Motion to Suppress Indentification Testimony as Unreliable

In People v Reeves (152 AD3d 1173, 1176 [4th Dept 2017]), the Appellate Division, Fourth Department, suppressed identification testimony based on the alleged unreliability of the witness's identification, despite the fact that the identification was not the product of unduly suggestive police procedures. The Court held that he “ ‘linchpin’ in determining the admissibility of a pretrial identification at a trial is reliability.” The Court held that this claim was preserved because the suppression motion “as based on CPL 710.20(6)—which is not in any manner limited to ‘suggestiveness’—and on the broad grounds that the pretrial identification procedure was “unnecessarily suggestive and was based on CPL 710.20(6)—which is not in any manner limited to “suggestiveness”—and on the broad grounds that the pretrial identification procedure was “unnecessarily suggestive and conducive to a substantial likelihood of irreparable misidentification in violation of ... the Constitution of New York State and the United States Constitution.” In light of Reeves, pre-trial suppression motions should seek suppression of identification testimony, in part, on the ground that the proffered testimony was unreliable and conducive to a substantial likelihood of irreparable misidentification in violation of ... the Constitution of New York State and the United States Constitution and cited Reeves.

Challenging Traffic Stops as Violative of Equal Protection

by Jill Paperno Author of "Representing the Accused: A Practical Guide to Criminal Defense" As every criminal defense lawyer knows, pretext stops are the bane of our (and more importantly, our clients’) existence. We have all long suffered under the burden of U.S. v. Whren, 517 U.S. 806 (1996) and People v. Robinson 97 N.Y.2d 341 (2001), cases in which first the Supreme Court and then the New York Court of Appeals concluded that even if the officer’s primary reason in stopping someone was racist, courts would not examine an officer’s motivation in engaging in these stops, and such stops are not illegal. Study after study demonstrates what was predicted by defendants’ counsel in both cases and considered and rejected by both courts. Pretext stops are rife with racial disparities, and searches resulting from such stops suffer from the same biases. For more information about the history of pretext stops, the studies, the harms caused by these stops, and what is going on around the country, check out this report issued by Empire Justice Center in January of this year: https://empirejustice.org/wp-content/uploads/2023/04/Stop-the-Stops-Empire-Justices-Preliminary-Report-on-Racial-Disparities-in-Pretext-Stops.pdf But there are some glimmers of hope in case law, statutes and policies developing across the country. Many of these developments are described in the Empire Justice report. But we want to focus on some recent cases and practice suggestions based on these cases. First, a little refresher. Pretext stops are stops by police officers of motorists, cyclists and even pedestrians, generally for low-level, non-safety Vehicle and Traffic Law violations. The reason they are referred to as “pretext stops” is that the stopping officer actually wants to detain someone for another reason, like an investigation in which there is insufficient legal basis, or a completely unlawful reason like racial profiling. As noted above, in Whren the Supreme Court permitted officers to engage in these stops. While the New York State Constitution sometimes provides greater protection of rights, in Robinson, the New York Court of Appeals refused to do so when it came to pretext stops. While each case said that arrests based on membership in a protected class would violate the Equal Protection Clause, both cases pointed defendants in the direction of civil lawsuits, presumably while they were serving time in prison for the criminal charges based on evidence seized as a result of these biased stops. Interestingly, prior to Whren and Robinson, there were New York Appellate Division cases that barred use of evidence obtained in pretext stops. Last fall, the Third Department issued a decision in People v. Jones 219 AD3d 150. The Court returned the case to the trial court for consideration of whether arresting officers engaged in racial profiling, and if so, whether the evidence seized should be suppressed. In Jones, the Court stated, (W)e conclude that the Robinson standard does not preclude a challenge to a traffic stop predicated on racial profiling, at least under our state constitution. Correspondingly, the remedy for such an unconstitutional stop would be suppression of the evidence seized. In that regard, we are mindful that the First Department reached a contrary conclusion in (cases listed in the decision). Such a limitation would effectively render a defendant's constitutional rights meaningless in the criminal context – an outcome we do not accept. For a defendant's constitutional rights to be meaningful, the exclusionary rule must apply (see generally People v. Jones, 2 N.Y.3d 235, 241–242, [2004]). In reaching this conclusion, we are mindful that both the majority and dissent