The People, Respondent,v.Joseph Harris, Appellant.BriefN.Y.October 16, 2013To be argued by: THOMAS M. NOSEWICZ (Counsel requests 20 minutes.) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, — against — JOSEPH HARRIS, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT RICHARD M. GREENBERG Attorney for Defendant-Appellant OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, New York 10007 (212) 402-4100 by: THOMAS M. NOSEWICZ Staff Attorney January 31, 2013 i TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 A. Leonard Lewis is shot on September 25, 2008, and soon identifies Joseph Harris as the man who came up “all of a sudden” and opened fire. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 B. Police officers use a parole warrant to arrest Mr. Harris at an apartment in Queens that he had told parole was his residence. After handcuffing Mr. Harris, the police sweep through the apartment and find a firearm under a couch they upended during this search. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 C. The prosecution charges Mr. Harris with four crimes and alleges the same time of occurrence for all of them: September 25, 2008, at 11:50 AM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 D. At the suppression hearing, the prosecutor reveals that evidence crucial to the suppression issue has been destroyed. . . . . 16 E. At trial, the court instructs the jury that it must decide “what supposedly took place at 112th Street and Lenox Avenue on September 25.” The jury deliberates for three days and sends ten notes before convicting on all counts. . . . . . . . . . . . . . . . . . . . . 19 F. Mr. Harris is sentenced to an aggregate term of forty-five years to life because his conviction for simple possession of a weapon is run consecutively to his convictions for using the weapon. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 ii G. The Appellate Division affirms Mr. Harris’s convictions, finding that a social guest does not have an expectation of privacy in his host’s home and that the simple possession offense was “complete before the shooting.” . . . . . . . . . . . . . . . . . . 22 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 POINT ONE The firearm taken from the Queens apartment that Joseph Harris had been invited into should have been suppressed because the police had no reason to enter the apartment and upend a couch after Mr. Harris had been removed from the apartment. . . . . . . . . . . 254 A. Mr. Harris had standing to challenge the search of the Queens apartment because he lived there. Even if Mr. Harris was only a social guest, he still had standing because this Court’s holdings to the contrary conflict with the United States Supreme Court decision in Minnesota v. Carter and should be overruled. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 B. Aside from saying it was “standard procedure,” the prosecution has yet to set forth specific facts justifying the protective sweep of the Queens apartment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 C. Even if a protective sweep was permissible, the police did not conduct the “cursory visual inspection” allowed because they upended couches. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 D. Justice McLaughlin should have granted defense counsel’s request to have a police officer testify about the destruction of photographs crucial to the suppression hearing. . . . . . . . . . . . . . . . 38 iii POINT TWO Joseph Harris’s consecutive sentences for simple possession and use of a weapon are illegal because all the offenses occurred at the same time and place and involved the same firearm and a single victim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 A. Penal Law § 70.25(2) requires separate and distinct acts before consecutive sentences can be imposed. . . . . . . . . . . . . . . . . . . . . . . 44 B. To avoid the “special problems” caused by consecutive sentences for weapons possession offenses, the prosecution must make an especially clear showing of a distinct act of possession and a distinct act of use. . . . . . . . . . . . . . . . . . . . . . . . . . 46 C. Here, the prosecution did not prove that Mr. Harris possessed the weapon in a separate act before using it — the only eyewitness was “paying … no mind” to Mr. Harris before the shooting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 1. Mr. Harris’s possession and use of the firearm occurred at the same time, in the same place, and had the same goal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 2. It was not until sentencing that the prosecution argued that Mr. Harris’s possession of the firearm occurred at a time separate from the shooting. Their argument has no support in the record. . . . . . . . . . . . . 51 D. Allowing consecutive sentences here — a result that increases Mr. Harris’s punishment by at least 20 years — would be an unwarranted departure from the rule of commonsense justice this Court has applied for decades. . . . . . . . . . . . . . . . . . . . . . . . . . . 55 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 iv TABLE OF AUTHORITIES Cases Ashe v. Swenson, 397 U.S. 436 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Brown v. Ohio, 432 U.S. 161 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 California v. Trombetta, 457 U.S. 479 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 In re Welfare of B.R.K., 658 N.W.2d 565 (Minn. 2003) . . . . . . . . . . . . . . . . . . . . 29 Maryland v. Buie, 494 U.S. 325 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Minnesota v. Carter, 525 U.S. 83 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Morton v. United States, 734 A.2d 178 (D.C. App. 1999) . . . . . . . . . . . . . . . . . . 29 Oregon v. Ice, 555 U.S. 160 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Payton v. New York, 445 U.S. 573 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 People ex rel. Gallo v. Warden of Greenhaven State Prison, 32 A.D.2d 1051 (2d Dep’t 1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 People ex rel. Maurer v. Jackson, 2 N.Y.2d 259 (1957) . . . . . . . . . . . . . . . . . . . 57 People v. Battles, 16 N.Y.3d 54 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 People v. Brathwaite, 63 N.Y.2d 839 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 People v. Brown, 80 N.Y.2d 361 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Christman, 23 N.Y.2d 429 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 People v. Di Lapo, 14 N.Y.2d 170 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 v People v. Frazier, 16 N.Y.3d 36 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 57 People v. Fuller, 24 N.Y.2d 292 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 People v. Fuller, 57 N.Y.2d 152 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 People v. Hamilton, 4 N.Y.3d 654 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Joseph Harris, 96 A.D.3d 502 (1st Dep’t 2012) . . . . . . . . . . . . . . passim People v. Kelly, 62 N.Y.2d 516 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 41 People v. Laureano, 87 N.Y.2d 640 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 People v. Lawrence, 24 Cal.4th 219, 226 (Cal. 2000) . . . . . . . . . . . . . . . . . . . . . 45 People v. Longshore, 86 N.Y.2d 851 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 People v. McCray, 2013 NY Slip Op 00390 (1st Dep’t Jan. 24, 2013) . . . . . . . . 45 People v. McKnight, 16 N.Y.3d 43 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 57 People v. Ortiz 83 N.Y.2d 840 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 27 People v. Perez, 37 Misc.3d 734 (Kings Co. Sup. Ct. 2012) . . . . . . . . . . . . . . . . 30 People v. Perez, 45 N.Y.2d 204 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 People v. Ramirez, 89 N.Y.2d 444 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 People v. Ramirez-Portoreal, 88 N.Y.2d 99 (1996) . . . . . . . . . . . . . . . . . . . . . . . 25 People v. Rivera, 2006 WL 5536081 (N.Y. Co. Sup. Ct. May 12, 2006) . . . . . . 49 People v. Rosario, 26 A.D.3d 271 (1st Dep’t 2006) . . . . . . . . . . . . . . . . . . . . . . . 49 People v. Rosas, 8 N.Y.3d 493 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 vi People v. Salcedo, 92 N.Y.2d 1019 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 47 People v. Salcedo, 92 N.Y.2d 1019 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 People v. Saunders, 85 N.Y.2d 339 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 People v. Snyder, 241 N.Y. 81 (1925) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 People v. Sturkey, 161 A.D.2d 101 (1st Dep’t 1990) . . . . . . . . . . . . . . . . . . . . . . 49 People v. Sturkey, 77 N.Y.2d 979 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . 48, 54, 58 People v. Taveras, 12 N.Y.3d 21 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 People v. Venegas, 10 Cal.App.3d 814 (Cal. Ct. App. 1970) . . . . . . . . . . . . . . . . 45 People v. Walsh, 44 N.Y.2d 631 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 People v. Wright, 19 N.Y.3d 359 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . passim State v. Christian, 692 So.2d 889 (Fla. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 State v. Copling, 326 N.J. Super. 417 (N.J. Super. Ct. App. Div. 1999) . . . . . . . 46 State v. Huff, 278 Kan. 214 (Kan. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 State v. Missouri, 361 S.C. 107 (S.C. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 State v. Ortiz, 618 N.W.2d 556 (Iowa 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 State v. Yarbough, 100 N.J. 627 (N.J. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Swanigan v. State, 57 So.3d 989 (Fla. Dist. Ct. App. 2011) . . . . . . . . . . . . . . . . 46 United States v. Poe, 556 F.3d 1113 (10th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . 29 vii Statutes L. 2006, c. 742, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 N.Y. Crim. Proc. Law § 240.20(1)(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 N.Y. Crim. Proc. Law § 450.90(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 N.Y. Crim. Proc. Law § 470.05(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 N.Y. Penal Law § 120.10(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 15 N.Y. Penal Law § 265.03(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 8, 15 N.Y. Penal Law § 265.03(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim N.Y. Penal Law § 265.15(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 N.Y. Penal Law § 70.25(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim N.Y. Penal Law §§ 110/125.25(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 15 viii Other Authorities 6 Wayne LaFave, Search and Seizure (4th ed. 2004 & 2010-2011 Pocket Part) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Barry A. Kamins, New York Search & Seizure (2012) . . . . . . . . . . . . . . . . . . . . . 28 Brief for Respondent, People v. Joseph Harris, 96 A.D.3d 502 (1st Dep’t 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Brooks Holland, High Court Improves Standing of Social Guests to Challenge Searches, N.Y.L.J., Jan. 12, 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Edwin J. Butterfoss, Mary Sue B. Snyder, Be My Guest: The Hidden Holding of Minnesota v. Carter, 22 Hamlin L. Rev. 501 (1999) . . . . . . . . . . . . . . . . . . . . . . 28 Michael Wilson, Hidden Communal Guns are More Common, N.Y. Times, Feb. 10, 2012 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Thomas K. Clancy, The Fourth Amendment: Its History and Interpretation (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 William J. Stuntz, The Collapse of American Criminal Justice (2011) . . . . . . . . 