Sunday, December 28, 2014

Police Ignorance Is An Excuse Under Federal, But Not New York, Law

On December 15, 2014, in Heien v. North Carolina, the United States Supreme Court found that a police officer's mistaken belief that the law required two working brake lights, when it only required one, which led to a stop and consent search of a vehicle, was reasonable, and as such, the product of the search would not be suppressed. Sadly, a defendant not trained in the law as a police officer is, who had the mistaken belief that only one light was necessary instead of two, would not be treated as kindly by the courts. The dissent and concurrence discuss whether this will encourage ignorance on the part of the officers. Remember that if you are in a situation in which federal law is bad, argue that New York State's constitution is more protective of rights and make a state constitutional argument.

The good news is that, as pointed out by Jamie Hobbs of the Monroe County Public Defender's Office, the current New York state case law is the opposite from the decision reached by the Supreme Court. (e.g., People v Smith, 67 AD3d 1392, 1392 [4th Dept 2009] ("Where the officer's belief is based on an erroneous interpretation of law, the stop is illegal at the outset and any further actions by the police as a direct result of the stop are illegal"). Thus, New York attorneys shoud continue to argue that pursuant to the New York Constitution, an officer's mistaken belief is not justification for a bad search.

New York attorneys should remember that, as explained  by the New York Court of Appeals, although the language of the State and Federal constitutional privacy guarantees (US Const 4th Amend; NY Const, art 1, Sec 12) are identical, this Court of Appeals has repeatedly demonstrated a willingness to adopt more protective standards under the State Constitution, 
"when doing so best promotes 'predictability and precision in judicial review of search and seizure cases and the protection of the individual rights of our citizens.' " People v. P. J. Video, 68 N.Y.2d 296, 304, 508 N.Y.S.2d 907, 501 N.E.2d 556 [on remand], quoting People v. Johnson, 66 N.Y.2d 398, 407, 497 N.Y.S.2d 618, 488 N.E.2d 439). Accordingly, we have in recent years carved out an independent body of principles to govern citizen-police encounters in a number of specific areas (see, e.g., People v. P. J. Video, supra [warrant application requirements in obscenity cases]; People v. Bigelow, 66 N.Y.2d 417, 497 N.Y.S.2d 630, 488 N.E.2d 451 [declining to follow "good faith" test outlined in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 and Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737]; People v. Johnson, 66 N.Y.2d 398, 497 N.Y.S.2d 618, 488 N.E.2d 439, supra [declining to apply "totality of circumstances" test outlined in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 to warrantless arrests]; People v. Class, 67 N.Y.2d 431, 503 N.Y.S.2d 313, 494 N.E.2d 444 [on remand] [search for vehicle identification number in connection with traffic stop]; People v. Gokey, 60 N.Y.2d 309, 469 N.Y.S.2d 618, 457 N.E.2d 723 [warrantless search incident to arrest]; People v. Belton, 55 N.Y.2d 49, 447 N.Y.S.2d 873, 432 N.E.2d 745, supra [search of personal effects within automobile]; People v. Landy, 59 N.Y.2d 369, 465 N.Y.S.2d 857, 452 N.E.2d 1185, [reiterating Elwell rule]; People v. Elwell, 50 N.Y.2d 231, 428 N.Y.S.2d 655, 406 N.E.2d 471, supra [probable cause predicated on informant's tip]; see also, People v. Stith, 69 N.Y.2d 313, 316, n. 514 N.Y.S.2d 201, 506 N.E.2d 911, [exclusionary rule as it pertains to inevitable discovery doctrine] ).  
People v. Torres, 74 NY2d 224, 228, 543 NE2d 61, 63–64 [1989].


Which Came First, the Chicken, the Egg, the Search or the Arrest?

by Jill Paperno, Esq., author of Representing the Accused:A Practical Guide to Criminal Defense

When you are handling probable cause hearings in which you are seeking to suppress evidence obtained as a result of a search, you must be acutely aware of the claimed (or potentially claimed) reason for any search, the timing of the arrest and the timing of the search.  If a search is justified as "incident to arrest" you should attempt to elicit testimony from the arresting officer that the arrest had not yet occurred at the time of the search.  If this may be an issue, be really strategic in planning your questions and cross.  Cops don't like to admit that people were under arrest too early in the investigation because they know that there may not have been probable cause at that stage.  
In People v. Graham Reid (2014 NY Slip Op 08759 [NY 12/14/14]), defendant was stopped for traffic violations and the officer's observations led him to believe defendant might have committed a DWI. The officer conducts a search and finds a switchblade knife, for which the defendant is then charged. When questioned by defense counsel about whether defendant was going to be arrested at the stage that the search was being conducted, the officer stated he was not (perhaps because the DWI observations resulted in a test, which resulted in a .0 BAC. and the cop knew that at the time of the hearing). The Court noted it was undisputed that there was PC to arrest for DWI, but the officer had testified he was not arresting for DWI at the time of the search. The search which produced the switchblade was justified by the prosecution as a search incident to arrest, but as the defendant had not yet been arrested, that didn't actually fly. Like chickens.

"THE COURT: At that point, were you going to arrest him?
"THE COURT: You weren't?
"THE COURT: So it's only because you ultimately found the switchblade that you arrested him?
"THE WITNESS: Yes, ma'am.

On this record the Court held that the search of a driver could not be justified as "incident" to the driver's arrest:"although probable cause to arrest the driver existed before the search, the driver would not have been arrested if the search had not produced evidence of a crime."

Saturday, December 13, 2014

Commencement of Counsel Upon Requests on Behalf of Indigents Being Questioned by Police

Jill Paperno, Esq., 
author of  

And justice for all!

During a week when many of us are questioning the criminal justice system's handling of cases, I wanted to share one case reflecting that our continued struggle to eliminate disparities in how defendants are treated can pay off.

