Empty plastic Tops bag enough to tie murder evidence together

People v Reed, 2012 NY Slip Op 05464 [4th Dept 2012] [available here]

The victim in Reed was "shot three times at close range in broad daylight on a public street in Rochester" in front of seven eyewitnesses. (P v Reed at *3.) One witness "testified that the shooter bent over the victim immediately after the shooting," but none of the eyewitnesses saw the shooter take anything from the victim.

The defendant in Reed was ultimately convicted of felony murder*1, but he was not the shooter; it was alleged he drove the Lincoln that the shooter got into after the shooting. At least some of the witnesses identified the defendant as the driver of a Lincoln that was seen leaving the scene.

The car was not found until the day after the shooting. As described in the dissent,

The interior of the Lincoln was, as defense counsel aptly noted on summation, "in a state of disarray" at that time, and in that vehicle the police discovered various grocery items, including "one or two packages of sausage biscuits," an empty Snapple bottle, and a number of lottery tickets. Police also took from the Lincoln a plastic Tops supermarket bag, the handles of which were knotted and the bottom of which appeared to have been "ripped out."

(P v Reed, at *3.)

The plastic bag turned out to be the key piece of evidence in the case. Why? Because the shooting vicitm's girlfriend told the police that, about 30 minutes before the shooting, she had put $40,000 in a plastic shopping bag, knotting it at the top before sending her boyfriend out to buy drugs. The bag found in the car was knotted, but other than that it was unremarkable; as described by the dissenters:

No fingerprints or bodily fluids were found on the bag, nor was any hair. Moreover, defense counsel noted on summation, without objection, that there are "thousands, tens of thousands of Tops bags in [Rochester]," some of which were even carried by jurors during the trial.

(P v Reed, at *3.)

The mere presence of the bag in the car was enough for the majority to conclude that the shooting victim had been robbed during the shooting, thus transforming a straight murder to felony murder, and putting the defendant on the hook for murder without having to prove that he actually shared the shooter's intent to kill the victim. According to the majority,

It has long been the law in New York that evidence that a defendant possessed a wrapper or container that had held property before it was stolen is sufficient to support a conviction for stealing that property. Consequently, "this evidence, although circumstantial, was nevertheless more than sufficient to lead a reasonable person to conclude that defendant" or one of his accomplices stole the cash from the victim. The evidence also establishes that the victim was shot and killed while that cash was being taken from him, thus providing legally sufficient evidence with respect to the remaining elements of the charges of which defendant was convicted.

(P v Reed, at *2.)

Justices Fahey and Martoche dissented, relying on the special care taken by fact-finders in purely circumstantial evidence cases. As noted by the dissenters, "[w]hen the evidence is circumstantial the jury should be instructed in substance that it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence." (P v Reed, at * 2.) The supermarket bag "is a common item," and it could not be said that the bag found in the car was the same one used by the victim to carry his drug money. Coupled with the fact that "none of the seven eyewitnesses to the shooting--many of whom also saw the assailant's departure from the area of the shooting--saw the taking of property from the victim . . . none of those witnesses saw anyone walk from the vicinity of the victim's body carrying anything other than a gun." (P v Reed, at *3.) No evidence of the robbery, hence no underlying felony to support the felony murder conviction, says the dissent.

It is probably good that the Fourth Department does not hear argument on cases during the summer. There were a lot of lengthy dissents this packet, and I imagine some of the panel conferences were getting pretty frosty. Maybe a nice break, some summer downtime, and the Justices will come back in the fall ready to get back to the normal business of affirming convictions unanimously.

*1 Basically, felony murder may be charged where somebody dies during the commission of a felony, whether or not the felons intended to kill anyone. Think security guard dropping dead during a bank robbery where the robbers were armed with realistic squirt guns.

