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EVIDENTIARY RULING BY A TRIAL JUDGE WAS NOT THE LAW OF THE CASE AND WAS PROPERLY RECONSIDERED PRIOR TO TRIAL BY A NEW TRIAL JUDGE, STATEMENT HEARD IN THE BACKGROUND OF A 911 CALL IDENTIFYING DEFENDANT AS THE SHOOTER SHOULD NOT HAVE BEEN ADMITTED AS AN EXCITED UTTERANCE, NO EVIDENCE THE DECLARANT SAW THE SHOOTING (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a concurring opinion, reversing defendant’s conviction, determined that a statement heard in the background of a 911 call should not have been admitted as an excited utterance. The statement ostensibly identified the defendant as the man who had just shot three people. Other than the defendant’s fingerprint found on the van the shooter got into, there was no evidence identifying the defendant as the shooter. Two trial judges had ruled the 911 statement inadmissible before a third trial judge allowed it to come in. The Court of Appeals held that the law of the case doctrine did not prohibit the third judge from ruling on the admissibility of the statement, but the statement was inadmissible because there was no evidence the declarant observed the shooting:

The decision to admit hearsay as an excited utterance is an evidentiary decision, “left to the sound judgment of the trial court”… , and thus may be reconsidered on retrial … . There is no reason to apply a different rule to a successor judge within the same trial and we, therefore, have no basis to adopt a per se rule prohibiting a substitute judge from exercising independent discretion concerning an evidentiary trial ruling.  * **

A “spontaneous declaration or excited utterance — made contemporaneously or immediately after a startling event — which asserts the circumstances of that occasion as observed by the declarant” is an exception to the prohibition on hearsay … . “The admission of a hearsay statement under any exception deprives the defendant of the right to test the accuracy and trustworthiness of the statement by cross-examination”… . Although hearsay, excited utterances may be admissible because, “as the impulsive and unreflecting responses of the declarant to the injury or other startling event, they possess a high degree of trustworthiness, and, as thus expressing the real tenor of said declarant’s belief as to the facts just observed by him, may be received as testimony of those facts”… . … “[I]t must be inferable that the declarant had an opportunity to observe personally the event described in the [spontaneous] declaration” … . Direct observation by the person making the excited utterance ensures that the declarant is in fact reacting to and “assert[ing] the circumstances of” the event causing the excitement … . People v Cummings, 2018 NY Slip Op 03306, CtApp 5-8-18

​CRIMINAL LAW (EVIDENTIARY RULING BY A TRIAL JUDGE WAS NOT THE LAW OF THE CASE AND WAS PROPERLY RECONSIDERED PRIOR TO TRIAL BY A NEW TRIAL JUDGE, STATEMENT HEARD IN THE BACKGROUND OF A 911 CALL IDENTIFYING DEFENDANT AS THE SHOOTER SHOULD NOT HAVE BEEN ADMITTED AS AN EXCITED UTTERANCE, NO EVIDENCE THE DECLARANT SAW THE SHOOTING (CT APP))/EVIDENCE (CRIMINAL LAW, EVIDENTIARY RULING BY A TRIAL JUDGE WAS NOT THE LAW OF THE CASE AND WAS PROPERLY RECONSIDERED PRIOR TO TRIAL BY A NEW TRIAL JUDGE, STATEMENT HEARD IN THE BACKGROUND OF A 911 CALL IDENTIFYING DEFENDANT AS THE SHOOTER SHOULD NOT HAVE BEEN ADMITTED AS AN EXCITED UTTERANCE, NO EVIDENCE THE DECLARANT SAW THE SHOOTING (CT APP))/HEARSAY (CRIMINAL LAW, EXCITED UTTERANCE, EVIDENTIARY RULING BY A TRIAL JUDGE WAS NOT THE LAW OF THE CASE AND WAS PROPERLY RECONSIDERED PRIOR TO TRIAL BY A NEW TRIAL JUDGE, STATEMENT HEARD IN THE BACKGROUND OF A 911 CALL IDENTIFYING DEFENDANT AS THE SHOOTER SHOULD NOT HAVE BEEN ADMITTED AS AN EXCITED UTTERANCE, NO EVIDENCE THE DECLARANT SAW THE SHOOTING (CT APP))/EXCITED UTTERANCE (CRIMINAL LAW, EVIDENTIARY RULING BY A TRIAL JUDGE WAS NOT THE LAW OF THE CASE AND WAS PROPERLY RECONSIDERED PRIOR TO TRIAL BY A NEW TRIAL JUDGE, STATEMENT HEARD IN THE BACKGROUND OF A 911 CALL IDENTIFYING DEFENDANT AS THE SHOOTER SHOULD NOT HAVE BEEN ADMITTED AS AN EXCITED UTTERANCE, NO EVIDENCE THE DECLARANT SAW THE SHOOTING (CT APP))/LAW OF THE CASE (CRIMINAL LAW, EVIDENTIARY RULING BY A TRIAL JUDGE WAS NOT THE LAW OF THE CASE AND WAS PROPERLY RECONSIDERED PRIOR TO TRIAL BY A NEW TRIAL JUDGE, STATEMENT HEARD IN THE BACKGROUND OF A 911 CALL IDENTIFYING DEFENDANT AS THE SHOOTER SHOULD NOT HAVE BEEN ADMITTED AS AN EXCITED UTTERANCE, NO EVIDENCE THE DECLARANT SAW THE SHOOTING (CT APP))

PLACE OF BUSINESS EXCEPTION TO THE STATUTE CRIMINALIZING POSSESSION OF A FIREARM AS A FELONY DID NOT APPLY TO A MANAGER OF A MCDONALD’S RESTAURANT, AS OPPOSED TO A MERCHANT, STOREKEEPER OR PRINCIPAL OPERATOR (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over a concurring opinion, determined that the “place of business” exception the the stature criminalizing possession of an unlicensed firearm as a felony did not apply to defendant, who was a swing manager at a McDonald’s restaurant. While working at the restaurant the defendant’s firearm discharged accidentally and wounded him:

The question presented on this appeal is whether the “place of business” exception to Penal Law § 265.03 (3) applies to an employee who possessed an unlicensed firearm at work. Defendant contends that “place of business” simply means one’s place of employment, and therefore the exception applies. We read the exception to narrowly encompass a person’s “place of business,” when such person is a merchant, storekeeper, or principal operator of a like establishment. People v Wallace, 2018 NY Slip Op 03305, CtApp 5-8-18

​CRIMINAL LAW (POSSESSION OF A WEAPON, PLACE OF BUSINESS EXCEPTION TO THE STATUTE CRIMINALIZING POSSESSION OF A FIREARM AS A FELONY DID NOT APPLY TO A MANAGER OF A MCDONALD’S RESTAURANT, AS OPPOSED TO A MERCHANT, STOREKEEPER OR PRINCIPAL OPERATOR (CT APP))/PLACE OF BUSINESS (POSSESSION OF A WEAPON, PLACE OF BUSINESS EXCEPTION TO THE STATUTE CRIMINALIZING POSSESSION OF A FIREARM AS A FELONY DID NOT APPLY TO A MANAGER OF A MCDONALD’S RESTAURANT, AS OPPOSED TO A MERCHANT, STOREKEEPER OR PRINCIPAL OPERATOR (CT APP))/WEAPON, POSSESSION OF (PLACE OF BUSINESS EXCEPTION TO THE STATUTE CRIMINALIZING POSSESSION OF A FIREARM AS A FELONY DID NOT APPLY TO A MANAGER OF A MCDONALD’S RESTAURANT, AS OPPOSED TO A MERCHANT, STOREKEEPER OR PRINCIPAL OPERATOR (CT APP))

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DEFENDANT WHO ALLOWED 16-YEAR-OLD NEIGHBOR TO WATCH PLAINTIFF’S FIVE-YEAR-OLD DAUGHTER WAS NOT LIABLE FOR THE MURDER OF PLAINTIFF’S DAUGHTER BY THE NEIGHBOR, THE CRIMINAL ACT SEVERED THE LIABILITY OF THE DEFENDANT, NEIGHBOR HAD WATCHED THE CHILD BEFORE WITHOUT INCIDENT, NO RED FLAGS (FOURTH DEPT).

The Fourth Department determined defendant great-grandmother’s motion for summary judgment in this negligent supervision action was properly granted. Defendant was care for plaintiff’s five-year-old daughter, Isabella. When defendant went to bed she left Isabella with 16-year old Freeman, a neighbor who had watched Isabella more than 10 times in the past without incident. Freeman killed plaintiff’s daughter while defendant was asleep:

It is well established that ” an intervening intentional or criminal act will generally sever the liability of the original tort-feasor’ ” … . “The test to be applied is whether under all the circumstances the chain of events that followed [an allegedly] negligent act or omission was a normal or foreseeable consequence of the situation created by the [alleged] negligence” … . Thus, an intervening criminal act by a third party that is ” extraordinary under the circumstances’ ” or ” not foreseeable in the normal course of events’ ” breaks the causal chain and exonerates the original tortfeasor of liability … .

Here, even assuming, arguendo, that defendant was negligent to some extent in supervising Isabella on the night in question, we nevertheless conclude, as a matter of law, that Freeman’s intentional murder of Isabella severed the chain of causation and eliminated any liability on defendant’s part (see id.). The record contains numerous undisputed facts supporting that conclusion. Freeman had previously watched Isabella on more than 10 occasions, all without incident, and they had even colored together before. Freeman and Isabella got along well for years before the murder, and defendant never observed any “red flags” or troubling indicia about Freeman generally, or his interactions with Isabella in particular. Defendant was unaware of any mental problems with Freeman. Indeed, there is no suggestion that Freeman had ever exhibited any questionable behavior or tendencies in the past, whether or not known to defendant. Tennant v Lascelle, 2018 NY Slip Op 03279, Fourth Dept 5-4-18

​NEGLIGENCE (NEGLIGENT SUPERVISION, DEFENDANT WHO ALLOWED 16-YEAR-OLD NEIGHBOR TO WATCH PLAINTIFF’S FIVE-YEAR-OLD DAUGHTER WAS NOT LIABLE FOR THE MURDER OF PLAINTIFF’S DAUGHTER BY THE NEIGHBOR, THE CRIMINAL ACT SEVERED THE LIABILITY OF THE DEFENDANT, NEIGHBOR HAD WATCH EDTHE CHILD BEFORE WITHOUT INCIDENT, NO RED FLAGS (FOURTH DEPT))/NEGLIGENT SUPERVISION (DEFENDANT WHO ALLOWED 16-YEAR-OLD NEIGHBOR TO WATCH PLAINTIFF’S FIVE-YEAR-OLD DAUGHTER WAS NOT LIABLE FOR THE MURDER OF PLAINTIFF’S DAUGHTER BY THE NEIGHBOR, THE CRIMINAL ACT SEVERED THE LIABILITY OF THE DEFENDANT, NEIGHBOR HAD WATCH EDTHE CHILD BEFORE WITHOUT INCIDENT, NO RED FLAGS (FOURTH DEPT))/CRIMINAL ACT (NEGLIGENCE, SEVERS LIABILITY, DEFENDANT WHO ALLOWED 16-YEAR-OLD NEIGHBOR TO WATCH PLAINTIFF’S FIVE-YEAR-OLD DAUGHTER WAS NOT LIABLE FOR THE MURDER OF PLAINTIFF’S DAUGHTER BY THE NEIGHBOR, THE CRIMINAL ACT SEVERED THE LIABILITY OF THE DEFENDANT, NEIGHBOR HAD WATCH EDTHE CHILD BEFORE WITHOUT INCIDENT, NO RED FLAGS (FOURTH DEPT))

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DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT).

The Fourth Department determined defendant’s motion to vacate his conviction based upon ineffective assistance and actual innocence should not have been denied without a hearing:

… [T]he court erred in denying without a hearing that part of his motion based upon ineffective assistance of counsel. Defendant’s specific claim is that defense counsel failed to secure the presence of a witness who had potentially exculpatory information, and we agree with defendant that such a failure may serve as the basis for a finding of ineffective assistance of counsel … . At trial, defense counsel stated on the record that the witness had been subpoenaed to testify on defendant’s behalf. The witness did not testify, however, and there is nothing in the trial record indicating why. According to defendant’s moving papers, when the witness did not appear to testify, defense counsel merely stated: “Oh, well.” There is no dispute that defense counsel did not attempt to utilize the procedure for securing the trial testimony of a material witness … , or to seek a continuance to obtain the witness’s voluntary compliance with the subpoena. Notably, the witness avers in her affidavit that she was never subpoenaed.

The court denied that part of the motion based on its determination that defendant could have raised his claim on his direct appeal or in his prior CPL 440.10 motions … . That was error. Because the witness resided in another state and went by a different surname, it was not until 2014—after defendant made his two prior CPL 440.10 motions—that defendant was able to obtain an affidavit from her. The affidavit contains information not contained in the trial record and substantially supports defendant’s claim of ineffective assistance. Significantly, it raises an issue of fact whether the witness was ever subpoenaed by defense counsel. That issue of fact is separate and distinct from the witness’s information about the murder itself, which was known to defendant through the 2004 police report. Defendant could not have discovered and raised the issue of fact until 2014, when he was able to identify, locate, and obtain an affidavit from the witness. People v Borcyk, 2018 NY Slip Op 03256, Fourth Dept 5-4-18

​CRIMINAL LAW (MOTION TO VACATE CONVICTION, DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT))/ATTORNEYS (MOTION TO VACATE CONVICTION, INEFFECTIVE ASSISTANCE, DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT))/INEFFECTIVE ASSISTANCE (MOTION TO VACATE CONVICTION,  DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT))/ACTUAL INNOCENCE (MOTION TO VACATE CONVICTION, DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT))/VACATE CONVICTION, MOTION TO (DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT))

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DEFENDANT CONVICTED OF ASSAULT FIRST DEGREE FOR ALLOWING HIS DOG TO ATTACK THE VICTIM, EVIDENCE OF INTENT TO CAUSE SERIOUS INJURY WAS LEGALLY SUFFICIENT, MOTION FOR TRIAL ORDER OF DISMISSAL AT THE CLOSE OF THE EVIDENCE PRESERVED THE ISSUE BY REFERRING TO THE MOTION MADE AT THE CLOSE OF THE PEOPLE’S CASE (FOURTH DEPT).

The Fourth Department determined the evidence was legally sufficient to support the assault first conviction stemming from defendant’s allowing his dog to attack the victim. The court noted that the motion for a trial order of dismissal at the close of the People’s case was adequate to preserve the challenge to the legal sufficiency of the evidence of intent, even though the renewal of the motion at the close of evidence referred to the earlier motion:

The conviction arises from a dog attack that caused the victim to sustain injuries that included broken bones in his hands and the amputation of a portion of one of his fingers. The victim as well as witnesses to the attack testified that two pit bull terriers that had escaped their owner’s property attacked the victim, biting at his arms and legs, as the victim attempted to protect his dog from the pit bulls. Defendant, who was a friend of the owner of the pit bulls, arrived at the scene in a van driven by another man. Defendant exited the van, retrieved the two pit bulls and placed them in the van. After the pit bulls were secured in the van, the victim stood in front of the van and angrily told defendant that the police had been called and “you’re not going anywhere.” Defendant responded by asking the victim, “you coming at me? Are you going to stop me from leaving?” At that point defendant opened the van door and issued a command to the larger pit bull, who attacked the victim a second time, inflicting the injuries to the victim’s hands.

Defendant contends that the evidence is legally insufficient to support the conviction inasmuch as the People failed to prove that he intended to cause serious physical injury to the victim … . Viewing the evidence in the light most favorable to the People … , we conclude that the evidence is legally sufficient to establish such intent … . People v Bacon, 2018 NY Slip Op 03258, Fourth Dept 5-4-18

CRIMINAL LAW (DOG ATTACK, DEFENDANT CONVICTED OF ASSAULT FIRST DEGREE FOR ALLOWING HIS DOG TO ATTACK THE VICTIM, EVIDENCE OF INTENT TO CAUSE SERIOUS INJURY WAS LEGALLY SUFFICIENT, MOTION FOR TRIAL ORDER OF DISMISSAL AT THE CLOSE OF THE EVIDENCE PRESERVED THE ISSUE BY REFERRING TO THE MOTION MADE AT THE CLOSE OF THE PEOPLE’S CASE (FOURTH DEPT))/ANIMAL LAW (CRIMINAL LAW, DOG ATTACK, DEFENDANT CONVICTED OF ASSAULT FIRST DEGREE FOR ALLOWING HIS DOG TO ATTACK THE VICTIM, EVIDENCE OF INTENT TO CAUSE SERIOUS INJURY WAS LEGALLY SUFFICIENT, MOTION FOR TRIAL ORDER OF DISMISSAL AT THE CLOSE OF THE EVIDENCE PRESERVED THE ISSUE BY REFERRING TO THE MOTION MADE AT THE CLOSE OF THE PEOPLE’S CASE (FOURTH DEPT/DOGS (CRIMINAL LAW, DOG ATTACK, DEFENDANT CONVICTED OF ASSAULT FIRST DEGREE FOR ALLOWING HIS DOG TO ATTACK THE VICTIM, EVIDENCE OF INTENT TO CAUSE SERIOUS INJURY WAS LEGALLY SUFFICIENT, MOTION FOR TRIAL ORDER OF DISMISSAL AT THE CLOSE OF THE EVIDENCE PRESERVED THE ISSUE BY REFERRING TO THE MOTION MADE AT THE CLOSE OF THE PEOPLE’S CASE (FOURTH DEPT))/TRIAL ORDER OF DISMISSAL (CRIMINAL LAW, DEFENDANT CONVICTED OF ASSAULT FIRST DEGREE FOR ALLOWING HIS DOG TO ATTACK THE VICTIM, EVIDENCE OF INTENT TO CAUSE SERIOUS INJURY WAS LEGALLY SUFFICIENT, MOTION FOR TRIAL ORDER OF DISMISSAL AT THE CLOSE OF THE EVIDENCE PRESERVED THE ISSUE BY REFERRING TO THE MOTION MADE AT THE CLOSE OF THE PEOPLE’S CASE (FOURTH DEPT))/APPEALS (CRIMINAL LAW, TRIAL ORDER OF DISMISSAL, DEFENDANT CONVICTED OF ASSAULT FIRST DEGREE FOR ALLOWING HIS DOG TO ATTACK THE VICTIM, EVIDENCE OF INTENT TO CAUSE SERIOUS INJURY WAS LEGALLY SUFFICIENT, MOTION FOR TRIAL ORDER OF DISMISSAL AT THE CLOSE OF THE EVIDENCE PRESERVED THE ISSUE BY REFERRING TO THE MOTION MADE AT THE CLOSE OF THE PEOPLE’S CASE (FOURTH DEPT))

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WAIVER OF APPEAL INVALID, MATTER SENT BACK FOR YOUTHFUL OFFENDER DETERMINATION (FOURTH DEPT).

