AD3: Decisions for February 22, 2007

Single gunshot into darkened room = depraved indifference to human life

People v Golden, 2007 NY Slip Op 01427 [available here]

The defendant in Golden "pulled out a revolver and began waving it around" before chasing a man into an apartment. "At the door of [the] apartment, defendant fired a single shot into the apartment. The bullet struck [the victim] in the abdomen and became lodged in her spine." (Golden, 2007 NY Slip Op 01427.) Defendant was convicted of Assault in the First Degree under a "depraved indifference" theory. On appeal, defendant argued that the evidence was not legally sufficient to establish the necessary "depraved indifference" to human life; the Third Department disagreed and affirmed. "Surely a jury was entitled to find that defendant's firing of a weapon into a darkened apartment where he should have perceived that one or more inhabitants were present was reckless conduct, and the jury likewise could infer from the evidence that defendant acted with 'an utter disregard for the value of human life [acting] not because [he intended] harm, but because [he] simply [didn't] care whether grievous harm [resulted] or not.'" (Id., citing People v Suarez, 6 NY3d 202, 214.) This decision is similar to the First Department's recent decision in People v Fields [post here].

Defendant must make motion to withdraw plea to preserve challenge to validity of appeal waiver

People v Sullivan, 2007 NY Slip Op 01428 [available here]

On appeal, the defendant challenged the validity of his waiver of right to appeal executed as part of a plea deal. The Third Department found the issue unpreserved because defendant "never raised this precise issue in a motion to withdraw his plea or to vacate the judgment of conviction." (Sullivan, 2007 NY Slip Op 01428.) The First Department recently overruled its own precedent and reached just the opposite conclusion on this issue. (See People v Hoover, 2007 NY Slip Op 01395 [previous post here].)

AD1: Decisions for February 22, 2007

Robbery victim's responses to police questioning after suspect has already fled qualifies as "excited utterance"; not testimonial

People v Smith, 2007 NY Slip Op 01467 [available here]

Police responded to a reported robbery and questioned the victim, who told them certain specifics about the robbery. The defendant challenged the victim's statement to the police as hearsay subject to no exception, and also argued on appeal that the statement was inadmissible testimonial hearsay under Crawford v Washington. The First Department did not bite on either argument. On the hearsay issue, the Court held the trial court "properly admitted as excited utterances the nontestifying victim's statements to the responding police officer . . . upon his arrival at the scene, describing the theft and informing the officer that the perpetrator had displayed a knife, as well as his statement, moments later, as to the perpetrator's flight." (Smith, 2007 NY Slip Op 01467.) Remember, this is the same Court that decided last week that the statement of a man who had just been shot in the gut was not an excited utterance. (previous post available here.)

As to the Crawford issue, the Court held that the statement was not testimonial in nature, but rather made to assist the police "'to meet an ongoing emergency' that had not abated. The ongoing emergency consisted of the immediate flight on an armed and dangerous person from the scene and his possible continuing presence nearby." (Id. at __, citing Davis v Washington, 126 S Ct 2266 [2006].)

Defense counsel's statement to court that client would perjure himself if he testified did not render assistance ineffective

People v Kolon, 2007 NY Slip Op 01472 [available here]

On appeal, defendant argued "that he was prejudiced when, in counsel's efforts to be relieved, counsel revealed to the ultimate fact-finder that his client would commit perjury if he testified, and that his client was eager to plead guilty to a lesser charge." (Kolon, 2007 NY Slip Op 01472.) Not ineffective assistance, said the First Department--defendant did not actually testify, and "the judge, in this nonjury trial, is presumed to have disregarded prejudicial matter." (Id. at __.)

Cop's testimony that he had met defendant several times, knew him by name, and knew where he lived properly admitted

People v Vega, 2007 NY Slip Op 01488 [available here]

In a drug case, the trial court allowed evidence that "the observing officer had met defendant on several undescribed prior occasions, knew him by name and had been to his apartment." (Vega, 2007 NY Slip Op 01488.) Despite the obvious prejudice of letting the jury know that the cops are on a first-name basis with the defendant, the Court held the trial court acted properly in admitting the evidence. "In addition to being highly probative of the officer's ability to identify defendant, an issue which defendant extensively pursued on cross-examination, this evidence also explained some of the unusual facts in this case." (Id. at __.)

AD2: Decisions for February 20, 2007

Single shot thru curtained window = depraved indifference murder

People v Fields, 2007 NY Slip Op 01584 [available here]

Breaking somewhat from the recent trend from the Court of Appeals, the Second Department upheld defendant's depraved indifference murder conviction based on a single shot fired through a "curtained window." (Fields, 2007 NY Slip Op 01584.) The Court held "the firing of a single shot through a doorway window, knowing that there were three people moving about on the other side of that doorway, was clearly reckless conducted which evinced a depraved indifference to human life. Indeed, the defendant had to have been aware that his actions could result in death to another person even if he could not be sure who the victim might be." (Id.)

Police following a running suspect is not pursuit; suspect running near crime scene with his hand on his waist established reasonable suspicion

People v Shankle, 2007 NY Slip Op 01598 [available here]

Police received a broadcast report of a shooting, and started toward the scene. About 2 1/2 blocks away, the officers saw "the defendant running from the direction of the reported shooting with his hand on his waist." (Shankle, 2007 NY Slip Op 01598.) One of the officers "stepped out and followed the defendant on foot, with his shield out but his gun not drawn. When he got to within 10 to 15 feet from the defendant, [the officer] stated: '[P]olice, don't move.'" (Id. at __.) Defendant then menaced the officer with a BB gun. (Id.) The Second Department held that the officer's "conduct before the defendant pointed the BB gun at him did not constitute pursuit or a seizure requiring reasonable suspicion." (Id.) Just so we're clear, a police officer pursuing a suspect is not "pursuit". The Court continued, "In any event, [the officer's] receipt of a radio report that a man had been shot about two and a half blocks away, together with his observation of the defendant running from that direction with his hand on his waist, were sufficient to support . . . a reasonable suspicion." (Id. at __.) So if you go jogging near probable crime scenes, keep your hands away from your waist.

