Welcome to Criminal Law and

Procedure

What are we doing?

The People of the State of New York

v

Mike Delta and Alfred Camp

The Problem

The People of the State of New York

v

Mike Delta and Alfred Camp

Mike Delta and Alfred Camp have been arrested. Here is what happened.

On September 6, 2011, at approximately 12:30 am, Police Officers Frank Able and Officer Sal Baker were on road patrol in Queens, when a young woman, Patty (complainant) approached their car. She told them that two men forced their way into her apartment where they beat her and robbed at gun point. She told the officers that one the men had just entered the supermarket located a block away and that the man was probably carrying a gun. She stated that she had seen both of them in her apartment building and thought that both lived or stayed in apartment 6D or 6E.

The officers drove the woman to the supermarket. She then told the officers that she thought the other man might be in the black Honda Civic at the other end of the parking lot. The officers called for police backup.It was decided that while the additional police arrived, Officer Able would enter the supermarket in case the suspect was going to rob the supermarket or harm someone else with his gun. Officer Baker stayed with the complainant and kept under observation the black Honda Civic. A police car and a police van went to the supermarket a few minutes later.

The officers in the van went into the supermarket, while the officers in the other police car went to the other exit and kept the black Honda under observation. Before the backup arrived, Officer Able entered the store and quickly spotted a black male wearing a black jacket, approaching a checkout counter. Apparently upon seeing the officer, the black male turned and ran toward the rear of the store, and Officer Able pursued him with a drawn gun. Officer Able saw yellow letters on the back of the coat but could not read what it said. When the black male turned the corner at the end of an aisle, Officer Able lost sight of him for several seconds, and upon regaining sight of the black male, ordered him to stop and put his hands over his head.

At that point, three other officers arrived on the scene and entered the supermarket. They quickly spotted Officer Able and went to assist him. Officer Able noticed that the yellow letters on the back of the coat read “Big Boy,” not “Big Ben.” They asked the black male what his name was and he responded, “Mike Delta.”As the other officers pointed their guns on the suspect, Officer Able frisked Mike Delta and discovered that he was wearing an empty shoulder holster. At the time Mike Delta was surrounded by four police officers whose guns had been returned to their holsters because they felt that the situation was under control.

After handcuffing him, Officer Able asked him where the gun was. Mike Delta nodded in the direction of some empty cartons and responded, “the gun is over there.” Officer Able then went to the boxes and seized a loaded Glock 26 handgun. Mike Delta was then placed under arrest by Officer Able, and read him his Miranda rights from a printed card. Officer Able then asked Delta if he owned the gun and where he had purchased it. Mike Delta answered that he did own it and that he had purchased it in South Carolina.

When they went outside, Officer Baker, in the police car with the complainant, asked her to look at the person in the handcuffs and then asked her if she recognized her. The complainant stated that he was one of the men she told them about. She was then taken to a hospital by EMS who had just arrived. Apparently, when the occupant of the black Honda Civic saw Delta leave the supermarket in police custody, he attempted to drive the black Honda Civic out of the supermarket. The other police car blocked the exit and turned on the police lights and siren. The black Honda Civic stopped.

Officers Able and Baker went up to the car and noticed Alfred Camp with a red coat on. They told him to exit the car. While he was exiting, Camp was able to slip out of the coat and the coat remained on the front driver’s seat. While Camp was held outside of the car by Officer Baker, Officer Able picked up the coat and noticed it was quite heavy on one side. He then felt that side and felt what he believed to be a gun. He reached into the pocket of the coat and removed the gun, a Ruger LCP. Camp was then frisked and handcuffed and placed in the police vehicle.

Officer Camp then went back into the car to look for contraband from the robbery. Under the back seat they found a zippered black bag. They opened it and found women’s jewelry.Both suspects were arrested, though Camp was not given his Miranda warnings, and taken to the local precinct for arrest processing by Officers Able and Baker. On the way, Officer Able told both suspects that when they go into the precinct, the desk sergeant would search them thoroughly. He then asked them if they had anything in their pockets or on them that would could harm the officers searching them. Camp then said: “A gun is in the glove compartment in a brown paper bag.”

The black Honda Civic was taken to the precinct and impounded. Officer Able told his Lieutenant what Camp told him about the gun. Rather than seeking a search warrant, Lieutenant Luke went to the car with a clipboard and started to go through the entire car writing down everything that was in the car.He opened the glove compartment and saw the described paper bag. He took the bag out of the and it felt heavy and the shape of what was in the bag was clearly a gun. When he went into the bag, he found the gun and an ounce of cocaine.

