People v Smart – http://decisions.courts.state.ny.us/ad3/Decisions/2018/107975.pdf
Defendant convicted after a bench trial for endangering the welfare of a child and criminal mischief in the fourth degree. The Court deemed trial counsel ineffective for failing to make a motion to dismiss on statutory speedy trial grounds where the Prosecution declared readiness on nineteen (19) days after the accusatory instruments were filed and then “expressly stated” at an appearance “on February 9, 2015 that they were not ready for trial and sought an adjournment for the very purpose of trial preparation. The People did not thereafter declare their readiness until June 15, 2015, beyond the 90-day period”. Judgment reversed and Misdemeanor informations dismissed.
People v Sears – http://decisions.courts.state.ny.us/ad3/Decisions/2018/108219-109144.pdf
Defendant appealed her conviction on two (2) counts of criminal contempt in the second degree and revocation of probation premised upon an illegal search of her apartment. On the evening of her arrest, the police received a telephone call from the defendant’s downstairs neighbor reporting that she heard noises coming from the defendant’s apartment and believed the defendant was incarcerated. Although the police officer contacted the local jail “and learned that defendant had been released and was no longer incarcerated”, he entered the defendant’s apartment without a warrant based upon “a faint chirping sound that sounded like a low battery alert from a smoke detector and a low, muffled sound that he could not identify.” He knocked on the door “several times and “[w]hen there was no response, he forced the door open and entered the apartment with his pistol drawn. The apartment was dark, with the only light provided by his flashlight.” When the officer entered he ordered anyone present to come out of the bathroom to which the defendant complied. She claimed that she was merely watching television and no one else was present in the apartment. Although “[s]he did not ask for any assistance nor provide consent for a search of her apartment” the officer proceeded to search the bedroom and found the protected party present under a pile of clothes.
The Court rejected the Prosecution’s argument that the emergency exception to the warrant requirement was present as the police officer’s “testimony established that there was not an objectively reasonable basis for him to believe that there was an ongoing emergency in defendant’s apartment that required immediate assistance to protect life or property.“ The Court further believed that the officer’s testimony further established that the police may have been motivated to search defendant’s apartment by the possibility of locating [the other individual found] there and arresting him” as the police knew there was a warrant for his arrest and had reason to believe that he may be present there.
The Court further held that even if the officer’s initial was lawful, the subsequent search of the apartment was not. “A protective sweep is justified only when the police have articulable facts upon which to believe that there is a person present who may pose a danger to those on the scene;” (internal quotes omitted) and the facts known to the officer “did not reasonably support the belief that there was any danger to himself or to defendant”. As to the Probation violation, the Court reaffirmed its holding that “[e]vidence that is unlawfully seized cannot be used as a basis for revoking a probationary sentence”. Judgment on the conviction reversed and the Violation of Probation petition dismissed.
People v Yerian – http://decisions.courts.state.ny.us/ad3/Decisions/2018/108531.pdf
Defendant convicted after trial of criminal possession of a controlled substance in the second degree after a “one-pot” meth bottle was located in a garage she was in. Although the evidence established that the defendant had purchased pseudoephedrine a “couple of days” prior to her arrest and her “knowledge of the presence of illegal substances does not, without more, meet the People’s burden to demonstrate that a defendant had the ability and intent to exercise dominion or control over the contraband.” Moreover, there was testimony that “the substance in the one-pot was not necessarily recognizable as methamphetamine to a prior user of the drug, as it was not yet in usable form”. In reversing judgment, the Court concluded that “[i]n the absence of evidence that defendant had experience in the manufacture of methamphetamine or was otherwise familiar with its appearance in a one-pot or the process of producing it, neither the presence of the one-pot near the couch nor that of the batteries, drain opener and other substances and tools that were found in the garage – all of which were legal to own and were mixed with innocuous household items all over the garage – was sufficient to give rise to an inference that defendant had dominion or control over the methamphetamine that proved to be present in the one-pot.”
People v Wilson – http://decisions.courts.state.ny.us/ad3/Decisions/2018/108688.pdf
Prior to entering an Alford plea to criminal possession of a controlled substance in the third degree, the defendant represented himself pro se at a trail which ended in a mistrial due to a deadlocked jury. After deliberating “for a little over two hours” the jury sent out a note stating that “there appears not to be any way to a unanimous decision”. “Without consulting the parties for input on the appropriate response, County Court summoned the jury into the courtroom, noted that it had not been deliberating for very long, provided an Allen charge and asked the jury to resume deliberations and advise the court if it was unable to arrive at a verdict after a reasonable period of time. Fifty-one minutes after the jury had resumed deliberations, County Court recalled the jury back into the courtroom, on its own accord, and inquired whether the jury was still deadlocked. The foreperson confirmed that it was and, without seeking input from the People of the defendant, County Court declared a mistrial.” In dismissing the indictment, the Court held that County Court erred in its recall of the jury by: (1) doing so without first apprising the People and defendant of its intent to do so and seeking their comment; (2) doing so only 51 minutes after it had instructed the jury to resume deliberations; (3) not exploring the possibility of a dinner break or an overnight recess upon learning of the continuing deadlock; and (4) not seeking input from the parties before declaring a mistrial upon learning of the continuing deadlock. Because a mistrial was not manifestly necessary under the collective circumstances, County Court abused its discretion in declaring a mistrial, jeopardy attached and the People were precluded from reprosecuting defendant on the indictment.”
