Law enforcement officers should not be restrained...cont

April 15, 2014,

In the abstract, the propositions of law which criminal defendant advances are correct. Ordinarily a search is invalid unless made pursuant to a warrant. There are, however, limited exceptions to this rule, such as where the search is incident to a lawful arrest which is made contemporaneously with it, or where the search and seizure without a warrant are dictated by 'exigent circumstances' which make the obtaining of a warrant impractical as in the case of a moving vehicle, or where contraband is threatened with imminent removal or destruction.

In one case, which dealt with contraband, the court stated that in a case of exigent circumstances 'it would be immaterial that the arrest followed the search, or that there was no arrest at all' that the only relevant inquiry is whether it was probable that contraband was both present and threatened with imminent removal or destruction. This rule has its basis in reason and common sense. Law enforcement officers should not be restrained from seizing known contraband which is threatened with imminent removal or destruction simply because at the time of the seizure there is no one present to be arrested. If, for instance, a large package were being loaded by a conveyor belt into a plane about to depart the jurisdiction and a torn part of it exposed the edge of a machine gun, it would make scant sense to contend that an officer would be legally impotent to make a warrantless seizure of that package because the seizure was not incidental to a lawful arrest. In the said case, the 'exigent circumstances' consisted of the fact that the suitcases were brought to an airport 'shortly before the scheduled departure time of the flight' on which they were to be taken.

No such emergent situation existed here for the package of marijuana possession was being held in the baggage room for the addressee who was to call for it. Therefore, after the detectives arrived, it was not threatened with either imminent removal or destruction, nor would it have been impractical for Tobin to secure a warrant before the package could have been removed, as to the affirmative of which the burden rested on the prosecution since one of the two detectives could have gone for a criminal warrant while the other remained at the baggage room ready to arrest any person calling for the package, for which arrest there was ample probable cause by reason of the marijuana which was seeping out and the odor of marijuana which it had. Thus there was nothing to prevent the police from securing a warrant on a proper showing. Therefore the opening of the package was an unlawful search since it was too remote from the time of defendant's arrest, some ten hours later, to be considered a search incidental to and contemporaneous with an arrest.

Defendant uses what he contends is, and what I have determined to be, an unlawful search as the fulcrum for the lever of his argument that the marijuana was unlawfully seized and should therefore be suppressed. In this contention defendant is in error. The unlawful search of the package at 5 A.M. is not the alpha and omega as to whether it should be suppressed. The question rather is whether the unlawful search vitiated and nullified the prior existing sufficient probable cause to arrest (by reason of the odor and the seeping marijuana so that the subsequent seizure of the package contemporaneously with defendant's arrest was also unlawful. I answer the question in the negative.

To Be Cont...

There does not appear to be any reported New York case ...cont

April 15, 2014,


The case law of New York does not require that all of the stand-ins or fillers in a lineup be obvious fraternal twins of a suspect. The stand-ins, however, must appear reasonably similar to the defendant in their physical characteristics.

"A critical issue presented in this, and many other Wade hearings, is whether or not the appearances of the defendant and the stand-ins were reasonably similar so as to avoid undue suggestion." When the stand-ins have been so hastily chosen so that only one other person could possibly fit the description given to the police, the lineup will be considered unduly suggestive.

There does not appear to be any reported New York case that relates to the fairness of placing into a lineup an individual with a uniquely distinguishing facial characteristic. In a case, however, the criminal defendant argued that the lineup used by the police was constitutionally defective because the defendant was the only person in the lineup with bloodshot eyes, a characteristic said by the witnesses to belong to the perpetrator. The court ruled that while the witnesses noticed the redness in the defendant's eyes, the photograph indicated that this redness was not "remarkable." In the case at bar, however, the defendant's facial characteristic is remarkable.

Other jurisdictions have allowed such identifications be admitted into evidence. A California court held that a photographic array showing only one person with a birthmark, the criminal defendant was not unduly suggestive. Similarly, a Missouri court held that dissimilarity in physical appearance alone is insufficient to establish impermissible suggestiveness. The court considered the case of a defendant with a substantially disfigured chin, and it determined that this inherent physical abnormality would preclude the possibility of providing subjects reasonably close in appearance.

Nevertheless, the court held that testimony about an identification would not be suppressed as the result of an impermissibly suggestive procedure because the likelihood of misidentification was considered nonexistent. This sort of holding is consistent with the Supreme Court's rulings.