In People v. Rankin, a case in which Judge John DeMarco presided in Monroe County Court, Rochester New York, the question of whether an indigent defendant had the same right to counsel as one who could afford to retain was answered.  The decision, which can be found here - - though focusing largely on New York law, addressed principles applicable to indigent defense throughout the country.
(Full disclosure - I am a public defender employed by the office originally involved in this case. Mr. Rankin was successfully represented on this issue by Lawrence Kasperek, of Easton Thompson Kasperek Shiffrin LLP., whose arguments persuaded the court).

There are times that the Public Defender's office is contacted by friends or family members seeking representation for a loved one who has just been arrested and taken for questioning.  Sometimes individuals under investigation walk into the office seeking assistance.  While the County Law of New York provides guidance for how attorneys are appointed to indigent defendants once charges are filed, the pre-charge process is somewhat murkier.  So individual judges assigned to the court part that handles bail review, warrants and other criminal matters not assigned to a particular judge are often involved in appointing counsel in these cases. Some immediately appoint, while others may require affidavits and orders, all during those critical minutes and hours of interrogation.  Some judges, perhaps on the bench or otherwise unavailable, when in this part, may be difficult to reach as the clock ticks away.

Recognizing the importance of representation at those critical early stages, Judge DeMarco held that:
Effective assistance of counsel for indigent individuals demands the absence of suspect distinctions regarding the obtainment of counsel. Indeed, the American Bar Association (ABA) recommends that counsel be provided as soon as practicably possible after someone is taken into custody (see ABA Standards for Criminal Justice, Providing Defense Services, standard 5-6.1 [3d ed 1992], available at _archive/crimjust_standards_defsvcs_blk.html). Similarly, the New York State Bar Association (NYSBA) recommends that indigent individuals be afforded "early entry of representation" whenever counsel is requested for an indigent party under investigation or in custody (see NYSBA Revised Standards for Providing Mandated Representation, standard B-1 at 5 [2010], available at Mandated%20Representation.pdf). While the NYSBA states that the initial eligibility determinations shall be decided by the court (see id. standard C-3 at 6), they also declare that the "[p]rovision of counsel shall not be delayed while a person's being determined or verified" (id. standard C-5). These standards, applicable to all attorneys tasked with representing indigent individuals, demonstrate, objectively, that effective representation for indigent individuals entails representation without delay pending the judge's eligibility determination. The Court is not maintaining that a judge's order of appointment is without purpose or a practice that should be dispensed with. The Court is simply saying that there is no scenario under which indigent individuals would not be afforded an impaired quality of representation where the Public Defender's function as counsel is effectively disabled pending receipt of a judge's order of appointment. An overtechnical application of this measure, as urged by the People, would sanction the sort of "mechanical" requirement eschewed by the Court of Appeals in Grice, supra, in subversion of the right to counsel (see Grice, 100 NY2d at 323).

Wednesday, December 10, 2014

What does a Mandate and Remand for Re-Sentencing from the Second Circuit really mean?

It happens occasionally. The U.S. Second Circuit Court of Appeals issues a Summary Order affirming the judgment of conviction and remanding the matter for re-sentencing only. In the USA v. Dawn White, 13-1041-cr, the Circuit provided the following, REMAND for re-sentencing only, “with directions to the District Court either to make specific findings to support the enhancement under U.S.S.G§2B1.1(b)(11)(C)(I) or to sentence White without regard to that enhancement.” What’s the analysis? 
First, when there is no vacatur of a count of conviction that has altered the “factual mosaic related to” the remaining counts which would compel the sentencing court to reconsider the imposed sentence on the count or counts affected by the vacatur as well as the aggregated sentence the proceeding is not de novo. See, United States v. Quintieri, 396 F3d 1217, 1227-28 (2d Cir. (2002); see also, United States v. Rigas, 585 F3d 108, 118-119 (2d Cir. 2009). The proper procedure was addressed in United States v. Malki, 718 F3d 178 (2d Cir. 2013) as provided below. 
When we overturn a sentence without vacating one or more underlying convictions and remand for re-sentencing, the “default rule” is that the remand is for limited, and not de novo, re-sentencing. United States v. Quintieri, 306 F3d 1217, 1228-29 n. 6 (2d Cir 2002). When  our remand is limited, the mandate rule generally forecloses re-litigation of issues previously waived by the parties or decided by the appellate court. See id., at 1225. Similarly, it “also precludes re-litigation of issues impliedly resolved by the appellate court’s mandate.” Yick Man Mui v. United States, 614 F3d 50, 53 (2d Cir 2010). 
Although a mandate may, of course, call for de novo re-sentencing, thereby allowing parties to reargue issues previously waived or abandoned, a mandate should not be so interpreted unless it clearly says so or our intent that re-sentencing be de novo is evident from “the broader ‘spirit of the mandate.’” United States v. Ben Zvi, 242 F3d 89, 95 (2d Cir 2001)(citations omitted). 
Id., at 182.

