You are here: / Criminal Law

CONCURRENT INCLUSORY COUNT MUST BE DISMISSED DESPITE FAILURE TO REQUEST THAT IT BE PRESENTED TO THE JURY IN THE ALTERNATIVE IN THIS CRIMINAL CONTEMPT PROSECUTION (SECOND DEPT).

The Second Department determined the inclusory concurrent count must be dismissed despite the failure to request that it be presented to the jury in the alternative:

… [U]nder the facts of this case, the defendant could not have committed the crime of criminal contempt in the first degree as charged in count 10 of the indictment (Penal Law § 215.51[b][i]) without also having committed the crime of criminal contempt in the second degree as charged in count 11 of the indictment (Penal Law § 215.50[3]). As these counts were “inclusory concurrent counts” as defined by CPL 300.30(4), a verdict of guilty upon the greater is deemed a dismissal of every lesser (see CPL 300.40[3][b]). Thus, although the defendant did not request that the subject counts be charged in the alternative, the conviction of the lesser count must be dismissed … . People v Bentley, 2020 NY Slip Op 04753, Second Dept 8-26-20

 

PEOPLE’S REQUEST TO WITHHOLD DISCOVERY UNTIL FIFTEEN DAYS BEFORE A HEARING OR TRIAL, FOR THE WITNESSES’ SAFETY, SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, in a memorandum which did not discuss the facts, determined the People’s request to withhold discovery until 15 days before a hearing or trial, for the witnesses’ safety, should have been granted:

Pursuant to CPL 245.70(6), a party who has unsuccessfully sought, or opposed the granting of, a protective order relating to the name, address, contact information, or statements of a person may obtain expedited review by an individual justice of the intermediate appellate court to which an appeal from a judgment of conviction would be taken. Where, as here, “the issue involves balancing the defendant’s interest in obtaining information for defense purposes against concerns for witness safety and protection, the question is appropriately framed as whether the determination made by the trial court was a provident exercise of discretion” … .

Applying these standards to the matters at hand, I conclude that the Supreme Court’s determination to grant the People’s request only to the extent indicated was an improvident exercise of discretion. Under the particular facts and circumstances presented, concerns for witness safety and protection far outweigh the usefulness of the discovery of the material or information in question. People v Morales-Aguilar, 2020 NY Slip Op 04721, Second Dept 8-24-20

 

,

THE PRIOR BAD ACT EVIDENCE EXCEEDED THAT ALLOWED BY THE MOLINEUX RULING, DEFENDANT’S MURDER CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department determined defendant’s murder conviction must be reversed in the interest of justice because the evidence of prior bad acts exceeded that allowed by the court’s Molineux ruling:

Defendant also challenges certain testimony by the victim’s niece as being beyond the scope of County Court’s Molineux ruling. As part of its Molineux application, the People requested that they be allowed to offer proof about instances of verbal and emotional abuse by defendant toward the victim. The court granted the application and permitted the People to elicit such evidence. At trial, however, the niece testified that the victim told her that defendant once grabbed her arm in a store because he did not like who she was talking to and that bruises on her legs were caused by defendant. The niece further testified that she observed defendant kick the victim in the stomach. That said, incidents of physical abuse by defendant were not part of the People’s Molineux application. As such, the niece’s testimony, some of which was hearsay, exceeded the scope of the court’s Molineux ruling and deprived defendant of a fair trial … .

Because the evidence of defendant’s guilt was not overwhelming, there must be a new trial … . We note that defendant did not object to the niece’s testimony and, consequently, failed to preserve this argument . Despite this infirmity, we deem it appropriate under the particular circumstance… s of this case to exercise our interest of justice jurisdiction and reverse the judgment (see CPL 470.15 [6] [a]). People v Callahan, 2020 NY Slip Op 04618, Third Dept 8-20-20

 

, ,

THE SIX ‘LURING A CHILD’ CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing the “luring a child” convictions, over a two-justice dissent, determined the convictions were against the weight of the evidence. The court noted that if the evidence of an element of an offense is legally insufficient the conviction of that offense is against the weight of the evidence:

The evidence at trial established that, when defendant was 30 years old, he met 16-year-old BD on an adult dating website. The two thereafter communicated via cell phone, text messages, Facebook messaging, Skype and Snapchat. Shortly thereafter, NS, a friend of BD, initiated contact with defendant through Facebook. NS was also 16 years old at the time. While communicating for weeks with both BD and NS via cell phone, text messages, Facebook, Skype and Snapchat, defendant lied about his age and his military status, among other things. Also, he flattered the girls by saying that they were “really cute” and that he “really liked” them. Both girls lived in Ontario County and were juniors in high school.

