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New York Weekly Roundup 3-15-2019


STILL no instances reported for March


Individuals v. Jesus Perez, Indictment # 2533-15 (2019 NY Slip Op 01822)

At his suppression hearing, the courtroom ruled that possible trigger didn’t exist till the undercover officer who allegedly bought medicine from defendant made an identification.  However, earlier than he was recognized, he was stopped and handcuffed.  There was no proof within the report that Defendant was armed, dangerous, or probably to withstand arrest or flee.  Accordingly, handcuffing him elevated an investigatory stop to an arrest with out possible trigger.

The First Division granted his motion to suppress physical proof and identification testimony, and remanded the case for a new trial with an unbiased source listening to.

Defendant’s conviction for Felony Sale of a Managed Substance within the Third Degree was reversed.

You’ll be able to read the opinion HERE:

Individuals v. Jesus Perez, Indictment # 2533-15 (2019 NY Slip Op 01822)



Individuals v. David Gonsalves, Docket # 2016-03706

Defendant was charged with Theft in the First Degree, Theft within the Second Degree, Robbery in the Third Diploma, Assault within the Second Diploma, Assault within the Third Degree, and Petit Larceny in reference to a theft of a barbershop.  At trial, the Individuals elicted testimony from the complainant that the Defendant’s stepfather came into the barbershop days after the robbery, apologized for Defendant’s actions, and provided to exchange the stolen cellular phone.  The stepfather did not testify.  The Individuals also elicited testimony from the case detective that the detective spoke with an nameless informant, who had witnessed the theft, and had recognized Defendant by identify.

The Second Division reversed and remanded for a brand new trial, finding that the hearsay testimony violated Defendant’s Confrontation Clause rights.

You’ll be able to read the opinion HERE:

Individuals v. David Gonsalves, Docket # 2016-03706


Individuals v. Matthew Robinson, Docket # 2017-01854

Defendant was arrested for Felony Possession of a Weapon within the Second Diploma after police allegedly observed him toss a gun to the ground when approached by police.  After that arrest, he was arrested on another gun charge and was incarcerated at Riker’s Island.  At trial, over the defendant’s objections, the trial courtroom additionally permitted the Individuals to introduce, as admissions of the Defendant, recordings of telephone calls made by the Defendant in Might and June 2015, while he was detained at Rikers Island Correctional Facility following his subsequent arrest.

The Second Division reversed and remanded, finding that the topic recordings ought to have been excluded from evidence because their probative value with respect to the instant offense was substantially outweighed by the danger of unduly prejudicing him and misleading the jury.

The timing and content material of the telephone calls made it extremely unlikely that the Defendant was referencing his September 2014 arrest for the instant offense.  The admission of the recordings into proof placed the Defendant in the untenable position of deciding whether to simply accept this deceptive narrative that the phone recordings referred to the instant offense or disclose his later arrest on an analogous gun possession charge, which disclosure itself would have brought about him undue prejudice.

The Second Department also targeted on the truth that the District Lawyer relied heavily upon these statements during summation, which exacerbated the unfairness to the Defendant resulting from their admission.

A  new trial was ordered with directions to exclude the telephone calls.

Read the decision HERE:

Individuals v. Matthew Robinson, Docket # 2017-01854



Thanks Mike Baker for this week’s Third Department Roundup!

Individuals v Vandegrift – http://decisions.courts.state.ny.us/ad3/Decisions/2019/108639.pdf

Upon a CPL Article 730 examination there was a cut up of opinion between the two psychiatrists on the Defendant’s competency. On the day of the listening to, protection counsel advised the courtroom that the psychiatrist who found the Defendant to be incompetent had “changed his opinion and no longer believed there was a question of legal incapacity.” As such, the Courtroom proceeded with a Violation of Probation hearing after which the Defendant was deemed to be in violation and sentenced to an indeterminate time period of 1 to three years.  In remitting the matter for a reconstruction hearing, the Courtroom decided that the “CPL expressly provides that, when the examination reports submitted to the court show that the psychiatric examiners are not unanimous in their opinion[s] as to whether the defendant is or is not an incapacitated person, the court must conduct a hearing to determine the issue of capacity”. However defense counsel’s assertion “this representation and subsequent withdrawal of the request for a hearing did not relieve the court of its statutory duty to conduct a hearing pursuant to CPL 730.30 (4) for the purpose of determining defendant’s mental capacity to stand trial”

Learn the choice HERE:

Individuals v. Joshua P. Vandegrift, Docket # 108639

Individuals v Smith – http://decisions.courts.state.ny.us/ad3/Decisions/2019/109586.pdf

Defendant convicted, in absentia, of 3 counts of Rape in the Third Degree and Endangering the Welfare of a Youngster.  At an appearance the week before the scheduled trial date, “County Court advised defendant of the trial date and warned that the trial would proceed in his absence if he failed to appear”. Defendant not seem for trial and was convicted.  The Courtroom found that County Courtroom had abused its discretion in conducting the trial. “Even where a defendant has waived the right to be present at trial by not appearing after being apprised of the right and the consequences of nonappearance, trial in absentia is not thereby automatically authorize. Rather, it must also appear from the record that the trial court considered all appropriate factors before proceeding in [the] defendant’s absence, including the possibility that [the] defendant could be located within a reasonable period of time, the difficulty of rescheduling the trial and the chance that evidence will be lost or witnesses will disappear”. (inner quotes and citations omitted). The Defendant had been present for all prior appearances and counsel had been making an attempt to find the defendant for the week prior to trial. Since nothing in the document indicated that County Courtroom “considered the appropriate factors” the Judgment of conviction was reversed and remitted for a brand new trial.

You’ll be able to learn the opinion HERE:

Individuals v. Brian C. Smith, Docket # 109586


Individuals v. Benito Lendof-Gonzalez, Docket # 18-00174

Defendant was arrested for allegedly assaulting his wife and was remanded to the Niagara County Jail pending trial.  While incarcerated, he handed several notes to another inmate, asking him to kill his wife and mother-in-law by injecting them with heroin and different medicine.  Defendant provide a detailed plan of the crime, and promised the inmate a home in return for the killings.  When the other inmate was launched on bail, Defendant made a number of calls to him in regards to the plan.

As an alternative of shifting ahead with the plan, the opposite inmate reported this to the authorities and offered them the notes.  He then informed Defendant that he had killed the 2 ladies pursuant to the directions of regulation enforcement.  Nevertheless, the opposite inmate took no steps toward committing the crime.

Defendant was convicted after trial of Attempted Murder within the First Diploma, Attempted Homicide within the Second Diploma, and Legal Solicitation in the Second Diploma.

The Fourth Department reversed and dismissed the tried murder counts as legally inadequate.  The Fourth Department held the Individuals failed to determine that any accessory took any step that brought the crimes “dangerously near” to completion.

You’ll be able to learn the decision HERE:

Individuals v. Benito Lendof-Gonzalez, Docket # 18-00174


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