The People, Respondent,v.Josefina Jimenez, Appellant.

Brief

N.Y.January 15, 2014

To be argued by RICHARD JOSELSON (15 MINUTES) Court of Appeals STATE OF NEW YORK ____________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSEFINA JIMENEZ, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT STEVEN BANKS RICHARD JOSELSON Attorneys for Defendant- Appellant The Legal Aid Society 199 Water Street New York, NY 10038 Tel: (212) 577-3451 Fax: (646) 616-4451 JULY 24, 2013 i TABLE OF CONTENTS TABLE OF AUTHORITIES......................................................................... iii PRELIMINARY STATEMENT .....................................................................1 REPLY STATEMENT OF FACTS ................................................................1 REPLY ARGUMENT.....................................................................................2 POINT I CONTRARY TO RESPONDENT’S CLAIMS, THE EXIGENCY REQUIREMENTS OF ARTICLE 1, §12 OF THE NEW YORK STATE CONSTITUTION WILL NOT COUNTENANCE, AS A WARRANTLESS SEARCH INCIDENT TO ARREST, THE SEARCH OF A CLOSED CONTAINER BELONGING TO A PERSON ARRESTED FOR A NON-VIOLENT OFFENSE WHO HAS OFFERED ABSOLUTELY NO RESISTANCE TO ARREST PROCEDURES, AND WHO, BY THE TIME OF THE SEARCH, HAS BEEN FRISKED AND HANDCUFFED WITHOUT INCIDENT (Answering Respondent’s Brief, pp. 18-48)..........................................................................2 1. Like the Trial Court and the Appellate Division, This Court May Consider Both the Hearing Testimony and the Trial Testimony Specifically Cited in Counsel’s Motion to Renew in Resolving Appellant’s Suppression Claim. .................................................6 2. There is No Automatic “Burglary Exception” to the Gokey/Smith Exigency Requirement and, Even If One Existed, It Would Not Aid Respondent Here. Under the Applicable Totality of the Circumstances Approach, the People Fall ii Woefully Short of Satisfying the Exigency Prong of the State Constitutional Test.................................................11 3. There is No Impediment to this Court’s Determining the Impact of the Supreme Court’s Decision in Gant on the Scope of Warrantless Searches of Closed Containers Incident to Arrest Under Article 1, §12 of the New York Constitution...............................................................................16 4. Gant’s Possibility-of-Access-at-the-Time-of- the-Search Requirement Applies to All Searches of Closed Containers Incident to Arrest, Not Just Those Inside Motor Vehicles. ...................................................19 5. Appellant’s Suppression Issue is Fully Reviewable by This Court. .......................................................24 POINT II CONTRARY TO RESPONDENT’S CONTENTIONS, TWO PROSPECTIVE JURORS WHO INDICATED THAT THEY WOULD HAVE DIFFICULTY ACCEPTING THE UNCORROBORATED TESTIMONY OF A DEFENDANT SHOULD HAVE BEEN EXCUSED FOR CAUSE (Answering Respondent’s Brief, pp. 49-58).................................................26 CONCLUSION..............................................................................................35 iii TABLE OF AUTHORITIES FEDERAL CASES Arizona v. Gant, 556 U.S. 332 (2009) ....................................................................................Passim Chimel v. California, 395 U.S. 752 (1969) .......................................................................................2, 21 New York v. Belton, 453 U.S. 454 (1982) ...........................................................................................20 United States v. Robinson, 414 U.S. 218 (1973) ...........................................................................................20 NEW YORK STATE CASES People v. Arnold 96 N.Y.2d 358 (2001).............................................................................30, 32, 34 People v. Berroa, 99 N.Y.2d 134 (2002).........................................................................................26 People v. Bigelow, 66 N.Y.2d 417 (1985).........................................................................................25 People v. Borges, 69 N.Y.2d 1031 (1987).......................................................................................25 People v. Calhoun, 49 N.Y.2d 398 (1980)........................................................................................... 2 People v. Concepcion, 17 N.Y.3d 192 (2011).....................................................................................8, 13 People v. Del Vecchio, 277 A.D.2d 927 (4th Dept. 2000).......................................................................13 iv People v. Delamota, 18 N.Y.3d 107 (2011)......................................................................................9-10 People v. Diaz, 107 A.D.3d 401 (1st Dept. 2013) .......................................................................15 People v. Echevarria, 6 N.Y.3d 89 (2005).............................................................................................19 People v. Edwards, 69 N.Y.2d 814 (1987).........................................................................................25 People v. Edwards, 95 N.Y.2d 486 (2000).....................................................................................8, 13 People v. Giles, 73 N.Y.2d 666 (1989)......................................................................................8-10 People v. Gokey, 60 N.Y.2d 309 (1983)..................................................................................Passim People v. Gray, 86 N.Y.2d 10 (1995)...........................................................................................17 People v. Hodge, 44 N.Y.2d 553 (1978)........................................................................................... 2 People v. Johnson, 94 N.Y.2d 600 (2000)...................................................................................26, 32 People v. LaFontaine, 92 N.Y.2d 470 (1998).....................................................................................8, 13 People v. Mack, 26 N.Y.2d 311 (1970)..................................................................................Passim People v. McCray, 51 N.Y.2d 594 (1980).........................................................................................25 People v. More, 97 N.Y.2d 209 (2002).....................................................................................8, 13 v People v. Newball, 76 N.Y.2d 587 (1990).........................................................................................18 People v. Porter, 9 N.Y.3d 966 (2007)...........................................................................................26 People v. Roberson, 249 A.D.2d 148 (1 st Dept. 1988) ........................................................................29 People v. Singleton, 42 N.Y.2d 466 (1977)........................................................................................... 