Arkansas Prosecutor and Amazon at War Over Release of Device’s Data Recordings; Consumer Privacy Rights in Question

–by Samantha Pallini


Abstract: An Arkansas prosecutor believes that a murder suspect’s Amazon Echo data recordings could be used as evidence in the case. However, Amazon continues to refuse to comply with requests for the data.


“Alexa, how did Victor Collins die?”

On November 21, 2015, James Bates, Victor Collins, and two other friends watched a football game together in Bates’s home in Bentonville, Arkansas. According to an affidavit, Bates went to bed around 1 a.m., leaving Collins in the hot tub. When he awoke the next morning, Bates found Collins floating face down, deceased.

Bates called 911 to report Collins’s death, but police suspected foul play. The Arkansas chief medical examiner ruled Collins’s death a homicide by strangulation with a contributing cause of drowning. Police obtained a search warrant for Bates’s home thereafter.

Inside, detectives found several smart devices, including an Amazon Echo. An Echo is a speaker device that is activated by the wake word “Alexa.” According to Amazon, when a user states the wake word “Alexa,” the Echo device starts recording the audio and streams it into the Amazon cloud. In the cloud, a processor analyzes the user’s request and determines how to respond. The audio recordings are thereafter stored remotely by Amazon, while still allowing for review or permanent deletion by the user at any time.

In the search warrant, investigators stated that they believe the recordings and data of Bates’s Echo could be evidence because “the device is constantly listening for the ‘wake’ command of ‘Alexa’ [which] records any command, inquiry, or verbal gesture given after that point, or possibly at all times without the ‘wake word’ being issued.”

On two occasions, Prosecutor Nathan Smith attempted to obtain the data from Amazon, but Amazon refused, stating that it “will not release customer information without a valid and binding legal demand properly served on [it]” and that it “objects to overbroad or otherwise inappropriate demands as a matter of course.” A discovery hearing is scheduled for March 2017.

With February’s FBI-Apple battle over unlocking the iPhone of the San Bernardino shooter, Prosecutor Smith’s request for Bates’s Echo data ushers out 2016 with yet another privacy concern that leaves consumers wondering where the line between privacy rights and disclosure is drawn. However, the Echo’s data retention also invites questions of whether “always on” devices cross a line of their own.

The Echo is one of several new “always on” devices. Google, Samsung, Nest, Canary, Microsoft, and Mattel have also created “always on” devices, which can be activated by phrases such as “Ok Google,” “Hello Barbie,” or “Xbox on.” While these companies assert that their devices only begin audio recordings after the wake command is said, many consumers and advocacy groups complain that wake commands as simple as “ok” and “hello” easily confuse devices into recording at times when they should not be.

The Electronic Privacy Information Center (EPIC) wrote a letter to the Department of Justice in July 2015 requesting that the Federal Trade Commission “determine whether these devices violate federal wiretap laws that prohibit the unlawful interception of private communications. 18 U.S.C. 2510 et seq.”

EPIC argues that Amazon, specifically, has not disclosed their data collection practices, which involve interconnection with a range of third-party companies. Consequently, EPIC asserts that “[b]y introducing ‘always on’ voice recording into ordinary consumer products . . . companies are listening to consumers in their most private spaces.”

While the outcome of Amazon’s refusal to provide Prosecutor Smith with Bates’s Echo data is undetermined, surely 2017 and the growing “always on” market will invite more legal analysis and policy-making in the year to come.

Survey: 2015 Evidence Law

Survey of New York Evidence law for 2014–2015.

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Patricia A. Lynn-Ford, Esq., Partner in the Lynn Law Firm, L.L.P. in Syracuse, New York, has been representing injured persons and their families in courts throughout New York State for over twenty-five years. The author has an active trial and appellate practice, which also includes representation of individuals and businesses in commercial claims. She is a Fellow of the American College of Trial Lawyers and a member of the New York Super Lawyers Registry. She has lectured extensively on civil trial practice and evidence as part of continuing legal education programs. She and her firm welcome questions and referrals at The author would like to express gratitude to the staff of the Syracuse Law Review for their diligence and assistance, as well as Martin A. Lynn, Esq., Partner in the Lynn Law Firm, whose assistance and input was invaluable.