The officers later went to the hospital. The complainant was still in the emergency room. In her room she was with the physician. The physician stated that the complainant had a broken finger on her right hand. They saw that her right eye was swollen shut and black and blue. She was prescribed pain killers.The officers then went to the apartment building. They first went to the complainant’s apartment. They observed a broken door and inside the apartment was in disarray as if things were turned over to look for things. Backup arrived and the backup officers secured the place. officers then went to apartment 6D where Mike Delta’s driver license stated he lived. The door was closed and locked. They looked for the superintendent to open the door. The superintendent had a key that opened the door.

The He told the officers that two people lived there, but he wasn’t sure who they were since they had just moved in, though he remembered that one of them wore a black coat with “Big Man” on it. They then asked him if the other person wore a red coat. He stated that he had no idea about the second guy, but thought both might be black men around 5 foot, ten inches tall, or that just might be a friend. The officers went into the apartment and quickly went through the apartment to make sure no one else was in the apartment. They noticed that the apartment had two bedrooms. When they looked into the bathroom, they discovered a scale with a white powdery substance.

They seized the scale and the white powdery substance. In the second bedroom, they found jewelry.They then went back to the hospital. There, they found the complainant fully dressed and ready to go home. The officers asked if she could go to the precinct with them. She went there and was asked to view a lineup. In the lineup was Camp and five other people. Camp was number 3. Officer Able asked her to look carefully at each of them. She looked at each and thought that it might be number 2 or 4. She was then told to look carefully at all of them and not to be so quick to eliminate anyone yet. She looked at them again and stated that she just wasn’t sure.

The officer then asked her look at the middle carefully. She looked at the three in the middle, Camp (number 3) and the persons holding 4 and 5. She stated that maybe 3 and 4 looked familiar, but she wasn’t sure. He then said: “look, I can’t tell you who it is, but it is definitely one of those three — look again.” She looked again and asked him: “I am just not sure — is it 3?” He told her that she got it right and they will take care of the rest. She was then shown the jewelry found in the car. She said that it belonged to her and jewelry taken from her without her permission. When they showed her jewelry from the bedroom, she stated that the watch was hers, but not the rest of the jewelry.

End of story

The Set-Up

People

v

Mike Delta and Alfred Camp

The Problem raises many issues.

They can be initially categorized two ways:

1. CRIMINAL LAW. What criminal offenses can each defendant be charged with?

2. CRIMINAL PROCEDURE. Were the defendant’s rights violated, and if so, what are the consequences?

CRIMINAL LAW

CRIMINAL LAW

1. What criminal offenses can each defendant be charged with? Most criminal offenses are found

in the Penal Law

CHARGING THE DEFENDANTS WITH CRIMINAL OFFENSES

“She told them that two men forced their way into her apartment where they beat her and robbed at gun point.”

• Forced entry into apartment• Beat her• Robbed• Used Gun

Wrongful Acts

CHARGING THE DEFENDANTS WITH CRIMINAL OFFENSES

“She told them that two men forced their way into her apartment where they beat her and robbed at gun point.”

• Burglary• Assault• Robbery• Criminal Possession of a

Weapon

CRIMINAL PROCEDURE

Were defendant’s rights violated; what are the

consequences?“Officer Able frisked Mike Delta and discovered that he was wearing an empty shoulder holster.... After handcuffing him, Able asked him where the gun was. Delta nodded in the direction of some empty cartons and responded, ‘the gun is over there.’ Able then went to the boxes and seized a loaded Glock 26 handgun.”

• Can the statement be used against him at trial?

• Was the gun properly seized?

CONSTITUTIONAL RIGHTS

• Can the statement be used against him at trial?Fifth AmendmentFourteenth Amendment (Due Process Clause)–Makes the Fifth Amendment applicable to the states

CONSTITUTIONAL RIGHTS

• Was the gun properly seized?Fourth Amendment

–“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….”

CONSTITUTIONAL RIGHTS

• Was the gun properly seized?Fourth AmendmentFourteenth Amendment (Due Process Clause)–Makes the Fourth Amendment applicable to the states

THE REST OF THE COURSE

1. The Problem2. Intro to Criminal Law and Procedure3. Criminal Law4. Criminal Procedure5. Motions to Dismiss6. Motions to Suppress7. And of course, Ethics

Criminal Law and Procedure for

Paralegals

The First Class

US CONSTITUTION The United States Constitution is the

supreme law of the land. The United States Supreme Court is the final

interpreter of the United States Constitution.

The Fourth, Fifth, Sixth and Eighth Amendments made applicable to the states through the due process clause of the Fourteenth Amendment); AND

United States Supreme Court’s interpretation of the applicable provisions.

