To be submitted

KA-09-01492

STATE OF NEW YORK

SUPREME COURT
APPELLATE DIVISION: FOURTH DEPARTMENT
PEOPLE OF THE STATE OF NEW YORK
Respondent,

-v-

BURNIE E. DANIELS,
Defendant-Appellant.

Indictment No. 08-042

APPELLANTS BRIEF

STEVEN J. GETMAN, ESQ.

Attorney for Defendant-Appellant
7185 Main Street
PO Box 449
Ovid, NY 14521
607.869.9646
February 27, 2010

CONTENTS
TABLE OF AUTHORITIES...ii
Casesii
Statutes and other authority....iv
PRELIMINARY STATEMENT.v
QUESTIONS PRESENTED.vii
STATEMENT OF FACTS..1
ARGUMENT.................................................................................................................................11
I.

The court erred in denying the motion to suppress evidence.................................11

A.
Defendants statement was involuntarily made..........................................11
B.
The search of the defendants car was involuntary
and the evidence illegally seized................................................................12

II.

The lower court erred in admitting evidence at trial

in violation of Penal Law 450.10........................................................................14

III.

The guilty verdicts were against the weight of the evidence................................ 17

A.
Possession of Burglars Tools....................................................................18
B.
Petit Larceny and Criminal Mischief.........................................................19

IV. The defendants sentence was illegal, harsh and/or excessive....................................20

A. The court lacked a proper basis to order restitution.........................................20
B. The court improperly considered charges for which
the defendant was acquitted when imposing its sentence...............................22

CONCLUSION24

TABLE OF AUTHORITIES
Cases
Beck v. Consolidated Rail Corp., 394 F.Supp.2d 632 (2005)........................................................22
Diamond v. Oreamuno, 24 N.Y.2d 494 (1969).............................................................................22
Foley v. D'Agostino, 21 A.D.2d 60 (1st Dept., 1964)....................................................................22
In re Hyman, 320 B.R. 493 (Bankr. S.D. N.Y. 2005),
aff'd, 335 B.R. 32 (S.D. N.Y. 2005),
aff'd on other grounds, 502 F.3d 61 (2d Cir. 2007),
petition for cert. filed, 76 U.S.L.W. 3410 (U.S. Jan. 17, 2008).....................................................22
Miranda v. Arizona, 384 U.S. 436 (1966).....................................................................................11
People v. Albro, 52 N.Y.2d 619 (1981).........................................................................................11
People v. Andrews, 13 A.D.3d 1143 (4th Dept., 2004).................................................................11
People v. Butts, 175 Misc. 2d 709 (1998)......................................................................................12
People v. Centano, 76 N.Y.2d 837 (1990).....................................................................................11
People v. Consalvo, 89 N.Y.2d 140 (1996)...................................................................................21
People v. Delgado, 80 N.Y.2d 780 (1992)....................................................................................20
People v. Durand, 63 A.D.3d 1533 (4th Dept., 2009)...................................................................23
People v. Gonzalez, 39 N.Y.2d 122 (1976)...................................................................................13
People v. Hardy, 223 A.D.2d 839 (3d Dept., 1996)......................................................................12
People v. Harris, 274 A.D.2d 837 (3d Dept., 2000),
lv. den. 95 N.Y.2d 935(2000)........................................................................................................13
People v. Helmus, 50 Misc. 2d 47 (1966)......................................................................................13
People v. Hobbs, 50 Misc. 2d 561 (1966)......................................................................................13
People v. Johnson, 160 A.D.2d 813 (2d Dept., 1990)...................................................................11

ii

People v. Marrow, 301 A.D.2d 673 (3d Dept., 2003)...................................................................11

People v. Mitchell, 106 A.D.2d 478 (2d Dept., 1984)...................................................................15
People v. Nova, 198 A.D.2d 193 (1st Dept., 1993).......................................................................11
People v. Overton, 134 A.D.2d 377(2 Dept., 1987),
app. den. 70 N.Y.2d 959................................................................................................................15
People v. Payne, 41 A.D.3d 512 (2d Dept., 2007),
lv. den. 10 N.Y.3d 814(2008)........................................................................................................11
People v. Pleasant, 76 A.D.2d 244 (1st Dept., 1980)
order aff'd, 54 N.Y.2d 972 (1981).................................................................................................13
People v. Ramos, 27 A.D.3d 1073 (4th Dept., 2006),
lv. dis. 6 N.Y.3d 897 (2006)..........................................................................................................11
People v. Reeder, 298 A.D.2d 468 (2d Dept., 2002),
lv den. 99 N.Y.2d 538 (2002)........................................................................................................23
People v. Rogers, 56 A.D.3d 1173 (4th Dept., 2008)....................................................................23
People v. Sanders, 169 Misc. 2d 813 (1996).................................................................................11
Winter v. Anderson, 242 A.D. 430 (4th Dept., 1934)....................................................................22

iii

Statutes and Other Authority

CPL 60.45...................................................................................................................................11
CPL 70.20...................................................................................................................................18
CPL 400.30.................................................................................................................................21
CPL 450.30 (1)............................................................................................................................20
CPL 470.15(6) (b).......................................................................................................................20
CPL 700.05.................................................................................................................................13
CPL 710.20(1).............................................................................................................................13
McKinneys Practice Commentary to Penal Law 140.35 (1999)...............................................18
N.Y. Const. Art. I, 1 to 18.........................................................................................................13
Penal Law 60.27(2).....................................................................................................................21
Penal Law 140.35........................................................................................................................18
Penal Law 450.10...................................................................................................................14,15
U.S. Const. Amend. I to X.............................................................................................................13