"In the past Federal constitutional guarantees, interpreted by the Supreme Court, generally satisfied and often exceeded the requirements of comparable provisions of the State Constitution. But there would be no need for an independent State Bill of Rights if that was always the case this court has frequently found that the State Constitution affords additional protections above the bare minimum mandated by Federal Law."

"There is a trenchant need for quick verification of identity, cause for arrest and detention, and the desirability of early or even immediate release of those falsely accused of a criminal case. Speedy viewings benefit both law enforcement and the defendant If the witness makes a positive identification, the police can direct their resources to other investigations. If the witness does not make an identification, the suspect can be released from custody, and the police can resume their investigation.

In the present case, the police made an effort to find stand-ins reasonably close in age, weight and height to the defendant. In addition, all the men in the lineup were black. No attempt, however, was made to conceal the defendant's glass eye. While it is certainly true that "stations are not theatrical casting offices.", some effort in this case could have been attempted to remove any suggestiveness. In a case, the police had a description of a perpetrator who was supposed to be bald with a moustache. In addition, the perpetrator was alleged to be a policeman. The investigator did not have enough photographs of balding policemen to construct a photographic lineup, so he ingeniously used white tabs to conceal this characteristic of the criminal defendant and the scalps of the few fillers.

The People's brief submitted in opposition to the motion to suppress the identifications argues that the suggestiveness of the lineup was necessary because the defendant's unique physical characteristic could not be duplicated in other fillers except by inhuman and cruel means. No reasonable person could possibly suggest that such measures should be taken. This dissimilarity could have been concealed. Such a concealment would be scarcely more than is used when all the subjects of a lineup are seated in order to conceal their heights or weights, or when white tabs are used to conceal a bald head. Thus, in the absence of such a precaution, the lineup identifications must be suppressed because they were unnecessarily suggestive.
Undoubtedly, this places a burden on the police to exercise care when conducting lineups. Indeed, "have pointed to the burden on law enforcement officials to find lineup stand-ins with physical features approximating those of the suspect as a reason for approving what otherwise might have been suggestive lineups."

"if the jury finds the in-court identification less than convincing, it should not be permitted to resolve its doubts by relying on the fact that the witness had identified the defendant on a prior occasion if that identification was under inherently suggestive circumstances. Similarly, if the witness is unable to identify the defendant at trial the defendant's conviction should not rest solely upon evidence of a pretrial identification made under circumstances which were likely to produce an unreliable result."

There does not appear to be any reported New York case

April 14, 2014,

In this Criminal case, this suppression motion places in question the propriety of a lineup identification procedure that involves a suspect with a distinctive facial deformity: a glass eye. This motion also challenges the propriety of conducting a lineup in the absence of counsel, prior to the start of adversarial judicial proceedings, when the suspect's counsel in an unrelated case has requested an adjournment of the lineup to the next day.

The Grand Jury of Queens County by two separate indictments charges the defendant with Robbery in the First Degree and with Grand Larceny in the Third Degree. Defendant moves to suppress evidence of all identification testimony connected to these two indictments which could potentially be offered against him at trial. The court conducted a joint Wade hearing to make findings of fact essential to a determination of that motion.

Defendant, claiming to be aggrieved by the improper and suggestive identification procedure utilized, and having a reasonable belief that the identifications thus obtained will be used against him at trial, seeks an order suppressing all such identification testimony. In particular, he contends that the lineup identifications utilized in both proceedings should be suppressed because they were the "fruit" of an illegal seizure of him. In addition, he contends that because of his uniquely distinguishing facial appearance, the same lineup shown to both complainants, was impermissibly suggestive and conducive to irreparable misidentification. Finally, he argues that the lineup identification testimony must be suppressed since his counsel in another pending case was not given a reasonable opportunity to attend the lineup shown to both complainants.

The People contend that the lineups were not unnecessarily suggestive and did not violate criminal defendant's due process rights. In addition, the People contend that there was no illegal seizure of the defendant and that defendant had no right to counsel at the lineups since they were held prior to the filing of an accusatory instrument. Finally, even if testimony regarding the out-of-court identifications is suppressed, the People contend that the complaining witnesses should be allowed to make in-court identifications of the accused because there are adequate independent sources to make such identifications at trial. In addition, this court will consider the admissibility of testimony concerning an inadvertent viewing of the criminal defendant by the witness in the course of the Wade hearing, although neither party specifically raised this point in their memorandums in this motion.