in Robinson rejected as unworkable the “primary motivation” subjective test for a traffic stop (see People v. Robinson, 97 N.Y.2d at 353). We abide by that conclusion. Whether a traffic stop was premised on racial profiling must be assessed objectively with reference to the facts and circumstances of the encounter. Such considerations may include, for example, whether the arresting officers were involved in a plausible investigation prior to executing the vehicle stop. Also important — and certainly most relevant here — is consideration of the officers’ actions and comments during the encounter. People v. Jones, 210 A.D.3d 150, 177 N.Y.S.3d 174, 178–79 (2022) For a further analysis of the Jones case, see Hon. Barry Kamins’s columns in December in Law.com at https://www.law.com/newyorklawjournal/2022/12/05/exclusionary-rule-applied-for-the-first-time-to-racial-profiling/ and Law.com in April at https://www.law.com/newyorklawjournal/2023/04/04/race-and-the-fourth-amendment-defendants-raise-issue-in-suppression-motions/ This week, the Massachusetts Supreme Judicial Court, the highest in the state, decided Commonwealth vs. Michael Robinson-Van Rader. While this Mr. Robinson (Van Rader) also lost his case, the court concluded both that selective enforcement based on race may be a basis for suppression of evidence, and that to ensure that the Equal Protection clause is truly given the consideration it must receive, a more relaxed standard must be applied in cases where racial discrimination in the stop is properly raised. This decision is full of gems, from the recognition of the difficulty in proving a negative when trying to establish a record on demographic statistics, to the recognition of the subjectivity of the stops. The Court stated (in its 41 page decision): The remedy for a selective enforcement violation is suppression of the evidence that was obtained in violation of the defendant's constitutional right to equal protection… In Long, 485 Mass. at 723-725, we revised the standard by which a defendant can establish a claim of selective enforcement, in the context of the traffic laws. In deciding that such a change was necessary, we explained, "it is clear that Lora has placed too great an evidentiary burden on defendants. The right of drivers to be free from racial profiling will remain illusory unless and until it is supported by a workable remedy." Id. at 721…The issue having been squarely raised here, we conclude that the equal protection standard established in Long for traffic stops applies equally to pedestrian stops and threshold inquiries, as well as other selective enforcement claims challenging police investigatory practices. In Long, 485 Mass. at 722, we determined that the first two parts of the three-part Franklin standard are not necessary in the context of motor vehicle stops. We explained that, "because of the ubiquity of traffic violations, only a tiny percentage of these violations ultimately result in motor vehicle stops, warnings, or citations. Thus, it is virtually always the case that a broader class of persons violated the law than those against whom the law was enforced. Similarly, in stopping one vehicle but not another, an officer necessarily has made a deliberate choice." (Quotation and citation omitted.) Id. Accordingly, the appropriate inquiry is restricted to whether the traffic stop was motivated by the driver's race or membership in another protected class. Id. at 723. …"Asking a defendant claiming selective enforcement to prove who could have been targeted by an informant, but was not, or who the [investigating agency] could have investigated, but did not, is asking [the defendant] to prove a negative; there is simply no statistical record for a defendant to point to." United States v. Sellers, 906 F.3d 848, 853 (9th Cir. 2018). The inaccessibility or unavailability of relevant data in such situations stands in contrast to cases of selective prosecution, which occur "when, from among the pool of people referred by police, a prosecutor pursues similar cases differently based on race" or another protected class…We note that the decision to conduct a pedestrian stop, or to investigate a suspect, is a "deliberate choice," thus satisfying the requirement under the second part of the three part Franklin test, see Franklin, 376 Mass. at 894, that a defendant show that the failure to prosecute was deliberate. 33 Presumption of Regularity in Judicial Review of the Executive Branch, 131 Harv. L. Rev. 2431, 2432 (2018). So what is a defense lawyer to do? Start obtaining and examining the records and statistics relating to stops conducted by particular offices or the department, as the defense attorneys did in the Robinson-Van Rader case above. Compare them to population statistics. Break down the language and claims of officers when you hear of a defendant “blading their body” or engaging in “furtive gestures.” Attach the Empire Justice Center report to your motion and raise those Equal Protection claims under the United States and New York State constitutions, citing People v. Jones. And don’t run away from a court’s claim you are “playing the race card.” This is not a game, and systemic racism is not a card.

