Tag: New York Court of Appeals

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Man who faked a gun by holding a finger under his hoodie guilty of first-degree robbery, New York’s highest court rules

A person who fakes  a gun by concealing a hand beneath their hoodie can be convicted of robbery in the first degree, New York’s highest court has ruled.

On Nov. 1, 2011, Charles Smith, a homeless 41-year-old, entered a check cashing store in Queens. The teller, who sat behind bulletproof glass, testified that Smith held something under his sweatshirt at the waistband, asked for money and threatened to shoot her.

Police, summoned by a silent alarm pressed by the teller, apprehended Smith several minutes later as he walked down the street about eight blocks away. Smith had no gun on him. Nothing in the record suggested that Smith possessed any item whatsoever.

At trial, Smith was convicted of robbery in the first degree, which New York defines as forcible stealing accompanied by the defendant’s using or displaying what is, or appears to be, a firearm. The appellate court affirmed the conviction, finding that the prosecution established that Smith displayed what appeared to be a firearm while attempting to commit the robbery.

The Court of Appeals agreed. “A victim may reasonably believe that a gun is being used, on the basis of conduct that makes it appear that the defendant is holding a gun, regardless of whether the defendant makes a movement while addressing the victim or keeps his hand concealed throughout the encounter in a manner and location suggesting the presence of a gun,” Judge Eugene Fahey wrote on behalf of five of his colleagues in a ruling decided on March 28.

Oddly, Smith did not avail himself of a defense provided by the law, which allows a defendant to ask the jury to consider reducing the charge to second-degree robbery if the firearm (or what appeared to be one) was, in fact, not a loaded weapon.

The court added that “the precise nature of the object that a defendant displays is not dispositive when analyzing whether a defendant displayed what appeared to be a firearm,” and that the court has affirmed convictions where a defendant used a toothbrush or a towel wrapped around his arm to simulate a gun.

“The state must prove that (1) the defendant ‘consciously display[ed] something that could reasonably be perceived as a firearm,’ and (2) it ‘appear[ed] to the victim by sight, touch or sound that [the victim was] threatened by a firearm,” Fahey noted. “We concluded that ‘when both of these elements are satisfied… the true nature of the object displayed is, as concerns criminality, irrelevant.’” [citations omitted]

Misconstruing the statute

That test, however, misconstrues the law, said Judge Rowan Wilson, who noted that “without the guidance of the legislative history, the [statute] could be interpreted, and has now been by this court, to allow unarmed persons with a hand in a pocket to be charged with the same crime as a robber who fired shots.”

The legislature, when it revised the robbery statute in 1969, intended “that the display of something that was or looked very much like a real firearm was essential to conviction” for either first- or second-degree robbery, Rowan wrote, explaining:

“The statutory language makes sense only in the context of the legislative history: that the problem addressed by the statute was the evidentiary difficulty of proving that an actual gun was loaded and operable – not anything having to do with enhanced fear of the victim.”

Despite that aim, the Court of Appeals has departed from the legislative intent, he noted. “A homeless man walks into a check-cashing store,” Rowan wrote. “This sounds like the start of a bad joke, but instead is filled with pathos.”

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Defendant compelled to appear in jail attire for a half day of jury selection not denied a fair trial, New York’s highest court rules

A man charged with armed robbery was not denied a fair trial after being compelled to wear sweatpants issued by the corrections department for half a day of jury selection at his trial, New York’s highest court has ruled in a decision that delineates the limits of a defendant’s ability to contest his appearance at trial in prison attire.

Though defendants, consistent with the presumption of innocence in criminal trials, are entitled to wear their own clothing in court, “these concerns are not implicated here… where there is no evidence that defendant’s orange correctional pants were visible to the jury and the clothing that was visible to the jury was clearly not identifiable as correctional garb” a five-judge panel of the Court of Appeals wrote in a decision Feb. 9.

Before jury selection began, Rafael Then, who was seated in a wheelchair, requested an adjournment of his trial from that day, a Thursday, to the following Monday, complaining that he did not have his own clothing because he had been unable to contact his family. The trial judge denied the request for a four-day adjournment but noted Then’s concerns and recessed the proceedings until after lunch, saying he would arrange for clothes to be delivered.

Following lunch and outside the presence of prospective jurors, the judge noted that Then wore orange correctional pants and a black knitted top, and that he was seated with his legs beneath a long, wide table farthest away in the courtroom from the jury, with his attorney seated between Then and jurors.

Jurors could not see Then’s legs unless they strained, the judge said, noting that the court would call the corrections department to ensure the defendant would be wearing civilian clothes the following day. When the prosecutor asked jurors whether they “notice[d] something about the defendant,” a prospective juror noted that Then was in a wheelchair. The prosecutor replied that the wheelchair had nothing to do with the case and instructed the jury to disregard it.

“Under the circumstances described here by the trial judge on the record, there is no merit to the defendant’s contention that he was denied a fair trial because he was compelled to appear before the jury in correctional garb,” the Court of Appeals wrote.

The Supreme Court has long held that requiring a defendant to stand trial in identifiable prison garb constitutes a denial of due process of law in violation of the 14th Amendment.

“Identifiable prison garb robs an accused of the respect and dignity accorded other participants in a trial and constitutionally due the accused as an element of the presumption of innocence, and surely tends to brand him in the eyes of the jurors with an unmistakable mark of guilt,” Justice William Brennan wrote in dissent from a ruling by the court in 1976 that affirmed the murder conviction of a Texas man who failed to object to being tried in jail clothes.

