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New York Criminal Procedure
Touro Law School
Cohen, Mark D.

NY Criminal Procedure
Summer 2013
Hon. Mark Cohen
 
Class #1: POLICE – CITIZEN ENCOUNTERS
1)      Overview Criminal Justice System
·         A. Investigation
                                                              i.      Police arrest/summons
1.      Accusatory instruments:
a.       Misdemeanor complaint
b.      Felony complaint
2.      Grand Jury
a.       De novo “separate from police investigation”
3.      Prosecutor’s Information
a.       Adjudicative
4.      Superior Court Information
·         B. 1st Arraignment (in a local criminal/district court) – D is brought before a judge and an attorney will be appointed, bail will be set, case set for conference
                                                              i.      Felony – when a felony is being prosecuted, the felony complaint needs to be replaced with an felony indictment
                                                            ii.      NY constitution gives everyone the right to have your case be put in front of a Grand Jury
1.      D can waive Grand Jury, and will prosecuted by a superior court information instead of a felony indictment
2.      If not waived, the case must go in front of the Grand Jury for indictment
a.       It is more beneficial for a D to plea his case before his case is put in front of the Grand Jury indictment b/c once the Grand Jury indicts, his plea options will be narrower.
·         C. 2nd Arraignment will be brought in either the Supreme Court or County Court (Riverhead)
·         D. Conference
·         E. Discovery
·         F. D has two choices:
                                                              i.      Plead guilty (occurs 97-87% of the time via plea bargain)
                                                            ii.      Plead not guilty
2)      Definitions:
·         Probable Cause/Reasonable Cause (70.10(2)) – means “more likely than not”
                                                              i.      “Reasonable cause to believe that a person has committed an offense” exists when evidence or information, which appears reliable, discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. 
3)      Levels of Intrusion (DeBour) vs. 4A “Terry Stops”:
·         New York’s – Police-Citizen encounters  – case and statutory law driven: P v. DeBour & LaPene/Hollman & Saunders- tie to NY Const., Art. I. Sec 12)
·         Four Levels of Intrusion:
1)      “Request for Information”: The police may approach a civilian when they have some articulable, objective credible reason for doing so even if that reason is not based on suspected criminality.
a.       These encounters should be brief and not be harassing or intimidating. A request for info involves basic, nonthreatening questions regarding identify, address, destination, reason for being in the area. CPL 140.50(1).
b.      A person is free to walk away from the officer after these requests.
c.       Cannot ask to search b/c to do so you need founded suspicion of criminality (below) but under Federal law this would be a permissible Terry stop with mere reasonable suspicion.
d.      Mere questioning is not a seizure under federal law, but, in NY, mere questioning is barred without an objective credible reason.
2)      “Common-Law Right to Inquire”: a greater level of intrusion that must be based upon a founded suspicion that criminal activity is afoot.
a.       The officer’s questioning might be more pointed and may lead a person to believe they are suspected of criminality, more focused.
b.      Not considered a search, not a seizure, only considered an “intrusion” and therefore citizens are free to walk away.
c.       Officer can point finger at D’s chest
——————————————– 4th Amendment rights kick in here ———————————————
3)      Investigative Detention – A stop and seizure is permissible where the police officer has a reasonable suspicion that criminal activity is at hand. CPL 140.50(3)
a.       Terry Stop:
                                                                                                  i.      The officer can stop the person for a reasonable period of time (20 minutes),
                                                                                                ii.      Can ask more pointed questions,
                                                                                              iii.      Run the D’s ID in the system to check if he has a record.
                                                                                              iv.      D is detained but not necessarily “in custody.”
b.      Frisk:
                                                                                                  i.      If the officer has reasonable suspicion that criminal activity is at hand + fear that the person is armed = the police may frisk (pat down the outer clothing) the D for weapons:
1.      A Stop and Frisk cannot be based on anonymous tip without some corroborating information unless there is an ongoing emergency (assault in progress). FL v. JL, US v. Simmons.
4)      “Arrest”: The police may arrest an individual when they have probable cause/“reasonable cause” to believe that individual has committed a crime [DeBour/LaPene]. An arrest must be justified at inception.
4)      Police Pursuits
·         NY – police need only “reasonable suspicion” that criminality is at hand, such as flight + other attendant circumstances to warrant pursuit. People v. Pines
·         Federal: “something less than reasonable suspicion” but must have some predicate facts to pursue (unprovoked flight). “Seizure” does not occur until the point of physical restraint, so no 4A protection until the D is touched by the police. CA v. Hodari D.
5)      “Plain view”
·         NY and Federal: an officer can seize any evidence:
                                                              i.      If the officer is in a place lawfully
                                                            ii.      The officer views items immediately apparent to be contraband or evidence of a crime; and
                                                          iii.      Nothing needs to be manipulated in order to see the evidence
6)      “Plain touch” – if during a lawful Terry stop, an officer can identify an object felt to be contraband or the fruit of a crime, he can seize it.
·         NY – not recognized under NY Const., Art 1. Sec. 12. Officer should get a warrant to search a D’s pockets. Here, the NY Con. provides more protection then the 4th Amendment. People v. Diaz.
·         Federal – “plain touch” is recognized as exception to warrant requirement under 4A. MN v. Dickerson.
7)      Open fields –
·         NY – not recognized under NY Const.

ardines (2013).
                                                            ii.      Luggage: Dog sniff of luggage not a “search.” U.S. v. Place.
3)      Technology – Art. I, sec 12 and 4A
a.       GPS on cars – a search so police need probable cause or a warrant
b.      Thermal imaging device (heat) – a search so police need probable cause or warrant Kyllo
c.       GPS cannot be used to track whereabouts of a suspect for an extended period of time without a warrant. Jones (58 days) Weaver.
4)      Protective sweeps – are permissible when the police are looking for a person involved in the crime. People v. Funches.
a.       NY & Federal – the police are permitted to do a “protective sweep” look areas of the house where a person may be hiding and any evidence found in those areas may be used against the D in court but must have predicate to enter home (reason to believe a person is hiding, or that the area poses danger to those at the arrest scene)
                                                              i.      The place to be “swept” includes closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.
5)      Inventory searches of cars – law enforcement officials must follow Rules & Procedures to meet purpose, not undertaken based on suspicion.
a.       Protect the D’s property;
b.      Protect the police from claims of lost or stolen property;
c.       Protect the public;
d.      The reason for the search cannot be “a rouse” Administrative searches by police –
a.       Federal – permitted under 4A; no warrant is required for administrative searches of chop shops since they are highly regulated
b.      NY- not permitted under NY Const. Art. I, Sec. 12. The lack of regulations over administrative searches of chop shops makes the searches unlawful (VTL 415(a)(5)(a)). Administrative searches will only be upheld if they are highly regulated.
7)      Body searches
a.       NY –
                                                              i.      Strip search – reasonable suspicion to believe evidence would be found on the person’s body
                                                            ii.      Visual body cavity (looking but not touching in person’s body cavity) – reasonable suspicion + articulable facts for engaging in the intrusion (vanishing drugs)
                                                          iii.      Removing an object from body/manual body cavity search – search warrant unless there are exigent circumstances justifying the immediate seizure of the item
1.      EX: imminent danger of the evidence bring destroyed, disseminated or lost, or that D was in medical distress, blood alcohol level will decrease/disappear during the time it would take to get a warrant. People v. Hall.