Challenges for cause - cops and prosecutors

by Jill Paperno

Author of "Representing the Accused: A Practical Guide to Criminal Defense"

There are times that a police officer or prosecutor may wind up in the jury panel, or even seated in the box. As you know, when selecting a jury, if you question a witness who seems to have a bias, the witness may make an expurgatory statement that, “Of course, I can be fair,” and you may wind up having to use a peremptory. But there are some kinds of challenges for cause for which that “expurgatory oath” does not work. Often, judges will let these potential jurors go on challenges for cause, but sometimes they don’t. There are several subdivisions to CPL 270.20(1), the statute that addresses challenges for cause. The one we know best is 270.20(1)(b), which states, 1. A challenge for cause is an objection to a prospective juror and may be made only on the ground that: (b) He has a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at the trial; CPL 270.20(1)(c) is the subdivision that lists categories of individuals who are presumptively biased. The statute states: 1. A challenge for cause is an objection to a prospective juror and may be made only on the ground that: (c) He is related within the sixth degree by consanguinity or affinity to the defendant, or to the person allegedly injured by the crime charged, or to a prospective witness at the trial, or to counsel for the people or for the defendant;  or that he is or was a party adverse to any such person in a civil action;  or that he has complained against or been accused by any such person in a criminal action;  or that he bears some other relationship to any such person of such nature that it is likely to preclude him from rendering an impartial verdict;  or Here is the interesting part. With respect to 270.20(1)(a), the state of mind subdivision, a potential juror can overcome the challenge for cause by assuring the trial court that they do not have the state of mind likely to preclude them from rendering an impartial verdict. (But there are ways of getting around this claim by continuing to question the juror.) When a person falls within the category of 270.20(1)(c), which has to do with relationships, they cannot simply assure the court the relationship will not cause them to be biased. This category of challenges for cause is described as “implied bias.” With respect to a prosecutor, the Second Department just addressed this issue in People v. Cortes. The Court stated, A prospective juror may be challenged for cause on several grounds, including that he or she has a “relationship” with counsel for the People “of such a nature that it is likely to preclude him [or her] from rendering an impartial verdict” (CPL 270.20[1][c]; see People v. Furey, 18 N.Y.3d 284, 287, 938 N.Y.S.2d 277, 961 N.E.2d 668). Such “implied bias” requires “automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect [his or] her ability to be fair and impartial” (People v. Furey, 18 N.Y.3d at 287, 938 N.Y.S.2d 277, 961 N.E.2d 668 [internal quotation marks omitted]; see People v. Branch, 46 N.Y.2d 645, 651, 415 N.Y.S.2d 985, 389 N.E.2d 467). Here, during jury selection, the subject prospective juror informed the Supreme Court that she was presently working as an assistant district attorney, within the Queens County District Attorney's Office, the same agency that was prosecuting the defendant, and that she was familiar with the prosecutor, the defense attorney, and the Justice. As the People correctly