iv

PRELIMINARY STATEMENT
On June 26, 2008 the Grand Jury of Seneca County handed up an indictment charging
Burnie Daniels, the defendant-appellant herein, with the following: (a) two counts of Criminal
Mischief Third Degree, a Class E Felony, in violation of Penal Law 145.05; (b) two counts of
Petit Larceny, a Class A Misdemeanor, in violation of Penal Law 155.25; (c) Possession of
Burglars Tools, a Class A Misdemeanor in violation of Penal Law 140.35; and (d) Criminal
Possession of a Controlled Substance Seventh Degree, a Class A Misdemeanor in violation of
Penal Law 220.03 (A5-A8).
The defendant appeared with counsel on September 15, 2008 for arraignment and entered
a not guilty plea (09/15/08 Transcript at 2).
The matter came on for trial on May 11, 2009. The defendant waived a jury trial and
Hon. Dennis F. Bender, County Court Judge, heard the matter (A104).
At the commencement of the trial, the Count Six of the Indictment was dismissed
(05/11-15/09 Transcript at 6-7).
Prior to rendering its verdict, the court granted the defense application to dismiss Counts
One and Three of the Indictment (05/11-15/09 Transcript at 321).
In rendering a verdict on the remaining counts of the Indictment, the court found the
defendant guilty as follows: On Count Two, the court found the defendant not guilty of
Criminal Mischief Third Degree, but guilty of the lesser included offense of Criminal Mischief
Fourth Degree, a Class A Misdemeanor in violation of Penal Law 145.00(1); On Count
Four, the court found the defendant guilty as charged of Petit Larceny; On Count Five, the
court found the defendant guilty as charged of Possession of Burglars Tools (05/11-15/09
Transcript at 321-322).

On July 13, 2009, the court sentenced the defendant to one year on each conviction, to be
served concurrently. The defendant was also ordered to pay restitution, a mandatory surcharge
and a DNA database fee (07/13/09 Transcript).
By written notice, dated July 13, 2009, the defendant appealed (A2-A4).

vi

QUESTIONS PRESENTED
I.

Did the lower court err in denying the motion to suppress evidence?

II.

Did the lower court err in admitting evidence at trial

in violation of Penal Law 450.10?

III.

Were the guilty verdicts were against the weight of the evidence?

IV.

Was the defendants sentence was illegal, harsh and/or excessive?

vii

STATEMENT OF FACTS
On April 19, 2008, at approximately 9:30 pm, in the Town of Seneca Falls, Seneca
County, New York, an off-duty police officer, Sgt. Dean Zettlemoyer, heard an alarm sound
from the Auto Wash car wash, located on Route 414. At the time, Sgt. Zettlemoyer was
working at the Holiday Inn next door. He saw a white van leaving the car wash. Sgt.
Zettlemoyer went to the car wash, observed that two of the coin boxes were missing, and called
911 (05/11-15/09 Transcript at 40-43).
Shortly thereafter, New York State Police Officer David Hearn stopped a white
construction van being driven by the appellant herein, Burnie Daniels, heading northbound on
Route 414 in the Town of Tyre, Seneca County. The basis for the stop was a radio report related
to the 911 call. (05/11-15/09 Transcript at 61-63).
After Trooper Hearn stopped Mr. Daniels, Seneca County Sheriffs Deputy Timothy
Thompson arrived at the scene (05/11-15/09 Transcript at 70-71).
Deputy Thompson told Mr. Daniels to exit his vehicle. He told Mr. Daniels that he was
a suspect in a larceny at a car wash (05/11-15/09 Transcript at 70-71).

Mr. Daniels was

adamant that he had no involvement in the crime (02/23/09 Transcript at 31). However, Mr.
Daniels stated that he had turned around in the car washs parking lot (05/11-15/09 Transcript at
70-71).
Deputy Thompson used his flashlight to look inside the van, where he observed a red
plastic container holding what appeared to be a large number of quarters (05/11-15/09 Transcript
at 74-75).

By this time, at least three other law enforcement officers had arrived on the scene,
including Sgt. Zettlemoyer, who identified Mr. Daniels van as the same one he saw in the car
wash parking lot (05/11-15/09 Transcript at 76).
The police asked Mr. Daniels if he would consent to a search of his vehicle. He refused
to allow it (05/11-15/09 Transcript at 77).
He was then placed in the rear of Deputy Thompsons patrol car, ostensibly for safety
purposes (2/29/09 Transcript at 32) and for the purposes of investigative detention (2/29/09
Transcript at 44).

Once the car door was closed, Mr. Daniels had no ability to exit the car

(A100). The car was a standard patrol vehicle with a cage in the back and no door handles on
the rear doors (2/29/09 Transcript at 47-48). He was, according to Deputy Thompsons
testimony at the suppression hearing, not free to leave (2/29/09 Transcript at 44).
The police told Mr. Daniels that there was a strong possibility they could search his van
without his consent (02/29/09 Transcript at 34). They asked again if he would consent to a
search.

Mr. Daniels, still sitting in the patrol car, said yes, on the condition that he be permitted

to watch the search (05/11-15/09 Transcript at 78).

