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TESTIMONY OF SOLE EYEWITNESS DEEMED INCREDIBLE AND UNRELIABLE, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT).

The Second Department, reversing defendant’s manslaughter conviction under a weight of the evidence analysis, determined that the testimony of the sole eyewitness, Geroulakis, was incredible and unreliable:

On cross-examination, Geroulakis’s testimony was incredible and unreliable. Geroulakis denied that, at the first trial, he had identified the defendant as the shorter man at the souvlaki stand. When Geroulakis was confronted with his testimony from the first trial, he responded, “I remember they told me who is who, who stabbed me and who stabbed Jimmy.” Significantly, investigating detective Robert W. Henning testified that Geroulakis told him that he had argued with the shorter man, that they pushed and shoved each other, that the man “pulled out a knife” and stabbed Geroulakis “in the right thigh area” and then walked over to the car, reached in, and “stabbed [Zisimopoulos] in the abdomen.” After reading his interview notes, Henning confirmed that Geroulakis stated that the same person stabbed both Geroulakis and Zisimopoulos. Furthermore, on cross-examination, Geroulakis testified that he did not remember what the man whom he identified as the defendant was wearing and denied previously describing the man as wearing a long-sleeved black shirt. Geroulakis recalled telling a detective only that “some were wearing black and one was wearing long sleeves.” Geroulakis acknowledged that, in 2009, he had testified that the taller man wore a black shirt with long sleeves. A video-still from one of the clubs that the defendant visited in the early morning of the day of the incident revealed that the defendant was wearing a light-colored shirt with horizontal stripes and sleeves to the elbows. In addition, Detective Constantine Papadopoulos testified that the defendant had the same tattoo on his right arm at the time of trial that he had at the lineup, and Detective David Beutel testified that the defendant had tattoos on both of his arms. Geroulakis, however, testified that the arms of the two men who allegedly stabbed Zisimopoulos were bare and that he did not observe any tattoos.

Moreover, Geroulakis’s motive to identify the defendant as one of the people who stabbed Zisimopoulos is apparent from his exaggerated testimony at the second trial. It was only at second trial, nine years after the incident, that Geroulakis testified that he had observed the defendant, the taller of the two men, twice: once at the souvlaki stand and once by the car at the time of the stabbings. On cross-examination, however, Geroulakis admitted that, at the first trial, he stated that he recognized only the shorter man from the souvlaki stand, not the defendant. Despite this admission, Geroulakis continued to insist at the second trial that both the defendant and the shorter man were at the souvlaki stand.

Based on the weight of the credible evidence, we find that the jury was not justified in finding the defendant guilty of manslaughter in the first degree beyond a reasonable doubt … . People v Andujar, 2018 NY Slip Op 08028, Second Dept 11-21-18

CRIMINAL LAW (TESTIMONY OF SOLE EYEWITNESS DEEMED INCREDIBLE AND UNRELIABLE, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, APPEALS, TESTIMONY OF SOLE EYEWITNESS DEEMED INCREDIBLE AND UNRELIABLE, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT))/APPEALS (CRIMINAL LAW, TESTIMONY OF SOLE EYEWITNESS DEEMED INCREDIBLE AND UNRELIABLE, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT))/WEIGHT OF THE EVIDENCE (APPEALS, CRIMINAL LAW, TESTIMONY OF SOLE EYEWITNESS DEEMED INCREDIBLE AND UNRELIABLE, CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT))

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DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS MARIJUANA CONVICTION (THIRD DEPT).

The Third Department, reversing County Court, determined that defendant was entitled to a hearing on his motion to vacate his conviction on ineffective assistance grounds. Defendant’s affidavit raised sufficient factual questions which could not be answered from the record to warrant a hearing. Defendant alleged he was not informed of the deportation consequences of the marijuana conviction:

“Although a hearing on a CPL 440.10 motion is not always necessary, a hearing is required where the defendant bases the motion upon nonrecord facts that are material and, if established, would entitle the defendant to relief”… . In support of his motion to vacate the judgment of conviction, defendant tendered his own affidavit, wherein he asserted that he had completed his prison sentence and period of postrelease supervision and that he was being held at a federal detention facility pending deportation proceedings. He stated that trial counsel failed to inform him of the immigration consequences of being convicted as charged and that, had he been so informed, he would have asked trial counsel “to explore the possibility of a plea bargain rather than take the case to trial, even though [he] continued to maintain [his] innocence.” He further stated that trial counsel’s failure to present him with any plea offer, or to inform him of potential deportation consequences, “caused [him] to forgo any discussion of a plea bargain.” People v Blackman, 2018 NY Slip Op 07982, Third Dept 11-21-18