Man’s Sexual Tendencies Properly Admitted to Jury

–by Darian Niforatos

Citations: People v. Brewer, 2016 N.Y. LEXIS 3495 (2016); People v. Molineux, 61 N.E. 286 (N.Y. 1901).

Abstract: The issue surrounding this case was whether the trial court erred in allowing the People to submit evidence of the distinctive manner in which the defendant engaged in sexual acts with consenting adults. The evidence was admitted because it confirmed the testimony of two minor victims since it was highly relevant, and its probative value was not outweighed by the potential for prejudice.


The two victims in this case were sisters, aged nine and seven.  They lived with their mother, along with the defendant and other adults in a house that was used for selling drugs and engaging in sexual activities.  The defendant sexually abused the sisters in an unusual manner.  The defendant would take them into a back closet and have them perform oral sex while he smoked crack with his shirt pulled over his head.  The girls ran to their mother right after the incident to report what had happened.  After learning of this, the mother immediately packed up everything and left the house.

The evidence the People sought to introduce was the testimony of the mother and other women who had experienced performing oral sex on the defendant in the same manner the two sisters described: in a closet with his shirt pulled over his head while he smoked crack.

The defense argued the drug use and the sexual acts were “clearly prejudicial and not probative enough for the court to exercise its discretion and allow that testimony.”  The People argued it demonstrated a pattern of behavior. The trial court ruled in favor of the People on the condition the mother provide names, dates, and proof she had personally observed the other women performing sexual acts on the defendant.

The Appellate Division and this Court analyzed People v. Molineux, which limits the introduction of prior uncharged crimes or prior bad acts that show the defendant’s propensity towards crime. The Court concluded the evidence of the defendant’s drug use was an uncharged crime, and it was properly admitted as Molineux evidence because it was not used for propensity purposes, but rather to corroborate the details of the victims’ testimony. However, the sexual acts with consenting adults were not prior uncharged crimes and could not be considered Molineux evidence.  Nevertheless, the Court stated that even though the trial court classified it as Molineux evidence, it did not change the arguments brought forth and the trial court did not abuse its discretion.

Molineux and “propensity” evidence is only limited for policy purposes.  The fear is that the jury may be more likely to find the accused person guilty when it is known or suspected that he or she previously committed a similar crime.  To determine if the evidence should be admitted, the following factors must be considered: relevance, probative value to the People’s case, and potential prejudice to the defendant.

The court found the evidence was relevant and probative in that it matched the defendant’s unique sexual habits the minor victims described, especially since neither victim had ever witnessed the defendant engaged in such sexual acts with their mother or other consenting adults.  While almost all relevant, probative evidence will be somewhat prejudicial, it will not be automatically outweighed by prejudice simply because the evidence is compelling.  It is inevitable that there will be an intended and negative impact that flows from the evidence admitted.  Nevertheless, courts enjoy broad discretion in deciding whether to admit evidence, and the court will intervene when the trial court has either abused its discretion or exercised none at all.

In this case, even though the sexual encounters with the other adult women and the drug use were prejudicial to the defendant in that it strengthened the People’s case, considering the full extent of the evidence the court did not find the trial court abused its discretion in admitting the particular evidence.

Prosecutors Can Impeach with Inconsistent Statements to Police

–by Emily Keable

Citations: People v. Chery, 2016 N.Y. Lexis 3459 (2016); People v. Savage, 409 N.E.2d 858 (N.Y. 1980).

Abstract: When a defendant’s initial statements to the police differ from the testimony the defendant provides at trial, the prosecution is able to impeach the defendant.