What then is a de novo re-sentencing? “[W]hen a (complete) sentence has been vacated, the defendant is placed in the same position as if he had never been sentenced.” See, United States v. Maldonado, 996 F.2d 598, 599 (2d Cir.1993); see also, United States v. Barnes, 948 F.2d 325, 330 (7th Cir.1991); United States v. Schoenhoff, 919 F.2d 936, 938 (5th Cir.1990). This requires, among other things, that the defendant be afforded a right of allocution, viz. that the defendant be permitted “to speak or present any information to mitigate the sentence.” Fed.R.Crim.P. 32(i)(4)(A)(ii); see also, United States v. Margiotti, 85 F.3d 100, 103 (2d Cir.1996). In, U.S. v. Johnson, 387 Fed.Appx. 105 C.A.2 (N.Y.),2010 the Defendant was convicted of murder in the course of a robbery in violation of 18 U.S.C. § 924(j)(1), among other offenses. In 2008, a panel of the Court of Appeals vacated defendant's life sentence and remanded for re-sentencing. See, United States v. Johnson, 273 Fed. Appx. 95, 101 (2d Cir.2008). On remand, the district court declined to conduct a new sentencing hearing and instead issued a new sentencing opinion once again sentencing defendant to life. In spite of defendant's protests, the district court did not allow defendant to be heard prior to imposing sentence. This was reversible error according to the Court of Appeals. Id. at 107. See, United States v. Gonzalez, 529 F.3d 94, 97 (2d Cir.2008); see also, United States v. Muhammad, 478 F.3d 247, 250-51 (4th Cir.2007).
Ah but you say, what of post-sentencing rehabilitation? Surely United States v. Pepper, 131 S.Ct. 1229 must be considered. In Pepper, the Supreme Court held that the District Court at re-sentencing may consider post-sentencing rehabilitation to support a non-guideline sentence. However, regarding limited remand orders, the Supreme Court provided the following in footnote 17:
Of course, we do not mean to imply that a district court must reduce a defendant’s sentence upon any showing of postsentencing rehabilitation. Nor do we mean to preclude courts of appeals from issuing limited remand orders, in appropriate cases, that may render evidence of postsentencing rehabilitation irrelevant in light of the narrow purposes of the remand proceeding. See, e.g., United States v. Bernardo Sanchez, 569 F.3d 995, 1000 (9th Cir. 2009).
Therefore, in cases where the mandate is a limited remand having a very narrow purpose (ie., determining if specific facts support a minimal enhancement) it appears the District Court is not required to consider post-sentence rehabilitation. But try anyway. 
Good Hunting.  

Sunday, December 7, 2014

What Constitutes Reasonable Suspicion In the Context of an Anonymous Tip

James Eckert, Esq.
Assistant Monroe County Public Defender

In People v Argryris ( _NY3d_, 2014 NY Slip Op 08220, 2014 WL 6633480 [11/25/14]), the Court of Appeals rendered a simple four-judge Memorandum decision on the issue of what constitutes reasonable suspicion in the context of an anonymous tip. Unfortunately, the memorandum fails to answer the question.

The Memorandum simply says that because (in the first two of the three consolidated appeals) there is record support for the findings of the suppression court, which was affirmed by the Appellate Division, the limited jurisdiction of the Court of Appeals ends there and does not permit further review of the facts. In the third case, which all seven judges agreed must be reversed, the memorandum said that under either of the proposed tests for determining reasonable suspicion, a conclusory anonymous call saying that someone’s driving demonstrated that they were either sick or intoxicated was insufficient to establish reasonable suspicion that the driver was DWI (and the deputy was outside of his jurisdiction when he observed the minor traffic infraction). The first two cases, involving co-defendants, are what I discuss from here on out.

Which brings us to the important and still unrsolved question: when the police receive an anonymous tip, and when they require reasonable suspicion for the actions under review by the suppression court, is the test Aguilar-Spinelli (A-S) (i.e. did the information from the caller establish a basis of knowledge and sufficient indicia of the caller's reliability?), or is the test Totality of the Circumstances ("does it feel right" aka "anonymous tips rock!"). Also unclear is what is the A-S rule in the context of reasonable suspicion determinations and what will it be going forward? Is A-S rendered meaningless by finding that accuracy as to mundane facts not indicative of knowledge of a crime (such as a man in a blue suit is crossing Main Street) proves the reliability and knowledge of the caller as to the important facts (he’s got a gun!).

Before I give an inevitably too brief explanation of the substance of the various opinions, let's play Judicial Sudoku

  Aguilar-Spinelli(Strong)          Aguilar-Spinelli(Weak)       Totality of the Circumstances

Defendant Loses                Abdus-Salaam                        Pigott
                                   Graffeo                                Smith

Defendant Wins                      Rivera                                Read?

Judge Read joined in the dissent, implying that she does not regard the Aguilar-Spinelli test as quite as weak as Judges Abdus-Salaam and Graffeo, but she did not join in Judge Rivera's dissent. So I do not put her in the strong A-S category, either.

It seems to me that a five judge majority of the Court believes that Aguilar-Spinelli does apply to anonymous tips and the question of Reasonable Suspicion. Only Judges Smith and Pigott held that totality of the circumstances was the test.

On whether Aguilar-Spinelli should retain a strong test as to probable cause determinations, perhaps Judges Smith and Pigott would join Judges Rivera and Lippman in preserving the strong test.  Remember that whether A-S should be strong or weak when it comes to Probable Cause was not the issue in this case, so at worst some judges signalled a willingness to weaken A-S further in the context of Probable Cause. They didn't formally decide to do so here.

Now we get to the hard part. What is this A-S people keep talking about?

Someone who calls the police, yet gives them no way to determine their identity, has deliberately eliminated the checks which normally provide us with a reason to trust them. A face-to-face informant can theoretically be arrested for lying (of course, in theory she could also win an Olympic Gold Medal in Synchronized Spitting, but that’s not important right now). An anonymous tipster can bring down a SWAT team on someone whose political views she doesn’t like, or have an enemy harassed on the street, or ruin someone's day just for fun. So the issue on anonymous tips has always been, what is the tipster’s basis of knowledge, and why should we trust her? There is also the temptation to conclude that the person is trustworthy and knowledgeable simply by verifying things anyone could have seen.  A call comes in that a man in a blue suit is crossing Main Street and that he has a gun.  If police see a man in a blue suit cross main street, does that mean he has a gun? Verification of innocent facts is not a reliable basis upon which to confirm guilty facts.  This concern is the difference between weak A-S and strong A-S. If the police can confirm the validity of an anonymous tip by seeing something mundane, then as Judge Smith says:
“To the extent that such evidence -- which does not directly prove either the basis of the informant's knowledge or his truthfulness -- may satisfy either prong, the two prongs tend to merge, and the Aguilar-Spinelli rule begins to resemble the totality-of-the-circumstances test.”
What prompted the Court’s review of Aguilar-Spinelli in the context of reasonable suspicion is the recent 5-4 Supreme Court decision in Navarette v California (__ US __, 134 SCt 1683 [2014]).  In that case, a call came in from someone on the highway that a specifically described vehicle had just run the caller off of the road and was headed southbound on the named highway. What confirmed the police in trusting the person was that the vehicle was observed on the highway in question going in the direction claimed and at approximately the position it should have been in. The police pulled over the vehicle, smelled marijuana, and recovered 30lbs of it. The Supreme Court held that this was enough, since the caller was obviously an eyewitness to what she claimed. Now, the Supreme Court treated this nominally as an anonymous tip, but relied on someone hesitating before using a traceable cell phone to make such a report. The dissent’s retort was, “The claim to ‘eyewitness knowledge’ of being run off the road supports not at all its veracity; nor does the amazing, mystifying prediction (so far short of what existed in White) that the petitioners’ truck would be heading south on Highway 1" (Scalia, J.). 

