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CONVERSATIONS ABOUT AND PLANNING OF THE MURDER OF DEFENDANT’S WIFE AND MOTHER-IN-LAW DID NOT CONSTITUTE LEGALLY SUFFICIENT EVIDENCE OF ATTEMPTED MURDER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over a three-judge dissent, determined the evidence of attempted first and second degree murder was legally insufficient. Defendant’s conversations and planning with a feigned confederate did not constitute an “actual step” toward killing his wife and mother-in-law:

… [T]he only conduct to be considered is defendant’s own acts because his purported accomplice [MS], who was working with the authorities, did not take any steps toward furthering the planned murders other than listening to defendant’s scheme. MS did not, for example, acquire the instrumentality for the crimes (such as drugs or poison), verify the existence of the keys and obtain them from the stated location, or stake out the address supplied by defendant to make sure that the wife and mother-in-law were present at the location specified. Nevertheless, the People, mostly by parsing defendant’s communications with MS, argue that defendant engaged in sufficient conduct by: (1) promising to provide a house to MS; (2) giving MS the purported address of the targets; (3) instructing MS when to carry out the murders; (4) providing MS with a hand-drawn map of the location of the third party’s house, where MS was to drop off the children after the murders; (5) handing MS a detailed plan of how to carry out the murders; (6) telling MS the location of the keys to the house; (7) calling MS’s girlfriend to arrange for MS to visit the jail; (8) writing a fake suicide note; (9) showing MS the suicide note; and (10) creating a prearranged code to discuss the postmortem over the recorded jail phone.

Not only are these acts “preparatory in a dictionary sense” … , they are also limited to the planning stages of committing the offense: they specify the who, what, where, when, and how of defendant’s murder plans. Notably absent are any acts that can be deemed to bring the crimes dangerously close to completion. People v Lendof-Gonzalez, 2020 NY Slip Op 06940, CtApp 11-24-20

 

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A WHEEL CAME OFF DEFENDANT’S TRUCK CAUSING A FREAK ACCIDENT INVOLVING TWO OTHER VEHICLES RESULTING IN THE DEATH OF A DRIVER; THE CRIMINALLY NEGLIGENT HOMICIDE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE; AT MOST, DEFENDANT FAILED TO PERCEIVE THE RISK CREATED BY A NOISY WHEEL (FOURTH DEPT).

The Fourth Department, reversing defendant’s criminally negligent homicide conviction, determined the evidence was against the weight of the evidence. Apparently, a wheel came off defendant’s truck, another truck hit the wheel and overturned on a car, killing the driver:

The testimony at trial established that defendant came into possession of the pickup truck several weeks before the accident, but that its last valid inspection was three years before the accident. Although the People established that the pickup truck had a forged inspection sticker, there was no evidence that defendant knew it was forged. Several witnesses testified that, in the three days preceding the accident, the pickup truck was making loud grinding noises and that, either the day before the accident or the day of the accident, defendant asked a person with mechanical experience what that person thought might be the issue. That person opined that the noise was likely being caused by a wheel or the brakes.

An inspection of the driver’s side wheel and truck after the accident established some significant problems with the wheel, and witnesses testified that the existence of problems would have been noticeable and would have created issues with steering. The testimony also established, however, that the severity of the problems could not have been known to the operator unless the wheel was removed from the truck. * * *

At most, the evidence established that defendant failed to perceive a risk, which does establish criminal negligence beyond a reasonable doubt … . People v Pinnock, 2020 NY Slip Op 06884, Fourth Dept 11-20-20

 

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POLICE OFFICER’S OPINION A HOMICIDE HAD BEEN COMMITTED AND THE VICTIM’S MOTHER’S TESTIMONY ABOUT THE VICTIM’S PERSONAL BACKGROUND SHOULD NOT HAVE BEEN ADMITTED; OPINION ISSUE REVIEWED IN THE INTEREST OF JUSTICE; MANSLAUGHTER CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s manslaughter conviction, determined the investigating officer’s opinion that the death was a homicide and the victim’s mother’s testimony about the personal background of the victim should not have been admitted:

Defendant’s contention that County Court erred in allowing an investigating police officer to testify regarding his opinion that a homicide was committed in this case is preserved for our review only in part … . To the extent that defendant’s contention is unpreserved, we exercise our power to review it as a matter of discretion in the interest of justice … , and we conclude that the court erred in admitting that testimony because it ” ‘usurp[ed] the jury’s fact-finding function’ ” … .