AD1: no motion to withdraw plea necessary to challenge validity of appeal waiver

People v Hoover, 2007 NY Slip Op 01395 [available here]

Overruling its prior precedent, the First Department held in People v Hoover that a defendant no longer needs to make a motion to withdraw his or her plea to preserve the validity of an appeal waiver as an issue on appeal. "A defendant who has pleaded guilty and simultaneously waived the right to appeal cannot be asked, as a condition to an appellate challenge to the waiver of appeal, to move to withdraw the plea of guilty, with which, except for an otherwise preserved appellate issue, he/she may be satisfied." (Hoover, 2007 NY Slip Op 01395.) Reaching the merits, the Court found the defendant's appeal waiver invalid; the waiver, "consisting of the answer 'yes' to the question, 'You are also waiving your right to appeal this plea and sentence. Do you understand all that?" is invalid and unenforceable." (Id. at __.)

A quiet packet of decisions for the First Department; Hoover was the only significant decision handed down February 20, 2007.

CA: erroneous admission of evidence that defendant raped the babysitter before raping the victim is harmless error

People v Jackson, 2007 NY Slip Op 01424 [available here]

In an unsigned memorandum opinion, the Court of Appeals held that any error the trial court made by allowing evidence that the defendant raped the complainant's babysitter before he raped the complainant was harmless error. (Jackson, 2007 NY Slip Op 01424.) Judge Smith concurred and wrote separately; the facts, from his opinion:

Defendant was charged with the forcible and statutory rape of a 14-year-old girl. He had been staying as a guest in the apartment of the girl's family. A young woman who also lived in the apartment, the baby-sitter for the younger child, was allowed to testify that, shortly before the event on which the prosecution was based, defendant had raped her, and had remarked while doing so "that [the 14-year-old] was lucky I was there, because if I wasn't there, it would be her."

(Jackson at __ [SMITH, J., concurring].)

The majority refused to consider whether the trial court erred in admitting evidence of the prior rape as Molineux evidence, rather holding rather curtly that "[a]ssuming that it was error to admit both the statement and the uncharged criminal conduct, the error was harmless." (Id. at __.) You would think the evidence against defendant must have been overwhelming even without the arguably erroneous Molineux evidence for such damning evidence to be harmless; you would be wrong. The victim testified and recounted the rape, and there was evidence of a prompt outcry by the victim the morning after the rape. (Id. at __.) That was basically it--there was no physical evidence of the rape, and the victim was sketchy as to the dates the rape took place. (Id. at __.) Given the state of the proof, it is hard to see how the challenged evidence--that defendant raped the babysitter, too--could not have tipped the jury in favor of conviction. Yet the majority held just that; the verdict would have been the same even without evidence of the prior rape, and therefore any error was harmless. (Id. at __.)

(Here we will take a brief pause while I reconcile myself to the fact that every error in every case I have scheduled for argument in the next six months or so would be held harmless under the Jackson majority's unnecessarily strict interpretation of the harmless error doctrine. *Sigh*.)

Judge Smith concurred because he would not have found the error harmless, but rather would have held the evidence of the prior rape was (barely) proper under Molineux. Judge Smith argued (and I agree) that the defendant's statement made during the rape of the babysitter was "an expression of desire . . . to commit the very crime for which he was on trial" and thus admissible. (Id. at __ [SMITH, J., concurring].) While noting that the uncharged act--the rape of the babysitter--would ordinarily be barred under Molineux, it was properly admitted in this case to give context to the defendant's statement. (Id. at __.)

Judge Pigott dissented, and got it exactly right in my view--the trial court "could have fashioned a remedy that would have permitted the witness to testify to the alleged statement separately and apart from the alleged sexual assault." (Id. at __ [PIGOTT, J., dissenting.) Thus, there was no need to put the extremely inflammatory evidence of the prior babysitter rape before the jury, it was error to do so, and "[t]his critical error deprived defendant of a fair trial, and could hardly be considered 'harmless beyond a reasonable doubt.'" (Id. at __.)

AD1: prior "conviction" for CPW3 purposes measured from time of plea or verdict

People v Montilla, 2007 NY Slip Op 01367 [available here]

To be guilty of Criminal Possession of a Weapon in the Third Degree ("CPW3") under Penal Law section 265.02[1], the defendant must have "been previously convicted of any crime." (CPL 265.02[1].) In Montilla, the defendant pleaded guilty to a crime, and while awaiting sentence on the guilty plea was arrested for possessing a gun. The People charged defendant with CPW3, and argued that the defendant's guilty plea counted as a prior conviction even though sentence had not yet been imposed. (Montilla, 2007 NY Slip Op 01367.) The First Department agreed, noting the CPL "expressly provides that a 'conviction' occurs at the time of a plea or verdict of guilty, unlike a 'judgment,' which consists of a conviction and the sentence imposed thereon." (Id.)

There were no other decisions of note from the First Department's February 15 packet.

CA: 710.30 does not require notice of photo array

People v Grajales, 2007 NY Slip Op 01385 [available here]

Section 710.30 of the Criminal Procedure Law requires the People to give notice of any pretrial identification procedure "'intended to be offered' at trial." (Grajales, 2007 NY Slip Op 01385.) If the People do not intend to offer evidence of a certain identification procedure at trial, then no notice is required, even if a subsequent identification procedure is going to be offered against defendant. So holds the Court of Appeals in Grajales. In Grajales, the victim of a robbery was shown a photo array, and identified the defendant as the robber. About a week later, the victim saw defendant on the street and called the police. "When the police arrived, the victim pointed out defendant as one of the men who had robbed him." (Id.) The People gave notice under 710.30 of the "on-the-street point out", but not the identification from the photo array. (Id. at __.) Completely kosher, says the majority: "CPL 710.30[1][b] . . . only mandates preclusion in the absence of timely notice 'specifying' the pretrial identification evidence 'intended to be offered' at trial. Because evidence of a witness's pretrial photographic identification of an accused is not admissible in the prosecution's case in chief, the People could not intend to offer it trial, and therefore the CPL 710.30[1][b] notice was adequate." (Id. at __.)