This weak-to-the-point-of-being-worthless A-S rule is what two judges (Abdus-Salaam and Graffeo) relied upon:
“By claiming personal knowledge, the tipster puts his or her own credibility on the line rather than seeking to hide behind a secondhand hearsay source; the tipster knows that, if the police arrive on the scene and see that the situation is not as described, they will discredit the tip completely rather than assume that the error resulted from the miscommunication of only a few details by another individual who transmitted the information to the tipster.  Furthermore, from the claim of eyewitness information and the other contents of the tip, the police may discern whether it is plausible for someone to have personally seen the activities alleged under the circumstances in which they have purportedly occurred.”
Thus, these judges approved a stop based on a tip that someone just saw someone put a gun into a Mustang and head down 28th street. Details supported the tipster: a big white guy had the gun, the gun itself was big, and it was in the back of the car.

Judge Read in dissent noted that, had Navarettebeen decided before the Court of Appeals adopted its current rule on anonymous tips, that the Court of Appeals might have decided the issue differently.  However, she would not alter the rule to follow the more relaxed recent Supreme Court decision.

Judges Rivera and Lippman wrote at length and would have both applied Aguilar-Spinelli to reasonable suspicion determinations, and preserved the stronger rule supported by Justice Scalia.  As Judge Rivera described the weaker test: “The People in Argyris and DiSalvo, claim that predictive information is unnecessary because the anonymous informant's alleged personal observations of the claimed criminal activity.  As this argument goes, the informant is reliable because in addition to describing the car and the defendants, the informant said that he saw one of the men put a gun in the back of the car.”  She quoted the Supreme Court dissent “So what?” 

In sum, Judge Rivera said 
“The informant provided descriptive information of the defendants, the car and van and the route they were taking when he last observed them.  This information was readily observable to anyone on the street. The tip lacked predictive information as to the criminal activity alleged because the informant stated only that he had seen one of the men put a gun in the back of the car. Without more, the tip lacked information to establish the reliability of the allegation of gun possession.”
CONCLUSION: When there is no majority, the narrowest basis of the decision is the one that controls.  The narrowest basis for the decision was simply that there was record basis, under either of the tests, to support the decisions below, and therefore the Court of Appeals did not decide the issue of what test is used.  It only decided that it didn't need to decide the question to reach a result under these facts. This is in fact exactly what the Memorandum says. 

As to the future, it may be that on the question of whether an anonymous tip provides sufficient basis to establish reasonable suspicion, we use a weak A-S test which is the functional equivalent of the totality of the circumstances test, and which is in any event not a big improvement over Navarette from the US Supreme Court. This is what the four judges in the majority held in their concurrences. However, five judges explicitly rejected totality of the circumstances test, so it's hard to see that being the formal result of the court's decision.

The other big question is where A-S goes from here as it relates to probable cause. Judge Read would have kept A-S for reasonable suspicion, so I can't see her doing less for probable cause. The other dissenters wanted a strong A-S for all determinations. Judges Smith and Pigott equated the weaker A-S with totality of the circumstances. Maybe that means they want the weaker test in all cases, maybe not.  Judges Abdus-Salaam and Graffeo want a weak Aguilar-Spinelli for reasonable suspicion, and might well be happy with the same test for probable cause. However, PC is a higher standard, so one would expect a higher requirement to clear that hurdle, however it is articulated. 

With Judges Smith and Graffeo soon to be replaced, it is unclear what the test will be in 2015 and beyond.

Examining the law of police-citizen encounters in New York

As our country considers the nature of civilian/police interaction our bloggers will be taking a look at how New York laws regulate - or are supposed to regulate - that interaction. How may the police interfere with a citizen's right to be free from unreasonable searches or seizures? What information must the police have before they can lawfully stop, frisk or arrest a citizen?  

The first post in this series (below) addresses some relevant New York statutes. Following posts will address case law, specific circumstances that permit greater police intervention, and practical application of the law. As with all of our posts, this information is intended to be educational, but is not legal advice.

In this time of increased (and in many cases, long overdue) scrutiny of civilian/police encounters, it's worth taking a look at the police conduct New York law authorizes.  While many of us are familiar, and spend lots of time litigating the hierarchy of permissible police intrusion on civilians' freedom as laid out by the Court of Appeals in People v Debour, 40 NY2d 210 and People v Hollman, 79 NY2d 181 in the context of suppression hearings, we may forget that there is a statutory scheme as well.

The Statutes

First, let's look at when police may arrest without a warrant. CPL 140.10 addresses the circumstances in which that may occur:
1. Subject to the provisions of subdivision two, a police officer may arrest a person for: 
(a) Any offense when he or she has reasonable cause to believe that such person has committed such offense in his or her presence; and 
(b) A crime when he or she has reasonable cause to believe that such person has committed such crime, whether in his or her presence or otherwise. 
2. A police officer may arrest a person for a petty offense, pursuant to subdivision one, only when:
(a) Such offense was committed or believed by him or her to have been committed within the geographical area of such police officer's employment or within one hundred yards of such geographical area; and
(b) Such arrest is made in the county in which such offense was committed or believed to have been committed or in an adjoining county; except that the police officer may follow such person in continuous close pursuit, commencing either in the county in which the offense was or is believed to have been committed or in an adjoining county, in and through any county of the state, and may arrest him or her in any county in which he or she apprehends him or her.
Part of the important takeaway from this portion of the statute is that if a petty offense, defined in CPL 1.20(39) such as a violation or traffic infraction, occurs outside the officer's presence, s/he cannot arrest. And s/he cannot claim resisting arrest for failure to comply with such an arrest, since to be guilty of resisting, the arrest resisted must be authorized by law. (But please be aware, New York has a "no sock" rule - no hitting an officer even if the arrest is not lawful!). The statute's later subdivisions also include provisions concerning geographical jurisdiction to arrest and specific rules concerning family offenses.