7 People v. Smith, 59 N.Y.2d 454 (1983)..................................................................................Passim People v. Tarsia, 50 N.Y.2d 1 (1980).............................................................................................19 People v. Turriago, 90 N.Y.2d 77 (1997).......................................................................................8, 13 STATE STATUTES C.P.L. §270.20(1)(b)...........................................................................................30-31 C.P.L. §470.05(2) ...............................................................................................17-18 C.P.L. §710.30 .........................................................................................................18 OTHER AUTHORITIES LaFave, Search & Seizure: A Treatise on the Fourth Amendment (5th ed. 2012) .................................................................................................16, 21, 22 1 COURT OF APPEALS STATE OF NEW YORK ------------------------------------------------------------- x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSEFINA JIMENEZ, Defendant-Appellant. : : : : : : : : : ------------------------------------------------------------- x PRELIMINARY STATEMENT Josefina Jimenez submits this reply brief in answer to Respondent’s Brief (hereafter cited as “RB”), which we received on June 19, 2013. The Court has extended our time to file this brief until July 25, 2013. Justice Mazzarelli of the Appellate Division, First Department stayed execution of the judgment on July 9, 2010, and appellant was released on bond. The stay was continued, first by the Appellate Division and then by the late Judge Theodore T. Jones of this Court. As a consequence, Ms. Jimenez remains at liberty. REPLY STATEMENT OF FACTS Appellant relies on the Statement of Facts in her main brief. 2 REPLY ARGUMENT POINT I CONTRARY TO RESPONDENT’S CLAIMS, THE EXIGENCY REQUIREMENTS OF ARTICLE 1, §12 OF THE NEW YORK STATE CONSTITUTION WILL NOT COUNTENANCE, AS A WARRANTLESS SEARCH INCIDENT TO ARREST, THE SEARCH OF A CLOSED CONTAINER BELONGING TO A PERSON ARRESTED FOR A NON-VIOLENT OFFENSE WHO HAS OFFERED ABSOLUTELY NO RESISTANCE TO ARREST PROCEDURES, AND WHO, BY THE TIME OF THE SEARCH, HAS BEEN FRISKED AND HANDCUFFED WITHOUT INCIDENT (Answering Respondent’s Brief, pp. 18-48). In her main brief, appellant urged that the police violated her rights under Article 1, Section 12 of the New York State Constitution, when they conducted a warrantless search of her pocketbook incident to her arrest for misdemeanor trespass, thereby recovering the gun that is the basis of her felony convictions. As with any other exception to the warrant requirement, the People bore the burden of establishing the propriety of the police action. See Arizona v. Gant, 556 U.S. 332, 338 (2009); Chimel v. California, 395 U.S. 752, 762 (1969); People v. Calhoun, 49 N.Y.2d 398, 402 (1980); People v. Hodge, 44 N.Y.2d 553, 557 (1978). To carry that burden here, appellant maintained that the People had to make two discrete showings. First, they had to establish that the police action was necessitated by exigency – that the police had a reasonable belief that appellant’s pocketbook 3 contained a weapon or evidence of trespass – the crime for which they had arrested her. People v. Gokey, 60 N.Y.2d 309, 311 (1983); People v. Smith, 59 N.Y.2d 454 (1983) (“the exigency prong”). Second, and in addition, the police had to have a reasonable belief that appellant would gain access to any contraband that the bag may have contained (“the access prong”). Gokey, 60 N.Y.2d at 311. After the Supreme Court’s decision in Gant, 556 U.S. 332, the People could satisfy the access prong only if, at the time of the search, as opposed to the arrest, appellant was “unsecured and in reaching distance” of the pocketbook. Id. at 343-44, 351 (emphasis added). Appellant contended that, on this record, the People failed to make either of the required showings. In support of this contention, appellant relied upon the following incontrovertible propositions arising from the evidence: • The police had placed appellant under arrest for criminal trespass, a non- violent misdemeanor; none of the officers testified that they suspected that appellant had committed any other crime; • None of the officers testified that they feared for their safety or for the integrity of any potential evidence at the time the search took place; • None of the officers articulated any belief that the pocketbook contained either a weapon or easily destroyed evidence of trespass and, in any event, the record would not have remotely supported such a view even if it had been articulated; • At the time of the search, appellant was in custody, with five police officers on the scene; 4 • At the time of the search, appellant had already been handcuffed and frisked and the bag removed from her possession and placed on the ground; • The People adduced no evidence about precisely how far the pocketbook was from appellant at the time of the search; • The People adduced no evidence about whether the police had handcuffed appellant in the front or in the rear; • From the moment the encounter began, appellant had offered no resistance and had fully cooperated with police procedures. In their brief to this Court, the People do not seriously contest any of the factual allegations underlying these propositions. And, while they cannot quite bring themselves expressly to acknowledge it, the People do not dispute that the burden of justifying this warrantless intrusion rests squarely on them. Nonetheless, the People advance several arguments that warrant response. First, although both the trial court and the Appellate Division, without prosecution objection, fully reconsidered the merits of the suppression claim based on the trial testimony cited in defense counsel’s motion to renew, the People now contend that this Court must fracture its analysis by reviewing the hearing evidence and the pertinent trial testimony separately, rather than considering all the relevant evidence together (RB at 46-48). Second, the People invoke this Court’s holding in People v. Mack, 26 N.Y.2d 311 (1970), that, when the police stop a suspect based on reasonable suspicion that he has committed a burglary or other violent crime, they may 5 automatically frisk his person without further showing of exigency (RB at 32-34). Mack, however, is both factually and legally irrelevant to this case. It is factually irrelevant because, here, the officers acknowledged that they arrested appellant only for the non-violent offense criminal trespass and not for burglary or any other crime of violence. Thus, not surprisingly, the lower courts did not find and, indeed, the People never contended that the police had probable cause to arrest appellant for burglary. Mack’s frisk analysis is also legally irrelevant to search- incident jurisprudence, where this Court has explicitly eschewed such bright-line rules in favor of a totality-of-the-circumstances approach to establishing exigency under Gokey. Under that approach, the People fall far short of establishing the required exigency prong in appellant’s case. Third, though counsel expressly cited the State Constitution and urged that the search of appellant’s pocketbook was improper based on the circumstances as they existed at the time of the search (the precise holding of Gant and the exact argument appellant makes now), and although the hearing court expressly ruled instead that the relevant temporal benchmark was the “time of the arrest,” the People contend that appellant’s argument that Gant’s “time-of-the-search” analysis must inform this Court’s State constitutional consideration is unpreserved and waived because counsel cited Gokey and did not cite Gant (RB at 23-24). 