Judge Ciparick dissented, and would have interpreted section 710.30 more broadly to require the People to give notice of any identification procedure that could potentially have tainted the witness's in-court identification. The dissent argues the majority's "interpretation also leaves open the possibility that notice of other suggestive identification procedures will not be provided to the defendant so long as the People do not intend to introduce them at trial. Such a stunning result is clearly contrary to the spirit and purpose of CPL 710.30." (Id. at __ [CIPARICK, J., dissenting].)

The majority agrees with the dissent that "the customary and better practice is to give defendant notice of all prior police-arranged identifications made by a witness from whom they intend to elicit in-court identification testimony." (Id. at __.) But absent a tweak of the statute by the Legislature, the majority is "unwilling to read the statute more expansively than the Legislature has chosen to write it, especially when the remedy is preclusion." (Id.)

CA: the People have the burden of establishing both the amount of loss and any offsets at restitution hearing

People v Tzitzikalakis, 2007 NY Slip Op 01335 [available here]

Defendant in Tzitzikalakis ran a contracting company that ripped off the city of New York by performing construction work and submitting inflated invoices. Defendant was convicted of grand larceny, and ordered to pay restitution to the city. At the restitution hearing, the hearing court required the People to establish only the face amount of some of the phony invoices paid, leaving it to the defendant to put in proof on any offsets (i.e. the value of the work defendant actually completed under the contract). From the majority opinion:

At a restitution hearing, the People bear the burden of proving the victim's out-of-pocket loss--the amount necessary to make the victim whole--by a preponderance of the evidence. To meet that burden, the People must show both components of the restitution equation, the amount taken minus the benefit conferred. To hold otherwise would contravene both the words and the intent of the statute, "to prevent the victim from enjoying an unjust enrichment, and the defendant from suffering under an unduly harsh and unreasonable restitution order."

(Tzitzikalakis, 2007 NY Slip Op 01335.)

The Court called on the legislature to modify the restitution statute to give "hearing courts the discretion to place the burden of proving assets on the party best suited to do so [...]." (Id.)

Justice Smith dissented. While agreeing that the People had "the initial burden of producing evidence and the burden of persuasion . . . on the issue to be decided at the hearing, the amount of the out-of-pocket loss", Justice Smith argued that once the People established a prima facie loss it was incumbent on the defendant to bear the burden of producing evidence on any offsets. (Id, SMITH, J., dissenting.)

This case also saw the battle of the evidence treatises--the majority cite to Richardson in support of its holding, with the dissent calling in Fisch.

AD1: Decisions for February 13, 2007

Jurisdictional defect that could have been raised on direct appeal cannot be raised by 440.10 motion

People v Cuardado, 2007 NY Slip Op 01197 [available here]

The defendant in Cuardado waived indictment and agreed to plead guilty to a Superiour Court Information (SCI) charging him with Assault in the First Degree. (Cuardado, 2007 NY Slip Op 01197.) The waiver of indictment failed "to adhere to the statutory requirements", presenting a jurisdictional defect. On direct appeal, however, defendant argued only that his sentence was harsh and excessive, and did not raise the jurisdictional defect. Defendant waited 11 years to raise the jurisdictional issue by way of a 440.10 motion to vacate his guilty plea. (Id. at __.)

Of course, CPL 440.10[2] mandates that a court "must" deny a 440.10 motion if the issue could have been raised on direct appeal. The First Department holds in Cuardado that this rule applies to jurisdictional defects--if the defect could have been raised on direct appeal, a 440.10 motion seeking vacatur of a conviction on jurisdictional grounds must be denied. (Id. at __.)

Presiding Justice Andrias filed a lengthy dissent, arguing that the jurisdictional defect is nonwaivable and the Legislature cannot impose "procedural barriers to a defendant asserting such non-waivable right." (Id. [ANDRIAS, P.J., dissenting.)

Defendant pinned to the ground and handcuffed is not under de facto arrest

People v Medina, 2007 NY Slip Op 01210 [available here]

Upholding what the Court calls a "lawful investigatory detention", the First Department in Medina holds that a defendant's "detention was not transformed into an arrest when the police ordered defendant out of his vehicle, placed him on the ground in handcuffs, and held (sic) for approximately 30 minutes, since all of these police actions were justified by the particular exigencies involved in the investigation." (Medina, 2007 NY Slip Op 01210.) The Court does not explain what those "particular exigencies" might be. The Court also does not explain why it fails to mention to the test for whether someone is under full de facto arrest for purposes of triggering a probable cause analysis--whether a reasonable, innocent person in defendant's position would have felt free to leave. (See People v Hicks, 68 NY2d 234.) Indeed, it is hard to see how a person taken to the ground and handcuffed would have felt free to leave, but Medina continues a trend in the Appellate Divisions of upholding truly restrictive measures as so-called "investigatory detentions" based on reasonable suspicion. The result is a further eroding of Fourth Amendment protections for New York citizens.

Gunshot victim's statement made in ambulance neither "dying declaration" nor "excited utterance"

People v Figueroa, 2007 NY Slip Op 01216 [available here]

During his murder trial, defendant wanted to offer evidence that "while en route to the hospital the deceased said to the officer, 'I don't know who did this to me. I don't know nothing.'" (Figueroa, 2007 NY Slip Op 01216.) While acknowledging that "the deceased made a remark to a witness immediately after the shooting that might be viewed as suggesting a sense of impending death," the First Department refused to characterized the statement as a dying declaration because "at the time the statement was made, the condition of the deceased, who sustained a gunshot wound to his abdomen, appeared to have stabilized." (Id.) Fair enough. But the Court went further, holding that the statement did not qualify as an excited utterance because the "record indicates that the statement was the product of 'studied reflection.'" (Id.) Now, the decision does not go into details, so maybe the gunshot victim had a certain Zen mindset that allowed him to transcend the anxiety one would naturally feel upon being gutshot. But I have a sneaking suspicion that the holding in this case might have been different if, instead of saying he didn't know who shot him, the victim had said "Figueroa did it." (People v Sykes, 26 AD3d 203 [1st Dept 2006]; People v Bryant, 8 AD3d 151 [1st Dept 2004].)

