Thursday, August 16, 2018

The Second Circuit Has Held That New York State Convictions for “Controlled Substances” Offenses Do Not Qualify as a Career Offender Conviction


Lawrence L. Kasperek

In USA v. Townsend, 897 F.3d 66 (2d Cir. July 23, 2018), the Second Circuit held that NYS Penal Law  Section § 220.31 (fifth-degree criminal sale of a controlled substance) is not a "controlled substance offense" under USSG 4B1.2(b). See United States v. Townsend, 897 F.3d 66 (2d Cir. 2018) (Cabranes, Carney, Vilardo (W.D.N.Y.)) (appeal from Irizarry, C.J., E.D.N.Y.). Yes that's right  --  Judge Vilardo sitting by designation from the WDNY in Buffalo, NY.

The consequences of this decision is that any New York State statute that just uses the term “controlled substance” is not a controlled substances offense for the purposes of the Career Offender Guideline analysis.

How to apply Townsend:

- Any NY state statute that just uses the term “controlled substance” (as opposed to, say "narcotic drug") IS NOT a controlled substance offense. The most common New York State statutes to look for are: 220.31 (criminal sale 5th); 220.06(1) (criminal possession 5th); 220.34(7) and (8) (criminal sale 4th); 220.48 (criminal sale to child); 220.65 (criminal sale by practitioner); 220.77(1) (operating as major trafficker).

- Statutes from other states with overbroad drug schedules also may not qualify, depending on whether or not the statute is divisible, and whether the government has Shepard documents showing the particular substance sold. States that are known to have overbroad schedules include California, Connecticut, Kansas, Michigan, Pennsylvania, and Virginia. However, there may be others. Often, the good law on divisibility and overbreadth appears in immigration cases involving the “controlled substance offense”" ground of removability. If your client has an out-of-state drug prior, you will want to take a close look at overbreadth.

- For now, the higher-degree New York offenses, especially 220.39(1) (criminal sale 3rd, narcotic drug) still count.

Importantly, Townsend's logic may also apply to 2K2,.1 referencing "controlled substance offenses" or any other Guideline application.

Credit for the above belongs to Daniel Habib, a Federal Public Defender in the Eastern and Southern Districts of NY for bring the challenge and  Amy Baron-Evans, National Sentencing Resource Counsel  for analysis.

Sunday, August 12, 2018

Defending Against Claim of Constructive Possession

by Jill Paperno,

Author of "Representing the Accused: A Practical Guide to Criminal Defense"

As you know, there are different ways a client may be charged with unlawful possession of drugs or a weapon or other contraband.  They may be charged with actual possession,  when the item is found on their person.  Or they may be charged with constructive possession, when it is alleged they have dominion and control over the location in which the item was found.  Under some circumstances (and please check the statutes for the specific circumstances in each case) they may be accused of possession based on a statutory presumption.   

All too often, our clients are accused of possessing items in locations where they are spending a short time or passing through.  When a client is accused of possession under those circumstances, we should challenge the claim by moving against the accusatory instrument, requesting greater specification of the dominion and control in the request for bill of particulars, seeking suppression through hearings, and focusing on that at trial.  (If a defendant is accused based solely on a presumption, the defendant has automatic standing to challenge an unlawful search of a location.  If they are accused based on the presumption and constructive possession, you must ask in your request for bill of particulars what the factual basis is for a conclusion that the defendant exercised dominion and control.  Argue that the prosecution is merely making a constructive claim to avoid the automatic standing.  (Often they are.)   