Defendant eventually met NS in person and drove her to his house in Monroe County, where they had sexual intercourse. Over the ensuing two or three weeks, defendant drove NS to his house three more times to engage in sexual activity. In the meantime, defendant twice had both sexual intercourse and oral sexual contact with BD, once at her house in Ontario County after picking her up at school and driving her home, and the other time at his house after driving her there. * * *

… [T]o convict defendant of luring a child, the People were required to establish that, on or about the dates alleged in the indictment, defendant lured the victims into his motor vehicle, that the victims were less than 17 years of age, and that defendant engaged in that activity for the purpose of committing a felony sex offense against the victims … . In our view, the People failed to prove that defendant lured the victims into a motor vehicle. …

The fact that defendant drove the victims to his house days and weeks later cannot transform his statements into luring. People v Ringrose, 2020 NY Slip Op 04719, Fourth Dept 8-20-20

 

,

THE JURY FOUND THE DEFENDANT SEX OFFENDER DID NOT SUFFER FROM A MENTAL ABNORMALITY WHICH AFFECTED HIS ABILITY TO CONTROL HIS BEHAVIOR AND WAS THEREFORE ENTITLED TO RELEASE; UPON THE STATE’S MOTION THE VERDICT WAS SET ASIDE; THE APPELLATE DIVISION REVERSED FINDING THAT THE STATE WAS NOT PREJUDICED BY ALLEGED JUROR MISCONDUCT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined the sex offender civil management verdict, which found defendant did not suffer from a mental abnormality and was therefore entitled to release, should not have been set aside. The state argued the jury foreperson’s telling the jury that, according to the foreperson’s father, “if inmates wanted to do something in prison they could do it” constituted jury misconduct. The remark was relevant to the expert testimony about the ways an inmate can act out sexually. The defendant argued he had not been cited for sexual misbehavior during his 30 years in prison, so the evidence he could have acted out was relevant to his ability to control his behavior:

… [W]e conclude that petitioner [the state] was not prejudiced by the foreperson’s failure to disclose during voir dire that his father previously worked as a correction officer… . We note that several of the jurors in this case either worked in prison or had close relations who worked as correction officers or in law enforcement. Neither party seems to have considered that to have been a disqualifying attribute because those jurors were selected to serve on the jury. Indeed, because the trial was held in the shadow of Auburn Correctional Facility, it would have been difficult for the parties to select 12 qualified jurors with no connection to the prison. Petitioner’s attorney was well aware of that fact and seized upon it during summation, urging the jurors to draw upon their knowledge of the internal workings of prisons in order to decide the case. Petitioner had every reason to believe that a jury packed with prison employees and their relations would likely return a verdict unfavorable to the convicted offender. Petitioner cries foul only because its strategy backfired. Matter of State of New York v Donald G., 2020 NY Slip Op 04716, Fourth Dept 8-20-20

 

,

ALTHOUGH THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING A VIOLENT COURTROOM SCENE IN A MOVIE TO BE PLAYED FOR THE JURY BECAUSE THE DEFENDANT HAD QUOTED DIALOGUE FROM IT, THE ERROR WAS HARMLESS; THE DISSENT ARGUED IT WAS NOT HARMLESS ERROR (FOURTH DEPT).