So if a disorderly conduct, simple trespass, simple traffic infraction, or simple harassment occurs outside the officer's presence, the officer should issue an appearance ticket, but not arrest.

What about when officers stop someone to talk to them without any reason to believe the person has violated the law? Can the officer search that person? Again, case law addresses these circumstances, and often the applicable law is very fact specific, but there is a statute that we sometimes forget.  CPL 140.50 states:
§ 140.50 Temporary questioning of persons in public places; search for weapons. 
1. In addition to the authority provided by this article for making an arrest without a warrant, a police officer may stop a person in a public place located within the geographical area of such officer's employment when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct. 
2. Any person who is a peace officer and who provides security services for any court of the unified court system may stop a person in or about the courthouse to which he is assigned when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct.
3. When upon stopping a person under circumstances prescribed in subdivisions one and two a police officer or court officer, as the case may be, reasonably suspects that he is in danger of physical injury, he may search such person for a deadly weapon or any instrument, article or substance readily capable of causing serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons. If he finds such a weapon or instrument, or any other property possession of which he reasonably believes may constitute the commission of a crime, he may take it and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.
4. In cities with a population of one million or more, information that establishes the personal identity of an individual who has been stopped, questioned and/or frisked by a police officer or peace officer, such as the name, address or social security number of such person, shall not be recorded in a computerized or electronic database if that individual is released without further legal action; provided, however, that this subdivision shall not prohibit police officers or peace officers from including in a computerized or electronic database generic characteristics of an individual, such as race and gender, who has been stopped, questioned and/or frisked by a police officer or peace officer.
Police may stop individuals for reasons beyond what the above statute permits pursuant to the Debour decision's scheme, often referred to as Level One (request for information) and Level Two (right of inquiry) conduct.  But their right to search for weapons is not greater when their reason to search - asking for information - is lesser.  In other words, if the basis for police intrusion does not rise to reasonable suspicion, they can't claim the need to search for officer safety without.  

In People v. Darryl C, 98 AD3d 69 (1st Dept 2012) the First Department addressed a police officer's pat frisk of the defendant who was stopped for a Level Two inquiry. In a discussion of "stop and frisk" policies the Court stated, 

The law imposes a strict standard for a stop and frisk, requiring an officer to have a reasonable suspicion of an individual's involvement in criminal activity (CPL 140.50 [1]; People v Debour, 40 NY2d 210 [1976]) and then "knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect is armed or poses a threat to safety" (People v Batista, 88 NY2d 650, 654 [1996]; CPL 140.50 [3]). The motion court erred in holding that a police officer exercising the common-law right to inquire without a reasonable suspicion of criminal activity may subject the individual he is questioning to a frisk under the guise that the officer claimed to perceive some threat to his personal safety. Such ruling broadly expands the power of the police to search an individual during street encounters and can too easily lead to the diminishment of one of the most cherished rights, the right of individuals to be secure in their persons against illegal searches and seizures (NY Const art I, § 12; [71] US Const 4th Amend). The gradual erosion of this basic liberty can only tatter the constitutional fabric upon which this nation was built. The ramifications go beyond this single case. Widespread, aggressive police tactics in street encounters have recently raised concerns in other judicial forums. 

In People v Holland, (18 NY3d 840 [2011, Lippman, Ch.J., dissenting]), the Chief Judge took issue with his own Court's dismissal of the appeal as "not only unsound jurisdictionally, but erosive of this Court's role in articulating the law governing police-civilian encounters" (id. at 845). He stated:
"When courts with the factual jurisdiction to make attenuation findings employ facile analytic shortcuts operating to shield from judicial scrutiny illegal and possibly highly provocative police conduct, an issue of law is presented that is, I believe, this Court's proper function to resolve . . . This is not an exaggerated or purely academic concern in a jurisdiction where, as is now a matter of public record, hundreds of thousands of pedestrian stops are performed annually by the police, only a very small percentage of which actually result in the discovery of evidence of crime" (id.).
Of course, you must be familiar with People v Debour and People v Hollman, and develop an understanding of what factors may elevate an officer's right to interfere with your right to be left alone, like reaching for the waistband, having a weapon shaped bulge, perhaps fleeing and other conduct. But these statutes tell us that generally, in the absence of criminal conduct, a person can't be searched without a reasonable suspicion that s/he has committed a crime and is a threat to the officer.

Tuesday, December 2, 2014

Is 24 hours reasonable notice of the Grand Jury presentment under CPL 190.50?

In People v. Misaiah Hymes, Case No. 1247; KA 10-01590 decided November 21, 2014 by the 4th Department, the defendant appealed from a judgment convicting him upon a jury verdict of burglary in the second degree (Penal Law §140.25[2]). The 4th Department agreed with defendant that County Court erred in denying his motion to dismiss the indictment pursuant to CPL 210.20 (1) (c) because he was denied his right to testify before the grand jury. The prosecutor notified defendant and his counsel at the arraignment on the felony complaint that the matter would be presented to the grand jury the next morning, in less than 24 hours. Later that day, defense counsel notified the court that he could no longer represent defendant due to a conflict of interest. The following morning, after the grand jury voted to indict defendant, he was assigned new counsel by the local court. Defense counsel, Lawrence L. Kasperek, objected to the short notice of the grand jury proceeding and gave the prosecutor written notice of defendant’s intent to testify. The prosecutor offered defendant the opportunity to testify before the grand jury before it filed the indictment, but refused defendant’s request to testify before a different grand jury.

