People v. Berg

86 Citing cases

  1. People v. Slavin

    1 N.Y.3d 392 (N.Y. 2004)   Cited 19 times
    Holding that the introduction of photographs of defendant's tattoos did not compel defendant to be a witness against himself because tattoos were physical characteristics, not forced testimony

    We conclude that defendant was not "compelled * * * to be a witness against himself" (US Const, 5th Am) within the meaning of the privilege. The tattoos were physical characteristics, not testimony forced from his mouth ( see Schmerber v. California, 384 U.S. 757, 764-65; People v. Berg, 92 N.Y.2d 701, 704). However much the tattoos may have reflected defendant's inner thoughts, the People did not compel him to create them in the first place ( compare United States v. Hubbell, 530 U.S. 27, 35-36).

  2. Romanac v. Town of Cheektowaga

    No. 17-CV-334S (W.D.N.Y. Feb. 5, 2021)   Cited 2 times

    Plaintiff asked why he was stopped, at 00:09:00 (Docket No. 26, Pl. Memo. at 5). Defendants argue that refusal to conduct a sobriety test is grounds for arrest (Docket No. 30, Defs. Reply Memo. at 6), People v. Berg, 92 N.Y.2d 701, 685 N.Y.S.2d 906 (1999). (Defendants point to Plaintiff's admission declining sobriety testing about fourteen minutes later (id.), at 00:21:26.)

  3. People v. Havrish

    2007 N.Y. Slip Op. 2787 (N.Y. 2007)   Cited 19 times   1 Legal Analyses
    Stating that had defendant not surrendered weapons pursuant to order of protection, "he could have been prosecuted for criminal contempt"

    County Court Judge Bartlett erred in reversing Town Justice Hait's order suppressing evidence and dismissing the accusatory instrument filed against appellant. ( United States v Hubbell, 530 US 27; People v Mitchell, 61 NY2d 580; People v Berg, 92 NY2d 701; Schmerber v California, 384 US 757; People v Slavin, 1 NY3d 392, 543 US 818; United States v Doe, 465 US 605; Baltimore City Dept. of Social Servs. v Bouknight, 493 US 549; United States v Wade, 388 US 218; Holt v United States, 218 US 245; Gilbert v California, 388 US 263.) II. Town Justice Hait correctly ruled that the evidence against appellant had been obtained in violation of his constitutional rights and dismissed the charge against him.

  4. People v. Higgins

    124 A.D.3d 929 (N.Y. App. Div. 2015)   Cited 28 times

    Thus, his statements during these three time periods and the corresponding portions of the video were properly suppressed. As to portions of the video in which defendant was not speaking, evidence obtained from a defendant following invocation of the right to counsel is subject to suppression where it constitutes "a communicative act that disclose[s] the contents of defendant's mind" ( People v. Gibson, 17 N.Y.3d 757, 759, 929 N.Y.S.2d 34, 952 N.E.2d 1026 [2011] [internal quotation marks and citation omitted]; see People v. Berg, 92 N.Y.2d 701, 704, 685 N.Y.S.2d 906, 708 N.E.2d 979 [1999] ). Generally, a defendant's physical characteristics and appearance are not considered to be communicative in nature (see Schmerber v. California, 384 U.S. 757, 763–764, 86 S.Ct. 1826, 16 L.Ed.2d 908 [1966] ; People v. Havrish, 8 N.Y.3d 389, 393, 834 N.Y.S.2d 681, 866 N.E.2d 1009 [2007], cert. denied 552 U.S. 886, 128 S.Ct. 207, 169 L.Ed.2d 145 [2007] ; People v. Berg, 92 N.Y.2d at 704, 685 N.Y.S.2d 906, 708 N.E.2d 979 ).

  5. People v. Bejasa

    205 Cal.App.4th 26 (Cal. Ct. App. 2012)

    In most of these cases, the courts have reasoned that counting or reciting the alphabet does not reveal a person's personal beliefs or knowledge. See People v. Berg (1999) 92 N.Y.2d 701, 685 N.Y.S.2d 906, 708 N.E.2d 979,State v. Devlin (1999) 294 Mont. 215, 980 P.2d 1037,Vanhouton v. Commonwealth (1997) 424 Mass. 327, 676 N.E.2d 460,State v. Superior Court (1987) 154 Ariz. 275, 742 P.2d 286,State v. Maze (1992) 16 Kan.App.2d 527, 825 P.2d 1169,State v. Zummach (N.D.1991) 467 N.W.2d 745,People v. Bugbee (1990) 201 Ill.App.3d 952, 147 Ill.Dec. 381, 559 N.E.2d 554, and Gassaway v. State (Tex.Crim.App.1997) 957 S.W.2d 48. Contra, Allred v. State (Fla.1993) 622 So.2d 984 and State v. Fish (1995) 321 Or. 48, 893 P.2d 1023. See People v. Berg, supra, 685 N.Y.S.2d 906, 708 N.E.2d 979,State v. Devlin, supra, 980 P.2d 1037,Vanhouton v. Commonwealth, supra, 676 N.E.2d 460,State v. Superior Court, supra, 742 P.2d 286,State v. Maze, supra, 825 P.2d 1169,State v. Zummach, supra, 467 N.W.2d 745, and People v. Bugbee, supra, 147 Ill.Dec. 381, 559 N.E.2d 554.

