Category Archives: Case Summaries

“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.”

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.

Continue reading

Suazo: Where We Go From Here

Yesterday, the New York Court of Appeals held that, as a matter of federal constitutional law, a noncitizen has a right to a jury trial for a petty offense if he or she can show that the charged crime may result in deportation. The majority’s reasoning boils down to the following. A person has a right to a jury trial when he or she is facing a “serious crime,” which has mostly been measured by the potential length of the sentence; “seriousness” should also consider other types of consequences; and deportation or removal is one such type of serious consequence, thus requiring a jury trial on demand. In this post, I’ll analyze the Court’s decision and predict where we’re headed in this area.

Continue reading

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)