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SECOND DEGREE MURDER COUNT DISMISSED A LESSER INCLUDED COUNT OF FIRST DEGREE MURDER (FOURTH DEPT).

The Fourth Department dismissed the second degree murder count as a lesser included count of first degree murder. People v Beard, 2020 NY Slip Op 07763, Fourth Dept 12-23-20

 

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THE APPEAL WAIVERS WERE NOT EXECUTED UNTIL SENTENCING AND WERE THEREFORE INVALID; ARGUMENTS ABOUT A LATE FILED OMNIBUS MOTION AND DEFENSE COUNSEL’S FAILURE TO FILE OMNIBUS MOTIONS DID NOT SURVIVE THE GUILTY PLEAS (FOURTH DEPT).

The Fourth Department determined the waivers of appeal were invalid and defendant’s arguments the court should have considered a late omnibus motion and defense counsel was ineffective for failing to file omnibus motions did not survive the guilty pleas:

The written waivers do not establish valid waivers because they were not executed until sentencing … and, even assuming, arguendo, that the written waivers had been executed at the time of the pleas, the court “failed to confirm that [defendant] understood the contents of the written waivers” … . …

Defendant contends in appeal No. 1 that the court abused its discretion in refusing to entertain, in the interest of justice and for good cause shown … , that part of his untimely omnibus motion seeking a Huntley hearing. We conclude, however, that defendant, by pleading guilty, forfeited appellate review of that contention. …

To the extent that defendant further contends in all three appeals that his first attorney’s failure to file a timely omnibus motion constituted ineffective assistance of counsel, we conclude under these circumstances that defendant’s contention likewise does not survive his guilty pleas. People v Parker, 2020 NY Slip Op 07747, Fourth Dept 12-23-20

 

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AN EXCEPTION TO THE BEST EVIDENCE RULE APPLIED, ALLOWING TESTIMONY DESCRIBING THE CONTENTS OF DESTROYED VIDEO SURVEILLANCE (FOURTH DEPT). ​

The Fourth Department, in a full-fledged opinion by Justice Bannister, determined an exception to the best evidence rule applied and testimony about the contents of a destroyed video surveillance was properly admitted in this grand larceny case:

Defendant appeals from a judgment … arising from the theft of wireless speakers valued in excess of $3,000 from a Target store … . Prior to trial, the People moved in limine for permission to introduce testimony from the store’s asset protection team leader (APT leader) regarding the contents of destroyed video surveillance footage that had depicted the incident. * * *

The best evidence rule “simply requires the production of an original writing where its contents are in dispute and sought to be proven” …  “The rule protects against fraud, perjury, and inaccurate recollection by allowing the [factfinder] to judge a document by its own literal terms” … . “Under a long-recognized exception to the best evidence rule, secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence . . . and has not procured its loss or destruction in bad faith” … . The proponent of the secondary evidence “has the heavy burden of establishing, preliminarily to the court’s satisfaction, that it is a reliable and accurate portrayal of the original. Thus, as a threshold matter, the trial court must be satisfied that the proffered evidence is authentic and correctly reflects the contents of the original before ruling on its admissibility” … . * * *

… [T]he People met their burden of establishing that the APT leader’s testimony regarding the unpreserved footage was a reliable and accurate portrayal of the contents of that footage … . People v Jackson, 2020 NY Slip Op 07744, Fourth Dept 12-23-20

 

DESPITE THE HORRIFIC NATURE OF THE CRIME, DEFENDANT’S SENTENCE WAS REDUCED BECAUSE OF HIS MENTAL ILLNESS AND INTELLECTUAL DISABILITY (FIRST DEPT).

The First Department, despite the horrific nature of the crime in this attempted murder and robbery case, over a dissent, reduced defendant’s sentence from 14 to 10 years because of his mental illness and intellectually disability:

This Court takes very seriously the severity of the injuries inflicted on the two victims in this case, and our reduction of defendant’s prison sentence in no way diminishes our horror at the pain and suffering they endured at the hands of defendant and his codefendants. However, based on the record before us, we find that defendant presents an extraordinary circumstance meriting the use of our interest of justice powers to reduce his prison sentence.

First, the record unequivocally shows that defendant has suffered intellectual and mental deficiencies since his childhood, which our Court has held renders a defendant’s conduct less blameworthy … .  Second, defendant’s cognitive disabilities rendered him overly susceptible to influence and manipulation … . Here, prior to the incident defendant had no felony or misdemeanor convictions and only one youthful offender adjudication stemming from a school fight. For the first 19 years of his life, defendant exhibited no inclination towards committing crime, let alone violent crime. This strongly suggests that defendant’s association with codefendant Torres, which began just one to two years prior to the incident, played an outsize influence on defendant and his role in the attacks. Third, defendant was 19 at the time of the incident, which, in combination with his cognitive deficiencies, rendered him even more susceptible to negative influences … . We have long held that a defendant’s young age may render the individual less culpable … . Finally, in research cited by defendant, people with serious psychiatric disorders are more likely to be violently victimized and housed in segregation while incarcerated. … As defendant himself stated in his CPL article 730 examination, he attempted suicide over 35 times while at Rikers Island. We find, therefore, that an extended term of incarceration would have an extremely harsh impact on defendant. People v Watt, 2020 NY Slip Op 07721, First Dept 12-22-20