The criminal defendant seeks to suppress all identification testimony. With respect to the suppression of identification testimony, the People bear the burden of going forward to show that there has not been a violation of due process. The burden of proving a violation of due process is on the defendant. Should the defendant establish a violation of due process, the burden shifts to the People to show, by "clear and convincing" evidence, that the in-court identification has an independent source.

Defendant argues that because of his unique appearance the lineup was inherently unfair and unduly suggestive and improper. To support this proposition the criminal defendant directs the court to a case that case involved a defendant who was the only one in a lineup wearing a "lamb jacket" that had figured prominently in the witness' description of the perpetrator. In another case, the lineup was deemed unnecessarily suggestive and conducive to irreparable misidentification, and the evidence of the identification was suppressed. The case at bar, however, is distinguishable from both cases because the distinctive characteristic of the defendant is not an article of clothing that can be removed. Instead, it is a facial deformity.


To Be Cont...

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Commissioner of Motor Vehicles

April 14, 2014,

In this Criminal action, DWI charges were commenced by filing simplified traffic informations and supporting depositions rather than misdemeanor informations. Under our law as it applies in this case, simplified information is "a written accusation by a police officer filed with a local criminal court, which charges a person with the commission of one or more traffic infractions and/or misdemeanors relating to traffic, and which, being in a brief or simplified form prescribed by the commissioner of motor vehicles, designates the offense or offenses charged but contains no factual allegations of an evidentiary nature supporting such charge or charges. It serves as a basis for commencement of a criminal action for such traffic offenses, alternative to the charging thereof by a regular information, and, under circumstances prescribed in section 100.25, it may serve, either in whole or in part, as a basis for prosecution of such charges."

If requested, sworn facts will be provided in a supporting deposition from the arresting officer which must "contain allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense or offenses charged."6 Importantly, this deposition must be "subscribed and verified."7 The facts, however, need not be handwritten. Our highest court has sanctioned the use of "fill in the blank" supporting depositions in DUI cases noting that "the factual statements in the deposition are communicated by check marks made in boxes next to the applicable conditions and observations signifying the complainant's allegations as to the existence of those conditions and the truth of those observations."

It is within this legislative and common-law context that, as the millennium approached, several segments of state government began thinking about the opportunities presented by maturing computer technologies. The New York State Police and Department of Motor Vehicles started studying e-tickets and the efficiencies of data entry, transfer and retrieval which they presented.

The advent of the Electronic Signatures and Records Act (ESRA), recognized that Courts had entered a new era in the public and private sectors "relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities," and the rules accompanying the legislation were intended "to be flexible enough to embrace future technologies that comply with ESRA" by giving "governmental entities the greatest latitude to determine the most effective protocols for producing, receiving, accepting, acquiring, recording, filing, transmitting, forwarding and storing electronic signatures and electronic records within the confines of existing statutory and regulatory requirements regarding privacy, confidentiality and records retention." The electronic records encompassed by the statute include "information, evidencing any act, transaction, occurrence, event, or other activity, produced or stored by electronic means and capable of being accurately reproduced in forms perceptible by human sensory capabilities."

Accordingly, the court finds no difficulty in accepting the statutory propositions that "the use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand," and that "[a]n electronic record shall have the same force and effect as those records not produced by electronic means." What troubles the court is that with regard to accusatory instruments certain additional statutory safeguards and procedural protocols may be in order.

During the hearing, it became clear that in early 2001, the New York State Police, the Department of Motor Vehicles (DMV), the Division of Criminal Justice Services (DCJS), the Office of Court Administration (OCA), the State Magistrate's and Court Clerk's Associations among others became involved in a project to explore the possibility of using e-tickets to replace handwritten uniform traffic tickets. After reviewing the concerns and needs of all affected parties, the State Police chose Traffic and Criminal Software (TRACX) to be used for the project and a pilot program was initiated in Warren County in November 2001.Following a successful refinement process there, the DWAI program was made available statewide. TRACX was used by the State Police in both of the cases before this court.

To Be Cont....

