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New trial granted in weapon case after phone call improperly admitted

Intercepted phone call should not had been admitted

A state appeals court has reversed a weapon conviction and granted a new trial because the defendant was deprived of a fair trial based on the admission of a jail phone call he made.

Defendant Vandyke Roberts was convicted in November 2019 in Schenectady County Court before Judge Matthew J. Sypniewski of second-degree criminal possession of a weapon.

After fleeing in his vehicle from police officers, Roberts was seen holding a handgun before he ran into a house. Roberts was subsequently arrested after a search of the house and a handgun was found.

Roberts was charged with second-degree criminal possession of a weapon and fourth-degree criminal possession of stolen property.

Before the trial, a defense motion to suppress the gun was denied. Roberts’ appellate lawyer argued that the search warrant was not valid because it provided an inaccurate address of the place to be searched.

The warrant authorized the search of 1013 Pleasant St., which was the address for the first-floor residence of a multi-family house. But the gun was found in the second-floor residence, which had an address of 1015 Pleasant St.

But the warrant application and the warrant noted that the specific residence to be searched was located on the second floor of the house.

Sypniewski ruled that “the warrant application and supporting documentation were sufficiently detailed to permit law enforcement to search the correct premises,” according to the decision released Thursday by the Appellate Division of state Supreme Court, Third Department.

The “hypertechnical accuracy and completeness of the description of the searched premises is not required,” and the suppression motion was correctly denied, the panel ruled.

The case started when Schenectady police officer approached Roberts’ car, which was parked in a handicapped spot without a proper permit, and asked him for identification.

After the officer checked the identification and returned to the vehicle, Roberts drove away.

The officer and his partner followed Roberts and eventually saw him stop and enter a house through the back entrance.

A contractor who was working nearby testified that he saw Roberts’ car pull up beside him and that Roberts “jumped out with a gun in his hand.”

The contractor also stated that he saw defendant “put the gun by his midsection” and then go into a house.

The appellate panel ruled that Roberts was deprived of a fair trial based upon the admission of a jail phone call in which Roberts said that he might as well “cop out to … the five years or whatever,” according to the decision.

“The People portrayed this evidence as relevant to show defendant’s consciousness of guilt,” the Third Department panel wrote.

“Even if relevant, evidence of consciousness of guilt is generally considered weak. That said, defendant’s statement that he contemplated taking a plea had little probative value but had a prejudicial effect on him,” the court wrote.

“We also agree with defendant’s argument that he was prejudiced by the prosecutor’s comment on summation that defendant, in the jail phone call, stated that he needed “to get a paid lawyer to see if he can get less time.”

“The prosecutor argued to the jury that this statement went to defendant’s consciousness of guilt. A prosecutor, however, cannot use a defendant’s invocation of his or her constitutional right to counsel against such defendant,” the panel wrote.

“It follows that any commentary to this effect is improper. Accordingly, defendant was prejudiced by the prosecutor’s summation,” the court wrote.

“Although defendant’s arguments on these points are unpreserved, under the circumstances of this case, we deem it necessary to exercise our interest of justice jurisdiction and reverse and order a new trial,” the court wrote.

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