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DEFENDANT’S CONVICTION SUPPORTED BY THE WEIGHT OF THE EVIDENCE, DETAILED DISCUSSION OF THE WEIGHT OF THE EVIDENCE ANALYSIS, DISSENT DISAGREED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kahn, over a two-justice dissenting opinion, determined that defendant’s conviction in this murder case was supported by the weight of the evidence. The dissent argued that defendant’s videotaped statement supported the justification defense and no other evidence presented by the People refuted it. The opinion includes a comprehensive discussion of the appellate court’s weight of the evidence analysis:

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Weight of the evidence review involves a two-step approach. (People v Romero, 7 NY3d 633, 643 [2006]). First, the Court must determine whether, based on all the credible evidence, an acquittal would not have been unreasonable (id.; People v Bleakley, 69 NY2d 490, 495 [1987]). If so, then the appellate court must weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony … . That step is performed by weighing the evidence against the elements as charged to the jury … . The evidence must be of such weight and credibility as to convince the Court that the jury’s finding of the defendant’s guilt beyond a reasonable doubt was justified … . * * *

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Viewing all of the record evidence in light of the first prong of the Romero-Bleakley standard, had the jury credited defendant’s account of the events surrounding the shooting, it could have reasonably found that defendant was, as the trial court instructed, “justified in the use of deadly physical force, . . . hav[ing] honestly believed that it was necessary to defend himself from what he honestly believed to be the use or imminent use of such force by Steven Mari and [that] a reasonable person in the defendant’s position, knowing what the defendant knew, and being in the same circumstances would have believed that too.” Thus, had the jury credited defendant’s statement, it would not have been unreasonable for the jury to have acquitted defendant … .

Turning to the second step of the Romero-Bleakley analysis, at the outset, there is no basis for disturbing the jury’s rejection of defendant’s videotaped statement. Defendant’s statements … were materially inconsistent, and defied credulity. People v Sanchez, 2017 NY Slip Op 08899, First Dept 12-21-17

 

CRIMINAL LAW (WEIGHT OF THE EVIDENCE, DEFENDANT’S CONVICTION SUPPORTED BY THE WEIGHT OF THE EVIDENCE, DETAILED DISCUSSION OF THE WEIGHT OF THE EVIDENCE ANALYSIS, DISSENT DISAGREED (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, WEIGHT OF THE EVIDENCE, DEFENDANT’S CONVICTION SUPPORTED BY THE WEIGHT OF THE EVIDENCE, DETAILED DISCUSSION OF THE WEIGHT OF THE EVIDENCE ANALYSIS, DISSENT DISAGREED (FIRST DEPT))/APPEALS (CRIMINAL LAW, WEIGHT OF THE EVIDENCE, DEFENDANT’S CONVICTION SUPPORTED BY THE WEIGHT OF THE EVIDENCE, DETAILED DISCUSSION OF THE WEIGHT OF THE EVIDENCE ANALYSIS, DISSENT DISAGREED (FIRST DEPT))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, APPEALS, DEFENDANT’S CONVICTION SUPPORTED BY THE WEIGHT OF THE EVIDENCE, DETAILED DISCUSSION OF THE WEIGHT OF THE EVIDENCE ANALYSIS, DISSENT DISAGREED (FIRST DEPT))

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THE TRIAL JUDGE SHOULD HAVE GIVEN THE ADVERSE INFERENCE CHARGE WHICH HAD BEEN ORDERED AS A DISCOVERY SANCTION RE: A MISSING SURVEILLANCE TAPE; JURY VERDICT SET ASIDE (FIRST DEPT). ​
HERE THE MOTION TO RENEW, BASED UPON A CHANGE IN OR CLARIFICATION OF THE LAW, SHOULD HAVE BEEN GRANTED DESPITE THE APPELLATE RULING ON THE PRIOR ORDER (FIRST DEPT).
ALTHOUGH AN INDICTMENT NEED NOT ALLEGE ACCESSORIAL LIABILITY TO BE LEGALLY SUFFICIENT; WHERE THERE IS NO EVIDENCE A DEFENDANT ACTED AS A PRINCIPAL THE JURY MUST BE INSTRUCTED ON ACCESSORIAL LIABILITY; THE FAILURE TO SO INSTRUCT THE JURY HERE RENDERED THE CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE (FIRST DEPT).
A LEASE BETWEEN PLAINTIFF CORPORATION AND DEFENDANTS (ONE OF WHOM WAS A MEMBER OF PLAINTIFF’S BOARD) WAS NOT VOTED ON BY A MAJORITY OF DISINTERESTED DIRECTORS AND WAS THEREFORE VOIDABLE UNDER BUSINESS CORPORATION LAW 713(B); DEFENDANTS BREACHED THEIR FIDUCIARAY DUTY TO THE CORPORATION BY SUBLETTING THE LEASED PREMISES FOR A MUCH HIGHER RENT WITHOUT PLAINTIFF’S KNOWLEDGE (FIRST DEPT).
IN AN ACTION SEEKING TO ENFORCE A JUDGMENT AGAINST NON-DEBTORS PURSUANT TO CPLR ARTICLE 52, THE PETITIONERS ARE NOT ENTITLED TO A JURY TRIAL; THE ACTION IS EQUITABLE IN NATURE, DESPITE THE DEMAND FOR MONETARY DAMAGES (FIRST DEPT). ​
DEFENDANTS’ MOTIONS TO AMEND THEIR ANSWERS IN THIS MED MAL CASE TO ALLEGE PLAINTIFF’S CULPABLE CONDUCT AND COMPARATIVE NEGLIGENCE (RE: HER WEIGHT AND SMOKING) SHOULD HAVE BEEN GRANTED; THE DELAY IN MAKING THE MOTION CAUSED NO PREJUDICE; GOOD CAUSE FOR THE DELAY NEED NOT BE SHOWN; FAILURE TO INCLUDE THE AMENDED PLEADINGS WITH THE MOTION PAPERS AND DEFECTS IN VERIFICATIONS SHOULD HAVE BEEN OVERLOOKED (FIRST DEPT).
SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SLIP AND FALL ACTION SHOULD HAVE BEEN DISMISSED.
DEFENDANT LANDLORD NOT LIABLE FOR PLAINTIFF’S FALL OUT OF A WINDOW; NO ALLEGATION OF THE VIOLATION OF ANY RULE, REGULATION, CODE OR STANDARD (FIRST DEPT).

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