The record is clear that he obtained $450

April 14, 2014,

A Queens Grand Larceny Lawyer said that, this is an appeal by defendant: (1) from a judgment of the Supreme Court, Queens County, entered October 3, 1963, after a nonjury trial, convicting him of two counts of grand larceny in the second degree and of conspiracy as a misdemeanor, and suspending sentence; and (2) from an order of the Supreme Court, Queens County, dated January 24, 1964, which denied his motion for a new trial on the ground of newly-discovered evidence. No appeal lies from the order denying the motion for a new trial. Nevertheless, such order has been reviewed on the appeal from the judgment. In our opinion such order was properly made.

A Queens Criminal Lawyer said that, defendant is a lawyer who was convicted of obtaining a $450 settlement in his client's personal injury action by submitting to an insurance company a fictitious medical bill allegedly showing that his client had been treated fifteen times by a certain doctor, even though the client never in fact saw that doctor. Defendant was tried by the court without a jury under an indictment charging grand larceny by false pretenses, common law larceny and conspiracy as a misdemeanor. The court found the defendant 'guilty of the crimes as charged in the indictment.'

The issue in this case is whether the criminal court in denying defendant’s motion for a new trial on the ground of newly-discovered evidence.

On the basis of the record, we find that the defendant obtained a settlement of his client's claim by fraudulently submitting a fictitious medical bill and report to an insurance company. The court is constrained, however, to agree with defendant's contention that, having obtained the money by false pretenses, as charged in the first count of the indictment, he could not also be convicted of obtaining the same money under the common law count, which involves taking either by trespass or by trick, thus gaining possession but not title.

Nevertheless, the court does not agree with defendant's contention that the inconsistency of the conviction on all the counts requires reversal of the judgment in its entirety. Consistency in judgments is not always necessary. As nothing would be gained by ordering a new trial, it is sufficient to reverse the conviction on the second count.

Defendant is also correct in his contention that there was insufficient proof at the trial to convict him of conspiring with the doctor whose name appeared on the bill and report which the defendant used for the purpose of settling the tort action. Aside from the bill and the report, no evidence of any kind was adduced to show that the doctor (and not the defendant or some other person) had made out the bill and report, or that the doctor even existed. Accordingly the conviction of conspiracy must be reversed.

It is also urged that the record does not sustain the judgment of conviction for grand larceny and that this court should modify the judgment as permitted by statute. To accede to this argument and to reduce the grand larceny conviction to one for petit larceny, however, would be to speculate as to what part of the total sum fraudulently obtained by the defendant actually resulted from or was attributable to his fraud. The record is clear that he obtained $450 and that he obtained it by fraud. While it is quite possible that he could have obtained almost as much without fraud, that possibility cannot be permitted to reduce the degree of defendant's crime. True, in this instance the defendant's personal profit was pathetically small; and the trial court suspended sentence. But the extension of mercy to an accused by finding a lesser degree of crime than is established by the evidence has been expressly barred.

Accordingly, the court held that the judgment is modified on the law and the facts as follows: (1) by striking out the provisions convicting defendant and suspending sentence on the second and third counts of the indictment charging grand larceny in the second degree by stealing and conspiracy to commit such crime; and (2) by substituting therefor a provision dismissing said two counts. As so modified, the judgment is affirmed.

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Concededly, no description was furnished with that radio message

April 13, 2014,

This is an Appeal by defendant from a judgment of the Supreme Court convicting him of attempted criminal possession of a weapon in the third degree, upon his guilty plea, and imposing sentence. The appeal brings up for review the denial of defendant's motion, to suppress physical evidence and an incriminating statement.

A Queens County Criminal attorney said that in On May 1981, a police officer received a radio run of a "burglary in progress possible man with a gun" Upon reaching that address in his marked patrol car, he observed defendant in the driveway, gesturing with his hands and arguing with a man on the stoop about 10 feet away. According to the officer, the defendant appeared a little "restricted" and "self-conscious in his motioning". The officer stepped between the two men and asked them to quiet down. Defendant brushed into the officer, and the officer pushed him back.

Thereupon, the officer patted the defendant down, because he was allegedly concerned with his physical safety. In his direct testimony, the officer testified that during the pat down, he felt the shape of a gun, but on cross-examination he testified that he only felt the shape of a holster. He then unzippered defendant's jacket, and saw an empty shoulder holster. He removed the holster, placed the defendant against the wall under the guard of another police officer and proceeded to search the area.

In the nearby shrubbery he found a gun. He thereupon placed defendant under arrest for possession of a gun and transported him to the precinct, where, shortly thereafter, defendant gave an incriminating statement after receiving and waiving his Miranda rights.