When a defendant is charged with constructive possession, they must have greater involvement with the location than merely being present.  In  People v Williams, 2018 N.Y. App. Div. LEXIS 4221 decided June 8th, the Fourth Department reversed defendant's conviction, concluding that the defendant's connection with the apartment where she was arrested, and where it was claimed she had dominion and control, was too limited.  The Court stated, 

Where, as here, there is no evidence that the defendant actually possessed the controlled substance, the People are required to establish that the defendant "exercised dominion or control' over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized" (People v Manini, 79 NY2d 561, 573 [1992]; see Penal Law § 10.00 [8]; People v Russaw, 114 AD3d 1261, 1261-1262 [4th Dept 2014], lv denied 22 NY3d 1202 [2014]). The People may establish constructive possession by circumstantial evidence (see People v Torres, 68 NY2d 677, 678-679 [1986]; People v Boyd, 145 AD3d 1481, 1481-1482,  [4th Dept 2016], lv denied 29 NY3d 947,  [2017]). It is well established, however, that a defendant's mere presence in the area where drugs are discovered is insufficient to establish constructive possession (see Boyd, 145 AD3d at 1482; People v Knightner, 11 AD3d 1002, 1004, 782 N.Y.S.2d 333 [4th Dept 2004], lv denied 4 NY3d 745, 824 N.E.2d 59, 790 N.Y.S.2d 658 [2004]).
People v Williams, 2018 N.Y. App. Div. LEXIS 4221, 

In this case, the defendant was present in the apartment when the search warrant was executed, but there was no evidence she was a frequent occupant or resident of the premises.  The investigator also testified records established the defendant lived there (huh?) but there was no evidence as to how the information was made part of those records, and that through the investigator's surveillance over hundreds of occasions, the defendant was only seen there twice. He testified "typical women's clothing" was found in the apartment but provided no details, and photos did not appear to show such clothing except three pairs of shoes that could be the defendant's, in contrast to the detailed description he gave of men's clothing also found there.

The Court concluded: 

Inasmuch as there was no evidence, other than her presence, that specifically connected defendant to the apartment where the contraband was found, "the People failed to prove that [she] exercised dominion and control over the contraband, and therefore failed to prove the possession element of the counts as charged" (People v Brown, 133 AD3d 772, 773 [2d Dept 2015], lv denied 26 NY3d 1143 [2016]; see generally People v Gautreaux-Perez, 31 AD3d 1209, 1210 [4th Dept 2006]).
People v Williams, 2018 N.Y. App. Div. LEXIS 4221, *3-4 

Thursday, August 2, 2018

Helpful Decision on Seizure Based on Invalid Warrant/Fellow Officer Rule

by Jill Paperno,

In People v. Searight, 2018 NY Slip Op 04466, the Fourth Department considered the admissibility of drug evidence found after defendant's stop.  Apparently, the Syracuse police department relies on the same charge for stopping some drivers as RPD - the failure to signal sufficiently in advance of a turn in violation of VTL 1163.  (There are ways of challenging the stop when the failure to signal in advance is the basis, such as using internet tools to measure and map the location and the distance from where the driver signaled to the intersection - officers do get this wrong.)

In Searight, decided 6/15/18, the defendant had moved for suppression, specifically challenging the hearsay allegations relied upon by arresting officers.  This was noted in the decision and is critical to your motions - when challenging search or seizure on Fourth Amendment grounds (and the New York State Constitutional equivalent, Article I, Section 12, you must challenge the hearsay relied upon by officers in your written motion.  A commonly used paragraph is "Defendant challenges the sufficiency and reliability of any hearsay allegations relied upon by arresting officers, including any information relayed from a police database."  (I just added the "police database" piece which was in the defense motion in Searight..  If it works for them...)

At the suppression hearing, two Syracuse police officers testified that they "obtained information through the New York State Police Information Network (NYSPIN) that a warrant had been issued for defendant in the City of Cortland for felony drug charges. One of the officers communicated with the 911 Center to obtain further [*3]  information concerning the warrant. The 911 Center reported to him that the Cortland Police Department had confirmed that there was an active warrant and had requested that defendant be held until an officer of that department could take him into custody. The officers placed defendant under arrest based upon the warrant and transported him to the Criminal Investigation Division (CID). At CID one of the arresting officers asked defendant if he had anything illegal on his person and defendant produced two baggies containing cocaine, resulting in the present charges."
People v Searight, 2018 N.Y. App. Div. LEXIS 4411, *2-3.   