CA: trial court's failure to read jury's note into record is a mode of proceeding error

People v Kisoon, People v Martin, 2007 NY Slip Op _____ [available here]

Deciding two appeals, the Court of Appeals held that "a trial court committed a mode of proceedings error when it failed to disclose, or significantly paraphrased, a jury note." (Kisoon, 2007 NY Slip Op _____.) A trial court is required by statute to give "notice" of a jury's note to both the prosecutor and defense counsel, and the Court of Appeals has previously held that this "notice" should be accomplished by marking the jury note as a court exhibit and reading the contents of the note into the record. (See CPL 310.30; People v O'Rama, 78 NY2d 270 [1991].) Now the good caselaw of O'Rama is even better, because no objection at trial is necessary to preserve the issue for appeal. If the trial court fails to read the jury note into the record verbatim, reversal is required regardless of whether defense counsel objects. (Id. at __.) As the Court notes in Kisoon, "failure to read the note verbatim deprive[s] counsel of the opportunity to accurately analyze the jury's deliberations and frame intelligent suggestions for the court's response." (Id.)

AD3: amendment of indictment to change time of crime from "p.m." to "a.m." permissible

People v Alexander, 2007 NY Slip Op 01021 [available here]

The defendant in Alexander was indicted for selling drugs at 9:15 p.m. Turns out, the sale occurred at 9:15 a.m. (Alexander, 2007 NY Slip Op 01021.) The People made a motion prior to trial to amend to indictment to reflect the 9:15 a.m. sale. The trial court granted the motion. (Id. at __.) No error, said the Third Department: "[c]ourts are permitted to order amendment of an indictment to correct a defect, error or variance from the proof with respect to time, among other things, where the amendment does not change the prosecution's theory as reflected in the evidence before the grand jury or otherwise prejudice the defendant." (Id.) The defendant could show no such prejudice--he knew before trial that the sale actually occurred at 9:15 a.m., he offered no alibi evidence for the 9:15 p.m. time, and the court granted an "overnight adjournment" to give defense counsel time to adjust strategy. (Id.) The Third Department refused to consider whether the amendment "varied from the evidence before the grand jury", because counsel on appeal did not include the grand jury minutes in the record. (Id.)

There were no other decisions of note from the Third Department's latest packet.

AD2: Decisions for February 6, 2007

Trial court should have re-opened suppression hearing where the civilian witness testimony at trial contradicted police officer's suppression hearing testimony on facts critical to "custody" determination

People v Velez, 2007 NY Slip Op 01160 [available here]

Police responding to a radio report of a "suspicious person" encountered a man meeting the broadcast description; the man was stopped, and a showup identification was subsequently conducted. The arresting officers testified at the suppression hearing, and described a cordial initial encounter. Here is how the suppression testimony came in:

[The arresting officer] stopped [defendant], identified himself as a police officer, and told him that he was investigating an incident that had happened down the street. He asked the defendant to sit down and bear with him for a few minutes. According to [the officer], the defendant was cooperative and caused the detective no concern for his own safety. The defendant sat down and [the officer] made "small talk" with the defendant. He was not handcuffed, and nothing was taken from him. [The officer] then heard over the radio that Sergeant Kreso was on his way to the location with two witnesses.

When Kreso arrived at the scene, he pulled his vehicle up to within 15 or 20 feet of the defendant. One of the witnesses got out of the car, and Kreso nodded his head, signaling to Benash that the witnesses had identified the defendant. Benash asked the defendant to lie on his stomach, placed him in handcuffs, and frisked him. From a pouch near the defendant's waist, police officers recovered two boxes containing jewelry and World War II medals, as well as an envelope with currency. After he was placed under arrest and the property was recovered from him, the defendant reportedly blurted out that the money belonged to a friend and the jewelry belonged to his girlfriend. The property in fact proved to be the fruits of two burglaries [...].

(Velez, 2007 NY Slip Op 01160.)

Based on this testimony, the suppression court held that the showup identification of defendant provided the police with probable cause for arrest. (Id. at __.)

At trial, the civilian witnesses who identified defendant at the showup testified. They told a slightly different version of the showup identification procedure. Both witnesses said that the police already had defendant on the ground and were handcuffing him when the showup identification procedure was conducted. Defense counsel asked the trial court to reopen the suppression hearing; the trial court refused.

The Second Department reversed. " [T]he court has the discretion to re-open a suppression hearing if the defendant proffers new facts, which could not have been discovered with reasonable diligence before the determination of the motion, and which are pertinent to the suppression issue." (Id. at __.) The eyewitness testimony "went to the heart" of the probable cause issue--if believed, the civilian testimony established that the defendant was taken into custody before the showup identification procedure (and thus, before probable cause existed for defendant's arrest). (Id. at __.) Further, while the "defendant here certainly could be presumed to know the conduct of the police in placing him on the ground, handcuffing him, and searching him," the Second Department would not draw the "further inference . . . that he knew whether the conduct had preceded or followed one officer's signal to another that an identification had actually been made." (Id. at __.) Defense counsel tried to track down and interview the eyewitnesses prior to the suppression hearing; he could not find one, and the other refused to talk to him. (Id.) Since a defendant does not have an absolute right to subpoena suppression witnesses and the police officer's testimony gave no reason to believe the eyewitnesses would offer any noncumulative evidence, "the defendant cannot be penalized for failing to do what the law would not have allowed him to do." (Id. at __.)

