Category Archives: Advice

Reversal for right to public trial violation

In a very brief opinion, the First Department reversed the conviction in People v. Gray (1st Dept. 8/18/2011) because the trial court ordered the complete closure of the courtroom during the undercover's testimony.  The Defendant requested that certain family members be allowed to stay, but the court summarily rejected the request without comment.  Of particular concern to the First Department was that "the record does not otherwise show that the court considered whether there existed any reasonable accommodations that would have protected the public nature of the criminal proceedings."  The court reiterated that "trial courts are required to consider alternatives to closure even when they are not offered by the parties."  

The lesson for trial courts and for prosecutors is to make a proper record that explicitly considers alternatives to complete closure.  (LC)

Columbia Law launches “collateral consequences calculator”

The Supreme Court's recent decision in Padilla v. Kentucky requires defense attorneys to advise their clients on the immigration consequences of pleading guilty.  To help attorneys advise their clients, Columbia Law School has created a web-based "collateral consequences calculator."  A user simply selects a Penal Law charge and the website returns a report about immigration and public housing consequences for a conviction of that crime. 

I played around with the calculator a bit this morning.  It seems like a valuable tool, although I still prefer the simple and easy-to-use reference charts from the New York State Defenders Association's Immigrant Defense Project.  Although the Columbia site adds public housing information, no appellate court has yet to hold that attorneys have a duty to advise clients that their guilty pleas may impact their ability to obtain NYCHA housing and, given the Court of Appeals' recent decision on collateral consequences, I don't see it happening anytime soon.  In any event, regardless of whether it is constitutionally required or not, it is important to know that certain convictions can trigger almost certain eviction from public housing (however, there are escape-valve provisions that allow public housing residents to plead for an exception to the rule).  For some clients, structuring the right guilty plea may enable them to avoid becoming homeless.  (LC)

Defendant fails to make sufficient showing for suppression hearing

In People v. Scully (Ct. App. 5/6/2010), a unanimous Court of Appeals affirmed the defendant's conviction, rejecting his contention that the motion court erred in denying a hearing on his suppression motion. 

The facts were simple: Utica Police were executing a drug-related search warrant at a residence.  The warrant was for the second floor of the premises as well as two John Does and "any other person who may be found to have such property [drugs, paraphernalia, and guns] in his
possession or under his control at the time of the execution of said
warrant."  The police went to the first floor entrance where they heard the defendant coming down the stairs.  He asked what they wanted and the plainclothes police replied, "one," meaning a $20 rock of crack-cocaine.  The defendant opened the door and he was detained and searched.  The police found a gun, ammunition, and money.

The defendant's motion papers alleged only that the search warrant was issued without probable cause.  However, his papers did not demonstrate how or why there was a lack of probable cause.  As such, the allegations were pure legal conclusions and insufficient to entitle the defendant to a hearing.

This case serves as an important reminder to defense counsel to supplement their omnibus motion papers with specific facts that, if found to be true at a hearing and when applied to the law, yield the legal remedy they seek.  In other words, every legal conclusion must be supported by facts. 

Another issue in the case was standing.  After the police arrested the defendant, they went upstairs and searched the second floor residence.  Various drugs and drug paraphernalia were found there.  The defendant did not allege sufficient facts to show that he had standing to challenge the search.  Again, he alleged only that the warrant lacked probable cause.  (LC)

Conviction for Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree Reversed; Insufficient Evidence of Knowledge

The Appellate Term, Second Department, reversed a defendant's conviction for Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree in People v. Outram (App. Term. 2d Dept. 1/30/2009).  The court held that the People had introduced insufficient evidence to establish that the defendant knew that his driver's license had been suspended:

[T]he People sought to establish that the suspension orders were properly
mailed to defendant, so that they could then invoke the presumption
that the orders were received by defendant (see e.g. Residential Holding Corp. v Scottsdale Ins. Co.,
286 AD2d 679 [2001]). However, the testimony on behalf of the People by
a New York City employee of the DMV, demonstrated that said employee
had no personal knowledge whatsoever of the procedures of the Albany
DMV office which handled the mailing of suspension orders.
Consequently, the People failed to provide sufficient proof regarding
the DMV's standard office practice or procedure designed to ensure that
the suspension orders were properly addressed and mailed (see Residential Holding Corp.
at 680), did not establish that the suspension orders were mailed to
defendant, and failed to prove that defendant knew, or had reason to
know, that his license was suspended, as required by Vehicle and
Traffic Law § 511(1)(a).