 

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A PHOTOGRAPH OF DEFENDANT WITH A HANDGUN TAKEN SIX WEEKS BEFORE THE SHOOTING WAS PROPERLY ADMITTED IN EVIDENCE AS TENDING TO SHOW HIS IDENTITY AS THE SHOOTER (FIRST DEPT).

The First Department noted that a photograph of defendant with a small handgun taken six weeks before the charged shooting was properly admitted in evidence:

A photograph of defendant holding a small handgun, taken approximately six weeks before the charged shooting, and recovered from defendant’s phone pursuant to the warrant, was properly admitted. It could be inferred from video footage introduced at trial that a small handgun was used in the shooting. As in People v Alexander (169 AD3d 571 [1st Dept 2019], lv denied 34 NY3d 927 [2019]), the photograph was “relevant to show that defendant had access to such a weapon, thus tending to establish his identity as the perpetrator, and there was no requirement of proof that the [firearm] in the photograph was the actual weapon used in the crime” … . People v Bush, 2020 NY Slip Op 07722, First Dept 12-22-20

 

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THE OMISSION OF NON-ELEMENTAL FACTUAL INFORMATION, HERE THE TIME OF THE INCIDENT, FROM THE WAIVER OF INDICTMENT FORM WAS A DEFECT WAIVED BY THE GUILTY PLEA (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the omission of the time of the incident from the waiver of indictment form was a defect waived by the guilty plea:

Shortly after the Appellate Division rendered its decision, we held in People v Lang (34 NY3d 545, 567 [2019]) that any “omission from the indictment waiver form of non-elemental factual information that is not necessary for a jurisdictionally-sound indictment is [] forfeited by a guilty plea” and “must be raised in the trial court” … . The time of incident is not an element of second-degree criminal possession of a weapon (Penal Law § 265.03 [2]), and defendant was on notice of the crime charged. Therefore, Lang controls. People v Zaquan Walley, 2020 NY Slip Op 07691, CtApp 12-22-20

 

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UPWARD DEPARTURE SUPPORTED BY EVIDENCE DEFENDANT COMMITTED RAPE TO TAKE REVENGE UPON SOMEONE OTHER THAN THE VICTIM; THE FACT DEFENDANT HAD BEEN DEPORTED DID NOT RENDER THE APPEAL MOOT (CT APP).

The Court of Appeals, in a brief memorandum decision, upheld the Appellate Division’s finding that the upward departure was justified because it was based on a risk factor not addressed the Sex Offender Registration Act (SORA) Guidelines. The court noted that the fact defendant had been deported did not render the appeal moot:

Under the circumstances presented here, we reject the People’s argument that defendant’s appeal is rendered moot by his deportation … . On the merits, we conclude that it was not an abuse of discretion for the Appellate Division to sustain the upward departure based on the People’s proof that defendant raped the victim in order to take revenge upon someone other than the victim—a risk factor not adequately captured by the Guidelines. People v Rosario, 2020 NY Slip Op 07688, CtApp 12-22-20

 

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DEFENDANT, WHO ACCEPTED POSSESSION OF THE WEAPON FROM HIS FRIEND, DID SO IN ANTICIPATION OF A POSSIBLE CONFRONTATION; DURING THE CONFRONTATION DEFENDANT SHOT TWO PEOPLE; THE ARGUMENT THAT DEFENDANT ACTED IN SELF-DEFENSE DID NOT RENDER DEFENDANT’S POSSESSION OF THE WEAPON TEMPORARY AND LAWFUL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over two concurring opinions, determined defendant was not entitled to a jury instruction on temporary and lawful possession of a firearm. Defendant was leaving a friend’s apartment building when he saw a man, Carson, pull a gun out of his pocket. Defendant and Carson had a history of violent confrontations, including shootings. Defendant went back to his friend’s (Foe’s) apartment. Foe picked up a loaded gun and offered to walk defendant out of the building. When they got to the lobby Foe handed defendant the gun. When defendant saw Carson he believed Carson was about to shoot him and defendant shot Carson and a bystander:

… “[A] defendant may not be guilty of unlawful possession if the jury finds that [the defendant] found the weapon shortly before [the defendant’s] possession of it was discovered and [the defendant] intended to turn it over to the authorities” … . We have also indicated that temporary and lawful possession may result where a defendant “took [the firearm] from an assailant in the course of a fight” … and the circumstances do not otherwise evince an intent to maintain unlawful possession of the weapon . In such scenarios, “[t]he innocent nature of the possession negates . . . the criminal act of possession” … . Ultimately, whether the weapon is found fortuitously or obtained by disarming an attacker, “the underlying purpose of the charge is to foster a civic duty on the part of citizens to surrender dangerous weapons to the police” … . …

