2nd honker
Jan. 19, 2016
News Picks from NYSDA Staff
News Picks
Not Moving to Reopen Suppression Hearing Was IAC. People v Kindell, decided on January 7, serves as a reminder that trial counsel must remain alert to all aspects of the case that could be affected by factual testimony. 2016 NY Slip Op 00027 (1st Dept 1/7/2016). The First Department held that a lawyer provided ineffective assistance by failing to ask that a suppression hearing be reopened after a witness's trial testimony contradicted the hearing testimony of police officers. At issue was how police found burglary tools in a bag. The civilian trial witness's statement - that the bag was closed and in the defendant's hand when police arrived - was completely at odds with police testimony at the hearing; the bag was described there as open at the defendant's feet with the tools in plain view. In these circumstances, the majority said, as noted in the New York Law Journal on January 12, "Kindell did not have to make a CPL 440 motion, the normal means of raising an ineffective assistance claim, because 'defense counsel did not have any reasonable strategy for failing to move to reopen the suppression hearing ....'"
The Appellate Division rejected the prosecution's argument that the defendant was presumed to know what happened at his arrest and therefore could not meet the requirement that the facts to be presented at a reopened hearing could not have been discovered, with due diligence, before the initial ruling. The court also rejected arguments put forward in a dissent by Justice Andrias, including that it was necessary to explore trial counsel's reasoning before determining if the behavior constituted ineffective assistance.
Third Department Vacates Conviction and Orders Judicial Diversion. In People v Cora (2016 NY Slip Op 00066 [3rd Dept 1/7/2016]), the Appellate Division vacated the defendant's conviction of second-degree criminal possession of marijuana and split sentence (6 months/5 years' probation) on the ground that the trial court erroneously denied his application for judicial diversion under CPL article 216. The lower court ruled the defendant had failed to establish that substance abuse was a "contributing factor" to his crime, which involved possession of four pounds of marijuana.
Reversing, the Third Department held that "'[t]he statute does not require that a defendant's ... substance abuse or dependence be the exclusive or primary cause of the defendant's criminal behavior' ...." Here, the defendant testified his "progressively escalating marihuana use ... advanced to daily use ... and culminated in [him] becoming a mule, transporting larger quantities of marihuana across state lines ... in order to receive compensation in the form of marihuana." His application for judicial diversion was also supported by a substance abuse counselor who testified that the defendant was "cannabis dependent." The court also rejected the lower court's conclusion that this proof amounted to mere "recreational" use. The decision is significant for its recognition that a trial court's denial of a judicial diversion application can be a meritorious appellate issue even after a guilty plea or trial conviction. 
Second Department Holds Father's Appeal from Finding of Contempt and Incarceration Not Moot. An appeal from a Queens County order of commitment "is not academic in light of the enduring consequences that may potentially flow from such an adjudication." Matter of Nicola V., 2015 NY Slip Op 09698 (2nd Dept 12/30/15). The Second Department noted that the fact that the father had already served four months for allegedly violating an order of protection doesn't preclude revisiting the facts on appeal and, on review of the record, reversed the order. The Appellate Division denied the petition to find the father in contempt because the agency "failed to demonstrate beyond a reasonable doubt that the father willfully violated the order of protection ...." The decision does not state whether the appellant requested a stay of judgment or an expedited appeal.
City Court Rules Mere Odor of Marijuana Not Reasonable Suspicion of Crime. An Ithaca City Court judge has ruled that the mere odor of marijuana emanating from a pedestrian, without more, does not create reasonable suspicion that a crime has occurred and consequently does not authorize police to forcibly stop, frisk, or search the individual. In People v Brukner (2015 NY Slip Op 25434 [Ithaca City Ct 12/31/2015]), the police asserted they smelled the pungent odor of burnt marijuana coming from the vicinity where four individuals were congregated on private property adjacent to a closed public park. On approach, two individuals walked away. The defendant, in response to the police request for identification, begrudgingly acquiesced. The officers then ordered him to turn around, face the wall, and put his hands behind his back claiming the detention was authorized to check for weapons, officer safety, and to search for marijuana. The defendant refused to comply and was ultimately forcibly subdued, handcuffed, and searched, revealing a pipe on his person; nearby the officers found a metal tin containing a small amount of marijuana secreted on the ground near the defendant's cell phone. He was arrested and charged with unlawful possession of marijuana, obstructing governmental administration, and resisting arrest.
After a hearing, the court issued an opinion setting forth a comprehensive examination of the relevant law. The court held that the circumstances permitted no more than a second level intrusion under People v DeBour (40 NY2d 210 [1976]); a level three intrusion was unauthorized because, absent "the tell-tale glowing end of a burning blunt, a smoking pipe, or even the effervescent waft of a tiny cloud of smoke coming from the vicinity of the Defendant and his companions," there was no reasonable suspicion that a crime had been or was being committed, merely a potential violation. Refusing to extend to pedestrians the automobile exception based on the odor of marijuana as upheld in People v Chestnut (43 AD2d 260 [3rd Dept 1974], aff'd 36 NY2d 971 [1975]) and its progeny, and rejecting the prosecution's submitted "plain smell" exception to the search warrant requirement, the court suppressed the evidence as fruit of the poisonous tree.
IDP Releases Know Your Rights Materials on ICE Home Raids & Community Arrests. The Immigrant Defense Project (IDP), in partnership with the Center for Constitutional Rights, has released "Know Your Rights materials to help directly affected communities understand and respond to ICE enforcement in their homes and in their neighborhoods." There is a two-page flyer in English and Spanish and a more detailed booklet. "The booklet expands on the flyer and includes trends IDP has identified as well as additional details on what to do if you or a loved one is detained by ICE."
Third Department Now Live Broadcasting Oral Arguments. As of Jan. 6, 2016, the Third Department is live broadcasting oral arguments on its website."Oral arguments at the Appellate Division, Third Department are typically scheduled for two weeks every month, with the Court's January term continuing through Thursday, January 14, 2016. There is usually one session of oral arguments each day, beginning at either 9:30 a.m. or 1:00 p.m." Daily session calendars are available on the court's monthly term calendar.
Association News
New Issue of NYSDA's Backup Center REPORT.
The latest issue of the Public Defense Backup Center REPORT (November-December 2015) is now available on NYSDA's website; the print version will be mailed out shortly.
VDP, Rabe, Receive Recognition from Veterans Council. NYSDA and its Organizing Coordinator, Anne Rabe, have received awards from the New York State Council of Veterans Organizations for the work of NYSDA's Veterans Defense Program and for advocacy for proposed legislation entitled Justice for Our Veterans Act.
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