60 1 QUESTIONS PRESENTED 1. Police officers used a parole warrant to arrest Joseph Harris at an apartment in Queens. Mr. Harris had told his parole officer he was moving to the apartment and the warrant listed the apartment as his address. Mr. Harris’s parole officer initially approved the address, but then told Mr. Harris before the arrest that he could not live there because it was the residence of a former co-defendant. For his part, the co-defendant said that Mr. Harris had only arrived that morning. After the two men were handcuffed and on their knees in the hallway, two heavily armed officers followed “standard procedure” and searched the apartment. During this search they saw a firearm under a couch they had upended. At the suppression hearing, the prosecutor disclosed for the first time that photos of the couch had been destroyed. • Did Mr. Harris have standing to challenge the search of the apartment either as a resident of the apartment or, at the least, as a visitor? See Minnesota v. Carter, 525 U.S. 83, 99 (1998) (Kennedy, J., concurring) (“[A]lmost all social guests have a legitimate expectation of privacy, and hence protection against unreasonable searches, in their host’s home.”). • Was the “standard procedure” protective sweep permissible even after Mr. Harris and the other man in the apartment had been handcuffed and removed from the apartment? 2 • If the sweep was permitted, did the searching officers exceed the “cursory visual inspection” approved in Maryland v. Buie, 494 U.S. 325, 327 (1990), by physically tossing a couch? • Should the suppression court have tried to remedy the prosecution’s spoliation of evidence about the couch? 2. Leonard Lewis identified Joseph Harris as the man who shot him on September 25, 2008. Before the shooting, Lewis saw Mr. Harris talking to a man named “Bad One,” but Lewis was “paying them no mind.” Mr. Harris then “all of a sudden” approached Lewis’s car, greeted him, and “all of a sudden” opened fire. The sentencing court punished Mr. Harris twice for this offense: first for shooting Lewis and then again for simple possession of the firearm at the time of the shooting. Is Mr. Harris’s consecutive sentence illegal because the shooting and possession occurred in a “single act”? See N.Y. Penal Law § 70.25(2). 1 Parenthetical references to “A-” are to Mr. Harris’s Appendix. The transcript of the hearing held on April 27, 2009, is cited as “H1”; the proceedings on April 28, 2009, are cited as “H2”; the trial held on April 30, 2009, to May 8, 2009, is cited as “T2”; and the sentencing, on July 7, 2009, is cited as “S.” Each citation is followed by a parallel citation to the Appendix. 3 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, — against — JOSEPH HARRIS, Defendant-Appellant. Ind. No. 5027/2008 JURISDICTIONAL STATEMENT By permission of the Honorable Victoria A. Graffeo, Associate Judge of the Court of Appeals, granted September 28, 2012 (A-1),1 this appeal is taken from an order of the Appellate Division, First Department, entered June 12, 2012. (A2–4). This order affirmed a judgment rendered July 7, 2009, by the Supreme Court, New York County (McLaughlin, J.), convicting Joseph Harris after a jury trial of attempted murder in the second degree, N.Y. Penal Law §§ 110/125.25(1), assault in the first degree, N.Y. Penal Law § 120.10(1), and two counts of criminal possession of a weapon in the second degree, N.Y. Penal Law §§ 265.03(1)(b) & (3). Mr. Harris was sentenced, as a persistent violent felony offender, to indeterminate terms of imprisonment of twenty-five years to life on the attempted 4 murder and assault in the first degree counts, and twenty years to life on each criminal possession of a weapon count, with one of the sentences for criminal possession of a weapon running consecutively to the attempted murder and assault convictions. This Court has jurisdiction to hear this appeal and review the questions raised. See N.Y. Crim. Proc. Law § 450.90(1). The Appellate Division’s affirmance of Mr. Harris’s convictions raises two preserved questions of law. The first question — whether the trial court properly denied Mr. Harris’s motion to suppress — presents a question of law because defense counsel made appropriate arguments at the conclusion of the suppression hearing. See H1 1–178, H2 1–117 (A-58–352). See also N.Y. Crim. Proc. Law § 470.05(2). Preservation is not required for this Court to consider the second question — whether Mr. Harris’s consecutive sentence for simple possession of a loaded firearm violated Penal Law § 70.25(2). See People v. Laureano, 87 N.Y.2d 640, 643 (1996) (unlawful imposition of consecutive sentences reviewable even though defendant pleaded guilty); People v. Fuller, 57 N.Y.2d 152, 156 (1982) (“The right to be sentenced as provided by law, though not formally raised at the trial level, preserved a departure therefrom for review in this court.”). Nonetheless, defense counsel asked for concurrent sentences. S 9 (A-1055). 5 SUMMARY OF ARGUMENT Joseph Harris’s case presents two errors for this Court’s review. The first is the trial court’s approval of a tumultuous search through a private home that included upending furniture. The search was justified as a protective sweep — even though it was undertaken after the two men in the apartment had been handcuffed and were on their knees in the hallway. The second error is the trial court’s punishing Mr. Harris two times for offenses committed in a single act: one punishment for using a firearm in a shooting and an additional twenty years of punishment for possessing the firearm at the same time as the shooting. This case began when Leonard Lewis was shot in Harlem late in the morning of September 25, 2008. Lewis soon identified Joseph Harris as the man who shot him. Eleven days after the shooting, a team of police officers went to an apartment in Queens with a parole warrant listing the apartment as Joseph Harris’s residence. They eventually entered the apartment and arrested Mr. Harris. Two officers then tore through the apartment and upended couches inside. Underneath one of the couches was a firearm that was connected to the shooting. The prosecution contends that Mr. Harris had no standing to challenge this search and that, even if he did, the search was proper because police are allowed to sweep through homes whenever arresting someone with a prior violent conviction. 6 The prosecution is wrong. Mr. Harris has standing: the parole warrant said the apartment was his residence because he told parole he was living there. And even if he was not, the prosecution concedes that Mr. Harris was a social guest. This fact alone gives him standing under Minnesota v. Carter, 525 U.S. 83 (1998), in which five Members of the Supreme Court concluded that “almost all social guests have a legitimate expectation of privacy, and hence protection against unreasonable searches, in their host’s home.” Id. at 99 (Kennedy, J., concurring). Though this Court has yet to recognize that rule of law, it should do so now. Next, the protective sweep was impermissible. Indeed, the prosecution has yet to really even attempt to justify it as anything more than “standard procedure.” H1 136–37 (A-193–94). But even if the officers were allowed the “cursory visual inspection” of a protective sweep, Maryland v. Buie, 494 U.S. 325, 327 (1990), they exceeded it here by throwing around furniture. Their justification for doing so — that someone could be hiding under a couch — does not withstand any scrutiny. Finally, Mr. Harris was deprived of his opportunity to challenge the officers’ reasons for tossing the couch because none of them could remember anything about the couch. And photos of the couch had been destroyed by the police department when the film containing the photos was exposed to light. 7 Defense counsel wanted the officer who took the photos to testify first-hand about the couch. But Justice McLaughlin, who conducted the suppression hearing, denied this request and let the destruction of evidence pass without consequence because testimony about the couch presented “a trial issue.” H2 6 (A-241). Mr. Harris’s motion to suppress should have been granted. This Court should reverse his convictions and order a new trial. See U.S. Const. Amends. IV, XIV; N.Y. const. art. I, § 12. A jury found Joseph Harris guilty of shooting Leonard Lewis. The sentencing court then punished Mr. Harris twice for this offense: twenty-five years to life for the shooting and a consecutive twenty years to life for possessing the gun at the same time as the shooting. Running these sentences consecutive to each other is illegal. The only way these sentences could be run consecutively was if the prosecution showed that the possession was separate and distinct from the shooting. See N.Y. Penal Law § 70.25(2) (requiring concurrent sentences when offenses are committed in a “single act.”). The prosecution did not do this: their only eyewitness to the shooting — the complainant Leonard Lewis — saw Mr. Harris on the scene 8 talking to another man before the shooting but was “really paying them no mind,” T2 20 (A-401), before Mr. Harris “all of a sudden” came up to Lewis’s Jeep, greeted him, and then “all of a sudden” opened fire. T2 13 (A-394). As Lewis put it, “things just happened real fast.” T2 152 (A-533). This was the only proof presented about Mr. Harris’s possession of the firearm on September 25, 2008; in other words, there was no testimony about Mr. Harris having a firearm on September 25 other than the exact moment of the shooting. And on this evidence — which mirrored the Bill of Particulars alleging that the shooting and possession happened simultaneously, (A-10) — the possession and the shooting occurred in the same single act. Indeed, as the full context of this case shows, if this weapons possession conviction had been under a different subsection of the same statute there would be no dispute that his sentences must all be concurrent. Mr. Harris was convicted of two counts of criminal possession of a weapon in the second degree: one required showing he possessed a loaded firearm with intent to use it unlawfully against another; the other, only simple possession outside of a home or business. See N.Y. Penal Law §§ 265.03(1) (possession with intent to use unlawfully); 265.03(3) (simple possession outside a home or business). Mr. Harris’s sentence for his possession with intent conviction was not run consecutively and, under this 9 Court’s decisions in People v. Hamilton, 4 N.Y.3d 654 (2005), and People v. Wright, 19 N.Y.3d 359 (2012), could not have been. This is because the “special problems” presented by weapons possession require showing that possession with intent be committed with “a different pistol or [in] a different event” before consecutive sentences can be imposed. Wright, 19 N.Y.3d at 366 (quoting Hamilton, 4 N.Y.3d at 658). But, despite this Court’s recent teachings in Hamilton and Wright, the courts below found that simple possession can be punished more harshly than the equally culpable offense of possession with intent. That conclusion permits the prosecutor an end run around this Court’s precedents. There is, however, no reason to approve that sort of manipulation and no reason for this Court to modify its long-established rule of commonsense justice disfavoring consecutive sentences in weapons possession cases. This Court should reverse the decision below and order all of Mr. Harris’s sentences to run concurrently. 2 Lewis had a number of prior drug dealing convictions and testified pursuant to a plea bargain with the prosecutor because medical personnel found eight or nine foils of cocaine on him after he was shot. See T2 8, 33, 35, 234 (A-389, 414, 416, 615). Lewis is currently incarcerated at Bare Hill Correctional Facility serving a two year sentence for criminal possession of a controlled substance in the fourth degree in an unrelated case. See Inmate Population Information Search for Leonard Lewis, NYSID 05466142Q, as of Jan. 30 2013, available at http://nysdocslookup.docs.state.ny.us/. 