In two significant decisions this week, the Circuit giveth in one, and taketh away in another: in Walker, the Circuit vacated a 360-month EDNY sentence agreeing with defendant that the government breached its plea agreement when the government sought a substantially higher sentence than that estimated in the plea agreement. In Lyle & Van Praagh, however, the Circuit narrowed two significant Fourth Amendment automobile search rules, (1) backing away from the Supreme Court’s decision in Byrd v. United States, which had held that the fact that a person is not an authorized driver of a rental car does not automatically defeat his otherwise reasonable expectation of privacy; and (2) finding that an inventory search of a car is lawful even if not performed pursuant to standardized procedures.
On matters of New York State law, during a week in which the state legislature passed, and the governor signed, once-in-a-generation discovery reform, the Court of Appeals, incongruously, continued to narrow the rights of defendants.
Second Circuit
On Monday, in United States v. Lyle & Van Praagh, the Circuit affirmed the defendants’ SDNY methamphetamine-trafficking convictions, rejecting their challenges to, among other things, Judge Crotty’s denial of their motion to suppress evidence obtained pursuant to a warrantless search, and the admission of Defendant Lyle’s statements made at a proffer session.
Throughout 2013, defendant Van Praagh regularly sold large quantities of methamphetamine. These deals generally occurred once a week and often took place in Manhattan hotels. Van Praagh also sold smaller quantities out of his apartment in Queens and through in‐person deliveries to his customers. On May 29, 2013, Van Praagh checked into a Manhattan hotel. That night, he sold pound quantities of methamphetamine to several customers. The next day, he checked out of the hotel but accidentally left approximately a pound of methamphetamine and $20,000 cash in the hotel room safe. Hotel staff found the drugs and money and called NYPD and officers arrived to seize the drugs and cash. After Van Praagh realized his mistake later that
day, he returned to the hotel, where he was arrested by the NYPD. During his arrest, the officers seized a cellular telephone and over $1,000 cash from Van Praaghʹs pocket.
On December 11, 2013, NYPD officers observed defendant Lyle park and exit a car in midtown Manhattan. The officers knew Lyle to be involved with Van Praagh. They noticed a knife clipped to Lyleʹs pants, which they later determined to be an illegal gravity knife. The officers approached Lyle as he was closing the trunk of the car. Lyle told the officers that he was legally permitted to carry a gravity knife because he was a member of the stagehands union and used the knife to perform his job. Lyle initially said he had not driven the car but when the officers informed him that they had seen him driving it, Lyle admitted as much. When asked for identification, Lyle produced a New York State ID with the expiration date scratched off. The officers confirmed that Lyleʹs driverʹs license was suspended. The officers also determined that the vehicle Lyle was driving was a rental car and that Lyle was not an authorized driver under the rental agreement. Lyle told the officers that his girlfriend had rented the car and given him permission to drive it. Lyle asked if the car could be left at the location for his girlfriend to pick up. The officers denied the request and impounded the vehicle. At the police precinct, an inventory search was conducted. Over one pound of methamphetamine and approximately $39,000 cash was recovered from the trunk of the car.
Following his arrest, Lyle participated in a proffer session with the government in hopes of reaching a cooperation agreement. A proffer agreement was executed, stipulating that the government would not use any of Lyleʹs statements made during the proffer sessions against him, except ʺto rebut any evidence or arguments offered by or on behalf of [Lyle].ʺ At the proffer, Lyle admitted to limited involvement in the sales of methamphetamine with Van Praagh and his clients.
Before trial, Lyle moved to suppress the physical evidence recovered from the search of the automobile. In an affidavit filed in support of the motion, Lyle admitted that (1) just prior to his arrest, he had been driving the car that had been rented by his girlfriend with her permission; (2) he possessed a gravity knife that day; (3) he initially told the police officers he had not been driving the car but later admitted to driving the car; and (4) his license was suspended at the time.
Following an evidentiary hearing, the district court found that there was probable cause for Lyleʹs arrest based on his possession of a gravity knife. The court then concluded that the search of the rental car was justified on two independent bases. First, Lyle had no reasonable expectation of privacy in the rental car because he was not an authorized driver under the rental agreement. Second, the search of the rental car was a valid inventory search. The court also found that Lyleʹs post‐arrest statements were made voluntarily and pursuant to a validMiranda waiver.
