Quest to Suppress
By Mark Thompson
markthomp@yahoo.com
Posted 04-16-08
The Appellate Division split over police tactics in an otherwise legal traffic stop. The majority ruled that the officer's inventory of vehicle contents became the pretext for an illegal search.
None of the six judges who reviewed the matter doubted that a police officer had a right to pull over Victor Gomez for driving erratically, and to arrest him and impound his car when the officer discovered that Gomez was driving with a suspended license. The manner in which the officer proceeded to search the vehicle, however, exposed a sharp split over police procedures between the five appellate judges who reviewed the case.
The trial judge, New York County Justice Gregory Carro, who was a career prosecutor in Manhattan before he was appointed to the bench by then-Mayor Rudolph Giuliani in 1998, found no reason to second-guess the officer, who recovered drugs in the trunk and dozens of empty baggies in a door panel during what he described as a routine “inventory search.” Carro denied Gomez’s motion to suppress the evidence and convicted him of drug charges.
A divided panel of the Appellate Division reversed on grounds that the search wasn’t conducted for the legitimate purpose of cataloging valuables. The officer’s claim to the contrary was a thinly-veiled pretext for unfettered rummaging for incriminating evidence, the majority concluded, reversing Carro, vacating the defendant’s guilty plea and dismissing the indictment. People v. Gomez
The true – and illegal – purpose for the search was exposed at the suppression hearing, according to the majority, where prosecutors offered no evidence about the standard procedures used by the police in conducting inventory searches. They also, most tellingly of all, failed to produce the “hallmark of an inventory search,” namely a list of items found in the car.
In a 4,300-word dissent, Justice James McGuire castigated the majority for cooking up objections to the search procedure that Gomez failed to raise himself. “The specific grounds upon which the majority relies are glaringly absent from counsel's argument,” McGuire asserted. “By not raising these arguments at the hearing, defendant deprived the People of an opportunity to meet them with evidence.”
The majority’s claim that the officer never properly inventoried items recovered from the vehicle was “sheer sophistry,” McGuire added, given that the officer had in fact filled out a “voucher” listing the potential evidence that he found. Though the officer may have blundered in describing the type of document he used, “it surely would be absurd to invalidate the search in this case if the voucher did record all of the items found in the vehicle,” McGuire wrote.
OTHER NOTABLE REVERSALS
KINGS COUNTY
PROSECUTORIAL MISCONDUCT: Justice Vincent Del Giudice let a prosecutor run amok during a trial in which Kimarlie Gordon was convicted of attempted robbery and assault, the Appellate Division said. The judge sustained some of the defense attorney’s objections, but the prosecutor plowed ahead anyway with a line of argument that repeatedly characterized Gordon’s account of events as a “Hollywood” tale that was "ridiculous" and "absurd." For good measure, the prosecutor accused the defense attorney of withholding the truth from the jury. Those assertions “exceeded the broad bounds of rhetorical comment permissible in closing argument,” concluded a unanimous appellate panel, which was compelled to reverse Gordon’s conviction. People v. Gordon
LANDLORD TENANT: Justice Bernadette Bayne was reversed for letting a tenant proceed with a suit alleging that the owner was unjustly enriched by the tenant’s payment of the costs of rezoning the property. As the Appellate Division saw it, in light of an option agreement which clearly stated that the tenants would undertake rezoning of the property at their "sole cost and expense," they had no reason to expect reimbursement, so Bayne should have dismissed their claim as a matter of law. MT Property, Inc. v. Weinstein
NEW YORK COUNTY
PRODUCT LIABILITY: Justice Karen S. Smith upheld a $20.5 million jury verdict in what would have been a landmark product-liability suit against tobacco companies for continuing to sell regular cigarettes even though safer, low-tar versions were available. However, the majority of an Appellate Division panel reversed Smith and dismissed the suit on the theory that light cigarettes don’t have the same “utility” as far as most smokers are concerned, since they don’t provide the same dose of tar and nicotine that tobacco addicts crave. That is a “patently absurd” and “self serving” argument, said the dissenters who sided with Smith, but they were outvoted 3-2. Rose v. Brown & Williamson Tobacco Corp.
TORT: Justice Leland DeGrasse wasn’t convinced that a slab of granite that injured Reynolds Brown when it fell three feet from a forklift as he was trying to affix it to the side of a building fell far enough to give rise to a viable claim under the Labor Law provision covering elevation related risks, but the Appellate Division set him straight. “[T]he extent of the elevation differential is not necessarily determinative of whether an accident falls within the ambit” of the statute, said the appellate panel, which concluded that DeGrasse should have granted summary judgment to Brown on the issue of liability. The fact is, a clamp broke, the slab fell, and Brown was injured, and nothing more needed to be known about the accident, the appellate judges said. Brown v. VJB Construction Corp.
