Decisions of Interest in New York –March 2008
In People v. Azim Hall [Slip Op. No. 2] the New York Court of Appeals in a split decision ruled that the police may perform a visual inspection of an arrestee’s body cavity based upon reasonable suspicion that the arrestee is hiding evidence inside his or her body cavity but if the police see anything suspicious during the visual inspection of the arrestee’s body cavity they then must get a search warrant before removing the suspicious object from the arrestee’s body cavity unless there are exigent circumstances.
In People v. Gary White [Slip No. 38] the New York Court of Appeals in a split decision held that under the circumstances of this case post-Miranda statements were not required to be suppressed even though the defendant had been subjected to a period of pre-Miranda custodial interrogation without a pronounced break before the commencement of the post-Miranda interrogation. The circumstances included: the pre-Miranda custodial interrogation lasted no more than five minutes, the defendant first gave an exculpatory alibi after being read the Miranda warnings; the defendant made no incriminating statements before the Miranda warnings were read; there was a fifteen to twenty minute period of small talk followed by the defendant being allowed to smoke a cigarette and drink a soda just before the reading of the Miranda warnings, the defendant freely indicated his willingness to speak; the defendant acknowledged he understood his rights ; and the defendant signed a Miranda card before making any substantive statements.
In People v. Marcos Urbaez, [Slip Op. No. 35], the New York Court of Appeals in a unanimous decision held that the defendant – who convicted of attempted aggravated harassment after a non-jury trial- was not wrongfully stripped of his right to a jury trial when the People on the day of trial and over the objection of the defendant reduced the highest charge from aggravated harassment in the second degree, a class A misdemeanor, down to attempted aggravated harassment in the second degree, a class B misdemeanor.
A person commits the crime of making graffiti in New York if he or she makes graffiti of any kind on any public or private building without the express permission of the owner or operator of the building. [PL §145.60(2)] A person also commits the crime of making graffiti in New York if he or she makes graffiti on any other real or personal property without the express permission of the owner or operator of the subject property. [PL § 145.60(2)] The crime of making graffiti is a class A misdemeanor in New York. [PL §145.60]
There are three categories of patronizing a prostitute in New York: patronizing a prostitute in the third degree; patronizing a prostitute in the second degree; and patronizing a prostitute in the first degree. [PL §§ 230.04, 230.05 and 230.06]
New York Penal Law defines a firearm as any pistol or revolver; any shotgun with one or more barrels shorter than eighteen inches; any rifle with one or more barrels shorter than sixteen inches; any rifle or shotgun shorter than twenty- six inches; or any assault weapon. [PL§ 265.00(3)] A list of assault weapons can be found in New York Penal Law §265.00(22). 