Provide for minimum standards in protecting the rights recognized in the constitution.

However, the individual states may provide for a greater protection under their constitution (see Oregon v Hass, 420 US 714 [1975]).

NEW YORK CONSTITUTION The New York Constitution governs

in New York State and in criminal matters is the supreme law of New York.

New York Court of Appeals is the final interpreter of the New York Constitution Highest Court in New York

APPELLATE DIVISION The New York Supreme Court, Appellate

Division (“Appellate Division”) is the intermediate appellate court in New York The Appellate Term is also the

intermediate appellate court: it handles appeals from the Criminal Court of the City of New York.

The New York Supreme Court is the trial court of general jurisdiction.

Generally, it will handle the trial of all felonies.

SUPREME COURT

COMMENCEMENT OF CRIMINAL ACTION

Almost all criminal cases in New York City will start in the Criminal Court of the City of New York.

ETHICS

The role of the prosecutor is to seek justice, not to convict.

Who’s Who and

What’s What

Trial Courts

Supreme Court, Criminal Term NYC Criminal Court

Courts in Statutory Language

“Criminal Court” • Supreme Court; or • NYC Criminal Court

“Superior Court”• Supreme Court, Criminal Term

“Local Criminal Court”• NYC Criminal Court

NY Courts with Criminal JurisdictionCOURT OF APPEALS

APPELLATE DIVISIONAPPELLATE TERM

SUPREME COURT

NYC CRIMINAL COURT

APPEAL

APPEALFelony

Though Grand Jury Action

APPEAL

In the Courtroom

Judge Criminal Court Judge Supreme Court Justice

Prosecutor Defense Counsel

Primer on Criminal Statutes

There are three types of statutes:

① DEFINE TERMS:

② OFFENSES:

③ PROCEDURE:

(1) Define Terms

EXAMPLE: A person is guilty of criminal sale of a controlled substance in the fifth degree when he or she “knowingly and unlawfully sells a controlled substance” (Penal Law § 221.31).

When you look at that statute, you see several terms that need to be defined.

Define TermsA person is guilty of criminal sale of a

controlled substance in the fifth degree when he or she “knowingly and unlawfully sells a controlled substance” (Penal Law § 221.31).

To be defined: knowingly unlawfully sells controlled substance

Define Terms

To be defined: Knowingly (Penal Law § 15.05 [2]) Unlawfully (Penal Law § 220.00

[2]) Sells (Penal Law § 220.00 [1]) Controlled Substance (Penal Law §

220.00 [5]; Public Health Law § 3306)

How to Define Terms

Whenever you come across a statute that uses terms, always look for a statute that defines that term.

You will find the statute either: IN THE BEGINNING OF THE

ARTICLE (e.g., Penal Law § 220.00); or

IN A DEFINITION ARTICLE (e.g., CPL 1.20 or Penal Law § 10.00).

DEFINITIONS AT BEGINNING OF ARTICLE

Deal with specific criminal offenses Usually only apply to that article of

the Penal Law.

DEFINITIONS AT BEGINNING OF ARTICLE

For example: Article 130 [Sex Offenses], Article 140 [Criminal Trespass and

Burglary], Article 155 [Larceny], Article 220 [Controlled

Substances], Article 265 [Firearm and

Weapons]).

Terms at the Beginning of Penal Law

Definitions found in Penal Law § 10.00 generally apply to the entire Penal Law. For example:

Felony Misdemeanor Physical Injury

Terms at the Beginning of CPL

Definitions in CPL 1.20 generally apply to the entire Criminal Procedure Law.

Criminal action Criminal proceeding Accusatory instrument Warrant of arrest

Definitions In Cases After you find the definitions in the

statutes, of course you have to look for case law.

PENAL LAW § 120.00: Assault in the third degree requires a physical injury

PENAL LAW § 10.09: Physical injury requires an impairment of physical condition or substantial pain.

SUBSTANTIAL PAIN? Need to find case law to define it.

(2) Establish a Criminal Offense

The second type of criminal statutes are ones that establish and define a criminal offense.

These statutes are found in Part Three of the Penal Law; and Various statutes outside of the

Penal Law (e.g., driving while intoxicated is found in the Vehicle and Traffic Law).

EXAMPLE OF A CRIMINAL OFFENSE

Assault in the third degree (Penal Law § 120.00)

A person is guilty of assault in the third degree when:

1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or

2. He recklessly causes physical injury to another person; or

3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument.

Assault in the third degree is a class A misdemeanor.

