People Successfully Defend Police Contact Under Level One of DeBour; Court Suppresses Under Higher Level

People v. Hill (Ct. App. 5/2/2019) is an interesting case that highlights an important point about the DeBour four levels of police-citizen interaction.

This case involved a run-of-the-mill “clean halls” stop in NYCHA housing. The defendant was seen repeatedly entering and exiting a public housing building. The police stopped him and asked for his identification, which he provided. An officer took the ID to the apartment that the defendant was supposedly visiting; the occupant did not know the defendant. The defendant was arrested for trespass. During a search incident to lawful arrest, the police found 42 bags of crack cocaine.

The defendant argued that this was a Level 3 intrusion and required reasonable suspicion, which was lacking. The People argued that it was a Level 1 request for information, which required only an objective, credible reason.

The Court of Appeals agreed that, at the inception, the encounter was justified under Level 1 of DeBour. However:

the record demonstrates that the encounter thereafter rose beyond a level-one request for information, which the People failed to justify as lawful. Consequently, the People have failed to preserve any argument that the encounter in this case was justified under levels two or three of DeBour.

If I am reading the Court’s opinion correctly, the People failed to argue in the alternative before the motion court that, even if this was a Level 3 encounter, it was justified by reasonable suspicion. From a preservation point-of-view, both sides should always argue in the alternative in case a court concludes that a different DeBour level applies than the party originally asserts. (LC)

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)