The Circuit upheld the search of the vehicle, agreeing with the district court that: (1) Lyle did not have standing to contest the search because he had no reasonable expectation of privacy in the rental car, and (2) the inventory search of the rental car was reasonable. The Circuit began its analysis with the Supreme Court’s recent decision in Byrd v. United States, 138 S.Ct. 1518, 1531 (2018), which had held that the ʺmere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.ʺ But,
departing from the rule followed by the Eighth and Ninth Circuits, the Circuit found that Lyle lacked standing to challenge the search of the car because he was an unauthorized driver and an unlicensed one. His use was unauthorized and unlawful. Under the circumstances, he had no reasonable expectation of privacy in the car.
The Circuit found that, even if Lyle had standing to contest the search, the inventory search was lawful because it was reasonable. Despite the search not being conducted pursuant to routinized procedures, as required by the Seventh and Eighth Circuits, the Circuit, applying a “totality of the circumstances” approach, upheld the inventory search as reasonable.
The Circuit also found that the district court properly admitted evidence of statements Lyle made at the proffer session. Lyleʹs proffer agreement contained language that allowed his statements to be used at trial ʺto rebut any evidence or arguments offered by or on behalf of [Lyle].ʺ Lyleʹs counsel stated during opening argument that ʺwe dispute [] the idea that [Lyle] was a dealer.ʺ This opened the door to the government’s use of the proffer statements because Lyle’s statements “fairly rebut[ted]” his counsel’s opening statement that Lyle was not a drug dealer. The Circuit also found that the admission of Lyle’s redacted statements did not violateBruton v. United States, 391 U.S. 123 (1968), because they had been appropriately sanitized.
The Circuit’s decision can be found here.
On Thursday, in United States v. Walker, the Circuit vacated the 360-month sentence imposed by Judge Garaufis following defendant’s conviction in EDNY of one count of conspiring to distribute at least 200 grams of crack cocaine, agreeing with defendant that the government breached its plea agreement when, based on information that it knew at the time of the plea, it sought a substantially higher sentence than that estimated in the plea agreement.
Defendant was charged with being part of a violent criminal organization based in Brooklyn’s Gowanus Houses, and for his involvement in the distribution of heroin and crack there. Defendant was alleged to be an enforcer.
In 2011, he pleaded guilty—pursuant to a plea agreement—to a single count of conspiring to distribute at least 200 grams of crack cocaine in violation of 21 U.S.C. § 846. The government estimated that defendant’s likely adjusted offense level under the guidelines was 29, predicated on the following calculation: (1) a base-offense level of 30 derived from the drug quantity calculation in 2D1.1; (2) a 2‐point enhancement for possession of a weapon based on a firearm recovered from defendant’s vehicle at the time of his arrest; and (3) a 3‐point reduction for acceptance of responsibility. This resulted in an estimated guidelines range of 108‐135 months. The Probation Department’s Pre-Sentence Report agreed with the plea agreement’s guidelines calculation.
Defendant’s sentencing was delayed for many years at the request of the government, so that it ultimately took place after the trial of Ronald Herron, defendant’s co-defendant and the ringleader of the operation.
After the Herron trial ended, in October 2016, the government submitted a second sentencing memorandum to the District Court advocating for a “revised” guidelines range for defendant based on allegedly new information that surfaced during Herron’s trial. The government claimed (1) that the trial testimony established that “a reasonable estimate of the narcotics attributable to [defendant] would be no less than one kilogram of crack cocaine, which would result in a base‐offense level increase to level 32” from 30; (2) that defendant “undoubtedly ‘used violence, made a credible threat to use violence, or directed the use of violence’ in the commission of the offense, which would result in a two‐level upward adjustment of his Guidelines”; and (3) given defendant’s role as an enforcer in Herron’s organization, a two‐level upward adjustment was appropriate. The government also argued that defendant had provided perjurious testimony at Herron’s trial warranting a 2‐point enhancement for obstruction of justice. The Government’s revised guidelines calculation resulted in a range of 360 months to life in prison. Defense counsel objected to the drastic modification.
The district court agreed that the evidence supported the new guidelines range advocated by the government and imposed a 360-month sentence.
On appeal, defendant challenged the sentence on two grounds. First, he asserted that the government breached the plea agreement by advocating for a higher sentence at his sentencing hearing than it had agreed to in the plea agreement. Second, defendant argued that postponement of his sentencing hearing for four years while the government pursued a trial against his co‐defendant violated his Fifth Amendment right to a speedy sentencing.