The Fourth Department determined it was harmless error to allow the prosecutor in this murder case to show part of a movie from which the defendant had posted dialogue. The dissent argued the error was not harmless:

… [T]he court abused its discretion when it permitted the prosecutor to play for the jury a scene from the film, The Boondock Saints. The scene takes place inside a courtroom, where the protagonists threaten everyone with pistols. Some people in the scene, presumably those playing the jurors, watch in astonishment while ducking for cover. The protagonists make loud, self-aggrandizing statements, declaring themselves vigilantes tasked by God with bringing justice to the world (e.g. “Each day we will spill their blood till it rains down from the sky!”). For those who do not behave morally, the protagonists offer a message: “One day you will look behind you and you will see we three . . . and we will send you to whichever God you wish.” The protagonists put their guns to the back of the defendant’s head while he is knelt on the floor in an execution-style pose. Gunfire erupts, and everyone runs out of the courthouse screaming.

The prosecutor’s ostensible reason for playing that particular scene was to rebut defendant’s testimony that he was coerced by his accomplice into participating in the murder and subsequently lying to the police. The relevance of that scene is that defendant posted quotations from it on social media two days after the victim’s murder and one day before he gave the allegedly coerced statement to the police. …

Because the probative value of the scene from The Boondock Saints video was substantially outweighed by the danger that its admission would prejudice defendant or mislead the jury, the court abused its discretion in admitting it … . People v Horn, 2020 NY Slip Op 04712, Fourth Dept 8-20-20

 

,

DEFENDANT WAS ARRESTED BY OFFICERS WHO BELIEVED HE WAS DEFENDANT’S BROTHER FOR WHOM THERE WERE OUTSTANDING ARREST WARRANTS; THE PEOPLE FAILED TO MEET THEIR BURDEN OF GOING FORWARD AT THE SUPPRESSION HEARING BECAUSE THEY FAILED TO PROVE THE EXISTENCE AND VALIDITY OF THE ARREST WARRANTS (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, over a two-justice dissent, determined defendant’s motion to suppress the weapon seized from after he fled the police should have been granted. At the suppression hearing the officers testified they thought defendant was defendant’s brother and approached defendant because they aware of outstanding warrants for the brother’s arrest. To meet their burden of going forward at the suppression hearing, the People were required to prove the existence and validity of the arrest warrants, but no such proof was presented:

… ” [T]he arrest of a person who is mistakenly thought to be someone else is valid if the arresting officer (a) has probable cause to arrest the person sought, and (b) reasonably believed the person arrested was the person sought’ ” … . The ” reasonableness of the arresting officers’ conduct must be determined by considering the totality of the circumstances surrounding the arrest’ ” … . Thus, to establish a lawful arrest of defendant, the People were required to establish the existence of a validly issued arrest warrant for defendant’s brother or probable cause to arrest him … and, here, the People concede that the police arrested defendant based only upon the arrest warrants issued for defendant’s brother.

Contrary to the People’s position and the dissent’s assertion, we conclude that defendant challenged the existence and validity of the arrest warrants for his brother by questioning the police witnesses at the suppression hearing concerning the status of the arrest warrants and whether they were still valid … . Notably, the court acknowledged and “accept[ed] that the [d]efendant [was] in fact contesting the validity of [the] warrants.” Once defendant challenged the existence and validity of the arrest warrants, the People were ” required to make a further evidentiary showing by producing the . . . warrant[s]’ ” … , or “reliable evidence that the warrant[s were] active and valid” … . Here, the People failed to meet their burden inasmuch as they failed to produce the arrest warrants themselves or other reliable evidence that the warrants were active and valid … . People v Dortch, 2020 NY Slip Op 04711, Fourth Dept 8-20-20

 

,

THE JURY SHOULD HAVE BEEN INSTRUCTED TO CONSIDER THE INCLUSORY CONCURRENT COUNT (MURDER SECOND) AND THE TOP COUNT (MURDER FIRST) IN THE ALTERNATIVE; THE ERROR NEED NOT BE PRESERVED FOR APPEAL (FOURTH DEPT).