The Court agreed with defendant that he was not given “reasonable time to exercise his right to appear as a witness” before the grand jury (CPL 190.50 [5] [a]). “CPL 190.50 (5) (a) does not mandate a specific time period for notice; rather, ‘reasonable time’ must be accorded to allow a defendant an opportunity to consult with counsel and decide whether to testify before a [g]rand [j]ury” (People v Sawyer, 96 NY2d 815, 816, rearg denied 96 NY2d 928). Under “the particular facts” of this case, including the less than 24 hours’ notice of the grand jury proceeding and assigned counsel’s withdrawal from representation, the Court concluded that defendant did not have reasonable time to consult with counsel and decide whether to testify before the case was presented to the grand jury (see People v Degnan, 246 AD2d 819, 820; see also People v Fields, 258 AD2d 593, 594; cf. Sawyer, 96 NY2d at 817).

James A. Hobbs, Assistant Public Defender successfully argued the issue before the Appellate Court. Good Hunting. 

Monday, November 17, 2014

Important Decision on Interrogation of Suspects with Low IQs - Providing Guidance to Courts and Counsel

Jill Paperno, Esq.
All too often, we represent defendants who are intellectually limited, due to genetic or birth defects, lead poisoning, traumatic brain injury or other causes. We struggle to persuade prosecutors and judges that these disabilities should be considered during plea negotiations. But sometimes we fail to recognize the effect that mental disabilities may have on a defendant's ability to understand Miranda warnings, knowingly and intelligently waive rights, and withstand coercive tactics of aggressive officers.

If a defendant with such disabilities has given a statement, or consented to a search, defense counsel must become familiar with the law relating to admissibility of statements made by these defendants. But knowing the law is not enough. We must obtain our clients' educational, psychological and social services histories, and consult with an expert, or even better, put on our own expert at suppression hearings and trial. We should consider whether the client had the capacity to understand the words of an officer reading Miranda, and whether the client had the capacity to understand abstract concepts such as constitutional rights.  We should consider whether the client is excessively compliant and more likely to simply agree with an officer's accusations. We should analyze the officer's questions and their impact on the particular responses. (Of course, this is all easier with a recorded interrogation.)

For a great example of the defense analysis and use of this information in a case in which the defendant, who had an IQ of 68, was convicted of numerous sex offenses, you must read the Fourth Department's decision  in People v Knapp (2014 NY Slip Op 07801 [4th Dept 11/14/14]).
In Knapp, Justice Peradotto, writing for a unanimous Court, provides a comprehensive analysis of the law relating to admissibility of statements of defendants who have mental disabilities.  The decision addresses both issues relating to Miranda as well as voluntariness, and recognizes the significance of defendant's highly compliant nature as tested by the expert, and the impact of the officer's tactics.  To repeat - it is a "must read."

Kudos to defense counsel and the expert, who understood the importance of testing and analyzing the defendant's intellectual abilities and compliance characteristics, and linked them to related aspects of interrogation.  The Court reversed the conviction, suppressed the defendant's statement, and dismissed certain counts, remanding others for retrial.

Sunday, November 16, 2014

As we wait . . .

The result of the Ferguson, MO grand jury investigation into the shooting death of Michael Brown is scheduled to be announced any time now (authorities indicated that the results could be made public as early as yesterday). No one but the grand jury knows what that result will be. That would not be the case, were the situation reversed.  If a black man in Ferguson had shot a police officer (who, unlike Michael Brown, would have been armed) then other black men - members of the shooter's gang - surrounded the area a prevented the officer's body from being removed from public view for hours, there would be no question of the outcome of any grand jury investigation.  Those men, if they lived through the ordeal, would be charged and the shooter would not be at home with his family on paid administrative leave. Maybe there would be reasons not to charge the shooter in that case, but is there any chance, really, that those reasons could ever result in a vote not to charge the shooter? Maybe there are reasons for the Ferguson grand jury not to charge Michael Brown's killer. But if the grand jury votes not to do so, claims that a different, and double standard was applied, will be hard to refute.   

Physical Helplessness, Mental Incapacity and the Difference Between the Two

Jill Paperno, Esq.

Sometimes our clients are charged with engaging in sexual contact with complainants who are old enough to consent, but claim that based on their mental or physical condition, they could not. The penal law provides for prosecution if a complainant is physically helpless or mentally incapacitated. The distinction between a complainant who is physically helpless and one who is mentally incapacitated. is very important because if a defendant is charged with sexual conduct with someone who is mentally incapacitated, and the incapacity was based on the complainant’s voluntary consumption of alcohol or drugs, the defendant may not be convicted. So it is important to understand the distinction between physical helplessness and mental helplessness, to raise the issues based on the distinction in grand jury motions, and to address the issues, when appropriate, at trial. 

Penal Law Section 130.05(3) states that “A person is deemed incapable of consent when he or she is: (c) mentally incapacitated.”  Mentally incapacitated is defined in Section 130.00(6) of the Penal Law as follows: “'Mentally incapacitated’ means that a person is rendered temporary incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent.”

This is the date-rape drug statute.  It’s intended to permit prosecution of those who, as they used to say, slipped someone a mickey (which has an interesting derivation – Mickey Finn – but I digress.)  This is a charge that we rarely see.

Anyway, the key to this prosecution is that the complainant cannot have become intoxicated voluntarily. See People v. Johnson, 23 NY3d 973 (2014). So what’s a prosecutor to do when a complainant who was really drunk says she was raped? Well, it seems that some actually charge defendants who have taken advantage of the voluntarily inebriated with an offense alleging physical helplessness.  But that’s a different charge.

Penal Law Section 130.05(3) states that “A person is deemed incapable of consent when he or she is:  (d) physically helpless. “Physically helpless” is defined in Section 130.00(7) as follows: “’Physically helpless’ means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.”  