99 problems but an insufficient understanding of my rights under the Fourth Amendment to the United States Constitution aint one

Via friend and former colleague David Abbatoy (blog here), a law review article breaking down Jay-Z's "99 Problems," with commentary and cites to relevant federal case law. A sample from the article:

I ain’t trying to see no highway chase with jake . . . “Jake” is the cops,and Jay-Z’s narrator is making a prudential business decision here. Highspeed
chases are almost always bad for the perp. If you’re caught after a highspeed chase, you can be certain that the police will impound the car, run a dog over it, and search it thoroughly. So if you’re going to run, you’d better either get away or ditch your load mid-chase. But the latter is dicey, because your load will likely be found, and you’ll have no suppression remedy because you abandoned it before you were technically seized.

There is a lot more where that came from (full article here), highlighting some of the dicier areas of police-citizen encounters. Well worth a read.

(Video for "99 Problems" embedded below, so you can follow along with the article)

What not to do when stopped by police after killing your business partner

People v Doll, 2012 NY Slip Op 05450 [4th Dept 2012] [available here]

Police responded to a report of a suspicious person and observed a man wearing blood-stained clothing and wielding a lug wrench. When the cop asked the blood-spattered man what he was doing, the man said "he was walking in order to lower his cholesterol because he had a doctor's appointment the next morning." OK. What about all that blood? "[D]efendant replied that it was cold out so he put on the coveralls that he wore when he butchered deer."

This all happened in Genesee County, so the Deer Hunter explanation actually might not have moved the needle much. But then the soon-to-be-defendant did something very peculiar: he asked the officer for a ride back to his van.

Why peculiar, you ask? Because the van, like the defendant, was covered in blood. From the decision:

Diehl (the police officer) drove to the location where defendant parked his van. Diehl observed blood in several places on both the inside and outside of the van, and on the ground next to the van. He also observed a pair of gloves, which appeared to be blood-soaked, on top of a car near the van.

When the defendant tried to explain that the blood was old, the officer pointed out that the blood appeared fresh and that the "defendant's sneakers were leaving bloody footprints in the snow." The police offered to let the defendant go if he could show them the dead deer or explain the source of blood.

Defendant responded by asking for an attorney.

The police continued to interrogate the defendant. They also searched for a victim, checking the defendant's ex-wife and the area where the defendant was stopped. More than four hours later, the police checked the home of defendant's business partner. The partner's dead body was in the driveway of the home.

After the body was found, the defendant's girlfriend and a friend went to the police station where defendant was being held. The friend asked repeatedly to speak with the defendant, and eventually a sheriff's investigator allowed her to do so. However, the investigator stressed that he was not asking the friend to talk to the defendant, and that he (the investigator) would remain in the room the entire time. From the decision:

During the ensuing conversation, defendant told his friend that the situation did not involved an animal, that he had been "present" but did not do anything, that it was an open and shut case, that he was going to be in jail somewhere, and that he guessed that he would get what he deserved. Defendant's friend specifically asked defendant to tell her that there was not a dead body, and defendant replied, "I can't do that." [The sheriff investigator] stayed in the room during the conversation, standing a few feet from defendant and his friend, within defendant's view.

Remember, this all happened after defendant asked for an attorney.*1

The defendant moved to suppress his statements, both to the responding officers before the body was found, and the later statements to his friend at the police station. The Fourth Department, in a majority decision by J. Nancy Smith, affirmed the trial court's decision refusing to suppress the statements.

As to the statements defendant made after he asked for an attorney but before the body was found, the Court held that "inasmuch as the evidence at the suppression hearing established that an objective need to rescue a member of the public existed and that the deputies were doing everything possible to aid that person or persons, the emergency exception applied notwithstanding the deputies' additional intent to obtain incriminating evidence."

The statements made by the defendant to his friend, although made after the body was found and therefore after the "emergency" was resolved, did not violate defendant's right to counsel because the friend was not acting as an agent of the police. The defendant was entitled to a "competent advocate in confronting the power of the State," but that right did not extend to "encounters with private citizens absent collusion of the State." (Doll, citing People v Velasquez, 68 NY2d 533.)

