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As we have discussed in the past often in New York criminal cases suppression of the evidence may be your best (or only defense.  As has been widely reported in the media, all charges were recently dismissed against one of our clients after the Court granted our motion to controvert a search warrant and suppressed all of the evidence recovered during a search of our client’s house.  While in can be difficult to have a motion to controvert a search warrant granted by the Court, recent case law makes it easier to file and win such a motion.  When a motion to controvert a search warrant is granted, the Court is deciding that the search warrant was not valid and therefore the evidence obtained during the execution of the search warrant may not be used in Court.

Article 710 of the New York Criminal Procedure Law sets out the procedure to file a motion to suppress tangible evidence that is obtained  as a result of an “unlawful search and seizure.” The United States Court of Appeals for the Second Circuit, which covers New York State has established that a warrant must at a minimum have three components.  One is that the warrant must identify the specific crime for which law enforcement has established probable cause.  Then the warrant must particularly describe the places that are allowed to be searched and the things that may be seized with their relationship to the crime.

New York’s highest Court, the New York Court of Appeals has further refined New York’s warrant requirement.  (See,  People v. Brown, 96 NY2d 80).  At a minimum the warrant must particularly describe the places to be searched and the things to be seized.  The idea is to ensure that the police have no discretion in either the places to be searched or the things that are permitted to be seized.  Exploratory warrants that give police the discretion to look around for evidence are unlawful.  If either of those elements are lacking the warrant may be invalid and any evidence suppressed.  This is true even though a Judge has signed and authorized the search warrant.

In a recent New York gun crime case decided in a Appellate Court, the defendant unsuccessfully appealed his firearm conviction by arguing that his original arrest was based on unreliable information. His sentence was however reversed on other grounds.  According to the defendant, there was insufficient evidence that the informant who had tipped police officers off to his activity was reliable and trustworthy. Because it was not clear whether or not the officers could trust the informant, it was unreasonable for the officers to arrest the defendant based on the single tip. The court considered the defendant’s argument but ultimately denied his appeal, citing the officers’ long-term relationship with the informant as evidence of the informant’s trustworthiness.

Facts of the Case

According to the opinion, a confidential informant let police officers know that there was an individual in a specified location with a gun in his hand. Upon hearing this tip, officers went to the scene and found the person matching the informant’s description. The officers approached the person, who later became the defendant in this case, and placed him under arrest. Upon his arrest, the defendant immediately stated, “I have a firearm in my waistband.”

The officers recovered the firearm and the defendant was charged and convicted of attempted criminal possession of a weapon in the second degree. He appealed shortly thereafter.

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Recently, an appellate court issued an opinion in a New York criminal defendant’s appeal, arguing that a trial court erred in denying his motion to suppress evidence found in his vehicle. According to the court’s opinion, police were involved in a high-speed chase with the defendant that ended when the defendant crashed his car into a marsh. Police arrested the defendant, and a private company towed his vehicle. Per the towing service’s protocol, the defendant’s vehicle was inventoried. During the inventory, employees discovered $10,000 worth of automotive tools in a nylon bag. The employees believed that the tools were stolen and contacted the police. An investigator was aware that a local automotive store was burglarized recently and noticed one of the drills inside the bag. The investigator walked around the vehicle and noticed other similar items in plain view. The police then obtained a warrant to search the vehicle, where they found numerous reported stolen items.

Before trial, the defendant requested to proceed pro se and suppress the evidence. The court granted the request and proceeded with a Mapp hearing. A Mapp hearing is relevant when a defendant contests the admissibility of physical evidence that law enforcement obtained during an illegal search. If a judge finds that the evidence was acquired illegally, the prosecutor cannot use the physical evidence obtained during the search against the defendant.

