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IT WAS REVERSIBLE ERROR TO ALLOW EVIDENCE OF TWO FORGED CHECKS AT THE SECOND FORGERY TRIAL BECAUSE DEFENDANT HAD BEEN ACQUITTED OF THE CHARGES RELATED TO THOSE CHECKS IN THE FIRST TRIAL (FOURTH DEPT).

The Fourth Department, reversing County Court, determined that it was reversible error to allow the jury to hear evidence of two allegedly forged checks in the second forgery trial after defendant had been acquitted of the charges related to those checks in the first trial. The People were collaterally estopped from introducing evidence related to the acquittals:

At the new trial, notwithstanding that defendant was acquitted of the prior charged criminal conduct involving check numbers 61512 and 61519, the People were permitted to use those checks, over defendant’s objection, in their case-in-chief as evidence of, inter alia, defendant’s criminal intent and motive with respect to check number 61517. In instructing the jury concerning the purpose for which check numbers 61512 and 61519 could be considered, County Court referred to defendant’s alleged involvement with those checks as “uncharged conduct.” The court also instructed the jury: “Regarding evidence of other crimes, there may have been evidence that on another occasion the defendant engaged in criminal conduct.” Defendant contends, inter alia, that the People were collaterally estopped at the new trial from using check numbers 61512 and 61519 as evidence with respect to count two involving check number 61517, and that the court committed reversible error in permitting such evidence. We agree.

We conclude that it was improper for the court to characterize any evidence concerning defendant’s alleged possession of forged checks numbered 61512 and 61519 as “uncharged conduct” or “criminal conduct.” Defendant in fact had been charged, tried, and acquitted of criminal possession of a forged instrument in the second degree with respect to those checks. We therefore further conclude that the People were collaterally estopped by the earlier verdict from presenting any evidence related to check numbers 61512 and 61519 at the new trial … . People v Williams, 2018 NY Slip Op 05089, Fourth Dept 7-6-18

​CRIMINAL LAW (EVIDENCE, IT WAS REVERSIBLE ERROR TO ALLOW EVIDENCE OF TWO FORGED CHECKS AT THE SECOND FORGERY TRIAL BECAUSE DEFENDANT HAD BEEN ACQUITTED OF THE CHARGES RELATED TO THOSE CHECKS IN THE FIRST TRIAL (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, IT WAS REVERSIBLE ERROR TO ALLOW EVIDENCE OF TWO FORGED CHECKS AT THE SECOND FORGERY TRIAL BECAUSE DEFENDANT HAD BEEN ACQUITTED OF THE CHARGES RELATED TO THOSE CHECKS IN THE FIRST TRIAL (FOURTH DEPT))/MOLINEUX (CRIMINAL LAW, EVIDENCE, IT WAS REVERSIBLE ERROR TO ALLOW EVIDENCE OF TWO FORGED CHECKS AT THE SECOND FORGERY TRIAL BECAUSE DEFENDANT HAD BEEN ACQUITTED OF THE CHARGES RELATED TO THOSE CHECKS IN THE FIRST TRIAL (FOURTH DEPT))/PRIOR CRIMES AND BAD ACTS  (CRIMINAL LAW, EVIDENCE, IT WAS REVERSIBLE ERROR TO ALLOW EVIDENCE OF TWO FORGED CHECKS AT THE SECOND FORGERY TRIAL BECAUSE DEFENDANT HAD BEEN ACQUITTED OF THE CHARGES RELATED TO THOSE CHECKS IN THE FIRST TRIAL (FOURTH DEPT))

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DVDs SUBMITTED BY THE VICTIM’S FAMILY MEMBERS HAD BEEN SUBMITTED BEFORE IN CONNECTION WITH WHETHER PETITIONER SHOULD BE GRANTED PAROLE, BECAUSE THE DVDs DID NOT PRESENT NEW EVIDENCE, THE PAROLE BOARD SHOULD NOT HAVE RESCINDED ITS DECISION TO SET A RELEASE DATE (THIRD DEPT).

The Third Department, over a two-justice dissent, annulled the parole board’s rescission of its decision setting a release date for petitioner. In 1979, when petitioner was 19, he stabbed and killed his 15-year-old friend. The board initially set a release date of August 2016. The victim’s family then submitted two DVDs of statements by family members. Apparently the videos had been submitted before but were never made part of the file. Upon viewing the videos, the board rescinded its decision setting the release date. The Third Department found that the DVDs were not new evidence and therefore the rescission of the release date was not authorized:

Any alleged failure on respondent’s part to consider these materials earlier — not due to a failure to communicate with victims or to offer them opportunities to provide statements, but solely as the apparent result of respondent’s own inefficient filing system — cannot rationally be found to convert materials that had been provided to it 9 and 15 years before into new information that was not previously available or known.

