COURT OF APPEALS

No Reversals Reported

FIRST DEPARTMENT

No Reversals Reported

SECOND DEPARTMENT

CLICK TO READ Matter of Kurtzrock, Docket # 2019-06381

Disciplinary proceeding against former Assistant District Attorney of Suffolk County.  The Respondent here was suspended from the practice of law for 2 years for deliberately and intentionally withholding Brady material in a homicide case that implicated someone other than the Defendant in the murder.  The withholding of Brady material came after defense counsel made specific requests for the material, and it became apparent in the middle of trial that more information had been withheld, despite a court order directing the ADA to turn over additional material. 

This decision has a lot of good black-letter law about the obligations of the prosecutor to turn over Brady material.

CLICK TO READ People v. Aramis Cabrera, Docket # 2018-05046

Guilty plea to Criminal Possession of a Controlled Substance in the Third Degree vacated.  During the plea colloquy, the court failed to inform the Defendant of the specific or maximum period of Post-Release Supervision that would be imposed as part of the sentence.  This failure to advise Defendant prevented his plea from being knowing, voluntary, and intelligent.

Plea vacated, case remanded.

CLICK TO READ People v. Denise Porter, Docket # 2015-10095

Written opinion by Judge Chambers.

Defendant was convicted after a bench trial of Criminal Possession of a Controlled Substance in the Fourth Degree, Criminal Possession of a Weapon in the Fourth Degree, Criminal Possession of Marijuana in the Third Degree, Criminal Possession of a Controlled Substance in the Seventh Degree, Unlawful Possession of Marijuana.

Police executed a no-knock warrant at Defendant’s apartment and found a safe.  Defendant and three other people were in the apartment and were handcuffed.  The detective told Defendant that the police had a search warrant and that the safe “needed to be opened” or the police would forcibly open it.  In response, Defendant opened the safe using the combination and drugs and a weapon were found inside.  The People never served CPL § 710.30(1)(a) of any statement.

The evidence at trial against her was mainly the testimony of the detective, which the People used to prove that Defendant constructively possessed the contents of the safe.  At trial, defense counsel moved to preclude the Defendant’s non-verbal response of opening the safe as an unnoticed statement, but the trial court held that it was not a “statement.”

The Second Department reversed, finding that the non-verbal communication of Defendant physically entering the combination to open the safe, rather than verbally communicating that combination to the police, was still a “statement” that needed CPL § 710.30(1)(a) notice.  Because Defendant’s knowledge of the safe’s combination was the only evidence establishing her dominion and control over its contents, the act of unlocking the safe was undoubtedly incriminating.  In addition, the fact that the Defendant was still in handcuffs and had not yet been advised of her Miranda rights when the detective made his request raises questions as to whether her act of unlocking the safe was voluntary.

A new trial was ordered with instructions for the trial court to consider whether the People should be given leave to give late CPL 710.30(1)(a) notice, and if so, then Defendant is entitled to a suppression hearing.

CLICK TO READ People v. Shymeek Harris, Docket # 2017-05563

Written opinion by Judge Miller.

Appeal of a guilty plea to Criminal Possession of a Forged Instrument in the Second Degree after a motion to suppress physical evidence and statements was denied.  In 2019, the Second Department remitted the case to the trial court to make findings of fact and conclusions of law and held the appeal in abeyance.  Motion to suppress granted, Indictment dismissed.

In this opinion, the Second Department discredited the testimony of the police officers at the suppression hearing, and held that the People failed to meet their burden of going forward at the hearing, and failed to prove the legality of the vehicle stop.

Police officers conducting a “buy and bust” drug operation observed a car allegedly make an illegal U-turn and stopped the car.  The detective claimed that he observed a burned credit card that appeared to be counterfeit in plain view, but the detective also admitted he had never been involved in an arrest involving a burned/altered credit card, and could not specify what training he received in recognizing false credit cards.  The detective also claimed he saw 15-20 credit cards in Defendant’s shirt pocket from outside of the car where Defendant was seated as a passenger.  In response to a question, Defendant stated that he found the cards and he was handcuffed and the cards recovered from him.

At the hearing, the defense called the driver who denied committing any traffic infractions.  He also testified that his own legitimate credit card was in the center console.  He also said that he saw police take Defendant out of the car and remove cards from a zippered, closed pocket on Defendant’s bubble jacket.