6 Fourth, notwithstanding the logic of the Gant majority opinion, and the interpretations of such search-and-seizure authorities as Professor LaFave and even the Gant dissenters, the People argue that Gant’s core conclusion regarding the access prong – that a search of a container incident to arrest is improper unless, at the time of the search, the “arrestee is unsecured and in reaching distance” of the container, Gant, 556 U.S. at 343 (emphasis added) – applies only to searches of closed containers in automobiles and not to other closed container cases such as appellant’s (RB at 24-26, 40-41). The People are mistaken as to Gant’s applicability and, hence, they also fail to satisfy the required access prong of the State constitutional test. Fifth and finally, the People, citing the mixed-question doctrine, urge that the entire case is beyond this Court’s plenary review (RB at 19-20). As to each of these arguments, the People are mistaken. 1. Like the Trial Court and the Appellate Division, This Court May Consider Both the Hearing Testimony and the Trial Testimony Specifically Cited in Counsel’s Motion to Renew in Resolving Appellant’s Suppression Claim. At trial, defense counsel moved to renew the suppression motion based on Officer Pagan’s testimony that she had handcuffed appellant before searching the pocketbook and Sergeant Manzari’s testimony about the descriptions contained in the 911 radio run. On the strength of this testimony, counsel contended, inter alia, that the court should revisit the suppression issue and suppress the gun (A.87, 88- 7 89). In addressing the renewal motion, the prosecutor responded solely on the merits, arguing that the court should deny suppression, notwithstanding the newly adduced testimony (A.87-88). The prosecutor did not argue that the defense application was in any way procedurally infirm. Nor did she seek an opportunity to adduce additional proof relevant to the suppression issue, either by questioning Officer Pagan further in front of the jury or by examining her or any other witness outside the jury’s presence. In denying the application, the suppression court, too, addressed only the merits, concluding that denial of the motion was still appropriate even after consideration of the evidence that appellant was handcuffed prior to the search and did not meet the descriptions contained in the burglary 911 call (A.89-90). The Appellate Division also included the trial testimony in its suppression calculus, concluding that, “The court correctly determined that the search would still be lawful under the additional facts revealed at trial.” (A. 4). Notwithstanding this factual predicate, the People argue that this Court may not consider all of the evidence together in resolving the suppression claim. That contention is mistaken. First, the People’s present argument is both unpreserved and waived because the prosecutor failed to raise it below, arguing only the merits of the suppression issue on the expanded record. People v. Singleton, 42 N.Y.2d 466, 470-71 (1977) (where prosecutor at trial addressed defense application on the merits and never 8 contended that he had been denied “an opportunity to be heard,” nor requested “any further hearing,” those arguments could not form the basis for appellate relief); see, generally, People v. More, 97 N.Y.2d 209 (2002); People v. Edwards, 95 N.Y.2d 486, 493 (2000); People v. Turriago, 90 N.Y.2d 77, 83-84 (1997) (each rejecting prosecution arguments in suppression cases as unpreserved). In addition, because neither the trial court nor the Appellate Division found against appellant on this issue, the prosecution’s present procedural arguments are not reviewable by this Court as questions of law on the defendant’s appeal. People v. Concepcion, 17 N.Y.3d 192 (2011); People v. LaFontaine, 92 N.Y.2d 470 (1998). In any event, the prosecution’s argument lacks merit. In support of their claim that this Court may not consider the evidence cited in the defense renewal motion in resolving the suppression claim, Respondent relies on People v. Giles, 73 N.Y.2d 666 (1989), but Giles could not be more different. In that case, the court had denied the original defense motion to suppress without a hearing. Id. at 668-69. Unlike here, when testimony relevant to the suppression claim arose at trial, counsel made no motion to renew and never raised the suppression issue at all. Thus, the prosecutor had no opportunity to respond on the merits or to seek to adduce additional testimony relevant to the claim. And, unlike here, the trial court had no opportunity to reconsider the suppression issue based upon the later- adduced trial evidence. In Giles, only when the case reached the Appellate 9 Division, did the court decide to decide the suppression claim in the interest of “judicial economy.” Id. at 669. It was under these circumstances that this Court decided that the People had been “penalized by use against them of a possibly- truncated evidentiary submission at trial” to which they had had no opportunity to respond. Id. at 671. Appellant’s case resembles far more closely this Court’s subsequent decision in People v. Delamota, 18 N.Y.3d 107 (2011), and that case controls here. In Delamota, the hearing court initially denied the defense Wade motion based upon police testimony that the complainant’s son, who served as a translator during the photo identification procedure, had no previous relationship with the defendant. Id. At trial in Delamota, the son contradicted the police hearing testimony, indicating that he, in fact, had known the defendant quite well. Id. at 112. As in appellant’s case, Delamota’s attorney immediately moved to renew the suppression motion before the trial court. Id. Thus, as in appellant’s case and in sharp contrast to Giles, the prosecutor had a full opportunity to respond, including the opportunity to seek the presentation of additional evidence. Id. Finally, as in appellant’s case and unlike in Giles, the trial court ruled in Delamota, considering the newly adduced trial evidence on the merits, but denying suppression nonetheless. Id. Reviewing this record following the Appellate Division’s affirmance, this Court considered the trial testimony that had been the subject of the defense 10 motion to renew and resolved the suppression claim on the merits. Specifically, the Court noted that the: confluence [of the suppression hearing evidence] with Juan Jr.’s [trial] testimony leads us to conclude that the record does not support the finding of the courts below that the defendant failed to satisfy his burden of proving that the photo array was suggestive. Id. at 118. As a remedy, this Court did not order further suppression proceedings. Rather, the Court concluded that the motion to suppress should have been granted. The same result should follow here. 1 1 In their brief, the People seek to distinguish Delamota, apparently on the theory that, there, all of the evidence material to the suppression claim was necessarily relevant and admissible at trial, and hence the suppression issue could properly be resolved based on trial testimony, whereas here that was not the case (RB at 46-47). First, this Court made no mention of that rationale in its decision. Nor is Respondent’s assertion accurate. One can easily imagine evidence in Delamota regarding the extent and nature of the relationship of the complainant’s son and the defendant that would bear on the suppression issue, but would not have been admissible at trial. First, the son was not a witness to the incident in Delamota so such evidence may well have been deemed irrelevant. More, if the nature of the relationship between the son and the defendant implicated defendant’s