(5-2, Judges Wilson and Rivera dissenting)

Issue before the Court: (1) was the evidence of Mr. Britt’s “intent to defraud, deceive or injure another” under Penal Law § 170.30 legally sufficient where he had $300 in counterfeit bills rubber-banded in a separate pants pocket?  (2) could the police officer forcibly detain Mr. Britt, who was drinking something from a brown paper bag, then ran into a commercial attraction in Times Square when the officer approached?

 

Held: Yes and yes, over a scathing Judge Wilson dissent.  As to the legal sufficiency issue, the majority acknowledged that, under its own precedent (People v. Bailey, 13 N.Y.3d 67 [2009]), possession of counterfeit bills, doesn’t itself establish intent to defraud (i.e., to pass the bills).  However, the majority distinguished Bailey, where the defendant possessed a smaller amount of counterfeit currency ($30), and the bills weren’t segregated from the defendant’s genuine bills. A Secret Service agent had testified at Mr. Britt’s trial that people who pass counterfeit currency will separate their counterfeit currency from their genuine bills.  As to the forcible detention, the majority found sufficient evidence in the record to support the mixed-law-and-fact determination that defendant, by drinking from a concealed container and then fleeing, “had committed, or was committing, a crime.”  (The majority also rejected the defendant’s challenge to the testimony of the Secret Service agent, finding defense counsel’s one-word “Objection” during the testimony inadequate to preserve the issue that he was not qualified to give expert testimony.). 

 

Judge Wilson called out the majority on both issues.  For the majority to find the evidence of intent legally sufficient was “inexplicable” and overturned Bailey. In particular, that Mr. Britt had the counterfeit bills segregated was equally consistent with not intending to pass it at all. As such, that fact “had zero probative value as to intent” and therefore was not relevant evidence on which a trier of fact could rely.  

 

On the reasonable suspicion issue, Judge Wilson called this a “regression” to “policing based on stereotypes.” He criticized the legal basis for the seizure, correctly observing that drinking from an open container is a violation, not a crime. He also looked at the “larger context,” questioning how recent policies decriminalizing relatively minor offenses can be squared with chasing and forcibly detaining a man who was drinking from an open container, and then imprisoning him for years —  at taxpayer expense and causing harm to those who rely on him —  because he possessed $300 of counterfeit money. Judge Wilson’s dissent should be read in full, as it both excoriates this prosecution and humanizes Mr. Britt, something we rarely see from the courts, let alone the Court of Appeals. 

 

CAL Observes: Judge Wilson called out this racist and classist seizure and prosecution for what it was.  Advocates should use his dissent to support similar arguments, often the most apparent in search and seizure cases.  And humanizing our clients, even if not directly relevant to the legal issue, is important.  At least some judges may hear you.