Undercover officer's "unparticularized testimony" insufficient to justify closing courtroom

People v Baldomero, 2007 NY Slip Op 01132 [available here]

At a drug trial involving an undercover drug buy, the People asked that the courtroom be closed for the testimony of the undercover officer. The trial court agreed and allowed the undercover officer to testify in a closed courtroom; the Second Department reversed and ordered a new trial. After noting the applicable standard--"the People 'must first assert that a substantial probability of prejudice to a compelling interest will result from an open proceeding,' and then establish 'a nexus between the particular overriding interest asserted and open-court testimony' in the particular case." (Baldomero, 2007 NY Slip Op 01132.) At the hearing to determine if the courtroom should be cosed, "the undercover testified that he no loner operated in the specific area . . . where the alleged sale took place, but that he planned to return there as an undercover officer at an unspecified time '[i]n the future.'" (Id. at __.) Not enough, said the Second Department--"[s]uch unparticularized testimony fell short of meeting 'Waller's demanding first prong' of an 'overriding interest that is likely to be prejudiced' by open-court testimony." (Id.) Since "the unjustified closure of the courtroom during testimony at a criminal trial is not subject to the harmless error rule", the Second Department granted a new trial in spite of the overwhelming evidence of defendant's guilt. (Id. at __.)

AD1: Decisions for February 6 & 8, 2007

Rectum? It damned near killed 'em.

People v Hall, 2007 NY Slip Op 01015 [available here]

After his arrest for selling drugs, defendant was taken back to the police station, placed in a detention cell and strip searched. Here's how Justice Saxe (writing for the unanimous Court) describes what happened next:

Once defendant was completely disrobed, Spiegel asked him to squat by bending at the knees. As the defendant did so, Spiegel saw a string hanging from defendant's rectum and called Burnes into the cell. Burnes entered the cell and, in a loud voice, instructed defendant to remove the string. When defendant would not comply, Burnes and Speigel grabbed both of defendant's arms and brought him to the ground so that he was in a bent-over position; Burnes then pulled the string out of the defendant's rectum, recovering a plastic bag containing rocks of crack wrapped in plastic wrap.

(Hall, 2007 NY Slip Op 01015.)

No mention whether defendant was asked to squeal like a pig. The trial court suppressed the evidence as the product of a cavity search "unjustified by exigent circumstances", citing to Schmerber v California (384 US 757 [1966] and People v More, 97 NY2d 209 [2002].) The First Department disagreed, holding that the initial strip search was valid because the police had a "'reasonable suspicion that the arrestee [wa]s concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest." (Hall, 2007 NY Slip Op 01015.) On what grounds could the police reasonably suspect that the person they just arrested for selling drugs had crack in his rectum, you ask? The arresting officer testified that "'a good majority' of the people arrested 'usually' place drugs between their buttocks." (Id.) Once the strip-search was conducted, "the observation of the protruding string, during the course of the procedure, justified the immediate actions taken to physically retrieve the secreted narcotics." (Id.)

Leaving aside the self-serving nature of the cop's testimony (shouldn't police agencies be required to keep records about how many drug suspects come in with contraband in their bums so we don't have to rely on suspiciously selective police anecdotes?), the First Department had to overcome the Court of Appeal's decision in People v More to uphold this rectum search. In More, the police entered an apartment and saw the defendant sitting on the couch with his girlfriend; what appeared to be crack-cocaine and a crack pipe were on a table nearby. (More, 97 NY2d 209, 211 [2002].) The police arrested the defendant, took him into a bathroom, and strip-searched him. Id.) Just like in Hall, once defendant's nether-regions were exposed, the police saw something protruding from defendant's rectum. The item turned out to be a plastic bag of crack. (Id.)

The Court of Appeals specifically held that the United States Supreme Court decision in Schmerber v California, dealing with the constitutionality of a blood draw, applied to body cavity searches. The Court noted that, in Schmerber, "the Supreme Court determined that seizures involving intrusions beyond the body's surface cannot be justified simply because they are made incident to a lawful arrest." (More, 97 NY2d at 212-213.) "Rather, there must exist a 'clear indication' that desired evidence will be found. [...] Moreover, even where there is a 'clear indication' that incriminating evidence will be retrieved if the bodily intrusion is permitted, '[s]earch warrants are ordinarily required for searches of dwellings, and absent an emergency, no less should be required where intrusions into the human body are concerned." (More, 97 NY2d at 211 [emphasis in original].)

The First Department dealt with the first requirement of More, finding that there was a "clear indication" that evidence would be found secreted in the defendant's bum based on the cops testimony (i.e. that most drug dealers keep their stash very close to home). Pretty flimsy, but at least the First Department acknowledged the "clear indication" requirement of More. But the First Department's decision conveniently ignores the additional requirement of More--that even where a "clear indication" suggests that evidence will be found, a body cavity search is improper absent a warrant unless exigent circumstances exist justifying the warrantless search. (More, 97 NY2d at 211.) Here's what More says:

Even assuming that the extraction of the drugs satisfied all of Schmerber's other requirements, the People failed to offer any evidence of exigent circumstances to justify dispensing with the warrant requirement--that a neutral, detached magistrate determine that the search is justified and will be conducted in a reasonable manner. This record is devoid of any evidence from which an officer 'might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant' posed a threat to the officer's personal safety or of the destruction of the evidence. Notably, no police officer testified that, despite the available means of incapacitating defendant and keeping him under full surveillance, an immediate body cavity search was necessary to prevent his access to a weapon or prevent his disposing of the drugs. Nor was there any evidence the police were concerned that the drugs--which were wrapped in plastic--could have been absorbed into defendant's body. The absence of exigent circumstances dictates the conclusion that the body cavity search here was unreasonable.

(Id at 214.)

