Flashing High Beams Did Not Provide Probable Cause For Stopping Vehicle

A conviction for driving while intoxicated was reversed in People v Rose (__AD3d __, 2009 NY Slip Op 08412 [4th Dept 11/13/09]) where the stop was baed on what the officer's bleief that he had witnesses a violation of the Vehicle and Traffic Law,based on mistaken interpretation of the law.

At the suppression hearing, the police officer who stopped defendant's vehicle testified that, as he was traveling behind defendant's vehicle on a divided highway, he observed defendant flash his high beams while there was a vehicle approaching from the opposite direction. The officer then stopped defendant's vehicle based on his belief that defendant had violated Vehicle and Traffic Law § 375 (3). The officer testified that he understood that statute to mean that a driver is not allowed to flash his or her high beams "for particularly no reason at an oncoming vehicle." Section 375 (3) actually provides in relevant part that, "whenever a vehicle approaching from ahead is within [500] feet . . ., the headlamps, if of the multiple beam type . . . shall be operated so that dazzling light does not interfere with the driver of the approaching vehicle . . . ." The mere flashing of lights, alone, does not constitute a violation of the statute (citations omitted). The People presented no testimony at the hearing concerning the distance between defendant's vehicle and the oncoming vehicle, and there was no evidence that defendant's flashing of the high beams interfered in any way with the driver of the approaching vehicle. Indeed, because the officer mistakenly believed that flashing of the high beams for no particular reason was unlawful irrespective of the distance between vehicles, the officer did not concern himself with the distance of the approaching vehicle. Thus, the stop of defendant's vehicle was based on a mistake of law. "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" (citations omitted).

Flashing High Beams Did Not Provide Probable Cause For Stopping Vehicle

A conviction for driving while intoxicated was reversed in People v Rose (__AD3d __, 2009 NY Slip Op 08412 [4th Dept 11/13/09]) where the stop was baed on what the officer's bleief that he had witnesses a violation of the Vehicle and Traffic Law,based on mistaken interpretation of the law.

At the suppression hearing, the police officer who stopped defendant's vehicle testified that, as he was traveling behind defendant's vehicle on a divided highway, he observed defendant flash his high beams while there was a vehicle approaching from the opposite direction. The officer then stopped defendant's vehicle based on his belief that defendant had violated Vehicle and Traffic Law § 375 (3). The officer testified that he understood that statute to mean that a driver is not allowed to flash his or her high beams "for particularly no reason at an oncoming vehicle." Section 375 (3) actually provides in relevant part that, "whenever a vehicle approaching from ahead is within [500] feet . . ., the headlamps, if of the multiple beam type . . . shall be operated so that dazzling light does not interfere with the driver of the approaching vehicle . . . ." The mere flashing of lights, alone, does not constitute a violation of the statute (citations omitted). The People presented no testimony at the hearing concerning the distance between defendant's vehicle and the oncoming vehicle, and there was no evidence that defendant's flashing of the high beams interfered in any way with the driver of the approaching vehicle. Indeed, because the officer mistakenly believed that flashing of the high beams for no particular reason was unlawful irrespective of the distance between vehicles, the officer did not concern himself with the distance of the approaching vehicle. Thus, the stop of defendant's vehicle was based on a mistake of law. "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" (citations omitted).

In affirming a dismissal of an indictment charging criminally negligent homicide (CNH), due to insufficient proof at the Grand Jury, the Fourth Department, in People v Bianco ( __ AD3d __, 2009 NY Slip Op 08371 [11/13/09]), held that a drug users actions and inactions regarding a drug user's "wasted" drug using friend, the court held that leaving the eventual decedent in his car sleeping and looking like he was getting sick, and then, on observing decedent's vehicle parked where he had left it, not stopping to check to see how he was doing was not enough evidence of CNH where the decedent had died while in the vehicle, and the Coroner concluded that the cause of death was "[m]ixed drug intoxication." The Court explained that

The standard for reviewing the legal sufficiency of the evidence before the grand jury is " whether the evidence, viewed in the light most favorable to the People, if unexplained and uncontradicted, would be sufficient to warrant conviction by a trial jury' " (People v Scerbo, 59 AD3d 1066, 1067, lv denied 12 NY3d 821, quoting People v Manini, 79 NY2d 561, 568-569). Here, we conclude that defendant's actions were not a "sufficiently direct cause" of decedent's death to warrant the imposition of criminal liability (People v Kibbe, 35 NY2d 407, 413, rearg denied 37 NY2d 741). Decedent's death was attributed solely to a drug overdose, and the evidence presented to the grand jury established that decedent himself obtained the drugs, outside the presence of defendant, and that decedent did not use drugs in defendant's presence on the day in question (cf. People v Galle, 77 NY2d 953, 955-956).