After Mr. Daniels consented, he was allowed to exit the police car (02/29/09 Transcript at
38).
During the search, police confiscated several items as evidence. They included a claw
hammer, a crowbar, some car wash tokens (from other car washes), the plastic tub of quarters,
and a glass smoking device (05/11-15/09 Transcript at 83, 86, 93, 97, 99, 100).
Numerous other tools were observed in the construction van, but not confiscated (05/1115/09 Transcript at 116, 130-131). They included saws, wood belts, buckets of nails and other
items (05/11-15/09 Transcript at 131). The police said they only confiscated the claw hammer

and crowbar because of their location in the construction van (05/11-15/09 Transcript at 130132) and because the police observed what they believed to be shiny spots on those items
(05/11-15/09 Transcript at 99-102)1.
Mr. Daniels was then placed under arrest. He was handcuffed and returned to the back of
the patrol car (02/29/09 Transcript at 41). He was later taken to the Seneca County Sheriffs
Department (02/29/09 Transcript at 42) where, approximately two and one-half hours after the
initial stop, he was first read his Miranda rights (02/29/09 Transcript at 92-93).
After Mr. Daniels was arrested, police searched Route 414 for the two missing coin
boxes. Deputies Douglas Dickenson and John Nesbit II found what they surmised to be one of
the two coin boxes that evening at approximately 11:00 pm (05/11-15/09 Transcript at 132). It
was located on the west side of the road (05/11-15/09 Transcript at 133), in a ditch in front of the
Seneca Meadows landfill (05/11-15/09 Transcript at 149), on the side of the road opposite from
that in which Mr. Daniels was traveling (05/11-15/09 Transcript at 154). The object was
photographed at the scene (05/11-15/09 Transcript at 264) and secured as evidence (05/11-15/09
Transcript at 133).
The next day, April 20, Deputy Nesbit, while off duty and with his wife (05/11-15/09
Transcript at 277), returned to the area near the landfill to search for the other coin box. At
approximately 4:00 pm, he found what he believed to be the object. He took the object home
and later turned it over to Deputy James Conkey (05/11-15/09 Transcript at 272-274).
Deputy Conkey took the object from Deputy Nesbit and threw it in the trunk of his
patrol car (05/11-15/09 Transcript at 257). It remained loose in his trunk until approximately

At trial, deputies testified there was nothing unusual about finding tools in a van such as Mr. Daniels (05/11/09
Transcript at 118, 155) and that Mr. Daniels worked in construction (05/11/09 Transcript at 131).

11:15 pm that evening, when he placed it in an evidence locker at the Seneca County Sheriffs
Department (05/11-15/09 Transcript at 257, 255, 252).
On or about April 23, 2008, while Mr. Daniels was incarcerated in the Seneca County
Jail, Deputy Nesbit served upon him a Property Release Notice, Section 450.10 Penal Law
(05/11-15/09 Transcript at 281-282). This document indicated that the police would be
returning the two metal coin boxes and the quarters to the rightful owners within fifteen days
(A23).
On June 26, 2008 the Grand Jury of Seneca County handed up an indictment charging
Mr. Daniels with the following: (a) two counts of Criminal Mischief Third Degree, a Class E
Felony, in violation of Penal Law 145.05; (b) two counts of Petit Larceny, a Class A
Misdemeanor, in violation of Penal Law 155.25; (c) Possession of Burglars Tools, a Class A
Misdemeanor in violation of Penal Law 140.35; and (d) Criminal Possession of a Controlled
Substance Seventh Degree, a Class A Misdemeanor in violation of Penal Law 220.03 (A5-A8).
Mr. Daniels appeared with counsel on September 15, 2008 for arraignment and entered a
not guilty plea (09/15/08 Transcript at 2).
On or about December 4, 2008, defense counsel served and filed a Demand for
Discovery and Demand for Bill of Particulars (A14-A19). The discovery demand included,
at Par. C: (i)Disclosure of any tangible property has been obtained by a search and seizure,
which tangible property will be offered in evidence at the trial of the charges against defendant;
(ii) Any police property voucher and police receipts for property containing a list of property that
the defendant either had in his/her possession when arrested/stopped and/or containing a list of
property that the police removed from the defendant upon arrest; (iii) Any other property
obtained from defendant or codefendant to be tried jointly. (Id.)

The prosecution submitted a response that incorporated by reference the Property

Release Notice, Section 450.10 Penal Law which Deputy Nesbit had previously served on Mr.
Daniels (A20-A28).
On or about January 14, 2009, the defendant served and filed pretrial motions (A29-A72).
One of the motions sought sanctions against the prosecution for returning the coin boxes prior to
the expiration of the applicable Penal Law 450.10 period (A37-A39).
In response to the motion for sanctions, the prosecution stated, the defendant was
properly served with written notice...that the property was available for discovery but would be
returned at the expiration of the time specified (A74).
Following review of the prosecutions response defense counsel sent a letter to the court
and prosecution, stating [i]f [the prosecutor] wishes to...affirm, as an officer of the court...that
the property in question was returned only after the expiration of the time limits given in said
Notice, I believe that would resolve the issue.... (A76).
Thereafter, during argument of the pretrial motions, the assistant district attorney said that
the evidence was returned to the alleged owner only after expiration of the statutory period
stating that [T]he coin boxes [and] the money...the defendant was served with a CPL Notice and
the property was returned after expiration of that time....the coin boxes and the coins that were
recovered (02/09/09 Transcript at 2-3).
On February 22, 2009, a suppression hearing was held regarding the statements allegedly
made by Mr. Daniels and the evidence seized when his van was stopped. The prosecution called
police officers Zettlemoyer, Hearn, Thompson, Dickinson and Nesbit to the stand (02/23/09
Transcript at 3-101). Following the hearing, the court denied the motion to suppress (A98A103).

The matter came on for trial on May 11, 2009. The defendant waived a jury trial and
Hon. Dennis F. Bender, County Court Judge, heard the matter (A104).
At the commencement of the trial, the prosecution moved to dismiss Count Six of the
Indictment, charging Criminal Possession of a Controlled Substance Seventh Degree, a Class A
Misdemeanor in violation of Penal Law 220.03. The defendant did not object and the charge
was dismissed (05/11-15/09 Transcript at 6-7).
During the trial, the prosecution produced the coin boxes that were had been the subject
of the Penal Law 450.10 notice and sought to move them into evidence (05/11-15/09
Transcript at 69, 140, 142-146, 275-278). They told the court that the boxes had, in fact, never
been returned to the alleged owner (05/11-15/09 Transcript at 143, 166).
The defense repeatedly objected to their admission. Defense counsel argued that he had
been led to believe that the items were no longer available for inspection and/or testing (05/1115/09 Transcript at 140-146, 160, 163-164, 278).
The prosecution, contradicting their prior statements that the property had been returned
(A74, 02/09/09 Transcript at 2-3), argued to the court that, because the bottom of the form was
not filled in (showing date of return to the owner) Mr. Daniels should have been on notice that
the people still had the property in their possession (05/11-15/09 Transcript at 165-166, 303).
Over defense objections, the court allowed the coin boxes into evidence (05/11-15/09
Transcript at 164-165, 177, 278).
During the trial, the prosecution called Andrew Wayne to the stand to testify as to the
ownership and value of the Auto Wash property that was allegedly damaged and/or stolen. Mr.
Wayne described himself on direct examination as the former managing partner of the
business (05/11-15/09 Transcript at 212).

However, on cross-examination he admitted that the Auto Wash was a corporation,

whose business affairs were managed by its President, Robert Marchenese, at an office in
Geneva, New York (05/11-15/09 Transcript at 233-234).

Mr. Wayne also stated he was an

employee and minority shareholder (less than five percent) of the corporation who was more
like a caretaker of the Auto Wash than a manager of the business affairs (Id.)
In order to give an estimate of the value of the repairs to the damaged property, Mr.
Wayne was required to read from an invoice to refresh his recollection. However, he later
conceded the invoice was, in some respects, inaccurate (05/11-15/09 Transcript at 222-224, 236237).

Mr. Wayne also said that the document was an estimate of the cost, prepared before the

work had been completed (05/11-15/09 Transcript at 232). According to Mr. Wayne, he quit
working for the corporation in August 2008 and, at that time, not all repairs had been completed
(05/11-15/09 Transcript at 240).
Furthermore, Mr. Wayne stated he had no way of knowing if any of the other employees
might have given Mr. Daniels permission to be on site or damage any Auto Wash property
(05/11-15/09 Transcript at 247). According to Mr. Wayne, there were approximately eight other
employees of the business at the time and two of them, Mr. Wayne and another, had the pass
code that would deactivate the building alarms (05/11-15/09 Transcript at 232, 242).
In addition, Mr. Wayne noted that the business had been foreclosed upon because Mr.
Marchenese had cross-collateralized the car wash with another business and was no longer in
operation at the time of the trial (05/11-15/09 Transcript at 234).
Mr. Wayne identified the two coin boxes as belonging to the Auto Wash (05/11-15/09
Transcript at 229-230). However, he never identified the quarters. In fact, when asked to state

how much money might have been in the coin boxes at the time of the incident, Mr. Wayne
stated he could only offer a guess (05/11-15/09 Transcript at 217-218).
No other officers or employees of the Auto Wash were called.
At the close of the prosecutions proof, defense counsel made motions to dismiss the
various remaining counts of the Indictment (05/11-15/09 Transcript at 289-295). The
prosecution opposed and the court reserved decision on the motion (05/11-15/09 Transcript at
295-297).
The defense called no witnesses and proofs were closed (05/11-15/09 Transcript at 301).
Following the close of proof, the defense renewed its trial order of dismissal (05/11-15/09
Transcript at 302). In addition, it requested, and the court agreed, to consider lesser included
offenses, to wit, Criminal Mischief Fourth Degree, on Counts One and Two of the
Indictment (05/11-15/09 Transcript at 301). Defense counsel also asked the court to take notice
of the issues related to the Penal Law 450.10 notice and consider adverse inferences in relation
to same (05/11-15/09 Transcript at 302-303).
During closing, the defense reiterated the arguments made in the trial motion to dismiss,
and raised other issues related to reasonable doubt (05/11-15/09 Transcript at 303-307). The
prosecution argued that had met its burden (05/11-15/09 Transcript at 307-318).
Prior to rendering its verdict, the court granted the defense application to dismiss Counts
One and Three of the Indictment (05/11-15/09 Transcript at 321). In rendering a verdict on
the remaining counts of the Indictment, the court found Mr. Daniels guilty as follows: On Count
Two, the court found the defendant not guilty of Criminal Mischief Third Degree, but guilty of
the lesser included offense of Criminal Mischief Fourth Degree, a Class A Misdemeanor in
violation of Penal Law 145.00(1); On Count Four, the court found the defendant guilty as

charged of Petit Larceny; On Count Five, the court found the defendant guilty as charged of
Possession of Burglars Tools (05/11-15/09 Transcript at 321-322).
The court thereafter adjourned the matter for the preparation of a Pre-Sentence
Investigation (PSI) report and sentencing (Id.)
The PSI, once received, contained no recommendation or information whatsoever as to
restitution.
Despite this, at sentencing, the prosecution asked the court to impose one year on each
conviction and to impose $238.12 to Robert Marchenese, the owner of the former Auto Wash
business (07/13/09 Transcript at 4).
Mr. Daniels attorney objected to the restitution. He noted that there was no indication in
the probation report that the victim sought restitution and that there had been no finding of fact
at trial on what the amount of restitution was, and only what it was not (07/13/09 Transcript at
5). The defense also reminded that the court that the defendant had not been convicted of the
felonies, only the misdemeanors (07/13/09 Transcript at 4-5).
Over defense objection, the court ordered restitution, stating the trial evidence supported
it (07/13/09 Transcript at 7).
In passing sentence, the county court referred to the circumstances of the crime of which
Mr. Daniels had been convicted and to his prior criminal record. However, the court also
observed:
[Y]ou were very lucky that the People indicted you as they did. Predicted upon
the evidence presented ...before the Grand Jury, the People could have asked that you be
indicted for one count of Criminal Mischief Third Degree regarding both units. This

court having been the trier of fact at trial, I can also say that predicated upon the
evidence that was presented you would have been found guilty of the felony
Therefore, the court sentenced Mr. Daniels to one year on each conviction, to be served
concurrently. He also directed Mr. Daniels to pay a mandatory surcharge and a DNA database
fee (07/13/09 Transcript at 6-8).
By written notice, dated July 13, 2009, the defendant appealed (A2-A4).

