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PHYSICAL INJURY IS NOT AN ELEMENT OF ATTEMPTED MURDER; REQUEST FOR MISSING WITNESS JURY INSTRUCTION BASED UPON THE COMPLAINANT’S FAILURE TO TESTIFY PROPERLY DENIED; PERSISTENT FELONY SENTENCING PROCEDURE WAS NOT FOLLOWED (SECOND DEPT).

The Second Department affirmed defendant’s attempted murder conviction, noting that proof of attempted murder does not require proof of serious injury, or any injury at all. The court further noted that the complainant was not under the People’s control and therefore the request for the missing witness jury instruction was properly denied. Defendant, however, was not properly sentenced:

… [W]e note that while none of the complainant’s injuries in this case were life-threatening, “the crime of attempted murder does not require actual physical injury to a victim at all” … . Here, the forensic evidence showing that two separate knives were used in the attack, coupled with the fact that the defendant, still holding a knife, chased the complainant outside the apartment complex and broke off his attack only after a bystander intervened, provides factually sufficient evidence of the defendant’s intent to kill.

Contrary to the defendant’s contentions, the County Court properly declined to give a missing witness charge with regard to the complainant, as the record reflects that the complainant was not under the People’s control … . …

The sentencing minutes do not establish that the County Court asked the defendant whether he wished to controvert any allegations made in the statement filed pursuant to CPL 400.16(2) … . Accordingly, we vacate the sentences and remit the matter to the County Court, Suffolk County, for resentencing in accordance with CPL 400.16 … . People v Gunn, 2019 NY Slip Op 07279, Second Dept 10-9-19

 

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UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE PEOPLE DID NOT DISPROVE DEFENDANT’S AGENCY DEFENSE; THE VERDICT WAS REPUGNANT IN THAT GUILTY AND NOT GUILTY FINDINGS CAN NOT BE RECONCILED (SECOND DEPT).

The Second Department vacated defendant’s convictions in this drug/possession/sale case, finding the People did not disprove the agency defense with respect to one of the two transactions, and the verdict was repugnant in the sense guilty and not guilty findings could not be reconciled.  With respect to the agency defense, the Second Department applied a “weight of the evidence” analysis. The facts are too complex to fairly summarize here:

The following factors are considered in evaluating the strength of an agency defense: “(1) did the defendant act as a mere extension of the buyer throughout the relationship, with no independent desire to promote the transaction; (2) was the purchase suggested by the buyer; (3) did the defendant have any previous acquaintance with the seller; (4) did the defendant exhibit any salesman like behavior; (5) did the defendant use his [or her] own funds; (6) did the defendant procure from many sources for a single buyer; (7) did the buyer pay the seller directly; (8) did the defendant stand to profit; and (9) was any reward promised in advance” … . …

A verdict is repugnant only if, when viewed in light of the elements of each crime as charged to the jury, “it is legally impossible—under all conceivable circumstances—for the jury to have convicted the defendant on one count but not the other” … . The purpose of the rule is to ensure that an individual is not convicted of a crime of which a jury has necessarily decided that one of the essential elements was not proven beyond a reasonable doubt … . People v Cruz, 2019 NY Slip Op 07273, Second Dept 10-9-19

 

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THE STANDARD OF PROOF REQUIRED IN AN ENTIRELY CIRCUMSTANTIAL-EVIDENCE CASE WAS NOT MET IN THIS MURDER PROSECUTION; CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s murder conviction, determined the conviction was against the weight of the evidence. There was no forensic evidence linking defendant to the murder, which occurred 11 years before the trial, and the circumstantial evidence merely raised the possibility defendant committed the murder. The decision recounts the evidence in a level of detail which cannot be fairly summarized here:

Where the prosecution relies entirely on circumstantial evidence, before the fact-finder can draw an inference of guilt, that inference must be the only one that can fairly and reasonably be drawn from the proven facts, and the evidence must exclude beyond a reasonable doubt every reasonable hypothesis of innocence … . The inferences to be drawn from the People’s evidence in this case as to coincidence of time, place, and behavior are sufficient only to create suspicion. The evidence presented at trial is not inconsistent with the defendant’s innocence, and any determination of guilt requires too much speculation to fill the gaps in the People’s evidence to constitute proof beyond a reasonable doubt. * * *

[T]he evidence presented at trial supports the possibility that the defendant was the person who killed Perez. “[H]owever, speculation and conjecture are no substitute for proof beyond a reasonable doubt” … . It is not enough for the jury to determine “that the defendant is probably guilty” … . The People must prove beyond a reasonable doubt that the defendant is the person who committed the crime. On this record, we find that the jury was not justified in finding the defendant guilty beyond a reasonable doubt. People v Clavell, 2019 NY Slip Op 07271, Second Dept 10-10-19

 

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THE PROHIBITION OF DOUBLE JEOPARDY DID NOT PRECLUDE THE PROSECUTION BASED UPON THE THEFT OF GOLDMAN SACHS SOURCE CODE UNDER A STATE STATUTE AFTER DEFENDANT’S CONVICTION UNDER A FEDERAL STATUTE WAS REVERSED; THE STATE STATUTE INCLUDED AN ELEMENT NOT INCLUDED IN THE FEDERAL STATUTE (FIRST DEPT).

The First Department determined defendant’s prosecution for unlawful use of secret scientific material did not violate the prohibition against double jeopardy. Defendant, while working for Goldman Sachs, had uploaded source code to a server in Germany. He was first charged under a federal statute, the National Stolen Property Act (NSPA). The Second Circuit reversed the NSPA conviction because the source code was deemed “intangible” at the time of the theft (when it was transmitted) and therefore did not meet the definition of “goods” in the federal statute. However, the state statute under which defendant was subsequently prosecuted, unlawful use of secret scientific material, included tangible electronically reproduced material, and the source code reproduced on the German server met that criteria:

Defendant’s argument rests on the claim that the “goods” element of the NSPA, which undisputedly requires that the property transported be “tangible,” is equivalent to the “tangible reproduction” element of New York’s unlawful use statute. That statute provides that “[a] person is guilty of unlawful use of secret scientific material when, with intent to appropriate . . . the use of secret scientific material, and having no right to do so and no reasonable ground to believe that he [or she] has such right, [the person] makes a tangible reproduction or representation of such secret scientific material by means of writing, photographing, drawing, mechanically or electronically reproducing or recording such secret scientific material” (Penal Law § 165.07). * * *

… [T]he Second Circuit did not hold that the source codes were intangible as they existed on the German server. Rather, it held that “at the time of the theft” … — which was the same as the time that the codes were transmitted — the codes were purely intangible. Because the elements are not equivalent, there is no inconsistency between the Second Circuit’s determination that the codes were intangible when transported and this Court’s determination that defendant made a tangible reproduction when he uploaded them to the German server, where they resided within a physical medium. People v Aleynikov, 2019 NY Slip Op 07211, First Dept 10-18-19

 

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TRIAL EVIDENCE RENDERED THE SINGLE-COUNT INDICTMENT DUPLICITOUS REQUIRING REVERSAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the trial evidence rendered the single-count indictment duplicitous. Defendant was charged with criminal mischief:

We agree with defendant, however, that the single-count indictment was rendered duplicitous by the trial evidence. CPL 200.30 (1) provides that “[e]ach count of an indictment may charge one offense only.” Thus, “acts which separately and individually make out distinct crimes must be charged in separate and distinct counts” … . Here, the indictment charged defendant with damaging “the road surface at the intersection of Woolhouse Road and County Road #32” and thus was not facially defective. At trial, however, the evidence established that defendant committed two distinct offenses by damaging two different portions of the road at that intersection at two different times. Consequently, “[r]eversal is required because the jury may have convicted defendant of an unindicted [act of criminal mischief], resulting in the usurpation by the prosecutor of the exclusive power of the [g]rand [j]ury to determine the charges . . . , as well as the danger that . . . different jurors convicted defendant based on different acts … . People v Kniffin, 2019 NY Slip Op 07176, Fourth Dept 10-4-19

