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THE EVIDENCE THAT DEFENDANT WAS AN ACCOMPLICE IN A DRUG SALE AND WAS PART OF A CONSPIRACY TO SELL DRUGS WAS LEGALLY INSUFFICIENT; MERE PRESENCE IS NOT ENOUGH FOR ACCOMPLICE LIABILITY AND THERE WAS NO PROOF OF AN OVERT ACT RELEVANT TO DEFENDANT (SECOND DEPT).

The Second Department, reversing defendant’s convictions of criminal sale of a controlled substance, on an accomplice theory, and conspiracy, based on mere presence. Defendant was in the car with Alvarado, who sold heroin to an undercover officer who briefly got into the car, purchased the drugs, and left. The evidence defendant acted as an accomplice and was part of a conspiracy was deemed legally insufficient and against the weight of the evidence:

… [T]he evidence reflects that the defendant met Alvarado on April 25, 2015, to accompany Alvarado to the driving school before Alvarado and the undercover officer arranged the meeting, and that Alvarado told the undercover officer prior to the meeting that he had to “do this thing for my license.” Thus, the defendant’s mere presence during the sale, with knowledge of what was transpiring at that time, was insufficient to establish the defendant’s guilt of criminal sale of a controlled substance in the third degree … . …

… [T]he evidence was legally insufficient to establish that the defendant entered into an agreement with Alvarado to sell heroin on April 25, 2015, since there was no evidence that the defendant participated in arranging the heroin sale or even had any discussion with Alvarado about selling heroin on that date … . Further, the People failed to present any evidence of an “overt act” connected to any statements made during the wiretapped calls between the defendant and Alvarado. Accordingly, the evidence was legally insufficient to establish the defendant’s guilt of conspiracy in the fourth degree beyond a reasonable doubt. People v Moreno, 2021 NY Slip Op 02316, Second Dept 4-14-21

 

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THE ANONYMOUS TIP THAT A MAN WITH A GUN WAS LEAVING A CLUB DID NOT PROVIDE THE POLICE WITH SUFFICIENT INFORMATION FOR STOPPING AND DETAINING THE DEFENDANT WHO SUBSEQUENTLY RAN, PULLED OUT A HANDGUN AND WAS SHOT BY THE POLICE; DEFENDANT’S MOTION TO SUPPRESS THE HANDGUN SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing the denial of defendant’s suppression motion, determined the police, action on an anonymous tip, did not have sufficient information to stop and detain the defendant. The defendant ran, pulled out a handgun, and was shot by the police. The defendant moved to suppress the handgun. The Second Department noted that the theories supporting the initial stop of the defendant where not raised or ruled upon below and therefore could not be considered on appeal:

… [T]he Supreme Court erred in finding, in effect, that the police had lawfully stopped the defendant before the defendant fled from the police and removed a gun from his waist. The hearing testimony indicated that the law enforcement officials who were in the sergeant’s vehicle had received a tip that two individuals, one of whom had a gun, were leaving the club. There was no evidence presented at the hearing as to the identity of the individual who provided the tip, no evidence that the informant explained to the police how he or she knew about the gun, no evidence that the informant supplied any basis to believe that he or she had inside information about the defendant, and no evidence that the informant had “‘knowledge of concealed criminal activity'” … . Therefore, the police lacked reasonable suspicion to stop the defendant and his companion based solely on the tip. People v Benbow, 2021 NY Slip Op 02304, Second Dept 4-14-21

 

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ARGUING FOR LENIENCY IN SENTENCING DOES NOT PRESERVE THE ARGUMENT THAT THE SENTENCING WAS VINDICTIVE (CT APP).