10

ARGUMENT
I.

The Court Erred In Denying The Motion To Suppress Evidence

A. Defendants statement was involuntarily made.

Evidence of a written or oral confession, admission, or other statement made by a

defendant with respect to his participation or lack of participation in the offense charged may not
be received in evidence against him in a criminal proceeding if the statement was involuntarily
made. CPL 60.45(1). A confession, admission or other statement is involuntarily made when
it is obtained from the defendant in violation of his or her federal or state constitutional rights.
CPL 60.45(2) (b).
One such violation is the failure to give Miranda warnings to a defendant prior to
questioning once he or she is in custody. Miranda v. Arizona, 384 U.S. 436 (1966); People v.
Ramos, 27 A.D.3d 1073 (4th Dept., 2006), lv. dis. 6 N.Y.3d 897 (2006); People v. Marrow, 301
A.D.2d 673 (3d Dept., 2003); People v. Sanders, 169 Misc. 2d 813 (1996).
The issue of whether a suspect is in custody is generally a question of fact. People v.
Centano, 76 N.Y.2d 837 (1990); People v. Albro, 52 N.Y.2d 619 (1981); People v. Nova, 198
A.D.2d 193 (1st Dept., 1993); People v. Johnson, 160 A.D.2d 813 (2d Dept., 1990). In deciding
whether a defendant was in custody prior to receiving his Miranda warnings, the test is what a
reasonable person, innocent of any crime, would have thought had he or she been in the
defendant's position. People v. Andrews, 13 A.D.3d 1143 (4th Dept., 2004).
Under Miranda, interrogation refers not only to express questioning but also to any words
or actions on the part of the police that they should know are reasonably likely to elicit an
incriminating response, or a response relating in some way to the matter for which the suspect
has been arrested. People v. Payne, 41 A.D.3d 512 (2d Dept., 2007), lv. den. 10 N.Y.3d

11

814(2008); People v. Hardy, 223 A.D.2d 839 (3d Dept., 1996); People v. Butts, 175 Misc. 2d
709 (1998).
In the case at hand, Officer Hearn stopped Mr. Daniels based on a radio report related to
the 911 call. (05/11-15/09 Transcript at 61-63). After Officer Hearn stopped Mr. Daniels,
Deputy Thompson arrived at the scene (05/11-15/09 Transcript at 70-71). Deputy Thompson
told the defendant to exit the vehicle. He advised Mr. Daniels that he was a suspect in a larceny
at a car wash. Mr. Daniels stated he had turned around in the car washs parking lot (05/1115/09 Transcript at 70-71) but was otherwise adamant that he had no involvement in the crime
(02/23/09 Transcript at 31).
It is respectfully submitted that a reasonable person, innocent of any crime, when
detained by two separate police officers, from two different agencies, each driving his own
separate vehicle, who is then ordered to his exit his vehicle and told he is a suspect in a crime,
would reasonably believe that he was in custody. Therefore, the police were required to give
him Miranda warnings before questioning him.
Instead, the police did not read Mr. Daniels his Miranda rights until nearly two and onehalf hours after the initial questioning (02/29/09 Transcript at 92-93).
The failure to do so rendered his statements involuntary. Accordingly, Mr. Daniels
statement to the officers that he had turned around in the car wash parking lot should have been
suppressed.
B. The search of the defendants car was involuntary
and the evidence illegally seized.

12

The state and federal constitutions guarantee to the people of New York various
fundamental rights, including the security of their persons and property against unreasonable
searches and seizures. U.S. Const. Amend. I to X; N.Y. Const. Art. I, 1 to 18. The State
Constitution and the Fourth Amendment to the Federal Constitution provide in identical
language that: The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but
upon probable cause, supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized. N.Y. Const. Art. I, 1 to 18.
Various safeguards have been established to insure the right against unreasonable
searches and seizures. These protections include the requirements for obtaining a search warrant,
CPL 700.05, and the restrictions on the admission of evidence secured in violation of this right.
CPL 710.20(1); People v. Pleasant, 76 A.D.2d 244 (1st Dept., 1980), order aff'd, 54 N.Y.2d
972 (1981); People v. Hobbs, 50 Misc. 2d 561 (1966); People v. Helmus, 50 Misc. 2d 47 (1966).
It is a true that a defendant may give his or her consent to a search. People v. Harris, 274
A.D.2d 837 (3d Dept., 2000), lv. den. 95 N.Y.2d 935(2000). However, where circumstances
objectively reveal overbearing official conduct in obtaining the apparent consent to search, that
consent is void and the search involuntary. People v. Gonzalez, 39 N.Y.2d 122 (1976).
In the case at hand, it is respectfully submitted the coins, tools and other objects
confiscated from Mr. Daniels van, and later admitted into evidence at his trial, were the products
of an illegal search and seizure.
After the Mr. Daniels was stopped by the police, Deputy Thompson used his flashlight to
look inside the van, where he observed a red plastic container holding what appeared to be a
large number of quarters (05/11-15/09 Transcript at 74-75).

13

At this point, at least three other law enforcement officers had arrived on the scene
(05/11-15/09 Transcript at 76). The police asked Mr. Daniels if he would consent to a search of
his vehicle. He refused to allow it (05/11-15/09 Transcript at 77).
He was then placed in the rear of Deputy Thompsons patrol car for an investigative
detention (2/29/09 Transcript at 44).

He had no ability to exit the vehicle (A100). It had a

cage in the back and no door handles on the rear doors (2/29/09 Transcript at 47-48). He was not
free to leave (2/29/09 Transcript at 44).
The police told Mr. Daniels that there was a strong possibility they could search his van
without his consent (02/29/09 Transcript at 34). They asked again if he would consent to a
search.

Mr. Daniels, still sitting in the patrol car, said yes, on the condition that he be permitted

to watch the search (05/11-15/09 Transcript at 78).

Only after Mr. Daniels consented, was he allowed to exit the police car (02/29/09
Transcript at 38).
It is respectfully submitted that Mr. Daniels consent was the product of overbearing
police conduct and, in effect, coerced. Therefore, the search of his vehicle, and the seizure of
evidence was improper and should have been suppressed.
II.

The Lower Court Erred In Admitting Evidence At Trial

In Violation Of Penal Law 450.10

Pursuant to Penal Law 450.10(1), when property, other than contraband including but
not limited to those items subject to the provisions of sections 410.00, 415.00, 420.00 and
420.05 of this chapter, alleged to have been stolen is in the custody of a police officer...or a
district attorney and a request for its release is made prior to or during the criminal
proceeding, it may not be released except after giving proper notice and time to inspect, test

14

and/or photograph same. Pursuant to People v. Mitchell, 106 A.D.2d 478 (2d Dept., 1984), strict
compliance with the statute is expected.
Further, under Penal Law 450.10(10), [w]here there has been a failure to comply with
the provisions of this section, and where the district attorney does not demonstrate to the
satisfaction of the court that such failure has not caused the defendant prejudice, the court
shall instruct the jury that it may consider such failure in determining the weight to be
given such evidence and may also impose any other sanction set forth in subdivision one of
section 240.70 of the criminal procedure law.

Pursuant to this section, it has been held that

physical evidence released in absence of notice to defendant should not be admitted where
defendant has been unduly prejudiced as a result of deprivation of his right to inspect the
evidence. People v. Overton, 134 A.D.2d 377(2 Dept., 1987), app. den. 70 N.Y.2d 959.
The case at hand presents a unique fact-pattern. In this case, the defendant was not
prejudiced by failure to give notice. He was prejudiced by the fact that the prosecution gave a
false notice. The people led the defendant to believe that the allegedly stolen property had been
returnedand repeatedly stated the property was not in its possession--when, in fact, it had
never been returned and would be introduced at trial.
On or about April 23, 2008, while Mr. Daniels was incarcerated in the Seneca County
Jail, Deputy Nesbit served upon him a Property Release Notice, 450.10 Penal Law (05/1115/09 Transcript at 281-282). This document indicated that the police would be returning the
two metal coin boxes and the quarters to the rightful owners within fifteen days (A23). These
items were the basis for the two petit larceny counts of the Indictment (A6-A7).
On or about December 4, 2008, defense counsel served and filed a Demand for
Discovery and Demand for Bill of Particulars (A14-A19). The discovery demand included,

15

at Par. C: (i)Disclosure of any tangible property has been obtained by a search and seizure,
which tangible property will be offered in evidence at the trial of the charges against defendant;
(ii) Any police property voucher and police receipts for property containing a list of property that
the defendant either had in his/her possession when arrested/stopped and/or containing a list of
property that the police removed from the defendant upon arrest; (iii) Any other property
obtained from defendant or codefendant to be tried jointly. (Id.)
The prosecution submitted a response that incorporated by reference the Property
Release Notice (A20-A28).
On or about January 14, 2009, the defendant served pretrial motions (A29-A72). One of
the motions sought sanctions against the prosecution for returning the coin boxes prior to the
expiration of the applicable Penal Law 450.10 period (A37-A39).
In response to the motion for sanctions, the prosecution stated, the defendant was
properly served with written notice...that the property was available for discovery but would be
returned at the expiration of the time specified (A74).
Following review of the prosecutions response defense counsel sent a letter to the court
and assistant district attorney, stating [i]f [the prosecutor] wishes to...affirm, as an officer of the
court...that the property in question was returned only after the expiration of the time limits given
said Notice, I believe that would resolve the issue.... (A76).
Thereafter, during argument of the pretrial motions, the prosecutor stated that the
evidence was, in fact, returned to the alleged owner only after expiration of the statutory period
arguing that [T]he coin boxes [and] the money...the defendant was served with...Notice and the
property was returned....the coin boxes and the coins that were recovered (02/09/09 Transcript
at 2-3).