… [O]ther challenges to parole rescission determinations based upon victim impact statements have exclusively involved new factual information that had not previously been known to respondent because the victims either had not provided statements or had not been given opportunities to do so … . Our review of the case law has revealed no other case involving a parole rescission decision that, as here, is based upon additional input from victims or family members who had previously submitted impact statements to respondent — much less multiple submissions of a thorough and extensive nature over many years.

In rescinding petitioner’s parole, respondent did not make the required finding that there was substantial evidence of “significant information” that “was not [previously] known by [respondent]” … . Matter of Duffy v New York State Bd. of Parole, 2018 NY Slip Op 05002, Third Dept 7-5-18

​CRIMINAL LAW (PAROLE, DVDs SUBMITTED BY THE VICTIM’S FAMILY MEMBERS HAD BEEN SUBMITTED BEFORE IN CONNECTION WITH WHETHER PETITIONER SHOULD BE GRANTED PAROLE, BECAUSE THE DVDs DID NOT PRESENT NEW EVIDENCE, THE PAROLE BOARD SHOULD NOT HAVE RESCINDED ITS DECISION TO SET A RELEASE DATE (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, PAROLE, DVDs SUBMITTED BY THE VICTIM’S FAMILY MEMBERS HAD BEEN SUBMITTED BEFORE IN CONNECTION WITH WHETHER PETITIONER SHOULD BE GRANTED PAROLE, BECAUSE THE DVDs DID NOT PRESENT NEW EVIDENCE, THE PAROLE BOARD SHOULD NOT HAVE RESCINDED ITS DECISION TO SET A RELEASE DATE (THIRD DEPT))/PAROLE (EVIDENCE,  DVDs SUBMITTED BY THE VICTIM’S FAMILY MEMBERS HAD BEEN SUBMITTED BEFORE IN CONNECTION WITH WHETHER PETITIONER SHOULD BE GRANTED PAROLE, BECAUSE THE DVDs DID NOT PRESENT NEW EVIDENCE, THE PAROLE BOARD SHOULD NOT HAVE RESCINDED ITS DECISION TO SET A RELEASE DATE (THIRD DEPT))

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ALTHOUGH THE EVIDENCE DEFENDANT ACTED AS AN ACCOMPLICE IN THE FATAL SHOOTING OF THE VICTIM WAS LEGALLY SUFFICIENT, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF WEAKNESS OF THE EVIDENCE DEFENDANT KNEW OF THE SHOOTER’S INTENT TO KILL THE VICTIM, AS OPPOSED TO AN INTENT TO ROB OR ASSAULT (THIRD DEPT).

The Third Department determined there was legally sufficient evidence to support defendant’s conviction that he acted as an accomplice in the fatal shooting of the victim by another man, White-Span. In other words, the elements of the charged offense were supported by some credible evidence. Defendant’s conviction was reversed, however, under a weight of the evidence analysis based on the weakness of the evidence that the defendant knew White-Span intended to kill the victim, as opposed to rob or assault the victim:

“Despite the [necessary] elements being supported by some credible evidence, because a different [verdict] would not have been unreasonable, this Court must independently examine the evidence further, viewing it in a neutral light to see if the verdict is against the weight of the evidence”… . Even if we accept that the evidence proved beyond a reasonable doubt that White-Span intentionally caused the victim’s death by shooting him and that defendant intentionally aided White-Span in locating and isolating the victim, the evidence does not prove beyond a reasonable doubt that defendant knew — before the shooting occurred — that White-Span planned to kill the victim, because defendant could have had other equally plausible reasons for wanting access to the victim, such as robbery or assault. …

In light of the People’s failure to establish beyond a reasonable doubt that defendant shared White-Span’s intent to kill the victim, the judgment of conviction must be reversed and the indictment against defendant dismissed … . People v Croley, 2018 NY Slip Op 04984, Third Dept 7-5-18

