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DEFENDANT’S TESTIMONY AND ARGUMENT IN SUPPORT OF A DOWNWARD DEPARTURE IMPROPERLY CUT OFF, NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, remitted the matter for a new SORA hearing because the court cut off the defendant’s testimony and arguments in support of a downward departure:

“A court determining a defendant’s risk level under the Sex Offender Registration Act (hereinafter SORA) may not downwardly depart from the presumptive risk level unless the defendant first identifies and proves by a preponderance of the evidence the facts in support of a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines'” … .

In this case, during the SORA hearing, the Supreme Court improperly, sua sponte, curtailed the defendant’s testimony and arguments in support of, inter alia, his request for a downward departure. People v Williams, 2018 NY Slip Op 01629, Second Dept 3-14-18

CRIMINAL LAW (SORA, DEFENDANT’S TESTIMONY AND ARGUMENT IN SUPPORT OF A DOWNWARD DEPARTURE IMPROPERLY CUT OFF, NEW HEARING ORDERED (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (DEFENDANT’S TESTIMONY AND ARGUMENT IN SUPPORT OF A DOWNWARD DEPARTURE IMPROPERLY CUT OFF, NEW HEARING ORDERED (SECOND DEPT))/JUDGES (CRIMINAL LAW, SORA, DEFENDANT’S TESTIMONY AND ARGUMENT IN SUPPORT OF A DOWNWARD DEPARTURE IMPROPERLY CUT OFF, NEW HEARING ORDERED (SECOND DEPT))

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DEFENDANT WAS NOT APPRISED OF THE DEPORTATION CONSEQUENCES OF HIS PLEAS, MATTER REMITTED FOR OPPORTUNITY TO MOVE TO VACATE THE PLEAS (SECOND DEPT).

The Second Department determined defendant was not warned of the deportation consequences of his guilty pleas. The matter was remitted to give the defendant the opportunity to move to vacate the pleas:

Here, the record does not demonstrate that the Supreme Court apprised the defendant of the possibility of deportation as a consequence of the defendant’s pleas. Accordingly, we remit the matter to the Supreme Court, Kings County, to afford the defendant an opportunity to move to vacate his pleas, and for a report by the Supreme Court thereafter. Any such motion shall be made by the defendant within 60 days after the date of this decision and order … , and, upon such motion, the defendant will have the burden of establishing that there is a “reasonable probability” that he would not have pleaded guilty had the court advised him of the possibility of deportation… . In its report to this Court, the Supreme Court shall state whether the defendant moved to vacate his pleas of guilty, and if so, shall set forth its finding as to whether the defendant made the requisite showing or failed to make the requisite showing … . People v Cole, 2018 NY Slip Op 01612, Second Dept 3-14-18

CRIMINAL LAW (DEFENDANT WAS NOT APPRISED OF THE DEPORTATION CONSEQUENCES OF HIS PLEAS, MATTER REMITTED FOR OPPORTUNITY TO MOVE TO VACATE THE PLEAS (SECOND DEPT))/DEPORTATION (CRIMINAL LAW, DEFENDANT WAS NOT APPRISED OF THE DEPORTATION CONSEQUENCES OF HIS PLEAS, MATTER REMITTED FOR OPPORTUNITY TO MOVE TO VACATE THE PLEAS (SECOND DEPT))

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NO EVIDENCE OF THREATENED USE OF A DANGEROUS INSTRUMENT, ROBBERY FIRST CONVICTION NOT SUPPORTED, COUNTY COURT DID NOT CONDUCT AN ADEQUATE INQUIRY INTO DEFENSE COUNSEL’S REQUEST TO WITHDRAW, CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, over a dissent, determined the evidence was insufficient to support the robbery first degree charge (no evidence of threat with a dangerous instrument) and the trial court should have conducted an inquiry into defense counsel’s request to withdraw:

Indisputably, the “gun” was plastic and did not work, and there was no evidence that it could potentially harm someone… . Similarly, while there was testimony that one of the men entering the motel room was holding the tire checker, there was no evidence that any individual brandished the tire checker in a threatening manner… . … [T]here is no question that one of the individuals possessed a dangerous instrument. What was missing was any evidence that there was any verbal threat of immediate use of the instrument or that it was “employ[ed]” in any way … . * * *