10 STATEMENT OF FACTS A. Leonard Lewis is shot on September 25, 2008, and soon identifies Joseph Harris as the man who came up “all of a sudden” and opened fire. On Thursday, September 25, 2008, Leonard Lewis was shot in Harlem at approximately 11:50 AM. T2 13 (A-394). According to Lewis’s testimony at trial,2 he had driven his girlfriend’s Jeep that morning to the corner of 112th St. and Lenox Ave. and sat in the Jeep talking to his friend Alley-Mo. T2 13, 20, 70 (A-394, 401, 451). When he arrived, he noticed a number of men on the block, including people he knew as Jimmy, Mookie, and Bad One. T2 18 (A-399). Bad One was talking to a man that Lewis later identified as Joseph Harris. T2 18 (A- 399). Lewis “wasn’t really paying them no mind.” T2 20 (A-401). According to Lewis, “[a]bout 20 minutes maybe,” T2 20 (A-401), after he arrived at the corner, Mr. Harris “all of a sudden” came up to Lewis’s Jeep, said “excuse me” to Alley-Mo, shook Lewis’s hand while asking “You all right?,” and “all of a sudden” opened fire. T2 13 (A-394). People in the vicinity scattered, 11 and, according to Lewis, Mr. Harris came to the front of the car and tried to fire more bullets but was out. T2 14 (A-395). Lewis was able to drive off and flagged down police officers a few blocks away. T2 14–15 (A-395–96). Lewis soon picked Mr. Harris out of a photo array. H1 15 (A-72). B. Police officers use a parole warrant to arrest Mr. Harris at an apartment in Queens that he had told parole was his residence. After handcuffing Mr. Harris, the police sweep through the apartment and find a firearm under a couch they upended during this search. Mr. Harris was on parole, H1 16 (A-73), and the day before Lewis’s shooting, he had told his parole officer that he was changing his address from an apartment in Manhattan to one in Queens because of drug activity at his Manhattan address. H1 156, 160 (A-213, 217). His parole officer allowed him to move to the Queens apartment immediately because the “circumstances seemed extenuating.” H1 160 (A-217). Six days later, his parole officer told him over the phone that “he can’t live in Queens” because the address given was that of Ricky Kelly, a co-defendant from the robbery that Mr. Harris was on parole for. H1 157 (A-214). One of Mr. Harris’s parole conditions was that he would “not associate in any way or communicate by any means with associate Ricky Kelly without the permission of [his] parole officer.” H1 152 (A-209). 12 In the days after the shooting, Mr. Harris failed to report to parole on three separate occasions, so Parole issued a warrant on October 1, 2008, for his arrest. H1 157–59 (A-214–16). The warrant identified the Queens apartment as Mr. Harris’s residence address. H1 120 (A-177). See also T2 546, 560, 572 (A-932, 946, 958) (at trial, prosecutor referred to the Queens apartment as “the defendant’s apartment”). On October 6, 2008, the police tracked Mr. Harris to the apartment by using the location of his cellphone. H1 109 (A-166). Before October 6, Mr. Harris’s cellphone had been tracked to Pennsylvania. H1 107 (A-167). A team of at least six officers went to the apartment and knocked on the door. H1 20 (A-77). Once the officers started knocking on the door, the cellphone was turned off, but no one answered the door. H1 109 (A-166). The officers smelled cigarette smoke that they thought was coming from inside the apartment, so they “banged a little harder” on the door. H1 110 (A-167). At that point, they contacted the Emergency Services Unit (“ESU”) to do a forced entry. H1 110 (A- 167). By then, the officers had been there a few hours. H1 21 (A-78). ESU officers Cousins and Cordero — along with a back-up ESU truck — arrived wearing flack jackets and ballistics helmets. H1 132 (A-189). The two men “knock[ed] and kick[ed] on the door” and extracted its peephole. H1 133 (A- 190). They looked into the apartment and saw Mr. Harris and Kelly with “their 13 hands in the air … saying ‘All right, all right, I give up.’” H1 134 (A-191). Kelly tried to open the door but it was jammed, so the ESU officers forced the door open with a “rabbit” tool. H1 135 (A-192). They then “placed the two individuals inside in handcuffs, escorted them out … [and] continued to do a search of the apartment.” H1 24 (A-81). See also H1 24, 112–113, 136, 146, 161–162 (A-81, 169–170, 193, 203, 218–219). In searching the apartment, the ESU officers — one who was armed with a submachine gun and the other wielding a ballistics shield — “looked in closets, underneath beds and any other place where [they] fe[lt] that somebody could hide.” H1 138 (A-195). See H2 50 (A-285) (court: ESU officers were “basically throwing open the closet door, flipping the bed, flipping the couch.”). They upended a couch in the living room and saw a firearm under it. H1 137 (A-194). The firearm was eventually matched to casings recovered from the shooting of Lewis. See T2 409 (A-795). After his arrest, Kelly told the police that Mr. Harris, who he called his god brother, had not been living at the apartment and had arrived at ten that morning. H1 35–36 (A-92–93). The men had “chilled out, watched some TV … talked and smoked some weed,” until the officers arrived. H1 37 (A-94). In a later statement made during a “[l]imited use immunity debriefing,” H1 47 (A-104), Kelly said that 14 he met Mr. Harris in 1994, that the two men had been co-defendants in a robbery in the Bronx, and that Mr. Harris had slept at his apartment on occasion “for a night or a day or short periods of time,” though not since 2002. H1 48–50 (A- 105–06). In another statement, Kelly explained that his mother, who also lived in the apartment, “was out of town for several weeks.” Affirmation in Response to the Defendant’s Omnibus Motion, Mar. 2, 2009, Ex. A (A-46). In his own post-arrest statement, Mr. Harris said that “around 11:00, 11:30,” H1 42 (A-99), “he had gone to his friend Ricky Kell[]y’s house … [and] they had hung out for a little while.” H1 43 (A-100). According to the detective who interviewed Mr. Harris, Mr. Harris “said he had never been at [Kelly’s] before.” H1 43 (A-100). These statements were consistent with the defense’s explanation during motion practice that the day Mr. Harris was arrested “was the first day the defendant was living” at the Queens apartment. Amended Motion for a Mapp Hearing, Mar. 9, 2009, ¶ 13 (A-55). 15 C. The prosecution charges Mr. Harris with four crimes and alleges the same time of occurrence for all of them: September 25, 2008, at 11:50 AM. Mr. Harris was soon indicted for four crimes: one count of attempted murder in the second degree, N.Y. Penal Law §§ 110/125.25(1); one count of assault in the first degree, Penal Law § 120.10(1); and two counts of criminal possession of a weapon in the second degree. See Indictment (A-7–9). Each count of criminal possession of a weapon in the second degree was under a different subsection: one was for possession of a loaded firearm “with intent to use it unlawfully against another.” Penal Law § 265.03(1)(b). The other was for simple possession — possessing a loaded firearm outside of one’s home or business. Penal Law § 265.03(3). In a Bill of Particulars, the prosecution alleged the same approximate time for all four offenses: September 25, 2008, at 11:50 AM. See People’s Voluntary Disclosure Form, dated Nov. 13, 2008, ¶ A (A-10). 16 D. At the suppression hearing, the prosecutor reveals that evidence crucial to the suppression issue has been destroyed. At the suppression hearing the day before trial, the prosecution presented four witnesses who testified about Mr. Harris’s arrest and the search of the Queens apartment as described above. No witness could remember anything about the couch that the firearm had been discovered under. See, e.g., H1 86 (A-143) (Detective Simonetti: “I don’t recall specifically” details of the couch); H1 125 (A-182) (Detective Walla: “No, I can’t describe the couch itself.”); H1 140–43 (A- 197–200) (Detective Cousins gives six “don’t recall” answers to questions about the couch); H1 173 (A-230) (question to Senior Parole Officer Smith: “Do you remember what the couch looked like?” Answer: “No.”). One of the witnesses also said there were no photos of the couch. H1 79 (A-136). See also Request for Bill of Particulars and Demand to Produce, ¶ 24 (A-28) (defense counsel request for all police photographs). But the day after this testimony, the prosecutor revealed that there actually had been photos showing the couch but the photos had been destroyed. H2 3 (A-238). The destruction occurred when the “officer who had taken the photographs accidentally exposed the film in the camera destroying the photographs before they were even developed.” H2 3 (A-238). Defense counsel asked that the officer who had taken the photos and 17 completed a report about them be called as a witness. H2 5 (A-240). Justice Edward McLaughlin, who presided over the hearing, trial, and sentencing, refused to permit this witness to testify because the couch’s characteristics were “a trial issue.” H2 6 (A-241). Defense counsel and Justice McLaughlin had this exchange about the issue: Defense counsel: … I think the Court would want to hear how those photographs disappeared. Justice McLaughlin: No, I wouldn’t. Defense counsel: Well, I would. Justice McLaughlin: The jury may. Defense counsel: I think that it’s very relevant. Justice McLaughlin: It’s not relevant. Defense counsel: Beside the fact that the jury — once the jury hears the case, they’re not litigating the issue of the search and recovery of the gun. Also, I would — this Court was at the hearing. H2 6–7 (A-241–42). The court concluded: “If there happens to be a conviction, that could be one of the — one of the upper most appellate points in your arsenal.” H2 8 (A-243). 18 The suppression court denied Mr. Harris’s motion to suppress the firearm and his post-arrest statement. The court first held that Mr. Harris did not have standing to challenge the search of the Queens apartment because — as the prosecutor suggested, H2 23, 32 (A-258, 267) — Mr. Harris was merely a visitor at the apartment and his parole officer had ultimately forbidden him from being there. H2 52 (A-287). The court concluded that “the standard for standing is … not [that] my door’s always open to [you,] it’s not that he’s there, it’s that he had a reasonable expectation of privacy that society would honor, would expect, would understand, and as I’ve said, being where you’re prohibited from being is not one of those situations.” H2 52 (A-287). Next, the court concluded that the search of the apartment was valid because the ESU officers were fulfilling their “function … to get inside, make sure there’s nobody there, make sure that in this situation where one of the people inside — indeed, actually two of the people inside were previously convicted of an armed robbery — one of the persons inside … was wanted for a shooting.” H2 48 (A- 283). And “flipping the couch,” H2 50 (A-285), was allowed because “[i]n a moment, an ESU officer has to figure out how not to be killed,” H2 51 (A-286), and “is not interested in the interior design of any apartment in which he’s going. 19 He’s got a constant reminder that he could be dead in a nanosecond.” H2 50 (A-285). E. At trial, the court instructs the jury that it must decide “what supposedly took place at 112th Street and Lenox Avenue on September 25.” The jury deliberates for three days and sends ten notes before convicting on all counts. At trial, the prosecution called seventeen witnesses but only a single eyewitness to the shooting — Leonard Lewis. As noted above, Lewis testified that he saw Mr. Harris on the scene talking to “Bad One” before the shooting but was “really paying them no mind,” T2 20 (A-401), before Mr. Harris “all of a sudden” came up to Lewis’s Jeep, greeted him, and then “all of a sudden” opened fire. T2 13 (A-394). As Lewis put it to the investigating detective, “things just happened real fast.” T2 152 (A-533). On cross-examination, he testified to his obstructed view of Mr. Harris: “I’m sitting in a car. I just see a person come up. I don’t — I didn’t see his whole outfit.” T2 94 (A-475). Lewis also supplied a motive for the shooting: he had testified against the “No Fear” gang in the 1990s and the shooting was retaliation. T2 46–54 (A- 427–35). No evidence was offered linking Mr. Harris to the “No Fear” gang, nor was there an explanation of why such retaliation would have been carried out ten to fifteen years later. 