The Court of Appeals determined the argument that the sentence to imprisonment was vindictive was not preserved. Defendant had successfully appealed his conviction after a nonjury verdict and then pled guilty to a different offense before a different judge. Although defendant argued for leniency, that did not preserve the “vindictive sentencing” argument:

The claim that the sentence imposed upon defendant’s guilty plea was presumptively vindictive and imposed without State Due Process protections … is unpreserved. Defendant’s arguments against imposition of the term of imprisonment, registered before the court imposed sentence, were consistent with arguments for leniency and made no specific reference to the principle of vindictiveness or any potential constitutional violation. Defendant also failed to either object to the sentence actually imposed or move to withdraw his guilty plea. Nor does this record support a claim that the sentence, which was within the ambit of the range of sentences for a class A misdemeanor, was illegal in a respect that “can readily be discerned from the . . . record” … . As a result, defendant’s arguments are unreviewable. People v Olds, 2021 NY Slip Op 02019, CtApp 4-1-21

 

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DEFENDANT WAS CONVICTED OF FELONY MURDER, TWO COUNTS OF ROBBERY AND CRIMINAL POSSESSION OF A WEAPON BASED PRIMARILY ON HIS CONFESSION; THE ROBBERY CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE; THE JUDGE DID NOT MAKE THE REQUIRED MINIMAL INQUIRY WHEN DEFENDANT REQUESTED NEW COUNSEL; COUNSEL WERE INEFFECTIVE FOR FAILING TO REQUEST THE REDACTION OF DEFENDANT’S VIDEO STATEMENT; NEW TRIAL ORDERED ON THE FELONY MURDER AND CRIMINAL POSSESSION OF A WEAPON COUNTS (FOURTH DEPT).

The Fourth Department, reversing defendant’s convictions, dismissing the robbery counts, and ordering a new trial on the murder and criminal possession of a weapon counts, in a full-fledged opinion by Justice Troutman, determined: (1) conviction of felony murder based upon a confession requires only corroboration of the murder, not the underlying felony (robbery here); (2) the convictions on the two robbery counts were against the weight of the evidence; (3) the judge did not conduct the required “minimal inquiry” when defendant made specific factual complaints about his counsel and asked for new counsel–the error was not cured by the appointment of new counsel right before trial; and (4) defendant’s counsel were ineffective because defendant’s video statement was not redacted to remove reference to defendant’s history of incarceration. The legal discussions are too detailed to fairly summarize here. The facts are:

On October 14, 2013, the victim stumbled home, a fatal knife wound in his back. He was pronounced dead that evening. Two days later, the police interviewed defendant, who provided a video-recorded statement. Defendant admitted that, on the evening of the crime, he was on South Salina Street in the City of Syracuse with three other young men—a cousin of his, a juvenile, and Tony Comer, Jr.—when the victim approached them for the purpose of buying drugs. Comer used the promise of drugs to lure the victim into a cut in the roadway and steal his wallet. When Comer and the victim came out of the cut, the victim was shirtless. Comer was smiling, holding the victim’s torn, white T-shirt. The victim left, shouting that he would come back with a gun and start shooting. Comer told the others that the victim still had $10 on his person, and the juvenile stated that he wanted the victim’s last $10. About 10 or 15 minutes later, the victim returned wearing a sweatshirt, looking for his wallet. Defendant, his cousin, and the juvenile fought the victim. Defendant admitted that, by fighting the victim, he was helping the juvenile to acquire the victim’s last $10 and that, during the fight, defendant stabbed the victim once in the back using a knife that he had concealed in his sleeve. People v Stackhouse, 2021 NY Slip Op 01883, Fourth Dept 3-26-21

 

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DEFENDANT’S CONVICTIONS RELATING TO THE CODEFENDANT’S POSSESSION AND FIRING OF A WEAPON DURING A ROBBERY AT WHICH DEFENDANT WAS NOT PRESENT WERE BASED UPON LEGALLY INSUFFICIENT EVIDENCE; DEFENDANT’S CONVICTION OF POSSESSION OF A WEAPON BASED UPON THE CODEFENDANT’S GETTING INTO DEFENDANT’S CAR WITH THE WEAPON WAS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s convictions and dismissing the indictment, determined the evidence of possession of a weapon and reckless endangerment (stemming from a robbery by the codefendant) was legally insufficient, and the conviction of another possession of a weapon charge (stemming from the codefendant’s getting into defendant’s car after the robbery) was against the weight of the evidence. Shots were fired by the codefendant during the robbery. The defendant was not with the codefendant during the robbery. Then the codefendant, still in possession of the firearm, got into defendant’s car which was parked a couple of blocks away from the robbery scene and defendant drove away with the codefendant. There was no evidence the defendant shared the codefendant’s intent to commit the robbery:

… [T]here is no evidence that defendant and the codefendant were together earlier on the day of the robbery and shooting, no evidence that defendant had prior knowledge either that the codefendant would be armed that day or that he was intending to rob someone, and no evidence that defendant and the codefendant had an ongoing relationship … . * * *

… [T]he evidence is legally insufficient to establish that defendant had any knowledge of the codefendant’s possession of a firearm prior to the shooting or that defendant somehow “solicited, requested, commanded, importuned or intentionally aided [the codefendant] to engage in” the reckless shooting at the vehicle in which the victim was riding … . * * *

… [A]lthough the evidence that defendant knew who the codefendant was prior to the robbery provides a rational basis for questioning defendant’s credibility, we conclude … that the People failed to prove beyond a reasonable doubt that defendant, finding himself in the presence of a man with a loaded weapon, willingly “solicited, requested, commanded, importuned or intentionally aided” the codefendant’s possession of that weapon … , or that defendant “shared a ‘community of purpose’ with [the codefendant]” … . People v Hawkins, 2021 NY Slip Op 01882, Fourth Dept 3-26-21

 

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THERE IS NO NEED TO FILE AN AFFIDAVIT OF SERVICE AFTER SERVICE OF A WARRANT AND NOTICE OF EVICTION; THE MATTER WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined that the failure file an affidavit of service after serving the warrant and notice of eviction did not affect the validity of the service of the warrant of eviction which triggers the 14-day waiting period before execution of the warrant. The court noted that the matter was moot because the petitioner was subsequently evicted based on a different warrant, but the matter should be heard on appeal because the circumstance is likely to recur. The two dissenters argued the mootness of the matter precluded appeal:

… [T]he issuance of a warrant is the court’s last act in a summary proceeding, as denoted by the phrase, “Upon rendering a final judgment for [the owner], the court shall issue a warrant” (RPAPL 749 [1]). The execution of the warrant terminates the lease … . Likewise, the execution of the warrant terminates the summary proceeding and the jurisdiction of the court …  Because the court no longer has jurisdiction, the filing of the affidavit of service is superfluous. This stands in stark contrast to the purpose of the affidavit of service at the commencement of the summary proceeding, where it suffices as proof that the party was properly served pursuant to law, as proper service is required to bring a respondent within the jurisdiction of the court … .

… [W]e find that filing the affidavit of service at the conclusion of service of a warrant of eviction is not required, and the 14-day notice begins the day following the date of service, posting or mailing, whichever is later … . Matter of Dixon v County of Albany, 2021 NY Slip Op 01819, Third Dept 3-25-21

 

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THE PEOPLE USED DEFENDANT’S PRETRIAL SILENCE AGAINST HIM IN THEIR DIRECT CASE; ALTHOUGH THE ERROR WAS NOT PRESERVED, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department reversed defendant’s conviction and ordered a new trial because the People “improperly used [defendant’s] pretrial silence against him in their direct case.” The decision does not explain the facts. Although the error was not preserved, the appeal was considered in the interest of justice:

“[I]t is a well-established principle of state evidentiary law that evidence of a defendant’s pretrial silence is generally inadmissible” … . Here, as the defendant correctly contends, the People improperly used his pretrial silence against him on their direct case … . Since this evidence was used by the People on their direct case, their reliance upon cases in which “conspicuous omissions from the defendants’ statements to police” had properly been used during cross-examination of the defendants to impeach the credibility of their exculpatory trial testimony is misplaced … . Contrary to the People’s contention, the error in admitting evidence of the defendant’s pretrial silence during their direct case was not harmless … . Although this issue is unpreserved for appellate review … , we reach it in the exercise of our interest of justice jurisdiction, and on that basis, reverse the judgment and remit the matter … for a new trial. People v DeLaCruz, 2021 NY Slip Op 01785, Second Dept 3-24-21

 

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STATEMENTS MADE AFTER DEFENDANT ASSERTED HIS RIGHT TO REMAIN SILENT SHOULD HAVE BEEN SUPPRESSED, BUT THE ERROR WAS HARMLESS; CRIMINAL POSSESSION OF A WEAPON WAS A CONTINUING CRIME AND SHOULD HAVE BEEN CHARGED AS A SINGLE COUNT, NOT FOUR COUNTS; AN OBJECTION OR A MOTION FOR A MISTRIAL IS NECESSARY TO PRESERVE AN ERROR AFTER A CURATIVE INSTRUCTION HAS BEEN GIVEN (FOURTH DEPT).