We further agree with defendant that the court erred in permitting the victim’s mother to testify regarding the victim’s personal background, including various aspects of the victim’s life and his family relationships. It is well settled that “testimony about [a] victim[‘s] personal background[] that is immaterial to any issue at trial should be excluded” … and, here, the testimony of the victim’s mother regarding the victim’s personal background was not relevant to a material issue at trial. People v Salone, 2020 NY Slip Op 06903, Fourth Dept 11-20-20

 

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ALTHOUGH THE DEFENDANT VIOLATED THE ORDER OF PROTECTION BY GOING INSIDE THE PROTECTED PERSON’S HOUSE, THERE WAS INSUFFICIENT EVIDENCE OF ANY CONTACT WITH THE PROTECTED PERSON; CRIMINAL CONTEMPT FIRST CONVICTION REDUCED TO CRIMINAL CONTEMPT SECOND (FOURTH DEPT).

The Fourth Department, reducing the criminal contempt first conviction to criminal contempt second, determined the evidence was legally insufficient. The defendant violated the order of protection by going inside the protected person’s house but there was insufficient evidence of any contact between the defendant and the protected person:

… [T]he People adduced legally insufficient evidence that defendant intentionally violated “that part” of the protective order that required him to “stay away from the [protected] person,” as required for a conviction for criminal contempt in the first degree under Penal Law § 215.51 (c) … . Rather, the evidence proves only that defendant committed the lesser included offense of criminal contempt in the second degree under section 215.50 (3) by going to the protected person’s house, and we therefore modify the judgment accordingly … . People v Crittenden, 2020 NY Slip Op 06901, Fourth Dept 11-20-20

 

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TOWN PROCEEDINGS ABOUT WHETHER THE TOWN WAS OBLIGATED TO PLOW THE ROAD LEADING TO PETITIONER’S PROPERTY WAS NOT A “QUASI-JUDICIAL” PROCEEDING AND THEREFORE THE STANDARD OF REVIEW WAS NOT “SUBSTANTIAL EVIDENCE;” THE STANDARD IS WHETHER THE DETERMINATION WAS ARBITRARY AND CAPRICIOUS OR AFFECTED BY AN ERROR OF LAW (FOURTH DEPT).

The Fourth Department determined the the town was obligated to plow the road leading to the petitioner’s property. The decision has a discussion of the evidentiary standards for review of an Article 78 proceeding:

With respect to this proceeding, … “the substantial evidence standard of review does not apply to the administrative decision at issue, since it was made after [an] informational public hearing[], as opposed to a quasi-judicial evidentiary hearing” … . “Evidentiary hearings that are constitutionally required and have some of the characteristics of adversary trials, including cross-examination, result in ‘quasi-judicial’ determinations that are subject to article 78 review in the nature of certiorari, where the ‘substantial evidence’ inquiry is applicable” (… see CPLR 7803 [4]). “In a mandamus to review proceeding, however, no quasi-judicial hearing is required; the petitioner need only be given an opportunity ‘to be heard’ and to submit whatever evidence he or she chooses and the agency [or body] may consider whatever evidence is at hand, whether obtained through a hearing or otherwise. The standard of review in such a proceeding is whether the agency [or body] determination was arbitrary and capricious or affected by an error of law” … . Matter of Weikel v Town of W. Turin, 2020 NY Slip Op 06890, Fourth Dept 11-20-20

 

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THE TRAFFIC STOP WAS BASED ON A COMPUTER-GENERATED “SIMILARITY HIT;” AT THE SUPPRESSION HEARING THE PEOPLE DID NOT MEET THEIR BURDEN OF GOING FORWARD BECAUSE THE BASIS OF THE “SIMILARITY HIT” WAS NOT DEMONSTRATED; THIS PRESENTED A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, reversing the Appellate Division, determined the People did not meet their burden of going forward at the suppression hearing because they did not make a minimum showing of reasonable suspicion for the traffic stop. Whether the People meet that burden has been deemed a question of law which the Court of Appeals can address. Whether a stop was justified by reasonable suspicion is usually a mixed law and fact question which the Court of Appeals can not review. Here the traffic stop was based on a so-called “similarity hit” generated by the Department of Motor Vehicles database. A “similarity hit” apparently indicates some possible connection between the registered owner of a vehicle and an outstanding warrant. But, at the suppression hearing, the People did not present any evidence of the basis for the “similarity hit;”

According to the officer, a “similarity hit” is generated “based on the name of the registered owner, the date of birth[,] and other aliases.” He testified that the system considers “certain parameters” when identifying “similarity hits,” but he did not know how the Department of Motor Vehicles set those parameters. Nor did he testify as to any specifics of this match.

