Simply, we can all appreciate and respect the fact that just as the police act on calls, information and statements with the goal of providing safety and security to residents of New York, there are times when the police are not needed or warranted. Practically speaking, it is often difficult for law enforcement to ascertain whether their services and presence is truly necessary without further investigation. Many times it is essential for the police to get involved while other times it is not. An interesting question arises where the police come to your house and want to gain access. In such a circumstance, can you deny them entry and if you do deny them access, can you be prosecuted for a crime such as Obstructing Government Administration in the Second Degree (New York Penal Law 195.05)? Addressing this exact circumstance (but remember each case is unique and the facts of the case dictate what law applies), People v. Holmes, 2014 NY Slip Op 51099 (NY Crim. Ct.) sheds some light on this issue.
There is no denying that armed offenses and mere weapon possession are some of the most serious crimes in the New York Penal Law. Its equally clear that police officers in New York should be able to protect themselves from potential danger when they stop a person who committed a crime or may be perpetrating a New York gun crime. An interesting question, however, is when a police officer can make an inquiry and ask a passenger or driver of a vehicle if he or she has a weapon such as a firearm, revolver, gun, gravity knife or switchblade. A recent decision by the top court in New York, the Court of Appeals, clearly explains the rule when this question can be asked. Whether you are a New York criminal lawyer, Assistant District Attorney or judge in a county, criminal or local court, People v. Garcia, No. 205, NYLJ 1202581900488, at *1 (Ct. of App., Decided December 18, 2012), is a critical case to read and fully understand.
In the words of the Court, Garcia’s appeal asked the judges to “determine whether a police officer may, without founded suspicion for the inquiry, ask the occupants of a lawfully stopped vehicle if they possess any weapons..” There, the police pulled over the defendants’ vehicle because of a nonworking headlight. In addition to Garcia, the driver, four other people were in the car. The three backseat passengers looked nervous, “were a little furtive,” kept “looking behind,” and “stiffened up.” Asked for his license and registration, Garcia complied. Shortly thereafter, the officers asked if anyone possessed a weapon at which time one of the passengers admitted to possessing a knife. After ordering everyone from the vehicle, what appeared to be a firearm (it was an air pistol) was found wedged between a seat (it was visible with a flashlight). After waiving his rights to an attorney, Garcia admitted the air gun was his pistol.
Those who have never been accused of a crime often fail to recognize the value or importance of the criminal defense lawyer to the justice system. Some even have pretty nasty things to say about the defense bar. Having said that, when the police wrongfully arrest a person who may have not committed a crime, people are mortified. Sadly there is a disconnect. But for the advocacy of a criminal lawyer, the abuse, fraud or simple and honest mistake on the part of law enforcement may have gone unnoticed. People v. Wilfegher Dumay, 2012KN024855, NYLJ 1202575279850, at *1 (Crim., KI, Decided October 4, 2012), exemplifies these issues and the importance of a criminal lawyer who wants to do more than merely attempt to work out a “deal.”
In Dumay, the defendant was charged with Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree (VTL 511.1) an unclassified misdemeanor. In sort, the defendant was allegedly driving with a suspended license. The defendant argued first that there was no reasonable suspicion to stop Dumay’s car. Alternatively, the defendant sought a hearing (often called a “Dunaway Hearing”) to challenge the probable cause to stop the defendant’s vehicle and suppress the evidence obtained as a result of an illegal stop and search. More specifically, the DMV abstract or record of the defendant’s suspension. Although the court denied to motion to dismiss, for the reasons stated below the court granted the hearing to determine whether or not probable cause existed to stop and arrest the defendant.
You received a summons for having an open container of beer somewhere in New York City either on the streets of Brooklyn or Manhattan. The police issued you a pink summons and you believed you were on your way to a slap on the wrist. However, to your surprise, you, in the words of the police, are “searched incident to your lawful arrest” where they find cocaine, a gravity knife or some other contraband. Originally given merely a pink ticket, you are arrested and put through the system or issued a Desk Appearance Ticket for violating New York Penal Law 220.03 or New York Penal Law 265.01. Compounding matters, you made some statements as too the drugs or weapon you are alleged to possess. Whether it came in the form of a New York Desk Appearance Ticket or you were sent to Central Booking, you now need a criminal lawyer to help fight the misdemeanor charge you face. How did this simple “nothing” case evolve into something so serious…
While rarely anything in the practice of New York criminal law is easy and straightforward, a recent decision from an Appellate Court in Western New York has given a little extra support to New York criminal defense attorneys defending clients in scenarios such as the one mentioned above. In People v Kalikow, 2011 NY Slip Op 09452 Decided on December 23, 2011 Appellate Division, Fourth Department, the defendant had received an appearance ticket for having an open container of alcohol. This was a violation of a local municipal ordinance. Upon issuing the appearance ticket, the defendant was ultimately searched and he made damaging statements. What specifically the police recovered and what the defendant actually said is irrelevant. In Kalikow, the issue was whether the conduct of the police was legal (the search) and, if not, whether the evidence recovered could be used against the accused at trial.