CRIMINAL LAW (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS MARIJUANA CONVICTION (THIRD DEPT))/IMMIGRATION LAW (CRIMINAL LAW, DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS MARIJUANA CONVICTION (THIRD DEPT))/DEPORTATION (CRIMINAL LAW, DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS MARIJUANA CONVICTION (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS MARIJUANA CONVICTION (THIRD DEPT))/INEFFECTIVE ASSISTANCE  (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS MARIJUANA CONVICTION (THIRD DEPT))/VACATE CONVICTION, MOTION TO  (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS MARIJUANA CONVICTION (THIRD DEPT))

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RESISTING ARREST COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY, UNPRESERVED ERROR CONSIDERED IN THE INTEREST OF JUSTICE, RESISTING ARREST CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s resisting arrest conviction, determined that the trial evidence rendered the resisting arrest count of the indictment duplicitous. At trial evidence of two separate circumstance where defendant was alleged to have resisted arrest, involving different police officers, was presented. Although the error was not preserved, the court considered the issue under its interest of justice jurisdiction:

“Even if a count facially charges one criminal act, that count is duplicitous if the evidence makes plain that multiple criminal acts occurred during the relevant time period, rendering it nearly impossible to determine the particular act upon which the jury reached its verdict” … . The indictment charged defendant with one count of resisting arrest. According to the record evidence, however, the jury was presented with two instances where defendant resisted an officer’s arrest — one involving the victim that turned violent and the other involving the officers who discovered him in the dumpster. We also note that, during deliberation, the jury asked whether it could consider the incident at the dumpster with respect to the resisting arrest charge or solely defendant’s encounter with the victim. In our view, Supreme Court’s response in rereading count 5 of the indictment failed to dispel any confusion by the jury… . Although this argument is unpreserved for review, we take corrective action in the interest of justice by dismissing count 5 of the indictment with leave to the People to re-present any appropriate charges to a new grand jury … . People v Hilton. 2018 NY Slip Op 07981, Third Dept 11-21-18

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DEPARTMENT OF CORRECTIONAL SERVICES (DOCS) PERSONNEL WERE NOT ACTING AS AGENTS FOR THE POLICE WHEN INVESTIGATING THE PRISON KILLING WITH WHICH DEFENDANT WAS CHARGED, THEREFORE THE PROSECUTOR WAS NOT OBLIGATED TO LEARN ABOUT AND TURN OVER TO THE DEFENSE ANY ALLEGED EXCULPATORY EVIDENCE TURNED UP IN THE DOCS INVESTIGATION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McCarthy, determined defendant, an inmate, did not present sufficient proof that Department of Correctional Services (DOCS) personnel acted as agents for the police when investigating a killing in the prison. Defendant alleged that inmates were coerced into testifying against him and evidence of the coercion was Brady material which should have been provided to the defense by the prosecutor. The Third Department found defendant had not met his burden of proof concerning whether the DOCS personnel were acting as agents for the police. Rather, there was evidence that the DOCS investigation and the police investigation were separate and had different purposes. Therefore defendant’s motion to vacate his conviction was properly denied:

Several cases have held that “[e]vidence gathered by prison staff . . . generally is not ‘under the control or in the possession of the People or its agents, but [is] instead in the possession of an administrative agency that was not performing law enforcement functions'”… . That said, whether knowledge of a government official or employee may be imputed to the People appears to turn on whether participation in the criminal probe was an ancillary law enforcement task… or whether the level of cooperation between the employee and law enforcement in a particular criminal investigation renders the employee an agent of the People … . Under agency principles, “acts of agents, and the knowledge they acquire while acting within the scope of their authority are presumptively imputed to their principals”… . For example, “[w]hile social workers are generally not agents of the police,” in situations where they engage in a “joint venture” with police agencies to collaborate on child abuse or sexual abuse investigations, share information and a common purpose, and have a “cooperative working arrangement” with police, an agency relationship may exist such that the social workers’ knowledge is imputed to the People … . …