20 At no time during trial — in either opening or closing statements or at the charging conference — did the prosecutor ever differentiate the criminal possession of a weapon charges or suggest that either of the possession offenses occurred at a time other than that specified in the Bill of Particulars: 11:50 AM on September 25, 2008. (A-10). And the court instructed the jury to consider “what supposedly took place at 112th Street and Lenox Avenue on September 25.” T2 598 (A-984). See also T2 593, 596 (A-979, 982). The jury deliberated for about three days and sent ten notes, requesting the instruction about reasonable doubt, the legal definition of the charges, and large portions of Lewis’s testimony. See T2 606–56 (A-992–1042). Mr. Harris was convicted on all four counts. T2 656–57 (A-1042–43). F. Mr. Harris is sentenced to an aggregate term of forty-five years to life because his conviction for simple possession of a weapon is run consecutively to his convictions for using the weapon. Two months after the jury’s verdict, Mr. Harris was sentenced, as a mandatory persistent violent felony offender, to an aggregate term of forty-five years to life. S 2–4, 12–13 (A-1048–50, 1058–59). Mr. Harris was given a sentence of twenty-five years to life on each of the assault and attempted murder 21 charges and twenty years to life on the two weapons possession offenses. S 13 (A- 1059). The simple possession charge was run consecutively to the assault and attempted murder charges. S 13 (A-1059). The possession with intent charge was concurrent with the attempted murder and assault charges. S 13 (A-1059). The prosecution asked for a consecutive sentence because it was their view that “[t]he evidence at trial was that the defendant lived his daily life in the possession of a loaded handgun.” S 8 (A-1054). Therefore, Mr. Harris had the firearm “leading up to the shooting, [because Lewis] saw the defendant hanging out just a few feet away on the street corner, making clear that the defendant was armed with a loaded gun before, and when the victim unexpectedly arrived on the block, the defendant’s possession of that loaded gun continued.” S 7–8 (A- 1053–54). The prosecutor also argued that a separate act of possession before the shooting was shown because the firearm in this case was “recovered from the apartment in which [Mr. Harris] was hiding from the police a full 11 days after the shooting.” S 8 (A-1054). The sentencing court agreed. It ordered the simple possession sentence to run consecutively to the assault and attempted murder charges — but not the other weapons possession charge — because “[t]here is no issue that [Mr. Harris] had the gun before the victim showed up on the block.” S 11 (A-1057). 22 G. The Appellate Division affirms Mr. Harris’s convictions, finding that a social guest does not have an expectation of privacy in his host’s home and that the simple possession offense was “complete before the shooting.” The First Department affirmed Justice McLaughlin’s denial of the motion to suppress and held that the consecutive sentence for simple possession was legal. See People v. Joseph Harris, 96 A.D.3d 502 (1st Dep’t 2012) (A-2–5). For the suppression issue, the Appellate Division first held that Mr. Harris lacked standing because he was a “mere visitor” to the Queens apartment and “had arrived on the morning of the search.” Id. at 502 (A-2). The court also said that Mr. Harris’s “occasional overnight stays at the apartment several years earlier were insufficient to establish” standing. Id. (A-3) (citing People v. Ortiz, 83 N.Y.2d 840 (1994)). Mr. Harris also lacked standing because “the parole officer had already informed defendant that he was no longer permitted to stay at his friend’s apartment, because the friend was a codefendant in defendant’s prior robbery case.” Id. at 503 (A-3). Next, even if Mr. Harris had standing, the search of the apartment was “a lawful security sweep” and “[u]nder the circumstances, it was reasonable to move the couch to check if anyone was hiding behind or under it.” Id. 23 Finally, the consecutive sentence for simple possession was legal because “[t]he evidence clearly established that defendant was carrying the weapon at the time he encountered and shot the victim.” Id. This meant “the act of possession was complete before the shooting” and allowed a consecutive sentence. Id. The Honorable Victoria A. Graffeo of this Court granted Mr. Harris leave to appeal. See People v. Harris, 19 N.Y.3d 1026 (2012) (A-1). 24 ARGUMENT POINT ONE The firearm taken from the Queens apartment that Joseph Harris had been invited into should have been suppressed because the police had no reason to enter the apartment and upend a couch after Mr. Harris had been removed from the apartment. Before the shooting in this case, Joseph Harris told his parole officer he was moving to an apartment in Queens. Eleven days after the shooting, Mr. Harris was arrested at this apartment and a firearm was found during a search that included tossing couches onto their sides. Mr. Harris’s motion to suppress should have been granted because, at the very least, he had standing to challenge the search as a social guest of one of the apartment’s residents. See Minnesota v. Carter, 525 U.S. 83, 99 (1998) (Kennedy, J., concurring). And the search was unjustified both in its inception and its scope because Mr. Harris and the other man in the apartment were removed, handcuffed, and on their knees in the hallway when the officers reaved through the apartment throwing furniture around. Because this search was illegal, this Court should suppress the firearm, vacate Mr. Harris’s convictions, and order a new trial. 25 A. Mr. Harris had standing to challenge the search of the Queens apartment because he lived there. Even if Mr. Harris was only a social guest, he still had standing because this Court’s holdings to the contrary conflict with the United States Supreme Court decision in Minnesota v. Carter and should be overruled. This Court has determined that “standing to seek suppression of evidence requires the defendant to establish, by defendant’s own evidence or by relying on the People’s evidence, that he or she had a legitimate expectation of privacy in the place or item that was searched.” People v. Ramirez-Portoreal, 88 N.Y.2d 99, 109 (1996) (citations omitted). Mr. Harris had standing to challenge the search of the Queens apartment for two reasons: first, the prosecution’s evidence showed that Mr. Harris had moved to the Queens apartment and, as Mr. Harris had reported to his parole officer, was living there at the time of his arrest. Second, even if this Court agrees with the courts below that Mr. Harris was a “mere visitor” to the Queens apartment, that fact alone gives him standing because the United States Supreme Court’s decision in Minnesota v. Carter, 525 U.S. 83 (1998), requires this Court to overrule the line of cases holding that a “casual visitor” to an apartment has no standing to challenge searches of the apartment. 3 The prosecution will no doubt argue that Mr. Harris was not a resident of the apartment because Parole told him not to live there since it was a violation of one of his parole conditions, H1 157 (A-214), because Kelly, who also lived at the apartment, said Mr. Harris was not living there, H1 35–36 (A-92–93), and because Mr. Harris said he had only arrived at the apartment that morning and referred to it as “his boy’s apartment.” H1 43, 94–95 (A-100, 151–52). But these facts do not change anything. Regardless of what a parole officer told Mr. Harris, Parole thought that Mr. Harris was living at the Queens apartment and issued a warrant listing that address as his residence. And Kelly’s statements should not be credited because they were self-serving hearsay admissions made to distance himself from Mr. Harris and the firearm. Finally, Mr. Harris’s statements are consistent with him having moved into the apartment the same day as the arrest. 26 To begin, Mr. Harris told his parole officer that he was moving to an apartment in Queens before the shooting in this case. H1 156 (A-213). Eleven days after the shooting, he was arrested by police officers at the apartment he said was his residence. See, e.g., H1 24 (A-81). The officers had tracked Mr. Harris there with his cellphone and had in hand a parole warrant for his arrest that listed his address as the Queens apartment. H1 120, 109 (A-177, 166). At trial, the prosecution referred to the Queens apartment multiple times as “the defendant’s apartment.” See, e.g., T2 546, 560, 572 (A-932, 946, 958). These facts establish that Mr. Harris had a reasonable expectation of privacy in the Queens apartment because he was living there.3 But even putting aside that Mr. Harris was living at the Queens apartment, he had a reasonable expectation of privacy in the apartment because he was, as conceded by the prosecution, a social guest of an undisputed resident of the apartment, Ricky Kelly. See Harris, 96 A.D.3d at 502 (A-2) (Mr. Harris was a 27 “mere visitor who had arrived on the morning of the search”). Though this Court has held that “a casual visitor” to an apartment has no reasonable expectation of privacy in the apartment that grants him standing to raise suppression issues, People v. Ortiz, 83 N.Y.2d 840, 843 (1994), this rule conflicts with the Supreme Court’s teaching in Minnesota v. Carter, 525 U.S. 83 (1998), and should be abandoned. In Carter, the Supreme Court addressed whether someone present in another’s residence for the sole purpose of packaging drugs had a reasonable expectation of privacy in the residence. The Court concluded he did not because of the “purely commercial nature of the transaction … the relatively short period of time on the premises [of two and a half hours], and the lack of any previous connection between respondents and the householder.” Id. at 91. But that was not all the members of the Court said. Justice Kennedy — who provided the crucial fifth vote for the majority — wrote: “I join the Court’s opinion, for its reasoning is consistent with my view that almost all social guests have a legitimate expectation of privacy, and hence protection against unreasonable searches, in their host’s home.” Id. at 99 (Kennedy, J., concurring). Justice Ginsburg — speaking for three justices in dissent — expressed the view that a “guest [in a home] for business purposes licit or illicit … share[s] his host’s 28 shelter against unreasonable searches and seizures.” Id. at 106 (Ginsburg, J., dissenting). She also wrote that “five Members of the Court would place under the Fourth Amendment’s shield, at least, almost all social guests.” Id. at 110 n.3 (quotation marks omitted). Justice Breyer concurred in the judgment on different grounds but said he “agree[d] with Justice Ginsburg” about the expectation of privacy for social guests. Id. at 106 (Breyer, J., concurring in the judgment). The upshot of these three opinions is that “a majority of the Justices would confer standing on social guests who do not necessarily remain overnight at the home of their host.” Barry A. Kamins, New York Search & Seizure, § 103[1] at 1-127 (2012). Other commentators agree. See 6 Wayne LaFave, Search and Seizure, § 11.3(b) at 151–52 (4th ed. 2004 & 2010-2011 Pocket Part) (A “majority in Carter actually embraced the position that a social guest would not have to be an overnight guest in order to have standing in the premises of another.”); Thomas K. Clancy, The Fourth Amendment: Its History and Interpretation, 110 (2008) (“[F]ive justices in that case would afford a reasonable expectation of privacy in the premises of another to almost all social guests.”); Edwin J. Butterfoss, Mary Sue B. Snyder, Be My Guest: The Hidden Holding of Minnesota v. Carter, 22 Hamlin L. Rev. 501 (1999); Brooks Holland, High Court Improves Standing of Social Guests to Challenge Searches, N.Y.L.J., Jan. 12, 1999. 