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New York Criminal Procedure
St. Johns University School of Law
Aldea, Donna

Aldea_NYCrimPractice_Spring 2015
       I.            INVESTIGATIONS
(A)  State Constitutional Law
(1)   Search & Seizure: search of Property/place; seizure of a person
1.      U.S. Constitution: 4th Amendment protects people to be secure in persons, houses, papers, & effects against unreasonable searches & seizures [need probable cause] 2.      NY State Constitution: identical to 4th Amendment
(2)   Test for Searches & Seizures: Was there a Search or Seizure?
1.      Was there a reasonable expectation of privacy [subjective]–Highest Expectation of privacy is in one’s home
                                                                          i.      If no à no constitutional issue
                                                                        ii.      If yes à ask if interference was unreasonable [did police violate 4th Amendment] 2.      Is expectation of privacy reasonable? [objective] o   Reasonableness can be disregarded if a life is in jeopardy [or exigent circumstances] i.        If no à no constitutional violation
ii.      If yes à should evidence be suppressed?
3.      Should evidence be suppressed? à Balance between effective crime punishment/solving & individual liberty
i.        If no à evidence can be used & ultimately ∆ will have no remedy
ii.      If yes à then evidence is inadmissible in trial
(3)   NY Constitution can be analyzed in two ways:
1.      Interpretative Review: textual comparison; looks to adoption history, structure & purpose affirms rights rather than limit government action
2.      Non-Interpretive Review: policy, justification, fairness; looks at pre-existing authority, history, traditions, particular local concern, distinction attitudes of citizenry
3.      PJ Video Case: ∆ was charged with multiple counts of obscenity and NY rejects totality of circumstances approach with regards to search warrants and judge determines p.c.
(4)   NY’s Expansion of Constitutional Rights Re: Search & Seizure
–          Weaver Case: NY has completely diverged from federal constitution and recognizes ‘free standing privacy’ issue on the fact that NY are non-conformers and has its own privacy interest apart from federal
§  Probable Cause: constitutional safeguard against arbitrary police action
o   NYCPLR substitutes probable cause for Reasonable Cause
§  CPL 140.10: reasonable cause to arrest
§  CPL 690.10: can search/seize property if you have p.c.
§  CPL 70.10(2): Reasonable Cause to Arrest [objective standard–look at totality/collective circumstances to convince a person that it’s reasonably likely that such offense was committed and that such person committed it] §  How does P.C. Issue Arise? [suppression hearing] 1.      Arrest or Search Warrant
§  Judge determines if there’s sufficient p.c. based on an oath
o   Arrest: reasonable belief that suspect has committed crime
o   Search: reasonable belief that evidence will be found where searched
§  ∆ argues that warrant should NOT have been issued because no PC; evidence should be suppressed
2.      NO Warrant [Warrantless Search/Arrest] §  Police simply act & determine at the time whether p.c. exists. ∆ argues that evidence should be suppressed because before police search, they lacked p.c. (i.e. had they sought a warrant, a judge would NOT have issued one)
§  Quantum of Proof Required for PC: Probability, not certain (51%)
o   Objective, test of reasonableness and vantage point to prudent, reasonable, cautious police officer guided by his experience and training (look to evidence before you)
o   Based on ‘totality of circumstances’ – all information known to officer at time of arrest/search
o   Irrelevant as to whether officer acted in good/bad faith OR his belief as to whether he was
§  Sources of Information to Gather PC
1.      Non-Hearsay: Officer’s Personal Observations
§  Officer swears to what he observed-on 5 senses or enhanced senses (binoculars/canine dogs, etc.)