  6. People v. Bejasa

    205 Cal.App.4th 26 (Cal. Ct. App. 2012)   Cited 1 times

    In most of these cases, the courts have reasoned that counting or reciting the alphabet does not reveal a person's personal beliefs or knowledge.See People v. Berg (1999) 92 N.Y.2d 701, 685 N.Y.S.2d 906, 708 N.E.2d 979, State v. Devlin (1999) 294 Mont. 215, 980 P.2d 1037, Vanhouton v. Commonwealth (1997) 424 Mass. 327, 676 N.E.2d 460, State v. Superior Court (1987) 154 Ariz. 275, 742 P.2d 286, State v. Maze (1992) 16 Kan.App.2d 527, 825 P.2d 1169, State v. Zummach (N.D.1991) 467 N.W.2d 745, People v. Bugbee (1990) 201 Ill.App.3d 952, 147 Ill.Dec. 381, 559 N.E.2d 554, and Gassaway v. State (Tex.Crim.App.1997) 957 S.W.2d 48. Contra, Allred v. State (Fla.1993) 622 So.2d 984 and State v. Fish (1995) 321 Or. 48, 893 P.2d 1023. See People v. Berg, supra, 685 N.Y.S.2d 906, 708 N.E.2d 979, State v. Devlin, supra, 980 P.2d 1037, Vanhouton v. Commonwealth, supra, 676 N.E.2d 460, State v. Superior Court, supra, 742 P.2d 286, State v. Maze, supra, 825 P.2d 1169, State v. Zummach, supra, 467 N.W.2d 745, and People v. Bugbee, supra, 147 Ill.Dec. 381, 559 N.E.2d 554.

  7. State v. Mellett

    642 N.W.2d 779 (Minn. Ct. App. 2002)   Cited 55 times
    Holding that "Minn. Stat. § 169A.20, subd. 2 does not violate the United States or Minnesota constitutions" and that it "does not violate appellant's Fourth Amendment rights"

    Other states, on various grounds, allow into evidence a refusal to perform field sobriety tests. See People v. Berg, 708 N.E.2d 979, 982 (N.Y. 1999); Farmer v. Commonwealth, 404 S.E.2d 371, 373 (Va.Ct.App. 1991); City of Seattle v. Stalsbroten, 978 P.2d 1059, 1065 (Wash. 1999); State v. Mallick, 565 N.W.2d 245, 248 (Wis.Ct.App. 1997). It is useful to look at each of these cases.

  8. People v. Macleod

    93 N.Y.S.3d 627 (N.Y. City Ct. 2017)

    Defendant argues that the checkpoint policy did not allow a stop for turning into a parking lot or for parking violations. Defendant further argues that DeBour always applies, but was not properly followed, notwithstanding the holding in People v. Chaffee (183 Ad2d 208 [4th Dept, 1992] ), allowing the stop of motorists "who reasonably appear to be avoiding the checkpoint" ( id. at 211 ). Defense counsel acknowledges that a typical traffic stop is not a custodial detention for the purposes of Miranda , but argues that the foot pursuit and bringing Defendant to ground amounted to custody, rather than a permissible DWI investigatory detention to determine if a motorist is under the influence ( People v. Hasenflue , 252 AD2d 829 [3d Dept, 1998] ; People v. Berg , 92 NY2d 701 [1999] ). Defendant argues that the counting in the walk and turn and one-legged stand field sobriety tests and the alphabet field sobriety test are testimonial, and, therefore, constitute custodial interrogation under Pennsylvania v. Muniz (496 US 582 [1990] ). Finally, Defense counsel argues that Defendant's request for an attorney while in custody was denied, and "[the] field sobriety tests should have never been administered in the first place" (Defendant's Memorandum of Law, at 7). Sgt. Banfield testified that he helped set up the checkpoint on the night of March 17–18, 2017, an obviously cold and snow-covered night as depicted in the body cam footage.

  9. People v. Odum

    102 N.E.3d 1034 (N.Y. 2018)

    A motorist's right of refusal to take a chemical test is neither compelled nor constitutionally privileged, and the DMV's revocation policy is permissible as a condition of the license to drive. Accordingly, the evidence of that refusal is admissible under the general rule that all relevant evidence is admissible unless its admission violates some exclusionary rule (see People v. Scarola, 71 N.Y.2d 769, 777, 530 N.Y.S.2d 83, 525 N.E.2d 728 [1988] ; People v. Berg, 92 N.Y.2d 701, 706, 685 N.Y.S.2d 906, 708 N.E.2d 979 [1999] ["(I)f evidence is constitutionally permissible, the absence of authorization in a statute does not make it impermissible."]; Thomas, 46 N.Y.2d at 109, 412 N.Y.S.2d 845, 385 N.E.2d 584 ["(D)efendant had no constitutional privilege or statutory right to refuse to take the test; hence comment on his refusal represents no infringement of privilege or right."] ).

  10. People v. Odum

    102 N.E.3d 1034 (N.Y. 2018)

    A motorist's right of refusal to take a chemical test is neither compelled nor constitutionally privileged, and the DMV's revocation policy is permissible as a condition of the license to drive. Accordingly, the evidence of that refusal is admissible under the general rule that all relevant evidence is admissible unless its admission violates some exclusionary rule (see People v. Scarola, 71 N.Y.2d 769, 777, 530 N.Y.S.2d 83, 525 N.E.2d 728 [1988] ; People v. Berg, 92 N.Y.2d 701, 706, 685 N.Y.S.2d 906, 708 N.E.2d 979 [1999] ["(I)f evidence is constitutionally permissible, the absence of authorization in a statute does not make it impermissible."]; Thomas, 46 N.Y.2d at 109, 412 N.Y.S.2d 845, 385 N.E.2d 584 ["(D)efendant had no constitutional privilege or statutory right to refuse to take the test; hence comment on his refusal represents no infringement of privilege or right."] ).