“Outside Influence Upon the Jury” Argument Rejected—“Weight of the Evidence” Review Required New Trial [Editor’s Note—There Appears [to Me] to Be No Difference Between What Can Be Reviewed Under the “Weight of the Evidence” Criteria, Which Need Not Be Preserved by a Motion to Dismiss, and What Can Be Reviewed Under the “Legally Sufficient Evidence” Criteria, Which Must Be Preserved by a Specific Motion to Dismiss]

The Second Department, in applying its “weight of the evidence review,” determined that the counts of the indictment stemming from an alleged burglary or attempted burglary were not supported by evidence the defendant entered the victim’s house illegally. Therefore those counts were dismissed. The court explained how a “weight of the evidence” review is applied. [It seems to this writer that there no longer is a distinction between a “weight of the evidence” review, which need not be preserved by a motion to dismiss, and a “legally sufficient evidence” review, which must be preserved by a specific motion to dismiss.] The court also explained the criteria for determining whether there was undue outside influence on the jury (here alleged discussion of a newspaper article about the trial and defendant’s reputation as a troublemaker).  The “undue outside influence” argument was rejected. Concerning the “weight of the evidence” review, the court wrote:

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]…), we essentially sit as the “thirteenth juror” and “decide[ ] which facts were proven at trial” … . “[W]eight of the evidence review is not limited to issues of credibility” … . “Rather, in conducting its weight of the evidence review, a court must consider the elements of the crime, for even if the prosecution’s witnesses were credible their testimony must prove the elements of the crime beyond a reasonable doubt'” … .

Here, the People failed to prove beyond a reasonable doubt that the defendant committed burglary in the first degree and, concomitantly, failed to prove the defendant’s guilt of murder in the second degree (felony murder) under the first count of the indictment, which was predicated upon his commission or attempted commission of burglary. To prove the defendant’s guilt of burglary in the first degree, the People were required to prove, among other things, that the defendant “knowingly enter[ed] or remain[ed] unlawfully in a dwelling” (Penal Law § 140.30). “A person enters or remains unlawfully’ in or upon premises when he is not licensed or privileged to do so” (Penal Law § 140.00[5]). “In general, a person is licensed or privileged’ to enter private premises when he [or she] has obtained the consent of the owner or another whose relationship to the premises gives him [or her] the authority to issue such consent” … .

There was no evidence produced at trial as to how the defendant, who was acquainted with Jones, entered Jones’ house. An investigating police detective testified that there was no evidence of forced entry into the house, and neither of two statements the defendant gave to the police, admitting that he was in Jones’ house when Jones was killed, indicate that he entered the premises unlawfully. Under these circumstances, since the People failed to introduce any evidence as to how the defendant gained entry to Jones’ house, they failed to prove that the defendant entered the house unlawfully. People v Marsden, 2015 NY Slip Op 06260, 2nd Dept 7-22-15