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Published on: April 13, 2020

Defendant Who Was Not Permitted To Cross Examine Police Officers Was Denied a Fair Trial- People v Rouse, 2019 NY Slip Op 08522

by Stephen Bilkis

In this case, the Court of Appeals overturned the decisions of the Appellate Division and trial court and determined that in an attempted murder case the defendant was entitled to challenge the credibility of the law enforcement witnesses.

The incident that resulted in the arrest of the defendant started in the early morning of August 11, 2013. Someone followed a group of teenagers in the Bronx and fired a single gunshot at them. No one was struck or injured. It just so happened that two police officers were patrolling the area and identified the shooter as the defendant. The officers testified that while they saw the defendant raise the gun to eye level, fire it, drop it, and flee. One of the officers immediately picked up the gun. After unsuccessfully chasing him on foot, the two officers later found him while driving around and arrested him. The gun was not tested for fingerprints or for DNA evidence.

The defendant was charged with attempted murder in the second degree, criminal use of a firearm in the first degree, and two counts of criminal possession of a weapon in the second degree. Because the gun did not have the defendant’s DNA or fingerprints, the prosecution’s case rested heavily on the testimony of the two police officers who provided eyewitness testimony that the defendant was the shooter. They both testified that they saw the defendant fire the gun from eye level. The also both testified that they had a clear, well-lit view of defendant at the time of the shooting.

Published on: April 6, 2020

Defendant in an Assault of a Police Officer Case Had Been Unlawfully Forcibly Detained- People v. Tucker, 34 N.Y.S.3d 744 (2016)

by Stephen Bilkis

In People v. Tucker, the Appellate Division considered whether there had been sufficient evidence to prove that the defendant had assaulted a police officer in order to prevent him from performing his lawful duty.

In the early morning hours, three police officers responded to a 911 call, but the caller did not give specifics as to the nature of the emergency. When they arrived at the scene, the police saw a car abandoned in an intersection and a man struggling with a woman over a purse. After the man and woman were separated, believing that a domestic incident had occurred, one of the police officers attempted to question the woman to determine what was happening. The woman appeared to have been crying, but refused to respond to the officer’s questions. Instead, she was focused on what was happening with the male. The police officer attempted to handcuff her and told her that she was “going to be detained until I can figure out what’s happening here.” The woman struggled, stating that she did not do anything and did not need to be handcuffed. In the process of struggling, she injured two of the officers. She was subsequently charged with two counts of assault in the second degree.

Following a jury trial, the defendant was convicted of one count of assault in the second degree and sentenced to two years in prison, to be followed by three years of postrelease supervision. She appealed. The defendant maintained that the prosecutor failed to prove that the police officer who attempted to detain and handcuff her was performing a lawful duty at the time when she assaulted him.

Published on: April 1, 2020

Admitting DNA Evidence was Harmless Error in Murder Case – People v. Williams, 2020 NY Slip Op 02123

by Stephen Bilkis

In a criminal trial, a harmless error occurs when the trial court judge makes a mistake, but the mistake was not such that it impacted the outcome of the case. When there is a finding of harmless error, the appeals court will not reverse the decision based on that mistake. In this case, the Appellate Division examined whether the trial court erred in admitting low copy number (LCN) DNA evidence without first holding a Frye hearing.

In People v. Williams, months after fleeing from the scene where a young man was shot 4 times and killed, the defendant was arrested and charged with murder. There was testimony that the defendant shot the victim and then hid the gun in a former girlfriend’s apartment. The gun was recovered from a covered wall cavity in the apartment.

At trial the former girlfriend testified that the defendant forced her to hide the gun in her apartment and that he admitted to her that he had just shot someone. In addition, there was eyewitness testimony that the defendant was the shooter. The prosecution also presented DNA evidence purported to link the defendant to the gun. However, the DNA testing showed DNA on the gun from two unknown people. Initially, the medical examiner’s office was not able to link the defendant’s DNA to the DNA that was found on the gun. The prosecution produced a witness who used LCN testing, a different form of DNA testing that was more “sensitive” than traditional DNA testing. The witness testified that the LCN testing along with a proprietary “calculator” concluded that it was likely that the DNA mixture found on the gun was from the defendant and from one other unknown person.

Published on: March 30, 2020

Court Concluded that Defendant’s Right to a Speedy Trial Was Violated- People v. Watson, 975 N.Y.S.2d 369 (2013)

by Stephen Bilkis

In a drug possession case where the court had to decide whether the defendant’s right to a speedy trial had been violated, the court also examined the distinction between a criminal complaint and an information.

