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Under New York law, if a person is pulled over for suspected driving while under the influence of alcohol, the driver must submit to a chemical test (breath, blood, urine, or saliva), as a matter of “implied consent.” This does not mean that drivers absolutely have to submit to a chemical test. The purpose of the implied consent rule is to encourage drivers to consent and obviate the need to get court orders authorizing blood tests.  Drivers can certainly refuse to take a breathalyzer or other chemical test.  However, with refusal comes the serious consequence of a 6 month license suspension and a $300 fine. If the driver refuses again within 5 years of a previous DWI related offense, the consequences are a mandatory 1 year license suspension and a $750 fine.  These penalties are in addition to any penalties related to a DWI or similar offense conviction.

In People v. Odum, defendant Odum was arrested for DWI and taken to the police station. He was not asked to take a breathalyzer until over two hours after he arrived at the police station.  He refused.  The police officer then gave Odum the statutory warning related to the consequences of refusing the breathalyzer, including that Odum’s refusal to consent to the breathalyzer would be used against him as evidence in his trial.  After hearing the refusal warnings, Odum changed his mind and consented to the breath test which confirmed that his blood alcohol level was over the legal limit.  Odum later petitioned the court to suppress the breath test and his initial refusal to take it.

The rules related to the breath test requirement are detailed and clear. Because of New York’s implied consent provisions, a refusal to take the breath test or any other chemical test in conjunction with being stopped on suspension of driving while drunk is a violation of the law  with consequences. A driver can be convicted of refusing to take a chemical test and be acquitted of DWI charges.

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Defendant Walker was indicted for several felonies including murder in the second degree (felony murder) (N.Y. Pen. Law §  125.25[3] ), two counts of kidnapping in the second degree (N.Y. Pen. Law §  135.20), robbery in the first degree (N.Y. Pen. Law §  160.15[2] ), criminal possession of a weapon in the second degree (N.Y. Pen. Law §  265.03[1] ), and two counts of criminal possession of a weapon in the third degree (N.Y. Pen. Law §  265.02[1], [4]).  He was ultimately convicted of several crimes including felony murder. As part of his defense, he claimed justification.  However, the trial judge disallowed the defense of justification. On appeal, Walker argues that he should have been allowed to argue justification.

Justification, also referred to as self-defense, is an oft used defense to criminal charges such as murder and assault.  It an affirmative defense governed by N.Y. Pen. Law §  35.15.  The law allows a person to use physical force against another if he possesses an honest and reasonable belief that he is facing unlawful physical force or an imminent threat of unlawful physical force.  In the absence of an honest and reasonable belief of that he is facing unlawful force or a threat, the use of such physical force would be a crime.

While it is well-established that a person has the legal right to use physical force that would otherwise amount to murder or assault, the question in his case is whether a person has the right to use physical force that would otherwise amount to felony murder.

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In a possession of a controlled substance case, the court considered whether the police officers properly stopped and arrested the defendant for disorderly conduct.  When the officers stopped the defendant, they found cocaine on his person, leading to a charge of possession of a controlled substance in the seventh degree.

The events that eventually led to the defendant’s conviction on a drug charge started when the three police officers who were on patrol in an unmarked car observed the defendant running down a sidewalk and across a street into oncoming traffic. A couple of cars had to slow down as the defendant ran across the street in front of them. The officers decided to issue the defendant a summons for disorderly conduct because he ran across the street disrupting traffic.  In other words, by running across the street into traffic, the police officers had concluded that the had reasonable cause to believe that the defendant was committed the crime of disorderly conduct.  However, when they approached the defendant, they observed him clutching something in his waistband and feared that he had a weapon.  The officers ordered the defendant to put his hands in the air, handcuffed him, and searched him. They discovered a knife in the defendant’s pocket along with 5 clear bags of cocaine.  The defendant was eventually convicted of attempted possession of a controlled substance in the seventh degree.

Under N.Y. Pen. Code § 240.20[5], a person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he obstructs vehicular or pedestrian traffic. For the police to have found that there was reasonable or probable cause to stop and arrest the defendant, his actions must have led them to believe that the defendant was intentionally or recklessly creating a substantial risk that public inconvenience, annoyance or alarm would occur. The court found that merely causing 2 cars to momentarily slow down did not amount to disorderly conduct, but was only a momentary inconvenience at best.  This was not sufficient to satisfy the public inconvenience or annoyance element.

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In this case the defendant denies charges of child endangerment despite being found drunk and unconscious with two young children she was supposed to be caring for.

Early one morning a police sergeant found defendant Perez in the back seat of a cab with two infant children next to her.  Perez was unconscious and appeared to be intoxicated.  She was arrested and charged with two misdemeanor counts of endangering a child under N.Y. Pen. Law § 260.10(1) and (2).  Despite the observation of the police sergeant who found her, Perez filed a motion to dismiss the changes, arguing that the prosecution did not establish a prima facie case of child endangerment.