… [I]t appears that the State Police and IG [the DOCS Investigator General] were conducting parallel investigations — one criminal and one administrative, albeit with some obvious and necessary overlap — addressing different aspects of the situation… . The report from the lead IG investigator — who was not called to testify — reveals that he interviewed inmates with the State Police, gathered information for two months after the incident, conferred with State Police and met with the District Attorney. But the report indicates that the IG closed its case six months before defendant’s criminal trial, based on a finding that there was no evidence of staff misconduct, indicating the administrative focus of the IG’s investigation. People v Lewis, 2018 NY Slip Op 07980, Third Dept 11-21-18

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DEFENDANT DEEMED TO HAVE CONSENTED TO THE RECORDING OF PHONE CALLS MADE FROM JAIL AND TO THE PRESENTATION OF THE RECORDINGS AS TRIAL EVIDENCE (FIRST DEPT).

The First Department determined the defendant’s request to preclude recording of phone calls he made from jail was properly denied. Defendant was deemed to have consented to the recordings:

“Defendant impliedly consented to the recording of the call(s) based on his receipt of multiple forms of notice that his calls would be recorded, and he was not entitled to separate notice that the calls might be subpoenaed by prosecutors” … . People v Mason, 2018 NY Slip Op 07944, First Dept 11-20-18

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EVIDENCE OF SERIOUS PHYSICAL INJURY MET THE LEGALLY SUFFICIENT EVIDENCE APPELLATE REVIEW CRITERIA (CT APP).

The Court of Appeals, over a two-judge dissent, determined the evidence of serious physical injury in this first degree assault case met the “legally sufficient evidence” standard of appellate review. The victim was shot in the leg and bullet fragments remain in his body:

The victim testified that he can still “feel [the bullet] poking out,” and that he continues to endure the effects “of the metal inside [his] leg.” Even four years after the shooting, the victim noted that the injury still “disturbs” him at times, and that “something is wrong with [his] leg.” The victim stated that, because the bullet “didn’t come out of [his] leg,” his “life” had been “tampered with.” For instance, he can no longer participate in competitive sports, as the injury would present a “very, very, very, very big risk.” The medical expert further testified that there are “many repercussions” of the type of muscle damage that the victim sustained: “Muscle damage can cause long-term injuries to the kidneys from leakage of chemicals from the muscle, toxic to the kidneys, can cause pain and weakness, difficulty walking.”

As the dissent notes, there is certainly record evidence favorable to the defense that, when viewed in isolation, might have presented an issue of fact for the jury. That said, viewing the evidence in the light most favorable to the People, as our legal sufficiency standard requires, we have no trouble concluding that the jury acted rationally in finding that the victim’s gunshot wound constituted a “serious physical injury” … . People v Garland, 2018 NY Slip Op 07927, CtApp 11-20-18

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COUNTERFEIT CONCERT TICKETS FALL WITHIN THE AMBIT OF THE STATUTE PROHIBITING POSSESSION OF A FORGED INSTRUMENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined that counterfeit concert tickets fall within the ambit of the statute prohibiting possession of a forged instrument:

Defendant’s argument, a jurisdictional challenge to the indictments against him, amounts to the claim that the otherwise valid statement of the elements of the crime in each count is negated by the specific allegation in the “to wit” phrase that the forged instrument purported to be an event ticket. He insists, in effect, that counterfeit event tickets could never fall within the ambit of the second-degree forgery statute. Defendant’s rationale is that event tickets, the instruments that defendant’s counterfeit documents purported to be, are merely revocable licenses and do not “affect a legal right, interest, obligation or status.” …

Defendant’s premise that event tickets are revocable licenses is true. The case law saying as much is venerable. The purchase of an event admission ticket gives the holder “a revocable license . . . to enter the building in which [the event is held], and to attend the performance” … . An event ticket, in other words, is a permission slip, subject to retraction.

It does not follow, however, that an event ticket does not affect a legal right, i.e., “right created or recognized by law” … , or status, i.e., “legal condition, whether personal or proprietary” … . Indeed, the same decisions on which defendant relies to demonstrate the revocable nature of event tickets also describe the legal rights, albeit limited, that a ticket evidences or otherwise affects. An event ticket, the Court wrote, “is a license, issued by the proprietor . . . as convenient evidence of the right of the holder to admission”… . The Legislature has similarly defined a ticket, in the context of entertainment and the arts generally, as “any evidence of the right of entry to any place of entertainment”… . People v Watts, 2018 NY Slip Op 07926, CtApp 11-20-18

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THE PROSECUTION’S FAILURE TO PRESENT A WITNESS TO THE GRAND JURY, AS REQUESTED BY THE DEFENDANT, DID NOT RISE TO A CONSTITUTIONAL DEFECT, THEREFORE THE ISSUE DID NOT SURVIVE DEFENDANT’S GUILTY PLEA (CT APP).