PARTS OF A CRIMINAL OFFENSE

1. The title

2. The introduction sentence

3. The definition; and

4. The level of the offense.

PARTS OF A CRIMINAL OFFENSE

Title Assault in the third degree (Penal Law § 120.00)

Introduction

A person is guilty of assault in the third degree when:

Definition With intent to cause physical injury to another person, he causes such injury to such person or to a third person

Level Assault in the third degree is a class A misdemeanor

(3) Establishes a ProcedureExample: Discovery; When Demand,

Refusal and Compliance Made (Criminal Procedure Law § 240.80) Demand for Discovery within 30

days People provide discovery within

15 days If there is a refusal to comply with

demand, defendant can seek a court order (motion to compel discovery)

Criminal Law Versus

Criminal Procedure

Criminal Law Terms

Offense (Penal Law § 10.00 [1]) Conduct for which a sentence to a term of

imprisonment or to a fine is provided by law.

Wrongful act where the penalty is either prison or fine

Crime (Penal Law § 10.00 [6]) Misdemeanor; or Felony.

Felony (Penal Law § 10.00 [5]) An offense for which a sentence to a term

of imprisonment can be over one year.Misdemeanor (Penal Law § 10.00

[4]) An offense for which a sentence to a term

of imprisonment over 15 and up to one year can be imposed.

Not a traffic infractionPetty Offense (CPL 1.20 [39]) A violation; or A traffic infraction.

Traffic infraction (Penal Law § 10.00 [2])

Any offense in the Vehicle and Traffic Law (Vehicle and Traffic Law § 155).

Not a felony or misdemeanor

Violation (Penal Law § 10.00 [3]) An offense, other than a “traffic

infraction,” Sentence can be a term of imprisonment

up to fifteen days.

Class A-I Felony Examples Murder in the First Degree Murder in the Second Degree Criminal Sale of a Controlled Substance in

the First Degree Kidnapping in the First Degree

Class A-II Felony Examples Criminal Sale of a Controlled Substance in

the Second Degree Criminal Possession of a Controlled

Substance in the Second Degree

Class B Felony Examples Rape in the First Degree Assault in the First Degree Manslaughter in the First Degree Criminal Possession of Stolen Property in

the First DegreeClass C Felony Examples Criminal Possession of Stolen Property in

the Second Degree Criminal Sale of a Controlled Substance in

the Fourth Degree Grand Larceny in the Second Degree Criminal Possession of a Weapon in the

Second Degree

Class D Felony Examples Burglary in the Third Degree Grand Larceny in the Third Degree Rape in the Second Degree

Class E Felony Examples Criminal Sale of Marihuana in the Third

Degree Bigamy Arson in the Fourth Degree

Class A Misdemeanor Examples Assault in the Third Degree Criminal Possession of Stolen Property in

the Fifth Degree Criminal Possession of a Controlled

Substance in the Seventh Degree Sexual MisconductClass B Misdemeanor Examples

Conspiracy in the Sixth Degree Sale of Fireworks Public Lewdness Criminal Sale of Marihuana in the Fifth

Degree

Unclassified Misdemeanor Examples

Driving While Intoxicated

Petty Offense Examples: Violation Disorderly Conduct Trespass in the Fourth Degree Unauthorized Recordings in a Movie

Theater Unlawful Possession of MarihuanaPetty Offense Examples: Traffic

Infraction Driving While Impaired

CRIMINAL LAW STATUTES

• Penal Law• Vehicle and Traffic Law• Labor Law• And other Titles (Chapters)

Criminal Law Statutes

Penal Law① Defines what is a criminal act

(i.e., criminal offense)② Defines the seriousness of that

offense and proscribes the penalty based on that seriousness

③ Provides defenses for those acts

1. Defines what is a criminal act (i.e., criminal offense)

Assault in the Third Degree (Penal Law § 120.00 (1)

With intent to cause physical injury, the defendant causes physical injury

2. Defines seriousness of offense & proscribes penalty based on seriousness

Assault in the Third Degree is a class A misdemeanor

Assault in the Second Degree is a class D violent felony

Assault in the First Degree is a class B violent felony

2. Defines seriousness of offense & proscribes penalty based on seriousness

Assault Degree Class

Sentence

MIN MAXThird Degree A

Misdemeanor

0 1

Second Degree

D Violent Felony

2 7

First Degree B Violent Felony

5 25

Sentencing Examples: Class A-I Felony

Crime Min MaxMurder in the First Degree

20 to Life 25 to Life

Murder in the Second Degree

15 to Life 25 to Life

Criminal Possession of a Controlled Substance in the First Degree

8 20Sentencing Examples: Class A-II

FelonyCrime Min MaxCriminal Possession of a Controlled Substance in the Second Degree

