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SNATCHING A PURSE DANGLING FROM THE VICTIM’S ARM DID NOT INVOVLE THE PHYSICAL FORCE NECESSARY FOR ROBBERY THIRD, RENDERING THE CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE; REDUCED TO PETIT LARCENY (FIRST DEPT).

The First Department, reducing defendant’s robbery 3rd conviction to petit larceny, determined that the physical force element was not involved rendering the conviction against the weight of the evidence:

Judgment * * * unanimously modified, on the facts and as a matter of discretion in the interest of justice, to the extent of reducing the robbery conviction to petit larceny and reducing the sentence on that conviction to time served …. .

Defendant’s conduct in snatching the purse that was dangling from the victim’s arm did not involve the physical force required to sustain a conviction of robbery (see People v Dobbs, 24 AD3d 1043 [3d Dept 2005]; People v Middleton, 212 AD2d 809, 810 [2d Dept 1995]; compare People v Santiago, 62 AD2d 572, 579 [2d Dept 1978], aff’d 48 NY2d 1023 [1980]). Accordingly, defendant’s conviction of robbery in the third degree was not supported by legally sufficient evidence, and that verdict was against the weight of the evidence … . People v Kourouma, 2021 NY Slip Op 01011, First Dept 2-16-21

 

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THE TRANSCRIBED RECORD IS WOEFULLY INCOMPLETE; DEFENDANT DID NOT DEMONSTRATE THE RECORD COULD NOT BE RECONSTRUCTED; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, holding the case and reserving decision, remitted the matter for reconstruction of the record which was missing several vital parts:

… [M]issing and otherwise defective transcripts from the trial preclude appellate review of defendant’s conviction. Indeed, the present state of the record on appeal is “deplorable” … inasmuch as it is missing, inter alia, three days of jury selection, opening statements, summations, final jury instructions, County Court’s handling of a jury note, and the verdict. In addition, the transcription of the testimony of some of the witnesses includes irregularities such as notations stating “omitted,” “untranscribable,” and “blah, blah,” and unintelligible strings of characters that appear to be in code. We reject defendant’s contention, however, that summary reversal and a new trial is the appropriate remedy at this point. The “loss of reporter’s minutes is rarely sufficient reason in itself for reversing a conviction” … . The Court of Appeals has held that “the right of a defendant to a fair appeal, or for that matter a fair trial, does not necessarily guarantee him [or her] a perfect trial or a perfect appeal” … . “To overcome the presumption of regularity, a defendant must show not only that minutes are missing, but also ‘that there were inadequate means from which it could be determined whether appealable and reviewable issues were present’ ” … . It is only when a defendant shows that a reconstruction is not possible that a defendant is entitled to summary reversal and a new trial … .

Here, we conclude that defendant failed to establish that alternative means to provide an adequate record are not available … .There is no indication that defendant’s former attorneys could not participate in a reconstruction hearing, despite the fact that one of them is now employed by the District Attorney’s Office. There is also no indication that the now-retired trial judge could not participate as well … . People v Meyers, 2021 NY Slip Op 00919, Fourth Dept 2-11-21

 

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ALTHOUGH DEFENDANT ACTED SUSPICIOUSLY THE POLICE DID NOT HAVE A REASONABLE SUSPICION HE WAS ENGAGED IN CRIMINAL ACTIVITY AT THE TIME DEFENDANT FLED; DEFENDANT’S SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing County Court, over a two-justice dissent, determined the police did not have reasonable suspicion defendant was involved in criminal activity at the time he fled and the police pursued him. Therefore his suppression motion (re: a discarded weapon and statements) should have been granted and the indictment dismissed. Defendant was a passenger in the back seat of a car stopped for a traffic infraction. When the occupants were asked to step out of the car, defendant ran:

… [T]he officers stopped the vehicle for a traffic infraction as opposed to a call related to a particular crime. Although defendant appeared to reach toward his waistband, he never touched his waistband and there was no other indication of a weapon, such as a bulge or the visible outline of a gun … . A suspect’s action in grabbing at his or her waistband, standing alone, is insufficient to establish reasonable suspicion of a crime … .

Defendant’s nervousness, use of a bottle cap, and “blading” do not provide additional specific circumstances indicating that defendant was engaged in criminal activity. There is no doubt that defendant engaged in furtive and suspicious activity and that his pattern of behavior, viewed as a whole, was suspicious, but there is nothing in this record to establish that the officers had a reasonable suspicion of criminal conduct to justify the pursuit … . People v Williams, 2021 NY Slip Op 00983, Fourth Dept 2-11-21

 

THE PEOPLE DID NOT OBTAIN PERMISSION TO PRESENT TO A SECOND GRAND JURY RENDERING THE SECOND INDICTMENT VOID (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the indictment to which defendant plead guilty was void because the People did not obtain the court’s permission to present to a second grand jury after the first indictment was dismissed:

… [T]he People failed to seek leave pursuant to CPL 210.20 (4) to resubmit the matter to a second grand jury after County Court granted that part of defendant’s omnibus motion seeking to dismiss the original indictment as against him on the ground that the evidence before the first grand jury was legally insufficient. “[T]he failure to obtain leave of court to present a matter to a second grand jury, where required, deprives the grand jury of jurisdiction to hear the matter, thereby rendering the indictment void . . . , which, in turn, deprives the court of jurisdiction” … . Although, here, defendant failed to make a motion to dismiss the indictment issued by the second grand jury pursuant to CPL 210.20 (1), the failure of the People to obtain from the court authorization to submit the matter to the second grand jury deprived the second grand jury of jurisdiction to hear the matter, thereby rendering void the indictment issued by the second grand jury and depriving the court of jurisdiction, and the right to challenge a lack of jurisdiction cannot be waived by defendant … . Under these circumstances, we must dismiss the indictment issued by the second grand jury that is at issue on this appeal … . We note that there is no limit to the number of times that the People may resubmit a charge to a grand jury with leave pursuant to CPL 210.20 (4) … . People v Owens, 2021 NY Slip Op 00958, Fourth Dept 2-11-21

 

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THE TESTIMONY OF THE ACCOMPLICE WAS SUFFICIENTLY CORROBORATED; THE INDICTMENT WAS SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the indictment should not have been dismissed because there was sufficient corroboration of the testimony of an accomplice:

The People contend that County Court erred in determining that the grand jury testimony of defendant’s accomplice was not sufficiently corroborated. We agree. The corroboration requirement is satisfied by evidence that ” ‘tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth’ ” … . Sufficient corroboration may be provided by evidence that ” ‘harmonize[s]’ ” with the accomplice testimony, i.e., when “read with the accomplice’s testimony, [it] makes it more likely that the defendant committed the offense” … .

Here, the accomplice’s testimony that, on a specific date, defendant and the accomplice had a telephone conversation regarding the alleged criminal conduct is corroborated by defendant’s cell phone records, which establish “that cell phone calls were made as the accomplice[] testified” … . The accomplice’s testimony is also corroborated by, among other things, the testimony of non-accomplices and the transcript of the criminal jury trial during which the charged offenses were allegedly committed  … . People v Baska, 2021 NY Slip Op 00947, Fourth Dept 2-11-21

 

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DEFENDANT WAS CONVICTED OF DIRECTING THE CODEFENDANT TO KILL; THE CODEFENDANT WAS ACQUITTED OF MURDER; THE VERDICTS WERE REPUGNANT; DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE REPUGNANT VERDICTS (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined defendant’s attorney was ineffective for failing to object to the repugnant verdict. Defendant was convicted of directing the codefendant to shoot and kill the victim. The codefendant was acquitted of the murder charge:

We agree with defendant … that he was denied meaningful representation at trial inasmuch as there is no reasonable and legitimate trial strategy for defense counsel’s failure to object to the repugnant verdicts  … . …

… “[A] conviction will be reversed [as repugnant] only in those instances where acquittal on one crime as charged to the jury is conclusive as to a necessary element of the other crime as charged, for which the guilty verdict was rendered” … . “The determination as to the repugnancy of the verdict is made solely on the basis of the trial court’s charge and not on the correctness of those instructions” … . The repugnancy doctrine also applies when one codefendant is convicted of a crime while another is acquitted of the same crime … . …

By acquitting the codefendant, the jury negated an essential element of the crime for which defendant was charged, i.e., that the codefendant committed the offense at defendant’s direction … . People v Jennings, 2021 NY Slip Op 00944, Fourth Dept 2-11-21

 

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AN OFFICER MAY FOLLOW A SUSPECT IN A POLICE VEHICLE; THE OFFICER DID NOT GET OUT OF HIS VEHICLE AND CHASE THE DEFENDANT UNTIL HE SAW THE DEFENDANT DISCARD A WEAPON; THE SEIZURE OF THE WEAPON WAS NOT THE RESULT OF UNLAWFUL POLICE CONDUCT (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant did not discard a weapon in response to unlawful police conduct. Therefore the weapon should not have been suppressed. In response to a 911 call a police officer in a car was observing the defendant. The officer pursued the defendant only after he saw the defendant discard a weapon:

As the … officer approached the scene, he observed defendant in a black coat walking westbound on the sidewalk. Upon seeing the third officer in his vehicle, defendant ran down a driveway. The … officer pulled into the driveway of that residence and, while still in the vehicle, observed defendant toss what appeared to be a long-barreled handgun over the fence while he ran. It was at that point that the third officer exited his vehicle and chased defendant, ultimately apprehending him. A loaded .22-caliber firearm was found on the ground in the backyard adjacent to the driveway.

… “[A]]n officer may use his or her vehicle to unobtrusively follow and observe an individual without elevating the encounter to a level three pursuit” … . A police-civilian encounter will escalate to a level three encounter, i.e., a forcible stop or seizure, “whenever an individual’s freedom of movement is significantly impeded . . . Illustrative is police action which restricts an individual’s freedom of movement by pursuing one who, for whatever reason, is fleeing to avoid police contact” … .