​CRIMINAL LAW (EVIDENCE, ALTHOUGH THE EVIDENCE DEFENDANT ACTED AS AN ACCOMPLICE IN THE FATAL SHOOTING OF THE VICTIM, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF WEAKNESS OF THE EVIDENCE DEFENDANT KNEW OF THE SHOOTER’S INTENT TO KILL THE VICTIM, AS OPPOSED TO AN INTENT TO ROB OR ASSAULT (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, ACCOMPLICE, ALTHOUGH THE EVIDENCE DEFENDANT ACTED AS AN ACCOMPLICE IN THE FATAL SHOOTING OF THE VICTIM, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF WEAKNESS OF THE EVIDENCE DEFENDANT KNEW OF THE SHOOTER’S INTENT TO KILL THE VICTIM, AS OPPOSED TO AN INTENT TO ROB OR ASSAULT (THIRD DEPT))/ACCESSORIAL LIABILITY (ALTHOUGH THE EVIDENCE DEFENDANT ACTED AS AN ACCOMPLICE IN THE FATAL SHOOTING OF THE VICTIM, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF WEAKNESS OF THE EVIDENCE DEFENDANT KNEW OF THE SHOOTER’S INTENT TO KILL THE VICTIM, AS OPPOSED TO AN INTENT TO ROB OR ASSAULT (THIRD DEPT))/APPEALS (WEIGHT OF THE EVIDENCE, ACCESSORIAL LIABILITY, ALTHOUGH THE EVIDENCE DEFENDANT ACTED AS AN ACCOMPLICE IN THE FATAL SHOOTING OF THE VICTIM, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF WEAKNESS OF THE EVIDENCE DEFENDANT KNEW OF THE SHOOTER’S INTENT TO KILL THE VICTIM, AS OPPOSED TO AN INTENT TO ROB OR ASSAULT (THIRD DEPT))/INTENT (CRIMINAL LAW, ACCESSORIAL LIABILITY,  ALTHOUGH THE EVIDENCE DEFENDANT ACTED AS AN ACCOMPLICE IN THE FATAL SHOOTING OF THE VICTIM, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF WEAKNESS OF THE EVIDENCE DEFENDANT KNEW OF THE SHOOTER’S INTENT TO KILL THE VICTIM, AS OPPOSED TO AN INTENT TO ROB OR ASSAULT (THIRD DEPT))/SHARED INTENT (CRIMINAL LAW, ACCESSORIAL LIABILITY,  ALTHOUGH THE EVIDENCE DEFENDANT ACTED AS AN ACCOMPLICE IN THE FATAL SHOOTING OF THE VICTIM, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF WEAKNESS OF THE EVIDENCE DEFENDANT KNEW OF THE SHOOTER’S INTENT TO KILL THE VICTIM, AS OPPOSED TO AN INTENT TO ROB OR ASSAULT (THIRD DEPT))

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EXECUTIVE LAW DOES NOT PROVIDE FOR THE CIRCUMSTANCE WHERE MORE THAN ONE CRIME VICTIM OBTAINS A JUDGMENT AGAINST THE ASSETS OF THE OFFENDER, HERE THE OFFICE OF VICTIM SERVICES PROPERLY PAID OUT THE ASSETS TO THE FIRST CRIME VICTIM WHO OBTAINED A JUDGMENT (THIRD DEPT).

The Third Department determined the Office of Victim Services (OVS) properly paid out the assets of an incarcerated offender to the first crime victim to obtain a judgment. The statute does not provide for retaining assets for other crime victims who may subsequently obtain a judgment against the offender:

“Executive Law § 632—a sets forth a statutory scheme intended to improve the ability of crime victims to obtain full and just compensation from the person(s) convicted of the crime” …  by “allow[ing] crime victims or their representatives to sue the convicted criminals who harmed them when the criminals receive substantial sums of money from virtually any source” and protecting those funds while litigation is pending … . …

There is no doubt that OVS complied with its express obligations under the statute. The problem is that the statute provides no guidance as to how OVS is to respond where, as here, multiple crime victims seek to recover and the preserved assets of a convicted person are inadequate … . OVS viewed its response to be governed by the general rule that, “[w]here two or more . . . orders affecting the same interest in personal property or debt are filed, the proceeds of the property or debt shall be applied in the order of filing,” and acted to have the preserved assets released to satisfy the first judgment obtained by a victim (CPLR 5234 [c]). …

The Legislature could have easily included language in Executive Law § 632-a that substituted a special rule of priority for the one set forth in CPLR 5234 (c), directed OVS to leave any provisional remedies in place until all victims had obtained judgments or created some mechanism for dividing the preserved assets between them. It did not do so, and “‘[a] court cannot by implication supply in a statute a provision which it is reasonable to suppose the Legislature intended intentionally to omit'” … . Waldman v State of New York, 2018 NY Slip Op 05000, Third Dept 7-5-18

