DECISIONS OF THE WEEK ENDED NOVEMBER 20, 2020

| Feb 2, 2021 | Ed Sapone’s Decisions of the Week

After several busy weeks, the Circuit was quiet this week, with no precedential opinions and only two summary orders in criminal cases.

The state courts were busier. NYCA released several decisions this week, including an interesting one in Pena, which continued to reveal the divisions in the court between its pro-law-enforcement group—DiFiore, Garcia, & Feinman—its swing vote moderates—Stein & Fahey—and its progressive group—Rivera and Wilson.

Second Circuit

In United States v. Alford, in a summary order, CA2 remanded defendant’s case back to EDNY. Defendant had pleaded guilty to two counts of being a felon in possession of a firearm or ammunition in violation of § 922(g)(1) before Judge Carol Bagley Amon. CA2 found that a defendant who simultaneously possesses firearms and ammunition is generally guilty of only one violation of the statute, not two. CA2 also found that a condition of defendant’s supervised release, which allowed a probation officer to order the defendant to notify third persons of risks he may pose to them, was unlawful.

CA2 directed the court on remand to vacate one of the counts of conviction, as well as the condition of supervised release. It offered that the district court could impose a similar supervised-release condition, so long as it complied with its prior decision in United States v. Boles, 914 F.3d 95 (2019), which held that a risk condition is appropriate so long as it does not delegate unfettered discretion to a probation officer to choose who defendant is required to notify.

CA2’s decision can be found here.

In United States v. Branford, in a summary order, CA2 affirmed in part and dismissed in part defendant’s appeal from his SDNY convictions before Judge Gregory H. Woods for conspiracy to import cocaine, finding that defendant’s appeal waiver and guilty plea were knowing and voluntary, rejecting defendant’s contentions that the district court lacked jurisdiction because of improper venue, and that his attorney was ineffective because he failed to adequately investigate the question of venue. CA2 concluded that defendant’s venue claims were not jurisdictional and that his attorney had adequately investigated and discussed the question of venue with defendant.

CA2’s decision can be found here.

New York Court of Appeals

In People v. Pena, NYCA, in a 5-2 decision, reversed the order of the Criminal Court, Bronx County, that had suppressed the results of a traffic stop, finding that, because the VTL was ambiguous as to whether a non-functioning center brake light provided a basis for the stop, the officer’s decision to stop the car was objectively reasonable and the stop was lawful.

Chief Judge DiFiore, writing for the plurality consisting of herself, and Judges Stein, Fahey, Garcia, and Feinman, held that the VTL’s provisions could reasonably be read to require that all lamps and signaling devices be in good working condition, regardless of whether a vehicle is actually required to be equipped with those lamps, signaling devices, equipment, or lights. Judge DiFiore declined to render a definitive reading of the VTL, i.e., she would not say whether the VTL required. for vehicles that had a center brake light, that it must work. Instead, she held that even if no working center brake light was required, the officer’s decision to stop the car for a non-functioning center brake light was nevertheless objectively reasonable. Because any error of law by the officer was reasonable, there was probable cause justifying the stop.

In a concurring opinion, Judge Feinman, joined by Chief Judge DiFiore, wrote separately to express his opinion that the officer’s interpretation of the VTL was correct, i.e., that the VTL required any center brake light to be functioning.

In dissent, Judge Wilson, joined by Judge Rivera, wrote that the very fact that the judges came to differing conclusions as to whether the statute required a working center brake light was proof that the statute did not adequately require such a functioning light.

NYCA’s decision can be found here.

In People v. Balkman, NYCA unanimously reversed defendant’s Monroe County weapon possession conviction. NYCA found that the traffic stop that led to the weapon’s recovery was not justified by a reasonable suspicion that the defendant had committed a crime where the stop was a result of information on a patrol car’s mobile data terminal notifying an officer that something was similar about the car’s registered owner and a person with an outstanding warrant.

While information generated by running a license plate through a government database may provide reasonable suspicion for a stop, the information’s sufficiency is not presumed, and, where the defendant challenges its sufficiency, the people must present evidence of the content of the information.

Here, the People presented no evidence about the content of the “similarity hit”—neither what particular data of the registered owner of the vehicle and the person with the warrant matched, nor what kinds of data matches, in general, result in “similarity hits.” NYCA held that, without such evidence, the suppression court could not independently evaluate whether the officer had reasonable suspicion to make the stop.

NYCA’s decision can be found here.

In People v. Smith, NYCA unanimously reversed the order of Bronx County Supreme Court that had denied defendant’s CPL 330 motion to set aside his rape conviction, finding that the court had abused its discretion when it denied the motion without a factual hearing.

While NYCA’s decision is a brief one, AD1’s decision reveals that a juror had introduced outside information to other jurors, which AD1 had dismissed as inconsequential. NYCA disagreed.

NYCA’s decision can be found here.

Appellate Division, Second Department

In People v. Bravo, AD2 reversed defendant’s Queens County grand larceny conviction, finding that the verdict was against the weight of the evidence and did not support the theory of larceny by false promise.

Complainant asked defendant to help her send approximately $12,000 to her relatives in Peru through four different money-transfer agencies. Due to a mistake in the recipient’s name on complainant’s part, the initial transfers did not go through. Defendant was able to fix two of the transfers over the phone. Complainant later learned that two of the transfers were not corrected and defendant had withdrawn the money supplied for those transfers.

AD2 found that the evidence was inadequate to prove the larceny, because defendant had not obtained the funds from the money transfer agencies by means of any false representation to complainant.

AD2’s decision can be found here.

In People v. Flinn, AD2 reversed the order of Suffolk County Court that had denied defendant’s CPL 440.10 motion to vacate his first-degree robbery convictions on ineffective assistance of counsel grounds without a hearing.

Defendant had pleaded guilty to first degree robbery based on a displays-what-appears-to-be-a-firearm theory. The presentence reported stated that defendant had offered no explanation for why he had carried an “imitation weapon.” In his CPL 440.10 motion, defendant alleged that his attorney did not explain to him that he had a potential affirmative defense to the robbery charge.

AD2 found that defendant’s allegations, including the presentence report, were sufficient to require a hearing to resolve.

AD2’s decision can be found here.

Appellate Division, Fourth Department

In People v. Pinnock, AD4 reversed defendant’s Ontario County criminally negligent homicide and third-degree assault convictions, finding that the verdict was against the weight of the evidence.

The charges arose from a multi-vehicle accident caused when the driver’s side wheel on the pickup truck defendant was driving came off and rolled into an oncoming lane of traffic. When the wheel came off, defendant, age 50 with no criminal record, was driving slowly on the side of the road with his four-way flashers activated. A delivery truck hit the detached wheel, tipped over and collided with a third vehicle, killing its operator, before colliding with a fourth vehicle and injuring its two occupants.

AD4 found that the evidence was inadequate to prove beyond a reasonable doubt that defendant engaged in some blameworthy conduct that either created or contributed to a substantial and unjustifiable risk. That evidence included the fact that the pickup truck had a forged inspection sticker. At most, the evidence established that defendant failed to perceive a risk, which did not establish criminal negligence beyond a reasonable doubt. Even if defendant could or should have perceived the risk that a tire on the truck would come off while he was operating the vehicle, the risk that the proscribed result (i.e., the tire coming to rest in the road and then causing a delivery truck to overturn and fall on a car, killing its driver) would occur was not substantial. AD4 found that this was a tragic and freak accident that did not give rise to criminal liability.

AD4’s decision can be found here.

In People v. Sylvester, AD4 reversed defendant’s Niagara County second degree murder and weapon possession convictions, in the interest of justice, finding that the County Court erred by permitting the prosecutor to introduce evidence of a prior uncharged shooting under the theory that defense counsel had opened the door.

The charges arose from an incident involving a shooter who had previously been seen driving a silver SUV and who, among other things, fired at least once at the victim as the victim was entering the passenger side of a Chevy Trailblazer in which the victim’s girlfriend was the driver. At trial, the prosecution was permitted to submit evidence to the jury that, two days before that charged incident, a neighbor of the victim’s girlfriend heard gunshots on the street and observed an individual getting into a silver SUV, which had been parked behind the Trailblazer, before both vehicles drove away. AD4 found that defense counsel’s cross-examination of a law enforcement witness did not create a misleading impression that projectile holes found in the driver’s side of the Trailblazer occurred during the charged shooting.

AD4’s decision can be found here.

In People v. Salone, AD4 reversed defendant’s Ontario County first-degree manslaughter conviction, in the interest of justice, finding that County Court erred when it permitted (1) an investigating police officer to testify to his opinion that a homicide had been committed, and (2) the victim’s mother to testify about the victim’s personal background, including various aspect of his life and family relationships, which were not relevant to the issues at trial.

AD4’s decision can be found here.

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