's flagrant Brady violation entitles People to another bite at the apple

People v Williams, __ NY3d __
[available here]

Defendant Ronald Williams was arrested for selling and possessing drugs, and prior to his trial he moved to suppress "prerecorded buy money and other evidence taken from him when he was arrested, claiming that the arrest was without probable cause." (People v Williams, __ NY3d __.) The People called only one witness at the suppression hearing--Detective Anthony Gordon. Gordon testified that he saw defendant exchange money with a man then under surveillance for dealing drugs. (Id at __.) At the time of Gordon's testimony, the prosecutor knew that Gordon was under investigation for perjury, with allegations that in another drug case Gordon "had admitted to an assistant district attorney that he did not see the defendant in that case remove a bag that contained crack from a stairway in a building in East Harlem even though he testified before a grand jury that he had." (Id. at __ [G.B. SMITH, J., dissenting.) The prosecutor did not inform the court of the perjury investigation; instead, the "People called no other witnesses, and relied on Gordon's testimony in opposing the suppression motion. The court denied the motion." (Id. at __.)

After the People rested their case at trial, defense counsel "asked that Gordon be made available as a defense witness," and it was at this point, for the first time, that the People told the Court about the perjury investigation involving Gordon. (Id at __.) Defense counsel immediately asked that the pretrial suppression motion be granted based on the failure of the prosecutor to disclose that the only witness at suppression was being investigated for perjury; the court chose a somewhat different remedy:

Instead, the court conducted a new hearing, at which it received Gordon's pre-trial hearing testimony; a stipulation that Gordon would take the Fifth Amendment if questioned about the perjury investigation or the facts underlying it; and stipulations reflecting some discrepancies between Gordon's hearing testimony and the testimony he gave as a defense witness at trail. The Court also invited the parties to call other witnesses; the People accepted the invitation and called Washington, who described essentially the same series of events that Gordon had.

(Id. at __.)

Judge R.S. Smith wrote the four Judge majority, and affirmed the defendant's conviction. Despite recognizing that the misconduct of the prosecutor was "serious" and concluding that "[t]here was no excuse for the People's failure to make the hearing judge aware of the perjury investigation of Gordon . . . at the same time that the People were asking the hearing judge to rely on Gordon's testimony to deny suppression", the majority concluded the trial court's chose of remedy was not an abuse of discretion. In so holding, the majority struck a familiar refrain:

[N]ot every significant misjudgment by the prosecution entitles the defendant to a windfall. [...] Indeed, the record strongly indicates not only that there was probable cause to arrest defendant but that, whether or not Gordon was in general a reliable witness, his account of the events leading to the arrest was largely true. [...] The Brady rule exists to prevent miscarriages of justice; the remedy defendant seeks here might well have created one.

(Id. at __.)

Or stated another way: because there was probable cause for defendant's arrest (and overwhelming evidence of his guilt), the defendant should not be entitled to any relief that is going to result in the suppression of the evidence found pursuant to the arrest, even where deliberate prosecutorial misconduct is involved. He did it, after all.

Judge G.B. Smith wrote for the three dissenting Judges:

At a Mapp hearing to suppress physical evidence, the prosecution permitted a police officer to testify without revealing that the officer was under investigation for perjury. Moreover, the testimony of that officer before the grand jury was false and his truthful testimony would not have established probable cause for an arrest. The failure of the prosecution to reveal Brady material should have led to the suppression of evidence taken from defendant at the time of his arrest. No reopened or new suppression hearing should have been permitted. [...]

Suppression is warranted because of the untimely disclosure alone, regardless of the offer and acceptance of a re-opened suppression hearing. The prejudice to defendant could not be undone, especially give that Sergeant Washington had already testified at trial to the events of April 12, 2001, and a re-opened suppression hearing would merely give him the opportunity to reiterate his previous testimony. [...]

Previously, this court has denied the prosecution a second bite at the apple when all the evidence was available at the time of the first hearing, and defendant would be prejudiced if the prosecution were allowed a second attempt at trial or a pre-trial proceeding. The prosecution is afforded only one 'full and fair opportunity' to present the evidence against defendant. Thus, if defendant is allowed nothing more than a de novo suppression hearing, the prosecution is given a second bite at the apple, which only further prejudices the defendant and rewards the prosecution for its failure to disclose material information.

(Id. at __ [G.B. SMITH, J., dissenting].)