The Court of Appeals, over a two-judge concurrence, determined the defendant’s argument that the integrity of the grand jury proceedings was impaired by the prosecution’s failure to call a witness requested by the defendant did not raise a constitutional issue and therefore was precluded by defendant’s guilty plea:

Defendant does not contend that the evidence before the grand jury was insufficient to support the indictment. Instead, defendant claims that the prosecutor’s conduct impaired the integrity of the grand jury proceeding and argues his motion to dismiss the indictment for defective grand jury proceedings on that ground is not forfeited by his guilty plea. …

… [W]e have explained that even after entering a valid guilty plea, “a defendant may not forfeit a claim of a constitutional [*2]defect implicating the integrity of the process” …  and we have recognized that certain claimed defects in a grand jury proceeding rise to this level … .

Defendant’s claim in this case rests on the purported exclusion of a witness, the substance of whose testimony was contained in an affidavit provided to the courts below. That proffered testimony was largely inadmissible and, in any event, would have inculpated him by establishing that he had a relationship with the complainant and had been in her presence in violation of an order of protection. The exclusion of such testimony before the grand jury does not present “a constitutional defect implicating the integrity of the process”…  and accordingly the claimed violation in this case did not survive defendant’s guilty plea.  People v Manragh, 2018 NY Slip Op 07924, CtApp 11-20-18

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SUPREME COURT PROPERLY FOUND THE GUNPOINT ARREST UNLAWFUL AND PROPERLY SUPPRESSED THE SEIZED ITEMS AND THE LINEUP IDENTIFICATION (FIRST DEPT).

The First Department determined Supreme Court properly suppressed evidence seized at the time of the illegal arrest, as well as the subsequent lineup identification:

… [A]t the time of the gunpoint seizure of the two defendants, the police had an anonymous tip that an undescribed suspect or suspects had burglarized an unspecified apartment on the sixth floor of a building, they spoke to building residents who reported noise on that floor, and they saw defendants leaving an apartment on that floor carrying undescribed bags. The totality of this information failed to provide reasonable suspicion to support an immediate forcible seizure without any inquiry. The police learned additional information, but only after the unlawful seizure.

Therefore, the court properly suppressed all physical evidence as fruit of the illegality. Furthermore, the court also granted suppression, independently of the initial illegality, because the witness’s recollection about the subsequent search of the contents of the bags, and about the recovery of gloves from the hallway floor, was so limited that the People did not meet their initial burden of coming forward with credible evidence to establish either a search of the bags incident to a lawful arrest or the abandonment of the gloves … .

The record also supports the court’s determination to suppress an officer’s lineup identification of [defendant] Salkey, who had fled the scene, as the unattenuated fruit of the unlawful stop and frisk … . The vague testimony provided no explanation of how Salkey came to be placed in a lineup, and no basis for finding attenuation from the initial illegality. People v Brown, 2018 NY Slip Op 07956, First Dept 11-20-18

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STATUTE PROHIBITING LEVEL THREE SEX OFFENDERS FROM ENTERING SCHOOL GROUNDS APPLIES TO ALL LEVEL THREE OFFENDERS, NOT ONLY THOSE INCARCERATED FOR AN ENUMERATED SEX CRIME AT THE TIME OF THEIR RELEASE ON PAROLE, HERE THE PETITIONER HAD PREVIOUSLY BEEN ADJUDICATED A LEVEL THREE SEX OFFENDER BUT WAS BEING PAROLED AFTER INCARCERATION FOR A ROBBERY CONVICTION (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Troutman, determined that the Executive Law provision which prohibits level three sex offenders from entering school grounds applies to all level three sex offenders, not only those who are incarcerated for one of the enumerated sex crimes at the time they are released on parole. Petitioner was convicted of rape and adjudicated a level three offender in 1994. Subsequently petition was convicted of and incarcerated for robbery, which is not one of the enumerated crimes. The court noted that it was not, under administrative law principles, required to defer to the Board of Parole’s ruling, but nevertheless it agreed with the ruling and Supreme Court’s denial of the petition. The Fourth Department found the statute is ambiguous applying statutory-construction rules and then turned to the legislative history of the statute (Executive Law 259-c (14)):