In this case, during the Mapp hearing, the officer testified that he ran the defendant’s license plate and discovered that his license and registration was expired. However, when he turned on his emergency lights, the defendant did not respond and then fled. After police detained the defendant, they noticed the items in the vehicle but did not seize any of the tools. The court concluded that the trial court properly denied the defendant’s motion to suppress. They reasoned that the arresting officer was permitted to run a license and registration check through the police database, even without suspicion of criminal activity. Moreover, the defendant’s failure to stop and then flee provided officers with probable cause to detain him.

Facial recognition is a widely-used technological device that uses cameras and artificial intelligence to identify facial features and track people. In some cases, facial recognition is a useful tool in identifying individuals, allowing them to enter buildings, computer systems, phones, and log in to accounts swiftly and safely. However, like many types of technology, facial recognition is not foolproof. The technology flaws can lead to misidentification and false New York criminal charges. It is essential that those facing criminal charges based on facial recognition technology consult with a New York attorney to discuss their rights and defenses.

The New York Times recently reported on another false arrest and incarceration based on an incorrect facial recognition match. The arrest arose when police accused a man of shoplifting candy and attempting to hit an officer with his car. Officers used facial recognition software, and identified the falsely accused man, even though he was over 30 miles away when the incident occurred. The man spent nearly two weeks in jail and spent approximately $5,000 in defense fees before the case was dismissed almost a year later. The man is suing the Woodbridge, NJ Police, prosecutor, and City, for violating his civil rights, based on his false arrest and imprisonment.

In the man’s case, police responded to a call about a person stealing items from the gift shop. When police approached the individual, he offered to pay for the items and provided officers with a fraudulent license, before running into his car and driving off. Police submitted the license photo to a state agency that runs the facial recognition software. The agency stated that they received a match to the falsely identified man. Although the man lived over a half an hour away, worked at a grocery store, and had limited similarities to the license photo-police arrested and charged him. This charge was particularly frightening for the man because of his history with the criminal justice system; if he were convicted, he would have received a long sentence. He recounted that he almost took the prosecutor’s plea deal out of fear. Fortunately, he was able to obtain proof that he was at a pharmacy when the incident occurred.

Recently, a state appellate court issued an opinion in a New York homicide case involving a defendant’s appeal of his conviction. The defendant appealed the lower court’s decision to admit his statement to police in the moments after the murder. However, the appellate court found that there was no error in admitting the statement. The court further explained that, if there was any error in admitting the statement, doing so was harmless.

The Facts of the Case

The defendant was alleged to have killed another man, whom he met out on the street around 2 a.m. According to the court’s opinion, the defendant was drinking beer with friends. Throughout the evening, the defendant expressed some violent thoughts, and discussed his gang membership.

Recently, a state appellate court issued an opinion in a New York manslaughter case, affirming the defendant’s conviction after dismissing his challenge to the way in which the prosecution obtained a sample of his DNA. In so doing, the court explained how law enforcement officials can legally obtain DNA evidence from a suspect who has yet to be charged with a crime.

The Facts of the Case

According to the court’s opinion, four men belonging to the gang, Young Gunnaz, drove a Gold Nissan into a rival gang’s territory. The person in the car’s passenger seat exited the vehicle and shot and killed a 16-year-old. The incident was caught by a surveillance camera, but no identification could be made from the footage.

Law enforcement tracked down the owner of the Gold Nissan, who became a cooperating witness. He identified the defendant as the shooter, and explained that, after the shooting, the men went back to their apartment building. The driver allowed the police to take a DNA sample from the car’s front passenger seat area.

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Throughout the New York criminal trial process, it is not uncommon for comments or evidence to come into the trial that could prejudice either side. Courts take precautions to instruct attorneys and witnesses not to say certain things, and to avoid particular topics. However, the jury will inevitably be exposed to comments or evidence that it should not have seen or heard. When this happens, it may result in a mistrial. However, courts are reluctant to declare a mistrial unless absolutely necessary and, in many cases, will provide the jury with a “curative instruction” instead.