See that?  UNCONSCIOUS OR…PHYSICALLY UNABLE TO COMMUNICATE – not mentally incapable of deciding.  In People v. Teicher, 52 NY2d 638 the Court of Appeals, in affirming the conviction of a dentist who had contact with his patients who were still under the effects of sedation, noted the aspect of physical helplessness:
Carson was heavily sedated at the time the initial touching occurred and, as a consequence, she was in an extremely weakened condition. Thus, although she had enough control over her body to pull her hand away after defendant had placed it against his penis, the trier of fact was entitled to infer that she lacked capacity to consent to the original touching because of her generally weakened condition. 

People v. Teicher, 52 N.Y.2d 638, 646.
With respect to another complainant in the same case, the Court stated, “the state of the victim's physical helplessness at any given moment is largely a question of fact which, in view of this and other testimony, we may not question upon this record.” 52 N.Y. 2d at 649. Although Teicher appears to support a conclusion that a person may be physically helpless and yet somehow attempt to foil the sexual conduct, the Court of Appeals concluded that in a voluntary intoxication case, the effort to stop the defendant established the complainant was not physically helpless:
The People thus argue, in substance, that Catherine was physically helpless at the moment she prevented defendant from fondling her. The argument is self-refuting; she could not have blocked him if she were helpless.  People v. Cecunjanin, 16 N.Y.3d 488, 492 (N.Y.2011).
The complainant in Cecunjanin was extremely intoxicated – a woman in a bar, slumped over, at times seeming physically helpless, at other times, not so much.  The Court noted her BAC of .26%, as well as the legal limit of .08%. The Court recognized the important distinction between sloppy, drunken conduct and physical helplessness.

For a good discussion and review of other cases comparing physical helplessness and mental incapacity, see People v. Battease, 74 AD3d 1571 (3rd Dept., 2010).

So here is the take-away as I see it:

If a complainant engaged in voluntary intoxication, the defendant cannot be charged under a theory of mental incapacity.  So maybe the prosecutor will charge physical helplessness to try to get around the statute. But if the complainant does not display the true indicia of physical helplessness – unconsciousness or a physical inability to communicate - then the charge should not be filed.  Period. We must scrutinize the allegations and the elements of the charges.  Sometimes poor judgment is just poor judgment, and an unsuspecting, perhaps equally intoxicated participant should not be criminally charged.  In fact, to take it a step further, I think that this is one of several examples of how our penal law has criminalized sexual conduct and branded large numbers of people in ways that are just…criminal.

Wednesday, November 12, 2014

Ethan Nadelmann examines the failure of the war on drugs

Here's a provocative TED Talk, published today, by Ethan Nadelmann, former professor at Princeton University and founding executive director of the Drug Policy Alliance, "the largest and most influential organization promoting drug policies grounded in science, compassion, health and human rights." Mr. Nadelmann contends that the drug laws have more to do with the sublimation and control of disenfranchised groups of our society than the control of drug use and sale, contending, among other things, that if middle-aged white men were the primary consumers of smokeable cocaine and teenage black men were the primary consumers of Viagra, you would be able to get smokeable cocaine from your pharmacist with a prescription from your doctor and Viagra would get you a 5-10 year prison sentence.  

The groundwork of this presentation was laid here, at a debate between Mr. Nadelmann and Peter Bensinger, President & CEO, Bensinger, DuPont & Associates, at the "Rethinking the War on Drugs" symposium at Northwestern Law School on Feb. 20, 2014.

Saturday, November 8, 2014

The Second Circuit revisits the concept of curtilage for Fourth Amendment purposes

The recent Second Circuit decision in Harris v. O’Hare, 2014 WL 5471749 [2nd Cir. 2014], decided on October 30th, addresses and expands upon the concept of curtilage, a topic infrequently addressed in judicial opinions (common though it may be in dinner party and happy hour conversation). The Court’s examination of curtilage was important in Harris (and may be useful in other cases) because it delineates an area in which an individual enjoys an expectation of privacy protected by the Fourth Amendment.

So what is curtilage?  The curtilage of a dwelling house is the land immediately surrounding it, and excluding any associated “open fields beyond.”  In Harris, the Second Circuit noted that curtilage is a concept that “originated at common law to extend to the area immediately surrounding a dwelling house the same protection under the law of burglary as was afforded the house itself” (Id. at *7, quoting United States v. Dunn, 480 US 294, 300 [1987]).  Black’s Law Dictionary [1891] defines curtilage as:
The enclosed space of ground and buildings immediately surrounding a dwelling-house. In its most comprehensive and proper legal signification, it includes all that space of ground and buildings thereon which is usually enclosed within the general fence immediately surrounding a principal messuage [house] and outbuildings, and yard closely adjoining to a dwelling-house, but it may be large enough for cattle to be levant and couchant therein.  
To be what, you say? “Levant and couchant” (Black’s again): rising up and lying down, referring to trespassing cattle that have remained long enough to have lain down to rest and risen up to feed; generally for the space of a night and a day, or, at least, one night.

So generally, curtilage is the area around your house big enough for a trespassing cow to sleep in overnight.  What if you want to determine the size of your curtilage and don’t have a bovine-based measuring device handy? You could borrow one, or you could read Harris. Fast forward to December 20, 2006.  

Two City of Hartford police officers got a tip from a snitch that two illegal handguns were stashed under the front seat of an abandoned Nissan Maxima in the backyard of 297 Enfield Street in Hartford. Without making any efforts to corroborate this information (which turned out to be false), the officers went to the location, a single family dwelling occupied by Mr. Harris, his girlfriend, his twelve-year-old daughter K., and two St. Bernard dogs, Seven and Deuce. The home was surrounded by a chainlink fence that did not obstruct the officers’ view of the yard. There was an SUV in the driveway, but no Nissan to be found.  