 

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ATTEMPTED MENACING OF A POLICE OFFICER IS NOT A COGNIZABLE CRIME; CHARGING ATTEMPTED MENACING OF A POLICE OFFICER IS A MODE OF PROCEEDINGS ERROR THAT NEED NOT BE PRESERVED (FOURTH DEPT).

The Fourth Department determined that attempted menacing of a police officer is not a cognizable crime because “attempt” is included in the offense. This was a mode of proceedings error that did not have to be preserved:

We agree with defendant … that his conviction of attempted menacing a police officer or peace officer must be reversed because that offense is not a legally cognizable crime. As relevant here, Penal Law § 120.18 provides that “[a] person is guilty of menacing a police officer or peace officer when he or she intentionally places or attempts to place a police officer . . . in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, . . . pistol, . . . or other firearm, whether operable or not, where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer.” Thus, according to the definition of menacing a police officer or peace officer set forth in the Penal Law, the attempt to commit the crime is already an element of the offense, and “there cannot be an attempt to commit a crime which is itself a mere attempt to do an act or accomplish a result” … . Although defendant failed to raise this issue at trial, preservation is not required inasmuch as this issue constitutes a mode of proceedings error … . People v Dibble, 2019 NY Slip Op 07165, Fourth Dept 10-4-19

 

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THE CRIME TO WHICH DEFENDANT PLED DID NOT HAVE A FORCIBLE COMPULSION ELEMENT SO 10 POINTS SHOULD NOT HAVE BEEN ASSESSED ON THAT GROUND; HOWEVER THE MATTER WAS SENT BACK BECAUSE AN UPWARD DEPARTURE MIGHT BE WARRANTED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the offense to which defendant pled guilty, criminal sexual act in the first degree, does not have forcible compulsion as an element and therefore the risk assessment must be reduced by 10 points. However the court noted that an upward department might be appropriate and sent the matter back:

… [T]he court erred in that assessment inasmuch as defendant pleaded guilty to criminal sexual act in the first degree under subdivision (3) of Penal Law § 130.50, which does not require evidence of forcible compulsion … , and there was no other evidence in the record establishing that defendant used forcible compulsion in committing the crime. When those 10 points are subtracted, defendant’s total score makes him a presumptive level two risk.

Nevertheless, we note that an upward departure from the presumptive level may be warranted, i.e., there may be evidence of “an aggravating . . . factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines”… . Here, however, “because defendant was determined to be a level three sex offender, County Court had no reason to consider whether clear and convincing evidence exists to warrant such a departure” … . People v Weber, 2019 NY Slip Op 07197, Fourth Dept 10-4-19

 

DEFENDANT WAS ENTITLED EITHER TO THE VACATION OF HIS GUILTY PLEA OR TO A SENTENCE WHICH CONFORMED WITH THE SENTENCE PROMISE; DEFENDANT’S 440 MOTION WAS NOT BARRED BY PROVISIONS OF CPL 440.10 (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant was entitled to either the vacation of his guilty plea or the imposition of a sentence which conformed to the plea bargain. Defendant had pled guilty to a drug possession charge and was told at the time of the plea he would not serve more than a year and a half in addition to his concurrent Massachusetts sentence. However, the Massachusetts sentence was subsequently reduced because of a cooperation agreement. Defendant’s 440 motion was not barred by CPL 440.10 (2) (c) or (2) (b):

… [D]efendant’s motion is not barred by CPL 440.10 (2) (c) inasmuch as the relevant ground for relief did not arise until several years after the deadline to file a direct appeal from the judgment had expired. Further, contrary to the court’s determination, defendant’s motion is not barred by CPL 440.10 (2) (b) inasmuch as he never filed a direct appeal from the judgment.

