Recent Decisions Of Interest In New York Criminal Cases -January 2008
People v. Perez , __ AD3d ___, [4th Dept. 0 1/09/08]:
In an unanimous decision, the Appellate Division, Fourth Judicial Department, reversed a defendant’s conviction of two counts of assault 2nd , one count of resisting arrest and one count of obstructing governmental administration arising out of an altercation with police on the grounds that the initial arrest for criminal impersonation was illegal.
People v. Rosa, ___ AD3d ___, [3rd Dept. 01/10/08]
In a unanimous decision, the Appellate Division, Third Judicial Department, affirmed a Sandoval Ruling allowing a prosecutor in a burglary case to inquire whether the defendant had been convicted of a felony in 1978, had his parole revoked seven times, and was convicted of criminal trespass in 1997 over the defendant’s objections that the convictions were too remote in time on the grounds that incarceration can toll periods of time when assessing remoteness.
People v. Balram, __AD3d __ , [3rd Dept. 01/10/08]
In a unanimous decision, the Appellate Division, Third Judicial Department, affirmed the denial of a motion to suppress a written statement made by the defendant who was hospitalized at the time the statement was taken for a self inflict facial gunshot wound and who had been given morphine amongst other drugs sometime prior to the police interview on the grounds that neither the defendant’s physical condition nor the circumstances of the interview rendered it involuntary and the People proved voluntariness beyond a reasonable doubt.
People v. Shemesh, ___ AD3d__ ,[1st Dept. 01/15/08]
In 3-2 decision, the Appellate Division, First Judicial Department, affirmed an order granting defendant’s motion to dismiss the indictment, with leave to represent, on the grounds that the People failed to offer the defendant a reasonable or meaningful opportunity to testify before the grand jury by insisting the defendant testify on a date that conflicted with his professed religious observance of Passover.
People v. Walker ___AD3d___ [2nd Dept. 01/15/08]
In a unanimous decision, the Appellate Division, Second Judicial Department, affirmed an order designating the defendant a level three sex offender- despite a recommendation by the Board of Examiners of Sex Offenders for a downward departure from level three to level two -on the grounds that the court was not bound by the Board of Examiners of Sex Offenders’ recommendation and in the exercise of its discretion, was entitled to depart from that recommendation and determine the defendant’s risk level based on the record before it.
People v. Jean-Pierre, __ AD3d__ [1st Dept. 01/10/08]
In a unanimous decision, the Appellate Division, First Judicial Department, vacated an order suppressing marijuana found on the center console of a car pulled over by police who mistakenly believed that a “03” sticker on the upper right corner of the license plate signified that the out-of-state registration had expired in 2003 on the grounds that a stop based upon a mistake of fact -rather a mistake of law- can be used to justify a search and seizure. The officer was correct that New York law requires vehicles owned by non residents to be validly registered in their home states but was mistaken about what the “03” signified.
People v. Thompson ___ AD3d___ [2nd Dept. 01/08/08]
In a unanimous decision, the Appellate Division, Second Judicial Department, vacated a plea of guilty to attempted robbery in the first degree on the grounds that the plea was prevented from being made knowingly, voluntarily, and intelligently by the court’s failure to advise the defendant that his sentence would include a mandatory period of post release supervision.
People v. Matyszewski, ___ AD3d___ [2nd Dept. 01/08/08]
In a unanimous decision, the Appellate Division, Second Judicial Department, affirmed a decision to preclude defendant’s “911” call from being admitted into evidence based upon the hearsay rule. The defendant made his exculpatory statements to the 911 operator after he had time to reflect and possibly fabricate a story. Thus, his statements could not be considered an exited utterance or present sense impression.
People v. Guy, ___ AD3d___ [2nd Dept. 01/08/2008]
In a unanimous decision, the Appellate Division, Second Judicial Department, affirmed the denial of a motion to suppress show up identification testimony on the grounds that it was reasonable under the circumstances and not unduly suggestive. The defendant was captured in a nearby hamlet and returned to the scene of the crime. The show up identification procedure took place 51 minutes after the crime was committed. The defendant stood behind a marked police car surrounded by several uniformed and plain closed police officers. He was in a position that obscured the fact that he was handcuffed.
People v. Alteri, __Ad3d__ [3rd Dept. 01/17/2008]
In a unanimous decision, the Appellate Division, Second Department, Third Judicial Department, affirmed a decision finding a search warrant was improperly issued and that all evidence resulting there from was properly suppressed on the grounds that it violated a fundamental constitutional requirement that a valid search warrant be issued by a neutral, detached magistrate. The magistrate in question had voluntarily removed himself from handling the case a month before signing the search warrant in question because he had a “close working relationship” with the defendant.
The decisions discussed above can be found at: http://www.courts.state.ny.us/decisions/index.shtml.
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