The Fourth Department determined the waiver of appeal was invalid and sent the matter back for a determination of youthful offender status:

Supreme Court did not elicit the waiver until after defendant had pleaded guilty and, in any event, “the record fails to establish that [the court] engaged him in an adequate colloquy to ensure that the waiver was a knowing and voluntary choice” … . Furthermore, “neither the written waiver of the right to appeal in the record nor the court’s brief mention of that waiver during the plea proceeding distinguished the waiver of the right to appeal from those rights automatically forfeited upon a plea of guilty” … .

We further agree with defendant that the court erred in failing to determine whether he should be afforded youthful offender status … . As the People correctly concede, defendant is an eligible youth, and the sentencing court must make “a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it” … . People v Willis, 2018 NY Slip Op 03291, Fourth Dept 5-4-18

​CRIMINAL LAW (WAIVER OF APPEAL INVALID, MATTER SENT BACK FOR YOUTHFUL OFFENDER DETERMINATION (FOURTH DEPT))/APPEALS (CRIMINAL LAW, WAIVER OF APPEAL INVALID, MATTER SENT BACK FOR YOUTHFUL OFFENDER DETERMINATION (FOURTH DEPT))/WAIVER OF APPEAL (CRIMINAL LAW, WAIVER OF APPEAL INVALID, MATTER SENT BACK FOR YOUTHFUL OFFENDER DETERMINATION (FOURTH DEPT))/YOUTHFUL OFFENDER (WAIVER OF APPEAL INVALID, MATTER SENT BACK FOR YOUTHFUL OFFENDER DETERMINATION (FOURTH DEPT))

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RESPONDENT, WHO PLED NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN THE SUBSEQUENT CRIMINAL PROCEDURE LAW 330.20 COMMITMENT PROCEEDINGS, RESPONDENT’S COUNSEL SIMPLY ACCEPTED THE PSYCHIATRIC EXAMINATION REPORTS (THIRD DEPT).

The Third Department, reversing County Court, determined respondent (defendant) did not receive effect assistance of counsel in the commitment proceedings following his plea of not responsible by reason of mental disease of defect (re: assault charges).

CPL 330.20 requires County Court to conduct an initial hearing within 10 days after receipt of psychiatric examination reports for the purpose of assigning an insanity acquittee to one of three “tracks” based upon his or her present mental condition … . “Track-one [acquittees] are those found by the trial judge to suffer from a dangerous mental disorder; i.e., a mental illness that makes them a physical danger to themselves or others. Track-two [acquittees] are mentally ill, but not dangerous, while track-three [acquittees] are neither dangerous nor mentally ill” … . County Court’s finding in this case placed respondent in track one, a status “significantly more restrictive than track two” … . “Track status, as determined by the initial commitment order, governs the acquittee’s level of supervision in future proceedings and may be overturned only on appeal from that order, not by means of a rehearing and review” … . Given the “vital[] importanc[e]” of track designation… , the initial commitment hearing was plainly “a critical stage of the proceedings during which respondent was entitled to the effective assistance of counsel, [requiring us to] consider whether counsel’s performance therein viewed in totality amounted to meaningful representation” …  We agree with respondent that counsel’s performance fell short of that standard.

By affirmatively stating at the initial hearing that she “was not contesting any findings” contained within the psychiatric reports, respondent’s counsel conceded that respondent had a dangerous mental disorder and, thus, implicitly consented to his confinement in a secure facility. Counsel did not call any witnesses or seek to cross-examine the psychiatrists who prepared the reports … , nor did counsel consult an expert on respondent’s behalf who may have offered a contrasting opinion as to his mental status or, at the very least, could have clinically assessed the examination reports and the approaches taken in reaching their ultimate conclusions … . Despite petitioner’s protestations to the contrary, there is no basis in this record to conclude that pursuit of any of these avenues — particularly cross-examination of the psychiatric examiners — would have been futile or otherwise destined for failure … . Under these circumstances, we are simply unable to discern any plausible strategy or legitimate explanation for counsel’s decision to completely acquiesce to the most severe track classification … . Matter of Matheson Kk., 2018 NY Slip Op 03195, Third Dept 5-3-18

