The People, Respondent,v.Nelson Miranda, Appellant.BriefN.Y.February 11, 2016To be argued by FRANCES A. GALLAGHER (15 MINUTES) Court of Appeals STATE OF NEW YORK ____________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, vs. NELSON MIRANDA, Defendant-Appellant. (APL-2015-00015) REPLY BRIEF FOR DEFENDANT-APPELLANT SEYMOUR W. JAMES, JR. FRANCES A. GALLAGHER Attorneys for Defendant- Appellant The Legal Aid Society 199 Water Street New York, NY 10038 Tel: (212) 577-7992 Fax: (646) 616-4992 September, 2015 i TABLE OF CONTENTS TABLE OF AUTHORITY ............................................................................. ii PRELIMINARY STATEMENT ..................................................................... 1 I. The Issue Is Preserved as a Question of Law for this Court’s Review ................................................................................................ 2 II. This Issue Is Properly Before This Court ...................................... 10 III. The Search Was Unjustified ......................................................... 16 CONCLUSION .............................................................................................. 18 ii TABLE OF AUTHORITIES FEDERAL CASES Arizona v. Gant, 556 U.S. 332 (2009) ..................................................... 14, 17 Batson v. Kentucky, 476 U.S. 79 (1986) ......................................................... 7 STATE CASES People v. Borges, 69 N.Y.2d 1031 (1987) .................................................... 15 People v. Dancey, 57 N.Y.2d 1033 (1982) ...................................................... 3 People v. Edwards, 95 N.Y.2d 486 (2000) ...................................................... 9 People v. Feingold, 7 N.Y.3d 288 (2006) ...................................................... 10 People v. Gokey, 60 N.Y.2d 309 (1983) ....................................................... 17 People v. Graham, 25 N.Y.3d 994 (2015) ................................................... 3, 8 People v. Jeanty, 94 N.Y.2d 507 (2000) .......................................................... 9 People v. Jimenez, 22 N.Y.3d 717 (2014) ..................................................... 16 People v. Martin, 50 N.Y.2d 1029 (1980) ....................................................... 3 People v. McRay, 51 N.Y.2d 594 (1980) ...................................................... 15 People v. Passino, 12 N.Y.3d 748 (2009) ........................................................ 8 People v. Prado, 4 N.Y.3d 725 (2004) ............................................................ 9 People v. Register, 60 N.Y.2d 270 (1983) .................................................... 10 People v. Smith, 59 N.Y.2d 454 (1983) .................................................. 16, 17 People v. Smith, 81 N.Y.2d 875 (1993) .................................................... 7, 17 People v. Turriago, 90 N.Y.2d 77 (1997) .................................................... 8, 9 iii People v. Wells, 15 N.Y.3d 927 (2010) .......................................................... 7 STATUTES C.P.L. § 270.35(2) ........................................................................................... 9 C.P.L. § 470.05(2) ............................................................................... 1, 2, 3, 7 1 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : NELSON MIRANDA, : Defendant-Appellant. : ---------------------------------------------------------------------X PRELIMINARY STATEMENT Appellant argued in his opening brief that the warrantless search of appellant’s satchel could not be justified as a search incident to arrest because no exigent circumstances existed at the time of the search. We argued that this question was preserved as a question of law for this Court’s review pursuant to C.P.L. §470.05(2) because the hearing court, in response to a protest by defense counsel, expressly decided the question raised on appeal. The People, in their response, choose to concentrate much of their efforts on arguing that the issue presented on appeal was not preserved for this Court’s review. In addition, the People attempt to suggest that the underlying legal issue is not reviewable by this Court; the People also discuss the merits of the issue. 2 I. The Issue Is Preserved as a Question of Law for this Court’s Review An issue may be preserved as a question of law pursuant to C.P.L. §470.05(2)1 by two alternative methods. First, the issue may be preserved if the argument on appeal is the same as the argument made by defense counsel below. Second, if defense counsel makes a general objection or requests a certain general remedy, and the court, in response, expressly decides the question raised on appeal, the issue is preserved as a question of law. The People, in their response, argue that appellant did not preserve the issue by the first method (People’s brief, 9-10).2 We, of course, have never claimed that our preservation argument was based on the first method. Rather, the issue is preserved because the court, in response to defense counsel’s request that the property seized by police be suppressed, expressly decided that the property was admissible pursuant to the search- incident-to- arrest exception to the warrant requirement. 1 C.P.L. §470.05(2) states that “a question of law with respect to a ruling . . . is presented when a protest thereto was registered by the party claiming error. . . .” “Such protest . . . is sufficient if the party made his position with respect to the ruling . . . known to the court, or if in response to a protest by a party the court expressly decided the question raised on appeal.” 2 The People’s brief will be cited as P. followed by the page number. 3 Not only do the People irrelevantly argue that the issue is not preserved by the first method, but the People go on to argue as if the second preservation method - - “court expressly decided the question raised on appeal” - - required that defense counsel raise the same arguments below as raised on appeal, when it does not (P. 10). The People even cite People v. Graham, 25 N.Y.3d 994, 997 (2015) for the proposition that a general motion for suppression is insufficient for preservation purposes (P. 10), when, in fact, Graham explicitly recognized that a general objection is sufficient to preserve an issue if the suppression court expressly decides the question raised on appeal. Id. The People also cite People v. Dancey, 57 N.Y.2d 1033, 1034-35 (1982) and People v. Martin, 50 N.Y.2d 1029, 1030-31 (1980) in support of their suggestion that an issue cannot be preserved unless defense counsel below made the same arguments as made on appeal. (P. 10). Dancey and Martin, however, were decided before the 1986 amendment to C.P.L. §470.05(2) that added the second preservation method to the statute - - court “expressly decided the question raised on appeal.” In other words, they were decided at a time when, unlike today, defense counsel’s arguments were the only way of preserving an issue. 4 The People then argue that the suppression court did not “expressly decide” the question that we raise on appeal - - that the search-incident to arrest exception did not apply because the requisite exigency for such a search did not exist at the time of the search. The People argue that the hearing court did not expressly decide this issue because, in their view, the court said nothing about the related factual and legal issues and did not make a finding as to whether the police had removed the satchel from defendant before they searched it3 (P. 12). The People also maintain that the court did not expressly decide the issue on appeal because, in their view, the court “did not mention whether the justification for the search existed only at the time of the search and not previously or whether that precise timing was required under the search incident to arrest exception” (P. 12). 3 The court ruled as follows: This search incident to a lawful arrest was conducted for any number of reasons. It was . . . appropriate for the officer to make this search given the fact that the defendant, at a minimum, had secreted a very dangerous tool on his person, which he dropped at the time of his stop, but it was also quite appropriate for any number of other reasons which are abundantly clear given the types of tools that were recovered and the type of activity that the defendant was involved in and . . . the bag which was seized by the police could have easily held the types of tool which would further criminal offenses in which the defendant was then involved (105-106; A. 83-84). 5 But, of course, the court had discussed the foregoing factual and legal issues in its ruling, and determined that the justification for the search had existed at the time of the stop. According to the court, [T]his search incident to arrest was conducted for any number of reasons. Most significantly, it was plain that it was appropriate for the officer to make this search given the fact that the defendant at a minimum had secreted a very dangerous tool on his person, which he dropped at the time of his stop. (A. 83-84). In other words, in the court’s view, the search incident to arrest was justified because appellant was in possession of a dangerous tool - - the hacksaw - - at the time of the stop. The court also found the search to be justified because of the type of activity “that the defendant was involved in,” again looking to the time of the stop and not to the circumstances at the time of the search (A. 84).4 The People argue that the court did not expressly decide the question raised on appeal because the court made no comment as to whether the justification for the search existed at the time of the search (P. 12). The court would not have mentioned the time of the search in its ruling because the court, apparently believing that the justification for the search should be 4 A. followed by a number refers to the page number in appellant’s appendix in this appeal. 6 evaluated at the time of the stop, did so. What is more, the court had effectively found that the justification for the search did not exist at the time of the search. The court had already determined that appellant’s possession of the hacksaw at the time of the stop, as well as the earlier police observations, justified the search; the police observations were clearly prior to the stop, and it was undisputed that the hacksaw had fallen to the ground at the stop and that appellant no longer possessed it at any subsequent time, including the time of the search. The People also believe that the court did not expressly decide the issue on appeal because the court did not mention whether the officers had removed the satchel from appellant’s person before searching it (P. 12). Given its analysis, the court would not have mentioned that. Since the court evaluated the existence of the exigency at the time of the stop, the timing of the satchel’s removal was irrelevant to the court’s analysis; appellant was carrying the satchel at the time of the stop, and that is all that matters to a court that takes the stop as the point of reference. When a court expressly decides the issue raised on appeal, but decides it incorrectly, the court’s decision and the defendant’s argument on appeal will necessarily be different, but these differences do not render the issue unpreserved; the legal principle at stake is the same, but the analyses differ. 7 Finally, the People claim that the court did not expressly decide the claims raised on appeal, but merely invoked or alluded to them (P. 12-13). Of course, the court was not at all oblique, but, instead, expressly decided the issue on appeal, finding that the search incident to arrest was justified because appellant had possessed a hacksaw at the time of the stop, because the police had observed appellant behaving suspiciously around bicycles, and because the police could expect to find tools in the bag (A. 83-84). The People then cite cases that supposedly support their argument that the court’s decision was insufficiently explicit to be consisted as an express decision (P. 12-13). The cases do not support the People’s position. Some of the cases discuss the sufficiency of lawyers’ arguments and not courts’ decisions. People v. Smith, 81 N.Y.2d 875, 876 (1993), for example, discussed the defendant’s burden of going forward where Batson v. Kentucky, 476 U.S. 79 (1986) requires the party asserting the claim “to articulate and develop all grounds supporting claims factual and legal” in order to raise an inference of bias pursuant to Batson. That is a burden, not a preservation case, and has nothing to do, or in common with, the language or interpretation of C.P.L. §470.05(2). People v. Wells, 15 N.Y.3d 927, 928 (2010), also cited by the People is not about allusion or obliqueness, but, rather, is a case where defense counsel’s argument below contradicted the 8 argument made on appeal. That is not the case here. People v. Passino, 12 N.Y.3d 748, 749 (2009) contains neither legal analysis nor facts. Graham, 25 N.Y.3d at 995-97, too, is not at all similar to the case at bar. There, the court below had not “expressly decided” the issue later raised on appeal because the issue on appeal was based on a failure to deliver Miranda warnings, whereas the court below had decided the issue on state right to counsel grounds. Here, in contrast, the court expressly stated that this was a valid search incident to arrest because the exigency existed at the time of the stop; this is the very federal and state constitutional right at issue on appeal. Finally, in People v. Turriago, 90 N.Y.2d 77 (1997), this Court found that the suppression court had not “expressly decided” the issue on appeal because the lower court refused to suppress the physical evidence on the ground that the defendant’s consent to search the vehicle was freely given and not the product of coercion or submission to authority, whereas the questions on appeal were whether the officers had the founded suspicion necessary to make the request and, indeed, whether founded suspicion even needed to be established after a valid stop of a vehicle. Id. at 80-83. Of course, voluntariness of a consent to search and whether founded suspicion existed or was even applicable are, as this Court found, “totally unrelated”, 9 id at 84, and so the suppression court had obviously not “expressly decided” the issue on appeal. Here, in contrast, as previously discussed, the question on appeal and the one expressly decided by the court below are identical; the trial court found this to be a proper search incident to arrest because it believed that an exigency existed at the time of the stop, and the question on appeal is whether the exigency should be evaluated at the time of the stop or search. While citing the foregoing irrelevant cases, the People fail to cite quite a few cases from this Court that demonstrate that the question presented by our appeal was expressly decided by the suppression court. In People v. Edwards, 95 N.Y.2d 486, 491 n. 2 (2000), this Court found that the question of probable cause raised on appeal had been expressly decided by the court below because the court had found probable cause, in part, because the police could rely on a confidential informant. In People v. Jeanty, 94 N.Y.2d 507, 514n (2000), too, the issue was preserved; while counsel protested the trial court’s refusal to wait for a tardy juror until the following day, the trial court, in its refusal, cited the two-hour rule of C.P.L. §270.35(2), the meaning of which was at issue on appeal. In People v. Prado, 4 N.Y.3d 725 (2004), in response to a general motion to dismiss the charges, the trial court found the evidence at trial to be sufficient on the 10 ground that the confession was corroborated; the trial court had made corroboration findings, and this Court found that the issue as to whether the confession was sufficiently corroborated was preserved. In People v. Feingold, 7 N.Y.3d 288 (2006), the trial court, at a bench trial, relying on People v. Register, 60 N.Y.2d 270 (1983), found the defendant guilty of reckless endangerment, even though the court found that the defendant had not displayed a depraved indifference to human life. On appeal, the question was whether depraved indifference was a requisite mens rea, and this Court found the issue preserved because the trial court had “confronted and resolved” this issue despite defense counsel’s failure to raise it. Id. at 290. In none of these cases did this Court analyze whether the trial or hearing court had discussed every single fact that this Court would use in its decision or that the defendant had discussed in his brief or whether the trial or hearing court had eliminated all possible alternative legal theories. It was enough in each of these cases that, in response to a protest by a party, the trial or hearing court had reached a decision on the legal principle presented on appeal and had provided reasons for its decision. II. This Issue Is Properly Before This Court The People then attempt to create a factual dispute, but the record does not support their view. The People make this argument in support of 11 their unsupportable claim that the principle of preservation requires the issue on appeal to have been specifically argued by defense counsel below and to support their erroneous claim that this Court has no jurisdiction to review the issue on appeal (P. 15-18, 20). The People claim that Ward testified that he searched the bag before he removed it from appellant, saying that Ward testified that “he found the tools ‘inside of the satchel bag on his person, on his body’” (P. 15; A. 66). In fact, Ward did not say that. Counsel asked Ward, “(D)id the defendant have any tools on his person or were they all inside the bag?” (A. 66). Ward responded that the hacksaw was in defendant’s sleeve and that “he had the rest of his tools inside of his satchel bag on his person - - on his body” (A. 66). Ward was simply describing, in response to the question, the location of objects carried by appellant. Ward never said that he found the tools in the satchel on appellant’s body during a search; he said that appellant “had” them there (A. 66). The People also say that Ward testified that the arrest and search happened simultaneously, before the officers removed the bag from appellant. They say that the officer testified that he recovered tools “from inside a satchel bag that defendant had under his coat” during the initial frisk and search of defendant (P. 16; A. 19). Ward had not said that. Ward had 12 not even mentioned the frisk at this point in his testimony (A. 19). Ward was simply responding to the question as to whether he had recovered anything besides the hacksaw from appellant. Indeed, when asked about the frisk, Ward said that he felt a large object under appellant’s coat “which [he] would have guessed was the bag underneath the coat” and that he could not tell what was in the bag at that time (A. 20). Specifically, in support of their claim that the arrest and search happened at the same time while the satchel was on appellant, the People claim that Officer Ward testified that “‘[o]nce [he] stopped [defendant] and began the initial frisk and search’ of defendant, he recovered ‘several tools’ ‘[f]rom inside a satchel bag that [defendant] had under his coat’ (A. 19)” (P. 16). In fact, the People’s sentence combines fragments of testimony from different pages, and the first portion of the sentence - - “‘once [he] stopped [defendant] and began the initial frisk and search’” is not from A. 19 at all, but from A. 20, and the sentence does not conclude with Ward’s recovery of tools from the satchel, as the People would wish, but, rather, concludes with Ward’s feeling of the bag. The actual sentence and Ward’s actual testimony is “once [I] stopped [defendant] and began the initial frisk and search of arrest of the subject, I determined a bag underneath his coat” (A. 20). 13 The People then combine the foregoing misstatements in a slightly different order (P. 20) to argue that the search was justified, but, as just discussed, the record does not support their view. Officer Ward never testified that he found the tools in the satchel while the satchel was on appellant’s body at the time of the stop, or later. In fact, Ward was very clear as to the chronology of events, and his testimony demonstrates that the stop preceded the search and that the police searched the bag after they had handcuffed him and removed the bag from him. On direct examination, Officer Ward testified that he said, “Police, don’t move” when he stopped appellant, who dropped the hacksaw between two parked cars. Once Ward “stopped him and began the initial frisk and search”, he “determined a bag underneath appellant’s coat”; Ward then specified more precisely that he felt “a large object which I would have guessed was the bag underneath his coat.” When asked whether he could “tell what was in the bag at the time” Ward said that he could not. The prosecutor then turned her examination to other subjects (A. 19-20). On cross-examination, Officer Ward provided more detail, testifying that he (Ward) had “come up from behind him (appellant)”, said “Police. Don’t move,” grabbed him by his arms,” “put his arms . . . on the hood of the car and then proceeded to handcuff him” (A. 62). 14 As Ward said, “Police. Don’t move,” and . . . “grabbed his hands”, the hacksaw fell from inside appellant’s sleeve to the ground between two parked cars (A. 62-63). Officer Ward testified that the officers had handcuffed appellant both “before [they] got the bag off” (A. 64) and also before searching the bag (A. 65). Ward also described the bag “as closed as a satchel can be” (A. 66). Consequently, the search was not justified because a search incident to arrest is only justified if, at the time of the search, the arrestee is unsecured and within reaching distance of the thing to be searched. Arizona v. Gant, 556 U.S. 332, 337-39 (2009), and the People failed to demonstrate that here. And, that is so, regardless of the location of the satchel at the time of the search because, as the record conclusively establishes, appellant was secured in handcuffs at the time of the search. In addition, the search was not justified, regardless of the satchel’s location at the time of the search, because neither exigency - - a reasonable belief that the satchel contained a dangerous item or that it contained evidence that would be destroyed - - existed at the time of the search for the reasons set forth in appellant’s opening brief. The People then argue that whether an exigency exists is a mixed question of law and fact, and beyond this Court’s review so long as there is 15 support in the record for the lower court’s determination (P. 17). As previously discussed, there is no support for the People’s view of the record. What is more, this is not a mixed question of law and fact or a question of fact because appellant is not arguing that the lower courts misinterpreted the facts; he is arguing that the lower courts applied the incorrect legal standard, and application of the correct legal standard is always a question of law. See People v. McRay, 51 N.Y.2d 594, 601 (1980) (the court, speaking of probable cause, said that while mixed questions are beyond the review of this Court, “when an issue arises as to the standard by which probable cause is measured . . . a question of law is presented for review”); People v. Borges, 69 N.Y.2d 1031, 1033 (1987) (although attenuation usually presents a mixed question of law and fact, where “the lower court has applied an incorrect legal standard, an issue of law reviewable by this Court is presented”). Here, too, we are arguing that the court applied the incorrect legal standard, evaluating the exigencies at the time of the stop when it ought to have evaluated them at the time of the search. As in McRay and Borges, this is a question of law reviewable by this Court. 16 III. The Search Was Unjustified The People devote a smaller portion of their brief to the merits of the case, and most of their discussion has been addressed in our opening brief. However, the following should be noted. The People describe the search incident to arrest exception as allowing police “to contemporaneously search . . . containers within the arrestee’s immediate control” so long as one of two exigencies exist at the time of the arrest (P. 19-20). Contemporaneity, as used in the cases, means that the search is close in time to the arrest. See, e.g., People v. Smith, 59 N.Y.2d 454, 458 (1983). To the People, the search-incident exception means that, as long as the search and arrest are close in time, it does not matter that exigencies that existed at the arrest no longer exist at the time of the search (P. 19-20). But, of course, closeness in time and the existence of exigencies are separate and independent prerequisites, each of which must be established independently by the People to justify a search incident to arrest. See, e.g., People v. Jimenez, 22 N.Y.3d 717, 721 (2014). (People must “satisfy two separate requirements” - - the search may not be divorced in time or place from the arrest and exigent circumstances must be present). Consequently, that the 17 search and arrest are close in time cannot compensate for a lack of exigency at the time of the search. To the extent that the People are looking to support their position by relying on language such as the language in Smith, 59 N.Y.2d 454, 458 (1983) (P. 19-20), they may no longer do so. Smith said that “a search not significantly divorced in time or place from the arrest may be conducted even though the arrested person had been subdued and his closed containers within the exclusive control of the police.” That statement of the law was always questionable, inconsistent as it was with other language in Smith and with People v. Gokey, 60 N.Y.2d 309 (1983). See appellant’s opening brief, pp. 29-34. And, more important, after the United States Supreme Court’s decision in Gant, 556 U.S. 332, that language must be disregarded. The Court in Gant specifically rejected a rule that allowed a search of containers on the ground that it could be presumed that dangers continue to exist during the period between the stop and the search. Gant, 556 U.S. at 340-343. Gant specifically held that a search incident to arrest can be justified only if, at the time of the search, the arrestee is unsecured and within reaching distance of the object to be searched. Gant, 556 U.S. at 343. 18 The remainder of the People’s argument is either not supported by the record or is not supported by the law and has either been fully addressed herein or in appellant’s opening brief. For all of the reasons presented herein and in our opening brief, the property found in appellant’s satchel must be suppressed, and appellant’s attempted criminal possession of burglar’s tools’ convictions, resting on that property, must be dismissed. CONCLUSION THE PROPERTY FOUND IN APPELLANT’S SATCHEL MUST BE SUPPRESSED AND APPELLANT’S CONVICTIONS OF ATTEMPTED CRIMINAL POSSESSION OF BURGLAR’S TOOLS BASED ON THAT PROPERTY SHOULD BE REVERSED AND THE COUNTS DISMISSED. Respectfully submitted, SEYMOUR W. JAMES, JR. Attorney for Defendant- Appellant FRANCES A. GALLAGHER Of Counsel September, 2015