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THE DEFENDANT’S ACCOMPLICE TO MURDER CONVICTION RESTED ENTIRELY ON THE TESTIMONY OF A JAILHOUSE INFORMANT WHICH WAS AT ODDS WITH THE SURVEILLANCE VIDEO; THE TESTIMONY OF THE INFORMANT WAS REJECTED, RENDERING DEFENDANT’S CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s accomplice-to-murder conviction, determined the conviction was against the weight of the evidence. There was evidence the shooter came to and left the area where the shooting took place in a white sedan. Defendant owned a white sedan but it was not possible to tell whether the white sedan in the surveillance video was defendant’s. The People presented the testimony of a jailhouse informant who claimed defendant admitted dropping off and picking up the shooter. But the evidence given by the informant did not comport with the video surveillance of the white sedan and was therefore rejected by the Fourth Department:

… [W]e find that the version of events that the informant attributed to defendant is completely at odds with the video evidence establishing that the codefendant took an efficient, one-block circuitous route from the side street where the white sedan parked to the bar and then back to the sedan. The timing of events as established by the video evidence is too tight to permit any potential diversions or alternate routes to have been taken by the codefendant, much less the irrational choice of running along a busy thoroughfare several blocks away from the white sedan. Further, the informant’s testimony is too specific to permit the conclusion that any inconsistency between it and the video evidence is the innocuous result of an imprecise account. We therefore conclude that this is an appropriate case to substitute our own credibility determination for that made by the jury and find that the informant’s testimony is not credible ,,, . Absent the informant’s testimony, there is no evidence from which to reasonably infer that defendant shared the codefendant’s intent to cause the death of another person … or that defendant knew that the codefendant was armed at the time defendant transported him to the bar … . People v Ramos, 2023 NY Slip Op 03755, Fourth Dept 7-6-23

Practice Point: This decision is a clear example of the difference between a “legal sufficiency of the evidence” and a “weight of the evidence” analysis. Here the informant’s testimony describing a jailhouse confession by the defendant rendered the evidence legally sufficient. However the informant’s testimony was deemed incredible because it conflicted with the video evidence. The informant’s testimony was rejected by the appellate court rendering the conviction against the weight of the evidence.

Practice Point: If you search this website by clicking on the category “Criminal Law” and type “weight of the evidence” in the search bar, you will find many cases which are decided using the “weight of the evidence” label but which actually find the evidence legally insufficient. Appellate courts are now willing to reverse convictions as against the weight of the evidence where the legal sufficiency argument was not raised in the trial order of dismissal motion or where the TOD motion was not renewed upon the close of proof. Therefore, if there are deficiencies in the proof at trial, even if the legal insufficiency argument cannot be raised on appeal because it was not preserved, the “weight of the evidence” argument should be raised.

 

 

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