29 And courts across the county, once they face Carter, hold the same. See, e.g., United States v. Poe, 556 F.3d 1113, 1122 (10th Cir. 2009) (“[A] social guest who does not stay overnight has a reasonable expectation of privacy.”); State v. Huff, 278 Kan. 214, 220 (Kan. 2004) (“As social guests, defendants had standing to assert that expectation.”); State v. Missouri, 361 S.C. 107, 114 n.3 (S.C. 2004) (“[I]t is apparent that at least five members of the Court … would be willing to extend protection to guests present for social reasons and present for some time less than an overnight stay.”); In re Welfare of B.R.K., 658 N.W.2d 565, 576 (Minn. 2003) (“While not binding authority, the dissenting and concurring opinions in Carter indicate that a majority of the Supreme Court considers a short-term social guest’s expectation of privacy legitimate.”); State v. Ortiz, 618 N.W.2d 556, 560 (Iowa 2000) (“[W]e must be mindful of [Justice Kennedy’s] concurring opinion, as well as the plurality opinion, because, without Justice Kennedy’s concurrence, the Court’s finding of no reasonable expectation of privacy would not have prevailed.”); Morton v. United States, 734 A.2d 178, 182 (D.C. App. 1999) (noting “the common thread in the various opinions in Carter that at least social guests of the host generally have a legitimate expectation of privacy”). 30 The rule embraced by five Justices in Carter cannot be reconciled with this Court’s holding in Ortiz, 83 N.Y.2d at 84, that “a casual visitor” to an apartment has no standing to contest searches of the apartment. In fact, this Court has not cited Carter at all since it was decided more than fourteen years ago. See People v. Perez, 37 Misc.3d 734, 740 n.3 (Kings Co. Sup. Ct. 2012) (“Whether [Carter] eventually results in a more relaxed standard for social guests in New York jurisprudence only time will tell.”). Ortiz should be overruled to the extent it prevents social guests like Mr. Harris from challenging searches of apartments they have been invited into. Even without Carter’s precedential value, granting standing to social guests is the right result. This is because “the home is entitled to special protection as the center of the private lives of our people.” Carter, 525 U.S. at 99 (Kennedy, J., concurring). When the resident of a house invites someone into her home, “most, if not all, social guests legitimately expect that, in accordance with social custom, the homeowner will exercise her discretion to include or exclude others for the guests’ benefit.” Id. at 101. Therefore, “reasonable expectations of the owner are shared, to some extent, by the guest.” Id. Otherwise, “[h]uman frailty suggests that … police [will] pry into private dwellings without warrant, to find evidence incriminating guests who do not rest there through the night.” Id. at 108 31 (Ginsburg, J., dissenting). In short, a home is not truly secure if a host’s “invitations to others increase the risk of unwarranted governmental peering and prying into their dwelling places.” Id. Once this Court adopts the Supreme Court’s view, Mr. Harris’s reasonable expectation of privacy in Kelly’s apartment is easy to see. Unlike the defendant in Carter who had only “a fleeting and insubstantial connection” with the apartment and was using it “simply as a convenient processing station” for drugs, 525 U.S. at 102 (Kennedy, J., concurring), Mr. Harris and Kelly had a long relationship, H1 48 (A-105), and self-identified as god brothers, H1 35, 36 (A-92, 93). Mr. Harris had visited that day for, at least, a few hours, H1 24, 32, 42 (A-81, 89, 99), and had often stayed overnight, though, at least according to Kelly, not recently. H1 49–51 (A-106–08). There are no contested facts about Mr. Harris’s status as a guest — the prosecutor conceded to the suppression court that Mr. Harris was an “invitee” and “visitor” to the apartment. T2 23, 32 (A-258, 267). The Appellate Division concluded the same. See Harris, 96 A.D.3d at 502 (A-2). In sum, even putting aside that Mr. Harris told his parole officer that he was living at the apartment and that this information was credited enough to be put on an arrest warrant, Mr. Harris was a social guest of Kelly’s and therefore had standing to contest the protective sweep of the apartment. 32 B. Aside from saying it was “standard procedure,” the prosecution has yet to set forth specific facts justifying the protective sweep of the Queens apartment. Though Mr. Harris does not contest that the parole warrant gave the police power to enter his residence to arrest him, see Payton v. New York, 445 U.S. 573, 603 (1980), the parole arrest warrant did not give the police the same authority to search the apartment as if they had a search warrant. See id. at 589 (“[T]he area that may legally be searched is broader when executing a search warrant than when executing an arrest warrant in the home.”). Here, the officers’ search of the apartment exceeded what the parole warrant allowed. The prosecution argued that the search of the apartment was allowed as a protective sweep. Such sweeps have been approved by the United States Supreme Court — though only implicitly by this Court — when performed immediately after effecting an arrest, but must be justified by “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Maryland v. Buie, 494 U.S. 325, 335 (1990). In other words, protective sweeps are not an automatic consequence of every arrest conducted near a home. 33 The police acted here as if sweeps are automatically allowed after every arrest. ESU officer John Cousins, who led the sweep, admitted that there was no reason specific to Mr. Harris’s situation for the search save that it was “standard procedure”: Cousins: … So we continued to clear the apartment when the two perpetrators were handcuffed, and — Prosecutor: When you say, “clear the apartment,” what do you mean by that? Cousins: We clear the apartment for any remaining people. Prosecutor: Is that standard procedure in a situation such as this? Cousins: Correct. Prosecutor: And why is that standard procedure? Cousins: We have the levels of ballistics that the patrol don’t have, and it’s just for the safety of us and the safety of the officers that [are] coming in. H1 136–37 (A-193–94). See also H2 36 (A-271) (prosecutor: “Police procedure, experience, logic, require that Detective Cousins check underneath mattresses and the living room couch for other persons, and in lifting that couch, the gun was found in plain view and was properly seized by the police officers.”). 34 Nothing suggested there was anyone else hiding in the apartment; to the contrary, as soon as Mr. Harris and Kelly saw the ESU officers, they said “I give up. All right, I give up.” H1 145 (A-202). The men were “down on their knees and [the police] were holding them” and had handcuffed them before the sweep began. H1 24, 146 (A-81, 203). The police had no information that Mr. Harris was working with a team. There was neither sight nor sound of anyone running to a hiding place as the police waited outside the apartment for hours. In short, the police conducted the sweep as part of “standard procedure” without specific facts justifying an additional intrusion into the Queens apartment. The prosecution has barely offered a reason why the sweep was justified. Before the suppression court, the prosecutor simply said that a sweep was lawful here “given the facts and circumstances of the arrest.” T1 35 (A-92). Justice McLaughlin also offered no justification for the protective sweep, instead concluding that what the ESU officers “are supposed to do is to make sure that there’s not somebody else lurking in the apartment with a gun and an attitude.” T1 49 (A-106). 35 At the Appellate Division, the prosecution finally cobbled together a theory to support the protective sweep: Mr. Harris “had been convicted in the past for committing violent felonies with others, was on parole, and was in the apartment of a prior co-defendant in violation of the conditions of his parole.” Brief for Respondent at 33, People v. Joseph Harris, 96 A.D.3d 502 (1st Dep’t 2012). But these sweeping generalities are not the sort of specific articulable facts needed to support a protective sweep. If they were, protective sweeps would become automatic anytime someone with a prior felony conviction was arrested, not a limited exception to the warrant requirement for the search of homes. And sweeps like the one here are no small violation of privacy. The two officers who invaded the apartment were wearing bullet-proof vests and ballistics helmets, and one was equipped with a submachine gun. H1 132, 136 (A-189, 193). See also H1 111–12 (A-168–69) (ESU had “heavy equipment and … heavy firearms”). The other officer had a ballistics shield. H1 135 (A-192). And, as will be explained below, the officers did not limit themselves to a “cursory visual inspection” as Buie requires, 494 U.S. at 327; instead, they threw around the apartment’s furniture. H1 137 (A-194). When a parole officer entered the apartment after the sweep, he said it was “a wreck … [it] wasn’t clean, clothes 36 everywhere, dishes in the kitchen sink piled up, food on the cupboards.” H1 164 (A-221). The sweep here was not justified and the police should not have gone into every room of the Queens apartment looking for attackers they had no reason to believe were lurking inside. C. Even if a protective sweep was permissible, the police did not conduct the “cursory visual inspection” allowed because they upended couches. Though protective sweeps are permitted as an exception to the warrant requirement if supported by specific justification, a protective sweep must be a “quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.” Buie, 494 U.S. at 327. The police exceeded those limits here by physically upending couches on the thin basis that an attacker could be hiding beneath them. The police had no particular reason to take that view in this case. As explained above, there was no indication there was anyone else in the apartment, much less squeezed under a couch. A couch would need to be a few feet off the ground for someone to hide under it. Though furniture like that may exist, there is 37 no evidence here that the couch in the Queens apartment was so gargantuan. And such an unusual piece of decor would surely have stuck out in one of the officers’ memories. Instead, none of the prosecution witnesses recalled anything about the couch. See, e.g., H1 86 (A-143) (Detective Simonetti: “I don’t recall specifically” details of the couch); H1 125 (A-182) (Detective Walla: “No, I can’t describe the couch itself.”); H1 140–43 (A-197–200) (Detective Cousins gives six “don’t recall” answers to questions about the couch); H1 173 (A-230) (question to Senior Parole Officer Smith: “Do you remember what the couch looked like?” Answer: “No.”). The real reason for lifting couches during a search which must be “narrowly confined to a cursory visual inspection of those places in which a person might be hiding,” Buie 494 U.S. at 327, is the same as that justifying the sweep in the first place: “standard procedure.” H1 136 (A-136). But police department procedure is not allowed to rewrite the constitution. Instead, there must be a specific reason to think that someone was squeezed under a couch and ready to spring forth for an attack. There was no such reason here. 38 D. Justice McLaughlin should have granted defense counsel’s request to have a police officer testify about the destruction of photographs crucial to the suppression hearing. Justice McLaughlin’s conclusion that the officers were justified in flipping the couch was especially troubling because of its lack of support in the record. None of the officers could remember anything material about the couch’s appearance. Worse, Mr. Harris was prejudiced by the belated disclosure that photos of the couch had been destroyed by the police. H2 3–4 (A-238–39). The prosecution had a duty to preserve this discoverable evidence and the trial court had a corresponding duty “to eliminate any prejudice to the defendant while protecting the interests of society.” People v. Kelly, 62 N.Y.2d 516, 521 (1984). See also N.Y. Crim. Proc. Law § 240.20(1)(e) (requiring disclosure of photographs taken by police). The suppression court erred by failing to take any steps to repair the prejudice caused by the destruction of the photographs. One of Mr. Harris’s key arguments for suppression was that the ESU officers did not have to toss the couch for their safety during the protective sweep. H2 5 (A-240). The size and dimensions of the couch were therefore relevant to the question of whether a person could have been hiding under the couch. Defense counsel spent significant time asking the police witnesses about the appearance of the couch under which the firearm was found. See, e.g., H1 86, 125, 39 140–43, 173 (A-143, 182, 197–200, 230). No one remembered what the couch looked like. See id. Defense counsel was particularly sandbagged when, during cross-examination, one of the officers misleadingly testified that there were no pictures of the firearm, the door, or the couch where the firearm was found. H1 79 (A-136). Then, at the conclusion of the hearing and immediately before the court was about to render its decision, the prosecutor interrupted the court to say that he remembered that pictures were taken of the firearm under the couch, but that an officer “accidentally” destroyed the pictures by exposing the film to light. H2 2–4 (A-237–39). See also T2 358 (A-739) (officer explaining that police officers do not often destroy photos by exposing them to light). The prosecutor said he anticipated that an officer would testify at trial about the photographs being accidentally destroyed. H2 4 (A-239). And according to the prosecutor, that officer wrote a report noting what the photographs looked like. H2 4 (A-239). The first photo showed the couch: it was a long-ranged photograph of the firearm in the living room under the couch. H2 4 (A-239). Defense counsel specifically requested that the officer who took and destroyed the photographs be brought in and questioned about the pictures and the appearance and location of the couch and firearm. H2 5 (A-240). The court 40 determined that the testimony was irrelevant to the suppression hearing because the couch presented “a trial issue.” H2 6 (A-241). This was a curious conclusion since, as defense counsel pointed out, the propriety of the protective sweep was for the suppression court to decide, not the jury: Defense counsel: … I think the Court would want to hear how those photographs disappeared. Court: No, I wouldn’t. Defense counsel: Well, I would. Court: The jury may. Defense counsel: I think that it’s very relevant. Court: It’s not relevant. Defense counsel: Beside the fact that the jury — once the jury hears the case, they’re not litigating the issue of the search and recovery of the gun. Also, I would — this Court was at the hearing. H2 6–7 (A-241–42). Ultimately, Justice McLaughlin admonished defense counsel: “If there happens to be a conviction, that could be one of the — one of the upper most appellate points in your arsenal.” H2 8 (A-243). 41 The suppression court erred by not allowing testimony from the officer who took photographs of the couch about how the photographs were destroyed and how the couch appeared in the photos. Though the prosecution had “a heavy burden of establishing that diligent, good-faith efforts were made to prevent the loss,” of discoverable evidence, Kelly, 62 N.Y.2d at 520, the suppression court let the destruction of the photos pass without any consequence. Taking steps to remedy the loss of the photos was particularly warranted here because Mr. Harris was prejudiced by the unavailability of evidence highly relevant to a question presented in the suppression hearing. Defense counsel was not even aware that photographs existed, much less were destroyed, and could not meaningfully cross-examine the officers about them and or request a remedy before the hearing began. Nor was defense counsel able to speak to the officers who took the pictures to ascertain their recollection of how the couch looked. This put the defense at a disadvantage to the prosecution, which knew about the photos for at least a month, H2 4 (A-239), and which had been in communication with the officers before the hearing. Despite the destruction of the photographs and the late disclosure of their destruction, the court did not impose any sanctions or draw an adverse inference. Justice McLaughlin did not even try to eliminate the prejudice. The court did not 42 check on the availability of the officer to testify; instead, it summarily denied defense counsel’s request to have further testimony that would have shed light on the dimensions of the couch. Simply assuming the prosecution’s spoliation of evidence was irrelevant and not attempting to remedy it was error. See California v. Trombetta, 457 U.S. 479, 486 (1984) (noting “the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed”). Accordingly, the motion to suppress should have been granted, and Mr. Harris’ conviction should be reversed. 4 Mr. Harris also adopts the defendant’s arguments in People v. Thomas Brown, which is also before the Court and presents a similar issue. In particular, there was no proof here until the weapon was fired that it was loaded and operable. See, e.g., People v. Longshore, 86 N.Y.2d 851, 852 (1995) (“[T]o establish criminal possession of a handgun the People must prove that the 43 POINT TWO Joseph Harris’s consecutive sentences for simple possession and use of a weapon are illegal because all the offenses occurred at the same time and place and involved the same firearm and a single victim. Under this Court’s settled precedents, all of the crimes Joseph Harris was convicted of were committed in a single act. There was no evidence to support the prosecutor’s sentencing theory that Mr. Harris “lived his daily life in the possession of a handgun.” S 8 (A-1054). The prosecution’s only eyewitness to the shooting — the complainant Lewis — did not see Mr. Harris with a firearm before the shooting: as Lewis told it, Mr. Harris came up “all of a sudden” and opened fire. T2 13 (A-394). Before the shooting, Lewis had seen Mr. Harris on the block talking to a man named “Bad One” but had been “paying them no mind.” T2 20 (A-401). Everything “just happened real fast.” T2 152 (A-533). Because the simple possession and the shooting were accomplished in a single act, this Court should order Mr. Harris’s sentence for simple possession of a weapon to run concurrently with his other convictions. See Penal Law § 70.25(2).4 weapon is operable.”). That is, the People did not show all the elements required for Penal Law § 265.03(3) until the bullet actually left the weapon, a moment that is instantaneous to the shooting. Because the weapon was not shown to be operable until the same moment that the complainant was shot, the possession and shooting were committed in a single act. 5 This quoted language reflects only one of the two bars on consecutive sentences from Penal Law § 70.25(2). Only the “single act” test is relevant here. 44 A. Penal Law § 70.25(2) requires separate and distinct acts before consecutive sentences can be imposed. Unless a distinct act of possession and a distinct act of use is shown, a simple possession offense — that is, one that does not require proof of intent to use the weapon unlawfully against another — is not separate from the offense involving the use of the firearm and may not be a basis for a consecutive sentence. The analysis begins with the text of Penal Law § 70.25(2), which provides that “[w]hen more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission … the sentences … must run concurrently.” N.Y. Penal Law § 70.25(2).5 As this Court has said, when there is “a single inseparable act that violates more than one statute, single punishment must be imposed.” People v. Frazier, 16 N.Y.3d 36, 41 (2010). Proving that offenses are separate and distinct is the People’s burden. See People v. Taveras, 12 N.Y.3d 21, 25 (2009). When trying to draw the line between one act and another, this Court has examined whether the acts are “distinguishable by culpable mental state, nature 6 Brown itself applied these factors to approve consecutive sentences for reckless endangerment in the first degree and criminal possession of stolen property in the third degree for the defendant having stolen a car and driven into the crowd at Times Square on New Year’s Eve in 1988. 80 N.Y.2d at 362. In particular, “[p]olice officers, alerted to the possible criminal conduct involving the automobile, approached defendant in the vehicle and ordered him to pull over. After at first appearing to cooperate, defendant accelerated the vehicle onto the sidewalk and into a crowd of pedestrians and police officers, injuring several of them.” Id. at 362–63. This Court concluded that the defendant had committed “discrete acts” because the “possession and propulsion of the vehicle … impacted different victims, were separated by place and were temporally differentiated, though in part overlapping.” Id. at 364. See also id. at 365 (noting that “defendant’s possession of the vehicle was accompanied by a culpable mental state significantly discrete from that associated with the creation of a grave risk of death to others”). 7 Other states have examined similar factors when interpreting statutes concerning consecutive sentences. In California, courts must consider whether offenses were “committed within close temporal and spacial proximity of one another” to determine whether consecutive sentences are required in “Three Strikes” cases. People v. Lawrence, 24 Cal.4th 219, 226, 233 (Cal. 2000) (consecutive sentences required because the two crimes — theft and assault — occurred blocks away from each other, involved different victims, and were separated substantially in time). See also People v. Venegas, 10 Cal.App.3d 814, 817, 821 (Cal. Ct. App. 1970) (because possession of firearm was “physically simultaneous” and “incidental to” shooting, consecutive sentences for both offenses were barred by a statute forbidding multiple 45 and manner of use, time, place, and victim.” People v. Brown, 80 N.Y.2d 361, 365 (1992). See also People v. McCray, 2013 NY Slip Op 00390 (1st Dep’t Jan. 24, 2013) (applying these factors).6 For example, consecutive sentences are allowed when a crime targets more than one victim. See People v. McKnight, 16 N.Y.3d 43 (2010); People v. Battles, 16 N.Y.3d 54 (2010). And when a substantial though short period of time passes between two instances of criminal behavior, consecutive sentences are permissible, as they were in People v. Salcedo when the defendant brandished a weapon and then chased the victim into a grocery store before shooting her. 92 N.Y.2d 1019 (1998).7 punishment “for a single criminal act”). New Jersey requires courts to consider, among other facts, whether the crimes “involved separate acts of violence or threats of violence,” “were committed at different times or separate places,” and “involved multiple victims.” State v. Yarbough, 100 N.J. 627, 644 (N.J. 1985). See also State v. Copling, 326 N.J. Super. 417, 441–42 (N.J. Super. Ct. App. Div. 1999) (disallowing consecutive sentences for murder and simple possession of a firearm because “the objective of each [statute] is similar … [and] the victims sought to be protected by the two statutes are the same”). Finally, the Florida Supreme Court has determined that “stacking of firearm mandatory minimum terms … is permissible where the defendant shoots at multiple victims, and impermissible where the defendant does not fire the weapon.” State v. Christian, 692 So.2d 889, 890 (Fla. 1997) (footnotes omitted). See also Swanigan v. State, 57 So.3d 989, 990 (Fla. Dist. Ct. App. 2011) (firearms possession sentence could not be consecutive because defendant’s “burst[ing] into a home, looking for money, kicking and hitting one person and then shooting a second person” constituted a “single criminal episode”). 