Procedural History

The defendant and another man robbed $215 from the complainant, who was the only employee at a small grocery store. The complainant was closing the store that night, but there were two other witnesses who testified at trial. The officers arrived at the scene and handcuffed both the defendant and the complainant, unsure at this point who was at fault. The officer observed a sharp wooden object in the defendant’s hand and a long wooden board on the sidewalk. The officer recovered $215 from the defendant’s pocket. After speaking with both parties and the two witnesses, the defendant was subsequently arrested.

Prior to trial, the trial court denied the defendant’s motion to suppress the statement he made to the responding officer at the scene. The defendant had asked the responding officer, “why isn’t [complainant] going to jail, he kicked my bike, he should go to jail too.” The defendant’s theory was that the statement was “spontaneous and not the product of investigation” and should therefore not be used against him.

At trial, the defendant took the stand and testified on direct examination that before the incident, he saw the complainant chasing two girls running away from the store. The complainant was yelling at the girls for trying to steal from the store. The defendant continued to testify that he told the complainant that yelling at the young girls was not good for business. The complainant then kicked the defendant’s bicycle and hit the defendant in the head with a piece of wood. The defendant testified that when the police arrived he had been struggling over control of the piece of wood with the complainant.

After direct, the prosecution asked the trial court to impeach the defendant with the defendant’s selective silence during the initial, spontaneous statement to the police. The prosecution relied on People v. Savage to assert that the defendant could be impeached as the defendant testified to certain events that were not included in the initial statement to police. Although the defense argued that Savage was distinguishable from the present case because the defendant in Savage had received Miranda warnings, the trial court allowed the prosecution to impeach the defendant. Subsequently, the defendant contradicted himself on the stand and he was convicted of robbery in the first degree and two counts of robbery in the second degree. The Appellate Division confirmed.



The issue presented to the Court of Appeals was whether the trial court erred in allowing the prosecution to use the defendant’s selective silence to impeach the defendant’s testimony.

Initially, the court held that the defendant’s constitutional rights to due process or to remain silent were not invoked in this matter. Rather, the court focused on the prosecutor’s use of the defendant’s selective silence during a spontaneous statement for impeachment purposes.

The general evidentiary rule established precludes the use of a defendant’s pretrial silence. This rule has been held applicable both to direct examination and for impeachment purposes. The rational behind this rule has remained steadfast in that a defendant’s silence has a significantly low probative value due to its general ambiguity.

Savage recognizes a narrow exception to this rule. When “circumstances make it most unnatural to omit certain information from a statement, the fact of the omission is itself admissible for purposes of impeachment.”

The court held that this case fell within the confines of Savage. It emphasized that the defendant’s statement was made spontaneously at the scene in an attempt to inform the police on whom to arrest. The defendant’s statement was not inculpatory, but was rather a description of the event. Therefore, since the defendant testified that he spoke with police at the scene, the credibility of his initial spontaneous statement was legitimately called into question. It was viewed that the defendant’s selective silence to the police on facts that would have been more favorable to him illustrated an attempt to fabricate his testimony. Therefore, the jurors were properly allowed to draw their own conclusions from the prosecution’s introduction of the defendant’s selective statements.

Justice Department Rejects Forensic Science Recommendations; Critics Disapprove

—by Jennifer Pratt

Abstract: Attorney General Loretta Lynch opted not to adopt any recommendations set forth in a report to the President about the unreliability of scientific testing in court settings.  Critics fear this may lead to increased numbers of convictions for innocent defendants.

Citations: Gary Fields, White House Advisory Council Report is Critical of Forensics Used in Criminal Trials, The Wall Street Journal, (Sept. 20, 2016); President’s Council of Advisors on Science and Technology, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, (2016).


In early September, the President’s Council of Advisors on Science and Technology (“the Council”) released a report (“the report”) on forensic science.  The report was a scathing review of how scientific evidence is analyzed and used in criminal trials.  According to the Council, a large portion of the most common analyses used do not meet scientific standards.