… [D]efendant’s right to counsel was not adequately protected. County Court’s determination focused on the inconveniences that would result if counsel were substituted and the trial were delayed one month, as well as defendant’s propensity to complain. But it was trial counsel, not defendant, complaining that the relationship had broken down, and the request was not made on the eve of trial. While we are not suggesting that a request made by counsel warrants heightened inquiry, “a conflict of interest or other irreconcilable conflict with counsel” may constitute good cause for substitution… , and there was no inquiry here to assess the gravity of counsel’s concerns in this regard. The motion raised specific examples to support trial counsel’s claim that there was “an irretrievable breakdown” in the relationship with defendant. As such, the court should have first questioned both defendant and trial counsel about “the nature of the disagreement or its potential for resolution” prior to denying the motion … . Absent such a “minimal inquiry,” we are compelled to reverse the judgment of conviction … . People v Matthews, 2018 NY Slip Op 01499, Second Dept 3-8-18

CRIMINAL LAW (EVIDENCE, ATTORNEYS, NO EVIDENCE OF THREATENED USE OF A DANGEROUS INSTRUMENT, ROBBERY FIRST CONVICTION NOT SUPPORTED, COUNTY COURT DID NOT CONDUCT AN ADEQUATE INQUIRY INTO DEFENSE COUNSEL’S REQUEST TO WITHDRAW, CONVICTION REVERSED (THIRD DEPT))/ROBBERY (DANGEROUS INSTRUMENT, NO EVIDENCE OF THREATENED USE OF A DANGEROUS INSTRUMENT, ROBBERY FIRST CONVICTION NOT SUPPORTED (THIRD DEPT))/EVIDENCE (ROBBERY, DANGEROUS INSTRUMENT, NO EVIDENCE OF THREATENED USE OF A DANGEROUS INSTRUMENT, ROBBERY FIRST CONVICTION NOT SUPPORTED (THIRD DEPT))/DANGEROUS INSTRUMENT (ROBBERY, NO EVIDENCE OF THREATENED USE OF A DANGEROUS INSTRUMENT, ROBBERY FIRST CONVICTION NOT SUPPORTED (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, COUNTY COURT DID NOT CONDUCT AN ADEQUATE INQUIRY INTO DEFENSE COUNSEL’S REQUEST TO WITHDRAW, CONVICTION REVERSED (THIRD DEPT))/RIGHT TO COUNSEL  (CRIMINAL LAW, COUNTY COURT DID NOT CONDUCT AN ADEQUATE INQUIRY INTO DEFENSE COUNSEL’S REQUEST TO WITHDRAW, CONVICTION REVERSED (THIRD DEPT))/WITHDRAW (CRIMINAL LAW, DEFENSE COUNSEL, COUNTY COURT DID NOT CONDUCT AN ADEQUATE INQUIRY INTO DEFENSE COUNSEL’S REQUEST TO WITHDRAW, CONVICTION REVERSED (THIRD DEPT))

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DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT).

The Second Department, over a dissent, determined defendant’s motion to suppress his statement and a buccal swab should have granted but the error was harmless. The dissent argued the error was not harmless. The court noted that a violation of the right to counsel can be raised on appeal even when the error was not preserved:

… [A] recording of the defendant’s custodial statement to the police, which was entered into evidence at the hearing, shows that during the interview the defendant twice stated, “I think I need a lawyer.” The defendant’s statements constituted an unequivocal invocation of the right to counsel, and after those statements, the police continued their questioning of the defendant and took no steps to comply with the defendant’s unequivocal request for counsel. Therefore, the remainder of the defendant’s statement after that point, as well as the buccal swab that he provided to the police after that point, should have been suppressed from evidence … . People v Bethea, 2018 NY Slip Op 01474, Second Dept 3-7-18

CRIMINAL LAW (DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, RIGHT TO COUNSEL, DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION,  DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT))/APPEALS (CRIMINAL LAW, RIGHT TO COUNSEL, DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT))/RIGHT TO COUNSEL (DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT))/SUPPRESSION (CRIMINAL LAW, EVIDENCE, DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT))/BUCCAL SWAB (CRIMINAL LAW, SUPPRESSION, DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT))

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UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, DEFENDANT PROVED THE AFFIRMATIVE DEFENSE OF MENTAL DISEASE OR DEFECT, MURDER CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s murder conviction after a weight of the evidence analysis, over a dissent, determined that defendant had proved the affirmative defense of mental disease or defect by the preponderance of the evidence:

