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The People &C v. Carol Elmer

June 27, 2012

THE PEOPLE &C., APPELLANT,
v.
CAROL ELMER, RESPONDENT.
THE PEOPLE &C., RESPONDENT,
v.
KEVIN O. COOPER, APPELLANT.



The opinion of the court was delivered by: Jones, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

The common issue presented by these appeals is whether an appeal lies from an oral order issued by a criminal court on a pre-trial matter. In People v Elmer, the People appealed pursuant to CPL 450.20 (1) from an oral decision by the trial court that granted, in part, defendant's motion to dismiss the indictment on speedy trial grounds. In People v Cooper, defendant sought review pursuant to CPL 710.70 (2) of an oral order denying his motion to suppress evidence obtained in a search attendant to his arrest. In both cases, the Appellate Division ruled adversely to the appellants, finding that the failure to obtain a written order precluded appellate review. We conclude otherwise, holding that an appeal does lie from an oral order of a criminal court that finally disposes of the pre-trial matter at issue.

People v Carol Elmer

Defendant Carol Elmer was charged with 37 counts of overdriving, torturing and injuring an animal in violation of Agriculture and Markets Law § 353 for the alleged failure to properly care for horses within her custody. In a pre-trial motion, defendant moved to controvert the search warrant used to enter her premises and to suppress evidence. Although County Court ordered a suppression hearing, the matter was adjourned several times by the People due to the ostensible unavailability of a witness. Consequently, defendant moved to dismiss the indictment on statutory speedy trial grounds.

County Court granted the motion in part, dismissing the first 22 counts of the indictment. Recounting the procedural history of the matter, the court noted the dilatory efforts of the prosecution in procuring the witness, remarking that "the People, by not being ready for a hearing, delayed, actually made it impossible [for] the scheduling of a trial, holding of a trial, and by not being ready for a suppression hearing concerning a search warrant, they should be held with post-readiness delay because it prevented the trial from going forward." The court orally ordered that "[t]he first 22 counts are dismissed as defendant was denied her right to a speedy trial."

The Appellate Division dismissed the People's appeal and remitted the matter to County Court for the issuance of a written order, concluding that no appeal lies from the "County Court's oral ruling dismissing the first 22 counts of the indictment [as it] was never reduced to a writing and was never entered" (84 AD3d 1593, 1593 [3d Dept 2011]). A Judge of this Court granted the People leave to appeal (17 NY3d 903 [2011]).

People v Kevin Cooper

As a result of a vehicular stop, arrest and search that uncovered narcotics, defendant Kevin Cooper was charged with criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fourth degree, bribery in the third degree and certain traffic violations.

Acting on an anonymous tip that a van marked by a light-colored stripe and driven by an individual wearing red shorts was transporting narcotics, the police stopped defendant's vehicle -- which matched the description -- after observing that it lacked a rear license plate lamp and had made an unlawful right turn without the appropriate signal. When the police approached the vehicle, they observed defendant dressed in red shorts and upon further inspection, in plain view, officers observed a grocery bag "bulging with money" on defendant's person and "a little dime baggie with white residue" on the vehicle's console. As a result, defendant was arrested and an ensuing search recovered a small portion of cocaine secreted in defendant's right sock.

Following a suppression hearing to preclude the recovered evidence, County Court denied defendant's motion to suppress. That court remarked and orally decided that:

"Officer Masik had probable cause to stop the van initially for his observation of the vehicle and traffic violations of no tail lamp and failure to signal a turn and based upon the information that he received from the individual that matched the description. When Officer Masik observed the residue in the console of the car he had probable cause to ask the defendant out of the car and subsequently arrest him for possession of that residue . . . so the Court is going to deny the defendant's motion to suppress any evidence on the People's direct case. Your exception is noted for the record."

Ultimately, defendant pleaded guilty to criminal possession of a controlled substance in the third degree.

On appeal from his judgment of conviction, defendant sought review pursuant to CPL 710.70 (2) of the suppression court's denial of his motion to suppress. The Appellate Division, however, concluded that defendant forfeited his statutory right of review because he had entered a guilty plea prior to the transcription of the oral order (85 AD3d 1594, 1595 [4th Dept 2011]). In that court's view, section 710.70 (2) was inapplicable because it did not permit appellate review of an oral bench decision denying a suppression motion. In the alternative, that court also addressed the merits and concurred with the trial court's determination that ...


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