The majority and dissent highlight two different notions of "justice" found in criminal law. The majority's decision focuses the narrow "justice" of the specific case; did the defendant do it? If yes, then justice is served by a result that protects the guilty verdict. The dissent's decision, on the other hand, is concerned with systemic justice--was the system fair? If not, then the outcome for the individual defendant does not matter, because it was not the product of a just system.

The Court of Appeals seems to be tracking towards the majority's view--a very results-oriented, individual "justice" approach, where the factual guilt of the defendant is the overwhelming consideration and almost any error along the way will be excused. This can only be bad for the systemic integrity of the criminal justice system, because any number of errors and procedural injustices are excused (and therefore encouraged to repeat) to preserve an end-result (guilt) that the reviewing Judges believe appropriate.

The nice thing about the dissent's approach is that, by insisting on procedural integrity, most of the time individual justice will be done, too. The occasional case like Williams--where if the dissenters had carried the day a drug dealer would walk free to reinforce the integrity of the system by punishing the prosecution for its deliberate misconduct--is the price of having a system that takes its procedural fairness seriously. This seems to be a price appellate courts in this state are less and less willing to pay.

CA: trial court can tell a jury to disregard "eyewitness identification" expert witness and not risk reversal

People v Drake, __ NY3d __ [available here]

Earlier this week, the Court handed down two decisions dealing with issues surrounding witnesses who testify as experts on eyewitness identification. I previously posted about People v Young here. The other decision is People v Drake. Unlike in Young, the trial court in Drake actually allowed the "testimony of . . . an expert in the reliability of eyewitness identification testimony." (Drake, __ NY3d at __.) The issue in Drake was not the propriety of allowing the testimony--the Court noted that "courts are encouraged" to admit such testimony "in appropriate cases"--but instead whether a rather bizarre jury instruction given over objection required reversal. The majority's decision (written by Chief Judge Kaye) describes the charge: "At the conclusion of the case, the court, over defendant's objection, charged the jury that the testimony [of the expert] 'may not be used to discredit or accredit the reliability of eyewitness testimony in general or in this case.'" (Id. at __.) Essentially, after allowing the expert to testify, the trial court instructed the jury to ignore the testimony. The majority concedes this was error:

Read in isolation, the sentence instructing that [the expert's] testimony could not be used 'to discredit or accredit the reliability of eyewitness testimony in general or in this case' was incorrect. Indeed, it might be taken to mean that the expert testimony the court had admitted could not in the end by considered for any purpose at all. [...]

Where there has been expert testimony on the reliability of eyewitness identifications, jurors must, if they choose to accept that testimony, be permitted to apply the identified psychological factors to the facts of the case before them in deciding whether they are convinced beyond a reasonable doubt as to the accuracy of the proffered identifications.

(Id. at __.)

Rather than reverse, however, the majority takes a step back and concludes "the charge as a whole did not communicate to the jurors that they should disregard the testimony" of the expert. (Id. at __.)

Judge G.B. Smith dissented; from his opinion:

In this case where two out of the eleven eyewitnesses identified defendant as the assailant and where three eyewitnesses unequivocally stated that defendant was not the attacker, the trial court's charge that the jury could not use the testimony of an eyewitness identification expert to reach its verdict was both an error of law and prejudicial. [...]

[This Court is] concerned with whether the correct instructions predominated. In this matter, they did not. Although the trial judge stated, prior to the incorrect instruction, that an expert's testimony can be weighed for credibility like any other witness, the incorrect statement regarding accrediting and discrediting other witnesses erased and outweighed everything that came before.

Not a great week for defendants. In fact, two more decisions were handed down by the Appeals today, and both set pro-prosecution precedent (one dealing with a Batson violation, one with Brady). More on those cases and the rest of the noteworthy decisions from the Fourth Department's April term over the next few days.

CA: trial court's refusal to allow defense expert witness to testify about problems with eyewitness testimony not an abuse of discretion

People v Young, __ NY3d __ [available here]

In one of two decisions handed down today dealing with issues concerning expert testimony offered on the issue of eyewitness identification, Judge R.S. Smith writes for the majority of the Court of Appeals in People v Young, and the Court holds it was not an abuse of discretion for a trial court to refuse "to allow an expert to testify about factors that affect the reliability of eyewitness identifications." (Young, __ NY3d at __.) From Judge R.S. Smith's opinion:

The harder question is whether the trial court abused its discretion in excluding [the expert's] testimony. In People v Lee (96 NY2d 157 [2001]) (decided after the trial court's ruling in this case), we held that the decision to admit or exclude evidence of this sort is a discretionary one. We said that although 'jurors may be familiar from their own experience with factors relevant to the reliability of eyewitness observation and identification, it cannot be said that psychological studies regarding the accuracy of an identification are within the ken of the typical juror'. Thus, there are cases in which testimony like [the expert's] may be admitted, in the exercise of the court's discretion; and indeed, there are cases in which it would be an abuse of discretion to exclude such evidence. This case is undoubtedly in the former category--the trial court here might well have admitted [the expert's] testimony--but we conclude that it is not in the latter; the trial court's ruling was within the bounds of its discretion.

