COURT OF APPEALS

CLICK TO READ People v. Joshua Messano, No. 96

Detective Bryan Hart of the Syracuse Police Department was patrolling a neighborhood when he saw a car driving fast, cross a double-yellow line, and pull up next to Defendant’s car that was stopped in traffic.  There was “loud conversation” between the two cars and then both pulled into a parking lot of a closed business.  The detective saw Defendant get out of his car, and walk over to the driver’s side window several times and that start texting on his phone.  Based on those observations, Detective Hart “believed” defendant had engaged in a hand-to-hand drug-related transaction despite not seeing any such transaction.  He radioed for backup, and when a third car arrived police approached Defendant’s car.  Defendant got out of his car, closed the door and began walking towards the police in a non-threatening manner.  He was stopped and frisked, and nothing was found on him.  Defendant was then told to stand near the back of his car and was not free to leave.  Another officer approached his car, looked in the window, and saw what appeared to be a rolled dollar bill and a white substance on the driver’s side seat.  Defendant was handcuffed and his car was searched, and a drugs and a gun were found in closed compartments inside.  He was charged with Criminal Possession of a Weapon in the Second Degree, Penal Law § 265.03.

Defendant unsuccessfully moved to suppress, and thereafter pled guilty.  He appealed, and the Appellate Division affirmed. 

The Court of Appeals reversed and granted suppression.  The Court found that the police lacked reasonable suspicion to stop, frisk, and detain Defendant.  Because the observations of the alleged cocaine was made after the unlawful initial seizure, all the evidence flowing from that unlawful detention was fruit of the poisonous tree.

FIRST DEPARTMENT

CLICK TO READ People v. James Benbow, Docket # 2023-02912

Defendant pled guilty to Criminal Possession of a Controlled Substance in the Third Degree.  The trial court failed to advise him that any enhanced sentence imposed upon a violation of his plea agreement would include a term of postrelease supervision.  This rendered the plea invalid.

Plea vacated, reversed and remanded.

SECOND DEPARTMENT

CLICK TO READ People v. Anthony N., Docket # 2022-09465

Defendant was charged with Criminal Contempt in the First Degree, Criminal Contempt in the Second Degree, Attempted Assault in the Third Degree, and two counts of Harassment in the Second Degree.  He pled not responsible by reason of mental disease or defect, and was committed to secure facility for six months pursuant to CPL § 330.20(6) upon a finding that he has a dangerous mental disorder.

The Supreme Court committed reversible error by issuing a commitment order without conducting an initial hearing pursuant to CPL § 330.20(6).  The court’s obligation to provide the initial hearing pursuant to CPL § 330.20(6) is mandatory.  At the initial hearing “the People must prove by a preponderance of the evidence that the defendant either suffers from a dangerous mental disorder or is mentally ill.”  Here, the court improperly made a finding that the defendant suffers from a dangerous mental disorder and committed him to a secure facility for six months without first conducting a mandatory hearing pursuant to CPL § 330.20(6) and, thus, deprived the defendant of an opportunity to cross-examine the psychiatric examiners and to present his own testimony.

The order was reversed and remanded for a new hearing.

CLICK TO READ People v. Naldo Hernandez, Docket # 2020-06384

On October 31, 2018, New York City Police officers were on patrol in an unmarked vehicle in Corona, Queens. In the preceding six months, there had been 10 robberies reported in this general area, and Officer Garcia had unspecified “intel” that two Hispanic men in the area had been robbing people by punching them or hitting them over the head with objects. However, on this particular night, no robberies or assaults had been reported in the area.

That evening, police observed two men on foot and one on a bicycle at an intersection engaged in a struggle.  When police approached, one of the men mumbled something and ran away, and the man on the bike fled in a different direction.  The other man on foot, the Defendant, began “walking fast at a double pace.”

Police then attempted to stop Defendant and asked him what was going on, and Defendant turned away and asked why he was being stopped and denied any wrongdoing.  One of the officers grabbed him and touched his rear pants pocket, and felt what he believed to be a gun.  Defendant was taken to the ground and a gun found on him.  At the precinct station, the defendant requested a phone call. As Officer Garcia approached to provide him with a phone, the defendant said, “I was trying to prevent a shooting from happening. My friend had the gun. I took it away from him to prevent him from shooting the other individual.”

Defendant was charged with gun possession and moved to suppress the gun unsuccessfully.  He pled guilty and reserved his right to appeal.

The Second Department reversed and granted suppression.  The Court held that Defendant did not have reasonable suspicion to believe that Defendant was involved in a crime based on his observations.  As a result, his stop, detention and frisk were unlawful.

Suppression granted, Indictment dismissed.

THIRD DEPARTMENT

CLICK TO READ People v. Edson Marcellus, Docket # 113077 and 113177

Defendant pled guilty to Criminal Possession of a Controlled Substance in the Third Degree with a promised sentence of 3 years imprisonment plus two years of Post-Release Supervision.  His attorney failed to advise him that pleading guilty to that offense would subject him to mandatory deportation as an “aggravated felony” within the meaning of 8 U.S.C. § 1101(a)(43)(B).  During the plea, his lawyer stated on the record that there “might be some immigration issues.”  Neither the court nor counsel told him that deportation was mandatory.  After he was sentenced, he unsuccessfully tried to contest deportation, and filed a motion pursuant to CPL § 440.10 to vacate his plea, alleging ineffective assistance of counsel.  The court denied the motion.

The Third Department reversed, finding that counsel’s incorrect immigration advice constituted ineffective assistance of counsel.

CLICK TO READ People v. Brian Hafer, Docket # 112832

In 2019, Defendant was charged with two counts of Kidnapping in the Second Degree and Conspiracy in the Fifth Degree.  The charges stemmed from defendant driving with a male codefendant from Missouri to New York, during which time the codefendant engaged in sexual conduct with a 14-year-old female on various occasions. Defendant and the codefendant then attempted to transport the female and her similarly-aged friend to Missouri, however, they dropped the girls off in Ohio upon learning that the police were looking for them.

Defendant moved to dismiss the Indictment, but the court denied the motion.  Prior to the commencement of trial, the court granted the People’s motion in limine to preclude defendant’s proffered defenses of ignorance of the age of the victims and their inability to consent. Defendant then entered an Alford plea to the reduced charge of Attempted Kidnapping in the Second Degree, with the understanding that Defendant could challenge on appeal the court’s ruling regarding the preclusion of his defenses.

The Third Department reversed.  Although Defendant, the People and the court all agreed that Defendant’s Alford plea would be premised on the preservation of his right to raise these issues on appeal, conditional pleas such as this are generally not accepted in New York.  However, a guilty plea forecloses review of a motion in limine where no trial occurred.  As a result, the Third Department did not have jurisdiction to review the order granting the People’s motion in limine.

Because Defendant did not receive the benefit of his plea bargain, the case was reversed and remanded to allow Defendant the opportunity to withdraw his guilty plea if he elects to pursue that course of action. 

FOURTH DEPARTMENT

No reversals reported.