46 B. To avoid the “special problems” caused by consecutive sentences for weapons possession offenses, the prosecution must make an especially clear showing of a distinct act of possession and a distinct act of use. The analysis of Mr. Harris’s sentences does not end with consideration of the factors from Brown. This Court has long recognized a “narrow rational and statutory interpretation [of Penal Law § 70.25(2)] underlying our cases dealing with consecutive sentencing in weapons prosecutions, where there is an interrelated ensuing substantive crime.” Brown, 80 N.Y.2d at 364–65. The Court repeated this caution in Wright and highlighted “the special problems presented when Penal Law § 70.25(2) is applied to possessory offenses.” 19 N.Y.3d at 366. As a result, when it comes to weapons possession cases, the Court has “employed a different framework that appropriately reflects the heightened level of integration between the possession and the ensuing substantive crime for which 8 Wright was a straightforward reaffirmation that the Court meant what it said in Hamilton: the 2012 decision in Wright reached the same result on the same facts as the 2005 Hamilton decision did. The replay was necessitated by the First Department’s erroneous conclusion that Hamilton had been overruled “sub silentio” six years after it was decided. Wright, 19 N.Y.3d at 363. 47 the weapon was used.” Id. at 365. These “special problems” were most recently examined by the Court for possession offenses that require proving an intent to use the weapon against another person unlawfully. See Wright, 19 N.Y.3d 359; Hamilton, 4 N.Y.3d 654.8 Because separating possession with intent to use from actual usage is so conceptually difficult, this Court held that “[o]nly where the act of possession is accomplished before the commission of the ensuing crime and with a mental state that both satisfies the statutory mens rea element and is discrete from that of the underlying crime may consecutive sentences be imposed.” Wright, 19 N.Y.3d at 365. See also Salcedo, 92 N.Y.2d 1019 (possession with intent to use unlawfully was a separate act from the shooting because the criminal transaction transpired over a substantial period of time and involved multiple locations). Such a showing is accomplished if the possession with intent involved “a different pistol or a different event.” Wright, 19 N.Y.3d at 366 (quoting Hamilton, 4 N.Y.3d at 658). 9 The defendant in Sturkey was arrested in 1986 and the conviction at issue was for criminal possession of a weapon in the third degree, Penal Law § 265.02(4), which did not require showing intent to use the weapon unlawfully against another. The statute Sturkey was convicted under, Penal Law § 265.02(4), was later upgraded to the statute Mr. Harris was convicted under, Penal Law § 265.03(3). See L. 2006, c. 742, § 1. Intent therefore played no role in the Court’s reasoning in Sturkey. 48 But showing a separate intent is not the only special problem weapons possession cases present. Even simple possession crimes like the one here are especially problematic because they too involve “an instrumentality that is naturally or inherently interrelated … [to] use circumstances.” Brown, 80 N.Y.2d at 365. Separating a period of simple possession from use of the weapon can be as difficult as finding a separate intent was in Hamilton and Wright. This Court recognized that difficulty in People v. Sturkey, 77 N.Y.2d 979 (1991). In Sturkey, this Court held that sentences for robbery and simple possession of a firearm must run concurrently when the defendant stole a police officer’s firearm and then possessed it for “two to four seconds.” Id. at 980. Even though the firearm was possessed for a defined period of time after the robbery was completed, the Court held that “the robbery and possession offenses were committed through the single act of seizing the gun” from the officer. Id.9 See also People v. Walsh, 44 N.Y.2d 631, 635 (1978) (“defendant’s alleged attack upon the victim which included the cutting or stabbing with a knife” was “one inseparable event” and a consecutive sentence for weapons possession was 10 Though the First Department failed to apply that rule in this case, it has done so in at least one other case. In People v. Rosario, 26 A.D.3d 271, 273 (1st Dep’t 2006), the First Department held that punishment for simple possession may only be consecutive to a use offense when “possession and use are separate or successive acts.” The Appellate Division found no such successive acts in Rosario when the defendant obtained a firearm from a friend “down the block” and “then walked back to where the victim stood and shot him.” Id. at 274. Just as this Court concluded in Sturkey, the incidental possession of the weapon — in Rosario, while the defendant walked down the block — was not a separate act. See also People v. Rivera, 2006 WL 5536081 (N.Y. Co. Sup. Ct. May 12, 2006) (noting that Rosario held that “a time gap is irrelevant. Consecutive sentences for possession and use of a weapon are legal only if they … involve different events.”). 49 impermissible). By reaching this holding in Sturkey, the Court rejected the Appellate Division’s rule that even a “brief period of residual possession, while undoubtedly factually intertwined with the completed robbery, was … a ‘separate act’.” People v. Sturkey, 161 A.D.2d 101, 102 (1st Dep’t 1990). In short, Sturkey holds that incidental possession of a weapon does not amount to a separate act supporting consecutive sentences.10 C. Here, the prosecution did not prove that Mr. Harris possessed the weapon in a separate act before using it — the only eyewitness was “paying … no mind” to Mr. Harris before the shooting. When the boundaries of Penal Law § 70.25(2) — that simple possession and use of a firearm are a single act unless an act of possession is shown in a distinct act from use — are applied here, it is apparent that Mr. Harris’s consecutive sentence is illegal. 50 1. Mr. Harris’s possession and use of the firearm occurred at the same time, in the same place, and had the same goal. First, the factors from Brown, 80 N.Y.2d at 365 — whether the possession and use of the firearm encompassed a different culpable mental state, nature and manner of use, time, place, or victim — show that consecutive sentences are not allowed here. None of these criteria differentiate Mr. Harris’s possession of a weapon and his use of it. There was only one victim here who, by his own testimony, was shot “all of a sudden” after Mr. Harris appeared at his Jeep and greeted him, T2 13 (A-394) — everything “just happened real fast.” T2 152 (A- 533). Mr. Harris’s weapon was never used to threaten anyone else, much less fired. The possession and use were committed at the same place and at the same time without any interruption. Next, this Court must account for the “special problems” presented by weapons possession offenses and look even more closely at the facts here. Wright, 19 N.Y.3d at 366. Because of “the heightened level of integration” in such cases, the prosecution was required to make an especially clear showing of separate acts. Id. at 365. Since consecutive sentences are inappropriate here under the usual test, the heightened concern for weapons possession cases confirms this result. 51 2. It was not until sentencing that the prosecution argued that Mr. Harris’s possession of the firearm occurred at a time separate from the shooting. Their argument has no support in the record. The prosecution’s proof at trial does not allow a consecutive sentence here. They made no discernible effort until sentencing to show that Mr. Harris’s possession of a weapon and his use of it were distinct. In fact, the charging documents and Bill of Particulars specifically alleged that all the offenses occurred at the same time: approximately 11:50 AM on September 25, 2008. See Felony Complaint (A-6), Indictment (A-7–9); Bill of Particulars (A-10). And the People never asked Lewis if he saw anything in Mr. Harris’s hand or on his person before the shooting that would suggest he was lying in wait with a firearm. When the People finally theorized at sentencing that Mr. Harris committed a separate act of weapons possession, its assertions were not supported by the record. At sentencing, the prosecutor told the court that “[t]he evidence at trial was that the defendant lived his daily life in the possession of a loaded handgun.” S 8 (A-1054). Therefore, Mr. Harris had the firearm “leading up to the shooting, [because Lewis] saw the defendant hanging out just a few feet away on the street corner, making clear that the defendant was armed with a loaded gun before, and when the victim unexpectedly arrived on the block, the defendant’s possession of 52 that loaded gun continued.” S 7–8 (A-1053–54). The prosecutor also argued that a separate act of possession before the shooting was shown because the firearm in this case was “recovered from the apartment in which [Mr. Harris] was hiding from the police a full 11 days after shooting.” S 8 (A-1054). But the evidence did not show what the prosecutor said it did. To the contrary, Lewis —the prosecution’s only eyewitness — said he was not watching Mr. Harris before the shooting began: Lewis was “paying … no mind” to anyone else on the block, T2 20 (A-401), and he had an obstructed view of Mr. Harris: “I’m sitting in a car. I just see a person come up. I don’t — I didn’t see his whole outfit.” T2 94 (A-475). Nor did the prosecution attempt to establish what Mr. Harris’s “daily life” entailed, much less that he possessed a firearm at all times. Aside from his presence on the block at some point, there was no evidence about what Mr. Harris was doing before the shooting. He could have easily procured the weapon at any time up to actually using it. Lewis testified that before the shooting Mr. Harris was chatting with someone known as “Bad One.” T2 18 (A-399). Two other men were also on the block. T2 18 (A-399). And since the motivation for shooting Lewis was retaliation for providing grand jury testimony against a gang, T2 54, 113 (A-435, 494), it could be that a confederate — perhaps Bad One — gave Mr. Harris a weapon at the last second and ordered him to shoot 11 Additionally, Mr. Harris’s association with the firearm days after his arrest cannot be a separate act of possession. All the charging documents alleged that the criminal possession of a weapon occurred on September 25, which means Mr. Harris was never convicted of a crime occurring on October 6. See Felony Complaint (A-6); Indictment (A 7–9); Bill of Particulars (A- 10). Punishing Mr. Harris for the weapon found eleven days after shooting would be convicting him of a crime for which he was neither indicted nor convicted of by a jury. See T2 596–97 (A- 982–83) (court’s jury charge: “[T]he focus of this trial, of course is, on September 25, 2008, in Manhattan, and the People have to prove that the defendant possessed a loaded, operable firearm.”); T2 598 (A-984) (prosecution must prove possession “related to what supposedly took place at 112th Street and Lenox Avenue on September 25th”); T2 654 (A-1040) (prosecution must prove the possession occurred on “September 25, 2008, in New York County”). 53 Lewis. Such “community guns” “appear to be rising in number in New York, according to the police.” Michael Wilson, Hidden Communal Guns are More Common, N.Y. Times, Feb. 10, 2012. Nor does the prosecution’s pointing to the firearm’s location near Mr. Harris eleven days after the shooting have any relevance to when exactly he had the weapon before the shooting. As the prosecutor suggested, Mr. Harris could have had the firearm well before shooting Mr. Lewis. But on the record here where the only eyewitness was “paying … no mind,” T2 20 (A-401), to Mr. Harris before he “all of a sudden” appeared at his Jeep, T2 13 (A-394), Mr. Harris was just as likely to have gotten the firearm a second before he went to the car. Later possession of the weapon does nothing to nail down the precise moment the possession began.11 54 With no support for its theory that Mr. Harris had a weapon in the period leading up to his appearance at Lewis’s Jeep, the People are left only with the brief period when Mr. Harris greeted Lewis and shook his hand immediately before opening fire “all of a sudden.” T2 13 (A-394). As Lewis told the investigating detective, the incident “just happened real fast.” T2 152 (A-533). See also T2 150 (A-531) (“a brief exchange of words” preceded the shooting). Under Sturkey, such a brief period of time is not enough to create a separate and distinct act of criminal possession of a weapon. See Sturkey, 77 N.Y.2d at 980 (though “[d]efendant waved the gun in the air for what witnesses described variously as two or four seconds and then either dropped it or placed it on the floor and fled,” this was not a separate act of possession). It was the prosecutor’s burden to establish that the possession and use of the firearm occurred in separate and distinct acts. They tried to do so only as a last minute afterthought and in contradiction to the Bill of Particulars. (A-10). By the time the prosecution latched onto this theory it was too late — there was no allegation or proof that Mr. Harris committed simple possession of a firearm at a time separate from his shooting Lewis because the only eyewitness was “paying … no mind” to Mr. Harris before the shooting. T2 20 (A-401). A consecutive sentence, therefore, was not allowed. 55 D. Allowing consecutive sentences here — a result that increases Mr. Harris’s punishment by at least 20 years — would be an unwarranted departure from the rule of commonsense justice this Court has applied for decades. This Court’s consecutive sentencing cases require sharp factual distinctions before consecutive sentences are allowed. This rule is well-grounded in common sense and fairness. It is sensible because it is often difficult in practice “to distinguish between one and several bodily movements … the distinction will be difficult or impossible in many cases.” People v. Rosas, 8 N.Y.3d 493, 499 (2007). In this case, for example, Mr. Harris necessarily possessed the firearm in the instant before he used it. But the question is exactly where to draw the line between that criminal act and another one. Courts have long rejected overly-technical solutions to this line-drawing problem. These rejections usually come in Double Jeopardy Cases, whose values are “embodied in, if not extended by Penal Law § 70.25(2).” People v. Ramirez, 89 N.Y.2d 444, 451 n.5 (1996) (quotation marks and ellipsis omitted). For example, Justice Lewis Powell wrote that Double Jeopardy “is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units.” Brown v. Ohio, 432 U.S. 161, 169 (1977). And Justice Potter Stewart explained that the Double 56 Jeopardy Clause should not be interpreted “with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality.” Ashe v. Swenson, 397 U.S. 436, 444 (1970). This Court should similarly continue to reject an interpretation of Penal Law § 70.25(2) that allows prosecutors and sentencing courts to rely on minute differences to significantly increase punishment. If this Court did value hypertechnicality over common sense, consecutive sentences would have been proper in Sturkey, Hamilton, and Wright. Under a hypertechnical approach, the robbery was complete in Sturkey as soon as the firearm was taken from the officer; possession then could have begun in the following nanosecond. And in both Hamilton and Wright, the defendant must have had the intent to use the firearm before doing so: however instantaneous it may appear to the naked eye, pulling the trigger did not happen absent a conscious thought on the part of the defendant. The Court could have held that the time between pulling the trigger but before the bullet exited the gun’s barrel was a distinct act of possession with intent to use unlawfully and that the substantive offense began as the bullet flew towards it target. This Court has wisely avoided such a tortured path. Cf. People v. Fuller, 24 N.Y.2d 292, 303 (1969) (“It is the reality that counts, not the metaphysical distinctions of the legal mind.”). 12 Consecutive sentences have long been impermissible for offenses that occur in a single act: consecutive sentences were forbidden under the predecessor statute to Penal Law § 70.25(2) when two crimes were “so identical in fact that, despite the propriety of prosecuting them as two crimes, double punishment could not follow.” People v. Di Lapo, 14 N.Y.2d 170, 172 (1964). See also People v. Christman, 23 N.Y.2d 429, 434 (1969) (evaluating whether assault and rape offenses “were so unified with the basic acts made criminal by the Penal Law that, on the present record, they could not be the basis for separate punishments”). And Penal Law § 70.25(2) — first enacted in 1965 — itself appears to have encoded this Court’s formulation from 1957: “It is also not open to dispute that if there were merely a single inseparable act violative of more than one statute, or if there were an act which itself violated one statute and was a material element of the violation of another, there would have to be single punishment.” People ex rel. Maurer v. Jackson, 2 N.Y.2d 259, 264 (1957) (emphasis in original). See also People ex rel. Gallo v. Warden of Greenhaven State Prison, 32 A.D.2d 1051, 1053 (2d Dep’t 1969) (Penal Law § 70.25(2) “expressly codified the holding” of Maurer). 57 Indeed, similar fact patterns have been treated similarly, even when decades separate their appearance before the Court.12 For example in 1925, the Court held that larceny and burglary convictions could support consecutive sentences for a defendant entering a chicken coop and stealing thirty chickens. See People v. Snyder, 241 N.Y. 81, 82 (1925). The Court reached the same result eighty-five years later, though by then the chicken coop had become an apartment on the Upper East Side of Manhattan. See Frazier, 16 N.Y.3d at 39. In 1984, People v. Brathwaite, 63 N.Y.2d 839 (1984), allowed consecutive sentences for two murder charges where separate victims were shot, just as McKnight did twenty-six years later for two attempted murder charges involving separate victims. 16 N.Y.3d 43. 58 And this Court has long said that weapon possession charges should not run consecutively to other offenses involving the firearm. In 1978, the Court noted in dicta that “while at first blush appellant’s conviction of both robbery in the first degree and possession of a weapon as a misdemeanor may appear harsh, its effect is mitigated by a statutory proscription against imposition of an additional sentence of imprisonment for the latter crime.” People v. Perez, 45 N.Y.2d 204, 211 (1978). Thirteen years later, Sturkey squarely held the same — sentences for robbery and weapons possession could not be consecutive when the possession was for a short though defined period. See 77 N.Y.2d 979. Aside from the practical line-drawing problems a hypertechnical interpretation of Penal Law § 70.25(2) would create, punishing Mr. Harris for possession of a firearm and his instantaneous use of it is close to pointless. Such punishment does not further “the legislative policies” behind weapons possession offenses as attempts to “prophylactically intercept the possession and use of weapons in an inordinately armed society.” People v. Saunders, 85 N.Y.2d 339, 343 (1995). Additional punishment serves little purpose when a defendant has been convicted and punished for the substantive offense the possession charge was meant to prevent. 59 Finally, it is unfair to allow prosecutors to pile punishment on defendants for what is, in common understanding, a single bad action. The full context of this case makes the point: Mr. Harris was convicted of not only simple possession but also possession with intent to use unlawfully. The Bill of Particulars specified that both possession charges were based on the same facts. See (A-10). But, following Hamilton and Wright, the charge for possession with intent to use unlawfully could not run consecutively to the shooting charges. Logically, since the possession with intent could not be consecutive, the simple possession based on the same facts cannot be either. The unfairness is even starker because simple possession is essentially the same crime as the one examined in Hamilton and Wright: the Penal Law creates a presumption that anyone in possession of a loaded firearm has the intent to use it against another. See N.Y. Penal Law § 265.15(4) (“The possession by any person of any … weapon … is presumptive evidence of intent to use the same unlawfully against another.”). Allowing a consecutive sentence here would allow prosecutors to evade the Court’s decisions in Hamilton and Wright by charging identical conduct with a different subsection of the same statute. That sort of manipulation is not appropriate, especially when the offenses in question are equally “inherently interrelated” to a use offense. Brown, 80 N.Y.2d at 365. 60 The consequences of the prosecutorial gamesmanship here are dramatic: the simple possession charge added an extra twenty years to Mr. Harris’s minimum term. As Justice Scalia has remarked, “[f]or many defendants, the difference between consecutive and concurrent sentences is more important than a jury verdict of innocence on any single count.” Oregon v. Ice, 555 U.S. 160, 174 (2009) (Scalia, J., dissenting). See also William J. Stuntz, The Collapse of American Criminal Justice 263 (2011) (“Charging a series of overlapping crimes raises the odds that the defendant will be convicted of something, and often allows a prosecutor to threaten a harsher sentence than would attach to any single offense.” (emphasis in original)). The availability of so much more punishment should not turn on a quirk in the law. Prosecutorial discretion plays an important part in the criminal justice system. But that mercy-dispensing role is perverted if a prosecutor is allowed to charge an all-but-identical version of an offense and then threaten the defendant with more punishment. If this Court’s rule in Hamilton and Wright is to continue meaning anything, prosecutors should not be allowed to game the system by charging simple possession where they would usually charge possession with intent to use unlawfully. One act deserves one punishment, however lawyers might devise ways to split up the universe. 61 CONCLUSION For all of the above reasons, this Court should suppress the firearm, reverse Joseph Harris’s convictions, and order a new trial. In the alternative, this Court should correct Mr. Harris’s illegal sentence. Dated: New York, New York January 31, 2013 RICHARD M. GREENBERG Attorney for Defendant-Appellant _____________________________ by: THOMAS M. NOSEWICZ Staff Attorney tnosewicz@appellatedefender.org OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, New York 10007 (212) 402-4100 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, — against — JOSEPH HARRIS, Defendant-Appellant. ADDENDUM FOR DEFENDANT-APPELLANT RICHARD M. GREENBERG Attorney for Defendant-Appellant OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, New York 10007 (212) 402-4100 by: THOMAS M. NOSEWICZ Staff Attorney tnosewicz@appellatedefender.org i TABLE OF CONTENTS People v. McCray, 2013 WL 258118, 2013 NY Slip Op 00390 (1st Dep’t Jan. 24, 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Cover and pages 32–34 of the Brief for Respondent in People v. Joseph Harris, 96 A.D.3d 502 (1st Dep’t 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 ! " # $ %&'() *+ *, -./ *0 1111111111111111111111111! / "2 .3 0 . " # 4- 5 26 ./2 7 0 / " # 4.8928+ 26 1111111111111111111111111 2+ !2 .2 " # .2 / 4 - "23 6 ! 8 : :(%( ; 8 : :(%( < + =2/ 2 82+/ + + / +++ % / 22/ < 8 +/ 2 < / < 2 *+82+/ 2 , > %&(:4:6 8 ? / 22 82+ @ 2 + + 82+/ 2 0 82+ + A22/ %: ADDENDUM-000001 !" 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