… [W]e conclude that the jury was not justified in finding that the preponderance of the evidence failed to establish that the defendant lacked the substantial capacity to know or appreciate that his conduct was wrong at the time that he possessed the loaded firearm and shot Wright. The undisputed trial evidence established that at the relevant time, the defendant was suffering from auditory hallucinations, paranoia, and “incorrect perceptions” of reality. The opinion of the People’s expert psychologist that the defendant did not suffer a schizoaffective disorder, notwithstanding such a diagnosis by the defendant’s treating psychiatrists over the past three years, was conclusory. Moreover, the psychologist’s alternative theory that the defendant’s hallucinations were due to his use of PCP were purely speculative and without adequate evidentiary support. The psychologist’s conclusion that the defendant was motivated by revenge against a person he mistakenly perceived to have stolen his shorts was also speculative and contrary to the credible evidence presented. We accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor … , and weigh conflicting expert evidence … . However, on this record, the rational inferences which can be drawn from the evidence presented at trial do not support the conviction. People v Spratley, 2018 NY Slip Op 01488, Second Dept 3-7-18

CRIMINAL LAW (MENTAL DISEASE OR DEFECT, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, DEFENDANT PROVED THE AFFIRMATIVE DEFENSE OF MENTAL DISEASE OR DEFECT, MURDER CONVICTION REVERSED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, MENTAL DISEASE OR DEFECT, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, DEFENDANT PROVED THE AFFIRMATIVE DEFENSE OF MENTAL DISEASE OR DEFECT, MURDER CONVICTION REVERSED (SECOND DEPT))/APPEALS (CRIMINAL LAW, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, DEFENDANT PROVED THE AFFIRMATIVE DEFENSE OF MENTAL DISEASE OR DEFECT, MURDER CONVICTION REVERSED (SECOND DEPT)/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, APPEALS, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, DEFENDANT PROVED THE AFFIRMATIVE DEFENSE OF MENTAL DISEASE OR DEFECT, MURDER CONVICTION REVERSED (SECOND DEPT))/MENTAL DISEASE OR DEFECT (CRIMINAL LAW, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, DEFENDANT PROVED THE AFFIRMATIVE DEFENSE OF MENTAL DISEASE OR DEFECT, MURDER CONVICTION REVERSED (SECOND DEPT))

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ALTHOUGH DEFENDANT RECORDED THE CODEFENDANT DOUSING THE HOMELESS MAN WITH LIGHTER FLUID AND SETTING HIM ON FIRE, THE EVIDENCE DID NOT SUPPORT THE CONCLUSION DEFENDANT ACTED AS AN ACCOMPLICE, CONVICTION REVERSED UPON A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT).

The Second Department, reversing defendant’s conviction after a weight of the evidence analysis, determined the evidence did not support the conclusion defendant acted as an accomplice in the assault of a homeless man. The codefendant doused the homeless man with lighter fluid and set him on fire. The defendant said “Do that shit man” and recorded the incident on his phone for one minute before attempting put out the fire:

For the defendant to be held criminally liable for the conduct of the codefendant, the People had to prove beyond a reasonable doubt that the defendant solicited, requested, commanded, importuned, or intentionally aided the codefendant to engage in that conduct, and that the defendant did so with the state of mind required for the commission of the offense (see Penal Law § 20.00). A defendant’s mere presence at the scene of a crime, even with knowledge that the crime is taking place, or mere association with the perpetrator of a crime, is not enough for accessorial liability … .

It is undisputed that the defendant did not assist the codefendant in dousing the victim with lighter fluid or setting fire to the victim, and did not supply any of the materials to the codefendant to commit the criminal act. The defendant’s actions, in uttering, “Do that shit, man,” as the codefendant doused the victim with lighter fluid, and in filming this incident for approximately one minute before rendering any aid to this particularly vulnerable and helpless victim, were deplorable. However, his actions did not support the jury’s finding beyond a reasonable doubt that he solicited, requested, commanded, importuned, or intentionally aided the codefendant to assault the victim, and that he did so sharing the codefendant’s state of mind. People v Fonerin, 2018 NY Slip Op 01480, Second Dept 3-7-18