In affirming a dismissal of an indictment charging criminally negligent homicide (CNH), due to insufficient proof at the Grand Jury, the Fourth Department, in People v Bianco ( __ AD3d __, 2009 NY Slip Op 08371 [11/13/09]), held that a drug users actions and inactions regarding a drug user's "wasted" drug using friend, the court held that leaving the eventual decedent in his car sleeping and looking like he was getting sick, and then, on observing decedent's vehicle parked where he had left it, not stopping to check to see how he was doing was not enough evidence of CNH where the decedent had died while in the vehicle, and the Coroner concluded that the cause of death was "[m]ixed drug intoxication." The Court explained that

The standard for reviewing the legal sufficiency of the evidence before the grand jury is " whether the evidence, viewed in the light most favorable to the People, if unexplained and uncontradicted, would be sufficient to warrant conviction by a trial jury' " (People v Scerbo, 59 AD3d 1066, 1067, lv denied 12 NY3d 821, quoting People v Manini, 79 NY2d 561, 568-569). Here, we conclude that defendant's actions were not a "sufficiently direct cause" of decedent's death to warrant the imposition of criminal liability (People v Kibbe, 35 NY2d 407, 413, rearg denied 37 NY2d 741). Decedent's death was attributed solely to a drug overdose, and the evidence presented to the grand jury established that decedent himself obtained the drugs, outside the presence of defendant, and that decedent did not use drugs in defendant's presence on the day in question (cf. People v Galle, 77 NY2d 953, 955-956).

In February, this blog discussed the Fourth Department's failure to acknowledge its authority to reduce negotiated sentences.
The focal point of the column was the decision in People v Farrow, 59 AD3d 935 [4th Dept 2/6/09],in which the Court held that “Nevertheless, we reject defendant's challenge to the severity of the sentence. "Defendant was sentenced in accordance with the plea bargain and should be bound by its terms" (People v McGovern, 265 AD2d 881, lv denied 94 NY2d 882). Farrow does not mention of the court decisions, including that of the Court of Appeals, which make clear that the broad, plenary power of the Appellate Division, includes the power to reduce a sentence even if the sentence imposed pursuant to a negotiated plea bargain. People v Delgado, 80 NY2d 780,783 (1992); People v Thompson, 91 AD2d 672 (2nd Dept. 1982), modified 60 NY2d 513 (1983); People v Suitte, 90 AD2d 80 (2nd Dept. 1982). Further, I noted that McGovern, an earlier Fourth Department decision never cited nor distinguished these cases. Rather it merely quotes People v Zelke (203 AD2d 909), an earlier Fourth Department decision, which merely quoted People v Felman (141 AD2d 889) a decision of the Third Department which pre-dated the Court of Appeal decision in Delgado. I concluded by noting that the Fourth Department last cited Delgado as a basis for reducing a negotiated sentence in 1996 in People v Sanchez (225 AD2d 1085 [4th Dept 1996]), in which the Court reduced a negotiated sentence from 8 1/3 year to life to 3 years to life.

In People v Garcia-Gual (__ AD3d __, 2009 NY Slip Op 08277 [11/13/09]) the Fourth Department, finally disavowed its holding in McGovern, cited Delgado, and set forth the scope of its authority to review and reduce negotiated sentences:

We agree with defendant that, in reviewing his contention, it is inappropriate for this Court to address whether the sentencing court abused its discretion (see generally People v Delgado, 80 NY2d 780, 782). Pursuant to CPL 470.15 (2) (c), we may modify a judgment "by reversing it with respect to the sentence" in the event that the sentence is illegal and, pursuant to CPL 470.15 (6) (b), we may reverse or modify a judgment as a matter of discretion in the interest of justice in the event that "the sentence, though legal, was unduly harsh or severe." We also agree with the further contention of defendant that the fact that he received the bargained-for sentence does not preclude him from seeking our discretionary review of his sentence pursuant to CPL 470.15 (6) (b) (see People v Smith, 32 AD3d 553, 554; see generally People v Pollenz, 67 NY2d 264; People v Thompson, 60 NY2d 513, 519-520). To the extent that prior decisions of this Court, including People v McGovern (265 AD2d 881, lv denied 94 NY2d 882), suggest a rule to the contrary, those decisions are not to be followed.

Mr. Garcia-Gual's sentence appeal was then rejected under the correct standard of review.