The Court stated:

We agree with defendant that the court erred in refusing to suppress defendant's statements and tangible property, including the cocaine, seized as the result of his arrest, inasmuch as the People failed to meet their burden of showing the legality of the police conduct in arresting defendant in the first instance ( see People v Lopez, 206 AD2d 894, 894 [4th Dept 1994],  lv denied 84 N.Y.2d 937, [1994]).  "Under the fellow officer' rule, [a] police officer is entitled to act on the strength of a radio bulletin or a telephone or teletype alert from a fellow officer or department and to assume its reliability'" (People v Rosario, 78 NY2d 583, 588, [1991], cert denied 502 U.S. 1109, 112 S. Ct. 1210, 117 L. Ed. 2d 448 [1992], quoting People v Lypka, 36 NY2d 210, [1975]). Under those circumstances, the agency or officer  transmitting the information presumptively possesses the requisite probable cause to arrest (see id.). However, where, as here, defendant challenges the reliability of the information transmitted to the arresting officers, "the presumption of probable cause disappears and it becomes incumbent upon the People to establish that the officer or agency imparting the information in fact possessed the probable cause to act" (id.see Lypka, 36 NY2d at 214). 
The People failed to meet that burden. Despite defendant's explicit challenge to the reliability of the information justifying his arrest (see Rosario, 78 NY2d at 588; People v Ynoa, 223 AD2d 975, 977,  [3d Dept 1996], lv denied 87 N.Y.2d 1027, [1996]; cf. People v Fenner, 61 NY2d 971, 973, [1984]), the People did not produce the arrest warrant itself prior to the conclusion of the hearing (see Lopez, 206 AD2d at 894; People v McLoyd, 35 Misc 3d 822, 828, 946 N.Y.S.2d 829 [Sup Ct, NY County 2012]). Instead, the People relied upon the officer's testimony concerning his communications with an unidentified person or persons at the 911 Center and his assumptions about how the 911 Center confirmed the existence of an active and valid warrant.That testimony, however, rested "on a pyramid of hearsay, the information having been passed from" the arresting officer to unidentified persons at the 911 Center and the Cortland Police Department and back to the officer (People v Havelka, 45 NY2d 636, 641, [1978]).  "In making an arrest, a police officer may rely upon information communicated to him by another police officer that an individual is the subject named in a warrant and should be taken into custody in the execution of the warrant . . . However, if the warrant turns out to be invalid or vacated . . . [,] or nonexistent . . . , any evidence seized as a result of the arrest will be suppressed notwithstanding the reasonableness of the arresting officer's reliance upon the communication" (emphasis added)  (People v Lee, 126 AD2d 568, 569,  [2d Dept 1987]; see People v Jennings, 54 NY2d 518,[1981]; People v Lent, 92 AD2d 941, 941,  [2d Dept 1983]). Here, without producing the arrest warrant itself or reliable evidence that the warrant was active and valid, the People did not meet their burden of establishing that defendant's arrest was based on probable cause (see Lopez, 206 AD2d at 894).
People v Searight, 2018 N.Y. App. Div. LEXIS 4411, *3-5 

What's interesting to me is that the defendant apparently did violate the V&T with the turn, and he did not have a license.  But the Fourth Department still suppressed the evidence, stating that the defendant was arrested based on the warrant, and finding the existence of a valid warrant was necessary to support the arrest.  So to the extent you can, if you have a V & T stop, and the police claim a warrant existed that you can challenge, try to get the officers to acknowledge that the arrest was based on the warrant. 

Side note:

This is a different situation than that in the Supreme Court case Utah v. Strieff, 136 Supreme Court 2056 (2016) in which the defendant was initially unlawfully detained, and the police located a valid warrant for a minor traffic violation.  The Supreme Court, with a vigorous dissent by Justice Sotomayor, found such an arrest and the seizure of evidence to be lawful.