… [T]he officer did not think that the driver was the subject of the “similarity hit” because the driver was female and the registered owner was male. As the officer stepped around the vehicle to look at the registration and inspection stickers, he spotted a handgun on the floor under the front passenger seat, in which defendant was sitting. After defendant was arrested, the officer checked the MDT [mobile data terminal] information and discovered that the person with the warrant did not, in fact, match the vehicle’s registered owner or anyone else in the vehicle. The officer did not testify as to the name, date of birth, or address of the registered owner, or provide the specific identifying facts of the person set forth in the arrest warrant. …

While information generated by running a license-plate number through a government database may provide police with reasonable suspicion to stop a vehicle …, the information’s sufficiency to establish reasonable suspicion is not presumed … . Thus, when police stop a vehicle based solely on such information, and the defendant, as here, challenges its sufficiency, the People must present evidence of the content of the information … . People v Balkman, 2020 NY Slip Op 06838, CtApp 11-19-20

 

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THE CONVICTION FOR GRAND LARCENY BY FALSE REPRESENTATION WAS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE; THERE WAS NO EVIDENCE DEFENDANT RECEIVED ADDITIONAL FUNDS AFTER MAKING THE ALLEGED FALSE REPRESENTATION AND NO EVIDENCE DEFENDANT INTENDED TO APPROPRIATE THE FUNDS AT THE TIME THE ALLEGED FALSE REPRESENTATION WAS MADE (SECOND DEPT).

The Second Department found defendant’s grand-larceny-by-false-representation conviction was against the weight of the evidence. There was no evidence defendant received any additional money after making the alleged false representation and no evidence defendant intended to appropriate the funds at the time the alleged false representation was made:

… [T]he complainant testified that she was unable to send large amounts of money to Peru and had asked the defendant to assist her with sending money to her family in Peru. She testified that on November 3, 2014, she gave the defendant $11,000 to $12,000 to transfer to her family in Peru and approximately $40 for his assistance. She testified that she accompanied the defendant to four different money transfer agencies. However, according to the complainant’s testimony, she learned on November 4, 2014, that the money transfers did not go through due to an error she had made in the recipient’s name. The complainant testified that the defendant was able to fix two of the transactions over the phone and agreed to meet her the next day, November 5, 2014, to go to the other two money transfer agencies (hereinafter the subject money transfer agencies) to correct the mistake in the recipient’s name. She testified that the defendant did not meet her on November 5, 2014, she subsequently learned that her family never received the funds from the subject money transfer agencies, and the defendant had withdrawn the money without her permission. Business records from the subject money transfer agencies indicated that the transactions had been cancelled with the money refunded. Representatives from the subject money transfer agencies testified that their policies required cancellations to be done in person by the person who initiated the transaction.

On appeal, the defendant contends that the evidence was legally insufficient to establish that he obtained the subject funds by means of a false representation and that he had the requisite intent not to perform at the time he made the representation that he would meet the complainant and help her fix the recipient’s name on the transactions at the subject money transfer agencies. People v Bravo, 2020 NY Slip Op 06804, Second Dept 11-18-20

 

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THE ROBBERY CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE; THE STOP AND FRISK OF DEFENDANT WAS NOT JUSTIFIED; THE SHOWUP IDENTIFICATION SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction after trial and dismissing the indictment, in a full-fledged opinion by Justice Troutman, over a concurring opinion, determined the robbery conviction was against the weight of the evidence and the showup identification should have been suppressed. The opinion is comprehensive, well worth study, and cannot be fairly summarized here:

… [T]here is considerable objective evidence supporting defendant’s innocence. Defendant was found standing in a driveway half a mile from the crime scene only seven minutes after it occurred, wearing clothing different from the clothing worn by the gunman. He was not in possession of the fruits of the crime or of a firearm. There was no testimony that he was out of breath or that he displayed other signs of having recently run a distance. To the contrary, his boots were not even laced. The possibility that he changed clothes and hid the items in his companion’s residence across the street was questionable in the first instance given the timing of the events, and was severely undercut by the fact that the police obtained permission to search the residence and did so without finding anything linking defendant to the crime. Furthermore, the police investigation established that a person other than defendant possessed the fruits of the robbery, particularly the victim’s cell phone, and that person’s act in fleeing from the police when the phone alarm sounded was indicative of consciousness of guilt … . Other objective evidence, particularly the dog tracking, established that the gunman never turned west off of Genesee Street toward the place where defendant was found, but continued to run down Genesee Street in a southerly direction. * * *​