​CRIMINAL LAW (ASSETS OF THE OFFENDER, CRIME VICTIMS, EXECUTIVE LAW DOES NOT PROVIDE FOR THE CIRCUMSTANCE WHERE MORE THAN ONE CRIME VICTIM OBTAINS A JUDGMENT AGAINST THE ASSETS OF THE OFFENDER, HERE THE OFFICE OF VICTIM SERVICES PROPERLY PAID OUT THE ASSETS TO THE FIRST CRIME VICTIM WHO OBTAINED A JUDGMENT (THIRD DEPT))/CRIME VICTIMS (ASSETS OF THE OFFENDER,  EXECUTIVE LAW DOES NOT PROVIDE FOR THE CIRCUMSTANCE WHERE MORE THAN ONE CRIME VICTIM OBTAINS A JUDGMENT AGAINST THE ASSETS OF THE OFFENDER, HERE THE OFFICE OF VICTIM SERVICES PROPERLY PAID OUT THE ASSETS TO THE FIRST CRIME VICTIM WHO OBTAINED A JUDGMENT (THIRD DEPT))/OFFICE OF VICTIM SERVICES (OVS) (ASSETS OF THE OFFENDER, CRIME VICTIMS, EXECUTIVE LAW DOES NOT PROVIDE FOR THE CIRCUMSTANCE WHERE MORE THAN ONE CRIME VICTIM OBTAINS A JUDGMENT AGAINST THE ASSETS OF THE OFFENDER, HERE THE OFFICE OF VICTIM SERVICES PROPERLY PAID OUT THE ASSETS TO THE FIRST CRIME VICTIM WHO OBTAINED A JUDGMENT (THIRD DEPT))/DEBTOR-CREDITOR (CRIME VICTIMS, ASSETS OF THE OFFENDER, EXECUTIVE LAW DOES NOT PROVIDE FOR THE CIRCUMSTANCE WHERE MORE THAN ONE CRIME VICTIM OBTAINS A JUDGMENT AGAINST THE ASSETS OF THE OFFENDER, HERE THE OFFICE OF VICTIM SERVICES PROPERLY PAID OUT THE ASSETS TO THE FIRST CRIME VICTIM WHO OBTAINED A JUDGMENT (THIRD DEPT))/CIVIL PROCEDURE (DEBTOR-CREDITOR, CRIME VICTIMS, ASSETS OF THE OFFENDER, PRIORITY OF JUDGMENTS, EXECUTIVE LAW DOES NOT PROVIDE FOR THE CIRCUMSTANCE WHERE MORE THAN ONE CRIME VICTIM OBTAINS A JUDGMENT AGAINST THE ASSETS OF THE OFFENDER, HERE THE OFFICE OF VICTIM SERVICES PROPERLY PAID OUT THE ASSETS TO THE FIRST CRIME VICTIM WHO OBTAINED A JUDGMENT (THIRD DEPT))/CPLR 5234 (DEBTOR-CREDITOR, CRIME VICTIMS, ASSETS OF THE OFFENDER, PRIORITY OF JUDGMENTS, EXECUTIVE LAW DOES NOT PROVIDE FOR THE CIRCUMSTANCE WHERE MORE THAN ONE CRIME VICTIM OBTAINS A JUDGMENT AGAINST THE ASSETS OF THE OFFENDER, HERE THE OFFICE OF VICTIM SERVICES PROPERLY PAID OUT THE ASSETS TO THE FIRST CRIME VICTIM WHO OBTAINED A JUDGMENT (THIRD DEPT))

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DESPITE RULING THAT NO EVIDENCE OF DEFENDANT’S REQUESTS TO TALK TO COUNSEL COULD BE PRESENTED, TWO TESTIFYING WITNESSES VIOLATED THAT RULING, BECAUSE THAT EVIDENCE CONFLICTED WITH THE DEFENSE STRATEGY A MISTRIAL SHOULD HAVE BEEN DECLARED, NEW TRIAL ORDERED (THIRD DEPT).

The Third Department reversed defendant’s conviction of felony leaving the scene of an accident and ordered a new trial. Defendant struck a pedestrian whose body came into defendant’s car through the windshield. Defendant did not contact the police for over an hour. Prior to trial defense counsel obtained a ruling from the judge that the People could not introduce any evidence defendant sought to communicate with counsel. That ruling was violated twice by testifying witnesses:

Defendant’s strategy at trial relied in large part upon the fact that she was not at fault in the accident but did witness the victim’s body being propelled through her windshield and coming to rest inches away from her. She relied upon this state of affairs to contend that her failure to contact authorities was not because she was “coldly calculating,” but because she was in shock and incapable of doing so. Defendant further questioned the proof supporting the People’s hypothesis that she left the scene with her sister before the 911 call.