uncharged criminal conduct – and there is a suggestion that it might have – such testimony may have been inadmissible for that reason as well. Contrary to the People’s view, Delamota turns on the fact that there, like here and unlike in Giles, the motion to renew was fully litigated at trial, giving the prosecutor every opportunity to seek to present additional evidence bearing on the suppression issue if he deemed it appropriate. As in this case, that did not happen in Delamota and the Court considered the trial evidence cited in the renewal motion in resolving the suppression claim. Because this case is identical, the Court should do the same. 11 2. There is No Automatic “Burglary Exception” to the Gokey/Smith Exigency Requirement and, Even If One Existed, It Would Not Aid Respondent Here. Under the Applicable Totality of the Circumstances Approach, the People Fall Woefully Short of Satisfying the Exigency Prong of the State Constitutional Test. In their brief, the People rely on this Court’s 1970 decision in People v. Mack, 26 N.Y.2d 311, and its holding that a frisk may automatically follow upon a constitutionally valid stop for burglary or other crime of violence, to argue that, following appellant’s arrest, no specific showing of exigency was required to justify the warrantless search of her pocketbook under Gokey, 60 N.Y.3d 309 and, Smith, 59 N.Y.2d 454. Put another way, the People assert that, because of Mack, the exigency prong of the State constitutional test governing searches of closed containers incident to arrest was automatically satisfied here (RB at 32-34). Respondent acknowledges, of course, that Mack was not a search incident to arrest case at all. Rather, the issue there was whether police had the authority to frisk a suspect’s person following a stop based on reasonable suspicion that the suspect had committed a burglary. Mack, 26 N.Y.2d at 316-17. The Court answered that question in the affirmative, holding that where reasonable suspicion exists to detain a suspect for burglary or another violent crime, it was “unnecessary to particularize an independent source of danger” to justify a frisk. Id. at 317. On the strength of this holding, the People contend that no particularized showing of 12 Gokey/Smith exigency was required here (RB at 33). It is understandable that the People would make this argument, given the absence of any actual showing of exigency in this record, but their reliance on Mack leads nowhere. First, even if Mack’s analysis could properly be imported to the search- incident arena – and it cannot be, see, post, at pp. 13-15 – it would be of no help to Respondent. Mack’s automatic frisk authorization hinges entirely on the existence of reasonable suspicion to detain a suspect for burglary or other violent crime. Under the logic of the People’s own analogy, the automatic right to search a closed container incident to arrest would necessarily hinge on the existence of probable cause to arrest the suspect for burglary or some other crime of violence. But no one in this case – not the police, not the prosecutor, not the trial court and not the Appellate Division – has ever suggested that there was probable cause to arrest appellant for burglary. On this basis alone, Respondent’s analogy to Mack fails. Sergeant Manzari, the officer in charge at the scene, expressly testified that he directed appellant’s arrest for criminal trespass (A. 25, 65-66). At no point did he or any of the other officers suggest that there was probable cause to effect a burglary arrest and this was hardly surprising since appellant did not remotely resemble either of the suspects described in the burglary 911 (A. 70-71). In her post-hearing arguments, the prosecutor was equally explicit: this “was a lawful arrest for trespass” (A. 46). She never contended, either then or in response to the 13 subsequent renewal motion, that the police had probable cause to arrest appellant for burglary. 2 The hearing court reached the same conclusion, holding that, “After the defendant provided insufficient answers to the officer’s questions . . . , then . . . probable cause . . . existed . . . for police to arrest the defendant for criminal trespass,” (A. 57), a determination the court echoed in denying the motion to renew (A. 89). Indeed, with regard to the burglary, the court ultimately suggested only that appellant “could have been a witness to the burglary they were investigating.” (A. 90). 3 Because there was thus probable cause only to arrest appellant for the non-violent offense of trespass, Mack, by its own terms, is irrelevant here. Compare Mack, 26 N.Y.2d at 317 (automatic license to frisk applies only when there was reasonable suspicion to detain defendant for a violent offense) with People v. Del Vecchio, 277 A.D.2d 927 (4th Dept. 2000) (Mack inapplicable when stop was for non-violent offense). In any event, the People’s effort to import Mack’s automatic-frisk rationale to the Gokey/Smith exigency analysis for searches incident to arrest also fails, more generally, on the merits. As noted, Mack was not a search incident case. In its 2 Accordingly, any argument that such probable cause existed – and it is unclear whether Respondent now makes this argument – would be unpreserved for this Court’s review. More, 97 N.Y.2d 209; Edwards, 95 N.Y.2d at 493; Turriago, 90 N.Y.2d at 83-84. 3 For this reason, too, any argument that probable cause for a burglary arrest existed would be beyond the scope of this Court’s review. Concepcion, 17 N.Y.3d 192; LaFontaine, 92 N.Y.2d 470. 14 analysis, Mack cites no search incident cases. Moreover, counsel’s examination of the 54 subsequent New York cases to have cited Mack reveals no search incident cases. Certainly, the People have cited none. Nor is any of this surprising because, this Court, in its search incident to arrest jurisprudence, has explicitly rejected precisely the sort of bright-line rule that Mack embraces. Specifically, in Smith, 59 N.Y.2d 454, this Court acknowledged the Fourth Amendment’s bright-line approach to warrantless searches of closed containers incident to arrest, but then rejected that approach as a matter of state constitutional law: “We have interpreted the New York Constitution to require that the reasonableness of each search or seizure be determined based on the facts and circumstances of the particular case.” Id. at 457 (emphasis added). Gokey, 60 N.Y.2d 309, applied the same totality-of-the-circumstances test, holding that the exigency necessary to support a warrantless closed-container search incident to arrest will be absent “unless the circumstances leading to the arrest support a reasonable belief that the suspect may gain possession of a weapon or be able to destroy evidence located in the bag.” Id. at 311 (emphasis added). In making this assessment, both Gokey and Smith and, indeed, all subsequent search incident cases, examine all of the facts surrounding the defendant’s arrest in determining whether the requisite exigency has been established. The crime for which the defendant has been arrested is certainly one such factor, but it is not the sole 15 factor. 