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DEFENDANT’S MANSLAUGHTER CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE, TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, reversed defendant’s manslaughter conviction as against the weight of the evidence. The defendant had been alone with the victim, his girlfriend’s 13-month-old son, for a short time on the day the baby vomited and was gasping for breath (May 2). The baby died hours later at the hospital. Blunt force head trauma was deemed the cause of death. The defendant was not arrested until four years later after mother had unsuccessfully attempted to have the defendant admit to harming the child in recorded phone conversations. The medical examiner testified on direct that the baby was injured on May 2. But on cross the medical examiner acknowledged the baby could have been injured on May 1, when defendant had no contact with the baby. Other people had access to the baby on May 1, but they were not interviewed because the medical examiner had told the investigators the injuries occurred on May 2:

The only evidence adduced at trial that was not within the knowledge of the police in 2010, when they decided not to arrest defendant, was the testimony of a woman who dated him from 2008 to 2013, with a one-year break in 2010 when he dated [the baby’s mother]. The witness testified that, in the years following the victim’s death, defendant would sometimes talk about the victim and become emotional but would say that he was not guilty and “didn’t do it.” When questioned by the prosecutor about a written statement she had given to the police, the witness testified that defendant “admitted to doing something to the baby but he never said what or why.” On cross-examination, the witness testified that defendant, whom she had not dated for years, never admitted that he harmed the victim. All in all, the witness’ testimony was of only marginal probative value.

Given the equivocal medical evidence with respect to the time frame within which the fatal injuries could have been inflicted, the weakness of the circumstantial evidence, and the lack of direct evidence that defendant caused the victim’s injuries, we conclude that the People failed to prove defendant’s guilt beyond a reasonable doubt … . People v Gonzalez, 2019 NY Slip Op 05947, Fourth Dept 7-31-19

 

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THE PEOPLE DID NOT PROVE DEFENDANT POSSESSED A RAZOR BLADE PARTIALLY WRAPPED IN TAPE WITH THE INTENT TO USE IT UNLAWFULLY AGAINST ANOTHER, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction as against the weight of the evidence, determined the People did not prove that defendant possessed a razor blade partially wrapped in tape with the intent to use it unlawfully against another:

Penal Law § 265.15(4) provides, in relevant part, that “[t]he possession by any person of any . . . weapon, instrument, appliance or substance designed, made or adapted for use primarily as a weapon, is presumptive evidence of intent to use the same unlawfully against another.”

“The presumption of unlawful intent under Penal Law § 265.15(4), like all statutory presumptions in New York, is a permissive presumption, meaning that [it] allows, but does not require, the trier of fact to accept the presumed fact, and does not shift to the defendant the burden of proof'” … . “Before the presumption may apply, the People must establish beyond a reasonable doubt the predicate fact or facts the statute requires be proved'” … . “If the People succeed in this endeavor, they are entitled to rely on the presumption, which form[s] part of the support for [their] prima facie case’ against the defendant” … . “The presumption may be rebutted by any evidence in the case; that is, evidence presented by the defendant or the People” … “Evidence rebutting the presumption will not negate the existence of a prima facie case; rather it presents an alternate set of facts, or inferences from facts, to the jury. The jury then has the right to choose between the two versions'” … . …

… [T]he People failed to establish beyond a reasonable doubt that the razor blade recovered from the defendant was “designed, made or adapted for use primarily as a weapon” … . There was no testimony by the detectives indicating that they knew based on their experience that the primary use of this type of instrument, by virtue of being wrapped in black tape, was as a weapon, or that they attempted to ascertain from the defendant the manner in which he utilized the blade … . Furthermore, there was no evidence from which it could be inferred that the defendant considered the instrument to be a weapon … . People v Rodgers, 2019 NY Slip Op 06002, Second Dept 7-31-19

 

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FOR CAUSE CHALLENGE TO A JUROR WHO FELT POLICE OFFICERS WOULD NOT LIE SHOULD HAVE BEEN GRANTED; STATEMENTS MADE UNDER CUSTODIAL INTERROGATION IN DEFENDANT’S HOME SHOULD HAVE BEEN SUPPRESSED; STATEMENTS MADE AFTER DEFENDANT INVOKED HIS RIGHT TO COUNSEL SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and granting a new trial, determined that a defense for-cause challenge to a juror should have been granted, unwarned statements made by the defendant in his home were in response to custodial interrogation, and the statements made at the police station were made after defendant had invoked his right to counsel:

… [B]y repeatedly insisting that police officers were unlikely to lie under oath because doing so would endanger their pensions, the prospective juror “cast serious doubt on [her] ability to render a fair verdict under the proper legal standards” and to follow the court’s instructions concerning, at a minimum, issues of witness credibility … . The court was therefore “required to elicit some unequivocal assurance from the . . . prospective juror[] that [she was] able to reach a verdict based entirely upon the court’s instructions on the law” … . No such assurances were obtained from the prospective juror, …

… [I]t is undisputed that defendant was ordered out of his bedroom by police officers in the middle of the night, directed to remain in a vestibule outside his apartment, and thereafter subjected to pointed, accusatory questions for about an hour. Under those circumstances, we agree with defendant that a reasonable person, innocent of any crime, would not have felt free to leave, and that he was thus in custody during the questioning … . …

… [D]efendant unequivocally invoked his right to counsel by stating “I think I will take the lawyer” or “I think I need a lawyer” … . Thus, we agree with defendant that his statements following his unequivocal invocation of his right to counsel at the police station should have been suppressed as well … . People v Hernandez, 2019 NY Slip Op 05844, Fourth Dept 7-31-19

 

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POLICE OFFICERS’ TESTIMONY BASED UPON DEBRIEFING GANG MEMBERS WAS INADMISSIBLE TESTIMONIAL HEARSAY AND THE POLICE OFFICERS, WHO WERE QUALIFIED AS GANG EXPERTS, ACTED AS IMPERMISSIBLE SUMMATION WITNESSES, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that the testimony of two police officers (qualified by the court as gang experts( about information gleaned from interviewing gang members was testimonial hearsay, in violation of Crawford, and the police experts acted as summation witnesses, in violation of Iona:

During the trial, the Supreme Court declared Detective Adam Georg an expert “in the hierarchy, practices, [and] languages of the S.N.O.W. Gang and other gangs.” Similarly, the court declared Lieutenant Robert Bracero an expert “in the history, hierarchy, practices and language of the S.N.O.W. Gang and rival gangs.” Georg testified that his knowledge of the S.N.O.W. Gang was derived from, among other things, approximately 70 to 80 debriefings of S.N.O.W. Gang members, many of whom had been arrested and were in custody at the police station or in jail. Similarly, Bracero testified that he debriefed approximately 50 S.N.O.W. Gang members after their arrests. * * *

… [T]he defendant contends that Georg’s and Bracero’s testimony violated Crawford v Washington (541 US 36) by permitting the introduction into evidence of out-of-court testimonial statements made by absent witnesses who were never subjected to cross examination … , and that Georg’s testimony also ran afoul of the proscription against police experts acting as summation witnesses, in violation of People v Inoa (25 NY3d 466, 474-475). …

… .[F]or the reasons set forth in our decision and order on appeal by one of the codefendants (People v Jones, 166 AD3d 803), the testimony of Georg and Bracero violated Crawford and Inoa. Since the evidence of the defendant’s guilt, without reference to the errors, was far from overwhelming, these errors were not harmless … . People v Campbell, 2019 NY Slip Op 05992, Second Dept 7-31-19

 

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DEFENDANT WHO KIDNAPPED HER BIOLOGICAL CHILD WAS NOT EXEMPT FROM SORA REGISTRATION (FOURTH DEPT).

The Fourth Department determined defendant’s waiver of appeal was invalid but rejected her argument that she was exempt for SORA registration because she is the parent of the kidnapping victim, who had been adopted by a family:

The victim of the kidnapping was defendant’s biological child, who had been removed from defendant’s care more than eight years earlier following allegations of abuse concerning the victim’s sibling. Defendant surrendered her parental rights to both the victim and the victim’s sibling, and the children were adopted by a family.

“SORA defines sex offender’ to include any person who is convicted of’ any of a number of crimes listed in the statute . . . SORA requires all people included in this definition to register as sex offenders” … . The list of offenses provided in the statute includes “section 135.05, 135.10, 135.20 or 135.25 of [the Penal Law] relating to kidnapping offenses, provided the victim of such kidnapping . . . is less than seventeen years old and the offender is not the parent of the victim” … . Although we have not yet had the occasion to address whether a biological parent who has surrendered his or her parental rights and whose child has been adopted is entitled to the benefit of the parent exemption set forth in the SORA statute, in People v Brown (264 AD2d 12 [4th Dept 2000]), this Court determined that, in a prosecution for kidnapping, such a person could not assert as an affirmative defense that he or she was a relative of the victim … inasmuch as a biological parent’s status as a “parent” with respect to an adopted child was terminated ” in all respects’ ” by an order of adoption … . Applying that same reasoning here, we conclude that defendant, the biological mother of an adopted child who she kidnapped, is not a parent of the victim for the purposes of SORA, and thus defendant is not exempt from SORA registration. People v Weir, 2019 NY Slip Op 05896, Fourth Dept 7-31-19

 

SUPREME COURT SHOULD NOT HAVE GRANTED DEFENDANT’S MOTION TO DISMISS THE INDICTMENT IN THE FURTHERANCE OF JUSTICE WITHOUT HOLDING A HEARING BECAUSE ESSENTIAL FACTS WERE IN DISPUTE (SECOND DEPT).

