COURT OF APPEALS

No reversals reported.

FIRST DEPARTMENT

No reversals reported.

SECOND DEPARTMENT

CLICK TO READ People v. Devon Nettles, Docket # 2016-10548

Appeal of conviction after trial of Criminal Possession of a Firearm, conviction reversed.  Motion to controvert search warrant granted, Indictment dismissed.

After a Confidential Informant claimed to make two controlled drug buys at an apartment building, police obtained a no-knock search warrant for Defendant’s apartment.  They executed the search warrant and found one small bag containing drugs and a handgun in the Defendant’s bedroom closet. 

The detective’s on-the-scene observations fell short of probable cause without the Confidential Informant.  All he saw was the CI enter and exit the building, not the subject apartment.  The trial court initially denied a Darden hearing, but later held a Darden hearing, and the Confidential Informant testified.  There were substantial material discrepancies between the detective’s affidavit for the search warrant, and the testimony at the Darden hearing pertaining to (1) the CI’s track record of reliability, (2) the prior relationship between the detective and the CI, and (3) the facts and circumstances of the alleged controlled buy or buys at the subject apartment.

There was a dissenting opinion.

Search warrant controverted, evidence suppressed. 

CLICK TO READ People v. Jamal Taylor, Docket # 2018-14464

People’s appeal of an order granting Defendant’s CPL § 330(1) motion to set aside a jury verdict convicted him of Endangering the Welfare of a Child on legal sufficiency grounds.  Defendant’s cross-appeal as to the denial of the motion on other grounds.

The Second Department reversed, finding that the evidence was legally sufficient to sustain the charge of Endangering the Welfare of a Child.

Defendant was charged with Rape in the Third Degree, Criminal Sexual Act in the Third Degree, and Endangering the Welfare of a Child.  The allegation was that Defendant had sex with his girlfriend’s daughter.  The jury acquitted Defendant of all charges except one count of Endangering.  Defendant filed a 330 motion based on legal insufficiency and prosecutorial misconduct.  The court granted the motion as to the first ground only.

The Second Department reversed, finding that Defendant made only a general pro forma motion for a trial order of dismissal, which was insufficient to preserve the legal insufficiency claim.  Because the claim was unpreserved, he could not raise it in a 330 motion.  Nor did Defendant make a motion to challenge a repugnant verdict before the jury was discharged.  

CLICK TO READ People v. Samuel Sanchez, Docket # 2017-06187

Order finding Defendant to be a Level 3 Sex Offender reversed, designated a Level 2 Sex Offender.

Defendant pled guilty to Attempted Rape in the First Degree, and was convicted of Sodomy and Rape in the First Degree in 1990.  The court denied Defendant’s motion for a downward departure from the presumptive risk level.  Defendant presented evidence that he suffered from a stroke in 2009 and was confined to a wheelchair with the right side of his body permanently paralyzed.  This established that the likelihood of reoffense or danger to the community was greatly diminished.

THIRD DEPARTMENT

No reversals reported.

FOURTH DEPARTMENT

No reversals reported.

SECOND CIRCUIT COURT OF APPEALS

CLICK TO READ United States v. Yesenia Nunez Tapia, Docket # 19-61

Defendant was convicted after a jury trial for cocaine importation and possession offenses.  After her appeal was initially decided, the Second Circuit decided United States v. Solano, 966 F.3d 184 (2d Cir. 2020), which held that the same jury instruction used in Tapia’s trial violated the defendant’s constitutional right to the presumption of innocence.  As a result, the Second Circuit recalled its mandate and issued a new opinion, reversing the conviction and ordering a new trial.