Monday, July 23, 2018

Prosecutorial misconduct in death penalty cases exposed by one of their own

Here is a new, remarkable article in The Intercept on capital prosecutors behaving badly, including hiding or destroying evidence in capital cases, then lying about it in death penalty cases, as revealed by a former capital prosecutor who claims to have first hand knowledge of this misconduct.

Sunday, July 8, 2018

The Exoneration of Persons Convicted of Misdemeanors That Were Never Committed

There are a number of ways a person convicted of a crime can be exonerated. It can be proved that the person was not the perpetrator, for example by DNA testing of biological evidence left by the perpetrator of the crime excluding the defendant. There can be proof of an iron clad alibi – such as proof that the defendant was incarcerated or in another country when the crime was committed. It can be be proved that someone else committed the crime, for example by video evidence of the commission of the crime.

One way a person can be exonerated is by proof that the crime was never committed. For example, persons have been convicted of murder only for the supposed decedent to subsequently be proved to still be alive. And, unless one believes in witchcraft, one can safely assume that the 20 persons executed for witchcraft in Salem were convicted and killed by the state for crimes that were never committed.

Most attention to exonerations in the current innocent movement has been focused on persons proved innocent of serious felonies  -- homicides, sex crimes, and assaults – by DNA evidence. But, as described in an important and provocative law review article, THE INNOCENCE MOVEMENT AND MISDEMEANORS, 98 B.U. L. Rev. 779 (June 2018) by Jenny Roberts , the Co-Director of the Criminal Justice Clinic and Associate Dean for Scholarship, American University Washington College of Law, lab tests and video evidence have demonstrated that large numbers of persons have been convicted of misdemeanors, such as drug possession, often by guilty plea, for crimes which were never committed.

For example, lab tests have demonstrated that there were no illicit drugs. Videos have established that the charged crimes were not committed (such as by showing police planting evidence). As the article discusses, given the huge number of person who are arrested and convicted of misdemeanors, and the impact of such convictions, it might be helpful to direct far more resources to both identifying  such cases and dealing with the the police and prosecutorial practices which have enabled them.

I taught a wrongful conviction cause for a decade and, apart from a discussion of the Ramparts scandal at Los Angeles Police Department , did not even discuss the issue of exoneration of people convicted of misdemeanors. I strongly believe that this is article is worth reading as it raises numerous important questions regarding the meaning and significance of such exonerations and how we should respond to them to prevent future convictions of innocent persons.

Saturday, July 7, 2018

Pro se litigant obtains a reversal on appeal

In the "even a blind squirrel finds a nut" category, in the July 6th packet of Appellate Division, Fourth Department decisions, perennial litigant and pretty good jailhouse lawyer Isiah Williams won a reversal of his conviction, pro se.  Mr. Williams was previously acquitted of the possession of two forged checks and convicted of possession of another. After the Fourth Department reversed that conviction, at the retrial the Ontario County Court allowed the prosecutor to introduce evidence of defendant's possession of the checks he had been acquitted of possessing. Unsurprisingly, the Fourth Department found that this was wrong, and reversed defendant's conviction. Good lawyerin' Mr. Williams. Read the decision here.

Friday, July 6, 2018

Monroe County Public Defender's Office 50 year anniversary celebration

Greetings to all alumni/dinosaurs of the Monroe County Public Defender's Office. On September 14, 2018 from 5:30 p.m. - ??? there will be a celebration of 50 years of service for the Monroe County Public Defender's Office at Tournedos at the Inn on Broadway 26 Broadway, Rochester, NY 14607. There will be a cash bar, grazing tables, music, "Get out of Jail" t-shirts and stuff, and lots of present and past PDs. As we firm things up we will pass along more information here as it becomes available; be sure to check back. Please help us reach out to out-of-towners. Don't assume we have reached everyone locally or otherwise. Finally, we will likely ask for deposits as soon as we have a price point to help with expenses (again check back for info on how much and whom). This should be a terrific celebration of you, the office, the mission of the office, its future and the present staff. Please come help us celebrate, have fun, tell war stories and share a few.

