Opinion
11993 Ind. No. 2213/16 Case No. 2018-4000
10-08-2020
The PEOPLE of the State of New York, Respondent, v. Michael FLANDERS, Defendant–Appellant.
Janet E. Sabel, The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Katherine Kulkarni of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Katherine Kulkarni of counsel), for respondent.
Manzanet–Daniels, J.P., Gische, Gesmer, Singh, JJ.
Appeal from judgment, Supreme Court, New York County (Maxwell Wiley, J. at omnibus motion; Abraham Clott, J. at renewed motion, plea, and sentencing), rendered May 18, 2017, convicting defendant of criminal possession of a forged instrument in the third degree, and sentencing him to three years' probation, held in abeyance, and the matter remanded for a hearing in accordance with this decision.
We conclude that defendant is entitled to a hearing on the factual issue of whether or not the store security guards involved in his detention were licensed to exercise police powers, or acting as agents of the police. We find no meaningful distinction between the record here and the record that led the court in People v. Mendoza , 82 N.Y.2d 415, 425, 433–434, 604 N.Y.S.2d 922, 624 N.E.2d 1017 (1993) to grant the defendant such a hearing (see People v. Green, 33 A.D.3d 452, 822 N.Y.S.2d 441 [1st Dept. 2006] ). Contrary to the People's contention, at the time of his initial motion, defendant did not have access to any information that could have aided him in further investigation of the security guards' licensing status (compare e.g. People v. Robertson, 167 A.D.3d 451, 87 N.Y.S.3d 470 [1st Dept. 2018], lv denied 33 N.Y.3d 953, 100 N.Y.S.3d 157, 123 N.E.3d 816 [2019] ). Because the hearing should have been granted on the initial motion, we need not reach the propriety of the denial of the renewed motion. We note that the renewed motion has not resolved the factual issue of whether the security guards were state actors.