​CRIMINAL LAW (INSANITY ACQUITEE, RESPONDENT, WHO PLED NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN THE SUBSEQUENT CRIMINAL PROCEDURE LAW 330.20 COMMITMENT PROCEEDINGS, RESPONDENT’S COUNSEL SIMPLY ACCEPTED THE PSYCHIATRIC EXAMINATION REPORTS (THIRD DEPT))/MENTAL HYGIENE LAW (CRIMINAL LAW, INSANITY ACQUITTEE, RESPONDENT, WHO PLED NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN THE SUBSEQUENT CRIMINAL PROCEDURE LAW 330.20 COMMITMENT PROCEEDINGS, RESPONDENT’S COUNSEL SIMPLY ACCEPTED THE PSYCHIATRIC EXAMINATION REPORTS (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, INSANITY ACQUITTEE, RESPONDENT, WHO PLED NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN THE SUBSEQUENT CRIMINAL PROCEDURE LAW 330.20 COMMITMENT PROCEEDINGS, RESPONDENT’S COUNSEL SIMPLY ACCEPTED THE PSYCHIATRIC EXAMINATION REPORTS (THIRD DEPT))/INEFFECTIVE ASSISTANCE (ATTORNEYS, CRIMINAL LAW, INSANITY ACQUITTEE,  RESPONDENT, WHO PLED NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN THE SUBSEQUENT CRIMINAL PROCEDURE LAW 330.20 COMMITMENT PROCEEDINGS, RESPONDENT’S COUNSEL SIMPLY ACCEPTED THE PSYCHIATRIC EXAMINATION REPORTS (THIRD DEPT))/INSANITY ACQUITTEE (CRIMINAL LAW, ATTORNEYS, INEFFECTIVE ASSISTANCE,  RESPONDENT, WHO PLED NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN THE SUBSEQUENT CRIMINAL PROCEDURE LAW 330.20 COMMITMENT PROCEEDINGS, RESPONDENT’S COUNSEL SIMPLY ACCEPTED THE PSYCHIATRIC EXAMINATION REPORTS (THIRD DEPT))/COMMITMENT (CRIMINAL LAW, INSANITY ACQUITTEE, ATTORNEYS,  RESPONDENT, WHO PLED NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN THE SUBSEQUENT CRIMINAL PROCEDURE LAW 330.20 COMMITMENT PROCEEDINGS, RESPONDENT’S COUNSEL SIMPLY ACCEPTED THE PSYCHIATRIC EXAMINATION REPORTS (THIRD DEPT))/CRIMINAL PROCEDURE LAW (CPL) 330.20 (COMMITMENT, INSANITY ACQUITTEE, RESPONDENT, WHO PLED NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN THE SUBSEQUENT CRIMINAL PROCEDURE LAW 330.20 COMMITMENT PROCEEDINGS, RESPONDENT’S COUNSEL SIMPLY ACCEPTED THE PSYCHIATRIC EXAMINATION REPORTS (THIRD DEPT))

UNDER THE STIPULATED FACTS, THE DEFENDANT’S TRAGIC ERROR, MISTAKING THE VICTIM FOR A DEER, DID NOT RISE TO THE LEVEL OF CRIMINAL NEGLIGENCE, NEGLIGENT HOMICIDE CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s negligent homicide conviction, determined there was no valid line of reasoning that could have led to the verdict in this hunting accident case. The facts were stipulated in this nonjury trial. The victim, who was in the defendant’s hunting party, was in an area all had agreed was off limits and there was evidence defendant reasonably mistook the victim for a deer:

Viewing the evidence in the light most favorable to the People … , there is no valid line of reasoning that could have led County Court to conclude that defendant engaged in any “blameworthy conduct” that created or contributed to a substantial and unjustifiable risk of death … . As stipulated to by the parties, … defendant had “no reason to believe [that] any of his three companions would be in the area where he was shooting.” Defendant’s hunting party was not engaged in the hunting practice of “driving” the deer … , and they had instead agreed to hunt from separate, stationary tree stands that had been specifically positioned prior to the hunt “in such a way that no one would be shooting in the direction of another hunter.” Additionally, … defendant and the property owner had specifically advised the victim that, should he decide to again leave his designated stand before the hunt was over, he should take a specific route … that was outside of the hunters’ respective lines of fire. Moreover, there was no evidence that defendant had consumed any alcohol or drugs prior to the hunt, and he was unaware that the victim had cocaine and opiates in his system. While defendant made the tragic and deadly error of mistaking the camouflage-dressed victim for a buck, we cannot say — under the stipulated set of facts — that his actions rose to the level of criminal negligence … . People v Gerbino, 2018 NY Slip Op 03179, Third Dept 5-3-18

​CRIMINAL LAW (UNDER THE STIPULATED FACTS, THE DEFENDANT’S TRAGIC ERROR, MISTAKING THE VICTIM FOR A DEER, DID NOT RISE TO THE LEVEL OF CRIMINAL NEGLIGENCE, NEGLIGENT HOMICIDE CONVICTION REVERSED (THIRD DEPT))/NEGLIGENT HOMICIDE  (UNDER THE STIPULATED FACTS, THE DEFENDANT’S TRAGIC ERROR, MISTAKING THE VICTIM FOR A DEER, DID NOT RISE TO THE LEVEL OF CRIMINAL NEGLIGENCE, NEGLIGENT HOMICIDE CONVICTION REVERSED (THIRD DEPT))/HUNTING ACCIDENT (NEGLIGENT HOMICIDE, (UNDER THE STIPULATED FACTS, THE DEFENDANT’S TRAGIC ERROR, MISTAKING THE VICTIM FOR A DEER, DID NOT RISE TO THE LEVEL OF CRIMINAL NEGLIGENCE, NEGLIGENT HOMICIDE CONVICTION REVERSED (THIRD DEPT))