When Executive Law § 259-c (14) was first enacted, the school grounds mandatory condition applied only to persons serving a sentence for an enumerated offense against a minor … . In 2005, the legislature amended the statute to add the reference to level three sex offenders … . The sponsors’ memorandum defined the purpose of that amendment: “To prohibit sex offenders placed on conditional release or parole from entering upon school grounds or other facilities where the individual has been designated as a level three sex offender” … . As justification, the sponsors offered: “There is a need to prohibit those sex offenders who are determined to pose the most risk to children from entering upon school grounds or other areas where children are cared for” … . …

Based on our review of the legislative history relating to the enactment of the relevant amendment to Executive Law § 259-c (14), we conclude that there existed a consensus among governmental and nongovernmental organizations that, for good or ill, the amended language was intended to extend the school grounds mandatory condition to all persons conditionally released or released to parole who have been designated level three sex offender. People ex rel. Garcia v Annucci, 2018 NY Slip Op 07868, Fourth Dept 11-16-18 

CRIMINAL LAW (STATUTE PROHIBITING LEVEL THREE SEX OFFENDERS FROM ENTERING SCHOOL GROUNDS APPLIES TO ALL LEVEL THREE OFFENDERS, NOT ONLY THOSE INCARCERATED FOR AN ENUMERATED SEX CRIME AT THE TIME OF THEIR RELEASE ON PAROLE, HERE THE PETITIONER HAD PREVIOUSLY BEEN ADJUDICATED A LEVEL THREE SEX OFFENDER BUT WAS BEING PAROLED AFTER INCARCERATION FOR A ROBBERY CONVICTION (FOURTH DEPT))/SEX OFFENDER REGISTRATION ACT (SORA)  (STATUTE PROHIBITING LEVEL THREE SEX OFFENDERS FROM ENTERING SCHOOL GROUNDS APPLIES TO ALL LEVEL THREE OFFENDERS, NOT ONLY THOSE INCARCERATED FOR AN ENUMERATED SEX CRIME AT THE TIME OF THEIR RELEASE ON PAROLE, HERE THE PETITIONER HAD PREVIOUSLY BEEN ADJUDICATED A LEVEL THREE SEX OFFENDER BUT WAS BEING PAROLED AFTER INCARCERATION FOR A ROBBERY CONVICTION (FOURTH DEPT))/PAROLE (SEX OFFENDERS, STATUTE PROHIBITING LEVEL THREE SEX OFFENDERS FROM ENTERING SCHOOL GROUNDS APPLIES TO ALL LEVEL THREE OFFENDERS, NOT ONLY THOSE INCARCERATED FOR AN ENUMERATED SEX CRIME AT THE TIME OF THEIR RELEASE ON PAROLE, HERE THE PETITIONER HAD PREVIOUSLY BEEN ADJUDICATED A LEVEL THREE SEX OFFENDER BUT WAS BEING PAROLED AFTER INCARCERATION FOR A ROBBERY CONVICTION (FOURTH DEPT))/SCHOOL GROUNDS (SEX OFFENDERS, PAROLE, STATUTE PROHIBITING LEVEL THREE SEX OFFENDERS FROM ENTERING SCHOOL GROUNDS APPLIES TO ALL LEVEL THREE OFFENDERS, NOT ONLY THOSE INCARCERATED FOR AN ENUMERATED SEX CRIME AT THE TIME OF THEIR RELEASE ON PAROLE, HERE THE PETITIONER HAD PREVIOUSLY BEEN ADJUDICATED A LEVEL THREE SEX OFFENDER BUT WAS BEING PAROLED AFTER INCARCERATION FOR A ROBBERY CONVICTION (FOURTH DEPT))EXECUTIVE LAW (SEX OFFENDERS, SCHOOL GROUNDS, PAROLE, STATUTE PROHIBITING LEVEL THREE SEX OFFENDERS FROM ENTERING SCHOOL GROUNDS APPLIES TO ALL LEVEL THREE OFFENDERS, NOT ONLY THOSE INCARCERATED FOR AN ENUMERATED SEX CRIME AT THE TIME OF THEIR RELEASE ON PAROLE, HERE THE PETITIONER HAD PREVIOUSLY BEEN ADJUDICATED A LEVEL THREE SEX OFFENDER BUT WAS BEING PAROLED AFTER INCARCERATION FOR A ROBBERY CONVICTION (FOURTH DEPT))

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