A large part of the Council’s criticism rested on the Federal Bureau of Investigation (FBI) laboratory and its processes.  The report raised various questions about the use of different types of common analyses performed at the lab, including hair, firearm and bite-mark analysis.  It also made recommendations for how to improve the forensic science agenda at the laboratory.  According to the Council, it is necessary for the FBI to expand its development of objective scientific methods used to test evidence that will be used in criminal cases.  Currently, said the Council, there are three specific subjective tests that need to be made objective: latent fingerprint analysis, firearms analysis, and sometimes, DNA analysis.

The Council also articulated recommendations for stricter proficiency testing of analysts.  It argued that the current standards for proficiency are insufficient for what is required of experts in the field.  According to the Council, “increased rigor” in proficiency testing is necessary to ensure that analysts are as well trained as is necessary.

In regard to the law, the Council stated that legal standards in cases that involve any scientific evidence should be based on scientific validity.  The report further intimated that neither experience, judgment, nor even solid professional practices could make up for actual evidence of “validity and reliability” in scientific testing.

Shortly after the Council released its report, the United States Attorney General, Loretta Lynch, responded to its findings.  She stated that the Justice Department would not be adopting any of the recommendations laid out by the Council.  In explaining why, Ms. Lynch said that there had already been large steps taken toward strengthening forensic science within the Justice Department.  She also said that the current legal standards are already based on sound scientific principles, and therefore do not need updating or changing.

This is not dissimilar to actions taken by the Department of Justice in the past.  For example, when the Attorney General formally adopted a new code of ethics for forensic science in September, there had been large changes made from what had been suggested by the National Commission on Forensic Science.  To critics, it appears as though the Justice Department is reluctant to adopt any new standards that would take power away from prosecutors or law enforcement.

One such critic is Barry Pollack, the president of the National Association of Criminal Defense Lawyers.  He stated that it is common knowledge amongst defense attorneys that the validity of scientific evidence and testing has been overstated by law enforcement for years.  He went on to say that the report to the President provided even more evidence that flawed analyses were consistently being used in courts, and furthermore, that those analyses were leading to wrongful convictions.

Law-enforcement officials, on the other hand, have stated that the report’s findings, if adopted, would lead to many “unwarranted challenges” in cases where defendants had been correctly convicted.  The FBI also disagreed with much of what the report said.  In a statement, an FBI official said the report “makes broad, unsupported assertions” about scientific testing, and forensic science in general.  The official further attacked the Council for not mentioning any published research studies, which may have already met the report’s criteria for scientific testing.

The question for many now is whether the Justice Department will continue to reject any and all recommendations for improving scientific analyses.  If it does, many defense attorneys worry that conviction rates for those who are innocent will continue to rise.  This poses ethical and moral questions to prosecutors across the country, as they must now determine how to handle evidence that may not be reliable.  At the very least, this issue has made its way into the spotlight and will hopefully be discussed more in the future.

In Jail? Be Careful What You Say on the Phone, It May be Used Against You in Court

—by D.J. Nugent

People v. Johnson, No. 37, 2016 N.Y. LEXIS 752 (N.Y. Apr. 5, 2016).


The Court of Appeals upheld a New York City regulation that permits prisons, such as Rikers Island, to monitor and record inmates’ non-privileged conversations. Furthermore, the Court held that upon request of the District Attorney’s Office, the prison may turn over any recording for use at trial.



Marcellus Johnson (“defendant”) was arrested for robbery and could not make bail, thus being held at Rikers Island (“Rikers”). While at Rikers, defendant made multiple telephone calls to his friends and family. In these calls defendant made incriminating statements and used vulgar language in reference to the victim and other individuals involved in the robbery. Pursuant to New York City Regulation, Title 40 RCNY § 1-10 (“regulation”), the Rikers administration listened to and monitored these calls.