CRIMINAL LAW (ACCOMPLICE LIABILITY, ALTHOUGH DEFENDANT RECORDED THE CODEFENDANT DOUSING THE HOMELESS MAN WITH LIGHTER FLUID AND SETTING HIM ON FIRE, THE EVIDENCE DID NOT SUPPORT THE CONCLUSION DEFENDANT ACTED AS AN ACCOMPLICE, CONVICTION REVERSED UPON A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT))/ACCOMPLICE LIABILITY (CRIMINAL LAW,  ALTHOUGH DEFENDANT RECORDED THE CODEFENDANT DOUSING THE HOMELESS MAN WITH LIGHTER FLUID AND SETTING HIM ON FIRE, THE EVIDENCE DID NOT SUPPORT THE CONCLUSION DEFENDANT ACTED AS AN ACCOMPLICE, CONVICTION REVERSED UPON A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, ACCOMPLICE LIABILIITY, ALTHOUGH DEFENDANT RECORDED THE CODEFENDANT DOUSING THE HOMELESS MAN WITH LIGHTER FLUID AND SETTING HIM ON FIRE, THE EVIDENCE DID NOT SUPPORT THE CONCLUSION DEFENDANT ACTED AS AN ACCOMPLICE, CONVICTION REVERSED UPON A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT))/APPEALS (CRIMINAL LAW, WEIGHT OF THE EVIDENCE, ACCOMPLICE LIABILITY,  ALTHOUGH DEFENDANT RECORDED THE CODEFENDANT DOUSING THE HOMELESS MAN WITH LIGHTER FLUID AND SETTING HIM ON FIRE, THE EVIDENCE DID NOT SUPPORT THE CONCLUSION DEFENDANT ACTED AS AN ACCOMPLICE, CONVICTION REVERSED UPON A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, APPEALS, ACCOMPLICE LIABILITY, ALTHOUGH DEFENDANT RECORDED THE CODEFENDANT DOUSING THE HOMELESS MAN WITH LIGHTER FLUID AND SETTING HIM ON FIRE, THE EVIDENCE DID NOT SUPPORT THE CONCLUSION DEFENDANT ACTED AS AN ACCOMPLICE, CONVICTION REVERSED UPON A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT))

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OFFICER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN HE ASKED DEFENDANT ‘WHAT DO YOU HAVE,’ SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, over an extensive dissent, in a comprehensive street stop (DeBour) analysis too detailed to fairly summarize here, determined the police officer did not have a reasonable suspicion that criminal activity was afoot when he asked defendant, a passenger in a car, “what do you have.” Defendant replied that he had a “piece” and he was convicted of possession of a weapon:

There was nothing improper about the police officers’ direction that the defendant and the two other occupants exit the vehicle. “In light of the heightened dangers faced by investigating police officers during traffic stops, a police officer may, as a precautionary measure and without particularized suspicion, direct the occupants of a lawfully stopped vehicle to step out of the car” … . However, the scope of that authority is limited to guarding against “the unique danger of a partially concealed automobile occupant by allowing the officer to order occupants out of a car and readily observe their movements” … . …

In the context of a traffic stop, the Court of Appeals has made clear that “a police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot” …, thereby squarely placing this type of inquiry within De Bour level two. Moreover, mere nervousness does not provide the requisite indication of criminality … .

Here, the circumstances described by Officer Weibert at the suppression hearing did not establish “a founded suspicion that criminality [was] afoot” … . Significantly, there was no testimony of a bulge at the defendant’s waistband … , or any indication that the defendant was reaching for, grabbing at, or adjusting his waistband … . To the contrary, Officer Weibert denied that the defendant made any furtive gesture or reached for anything; he testified only that the defendant was acting nervous, shaking his knees and legs up and down, and leaning forward in his seat with his hands in his lap and his arms tightly at his side. People v White, 2018 NY Slip Op 01492, Second Dept 3-7-18

CRIMINAL EVIDENCE (STREET STOPS, OFFICER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN HE ASKED DEFENDANT ‘WHAT DO YOU HAVE,’ SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, STREET STOPS, SUPPRESSION, OFFICER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN HE ASKED DEFENDANT ‘WHAT DO YOU HAVE,’ SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/STREET STOPS (CRIMINAL LAW, SUPPRESSION, OFFICER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN HE ASKED DEFENDANT ‘WHAT DO YOU HAVE,’ SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/SUPPRESSION (CRIMINAL LAW, STREET STOPS,  OFFICER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN HE ASKED DEFENDANT ‘WHAT DO YOU HAVE,’ SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/DE BOUR (CRIMINAL LAW, STREET STOPS, OFFICER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN HE ASKED DEFENDANT ‘WHAT DO YOU HAVE,’ SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))

MOTION FOR RESENTENCING PROPERLY DENIED BECAUSE IT WAS MADE WITHIN THREE YEARS OF DEFENDANT’S PAROLE ELIGIBILITY DATE (FIRST DEPT).