4 Accordingly, even if the police had arrested appellant for burglary – and they did not – Mack’s automatic-frisk rule would not support the denial of suppression. Moreover, when the totality of the circumstances are considered, the People do not come close to meeting the exigency prong of the State constitutional test. After all, the crime for which appellant had been arrested, criminal trespass, was a non-violent misdemeanor. She did not meet the descriptions of the suspects in the burglary 911 call and none of the officers testified that they believed she was involved in the burglary. The suppression court, while noting that the burglary investigation was otherwise continuing, concluded only that appellant might have been a witness to that incident. In addition, the officer in charge testified that there were an adequate number of officers present to secure the scene. Appellant did not resist when the police approached her. In the words of one of the officers, she just stood there. She did not seek to flee. She surrendered her pocketbook immediately upon request. No officer testified that she made any effort to re-take possession of the purse thereafter. Before the search, an officer frisked her person 4 Indeed, the First Department, in a case decided after appellant’s, has recognized as much by finding the necessary exigency absent and ordering suppression in a case where the defendant, unlike appellant, actually was arrested for burglary before the policed searched his backpack, recovering burglar’s tools. People v. Diaz, 107 A.D.3d 401 (1st Dept. 2013). 16 and found nothing. 5 Given these facts, Gokey’s exigency prong would have precious little meaning if it were deemed satisfied here. 3. There is No Impediment to this Court’s Determining the Impact of the Supreme Court’s Decision in Gant on the Scope of Warrantless Searches of Closed Containers Incident to Arrest Under Article 1, §12 of the New York Constitution. In Gant, the Supreme Court rejected the prevailing interpretation of its own earlier precedent and concluded that the propriety of a search incident to arrest had to be measured based on circumstances as they existed at the time of the search, not the arrest. Gant, 556 U.S. at 344 & 351(majority opinion) & 361-63(dissent); LaFave, Search & Seizure: A Treatise on the Fourth Amendment (5th ed. 2012) §7.1(c), p. 699. In articulating the State Constitutional standard in 1983, however, this Court, drawing upon Supreme Court law as it was understood at the time, examined the warrantless intrusion based on the situation existing at the time of the arrest. Gokey, 60 N.Y.2d at 312; Smith, 59 N.Y.2d at 459. In her main brief, appellant asks the Court to consider the impact of Gant on the State Constitutional standard. Respondent asserts that this Court must ignore this obvious question because trial counsel failed to preserve or even waived it (RB at 23-24). The People’s argument misses the mark and this Court should reject it. 5 That appellant was handcuffed before the search took place, a pivotal fact establishing the People’s failure to satisfy the access prong of the State constitutional test, see post at pp. 22-24, also helps to establish the absence of exigency. 17 The People do not dispute, as they cannot, that counsel specifically cited the New York State Constitution’s search-and-seizure provision in her post-hearing suppression letter to the court (A. 49). Nor can they deny that, in her arguments after the hearing and in support of her motion to renew during trial, counsel repeatedly focused on the situation as it existed at the moment of the search. See (A. 43) (“When they remove her pocketbook, they open the bag and look inside and find the gun. At this point the officers need to testify that . . . it’s either for their safety or exigency. Nothing of that nature was testified to.”) (hearing) (emphasis added); (A.87, 89) (“Once she was handcuffed there’s definitely no exigency and no reason for the police to go inside her pocketbook. . . . Officer Pagan said that Miss Jimenez was handcuffed and the bag was on the floor, nowhere that Miss Jimenez could get into the bag”) (motion to renew). Although these are precisely the arguments that appellant makes now, the People contend that this Court may not assess the impact of Gant’s time-of-the- search analysis on the State Constitutional standard because counsel cited Gokey and did not cite Gant (RB at 23-24). This argument misapprehends the requirements of preservation. To preserve an issue for appellate review it is “sufficient if the party made his position . . . known to the court.” C.P.L. §470.05(2); People v. Gray, 86 N.Y.2d 10, 20-21 (1995)(“chief purpose of demanding notice through objection or motion . . . is to bring the claim to the trial 18 court’s attention”). Here, counsel did precisely that by citing the State Constitution and arguing that, at the time police searched the pocketbook, the required exigency was absent. To be sure, counsel did not cite Gant by name, but this Court has never required such citation so long as the relevant principles are conveyed. Cf. People v. Newball, 76 N.Y.2d 587, 590 n.2 (1990) (express citation to C.P.L. §710.30 not required to preserve C.P.L. §710.30 preclusion claim). The impact of Gant’s time-of-the-search holding on the New York constitutional standard is preserved for this Court’s review for another reason as well. In denying counsel’s motion to suppress, the hearing court specifically ruled that propriety of a container search incident to arrest “is measured at the time of arrest” (A. 58). Because, in response to counsel’s motion, the court thus “expressly decided the question” that appellant now seeks to present, C.P.L. §470.05(2), there is no preservation impediment to this Court’s review of the issue. Nor, contrary to Respondent’s claim (RB at 23-24), did counsel waive the issue by citing Gokey in support of suppression. Counsel cited Gokey’s exigency requirements – the distinctive ingredient of the State Constitutional standard – and argued that the People’s failure to establish the requisite exigency mandated suppression. Counsel plainly did not proffer that part of Gokey that identified the time of the arrest as the relevant constitutional benchmark and the People nowhere 19 contend that she did. To the contrary, her arguments repeatedly directed the court to the circumstances existing at the time of the search, just as Gant directs. This case is thus a far cry from People v. Echevarria, 6 N.Y.3d 89 (2005) and People v. Tarsia, 50 N.Y.2d 1 (1980), the waiver cases that the People invoke (RB at 24). In the former, counsel affirmatively urged the court to accept a partial verdict and specifically argued that doing so would not preclude further deliberations on the remaining count. This Court not surprisingly found waiver when defendant tried to make exactly the opposite argument on appeal. Echevarria, 6 N.Y.3d at 92. Similarly, in Tarsia, where the defense’s trial strategy hinged on eliciting the disputed evidence to establish the involuntariness of his statement, this Court again predictably found waiver when the defense did a 180 and attempted to challenge this same evidence on appeal. Tarsia, 50 N.Y.2d at 9. Here, counsel made no affirmative use of Gokey’s time-of-arrest focus – indeed, she did not even mention it. Thus, there is no waiver and this Court is free to assess Gant’s impact on the Gokey/Smith standard. 