In today’s New York Criminal Caselaw Roundup we’ll be discussing the latest in developments of New York criminal law, criminal appeals, and post-conviction relief.

Cases that we’ll cover include search warrant, Criminal Possession of a Controlled Substance in the Fifth Degree, Bail Jumping in the Second Degree, 440 motion, ineffective assistance of counsel, alibi, Attempted Murder in the Second Degree, Attempted Assault in the First Degree, Criminal Use of a Firearm in the First Degree, Criminal Possession of a Weapon in the Second Degree, and more.

The New York Criminal Caselaw Roundup is a blog and video podcast by criminal defense and appeals lawyers Jason L. Russo and Steven J. Gaitman summarizing the latest developments in criminal law, criminal appeals, and post-conviction relief in the State of New York.  Each week we digest the latest reversed convictions throughout the New York Appellate Divisions and the New York Court of Appeals, as well as the United States Court of Appeals and the United States Supreme Court.

This is a FREE service designed to give you the cutting edge of developments in New York criminal law, appeals, and post-conviction relief.

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COURT OF APPEALS

CLICK TO READ People v. Tyrone D. Gordon, No. 9

Police observed Defendant make several heroin sales over the course of several days, including controlled buys to undercover officers and confidential informants.  Based on that information, the trial court the court issued a search warrant authorizing a search of Mr. Gordon’s “person” and the “entire premises.” In the proceedings below, Supreme Court held that although the police had probable cause to search Mr. Gordon and his residence, the warrant did not encompass the search of two vehicles located outside the residence, and the police lacked probable cause to search those vehicles. As a result, the trial court ordered the suppression of physical evidence seized from the two vehicles. On appeal, the Appellate Division affirmed, and the People appealed

The Court of Appeals affirmed suppression. Because the search warrant in this case contained no references to the vehicles and the record supports the finding of the trial court that the search warrant materials failed to provide probable cause to search the vehicles, the evidence seized therefrom was properly suppressed.

Importantly, the Court of Appeals made clear that the New York Constitution is more stringent that the Federal Constitution on search warrants.  The Court of Appeals distinguished Federal law, under which a warrant a warrant to search an “entire premises” may, under certain circumstances, impliedly authorize a search of automobiles found on the property.  The Court rejected the Federal standard and adhered to the State standard, which provides more protection to defendants.

FIRST DEPARTMENT

CLICK TO READ People v. Charles Osbourne, Docket # 2018-04171 (2021 NY Slip Op 01128)

Appeal of guilty plea to Criminal Possession of a Controlled Substance in the Fifth Degree and Bail Jumping in the Second Degree, plea to Bail Jumping reversed, sentence reversed and remanded for new sentencing.

Defendant pled guilty in 2002 to Criminal Possession of a Controlled Substance in the Fifth Degree, and absconded prior to sentencing.  He was found 15 years later, after the 2009 Drug Law Reform Law went into effect.  However, he was sentenced to the original indeterminate sentence that existed in 2002.  This was error because the 2009 law required determinate sentences for all defendants awaiting sentencing on drug offenses.

Additionally, Defendant was told by the court that his sentence on the Bail Jumping conviction as required to run consecutively to the drug conviction.  This was legally incorrect.  The court’s misdavice as to his sentencing exposure required vacatur of the plea.

Plea and sentence vacated.

SECOND DEPARTMENT

No reversals reported.

THIRD DEPARTMENT

CLICK TO READ People v. Shateek Lanier, Docket # 110566

Appeal of an order denying Defendant’s motion for post-conviction relief under CPL § 440.10 to vacate his conviction of Attempted Murder in the Second Degree, Attempted Assault in the First Degree, Criminal Use of a Firearm in the First Degree, Criminal Possession of a Weapon in the Second Degree, after an evidentiary hearing; order reversed, motion granted, convictions vacated and new trial ordered.

Defendant was charged with a shooting that occurred outside of a house, injuring the victim in the leg.  Prior to trial, the People provided a letter to counsel, notifying trial counsel that several witnesses had told law enforcement that the eyewitness was inside the house at the time of the shooting, and was not in a position to see the incident or the perpetrator.  The case centered on the identification of Defendant as the shooter by this eyewitness.  Additionally, Defendant’s uncle was ready, willing and able to testify that Defendant was with him in a different location at the time of the shooting.  The uncle called trial counsel several times, but never got a call back.  Additionally, counsel made little or no effort to contact the other witnesses who would have refuted the eyewitness’ testimony.

The Third Department held that these failures constituted ineffective assistance of counsel, and granted the motion, ordering a new trial.

FOURTH DEPARTMENT

No decisions reported.

SECOND CIRCUIT

No reversals reported.

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search warrant, Criminal Possession of a Controlled Substance in the Fifth Degree, Bail Jumping in the Second Degree, 440 motion, ineffective assistance of counsel, alibi, Attempted Murder in the Second Degree, Attempted Assault in the First Degree, Criminal Use of a Firearm in the First Degree, Criminal Possession of a Weapon in the Second Degree