The regulation provided that prisoners may make telephone calls, that telephones shall be installed in the housing areas of prisons, that upon the implementation of appropriate procedures prisoners’ phone calls may be listened to when legally sufficient notice has been given to the prisoners, and that telephone calls to several classes of people, such as attorneys, shall not be monitored or listened to.[1] Rikers implemented appropriate procedures to record prisoners’ phone calls. These procedures stated that three notices would be provided to prisoners to inform them that their phone calls were being recorded and or monitored. One notice, written in English and Spanish, was posted near the telephones the prisoners use, one notice was set forth in the inmate handbook, and one notice was played at the beginning of each call that a prisoner made from Rikers.

Rikers stated that it only records calls on a “needs basis” which means when a situation “prompts” review, such as calls that involve institutional and public safety and security. New York City District Attorneys’ Offices may request a copy of the prisoner’s recorded call, and such requests are decided within three business days by Rikers Deputy Commissioner for Legal Matters, which has no criteria for deciding such requests. The New York City District Attorney’s Office acquired the recordings of the calls that defendant made, and sought to play excerpts of these conversations at trial.


Procedural History

Defendant filed a motion in limine to bar the prosecution’s use of the recordings arguing the disclosure was unauthorized and unwarranted under Rikers’s procedures, and that disclosure to the District Attorney’s Office undermined his Sixth Amendment right to counsel. The trial court denied this motion, and the prosecution was allowed to play excerpts of the recordings for the jury. The jury then convicted defendant of robbery, larceny, and possession of stolen property. On appeal the appellate division found the recordings admissible, although defendant’s right to an attorney had attached. The New York Court of Appeals granted leave to appeal.


Court’s Analysis and Reasoning

The defendant claimed that Rikers’s practice regarding prisoners’ phone calls violated his right to counsel, exceeded the scope of Rikers’s regulatory authority, and was conducted without defendant’s consent. The Court held the claims were either without merit or were unpreserved, and did not warrant reversal or a new trial.


  1. Sixth Amendment Violation

Defendant’s Sixth Amendment argument was that by recording his phone calls Rikers essentially acted as an agent for the prosecution in eliciting damaging statements from him. The Sixth Amendment prohibits the use of incriminating statements deliberately elicited from a defendant by government agents. The Court emphasized that a violation of a defendant’s Sixth Amendment right to counsel requires the involvement of the state in eliciting that evidence.

The Court stated that there was no evidence that Rikers elicited or encouraged defendant to conduct these telephone conversations, and that defendant was on notice that the phone calls were being recorded, therefore analogizing this situation to an informer who passively receives information from a defendant, which the Court has held does not constitute acting as an agent of the government. Furthermore, defendant argued that his unique situation, specifically his limited access to the outside world, left him without options other than to make statements out of necessity during phone calls that were detrimental to his defense. The Court held that however true this argument may be it does not establish that Rikers acted as an agent of the prosecution in defendant’s case.


  1. Rikers Acting Beyond the Scope of its Authority Provided in the Regulation

The Court held that regardless of whether the record supports defendant’s argument, he is not entitled to suppression or preclusion of the phone calls on those grounds. The Court stated that suppression of evidence is warranted when the violation of a statute implicates a constitutionally protected right. Furthermore, defendant failed to identify a statutory right violated by Rikers because the regulation does not prohibit Rikers’s recording of prisoners’ conversations with friends and family.


  1. Lack of Consent


The Court held that defendant’s lack of consent argument was not preserved because he failed to argue to the trial court that his consent could not be broader than the notice of monitoring that was provided to him.



Judge Pigott concurred with the majority’s analysis and holding, but wanted to bring further attention to the District Attorney’s Office’s direct and unregulated access to all of an inmate’s non-privileged telephone conversations. The judge acknowledged that Rikers had a legitimate interest in maintaining the safety and security of its detention center, but compared this to the possibility that District Attorneys’ Offices may abuse the regulation. Specifically, the judge focused on the fact that the prosecution regularly is allowed access to phone recordings from Rikers, and that people who are detained before trial have a better chance of being convicted because of the inequities that a detained defendant faces in preparing his/her case. Faced with these realizations, the judge believed that a defendant’s only choice was not to use prison phones, which was a result that the judge could not sanction.