… [D]efendant’s possession did not “result temporarily and incidentally from the performance of some lawful act, [such] as disarming a wrongful possessor” or unexpected discovery … . Rather, under the circumstances presented here, defendant’s contention that his possession should be legally excused on the grounds of self-defense amounts to a claim that he was entitled to possess the weapon for his protection. Even crediting defendant’s testimony that he had been confronted by Carson at the building’s exit earlier and that Carson had displayed a firearm at that time, defendant testified that he then safely retreated to Foe’s apartment. There was no evidence suggesting that Carson chased after defendant when he re-entered the building, or that Carson had any awareness of defendant’s location in the building. Further, defendant admitted that he accepted possession of the firearm from Foe in the stairwell, at a time when he was unaware of Carson’s whereabouts and was not facing any imminent threat to his safety. Defendant then chose to retain possession of the firearm and to enter the lobby with the weapon in his hand. Under these circumstances, the only reasonable conclusion to be drawn from the evidence is that defendant armed himself in anticipation of a potential confrontation; however, the law is clear that defendant “may not avoid the criminal [possession] charge by claiming that he possessed the weapon for his protection” … . People v Williams, 2020 NY Slip Op 07664, CtApp 12-17-20

 

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EVEN THOUGH THE DEFENDANT ARGUED HE NEVER HAD ACTUAL OR CONSTRUCTIVE POSSESSION OF THE WEAPON FOUND IN ANOTHER’S HOUSE, DEFENDANT WAS ENTITLED TO THE “INVOLUNTARY POSSESSION” JURY INSTRUCTION; POSSESSION, EITHER ACTUAL OR CONSTRUCTIVE, IS NOT VOLUNTARY IF IT IS FOR SO BRIEF A PERIOD OF TIME THAT THE DEFENDANT COULD NOT HAVE TERMINATED POSSESSION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a three-judge dissent, reversing defendant’s conviction, determined there was a reasonable view of the evidence which supported a jury instruction on voluntary (involuntary) possession of a weapon. In addition to actual and constructive possession, there is the concept of involuntary possession. Both actual and constructive possession can be involuntary if it is so fleeting that the defendant was not able to terminate possession. Defendant argued he was a guest for the night in the house where the weapon was found and did not possess it all, either actually or constructively. The Court of Appeals noted that “involuntary possession” conflicted with “no possession at all,” but the jury still should have been instructed on involuntary possession because there was evidence to support the instruction:

The distinction among constructive, knowing, and voluntary possession that defendant emphasizes is reflected in the Criminal Jury Instructions’ model charge on voluntary possession, which provides that “[p]ossession . . . is voluntary when the possessor was aware of [their] physical possession or control . . . for a sufficient period to have been able to terminate the possession” (CJI2d [NY] Voluntary Possession § 15.00 [2] … . * * *

… [T]he trial court denied the charge here, not because the requested charge lacked evidentiary support, but because the court considered the proposed language more confusing than helpful. … . This determination was in error because the requested charge did not inject confusion into the instructions. Rather, it addressed an entirely different aspect of the charged possessory crime: the temporal requirement of voluntary possession. Indeed, the requested charge would have clarified the law because the charge, as erroneously given, allowed the jury to conclude that if defendant had control over the area where the gun was found—i.e., the bedroom—then he had constructive possession of the gun, regardless of how long he was actually aware of its presence. This is not an accurate statement of the relevant law where, as here, there is a reasonable view of the evidence that the possession may not have been voluntary. People v J.L., 2020 NY Slip Op 07663, CtApp 12-17-20

 

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THE SEXUAL INTERCOURSE WAS DEEMED NONCONSENSUAL SOLELY BECAUSE THE VICTIM WAS 14; THE DEFENDANT WAS 27; DEFENDANT WAS NOT ENTITLED TO A DOWNWARD DEPARTURE TO RISK LEVEL ONE; THERE WAS A SUBSTANTIVE DISSENT (FIRST DEPT).

The First Department, over a dissent, determined defendant was not entitled to a downward risk level departure from level two to level one. The defendant was 27 when he had sexual intercourse with the fourteen-year-old victim. The majority argued the age difference precluded a departure:

The record shows that this 27 year-old defendant engaged in nonconsensual sexual intercourse with the victim, who was 14 years old, the only relevant crime considered by the SORA court regarding his risk level designation. * * *

While courts have recognized that sexual conduct that was nonconsensual solely by virtue of age may result in an over-assessment in risk level designation, those cases did not involve a defendant who was nearly twice as old as the victim, as in this case … . People v Romulus, 2020 NY Slip Op 07512, First Dept 12-15-20

 

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