The defendant called his girlfriend's sister as a witness in his behalf. She testified that she was conversing with defendant in front of her house, when a patrol car pulled up. One of the officers told defendant "to go to the side and stay over there". The officer then patted defendant down, opened his coat, turned him around, and removed the coat. She saw that defendant was wearing an empty shoulder holster. The officer directed his brother officers, who were also on the scene, to "look for the gun". Several minutes later, an officer came from the side of the bushes, with a gun in his hand. He told defendant "if this fits, you're arrested". The officer put the gun into defendant's holster and "that was it".

It is beyond cavil that a police officer who possesses a reasonable suspicion that a particular person has committed, is committing, or is about to commit, a felony or misdemeanor, may forcibly stop and detain that person temporarily for questioning. As a corollary to the police officer's right to temporarily detain for questioning, the officer may conduct a frisk of the person if he reasonably suspects that he is in danger of physical injury by virtue of the detainee being armed. Reasonable suspicion that a violation of law has been or is about to be committed "must be more than subjective; it should have at least some demonstrable roots. Mere 'hunch' or 'gut reaction' will not do".

Even viewing the evidence adduced at the suppression hearing in the light most favorable to the People, it is clear that the officer herein did not possess the requisite predicate to forcibly detain and frisk the criminal defendant. The officer received a radio run concerning a burglary and a man with a gun. Concededly, no description was furnished with that radio message. Upon the officer's arrival at the scene of the alleged burglary several minutes later, defendant was found standing in the driveway of the subject premises arguing with a man on the stoop, which was unlikely behavior for a burglar. The officer did not conduct any preliminary questioning of defendant, or the man on the stoop, but instead, forcibly detained and frisked defendant based on the vague assertion that defendant appeared somewhat restricted and self-conscious in his hand movements and the fact that defendant brushed into him while arguing with the man on the stoop. Under these circumstances, the frisk was improper, and the evidence seized as a result thereof, i.e., the holster, must be suppressed. Moreover, since the holster, which should have been suppressed, was the only item of evidence connecting defendant to the gun, it follows that the police did not have probable cause to arrest defendant for possession of a gun, and the defendant's subsequent statement to the police must also be suppressed as the fruit of the poisonous tree.

However, that part of the defendant's motion to suppress the gun found by the police during the search of some bushes was properly denied since defendant did not demonstrate any expectation of privacy in that area, and the discovery of the gun was not the direct fruit of unlawful police activity.

Accordingly, the matter is remitted to Criminal Term so that the People may have the opportunity of establishing defendant's guilt of criminal possession of a weapon by evidence other than, and independent of, the holster and statement which we have ordered suppressed.

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Law enforcement officers should not be restrained

April 13, 2014,

A New York Marijuana Possession Lawyer said that, criminal defendant makes this motion to suppress as evidence the marijuana seized by the police which is the basis of the indictment here. The record discloses that about 3:30 A.M. on May 12, 1966 a Detective of the Narcotic Squad received a telephone call from the supervisor of the Railway Express at Kennedy Airport. The supervisor, who had previously given the detective information in a marijuana possession case which resulted in a conviction, told him that there was a package in the baggage room which he suspected contained marijuana. The detective and his partner arrived at Kennedy Airport about 5 A.M., and the supervisor showed them a cardboard box which was sealed with gummed tape and which had defendant's name on it. There was a hole in the box from which grains of marijuana were seeping. The box gave off a distinct odor of marijuana.

A New York Unlawful Possession of Marijuana said that, the detective, who had no search warrant, thereupon slit open the bottom of the carton. It contained ten packages of marijuana, two or three of which were broken and one of which was punctured. He then resealed the carton, and his partner and he waited for the owner to arrive. At 3:30 in the afternoon, defendant came to the baggage room and asked if there were a package for defendant. At the detective’s request, criminal defendant pointed out the package as his and signed for it. He was then placed under arrest.