[1] Title 40 RCNY § 1-10.

New York Court of Appeals Holds “Symptom Threshold” Methodology Is Inadmissible, But Cites “Odor Threshold” Methodology With Approval

—by David M. Katz

Sean R. v. BMW of N. Am., LLC, 48 N.E.3d 937 (N.Y. 2016).


The New York Court of Appeals recently decided that the basis for an expert opinion on the specific concentration of a chemical cannot be predicated solely on a person’s symptoms, but also noted that expert opinion that a chemical was present at the concentration of scent detection could be admissible.


On February 11, 2016, the New York Court of Appeals decided Sean R. v. BMW of N. Am., LLC, 48 N.E.3d 937 (N.Y. 2016).

The plaintiff was born with significant physical and mental birth defects.  The plaintiff alleged that his injuries were caused when his mother inhaled high concentrations of gasoline fumes while driving her 1989 BMW 525i during her first trimester of her pregnancy.  Both the plaintiff’s mother and grandmother stated that they could smell gasoline odors in the car.  Additionally, the plaintiff’s mother suffered from “headaches, dizziness and throat irritation” after driving in the car.  Further, the plaintiff’s mother and father stated that they could smell gasoline in their house when the car was parked in the garage.

Two causation experts opined on the nexus between the gasoline vapor exposure, the concentration of the gasoline during the exposure, and the plaintiff’s birth defects.  Using two separate methodologies, the plaintiff’s two causation experts came to the conclusion that the plaintiff’s mother inhaled gasoline at a concentration of 1,000 parts per million based solely on the symptoms exhibited during exposure to the gasoline fumes.

The defendants first filed motions for summary judgment, arguing that the plaintiff’s experts failed to lay a foundation for their opinions.  The trial court denied the motions.  The appellate division modified the order on other grounds.

The defendants then challenged the experts’ “symptom-threshold” methodology, arguing that using symptoms to determine a concentration of a chemical is not generally accepted within the scientific community.  The trial court precluded the plaintiff’s experts from testifying because symptom-threshold methodology was not generally accepted in the scientific community as a means of determining concentrations of chemicals.  On reargument, the court reaffirmed its prior decision.  The appellate division affirmed and granted a motion for leave to appeal to the Court of Appeals.

The plaintiff’s experts employed the symptom-threshold methodology.  Under the symptom-threshold methodology, an expert uses statements regarding odors and the symptoms that resulted to determine the concentration of chemicals that a person was exposed to.  The Court of Appeals began by noting that the plaintiff could not show any scientific literature employing the symptom-threshold methodology for causation purposes.  While the Court of Appeals noted that smelling chemicals and experiencing symptoms could be corroborative of a level of concentration, that evidence alone cannot “divine an otherwise unknown concentration of gasoline vapor.”  Thus, the court found that a symptom-threshold methodology, where symptoms are used to determine the concentration of a chemical, was not generally accepted in the scientific community.

The Court of Appeals distinguished the symptom-threshold methodology from other cases where experts employ the “odor threshold” methodology.  Similar to the methodology employed by the plaintiff’s experts, experts using the odor threshold methodology determine that a chemical concentration exists because the witness smelled a chemical.  However, unlike the plaintiff’s experts, experts employing the odor threshold methodology limit their opinion to the fact that the concentration was at least at the minimum concentration required for humans to smell the chemical.  The Court of Appeals noted that the odor threshold methodology is admissible because the level of detection is self-proving: if someone can smell a chemical, then it must be present at a certain minimum level.  As a result, the Court of Appeals, while rejecting the symptom-threshold methodology, also opened the door for the odor threshold methodology in toxic tort cases where the level of detection is equivalent to the level of toxicity.