From this short description, it looks like the prosecutor was caught off-guard by an unprepared witness.  Lesson learned?  An attorney should meet with all witnesses, even so-called "professional" ones like DMV representatives, and go over the questions that will be asked.  There is nothing unethical about "witness preparation," provided the attorney does not script or coerce the witness.  (LC)

Inventory Searches: The Factual Predicate

I have taught Criminal Procedure—the law of search and seizure—several times.  It is a fascinating subject.  I find the law of inventory searches particularly interesting.  Unfortunately, I have observed many cases where key evidence was suppressed because the prosecutor did not properly elicit the requisite factual predicate for the search itself.  People v. Farquharson (Sup. Ct. Bronx Co. 1/26/2009) is one such case.  In a written decision posted this week, Justice Dawson suppressed evidence recovered during a purported inventory search.

The case was a simple DWI.  Highway unit officers observed the defendant driving erratically.  When they pulled him over, they detected the usual signs of intoxication and observed marijuana in plain view.  They arrested the defendant.  During a subsequent search of the vehicle, the officers discovered additional drugs.

The sole testimony regarding the inventory procedure was summarized by the court:

According to [Police Officer] Wiley, the standard police procedure in such a situation
is to take custody of the vehicle by towing it and to perform an
inventory search of the vehicle. Id. Wiley testified that an
inventory search of the vehicle is done to make sure there are no
valuables left unsecured in the vehicle for which Wiley would be
responsible. Id. Wiley recovered the two bags of marihuana from
the vehicle and then, during an alleged inventory search of the
Pathfinder, he seized an additional six bags of marihuana from a radio
box on the rear seat. Id. There was no other testimony
regarding police procedures for inventory searches, or whether they
were followed in this case. After the marihuana was recovered, Vickery
testified that the police continued to search the car for more drugs or

The court suppressed the second set of drugs because the People had not established that the police were conducting a proper inventory search:

In People v. Johnson, 1 NY3d 252 (2003),
the Court of Appeals held that the People had the "burden of
establishing a valid inventory search" at a suppression hearing, and
that the purposes of an inventory search were threefold: "to protect
the property of the defendant, to protect the police against any claim
of lost property, and to protect police personnel from any dangerous
instruments." Id. at 256 (citation omitted). To meet that
burden, the People should produce evidence demonstrating: (1) the
existence of a departmental policy regarding inventory searches, (2)
that the policy is "rationally designed to meet the objectives that
justify inventory searches," and (3) that the particular search was
conducted properly and in compliance with established procedures. See id.Id.
The Court concludes that the People did not meet their burden of
establishing the existence of any of the foregoing. Indeed, Vickery
rather candidly testified that after the marihuana was recovered, "we
searched the vehicle more for any kind of drugs of weapons[]" and
"that's why the car was searched more." See, Hearing Minutes at p. 40. This is exactly the type of "general rummaging . . . to discover incriminating evidence" that Johnson prohibits. See Johnson, 1 NY3d at 256 (internal quotation marks and citation omitted); see also People v. Gomez,
50 AD3d 407, 408 (1st Dept.) (suppressing physical evidence recovered
pursuant to alleged inventory search because the People failed to
establish compliance with Johnson), lv. to appeal granted, 2008 NY Slip Op. 74219(U) (June 10, 2008).
Further, the "hallmark" of a real inventory search is the creation of a meaningful inventory list of the vehicle's contents.

In order to meet the Johnson standard, prosecutors should:

  • Introduce into evidence the relevant police department's inventory search procedure.  The NYPD's is contained in its Patrol Guide.  A certified copy of the section on inventory searches should be introduced into evidence as People's Exhibit #1.  It is the most important piece of evidence at a suppression hearing where the People intend to rely on the inventory search exception.
  • Determine whether the police followed the procedure.  If the officers substantially deviated from the policy, it is likely the evidence will be suppressed.  However, minor deviations are not necessarily going to result in suppression.  I argued, for example, in People v. Moya that the police were justified in doing an on-the-scene search, rather than at the impound lot, because they had already discovered at least one drug trap and the car was blocking a bus stop and needed to be moved immediately.  There was insufficient time to wait for a tow truck.  For the officer's safety, he was justified in conducting the inventory search on the scene.  The First Department upheld the search.
  • Elicit from the police officer how he or she followed the procedure.  Have the officer discuss the training he received at the Police Academy concerning inventory searches.
  • Elicit from the police officer why he or she conducted the search. 
  • Introduce into evidence the inventory form that was created.  The NYPD uses a special voucher for vehicles.  It must be introduced into evidence.  If it was not created, the case will likely fall outside of the inventory search exception. 

In short, this is not an area in the police officer's direct examination that can be quickly glossed over.

In addition, police departments must ensure that their officers receive training on:

  • the reasons for the inventory search exception (officer safety, safeguarding valuables, protecting against false claims of loss);
  • the importance of conducting a thorough search.  After all, the purpose is not just to find weapons but also to locate valuables that should be inventoried;  and
  • how to fill out the department's inventory form.