§  Judge determines if officer’s observations amount to p.c. (officer is affiant)
2.      Hearsay: Reports from Others
§  Need to satisfy Aguilar-Spinelli Test (if ∆ raises objection to source of info)
(i)     Informant must be Reliable [look to track record, if someone subjects himself under persecution due to oath, accuracy of facts, statements against interest] (ii)   Informant must have Sufficient Basis of Knowledge [did person personally observe it or is it through double hearsay?] – if not satisfied, can still achieve prong through (a) predicting events OR (b) police independently corroborate information
§  Informant’s Identity (Aguilar-Spinelli Test)
o   Eyewitness/Victim
§  Reliability: Presumed because person puts id out there and be held liable if false report
§  Basis of Knowledge: Satisfied because of first-hand knowledge/personal observations
o   Criminal Accomplice or Co-∆
§  Reliability: Presumed; statement goes against interest
§  Basis of Knowledge: firsthand knowledge
o   Identified Citizen
§  Reliability: Presumed [identified citizen can be held liable for giving false report] §  Basis of Knowledge: must be satisfied by (i) personal knowledge, (ii) information imparted directly by eyewitness/victim – go through Aguilar-Spinelli for hearsay, or (iii) corroboration by police of details that suggest or directly relate to criminality à ensures that citizen is not merely passing along a rumor
o   Unidentified/Anonymous Citizen
§  Reliability: Can be satisfied by (i) if officer questions citizen face-to-face to observe his demeanor, OR (ii) can be demonstrated by police confirmations of details NOT necessarily indicative of criminality
§  Basis of Knowledge: Can be satisfied by (i) personal knowledge OR (ii) corroboration of details that DO SUGGEST criminality
— If no basis, substitute police confirmation that suggest criminality OR predictive details
o   Paid/Confidential Informants [Snitches] §  Reliability: suspect (usually criminals; gave accurate info in past, statement under oath, police confirm details, informant makes declaration against penal interest)
§  Basis of Knowledge: Can be satisfied by (i) personal knowledge, (ii) can be inferred if information is sufficiently detailed OR (iii) police can confirm details suggesting criminality
o   Informant Obtains Information from 3rd Party
§  Double hearsay; need to apply Aguilar-Spinelli to both steps. Do reliability/basis of knowledge for BOTH parties (informant & 3rd party)
o   Information from Fellow Officer: Arresting Officer will have PC when
§  (i) He acts on a basis of information supplied by another officer which, alone or in combination with his own info establishes PC OR (ii) he arrests ∆ at the direction of another officer who has PC [officer carries out directive of another] §  PC is presumed unless ∆ challenges PC, then burden shifts to government to establish PC
–          Illinois v. Gates: Federal Rule that states when warrants are issued, judge looks at ‘totality of circumstances’.
(5)   Permissible Conduct on Less Than Probable Cause
–          DeBour: actions that fall short of a seizure [i.e. approaching &/or questioning] must be commensurate with the amount of suspicion an officer has. [police need a justifiable articulate reasoning to approach you] o   Established a gradation of permissible police authority with respect to encounters with citizens in public places which directly correlates the degree of objectively credible belief with the permissible scope of interference
o   *Can still suppress evidence if police conduct was unreasonable (despite if there was search/seizure)
Police Action
Level of Suspicion Needed
Friendly, innocuous questions, greetings
Requests for Information
Public Function – wide latitude
Crim. Law Enforcement – identity, destination, reason for asking questions
Objective credible reason for request, not necessarily indicative of criminality
Common Law Right of Inquiry
Accusatory ?s that focus on particular person as target of investigation
Founded suspicion that criminal activity is afoot
Forcible Stop
*cannot leave
Forcible Stop [i.e. traffic infraction; pre-textual stops] Reasonable suspicion that ∆ is committing, has committed, or is about to commit a crime [i.e. gunpoint shot] 4
Frisk (PC)
Forcible Stop & Pat-down of outer clothing
Reasonable suspicion that ∆ is armed or dangerous
– For arrests, police action: place ∆ in custody; Level of Suspicion Needed: PC. Get inventory of person once arrested
(B)  Right to Counsel
(1)   Issue:
1.      ∆ makes statements to law enforcement
2.      Prosecutor gives notice of intent to use statements at trial
3.      ∆’s counsel moves for suppression of statement on grounds they were obtained in violation of right to counsel
4.      Suppression Hearing is held
a.      If suppression is granted à People can appeal under limited circumstances
b.      If suppression is deniedàStatements can be used at trial, if ∆ is convicted he can appeal
(2)   Federal & NY State Constitution
Federal à 5th & 6th Amendment
NY State à Art. I, S.6 (more protective)
– If ∆ invokes his right to counsel, he can later change his mind
– Once ∆ invokes, can only waive in counsel’s presence
– If counsel enters case but ∆ doesn’t know, ∆ can waive
– Once counsel communicates entry—even if ∆ doesn’t know-∆ can only waive in counsel’s presence
– 6th Amendment right offense specific; if right to counsel attached, limited specifically to that crime
– Once suspect has counsel, he cannot be interrogated/voluntarily give statements even when counsel has entered case & formal adversary proceedings began, cannot be questioned about that incident OR others that are related
(3)   Scope of NY’s Protection
o   Attachment of Indelible Right to Counsel in NY occurs at the EXACT moment of:
(i)     Commencement of Criminal Proceedings [filing of accusatory instrument] (ii)   ∆’s request for/invocation of right to counsel while in custody
(iii) Entry of counsel on matter
o   Once counsel has entered the case, police cannot use statements against accused! The right is indelible and cannot be waived one right attaches; only can be waived when attorney is present
o   Violation may be raised for the first time on appeal [can be reserved] –          Harris: Under federal point of commencement where right to counsel attaches is at the arraignment [not filing of accusatory instrument] –          Bing: overruled Bartolomeo – no derivative right to counsel; counsel retained in one state shouldn’t apply to out of state convictions (out of state charges doesn’t trigger right of counsel on NY charges) è Must have representation on the matter that the person is arrested (i.e. a related case) – does not apply to unrelated cases
o   Bartolomeo: if represented by counsel in prior proceeding & case was active, cannot be questioned about another case (even if unrelated) – Bing didn’t apply this to  out of state convictions
o   Cawley: Bartolomeo shouldn’t apply when person is fugitive who hasn’t been in touch with attorney for extended period
o   Medina: Bartolomeo shouldn’t apply when officers were led to believe representation had been terminated
–          Grice: family may retain counsel BUT entry MUST be communicated by the attorney/firm, not ∆’s family [i.e. attorney has to call the police station and put offi

ith commission of the designated offense, or in the name of or commonly used by the designated person.