Monday, July 2, 2018

How reliable are DWI blood test results? Well, it depends . . .

In a recent DWI prosecution, ETKS associate Paul Meabon moved to preclude the introduction of the results of a sample taken by a registered nurse at the direction of a Rochester Police officer pursuant to Vehicle and Traffic Law § 1194(4)(a)(1)(I), which provides, in relevant part that “[a]t a police officer’s request … a physician, a registered professional nurse, a registered physician assistant, a certified nurse practitioner, or an advanced emergency medical technician as certified by the department of health” may withdraw blood to determine the blood’s alcoholic or drug content.
Mr. Meabon argued that because the discovery provided revealed that the sample had not been properly collected or stored, any test results relating to that sample would unreliable and therefore irrelevant.
In New York, a blood draw must be “safe, reliable” and “impose no more physical discomfort than is reasonably necessary” (Matter of Abe A., 56 NY2d 288, 297-98 [1982]). Reliable methods fall within “accepted medical standards” including, for example, the application of an “aqueous solution of a nonvolatile antiseptic” on the area of skin where blood is drawn (see id., referencing Schmerber v California, 384 US 757, 771-772 [1966]; 10 NYCRR 59.2[d]). A blood sample collected outside statutory guidelines must be suppressed (see People v Olmstead, 233 AD2d 837 [4th Dept 1996]; People v Ebner, 195 AD2d 1006, 1007 [4th Dept 1993]).
Along with the method of its collection, a blood sample’s reliability depends on the sample’s storage. In Mr. Meabon’s case, the nurse stored each blood sample in a NIK Public Safety, Inc. vacutainer tube containing chemicals to safeguard the sample’s integrity.
One chemical contained in the tube, 20 milligrams of potassium oxalate, is a powdered anticoagulant that hinders blood’s production of thrombin, an enzyme that stimulates clotting (Peter Gerstenzang & Eric H. Sills, Handling the DWI Case in New York § 38:10 [2015-2016 ed.]; see 10 NYCRR § 59.2[c][4][ii] [“blood shall be deposited in a clean container containing a solid anticoagulant”]). Clotting in a blood sample concentrates alcohol in the sample’s liquid, the portion tested to determine blood alcohol content, causing an erroneously high result (see People v Boyst, 177 AD2d 962 [4th Dept 1991] [blood sample without anticoagulant admissible given laboratory’s use of clotting conversion factor]).
A second chemical, sodium fluoride, is a preservative staving off fermentation as a sample decays (Handling the DWI Case in New York, supra at § 38.11). A blood sample without a preservative ferments during storage (even while refrigerated) and, in some cases, raises a sample’s alcohol content 0.25% or higher (id.).
Some careful attention to a critical variance between the instructions for the blood draw kit and the procedures followed presented an issue.
Because clotting and fermentation undermine a blood sample’s test results, the blood draw kit used instructs the nurse to “slowly invert the tubes at least five times immediately after blood collection” (see id. at § 38:8). Likewise, the kit instructs the officer supervising the blood draw, to “INVERT [the tube] slowly and completely at least 20 times” to “ensure proper mixing with the anticoagulant powder” (see id.)
In Mr. Meabon’s case, however, neither the nurse nor officer inverted the tubes as directed before sealing the tubes in the kit’s mailer box. As a consequence, the anticoagulant and blood were not properly mixed and the blood could have clotted before testing. From the test results provided, it was unclear whether the testing laboratory factored clotting into the test results (see Boyst, supra). Furthermore, the test results provided failed to indicate how the laboratory stored the tubes, whether the tubes contained sodium fluoride, or whether any preservative worked to stave off fermentation during the blood sample’s pre-testing decay.
Some issues to consider in your next blood draw DWI case.