Stats & Case Summaries - Fourth Department Decisions Released on May 3, 2013

Criminal Case Summaries:

·        People v Adams (KA 10-02355) – 4AD previously reserved decision and remitted this case to County Court for a ruling on D’s motion to suppress identification evidence, on the basis that the witness’s pre-trial identification was a fruit of an unlawful arrest. On remittal, the lower court suppressed the evidence. 4AD finds that the identification evidence was critical to D’s conviction, and thus grants a new trial. 4AD also orders a hearing to determine whether there was an independent source for the identification.

·        People v Arena (KA 12-01632) – 4AD reverses because the lower court precluded D from calling a defense witness at trial. The People’s theory at trial was that D assaulted the victim as retaliation because the victim had informed police that D grew marijuana. Molineux evidence was admitted to show that motive. D wanted to call a witness who would have testified that weeks earlier, D accused the witness of being the one who informed police that D grew marijuana, but did not assault him. 4AD finds that the lower court’s prospective exclusion of this evidence, after an offer of proof by D, was error. 4AD notes that D’s proffer of proof was not “palpably in bad faith”, and the lower court should have allowed the witness to testify. The prosecutor could have then objected to specific testimony. Further, 4AD finds that the evidence was relevant to rebut the People’s theory of motive.

Scudder, P.J., and Martoche, J., dissent, finding that the lower court correctly found that the evidence was not relevant, and was too remote and conjectural to have any influence on the jury’s determination of the facts.

·        People v Burroughs (KA 10-00663) – 4AD reverses D’s conviction following a guilty plea, because the factual allocution negated an essential element of first degree robbery. D told the lower court that the gun he had was “fake”, and the court failed to clarify whether D or an accomplice “was in fact ‘armed with a deadly weapon’”.

·        People v Madison (KA 11-00313) – 4AD reverses two convictions for second degree harassment. The lower court should have granted D’s CPL 330.30 motion based on newly discovered evidence. The evidence consisted of telephone records that called into question the victim’s veracity regarding her claims that D called her and thus violated an order of protection. While D could have subpoenaed these records before trial, his ability to do so was frustrated by the People, who would not provide the precise times when the calls were made, or the precise numbers from which they were made. For these reasons, among others, the phone records were newly discovered evidence that was not available to D before trial.

·        People v Purdy (KA 12-00534) – 4AD reverses because the lower court erred in refusing to suppress physical evidence found in D’s car, and statements D made to police. Only one police witness testified at the suppression hearing regarding events that occurred before D was taken into custody. That witness merely testified that he was looking for D, in connection with a residential burglary investigation. 4AD finds that the investigator failed to articulate any facts that gave police at least a reasonable suspicion that D was involved in the burglary. Because police failed to establish that D’s detention was lawful, his subsequent consent to search his vehicle was involuntary. Also, D’s statements to police were fruit of the poisonous tree.

·        People v Sims (KA 12-01247) – In this appeal by the People, 4AD reverses the lower court’s order granting suppression of a handgun and statements. Police observed D ride a bicycle out of an alleyway, and ride next to their police car for about 10 to 15 feet while staring at the officers. D then rode the bike into a porch, fell off, and ran up the stairs. The officer asked D if he lived at the house, D said no, and the officer then asked for identification. D had no identification, and repeatedly placed his hand in his pocket, despite police orders that he not do so. 4AD finds that police had an objective, credible reason for the initial questions. Police also had a reasonable suspicion to believe D posed a threat. Police were in a high crime area that was known for “guns and drugs”, and D repeatedly reached into his pocket. Thus, the officer acted lawfully when he grabbed D’s arm, and felt what might be a gun in D’s pocket.

Fahey, J., and Sconiers, J., dissent. The dissent finds that although the police had an objective, credible reason to request information from D, they did not have reasonable suspicion to pat search him. There was no proof that D had committed a crime, or even that a crime had been committed in the area. D’s actions—i.e., placing his hand in his pocket—were innocuous, “and readily susceptible of an innocent interpretation”. Those actions did not give rise to a reasonable suspicion just because D was present in a high-crime area.