The Court also invoked the emergency doctrine to excuse the "temporary" detention of defendant while the police searched for a body.

Justices Centra and Fahey dissented. The dissenters noted that defendant was first handcuffed and detained at about 845p.m., and then interrogated for at least the next four hours, without Miranda warnings and in spite of his request for an attorney. The dissenters would not have applied the emergency exception, because unlike every other case to invoke the emergency exception, "the police in this case were not aware that there was even a victim who needed police assistance." The defendant claimed the blood was from butchering deer, "certainly a reasonable explanation"*2 according to the dissent.

In the dissent's opinion, to "allow the police to disregard a person's invocation of the right to counsel based on the mere fact that the person has blood on his or her clothing is an unwarranted expansion of the emergency exception."

The dissent is no doubt correct that the majority's opinion extends the emergency doctrine into new and unsettling territory. It is easy to understand on the facts of Doll: blood covered defendant offers ridiculous reason for being out and about, and leads the officers to his blood-spattered van (with bonus blood-soaked gloves nearby). It is hardly surprising that the police held onto the defendant and questioned him until a body was found, and that both the trial court and the Appellate Division ratified the conduct by refusing to suppress the statements.

But the Doll case does not exist in a vacuum, and now there is authority for the police to seize and interrogate a suspect, for hours and hours, without Miranda and in spite of a request for an attorney, based on blood-stained clothing (or what looks like blood stained clothing), if the police do not like the explanation for the blood. That is a pretty breathtaking expansion of police authority.

*1 An attorney may have been able to point out, "Dude, the sheriff investigator is standing right there. For the love of God, shut up."
*2 Again, at least in Genesee County.

Appellate court tosses lawsuit challenging NY gay marriage law

New Yorkers for Constitutional Freedoms v New York State Senate, 2012 NY Slip Op 05455 [4th Dept 2012] [available here]

I'm late on this, but I spend so much time giving the Fourth Department a hard time, that I would be remiss if I did not give credit where credit is due. In a unanimous decision, the Fourth Department tossed out a lawsuit brought by a religious lobbying group seeking to nullify New York's recently enacted gay marriage law on extremely technical grounds.

First, however: I call BS on the plaintiff, "New Yorkers for Constitutional Freedoms." Specifically, on that choice of a name. Guys and Gals of NYCF: you are a religious group advocating a very narrow agenda. Embrace it. For crying out loud, your mission statement (here) says, "As a Christian Ministry, NYCF exists to influence legislation and legislators for the Lord Jesus Christ." Cut the America The Beautiful crap. Scrap the Eagle and Flag logo. At most, you unequivocally like one amendment in the Bill of Rights.*1 I mean, when you say this:

We believe the Bible to be the inspired Word of God. If God says something is right, then it is right; and if God says something is wrong, then it is wrong. This includes marriage as a union of a man and a woman. It also includes a basic understanding of the 10 Commandments as our basis for moral convictions.

. . . your agenda, by definition, has nothing to do with the Constitution. Some less misleading re-branding is in order.

Anyway, on to the decision.*2 Last year, New York's legislature passed the Marriage Equality Act, permitting same-sex couples to get married in New York. NYCF filed a lawsuit in Livingston County, and asked the County Court judge assigned to the case to declare that the New York Senate violated the Open Meetings Law in enacting MEA "and that marriages performed thereunder are not valid." What is the Open Meetings Law (OML)? Glad you asked. Under the OML, "every meeting of a public body shall be open to the general public," with certain exceptions. As explained by the Court, the "purpose of the [OML] is to prevent public bodies from debating and deciding in private matters that they are required to debate and decide in public, i.e. deliberations and decisions that go into the making of public policy."

Wait, you might be thinking; did the Senate pass the MEA in a closed session? No. No they did not. So where did NYCF find its violation of the open meetings law? Well, stay with me.

At the time MEA was passed, the Republicans had the majority of the members in the Senate (32 members out of 62). Remember how a meeting of a "public body" must be open to the public? The statute defines "public body" as "any entity, for which a quorum is required in order to conduct public business [...]." Ergo, "Inasmuch as the Republican Conference was the majority conference of the State Senate . . . a meeting of that conference constituted a quorum of the State Senate."

