Category Archives: App. Div. 4th Dept.

“Dangerous Contraband”: What is it?

In People v. Flagg (4th Dept. 11/16/2018), the Fourth Department considered a defendant’s appeal despite the lack of preservation and expounded upon what constitutes “dangerous contraband” in a prison.

At the lower court, the defendant was convicted  by a jury of Promoting Prison Contraband 1° and CPCS 7°. These convictions arose after correction officers obtained a disposable glove containing four Tramadol pills from the defendant’s possession, while he was incarcerated at a local jail.

For the crime of Promoting Prison Contraband 1º, the People were required to prove that the defendant was (1) confined in a detention facility, and (2) knowingly and unlawfully made, obtained, or possessed any “dangerous contraband.” Dangerous contraband is defined by the Penal Law as “contraband which is capable of such use as may endanger the safety or security of a detention facility or any person therein.” The test that the Court of Appeals developed in People v. Finley to determine whether a substance is dangerous is “whether its particular characteristics are such that there is a substantial probability that the item will be used in a manner that is likely to cause death or other serious injury, to facilitate an escape, or to bring about other major threats to a detention facility’s institutional safety or security.”

On appeal, the defendant contended that there was legally insufficient evidence to establish that the Tramadol pills were “dangerous.” Although defense counsel moved for a dismissal, the Court noted that this was not enough to preserve the issue for review, but considered the defendant’s appeal in the interest of justice.

The People presented testimony from corrections officers that the pills were dangerous because inmates will fight over the drugs and inmates will also get high and try to fight the staff, or attack other inmates. Additionally, a Sheriff’s detective testified that if not prescribed to the person who was taking the pills, it could cause the person who ingested the pill’s death.

The Court found that this testimony was only discussing broad penological concerns and was speculative and conclusory. The evidence did not establish a substantial probability of a major threat to the facility, or death or serious injury. Specifically, the Court found that there was no specific evidence regarding the dosage of Tramadol or what it would do if ingested by an individual. Thus, the Court found that the People did not establish the “dangerousness” of the pills possessed by the defendant and therefore, the convicted should be reduced to Promoting Prison Contraband 2°.

Further, the Court noted that drugs in it of themselves are not inherently dangerous and the specific use and effects are necessary to show whether or not a drug is dangerous. The Court stated the determination of what types and quantities of drugs are considered dangerous is best left to the legislature. (JC)

Old Enough to Know Better, But Not Enough to Warrant a 35-Year Sentence

The Fourth Department in People v. Jones (4th Dept. 11/9/2018) considered whether it should, in its discretion, override the lower court’s decision on two matters: (1) whether the defendant should have been sentenced as a youth offender or as an adult, and (2) whether the sentence imposed was too harsh and excessive. The Court ultimately used its authority to amend the lower court’s decision on the second count in the “interest of justice.”

The defendant was convicted of Assault 1º and two counts of CPW 2º; he committed the crimes when he was 18 years old. Although CPL 720.10(3) provides that “a youth who has been convicted of an armed felony offense . . . is an eligible youth if the court determines that one or more of the following factors exist: (i) mitigating circumstances that bear directly upon the manner in which the crime was committed; or (ii) where the defendant was not the sole participant in the crime, the defendant’s participation was relatively minor although not so minor as to constitute a defense to the prosecution.” Therefore, the only relevant mitigating factors related to a CPL 720.10(3), or “eligible youth,” inquiry revolve around the circumstances of the crime itself, such as “a lack of injury to others or evidence that the defendant did not display a weapon during the crime.” Here, the Fourth Department affirmed the lower court’s decision in trying the defendant as an adult rather than an eligible youth because he carried a loaded gun on several occasions and shot a gang member.

Although the Court decided that trying the defendant as an adult was just, it determined that the 35-year sentence imposed on the defendant was too harsh. As a matter of discretion in the interest of justice, the Fourth Department modified the defendant’s sentence to run for an aggregate term of 25 years. The Court contemplated multiple factors in deciding to reduce the sentence; the defendant’s lack of a criminal record, the fact that the victim was attempting to commit an armed robbery of the defendant’s gang members, and the fact that the People offered a plea constituting a 20-year sentence all contributed to the Court’s decision to impose a more lax sentence.

Two judges dissented to the second part of the majority’s opinion; they did not believe the Court should amend the sentence in any way. This decision was not necessary in the “interest of justice.” Although the dissent noted the defendant’s low intellect and rough childhood, it was of paramount significance that the defendant was a dangerous individual who was known to carry a loaded gun. Thus, he should be “locked up for a long time.”