The First Department determined defendant’s motion for resentencing under the Drug Law Reform Act of 2005 was properly denied because the motion was made within three years of defendant’s parole eligibility date:

Defendant argues that the 2005 Act should be reinterpreted in light of recent developments, including those relating to the resentencing of persons convicted of other types of drug felonies. However, no decision finding eligibility with regard to any other Drug Law Reform Act has vitiated the 2005 Act’s clear eligibility requirement that the applicant’s parole eligibility date be at least three years in the future. To accept defendant’s argument, we would have to rewrite the statute to treat persons convicted of class A-II felonies the same as persons convicted of other drug felonies … . People v Moore, 2018 NY Slip Op 01428, First Dept 3-6-18

CRIMINAL LAW (MOTION FOR RESENTENCING PROPERLY DENIED BECAUSE IT WAS MADE WITHIN THREE YEARS OF DEFENDANT’S PAROLE ELIGIBILITY DATE (FIRST DEPT))/SENTENCING (DRUG LAW REFORM ACT, MOTION FOR RESENTENCING PROPERLY DENIED BECAUSE IT WAS MADE WITHIN THREE YEARS OF DEFENDANT’S PAROLE ELIGIBILITY DATE (FIRST DEPT))/RESENTENCING (DRUG LAW REFORM ACT, MOTION FOR RESENTENCING PROPERLY DENIED BECAUSE IT WAS MADE WITHIN THREE YEARS OF DEFENDANT’S PAROLE ELIGIBILITY DATE (FIRST DEPT))/DRUG LAW REFORM ACT (MOTION FOR RESENTENCING PROPERLY DENIED BECAUSE IT WAS MADE WITHIN THREE YEARS OF DEFENDANT’S PAROLE ELIGIBILITY DATE (FIRST DEPT))

DENIAL OF PAROLE MANIFESTED IRRATIONALITY BORDERING ON IMPROPRIETY (FIRST DEPT).

The First Department determined denying petitioner parole was “irrational.” The proper remedy is a new parole nearing, not granting parole in a court ruling (as Supreme Court did). Petitioner, now 51, was convicted of felony murder when she was very young. She had driven the car to where her husband was staying. A passenger in the car shot and killed her husband. The jury found petitioner did not intend that her husband be killed. Petitioner has been a model prisoner for decades:

The commissioners failed to appreciate that petitioner’s murder conviction was not for intentional murder, but rather for second-degree felony murder. The felony murder rule, of course, provides that a person is guilty of second-degree murder when, “[a]cting either alone or with one or more other persons, [she] commits or attempts to commit [violent crimes including] burglary, . . . and, in the course of and in furtherance of such crime or of immediate flight therefrom, [she], or another participant, . . . causes the death of a person other than one of the participants” … . In essence, and particularly in the context of a burglary conviction, the felony murder rule imposes strict and vicarious liability for a killing that one did not intend, provided that it was the result of an enumerated felony that one did intentionally commit. Intent to kill plays no role in a finding of felony murder … .

At the parole hearing, petitioner nonetheless accepted responsibility for her “choices and decisions that led to a chain of events that led to the death of [her] husband.” Far from showing any lack of insight into her crime, petitioner’s testimony at the parole hearing was truthful, accurate, and consistent with what the jury found happened in 1991.

Accordingly, respondent’s determination denying petitioner parole manifested “irrationality bordering on impropriety,” warranting granting the petition to vacate the denial of parole … . Matter of Kellogg v New York State Bd. of Parole, 2018 NY Slip Op 01425, First Dept 3-6-18

CRIMINAL LAW (DENIAL OF PAROLE MANIFESTED IRRATIONALITY BORDERING ON IMPROPRIETY (FIRST DEPT))/PAROLE (DENIAL OF PAROLE MANIFESTED IRRATIONALITY BORDERING ON IMPROPRIETY (FIRST DEPT))

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DISTINCTION BETWEEN LEGAL INSUFFICIENCY AND WEIGHT OF THE EVIDENCE EXPLAINED, CRIMINALLY NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE WITHIN DEPRAVED INDIFFERENCE MURDER (THIRD DEPT).