Here, the … officer had activated his emergency lights en route to the scene and before he encountered defendant. Upon observing defendant walking on the sidewalk, the third officer stopped his vehicle in a driveway. At no point did the third officer engage in any particularized act toward defendant or restrict his freedom of movement … . People v Moore, 2021 NY Slip Op 00927, Fourth Dept 2-11-21

 

SYNTHETIC MARIJUANA IS NOT “DANGEROUS CONTRABAND” WITHIN THE MEANING OF THE “PROMOTING PRISON CONTRABAND” STATUTES (FOURTH DEPT).

The Fourth Department, reducing defendant’s conviction of promoting prison contraband first degree to second degree, determined that synthetic marijuana did not meet the definition of “”dangerous contraband:”

The Court of Appeals has “conclude[d] that the test for determining whether an item is dangerous contraband is whether its particular characteristics are such that there is a substantial probability that the item will be used in a manner that is likely to cause death or other serious injury, to facilitate an escape, or to bring about other major threats to a detention facility’s institutional safety or security” … . “Generally, dangerous contraband refers to weapons . . . Items that facilitate escape are also dangerous contraband” (id. [internal quotation marks omitted]). Conversely, small amounts of marihuana, “unlike other contraband such as weapons, are not inherently dangerous and the dangerousness is not apparent from the nature of the item” … . Additionally, we note that the substance at issue here is a synthetic drug that mimics the effects of THC, the active ingredient in marihuana, and “the conclusion that . . . small amounts of marihuana . . . are not dangerous contraband is informed by the Legislature’s more lenient treatment of marihuana offenses, as opposed to those involving other drugs” … . People v Mclamore, 2021 NY Slip Op 00926, Fourth Dept 2-11-21

 

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THE FAILURE TO INFORM DEFENDANT AT THE TIME OF THE PLEA THAT HIS SENTENCE WOULD INCLUDE A SPECIFIC PERIOD OF POSTRELEASE SUPERVSION REQUIRED VACATION OF THE PLEA; BECAUSE THE DEFENDANT DID NOT RECEIVE TIMELY NOTICE OF THE POSTRELEASE SUPERVISION, PRESERVATION OF THE ERROR WAS NOT NECESSARY (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant should have been informed that postrelease supervision (PRS) would be part of his sentence. Under the circumstances preservation of the error for appeal was not necessary:

Pursuant to the plea agreement, defendant entered his plea in exchange for a promise of youthful offender adjudication and a sentence of probation. Following the entry of the plea, the court informed defendant that, if he violated the terms of the plea agreement, the court would “not keep the promise [it] made regarding [his] sentence” and that it could “impose a much more significant or higher sentence.” The court did not specify what that higher sentence could entail, nor did it mention the possibility of postrelease supervision (PRS).

Prior to sentencing, defendant violated the terms of the plea agreement when he failed to cooperate with the probation department and was arrested on new felony charges. The court held a hearing pursuant to People v Outley (80 NY2d 702 [1993]) and determined that there was a valid basis on which to enhance the sentence. The prosecutor then requested that the court sentence defendant as an adult and impose a sentence of 15 years of incarceration with five years of PRS. The court imposed a determinate sentence of 7½ years of incarceration plus five years of PRS.

The court was required “to advise defendant that his enhanced sentence would include PRS, and was also required to specify the length of the term of PRS to be imposed” … . Although defendant did not object to the imposition of PRS or move to withdraw his plea or to vacate the judgment of conviction, this case falls under an exception to the preservation rule inasmuch as “[t]he prosecutor’s mention of PRS immediately before sentencing was not the type of notice under People v Murray (15 NY3d 725 [2010]) that would require defendant to preserve the issue” … . People v Stanley, 2021 NY Slip Op 00924, Fourth Dept 2-11-21

 

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USING ANOTHER’S CREDIT CARD ACCOUNT NUMBER TO MAKE PURCHASES, WITHOUT PHYSICAL POSSESSION OF THE CARD, SUPPORTS A GRAND LARCENY CONVICTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a two-judge dissent, determined that using a credit card number without physically possessing the credit card itself supported the grand larceny conviction:

The primary question presented by this appeal is whether the definition of credit card for purposes of Penal Law § 155.00 (7) includes the credit card account number, such that the People need not prove that a defendant physically possessed the tangible credit card in order to support a conviction of grand larceny based upon credit card theft. Here, defendant’s conviction of grand larceny in the fourth degree was based on defendant’s theft of the victim’s credit card account number to purchase goods, although there was no evidence that defendant possessed the physical card itself. We conclude that the definition of credit card in General Business Law § 511 (1), as supplemented by General Business Law § 511-a, is the controlling definition as designated by Penal Law § 155.00 (7) and, as a result, the evidence is legally sufficient to support defendant’s conviction of grand larceny for stealing an intangible credit card account number. People v Badji, 2021 NY Slip Op 00897, CtApp 2-11-21

 

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