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INCLUSORY CONCURRENT COUNTS DISMISSED (FOURTH DEPT).

The Fourth Department dismissed course of criminal conduct first degree and rape first degree counts as inclusory concurrent counts of predatory sexual assault against a child:

… [C]ounts two and four of the indictment, charging defendant with course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [b]) and rape in the first degree (§ 130.35 [4]), respectively, must be dismissed inasmuch as they are inclusory concurrent counts of counts one and three, respectively, charging defendant with predatory sexual assault against a child (§ 130.96) … . People v Feliciano, 2021 NY Slip Op 04289, Fourth Dept 7-9-21

 

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A SUPPRESSION MOTION CANNOT BE DENIED ON A GROUND NOT RAISED BY THE PEOPLE (FIRST DEPT).

The First Department, holding the appeal in abeyance, noted that a suppression motion may not be denied on a ground not raised by the People:

The motion to suppress should not have been denied on a ground not raised by the People. It is unclear to what extent the suppression court considered and credited the People’s argument regarding probable cause or whether the search was outside of the Fourth Amendment’s purview under the circumstances. Accordingly, we hold the appeal in abeyance and remand for determination, based on the hearing minutes, of the issues raised at the hearing, but not decided … . People v Hatchett, 2021 NY Slip Op 04282, First Dept 7-8-21

 

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THE DENIAL OF DEFENDANT’S REQUEST FOR A CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION REQUIRED REVERSAL (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined County Court should not have denied defendant’s request for a circumstantial evidence jury instruction:

… [T]here was no direct evidence identifying defendant as the shooter or as having possessed a loaded firearm. Indeed, there was no DNA or fingerprint evidence linking defendant to the Colt .45 caliber handgun that was recovered near the scene or the shell casing and projectiles that were found to have been fired from that gun … . Further, the surveillance footage — which only distantly captured the incident — did not depict defendant with a firearm. Nor was it possible to discern from the footage who shot the victim. …

Despite denying defendant’s request for a circumstantial evidence charge, County Court nonetheless gave a modified version of the charge. This modified version, however, was wholly inadequate. Most importantly, the modified version failed to include a critical component of the circumstantial evidence charge — namely, “‘that it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence'” … . Given that County Court improperly denied defendant’s request for a circumstantial evidence charge and that the modified charge was insufficient, “the jury could not have known of its duty to apply the circumstantial evidence standard to the prosecution’s entire case” … . People v Taylor, 2021 NY Slip Op 04258, Third Dept 7-8-21

 

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IN THIS STREET STOP CASE, SOME OF THE POLICE OFFICERS’ TESTIMONY WAS REJECTED AS INCREDIBLE; THE PEOPLE DID NOT DEMONSTRATE THE LEVEL THREE ENCOUNTER WAS JUSTIFIED BY REASONABLE SUSPICION (SECOND DEPT).

The Second Department, dismissing the indictment, determined the People did not demonstrate the level three encounter with the defendant in the street stop was justified by reasonable suspicion. Some of the police officers’ testimony was rejected as incredible:

Officer Washington’s pursuit of the defendant and her attempt to grab him with her right hand were both level three actions requiring reasonable suspicion … . Setting aside those portions of Officer Washington’s account the Supreme Court properly disregarded as incredible, her testimony indicates that she began chasing and grabbing at the defendant in response to his flight. She did not, however, credibly describe anything more than equivocal circumstances in conjunction with the defendant’s flight, meaning her testimony was insufficient to justify police pursuit … . Officer Montano testified that the defendant dropped the gun before he fled, which in turn could justify Officer Washington’s pursuit … . But he also testified that Officer Washington was “trying to take her shield out as she [was] approaching [the defendant] to try to grab him” before the defendant dropped the gun or started to run. Officer Montano thus observed the defendant drop the gun and flee as a result of Officer Washington’s attempt to grab him before she had the reasonable suspicion necessary to do so. “Since this level three intrusion was not justified, it cannot be validated by the officer’s subsequent observation of the firearm” … . People v Rhames, 2021 NY Slip Op 04242, Second Dept 7-7-21

 

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INDICTMENTS IN TWO COUNTIES RELATED TO THE SAME CONTINUOUS CONDUCT AND THE SAME VICTIM; DEFENDANT’S CONVICTION BY GUILTY PLEA IN NASSAU COUNTY AFTER A GUILTY PLEA IN SUFFOLK COUNTY VIOLATED THE DOUBLE JEOPARDY CLAUSE (SECOND DEPT).

The Second Department, on double-jeopardy grounds, reversed defendant’s conviction by guilty plea in Nassau County because he had already pled guilty to the same conduct in Suffolk County:

The charges in Suffolk County and Nassau County related to the same alleged victim. The Suffolk County indictment alleged that the defendant committed acts constituting course of sexual conduct against a child in the first degree and course of sexual conduct against a child in the second degree between approximately April 2015 and March 1, 2016, whereas the Nassau County indictment alleged that the defendant committed acts constituting course of sexual conduct against a child in the second degree between approximately March 1, 2016, and September 1, 2016.

As the indictments in both counties, viewed together, alleged a single continuing and uninterrupted offense against the same alleged victim, constitutional double jeopardy principles precluded a second conviction, in Nassau County, after the Suffolk County criminal action terminated in a conviction by plea of guilty … . People v Kattis, 2021 NY Slip Op 04240, Second Dept 7-7-21

 

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THE VAGUE IDENTIFICATION EVIDENCE RENDERED THE CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the identification evidence was too weak to support a conviction, i.e., the conviction was against the weight of the evidence. Witnesses saw a man toss a bag of drugs over a fence and run away:

Both women saw the man holding what appeared to be a white shopping bag with red circles on it, which he threw over a chain-link fence nearby. The man continued running through the parking lot toward Grand Street.

One of the women described the man she saw as a black man with short, dark hair, wearing a dark baseball cap, a T-shirt, jeans, and sneakers. The man was “a little taller, somewhat taller” than five feet, two inches, but she was not sure. She estimated his weight to be 175 to 185 pounds, but she was not sure. She did not remember if he wore glasses. She could not describe the color of his clothing or give any description of the sneakers he wore. The other woman described the man as a young black male, approximately five feet, seven inches tall, but she could not say for sure, and “guesstimat[ed]” that he may have weighed 170 pounds. She testified that he wore a baseball cap and might have been wearing dark pants and dark sneakers. Neither woman was able to identify the defendant as the man they saw. …

… [N]either of the police witnesses observed the defendant carrying a bag, neither of the bystander witnesses was able to identify the defendant as the man carrying the bag, and no forensic evidence linked the defendant to the bag. … [T]he rational inferences that can be drawn from the trial evidence do not support the convictions beyond a reasonable doubt. Although the vague description provided by the bystander witnesses was not inconsistent with the defendant’s general appearance, we find that such evidence, coupled with nothing more than the defendant’s proximity to the crime scene, is insufficient to establish, beyond a reasonable doubt, the defendant’s identity as the perpetrator … . People v Hawkins, 2021 NY Slip Op 04238, Second Dept 7-7-21

 

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STATEMENTS MADE BY THE COMPLAINANT TO POLICE OFFICERS HOURS AFTER THE ALLEGED INCIDENT SHOULD NOT HAVE BEEN ADMITTED AS EXCITED UTTERANCES (SECOND DEPT).

The Second Department, reversing defendant assault and criminal possession of a weapon convictions, determined the complainant’s hearsay statement should not have been admitted as excited utterances:

… [T]he Supreme Court erred in permitting the People to elicit testimony from two police officers on the content of certain hearsay statements made to them by the complainant when they encountered her at a deli a few hours after the alleged assault. …

“An out-of-court statement is properly admissible under the excited utterance exception when made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication” … . “The essential element of this hearsay exception is that the declarant spoke while under the stress or influence of the excitement caused by the event, so that his [or her] reflective capacity was stilled” … . “[T]he time for reflection is not measured in minutes or seconds, but rather is measured by facts” … . …

… [I]n light of the amount of time that elapsed between the incident and the statements … , and the lack of evidence as to what transpired in the interim … , the People did not establish that the complainant’s capacity for reflection and deliberation remained stilled by the time she spoke to the police officers at the deli … . People v Germosen, 2021 NY Slip Op 04237, Second Dept 7-7-21

 