(Id>. at __.)

The Court went on to conclude that, while the expert's testimony would "have been valuable to a juror in this case in assessing [the eyewitness's] testimony", the trial court properly excluded the evidence because the eyewitness's testimony was corroborated by other evidence of the defendant's guilt. Again from the majority's decision:

[I]f this case turned entirely on an uncorroborated eyewitness identification, it might well have been an abuse of discretion to deny the jury the benefit of [the expert's] opinions. The corroborating evidence, however, significantly diminishes the importance of the proffered expert testimony in this case [...]. Here, stolen property was found in possession of two of defendant's acquaintances; neither of them could have been the robber, since both were women; and one of them pointed to defendant as the person from whom she got the property. It was reasonable, under the circumstances, for the trial court to conclude that [the eyewitnesses] identification was quite unlikely to be mistaken, and that [the expert's] testimony would be an unnecessary distraction for the jury.

(Id. at __.)

I can buy this reasoning for a "harmless error" type analysis--if the proof of defendant's guilt is overwhelming, then any error in admitting the proposed expert testimony could be dismissed as harmless. But it seems odd that the admissibility of the evidence should turn on the strength of the People's proof. Indeed, the United States Supreme Court just handed down a decision finding fault with this type of reasoning as violating a defendant's right to present a defense. (See Holmes v South Carolina, 2006 WL 1131853 [available here] ["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.'"].) It is hard to square today's decision from the Court of Appeals with Holmes, because the Young decision seems to make the admissibility of otherwise relevant defense testimony dependent on the trial court's assessment of the strength of the People's case, and under Holmes this violates defendant's right to present a defense.

The Court's decision today in Young is a troubling continuation of the reasoning first set forth in the Court of Appeal's recent decision in People v Wardlaw, where the Court held the denial of a defendant's right to counsel at a suppression hearing could be dismissed as harmless because the proof of defendant's guilt was overwhelming and the jury's verdict would have been no different had the suppression hearing been successful (see my previous post on Wardlaw here). The upshot of this type of reasoning is that really, really, really guilty defendants have less protections because . . . well, they are so damn guilty that no mistakes in the process could possibly effect the outcome. This type of reasoning can't possibly be good for the integrity of the criminal justice system.

Judge G.B. Smith dissented in Young, noting "The majority's ruling misses the opportunity to hold that here, as a matter of law, where eyewitness identification is attenuated and possibly tainted, and corroborating evidence is weak, courts should allow expert testimony concerning eyewitness identification." (Young, __ NY3d at __.)

The Court of Appeals also handed down a related decision today, also dealing with issues concerning expert testimony related to eyewitness identification. More on that decision tomorrow.

AD4: insufficient foundation for expert junky testimony

People v Freeman, __ AD3d __ [available here]

The defendant in People v Freeman was charged with possessing 18 baggies of crack with the intent to sell. At trial, the People offered the testimony of the arresting sergeant, who opined that the amount of drugs possessed and the manner of packaging was inconsistent with personal use (and therefore the drugs must have been possessed with the intent to sell). (Freeman, __ AD3d at __.) To counter this testimony, the defendant tried to call a reformed drug addict, who prior to becoming a drug counselor was an active crack addict for 15 years, who would opine that drug users often buy in bulk and the possession of 18 nickel bags of crack can be consistent with personal use. Prior to allowing the testimony, the trial court asked for an offer of proof; here's what defense counsel placed on the record:

[The witness], to my understanding and knowledge is a reformed drug addict. He has been clean now for approximately six years to my understanding. Before that he was addicted to cocaine and other drugs for approximately 15 years; pretty much has had a general knowledge as to drug trafficking out on the street; how drugs were packaged, how drugs were purchased, that people on or with a cocaine addiction would purchase in quantity for their own personal use as opposed to because they wanted to sell, and given [the sergeant] being allowed to offer his opinion in support of the 1st count of the indictment, it would basically be our intention to have [the proposed witness] offset that with his own personal knowledge of drug trafficking here in the Rochester area.

(Respondent's brief at 6.)