16

However, during the trial, the prosecution produced the coin boxes that were had been the
subject of the Penal Law 450.10 Notice and sought to move them both into evidence (05/1115/09 Transcript at 69, 140, 142-146, 275-278). They told the court that the boxes had, in fact,
never been returned to the alleged owner (05/11-15/09 Transcript at 143, 166).
The defense repeatedly objected to their admission. Defense counsel argued that he had
been led to believe that the items were no longer available for inspection and/or testing (05/1115/09 Transcript at 140-146, 160, 163-164, 278).
The prosecution argued that, because the bottom of the form was not filled in (showing
date of return to the owner) the defendant should have been on notice that the people still had the
property in its possession (05/11-15/09 Transcript at 165-166, 303). This contradicted their prior
representations that the property had been returned (A74, 02/09/09 Transcript at 2-3).
Over defense objections, the court allowed the coin boxes into evidence (05/11-15/09
Transcript at 164-165, 177, 278).
Given the particular facts of this case, it is submitted that the sanction of preclusion was
the appropriate one. The prosecution did not simply release the property prematurely, but with
good faith. The people repeatedly told both the court and defense counsel that the property was
no longer in its possession. Then, at trial, it contradicted its own prior representations as officers
of the court and argued that the defense should have realized that law enforcement still possessed
the items.
Such behavior demonstrates, at best, incompetence and, at worst, bad faith. Therefore, the
lower court erred in admitting the property into evidence.
III. The Guilty Verdicts Were Against
the Weight of the Evidence

17

Pursuant to CPL 70.20, [n]o conviction of an offense by verdict is valid unless based
upon trial evidence which is legally sufficient and which establishes beyond a reasonable doubt
every element of such offense and the defendant's commission thereof.
A. Possession of Burglars Tools
Under Count Five, of the Indictment Mr. Daniels was charged with, and convicted of,
Possession of Burglars Tools, in violation of Penal Law 140.35.
As noted in Donnino, McKinneys Practice Commentary to Penal Law 140.35 (1999)
(citations omitted), [t]he key to whether a particular instrument is a burglars tool is...that the
instrument is possessed under circumstances evincing an intent to use or knowledge that some
person intends to use the same in the commission of one of the specified categories of crime...
and no presumption of intent may arise from mere possession of common tools.
In the case at hand, Mr. Daniels was convicted of possessing burglars tools because
police found a claw hammer and a crowbar in his vehicle.
However, numerous other tools were observed in his van, but not confiscated (05/1115/09 Transcript at 116, 130-131). These included saws, wood belts, buckets of nails and other
items (05/11-15/09 Transcript at 131). Furthermore, the police described Mr. Daniels van as a
construction van (05/11-15/09 Transcript at 62, 63). They testified that that Mr. Daniels
worked in construction (05/11-15/09 Transcript at 131) and that there was nothing unusual about
finding tools in a van such as his (05/11-15/09 Transcript at 118, 155).
Therefore, it is respectfully submitted that there was insufficient evidence of
circumstances establishing that the tools in question were possessed under circumstances
evincing an intent to use them in the commission of a crime. Accordingly, this count of the
Indictment should have been dismissed.

18

B. Petit Larceny and Criminal Mischief

As noted above, the prosecution repeatedly told both the court and defense counsel that
the allegedly stolen and/or damaged property was no longer in its possession when, in fact, it
was. For the reasons set forth above, the court was in error to admit this evidence.
Furthermore, following the close of proof, defense counsel also asked the court to take
notice of the issues related to the Penal Law 450.10 notice and consider adverse inferences in
relation to same (05/11-15/09 Transcript at 302-303). The court indicated it would give
appropriate weight.
In addition, in regard to ownership of the property, the prosecution called Andrew Wayne
to the stand to testify. Mr. Wayne described himself on direct examination as the former
managing partner of the business (05/11-15/09 Transcript at 212). However, on crossexamination he admitted that the Auto Wash was a corporation, whose business affairs were
managed by its President, Robert Marchenese, at an office in Geneva, New York (05/11-15/09
Transcript at 233-234).

Mr. Wayne also stated he was an employee and minority

shareholder (less than five percent) of the corporation who was more like a caretaker of the
Auto Wash than a manager of the business (Id.)
Furthermore, Mr. Wayne stated he had no way of knowing if any of the other employees
might have given Mr. Daniels permission to be on site or to take or damage any Auto Wash
property (05/11-15/09 Transcript at 247). According to Mr. Wayne, there were approximately
eight other employees of the business at the time and two of them, Mr. Wayne and another, had
the pass code that would deactivate the building alarms (05/11-15/09 Transcript at 232, 242).

19

In addition, Mr. Wayne noted that the business had been foreclosed upon because Mr.
Marchenese had cross-collateralized the car wash with another business and was no longer in
operation at the time of the trial (05/11-15/09 Transcript at 234).
Mr. Wayne identified the two coin boxes as belonging to the Auto Wash (05/11-15/09
Transcript at 229-230). However, he never identified the quarters. In fact, when asked to state
how much money might have been in the coin boxes at the time of the incident, Mr. Wayne
stated he could only offer a guess (05/11-15/09 Transcript at 217-218).
It is respectfully submitted that, given the above, the evidence should have been
considered insufficient to convict Mr. Daniels on these counts.
IV. The Defendants Sentence was Illegal, Harsh and/or Excessive
Pursuant to CPL 450.30 (1), an appeal by the defendant from a sentence may be based
upon the ground that such sentence either was (a) invalid as a matter of law, or (b) harsh or
excessive. Furthermore, an intermediate appellate court has the power to modify a sentence as
a matter of discretion, in the interests of justice. CPL 470.15(6) (b). This power may be
exercised without deference to the sentencing court. People v. Delgado, 80 N.Y.2d 780 (1992).
In the case at hand, the appellant asks this court to reverse and/or modify his sentence for
the reasons set forth below.
A. The Court Lacked a Proper Basis to Order Restitution
Whenever restitution or reparation is required, the court must make a finding as to the
dollar amounts of the fruits of the offense and the actual out-of-pocket loss to the victim caused
by the offense. In making this finding, the court must consider any victim impact statement
provided to the court. If the record does not contain sufficient evidence to support such a finding,

