NY appeals court vacates convictions over Illegal frisk

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A state appeals court has reversed gun and drug convictions because of an illegal police search.

Defendant Robert Turner pleaded guilty in April 2023 before state Supreme Court Justice Betty Calvo-Torres, to second-degree criminal possession of a weapon, and fourth-degree criminal possession of a controlled substance.

In a decision released Friday, the Appellate Division of state Supreme Court, Fourth Department, unanimously reversed the conviction, vacated the plea, granted a defense motion to suppress physical evidence, and dismissed the indictment.

As part of a plea agreement, Turner waived his right to appeal, but the Fourth Department ruled that the waiver was invalid.

The justices noted their duty to review “all the relevant facts and circumstances surrounding the waiver,” and “address our concern that trial judges may encourage the use of appeal waivers in order to insulate their decisions from appellate review and thus avoid reversals,” the court wrote.

When a waiver of the defendant’s right to appeal is a condition of a court-initiated plea agreement that does not require the prosecutor’s consent, the waiver is invalid and unenforceable without a proper reason to demand the waiver.

According to testimony at the suppression hearing, two Buffalo Police Department officers responded to an anonymous 911 phone tip that an older Black man was knocking on the front door of a residence and arguing with a woman.

The anonymous caller also reported overhearing the woman say to the man: “Why would you pull out a gun?”

The officers saw Turner on the front porch of the home. One officer approached Turner and asked if he could “pat him down,” according to the decision.

The officer testified that Turner unequivocally responded “Yes” to the search request, but the officer’s body-worn camera (BWC) footage showed Turner responding to the officer’s request with the question: “For what?”

The officer frisked Turner anyway and found a handgun an narcotics, according to the decision.

After the hearing, Calvo-Torres denied suppression. She found that the lack of an audible recording on the BWC did not contradict or refute the officer’s testimony about Turner’s consent to a frisk.

Turner subsequently pleaded guilty to the indictment with the understanding that Calvo-Torres would impose the minimum sentence to run concurrently on both counts.

Turner’s attorney made a record of the fact that, although Turner requested to preserve his right to appeal the suppression ruling, the court would not accept that and required Turner to waive all suppression issues.

The consent of the prosecution to the plea agreement was not required because the original charges were not changed.

Calvo-Torres’s demand of an appeal waiver created the appearance that she was seeking to shield her decisions from appellate review or acting as an advocate for the prosecution, the court wrote.

“Upon our review of the record here, including defense counsel’s unrefuted assertion that the court unilaterally demanded an appeal waiver that would foreclose appellate review of its determination of defendant’s suppression motion as a condition of the court-initiated plea agreement, we conclude that it is not apparent that the court had a distinct and proper reason to demand that waiver of defendant’s right to appeal,” the court wrote.

“Therefore, the waiver of the right to appeal is invalid and does not preclude our review of defendant’s contentions,” the court ruled.

“We agree with defendant that the court erred in refusing to suppress physical evidence,” the court ruled.

The panel applied the police interaction guidelines established in People v. De Bour, a 1976 New York Court of Appeals decision.

De Bour defined four tiers of police-citizen encounters ranging from a simple request for information to level four, an arrest.

In Turner’s case, the prosecution acknowledged that the anonymous 911 phone tip generated only a belief that criminal activity was afoot, which limited the officers to a level two inquiry.

Therefore, the officers were entitled to interfere with (Turner) to the extent necessary to gain explanatory information, but short of a forcible seizure, the court wrote.

“We conclude that the court’s determination that defendant consented to the search is unsupported by the record in light of the BWC footage and discernible audio,” the panel wrote.

“We therefore reverse the judgment, vacate the plea, and grant that part of the omnibus motion seeking to suppress physical evidence. Additionally, because our conclusion results in the suppression of all evidence in support of the crimes charged, the indictment must be dismissed, and we remit the matter to Supreme Court,” the court ruled.

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