The Circuit agreed with defendant in concluding that the government breached the plea agreement, and vacated the sentence and remanded for resentencing before a different district judge on that basis. According to the court, the government’s change in position came in a manner that defendant could not have reasonably expected when he entered into the plea agreement, including its original guidelines estimate. Given the decision to remand on this basis, the Circuit found it unnecessary to reach the alleged Fifth Amendment speedy sentencing violation.
The Circuit’s decision can be found here.
Southern District of New York
On March 27, in Joseph Cracco v. Cyrus Vance, Jr., (2019 WL 1382102) Judge Crotty granted the plaintiff’s request for a declaration that New York’s gravity knife statute (Penal Law §§ 265.00(5) and 265.01(1)) was unconstitutionally vague as applied. Judge Crotty held that the plaintiff, a sous chef, had no way of knowing whether the knife he possessed would be viewed as legal or illegal given the text of the gravity knife statute and the procedures used by the District Attorney to enforce the
statute. Not every folding knife is an illegal gravity knife. Rather, a knife must open upon application of the “wrist flick test” to warrant prosecution, even though there is no specific number of attempts of the wrist flick test that is too many. As the Judge pointed out, there are many reasons why one person may be successful in opening the knife using a wrist flick, and another may fail, including that consistent use of the knife might loosen a screw over time. Or a police officer may be more adept. Therefore, under this enforcement regime, the plaintiff “has no way of knowing that his past conduct was or that his intended future conduct will be, criminal under the gravity knife statute.” Further, the statue does not guard against the risk of arbitrary enforcement.
Judge Crotty’s decision can be found here.
New York Court of Appeals
On Tuesday, in People v. Tapia, in an opinion by Chief Judge DiFiore, NYCA found that the court below had not abused its discretion in admitting the grand jury testimony of a witness as a past recollection recorded, even though the witness, who was called to testify at trial, could no longer remember the substance of what he’d recounted to the grand jury. The testimony did not violate the Confrontation Clause, because the witness had testified at trial.
NYCA found that the foundational requirements for the admission of the statement were met because the witness took the stand at trial and stated that he’d previously testified truthfully when the event was fresh in his mind, and that rereading the grand jury minutes did not refresh his recollection.
Judges Wilson and Rivera dissented. They would have found that, because the witness could not be subjected to cross-examination, admission of the grand jury testimony violated CPL 670.10, which forbids the admission of such testimony. CPL 670.10 allows for only three types of prior testimony to be admissible in a criminal prosecution: “testimony given by a witness at (a) a trial of an accusatory instrument, or (b) a hearing upon a felony complaint conducted pursuant to section 180.60, or (c) an examination of such witness conditionally.” Since grand jury testimony was none of these, it was inadmissible. No resort to the Confrontation Clause was necessary.
The NYCA’s decision can be found here.
In People v. Rodriguez, in a memorandum decision, NYCA affirmed the AD3 decision finding that defendant had violated the terms of a cooperation agreement when he refused to testify for the prosecution at the trial of another person not specifically named in the agreement.
In a lengthy dissent by Judge Jenny Rivera, in which Judge Wilson joined, Judge Rivera criticized the majority of the Court for abdicating its constitutional role in guiding state courts by providing clear rules of legal analysis. According to Judge Rivera’s view, the
appeal presented an important question about the standard for interpreting cooperation agreements when a defendant claims to have neither intended nor understood the agreement to include the People’s demand for assistance with an unspecified criminal investigation or prosecution. Rather than thoughtfully analyze the important question presented, the Court dodged its duty with a short three paragraph decision that gave short shrift to the issues raised.
The NYCA’s decision can be found here.
Appellate Division, First Department
On Thursday, in People v. Gentles, AD1 reversed defendant’s Bronx County conviction for overdriving, torturing, and injuring animals, in the interest of justice, on the grounds that the court’s jury instructions presented an expanded theory of liability not contained in the indictment.
AD1 found that the court’s jury charge constructively amended the indictment. The indictment was limited to a theory that defendant personally mistreated his dog. But the court read Agriculture & Markets Law § 353 to the jury almost in its entirety, including a provision that would allow the jury to convict defendant if he merely permitted another person to mistreat his dog. Unlike ordinary accessorial liability under Penal Law § 20.00, this theory of “permitting” is an entirely different way of committing the crime from personally mistreating the animal, AD1 found.
AD1 also found that the error was not harmless, because there was evidence from which a reasonable jury could have inferred that defendant took the blame for his dog’s condition to cover for his uncle, who lived with defendant and made inconsistent statements about whether he witnessed defendant beating the dog.
AD1’s decision can be found here.
Appellate Division, Second Department
On Wednesday, in People v. Brooks, AD2 reversed defendant’s Richmond County violation of probation conviction, finding that the evidence was insufficient to show defendant had violated any probation conditions.
It was alleged that defendant had violated a condition of his probation by committing a crime, namely obstructing governmental administration. A person commits OGA when “he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act.” It was the People’s theory of the case that defendant committed OGA by orally threatening to “blow up” his probation officer at a scheduled appointment.
AD2 found that, although the evidence at the hearing demonstrated that the probation officer was at work, there was no evidence to show that the defendant attempted to prevent her from performing a specific function. The defendant’s angry outburst, without more, was insufficient to establish a violation of Penal Law § 195.05. Thus, the Supreme Court’s finding that the defendant violated a condition of his probation by failing to lead a law-abiding life is not supported by a preponderance of the evidence.
AD2’s decision can be found here.
In People v. Floyd, AD2 reversed defendant’s Kings County second-degree murder conviction, finding that the court erroneously failed to suppress a .357 revolver alleged to have been the murder weapon, which was recovered during a car stop.
At the suppression hearing, the People presented testimony that the police received an anonymous tip of a possible larceny involving several males “suspiciously” going in and out of a U-Haul truck in the Bronx. The individuals were described as black and Hispanic males between the ages of 15 to 22, and the tipster reported that some of the individuals’ clothing included a “[b]rown hoodie, [a] red hoodie and a black sweatshirt.” The sergeant testified that when he arrived at the reported location, he did not observe a U-Haul truck. However, he later saw a U-Haul truck driving on Bronx River Avenue, and his partner noted that the driver was a black male wearing a brown hoodie. The sergeant and his partner pulled over the U-Haul truck, in which the defendant was a passenger, and the officers later recovered the gun from the truck.
AD2 found that the police lacked reasonable suspicion to stop the vehicle based only on the anonymous tip of men “suspiciously” going in and out of a U-Haul truck, because the tip was insufficient to create reasonable suspicion that the individuals described were engaging in criminal activity. The characteristics described in the anonymous tip were readily observable, and the behavior of the individuals described in the tip was consistent with the ordinary use of a U-Haul truck, as the tipster failed to identify what made the behavior suspicious for burglary. Additionally, the tip “lacked predictive information” and was uncorroborated by the officers, as the U-Haul truck was not at the reported location when the officers arrived. Accordingly, the information that the police received from the anonymous informant, even coupled with the officers’ own observations, did not provide them with reasonable suspicion to make an investigatory stop.
AD2’s decision can be found here.
APPELLATE DIVISION, THIRD DEPARTMENT
On Thursday, in People v. Jones, AD3 reversed the Albany County Court judgment convicting defendant of assault and sentencing him to five years imprisonment, finding that defendant was deprived of his right to effective assistance of counsel.
In 2001, defendant was convicted by jury verdict of assault in the second degree, as charged in a single-count indictment, and sentenced to a prison term of seven years, followed by five years of post-release supervision. Defendant timely filed a notice of appeal from the judgment of conviction, but, for reasons unknown to this Court, he did not perfect his appeal until June 2015. In 2016, AD3 reversed the conviction, finding that the County Court erroneously denied defendant’s Batson challenge to a prospective juror, reversed the judgment of conviction and remitted the matter for further proceedings (136 AD3d 1153 (2006)). Upon remittal, defendant pleaded guilty to assault in the second degree and waived his right to appeal in exchange for a prison term of five years, followed by five years of post-release supervision, with such sentence to run concurrently with a 2003 conviction for murder in the second degree.
Thereafter, defendant moved, pursuant to CPL 440.10 and 440.20, to vacate the judgment of conviction and set aside his sentence. The supreme court denied that motion without a hearing, and defendant appealed both the judgment of conviction and, by permission, the denial of his CPL article 440 motion.
AD3 agreed with defendant that his counsel at the remittal was ineffective because he failed to recognize that, at the time of remittal, defendant had already served the maximum prison sentence that could be imposed upon him as a second violent felony offender for assault in the second degree and, consequently, principles of double jeopardy prohibited the imposition of any sentence that included additional prison time.
AD3’s decision can be found here.
In People v. Titus, AD3 reversed the Broome County judgment convicting defendant of burglary in the third degree, finding that defendant’s guilty plea was invalid because it did not strictly comply with CPL 195.20 waiver of indictment provisions, which required that the waiver include the date and approximate time of the alleged offense. The plea was invalid because neither the waiver of indictment nor the SCI properly indicated the time of the charged offense.
AD3’s decision can be found here.
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