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THE EVIDENCE OF “PHYSICAL INJURY” WAS LEGALLY INSUFFICIENT, ASSAULT 2ND CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s Assault 2nd conviction, determined the evidence of “physical injury” was legally insufficient:

… [T]he evidence, when viewed in the light most favorable to the prosecution … , was legally insufficient to establish, beyond a reasonable doubt, that the complainant sustained a physical injury within the meaning of Penal Law § 10.00(9). Physical injury is defined as “impairment of physical condition or substantial pain” … . At the time of the incident, the complainant did not seek medical attention and proceeded on his way. He testified at trial that he continued to have pain in his back and neck for approximately three weeks, had pain when he lifted “something” when working in construction, without specifying what “something” was, and was unable to use a pillow to sleep. However, he never sought medical treatment after the incident, claiming that he did not need it, and he used only a topical pain relief cream to relieve pain. Under these circumstances, there was insufficient evidence from which a jury could rationally infer that the complainant suffered substantial pain or impairment of his physical condition … . People v Bowen, 2021 NY Slip Op 04236, Second Dept 7-7-21

 

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THE SENTENCING JUDGE’S REMARKS ABOUT THE DEFENDANT MIMICKED 19TH CENTURY POLYGENISM, A DEBUNKED RACIST IDEOLOGY; SENTENCE VACATED AND REDUCED (THIRD DEPT).

The Third Department, vacating defendant’s sentence, in a full-fledged opinion by Justice Lynch, determined the judge’s racist remarks at the time of sentencing required vacation of the sentence, which the Third Department reduced from 15-years-to-life to five years:

The court, practically right out of the gate, stated, “[Defendant], I feel sorry for you. Because I know that if we were to look in your mind we would find that your brain, your frontal lobes, your decision making processes are probably retarded in growth.” The court then inexplicably and shockingly reiterated, “Because we have learned through medicine, through science, that physical mental abuse especially at a young age will stunt the growth of the frontal lobes which prevents people from making decisions.” The court finally reinforced its own beliefs when it stated, “[T]he sentence here is in a way to make you safe from hurting yourself or others, because I appreciate the fact that your brain is not developed, through no fault of your own.”

In fashioning an appropriate sentence, the trial court is required to weigh and consider societal protection, rehabilitation and deterrence, as well as the circumstances that gave rise to the conviction” … . Factors that have zero role in this process are the skin color of the defendant and racist views — a premise that should not have to be explicitly stated. The commentary focusing on defendant’s brain growth mimics 19th century polygenism, a racist ideology that focused on the claimed inferiority of black people based upon now debunked theories of reduced brain size … . It is shocking that any court, in 2018, would refer to this black defendant’s brain, frontal lobes and retardation of growth in concluding that defendant’s brain was not developed. Defendant is not a child or an adolescent, but was a 41-year-old grown black man at the time of sentencing. County Court’s statements are textbook language that has been used since the late 19th century and even today to justify racist ideologies and beliefs that black people are an inferior race. We find the court’s commentary dehumanizing and offensive.  People v Johnson, 2021 NY Slip Op 04162, Third Dept 7-1-21

 

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THE FOUR-YEAR PRE-INDICTMENT DELAY IN THIS RAPE CASE DID NOT VIOLATE DEFENDANT’S CONSTITUTIONAL SPEEDY-TRIAL RIGHTS; TWO JUSTICE DISSENT (SECOND DEPT).

The Third Department, over a two-justice dissent, determined the four-year pre-indictment delay in this rape case did not violate defendant’s constitutional speedy trial rights. The dissent disagreed:

… [T]he preindictment delay of four years was lengthy and the reasons for the delay proffered by the People certainly left something to be desired. However, the People’s submissions established that the investigation was ongoing, that they were acting in good faith and that there were valid reasons for portions of the delay. Additionally, the charge of rape in the first degree can only be characterized as serious … . Furthermore, there was no period of pretrial incarceration and there is no indication that the defense was prejudiced by the delay. In fact, defendant became aware of the accusations against him shortly after the offense occurred. In our view, the seriousness of the offense, the fact that defendant was not incarcerated pretrial and the absence of any demonstrated prejudice outweigh the four-year delay and the shortcomings in the People’s reasons therefor … . People v Regan, 2021 NY Slip Op 04161, Second Dept 7-1-21

 

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