Any indication that defendant sought to consult with counsel would undermine the foundation of this defense by prejudically suggesting that she was conscious of guilt, rational enough to consider the question of counsel and, perhaps, capable of reporting the accident or taking steps to avoid doing so … . …

In our view, [the] repeated violations of the pretrial ruling, in a case where defendant’s capacity to act and her actions after the accident were in serious dispute, caused harm that could not be reliably dissipated. County Court therefore abused its discretion in declining to declare a mistrial … and, inasmuch as we do not agree with defendant that the People deliberately acted to provoke a mistrial …  we remit for a new trial. People v Lentini, 2018 NY Slip Op 04983, Third Dept 7-5-18

CRIMINAL LAW (EVIDENCE, DESPITE RULING THAT NO EVIDENCE OF DEFENDANT’S REQUESTS TO TALK TO COUNSEL SHOULD BE PRESENTED, TWO TESTIFYING WITNESSES VIOLATED THAT RULING, BECAUSE THAT EVIDENCE CONFLICTED WITH THE DEFENSE STRATEGY A MISTRIAL SHOULD HAVE BEEN DECLARED, NEW TRIAL ORDERED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, DESPITE RULING THAT NO EVIDENCE OF DEFENDANT’S REQUESTS TO TALK TO COUNSEL SHOULD BE PRESENTED, TWO TESTIFYING WITNESSES VIOLATED THAT RULING, BECAUSE THAT EVIDENCE CONFLICTED WITH THE DEFENSE STRATEGY A MISTRIAL SHOULD HAVE BEEN DECLARED, NEW TRIAL ORDERED (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, EVIDENCE, DESPITE RULING THAT NO EVIDENCE OF DEFENDANT’S REQUESTS TO TALK TO COUNSEL SHOULD BE PRESENTED, TWO TESTIFYING WITNESSES VIOLATED THAT RULING, BECAUSE THAT EVIDENCE CONFLICTED WITH THE DEFENSE STRATEGY A MISTRIAL SHOULD HAVE BEEN DECLARED, NEW TRIAL ORDERED (THIRD DEPT))/MISTRIAL (CRIMINAL LAW, EVIDENCE, DESPITE RULING THAT NO EVIDENCE OF DEFENDANT’S REQUESTS TO TALK TO COUNSEL SHOULD BE PRESENTED, TWO TESTIFYING WITNESSES VIOLATED THAT RULING, BECAUSE THAT EVIDENCE CONFLICTED WITH THE DEFENSE STRATEGY A MISTRIAL SHOULD HAVE BEEN DECLARED, NEW TRIAL ORDERED (THIRD DEPT))

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COUNTY COURT ABUSED ITS DISCRETION WHEN IT DECLARED A MISTRIAL AFTER ONLY A SHORT PERIOD OF DELIBERATIONS, JEOPARDY ATTACHED AND DEFENDANT CAN NOT BE REPROSECUTED (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea and dismissing the indictment, determined the judge did not sufficiently explore alternatives before declaring a mistrial on the basis the jury was deadlocked. Therefore jeopardy attached the defendant’s subsequent guilty plea was vacated:

Here, the jury had deliberated for a little over two hours — excluding a lunch recess — when County Court received a note from the jury stating that “there appears not to be any way to a unanimous decision” and asking for guidance on how to proceed. Without consulting the parties for input on the appropriate response, County Court summoned the jury into the courtroom, noted that it had not been deliberating for very long, provided an Allen charge and asked the jury to resume deliberations and advise the court if it was unable to arrive at a verdict after a reasonable period of time. Fifty-one minutes after the jury had resumed deliberations, County Court recalled the jury back into the courtroom, on its own accord, and inquired whether the jury was still deadlocked. The foreperson confirmed that it was and, without seeking input from the People or defendant, County Court declared a mistrial.

