Sunday, August 10, 2014

Case Summaries - Fourth Department Decisions Released on August 8, 2014

Criminal Case Summaries:



·       People v Figueroa-Norse  (KA 12-00137) – 4AD rejects D’s argument that the lower court should have suppressed statements she made to police because she was not read the Miranda warnings. 4AD finds that D was not in custody during the interrogation and warnings were therefore not required. D was interrogated in the hospital where the victim, D’s eight-year-old foster child, was being treated. Although the interrogation took place over the course of 10 hours, the questioning was not continuous. D was given breaks to go to the bathroom and to get a drink. D was able to contact family members by telephone, and at one point she left the hospital to retrieve an items from her car, and then returned. 4AD also notes that the questioning was investigatory rather than accusatory, D was not restrained, and she was never told that she was required to answer questions.

·       People v Mobley (KA 10-01203) – 4AD reverses D’s conviction. The lower court should have suppressed the gun police found on D’s person as well as statements because police seized D without the requisite reasonable suspicion. Police observed D standing with a group of people in an allegedly high-crime area of Rochester. The officer saw D cup an item in his hand as he adjusted his clothing. That officer then instructed another unit to stop D. As that unit approached, D began walking away. He was told to stop and show his hands. D then placed the item he had in his hand into his back pocket. Police stopped him, found a cell phone in the back pocket, and a further pat-frisk yielded a gun. 4AD explains that D’s conduct was at all times innocuous, and did not give rise to reasonable suspicion. The fact that D was in a high crime area, had reached for his right side, and had placed a cell phone in his back pocket was insufficient. Police did not see the outline of a gun, or hear the audible click of a magazine, nor did they indicate that they felt they were in danger.

·       People v Myhand (KA 10-01033) – 4AD finds that the lower court correctly ruled that the search warrant to search D’s residence was supported by probable cause (PC). PC was established by evidence regarding three separate drug transactions. The first transaction involved a controlled buy by a confidential informant (CI) at D’s old residence. The second and third transactions also involved the CI, but the CI gave money to an “unwitting participant” (UP), who then purchased drugs at D’s new residence. 4AD finds that PC was established without regard to any hearsay evidence, because police searched the CI before each transaction and gave him money, and they observed the CI and the UP go to D’s residence each time. During the third transaction, police observed the UP leaving D’s residence along with D. 4AD further concludes that even if the hearsay evidence must be considered to find PC, then under the Aguilar-Spinelli test, both the CI and UP were reliable and had a sufficient basis for their knowledge. 4AD notes in particular that the UP’s statements to the CI were against his penal interest, and thus there was good reason to believe what UP said.

Tuesday, May 13, 2014

Police lack probable cause to arrest for trespass when they know that the defendant is an invited guest of a tenant



HLAS attorney Philip Rothschild today obtained a reversal of a resisting arrest conviction in the New York Court of Appeals. The decision in People v Finch arose after Syracuse police repeatedly arrested Mr. Finch for trespassing at the Parkside Commons apartment complex. Mr. Finch was also charged with resisting arrest following the third time police arrested him. The mother of Mr. Finch’s son, who lived at Parkside, informed police during the first arrest that Mr. Finch had permission to be on the property as her guest. In an earlier appeal, the County Court reversed the trespass conviction. It said that Mr. Finch could not be a trespasser, because he was an invited guest of a tenant. County Court nevertheless upheld the resisting arrest conviction, finding that police had probable cause to arrest. The Court of Appeals disagreed and held that the County Court should have also reversed the resisting arrest charge. Because the officers were specifically told that Mr. Finch was an invited guest, and had permission to be at Parkside, they could not reasonably believe that he was a trespasser. They therefore did not have probable cause to arrest him for trespass. Since the arrest was unlawful, Mr. Finch could not be charged with resisting arrest.

In reaching this conclusion, the Court also held that Mr. Finch’s challenge to the sufficiency of the trial evidence of resisting arrest was preserved by an argument made by counsel before trial. “We hold that, where a defendant has unsuccessfully argued before trial that the facts alleged by the People do not constitute the crime charged, and the court has rejected the argument, defendant need not specifically repeat the argument in a trial motion to dismiss in order to preserve the point for appeal.”