NEW YORK COURT OF APPEALS

No decisions reported.

APPELLATE DIVISION, FIRST DEPARTMENT

CLICK TO READ People v. Michael Julio, Docket # 2019-03821, 2019-03852

Defendants were convicted after a jury trial of Robbery in the First Degree, Robbery in the Second Degree, Attempted Gang Assault in the First Degree, and sentenced.  During jury selection, the District Attorney exercised peremptory challenges on two nonwhite prospective jurors in the first round of jury selection, one nonwhite prospective juror in the second round, and two non-white prospective jurors in the third round.  After the third round, the defense attorney made a challenge pursuant to Batson v. Kentucky, 476 U.S. 79 (1986) and argued that the People had used 5 peremptory challenges out of 11 to challenge non-white potential jurors.  The court told the parties it was only going to consider the challenges for the third round.  The People offered reasons for striking only two panelists from the third round.  The defense renewed its Batson challenge when the prosecution struck a sixth non-white potential juror in a subsequent round, stating that the People “are deliberately striking non-white jurors.” The court specifically stated it was “not going to address that” and defense counsel noted their exception.

The First Department reversed, finding that the trial court failed to allow the defendants an opportunity to present their full Batson challenge when it improperly limited the inquiry to only two of the challenged prospective jurors.  Conviction reversed, new trial ordered.

APPELLATE DIVISION, SECOND DEPARTMENT

CLICK TO READ People v. Renauld Gregg, Docket # 2022-04313, 2022-05153

This is an appeal by the People from an order granting Defendant’s motion pursuant to CPL § 30.30(1)(a) to dismiss the indictment.  The issue in this case was a 32-day period of time and a 10-day period of time, during which the transcripts of the proceedings established that the defense attorney consented to, or requested, the adjournments.  The trial court impermissibly charged those periods of time against the People.  However, because the trial court never considered whether other periods of time were chargeable, the case had to be remanded for a new determination of the motion and calculation of chargeable Speedy Trial time.

CLICK TO READ People v. Shimel Crum, Docket # 2022-02500

This is an appeal by the People from an order granting Defendant’s motion to suppress physical evidence.  The order was reversed, suppression denied, and the case remanded for further proceedings on the Indictment.  At a suppression hearing, a police officer testified that he effected a vehicle stop of the defendant’s vehicle after observing that it had excessively tinted windows. The officer further testified that, during the vehicle stop, he detected the smell of marijuana emanating from the vehicle and observed a bag of marijuana. The defendant confirmed that the bag contained marijuana. The officer also observed the defendant attempt to push a bag under the driver’s seat with his foot. After directing the defendant to exit the vehicle and proceed to the rear of the vehicle, the officer opened the bag and observed a firearm.  He was charged with Criminal Possession of a Weapon in the Second Degree.

The Second Department held that the officer had probable cause to search the vehicle because upon making a valid traffic stop, he smelled marijuana.  The search of the vehicle could lawfully include any closed containers found therein in which there was probable cause to believe that the marihuana may be found.  Suppression denied, case remanded for

CLICK TO READ People v. Trevorn Parkins, Docket # 2022-03208

Appeal of an order designating Defendant a Level Two Sexually Violent Offender; order reversed and Defendant adjudicated a Level One Sexually Violent Offender.  The Risk Assessment Instrument determined Defendant to be a Level One sex offender.  The People failed to notify the Defendant within 10 days prior to the SORA hearing that they intended to seek a determination different from that recommended by the Board of Examiners of Sex Offenders as required by Correction Law § 168-n(3).  At the hearing, for the first time the People asked the court to assess 10 points under Risk Factor 12 for lack of acceptance of responsibility, and the court granted the request and ruled him to be a Level Two offender.

The Second Department reversed, finding that the People failed to prove by the requisite clear and convincing evidence that he did not accept responsibility for his criminal conduct.  Without the 10 points assessed by the court under risk factor 12, the points assessed against the defendant under the remaining risk factors make him a presumptive risk level one sex offender, and there is no basis in the record for granting an upward departure based on an aggravating factor not taken into account by the risk assessment guidelines.  Order reversed.

APPELLATE DIVISION, THIRD DEPARTMENT

No reversals reported.

APPELLATE DIVISION FOURTH DEPARTMENT

CLICK TO READ People v. Samuel J. Saeli, Docket # KA 19-00015

Defendant was convicted after a jury trial of Kidnapping in the Second Degree, and Kidnapping in the Second Degree as a Sexually Motivated Felony for allegedly luring a young boy with disabilities from a store when he was separated from his family and sexually abusing him.  Police obtained a search warrant from a court authorizing a search of his cell phone for internet search history.  However, neither the warrant nor the warrant application specified the crimes under investigation.  He challenged the search warrant as lacking particularity and sought suppression of the results of the search of his cell phone.  The motion was denied.

The Fourth Department reversed and granted suppression.  A warrant must be specific enough to leave no discretion to the executing officer.  To meet the particularity requirement, a warrant must (1) identify the specific offense for which the police have established probable cause, (2) describe the place to be searched, and (3) specify the items to be seized by their relation to designated crimes.  Here, the search warrant simply stated that the police were directed to search defendant’s cellular phone for “digital and/or electronic evidence from August 13, 2016 to August 15, 2016.”  Significantly, the search of the phone was not restricted by reference to any particular crime. Thus, the search warrant failed to meet the particularity requirement and left discretion of the search to the executing officers.  Suppression granted, new trial ordered.

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