On October 23, 2012, the defendant was charged with criminal possession of a controlled substance in the fifth degree, a felony, in violation of Penal Law §220.06(2). The defendant allegedly was in possession of Hydrocodone and Alprazolam pills. On October 25, 2012, because there was no lab evidence confirming the type of drug that the defendant allegedly possessed, the charge was reduced to criminal possession of a controlled substance in the seventh degree, a Class A misdemeanor under New York Penal Law §220.03. When the charge was reduced, the court marked the accusatory instrument a misdemeanor complaint. Nearly 5 months later, in March 2013, the defendant’s case had not been brought to trial.

New York’s speedy trial rules required that if the charge is a felony, the case must be ready for trial within 6 months. For class A misdemeanors the case must be ready for trial within 90 days, while for class B misdemeanors, the case must be ready for trial within 60 days. The time period runs from when the original complaint was filed. Where as in People v. Watson a felony complaint is replaced with a new accusatory instrument charging a misdemeanor, the prosecution must be ready for trial within 90 days from the filing of the new instrument or 6 months from the filing of the felony complaint, whichever is shorter.

Published on: March 23, 2020

Court Finds that Officer Lacked Justification to Stop and Search Defendant – People v. Nazario, 2020 NY Slip Op 00955

by Stephen Bilkis

In a case where the defendant faced a burglary charge, the Supreme Court, Erie County, granted the defendant’s motion seeking to suppress physical evidence and statements on the ground that the police lacked justification for detaining and searching him. The People appealed the decision.

There is a well-established test for determining whether the police can lawfully stop, search and detain a person. Under People v. DeBour, 40 NY2d 210 (1976), the police can stop and request information from a person if there is a good, objective reason to do so. The police can question the person if he or she has a reasonable suspicion of criminal activity. The police have the right to forcibly stop and detain a person if there exists a reasonable suspicion that the person has committed a crime or is about to commit a crime. If the police have probable cause to believe that the person has committed a crime, then the police can arrest the person.

In People v. Nazario, the incident leading up to the defendant’s arrest started when the arresting officer responded to a call regarding a burglary in progress. The officer had also viewed a “be on the lookout” (BOLO) photograph depicting a man who may have been involved in a prior burglary. Three blocks from the burglary scene, the officer noticed the defendant walking alone carrying a bag and a cell phone. When the officer asked the defendant what he was doing, he responded that the was looking through garbage cans. The officer searched defendant’s bag purportedly to check for weapons. He then drove the defendant back to the scene of the burglary to figure out if he was a suspect in the burglary. At the scene a showup identification was conducted. A showup is a form of eyewitness identification during which the police present a single suspect to an eyewitness and ask the eyewitness whether the suspect is the offender. The witness identified the defendant as the burglar, and the defendant was arrested and later charged

Published on: March 16, 2020

Court Reduced Defendant’s Conviction of Tampering with Physical Evidence to Attempted Tampering – People v Zachary 2020 NY Slip Op 00165

by Stephen Bilkis

In a case involving marijuana possession, the Appellate Division reviewed what actions amount to the crime of tampering of physical evidence.

On May 9, 2013, in the City of Newburgh, the defendant was stopped as it was suspected that he was violating the City’s open-container law. After the officer identified himself, the defendant fled. While chasing the defendant, the officer noticed the defendant discard a plastic bag which, it was later determined, contained marijuana. The defendant was apprehended, arrested, and charged with a number of offenses, including tampering with physical evidence. Prior to trial, the defendant filed an omnibus motion to suppress the physical evidence. The motion was denied.

At trial the defendant testified that he did not discard any marijuana and that nothing was found on him when he was searched. Nonetheless, the jury convicted him of several charges including unlawful possession of marijuana and tampering with physical evidence.

Published on: March 16, 2020

Appellate Court Affirmed Denial to Suppress Physical Evidence in a Gun Possession Case – People v. Wright-Hale, 2020 NY Slip Op 01092

by Stephen Bilkis

In this case, the appellate court considered whether evidence should have been suppressed because the defendant’s consent to having his car searched was not voluntary.

In People v. Wright-Hale, the arresting officer went to a hotel in Queens in response to a 911 emergency call that someone was banging on a hotel room door with a firearm. When the arresting officer arrived several other officers were already on the scene. They were talking to the defendant in the hallway. The arresting officer entered the hotel room and learned from the room’s occupant, the defendant’s ex-girlfriend, that the defendant was known to carry a gun. The arresting officer then asked the defendant for permission to search his car. He gave permission, gave the officer his keys, and told the officer which car belonged to him. The officer found a gun in a shoebox in the trunk of the defendant’s car.