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CONVICTION FOR UNLAWFUL USE OF SECRET SCIENTIFIC MATERIAL, STEMMING FROM DEFENDANT’S UPLOADING OF HIGH FREQUENCY TRADING SOURCE CODE OWNED BY GOLDMAN SACHS, AFFIRMED, SOURCE CODE HAD A PHYSICAL FORM AND WAS APPROPRIATED WITHIN THE MEANING OF THE STATUTE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, affirming the Appellate Division, determined the evidence was sufficient to convict the defendant of violating Penal Law 165.07 (unlawful use of secret scientific material). Just before leaving the employ of Goldman Sachs to begin work at another company, the defendant had uploaded (copied) to a German server source code used by Goldman Sachs for high frequency trading. There was no evidence anyone other than the defendant had access to the uploaded source code. The major issues were whether the source code had a “physical form” or was “appropriated” within the mean of the statute:

… [W]e conclude that viewing the facts in the light most favorable to the People, a rational jury could have found that the “reproduction or representation” that defendant made of Goldman’s source code, when he uploaded it to the German server, was tangible in the sense of “material” or “having physical form.” The jury heard testimony that the representation of source code has physical form. … [T]he computer engineer … testified that while source code, as abstract intellectual property, does not have physical form, the “[r]epresentation of it” is material. He explained that when computer files are stored on a hard drive or CD, they are physically present on that hard drive or disc, and further stated that data is visible “in aggregate” when stored on such a medium. The jury also heard testimony that source code that is stored on a computer “takes up physical space in a computer hard drive.” Given that a reproduction of computer code takes up space on a drive, it is clear that it is physical in nature. In short, the changes that are made to the hard drive or disc, when code or other information is stored, are physical. * * *

We conclude that there is legally sufficient evidence that defendant created a tangible copy of the source code on the German server in violation of Penal Law § 165.07. * * *

… [W]e must decide is whether there is legally sufficient evidence that [defendant] had the necessary mens rea of “intent to appropriate . . . the use of secret scientific material” (Penal Law § 165.07).  * * *

Appropriation does not imply depriving another of property. In fact, larceny in general is defined as involving either intent to appropriate or intent to deprive, with the clear implication that the two terms refer to separate concepts. * * * … [D]efendant may have intended to “appropriate” the source code without intending to deprive Goldman of all possession or use. People v Aleynikov, 2018 NY Slip Op 03174, CtApp 5-3-18

​CRIMINAL LAW (CONVICTION FOR UNLAWFUL USE OF SECRET SCIENTIFIC MATERIAL, STEMMING FROM DEFENDANT’S UPLOADING OF HIGH FREQUENCY TRADING SOURCE CODE OWNED BY GOLDMAN SACHS, AFFIRMED, SOURCE CODE HAD A PHYSICAL FORM AND WAS APPROPRIATED WITHIN THE MEANING OF THE STATUTE (CT APP))/SECRET SCIENTIFIC MATERIAL (CRIMINAL LAW, CONVICTION FOR UNLAWFUL USE OF SECRET SCIENTIFIC MATERIAL, STEMMING FROM DEFENDANT’S UPLOADING OF HIGH FREQUENCY TRADING SOURCE CODE OWNED BY GOLDMAN SACHS, AFFIRMED, SOURCE CODE HAD A PHYSICAL FORM AND WAS APPROPRIATED WITHIN THE MEANING OF THE STATUTE (CT APP))/EVIDENCE (CRIMINAL LAW, CONVICTION FOR UNLAWFUL USE OF SECRET SCIENTIFIC MATERIAL, STEMMING FROM DEFENDANT’S UPLOADING OF HIGH FREQUENCY TRADING SOURCE CODE OWNED BY GOLDMAN SACHS, AFFIRMED, SOURCE CODE HAD A PHYSICAL FORM AND WAS APPROPRIATED WITHIN THE MEANING OF THE STATUTE (CT APP))/SOURCE CODE (CONVICTION FOR UNLAWFUL USE OF SECRET SCIENTIFIC MATERIAL, STEMMING FROM DEFENDANT’S UPLOADING OF HIGH FREQUENCY TRADING SOURCE CODE OWNED BY GOLDMAN SACHS, AFFIRMED, SOURCE CODE HAD A PHYSICAL FORM AND WAS APPROPRIATED WITHIN THE MEANING OF THE STATUTE (CT APP))/INTELLECTUAL PROPERTY (CONVICTION FOR UNLAWFUL USE OF SECRET SCIENTIFIC MATERIAL, STEMMING FROM DEFENDANT’S UPLOADING OF HIGH FREQUENCY TRADING SOURCE CODE OWNED BY GOLDMAN SACHS, AFFIRMED, SOURCE CODE HAD A PHYSICAL FORM AND WAS APPROPRIATED WITHIN THE MEANING OF THE STATUTE (CT APP))