The testimony of the officer who initiated this street encounter established that he explored only “one of” several side streets in a residential neighborhood and seized the first young black man in a hooded sweatshirt who he found. It must be plainly stated—the law does not allow the police to stop and frisk any young black man within a half-mile radius of an armed robbery based solely upon a general description.

FROM THE CONCURRENCE:

In my view, reversal is required here solely on the ground that Supreme Court erred in refusing to suppress the showup identification testimony because it was not sufficiently attenuated from the police officer’s unlawful stop and detention of defendant … . People v Miller, 2020 NY Slip Op 06667, Fourth Dept 11-13-20

 

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THE FINDING THAT DEFENDANT USED THE CONCRETE SIDEWALK AS A DANGEROUS INSTRUMENT WAS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE; DEFENDANT PUNCHED THE VICTIM WHEN THE VICTIM WAS STANDING, THE VICTIM FELL TO THE SIDEWALK, AND DEFENDANT CONTINUED TO PUNCH THE VICTIM, CAUSING THE VICTIM’S DEATH (FOURTH DEPT).

The Fourth Department, reversing the reckless assault conviction, determined the allegation the defendant used the concrete sidewalk as a dangerous instrument was not supported by legally sufficient evidence:

Defendant appeals from a judgment convicting him, after a nonjury trial, of two counts of assault in the second degree (Penal Law § 120.05 [1] [intentional assault], [4] [reckless assault]), arising from an altercation during which he punched the victim in the face approximately three times, causing the victim to fall and hit his head on the concrete sidewalk, then continued to punch the victim while he was lying on the ground unconscious. The victim died as a result of his injuries. * * *

Although a sidewalk or concrete surface can be “used” as a dangerous instrument … , the testimony of the eyewitnesses establishes that the blows to the victim, which were delivered using a cross-wise motion, were not executed in such a way as to establish that defendant consciously disregarded a substantial and unjustifiable risk that the victim’s head would have contact with the concrete … . Under the circumstances presented, there is no “valid line of reasoning and permissible inferences from which a rational [person]” could conclude that defendant recklessly used the sidewalk as a dangerous instrument … . People v Desius, 2020 NY Slip Op 06611, Fourth Dept 11-13-20

 

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DNA FOUND ON THE MURDER VICTIM’S BODY WAS LINKED TO THE DEFENDANT WHO WAS ARRESTED TWO YEARS AFTER THE MURDER; THERE WAS NO OTHER EVIDENCE CONNECTING DEFENDANT TO THE VICTIM OR TO THE AREA WHERE THE VICTIM WAS FOUND; THE SECOND DEPARTMENT, OVER AN EXTENSIVE DISSENT, FOUND THE EVIDENCE LEGALLY INSUFFICIENT TO SUPPORT THE CONVICTION (SECOND DEPT).

The Second Department, reversing defendant’s murder conviction, over an extensive dissent, determined the evidence was legally insufficient. Defendant was arrested two years after the victim’s death based upon DNA found on the victim. No evidence placing defendant near the scene of the crime was presented:

On the morning of October 3, 2013, the 23-year-old victim, who had a history of drug use, was found dead in a wooded area known as Froehlich Farms, in Suffolk County. The victim’s injuries, as well as the condition in which her body was found, indicated that she had been sexually assaulted and killed by strangulation within 12 hours to a day before her body was found. More than two years after her death, the defendant was charged with murder in the second degree after his DNA profile was matched to a single source partial profile generated from various swab samples taken as part of a sexual assault kit performed on the victim.

At the trial, the People presented no evidence placing the defendant at or near the scene of the crime, or linking him in any way to the victim, during the critical time frame in which the murder was believed to have occurred. Nor did the People offer any evidence showing that the sexual contact between the defendant and the victim occurred at or near the time of the murder. At most, the DNA evidence established, beyond a reasonable doubt, that the defendant had sexual contact with the victim at some unspecified time and place. People v Romualdo, 2020 NY Slip Op 06559, Second Dept 11-12-20

 

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