4. Gant’s Possibility-of-Access-at-the-Time-of-the-Search Requirement Applies to All Searches of Closed Containers Incident to Arrest, Not Just Those Inside Motor Vehicles. Procedural objections aside, the People also contend that Gant is irrelevant to this case because, in their mind, its analysis is inapplicable to “non-vehicle searches” (RB at 26). To Respondent, Gant’s holding that a warrantless search of 20 a closed container incident to arrest can be justified only if, at the time of the search, the arrestee is “unsecured and in reaching distance,” Gant, 556 U.S. at 343, applies when the accused has been removed from a vehicle in which he was arrested and placed in a patrol car, but not in a case such as appellant’s (RB at 40- 41). This argument fails for several reasons. First, this Court has already recognized that the principles governing automobile search incident cases fully apply to other closed container cases. In Smith, 59 N.Y.2d 454, which involved a closed-container search of a knapsack incident to the defendant’s arrest in a subway station, this Court relied on New York v. Belton, 453 U.S. 454 (1982), the motor vehicle search incident case that was Gant’s analytic predecessor, to resolve the defendant’s Fourth Amendment claim. In so doing, the Court rejected a defense argument that Belton applied only to searches involving automobiles. Smith, 59 N.Y.2d at 457-58. 6 Instead, this Court expressly recognized the analytical equivalence between Belton and United States v. Robinson, 414 U.S. 218 (1973), a Supreme Court search incident case involving the search of a closed container found on defendant’s person. Smith, 59 N.Y.2d at 458. If Belton applied to non-motor-vehicle cases at the time of Smith, then Gant and its holding – that the legality of a search incident to arrest must be 6 In Smith, the defense had unsuccessfully argued that the search incident rules governing automobile searches were too lax and, thus, should not apply in other closed-container cases. Here, the People argue that those same rules (as now articulated in Gant) are too strict. That argument should meet with a similar fate. 21 assessed based on the arrestee’s possibility of access at the time of the search – surely applies to non-motor vehicle cases now. That conclusion is entirely consistent with the logic of the Gant decision itself. There, the Court explicitly characterized its holding as an effort to re-tether the rule governing automobile searches of closed containers to the general closed container search-incident principles “underlying the Chimel [v. California, 395 U.S. 752 (1969)] exception.” Gant, 556 U.S. at 343. Chimel was not a motor vehicle case and one of Gant’s central points was that, with an exception that the People agree is inapplicable here (RB at 25 n. 13), the same rules applied to both situations. Indeed, the Gant dissent, which Respondent quotes selectively (RB at 25), recognized that, while Gant itself applied its access at the “time-of-the search” rule to a vehicle search following the arrest of its occupant, “there is no logical reason why the same rule should not apply to all arrestees.” Id. at 363-64. In his Treatise, Professor LaFave, agrees, reasoning that the same determination that the Gant Court made in the context of automobile searches “must now be made in any case where the search of a container is purported to be incident to the arrest of the person who possessed it.” LaFave, §5.5(a), pp. 296-97. And, again according to LaFave, “the most important characteristic” of Gant’s search incident analysis “is that it is to be applied ‘at the time of the search’ rather than at some earlier time.” 22 Id., §7.1(c), p. 699. The People provide no persuasive reason for this Court to adopt a different approach. Respondent further argues that Gant’s “possibility of access rule” – holding that a warrantless search of a closed container is justified only if the People establish that the arrestee is “unsecured and in reaching distance” of the container at the time the search occurs, Gant, 556 U.S. at 343 – is limited to cases with facts like those in Gant, where, by the time the police entered the vehicle, the accused has been removed from the arrest location and placed in a patrol car (RB at 40-41). To the extent that the People actually claim that Gant’s rule applies only in such situations, then their argument is refuted by the language of the holding itself. Plainly, the use of the conjunctive “and” in the phrase “unsecured and in reaching distance,” demonstrates that there are cases in which a warrantless search will be constitutionally infirm even when a container remains in an arrestee’s reach, so long as the arrestee has been secured. The People cannot plausibly argue otherwise. Seeking to minimize the import of the evidence that Pagan had handcuffed appellant before searching the pocketbook, the People next assert that Gant’s use of the term “secured” does not in all cases equate with handcuffing (RB at 40-41), and this may be true. One can certainly imagine cases in which a violent and obstreperous arrestee continues to resist and, hence, presents a danger to the 23 officers or to others, or a threat to the integrity of any evidence inside the container, even after he or she has been handcuffed. After Gant, however, the conclusion that a handcuffed arrestee presents a danger justifying a warrantless search merely because he or she is standing close to where the search is conducted may not simply be presumed in the absence of testimonial support. Indeed, what the Gant test precludes is exactly what the People seek here: a ruling that, although appellant was handcuffed, the People have satisfied their burden of proving that she was not “secured,” despite their failure to present record evidence affirmatively supporting that conclusion. 7 This is a case where appellant was arrested for a non-violent misdemeanor offense; she did not seek to flee; she did not resist; she had been frisked without incident; she never sought to regain possession of the pocketbook once the police had seized it; and she was in the presence of numerous police officers, none of whom expressed the slightest concern that she was armed or that she threatened the integrity of any evidence. The People did not even establish exactly how far the bag was from appellant when the search occurred, whether anything prevented Pagan from moving the bag farther away or whether appellant was handcuffed in the front or in the rear. 7 For this reason, this Court’s statement in Smith, 59 N.Y.2d at 459, that, “[w]hether in fact defendant could have had access to the bag at the moment it was being searched is irrelevant,” must be reconsidered in light of Gant. 24 After Gant, to meet their burden of proving that “handcuffed” does not equal “secured” in a particular case, the People must provide testimony from the arresting officers explaining the basis for their continuing concerns, if such concerns existed, or at the least, present record evidence establishing why such concerns were warranted. The testimony in this case establishes no such exigency. Rather, the record reveals a routine arrest in which officers searched appellant’s pocketbook, not because there was any reason to fear that she would attempt to regain possession of the bag, but, rather, because they believed they were automatically entitled to do so. The State Constitution has not, at least since Gokey and Smith, countenanced such a search. It certainly may not do so in the wake of Gant. 8 Accordingly, as with their inadequate showing on the exigency prong, the People have failed to satisfy the access prong, rendering the search constitutionally deficient for this reason as well. 5. Appellant’s Suppression Issue is Fully Reviewable by This Court. Like so many respondents in search-and-seizure cases, the People argue that appellant’s case