Thursday, November 15, 2012
45 day motion deadline
Ordinarily, a defendant has 45 days from arraignment to file his omnibus motion. In People v. Bellissimo
(2d App. Term. 12/3/2009), Justice Court ruled the defendant's untimely
because it was not filed within this time frame. Appellate Term
nevertheless reversed the conviction. Why? Because Justice Court had
set a briefing schedule outside the 45 day window. As the People
conceded, the defendant's motion was filed in compliance with this
schedule and was therefore "within such additional time as the court may
fix upon application of the defendant made prior to entry of
judgment." CPL § 255.20(1). (LC)
Sunday, November 11, 2012
Police afforded more discretion to use canine drug sniffs during automobile stops
The New York Court of Appeals, in two cases involving the use of drug
sniffing dogs during automobile stops, held that a “founded suspicion,”
instead of the higher, more demanding "reasonable suspicion" standard,
justifies an exterior canine sniff search of an automobile.
Additionally, a canine sniff search of the exterior of an automobile
does constitute a "search."
In People v. Devone (Ct. App. 6/08/2010) (Pigott, J.) (4-3), the police stopped a vehicle for cell phone use. The officers discovered that a male driver was operating a car registered to a female. After being ordered to exit the vehicle, police officers conducted a canine sniff search due to the “suspicious inconsistencies” in the driver's answers to various questions. After being signaled by the dog of the possibility of drugs, the officer found a quantity of crack cocaine in the seating console. The Appellate Division reversed the trial court's order suppressing the evidence and held that the police needed only a "founded suspicion" as opposed to a reasonable suspicion to conduct the canine sniff on the exterior of the vehicle.
In People v. Abdur-Rashid, a companion case, an individual was pulled over twice in one day for driving without a front license plate and having an expired inspection sticker. The second officer observed the defendant become anxious and ask to be let go since he was already stopped that day. When the officer questioned the passenger in the car, who claimed that he was only there trying to keep the driver awake and alert during their trip, the officer became suspicious and retrieved his drug sniffing dog. After being “alerted” by the dog, the officer found a black duffel bag in the trunk filled with two freezer bags of cocaine.
The Court of Appeals held that “founded suspicion" was present in both of these cases. The majority justified this lower standard, maintaining that an individual has a lower expectation of privacy in an automobile than in his or her home. Given this lowered expectation combined with the fact that the canine sniff is less intrusive, the founded suspicion standard was appropriate.
Judge Ciparick dissented, arguing that a reasonable suspicion standard should be met before a canine sniff is conducted. There is an expectation of privacy in portions of a vehicle not visible with the naked eye. Thus, probable cause is generally required for those areas. Thus, the dissent argued there should not be a difference between a dog sniff outside of a home (which is not allowed under People v. Dunn) and a sniff outside of a car. The dissent added that because drug sniffing dogs are trained for just that—drug sniffing—that those dogs would not have helped the officers ascertain whether the vehicle was stolen. Thus, the drug sniffing dogs served no purpose related to the stop itself; rather, the canines were used to engage in a fishing expedition for unrelated evidence.
Additionally, the dissent emphasized that the policy justification behind distinguishing between vehicular and residential privacy—practical concerns surrounding expediency—were not present here. Finally, the dissent pointed to New York's strong tradition of protecting its citizens from unreasonable searches as a justification for a higher standard.
http://www.nycrimblog.com/nycrim/suppression/
In People v. Devone (Ct. App. 6/08/2010) (Pigott, J.) (4-3), the police stopped a vehicle for cell phone use. The officers discovered that a male driver was operating a car registered to a female. After being ordered to exit the vehicle, police officers conducted a canine sniff search due to the “suspicious inconsistencies” in the driver's answers to various questions. After being signaled by the dog of the possibility of drugs, the officer found a quantity of crack cocaine in the seating console. The Appellate Division reversed the trial court's order suppressing the evidence and held that the police needed only a "founded suspicion" as opposed to a reasonable suspicion to conduct the canine sniff on the exterior of the vehicle.
In People v. Abdur-Rashid, a companion case, an individual was pulled over twice in one day for driving without a front license plate and having an expired inspection sticker. The second officer observed the defendant become anxious and ask to be let go since he was already stopped that day. When the officer questioned the passenger in the car, who claimed that he was only there trying to keep the driver awake and alert during their trip, the officer became suspicious and retrieved his drug sniffing dog. After being “alerted” by the dog, the officer found a black duffel bag in the trunk filled with two freezer bags of cocaine.
The Court of Appeals held that “founded suspicion" was present in both of these cases. The majority justified this lower standard, maintaining that an individual has a lower expectation of privacy in an automobile than in his or her home. Given this lowered expectation combined with the fact that the canine sniff is less intrusive, the founded suspicion standard was appropriate.
Judge Ciparick dissented, arguing that a reasonable suspicion standard should be met before a canine sniff is conducted. There is an expectation of privacy in portions of a vehicle not visible with the naked eye. Thus, probable cause is generally required for those areas. Thus, the dissent argued there should not be a difference between a dog sniff outside of a home (which is not allowed under People v. Dunn) and a sniff outside of a car. The dissent added that because drug sniffing dogs are trained for just that—drug sniffing—that those dogs would not have helped the officers ascertain whether the vehicle was stolen. Thus, the drug sniffing dogs served no purpose related to the stop itself; rather, the canines were used to engage in a fishing expedition for unrelated evidence.
Additionally, the dissent emphasized that the policy justification behind distinguishing between vehicular and residential privacy—practical concerns surrounding expediency—were not present here. Finally, the dissent pointed to New York's strong tradition of protecting its citizens from unreasonable searches as a justification for a higher standard.
http://www.nycrimblog.com/nycrim/suppression/
Friday, November 2, 2012
Agency Defense -Narcotics
Agency Defense & Motive
I highly recommend an article (ssrn.com) by one of my colleagues, Professor Elaine Chiu (stjohns.edu), about the role of motive in criminal law. Prof. Chiu uses New York's agency defense -- which holds that a steerer who acts as an agent of the buyer, not the seller, in a drug sale is guilty as an accomplice to possession, not sale -- to argue for greater consideration of motive in deciding guilt and punishment.
Here is the abstract:
http://www.nycrimblog.com
http://jjohnsebastianattorney.com/
I highly recommend an article (ssrn.com) by one of my colleagues, Professor Elaine Chiu (stjohns.edu), about the role of motive in criminal law. Prof. Chiu uses New York's agency defense -- which holds that a steerer who acts as an agent of the buyer, not the seller, in a drug sale is guilty as an accomplice to possession, not sale -- to argue for greater consideration of motive in deciding guilt and punishment.
Here is the abstract:
This article builds on recent discussions amongst criminal law scholars on the role that motive should play in the criminal law. It advocates for greater consideration of a defendant's motive in all critical decisions of the criminal justice process and offers concrete guidelines. Unlike many other articles that focus on euthanasia or hate crime, this one takes on the simple street sale of drugs and an unusual defense known as the agency defense to demonstrate how the criminal law can better accommodate motive. Created to avoid the harsh jail terms imposed on convicted drug dealers, the agency defense pretends that steerers who steer customers to drug dealers are the purchasing agents of the customers. As agents, they avoid criminal liability for the sale of drugs. Steerers, though, are not agents; instead, they are commonly drug addicts themselves who support their addictions by working as steerers. Instead of using a legal fiction like agency, this article proposes that the criminal law honestly and directly accommodate the true motive of steerers to satisfy their drug addictions. Addiction is admittedly problematic as a motive because of its low provability and low moral potency. One acceptable accommodation may be to mandate that judges simply consider whether drug offenders suffer from addictions in determining the appropriate sentence. Aside from this consideration, not every defendant will warrant an actual reduction in sentence. That would be up to the discretion of the judge.The article (ssrn.com) is available for free download from the Social Science Research Network. It was originally published in the Buffalo Criminal Law Review. While you're at SSRN, check out Prof. Chiu's other papers (ssrn.com) as well as articles that I have authored (ssrn.com). SSRN is an effective tool for conducting research in modern legal scholarship.
http://www.nycrimblog.com
http://jjohnsebastianattorney.com/
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