Two paralegals who worked in the office of the Queens County District Attorney were also called to testify for the defendant. This testimony related to the preparation of a “crime report” for this case, which report made no mention of the “burn mark” on the credit card that was allegedly recovered from the center console. One of the paralegals testified that during the time that he was at the District Attorney’s office, he worked on more than 25 to 30 credit card cases. None of those cases involved a burn mark as an indicator of forgery.

The Second Department held that the officers’ testimony should not have been credited because it had “all appearances of having been patently tailored to nullify constitutional objections.”  The two officers testimonies were in conflict with each other about virtually everything, from the alleged traffic infraction to the sequence of events leading to the arrest.  The Court also held that it was “implausible and contrived” that the police officers could read the card numbers on the card from outside of the car.  Additionally, their testimony was contradicted by contemporaneous police records.

CLICK TO READ People v. Tramel Cuencas, Docket # 2016-06693

Another written opinion by Judge Chambers, this one not so good.

This appeal presents an important legal question left open in People v Xochimitl (32 NY3d 1026): whether a home visit by law enforcement officials for the sole purpose of making a warrantless arrest, and which is not otherwise justified by exigent circumstances, violates a defendant’s indelible right to counsel.

Defendant argued in this appeal that the police made warrantless arrests in this case for the specific purpose of delaying the attachment of the right to counsel and obtaining statements in violation of the indelible right to counsel.  The Second Department held that New York law does not presently recognize a “new category of Payton violations based on subjective police intent.”

THIRD DEPARTMENT

No Reversals Reported

FOURTH DEPARTMENT

No Reversals Reported

SECOND CIRCUIT

No Reversals Reported

GENERAL SEARCH TERMS (TAGS)

Jason Russo, Steve Gaitman, Jason L. Russo, Steven J. Gaitman, Jason Russo, Steve Gaitman attorney, Jason Russo, Steve Gaitman NY Attorney, Long Island Criminal Defense Lawyer, Long Island Criminal Defense Attorney, Suffolk County Criminal Defense Lawyer, Suffolk County Criminal Defense Attorney, Nassau County Criminal Defense Lawyer, Nassau County Criminal Defense Attorney, Gaitman & Russo, LLP, Criminal Defense lawyer, criminal defense attorney, Federal criminal defense lawyer, federal criminal appeal lawyer, New York criminal defense lawyer, New York Criminal Defense Attorney, New York Appeal Lawyer, New York Appeal Lawyers, New York Appeals Lawyer, New York Appeals Lawyers, New York criminal appeal lawyer, New York criminal appeal lawyers, New York criminal appeals lawyer, New York .criminal appeals lawyers, post conviction relief, post conviction relief lawyer, post conviction relief attorney, New York Appeal Attorney, New York Appeal Attorneys, New York Appeals Attorney, New York Appeals Attorneys, New York criminal appeal attorney, New York criminal appeal attorneys, New York criminal appeals attorney, New York criminal appeals attorneys, New York Appellate Lawyer, New York Appellate Lawyers, New York Appellate Lawyer, New York Appellate Lawyers, New York criminal appellate lawyer, New York criminal appellate lawyers, New York criminal appellate lawyer, New York criminal appellate lawyers, post conviction relief, post conviction relief lawyer, post conviction relief attorney, New York Appellate Attorney, New York Appellate Attorneys, New York Appellate Attorney, New York Appellate Attorneys, New York criminal appellate attorney, New York criminal appellate attorneys, New York criminal appellate attorney, New York criminal appellate attorneys,

THIS WEEK’S SEARCH TERMS (TAGS)

Brady, exculpatory material, Criminal Possession of a Controlled Substance in the Third Degree, Post Release Supervision, unknowing and involuntary plea, Criminal Possession of a Controlled Substance in the Fourth Degree, Criminal Possession of a Weapon in the Fourth Degree, Criminal Possession of Marijuana in the Third Degree, Criminal Possession of a Controlled Substance in the Seventh Degree, Unlawful Possession of Marijuana, statements, Miranda, voluntariness, Criminal Possession of a Forged Instrument in the Second Degree, credibility, suppression, warrantless arrest, Payton, Double Jeopardy