County Court erred in its recall of the jury by: (1) doing so without first apprising the People and defendant of its intent to do so and seeking their comment; (2) doing so only 51 minutes after it had instructed the jury to resume deliberations; (3) not exploring the possibility of a dinner break or an overnight recess upon learning of the continuing deadlock; and (4) not seeking input from the parties before declaring a mistrial upon learning of the continuing deadlock. Because a mistrial was not manifestly necessary under the collective circumstances, County Court abused its discretion in declaring a mistrial, jeopardy attached and the People were precluded from reprosecuting defendant on the indictment … . People v Wilson, 2018 NY Slip Op 04982, Third Dept 7-5-18

​CRIMINAL LAW (DOUBLE JEOPARDY, COUNTY COURT ABUSED ITS DISCRETION WHEN IT DECLARED A MISTRIAL AFTER ONLY A SHORT PERIOD OF DELIBERATIONS, JEOPARDY ATTACHED AND DEFENDANT CAN NOT BE REPROSECUTED (THIRD DEPT))/CONSTITUTIONAL LAW (CRIMINAL LAW, DOUBLE JEOPARDY, COUNTY COURT ABUSED ITS DISCRETION WHEN IT DECLARED A MISTRIAL AFTER ONLY A SHORT PERIOD OF DELIBERATIONS, JEOPARDY ATTACHED AND DEFENDANT CAN NOT BE REPROSECUTED (THIRD DEPT))/MISTRIAL (CRIMINAL LAW, DOUBLE JEOPARDY, COUNTY COURT ABUSED ITS DISCRETION WHEN IT DECLARED A MISTRIAL AFTER ONLY A SHORT PERIOD OF DELIBERATIONS, JEOPARDY ATTACHED AND DEFENDANT CAN NOT BE REPROSECUTED (THIRD DEPT))/DOUBLE JEOPARDY (MISTRIAL,  COUNTY COURT ABUSED ITS DISCRETION WHEN IT DECLARED A MISTRIAL AFTER ONLY A SHORT PERIOD OF DELIBERATIONS, JEOPARDY ATTACHED AND DEFENDANT CAN NOT BE REPROSECUTED (THIRD DEPT))

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ALTHOUGH DEFENDANT WAS PRESENT IN A GARAGE WHERE METHAMPHETAMINE WAS BEING MANUFACTURED, THE EVIDENCE WAS INSUFFICIENT TO DEMONSTRATE SHE CONSTRUCTIVELY POSSESSED THE DRUGS, POSSESSION CONVICTION REVERSED AND INDICTMENT DISMISSED (THIRD DEPT).

The Third Department reversed defendant’s conviction of criminal possession of a controlled substance and dismissed the indictment. Defendant’s presence in a garage where methamphetamine was being manufactured was not enough to support the People’s theory she constructively possessed the drugs. The facts that defendant had admitted to using methamphetamine in the past and had recently purchase a legal allergy drug which can be used in the manufacture of methamphetamine did not demonstrate her exercise of dominion and control over the drugs in the garage:

As defendant was not found to be in physical possession of methamphetamine, the People proceeded against her on a theory of constructive possession. Thus, it was their burden to establish that she “exercise[d] dominion or control” over the methamphetamine in the one-pot or the area where it was found (Penal Law § 10.00 [8]…) . Defendant’s mere presence in the garage where the methamphetamine was found is not enough, standing alone, to establish dominion or control … . There were no other indicators that defendant had dominion or control over the garage or of the property where it was located; she did not reside there, and there was no evidence that she had keys, kept belongings there or frequently spent time there … . The People argue that the couch where defendant said she was napping was near the shelf where the one-pot containing methamphetamine was found … , and they emphasize the one-pot’s presence in plain view, the smoke and chemical odor noticed by the police officer and the presence in the garage of various substances and tools used to produce methamphetamine. However, knowledge of the presence of an illegal substance does not, without more, meet the People’s burden to demonstrate that a defendant “had the ability and intent to exercise dominion or control over the contraband” … . People v Yerian, 2018 NY Slip Op 04981, Third Dept 7-5-18

