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

Failure to Timely File Criminal Leave Application Does Not Constitute Ineffective Assistance Under State Constitution

In People v. Grimes (Ct. App. 10/23/2018) (5-2), the Court of Appeals held that, under article I, section 6 of the New York State Constitution, a defendant is not entitled to a writ of error coram nobis to bypass the limitation set by the legislature in CPL 460.30 in which to file a criminal leave application. Judge Wilson authored a dissent, joined by Judge Rivera. Continue reading

Court of Appeals weighs in on definition of “serious injury”

What type of injury constitutes serious physical injury under New York’s Penal Law? This question of fact depends on the jury and, because of the legal sufficiency standard, Appellate Courts are hard-pressed to change decisions. In People v. Garland (Ct. App. 11/20/2018) (5-2), the defendant fired five shots at a crowd and hit a bystander in the leg. The medical records revealed that the bullet became stuck in the soft tissue near the victim’s femoral artery; the bullet was never removed from his leg because of the medical risks of doing so. Continue reading

Appeal Waivers

I have a piece in tomorrow’s New York Journal arguing that waivers of the right to appeal serve a valid and important purpose in the criminal justice system.  Here is an excerpt:

The settlement of a case signifies the end—not the beginning or continuation—of litigation. This is true in both civil litigation and criminal cases. By pleading guilty, the accused is conceding that the People have the requisite proof beyond a reasonable doubt and that a trial is unnecessary. Typically, the relinquishment of trial-based rights is given in exchange for some benefit at sentencing. The parties have reached a mutual agreement, and the case should end.

Appellate litigation is not without costs. The indigent defendant is entitled to a court-appointed lawyer, the People must assign an assistant to write and argue a brief, and the intermediate appellate court must take the time to hear and decide the case. Doing all of this in the context of where the parties have come together to reach an agreement is a waste of resources for all sides and the court.

And so, it is no wonder that district attorneys and some judges insist on appeal waivers as part of guilty pleas. But the choice to accept or reject such a waiver always remains with the defendant, a point the Court of Appeals emphasized in People v. Seaberg, 74 N.Y.2d 1, 8-9 (1989), when it upheld the constitutionality of appeal waivers. People v. Batista, 2018 N.Y. Slip Op. 7445 (2d Dept. Nov. 7, 2018), reminds plea courts that they must not conflate appeal waivers with the litany of rights that a defendant gives up by pleading guilty.

Thus, it is immaterial whether such waivers are asked for “across-the-board”; an individual defendant is always free to reject it.

At a time when our courts—particularly our intermediate appellate courts—are stretched thin (see Andrew Denney, “NY Appeals Judges Say Trial Courts Should Act to Quell Appeal Waiver Challenges,” N.Y.L.J., Nov. 9, 2018 (noting the delays in the overburdened Second Department)), precious judicial resources should be reserved for those cases where there are meritorious arguments in live cases, not ones where the parties have concluded that litigation should end. If the defendant in a particular case disagrees, he or she should reject any plea offer that contains an appeal waiver, proceed to trial, and, if convicted, litigate an appeal, as is his or her constitutional right.