The issues in this case are whether the Fourth Amendment constitutional guarantee against unreasonable searches and seizures extends to a package such as the one here involved, and the other is whether the surrender of custody of such a package to a common carrier forfeits the owner's right to privacy therein and deprives him of standing to seek a suppression order.
The Fourth Amendment of the United States Constitution guarantees that 'The right of the people to be secure in their persons, houses, Papers, and Effects, against unreasonable searches and seizures, shall not be violated. The protection thus granted extends to persons and houses, to a hotel room and an automobile. Since the protection of the Fourth Amendment specifically covers 'papers, and effects', no meaningful distinction can be drawn between the right to be secure against unreasonable searches and seizures of a parcel or package and such right as to persons, or premises, or vehicles. Therefore if the search which was here made of the package containing marijuana was unreasonable and if it is not otherwise rescued from constitutional condemnation, a drug suppression order must be granted.


Since the delivery of a package to a common carrier does not forfeit one's right of privacy thereto, the fact that the package of marijuana claimed by defendant was in the custody of the Railway Express at an airport does not deprive him of standing to assert an invasion of his privacy in the package opened by Detective. Thus since the package, as a paper, is within the protection of the Fourth Amendment and since its temporary placement with a common carrier did not cause it to lose that protection, we reach the merits of defendant's motion which is bottomed solely on the proposition that the search of the carton by Detective After he saw marijuana oozing from it and After he smelled the odor of marijuana coming from it was unlawful for two reasons. One is that in the circumstances here the search, though concededly constitutionally based upon probable cause, was not justified because it was made without a warrant; the other is that the search was not incident to and contemporaneous with a lawful arrest.

To Be Cont...

There is no indication that the Legislature intended to bifurcate the hearing process

April 12, 2014,

In this Criminal case, the defendant was arrested in September 1978 and charged in one accusatory instrument, a felony complaint, with two crimes, i. e., Violation of Sections 265.02 (a felony) and 240.50 (a misdemeanor).

A Queens County Criminal attorney said that a preliminary hearing was held by this Court in November 1978. The People offered the testimony of an officer and a forensic report prepared by the New York City Police Department attesting to the operability of the weapon.

A Queens County Criminal lawyer said that the defendant was standing on 107th Avenue and New York Boulevard in Queens County at about 6:30 A.M. on September 16, 1978, when he flagged down a police patrol car. A distance away from the defendant were a group of five males. The defendant informed the police officers that he was an "undercover man" in the District Attorney's office and that the group of males had just robbed him and taken his gun. At the time of this conversation, the defendant was holding a black leather holster in his hand. The police arrested the five males at the scene and recovered a gun on the sidewalk from the area in which they were standing. The defendant identified the gun as his; it was a twin barrelled Derringer with two live rounds in its chambers.

After arriving at the Police station and upon investigation of the occurrence, it was determined that the defendant did not work for the District Attorney's office and that he had no lawful authority to possess a gun. The defendant was placed under arrest for illegal possession of said gun, and for the misdemeanor of falsely reporting an incident. A search revealed five live rounds of ammunition in the defendant's pocket.

The five males that were arrested at that time were released when the defendant admitted that they had not, in fact, robbed him. This reporting of a non-existent robbery to the police gave rise to the charge of falsely reporting an incident.

A ballistics test determined that the gun was operable, but that the five bullets found upon the defendant did not fit that gun.

In order to justify the granting of a preliminary hearing on the misdemeanor charge, it must be determined that the repeal of 170.75 CPL rescinding the right of a defendant to a preliminary hearing in a misdemeanor case is inapplicable in any case where a defendant is properly charged in a felony complaint with a misdemeanor and a felony.

A review of statutes governing preparation of accusatory instruments would be helpful in this regard.

A felony complaint must charge a defendant with the commission of at least one felony. A felony complaint may charge two or more offenses subject to the rules of joinder applicable to indictments. An offense, Inter alia, embraces misdemeanors and felonies. An indictment must charge at least one crime and may charge in separate counts one or more offenses, which are joinable when based upon the same criminal transaction. A criminal transaction must establish at least one offense and may charge two or more counts related closely in point of time so as to constitute a single criminal incident.


Clearly, a felony and misdemeanor may be properly joined in one accusatory instrument when part of a single criminal incident.

Section 170.75 of the CPL provided a defendant "who has been arraigned in the New York City criminal court upon an information which charges a Misdemeanor may request a hearing to determine whether there is reasonable cause to believe that he committed such misdemeanor". It is patently obvious that the repeal of 170.75 CPL only effected the defendant who was initially charged solely with a misdemeanor in an accusatory instrument and not one who was charged with a felony and misdemeanor as part of the same transaction.