The trial court did not allow the defense to call the reformed drug addict. As an aside, drug addicts are allowed to give expert opinion testimony in drug cases in New York; just this packet, the Fourth Department handed down a decision reaffirming that, "'In situations where the illegal substance is not available for analysis, drug users who can demonstrate a knowledge of the narcotic are competent to testify. It is for the jury to determine the weight to be given the testimony.'" (Fulton, __ AD3d at __ [quoting People v Christopher, 161 AD2d 896, 897].)

On appeal, the Fourth Department did not rule out the possibility that drug addicts could give opinion testimony on the "personal use" question in drug cases; however, the Court did find defense counsel's offer of proof lacking in Freeman. From the decision:

We conclude that defendant failed to present a sufficient foundation for the testimony of that witness with respect to the knowledge, training and reliability of the witness concerning the issues of personal use and packaging for sale. Defendant failed to provide any information with respect to the extent of the proposed witness's drug counseling and, indeed, defense counsel conceded that the proposed witness had no training or eduction in the area of drug counseling. In addition, defendant failed to present a sufficient foundation establishing that the proposed witness was "qualified to speak from actual experience, from observation or from study."

(Id. at __.)

It is true that defense counsel's offer of proof in this case painted in broad strokes--but if being a crack addict for 15 years does not give you the "actual experience" to opine as to whether a certain amount of cocaine is consistent with personal use or not, what does? And how detailed does a defendant have to get? And at what point does requiring a detailed offer of proof deprive a defendant of his constitutional right to present evidence in his defense?

CA: defendant does not have to admit "possessing" drugs to establish standing to challenge police search

People v Burton, __ NY3d __ [available here]

Mr. Burton was walking down the street when he was stopped and searched by a police officer. One bag of crack was found in Mr. Burton's pocket, and he was arrested. Mr. Burton's attorney made a motion to suppress the drugs, alleging "that defendant was walking alone on the street when he was stopped and searched 'for no apparent lawful reason'", and that the arresting officer noted on the felony complaint that one bag of crack was "recovered . . . from the defendant's person." (Burton, __ NY3d at __.) The People at trial opposed, "arguing that defendant lacked standing to ask for suppression because he did not expressly acknowledge that he had, in fact, personally possessed the cocaine that was recovered from his person, and his reliance on the police officer's allegation in the felony complaint was inadequate to confer standing." (Id..) The trial court agreed, and denied the motion without a hearing. (Id..)

In a decision handed down today, the Court of Appeals held "that the statements in defendant's motion papers that he was stopped and searched by the police without legal justification, and that the police claimed to have discovered drugs on defendant during the search, were sufficient to satisfy the factual allegation requirement of CPL 710.60[1] and thereby establish standing to seek suppression." (People v Burton, __ NY3d at __.) Judge Graffeo wrote for the unanimous Court. The Court made clear that evidence generated by law enforcement could be relied on by a defendant to establish standing to challenge a search:

[W]e have repeatedly observed that, in assessing the adequacy of a motion to suppress tangible evidence, a defendant is entitled to rely on the People's proof to demonstrate standing. The necessary allegations of fact may be gleaned in part from statements made by law enforcement officials in an accusatory instrument or from testimonial statements elicited by the prosecution. Our decisions further point out that witnesses for the People--including police officers--are among '[]other person[s]' (CPL 710.60[1]) whose factual assertions may be used in a motion to suppress. Based on this case law, defendant could meet his evidentiary burden by supplementing the averments made in his motion to dismiss with the police officer's statement that the drugs were recovered from defendant's person. Defendant was therefore not required to personally admit possession of the contraband in order to comply with the factual pleading requirement of 710.60.

(Id. at __.)

The Court further distinguished a "buy and bust" scenario from "a search based on the furtive behavior of a person". Where a defendant is arrested for buying drugs from an undercover officer, the defendant has to actually "'deny participating in the transaction or suggest some other grounds for suppression" to obtain a hearing. (Id..) But as the Court notes,

where probable cause for a search is premised on the furtive behavior of a person, we have observed that an accused can 'raise a factual issue simply by alleging that he or she was standing on the street doing nothing wrong when the police approached and searched' and discovered contraband in the process. A claim of this nature questions whether police action was legally authorized at its inception, and in this situation a hearing is required to determine, as a factual matter, whether the defendant engaged in suspicious or unlawful conduct giving rise to probable cause justifying a search.

(Id..)

Not a particularly groundbreaking decision, but a nice clarification of the factual assertions necessary to obtain a probable cause hearing in New York.