Getting caught with illegal drugs in New York can be a frightening affair and one which certainly requires the assistance of an experienced criminal lawyer. Whether in the Bronx, Manhattan, Queens or Brooklyn, Assistant District Attorneys and judges can (and often do) stick to the book. Sometimes defending yourself against a misdemeanor or felony charged of Criminal Possession of a Controlled Substance can seem like an uphill battle. If you had the drugs – heroin, cocaine, etc., on your person or in your car, then there is nothing you can do right? Well, not exactly. In fact, not at all. Remember that the New York Constitution has strict guidelines regarding the ways in which NYPD officers can obtain evidence. New York has adopted standards arguably at least equal to and if not more protective of individual liberty then the standards set by federal cases. In this blog post, through the examination of a recent Bronx criminal case- People v. Sincere Pinckney, 75334C-10, NYLJ 1202514446063, at *1 (Sup., BX, Decided September 9, 2011)- I will elucidate (great word, huh?) some of the basic framework for measuring the legality of the intrusiveness of a police action in New York. The case provides a great illustration of circumstances under which evidence will be suppressed because it was unlawfully obtained in violation of the NY Constitution and the 4th Amendment.
In People v. Sincere Pinckney, the defendant was charged with Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree pursuant to VTL 511.1(a), Operating a Motor Vehicle Without a License pursuant to VTL 509.1, and Unlawful Possession of Marijuana pursuant to NY PL 221.05. It should be noted that in New York marijuana related offenses are specifically carved out from and identified as separate from Controlled Substances crimes (possession of cocaine or heroin, for example) found in Article 220. Unlawful Possession of Marijuana is actually not even a “crime,” (Criminal Possession of Marijuana is a crime) but rather a violation. Nonetheless, although Pinckney involves a marijuana charge, the standard for what constitutes an unreasonable police intrusion resulting in the suppression of evidence will apply to more serious contraband cases (e.g. possession of cocaine or ecstacy).
There is little doubt that if your home is the target of a search warrant in New York, you, as the homeowner or tenant who resides there, would have the standing or ability to challenge a search warrant executed at that premises. However, one factor that may change the dynamic of this equation is where you (again, as the homeowner who resides there or tenant who lives there) are prevented from temporarily entering or living in the premises due to an order of protection or restraining order. The obvious question then becomes, what rights or standing, if any, do you have to challenge a search of that premises pursuant to a search warrant where there is an existing order of protection keeping your from that location?
Regardless of the fruits of that search, i.e, whether the police find drugs, guns, etc, decisions have not been favorable to those who are barred from a particular premises even if they are the owners. In fact, in a recent decision from October 20, 2009 in Kings County (Brooklyn) Supreme Court, a judge found that “the defendant has no standing to challenge the validity of the search warrant since the court issued a full Order of Protection for the victim and her son.” People v. Dorcinvil
Your car was stopped in Manhattan after the police accused you of DWI. The police pulled you over in Brooklyn for Forgery or Criminal Possession of a Forged Instrument because you had a fake registration or license. Maybe you were stopped in the Yonkers and charged with Criminal Possession of a Weapon because the police claim they thought you had a gun. Regardless of the reason, the police now want to search your car.
The police can search your car in varying degrees depending on the circumstances. Without going into details as to each of those circumstances and degrees, a search can be made if there is an exigent (emergency) circumstance, the police have a search warrant, the driver consents, or there is contraband such as drugs or a gun in plain view. Even assuming one of these reasons are applicable, a search may be limited in its scope such as to you reachable area.
You are minding your own business walking down the street in Brooklyn or maybe you just walked out of J&R Music in downtown Manhattan. A police officer approaches you and starts to ask you questions. Do you have to answer? Can you walk away? Can he detain, frisk or search you? What if, a a result of this frisk, a gun, drugs, or counterfeit money is found on your person and you now face charges of Criminal Possession of a Weapon, Criminal Possession of a Controlled Substance, or Criminal Possession of a Forged Instrument? Simply put, what are your rights and at what point did the police violate them?
Although an experienced criminal defense attorney will need a detailed account of the events that occurred, there is a very helpful and general guide line to follow. As set forth by the Court of Appeals in People v. DeBour, there are four levels of police intrusion. Each of these levels requires a certain basis and level of knowledge to justify or permit the police conduct. These levels are as follows: