Spelled Just As It Sounds: 2 gs, 2 zs, and 2 ts.

David Juergens, after taking a thirteen year hiatus from working on criminal appeals, obtained reversals of two convictions for a single client, one for burglary after a trial and the other for criminal possession of a weapon after a guilty plea (see, People v Williams,2010 NY Slip Op 09663 [Appeal number 1, 4th Dept 12/30/10] and People v Williams,2010 NY Slip Op 09663 [Appeal number 2, 4th Dept 12/30/10]).

The primary substantive issue on the appeal from the burglary conviction was whether the money seized from his pocket by a police officer should have been suppressed as the fruit of an unlawful arrest. First, the Court found that the police were justified in stopping defendant's vehicle for a speeding violation, and in thereafter asking defendant to produce his license and registration and to exit the vehicle. However, the three judge majority found that

The officers who conducted the traffic stop, however, "went beyond merely ordering defendant from his car. [They] took the additional protective measures' of frisking defendant, handcuffing him and placing him in a police car . . . [S]uch an intrusion amounts to an arrest[,] which must be supported by probable cause" (Johnson, 102 AD2d at 626; see People v Brnja, 50 NY2d 366, 372). At the time of the stop and arrest of defendant, "[n]o probable cause yet existed to arrest him on burglary charges for[,] although the police had reports of possibly suspicious behavior, they had no knowledge [that] a burglary had even been committed" (People v Randall, 85 AD2d 754, 754-755; cf. People v Hicks, 68 NY2d 234, 241). The officers were not at liberty to detain defendant while other officers attempted to determine whether a burglary had in fact been committed, i.e., "until evidence establishing probable cause could be found" (People v Battaglia, 82 AD2d 389, 396 [Hancock, J., dissenting], revd on dissent of Hancock, J. 56 NY2d 558; see People v Nicodemus, 247 AD2d 833, 836, lv denied 92 [*2]NY2d 858).
Because the arrest of defendant was illegal, the money seized from his pocket must be suppressed as flowing directly from the illegal arrest. Further, "[i]t cannot be said that the money found on defendant . . . [was] the product of a source independent of the defendant's detention or that the illegal activity was attenuated by a significant intervening event which justified the conclusion that [such] evidence was not the product of the illegal activity" (Battaglia, 82 AD2d at 397 [internal quotation marks omitted]).

A fourth Justice agreed with this holding, but disagreed with the majority's conclusion that the error in refusing to suppress the evidence was not harmless beyond a reasonable doubt. Presiding Justice Scudder would have held that this was a a legitimate stop pursuant to People v Hicks, 68 NY2d 234.

But this Fourth Amendment holding is not the real subject of this post. Rather, I am writing to highlight both the ground for the reversal of the weapons conviction and to implore trial court attorneys to learn an important lesson from this reversal.

The Appellate Division's reversal on the weapons conviction was because that plea was induced by the promise that the sentence would run concurrently with the sentence imposed upon the prior conviction in the Burglary case. As the Court explained

Because we are reversing that prior judgment of conviction, the judgment in appeal No. 1 must be reversed, the plea vacated and the matter remitted to Supreme Court for further proceedings on the indictment (see People v Fuggazzatto, 62 NY2d 862).

The Fuggazzatto rule is a simple one - if a defendant is convicted on one indictment and then enters a plea on a second indictment with a promise that he will receive concurrent time, a defendant who obtains reversal of the first conviction is also entitled to reversal of the second conviction. However, and this is the lesson for trial attorneys, in order for your client to obtain the benefit of the the holding in Fuggazzatto one must file notices of appeal from both convictions. There is no excuse or strategy that can justify the attorney filing the notice of appeal from the trial conviction and, absent a waiver of the right to appeal, failing to file the notice of appeal from the subsequent plea conviction.

Having been the appellate attorney in cases in which a winning issue was raised from the trial conviction, resulting in reversal, but in which the plea conviction remained solely due to the failure to file a notice of appeal, I can report that client's will not be very appreciative of such a reversal. Instead, they will want to know what can be done about the failure to file a notice of appeal. You don't want to be the attorney who failed to file the required second notice of appeal.