3 10

Sentencing Examples: Class B Felony

Crime Min MaxRape in the First Degree 5 25Criminal Possession of a Stolen Property in the First Degree

1 to 3 8 ⅓ to 25

Sentencing Examples: Class C Felony

Crime Min MaxCriminal Possession of a Stolen Property in the Second Degree

1 to 3 5 to 15

Sentencing Examples: Class D Felony

Crime Min MaxRape in the Second Degree

2 7

Burglary in the Third Degree

1 to 3 2 ⅓ to 7

Sentencing Examples: Class E Felony

Crime Min MaxBigamy 1 to 3 1 ⅓ to 4

Sentencing Examples: Misdemeanor and Violation

Level From 0 days to…

Class A Misdemeanor 1 year

Class B Misdemeanor 90 days

Violation 15 days

Defenses

Provide Defenses

Types of Defenses: Simple Affirmative Specific Common Law

Simple Defenses Burden of Proof

① Defendant has the initial burden② Then People have the burden to

disprove it beyond a reasonable doubt

Examples Justification Infancy

Simple Defense of Infancy

Depending on what defendant is charged with, defendant is under:

13 (charged with Murder in the Second Degree)

14 (charged with first degree Kidnapping; Assault; Manslaughter; Rape; Burglary; or Robbery)

16 (all other criminal offenses)

Simple Defense of Infancy

INITIAL BURDEN: At trial, defense counsel will raise

the defense by showing that the defendant is under a certain age through a witness (e.g., a birth certificate)

ULTIMATE BURDEN: People then must disprove it

beyond a reasonable doubt.

Affirmative Defenses

Burden of Proof

① Defendant has the burden to prove by a fair preponderance of the evidence

② People have no burden Examples

Entrapment Duress

Specific Defenses

Burden of Proof See specific statutory defense to

see burden Example:

Extreme Emotional Disturbance

Common Law Defenses

Burden of Proof① Defendant has the initial burden② Then People have the burden to

disprove it beyond a reasonable doubt

Examples Agency (in sale of CS, defendant

steered buyer and never touched the money or the drugs)

CRIMINAL PROCEDURE

Criminal Procedure Laws

Criminal Procedure Law Judiciary Law

Court Rules Rules of Professional Conduct Code of Judicial Conduct

NYCRR Administrative Rules of of the

courts

Constitutional Criminal Procedure Laws The United States Constitution The New York State Constitution Cases interpreting these constitutions

The United States Constitution Fourth Amendment Fifth Amendment Sixth Amendment Eighth Amendment Fourteenth Amendment

Constitutional Criminal Procedure

AMENDMENT

WHAT IT IS

Fourth Amendment

Search and Seizure

Fifth Amendment

e.g., Right against Self Incrimination

Sixth Amendment

e.g., Right to Counsel

Eighth Amendment

e.g., Cruel and Unusual Punishment

14th Amendment

Due Process Clause

Criminal Procedure

Terms

Criminal action (CPL 1.20 [16])① Commences with the filing of an

accusatory instrument against a defendant in a criminal court;

② Includes the filing of all further accusatory instruments directly derived from the initial one;

③ Includes all proceedings, orders and motions conducted or made by a criminal court in the course of disposing of this accusatory instrument;

④ Terminates with the imposition of sentence or some other final disposition in a criminal court of the last accusatory instrument filed in the case.

Criminal proceeding (CPL 1.20 [18])

Any proceeding which a) constitutes a part of a criminal

action or b) occurs in a criminal court c) Related to a prospective, pending

or completed criminal action, either of this state or of any other jurisdiction, or involves a criminal investigation.

Commencement of criminal action (CPL 1.20 [17])

A criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court, and,

if more than one accusatory instrument is filed in the course of the action, it commences when the first of such instruments is filed.

Arraignment (CPL 1.20 [9])A proceeding where:

① there is an accusatory instrument filed;② the defendant on that accusatory

instrument appears for the first time appears before the court;

③ court acquires and exercises control over defendant with respect to such accusatory instrument

④ sets the course of further proceedings in the action.

Process

Commencement Filing of Accusatory Instrument by the prosecutor

ArraignmentArraignment before a judge

Notify the defendant of The charges against the defendant The rights of the defendant

Pre-Trial Stage① Obtain Trial Jurisdiction② Disclosure

Bill of Particulars Discovery

③ Pre-Trial MotionsTrial Stage

Motion in-limine Trial Sentencing Post Judgment motions

Appeal

Appeal to Intermediate Appellate Court

Appellate Term Appellate Division

Court of Appeals