Category Archives: App. Div. 3d Dept.

Express consent to blood draw does not require arrest

When a defendant expressly consents to a blood draw, the lack of arrest does not make the subsequent taking of blood invalid.  In People v. Centerbar (3d Dept. 1/20/2011), the Defendant was taken to the hospital after his motorcycle crashed, killing his passenger.  At the hospital, the Defendant consent to a blood draw to test for his BAC.  On appeal, he argued that the blood draw was unlawful because the police had not arrested him first.  The Third Department rejected this argument.  The requirements of (1) a valid arrest and (2) a blood draw within two hours of the arrest are only for an application of the state's implied consent law.  "[T]he arrest requirement in the implied consent law, like the two-hour time frame therein … has no application where a driver expressly and voluntarily consents to the administration of a blood alcohol test."

The court went on to conclude that the Defendant's consent was the product of free will.  Although in pain, the Defendant was communicative, not restrained, and not sedated.  The Defendant was fully alert.  The consent was obtained prior to the Defendant's condition deteriorating, which required emergency surgery.  (LC)

Vindictive PFO finding

Without new evidence presented at a retrial, an added status of persistent felony offender necessarily punishes a defendant for making an appeal. In People v. Brown (3d Dept. 10/28/2010), the Appellate Division, in 2009, had previously reversed the Defendant's conviction for Stalking 2°. At retrial, the Defendant was again found guilty of Stalking 2°.  This time, the Defendant was adjudicated as a persistent felony offender and sentenced to 15-years-to-life.

The Defendant argued—and the Appellate Division “reluctantly” agreed—that because no new evidence was presented during the second trial that warranted a PFO finding, the defendant was “punished” for taking an appeal. Since no new evidence was presented at the second trial, imposing a life sentence would essentially punish the defendant for making an appeal. As a result, the court vacated the sentence and remanded for resentencing.

The People noted, unsuccessfully, that they had filed a PFO application before the first conviction.  However, for some reason, they withdrew the application.  They explained in the second appeal that they did so because of concerns that the PFO statute was unconstitutional.  The Appellate Division still found vindictiveness.  "The District Attorney does not represent that he was unable to pursue persistent felony offender status for defendant at the first trial or that information critical to that effort only became available after the application was withdrawn and sentence was first imposed. Under the circumstances, the disparity between the two sentences only serves to reinforce the perception that defendant is, in fact, being punished for prosecuting a successful appeal of his first conviction."  (RB/LC)




AD1, AD2, AD3, & AD4 – New Decisions

It is summertime and the appellate courts are still pretty quiet.  However, the are a few, new decisions from the First, Second, Third, and Fourth Departments.  (LC)

The Third Department allows a “police oversight” to overcome preclusion

Recently, in People v. Ruple (3d Dept. 6/10/2010), the defendant was convicted of Burglary 2º after taking a desktop computer from an insurance office and selling it to an acquaintance who contacted the police and turned it in. Subsequently, the computer was turned over to the manager of the insurance business. Defendant moved to preclude evidence based on the People's failure to comply Penal Law § 450.10, which requires prior written notice to the defense before releasing seized property back to its rightful owner.  The People maintained that even though the written notice requirement was violated, the computer was turned over the to the manager because it contained files necessary to run a business. As such, it was still available for inspection at the insurance company and the defendant suffered no prejudice.  The trial court agreed, denying the defendant's preclusion request but issuing an adverse inference instruction to the jury.

According to People v. Perkins, in the event of noncompliance which causes prejudice to the defendant, the court must instruct the jury that it may consider the failure in determining the weight to be given such evidence. Unless a defendant demonstrates undue prejudice, the court will not preclude the introduction of evidence. And, according to People v. Kelly, dismissal should not be used where less drastic measure can rectify the harm done by the loss of evidence. And, this decision lies in the discretion of the trial court.

The Court of Appeals affirmed the defendant's conviction, finding the jury charge sufficient to ameliorate any prejudice. Because the return of the property to the manager was merely a "police oversight," the court did not – rather, "could not" – conclude that the jury instruction sanction was an insufficient remedy.  The court also noted a number of other remedies that the defense could have pursued, including subpoenaing the insurance company's IT employees to testify about the contents of the computer upon its return as well as cross examining the testifying manager's identification of the computer.  (RB/LC)

AD2 & AD3 – New Decisions

There are new decisions from the Second and Third Departments.  (LC)