The officers did not circle the block or the home to get a better view of the back yard, nor did they attempt to speak to the homeowner. Instead, the officers opened the gate and entered the fenced-in yard with guns drawn. As they did, K. was in the back yard with Seven, who she had let outside, on of her after-school chores. After relieving himself, Seven ran around the house in one direction and K. ran around the in the other direction. Officer JohnMichael O’Hare, seeing Seven running in his direction, believed the dog was chasing him.  He shot the St. Bernard twice at point blank range, shots that K. heard but did not see. As she rounded the opposite corner of the house, she saw Officer O’Hare, gun drawn, standing over Seven who was lying on the ground.  When K. begged O’Hare not to shoot her dog, he shot the dog again in the head, in front of her. No Nissan and no guns were ever found.

So after O’Hare has already neutralized the vicious St. Bernard, when 12-year-old K. asks him not to shoot her dog (who at that point is probably already dead), he shoots the dog again, in front of her. What an a-hole, eh? (the decision doesn’t say this exactly, but it might as well). K.’s father thought so too, and brought an action for damages stemming from the officers’ warrantless entry onto his property.

The central issue became: did the officers need either a warrant or probable cause plus exigent circumstances to enter the fenced-in yard? (i.e., was the fenced-in yard curtilage that was entitled to Fourth Amendment protection?). The trial jury returned a verdict for the defendants and, answering a special-verdict interrogatory, found that exigent circumstances justified the defendant’s warrantless intrusion into plaintiffs’ yard.  In response to plaintiff’s post-trial motions, the district court found both probable cause and exigent circumstances, and affirmed the jury’s verdict. 

On appeal, the Second Circuit rejected the findings of both probable cause and exigent circumstances, then went on to rule that the district court’s focus on exigent circumstances represented a finding, sub silencio, that exigent circumstances were necessary – i.e., that the fenced-in area around the house was protected by the Fourth Amendment. The Second Circuit agreed with this finding and went on to re-examine and clarify the concept of curtilage, holding that: 
At the time of the intrusion, it was also clearly established that a fenced-in side or backyard directly abutting a single-family house constitutes curtilage. Brucuglio v. Proulx, 67 Fed. App'x 58, 61 (2003) (“At the time of events giving rise to this action, it was clearly established that ... a fenced-in backyard is ‘curtilage’ entitled to Fourth Amendment protection.”) (citing Dunn, 480 U.S. at 300; Oliver v. United States, 466 U.S. 170,180 (1984)); see also United States v. Romero–Bustamente, 337 F.3d 1104, 1108 (9th Cir.2003) (holding that a yard that was “small, enclosed, adjacent to his house, and located behind his house; under Dunn, as a matter of law ... falls within the curtilage”). Curtilage questions are resolved with reference to four factors, including  
[1] the proximity of the area claimed to be curtilage to the home, [2] whether the area is included within an enclosure surrounding the home, [3] the nature of the uses to which the area is put, and [4] the steps taken by the resident to protect the area from observation by people passing by.
 Dunn, 480 at 301. The first three of the Dunn factors indisputably favor the conclusion that the side and backyard were curtilage. First, the area is in close “proximity ... to the home.” Dunn, 480 U.S. at 300. Second, the area is “included within an enclosure surrounding the home.” Id. Third, the officers had no reason to think that this area was put to any uses other than those associated with a home.
Furthermore, this Court’s prior reasoning in Reilly “clearly foreshadow[s] a particular ruling on the issue” of curtilage in the present case. Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010).  Nearly twenty years ago, we concluded that the curtilage of a criminal defendant’s home extended to a cottage located 375 feet from the main residence, because the entire property was enclosed by a single wire fence, some hedgerows, and woods, with no interior fencing separating the cottage from the main residence. United States v. Reilly, 76 F.3d 1271, 1277–79 (2d Cir.1996); see also Dunn, 480 U.S. at 301 n. 4 (“[F]encing configurations are important factors in determining curtilage.”).  And as in this case, the “actual use” of the land in Reilly included such “private activities” as cooking, swimming, Reilly, 76 F.3d at 1278, and other “intimate activity associated with the sanctity of a ... home and the privacies of life,” Dunn, 480 U.S. at 300. 
As the Supreme Court has explained, “for most homes, the boundaries of the curtilage will be clearly marked; and the conception defining the curtilage—as the area around the home to which the activity of home life extends—is a familiar one easily understood from our daily experience.” Oliver, 466 U.S. at 182 n. 12; see also Florida v. Jardines, 133 S.Ct. 1409,1414–15 (2013) (identifying a front porch as an “easy case” under the “ancient and durable” common law principles of curtilage, which would regard the porch as an “exemplar of an area adjacent to the home and to which the activity of home life extends”).  This case provides no exception.  Accordingly, it would not have been “objectively reasonable” for the officers to believe their acts did not encroach upon Plaintiffs’ protected curtilage. Okin v. Vill. of Cornwall On–Hudson Police Dep’t, 577 F.3d 415, 433 (2d Cir. 2009).  Based upon the foregoing, we conclude that the officers are not entitled to qualified immunity for their Fourth Amendment intrusion.
The Second Circuit then reversed the district court's judgment and remanded the case for a new trial on the issue of damages based on the officers' Fourth Amendment violation.

Friday, November 7, 2014

Why Innocent People Plead Guilty

Roughly 10% of those defendants who were later exonerated by DNA evidence through the efforts of the Innocence Project pled guilty to a crime they did not commit.  What would lead a person to do that?  Hon. Jed S. Rakoff, United States District Court Judge for the Southern District of New York examines that question in the above-entitled thought-provoking article (found here) in the November 20, 2014 issue of the New York Review of Books.  Judge Rakoff, both a prosecutor and a defense attorney before ascending to the bench, examines the institutional pressures that lead innocent people to plead guilty, including the threat of mandatory minimum sentences and the prosecutorial limitation of judicial sentencing discretion via charging (or not charging) offenses that carry such sentences, the imbalance of resources and available information between the prosecution and defense and, in federal court, the prohibition on judges' involvement in the plea negotiation process.  A short and interesting read.