concede, the juror's contemporaneous working relationship with the agency prosecuting the defendant required that juror's dismissal for cause (see People v. Furey, 18 N.Y.3d at 288, 938 N.Y.S.2d 277, 961 N.E.2d 668; People v. Branch, 46 N.Y.2d at 650–651, 415 N.Y.S.2d 985, 389 N.E.2d 467; People v. Greenfield, 112 A.D.3d 1226, 1229–1230, 977 N.Y.S.2d 486). Because the defendant challenged this juror for cause and thereafter exhausted all of his peremptory challenges prior to the completion of jury selection, the court's error in denying the for-cause challenge requires reversal of the judgment of conviction and remittitur for a new trial (see CPL 270.20[2]; People v. Wilson, 200 A.D.3d 1005, 158 N.Y.S.3d 255; People v. Rojas, 184 A.D.3d 761, 762, 124 N.Y.S.3d 246). People v. Cortes, No. 2014/16, 2022 WL 1160957, at *1 (N.Y. App. Div. Apr. 20, 2022) One of the cases cited in Cortes is People v. Branch, a 1979 Court of Appeals decision, which dealt with a police officer who was a potential juror. Like the prosecutor in Cortes, the police officer was subject to a different analysis, and the expurgatory oath is not available. As stated, under the old law an expurgatory oath was not available where “implied bias” was shown. The reason for this rule was that the risk of prejudice arising out of the close relationship between the prospective juror and one of the key participants in the trial was so great that recital of an oath of impartiality could not convincingly dispel the taint. In enacting CPL 270.20 (subd. 1, par. (c)) the Legislature broadened the list of suspect relationships to exclude from jury service those persons who bear “some other relationship * * * likely to preclude (them) from rendering an impartial verdict”. To be sure such individuals are equally unfit to sit as jurors as are those who fall within the other prohibited categories. The expurgatory oath was never applied where any of the other suspect relationships were involved, and there is no indication whatsoever that the Legislature intended to diverge from this principle here (see People v. Culhane, 33 N.Y.2d 90, 104, n. 2, 350 N.Y.S.2d 381, 394, 305 N.E.2d 469, 478). People v. Branch, 46 N.Y.2d 645, 651, 389 N.E.2d 467, 469 (1979) The “implied bias” analysis is still good. In addition to being cited this week in Cortes, the First Department noted its applicability in a 2019 case, People v. McGregor. “Implied bias” exists where a juror “bears some ... relationship to any such person [defendant, witness, prosecution] of such nature that it is likely to preclude [the juror] from rendering an impartial verdict” (CPL 270.20[1][c]; People v. Branch, 46 N.Y.2d at 649–650, 415 N.Y.S.2d 985, 389 N.E.2d 467). “[T]he frequency of contact and nature of the parties' relationship are to be considered in determining whether disqualification is necessary” (People v. Furey, 18 N.Y.3d 284, 287, 938 N.Y.S.2d 277, 961 N.E.2d 668 [2011]). Implied bias “requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect [his or] her ability to be fair and impartial” (People v. Furey, 18 N.Y.3d at 287, 938 N.Y.S.2d 277, 961 N.E.2d 668; People v. Rentz, 67 N.Y.2d 829, 501 N.Y.S.2d 643, 492 N.E.2d 771 [1986] [juror's statement at posttrial hearing that relationship did not affect his impartiality is ineffective] ). People v. McGregor, 179 A.D.3d 26, 30, 113 N.Y.S.3d 675, 678 (2019) So make sure you develop the relationships in your voir dire, including frequency of contact, connection with the department and individuals within it, and more.