Given the facts of Hall--where the defendant had already been arrested and was being held in detention cell at the time of the strip search--it is hard to even imagine an argument for an exigency that would justify dispensing with the warrant requirement. Defendant was being kept in a small cell and thus subject to full surveillance, and the drugs certainly weren't going to dissolve into defendant's body (if drugs kept in one's rectum were absorbed into the body, what right-thinking drug dealer would keep them there?). There was absolutely no reason not to get a warrant in Hall--let the police tell a judge anecdotes about dealers routinely secreting drugs in body cavities, and let the judge decide if that is a sufficient basis for justifying a strip search. And a judge here could have dictated a somewhat more civilized manner of conducted the strip search than the violent "tackle and pin" method engaged in by the officers in Hall. Rather than deal with the compelling logic of More, the First Department drew an artificial distinction--the search in More happened in the bathroom at the crime scene, and the search in Hall took place in a detention cell at the police station. But how does that fact possibly change the exigency analysis, except to make the police officer's failure to obtain a warrant even more inexplicable? Here's hoping the Court of Appeals grants leave in this case and reasserts the More holding.

Fingerprint comparison reports not testimonial under Crawford v Washington

People v Rawlin, 2007 NY Slip Op 00998 [available here]

In a decision proving that the First Department is trying to give me an aneurysm, the Court holds in Rawlin that a fingerprint examiner's reports "qualified as nontestimonial business records, and thus did not violate defendant's right of confrontation." (Rawlins, 2007 NY Slip Op 00998.) Of course, the Court of Appeals has recently held that the mere fact that a document is a "business record" does not answer the question of whether a document is "testimonial" under Crawford; the First Department distinguishes Pacer as follows:

Unlike the affidavit of mailing in People v Pacer, which the Court of Appeals found to be testimonial notwithstanding the business records exception contained in Crawford, the fingerprint examination reports were not prepared for the specific purpose of litigation. On the contrary, they were prepared in the regular course of an investigation in progress, at a time when defendant had not yet been arrested. Moreover, the reports at issue were introduced through the testimony of a live witness subject to confrontation, albeit not the author of those particular reports.

(Id. at __.)

This is wrong is so many ways, I am not sure where to begin. First, is there a meaningful distinction between a report prepared for "the specific purpose of litigation" and one made during "an investigation in progress"? This was a burglary, and the fingerprint examiner's report compared prints lifted at the crime scene to the defendant's known prints, and opined that the prints matched. Regardless of whether the defendant was technically under arrest at that point, what other purpose would the fingerprint examiner's report serve other than to establish defendant's guilt at a subsequent trial? Whether or not the case is on a court's docket at the time the report is prepared should be irrelevant--this report was generated to be evidence at a criminal trial, and could not conceivably be used for any other purpose. Under the recent Court of Appeals decision in People v Goldstein, the fingerprint examiner's report should qualify as "testimonial", and it is not even a particularly close call.

Second, there is no "business records" exception in Crawford v Washington. Justice Scalia mentions "business records" in passing, while discussing the exceptions to the hearsay rule that existed at the time the Sixth Amendment was created. (See Crawford, 541 US at 56 ["Most of those hearsay exceptions covered statements that by their nature were not testimonial--for example, business records or statements in furtherance of a conspiracy"]. Justice Scalia's statement is true as far as it goes--most business owners keep records for reasons other than prosecuting criminals. The shopkeeper keeps track of his inventory to better run his business; the telephone company keeps track of customer calls to accurately bill. But the professional enterprise of law enforcement was unheard of during the time of the Founders. The "business records" exception of today, as codified as an evidentiary rule in CPLR 4518, has very little to do with the "business records" exception that existed at the time of the founding. Almost any document used in a criminal prosecution can be turned into a business record by virtue of the manner in which the document is generated and kept. A defendant's confession could be a business record; witness statements given after formal police interviews could be business records; even a plea proceeding transcript could qualify as a business record if the stenographer knew the right foundational testimony to give. By taking the lazy way out and claiming some sort of "business records" exception to the testimonial hearsay rule of Crawford short-circuits the very analysis that Crawford demands. I'd go on, but I've posted on this subject at length already (available here.

Third, the fact that a warm body was on the witness stand when the non-testifying fingerprint examiner's report was received is not only irrelevant, it points up the very unfairness that the confrontation clause is designed to dispel. The declarant must be on the stand if any meaningful confrontation is to occur; substituting somebody with no first-hand knowledge of the report at issue doesn't solve the confrontation clause problem--it guarantees that no confrontation will occur.

The Fourth Department has previously held that fingerprint affidavits are inadmissible under Crawford (see People v Williams, 30 AD3d 980); hopefully, the Court of Appeals will grant leave and resolve the split.

Cop can give expert opinion testimony explaining why no drugs were found on defendant

People v Goris, 2007 NY Slip Op 01165 [available here]

Defendant was observed selling drugs, but when the police arrested him they found no drugs on his person, and a search of the immediate area turned up nothing. Over objection, a police officer was allowed to give "brief expert testimony to explain why the police did not recover any drugs from defendant's person, or after a search of the area, although they had just observed him selling drugs." (Goris, 2007 NY Slip Op 01165.) The First Department found no error, holding that the "testimony was particularly relevant since defendant argued that the failure to recover a drug stash undercut evidence of his guilt. The officer's testimony indicated that defendant kept the drugs in a location other than on his person, and provided a factual predicate for expert testimony regarding his possible use of a hiding place." (Goris, 2007 NY Slip Op 01165.) This drives me nuts. In order to allow expert testimony to invade the jury's sole province to determine the facts at issue, the testimony must be about something that is beyond the ken of the average juror. How is a lay person unable to understand that drug dealers might hide their drugs in a ground stash? Essentially, rulings like this give a police officer in a drug case inordinate power of the outcome of the trial; if the police find drugs on the person, an officer can opine that the amount of drugs is consistent with the intent to sell, and if no drugs are found, the officer can opine that the dealer is just really good at his craft. No matter what the facts are in a drug case, a police officer will give expert testimony that such facts are consistent with guilt.

AD3: Decisions for February 1, 2007

Not too much of note from the Third Department this packet. Only two cases merit mention, and neither one breaks any new ground.

