probable cause hearing in New York

2018Counsel's failure to pursue a probable cause hearing or make a motion for a trial order of dismissal does not constitute ineffective assistance of counsel inasmuch as such motions had little or no chance of success ( see People v Galens , 111 AD3d 1322 , 1323 [4th Dept 2013], lv denied 22 NY3d 1088 [2014]; People v Murray , 7 AD3d 828, 830-831 [3d Dept 2004], lv denied 3 NY3d 679 [2004]; see generally People v Caban , 5 NY3d 143, 152 [2005]).

2014Viewed in totality, moreover, the record shows that the appellant received meaningful representation during the probable cause hearing, and there was no showing that any of counsel’s alleged deficiencies constituted anything other than a legitimate, albeit unsuccessful, strategy (see People v Caban, 5 NY3d 143, 152 [2005]; Matter of Dylan Mc. [Michelle M.

2024Moreover, contrary to the dissent's contention, probable cause can be found despite an officer's inability to identify the object that changed hands ( see People v Graham , 211 AD2d 55, 58 [1st Dept 1995] [finding that "(i)n a probable cause analysis, the emphasis should not be narrowly focused on a recognizable drug package or any other single factor, but on an evaluation of the totality of the circumstances"], lv denied 86 NY2d 795 [1995]; see also People v Jack , 22 AD3d 238, 238 [1st Dept 2005] [finding probable cause where a trained and experienced officer observed the defendant, in a kno

2024Moreover, contrary to the dissent's contention, probable cause can be found despite an officer's inability to identify the object that changed hands ( see People v Graham , 211 AD2d 55, 58 [1st Dept 1995] [finding that "(i)n a probable cause analysis, the emphasis should not be narrowly focused on a recognizable drug package or any other single factor, but on an evaluation of the totality of the circumstances"], lv denied 86 NY2d 795 [1995]; see also People v Jack , 22 AD3d 238, 238 [1st Dept 2005] [finding probable cause where a trained and experienced officer observed the defendant, in a kno

2020Respondent's contention regarding the sufficiency of the evidence presented at the probable cause hearing is not properly before us because no appeal lies from the order finding probable cause ( see Matter of State of New York v Stein , 85 AD3d 1646, 1648 [4th Dept 2011], affd 20 NY3d 99 [2012], cert denied 568 US 1216 [2013]).

2011“Respondent’s contention regarding the order issued following the probable cause hearing is not properly before us because no appeal lies from such an order” (Matter of State of New York v Stein, 85 AD3d 1646, 1648 [2011]; see Mental Hygiene Law § 10.13 [b]).

2011It is well settled that “a showing that [defense] counsel failed to make a particular pretrial motion generally does not, by itself, establish ineffective assistance of counsel” (People v Rivera, 71 NY2d 705, 709 [1988]; see also People v Webster, 56 AD3d 1242 [2008], lv denied 11 NY3d 931 [2009]).

2008We further conclude that defendant failed “to demonstrate the absence of strategic or other legitimate explanations” for defense counsel’s failure to request a probable cause hearing (People v Rivera, 71 NY2d 705, 709 [1988]), and the failure of defense counsel to request an accomplice charge with respect to defendant’s sister (see People v Caban, 5 NY3d 143, 152 [2005]; People v Thomas, 33 AD3d 1053, 1055 [2006], lv denied 8 NY3d 885 [2007]).

1995Likewise, in the context of a suppression hearing when a defendant asserts an arrest was made without probable cause, the court must determine if there was probable cause for the defendant’s arrest. 3 The Court of Appeals has pointed out that when the subject of a suppression hearing is evidence which is the product of a warrantless arrest or seizure, "the suppression court’s probable cause analysis is essentially 'the same as that used by a magistrate in passing on an application for an arrest or search warrant’ ” (People v Parris, 83 NY2d 342, 346 , citing People v Dodt, 61 NY2d 408, 415 ).

1995It has been observed that "when the subject of the suppression hearing is evidence which was the product of a warrant-less arrest or seizure, the suppression court’s probable cause analysis is essentially 'the same as that used by a magistrate in passing on an application for an arrest or search warrant’ (People v Dodt, 61 NY2d 408, 415 [citations omitted]; see also, People v Petralia, 62 NY2d [47,] 52 [, cert denied 469 US 852 ], supra)” (People v Parris, supra, at 346).

2017Contrary to defendant’s contention, the People established that there was reasonable suspicion to believe that defendant “was involved in a felony or misdemeanor,” thus justifying his forcible stop and detention (People v Hollman, 79 NY2d 181, 185 [1992]; see generally People v Cantor, 36 NY2d 106, 112-113 [1975]).

2017Contrary to defendant’s contention, the People established that there was reasonable suspicion to believe that defendant “was involved in a felony or misdemeanor,” thus justifying his forcible stop and detention (People v Hollman, 79 NY2d 181, 185 [1992]; see generally People v Cantor, 36 NY2d 106, 112-113 [1975]).

2017It is well settled that “[t]here can be no denial of effective assistance of trial counsel arising from counsel’s failure to ‘make a motion or argument that has little or no chance of success’ ” (People v Caban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]; see People v Simmons, 133 AD3d 1275 , 1278 [2015], lv denied 27 NY3d 1006 [2016]).

2017It is well settled that “[t]here can be no denial of effective assistance of trial counsel arising from counsel’s failure to ‘make a motion or argument that has little or no chance of success’ ” (People v Caban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]; see People v Simmons, 133 AD3d 1275 , 1278 [2015], lv denied 27 NY3d 1006 [2016]).

2015Under the circumstances, we conclude that defendant has abandoned his contention (see People v Britton, 113 AD3d 1101, 1102 [2014], lv denied 22 NY3d 1154 [2014]; see also People v Linder, 114 AD3d 1200, 1200-1201 [2014], lv denied 23 NY3d 1022 [2014]; People v Adams, 90 AD3d 1508, 1509 [2011], lv denied 18 NY3d 954 [2012]).

2015Under the circumstances, we conclude that defendant has abandoned his contention (see People v Britton, 113 AD3d 1101, 1102 [2014], lv denied 22 NY3d 1154 [2014]; see also People v Linder, 114 AD3d 1200, 1200-1201 [2014], lv denied 23 NY3d 1022 [2014]; People v Adams, 90 AD3d 1508, 1509 [2011], lv denied 18 NY3d 954 [2012]).

2014Defendant failed to preserve for our review his contention in his pro se supplemental brief that the police arrested him without probable cause inasmuch as “he failed to request a probable cause hearing or to raise that contention at the Huntley hearing” (People v Mobley, 49 AD3d 1343, 1344 [2008], lv denied 11 NY3d 791 [2008]; see People v Watson, 90 AD3d 1666, 1667 [2011], lv denied 19 NY3d 868 [2012]).

2014Defendant failed to preserve for our review his contention in his pro se supplemental brief that the police arrested him without probable cause inasmuch as “he failed to request a probable cause hearing or to raise that contention at the Huntley hearing” (People v Mobley, 49 AD3d 1343, 1344 [2008], lv denied 11 NY3d 791 [2008]; see People v Watson, 90 AD3d 1666, 1667 [2011], lv denied 19 NY3d 868 [2012]).

2014Defendant failed to preserve for our review his contention in his pro se supplemental brief that the police arrested him without probable cause inasmuch as “he failed to request a probable cause hearing or to raise that contention at the Huntley hearing” (People v Mobley, 49 AD3d 1343, 1344 [2008], lv denied 11 NY3d 791 [2008]; see People v Watson, 90 AD3d 1666, 1667 [2011], lv denied 19 NY3d 868 [2012]).

2014Defendant failed to preserve for our review his contention in his pro se supplemental brief that the police arrested him without probable cause inasmuch as “he failed to request a probable cause hearing or to raise that contention at the Huntley hearing” (People v Mobley, 49 AD3d 1343, 1344 [2008], lv denied 11 NY3d 791 [2008]; see People v Watson, 90 AD3d 1666, 1667 [2011], lv denied 19 NY3d 868 [2012]).

2011It is well settled that “a showing that [defense] counsel failed to make a particular pretrial motion generally does not, by itself, establish ineffective assistance of counsel” (People v Rivera, 71 NY2d 705, 709 ; see also People v Webster, 56 AD3d 1242 , lv denied 11 NY3d 931 ).

2011It is well settled that “a showing that [defense] counsel failed to make a particular pretrial motion generally does not, by itself, establish ineffective assistance of counsel” (People v Rivera, 71 NY2d 705, 709 [1988]; see also People v Webster, 56 AD3d 1242 [2008], lv denied 11 NY3d 931 [2009]).

2017Nonetheless, under all the circumstances present in this case, the appellant has failed to establish that he was denied the effective assistance of appellate counsel on the ground that his counsel did not challenge alleged defects in the probable cause hearing (see generally People v Stultz, 2 NY3d 277 [2004]).

2017It is well settled that “[t]here can be no denial of effective assistance of trial counsel arising from counsel’s failure to ‘make a motion or argument that has little or no chance of success’ ” (People v Caban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]; see People v Simmons, 133 AD3d 1275 , 1278 [2015], lv denied 27 NY3d 1006 [2016]).

2024Defendant has failed to demonstrate the absence of strategic or other legitimate explanations for defense counsel's brief questioning of prospective jurors during voir dire and his failure to challenge one prospective juror for cause ( see People v Weeks , 221 AD3d 1469 , 1470-1471 [4th Dept 2023], lv denied 41 NY3d 944 [2024]; see generally People v Thompson , 21 NY3d 555, 559-560 [2013]; People v Benevento , 91 NY2d 708, 712 [1998]).

2018Defense counsel's stipulation that the substance recovered by the police was cocaine was a matter of trial strategy inasmuch as defendant called a witness who testified that the cocaine belonged to him [*2]( see generally People v Benevento , 91 NY2d 708, 712 [1998]).

2017Contrary to defendant’s contention, the People established that there was reasonable suspicion to believe that defendant “was involved in a felony or misdemeanor,” thus justifying his forcible stop and detention (People v Hollman, 79 NY2d 181, 185 [1992]; see generally People v Cantor, 36 NY2d 106, 112-113 [1975]).

2017Contrary to defendant’s contention, the People established that there was reasonable suspicion to believe that defendant “was involved in a felony or misdemeanor,” thus justifying his forcible stop and detention (People v Hollman, 79 NY2d 181, 185 [1992]; see generally People v Cantor, 36 NY2d 106, 112-113 [1975]).

2015Under the circumstances, we conclude that defendant has abandoned his contention (see People v Britton, 113 AD3d 1101, 1102 [2014], lv denied 22 NY3d 1154 [2014]; see also People v Linder, 114 AD3d 1200, 1200-1201 [2014], lv denied 23 NY3d 1022 [2014]; People v Adams, 90 AD3d 1508, 1509 [2011], lv denied 18 NY3d 954 [2012]).

2015Under the circumstances, we conclude that defendant has abandoned his contention (see People v Britton, 113 AD3d 1101, 1102 [2014], lv denied 22 NY3d 1154 [2014]; see also People v Linder, 114 AD3d 1200, 1200-1201 [2014], lv denied 23 NY3d 1022 [2014]; People v Adams, 90 AD3d 1508, 1509 [2011], lv denied 18 NY3d 954 [2012]).

2015Under the circumstances, we conclude that defendant has abandoned his contention (see People v Britton, 113 AD3d 1101, 1102 [2014], lv denied 22 NY3d 1154 [2014]; see also People v Linder, 114 AD3d 1200, 1200-1201 [2014], lv denied 23 NY3d 1022 [2014]; People v Adams, 90 AD3d 1508, 1509 [2011], lv denied 18 NY3d 954 [2012]).

2015Under the circumstances, we conclude that defendant has abandoned his contention (see People v Britton, 113 AD3d 1101, 1102 [2014], lv denied 22 NY3d 1154 [2014]; see also People v Linder, 114 AD3d 1200, 1200-1201 [2014], lv denied 23 NY3d 1022 [2014]; People v Adams, 90 AD3d 1508, 1509 [2011], lv denied 18 NY3d 954 [2012]).

2014Defendant failed to preserve for our review his contention in his pro se supplemental brief that the police arrested him without probable cause inasmuch as “he failed to request a probable cause hearing or to raise that contention at the Huntley hearing” (People v Mobley, 49 AD3d 1343, 1344 [2008], lv denied 11 NY3d 791 [2008]; see People v Watson, 90 AD3d 1666, 1667 [2011], lv denied 19 NY3d 868 [2012]).

2014Defendant failed to preserve for our review his contention in his pro se supplemental brief that the police arrested him without probable cause inasmuch as “he failed to request a probable cause hearing or to raise that contention at the Huntley hearing” (People v Mobley, 49 AD3d 1343, 1344 [2008], lv denied 11 NY3d 791 [2008]; see People v Watson, 90 AD3d 1666, 1667 [2011], lv denied 19 NY3d 868 [2012]).