Recently, a state appellate court issued an opinion in a New York assault case discussing whether a juror’s comments during the trial necessitated a mistrial. Ultimately, the appellate court held that the trial court’s curative instruction was sufficient to cure any prejudice to the defense.

The Facts of the Case

According to the court’s opinion, the defendant was on trial for second-degree assault. Two other men were also on trial for the same crime. During the trial, in an attempt to goad the complaining witness, one of the defendants’ attorneys repeatedly asked the complaining witness whether he referred to the defendant by a racial slur. The defense attorney used the actual word, rather than self-editing. After repeating the word multiple times, one of the jurors stood up and exclaimed, “Please, I am not going to sit here . . . and have you say that again. Don’t say it again or I’m leaving. . . . I find that very offensive.”

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Earlier this month, a state appellate court issued a written opinion in a New York gun case discussing the defendant’s motion to suppress a weapon that police officers found in his car. The case presents a unique issue in that a federal marine interdiction officer – not a police officer – conducted the traffic stop. Ultimately, the court held that the stop was valid.

The Facts of the Case

According to the court’s opinion, a federal marine interdiction agent with the United States Customs and Border Protection was driving an unmarked car when he pulled onto the highway. As he did so, the agent noticed a pair of headlights approaching quickly in his rear-view mirror. As the lights got closer, the driver of that car slammed on his brakes to avoid hitting the agent’s vehicle. The agent noticed as the driver continued to drive erratically.

The agent called police on his personal cell phone to report the incident. At some point, the agent activated his blue-and-red emergency lights and stopped the car the defendant was driving. The agent waited with the defendant until the police arrived. Police searched the defendant’s car and found a gun.

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The COVID-19 pandemic had a profound impact on the country and its ability to function. However, the effect of the pandemic was felt the hardest in New York City. As the number of new cases continues to decline, government functions are starting to resume. Of course, this includes New York criminal trials, which truly represent the backbone of our criminal justice system.

New York courts will need to deal with many challenges as they begin to hear more cases. The old way of doing things may no longer make sense, with jurors, defendants and supporters all crammed into crowded courthouses. Thus, judges, lawmakers, and court administration will need to come up with solutions to address these issues which are consistent with the constitutional mandate for a speedy and public jury trial.   It is critical that whatever new procedures are used, these procedures respect the constitutional rights of defendants.

One issue courts are wrestling with is how to handle live witness testimony. Many witnesses are already reluctant to take the stand and testify at trial. However, with the threat of COVID-19, even fewer witnesses will likely be willing to come to court. Recently, a state appellate court issued a written opinion in a rape case in which an expert witness was permitted to testify over two-way video. The case contains an interesting and important discussion of a defendant’s right to confront the witnesses against him.

Earlier this month, a state appellate court issued a written opinion in a New York robbery case involving the defendant’s motion to suppress an identification made by the complaining witness, as well as statements made by the defendant after his arrest. Ultimately, the court held that because the prosecution failed to establish that the defendant’s arrest on an unrelated matter was supported by probable cause, the subsequent identification and statements were “fruit of the poisonous tree,” and must be suppressed.

According to the court’s opinion, a man was robbed in Queens. A day or two after the robbery, the assigned police officer provided the complaining witness with a photo lineup, where he identified the defendant. The officer filled out an identification card, which essentially put other police officers on notice that the defendant should be arrested. Several days later, the assigned officer was informed that the defendant was in custody based on an unrelated matter. The officer brought the complaining witness to the station, where he identified the defendant. The defendant then gave a statement to the police.

The defendant filed a motion to suppress the witness’s identification, as well as the statement he made following his arrest. The trial court denied the motion, finding that the “fellow officer rule” justified that defendant’s arrest. Under the fellow officer rule, if an arresting officer lacks probable cause to arrest, the arrest may still be valid if the arresting officer makes the arrest based on communication with a fellow officer who had information justifying the arrest. The defendant was convicted of robbery and appealed the denial of his motion to suppress.

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