Mbe Ny Crim Pro

Front 1

NY PC determination

Back 1

Application for a search warrant must demonstrate BOTH
- VERACITY (reliability of the source), AND
- BASIS of the snitch’s knowledge

Front 2

NY Defective warrants

Back 2

REJECTS the “good faith” reliance doctrine

Front 3

NY Auto passenger standing

Back 3

Can challenge the POSSESSION of weapons, if POSSESSION is attributed to them

Front 4

8 Exceptions to the warrant req't

Back 4

#1 Exigent circumstances
#2 Search incident to arrest
#3 Consent (voluntary + intelligent)
#4 Automobile (PC that contraband/evidence will be found, can search trunk)
#5 Plain view (Lawful access to Place + lawful access to ITEM + IMMEDIATELY APPARENT)
#6 Inventory searches
#7 Special needs
#8 Terry stop & frisks

Front 5

Search incident to arrest

Back 5

- Arrest must be lawful
- Search must be contemporaneous in time & place w/ arrest
- Geographic scope: Body, clothing, pockets, any containers/effects w/in wingspan
-- NY: To search CONTAINERS w/in the wingspan, 50 must suspect arrestee is ARMED
- Auto SitA
-- Scope: Interior cabin, closed containers, but NOT trunk
-- Location of suspect: Can search interior PROVIDED there was reason to believe that the car may contain evidence relating to the offense for which the arrest was made
--- NY: Once occupant is out of the car, 50 CANNOT search closed containers or bags in the car

Front 6

Terry stops

Back 6

Brief detention or seizure for the purpose of investigating conduct
- RS: Specific & articulable facts that inform 50’s belief that criminal activity is afoot

Front 7

Terry frisks

Back 7

Pat-down of the body & outer clothing for weapons
- RS: Specific & articulable facts that suggest a suspect is armed & dangerous
What can be seized:
- Federal: ALWAYS weapon; contraband must be IMMEDIATELY APPARENT (w/o manipulating the object, e.g., crack pipe)
- NY: Item ONLY if it feels like a weapon

Front 8

Seizure (pursuit by 50)

Back 8

MS: Seized ONLY IF (either or)
- She submits to 50’s authority by stopping
- 50 physically restrains her
NY: Police pursuit is a seizure in & of itself

Front 9

NY Indelible Right to Counsel

Back 9

- Provides GREATER protection than 6A
- ATTACHES not only at formal charging, but whenever there is significant judicial activity before the filing of an accusatory instrument, such that D may benefit from the presence of counsel
- If D is taken into custody for questioning on a charge AND 50 are aware that she is represented by counsel ON THAT CHARGE, they may not question her about that charge or any other matter w/o her attorney present
- If, however, the same D is released and is later taken into custody for questioning on an UNRELATED charge, the indelible right to counsel does not automatically attach to the subsequence charge
- If D is represented by counsel, waiver of the indelible right to counsel must take place in the attorney’s presence

Front 10

NY Pretrial-ID

Back 10

Right to have counsel present @ line-ups BEFORE filing formal charges IF
#1 50 aware that D have counsel, AND
#2 D request counsel be present

Front 11

NY Double Jeopardy

Back 11

“Transaction test” which requires that D be charged w/ all offenses arising from a single transaction, UNLESS (4 possibilities)
- Offenses have substantially different elements
- Each offense contains a single element not in the other and they vindicate different harms
- One is for criminal possession and the other, use
- Each offense involved harm to a different V

Front 12

Jeopardy attaches...

Back 12

- Jury trial: When jury is sworn
- Bench trial: When the 1st W is sworn
- Guilty pleas: When the Ct accepts D’s plea unconditionally

Front 13

Taking the 5th

Back 13

- Anyone can assert the privilege (including D, W, parties to a civil proceeding)
- It must be asserted @ the first opportunity or it is lost forever
- Privilege can be asserted in ANY PROCEEDING where an individual testifies under oath
-- NY: Privilege cannot be asserted in a grand jury proceeding
- Privilege applies only to COMPELLED TESTIMONY, and not in state’s use of D’s body/voice
- P CANNOT comment on the assertion of 5A privilege
- 3 ways to eliminate the privilege
-- P grant of “use & derivative use” (“use & fruits”) immunity, which means prosecution can’t use your testimony or any thing derived from it to convict you
--- You can be convicted based on evidence obtained PRIOR to grant of immunity
--- NY “transactional immunity” shields W from prosecution for ANY TRANSACTION they testified about in their immunized testimony
-- D taking the stand: By taking the stand, D waives the ability to take the 5A as to ANYTHING properly w/in the scope of CE
-- SoL: Privilege unavailable if SoL has run on the underlying crime b/c a W’s testimony could not expose her to criminal prosecution