Recently, a New York appellate court issued an opinion in a gun case involving a defendant who was shot twice and then was arrested for possession of a firearm. At trial, the court denied the defendant’s motion to suppress. On appeal, the defendant argued that the officers who found the gun infringed upon his right to privacy by entering a residential building. The court disagreed, saying there was no legitimate privacy right and therefore that the evidence was obtained legally.

One night in June 2017, officers received a call for a domestic disturbance at the defendant’s home. Shortly thereafter, the officers caught sight of the defendant on the second floor of his home. They watched him open his window and throw a black backpack into the window of a building next door. He then exited the home onto the porch to talk to the police officers. The defendant told them that he had a gun several times.

Then, the defendant took out a gray-colored object. As he did, officers shot him twice. While he was being taken to the hospital, officers found the backpack, opened it up, and searched its contents. Inside they found a rifle and a smaller bag containing ammunition. Later, when interviewed by a detective, the defendant admitted he threw a black backpack out the window. He maintained, however, the backpack only had marijuana in it – he denied any existence of a rifle or of ammunition. The defendant was later convicted of criminal possession of a weapon, as well as several domestic violence offenses.

In a recent opinion from a New York court involving a robbery conviction, the court denied the defendant’s request to suppress his incriminating statements. The defendant was found guilty of robbery in the second degree and the third degree; he appealed by arguing that the officer that arrested him lacked probable cause to make the arrest in the first place, and thus that any statements that came after the arrest should be excluded from court. The court disagreed, ultimately denying the defendant’s appeal.

Facts of the Case

According to the opinion, the defendant was driving his car when he rolled through a stop sign and was stopped by a police officer. The officer asked to see the defendant’s driver’s license, registration, and insurance; as he pulled out these items, the officer noticed a can of pepper spray in the defendant’s glove compartment. The officer also noticed during the stop that the defendant’s car matched the make, color, and partial license plate number of a car that had been involved in robberies in the same area the previous evening. The officer also remembered that during these robberies, one of the victims was pepper-sprayed in the eyes.

Given the circumstances, the officer arrested the defendant for criminal possession of a weapon in the fourth degree, inferring from what he noticed during the stop that the defendant was a suspect for the crime. After the arrest, the defendant made incriminating statements that were later used against him in court. After trial, the defendant was convicted of three counts of robbery in the second degree as well as robbery in the third degree.

Continue reading ›

In a recent opinion from a New York court involving drug possession, the defendant’s request for the court to reconsider his guilty verdict was denied. The defendant was found guilty of criminal possession of a controlled substance in the fourth degree. He filed a motion to suppress evidence, arguing that the officers who found street-level PCP in his vehicle did not have probable cause to search his car. The appellate court denied the appeal because it found that the officers did, in fact, have enough reason to search the car after having smelled the PCP from outside the vehicle.

The Case

As stated in the opinion, officers in Syracuse were patrolling a high-crime area in August 2017 when they noticed a car that was parked illegally. The officers walked up to the vehicle and saw three occupants – the defendant in the driver’s seat and two other passengers. As soon as the officers approached the car, the officers smelled a “really strong chemical odor” that they recognized as PCP.

Recently, a state appellate court issued an opinion in a New York drug case discussing the concept of an inventory search. An inventory search is performed by police officers to properly determine the contents of the item searched. Inventory searches should not be used for the purpose of discovering evidence of a crime, but instead may only be used for a non-investigatory purpose.

The Facts of the Case

According to the court’s opinion, law enforcement personnel were made aware that the defendant would be driving through a certain location one night to transport drugs. New York State Troopers were directed to stop and search the particular vehicle if they saw it, and that night, the State Troopers stopped the vehicle on the highway, arrested the defendant and her co-defendant, and recovered a large quantity of cocaine from the vehicle. The State Troopers did not have a warrant to stop and search the vehicle. The defendant was convicted of criminal possession of a controlled substance and subsequently filed a motion to suppress the cocaine that had been recovered from her vehicle. The lower court denied the motion and the defendant appealed.

On appeal, the defendant argued that the county court should have granted the motion to suppress the physical evidence recovered from the vehicle because the State failed to sustain their burden of proof that sufficiently established a valid reason for stopping the vehicle or a valid reason for searching it. The appellate court agreed, holding that the prosecution did not meet the burden of proof required to rely on fellow officer exception to justify the vehicle stop. At a suppression hearing, the prosecution bears the burden of proving that the officer who imparted information had probable cause to act and thus had either directly participated in the transaction or observed it. Here, an unidentified member of the county drug task force advised a trooper about the vehicle, and it was passed on to other troopers to conduct the stop but there was no information at the suppression hearing indicating how the county drug task force member learned there were drugs in the vehicle.

Continue reading ›

While state and federal law restrict a police officer’s ability to conduct a warrantless search, courts allow officers to perform a limited search in certain situations. One of these situations involves after an officer makes a lawful arrest. Thus, it is common after a police officer arrests someone that the officer searches the person to make sure that they are not armed. However, here too, there are limitations on the permissible scope of a search. In a recent opinion, a New York appellate court issued an opinion discussing the allowable scope of a search incident to a valid arrest.

The court’s opinion is brief; however, the case arose after the defendant was arrested on 17 counts of criminal possession of a forged instrument in the first degree. While the facts surrounding the defendant’s arrest were not provided, the defendant did not contest their arrest. Instead, the defendant argued that the arresting officer exceeded the scope of a search incident to her arrest.

Apparently, the officer found an envelope in the defendant’s pocket at the time of her arrest. The officer then “peeked” inside the envelope to find evidence that the prosecution intended to use against her at trial. The testimony was not clear whether the envelope was partially open. However, to the court, it didn’t matter.

A New York appellate court recently issued a decision in a criminal accused’s appeal of his kidnapping conviction. The record indicates the accused and his co-defendant allegedly kidnapped the complainant. The victim’s friends received various ransom calls, one of the friends called the police claiming that they recognized the voice as the defendant. Upon arriving at the defendant’s residence, law enforcement found the victim tied up in the garage. Police knocked on the front doors and the door leading to the second-floor apartment when the cousin identified himself as a police officer and confirmed other people were in the apartment. The police subsequently seized the phones that were used to make the ransom calls.

Based on a physical description, police stopped and questioned the accused; after identifying himself, police arrested him. The police then executed a search warrant and recovered the victim’s credit card and the defendant’s benefits card. On a motion, the defendant moved to suppress his statement to police, controvert the search warrant and suppress the physical evidence recovered from the home.

Warrantless searches are lawful if police have obtained voluntary consent from a party who possesses authority and control over the property or premises at issue. A party can establish consent by words and conduct. In this case, the court found that the People met their burden by establishing that the defendant’s cousin had requisite control over the home and provided police with authority to enter the premises. The People also cited the cousin’s testimony where he stated that he intended to help the police. In line with that finding, the court found that the cell phone seizure was lawful because it was in plain view.

What happens when a New York defendant tosses evidence as he or she is fleeing from the police? The answer depends on the police action leading up to the stop.

Recently, a state appellate court issued a written opinion in a New York drug possession case involving the concept of forced abandonment. Under the state and federal constitutions, police officers must have probable cause or reasonable suspicion to justify a search of a person or their belongings. In situations where a defendant discards an item, that is typically not seen as a “search.” Thus, situations that involve a defendant who voluntarily tosses items may not implicate their constitutional protections, because no “search” was conducted.

However, if a defendant discards an item in response to a police officer’s illegal attempt to stop them, the object may be suppressible under the theory of forced abandonment. Forced abandonment is a legal term used to describe a situation where a defendant discards evidence in response to illegal police activity, often during a police foot pursuit. The idea behind the doctrine is that police officers “seize” a defendant when they initiate the stop. If officers lacked probable cause or reasonable suspicion at that point, the evidence is suppressible—regardless of whether the defendant keeps it on them or tosses it away.

Filing an appeal is one of the most critical steps in a New York criminal defendant’s attempt to avoid serious penalties and incarceration. In most instances, an appeal follows a trial and sentencing. New York appeals generally involve a defendant making a pleading to the appellate court to issue a motion for retrial, resentencing, or overturning a ruling. New York criminal defendants do not possess the same rights during appeals as they do at trial. As such, criminal defendants should consult with an experienced New York criminal defense attorney to develop the best course of action.

In most cases, New York criminal defendants appeal their cases based on more than one issue. Appeals may stem from improper police investigations, incorrect legal decisions, or other constitutional claims. Multiple appeal issues often present complicated statutory and procedural issues. In these cases, courts may wholly affirm the trial court’s ruling, partially affirm, or entirely overturn the lower court’s ruling.

For instance, a New York criminal defendant recently appealed a judgment from a trial court where he was convicted of two counts of murder in the second degree, two counts of attempted murder in the second degree, three counts of robbery in the first degree, two counts of assault in the first degree, attempted assault, and seven counts of criminal possession of a weapon in the second degree. The case arose from incidents over a two-month span where two men were killed, and three others suffered injuries. The court affirmed the majority of the trial court’s ruling but partially agreed with the defendant’s assertions regarding the admissibility of his statements to the police.

Earlier this month, a state appellate court issued an opinion in a New York gun case discussing the concept of an inventory search. An inventory search is a type of search, usually conducted by police officers or tow-truck drivers, that is performed to determine what is in a vehicle before the searching party takes control of the vehicle. The purpose of an inventory search is to identify what is inside a vehicle, to limit the possible liability should a dispute later arise about something in the vehicle coming up missing. Inventory searches are only permissible when conducted for a non-investigatory purpose.

The Facts of the Case

The court’s recitation of the facts giving rise to the case was brief. However, it appears that the defendant was arrested after he had parked his car “on the corner.” The court’s opinion does not explain what the initial arrest was for. However, after the defendant was arrested, police officers decided to impound the defendant’s vehicle. Before impounding the vehicle, police searched the car, finding a weapon.

Under the state and federal constitutions, individuals have a right to be free from unreasonable searches and seizures. Generally, this requires that police officers obtain a warrant before searching a person’s home. However, just because the police get a warrant does not mean that the warrant itself cannot be challenged.

To be valid, a search warrant must list with “particularity” the places to be searched. This requirement ensures that a search conducted pursuant to a valid warrant remains reasonable. In a recent New York gun case, the court discussed the particularity requirement.

The Facts of the Case

According to the court’s opinion, police officers obtained a warrant allowing them to search a particular residence. The warrant contained the correct street address. However, when police officers arrived to execute the warrant, they were told that the unit is actually three separate living spaces. The defendant apparently lived on the third floor, his mother on the first, and an unrelated party on the second floor.

Continue reading ›