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NEITHER THE SUPERIOR COURT INFORMATION TO WHICH DEFENDANT PLED GUILTY NOR THE PLEA ALLOCUTION INDICATED THE TWO SEXUAL OFFENSES OCCURRED AT DIFFERENT TIMES, CONSECUTIVE SENTENCES WERE NOT AUTHORIZED 3RD DEPT.

The Third Department, reversing County Court, determined the People did not demonstrate the two sexual offenses to which defendant pled guilty occurred at different times, therefore consecutive sentences should not have been imposed. The Third Department explained that only the accusatory instrument to which defendant pled (here a superior court information) and the plea allocution can be considered in this context.  To the extent that a prior ruling suggested admissions in a pre-sentence report and victim statements could be considered to determine the facts of the offenses, that ruling is no longer to be followed:

Pursuant to Penal Law § 70.25 (2), “sentences imposed for two or more offenses may not run consecutively: (1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other” … . Thus, “to determine whether consecutive sentences are permitted, a court must first look to the statutory definitions of the crimes at issue to discern whether the actus reus elements overlap” … . “[E]ven if the statutory elements do overlap under either prong of the statute, the People may yet establish the legality of consecutive sentencing by showing that the acts or omissions committed by [the] defendant were separate and distinct acts” … . * * *

… [B]oth counts in the superior court information alleged that the acts occurred during the same time frame (between July 1, 2012 and July 31, 2012), neither count contained allegations about the specific acts constituting the crime, and there is no bill of particulars narrowing the specific type of sexual contact or sexual conduct alleged under either count … . Likewise, the plea allocution did not include admissions or particularity as to the acts committed that qualify as sexual contact or oral sexual conduct … . Given that the term “sexual contact” is broad enough to include all forms of “oral sexual conduct” … , the actus reus element could be the same for both offenses, that is, the same act could satisfy both crimes. As no specific date and time for each crime were alleged in the superior court information or plea allocution, and neither included underlying facts or alleged acts that were separate and distinct, consecutive sentences were not authorized … . People v Mangarillo, 2017 NY Slip Op 05872, 3rd Dept 7-27-17

CRIMINAL LAW (SENTENCING, NEITHER THE SUPERIOR COURT INFORMATION TO WHICH DEFENDANT PLED GUILTY NOR THE PLEA ALLOCUTION INDICATED THE TWO SEXUAL OFFENSES OCCURRED AT THE SAME TIME, CONSECUTIVE SENTENCES WERE NOT AUTHORIZED 3RD DEPT)/SENTENCING (NEITHER THE SUPERIOR COURT INFORMATION TO WHICH DEFENDANT PLED GUILTY NOR THE PLEA ALLOCUTION INDICATED THE TWO SEXUAL OFFENSES OCCURRED AT THE SAME TIME, CONSECUTIVE SENTENCES WERE NOT AUTHORIZED 3RD DEPT)

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RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT.

The First Department, in a full-fledged opinion by Justice Kahn, over an extensive, two-justice, dissenting opinion, determined a report on the DNA evidence which connected the defendant to the burglary did not violate the Confrontation Clause and was properly admitted. The majority argued that the report contained only raw data that was not part of a law enforcement effort aimed at the defendant because the sources of the DNA which were analyzed were not known to the technicians conducting the procedures. Therefore the raw data was not testimonial evidence (which would violate the Confrontation Clause). The criminologist (Huyck) who testified came to conclusions (testimonial) about the sources of the tested DNA by comparing the (non-testimonial) raw data. The report generated by the criminologist, therefore, was admissible because she testified and was cross-examined. The dissenters argued that someone involved in collecting the raw data should have testified and been cross-examined about the testing procedures (measures taken to avoid contamination, etc.):

Huyck herself conducted an independent review of the raw data derived from the testing of the DNA material derived from both the physical evidence and from defendant’s person, and was not merely “functioning as a conduit for the conclusions of others” … . …[T]he expert witness, “testified that any conclusions or opinions she reached from the raw data . . . were her own” and were not merely conclusions of others with whom she agreed … . Upon her own examination of the machine-generated graphs and raw data in this case, Huyck concluded that the two DNA profiles were a match. Her conclusion, based upon her own “separate, independent and unbiased analysis of the raw data,” was reflected in the … laboratory report bearing her name as analyst as well as in her own testimony at trial … . … Huyck did not base her testimony “solely on the reports of the nontestifying analysts [which were then] admitted into evidence for their truth.” People v Rodriguez, 2017 NY Slip Op 05799, 1st Dept 7-25-17

CRIMINAL LAW (RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/HEARSAY (CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/TESTIMONIAL EVIDENCE (CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/DNA (TESTIMONIAL EVIDENCE, CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/CONFRONTATION CLAUSE (TESTIMONIAL HEARSAY, CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/DNA (TESTIMONIAL HEARSAY, CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/REPORTS (TESTIMONIAL HEARSAY, CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)

BECAUSE THE PEOPLE PROVIDED NO INFORMATION ABOUT THE CIRCUMSTANCES OF DEFENDANT’S ARREST, DEFENDANT’S ALLEGATIONS IN THE OMNIBUS MOTION WERE SUFFICIENT TO REQUIRE A PROBABLE CAUSE HEARING 1ST DEPT.

The First Department determined defendant, who had pled guilty, was entitled to a hearing on whether the police had probable cause to arrest him. The defendant alleged he was arrested on October 12 at his home. The discovery provided by the People alleged defendant was arrested the following day at the police station. The People did not respond to defendant’s allegation he was arrested at a different time and place. Because the People did not explain the circumstances of defendant’s arrest, defendant’s allegations in the omnibus motion were sufficient to require a hearing. The appeal was held in abeyance pending the hearing:​

… [D]efendant’s claim that he was arrested without probable cause at his home on October 12, 2012, at which time “[h]e was not acting in an illegal or suspicious manner,” although conclusory, was sufficient to entitle him to a hearing on the legality of his arrest and the admissibility of any evidence derived therefrom. It is undisputed that the arrest, whether it occurred on October 12 or (as the People claim) on October 13, took place “at a time and place remote from the [crime] for which [defendant] was charged” … . The People … asserted that defendant was arrested around midday on October 13, at a police station, after giving statements at the same police station that morning and the previous night. Thus, at a minimum, defendant has raised a factual dispute concerning the time of his arrest. Further, the People provided defendant with no information at all as to how, by their account, he came to be at the police station in the first place, nor did they disclose the basis on which he first came to the attention of law enforcement in this investigation … . People v McUllin, 2017 NY Slip Op 05795, 1st Dept 7-25-17​

CRIMINAL LAW (PROBABLE CAUSE HEARING, BECAUSE THE PEOPLE PROVIDED NO INFORMATION ABOUT THE CIRCUMSTANCES OF DEFENDANT’S ARREST, DEFENDANT’S ALLEGATIONS IN THE OMNIBUS MOTION WERE SUFFICIENT TO REQUIRE A PROBABLE CAUSE HEARING 1ST DEPT)/PROBABLE CAUSE (ARREST, BECAUSE THE PEOPLE PROVIDED NO INFORMATION ABOUT THE CIRCUMSTANCES OF DEFENDANT’S ARREST, DEFENDANT’S ALLEGATIONS IN THE OMNIBUS MOTION WERE SUFFICIENT TO REQUIRE A PROBABLE CAUSE HEARING 1ST DEPT)/SUPPRESSION (PROBABLE CAUSE , BECAUSE THE PEOPLE PROVIDED NO INFORMATION ABOUT THE CIRCUMSTANCES OF DEFENDANT’S ARREST, DEFENDANT’S ALLEGATIONS IN THE OMNIBUS MOTION WERE SUFFICIENT TO REQUIRE A PROBABLE CAUSE HEARING 1ST DEPT)/HEARINGS (CRIMINAL LAW, PROBABLE CAUSE, BECAUSE THE PEOPLE PROVIDED NO INFORMATION ABOUT THE CIRCUMSTANCES OF DEFENDANT’S ARREST, DEFENDANT’S ALLEGATIONS IN THE OMNIBUS MOTION WERE SUFFICIENT TO REQUIRE A PROBABLE CAUSE HEARING 1ST DEPT)

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THE JURY’S FINDING THAT DEFENDANT’S ACTIONS IN THIS MANSLAUGHTER CASE WERE NOT JUSTIFIED WAS AGAINST THE WEIGHT OF THE EVIDENCE, CONVICTION REVERSED AND INDICTMENT DISMISSED 4TH DEPT.

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, over a two-justice dissent, determined the conviction was against the weight of the evidence. Defendant raised the justification defense in this manslaughter case. Once the defense was raised, the People were required to prove, beyond a reasonable doubt, the defendant’s act was not justified. The Fourth Department held that the jury’s finding the defendant’s act was not justified was against the weight of the evidence:

… [T]he People were required to prove either that defendant lacked a subjective belief that her use of deadly physical force was necessary to protect herself against decedent’s use or imminent use of deadly physical force, or that “a reasonable person in the same situation would not have perceived that deadly force was necessary”… . Although the jury found that the People met that burden, we conclude, upon our independent assessment of the proof… , that the jury “failed to give the evidence the weight it should be accorded”… . Defendant’s statements at the scene and in her police interview evinced a belief that deadly force was necessary to protect her from decedent, and we conclude that the People did not demonstrate beyond a reasonable doubt that her belief was objectively unreasonable. Instead, the credible evidence established that decedent was in a drunken rage during a heated argument with defendant, that he had threatened “trouble” if the police came, that he had repeatedly forced open doors in the course of pursuing defendant through the apartment, that he was not deterred even when she armed herself with a knife, that he had cornered her in the bathroom and pulled her hair, and that he had grabbed her by the hair to prevent her from leaving the bathroom just before she stabbed him. Under those circumstances, we conclude that the People failed to meet their burden of establishing that defendant lacked a reasonable belief that decedent was about to use deadly physical force against her, even though decedent was not armed … . In other words, this is not a case in which the force employed by defendant ” exceeded that which was necessary to defend [herself]’ ” … . People v Marchant, 2017 NY Slip Op 05918, 4th Dept 7-27-17

CRIMINAL LAW (JUSTIFICATION DEFENSE, THE JURY’S FINDING THAT DEFENDANT’S ACTIONS IN THIS MANSLAUGHTER CASE WERE NOT JUSTIFIED WAS AGAINST THE WEIGHT OF THE EVIDENCE, CONVICTION REVERSED AND INDICTMENT DISMISSED 4TH DEPT)/EVIDENCE (CRIMINAL LAW, JUSTIFICATION DEFENSE, THE JURY’S FINDING THAT DEFENDANT’S ACTIONS IN THIS MANSLAUGHTER CASE WERE NOT JUSTIFIED WAS AGAINST THE WEIGHT OF THE EVIDENCE, CONVICTION REVERSED AND INDICTMENT DISMISSED 4TH DEPT)/JUSTIFICATION DEFENSE (MANSLAUGHTER,  THE JURY’S FINDING THAT DEFENDANT’S ACTIONS IN THIS MANSLAUGHTER CASE WERE NOT JUSTIFIED WAS AGAINST THE WEIGHT OF THE EVIDENCE, CONVICTION REVERSED AND INDICTMENT DISMISSED 4TH DEPT)

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FAILURE TO INSTRUCT THE JURY ON THE NEED FOR CORROBORATION OF THE TESTIMONY OF AN ACCOMPLICE REQUIRED A NEW TRIAL 2ND DEPT.

The Second Department, reversing defendant’s murder conviction and ordering a new trial, determined the trial judge should have given the jury the accomplice-in-fact instruction concerning the need for corroboration of the testimony of an accomplice:

“A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense” (CPL 60.22[1]). A witness in a criminal action is an accomplice if he or she “may reasonably be considered to have participated in . . . the offense charged or an offense based upon the same or some of the same facts or conduct which constitute the offense charged”… . A witness who is a criminal facilitator is an accomplice for corroboration purposes … . The factual issue of whether a particular witness is an accomplice should be submitted to the jury if different inferences may reasonably be drawn from the proof regarding complicity … .

Here, different inferences may reasonably be drawn … as to whether the second eyewitness drove Gill and the shooter to the scene, with the knowledge that one or the other of them intended to use the gun. Under these circumstances, the Supreme Court erred in failing to provide the jury with an accomplice-in-fact charge. The error was not harmless, because the evidence of the defendant’s guilt was not overwhelming. It is possible that the jury, properly charged on whether to treat the second eyewitness as an accomplice, and, if so, how to consider his testimony, could have discounted his version of the events. In that case, it was for the jury to decide whether the remaining evidence established the defendant’s guilt beyond a reasonable doubt … . People v Riley, 2017 NY Slip Op 05755, 2nd Dept 7-19-17

CRIMINAL LAW (FAILURE TO INSTRUCT THE JURY ON THE NEED FOR CORROBORATION OF THE TESTIMONY OF AN ACCOMPLICE REQUIRED A NEW TRIAL)/EVIDENCE (CRIMINAL LAW, ACCOMPLICE TESTIMONY, FAILURE TO INSTRUCT THE JURY ON THE NEED FOR CORROBORATION OF THE TESTIMONY OF AN ACCOMPLICE REQUIRED A NEW TRIAL)/JURY INSTRUCTIONS (CRIMINAL LAW, ACCOMPLICE TESTIMONY, FAILURE TO INSTRUCT THE JURY ON THE NEED FOR CORROBORATION OF THE TESTIMONY OF AN ACCOMPLICE REQUIRED A NEW TRIAL)

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JUDGE SHOULD NOT HAVE VACATED DEFENDANT’S GUILTY PLEA OVER DEFENDANT’S OBJECTION 2ND DEPT.

The Second Department, reversing Supreme Court, determined the sentencing judge should not have vacated defendant’s guilty plea. Under the plea bargain defendant was promised an 18-year sentence. After trial he was sentenced to 50 years. Although defendant indicated he didn’t remember the underlying events because he was intoxicated, both he and his attorney objected when the judge vacated the plea:

“[I]n the absence of fraud, misrepresentation, deceit, or trickery, courts have no inherent power to set aside a plea of guilty absent the defendant’s consent other than to correct their own mistakes” … . Moreover, a court may not vacate a plea over a defendant’s objection … .

Here, the People fail to identify, nor is there apparent, any error or mistake made by the Supreme Court in accepting the defendant’s plea. Nor is there any evidence of fraud, misrepresentation, deceit, or trickery presented on this record … .. The defendant’s statements to the probation department to the effect that he was intoxicated and did not remember what had occurred on the night of the shootings cannot be said to constitute consent on the part of the defendant to the vacatur of his plea of guilty and the reinstatement of his plea of not guilty … . Further, notwithstanding the court’s conclusion and the People’s assertion to the contrary, in response to the court’s questioning as to whether the defendant wished to proceed to trial and assert an intoxication defense, the defendant merely indicated that he had wished to do so in the past, not that he wished to withdraw the plea and go to trial now. Nor did the defendant unequivocally inform the court that he had been coerced into pleading guilty … . Instead, the record shows that, when the court stated that it would strike the plea and set the matter down for trial, the defendant and his attorney immediately protested, but the court overruled their objections and moved on. The court erred in vacating the plea over the defendant’s objections … . People v Brown, 2017 NY Slip Op 05748, 2nd Dept 7-19-17

CRIMINAL LAW (JUDGE SHOULD NOT HAVE VACATED DEFENDANT’S GUILTY PLEA OVER DEFENDANT’S OBJECTION)/GUILTY PLEA, VACATION OF (JUDGE SHOULD NOT HAVE VACATED DEFENDANT’S GUILTY PLEA OVER DEFENDANT’S OBJECTION)

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INSUFFICIENT PROOF OF CRIMINAL POSSESSION OF A WEAPON UNDER AN ACCESSORIAL LIABILITY THEORY 3RD DEPT.

The Third Department determined there was insufficient proof of defendant’s criminal possession of a weapon under an accessorial liability theory:

… [A]s for defendant’s convictions of criminal possession of a weapon in the second degree, the conclusion that defendant was an accessory to Anderson or Bost [co-defendants] in their unlawful possession of weapons is against the weight of the evidence … . There was no proof presented during the trial that defendant ever personally possessed one of the handguns or in any way encouraged or intentionally aided Anderson or Bost in their possession of the handguns … .. Accordingly, as “there was no evidence that . . . defendant solicited, requested, commanded, importuned, or intentionally aided another individual to possess the firearm” … , we reverse defendant’s convictions of counts 3 and 4 of the indictment for criminal possession of a weapon in the second degree and dismiss said counts. People v Spencer, 2017 NY Slip Op 05631, 3rd Dept 7-13-17

CRIMINAL LAW (INSUFFICIENT PROOF OF CRIMINAL POSSESSION OF A WEAPON UNDER AN ACCESSORIAL LIABILITY THEORY 3RD DEPT)/EVIDENCE (CRIMINAL LAW, INSUFFICIENT PROOF OF CRIMINAL POSSESSION OF A WEAPON UNDER AN ACCESSORIAL LIABILITY THEORY 3RD DEPT)

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DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, DEFENDANT ALLEGED COUNSEL’S ADVICE ON THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA WAS ERRONEOUS 1ST DEPT.

The First Department, reversing Supreme Court, determined defendant was entitled to a hearing on his motion to vacate his conviction because of counsel’s (alleged) advice on the deportation consequences of his guilty plea:

Defendant alleged in support of his CPL 440.10 motion that counsel at his plea affirmatively misadvised him …  that he “could” be deported, but “maybe” could avoid deportation if he stayed out of further trouble. However, since defendant pleaded guilty to an aggravated felony under federal law, deportation was mandatory irrespective of subsequent good behavior … . Defendant also alleged that, although he was innocent, he accepted what he thought was a favorable plea because it involved a sentence of probation, whereas, had he known that deportation was mandatory, he would have asked counsel to negotiate a disposition with less onerous deportation consequences or would have proceeded to trial, in light of the fact that he has family here.

Defendant raised sufficient questions of fact concerning the effectiveness of counsel’s assistance to warrant a hearing on the content of counsel’s immigration advice, and whether defendant was prejudiced … . People v Candel, 2017 NY Slip Op 05680, 1st Dept 7-13-17

CRIMINAL LAW (ATTORNEYS, DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, DEFENDANT ALLEGED COUNSEL’S ADVICE ON THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA WAS ERRONEOUS 1ST DEPT)/ATTORNEYS (CRIMINAL LAW, DEPORTATION ADVICE, DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, DEFENDANT ALLEGED COUNSEL’S ADVICE ON THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA WAS ERRONEOUS 1ST DEPT)/VACATE CONVICTION, MOTION TO (ATTORNEYS, DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, DEFENDANT ALLEGED COUNSEL’S ADVICE ON THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA WAS ERRONEOUS 1ST DEPT)/DEPORTATION (CRIMINAL LAW, ATTORNEYS, DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, DEFENDANT ALLEGED COUNSEL’S ADVICE ON THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA WAS ERRONEOUS 1ST DEPT)/INEFFECTIVE ASSISTANCE (DEPORTATION ADVICE, DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, DEFENDANT ALLEGED COUNSEL’S ADVICE ON THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA WAS ERRONEOUS 1ST DEPT)

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COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT.

The Third Department, vacating defendant’s guilty plea in the interest of justice, determined the judge did not adequately ensure defendant was aware of the rights he was giving up:

Defendant … contends that his guilty plea to criminal sale of a controlled substance in the third degree and violating his probation was not knowing, voluntary and intelligent because County Court failed to inform him of the constitutional rights he was waiving by pleading guilty. Although this contention is unpreserved for our review, inasmuch as he failed to make an appropriate postallocution motion … , we find that the error warrants reversal of the judgment in the interest of justice … .

“While there is no mandatory catechism required of a pleading defendant, there must be an affirmative showing on the record that the defendant waived his or her constitutional rights”… . During the plea allocution, County Court merely asked whether defendant understood “what the attorneys have told me about you waiving your rights and entering pleas of guilty to a felony, violation of probation and all of that stuff” and whether defendant had “[a]ny questions at all regarding you giving up your rights to a jury trial, your rights to presumption of innocence, your rights to a violation of probation hearing, anything like that.” County Court further failed to ascertain whether defendant had discussed with counsel the trial-related rights being waiving by a guilty plea or its constitutional consequences. Rather, County Court simply inquired whether defendant “[had] the time, and did you talk to [counsel] regarding this case, the disposition, and anything else that is important to you, with respect to these charges” … . Additionally, County Court did not advise defendant of his rights or the consequences regarding an admission to violating probation … , including that he understood that he was entitled to a hearing on the issue and that he was waiving that right … . “With no affirmative showing on the record that defendant understood and waived his constitutional rights when he entered the guilty plea, the plea was invalid and must be vacated” … . People v Aubain, 2017 NY Slip Op 05632, 3rd Dept 7-13-17

CRIMINAL LAW (COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT)/APPEALS (INTEREST OF JUSTICE JURISDICTION, COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT)/GUILTY PLEA (COUNTY COURT DID NOT ENSURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED IN THE INTEREST OF JUSTICE 3RD DEPT)

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EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT.

The Second Department, under a weight of the evidence analysis, determined the evidence of the appellant’s liability as an accomplice in this juvenile delinquency proceeding was insufficient. The complainant testified appellant was present during the assault and theft by another. Presence is not enough:

A determination premised upon accessorial liability requires proof beyond a reasonable doubt that the accused acted with the mental culpability necessary to commit the act charged and that, in furtherance thereof, he solicited, requested, commanded, importuned, or intentionally aided the principal to commit such act… . “A person’s mere presence at the scene of the crime, even with knowledge of its perpetration, cannot render him or her accessorially liable for the underlying criminal conduct” … .  Here, we agree with the appellant that the Family Court’s finding of accessorial liability was against the weight of the credible evidence. The appellant is alleged to have been an accomplice with another youth who punched the complainant in the face and took his iPhone. However, at the fact-finding hearing, when asked about the appellant’s actions at the time of the assault and robbery, the complainant testified that the appellant was standing near the perpetrator and watched the incident occur. The presentment agency’s evidence with respect to the crimes of robbery in the second degree, robbery in the third degree, grand larceny in the fourth degree, and attempted assault in the third degree established only that the appellant was present at the scene of the offense… . Accordingly, the determination of the Family Court with respect to those crimes was against the weight of the evidence, and the order of disposition must be modified accordingly. Matter of Justin M., 2017 NY Slip Op 05605, 2nd Dept 7-12-17

FAMILY LAW (JUVENILE DELINQUENCY, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)/JUVENILE DELINQUENCY (FAMILY COURT, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)/CRIMINAL LAW (FAMILY LAW, JUVENILE DELINQUENCY, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)/EVIDENCE (JUVENILE DELINQUENCY, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)/ACCESSORIAL LIABILITY  (JUVENILE DELINQUENCY, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)

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