2013To the extent that defendant contends that he was denied effective assistance of counsel based upon defense counsel’s failure to make a more specific trial order of dismissal motion, request a probable cause hearing, or move to suppress his statements to the police and physical evidence found in the vehicle he was driving, his contention is without merit because he failed to demonstrate that the motions, if made, would have been successful (see People v Noguel, 93 AD3d 1319, 1320 [2012], lv denied 19 NY3d 965 [2012]).

2013To the extent that defendant contends that he was denied effective assistance of counsel based upon defense counsel’s failure to make a more specific trial order of dismissal motion, request a probable cause hearing, or move to suppress his statements to the police and physical evidence found in the vehicle he was driving, his contention is without merit because he failed to demonstrate that the motions, if made, would have been successful (see People v Noguel, 93 AD3d 1319, 1320 [2012], lv denied 19 NY3d 965 [2012]).

1989Thus, a search warrant issued on the appropriate probable cause standard (see, Camara v Municipal Ct., 387 US 523, 538-539 [1967]) presented to a neutral officer is needed to intrude on a private telephone (Katz v United States, 389 US 347 [1967]); private commercial premises not open to the public (See v City of Seattle, 387 US 541, 545 [1967]); a private, even if shared, office (Mancusi v DeForte, 392 US 364 [1968]); a motel room (People v Ali, 131 AD2d 857 [2d Dept 1987]); and a home (Camara v Municipal Ct., supra).

1989Thus, a search warrant issued on the appropriate probable cause standard (see, Camara v Municipal Ct., 387 US 523, 538-539 [1967]) presented to a neutral officer is needed to intrude on a private telephone (Katz v United States, 389 US 347 [1967]); private commercial premises not open to the public (See v City of Seattle, 387 US 541, 545 [1967]); a private, even if shared, office (Mancusi v DeForte, 392 US 364 [1968]); a motel room (People v Ali, 131 AD2d 857 [2d Dept 1987]); and a home (Camara v Municipal Ct., supra).

2008(See Terry v Ohio, 392 US 1 .) Thus, even though it is concluded that a person is seized, this does not mean that the law enforcement officer’s actions must be measured, in all instances, against the probable cause standard.” (People v Chestnut, 51 NY2d 14, 20 [1980].) “The touchstone of any analysis of a governmental invasion of a citizen’s person under the Fourth Amendment and the constitutional analogue of New York State is reasonableness.” (People v Batista, 88 NY2d 650, 653 [1996] [internal quotation marks omitted].) Any determination of reasonableness hinges upon the facts of each partic

2005The narrow exception carved out by the Supreme Court in Terry v Ohio ( 392 US 1 [1968]) to the probable cause requirement allows for a balancing test to be utilized to determine the propriety of a seizure based upon reasonable suspicion only because the intrusions involved fall far short of the intrusion involved with an arrest.

2001(Cf. Dunaway v New York, 442 US 200 [1979]; but see In re Nontestimonial Identification Order Directed to R.H., 171 Vt 227, 762 A2d 1239 [2000] [holding that Matter of Abe A. rests on an erroneous interpretation of Dunaway].) Arguably, where defendant is already incarcerated, the probable cause requirement should not apply, and indeed it does not in the case of violent felons subjected to blood draws for a state-wide or similar DNA data base, whether justified under a “special needs” criterion outside the criminal investigatory context (e.g., Roe v Marcotte, 193 F3d 73 , 78-82 [2d Cir 1999]),

1988A probable cause hearing pursuant to Dunaway v New York ( 442 US 200 [1979]) was conducted before a Judicial Hearing Officer who upon determining that there had been an illegal detention suppressed the results of a breath test and a statement made by defendant.

2011Consequently, this statutory right is more immediate by design than the 72-hour probable cause determination contemplated in Schall v Martin ( 467 US 253 [1984]), which is separately enacted in Family Court Act § 325.1 (2) (where a juvenile is detained following an initial appearance, a probable cause hearing must be held within three days). .

2009Further, since the appellant was not detained for more than three days pending a fact-finding hearing, the failure to accord him a separate probable cause hearing did not violate any statutory right (see Schall v Martin, 467 US 253, 270 [1984]; Family Ct Act § 325.1 [1]; Matter of Jeffrey V, 82 NY2d 121, 126 [1993]).

1999In New York, it is clear that as long as the two-pronged Aguilar-Spinelli test is satisfied by the People demonstrating (1) reliability, and (2) the basis of knowledge of the informant (see, Spinelli v United States, 393 US 410 ; Aguilar v Texas, 378 US 108 ), hearsay, even chains of hearsay, can satisfy the probable cause requirement (see, People v Parris, 83 NY2d 342 ; People v Mullins, 137 AD2d 227, 230 , lv denied 72 NY2d 922 ).

1995It has been observed that "when the subject of the suppression hearing is evidence which was the product of a warrant-less arrest or seizure, the suppression court’s probable cause analysis is essentially 'the same as that used by a magistrate in passing on an application for an arrest or search warrant’ (People v Dodt, 61 NY2d 408, 415 [citations omitted]; see also, People v Petralia, 62 NY2d [47,] 52 [, cert denied 469 US 852 ], supra)” (People v Parris, supra, at 346).

2025In addition, " 'an automobile stop is lawful so long as it is demonstrated that a traffic violation occurred, and it is not necessary that [the] defendant be charged with the specific violation established at a probable cause hearing' " ( People v Matos , 60 Misc 3d 130[A] , 2018 NY Slip Op 50994[U] , *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2018], quoting People v Gramajo , 49 Misc 3d 131[A] , 2015 NY Slip Op 51435[U] , *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; see People v Robinson , 97 NY2d 341 [2001]; People v Weishaupt , 118 AD3d 1100, 1102 [2014]; People v Ross , 106 AD3d 119

2025In addition, " 'an automobile stop is lawful so long as it is demonstrated that a traffic violation occurred, and it is not necessary that [the] defendant be charged with the specific violation established at a probable cause hearing' " ( People v Matos , 60 Misc 3d 130[A], 2018 NY Slip Op 50994[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2018], quoting People v Gramajo , 49 Misc 3d 131[A], 2015 NY Slip Op 51435[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; see People v Robinson , 97 NY2d 341 [2001]; People v Weishaupt , 118 AD3d 1100, 1102 [2014]; People v Ross , 106 AD3d 1194, 1

2021Leave to amend the petition was sought prior to a probable cause hearing, and the proposed amended petition contained sufficient "statements alleging facts of an evidentiary character tending to support the allegation that the [appellant] is a sex offender requiring civil management" (Mental Hygiene Law § 10.06[a]; see Matter of State of New York v Richard L. , 143 AD3d 519 ; Matter of State of New York v Armstrong , 119 AD3d 1431, 1432 ).

2021As the allegations in the amended petition were sufficient, the court also properly denied the appellant's motion to dismiss pursuant to CPLR 3211(a)(7) ( see Matter of State of New York v Richard L. , 143 AD3d 519 ; Matter of State of New York v Armstrong , 119 AD3d 1431, 1432 ).

2021Leave to amend the petition was sought prior to a probable cause hearing, and the proposed amended petition contained sufficient "statements alleging facts of an evidentiary character tending to support the allegation that the [appellant] is a sex offender requiring civil management" (Mental Hygiene Law § 10.06[a]; see Matter of State of New York v Richard L. , 143 AD3d 519 ; Matter of State of New York v Armstrong , 119 AD3d 1431, 1432 ).

2017Under *960 these circumstances, the petition was facially valid and not subject to dismissal prior to a probable cause hearing (see Matter of State of New York v Dennis K., 27 NY3d 718, 727 [2016]; Matter of State of New York v Richard L., 143 AD3d 519 [2016]).

2017As a threshold matter, we must decide whether coram nobis relief is available to a respondent who has appealed from a dispositional order in a Mental Hygiene Law article 10 proceeding, which proceeding is “of a civil rather than a criminal nature” (Matter of State of New York v Adrien S., 114 AD3d 862, 865 [2014]; see Matter of State of New York v Floyd Y., 22 NY3d 95, 103 [2013]; Matter of State of New York v Ted B., 132 AD3d 28, 38 [2015]).

2017Accordingly, given the statutory context, as well as its remedial purpose of protecting the public while providing treatment to those suffering from a mental abnormality ( see Mental Hygiene Law § 10.01; Matter of State of New York v Floyd Y., 22 NY3d 95, 104 ; see generally Matter of Mott v Division of Hous. & Community Renewal of State of N.Y., 140 AD2d at 9 ), we conclude that the failure to hold the probable cause hearing within 30 days is not a jurisdictional [*5]defect.