The Second Department, reversing Supreme Court, in an appeal by the People, determined defendant’s motion to dismiss an indictment in the furtherance of justice should not have been granted without a hearing because the facts were in dispute. The Second Department also noted that the defendant had demonstrated good cause for bringing the motion after the 45-day deadline:

… [T]he Supreme Court should not have decided the motion without conducting a hearing. CPL 210.40 authorizes the court to dismiss an indictment or any count thereof in furtherance of justice, as a matter of judicial discretion, when, after considering certain enumerated factors, the court finds “the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment or count would constitute or result in injustice”… . In deciding such a motion, “a court must strike a sensitive balance between the individual and the State’ interests to determine whether the ends of justice are served by dismissal of the indictment” … . “Such a value judgment hinge[s] on the production of facts in the possession of the prosecution and the defendant'”… . CPL 210.45 requires a hearing when the facts essential to the determination of a motion made pursuant to CPL 210.40 are in dispute … . Here, since the essential facts were in dispute, the court should have conducted a hearing before making its findings of fact … . People v Burke, 2019 NY Slip Op 05991, Second Dept 7-31-19

 

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EVIDENCE WAS SEIZED DURING A WARRANTLESS PAROLE SEARCH AT A TIME WHEN DEFENDANT’S POST RELEASE SUPERVISION (PRS) HAD BEEN IMPOSED ADMINISTRATIVELY, WHICH HAS SINCE BEEN FOUND UNCONSTITUTIONAL; BECAUSE THE LAW CONCERNING THE REQUIREMENT OF JUDICIAL IMPOSITION OF PRS IS NOW CLEAR, SUPPRESSING THE EVIDENCE WOULD HAVE NO DETERRENT EFFECT AND IS NOT THEREFORE NECESSARY (FOURTH DEPT).

The Fourth Department determined the ammunition seized during a warrantless parole search of defendant’s residence, and which was connected to a shooting, was not subject to suppression. At the time of the search, defendant’s post release supervision (PRS) had been imposed administratively and not by a judge–a procedure which has since been rendered invalid by statute. The Fourth Department held that, under these facts, the exclusionary rule, which usually requires suppression of the fruits of a warrantless search, would have no deterrent effect and need not be applied:

… [T]he improper conduct sought to be deterred by application of the exclusionary rule in this case is the unauthorized administrative imposition of PRS by a state entity rather than a sentencing judge. In that regard, defendant contends that the state criminal justice system disregarded the Second Circuit’s decision in Earley v Murray (451 F3d 71 [2d Cir 2006]), which held that the administrative imposition of PRS is unconstitutional … , and he contends that application of the exclusionary rule here is necessary to deter similar “misconduct” in the future. We reject that contention.

First, when the parole search took place, in 2007, the issue whether it is proper for the state to administratively impose PRS had not yet been settled … . Second, and more importantly, it is now settled as a matter of state statutory law that only a court may lawfully pronounce a term of PRS as a component of a sentence … and, consequently, all the relevant government actors are now well aware of the law. Under the circumstances, the deterrent effect of applying the exclusionary rule is marginal or nonexistent … . People v Lloyd, 2019 NY Slip Op 05855, Fourth Dept 7-31-19

 

DEFENDANT’S SENTENCE REDUCED FROM 12 TO FIVE YEARS BASED UPON THE PLEA OFFERS, THE LACK OF PRIOR FELONY CONVICTIONS, DEFENDANT’S MENTAL HEALTH ISSUES, AND THE VICTIMS’ OPPOSITION TO INCARCERATION (FOURTH DEPT). ​

The Fourth Department reduced defendant’s sentence from 12 to five years, taking into account the plea offers of probation only and five years, the lack of any prior felony convictions, her mental health problems, and the victims’ opposition to incarceration:

… [T]he 12-year term of incarceration imposed on the count of burglary in the first degree is unduly harsh and severe. Before indictment, defendant was offered the opportunity to plead to a charge for which probation was a sentencing option. After indictment, she was offered the opportunity to plead guilty to the charges with a sentence promise of five years. At the time of the latter offer, all of the relevant facts were known to the court, including those related to defendant’s history of mental illness. The victims of the offenses were defendant’s parents, and they opposed a lengthy prison sentence, contending that she needed treatment not incarceration. Indeed, defendant’s mother stated at sentencing that her daughter needed mental health treatment and that “jail [was] not the answer.”

