Case Summaries - Fourth Department Decisions Released on July 6, 2012

Criminal Case Summaries

·        People v Cobb (KA 11-01063) – 4AD found that the lower court erred by failing to suppress a statement made by D, because the police did not advise him that he had the right to remain silent.  The Miranda warnings were therefore legally insufficient.  The error, however, was harmless because D stated only that he lived in the apartment in which he was arrested.  Also, among other things, D was the only person present in the apartment when police arrested him, and another officer observed someone throw a bag of crack cocaine from a bedroom window.  D was apprehended immediately after he left the bedroom.

·        People v Doll (KA 11-00150) – D appealed from second degree murder conviction, and argued, among other things, that the lower court erred by denying suppression of statements made by him to police. 

Shortly before 9 p.m., police responded to a 911 call regarding a suspicious person, and observed D, who was wearing a camouflage suit and was carrying a car jack.  D matched the description provided by the 911 caller.  Police observed what appeared to be wet blood stains on D’s hands, sneakers, knees, and thighs.  D then proceeded to give inconsistent explanations for what he was doing that night, and why there was blood on his person.  D then asked for a ride back to his van.  The police agreed and allowed to D sit in the rear of their cruiser.  The 911 caller arrived on the scene and said D was the person she had seen trying to hide between two cars.  Police next drove to D’s van and observed blood on the inside and outside of the van, and found a blood-soaked pair of gloves.  Additional officers who arrived on the scene also observed additional blood on D’s face.  The fresh blood contradicted D’s statements that he wore the clothing he had on when he butchers deer.  D invoked his right to counsel and police did not provide D with Miranda warnings.  Police questioned D about the source of the blood, and held him until approximately 1:30 a.m., when the body of the alleged murder victim was discovered.

In an opinion by Smith, J., 4AD affirmed D’s conviction and found that the questioning of D by police was permissible under the emergency exception.  The amount of blood on D’s person indicated that one or more persons had been grievously injured.  D’s explanation for the blood was inconsistent and D refused to show police any purported deer or deer meat.  The need to gain information about a potentially injured victim justified the questioning of D, despite his request for an attorney and the lack of Miranda warnings.  The majority further argued, in contrast with the dissent, that the information possessed by police (blood on D’s person and his inconsistent explanations), justified the conclusion that there was a victim in need, who had lost a substantial amount of blood and was seriously injured.

Centra, J., and Fahey, J., dissented.  The dissent argued that the information possessed by police did not justify the conclusion that the police knew that there was a victim, and the police could not rely on the emergency exception.  The dissent distinguished this case from People v Krom (61 NY2d 187), where the police knew that there was a kidnapping victim.  In particular, the dissent argued that D’s explanation for the blood on his clothes—i.e., that he butchers deer—was a reasonable one.  Here, the presence of blood on D’s clothes did not permit the police to ignore D’s invocation of the right to counsel.

·        People v Reed (KA 09-00281) – D was convicted, after a jury trial, of second degree murder and first degree robbery.  On appeal, he contended that the evidence supporting the robbery conviction (and the felony murder conviction) was legally insufficient because there was no evidence establishing that something was stolen from the victim.  4AD affirms, finding that, in this circumstantial evidence case, a rational person could have been led to the conclusion reached by the jury.  Several witnesses heard the gunshots that killed the victim, and observed a Lincoln vehicle drive away from the scene.  Other witnesses identified D as the driver of the vehicle, which was found by police near D’s sister’s apartment.  D’s sister told police D arrived at her apartment, looking disheveled, shortly after the shooting.  Witnesses also stated that they observed the shooter bend over the victim immediately after the shooting, and the shooter then left with D.  Police later found a distinctively tied plastic grocery bag in the Lincoln.  The victim’s girlfriend testified that she placed $40,000 in the bag and used a distinctive double knot to tie the bag.  She identified the bag found by police as the bag in which she placed the money, though it had been torn open from the bottom and no longer contained the money.  4AD explained that it has long been held that evidence establishing that defendant possessed a container that had held property before it was stolen is sufficient to support a conviction for stealing that property.

Fahey and Martoche, JJ., dissented, and argued that the evidence was legally insufficient and against the weight of the evidence.  The dissenters argued that none of the eyewitnesses saw D or an accomplice take anything from the victim.  Additionally, the victim’s girlfriend did not mention the distinctively tied bag at the inception of the investigation, but when police showed her the bag the next day she said that it was the bag in which she put the money.  The dissent disagreed with the majority that the bag was distinctively knotted, and pointed out that the bag was a very common supermarket bag. Additionally, although the girlfriend told police she wrapped the money in colorful rubber bands, no such rubber bands were found in the Lincoln.

·        People v Slishevsky (KA 10-01850) – D appealed from a judgment convicting him of predatory sexual assault and course of sexual conduct against a child, among other things.  4AD granted a new trial based on the cumulative effect of evidentiary errors and prosecutorial misconduct.  The lower court erred in admitting testimony establishing that Child Protective Services “indicated” a report against D, and that the report demonstrated CPS found evidence of abuse or maltreatment.  That evidence intruded upon the province of the jury to determine the complainant’s credibility.  The lower court also erred in admitting evidence that D never asked police about the details of the allegations against him.  That evidence improperly infringed upon D’s right to remain silent.  In addition, the prosecutor improperly commented upon cross-examination of the complainant’s mother that she was not testifying truthfully.

·        People v Torres (KA 11-01388) – 4AD reversed D’s conviction of second degree burglary and other crimes because he was denied his right to a public trial.  Before jury selection commenced, the lower court closed the courtroom to D’s wife because there wasn’t any room in the courtroom for her. The court told her that she could return after some of the potential jurors were excused.  D’s wife was excluded for about 1 ½ to 2 hours, until a court attendant told her she could return.  During that time, the court read preliminary instructions, asked preliminary questions regarding the potential jurors’ ability to be fair and impartial, and two prospective jurors were excused.  The potential jurors were then questioned by the prosecutor and defense counsel, and both exercised a series of peremptory challenges.  4AD rejected the prosecutor’s argument that the closing was so trivial that it did not violate D’s right to a public trial.  Assuming there is a “triviality” exception, it did not apply here.

Scudder, P.J., and Centra, J., dissented.  The dissent agreed with the prosecutor’s argument that the closing of the courtroom was so trivial such that it did not violate D’s right to a public trial.  The dissent also disagreed with the majority that the courtroom remained closed until a court attendant told D’s wife she could return.  The dissent argued that the court told the wife that she could return once potential jurors were excused.  D should have therefore asked the court for a recess so his wife could return, or objected to the continued closure of the courtroom.