You are here: / Criminal Law
, ,

CRIMINAL SALE OF A CONTROLLED SUBSTANCE FIRST DEGREE AND THE RELATED CONSPIRACY CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT).

The Third Department determined the criminal sale of a controlled substance first degree and the related conspiracy convictions were against the weight of the evidence:

In a weight of the evidence review, we first determine whether, based on all of the credible evidence, a different finding would have been unreasonable, and, if not, we then “weigh the relative probative force of the conflicting testimony and the relative strength of the conflicting inferences that may be drawn from the testimony” to determine if the verdict is supported by the weight of the evidence … . . * * *

Although the jury may have been able to infer from the intercepted communications that defendant sold cocaine to Henry on October 28, 2017, the evidence failed to satisfy the two ounce or more weight element of criminal sale of a controlled substance in the first degree … . Under these circumstances, the evidence falls short of establishing the elements of criminal sale of a controlled substance in the first degree when viewed in a neutral light … . As defendant’s conspiracy conviction is premised upon the criminal sale in the first degree charge, it too must fall based upon a review of the weight of the evidence … . People v Adams, 2022 NY Slip Op 00076, Third Dept 1-6-22

 

,

THE UNLAWFUL SURVEILLANCE CONVICTION DID NOT INVOLVE “SEXUAL CONTACT” AS DEFINED BY THE PENAL LAW; THEREFORE THE 20 POINT ASSESSMENT FOR “SEXUAL CONTACT” WAS ERROR (THIRD DEPT).

The Third Department, reversing (modifying) County Court, determined the risk factors requiring “sexual contact” and a “prior felony or sex crime” were not supported:

County Court erred in assessing points under risk factors 4 and 10. The assessment of points under risk factor 4 is warranted where a defendant has engaged in “either (i) two or more acts of sexual contact, at least one of which is an act of sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact, which acts are separated in time by at least 24 hours, or (ii) three or more acts of sexual contact over a period of at least two weeks” … . For purposes of risk classification, the Penal Law definition of terms is used … . The record does not reflect that defendant’s crimes of conviction, for unlawful surveillance in the second degree … , involved any form of sexual contact … . In the absence of any record evidence that defendant engaged in sexual contact with any victim, 20 points should not have been assessed under risk factor 4 … . Likewise, the record lacks any evidence that defendant had a “prior felony or sex crime” within three years of the unlawful surveillance sex offenses and, thus, the court erred in assessing 10 points under risk factor 10 … . People v Wassilie, 2022 NY Slip Op 00103, Third Dept 1-6-22

 

,

THE MAJORITY CONCLUDED THE INTERVENTION BY THE TRIAL JUDGE DID NOT DEPRIVE DEFENDANT OF A FAIR TRIAL; STRONG TW0-JUSTICE DISSENT (SECOND DEPT).

The Second Department, over an extensive two-justice dissent, affirmed defendant’s murder conviction. The majority noted that some of the trial judge’s remarks would have been better left unsaid, but held the judge did not intervene excessively. The dissent disagreed:

… [W]hile many of the Supreme Court’s interventions were proper attempts to clarify testimony and facilitate the progress of the trial, we agree with our dissenting colleagues that other remarks would better have been left unsaid. Nevertheless, when the record is viewed as a whole, the court’s conduct, to the extent it was improper, did not prevent the jury from arriving at an impartial verdict on the merits … . * * *

From the dissent:

Viewing the record as a whole, the Supreme Court’s conduct, taken together with, inter alia, its disparate treatment of the two experts … , its efforts to point out inconsistencies in the testimony of the defendant’s wife … , and its assistance in eliciting testimony from the People’s witnesses … , “demonstrated apparent bias in favor of the People” … . This improper interference deprived the defendant of a fair trial, and thus, a new trial is warranted before a different Justice … . People v Martinez, 2022 NY Slip Op 00037, Second Dept 1-5-22

 

THE JUROR’S SIMULATION OF THE STABBING IN THE JURY ROOM DID NOT CONSTITUTE JUROR MISCONDUCT (FIRST DEPT).

The First Department determined a juror’s use of a piece of cardboard to simulate a stabbing motion with a knife (during deliberations) did not constitute juror misconduct:

… [T]he juror … used a piece of cardboard to simulate a knife and briefly made a stabbing motion in an effort to demonstrate or reenact the crime at issue. Based on the evidence adduced at the hearing, this conduct likewise did not constitute “improper conduct” within the meaning of CPL 330.30(2). “It is well recognized that jurors may conduct a jury room crime reenactment or demonstration provided it involves no more that the jurors’ application of everyday experiences, perceptions and common sense to the evidence” … . In light of the trial evidence and the nature of the demonstration, the juror did not become an unsworn witness, or introduce new facts into the deliberations … . Given the location, simplicity, and brief duration of the demonstration … , as well as the hearing testimony of the jurors who testified that the demonstration had no effect on their deliberations … , the demonstration did not prejudice a substantial right of defendant …. People v Hubbard, 2022 NY Slip Op 00017, First Dept 1-4-22