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Anonymous tips and the Fourth Amendment

How should courts treat anonymous tips in determining whether a legal basis exists to stop, arrest or search someone consistent with the Constitution?

That’s the question in a decision published Nov. 28 by New York’s Court of Appeals, which heard appeals from three men, all of whom were charged with crimes based on evidence obtained in part from calls to 911 by unidentified callers.

Consider the case of Dr. Eric Johnson, who pleaded guilty to several counts of driving while intoxicated following a breath test that showed Johnson had a blood-alcohol content nearly twice the legal limit. At trial, Johnson moved to exclude from evidence the results of the test and statements he made to the police after being pulled over on the night of October 1, 2011 while driving his blue BMW in upstate Ontario County.

Both the results of the test and his statements constituted the so-called fruits of an unlawful stop, Johnson contended.

Though the trial court admitted the evidence, the Court of Appeals agreed with Johnson that the call to 911 that led police to follow his car – the caller had reported seeing a blue BMW being operated by someone who appeared to be “sick or intoxicated” – lacked reliability sufficient to allow police to reasonably suspect criminal activity. According to the court:

The caller’s cursory allegation that the driver of the car was either sick or intoxicated, without more, did not supply the sheriff’s deputy who stopped the car with reasonable suspicion that defendant was driving while intoxicated. Although the deputy observed defendant commit a minor traffic infraction, this did not authorize the vehicle stop because he was outside his geographical jurisdiction at the time of the infraction.

At issue is the Fourth Amendment to the Constitution, which protects against arbitrary arrests and unreasonable searches by the government. As Judge Jenny Rivera observed in an opinion that dissented in part from the majority’s ruling:

Anonymous tipsters differ from known police informants, whose identities are not secret and whom police may have prior experience as reliable sources of information about criminal activity…The case law illustrates a general concern about the use of information from informants, in particular anonymous tipsters, as a basis for police intrusions because of the ease with which anonymity facilitates false reporting.

To find a tip sufficiently reliable for a determination of probable cause, courts in New York State follow a two-part test taken from rulings by the US Supreme Court in Aguilar v. State of Texas, a 1964 decision, and Spinelli v. US, a decision the court issued five years later. Taken together, the so-called Aguilar-Spinelli test requires a judge to conclude that an informant is reliable and that the informant has a basis of knowledge for his or her tip.

Six states, including New York, follow the Aguilar-Spinelli test. The rest of the union applies an analysis adopted in 1983 by the US Supreme Court that simply examines all the facts to see if they add up to probable cause. That means in New York, information supplied to police by someone who calls 911 cannot provide the basis for a search or seizure unless the government can establish the reliability of the informant’s knowledge and show that the informant is generally credible.

Tips can be credible when they predict the future behavior or movements of a suspect, or when the informant has a history of providing police with tips that turn out to be reliable.

Anonymous tips also can give rise to reasonable suspicion, which is the lesser level of proof that police need to frisk someone or to stop a vehicle when an officer suspects that criminal activity may be present.

Though a stop can be less intrusive compared with a search or arrest, the Constitution still requires that police have a basis for interfering with someone’s liberty based on information supplied anonymously. As Judge Sheila Abdus-Saalam explained in a concurring opinion:

As is true of an arrest premised on uncorroborated anonymous hearsay, a stop based on an unreliable tip may unjustly expose an individual to a high degree of physical intrusion without any credible cause for suspicion. If such stop were permitted, police could freely abuse the people on authority of the most preposterous reports, and malicious tipsters could easily use incredible rumors to convince the police to physically harass the targets of the tipster’s ire.

While such suspicion also demands that a tip be reliable in its assertion of illegality, New York courts forsake the Aguilar-Spinelli test in favor of examining all the facts when deciding whether a tip is reliable enough to justify a police stop.

In its ruling, the court let stand the guilty pleas of John DiSalvo and Costandino Argyris, who, following their indictments on varied weapons-related charges, asked the trial judge to suppress the items recovered from their persons and automobile as the fruits of an unlawful seizure.

According to the men, a 911 caller’s failure to predict their actions rendered the informant’s tip too unreliable to justify the stop of a Mustang they were driving through Queens on July 19, 2007.

“I saw a black Mustang, brand new black Mustang with like four guys and I saw one of them put in a big gun in the back of the car,” the caller told the operator. The caller described the men as “big burly white guys” though he said he did not know what they where wearing.

When the operator interrupted the caller and asked whether he wanted to provide his name and telephone number, the caller replied, “No, I don’t really want to, I just saw something and I say something, like they say.”

A few minutes later, Sergeant Louis Bauso, on patrol in his car, saw a Mustang which bore the license plate number relayed by report from 911. Bauso got out of his car, pointed at the Mustang and yelled at it to pull over. The driver disregarded Bauso, who returned to his car and pursued the vehicle.

Around that time, Officer Kashim Valles, on patrol in his car, saw the Mustang drive toward him. Valles used his car to cut off the Mustang, called for backup, got out of his car and pointed his gun at the vehicle. Bauso, his partner and about six other officers arrived.

All of the officers trained their guns on the Mustang while Valles shouldered his weapon and directed the Mustang’s occupants to leave the car.

DiSalvo emerged from the passenger seat with what Valles observed to be a gun in his waistband. Valles ordered DiSalvo to put his hands on the car, while Valles handcuffed him, recovering the gun and some cash.

Valles then ordered the remaining occupants to step out of the vehicle one by one. Argyris emerged wearing a bulletproof vest. When Valles searched Argyris he recovered a metal club and a switchblade. During a search of the car, Valles found a loaded .380 caliber handgun and a box of .9 millimeter ammunition on the back seat.