SENTENCING: Justice Ruth Pickholz imposed an excessive sentence on George Ramadhan following his conviction for burglary, said the Appellate Division, cutting his eight-year prison term in half. People v. Ramadhan
BRONX COUNTY
MEDICAL MALPRACTICE: Justice Stanley Green allowed the estate of Riccardo Gandolfo to proceed with a medical malpractice suit against a hospital for prematurely discharging him shortly before he died even though, according to the Appellate Division, a medical expert testifying on the plaintiffs’ behalf did not question any of the factors on which the decision to discharge was based. The expert also failed to address Gandolfo’s long history of heart problems, his unilateral decision to stop taking prescribed medication, and his failure to follow up with the doctor whom the estate is now accusing of fatal negligence, said the appellate panel, reversing Green and summarily dismissed the complaint. Peters v. Goldner
TORT: Justice Lucy Billings allowed Aida Gonzalez-Jarrin to proceed to trial for her slip and fall on a wet floor in the vestibule of a school building even though the evidence established that rain or snow had been falling for hours at the time of the accident. That evidence, according to the Appellate Division, belied Gonzalez-Jarrin’s contention that school officials were at fault for failing to mop up the hazard. Gonzalez-Jarrin v. New York City Department of Education
QUEENS COUNTY
The Appellate Division reversed Queens County trial judges in two cases for letting litigants escape default judgments.
TORT: Justice Janice Taylor declared that Rose Desena was never properly served with a summons and complaint because the process server failed to ask the adult to whom he handed the papers at Desena’s home address whether she was on active military duty. In fact, a notation at the bottom of the affidavit of service indicated that he asked the question, an appellate panel found, so service was valid, Desena had no excuse for failing to respond, and the default judgment against her should stand. Bergani v. Desena
TORT: Justice Phyllis Flug allowed a 12-year-old boy and his mother to proceed with a suit against the city for an alleged sexual assault on the boy in a city shelter, after accepting an excuse for their delay in filing the claim that didn’t pass muster with the Appellate Division. The mother said she didn’t get around to filing a notice of claim because she was consumed with the ensuing criminal proceeding, yet offered no supporting evidence. The plaintiffs also failed to establish that the city had notice of the facts underlying the claim, which accused the city of negligent operation and supervision of the facility, the appellate panel concluded, reversing Flug and dismissing the complaint. Matter of Julie F. v. City of New York
The trial judge, New York County Justice Gregory Carro, who was a career prosecutor in Manhattan before he was appointed to the bench by then-Mayor Rudolph Giuliani in 1998, found no reason to second-guess the officer, who recovered drugs in the trunk and dozens of empty baggies in a door panel during what he described as a routine “inventory search.” Carro denied Gomez’s motion to suppress the evidence and convicted him of drug charges.
A divided panel of the Appellate Division reversed on grounds that the search wasn’t conducted for the legitimate purpose of cataloging valuables. The officer’s claim to the contrary was a thinly-veiled pretext for unfettered rummaging for incriminating evidence, the majority concluded, reversing Carro, vacating the defendant’s guilty plea and dismissing the indictment. People v. Gomez
The true – and illegal – purpose for the search was exposed at the suppression hearing, according to the majority, where prosecutors offered no evidence about the standard procedures used by the police in conducting inventory searches. They also, most tellingly of all, failed to produce the “hallmark of an inventory search,” namely a list of items found in the car.
In a 4,300-word dissent, Justice James McGuire castigated the majority for cooking up objections to the search procedure that Gomez failed to raise himself. “The specific grounds upon which the majority relies are glaringly absent from counsel's argument,” McGuire asserted. “By not raising these arguments at the hearing, defendant deprived the People of an opportunity to meet them with evidence.”
The majority’s claim that the officer never properly inventoried items recovered from the vehicle was “sheer sophistry,” McGuire added, given that the officer had in fact filled out a “voucher” listing the potential evidence that he found. Though the officer may have blundered in describing the type of document he used, “it surely would be absurd to invalidate the search in this case if the voucher did record all of the items found in the vehicle,” McGuire wrote.