 Attempted Assault in the Second Degree  for Assault of a Police Officer is Not a Crime

by 

Jill Paperno Author of "Representing the Accused: A Practical Guide to Criminal Defense"  

PL 120.05(3) is the statute that makes assault on a police officer a felony.  That charge is not based on an intent to cause injury to an officer.  For the reasons described in People v. Campbell, a 1988 decision excerpted below, an attempt to engage in an act with unintended consequences may not be a cognizable crime.  That is sometimes referred to as “impossibility” – that it is impossible to commit the offense.  Attempted Assault in the Second Degree under that particular subdivision is not a crime.  And yet, our clients still get charged with it.  It is up to us to remain vigilant and ensure that these charges do not form the basis for detention or incarceration.  Sometimes police don’t know this aspect of the law (which relates specifically to them, so maybe they know, and think we don’t.)  And yes, I was prompted to send this by a case that came in today and the client is being held on the charge. 

 

 

Under the Penal Law, a person “is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime” (Penal Law § 110.00). An attempt exists as an integral offense having an identity separate from the crime which is being attempted. The rationale of treating an attempt as criminal conduct is “that although the defendant may have failed in his purpose, his conduct is nevertheless culpable and if carried far enough causes a sufficient risk of harm to be treated as a crime in itself (see, e.g., Hall, Criminal Attempt—A Study of the Foundations of Criminal Liability, 49 Yale LJ 789, 816)” (People v. Bracey, 41 N.Y.2d 296, 299, 392 N.Y.S.2d 412, 360 N.E.2d 1094). Essentially, an attempt to commit a crime consists of an intent to bring about the result which the particular law proscribes and, in addition, an act in furtherance of that intent (2 LaFave and Scott, Substantive Criminal Law § 6.2, at 24; 22 C.J.S., Criminal Law, § 75[1] ). To prove an attempt, the People must establish that the defendant acted for a particular criminal purpose, i.e.—with intent to “commit a specific crime (see, e.g., People v. Kane, 161 N.Y. 380, 55 N.E. 946). ‘It is not enough to show that the defendant intended to do some unspecified criminal act’ (LaFave & Scott, Criminal Law, § 59, p.  429)” (People v. Bracey, supra, at 300, 392 N.Y.S.2d 412, 360 N.E.2d 1094). Because the very essence of a criminal attempt is the defendant's intention to cause the proscribed result, it follows that there can be no attempt to commit a crime which makes the causing of a certain result criminal even though wholly unintended.

 

Thus, there can be no attempt to commit assault, second degree (Penal Law § 120.05[3] ), since one cannot have a specific intent to cause an unintended injury (see, People v. Bracey, supra, at 300, 392 N.Y.S.2d 412, 360 N.E.2d 1094; People v. Zimmerman, 46 A.D.2d 725, 360 N.Y.S.2d 127; People v. Brown, 21 A.D.2d 738, 249 N.Y.S.2d 922; State v. Almeda, 189 Conn. 303, 455 A.2d 1326; cf., People v. Foster, 19 N.Y.2d 150, 278 N.Y.S.2d 603, 225 N.E.2d 200). It makes no difference that the statute calls for a different element of intent—i.e., that the injury must be caused while the defendant intends to prevent the officer from performing a lawful duty. That element of intent relates not to the result proscribed by the statute—causing the injury—but to the circumstances which make that result one for which defendant is strictly liable (see, People v. Conyers, 65 A.D.2d 437, 411 N.Y.S.2d 303, affd. on  other grounds 49 N.Y.2d 174, 424 N.Y.S.2d 402, 400 N.E.2d 342; People v. Hendrix, 56 A.D.2d 580, 391 N.Y.S.2d 186, affd. on other grounds 44 N.Y.2d 658, 405 N.Y.S.2d 31, 376 N.E.2d 192; People v. Hassin, 48 A.D.2d 705, 368 N.Y.S.2d 253; see also, Donnino, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law § 110.00, at 412–413).

 

Similar reasoning was employed in People v. McDavis, 97 A.D.2d 302, 303–304, 469 N.Y.S.2d 508. Like the assault second statute involved here which requires no proof of intention to cause injury, the manslaughter first statute (Penal Law § 125.20[1] ) in McDavis does not require intent to cause death. The manslaughter first statute does, however—again, like the assault second statute here—require proof of intent on a different element: in subdivision (1), intent to produce serious physical injury. Because the statute requires no proof of intent to cause death, the proscribed result, it was held that there can be no attempt to commit that crime (see, People v. McDavis, supra, at 303–304, 469 N.Y.S.2d 508).

 

People v. Campbell, 72 N.Y.2d 602, 605–06, 532 N.E.2d 86, 87–88 (1988)

 

There is a distinction made between whether elements are just aggravating factors or not in determining whether a charge is impossible.  See People v. Saunders, 85 NY2d 341.  For some discussion see People v. Prescott, 95 NY2d 655 which addressed whether attempts to commit DWI and AUO1 were cognizable charges.