In February, this blog discussed the Fourth Department's failure to acknowledge its authority to reduce negotiated sentences.
The focal point of the column was the decision in People v Farrow, 59 AD3d 935 [4th Dept 2/6/09],in which the Court held that “Nevertheless, we reject defendant's challenge to the severity of the sentence. "Defendant was sentenced in accordance with the plea bargain and should be bound by its terms" (People v McGovern, 265 AD2d 881, lv denied 94 NY2d 882). Farrow does not mention of the court decisions, including that of the Court of Appeals, which make clear that the broad, plenary power of the Appellate Division, includes the power to reduce a sentence even if the sentence imposed pursuant to a negotiated plea bargain. People v Delgado, 80 NY2d 780,783 (1992); People v Thompson, 91 AD2d 672 (2nd Dept. 1982), modified 60 NY2d 513 (1983); People v Suitte, 90 AD2d 80 (2nd Dept. 1982). Further, I noted that McGovern, an earlier Fourth Department decision never cited nor distinguished these cases. Rather it merely quotes People v Zelke (203 AD2d 909), an earlier Fourth Department decision, which merely quoted People v Felman (141 AD2d 889) a decision of the Third Department which pre-dated the Court of Appeal decision in Delgado. I concluded by noting that the Fourth Department last cited Delgado as a basis for reducing a negotiated sentence in 1996 in People v Sanchez (225 AD2d 1085 [4th Dept 1996]), in which the Court reduced a negotiated sentence from 8 1/3 year to life to 3 years to life.

In People v Garcia-Gual (__ AD3d __, 2009 NY Slip Op 08277 [11/13/09]) the Fourth Department, finally disavowed its holding in McGovern, cited Delgado, and set forth the scope of its authority to review and reduce negotiated sentences:

We agree with defendant that, in reviewing his contention, it is inappropriate for this Court to address whether the sentencing court abused its discretion (see generally People v Delgado, 80 NY2d 780, 782). Pursuant to CPL 470.15 (2) (c), we may modify a judgment "by reversing it with respect to the sentence" in the event that the sentence is illegal and, pursuant to CPL 470.15 (6) (b), we may reverse or modify a judgment as a matter of discretion in the interest of justice in the event that "the sentence, though legal, was unduly harsh or severe." We also agree with the further contention of defendant that the fact that he received the bargained-for sentence does not preclude him from seeking our discretionary review of his sentence pursuant to CPL 470.15 (6) (b) (see People v Smith, 32 AD3d 553, 554; see generally People v Pollenz, 67 NY2d 264; People v Thompson, 60 NY2d 513, 519-520). To the extent that prior decisions of this Court, including People v McGovern (265 AD2d 881, lv denied 94 NY2d 882), suggest a rule to the contrary, those decisions are not to be followed.

Mr. Garcia-Gual's sentence appeal was then rejected under the correct standard of review.

In People v Abney and Allen (2009 NY Slip Op 07668 10/27/09) the Court of Appeals considered two cases in which the defense was denied the right to introduce expert testimony on identification evidence. The Court applied the test it previously employed in People v Young (7 NY3d 40 [2006]) for determining whether such a ruling is error: was there was evidence which corroborated the identification evidence.

The Young standard in which a defendant’s right to present evidence is conditioned on the court’s perception of the strength of the People’s case appears to be in conflict with the holding of the United States Supreme Court in Holmes v South Carolina (547 U.S. 319 [2006]), that he right of a defendant to have a meaningful opportunity to present a complete defense cannot be conditioned of the perceived strength of a prosecutor's case.

But, as Monroe County Assistant Public Defender Jim Eckert points out, there is some good language in the decision which should be cited by counsel in other contexts. Specifically, in discussing whether the error of excluding the expert testimony in Abney was harmless the Court wrote that

"Finally, we do not consider the trial judge's error in Abney to have been harmless. While defendant's muddled alibi evidence was no doubt unhelpful to his cause with the jury, it is not overwhelmingly inculpatory either. And, of course, it is possible that defendant would not have pursued an alibi defense in the first place if Dr. Fulero had testified. " (emphasis supplied).

Thus, the Court recognized that the defendant’s strategy could have been altered by the court’s erroneous ruling and that the burden cannot be on the defendant to establish all of these consequences. In an analogous situation, the United States Supreme Court has held that whether a defendant’s confession was illegally admitted at trial and the defendant then testifies in his own defense, that testimony cannot be used at the re-trial, because it cannot be determined if the decision to testify was caused by the illegal admission of the confession. Harrison v United States, 392 US 219, 224-225 (1968). Quoting from the Court of Appeals decision in De Cicco v Schweizer (221 NY 431, 438 [1917]), the Court wrote that

It is, of course, difficult to unravel the many considerations that might have led the petitioner to take the witness stand at his former trial. But, having illegally placed his confessions before the jury, the Government can hardly demand a demonstration by the petitioner that he would not have testified as he did if his inadmissible confessions had not been used. ‘The springs of conduct are subtle and varied,’ Mr. Justice Cardozo once observed. ‘One who meddles with them must not insist upon too nice a measure of proof that the spring which he released was effective to the exclusion of all others.’ [citation omitted] Having ‘released the spring’ by using the petitioner's unlawfully obtained confessions against him, the Government must show that its illegal action did not induce his testimony.

Harrison v United States, 392 US 219, 224-225 (1968).

To read Justice Cardozo is to be humbled.