20

or upon request by the defendant, the court must conduct a hearing on the issue in accordance
with the Criminal Procedure Law. Penal Law 60.27(2); CPL 400.30.
Similarly, where a defendant's attorney urges before sentencing that the restitution
amount is not adequately supported by the record, the court may be required to grant a hearing
irrespective of the level of evidence in the record, and to provide the defendant with a reasonable
opportunity to contest the prosecution's evidence or supply evidence on his or her own behalf.
People v. Consalvo, 89 N.Y.2d 140 (1996).
In the case at hand, at sentencing, the prosecution asked the court to impose one year on
each conviction and to impose $238.12 to Robert Marchenese, the owner of the former Auto
Wash business (07/13/09 Transcript at 4).
Mr. Daniels attorney objected to the restitution. He noted that there was no indication in
the probation report that the victim sought restitution and that there had been no finding of fact
at trial on what the amount of restitution was, and only what it was not (07/13/09 Transcript at
5).
Over defense objection, the court ordered restitution, stating the trial evidence supported
it (07/13/09 Transcript at 7).
The courts ruling was in error for several reasons.
First, there was no evidence in the record that Mr. Marchenese was, in fact, the owner of
the Auto Wash. The testimony at trial was that the Auto Wash was a corporation and that Mr.
Marchenese was the President of the corporation (05/11-15/09 Transcript at 233-234). The
testimony further indicated that Mr. Marchenese was not the sole stockholder of the corporation,
insofar as one of the employees, Andrew Wayne, indicated that he was a minority shareholder
(Id.) In addition, Mr. Wayne testified at trial that the business had been foreclosed upon because

21

Mr. Marchenese had cross-collateralized the car wash with another business and it was no
longer in operation (05/11-15/09 Transcript at 234).
Generally, the law views corporations as entities endowed with a separate and distinct
existence from that of its owners and there is a presumption of separateness between a
corporation and its owners. This presumption is entitled to substantial weight. Beck v.
Consolidated Rail Corp., 394 F.Supp.2d 632 (2005). In addition, it has been held that a director
or an officer of a corporation will not be permitted to make a private profit out of his or her
official position. Foley v. D'Agostino, 21 A.D.2d 60 (1st Dept., 1964). Instead, he or she must
give to the corporation the benefit of any advantage that he or she has thereby obtained.
Diamond v. Oreamuno, 24 N.Y.2d 494 (1969); Winter v. Anderson, 242 A.D. 430 (4th Dept.,
1934). This rule, the courts have held, applies irrespective of the motive or good faith of the
director or officer. In re Hyman, 320 B.R. 493 (Bankr. S.D. N.Y. 2005), aff'd, 335 B.R. 32 (S.D.
N.Y. 2005), aff'd on other grounds, 502 F.3d 61 (2d Cir. 2007), petition for cert. filed, 76
U.S.L.W. 3410 (U.S. Jan. 17, 2008) (applying New York law).
Accordingly, there was no basis in the record for the court to assume that Mr.
Marchenese had any ownership interest that would allow him to receive restitution in this matter.
Furthermore, Mr. Wayne was the only employee, officer or representative of the Auto
Wash to testify as to the corporations damages.

His testimony as to loss was, at best,

speculative and based upon estimates and guesswork (05/11-15/09 Transcript at 217-218, 222224, 232, 236-237, 240).
Given the above, the courts order of restitution was in error.
B. The Court Improperly Considered Charges for Which
the Defendant was Acquitted when Imposing its Sentence

22

It is error for a court to consider counts of which the defendant was acquitted, when
imposing sentence on the remaining counts. People v. Durand, 63 A.D.3d 1533 (4th Dept.,
2009); People v. Rogers, 56 A.D.3d 1173 (4th Dept., 2008); People v. Reeder, 298 A.D.2d 468
(2d Dept., 2002), lv den. 99 N.Y.2d 538 (2002).
At the trial, the court granted the defense application to dismiss Counts One and
Three of the Indictment (05/11-15/09 Transcript at 321). In rendering a verdict on the
remaining counts of the Indictment, the court found Mr. Daniels guilty as follows: On Count
Two, the court found the defendant not guilty of Criminal Mischief Third Degree, but guilty of
the lesser included offense of Criminal Mischief Fourth Degree, a Class A Misdemeanor in
violation of Penal Law 145.00(1); On Count Four, the court found the defendant guilty as
charged of Petit Larceny; On Count Five, the court found the defendant guilty as charged of
Possession of Burglars Tools (05/11-15/09 Transcript at 321-322).
However, at sentencing, the court observed:
[Y]ou were very lucky that the People indicted you as they did. Predicted upon
the evidence presented ...before the Grand Jury, the People could have asked that you be
indicted for one count of Criminal Mischief Third Degree regarding both units. This
court having been the trier of fact at trial, I can also say that predicated upon the
evidence that was presented you would have been found guilty of the felony
The court then sentenced Mr. Daniels to one year on each conviction, to be served
concurrently (07/13/09 Transcript at 6-8).
The courts references to the felony charges were made after the defendants attorney
reminded the court that Mr. Daniels had not been convicted of the charged felonies, only the
misdemeanors (07/13/09 Transcript at 4-5).

23

Accordingly, it is respectfully submitted that the courts reference to the felonies was in
error.
CONCLUSION
Therefore, for all the reasons set forth above, it is respectfully submitted that the
judgement of conviction and sentence should be reversed and/or modified as set forth herein,
together with such other and further relief as to this court may be just and proper.
Dated: February 27, 2010
Respectfully submitted,

STEVEN J. GETMAN, ESQ.

Attorney for Defendant-Appellant
FRANKLIN & GABRIEL
7185 Main Street, PO Box 449
Ovid, NY 14521
607.869.9646

24