by Jill Paperno,

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

When a jury has a substantive note in the case (not simply asking for a bathroom or cigarette break, for example), it is not enough for a judge to summarize its contents.  This is one of the few areas in which appellate courts scrutinize adherence to the letter of the law, in this case CPL 310.30 (Jury deliberation; request for information), and the cases interpreting it (specifically, People v. O'Rama 78 NY2d 270).  Failure to provide this information to defense counsel constitutes a "mode of proceedings error," and can lead to reversal. In People v. Parker and People v. Morrison, both decided on June 28, 2018, the Court of Appeals reaffirmed its position on the need to strictly adhere to jury note procedures. 

In People v. Parker, 2018 NY Slip Op 04776, the Court reiterated what is required by the trial court in providing meaningful notice of the contents of the note, and a meaningful response to the jury. The Court further acknowledged the purpose of notice to the counsel is to provide counsel with the opportunity to "participate in the formation of a response" to the jury's question.  Justice Rivera, writing for the Court, noted that the record did not establish that all three jury notes were shared with counsel, and stated:   

CPL 310.30 requires that, in response to a jury request for additional information or instruction "with respect to any matter pertinent to the jury's consideration of the case," the trial court "must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant[,] must give such requested information or instruction as the court deems proper." In People v Mack, we reaffirmed that CPL 310.30 "imposes two responsibilities on trial courts upon receipt of a substantive note from a deliberating jury: the court must provide counsel with meaningful notice of the content of the note, and the  court must provide a meaningful response to the jury" (27 NY3d 534, 536  [2016], citing O'Rama, 78 NY2d at 276-277). "[M]eaningful notice means notice of the actual specific content of the jurors' request'" (id. at 538, quoting O'Rama, 78 NY2d at 277). The purpose of this requirement is to give counsel an opportunity to participate in the formation of a response to the jury's substantive inquiry (see O'Rama, 78 NY2d at 276-277). As we have repeatedly instructed, such "departures from the O'Rama procedures are not subject to preservation rules" (People v Walston, 23 NY3d 986, 989, 991 N.Y.S.2d 24, 14 N.E.3d 377 [2014] [citations omitted]). Rather, "when the trial court fails to provide counsel with meaningful notice of a substantive jury note, a mode of proceedings error has occurred and reversal is required" (Mack, 27 NY3d at 538).
People v Parker, 2018 N.Y. LEXIS 1592, *13-14 

 In People v. Morrison, 2018 NY Slip Op 04777, decided 6/28/18, the Court of Appeals reversed defendant's conviction because the entire content of the note was not shared with counsel, stating, 

The trial court's failure to provide counsel with meaningful notice of a substantive jury note is a mode of proceedings error that requires reversal (see People v Mack, 27 NY3d 534, 538  [2016], rearg denied 28 N.Y.3d 944 [2016]; People v Nealon, 26 NY3d 152, 156-157 [2015]). "[M]eaningful notice means notice of the actual specific content of the jurors' request'" (Mack, 27 NY3d at 538, quoting People v O'Rama, 78 NY2d 270, 277  [1991]). Although the record demonstrates that "defense counsel was made aware of the existence of the note, there is no indication that the entire contents of the note were shared with counsel" (People v Walston, 23 NY3d 986, 990 [2014]). We therefore reject the People's argument that defense counsel's awareness of the existence and the "gist" of the note satisfied the court's meaningful notice obligation, or that preservation was required. "Where the record fails to show that defense counsel was apprised of the specific, substantive contents of the note—as it is in this case—preservation is not required" (id.).

Moreover, "[w]here a trial transcript does  not show compliance with O'Rama's procedure as required by law, we cannot assume that the omission was remedied at an off-the-record conference that the transcript does not refer to" (id.). In other words, "[i]n the absence of record proof that the trial court complied with its [meaningful notice obligation] under CPL 310.30, a mode of proceedings error occurred requiring reversal" (People v Tabb, 13 NY3d 852, 853  [2009]). We again decline "to disavow our holding in Walston . . . that imposes an affirmative obligation on a trial court to create a record of compliance under CPL 310.30 and O'Rama" (People v Silva, 24 NY3d 294, 300  [2014], rearg denied 24 N.Y.3d 1216 [2015]; see People v Parker, — NY3d — [decided today]).  People v Morrison, 2018 N.Y. LEXIS 1594, *1-2 

by

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.

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 

by Jill Paperno,

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

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.