The Fourth Department determined statements made after defendant unequivocally asserted his right to remain silent should have been suppressed, but the error was harmless. In addition the Fourth Department dismissed three counts of criminal possession of a weapon because all four counts related to the uninterrupted possession of a single weapon at different times. The court also noted that if the trial court gives a curative instruction after an objection, another objection or a motion for a mistrial is necessary to preserve the issue for appeal:

… [D]efendant told the police three times that he did not wish to speak to them. We conclude that the court’s determination that defendant did not unequivocally invoke his right to remain silent is supported by the record with respect to the first such instance, because in that instance he “did not clearly communicate a desire to cease all questioning indefinitely” … , “especially in light of his continued participation in the conversation” … . We further conclude, however, that the remainder of the court’s determination is not supported by the record, inasmuch as, twice more during the questioning, “defendant said that he did not want to talk about [the crimes], thus unequivocally invoking his right to remain silent” … . Consequently, the court was required to suppress the statements that defendant made after invoking his right to remain silent for the second time. * * *

Defendant … contends in his main brief that the court erred in refusing to dismiss various counts of the indictment charging criminal possession of a weapon in the second degree under Penal Law § 265.03 (3) inasmuch as the indictment charged him with multiple counts of that crime based on his commission of a singular continuing offense. We agree. “An indictment cannot charge a defendant with more than one count of a crime that can be characterized as a continuing offense unless there has been an interruption in the course of conduct” … . Here, the indictment charged defendant with four separate counts of criminal possession of a weapon in the second degree under Penal Law § 265.03 (3) for the uninterrupted possession of a single weapon at different times. We conclude that such possession “constituted a single offense for which he could be prosecuted only once” … . Consequently, we affirm that part of the judgment convicting defendant of criminal possession of a weapon in the second degree under Penal Law § 265.03 (3) in count 17 of the indictment, and we modify the judgment by reversing those parts convicting him of that crime under counts 8, 11, and 16 of the indictment and dismissing those counts of the indictment. People v Johnston, 2021 NY Slip Op 01632, Fourth Dept 3-19-21

 

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THE PROOF OF CONSTRUCTIVE POSSESION OF WEAPONS WAS LEGALLY INSUFFICIENT (FOURTH DEPT).

The Fourth Department reversed defendant’s convictions for criminal use of a firearm and criminal possession of weapon because the proof of constructive possession was legally insufficient:

… [T]he evidence is legally insufficient to support her conviction of the counts of criminal use of a firearm in the first degree, criminal possession of a weapon in the third degree, and criminal possession of a weapon in the fourth degree, and we therefore modify the judgment accordingly. Those counts were based on defendant’s constructive possession of a rifle that was found in the house after the police entered. The People failed to establish that defendant “exercised dominion or control over [the rifle] by a sufficient level of control over the area in which [it was] found” to establish that she had constructive possession of it … . People v Lora, 2021 NY Slip Op 01597, Fourth Dept 3-19-21

 

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AN APPELLATE COURT CANNOT CONSIDER A MOTION NOT RULED UPON BELOW; MATTER REMITTED FOR A RULING ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL (FOURTH DEPT).

The Fourth Department remitted the case for a ruling on defendant’s motion for a trial order of dismissal. An appellate court cannot consider a motion not ruled upon:

Defendant … contends that the evidence is legally insufficient to support the conviction with respect to all counts. At the close of proof, defendant moved for a trial order of dismissal, and the court reserved decision. There is no indication in the record that the court ruled on defendant’s motion (cf. CPL 290.10 [1]). Thus, we may not address defendant’s contention because, “in accordance with People v Concepcion (17 NY3d 192, 197-198 [2011]) and People v LaFontaine (92 NY2d 470, 474 [1998], rearg denied 93 NY2d 849 [1999]), we cannot deem the court’s failure to rule on the . . . motion as a denial thereof” … . We therefore hold the case, reserve decision, and remit the matter to Supreme Court for a ruling on defendant’s motion … . People v Johnson, 2021 NY Slip Op 01675, Fourth Dept 3-19-21

 

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