The defendant was arrested and charged with criminal possession of a weapon in the second degree. The defendant filed a motion to suppress the gun and statements that the defendant made to the police. The court denied the motion. The defendant was eventually convicted. He appealed on the grounds that the evidence of the gun should have been suppressed because the officer had no reason to suspect criminal activity. The defendant also argued that the search was involuntary because of the presence of so many police officers and because the arresting officer did not inform the defendant that he had the right to refuse permission to search his car.

Published on: March 9, 2020

Appellate Court Affirms Conviction for Constructively Possessing a Firearm- People v Sloley 2020 NY Slip Op 00328

by Stephen Bilkis

In the case of People v. Sloley, the Appellate Court considered the question as to whether the jury properly concluded that a defendant constructively possessed a firearm. Constructive possession is a legal doctrine which allows prosecutors to bring criminal charges and potentially obtain convictions for possessory offenses in cases where the contraband was not actually found physically on the defendant.

In 2016, the defendant was pulled over by law enforcement for speeding. When he officer returned to his car to write the speeding ticket, the defendant then fled. At one point during the chase, the defendant drove behind a building and the police lost sight of him. He then reappeared and crashed. The police searched the area behind the building where the defendant had driven during the chase and found a handgun with the help of a canine. As a result, the defendant was charged with a variety of crimes and eventually convicted of criminal possession of a weapon in the second degree, unlawful fleeing from a police officer in a motor vehicle in the third degree, and reckless driving. Because he was a second violent felony offender, the defendant was sentenced to 14 years in prison followed by five years of postrelease supervision. The defendant appealed the conviction.

The basis of the defendant’s appeal of the firearms charge was that the prosecution did not establish that he had possession of the gun. For a possession charge the law requires that the defendant must have exercised “dominion or control over the property by a sufficient level of control over the area in which the contraband is found.” People v McCoy, 169 AD3d 1260, 1262 [2019]. In this case no one witnessed the defendant with possession of the gun and no one witnessed the defendant discard the gun. A deputy sheriff testified that the defendant fled in his vehicle behind the building where the gun was found. He further testified that the handgun was relatively clean and not weathered, indicating that it had been placed in the area recently. Furthermore, the defendant’s DNA was found on the gun as well as a hat that was found in the area where the gun was found.

Published on: March 2, 2020

In a Criminal Possession of a Firearm Case the Verdict was not Against the Weight of the Evidence – People v. McCoy, 169 A.D.3d 1260 (2019)

by Stephen Bilkis

In People v. McCoy, the defendant was convicted of three counts of criminal possession of a weapon in the second degree and four counts of criminal possession of a weapon in the third degree. The convictions were based on the defendant being found to have constructively possessed a gun. Constructive possession of a firearm occurs when a defendant was not found in actual physical possession of the firearm, but was found to have had control over the area where the firearm was found. After being sentenced to 12 years in prison, the defendant appealed his convictions.

The defendant’s arrest stems from an incident during which the defendant’s live-in girlfriend observed the defendant hammering a step in the attic of these in which they lived. The next day, when the defendant was out of the house, she pulled up the step and found a plastic bag containing several guns. After showing her sister, who also lived in the house, the girlfriend called the police. The police arrived at the house and removed the guns. However, no fingerprints or DNA were found on the gun. In addition to the defendant, the girlfriend, the girlfriend’s sister, the downstairs neighbors also had access to the attic. Nonetheless, the defendant was arrested and charged with several charges of criminal possession of a weapon.

On appeal, the defendant challenged the legal sufficiency of the evidence. Because several other people had access to the attic and because his DNA was not found on the guns, the defendant argued that there was not sufficient evidence presented at trial to support a finding that he exercised dominion and control over the area in which the guns were found. Thus, the defendant concluded, the jury should not have convicted him of criminal possession of a weapon. Even though on appeal the court found that the defendant did not raise this particular argument in his motion to dismiss, the court still reviewed this issue in the context of evaluating whether all elements of the charged crimes were proven beyond a reasonable doubt.

Published on: March 2, 2020

In a Suppression Hearing the Court Finds that an Inventory Search Was Not Conducted Properly – People v. Espinoza, 174 A.D.3d 1062 (N.Y. App. Div. 2019)

by Stephen Bilkis

In a case where the defendant was charged with 75 counts 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 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 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.