People v. Allen

This appeal addresses whether a duplicity argument based on trial evidence must be preserved for appeal where the count is not duplicitous on the face of the indictment. The appellant/defendant, Terrell Allen (“defendant”), was charged with one count of second-degree murder and one count of attempted second-degree murder for the death of the victim. Accordingly, the defendant attempted to shoot the victim while he was in the street but the gun did not fire. Ten minutes later the defendant fired two shots at the victim near the front stoop of the victim’s house. One shot missed the victim but the other shot hit the victim in the head killing him. The victim’s wife witnessed some of the event and spoke to police offices about what she saw, which included naming Welds, the co-defendant (“Welds”). Welds told the police that the defendant had fired the gun at the victim. Three days later, the police arrested the defendant in New Jersey. A lineup was conducted at the 113th precinct in Queens, where the victim’s wife identified the defendant as the shooter. Ballistics evidence also showed that the bullet recovered at the scene and from the victim’s body were fired from the same gun. The defendant and Welds were charged in a single indictment. Welds case was severed from the defendants. Welds stood trial first and was convicted of murder in the second degree by the jury. In an exchange for a promise of leniency, Welds agreed to testify against the defendant.

After the defendant was convicted he claimed three errors at trial. First, the defendant claimed the indictment is duplicitous. The defendant filed a request for a bill of particulars seeking specification of the substance of each aspect of the defendants conduct in relation to each charge. The defendant also filed an omnibus motion, which challenged the indictment as multiplicitous. The defendant claimed that the count one (1) and two (2) of the indictment charging murder in the second degree and attempted murder in the second degree are multiplicitous since they encompass either the same or a single continuing offense and should not be separate counts. Second, the defendant claimed that the Supreme Court erred in denying his motion to suppress identification testimony, which he claimed was made in a lineup that was conducted in violation of his right to counsel. Third, the defendant claimed that the trial court erred in refusing to allow the defendant to introduce extrinsic evidence on a collateral matter to impeach the credibility of a witness.

The Appellate Division held that the indictment which charged the defendant with murder and attempted murder in the second degree were not duplicitous on its face. Accordingly an indictment is duplicitous when a single count charges more than one offence. People v. Alonzo. Here, the defendant contends that at trial, the charges for attempted murder did not become arguably duplicitous until the trial evidence suggested that there was another incident involving the defendant and the victim. However, at trial, the defendant did not object during the opening statement, witness’s testimony, or to the jury charge, which could have remedied any uncertainty at trial. The First and Second Departments have held that where it is claimed that the trial evidence has rendered a count duplicitous, the issue must be preserved for review. The preservation to the constitutional right to a public trial requires the preservation of public trial claims. Bringing a public trial violation to a judge’s attention would have ensured the timely opportunity to correct the errors. Therefore, the Appellate Division held that the defendant’s claim that the indictment became duplicitous based on trial evidence could not be considered since the defendant failed to preserve his claim for review.

As for the defendant’s second claim, the Appellate Division held that the trial court did err in denying the defendants motion to suppress the lineup identification, however such an error was deemed harmless. The Appellate Division found the error to be harmless beyond a reasonable doubt due to the overwhelming evidence of the defendant’s guilt. There were three eyewitnesses, ballistics evidence, a confession to one o the witnesses, and the defendant’s effort to avoid arrest by hiding in an attic. Therefore, the error of the admission of the lineup identification was deemed harmless.

Furthermore, the Appellate Division held that the trial court did not abuse its discretion in preventing the defendant from using the police reports to impeach the credibility of the victim’s wife at trial. Accordingly, “…prior statements are often collateral to the ultimate issue before the jury and bear only upon the credibility of the witness, the [statements] admissibility is entrusted to the sound discretion of the Trial Judge whose rulings are not subject to review unless there has been an abuse of discretion as a matter of law.” People v. Duncan. Here, the police records were properly found to be inadmissible extrinsic evidence on a collateral matter, and the defendant failed to show the source of the information in the police reports was the wife herself. Therefore, the Appellate Division found that the trial court did not abuse its discretion in preventing the defendant from using police reports to impeach the witness’s credibility at trial.

Accordingly, the Court of Appeals of New York held that the Appellate Division’s order should be affirmed.