OTHER NOTABLE REVERSALS
KINGS COUNTY
PROSECUTORIAL MISCONDUCT: Justice Vincent Del Giudice let a prosecutor run amok during a trial in which Kimarlie Gordon was convicted of attempted robbery and assault, the Appellate Division said. The judge sustained some of the defense attorney’s objections, but the prosecutor plowed ahead anyway with a line of argument that repeatedly characterized Gordon’s account of events as a “Hollywood” tale that was "ridiculous" and "absurd." For good measure, the prosecutor accused the defense attorney of withholding the truth from the jury. Those assertions “exceeded the broad bounds of rhetorical comment permissible in closing argument,” concluded a unanimous appellate panel, which was compelled to reverse Gordon’s conviction. People v. Gordon
LANDLORD TENANT: Justice Bernadette Bayne was reversed for letting a tenant proceed with a suit alleging that the owner was unjustly enriched by the tenant’s payment of the costs of rezoning the property. As the Appellate Division saw it, in light of an option agreement which clearly stated that the tenants would undertake rezoning of the property at their "sole cost and expense," they had no reason to expect reimbursement, so Bayne should have dismissed their claim as a matter of law. MT Property, Inc. v. Weinstein
NEW YORK COUNTY
PRODUCT LIABILITY: Justice Karen S. Smith upheld a $20.5 million jury verdict in what would have been a landmark product-liability suit against tobacco companies for continuing to sell regular cigarettes even though safer, low-tar versions were available. However, the majority of an Appellate Division panel reversed Smith and dismissed the suit on the theory that light cigarettes don’t have the same “utility” as far as most smokers are concerned, since they don’t provide the same dose of tar and nicotine that tobacco addicts crave. That is a “patently absurd” and “self serving” argument, said the dissenters who sided with Smith, but they were outvoted 3-2. Rose v. Brown & Williamson Tobacco Corp.
TORT: Justice Leland DeGrasse wasn’t convinced that a slab of granite that injured Reynolds Brown when it fell three feet from a forklift as he was trying to affix it to the side of a building fell far enough to give rise to a viable claim under the Labor Law provision covering elevation related risks, but the Appellate Division set him straight. “[T]he extent of the elevation differential is not necessarily determinative of whether an accident falls within the ambit” of the statute, said the appellate panel, which concluded that DeGrasse should have granted summary judgment to Brown on the issue of liability. The fact is, a clamp broke, the slab fell, and Brown was injured, and nothing more needed to be known about the accident, the appellate judges said. Brown v. VJB Construction Corp.
SENTENCING: Justice Ruth Pickholz imposed an excessive sentence on George Ramadhan following his conviction for burglary, said the Appellate Division, cutting his eight-year prison term in half. People v. Ramadhan
BRONX COUNTY
MEDICAL MALPRACTICE: Justice Stanley Green allowed the estate of Riccardo Gandolfo to proceed with a medical malpractice suit against a hospital for prematurely discharging him shortly before he died even though, according to the Appellate Division, a medical expert testifying on the plaintiffs’ behalf did not question any of the factors on which the decision to discharge was based. The expert also failed to address Gandolfo’s long history of heart problems, his unilateral decision to stop taking prescribed medication, and his failure to follow up with the doctor whom the estate is now accusing of fatal negligence, said the appellate panel, reversing Green and summarily dismissed the complaint. Peters v. Goldner
TORT: Justice Lucy Billings allowed Aida Gonzalez-Jarrin to proceed to trial for her slip and fall on a wet floor in the vestibule of a school building even though the evidence established that rain or snow had been falling for hours at the time of the accident. That evidence, according to the Appellate Division, belied Gonzalez-Jarrin’s contention that school officials were at fault for failing to mop up the hazard. Gonzalez-Jarrin v. New York City Department of Education
QUEENS COUNTY
The Appellate Division reversed Queens County trial judges in two cases for letting litigants escape default judgments.
TORT: Justice Janice Taylor declared that Rose Desena was never properly served with a summons and complaint because the process server failed to ask the adult to whom he handed the papers at Desena’s home address whether she was on active military duty. In fact, a notation at the bottom of the affidavit of service indicated that he asked the question, an appellate panel found, so service was valid, Desena had no excuse for failing to respond, and the default judgment against her should stand. Bergani v. Desena
TORT: Justice Phyllis Flug allowed a 12-year-old boy and his mother to proceed with a suit against the city for an alleged sexual assault on the boy in a city shelter, after accepting an excuse for their delay in filing the claim that didn’t pass muster with the Appellate Division. The mother said she didn’t get around to filing a notice of claim because she was consumed with the ensuing criminal proceeding, yet offered no supporting evidence. The plaintiffs also failed to establish that the city had notice of the facts underlying the claim, which accused the city of negligent operation and supervision of the facility, the appellate panel concluded, reversing Flug and dismissing the complaint. Matter of Julie F. v. City of New York