presents mixed questions of law and fact beyond the jurisdiction 8 As noted in appellant’s main brief, the People’s failure to establish that appellant was “unsecured” at the time of the arrest also renders the search improper under the Fourth Amendment to the United States Constitution. See Appellant’s Main Brief at p. 44, n. 10. As she also noted at that time, however, because the State Constitution provides broader protections in this area, this Court need not reach the federal constitutional issue. Id. 25 of this Court (RB at 19-20). In fact, there are no impediments to this Court’s review. First, where the “lower courts have applied an incorrect legal standard, an issue of law reviewable by this Court is presented.” People v. Borges, 69 N.Y.2d 1031, 1033 (1987). Here, in denying suppression, the hearing court held that the “reasonableness of the police officer’s assertion of warrantless search of property incident to a lawful arrest is measured at the time of the arrest” (A. 57-58). Similarly, the Appellate Division affirmed this determination based on its conclusion that the bag “was within defendant’s grabbable area at the time of her arrest” (A. 4). Under Gant, however, the propriety of the police intrusion must be measured at the time of the search. Because the lower courts thus applied an incorrect legal standard, this case is fully reviewable by this Court. In addition, the case presents questions regarding “the minimum showing necessary” to establish the applicability of the search-incident-to-arrest warrant exception. See People v. Edwards, 69 N.Y.2d 814, 815 (1987); People v. Bigelow, 66 N.Y.2d 417, 420-21 (1985); People v. McCray, 51 N.Y.2d 594, 601 (1980). For that reason as well, it is subject to this Court’s full review. Finally, and at the very least, there is simply no record support for the conclusion that the People carried their burden establishing that the warrantless search was justified. On that 26 basis, too, this Court may reach the issue. People v. Porter, 9 N.Y.3d 966, 967 (2007); People v. Berroa, 99 N.Y.2d 134, 142-43 (2002). * * * For all of these reasons, as well as those in Appellant’s Main Brief, this Court should grant the motion to suppress, dismiss the count convicting appellant of second-degree criminal possession of a weapon and reduce the conviction of first-degree criminal trespass (trespass while in possession of a firearm) to one for second-degree criminal trespass. POINT II CONTRARY TO RESPONDENT’S CONTENTIONS, TWO PROSPECTIVE JURORS WHO INDICATED THAT THEY WOULD HAVE DIFFICULTY ACCEPTING THE UNCORROBORATED TESTIMONY OF A DEFENDANT SHOULD HAVE BEEN EXCUSED FOR CAUSE (Answering Respondent’s Brief, pp. 49-58). As this Court has made clear, when it comes to the law governing the excusal of prospective jurors for cause, “the guiding principles are perfectly plain: when potential jurors reveal knowledge or opinions reflecting a state of mind likely to preclude impartial service, they must in some form give unequivocal assurance that they can set aside any bias and render an impartial verdict based on the evidence.” People v. Johnson, 94 N.Y.2d 600, 614 (2000). Based on these non- controversial propositions, appellant argued, in Point II of her main brief, that the 27 trial court’s refusal to excuse two prospective jurors 1) who initially stated that they could not accept a defendant’s testimony that she lacked the knowledge required to commit the charged offense unless that testimony was corroborated by at least one other witness and 2) who never unequivocally disavowed that disqualifying sentiment. In response, the People raise two claims that warrant response. First, although there is no record indication that the two prospective jurors at issue were misled by defense counsel’s hypothetical, the People assail the inquiry as confusing and irrelevant to the facts of the case (RB at 52-54, 56-57). Second, although the prospective jurors stated that they would insist upon, and not merely prefer, hearing from additional witnesses to corroborate a defendant’s exculpatory account, and although they never unambiguously disavowed these views, the People adopt the trial court’s dismissive characterization of these statements as reflecting an unremarkable desire to “hear as much as they can” (RB at 56-57). These contentions will be addressed in turn. The People venture far afield in the efforts to shift focus from the legal standards governing challenges for cause to the quality of defense counsel’s hypothetical voir dire questions (RB at 52-54, 56-57), but these efforts are besides the point. The hypothetical that gave rise to the juror responses at issue actually had its genesis in the prosecutor’s voir dire. During her questioning, she posited a 28 criminal statute that outlawed the wearing of black after 2:00 p.m. on Thursdays and then elicited from prospective jurors their willingness to convict a defendant if the court instructed that such seemingly innocuous conduct violated the law (A. 93). The prosecutor did not say whether her imagined sartorial transgression required the accused’s awareness of the clothing ban, but, when defense counsel began her inquiry, she engrafted such a requirement. She then asked prospective jurors whether they would be prepared to accept a defendant’s own sworn testimony that she lacked the requisite knowledge to commit the crime (A. 95-96). It was in response to that query that Ms. Marte and Mr. Rubio indicated that they could not do so – that they would require the corroboration of at least one additional witness from the defense (A. 96). In critiquing the defense hypothetical, Respondent notes that few criminal statutes require an accused’s knowledge that the conduct at issue is unlawful. They then launch into a lengthy, though irrelevant, disquisition into the distinction between mistake-of-law and mistake-of-fact defenses (RB at 53, 54, 56). None of this bears on the challenge for cause issue. First, while it may indeed be unusual for criminal statutes to require defendants to have knowledge of the wrongfulness of their conduct, no actual criminal statute would ever (one would hope) criminalize, as the prosecutor’s hypothetical did, the wearing of a black shirt. On a 29 scale of unorthodoxy, the defense addition of a knowledge-of-wrongdoing element pales in comparison to the prosecution’s original creation. More fundamentally, while Respondent’s argument may have had some force if the defense had endeavored to challenge Ms. Wirchinski, who said she was reluctant to consider an accused’s lack-of-knowledge testimony on the view that “ignorance of the law is no excuse” (A. 96-97), that is not what happened here. Neither Ms. Marte nor Mr. Rubio voiced any concern on that issue, and Ms. Wirchinski herself recognized as much when she stated, after hearing what her fellow jurors had said, “I’m . . . kind of hinging along a different line” (A. 96). Unlike Ms. Wirchinski, both prospective jurors Marte and Rubio expressed great discomfort about their ability to accept the uncorroborated, exculpatory testimony of a criminal defendant (A. 96, 98-99). This potential bias had absolutely nothing to do with the alleged mistake-of-law flaws that the People identify in the original hypothetical and everything to do with the facts of this case, in which appellant might have elected to testify, without conceivable corroboration, that she was not aware that the gun was in the pocketbook. 