​CRIMINAL LAW (EVIDENCE, CONSTRUCTIVE POSSESSION, ALTHOUGH DEFENDANT WAS PRESENT IN A GARAGE WHERE METHAMPHETAMINE WAS BEING MANUFACTURED, THE EVIDENCE WAS INSUFFICIENT TO DEMONSTRATE SHE CONSTRUCTIVELY POSSESSED THE DRUGS, POSSESSION CONVICTION REVERSED AND INDICTMENT DISMISSED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, CONSTRUCTIVE POSSESSION, ALTHOUGH DEFENDANT WAS PRESENT IN A GARAGE WHERE METHAMPHETAMINE WAS BEING MANUFACTURED, THE EVIDENCE WAS INSUFFICIENT TO DEMONSTRATE SHE CONSTRUCTIVELY POSSESSED THE DRUGS, POSSESSION CONVICTION REVERSED AND INDICTMENT DISMISSED (THIRD DEPT))/CONSTRUCTIVE POSSESSION (CRIMINAL LAW, ALTHOUGH DEFENDANT WAS PRESENT IN A GARAGE WHERE METHAMPHETAMINE WAS BEING MANUFACTURED, THE EVIDENCE WAS INSUFFICIENT TO DEMONSTRATE SHE CONSTRUCTIVELY POSSESSED THE DRUGS, POSSESSION CONVICTION REVERSED AND INDICTMENT DISMISSED (THIRD DEPT))/DOMINION AND CONTROL (CRIMINAL LAW, CONSTRUCTIVE POSSESSION, ALTHOUGH DEFENDANT WAS PRESENT IN A GARAGE WHERE METHAMPHETAMINE WAS BEING MANUFACTURED, THE EVIDENCE WAS INSUFFICIENT TO DEMONSTRATE SHE CONSTRUCTIVELY POSSESSED THE DRUGS, POSSESSION CONVICTION REVERSED AND INDICTMENT DISMISSED (THIRD DEPT))/METHAMPHETAMINE (CRIMINAL LAW, CONSTRUCTIVE POSSESSION, ALTHOUGH DEFENDANT WAS PRESENT IN A GARAGE WHERE METHAMPHETAMINE WAS BEING MANUFACTURED, THE EVIDENCE WAS INSUFFICIENT TO DEMONSTRATE SHE CONSTRUCTIVELY POSSESSED THE DRUGS, POSSESSION CONVICTION REVERSED AND INDICTMENT DISMISSED (THIRD DEPT))

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EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT DID NOT JUSTIFY ENTRY AND SEARCH OF DEFENDANT’S APARTMENT, CONVICTIONS REVERSED (THIRD DEPT).

The Third Department reversed defendant’s criminal contempt and violation of probation convictions because the evidence of the offenses was the fruit of an illegal entry and search of defendant’s apartment. The attempt to justify the entry and search under the emergency exception to the warrant requirement was rejected. The police officer who entered defendant’s apartment, Carmichael, apparently expected that a man named Collins would be in the apartment with defendant. There was an order of protection prohibiting contact between the defendant and Collins:

We conclude that Carmichael’s testimony established that there was not an objectively reasonable basis for him to believe that there was an ongoing emergency in defendant’s apartment that required immediate assistance to protect life or property. Carmichael was aware that defendant was no longer incarcerated. There was no evidence that defendant’s apartment had been forcibly entered, nor was there any other indication of an ongoing crime or emergency. The low, muffled sound that he heard and the faint light that was seen through the window were consistent with an occupant watching television, a reasonable activity at that hour of night. … The police had been advised that Collins had been seen in the vicinity of defendant’s apartment during the evening in question, and they considered the possibility that he was at her apartment in violation of the order of protection. …

Further, even had Carmichael’s initial entry been lawful, his subsequent search of defendant’s apartment was not. A protective sweep is justified only when the police “have articulable facts upon which to believe that there is a person present who may pose a danger to those on the scene” … . People v Sears, 2018 NY Slip Op 04980, Third Dept 7-5-18

​CRIMINAL LAW (EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT DID NOT JUSTIFY ENTRY AND SEARCH OF DEFENDANT’S APARTMENT, CONVICTIONS REVERSED (THIRD DEPT))/WARRANTLESS ENTRY AND SEARCH (EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT DID NOT JUSTIFY ENTRY AND SEARCH OF DEFENDANT’S APARTMENT, CONVICTIONS REVERSED (THIRD DEPT))/HOME (CRIMINAL LAW, WARRANTLESS ENTRY AND SEARCH, EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT DID NOT JUSTIFY ENTRY AND SEARCH OF DEFENDANT’S APARTMENT, CONVICTIONS REVERSED (THIRD DEPT))/SEARCH (CRIMINAL LAW, WARRANTLESS ENTRY AND SEARCH, EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT DID NOT JUSTIFY ENTRY AND SEARCH OF DEFENDANT’S APARTMENT, CONVICTIONS REVERSED (THIRD DEPT))/SUPPRESSION (CRIMINAL LAW, EVIDENCE, EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT DID NOT JUSTIFY ENTRY AND SEARCH OF DEFENDANT’S APARTMENT, CONVICTIONS REVERSED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION, (EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT DID NOT JUSTIFY ENTRY AND SEARCH OF DEFENDANT’S APARTMENT, CONVICTIONS REVERSED (THIRD DEPT))

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DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO MOVE TO DISMISS THE ACCUSATORY INSTRUMENTS ON SPEEDY TRIAL GROUNDS, CONVICTIONS REVERSED (THIRD DEPT).