,

BEFORE CONSENTING TO A BREATHALYZER BLOOD-ALCOHOL TEST IN THIS DWI CASE, MORE THAN TWO HOURS AFTER DEFENDANT’S ARREST, DEFENDANT WAS INACCURATELY TOLD A TEST REFUSAL WOULD BE ADMISSIBLE AT TRIAL, DEFENDANT’S CONSENT TO THE TEST WAS THEREFORE NOT VOLUNTARY, EVIDENCE PROPERLY SUPPRESSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a concurrence and a three-judge extensive dissent, determined that the warnings given defendant driver about the consequences of refusing to take the breathalyzer blood-alcohol test were inaccurate, rendering the defendant’s consent to the test involuntary and requiring the suppression of all evidence. The warnings, which were given more than two hours after defendant’s DWI arrest, inaccurately stated that evidence of defendant’s test refusal would be admissible at trial:

… [B]ecause the breathalyzer test was not performed within two hours of defendant’s arrest, and the requirements necessary to obtain a court order pursuant to Vehicle and Traffic Law § 1194 (3) were not met, the test results were not admissible under the statutory scheme (see Vehicle and Traffic Law § 1195 [1]; see also Smith, 18 NY3d at 550-551 [holding that, absent compliance with the statute, even evidence of a refusal must be suppressed]). Nevertheless, … the test results may still be admissible if defendant voluntarily consented to take the test because “the two-hour limitation . . . has no application” when the “defendant [has] expressly and voluntarily consented to administration of the [breath] test” … . The issue before us, then, is whether defendant gave his voluntary consent to the administration of the test, which generally presents a mixed question of law and fact … . However, it is undisputed that defendant expressly consented only after the expiration of the two-hour period and after being warned about the consequences of failing to do so; the parties’ dispute here turns on whether the warnings were legally accurate and, consequently, whether his consent was voluntary … .We conclude that, because more than two hours had passed since defendant’s arrest, the warning that evidence of his refusal to take the breathalyzer test would be admissible at trial was inaccurate as a matter of law and, therefore, the record supports the conclusion of the courts below that his consent to the test was involuntary. People v Odum, 2018 NY Slip Op 03173, CtApp 5-3-18

​CRIMINAL LAW (DWI, BEFORE CONSENTING TO A BREATHALYZER BLOOD-ALCOHOL TEST IN THIS DWI CASE, MORE THAN TWO HOURS AFTER DEFENDANT’S ARREST, DEFENDANT WAS  INACCURATELY TOLD A TEST REFUSAL WOULD BE ADMISSIBLE AT TRIAL, DEFENDANT’S CONSENT TO THE TEST WAS THEREFORE NOT VOLUNTARY, EVIDENCE PROPERLY SUPPRESSED (CT APP))/EVIDENCE (CRIMINAL LAW, DWI, BREATHALYZER, BEFORE CONSENTING TO A BREATHALYZER BLOOD-ALCOHOL TEST IN THIS DWI CASE, MORE THAN TWO HOURS AFTER DEFENDANT’S ARREST, DEFENDANT WAS  INACCURATELY TOLD A TEST REFUSAL WOULD BE ADMISSIBLE AT TRIAL, DEFENDANT’S CONSENT TO THE TEST WAS THEREFORE NOT VOLUNTARY, EVIDENCE PROPERLY SUPPRESSED (CT APP))/BREATHALYZER (BEFORE CONSENTING TO A BREATHALYZER BLOOD-ALCOHOL TEST IN THIS DWI CASE, MORE THAN TWO HOURS AFTER DEFENDANT’S ARREST, DEFENDANT WAS  INACCURATELY TOLD A TEST REFUSAL WOULD BE ADMISSIBLE AT TRIAL, DEFENDANT’S CONSENT TO THE TEST WAS THEREFORE NOT VOLUNTARY, EVIDENCE PROPERLY SUPPRESSED (CT APP))/DRIVING WHILE INTOXICATED (DWI) (BREATHALYZER, BEFORE CONSENTING TO A BREATHALYZER BLOOD-ALCOHOL TEST IN THIS DWI CASE, MORE THAN TWO HOURS AFTER DEFENDANT’S ARREST, DEFENDANT WAS  INACCURATELY TOLD A TEST REFUSAL WOULD BE ADMISSIBLE AT TRIAL, DEFENDANT’S CONSENT TO THE TEST WAS THEREFORE NOT VOLUNTARY, EVIDENCE PROPERLY SUPPRESSED (CT APP))

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