Articles Posted in Recent Significant New York Decisions

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Criminal Procedure Law section 190.75[3] prevents a prosecutor from resubmitting a charge dismissed by grand jury absent leave of court. In People v. Davis, N.Y.L.J., Jan. 6, 2010, at p.34, the prosecution presented evidence to a grand jury (“GJ1”) concerning an incident in which the defendant and a co-defendant allegedly slashed the complainant’s face with a razor. Because the defendant had not been apprehended at the time of the presentation, the case was introduced to GJ1 as being against only the co-defendant. The alleged victim testified in the GJ1 as to all operative facts of the case and called both defendant and co-defendant, both of whom were known to the alleged victim, by name. After eliciting testimony from the alleged victim, the prosecution held the case open and did not vote it out in GJ1. The defendant was arrested 3 days later. Seven days after its initial presentation of evidence to GJ1, the prosecution withdrew the matter from its consideration. GJ1’s term expired, and the prosecution then re-presented the case to a second grand jury (“GJ2”), which voted an indictment of both defendant and co-defendant. The defendant was later convicted of two counts of first-degree assault and one count of second-degree assault. The defendant appealed the conviction, citing the prosecution’s violation of CPL 190.75. That provision makes clear that if the first grand jury actually dismisses a charge against a defendant, the prosecution is required to seek leave of court before representation. However, where the prosecution has presented substantially all of the evidence to the first grand jury and then withdraws the case from consideration, the law may deem such presentation and withdrawal to be tantamount to a dismissal, and trigger the leave-seeking requirement even absent actual dismissal.

The Davis court found that the first presentation did, in fact, trigger the affirmative obligation to seek leave and reversed the defendant’s conviction. In its ruling, the Court announced that a lower court must consider when whether a given presentation has reached the point of no return, i.e. when “a withdrawal must be treated as a dismissal.” The overarching consideration being “the extent to which the presentation had progressed, i.e. whether sufficient evidence had been presented for the prosecutor to ask for a vote.” Davis, supra, at p.34, col. 5. If the first grand jury has heard evidence that would be legally sufficient to sustain a charge against a defendant, then the withdrawal thereafter operates as a dismissal and implicates CPL 190.75. The fact that the GJ1 had heard sufficient evidence of criminality, linking the defendant to the commission of the charged crime, and legally sufficient as to each and every element of the charged offenses, meant that the line had been crossed, and leave was necessary to represent. Because the prosecution did not seek such leave, the indictment needed to be dismissed, and the defendant’s conviction reversed. The policy implicated here is that to prevent “the prosecutor [from using] the device of withdrawing the case in order to get another opportunity to persuade a different, and perhaps more amenable, grand jury that it should indict.” Id. at col. 6. The court did note, however, that such reversal would not be mandated by CPL 190.75, where a given presentation of evidence was “so limited that the grand jury has no ability to consider the charge.” Id. at col. 5.

Judge Catterson authored a lengthy dissent, taking the position that the prosecution’s “decision that they have presented all of the evidence they deem necessary to secure an indictment against a specific defendant or defendants” should be controlling as to when a withdrawal of the presentation should be deemed tantamount to a dismissal. Davis, supra, at p.35 col. 2 (Catterson, J. dissenting). It may very well be that the Court of Appeals will ultimately decide the issue, if Judge Catterson decides to grant leave.

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In a split decision authored by Judge Smith, a divided New York Court of Appeals decided a new case in the Molineux line on October 22, 2009. This was People v. Nasin Arafet, N.Y.L.J., Friday, Oct. 23, 2009, p.45 (New York Court of Appeals 2009). In Arafet, the defendant was charged with stealing the payload of a tractor-trailer rig, driving it out of state, emptying it, and then abandoning the trailer on the side of the road. The evidence against Arafet was formidable. Highway patrol and cellular telephone records put him in close proximity to where the theft and getaway occurred. The government even had physical evidence of his involvement in the form of fingerprints they took from from a tollway ticket issued to a tractor-trailer that traveled the route of the stolen rig on the date and at the time of the occurrence. To bolster its evidence, however, the government offered and the Supreme Court admitted four pieces of “Molineux” evidence that became the subject of Arafet’s appeal. These were all “uncharged crimes” evidence and described in the opintion as follows:

  • Evidence that the defendant placed a telephone call to the owner of a known Jersey City fencing operation, and that “cargo stolen from trailers had been received by [the fencing operation]” on two separate temporally proximate dates.
  • Evidence that the defendant telephoned his accomplice in a prior tractor-trailer theft the day after the theft in question; and
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A Queens County Criminal Court issued a written opinion last week in a case in which several alleged Latin Kings members raised a First Amendment challenge to New York’s Unlawful Assembly Statute. People v. Sanchez, Cuevas, Hernandez, Quiles, 2009QN014633, N.Y. L.J. Oct. 6, 2009, (Queens Co. Crim. Ct., Koenderman, J., Sept. 29, 2009). That statute reads as follows:

PL sec. 240.10. Unlawful assembly

A person is guilty of unlawful assembly when he assembles with four or more other persons for the purpose of engaging or preparing to engage with them in tumultuous and violent conduct likely to cause public alarm, or when, being present at an assembly which either has or develops such purpose, he remains there with intent to advance that purpose.

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Justice John G. Ingram of the Kings County Supreme Court issued a written decision in People v. Fakoya, Kings Co. Ind. No., 9418/2008 granting the defendants’ motion to suppress all evidence seized by federal agents during a search of a private apartment. This was a three-defendant Scheme to defraud, Identity theft, and Grand larceny matter, and the evidence at issue was “hundreds, maybe even thousands of various personal records, photos, social security cards, and two computers . . . .” Fakoya, N.Y. L.J., Oct. 1, 2009 (Ingram, J.).

Identity theft cases may be may be readily proved when such physical and documentary evidence is recovered; but are likely to fall apart where such evidence is suppressed.

In Fakoya, a secret service agent and approximately seven N.Y.P.D. officers arrived at a Brooklyn apartment in an effort to execute a federal warrant for the arrest of a third party. According to the law enforcement testifiers (the agent and a single N.Y.P.D. officer), Fakoya answered the door and after being made aware of the purpose of the visit, made a beckoning gesture toward the agent and the officers, which law enforcement interpreted as an invitation into the apartment. The agent quickly checked a bedroom for the arrest warrant subject and then entered a room where Fakoya and three other people were seated around a coffee table. The agent began to question Fakoya and the others concerning the subject’s whereabouts. Id. While questioning these people, the agent noticed, and picked up off of the coffee table what he thought to be a suspicious I.D. He asked the apartment occupants who the person on the I.D. was, and they could not give him a satisfactory answer. According to the testimony, this caused the agent to become more suspicious and to locate and collect other papers and documents lying about the apartment. The officers testified that they continued to search the apartment and find and collect new suspicious documents and physical evidence along the way. The occupants could not give satisfactory explanations for the any material the agent was collecting. After consulting with an Assistant United States Attorney presumably concerning the nature of the discovered evidence, the agent authorized the N.Y.P.D. officers to arrest and charge the occupants of the apartment.