On the merits, it is well settled that, “[g]enerally, when a guilty plea has been induced by an unfulfilled promise either the plea must be vacated or the promise honored’ ” … . Here, the “reduction of the preexisting sentence nullified a benefit that was expressly promised and was a material inducement to the guilty plea” … , i.e., “the judge’s specific representation [that defendant’s guilty plea in New York] would thereby extend his [aggregate] incarceratory term by a year and a half only” … . People v Valerio, 2019 NY Slip Op 07192, Fourth Dept 10-3-19

 

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ALTHOUGH DEFENDANT DID NOT VIOLATE THE VEHICLE AND TRAFFIC LAW IN MAKING A LEFT TURN, THE OFFICER REASONABLY BELIEVED THERE WAS A VIOLATION; THE TRAFFIC STOP WAS JUSTIFIED AND THE SUPPRESSION MOTION WAS PROPERLY DENIED (FOURTH DEPT).

The Fourth Department determined: (1) the left turn made by the defendant from the right-most lane did not violate Vehicle and Traffic Law 1160; and (2) the officer who stopped the defendant reasonably believed the turn was a traffic violation. Therefore the traffic stop was justified:

Unlike the language used in other subsections of section 1160, the language of subsection (b) does not specify how close to the center line a vehicle must be when it completes its turn, nor does it designate a specific lane within which the vehicle must complete the turn (compare § 1160 [b] with § 1160 [a], [c], [e]). In light of the more specific language employed elsewhere in the statute, we read the use of the more general phrase “right of the center line” as meaningful and intentional … . Indeed, reading “right of the center line” to mean the lane to the immediate right of the center line, or as close to center as possible, would improperly render the more specific language used elsewhere in the statute superfluous … . …

… [S]uppression [of the seized weapon] is not required here because the stop was the result of the officer’s objectively reasonable belief that he observed a traffic violation … . In light of ” the reality that an officer may suddenly confront a situation in the field as to which the application of a statute is unclear—however clear it may later become[,]’ ” an officer’s misreading of a statute that is susceptible of multiple interpretations and has not been definitively construed by New York appellate courts may amount to a reasonable mistake of law justifying a traffic stop … . Notwithstanding our interpretation of Vehicle and Traffic Law § 1160 (b) above, the “right of the center line” language is, in our view, susceptible of multiple interpretations, including the interpretation taken by the officer here, and the ambiguity has not previously been definitively construed. People v Turner, 2019 NY Slip Op 07190, Fourth Dept 10-3-19

 

RESTITUTION ORDERED AT SENTENCING (ABOUT $45OO) WAS ABOUT $500 HIGHER THAN THE AMOUNT AGREED TO IN THE PLEA DEAL, DEFENDANT SHOULD HAVE BEEN GIVEN THE OPPORTUNITY TO WITHDRAW HIS PLEA (THIRD DEPT).

The Third Department, over a two-justice dissent, determined that defendant is entitled to the opportunity to withdraw his plea because the amount of restitution ordered by the sentencing judge was about $500 higher than the amount ($4100) agreed to in the plea deal:

… “[A] sentencing court may not impose a more severe sentence than one bargained for without providing the defendant the opportunity to withdraw his or her plea” … . Because the restitution imposed exceeds the amount presented by the People to which defendant agreed at the time of the plea and he seeks, among other things, vacatur of the plea, we deem it appropriate to exercise our interest of justice jurisdiction to take corrective action … . Accordingly, we remit the matter for the purpose of allowing defendant to either accept the enhanced restitution amount or give defendant an opportunity to withdraw his plea … . People v Waldron, 2019 NY Slip Op 07116, Third Dept 10-3-19

 

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