§  AND normal investigative procedures won't work or are too dangerous.
·         CPL § 700.20: Application for Warrant: Tracks constitutional requirement for showing that must be made to obtain electronic surveillance warrant.
·         CPL § 700.25: Determination of Application: Judge may grant if sufficient, must deny if not
·         CPL § 700.30: Form and Content of Warrant:
o   Tracks constitutional requirements for sufficient application, PLUS
o   Minimization requirement (subdivision 7) – effectuates 4th Am. – “no greater intrusion than necessary”
·         CPL § 700.50: Progress Reports and Sealing
o   Progress Reports are not required unless judge orders
§  COA has expressed a “strong preference” for them, but absent a showing of “substantial prejudice”, suppression will not follow from failure to comply with such order.
o   Sealing requirement is strictly construed
§  Must be immediate – weekends or holidays are not excluded
§  Absent satisfactory explanation for delay, suppression will be ordered without any need to show prejudice or tampering
·         “sealing” requirement was implemented to avoid tampering and preserve integrity, and is very  strictly construed and improper sealing is an automatic grounds for reversal (prejudice need not be shown).
•    CPL  700.70: Notice Requirement
o   Alerts criminal ∆ to evidence that can be used against them at trial; triggers suppression motion
o   Tighter restrictions than notice provisions of § 710.30 relating to statements and IDs
•    CPL § 705.00: Definitions
o   Penn Register: ID's outgoing numbers dialed – EXCLUDES customer and provider devices for billing
o   Trap and Trace: ID's incoming numbers
•    CPL §§ 705.05, 705.10: Authorization: Calls for an order, not a warrant. No PC is required, only reasonable suspicion
•    CPL §§ 705.15, 705.20: Application & Determination: Straightforward; but non-conforming applications must be denied.
•    CPL 705.25: Time Period and Extensions: 60 days, extendable on application
–          People v. Basilicato: Plain View doctrine requires a “lawful vantage point” – police listened to conversation that was related to criminal conduct BUT warrant only allowed them to wire-tap, not bugging (convos that can be recorded in a room, phone/off the hook). Not good comparison to plain view; should’ve hung up. Minimization  requirement (CPL § 700.30(7)) required officers to hang up when the heard that no one was on the other line (they would also be required to hang up if the conversation was not relevant with regards to what is authorized under the warrant).  Therefore, the evidence should be suppressed.
(A)  Trial Courts: Overview [draw in map/look at slides]  
– Brisotti: Appellate Division is one statewide court (even though there are 4 judicial departments) divided for administrative convenience. Appellate division case is binding on ALL courts of original instance unless/until contrary decision in your dept.
(B)   Path of Criminal Case
(1)   Felony: Local Criminal Court à Grand Jury Indictment à Superior Court
(2)   Misdemeanor: Superior Local Criminal Court (concurrent jurisdictions at all times)
(C)  Geographic Jurisdiction
(1)   Territorial Jurisdiction: concerns power of state to bring a criminal proceeding; jurisdiction must be proven beyond a reasonable doubt [non-waivable; if issue not raised, if convicted, can raise on appeal & automatic win] (2)   Venue: proper county/place of trial; standard is preponderance of evidence [waivable; if not raised, cannot raise after conviction] (D)  NY State Jurisdiction (Territorial)
(1)   Statutory Requirements:
1.      Some conduct occurred in NY (just one is sufficient)
a.      An element of the offense
§  Stokes/Nieve: element of felony-murder offense occurred in NY. Felony happened in CT; Murder in NY
§  Lightbody: all elements happened in Queens, not Bronx (car burned in Bx but location of car NOT element of insurance fraud)
b.      An attempt to commit the offense
§  i.e. NY mails bomb to victim in FL. NY gets jurisdiction over both attempt & offense (homicide) even though it happened in FL.
c.       A conspiracy/criminal solicitation to commit the offense
§  Ex: Joe & Bob hatch plan in NY, get Dave in Ct who goes to kill victim in FL (element happened-homicide) BUT only Joe & Bob can be tried for conspiracy in NY
2.      No conduct occurred in NY, BUT offense itself occurs in another state