Moreover, all of defendant’s prior convictions, none of which were felonies, were committed within three years of these offenses and only after defendant began to suffer from significant mental health issues. Under the circumstances of this case, where no new facts were set forth during the nonjury trial and the victims were opposed to incarceration, we conclude that the sentence on the burglary count should be reduced to a determinate term of incarceration of five years … . People v Mccoy, 2019 NY Slip Op 05851, Fourth Dept 7-31-19

 

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THE VICTIM IN THIS KIDNAPPING CASE ASKED THE DEFENDANT IF SHE COULD GO WITH HIM TO FLORIDA; THE JURY SHOULD HAVE BEEN INSTRUCTED THAT THE INTENT TO VIOLATE OR ABUSE THE VICTIM MUST HAVE EXISTED FOR MORE THAN 12 HOURS, A NEW TRIAL WAS ORDERED ON THAT GROUND; BOTH THE CONCURRENCE AND THE DISSENT ARGUED THERE HAD BEEN NO RESTRAINT WITHIN THE MEANING OF THE KIDNAPPING STATUTE (FOURTH DEPT).

The Fourth Department, over a concurrence and a dissent, determined the jury instruction on the intent element of kidnapping was wrong requiring reversal. Defendant, who was over 21, drove to Florida with the victim, who was 14, and had sex with her during the trip. The victim asked defendant if she could come with him and snuck out of the house without her mother’s knowledge. The concurrence argued the restraint element of kidnapping was not proven, but agreed with the majority because that element had been conceded by the defense. The dissent would have reversed and dismissed the indictment, finding the conviction was against the weight of the evidence:

… [T]he weight of the evidence supports a determination that defendant did not innocently acquiesce to the mere request of a 14-year-old acquaintance to drive her to Florida, but rather took advantage of a 14-year-old child’s age and inexperience, by driving the victim across multiple state lines, away from her family, in order to engage in an unlawful sexual relationship with a child. * * *

We interpret the statute to mean that kidnapping in the first degree requires that a defendant both restrain a victim for more than 12 hours and possess, for more than 12 hours during the period of restraint, the intent to violate or abuse the victim sexually. Here, however, the court instructed the jury that “intent does not require advanced planning, nor is it necessary that the intent be in the person’s mind for any particular period of time.” … [W]e conclude that the instruction was erroneous inasmuch as it permitted the jury to find that the element of intent pursuant to section 135.25 (2) (a) had been established even if the jury did not find that the intent existed for more than 12 hours during a period of over 12 hours of restraint.  * * *

FROM THE DISSENT: Under these circumstances, it cannot be said that defendant either “secreted” or “held” the victim in his car, or that he intended to prevent her “liberation.” She was there voluntarily and of her own accord, which is the very antithesis of being “secreted” or “held” somewhere. People v Vail, 2019 NY Slip Op 05848, Fourth Dept 7-31-19

 

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HANDGUN FOUND IN A COAT IN A CLOSET BY A PAROLE OFFICER WITH A PAROLE ABSCONDER WARRANT SHOULD NOT HAVE BEEN SUPPRESSED (FIRST DEPT).

The First Department, reversing the suppression court in an appeal by the People, determined the handgun found during a search of defendant’s bedroom pursuant to a parole warrant should not have been suppressed. The parole officer testified she was searching a closet to see if defendant was hiding there when she felt a handgun in the pocket of a jacket she had seen defendant wearing:

In Huntley, the Court of Appeals “relied on the dual nature of a parole officer’s duties and a parolee’s reduced expectation of privacy to hold that a parolee’s constitutional right to be secure against unreasonable searches and seizures is not violated when a parole officer conducts a warrantless search that is rationally and reasonably related to the performance of the parole officer’s duties” (… see Huntley, 43 NY2d at 179, 181 …). “It would not be enough necessarily that there was some rational connection; the particular conduct must also have been substantially related to the performance of duty in the particular circumstances” … .

Applying this standard, we find that Parole Officer Williams, whose testimony the hearing court credited, acted lawfully in retrieving the firearm from defendant’s jacket pocket. While executing a valid parole warrant, and in the course of searching for defendant pursuant to that warrant, Williams inadvertently felt an object, that both she and her supervisor believed to be a gun, in the jacket pocket. Because parolees are not permitted to possess firearms, Williams’s discovery meant that defendant was in further violation of the conditions of his supervised release. Thus, the minimally invasive step of retrieving the gun from the pocket was “rationally and reasonably related to the performance of [her] duty as [defendant’s] parole officer” … . People v Jennings, 2019 NY Slip Op 05838, First Dept 7-30-19

 

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