People v Lentini – http://decisions.courts.state.ny.us/ad3/Decisions/2018/108891.pdf
Defendant convicted after trial on leaving the scene of an incidence without reporting an personal injury. The crux of the appeal centered on Defendant’s argument that County Court abused its discretion in failing to declare a mistrial “after repeated references to her desire to speak to an attorney on the night of the accident.” In short, the Defendant’s theory at trial was that she failed to contact authorities after the accident because she was “in shock and incapable of doing so” and any mention of her seeking counsel to consult with on that night “would undermine the foundation of this defense by prejudically suggesting that she was conscious of guilt, rational enough to consider the question of counsel and, perhaps, capable of reporting the accident or taking steps to avoid doing so”. Defendant moved during jury selection to “preclude any testimony regarding [defendant’s] determination or consideration to consult with counsel” on the night of the accident. The People gave assurances that they did not intend to elicit that testimony and County Court directed them not to do so.” However, the Prosecution’s second witness, a deputy sheriff who responded to the scene, testified that the defendant chose not to be interviewed “…without a lawyer present”. County Court denied the Defendant’s motion for mistrial since the offending testimony was no “deliberately elicited” but did strike his testimony and provided an “immediate and appropriate curative instruction”. The defendant’s boyfriend later testified that the defendant “wanted his attorney’s number” when they spoke just after the accident. The judge again denied the defendant’s motion for a mistrial. “The People expressed their surprise at the testimony, but acknowledged that they had not instructed Walton to avoid the topic. County Court found the People’s conduct ‘extremely disturbing’ and addressed it by striking [the boyfriend’s] testimony in its entirety, precluding any further testimony from him and giving a curative instruction to the jury.” The Court held that County Court abused its discretion in not granting a mistrial due to “these repeated violations of the pretrial ruling, in a case where defendant’s capacity to act and her actions after the accident were in serious dispute, caused harm that could not be reliably dissipated”. Judgment reversed.
People v Croley – http://decisions.courts.state.ny.us/ad3/Decisions/2018/109062.pdf
Defendant convicted after trial of murder in the second degree. The Court agreed with the Defendant that the verdict was not supported by the weight of the evidence and reversed judgement. The evidence at trial “was largely circumstantial”. Neither a murder weapon was located nor were there any eyewitnesses to the event. The Prosecution’s theory was that another individual “deliberately sought out the victim and intentionally killed him and that defendant assisted [the co-defendant] by tracking the victim’s whereabouts, transporting [the co-defendant] to the scene and acting as the getaway driver.” Even in reviewing the evidence in a light most favorable to the People, the Court found that the Defendant “intentionally aided [the co-defendant] in locating and isolating the victim, [but] the evidence does not prove beyond a reasonable doubt that defendant knew – before the shooting occurred – that [the co-defendant] planned to kill the victim, because defendant could have had other equally plausible reasons for wanting access to the victim, such as robbery or assault. Similarly, the fact that [the co-defendant] did not enter [a tavern] does not establish that defendant knew that [the co-defendant] was armed with a gun; [the co-defendant] could have chosen not to enter for a variety of other reasons, such as being armed with a knife, possessing drugs or wanting to avoid being seen by the victim.”
People v Park – http://decisions.courts.state.ny.us/ad3/Decisions/2018/109421.pdf
The Prosecution appealed County Court’s dismissal of ten (10) counts of a fifteen (15) count indictment relating to charges of falsifying business records in the first degree, offering a false instrument for filing in the first degree and prohibited employment of a minor. The case was initiated due to the death of a fourteen (14) year old child while operating heavy machinery at a family farm. In the course of the investigation “it was discovered that the farm, among other things, failed to report the wages of certain employees in quarterly unemployment insurance tax returns (hereinafter NYS-45 forms), resulting in an underpayment of employee insurance contributions” which lead to the indictment. County Court found that as to counts one (1) through (8) that there was legally insufficient evidence to establish that the Defendant had “knowledge of the content of the NYS-45 forms. The court also dismissed the two counts of prohibited employment of a minor (counts 14 and 15) on the ground that the section of the Labor Law referenced therein did not constitute a chargeable offense.” In reversing County Court, the Court found that on the first eight counts “the grand jury could have rationally inferred that defendant played a role in providing payroll information to Farm Credit East or, at the very least, knew that the information contained within the relevant forms was not accurate. (internal citations omitted) Such evidence likewise supports the logical inference that defendant acted with the intent to defraud the state of unemployment insurance contributions.” As to counts fourteen and fifteen the Court held that “[w]hile County Court correctly noted that Labor Law § 145 does not state a substantive offense, each count then goes on to specify the particular section of article 4 of the Labor Law which defendant is alleged to have violated, as well as the conduct forming the basis of the charges. This was more than sufficient to provide defendant with fair notice of the charges against him.”