9 Accordingly, Respondent’s complaints 9 Hence, appellant’s case is entirely distinguishable from People v. Roberson, 249 A.D.2d 148 (1 st Dept. 1988) (RB at 50, 52, 57), in which the Appellate Division cited the irrelevance of counsel’s voir dire questioning to the facts and applicable law of the case as a basis for denying a challenge for cause. The First Department reliance on Roberson to uphold the denial of the cause challenges in appellant’s case (A. 4), highlights the flaws in its analysis. 30 about the supposed shortcomings of counsel’s question provides no grounds for excusing the court’s subsequent denial of the challenge for cause. The People fare no better when they attempt to excuse the denial of the defense cause challenges by adopting the trial court’s position that the prospective jurors at issue were merely expressing a preference to “hear as much as they can” (A. 110) (RB at 56-57). In fact, the record demonstrates that this supposed desire to hear as much as possible flatly contradicted the constitutionally mandated burden of proof and, thus, constituted “a state of mind . . . likely to preclude [a prospective juror] from rendering an impartial verdict.” People v. Arnold 96 N.Y.2d 358, 363 (2001); C.P.L. §270.20(1)(b). During counsel’s voir dire questioning, one prospective juror – Ms. Bellamy – explained that an accused’s own assertion that she lacked the knowledge necessary to commit a crime would be inadequate “so maybe [the accused] needs some other people to . . . prove to me that she didn’t know that she couldn’t wear the shirt.” (A. 96). When counsel then summarized Ms. Bellamy’s response – “So you need more than one person?” – the prospective juror confirmed that she did (A. 96). At this juncture, Ms. Marte and Mr. Rubio, the jurors at issue here, entered the picture: DEFENSE COUNSEL: Does everybody agree with Ms. Bellamy? Ms. Marte, do you agree? Do you want somebody else to decide? 31 MS. MARTE 10 : The same thing. DEFENSE COUNSEL: You want more than one person to explain that Ms. – MS. MARTE: Yeah. DEFENSE COUNSEL: You’re also shaking your head, Mr. Rubio. MR. RUBIO: Yes. DEFENSE COUNSEL: So. Ms. Bellamy is not enough? MR. RUBIO: No. One more. (A. 96). Contrary to Respondent’s present position, these views were disqualifying under C.P.L. §270.20(1)(b), and were not simply indicative of desire to hear as much as possible. Indeed, the court itself recognized as much when it promptly intervened and provided a corrective legal instruction, explaining that it was the quality and not the quantity of the evidence that must govern a juror’s deliberations (A. 97). At this point, the prospective jurors could still have been salvaged so long as they “unequivocally” repudiated their prior views in a manner that “clearly express[ed]” that their previously stated opinions would not “prevent [them] from 10 In the record, the prospective jurors are not identified by name, only as “a prospective juror.” Because, in the passages quoted herein, it is clear from counsel’s question which prospective juror is responding, the name of the juror is used in place of “a prospective juror” for the sake of clarity. In only one instance, see, post, at p. 33, n. 11, do the parties disagree about the identity of the speaker. 32 reaching an impartial verdict.” Arnold, 96 N.Y.2d at 363; Johnson, 94 N.Y.2d at 614. So it was with prospective juror Bellamy. When counsel inquired whether the court’s instruction had “change[d] her mind,” Ms. Bellamy responded that it had (A.97). Counsel continued: DEFENSE COUNSEL: But if you didn’t know and it’s just you [testifying as the accused], do you still need more than one person? MS. BELLAMY: No. DEFENSE COUNSEL: You sure? MS. BELLAMY: Yeah. DEFENSE COUNSEL: Positive? MS. BELLAMY: Yes. (A. 98). Defense counsel did not challenge prospective juror Bellamy for cause. Ms. Marte and Mr. Rubio presented a markedly different situation. When counsel again turned her attention to them after the court’s curative instruction, the following exchange took place: DEFENSE COUNSEL: Ms. Marte, do you still want more than one person? MS. MARTE: Same thing that I said before. DEFENSE COUNSEL: You still need more than one person? 33 MS. MARTE: Yes. DEFENSE COUNSEL: So even if we say it’s just the quality of the evidence, that’s not sufficient for you? MS. MARTE: No. Sometimes it’s okay, but sometimes some cases, it depends. DEFENSE COUNSEL: Mr. Rubio? MR. RUBIO: It depends on the case. DEFENSE COUNSEL: Do you think just one person is enough? MR. RUBIO: I think I need more than one. DEFENSE COUNSEL: You want more than one person. Do you want more than one person? A PROSPECTIVE JUROR: No, as long as the person is credible, that’s fine. 11 (A. 98-99). Later in the voir dire, when counsel asked whether credibility would “come into it” if “it’s just one person,” Mr. Rubio agreed that it would (A. 99). This was the state of the record when counsel moved to challenge Ms. Marte and Mr. Rubio for case. At that juncture, nothing prevented the prosecutor from asking the court to question the jurors further in an effort to clarify the record and 11 In their brief, the People seek to attribute this final statement to Mr. Rubio (RB at 10, 57), but this is simply not a realistic interpretation of the record. Under Respondent’s interpretation, counsel asked Mr. Rubio a question, received a response, recapitulated that response on the record and then immediately asked the exact same question to Mr. Rubio again, this time receiving a diametrically opposite answer with no explanation for the complete reversal offered or sought. A far more plausible reading of the record is that counsel, having fully elicited Mr. Rubio’s views on the subject, reiterated them and then asked the question, verbatim, to a different prospective juror, this time receiving the opposite response. 34 rehabilitate them. For that matter, nothing prevented the court from doing so sua sponte. Instead, the court simply denied the challenges without any additional inquiry. The People accord no importance to this failure to act, but, in fact, it is fatal to their claim. In the final analysis, both Ms. Marte and Mr. Rubio initially stated that they would be unable to accept the uncorroborated testimony of an accused on the issue of knowledge. After the court’s curative instruction, these jurors, unlike others who had at first expressed the same opinions, largely reiterated their disqualifying views. To the extent that both made additional ambiguous comments during the voir dire, they surely never offered the kind of unequivocal statement that “clearly express[ed] that any prior . . . opinions that reveal[ed] the potential for bias [would] not prevent them from reaching an impartial verdict.” Arnold, 96 N.Y.2d at 363. Accordingly, the trial court should have heeded this Court’s oft-repeated admonition to “err on the side of excusing the juror.” Id. at 362. It did not do so and, accordingly, appellant’s convictions must be reversed. 35 CONCLUSION FOR THE REASONS ADVANCED HEREIN AND IN POINT I OF APPELLANT’S MAIN BRIEF, APPELLANT’S CONVICTIONS SHOULD BE VACATED, THE MOTION TO SUPPRESS GRANTED, THE CRIMINAL POSSESSION OF A WEAPON COUNT DISMISSED AND THE FIRST- DEGREE CRIMINAL TRESPASS COUNT REDUCED TO SECOND-DEGREE TRESPASS. FOR THE REASONS STATED HEREIN AND IN POINT II OF APPELLANT’S MAIN BRIEF, APPELLANT’S CONVICTION SHOULD BE VACATED AND A NEW TRIAL ORDERED. Respectfully Submitted, STEVEN BANKS RICHARD JOSELSON Attorneys for Defendant-Appellant July 24, 2013