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Murder Conviction Against the Weight of the Evidence—Strangulation Was the Result of an Attempt to Increase Sexual Pleasure—No Intent to Kill

The Second Department determined that defendant’s conviction for intentional murder was against the weight of the evidence.  The victim died of strangulation, but the defendant’s actions were motivated by the desire to increase sexual pleasure, not by an intent to kill.  People v Davis, 2014 NY Slip Op 03277, 2nd Dept 5-7-14

 

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DEFENDANT DID NOT PRESENT EVIDENCE THAT THE AREA WHERE PLAINTIFF SLIPPED AND FELL ON ICE WAS INSPECTED OR TREATED ON THE DAY OF THE FALL, THEREFORE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
A DISMISSAL BASED UPON PLAINTIFF’S FAILURE TO APPEAR TO OPPOSE A MOTION TO DISMISS IS NOT A DETERMINATION ON THE MERITS AND THEREFORE HAS NO RES JUDICATA EFFECT (SECOND DEPT).
DEFENDANT DID NOT DEMONSTRATE NONNEGLIGENT EXPLANATION FOR REAR-END COLLISION, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED.
Intent to Rob Sufficiently Proven by Circumstantial Evidence
SURROGATE’S COURT SHOULD HAVE CARRIED OUT WHAT DECEDENT CLEARLY INTENDED, DESPITE THE DEFECT IN THE MEANS CHOSEN TO EFFECT HIS INTENT.
(HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT).
Testimony of Defense Expert About Reliability of Eyewitness Identifications Properly Precluded/Criteria for Such Testimony Explained
LOCAL LAWS CONCERNING PROCEDURES TO BE FOLLOWED BY THE VILLAGE ZONING BOARD OF APPEALS WERE NOT PREEMPTED BY THE STATE-WIDE VILLAGE LAW.

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