The Third Department reversed defendant’s convictions and dismissed the accusatory instruments because defendant did not receive effective assistance of counsel. Counsel failed to moved to dismiss the prosecution on the ground that defendant’s right to a speedy trial had been violated. Had the motion been made, it would have succeeded:

Where, as here, a class A misdemeanor is the most serious offense of which a defendant is accused, the People have 90 days from the commencement of the criminal action to declare their readiness (see CPL 30.30 [1] [b]…). Compliance with this deadline is determined by “computing the time elapsed between the filing of the first accusatory instrument and the People’s declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion” … . Here, although the People declared their readiness 19 days after the accusatory instruments were filed and defendant was arraigned on the charges, they expressly stated at the subsequent appearance on February 9, 2015 that they were not ready for trial and sought an adjournment for the very purpose of trial preparation. The People did not thereafter declare their readiness until June 15, 2015, beyond the 90-day period. Thus, as the People acknowledge, defendant possessed a meritorious statutory speedy trial claim, and defense counsel’s failure to raise it in a pretrial motion to dismiss deprived defendant of meaningful representation … . People v Smart, 2018 NY Slip Op 04979, Third Dept 7-5-18

​CRIMINAL LAW (ATTORNEYS, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO MOVE TO DISMISS THE ACCUSATORY INSTRUMENTS ON SPEEDY TRIAL GROUNDS, CONVICTIONS REVERSED (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO MOVE TO DISMISS THE ACCUSATORY INSTRUMENTS ON SPEEDY TRIAL GROUNDS, CONVICTIONS REVERSED (THIRD DEPT))/INEFFECTIVE ASSISTANCE (CRIMINAL LAW,  DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO MOVE TO DISMISS THE ACCUSATORY INSTRUMENTS ON SPEEDY TRIAL GROUNDS, CONVICTIONS REVERSED (THIRD DEPT))/SPEEDY TRIAL (CRIMINAL LAW, ATTORNEYS, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO MOVE TO DISMISS THE ACCUSATORY INSTRUMENTS ON SPEEDY TRIAL GROUNDS, CONVICTIONS REVERSED (THIRD DEPT))

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INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing County Court, determined there was sufficient evidence before the Grand Jury to support several counts dismissed by the motion court. The dismissed counts related to allegedly false information on business records about farm employees’ hours and pay and the employment of a minor (a 14-year-old killed operating heavy farm equipment) in violation of the Labor Law:

“To dismiss an indictment or counts thereof on the basis of insufficient evidence before a grand jury, a reviewing court must consider whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury” … . “In the context of grand jury proceedings, ‘legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt'” … . “The reviewing court’s inquiry is limited to ‘whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes,’ and whether ‘the [g]rand [j]ury could rationally have drawn the guilty inference'” … . * * *

Viewed most favorably to the People, we find that the evidence before the grand jury provided a prima facie case of falsifying business records in the first degree and offering a false instrument for filing in the first degree. Although there was no proof that defendant himself compiled the relevant time sheets or submitted them to [the bookkeeper], the evidence established that employees reported their hours directly to defendant — who regularly paid them in cash off the books — and that defendant was solely responsible for the accuracy of the payroll information, personally certified the accuracy of two amended [the unemployment insurance] forms and instructed one of his employees to lie about the number of hours he worked. * * *

“[W]here an indictment count incorporates by reference the statutory provision applicable to the crime intended to be charged, it has been repeatedly held that this is sufficient to apprise [a] defendant of the charge and, therefore, renders the count jurisdictionally valid” … . Here, counts 14 and 15 of the indictment each begin by accusing defendant of the crime of prohibited employment of a minor in violation of Labor Law § 145, which provides that a knowing violation of a provision of article 4 of the Labor Law is punishable by a misdemeanor. While County Court correctly noted that Labor Law § 145 does not state a substantive offense, each count then goes on to specify the particular section of article 4 of the Labor Law which defendant is alleged to have violated, as well as the conduct forming the basis of the charges. People v Park, 2018 NY Slip Op 04985, Third Dept 7-5-18

​CRIMINAL LAW (EVIDENCE, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/INDICTMENTS (EVIDENCE, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/GRAND JURY (EVIDENCE, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/EMPLOYMENT LAW (CRIMINAL LAW, FALSE BUSINESS RECORDS, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/LABOR LAW (CRIMINAL LAW, INDICTMENTS, GRAND JURY, EVIDENCE,  INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/MINORS (EMPLOYMENT LAW, CRIMINAL LAW, LABOR LAW, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/UNEMPLOYMENT INSURANCE (CRIMINAL LAW, EVIDENCE, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))

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