Category Archives: Suppression

Appellate Review of a Joined Indictment with One Plea

In People v. Holz (4th Dept. 12/21/2018), the Fourth Department refused to review a suppression ruling of the lower court on a count in an indictment that did not have a final judgment, when the defendant had pleaded guilty to a related count in the same indictment.

At the trial level, the defendant was convicted of Burglary 2°. The indictment was for 2 different burglary incidents, on October 1, 2014 and October 3, 2014, and the defendant pleaded guilty to the October 1 incident, satisfying the both counts of the indictment. At the appellate level, the defendant was seeking suppression of jewelry recovered from a police stop that took place on October 3. The defendant did not plead guilty, nor was he convicted of the October 3 burglary.

The Court’s inability to do anything regarding the defendant’s contention is rooted in the limited nature of appellate jurisdiction. The majority cited a First Department case for the contention that “the judgment of conviction on appeal did not ensue from the denial of the motion to suppress, and the latter is, therefore, not reviewable” pursuant to CPL 710.70 (2). The issue the Court was faced with is not whether the lack of suppression is harmless, but whether the Court has jurisdiction to review the ruling at all.

The majority followed the precedents of its three sister departments in holding that a defendant may not plead guilty to one count of an indictment and then appeal the denial of a suppression motion of another count in which no judgement was rendered but was covered by the plea.

Presiding Justice Whalen dissented, because he found that the majority adopted too strict of an interpretation of CPL 710.70 (2). He noted that the defendants conviction did follow as a consequence or result of the suppression, and therefore, the majority ignored the plain meaning of the statutory language. (JC/LC)

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)

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

Sufficiently Related Crimes and Triggering the Indelible Right to Counsel

Under New York law, a defendant who is represented by counsel on a criminal matter may, under certain circumstances, be questioned by law enforcement about a different, unrepresented crime without violating a defendant’s right to counsel. In People v. Henry (Ct. App. 6/12/2018) (Wilson, J.) (7-0), the Court of Appeals, reversing the Appellate Division, held that police did not violate Mr. Henry’s right to counsel when they interrogated him about a murder charge for which he was not represented by counsel. (Full disclosure: counsel for the appellant in this case is an adjunct professor at St. John’s Law in our advocacy program.)

The case stemmed from a robbery at a tattoo parlor and a shooting at a gas station of a 19-year-old man in which the same getaway vehicle, a black Hyundai Sonata with dark tinted windows, was used at the scene of the crimes. Five days later, Mr. Henry, driving a black Hyundai Sonata with dark tinted windows, was pulled over for traffic infractions and arrested for marijuana possession. Mr. Henry was assigned counsel on the marijuana charges. Upon an inventory search of Mr. Henry’s vehicle, police found evidence in his car linking him to the robbery of the tattoo parlor. Three days after his release, Mr. Henry was again pulled over for traffic infractions, but this time was arrested and brought in for interrogation in connection to the robbery and murder. Mr. Henry was read his Miranda rights, which he waived, and subsequently admitted to being the driver of the vehicle involved in the robbery and murder. A grand jury returned an indictment charging Mr. Henry with multiple counts of Robbery 1º, CPW 2º, Criminal Possession of Stolen Property 5º, Murder 2º, and Criminal Possession of Marijuana 5º. Continue reading

DNA collection from cigarette held not to violate indelible right to counsel

Ever since DNA testing became prominent, police have tried all sorts of ways to collect DNA samples from suspects when there was insufficient evidence to get a court order.  One of the classic "tricks" is to offer a cigarette to a suspect and collect DNA from the saliva on the butt.

In People v. Gibson (Ct. App. 6/14/2011) (7-0), the police did just that.  The circumstances of the collection, however, raised an "indelible right to counsel" question.  The Defendant was suspected of a robbery.  He was arrested on a bench warrant in an unrelated matter in which he had counsel.  While locked up, the Defendant asked if he could see the detective, whom he was friendly with.  The detective then had a conversation with the Defendant about general matters.  Neither the robbery nor the unrelated criminal matter were discussed.  During the conversation, the two smoked cigarettes.  The detective later brought the cigarette butt to the lab for testing.  

A unanimous Court of Appeals held:

[T]he detective here did not ask defendant about a criminal case, and his actions — displaying a pack of cigarettes and providing one to defendant at his request — were not reasonably likely to elicit an incriminating response. The DNA that defendant voluntarily deposited on the cigarette butt was not a "response" or "statement" subject to exclusion under New York's right to counsel rules because the transfer of bodily fluids was not a communicative act that disclosed "the contents of defendant's mind."

(LC)