 

,

PURSUANT TO A MOLINEUX ANALYSIS, THE WEAPON-POSSESSION COUNT SHOULD HAVE BEEN SEVERED FROM THE MENACING AND ASSAULT COUNTS, IN WHICH DISPLAY OF A WEAPON WAS ALLEGED; THE SIROIS HEARING DID NOT DEMONSTRATE THE DEFENDANT CAUSED THE VICTIM TO REFUSE TO TESTIFY, THEREFORE THE VICTIM’S GRAND JURY TESTIMONY WAS NOT ADMISSIBLE; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, over a partial dissent, determined: (1) the weapon-possession count should have been severed from the assault and menacing counts under a Molineux analysis; (2) the Sirois hearing did not demonstrate that the alleged victim refused to testify because of intimidation by the defendant, therefore the victim’s grand jury testimony should not have been read to the jury; and (3) under Molineux, evidence of the defendant’s possession of marijuana and defendant’s participation in a program related to the police department’s “Crime Analysis Center” should not have been admitted:

… [B]y refusing to sever the assault and menacing charges from the weapon charge, County Court permitted highly prejudicial evidence to be placed before the jury. Proof that a handgun was recovered from defendant’s residence could lend credence to the victim’s claim that a handgun — albeit a different one — was displayed during the course of the assault and menacing. Similarly, if the jury credited the victim’s grand jury testimony relative to defendant displaying a weapon during her encounter with him, the jury could be more likely to believe that the handgun recovered from defendant’s residence did indeed belong to him.  * * *

Although the proof adduced [at the Sirois hearing] certainly established that the victim felt threatened and did not wish to testify, such proof fell short of demonstrating, by clear and convincing evidence, that defendant — or someone acting at his behest — orchestrated the victim’s unavailability for trial. People v Bryant, 2021 NY Slip Op 07582, Third Dept 12-30-21

 

,

THE JUDGE SHOULD NOT HAVE ACCEPTED A PARTIAL VERDICT WITHOUT INTERVIEWING THE JUROR WHO HAD INFORMED THE COURT SHE COULD NOT CONTINUE DELIBERATING BECAUSE SHE WAS SUFFERING ANXIETY ATTACKS; BECAUSE THE JUROR WAS NOT QUESTIONED, IT IS IMPOSSIBLE TO KNOW WHETHER THE PARTIAL VERDICT WAS REACHED BEFORE THE JUROR BECAME UNABLE TO CONTINUE (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the judge should have interviewed a juror who said she was suffering anxiety attacks and could not continue deliberations. The judge did not question the juror and accepted a partial verdict, without knowing whether the partial verdict was reached before the juror became unable to continue:

“The Court of Appeals, in People v Buford (69 NY2d 290, 299), set forth the basic framework to be followed when conduct occurs during a trial that may be the basis for disqualifying a juror. The court should conduct an in camera inquiry of the juror, in which counsel should be permitted to participate if they desire, and evaluate the nature and importance of the information and its impact on the case. In addition, the trial court’s reasons for its ruling should be placed on the record . . . [and] the court may not speculate as to possible partiality of the juror” … . “Although the Court of Appeals acknowledged that an ‘in camera inquiry may not be necessary in the unusual case . . . where the court, the attorneys, and defendant all agree that there is no possibility that the juror’s impartiality could be affected and that there is no reason to question the juror,’ here, defense counsel wanted the juror to be questioned” … .

The Supreme Court erred in failing to conduct an in camera “probing and tactful inquiry” (People v Buford, 69 NY2d at 299) of juror number 11 before accepting the partial verdict … . As a result of the court’s failure to make any inquiry of the juror, it is unknown whether the juror became unable to serve before, or after, the jury had reportedly reached a verdict on one of the counts … . People v Moody, 2021 NY Slip Op 07559, Second Dept 12-29-21

 

,

PARTICIPATION IN A PRISON SEX OFFENDER TREATMENT PROGRAM WAS NOT ENOUGH TO AVOID A 10-POINT ASSESSMENT FOR FAILURE TO ACCEPT RESPONSIBILITY IN THIS SORA RISK-LEVEL PROCEEDING (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt, determined defendant’s participation in a prison sex offender treatment program did not preclude the assessment of 10 points for failing to accept responsibility for his misconduct. The additional 10 points raised defendant’s risk level from two to three:

Factor 12 of the Sex Offender Registration Act (SORA) Risk Assessment Guidelines allows for the assessment of 10 points for a sex offender if he “has not accepted responsibility for his sexual misconduct.” This appeal raises the issue of whether (and to what extent) a sex offender’s participation in a sex offender treatment program is evidence that he has accepted responsibility for his misconduct. We conclude that a sex offender’s participation in a sex offender treatment program is some evidence that the offender has accepted responsibility and that such evidence must be considered in conjunction with any other reliable evidence bearing on the subject (e.g., statements by the sex offender). In light of all of the evidence relevant to the subject of defendant’s acceptance of responsibility for his misconduct, including his participation in a sex offender treatment program and his statements minimizing or denying responsibility for his misconduct, the SORA court correctly concluded that the People established, by clear and convincing evidence, that defendant had not genuinely accepted responsibility for his misconduct, and, accordingly, properly assessed defendant 10 points for Factor 12. People v Solomon, 2021 NY Slip Op 07519, First Dept 12-28-21

 

THE MAJORITY CONCLUDED JUROR 15 WAS ONE OF TWO JURORS WHO GAVE A NON-VERBAL ASSURANCE HE WOULD NOT HOLD IT AGAINST THE DEFENDANT IF HE DID NOT TESTIFY; THE DISSENT ARGUED THE RECORD DOES NOT IDENTIFY JUROR 15 AS ONE OF THE TWO JURORS AND DID NOT DESCRIBE THE NATURE OF THE NON-VERBAL ASSURANCE (FOURTH DEPT).

The Fourth Department, over a dissent, determined that a juror gave a non-verbal assurance that he would not hold it against the defendant if he did not testify. The dissent argued the record did not clearly indicate which jurors gave the non-verbal assurance:

We disagree with the dissent that “[t]here is no indication in the record that prospective juror number 15 was one of the two prospective jurors who were acknowledged by the court as having given some form of nonverbal assurance that they could follow its instructions.” Only three prospective jurors were questioned by defense counsel regarding their desire to hear from defendant. In response to the court’s follow-up questions, one prospective juror unequivocally indicated that he could not follow the court’s instructions regarding defendant’s failure to testify, and the court went on to ask, “[o]kay, anyone else? Can you follow that instruction whether you believe in it or not? I mean, obviously we talked about this. You both can? Okay. All right, thanks” … . Having already spoken to one of the three prospective jurors, it is clear that the court was addressing the remaining two prospective jurors who had expressed a desire to hear from defendant—including prospective juror number 15. Furthermore, in denying defense counsel’s for-cause challenge, the court stated on the record that both prospective juror number 15 and prospective juror number 16 “said they could follow [its] instructions. I asked them exactly on that . . . but they said no, they could follow it.”

From the dissent:

There is no indication in the record that prospective juror number 15 was one of the two prospective jurors who were acknowledged by the court as having given some form of a nonverbal assurance that they could follow its instruction, and the nature of the nonverbal assurance provided by those prospective jurors is not identified in the record. People v Smith, 2021 NY Slip Op 07406, Fourth Dept 12-23-21

 

,

THE WARRANTLESS SEARCH OF THE RESIDENCE WAS NOT JUSTIFIED BY THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, determined the warrantless search of defendant’s residence by an evidence technician was not justified under the emergency exception to the warrant requirement. A woman called 911 and reported she had found her roommate unconscious in the residence. When the evidence technician arrived she was told the roommate was dead. The technician then went through the residence taking pictures. She discovered what appeared to be illegal drugs. A search warrant was issued and drugs and a handgun were seized:

The court held that the initial search of the residence by the evidence technician was justified under the emergency exception to the warrant requirement, which permits a warrantless search in the presence of three elements: ” ‘(1) the police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property and this belief must be grounded in empirical facts; (2) the search must not be primarily motivated by an intent to arrest and seize evidence; and (3) there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched’ ” … . …

Prior to engaging in her initial search, … the evidence technician had observed the body in the bathroom, and her suppression hearing testimony did not include any observation suggesting that a crime had occurred, much less that an assailant was still in the home or that there was an ongoing risk of harm … . … [N]othing in the 911 call or in the testimony of the officers who initially arrived at the residence suggested that the woman had been the victim of an attack … . … [T]he evidence technician lacked a ” ‘reasonable basis, approximating probable cause’ ” to associate any emergency that might have once existed, i.e., an unresponsive woman lying in the bathroom, to the search of the bedrooms of the residence … . People v Hidalgo-Hernandez, 2021 NY Slip Op 07404, Fourth Dept 12-23-21

 

, ,

THE JURY’S FINDING THAT THE VICTIM SUFFERED “SERIOUS INJURY” WITHIN THE MEANING OF THE ASSAULT SECOND STATUTE WAS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s assault second conviction, determined the jury’s conclusion that the victim suffered “serious injury” was against the weight of the evidence:

Although the victim testified that he sustained a skull fracture … , the People also introduced expert medical testimony establishing that he did not have a skull fracture. In addition, although the victim testified to ongoing memory issues, there is evidence in the record establishing that he had several other concussions that could also have caused those issues, including one that occurred when he was struck by a metal bat only a few months after this incident. Consequently, we cannot conclude that “the jury was justified in finding . . . defendant guilty beyond a reasonable doubt” … . People v Defio, 2021 NY Slip Op 07400, Fourth Dept 12-23-21

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy