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PROSECUTOR’S CLOSING ARGUMENT RENDERED THE ROBBERY INDICTMENT COUNT DUPLICITOUS BY SUGGESTING THE COUNT COULD APPLY TO THE THEFT OF A BICYCLE WHICH WAS NOT CHARGED IN THAT COUNT (FIRST DEPT).

The First Department determined the prosecutor’s closing argument rendered an indictment count duplicitous by suggesting the robbery count could apply to either a cell phone or a bicycle (different victims). The indictment count charged robbery of the cell phone:

The indictment, as amplified by the bill of particulars, charged defendant in the first count with robbery in the second degree, for forcibly stealing one victim’s cell phone, and in the second count with criminal possession of stolen property in the fifth degree, for possession of a bicycle, stolen from another victim, on which defendant attempted to flee the scene. In summation, the prosecutor repeatedly argued — in apparent response to defense counsel’s argument that the evidence showed that defendant abandoned the phone before striking one of his pursuers, and therefore that a robbery could not be established — that even if the court did not find that defendant used force to retain the phone, it could still find that he used force to retain the bicycle. Defense counsel objected to these arguments and the court overruled them.

We find that these arguments rendered the first count duplicitous by newly alleging that defendant was guilty under the first count if he forcibly stole either the phone or the bicycle (see CPL 200.30[1]). The lesser included offense of petit larceny, of which defendant was ultimately convicted, suffered from the same infirmity. People v Perez, 2018 NY Slip Op 01416, First Dept 3-1-18

CRIMINAL LAW (PROSECUTOR’S CLOSING ARGUMENT RENDERED THE ROBBERY INDICTMENT COUNT DUPLICITOUS BY SUGGESTING THE COUNT COULD APPLY TO THE THEFT OF A BICYCLE WHICH WAS NOT CHARGED IN THAT COUNT (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, PROSECUTOR’S CLOSING ARGUMENT RENDERED THE ROBBERY INDICTMENT COUNT DUPLICITOUS BY SUGGESTING THE COUNT COULD APPLY TO THE THEFT OF A BICYCLE WHICH WAS NOT CHARGED IN THAT COUNT (FIRST DEPT))/INDICTMENTS (DUPLICITOUS, PROSECUTOR’S CLOSING ARGUMENT RENDERED THE ROBBERY INDICTMENT COUNT DUPLICITOUS BY SUGGESTING THE COUNT COULD APPLY TO THE THEFT OF A BICYCLE WHICH WAS NOT CHARGED IN THAT COUNT (FIRST DEPT))/DUPLICITY (CRIMINAL LAW, INDICTMENTS, PROSECUTOR’S CLOSING ARGUMENT RENDERED THE ROBBERY INDICTMENT COUNT DUPLICITOUS BY SUGGESTING THE COUNT COULD APPLY TO THE THEFT OF A BICYCLE WHICH WAS NOT CHARGED IN THAT COUNT (FIRST DEPT))

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DEFENDANT’S PRESENCE IN A METH LAB DID NOT DEMONSTRATE CONSTRUCTIVE POSSESSION OF THE CONTRABAND, METH-RELATED CONVICTIONS REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined defendant’s presence in a meth lab was not sufficient to demonstrate constructive possession of the contraband in the lab:

A defendant’s mere presence in the same location as contraband is insufficient to establish constructive possession … . Knowledge that the contraband is present is insufficient, standing alone, to show constructive possession… . Some factors that courts may consider in determining whether a defendant constructively possessed contraband are the defendant’s proximity to the contraband, whether the defendant had keys to the location where the contraband was found, whether the contraband was in plain view, evidence that the defendant had used some of the drugs (when drugs are the contraband at issue), and whether there is witness testimony that the contraband belonged to the defendant … .

The evidence at trial demonstrated that defendant and [codefendant] Yerian had been in the garage with [codefendant] Alberts for approximately one hour when the officer arrived. There was no evidence that defendant lived in the house or garage, kept any of his personal belongings there or had keys to the property… . When the officer observed defendant in the workshop area, which measured approximately 10 to 12 feet by 20 to 24 feet, defendant was sitting on a stool in front of a bench, not touching anything. No contraband was recovered from defendant himself, nor did the proof establish that he owned or had even touched any of the contraband. People v Maricle, 2018 NY Slip Op 01217, Third Dept 2-22-18

CRIMINAL LAW (CONSTRUCTIVE POSSESSION, DEFENDANT’S PRESENCE IN A METH LAB DID NOT DEMONSTRATE CONSTRUCTIVE POSSESSION OF THE CONTRABAND, METH-RELATED CONVICTIONS REVERSED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, CONSTRUCTIVE POSSESSION, DEFENDANT’S PRESENCE IN A METH LAB DID NOT DEMONSTRATE CONSTRUCTIVE POSSESSION OF THE CONTRABAND, METH-RELATED CONVICTIONS REVERSED (THIRD DEPT))/CONSTRUCTIVE POSSESSION (CRIMINAL LAW, DEFENDANT’S PRESENCE IN A METH LAB DID NOT DEMONSTRATE CONSTRUCTIVE POSSESSION OF THE CONTRABAND, METH-RELATED CONVICTIONS REVERSED (THIRD DEPT))/POSSESSION (CRIMINAL LAW, CONSTRUCTIVE POSSESSION, DEFENDANT’S PRESENCE IN A METH LAB DID NOT DEMONSTRATE CONSTRUCTIVE POSSESSION OF THE CONTRABAND, METH-RELATED CONVICTIONS REVERSED (THIRD DEPT))/METHAMPHETAMINE (CRIMINAL LAW, CONSTRUCTIVE POSSESSION, DEFENDANT’S PRESENCE IN A METH LAB DID NOT DEMONSTRATE CONSTRUCTIVE POSSESSION OF THE CONTRABAND, METH-RELATED CONVICTIONS REVERSED (THIRD DEPT))

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DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S MOTION TO WITHDRAW HIS PLEA, SENTENCE VACATED AND MATTER REMITTED FOR ASSIGNMENT OF A NEW ATTORNEY FOR THE MOTION (THIRD DEPT).

The Third Department, vacating defendant’s sentence, determined County County should have assigned a new attorney after defense counsel took a position adverse to her client’s motion to withdraw his plea:

At sentencing, defense counsel appropriately advised County Court that, although she had counseled defendant regarding the potential consequences of withdrawing his guilty plea, and despite her legal advice to the contrary, defendant nevertheless wished to proceed with such a motion. Defendant thereafter set forth various reasons as to why he believed he was entitled to the requested relief. In response to County Court’s subsequent inquiries, however, defense counsel made comments that, in our view, could be construed as undermining the very arguments that defendant had raised in support of his motion. Accordingly, once defense counsel took a position that was adverse to defendant, County Court should have assigned a new attorney to represent him on his motion to withdraw his plea … . People v Oliver, 2018 NY Slip Op 01221, Third Dept 2-22-18

CRIMINAL LAW (ATTORNEYS, DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S MOTION TO WITHDRAW HIS PLEA, SENTENCE VACATED AND MATTER REMITTED FOR ASSIGNMENT OF A NEW ATTORNEY FOR THE MOTION (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S MOTION TO WITHDRAW HIS PLEA, SENTENCE VACATED AND MATTER REMITTED FOR ASSIGNMENT OF A NEW ATTORNEY FOR THE MOTION (THIRD DEPT))

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COUNTY COURT DID NOT MAKE THE STATUTORY FINDINGS REQUIRED FOR DETERMINING DEFENDANT’S APPLICATION FOR YOUTHFUL OFFENDER STATUS IN THIS SEXUAL OFFENSE CASE, WAIVER OF APPEAL DID NOT PRECLUDE CHALLENGE ON APPEAL, SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT).

The Third Department, vacating defendant’s sentence, determined County Court failed to place on the record the statutory factors to be weighed in determining youthful offender status. The waiver of appeal did not foreclose the challenge on appeal:

… County Court’s comments regarding defendant’s application for youthful offender status failed to satisfy the statutory mandate of CPL 720.10. An appeal waiver does not foreclose a defendant’s challenge that a court failed to make the requisite on-the-record determinations regarding youthful offender treatment … . Pursuant to CPL 720.10 (3), “a youth who has been convicted of . . . criminal sexual act in the first degree . . . is an eligible youth if the court determines that one or more of the following factors exist: (i) mitigating circumstances that bear directly upon the manner in which the crime was committed; or (ii) where the defendant was not the sole participant in the crime, the defendant’s participation was relatively minor although not so minor as to constitute a defense to the prosecution.” Where, as here, the only barrier to youthful offender status is an enumerated sex offense (see CPL 720.10 [2] [a]), “the court is required to determine on the record whether the defendant is an eligible youth by considering the presence or absence of the factors set forth in CPL 720.10 (3)”… . This determination is mandatory, without regard to whether it has been requested or purportedly waived … . People v Martz, 2018 NY Slip Op 01222, Third Dept 2-22-18

CRIMINAL LAW (YOUTHFUL OFFENDER, COUNTY COURT DID NOT MAKE THE STATUTORY FINDINGS REQUIRED FOR DETERMINING DEFENDANT’S APPLICATION FOR YOUTHFUL OFFENDER STATUS IN THIS SEXUAL OFFENSE CASE, WAIVER OF APPEAL DID NOT PRECLUDE CHALLENGE ON APPEAL, SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT))/APPEALS (CRIMINAL LAW, YOUTHFUL OFFENDER, YOUTHFUL OFFENDER, COUNTY COURT DID NOT MAKE THE STATUTORY FINDINGS REQUIRED FOR DETERMINING DEFENDANT’S APPLICATION FOR YOUTHFUL OFFENDER STATUS IN THIS SEXUAL OFFENSE CASE, WAIVER OF APPEAL DID NOT PRECLUDE CHALLENGE ON APPEAL, SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT))/YOUTHFUL OFFENDER (COUNTY COURT DID NOT MAKE THE STATUTORY FINDINGS REQUIRED FOR DETERMINING DEFENDANT’S APPLICATION FOR YOUTHFUL OFFENDER STATUS IN THIS SEXUAL OFFENSE CASE, WAIVER OF APPEAL DID NOT PRECLUDE CHALLENGE ON APPEAL, SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT))/SEX OFFENSES (YOUTHFUL OFFENDER, COUNTY COURT DID NOT MAKE THE STATUTORY FINDINGS REQUIRED FOR DETERMINING DEFENDANT’S APPLICATION FOR YOUTHFUL OFFENDER STATUS IN THIS SEXUAL OFFENSE CASE, WAIVER OF APPEAL DID NOT PRECLUDE CHALLENGE ON APPEAL, SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT))

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DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea, determined that defendant’s plea colloquy negated an essential element of the offense (criminal contempt). An exception to the preservation requirement applied:

“[W]here a pleading defendant’s recitation of the facts of his or her offense clearly casts doubt on his or her guilt and the court makes no further inquiry, the defendant does not have to preserve a claim of fatal error in the allocution because . . . ‘the court’s attention should have been instantly drawn to the problem, and the salutary purpose of the preservation rule is arguably not jeopardized'” … . Here, defendant stated during her plea allocution that she did not intend to violate the underlying order of protection, thus negating an element of criminal contempt in the first degree… . Although County Court promptly responded and afforded defendant an opportunity to again consult with her counsel, further discussion was then held off the record. Thus, we are unable to ascertain from the record whether the court conducted the requisite further inquiry to ensure that defendant understood the elements of the crime to which she was pleading guilty and that the plea was knowing, voluntary and intelligent … . People v Busch-scardino, 2018 NY Slip Op 01218, Third Dept 2-22-18

CRIMINAL LAW (DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT))/GUILTY PLEA (DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT))/ALLOCUTION (CRIMINAL LAW, DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT))/PRESERVATION (CRIMINAL LAW, APPEALS, DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT))

ONCE AN ALCOHOL AND SUBSTANCE ABUSE EVALUATION WAS ORDERED THE CASE SHOULD HAVE BEEN TRANSFERRED TO THE DRUG TREATMENT COURT FOR THE JUDICIAL DIVERSION HEARING, CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined that the judicial diversion hearing should have been presided over by a judge in the Drug Treatment Court, not County Court:

… County Court was not designated by the Administrative Judge for the Third Judicial District to preside over the drug treatment court in Sullivan County. … Accordingly, while County Court had jurisdiction to hear the subject felony case … , once an alcohol and substance abuse evaluation was ordered for defendant … — for the express purpose of determining whether he was eligible for judicial diversion — the case should have been referred to the designated Superior Court for drug treatment pursuant to 22 NYCRR part 143. Accordingly, under the circumstances presented, we find that County Court was without authority to preside over defendant’s judicial diversion hearing … . People v Lee, 2018 NY Slip Op 01216, Third Dept 2-22-18

CRIMINAL LAW (JUDICIAL DIVERSION HEARING, ONCE AN ALCOHOL AND SUBSTANCE ABUSE EVALUATION WAS ORDERED THE CASE SHOULD HAVE BEEN TRANSFERRED TO THE DRUG TREATMENT COURT FOR THE JUDICIAL DIVERSION HEARING, CONVICTION REVERSED (THIRD DEPT))/JUDICIAL DIVERSION HEARING (CRIMINAL LAW, ONCE AN ALCOHOL AND SUBSTANCE ABUSE EVALUATION WAS ORDERED THE CASE SHOULD HAVE BEEN TRANSFERRED TO THE DRUG TREATMENT COURT FOR THE JUDICIAL DIVERSION HEARING, CONVICTION REVERSED (THIRD DEPT))/DRUG TREATMENT COURT  (JUDICIAL DIVERSION HEARING, ONCE AN ALCOHOL AND SUBSTANCE ABUSE EVALUATION WAS ORDERED THE CASE SHOULD HAVE BEEN TRANSFERRED TO THE DRUG TREATMENT COURT FOR THE JUDICIAL DIVERSION HEARING, CONVICTION REVERSED (THIRD DEPT))/ALCOHOL AND SUBSTANCE ABUSE EVALUATION (CRIMINAL LAW,  ONCE AN ALCOHOL AND SUBSTANCE ABUSE EVALUATION WAS ORDERED THE CASE SHOULD HAVE BEEN TRANSFERRED TO THE DRUG TREATMENT COURT FOR THE JUDICIAL DIVERSION HEARING, CONVICTION REVERSED (THIRD DEPT))

DEFENDANT SHOT ANOTHER HUNTER AND WAS CHARGED WITH AND CONVICTED OF (RECKLESS) ASSAULT SECOND, DEFENSE REQUEST FOR A JURY INSTRUCTION ON (NEGLIGENT) ASSAULT THIRD SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined defendant’s request for a jury instruction on a lesser included offense should have been granted. Defendant shot another hunter and was charged with assault second. Defendant requested a jury instruction on assault third which was denied:

Defendant argued that the jury could reasonably find from the trial proof that he did not act recklessly so as to commit assault in the second degree (see Penal Law § 120.05 [4]), but did behave negligently so as to commit assault in the third degree … . Recklessness and criminal negligence are achingly close to one another; a reckless defendant “perceives the risk, but consciously disregards it,” while a criminally negligent defendant “negligently fails to perceive the risk” altogether … . A jury distinguishes between the two by considering “the evidence . . . relating to the mental state of the defendant at the time of the crime”… .

… [D]efendant knew that the victim had permission to hunt on the property where the shooting occurred, but also told investigators that he had seen no sign of the victim or anyone else in the three weeks that he had been hunting in the area. The victim confirmed that the area was not frequented by hunters, testifying that he had never seen another person in the 30 years that he had hunted there and saw human tracks for the first time the week before he was shot. There was no proof that defendant recalled the advice given at a hunting safety class, which he took 20 years prior, to be certain of his target before opening fire. Even if he did, however, he told investigators that he opened fire after hearing what he thought were deer horns rubbing against branches and watched what he thought was a deer but was, in reality, the stooped-over victim in a camouflage jacket. Viewing this evidence in the light most favorable to defendant … , the jury could have reasonably found that defendant did not disregard, but instead failed to perceive, an unjustifiable risk of injury to the victim when he opened fire without sufficient observation… . County Court therefore erred in refusing to charge the lesser included offense of assault in the third degree … . People v Lavalley, 2018 NY Slip Op 01223, Third Dept 2-22-18

CRIMINAL LAW (DEFENDANT SHOT ANOTHER HUNTER AND WAS CHARGED WITH AND CONVICTED OF (RECKLESS) ASSAULT SECOND, DEFENSE REQUEST FOR A JURY INSTRUCTION ON (NEGLIGENT) ASSAULT THIRD SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED (THIRD DEPT))/ASSAULT (CRIMINAL LAW, DEFENDANT SHOT ANOTHER HUNTER AND WAS CHARGED WITH AND CONVICTED OF (RECKLESS) ASSAULT SECOND, DEFENSE REQUEST FOR A JURY INSTRUCTION ON (NEGLIGENT) ASSAULT THIRD SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED (THIRD DEPT))/HUNTERS (CRIMINAL LAW, DEFENDANT SHOT ANOTHER HUNTER AND WAS CHARGED WITH AND CONVICTED OF (RECKLESS) ASSAULT SECOND, DEFENSE REQUEST FOR A JURY INSTRUCTION ON (NEGLIGENT) ASSAULT THIRD SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED (THIRD DEPT))

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DEFENDANT DEMONSTRATED HE WOULD NOT HAVE PLED GUILTY HAD HIS COUNSEL TOLD HIM DEPORTATION WAS MANDATORY, CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined defendant demonstrated a reasonable probability that he would not have pled guilty had he been told by his attorney that deportation was mandatory:

… [W]e agree with the defendant’s contention that the legal representation he received at the plea proceeding was deficient inasmuch as the plea minutes show that the defendant’s counsel, who was aware that the defendant was a noncitizen, advised him only that pleading guilty to a drug felony “may affect his [immigration] status” (emphasis added). Such advice was erroneous given that a felony drug conviction involving cocaine made the defendant’s deportation mandatory … , and where, as here, the deportation consequence is clear, counsel’s duty to give correct advice is equally clear … .

In order for the defendant to obtain vacatur of his plea of guilty based on a Padilla violation, he must also establish that ” there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial'” … . The Supreme Court, in its report, expressed the view that the evidence in the record, as supplemented by the defendant’s testimony at the hearing conducted upon remittal, evinced a reasonable probability that the defendant would not have pleaded guilty but for counsel’s incorrect advice regarding the immigration consequences of his plea, and would have insisted instead on going to trial. We agree, and discern no reason to disturb the credibility determinations made by the court … . People v Loaiza, 2018 NY Slip Op 01201, Second Dept 2-21-18

CRIMINAL LAW (DEFENDANT DEMONSTRATED HE WOULD NOT HAVE PLED GUILTY HAD HIS COUNSEL TOLD HIM DEPORTATION WAS MANDATORY, CONVICTION REVERSED (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENDANT DEMONSTRATED HE WOULD NOT HAVE PLED GUILTY HAD HIS COUNSEL TOLD HIM DEPORTATION WAS MANDATORY, CONVICTION REVERSED (SECOND DEPT))/GUILTY PLEA (DEPORTATION CONSEQUENCES, DEFENDANT DEMONSTRATED HE WOULD NOT HAVE PLED GUILTY HAD HIS COUNSEL TOLD HIM DEPORTATION WAS MANDATORY, CONVICTION REVERSED (SECOND DEPT))/IMMIGRATION (CRIMINAL LAW, DEPORTATION, DEFENDANT DEMONSTRATED HE WOULD NOT HAVE PLED GUILTY HAD HIS COUNSEL TOLD HIM DEPORTATION WAS MANDATORY, CONVICTION REVERSED (SECOND DEPT))

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VIOLATION OF PROBATION DETERMINATION CANNOT BE BASED SOLELY ON GRAND JURY MINUTES, WHICH CONSTITUTE HEARSAY, PROBATION REINSTATED (FIRST DEPT).

The First Department, reversing Supreme Court and reinstating defendant’s sentence of probation, determined the finding that defendant had violated a condition of probation was improperly based entirely on grand jury minutes, which constituted hearsay:

A finding, by a preponderance of the evidence, that a defendant has violated a condition of probation … may not be based on hearsay evidence alone … . Here, on several occasions during the probation revocation hearing, the court indicated that its determination that defendant had violated probation by traveling outside the jurisdiction without permission, and by failing to lead a law abiding life, was based solely on the grand jury minutes related to his 2012 indictment (which was dismissed for lack of jurisdiction and did not result in a conviction) … . One of these statements, in which the court stated that “the government prevailed by the properly unsealed and complete [g]rand [j]ury minutes,” occurred directly after defense counsel explicitly argued that the court could not base a finding of a violation solely on the grand jury minutes, which constituted hearsay.

Based on this record, regardless of whether there was other evidence in the record that might have satisfied the requirement for “a residuum of competent legal evidence” … , we are compelled to find that the court’s determination was based on hearsay alone and therefore cannot stand. People v Hubel, 2018 NY Slip Op 01154, First Dept 2-20-18

CRIMINAL LAW (VIOLATION OF PROBATION DETERMINATION CANNOT BE BASED SOLELY ON GRAND JURY MINUTES, WHICH CONSTITUTE HEARSAY, PROBATION REINSTATED (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, VIOLATION OF PROBATION DETERMINATION CANNOT BE BASED SOLELY ON GRAND JURY MINUTES, WHICH CONSTITUTE HEARSAY, PROBATION REINSTATED (FIRST DEPT))/HEARSAY (CRIMINAL LAW, VIOLATION OF PROBATION DETERMINATION CANNOT BE BASED SOLELY ON GRAND JURY MINUTES, WHICH CONSTITUTE HEARSAY, PROBATION REINSTATED (FIRST DEPT))/GRAND JURY MINUTES (HEARSAY, VIOLATION OF PROBATION DETERMINATION CANNOT BE BASED SOLELY ON GRAND JURY MINUTES, WHICH CONSTITUTE HEARSAY, PROBATION REINSTATED (FIRST DEPT))/PROBATION (VIOLATION OF PROBATION DETERMINATION CANNOT BE BASED SOLELY ON GRAND JURY MINUTES, WHICH CONSTITUTE HEARSAY, PROBATION REINSTATED (FIRST DEPT))

JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE, THERE WAS EVIDENCE THE DECEDENT WAS ADVANCING TOWARD DEFENDANT, THROWING PUNCHES AND TRYING TO GRAB THE GUN DEFENDANT WAS HOLDING (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Richter, over a two-justice dissent, determined that the request that the jury be instructed on the justification defense in this manslaughter case should have been granted. There was evidence that the decedent, Cabbagestalk, was aggressively striking the defendant and trying to grab a gun defendant was holding:

… [A] jury could conclude that defendant reasonably believed that Cabbagestalk, who was younger and taller than defendant, and just two feet away, would gain control of defendant’s gun … . A jury could also reasonably conclude that Cabbagestalk’s statement to defendant — “[Y]ou going to pull a gun out, you better use it” — constituted a threat that if defendant did not use the gun, Cabbagestalk would take the gun and use it to shoot defendant. This is particularly true in light of the evidence that Cabbagestalk was advancing toward defendant, throwing punches at his face, and grabbing for the gun at the same time he made the threat. People v Brown, 2018 NY Slip Op 01173, First Dept 2-20-18

CRIMINAL LAW (JUSTIFICATION DEFENSE, JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE, THERE WAS EVIDENCE THE DECEDENT WAS ADVANCING TOWARD DEFENDANT, THROWING PUNCHES AND TRYING TO GRAB THE GUN DEFENDANT WAS HOLDING (FIRST DEPT))/JUSTIFICATION DEFENSE (CRIMINAL LAW, JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE, THERE WAS EVIDENCE THE DECEDENT WAS ADVANCING TOWARD DEFENDANT, THROWING PUNCHES AND TRYING TO GRAB THE GUN DEFENDANT WAS HOLDING (FIRST DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, JUSTIFICATION DEFENSE, JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE, THERE WAS EVIDENCE THE DECEDENT WAS ADVANCING TOWARD DEFENDANT, THROWING PUNCHES AND TRYING TO GRAB THE GUN DEFENDANT WAS HOLDING (FIRST DEPT))

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