The charges against Perez are based largely on the observations of the police sergeant who found Perez slumped over in the back seat of a cab.  When the sergeant called out to her, she eventually woke up.  Her eyes were watery and bloodshot, she smelled of alcohol, she was unsteady on her feet, and she slurred when she spoke.  When the sergeant asked about the two children she seemed to have forgotten that they were with her.  She responded, “What kids? I don’t have any kids with me.”  The children appeared to be between 1 and 2 years old.

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In a case where the defendant was charged with 75 counts of possession of criminal possession of a forged instrument in the second degree and criminal possession of a forgery device, during a suppression hearing the defendant moved to have the physical evidence seized from his trunk  suppressed due to an illegal inventory search.

An inventory search is a warrantless search that the police are permitted to conduct when in connection with lawfully impounding a vehicle. In order for any evidence collected in an inventory search to be admissible, the inventory search must be reasonable in nature and must be conducted according to established police procedure designed to meet legitimate objectives.  The objectives of an inventory search are threefold:  first, to protect the property of the owner while it is in the custody of the police; second, to protect the police against claims that property was lost, stolen, or damaged; third, to protect the police from dangerous items in the vehicle that might be hidden.  While the police may find incriminating evidence during an inventory search, a legitimate reason for an inventory search is not find incriminating evidence.

In Espinoza During the suppression hearing the court found problems with the way the inventory search was conducted. When the defendant was stopped by a deputy sheriff for speeding, the defendant was arrested because he was driving on a suspended license.  The passenger was also arrested because of an outstanding warrant. While waiting for the tow, the deputy sheriff searched the defendant’s wallet and the vehicle and discovered several forged debit and credit cards, as well as a card reader.

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This case looks at how the court determines the sex offender status of a convicted felon.  Under New York’s New York Sex Offender Registration Act (SORA), sometimes referred to as Megan’s Law, those who are convicted of most sex crimes and other serious felonies are required to register with the New York Division of Criminal Justice Services (DCJS) for at least 20 years.

Those who are required to register are classified into one of three different risk levels.  The restrictions that are placed on registrants and the length of registration depend on the registration level. A Level 1 classification is given to offenders who present the lowest level of risk of reoffending while Level 3 is given to those who present the highest level of risk of reoffending.  Risk levels can be raised or lowered. For example, if an offender commits another crime or violates probation or parole, the court may raise the offender’s risk level.  If an offender feels that his (or her) risk level should be lower, he can request a hearing to request that the court lower his risk level.  An offender can even request that the court completely relieve him from the registration requirements.

In Simmons, the defendant was convicted of attempted rape in the first degree and two counts of murder in the first degree and was sentenced to 25 years to life in prison.  Prior to his release from prison, a hearing was held regarding his sex offender registration status.  The defendant was designated a level 3 sex offender.  He received this designation because of the “presumptive override” that was applicable in his case because his crime resulted in the death of the victim.

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People v Y

Decision

This is an appeal by the defendant from a Supreme Court judgment, which was decided on February 7, 2013. The defendant was convicted of first degree sexual conduct against a child (3 counts), second degree sexual conduct against a child (two counts), second degree criminal sexual acts (16 counts), second degree sexual abuse (27 counts), third-degree sexual abuse (24 counts), and endangering the welfare of a child (3 counts).

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People v Ellis

In this case the People assert that the defendant is a level 3 sex offender. Because of this, he was required, pursuant to Corrections Law 168-7(4), to register his Facebook account. The law specifies that it must be done no later than 10 days after a change of address or internet identifiers. Internet identifiers are defined as any electronic mail addresses or designations used to chat, for instant messaging, social media or other internet communication (Corrections Law 168-a[18]. Failure to register is considered a class E felony for the first offense, and the second offense is a class D felony.

The defendant filled out his annual verification form. This form required him to disclose internet information such as his screen name, service provider, and email address. While he disclosed the identifier on his Facebook account, he didn’t disclose that he had a Facebook account. He was charged with a violation of Corrections Law 168-f (4) on the premise that he didn’t disclose the account as an internet identifier.

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(Matter of N. v NY Office of Children & Family Services, NY Slip Op 04379)

June 18, 2018

The court rules that this decision should be reversed, and the petition dismissed without costs. Despite the defendant’s argument, the court does indeed have jurisdiction over this appeal considering the dual dissent of the appellate decision is a question of law ( CPLR 5601), Matter of Kelly v Safir 96 NY2d 32, 38 [2001]. The question the courts must determine is whether there is a rational reason for the action, or whether it is arbitrary (Matter of Peckham v Calogero 12 NY3d 424, 431 [2009]. The court remarked that an arbitrary action is without a sound reason or basis, and is often made without consideration of the facts involved. If the reviewing court finds there is a rational basis, the reviewing court must sustain the determination even if the court believes it would have achieved a different result.

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(People v. A., NY Slip Op 00894)

This is an appeal from a Supreme Court decision dated 8/26/15, convicting the defendant of assault in the first degree.

The court ordered that the judgment be reversed and a new trial is ordered.

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