The Third Department, affirming defendant’s depraved indifference murder conviction, noted the difference between a “legal sufficiency” analysis and a “weight of the evidence” analysis on appeal, and reiterated that criminally negligent homicide is not a lesser included offense within depraved indifference murder. Here the two-year old victim was subjected to severed physical abuse over a period of days or longer:

Defendant argues that the verdict was not supported by legally sufficient evidence and was against the weight of the evidence. A legal sufficiency challenge requires us to “view the evidence in the light most favorable to the People and evaluate whether ‘there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged'” … . A legally sufficient verdict may, however, be against the weight of the evidence … . The latter review requires us to assess whether acquittal was a reasonable possibility and, if so, to weigh “the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” in deciding whether the verdict was justified … . * * *

Criminally negligent homicide demands that a person act “with criminal negligence” and, in doing so, “causes the death of another person” (Penal Law § 125.10). Inasmuch as criminal negligence involves a person failing “to perceive [the] substantial and unjustifiable risk” of the result set forth by the statute (Penal Law § 15.05 [4]), a person does not commit criminally negligent homicide unless he or she fails to perceive a substantial and unjustifiable risk of death …  In contrast, Penal Law § 125.25 (4) demands that an adult person, “[u]nder circumstances evincing a depraved indifference to human life, . . . recklessly engage[] in conduct which creates a grave risk of serious physical injury or death to another person less than [11] years old” and that ends in the other person’s death (emphasis added).

The definition of serious physical injury encompasses injuries that do not create a substantial risk of death or cause death, such as those that cause “serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” (Penal Law § 10.00 [10]). As we have previously held, it is therefore theoretically possible to commit depraved indifference murder of a child by “engag[ing] in conduct that creates and disregards a grave risk of serious physical injury, causing death, without . . . engaging in conduct that creates . . . a substantial risk of death, causing death” … . People v Stahli, 2018 NY Slip Op 01359, Third Dept 3-1-18

CRIMINAL LAW (DISTINCTION BETWEEN LEGAL INSUFFICIENCY AND WEIGHT OF THE EVIDENCE EXPLAINED, CRIMINALLY NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE WITHIN DEPRAVED INDIFFERENCE MURDER (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, APPEALS, DISTINCTION BETWEEN LEGAL INSUFFICIENCY AND WEIGHT OF THE EVIDENCE EXPLAINED, CRIMINALLY NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE WITHIN DEPRAVED INDIFFERENCE MURDER (THIRD DEPT))/APPEALS (CRIMINAL LAW, DISTINCTION BETWEEN LEGAL INSUFFICIENCY AND WEIGHT OF THE EVIDENCE EXPLAINED, CRIMINALLY NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE WITHIN DEPRAVED INDIFFERENCE MURDER (THIRD DEPT))/LEGALLY INSUFFICIENT EVIDENCE (CRIMINAL LAW, APPEALS, DISTINCTION BETWEEN LEGAL INSUFFICIENCY AND WEIGHT OF THE EVIDENCE EXPLAINED, CRIMINALLY NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE WITHIN DEPRAVED INDIFFERENCE MURDER (THIRD DEPT))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, APPEALS, DISTINCTION BETWEEN LEGAL INSUFFICIENCY AND WEIGHT OF THE EVIDENCE EXPLAINED, CRIMINALLY NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE WITHIN DEPRAVED INDIFFERENCE MURDER (THIRD DEPT))/CRIMINALLY NEGLIGENT HOMICIDE (CRIMINALLY NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE WITHIN DEPRAVED INDIFFERENCE MURDER (THIRD DEPT))/DEPRAVED INDIFFERENCE MURDER (CRIMINALLY NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE WITHIN DEPRAVED INDIFFERENCE MURDER (THIRD DEPT))/LESSER INCLUDED OFFENSE (CRIMINALLY NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE WITHIN DEPRAVED INDIFFERENCE MURDER (THIRD DEPT))

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