999 N.Y.S.2d 350 (N.Y. 2014)

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People v. Johnson

This appeal addresses whether a defendant’s right to counsel has been violated when he attempts to gain leniency for one crime by discussing another crime and ultimately incriminates himself for the other crime in a meeting where his attorney was not present. Defendant was arrested for burglary, and told detectives that he had information about an earlier, unrelated stabbing in attempt to obtain leniency. This led to a meeting between defendant, his attorney, police officers, and an assistant district attorney. The People agreed that they would not use any statement the defendant made in a prosecution brought against him in return for his full cooperation, but included a clause that the agreement would be null and void if the defendant violated any of its terms.

In the meeting, the defendant told law enforcement and the assistant district attorney that a friend of his had performed the stabbing, and that he was in jail at the time the stabbing occurred. However, after fact checking the police found that defendant was released ten days prior to the stabbing. The police were hesitant, but decided to wire up the defendant to speak to the friend of his that he claimed did the stabbing.

In a separate meeting, defendant met with law enforcement without his counsel present, his counsel believing that this was not an interrogation but rather a meeting to discuss strategy for the upcoming wire situation. However, when police spoke to defendant, his story changed several times, with the defendant ultimately admitting he was actually the one who had done the stabbing. Defendant was then read his Miranda warnings, and signed a typed statement. Defendant was later arrested and charged with attempted murder and assault, to which he was found guilty of both crimes. The trial court had denied his motion to suppress, and the appellate division affirmed.

When this case came before the New York Court of Appeals however, the Court reversed, ordered that the statements in question be suppressed, and ordered a new trial.  The court reasoned that defendant’s right to counsel encompassed his conversations with law enforcement regarding the stabbings since the conversations were an attempt to gain leniency for the burglary case. Therefore, defendant would have needed to waive counsel for the police to continue questioning him. There was never a waiver that occurred, so therefore the statements should be suppressed.

2 N.Y.S.3d 825 (N.Y. 2014)

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LM Bus. Assocs., Inc. v. State of New York

The State Insurance Fund, the State Police, and the Workers’ Compensation board investigated Mark Boerman for fraudulent activities. During the investigation, the State Police were granted a search warrant and searched the claimants’ offices on April 5, 2001. During execution of the warrant, a number of computers that were vital to the claimants’ businesses were removed from the office. Mr. Boerman was indicted over a year later and moved to have the computers returned. At no time before Mr. Boerman’s indictment did the claimants bring a motion to have the property returned. Following Mr. Boerman’s indictment in April 2003, the court granted the motion to have the computers returned, but the computers weren’t returned for several months. The claimants argued that the loss of computers for that time period resulted in the business failing.

The claimants brought suit seeking damages for conversion of the seized computers, negligent misrepresentation, and constitutional tort. The negligent misrepresentation claim stemmed from alleged promises made by agents during the search and in the days following that the computers would be returned as soon as possible following the copying of the data on the computers. After hearing the case, the Court of Claims in a non-jury trial determined that the defendant was liable for conversion and negligent misrepresentation.

The court explained that conversion takes place when a person intentionally and without authority exercises control over the property of another person; however, in this case, the defendant received a search warrant, which specifically authorized seizure of the computers, and the warrant placed no time limits on the amount of time the defendant could retain the property for. Because the claimants never challenged the search warrant, the search warrant provided authorization to seize the property until the County Court ordered the property be returned following Mr. Boerman’s motion. This case can be distinguished from other cases, such as Della Pietra v. State of New York, because the property in this case was seized pursuant to a valid search warrant. Even if the defendant did not have a legitimate purpose in retaining the seized computers, the defendants did not have the power to return the property without judicial authorization.

The claim for negligent misrepresentation would fail as a matter of law because the relationship between an investigator and the target of his investigation, as is present in this case, does not qualify as special relationship of confidence and trust, which would be required under the statute. The court reversed the judgment and dismissed the amended claim.

990 N.Y.S.2d 619 (4th Dep’t. 2015)

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