So, if all the Republicans in the Senate got together at once, the meeting would have to be open to the public, right? Well, no. The statute carves out an exception to the open meetings law for "the deliberations of political committees, conferences and caucuses . . . who are members or adherents of the same political party."

Right. So, what was NYCF's problem again? Oh yeah. NYCF claimed that the MEA was enacted in violation of the open meetings law because all of the Senate Republicans met with New York City Mayor Michael Bloomberg (a registered Independent), and later all of the Senate Republicans met with Governor Andrew Cuomo (a registered Communist*3). Because not all attendees at those meetings were of the same political party--Cuomo and Bloomberg, respectively, were not Republicans--and since the MEA was discussed at those meetings, the exception to the open meetings law for purely political party-based meetings did not apply. The meetings should have been open to the public, and therefore all of the gay married couples in New York should be de-certified.

Only, not so fast.*4 The OML exception for purely political committee meetings applies "without regard to . . . whether such political committees, conferences and caucuses invite staff or guests to participate in their deliberations."*5 NYCF argued in its lawsuit that "the definition of 'guests' in the exemption must be limited to people of the same political party as those of the political party seeking the exemption."

The Fourth Department found no support for such a narrow reading, and noted the practical difficulties that would ensue if the Court were to adopt it. Under NYCF's reading, for example, "it would be impossible for a Democrat member of a Governor's office, such as a budget director, to speak to a majority Republican caucus."

In any event, a violation of the open meetings law does not automatically invalidate the statute. A court must first find that there is "good cause" to throw out the statute and invalidate actions taken in reliance on the statute. The Fourth Department rightly noted that the two meetings in question were a small part of the debate leading up to the enactment of MEA, and "given [the plaintiff's] failure to link the alleged OML violations to the enactment of the MEA, which was approved at a regular session of the Senate that was open to the public, we conclude that plaintiffs failed to show good cause why we should exercise our discretion to nullify the MEA."

See you at the Court of Appeals!



* That would be the 2nd amendment (because if there is one thing JC was crazy about, it was his assault rifles). No, NYCF does not get to claim the 1st amendment. I'm sure NYCF are cool with the establishment clause, but I am guessing they are not going to be joining the ACLU as amicus on any free speech issues.

*2 OK, one more nit to pick from the NYCF website. Under "Accomplishments," the group lists "making child pornography illegal." There must be some divine intervention if NYCF was able to "make illegal" something THAT HAS NEVER BEEN LEGAL EVER ANYWHERE. My head hurts. Let's keep going.

*3 I'm kidding! He's clearly a socialist.

*4 Don't look at me. I told you at the top this was technical.

*5 The statute is silent as to whether the guest must partake of the host's salt and bread for the "guest right" to attach.

"Cutting open pills on the counter" is not a crime

In re Marquardt v Marquardt, 2012 NY Slip Op 05457 [4th Dept 2012] [available here]

There's a different feeling on the third floor of the Hall of Justice. When the bell dings and the scratched, dented doors of the elevator rattle open, the charge in the air around the suite of offices and courtrooms that make up Family Court is palpable. It is the static generated by the close proximity of lots and lots of people who really, really do not like each other. Only close family members can generate that kind of hate; it is a special kind of animosity that most of us cannot muster for strangers. It is the toxic venom reserved for those once loved and now despised.

The Fourth Department decision Marquardt v Marquardt provides a glimpse into that world. First, some background. Any person can file a petition in Family Court and seek a protective order against a family member. But, the petition must allege conduct that qualifies as a "family offense," i.e. a list of crimes that crop up most often in the domestic context. Harassment, assault, disorderly conduct; that type of thing.

