Last month,in People v Weaver (5/12/09)(discussed here, the Court of Appeals held that the New York Constitution requires that a warrant issued upon probable cause be issued before the police can monitor someone's whereabouts by surreptitiously attaching an electronic device (GPS) to that person's automobile. Thus New Yorkers need not worry that police without warrants or cause could attach such devices to their vehicles in New York and record the vehicles' minute by minute location.

In People v Buchanan (6/30/09) the Court again found that the New York Constitution provides protections that have not been clearly found under the United State Constitution.

The issue in Buchanan had appeared to be whether the use of a non-visible stun belt on a defendant in a murder trial because it was the judge's policy to use such devices where a defendant is charged with a serious crime deprived deprived the defendant of due process of law. The defendant relied on Deck v Missouri (544 US 622, 626 [2005]), in which the United States Supreme Court held that the Due Process Clause prohibits a state from confining a defendant in "visible shackles" during a criminal trial, unless a "special need," based on facts specific to the case, is shown. The People argued that Deck is distinguishable because the stun belt here was not visible to the jury.

The Court held that it did not need to resolve the applicability of Deck because

"we need not reach the constitutional issue, however, for we conclude as a matter of New York law that it is unacceptable to make a stun belt a routine adjunct of every murder trial, without a specifically identified security reason."

The court adopted a "rule that a stun belt may not be required unless the trial court makes findings on the record showing that the particular defendant before him needs such a restraint. A formal hearing may not be necessary, but the trial court must conduct a sufficient inquiry to satisfy itself of the facts that warrant the restraint." The Court did not state is this rule is of constitutional nature. Nor did it state the nature of rule making authority other than the constitution.

Regardless, the message for counsel should be clear - in addition to all other arguments, preserve claims as being based in rights under New York law.

Last month,in People v Weaver (5/12/09)(discussed here, the Court of Appeals held that the New York Constitution requires that a warrant issued upon probable cause be issued before the police can monitor someone's whereabouts by surreptitiously attaching an electronic device (GPS) to that person's automobile. Thus New Yorkers need not worry that police without warrants or cause could attach such devices to their vehicles in New York and record the vehicles' minute by minute location.

In People v Buchanan (6/30/09) the Court again found that the New York Constitution provides protections that have not been clearly found under the United State Constitution.

The issue in Buchanan had appeared to be whether the use of a non-visible stun belt on a defendant in a murder trial because it was the judge's policy to use such devices where a defendant is charged with a serious crime deprived deprived the defendant of due process of law. The defendant relied on Deck v Missouri (544 US 622, 626 [2005]), in which the United States Supreme Court held that the Due Process Clause prohibits a state from confining a defendant in "visible shackles" during a criminal trial, unless a "special need," based on facts specific to the case, is shown. The People argued that Deck is distinguishable because the stun belt here was not visible to the jury.

The Court held that it did not need to resolve the applicability of Deck because

"we need not reach the constitutional issue, however, for we conclude as a matter of New York law that it is unacceptable to make a stun belt a routine adjunct of every murder trial, without a specifically identified security reason."

The court adopted a "rule that a stun belt may not be required unless the trial court makes findings on the record showing that the particular defendant before him needs such a restraint. A formal hearing may not be necessary, but the trial court must conduct a sufficient inquiry to satisfy itself of the facts that warrant the restraint." The Court did not state is this rule is of constitutional nature. Nor did it state the nature of rule making authority other than the constitution.

Regardless, the message for counsel should be clear - in addition to all other arguments, preserve claims as being based in rights under New York law.

Conflicts Require Corrective Action, Not Just A Wink

In People v Connolly (2009 NY Slip Op 04822 6/12/09)the Court held that the grand jury proceeding was defective where

one of the grand jurors informed the prosecutor that she was the mother of one of the alleged victims and the mother-in-law of another. In addition, the grand juror's daughter had commenced a civil action against defendant, allegedly arising from the same facts that resulted in the instant indictment against defendant. Although the special prosecutor instructed the grand juror not to participate in any proceeding concerning those witnesses and not to listen to their testimony, she was permitted to remain in the grand jury room during the presentation of the remaining evidence concerning defendant and she heard defendant's testimony. She then was permitted to participate, consult and vote on all of the charges against defendant that did not involve her relatives.

The Court explained that

although the grand juror in question did not participate in the vote concerning the particular count of the indictment that pertained to her daughter and son-in-law, she participated in the remainder of the proceedings concerning defendant, including the vote to indict him on the remaining counts in the indictment. In addition, the daughter of the grand juror had a financial interest in defendant's indictment and conviction, arising from the pending civil action, and we conclude that potential prejudice arose from permitting the victims' family member to determine whether to indict defendant. The special prosecutor was therefore required to excuse the grand juror from participating in the case against defendant or to present the matter to the court.

This holding seems fairly obvious. What is not obvious is why the special prosecutor, appointed to avoid a conflict of interest, thought otherwise.

Conflicts Require Corrective Action, Not Just A Wink

In People v Connolly (2009 NY Slip Op 04822 6/12/09)the Court held that the grand jury proceeding was defective where

one of the grand jurors informed the prosecutor that she was the mother of one of the alleged victims and the mother-in-law of another. In addition, the grand juror's daughter had commenced a civil action against defendant, allegedly arising from the same facts that resulted in the instant indictment against defendant. Although the special prosecutor instructed the grand juror not to participate in any proceeding concerning those witnesses and not to listen to their testimony, she was permitted to remain in the grand jury room during the presentation of the remaining evidence concerning defendant and she heard defendant's testimony. She then was permitted to participate, consult and vote on all of the charges against defendant that did not involve her relatives.

The Court explained that

although the grand juror in question did not participate in the vote concerning the particular count of the indictment that pertained to her daughter and son-in-law, she participated in the remainder of the proceedings concerning defendant, including the vote to indict him on the remaining counts in the indictment. In addition, the daughter of the grand juror had a financial interest in defendant's indictment and conviction, arising from the pending civil action, and we conclude that potential prejudice arose from permitting the victims' family member to determine whether to indict defendant. The special prosecutor was therefore required to excuse the grand juror from participating in the case against defendant or to present the matter to the court.

This holding seems fairly obvious. What is not obvious is why the special prosecutor, appointed to avoid a conflict of interest, thought otherwise.

SORA: When Is Person Whom The Defendant Had Never Seen Before Not a Stranger

In People v Helmer (2009 NY Slip Op 04830 4th Dept 6/12/09) the sole issue was whether the victim was a stranger to defendant for purposes of determining whether defendant should have been assessed 20 points on the risk assessment instrument for risk factor 7, "[r]elationship with victim."

The Court held that despite the fact that it was undisputed that defendant and the 15 year old victim had sexual relations on the same day on which they had their first face-to-face meeting, she was not a stranger to the defendant. The Court based this holding on the fact that the defendant and the victim had communicated via the Internet and telephone for several weeks before they actually met in person.

Prior to meeting, they had more than 100 Internet exchanges and 30 telephone calls and through their communications, the victim knew defendant's name and age, as well as the status of defendant's pending divorce. The Court concluded that

The risk assessment guidelines provide that "the term stranger' includes anyone who is not an actual acquaintance of the victim" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 12 [2006]). The term "acquaintance" spans a range of social interactions, and we conclude in this case that, based upon the extensive communication through electronic means over a period of weeks and the information learned therein, defendant and the victim were not strangers when they engaged in sexual relations.

SORA: When Is Person Whom The Defendant Had Never Seen Before Not a Stranger

In People v Helmer (2009 NY Slip Op 04830 4th Dept 6/12/09) the sole issue was whether the victim was a stranger to defendant for purposes of determining whether defendant should have been assessed 20 points on the risk assessment instrument for risk factor 7, "[r]elationship with victim."

The Court held that despite the fact that it was undisputed that defendant and the 15 year old victim had sexual relations on the same day on which they had their first face-to-face meeting, she was not a stranger to the defendant. The Court based this holding on the fact that the defendant and the victim had communicated via the Internet and telephone for several weeks before they actually met in person.

Prior to meeting, they had more than 100 Internet exchanges and 30 telephone calls and through their communications, the victim knew defendant's name and age, as well as the status of defendant's pending divorce. The Court concluded that

The risk assessment guidelines provide that "the term stranger' includes anyone who is not an actual acquaintance of the victim" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 12 [2006]). The term "acquaintance" spans a range of social interactions, and we conclude in this case that, based upon the extensive communication through electronic means over a period of weeks and the information learned therein, defendant and the victim were not strangers when they engaged in sexual relations.

In People v Adams (53 NY2d 241 [1981]) the Court of Appeals held that evidence of an unnecessarily suggestive police-arranged identification of a criminal suspect must be suppressed as a matter of State constitutional law. Unfortunately, despite the fact that misidentification is the single greatest cause of wrongful convictions, the Court of Appeals in People v Marte (2009 NY Slip Op 04741 June 11, 2009) held that no similar per se rule applies to a suggestive identification in which the police are not involved.

The Court did recognize that "suggestiveness originating with private citizens can create a risk of misidentification" and concluded that "Perhaps other safeguards would be appropriate in particular cases, and we do not rule out the possibility that a court, in balancing probative value against prejudicial effect, may find some testimony so unreliable that it is inadmissible."

There is a Court that has held that unreliable identification evidence is inadmissible. That Court is located in Washington, D.C. and has nine members. Way back in 1977 that Court held in Manson v Braithwaite (432 US 98 [1977]) that "reliability is the linchpin in determining the admissibility of identification."

The decision of the Court of Appeals not to apply a per se rule against the admission of identification evidence which is the product of suggestive identification procedures should not be read to permit the admission of unreliable identification evidence. One would think that, given the United States Constitution, as interpreted by the United States Supreme Court and the Supremacy Clause, unreliable identification is inadmissible in New York courts.