State and Local Law Enforcement Prohibited from Making Civil Immigration Arrests

In People ex rel. Wells o/b/o Susai Francis v. DeMarco (2d Dept. 11/14/2018), the Second Department unanimously held that New York state and local law enforcement officers are not authorized under New York law to make arrests for civil immigration violations.

The factual background is somewhat complicated. The petitioner, Susai Francis, is an Indian citizen. He entered the United States via New York City in 1996 on a B2 visitor visa, which allowed him to remain in the United States for a period not to exceed six months. Francis did not leave the United States when the visa expired. Instead, he has remained on Long Island for more than two decades and has two children, one of whom is a citizen of the United States. On March 25, 2015, Francis was served with a notice to appear in Immigration Court, and he is currently the subject of removal proceedings.

Officer’s Intent Irrelevant When Determining Whether Defendant Was Subject to Custodial Interrogation

In People v. Thomas (3d Dept. 11/9/2018), the Third Department held that the defendant was not subjected to custodial interrogation, even though a police officer testified that he would not have allowed the defendant to leave after he had entered the defendant’s residence.

The police responded to the defendant’s residence following a 911 call reporting a shooting. Defendant was initially asked to back up into the kitchen. The police explained that they simply wanted to be able to enter the residence safely and check the premises. A police officer then interviewed the defendant, his girlfriend, and two roommates together in the kitchen of the residence. The defendant was never handcuffed or otherwise restrained, and the defendant was free to move around the kitchen during the interview. However, a police officer testified that he would not have allowed the defendant to leave after he entered the residence. In other words, the defendant was not free to leave, but the officer never communicated that fact to the defendant.

The Third Department held that the officer’s subjective intent is irrelevant when determining whether or not a suspect was in custody at a particular time, where the officer’s subjective intent is not communicated to the suspect.  Instead, the proper inquiry is “what a reasonable [person], innocent of any crime, would have thought had he [or she] been in the defendant’s position.” The Court concluded, on the facts in the record, that a reasonable person would not have believed that he or she was in custody. Because he was not in custody during the questioning in his kitchen, the police were not required to give him Miranda warnings.

Further, the post-Miranda statements the defendant made at the police station cannot be considered “the fruit of the poisonous tree” because the initial statements were not the product of pre-Miranda custodial interrogation. The Court thus rejected the defendant’s claim that defense counsel was ineffective for failing to raise that ground for suppression of his post-Miranda statements. (BJD)

Failure to Timely File Criminal Leave Application Does Not Constitute Ineffective Assistance Under State Constitution

In People v. Grimes (Ct. App. 10/23/2018) (5-2), the Court of Appeals held that, under article I, section 6 of the New York State Constitution, a defendant is not entitled to a writ of error coram nobis to bypass the limitation set by the legislature in CPL 460.30 in which to file a criminal leave application. Judge Wilson authored a dissent, joined by Judge Rivera.

Request to Proceed Pro Se Untimely If Made After Start of Jury Selection

When must a defendant invoke his or her right to proceed pro se in order for the request to be considered “timely”? In People v. Crespo (Ct. App. 10/16/2018) (4-3), the Court of Appeals held that a request to proceed pro se is timely if made “before the commencement of trial,” defined as before the start of jury selection. After the start of jury selection, the right to proceed pro se is “severely constricted,” but the trial court may grant such an application in its discretion. Judge Rivera authored a lengthy dissent, joined by Judges Fahey and Wilson.

Non-Party Cannot Appeal Order Denying Motion to Quash Subpoena Issued During Criminal Proceeding

An order resolving a nonparty’s motion to quash a subpoena issued prior to the commencement of a criminal action is final and appealable. However, in Matter of People v. Juarez (Robles) (Ct. App. 6/27/18) (per curiam) (4-3), a closely divided Court of Appeals held that no direct appellate review is authorized for an order resolving a nonparty’s motion to quash a subpoena issued after the commencement of a criminal action.

This case arose out of a criminal prosecution in which the People charged Conrado Juarez with one count of second-degree murder for the killing of “Baby Hope,” a four-year-old girl. In 1991, the victim’s partially decomposed body was found in a cooler near the Henry Hudson Parkway. She had been sexually assaulted and suffocated, but the semen investigators discovered was too degraded for analysis. For two decades, police could not identify the victim or the killer. In 2013, officers tracked down the victim’s mother, and from there, identified defendant as the probable killer. After his arrest, defendant Juarez gave a videotaped confession in which he admitted to strangling the victim during a sexual encounter.

After giving the videotaped confession and while in pre-trial detention, the defendant gave an interview to nonparty Frances Robles, an investigative reporter with the New York Times. The Times subsequently published a story based on this interview, in which the defendant offered an alternate account of the victim’s death that differed in some respects from the video-taped confession.

Before defendant’s Huntley hearing, the People obtained two subpoenas meant to compel Robles’ participation in the case: one for Robles’ own testimony and one for Robles’ written interview notes. Robles moved to quash both.