The husband in Marquardt filed a petition seeking a protective order against his wife. The crime that he alleges his wife committed against him? Hubby claimed that "respondent (the wife) committed a family offense by engaging in acts that would constitute either first or second degree harassment 'by cutting open [her] pills on the counter, knowing that the [husband] has allergies' to medications." The Family Court concluded that the "pill cutting" satisfied the elements for criminal harassment: that the wife "engaged in conduct that was intended to harass, annoy or alarm petitioner, that petitioner was alarmed or seriously annoyed by the conduct, and that the conduct served no legitimate purpose."

The Fourth Department reversed, noting that the wife needed to open the medicine "to eat it with pudding based on her inability to swallow pills," and therefore it could not be said that "the conduct served no legitimate purpose." The Fourth Department went on to note that the husband did not even testify that he was allergic to the medicine used by his wife, "or to introduce any expert evidence in support of his testimony that the medication was a 'poison, a toxic poison that causes death.'"

To be fair to the Family Court here, the judge was probably just erring on the side of putting a protective order in place to act as a buffer between the parties. The Family Court judge noted in its decision "that 'ninety percent of the testimony' at the hearing was 'utter nonsense' and warned the parties that it would 'not waste another entire day listening to what [it] consider[ed] to be inane blather.'"

Welcome to Family Court: 90% utter nonsense, now with inane blather!

AD4: 95 minutes = "close temporal proximity"

People v Lewis, 2012 NY Slip Op 05449 [available here]

A "show up" identification procedure is basically just what it sounds like. After a crime is committed, and usually while the victim is still at the scene of the crime, a police officer "shows up" with a suspect. The suspect is usually handcuffed and seated in the back of a police car. The suspect is taken out of the police car and displayed for the crime victim. If it is dark, the suspect is typically lit up with one of the flood lights that the police have on their cruisers. The victim is asked if he or she recognizes the suspect, and in the overwhelming majority of cases, makes a positive identification.

At least on paper, the courts look at "show up" identifications with suspicion, and for good reason. It is hard to imagine a more suggestive way to display a suspect to a crime victim. The police are basically telling the witness: "we found this guy, we obviously think he's involved or he would not be handcuffed and locked in the back of my police car, so why don't you tell us he's the guy and we can all go home. And oh, in case you're confused, he's the guy standing in the spotlight."

In practice, show-ups happen a lot, and courts almost never keep out identification evidence or testimony based on the fact that the police deliberately choose to use the most suggestive and least reliable identification procedure at their disposal. Case in point is People v Lewis, a decision from the Fourth Department's last packet. After reciting the usual tough talk--the Court acknowledges that "showup identification procedures are generally disfavored"--the Court upholds the procedure anyway.

The Court notes the general standard: that "such procedures are permitted 'where [they are] reasonable under the circumstances—that is, when conducted in close geographic and temporal proximity to the crime—and the procedure used was not unduly suggestive.'" So far, so good. But the defendant in Lewis was held by the police for an hour and a half before the police conducted the showup. Certainly this type of extended detention would invalidate the procedure? Not so, says the Fourth Department. Without discussion, the Court holds "the showup identification procedure was reasonable because it was conducted at the scene of the crime, within 95 minutes of the commission of the crime and in the course of a 'continuous, ongoing investigation.'"

The Court of Appeals case the Fourth Department cites in support of its holding upheld a showup identification where the suspect was held for under an hour, and even that holding was a significant departure from the previous 15-minute outer threshold. People v Brisco, 99 NY2d 596 [2003].)

The Fourth Department's decision is still more troubling because, as the Court admits, the police had probable cause to arrest the defendant even without the result of the showup identification procedure. That means the police were free to transport the defendant to the police station and arrange a lineup--a much more reliable identification procedure that is far less likely to result in the identification of an innocent person. Instead, the police employed the most suggestive identification procedure at their disposal, and in doing so dramatically increased the possibility of a mistaken identification.

And by increasing the "temporal proximity" threshold to 95 minutes--beyond the previous high-water mark set by the Court of Appeals--the Fourth Department continues to water-down the protections afforded defendants who are subject to show-up identifications.