There is no indication that the Legislature intended to bifurcate the hearing process where a defendant is charged in the same accusatory instrument with a felony and misdemeanor.
Accordingly, the Court finds that the misdemeanor charged was part of the same transaction in which the felony charge arose, thus becoming an intrinsic part thereof which concomitantly empowers this Court to decide whether there is reasonable cause to hold the defendant on either the felony or misdemeanor charges in this hearing.

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X was the only defendant to take the stand

April 12, 2014,

This is a proceeding wherein the defendants have been convicted of multiple counts of rape and sodomy in the first degree. The charges arose after a New Jersey woman alleged criminal defendants forced her into a car outside a Manhattan dance club, took her to a Brooklyn apartment and there raped and sodomized her. At trial, defendants sought to introduce evidence purportedly showing that the woman had previously engaged in group sex. They contend that the trial court improperly applied the State's "rape shield law" under CPL 60.42 to deny their application, thereby depriving them of their Federal constitutional rights to present evidence and confront the witnesses against them. They also assign error to the trial court's refusal to instruct the jury expressly that acquittal was required if defendants held a mistaken belief that the complainant had consented to sexual relations.
The Appellate Division affirmed the judgments.

The court affirms the Appellate Division’s order in each case.

On 17 August 1989 shortly after midnight, the 17 year old complainant first encountered the three teenage defendants on a street in Manhattan. At trial, defendant X testified and gave dramatically different accounts of what happened thereafter.

Complainant testified that she had come to New York City with a group of friends to go to a dance club and that around midnight, after she began to feel sick, she decided to wait for her companions in the car. A short time later, defendants struck up a conversation with her as she ran an errand to a nearby store and then asked her to accompany them to another club. She refused, but defendants continued to walk alongside her until they passed near defendant Y's car. There, defendants surrounded her and, according to her trial testimony, she felt she had no choice but to go with them. She testified that X told her, "If you listen, you won't get hurt." Later, in the car, X intimated that his two companions were armed. A drug was not used.

With Y driving and X seated next to the complainant in the back seat, defendants took her on a ride through Manhattan and Brooklyn, ultimately arriving at X's Brooklyn apartment in the basement of his family's home. The complainant concedes that the conversation in the car was friendly--an attempt, she testified, to "get on their good side". The complainant testified that during the drive she repeatedly asked to be let out, but defendants refused. Once inside X's apartment, she attempted to flee but found the door locked. She was then forced to engage in acts of sexual intercourse and sodomy by X and the others. Afterwards, they all left together, and in the car X forced her to perform oral sex on him. She was finally allowed to leave the vehicle near a mass transit station, where she immediately reported the criminal incident to a police officer.

To Be Cont...

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The aforesaid charge is dismissed summarily ...cont

April 11, 2014,

Consequently, the court holds, for the ordinary marijuana possession case, that the unsupported allegation of the arresting officer does not constitute the evidence of the existence of marijuana, but is merely probable cause. Moreover, the court also stated that there are other reasons not to allow such accusatory instruments to serve as the basis for prosecution in the court.

The court also sited previous related case where prior to the adoption of the criminal procedure law, it was held that information that was based on information and belief must identify the sources of information and grounds for belief.

The complaint, which merely speaks of alleged marijuana, fails to meet even this lesser standard. The criminal court doesn’t know how the officer identified the substance, or his experience or past success in identifying it. Whether legal evidence of the commission of the crime exists is a matter of speculation until the filing of the laboratory report.

As a result, the complainant failed to show readiness to move the case to trial. By their own admission, they did not obtain a laboratory analysis until several months after the commencement of the case. Without such report, the complainant cannot announce their readiness for trial. Certainly nothing that the offenders did prevented the complainant from completing the fundamental task totally within the period.

Consequently, the court holds that the complainant had failed to meet their burden of showing that they were ready within the legal time period. Moreover, the offender’s motion to dismiss all criminal charges on speedy trial grounds is granted instantly.

New York Vehicle and Traffic Law 1192...cont

April 10, 2014,


The Court notes that Section 270-25 defines an offense as a violation of New York Vehicle and Traffic Law 1192, Operating a motor vehicle under the influence of alcohol or drugs, Subdivision 2, 3, or 4, or 1192-a, Operating a motor vehicle after having consumed alcohol; under the age of 21; per se, or a violation of New York Navigation Law 49-a, Operation of a vessel while under the influence of alcohol or drugs.