 

Generally, where a penal statute imposes strict liability for creating an unintended result, an attempt to commit that crime is not a legally cognizable offense (see, People v. Campbell, 72 N.Y.2d, at 605–606, 535 N.Y.S.2d 580, 532 N.E.2d 86, supra). One cannot attempt to create an unintended result. By contrast, where a penal statute imposes strict liability for committing certain conduct, an attempt is legally cognizable, since one can attempt to engage in conduct (see, People v. Saunders, 85 N.Y.2d, at 341, 624 N.Y.S.2d 568, 648 N.E.2d 1331, supra). Likewise, an attempt is legally cognizable where a statute penalizes certain core conduct, but includes as an aggravating factor that the defendant caused an unintended result (see, People v. Fullan, 92 N.Y.2d, at 693–694, 685 N.Y.S.2d 901, 708 N.E.2d 974, supra; People v. Miller, 87 N.Y.2d, at 217–218, 638 N.Y.S.2d 577, 661 N.E.2d 1358, supra).

4 Driving while intoxicated appears to fit within the confines of Saunders, since it is aimed principally at conduct: operating a motor vehicle while “intoxicated.” However, as the Saunders Court acknowledged, other factors, including statutory and policy considerations, can help inform the “attempt” analysis (People v. Saunders, 85 N.Y.2d, at 342–343, 624 N.Y.S.2d 568, 648 N.E.2d 1331, supra). Here, we conclude that the Legislature did not contemplate criminal liability for attempted drunk driving. We reach that conclusion based on the comprehensive nature of article 31 of the Vehicle and Traffic Law and its discrete penalty scheme.

 

People v. Prescott, 95 N.Y.2d 655, 659, 745 N.E.2d 1000, 1002 (2001)

 

To assess whether an attempt of a crime is a cognizable charge, you may have to actually do a Westlaw search in relation to that charge since the analysis is not always intuitive or easily understood.

An interesting article about the pervasive problem of cops lying under oath and what can be done about it.

Read the article here. 

This is the best decision you'll read this week.

Says United States District Court Judge Carlton W. Reeves, our new hero: "Clarence Jamison was a Black man driving a Mercedes convertible. As he made his way home to South Carolina from a vacation in Arizona, Jamison was pulled over and subjected to one hundred and ten minutes of an armed police officer badgering him, pressuring him, lying to him, and then searching his car top-to-bottom for drugs. Nothing was found. Jamison isn’t a drug courier. He’s a welder."

Read on here. It's long, but every word is worth your time. 

And just in case you forgot this stunning speech, at the sentencing of 3 white defendants for the execution of an elderly black man, by the same judge, you can reread it here. H/T James Grable

Prosecutors and Judges Who Pretend To Credit Police Perjury are Complicit in the Police Misconduct

In 1982, in his book “The Best Defense,” Alan Dershowitz listed what he called the Rules of the Justice Game. Among these were the following:

Rule III: It is easier to convict guilty defendants by violating the Constitution than by complying with it, and in some cases it is impossible to convict guilty defendants without violating the Constitution. 
Rule IV: Almost all police lie about whether they violated the Constitution in order to convict guilty defendants. 
Rule V: All prosecutors, judges, and defense attorneys are aware of Rule IV. 
Rule VI: Many prosecutors implicitly encourage police to lie about whether they violated the Constitution in order to convict guilty defendants. 
Rule VII: All judges are aware of Rule VI. 
Rule VIII: Most trial judges pretend to believe police officers who they know are lying.   

That prosecutors encourage and judges credit police perjury to allow unlawfully obtained evidence to be admitted is not merely a theory. The New York Times has reported that the prevalence of police perjury to justify stops and seizures is so great that the police themselves for it – testilying. Indeed, in a three part series, the New York Times found that there is a “ culture of dishonesty” and that officers who lie to justify illegal police conduct are more likely to be promoted than punished. (Parts one, two, and three of the reporting on police perjury).

This encouragement and acceptance of police lies regarding illegal police behavior explains why police believe that they can get away with writing false reports about their actions. The videos of the past month have demonstrated that the police version of events, such as the murder of George Floyd, are often lies to justify their illegal behavior.  Only because of the videos, we know that the police lied when they claimed that Floyd resisted
arrest or that, in Buffalo, Martin Gugino, tripped. Otherwise the police lies would have been accepted.

We won’t have justice until prosecutors and judges stop pretending to believe lying police officers. If after seeing proof of police lies, prosecutors and judges still pretend to credit them, they are complicit in the misconduct.