Wednesday, September 24, 2008

September 2007 Fourth Department Decisions

There were only two reversals in criminal appeals this term, People v Rodriguez (2007 NY Slip Op 07123)(Here, discussed previously) and People v Jones 2007 NY Slip Op 07249)(Here), in which after a remand for the trial court to make fact finding on whether the search was consensual, the Court that
the People did not meet their burden of demonstrating the legality of the police conduct, and thus the court suppressed the tangible evidence seized pursuant to the purportedly consensual search of the vehicle. We reject the People's contention that the court erred in its determination. In reviewing suppression issues, great weight is accorded to the determination of the court "with its peculiar advantages of having seen and heard the witnesses" (People v Prochilo, 41 NY2d 759, 761; see People v Williams, 202 AD2d 976, lv denied 83 NY2d 916). Here, the court's factual findings are supported by the evidence and should not be disturbed (see generally People v Miller, 244 AD2d 828).

The Court thus reversed the conviction.

Some other decisions which caught my eye, include

People v Adams (2007 NY Slip Op 07237)(Here) an appeal from an arson conviction in which the defendant urged
that the expert testimony of the arson investigator at trial improperly invaded the jury's province. Although we agree with defendant that County Court erred in allowing the arson investigator to testify that the fire was intentionally set, we conclude that the error is harmless.

People v Bryant (2007 NY Slip Op 07182)(Here)in which the Court held that despite the victim testifying at trial that one of the police officers who showed her a photo array pointed to one of the photographs and said, "[I]sn't that the guy in one of those pictures" it was not error for the court to deny defense motion to reopen the Wade hearing. The Court explained

In denying defendant's motion, the court stated that the victim "seemed somewhat confused" during her testimony and ruled that it would allow defense counsel to point out the identification issue to the jury during summation. The court also permitted defense counsel to cross-examine the police officers involved in the identification procedure, and both officers denied directing the victim to select a particular photograph. We therefore conclude that the court did not abuse its discretion in denying defendant's motion to reopen the Wade hearing
Thus, a defendant cannot call the victim as a witness at the pre-trial Wade hearing and cannot get the hearing reopened when the victim finally testifies at trial and gives describes a suggestive procedure..

On a more pleasant note, People v Agha (2007 NY Slip Op 07187)(Here remanded a case for resentencing, because it was confident that the sentencing court's claim that it had not considered impermissible information in imposing sentence was accurate.

At sentencing, County Court referred to a prior conviction of defendant's brother for a similar crime. The court indicated that, in the prior case and the instant case, defendant's brother had come to the defense of defendant. Defendant objected on the ground that he was not charged in the prior case involving his brother. Although the court stated that it would not draw an adverse inference against defendant based on the prior case, we conclude on the record before us that the court may in fact have relied upon information that was inaccurate in sentencing defendant (see People v Gardner, 28 AD3d 1221, 1223, lv denied 7 NY3d 812).

Judge Smith dissented.

In People v Vasquez (2007 NY Slip Op 07168) (Here), after again holding that
[b]y failing to object to County Court's ultimate Sandoval ruling, defendant failed to preserve for our review his contention that the court abused its discretion in ruling that the People could cross-examine him with respect to a previous conviction of rape

the Court reduced Mr. Vasquez's sentence to 7½; to 15 years explaining
in view of the circumstances of this case, including the small quantity of cocaine possessed and sold by defendant, we conclude that the sentences imposed for the criminal sale of a controlled substance in the third degree and each count of criminal possession of a controlled substance in the third degree are unduly harsh and severe.

The decision does not set forth the circumstances nor the quantity of cocaine involved.

Similarly, in People v Miller (2007 NY Slip Op 07121) (Here), the Court lowered the SORA risk level, where
The point total on the risk assessment instrument prepared by the Board of Examiners of Sex Offenders (Board) presumptively classified defendant as a level one risk, and the Board did not recommend an upward departure from that risk level. We conclude on the record before us that County Court erred in granting the People's request for an upward departure from defendant's presumptive risk level to a level three risk. "The People failed to demonstrate by clear and convincing evidence the existence of an aggravating factor of a kind or to a degree not otherwise adequately taken into account by the guidelines that would warrant such an upward departure" (People v Fuller, 37 AD3d 689; see People v Burgos, 39 AD3d 520).

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