The criminal defendant man was notified to appear for a post seizure hearing on July 3, 2006. On such date he did not appear with counsel and after inquest the Neutral Magistrate determined that Suffolk County was entitled to retain possession of the vehicle.

Pursuant to the foregoing undisputed facts, the complainant woman has cross moved for summary judgment. A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact.

Of course, summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue but once a prima facie showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action. Pursuant to the foregoing undisputed facts, the complainant woman has met its prima facie burden of establishing its entitlement to a judgment as a matter of law within the parameters set forth in the Suffolk County Code and the defendant man has failed to raise any issues of fact which would warrant the denial of such relief. However, by way of motion the defendant man seeks summary judgment and dismissal of the complainant’s complaint averring that the forfeiture sought is excessive compared to the offense committed. In support of the motion, the defendant has proffered an appraisal of the subject vehicle, a 1967 Chevrolet Chevelle which valued the car at $48,000.00. The said appraisal was based solely upon information given by the defendant and does not consider the damage the vehicle sustained at the time the defendant was arrested.

In a related case, the Court of Appeals addressed the issue when the defendant therein contented that the forfeiture of her car as a result of a DWI conviction was excessive. Inasmuch as a punitive forfeiture of an instrumentality of a crime violates the Excessive Fines Clause if it is grossly disproportional to the gravity of the defendant's offense, the Court of Appeals reject the defendant's claim that the forfeiture of her car constituted an excessive fine. In determining gross dis-proportionality, the Court of Appeals consider such factors as the seriousness of the offense, the severity of the harm caused and of the potential harm had the defendant not been caught, the relative value of the forfeited property and the maximum punishment to which the defendant could have been subject for the crimes charged and the economic circumstances of the defendant.

On the facts of this case, the County Court concludes that the forfeiture of the defendant's car was not at all disproportionate to the gravity of her offense. The offense with which she was originally charged — driving while intoxicated — is a very serious crime. Grievous harm to innocent victims could have been caused by the defendant's driving with a blood alcohol level of .15% while speeding and weaving in and out of lanes, had she not been caught and stopped. Given the gravity of the crime of drunk driving, it is difficult to imagine that forfeiture of an automobile for such crime could ever be excessive.

It is apparent that the facts of the matter at bar are clearly similar to the underlying facts of a related case by the County of Nassau and as such would require the same holding; that is, that the fine of forfeiture is not excessive and a violation of the State and Federal Constitutions as the defendant asserts. Accordingly, his motion for summary judgment and dismissal on such ground is denied.

The aforesaid charge is dismissed summarily ...cont

April 9, 2014,

Further, no valid indictment can result unless the grand jury receives competent evidence of the operability of the firearm, since possession of an inoperable one is not itself violative from the penal law.

The complainant then admitted the insufficiency of the accusatory instrument but attempted to salvage matters by arguing that a complaint can be converted to information, not by filing documents with the court, but by depositing them in the prosecutor's file.

As a result, the court holds that an insufficient information or misdemeanor complaint was pending in the case, a period greatly in excess of the ninety day statutory requirement of the law. Therefore, the aforesaid criminal charge is dismissed summarily as to both offenders.

With regards to the marijuana charge, the complainant contends that a laboratory report is unnecessary to a valid information, since any police officer can detect the substance by mere observation. Since the complainant will be charged with nine months of non-excludable delay unless the contention is borne out, it is necessary to explore the applicable evidentiary rulings at some length.

Sources revealed that marihuana has become so commonplace in our society and its appearance and odor are so distinctive that most police officers have the requisite training and experience to be able to identify it under oath. Court further stated that laboratory tests in marihuana cases, moreover, rarely conflict with the conclusion of the police officer who has sworn out a complaint. Indeed, there is very little incentive out on the street to substitute powder for marihuana, since it is relatively cheap and the risk of prosecutions and imprisonment for possessing it is much less than for other criminal controlled substances.

The general rule regarding expert testimony is that an expert is permitted to express an opinion when the facts or inferences to be drawn from the facts depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence.

Based on records, in the city, one would anticipate that the percentage of false alarms would be closer to one in a hundred. However, the expertise of an arresting officer cannot be gauged from the face of an accusatory instrument. In addition, expertise must be established at the trial stage, by the party offering the expert. If allegations of questionable evidentiary value are to be used to support information, the court has the right to insist on compelling reasons for allowing it.

To Be Cont...