In trouble with the law and with his girlfriend

People v Jacobs, 2007 NY Slip Op 00697 [available here]

At his trial for rape and burglary, defendant admitted to entering an 84-year-old woman's home in the middle of the night, stripping naked from the waist down, and climbing into bed with the elderly woman. His defense? He was drunk, and "he mistook the victim for his 33-year-old girlfriend." (Jacobs, 2007 NY Slip Op 00697.) I'm guessing this is now his ex-girlfriend. After noting that the "jury obviously did not credit defendant's testimony," the Court held the evidence sufficient to support his rape and burglary convictions. While the victim "'blanked out' during certain portions of the assault", the forensic evidence and the victim's testimony established the required elements. (Id. at __.)

Can you hear me now? Good, you're under arrest.

People v Turner, 2007 NY Slip Op 00702 [available here]

A homeowner awoke at 3:30 a.m. to the sounds of someone breaking in to his house. He yelled at the intruder, "who took the victim's cell phone and left." (Turner, 2007 NY Slip Op 00702.) "The victim called 911 and the person who had been in his home was described as a black male dressed in two-tone tan clothes." (Id.) The cell phone was described as "silver-colored", and this information was broadcast to the responding officers.

About ten minutes later, a police officer about 2-3 blocks from the crime scene "observed defendant, a black male who was wearing two-tone tan clothing, walking in an area where there was very little pedestrian traffic and talking on what appeared to be a silver cell phone." (Id. at __.) The officer approached defendant and told him to hang up the phone. The officer radioed back to the scene and had another officer call the victim's cell phone number; the cell phone in defendant's hand rang and defendant was arrested. (Id. at __.)

On those facts, the Third Department held that the officer had reasonable suspicion to justify the initial approach of defendant, and that reasonable suspicion ripened into probable cause for arrest once it was established that the cell phone in defendant's hand belonged to the burglary victim. "Defendant's race and clothes were consistent with the description of the perpetrator, he was located close in time and proximity to the crime scene (at an hour of day when few people were out on the streets), and he was openly using a cell phone that matched the one reportedly stolen from the crime scene. The evidence provided [the officer] with reasonable suspicion of defendant's involvement, and upon confirming that the cell phone was, in fact, the one removed from the victim's residence, there was probable cause to arrest defendant." (Id. at __.)

AD4: Decision roundup (February 2, 2007)

The Fourth Department handed down decisions this past Friday, February 2, 2007. I've decided to change up my posting schedule; instead of stringing things out, I am going to start posting the highlights of the decision packet, all in one big blob. The plan is to start highlighting significant decisions from the other Departments of the Appellate Division as those decisions are handed down, as well. Hopefully, this will make this blog more timely and useful. So here are the decisions from the Fourth Department's February 2, 2007 packet, in no particular order.

Scuffle over gun resulting in fatal shooting is not depraved indifference murder

People v De Capua, 2007 NY Slip Op 00938 [available here]

While armed with a gun, the defendant started a fight in a bar; "a struggle over the gun ensued[,] [t]he two fell to the ground and the gun went off, resulting in the fatal gunshot wound to the victim." (De Capua, 2007 NY Slip Op 00938.) On those facts, the jury convicted the defendant of depraved indifference murder. The Fourth Department vacated the depraved indifference count and reduced defendant's conviction to manslaughter in the second degree. "We agree with defendant that 'there exists no valid line of reasoning that could support [the] jury's conclusion that defendant possessed the mental culpability required for depraved indifference murder.'" (Id. at __.) The Court reached this unpreserved issue in the interest of justice. (Id. at __.)

"I think I need a lawyer" is not unequivocal invocation of right to counsel

People v Porter, 2007 NY Slip Op 00918 [available here]

During his interview on suspicion of murder, defendant told his interrogators "I think I need an attorney." (Porter, 2007 NY Slip Op 00918.) The investigator stopped questioning the defendant long enough to confer with an Assistant District Attorney. The prosecutor told the investigator that the defendant did not unequivocally invoke his right to counsel; the investigator went back into the interview room, told the defendant that the the officer "was advised that defendant had not unequivocally invoked his right to counsel", and asked the defendant if he still wanted to talk to the police. The defendant agreed to keep talking, and ultimately confessed. (Id. at __.)

While the Court had little trouble finding that the defendant was in custody during the interview ("he was removed from the house where he was staying . . . escorted by eight police officers and was handcuffed in the house during the ride to the police station"), the majority went on to hold that the defendant's statement--"I think I need an attorney"--was not an unequivocal invocation of his right to counsel. (Id.)

Justice Gorski dissented, writing:

I conclude under the totality of the circumstances in this case that, in advising defendant that his statement did not sufficiently invoke his right to counsel, the officer effectively dissuaded defendant from further efforts to invoke his right to counsel. Defendant's consent to continue with the interrogation without counsel was obtained after an interrogating officer gave defendant an apparent legal opinion garnered from an assistant district attorney that defendant had not uttered the precise words to constitute unequivocal invocation of the right to counsel. In my view, the court erred in refusing to suppress the statement thereafter made by defendant to the police inasmuch as that statement was obtained in violation of his right to counsel and defendant could not have validly waived any rights in the absence of counsel.

(Id. at __ [GORSKI, J., dissenting].)

It is hard to disagree with Justice Gorski's dissent--the defendant was a lay person untrained in legal niceties. He requested a lawyer the way most non-lawyers would--"I think I need a lawyer". Rather than scrupulously honoring this request, the police consulted an on-site prosecutor in search of a loophole. Armed with the ADA's assurances that the defendant did not really ask for a lawyer, the investigator conveyed the prosecutor's opinion to the defendant. It is not hard to understand why the defendant agreed to keep talking--he tried to get an attorney, and was told he was not entitled to one. You expect this kind of thing from the police sometimes; but the prosecutor should have erred on the side of respecting the defendant's admittedly less-than-perfect assertion of his right to counsel. That the majority let the prosecutor and police off the hook and tacitly approved their sharp tactics is disappointing.

No reasonable expectation of privacy in public storage area

People v Pucci, 2007 NY Slip Op 00785 [available here]

Defendant argued on appeal that the trial court erred in denying his suppression motion without a hearing, or in the alternative that trial counsel was ineffective for failing to allege sufficient facts to raise an issue of fact requiring a hearing. The Fourth Department rejected both arguments; the motion papers failed to establish defendant's standing to contest the search, and the additional information defense counsel could have included in the motion papers to establish standing actually "confirmed that defendant lacked standing because he had no legitimate expectation of privacy in the storage area where the physical evidence was discovered by the police." (Pucci, 2007 NY Slip Op 00785.)

Evidence of subsequent drug purchase improper in robbery prosecution

People v Edsall, 2007 NY Slip Op 00832 [available here]

At his trial for robbery and evidence tampering, the People introduced evidence that defendant "attempted to purchase drugs approximately four months after the robbery." (Edsall, 2007 NY Slip Op 00832.) The Fourth Department held this was error because "there was no evidence that defendant's drug use on that date was connected to the acts alleged in the indictment." (Id.) No reversal, though; the Court found the error harmless.

Defendant not in custody when request for counsel made

People v Casey, 2007 NY Slip Op 00847 [available here]

During her interrogation in connection with arson and murder charges, defendant told police "I think I want to talk to a lawyer." (Casey, 2007 NY Slip Op 00847.) The Court held that, regardless of whether this was an unequivocal invocation of the right to counsel, defendant was not in custody when the statement was made--"Defendant complied with the request of the police to come to the police station, and she did so of her own accord and at a time of her own choosing. Furthermore, defendant was advised by the police at the outset that she was free to discontinue the interview and leave the police station at any time." (Id.)

Apparently, the defendant did subsequently terminate the interview by unequivocally requesting a lawyer. At trial, one of the police investigators testified that the interview ended when defendant asked for an attorney. While acknowledging that this testimony was improper, trial defense counsel did not object to the questioning (or the People's reference to the cop's testimony on summation) and the Court declined to reach the issue in the interest of justice. The Court further held that any error was harmless. (Id.) Defense counsel's failure to object to the improper testimony did not render his assistance ineffective. (Id.)

Mere presence at juvenile detention facility insufficient to establish fact of prior conviction for SORA classification purposes

People v Ross, 2007 NY Slip Op 00848 [available here]

Defendant was assessed five points under the "prior criminal history" category at his SORA reclassification hearing. The only evidence of this history was defendant's placement at a juvenile detention facility at the time the underlying sex crime was committed. The Fourth Department agreed this evidence was insufficient to establish a criminal conviction. "The People failed to specify the offense of which defendant was allegedly convicted or adjudicated, and, in fact, failed to submit any evidence in support of such a conviction or adjudication." (Ross, 2007 NY Slip Op 00848.) Full disclosure: I was Mr. Ross' attorney at the SORA reclassification hearing.

Fingerprint affidavits admissible at persistent sentencing hearing?

People v McCallie, 2007 NY Slip Op 00869 [available here]

In a strange decision, the Court rejected "defendant's contention that the court violated Crawford v Washington (541 US 36) when it admitted into evidence prior certificates of conviction and a certified fingerprint analysis during the CPL 400.16 hearing; those materials were admissible pursuant to CPL 60.60." (McCallie, 2007 NY Slip Op 00869.) The Fourth Department cites to People v Williams (30 AD3d 980) in support of its decision. However, the Fourth Department held in Williams that the fingerprint affidavit did violate Crawford and was not admissible at a persistent sentencing hearing. The analysis is pretty straightforward--section 400.16 provides that prior convictions must be proven by the rules of evidence applicable at trial, and Crawford applies at trial to exclude testimonial statements. To the extent CPL 60.60 provides otherwise and allows the admission of testimonial hearsay as long as it is certified, it runs afoul of the plain mandate of section 400.16 (and by statutory incorporation, Crawford). (See Williams, 30 AD3d at __.) I previously posted on Williams here.

What's even stranger is that the Fourth Department has previously cited to Williams to exclude fingerprint affidavits from recidivist sentencing hearings. (See People v Wright, 2006 NY Slip Op 08459 [subject of a previous post here.) I just do no see the basis for excluding fingerprint affidavits as testimonial hearsay in Williams and Wright, and allowing the fingerprint affidavit in McCallie. I was the appellate attorney in Williams, and the CPL 60.60 argument seemingly relied on in McCallie was raised in the People's brief in Williams. Why the Court would deviate from Williams, while citing to Williams for support, is somewhat baffling. I will pull the briefs in Mc Callie next week and try to figure out the Court's reasoning.

Despite no objection to the sentence below or on appeal, defendant's favorable concurrent sentence vacated

People v Davis, 2007 NY Slip Op 00929 [available here]

Proving once again that a criminal appeal is not a risk-free enterprise, the Fourth Department vacated defendant's sentence and remanded for resentencing where the trial court ordered defendant's five year determinate sentence to run concurrent to a 1 - 3 year sentence on a prior felony without setting out his reasons on the record. (Davis, 2007 NY Slip Op 00929.) The Fourth Department took this defendant-adverse action even thought the issue was not raised before the sentencing court and was not raised by any party on appeal. According to the Court, the sentencing court's failure to make a record of its reasons for running the sentence concurrent rendered the sentence "illegal", and illegal sentences cannot stand. But the Court acknowledged in the decision itself that the sentences could properly run concurrent if certain mitigating factors exist, and the problem below was that the sentencing court did not put those mitigating circumstances on the record. But if the People had objected to the imposition of the sentence on that ground, could not the Court have made the required record? And isn't the whole point of preservation to give the lower court a chance to get it right before an appellate court steps in and reverses? This was a pretty harsh move by the Fourth Department, and I'm not sure the Court's reasoning survives scrutiny.