Searching Cell Phones: Confirmation to get the Warrant

In People v. Hackett (4th Dept. 11/9/2018), the Fourth Department analyzed a cell phone search under the 2014 Supreme Court decision Riley v. California to find that officers may send a confirmatory text message to a defendant’s cell phone when they have been in undercover communication with him to ensure they have the proper defendant. This confirmatory text may then be used to support a valid search warrant of the defendant’s cell phone. Continue reading

The Importance of Jury Note Readings, as Shown by a Pro Se Defendant

In People v. Timmons (4th Dept. 10/5/18), the Fourth Department allowed for a reconstruction regarding whether the trial court did not provide adequate notice to defense counsel when it did not read out a jury note verbatim.

The defendant in this case was tried and convicted by a jury of Murder 2º.  He appealed to the Fourth Department, and it affirmed the conviction. However, the defendant filed a writ of error coram nobis, because he contended his appellate counsel failed to raise an issue on appeal that may have merit: a violation of CPL § 310.30 in regard to a note from the jury in its deliberations.

CPL 310.30 requires the jury to return to the courtroom after notice to both the People and counsel for the defendant and give instruction as the court deems proper. When there is a substantive note from the jury, the court must provide counsel with meaningful notice of the content of the note, and the court must provide a meaningful response to the jury. This means actual, specific content of the jurors’ request must be disclosed. The Court of Appeals has held that a trial court’s failure to read a jury’s note verbatim deprives counsel of the opportunity to analyze accurately the jury’s deliberations and frame intelligent suggestions for the court’s response.

The defendant here contended that the trial court failed to read the note from the jury verbatim, and the transcript shows that instead in the reading both in front of and outside the presence of the jury, omitted to read the jury’s request to have a read back of the medical examiner’s testimony, and to have that testimony read first.

The People contended that it was the transcript that was in fact incorrect, and that the trial judge did read verbatim the jury note. They relied upon an affidavit from the court reporter that was submitted in response to the defendant’s writ. The affidavit stated that a stenographic error may have resulted in a transcript that did not accurately reflect whether the court read the entire content of the note verbatim in open court prior to responding to the jury.

The Fourth Department held that the alleged error in the transcript of the court’s on the record reading of the note was subject to a reconstruction hearing because the trial judge is the final arbiter of the record certified to the appellate courts. Therefore, the case was reversed and remitted to the County Court for the reconstruction hearing. (JC)

 

Preserve, Preserve, Preserve – And Don’t Threaten Eyewitnesses

In People v. Larregui (4th Dept. 9/28/18), the Fourth Department did not review many of the claims that the defendant raised based upon the fact that they were not preserved for review. The one issue the court did review revolved around the fact that a witness testifying about an event about a month following the robbery at issue.

In this case, the defendant was convicted by a jury of Robbery in both the First and Second Degree, and Assault in the Second Degree.  The case arose from an incident in which two women posing as prostitutes lured a victim into ambush by three masked men, who assaulted him, held a gun to his head and stole $200 cash.

The defendant in this case made several contentions that the court knocked down for lack of preservation: (1) that the evidence was legally insufficient to support a conviction because there was not corroborative evidence for the accomplice testimony; (2) the guilty verdict was repugnant because one of her accomplices was acquitted on all counts of the indictment; and (3) that prosecutorial misconduct deprived her of a fair trial inasmuch as she failed to object to any of the alleged improprieties.

The court noted that in order to preserve issues for review there must be objections “specifically directed at the alleged error.” Based upon the fact that there are so many issues that were dismissed on the basis that they were not preserved for review, it is clear that the Fourth Department values highly the notion of need to preserve issues for review. If an issue is not directly objected to, then it is not considered to be preserved for appellate purposes.  None of the issues were reversed in the interest of justice.

One issue that the court directly addressed was that the defendant objected to the trial court’s allowance of an eyewitness to testify regarding an incident that took place a month following the alleged robbery. The eyewitness testified that the defendant came to the eyewitness’s home, tried to break down the door, and threatened the eyewitness with violence for talking to the police. While the court does note that the defendant preserved the issue for review, it nevertheless rejected the defendant’s contention because evidence of threats made by the defendant against one of the People’s eyewitnesses, despite being prior bad acts, is admissible on the issue of consciousness of guilt. The Fourth Department noted that this was not an abuse of discretion because the probative value outweighed the prejudicial effect.  (JC/LC)