The Fourth Department, noting that the issues need not be preserved for appeal, determined the jury should have been instructed to consider the top count, murder first degree, and the inclusory concurrent count, murder second degree, in the alternative:

… [T]he court should have instructed the jury to consider count two “only in the alternative as an inclusory concurrent count” of count one … . The court, … erred when it did not instruct the jury to consider counts one and two in the alernative and instead directed the jury to consider the lesser included offenses of manslaughter in the first degree and manslaughter in the second degree for each of the two murder charges. That error resulted in the jury improperly returning a verdict convicting defendant of two identical counts of manslaughter in the first degree with respect to the same victim. We therefore … modify the judgment by reversing the conviction of manslaughter in the first degree under count two of the indictment and dismissing that count of the indictment … . People v Smith, 2020 NY Slip Op 04702, Fourth Dept 8-20-20

 

, , ,

DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA, MATTER REMITTED TO GIVE DEFENDANT THE OPPORTUNITY TO WITHDRAW HIS PLEA; MATTER CONSIDERED IN THE INTEREST OF JUSTICE; INEFFECTIVE ASSISTANCE ISSUE DEPENDS ON MATTERS OUTSIDE THE RECORD AND CAN ONLY BE ADDRESSED BY A MOTION TO VACATE (FOURTH DEPT).

The Fourth Department, remitting that matter to allow defendant to move to withdraw his guilty plea, considering the issue in the interest of justice, determined defendant was not informed of the deportation consequences of pleading guilty. Because the ineffective assistance claim depends in part on matters outside the record, it can only be addressed in a motion to vacate the conviction:

… [D]efendant, a noncitizen, contends that his felony guilty plea was not knowingly, voluntarily, and intelligently entered because Supreme Court failed to advise him of the potential deportation consequences of such a plea, as required by People v Peque (22 NY3d 168 [2013], cert denied 574 US 840 [2014]). As a preliminary matter, we note that defendant’s challenge to the voluntariness of his plea would survive even a valid waiver of the right to appeal … . Even assuming, arguendo, that defendant was required to preserve his contention under the circumstances of this case … , we exercise our power to address it as a matter of discretion in the interest of justice … . “[D]ue process compels a trial court to apprise a defendant that, if the defendant is not an American citizen, he or she may be deported as a consequence of a guilty plea to a felony” … . Here, the record of the plea proceeding establishes that the court failed to fulfill that obligation … . As defendant contends and contrary to the People’s suggestion, “the case should be remitted to afford defendant the opportunity to move to vacate his plea upon a showing that there is a reasonable probability that he would not have pleaded guilty had the court advised him of the possibility of deportation” … . People v Jumale, 2020 NY Slip Op 04697, Fourth Dept 8-20-20

 

BECAUSE THE PLEA AGREEMENT COULD NO LONGER BE COMPLIED WITH DEFENDANT’S GUILTY PLEA MUST BE VACATED; UNDER THE AGREEMENT DEFENDANT’S SENTENCE WAS TO RUN CONCURRENTLY WITH THE SENTENCE ON A SEPARATE INDICTMENT, BUT THAT SEPARATE INDICTMENT WAS DISMISSED AFTER APPEAL (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s conviction by guilty plea, determined the inability to comply the plea agreement required the vacation of the plea. The plea was based on the promise that defendant’s sentence would be concurrent with the sentence imposed under a separate indictment. That separate indictment was dismissed after appeal:

Defendant appeals from a judgment entered in Livingston County convicting him upon a plea of guilty of criminal sale of a controlled substance in the third degree … . The plea satisfied another indictment pending against defendant in Livingston County (indictment No. 2014-042). Pursuant to the plea agreement, County Court sentenced defendant to a determinate term of imprisonment that was to run concurrently with a 10-year sentence previously imposed on defendant in Monroe County for criminal possession of a weapon in the second degree. We later reversed the Monroe County judgment and dismissed the indictment … . Defendant now contends, and the People correctly concede, that, inasmuch as his plea in Livingston County was induced by the promise of a concurrent sentence, which is no longer possible, the judgment must be reversed and the plea vacated … . This will result in the reinstatement of indictment No. 2014-042, which was satisfied by defendant’s plea … . People v Peterson, 2020 NY Slip Op 04691, Fourth Dept 8-20-20

 

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