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CONTEMPT ORDER IN A CIVIL MATTER INVOLVING THE SAME FUNDS DEFENDANT WAS ACCUSED OF STEALING IN THE CRIMINAL MATTER IS NOT MOLINEUX EVIDENCE, THE PROBATIVE VALUE OF THE ORDER ON THE QUESTION OF INTENT OUTWEIGHED ITS PREJUDICIAL EFFECT.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined that a contempt order in a civil proceeding involving the same funds defendant was accused of stealing in the criminal action: (1) was not Molineux evidence because it involved the same subject matter as did the criminal action; and (2) the probative value of the order on the question of intent outweighed its prejudicial effect:

“When we limit Molineux or other propensity evidence, we do so for policy reasons, due to fear of the jury’s human tendency to more readily believe in the guilt of an accused person when it is known or suspected that he has previously committed a similar crime” … . In other words, the courts limit the admission of Molineux evidence because of the danger that the jury might conclude that if the defendant did it once, he or she likely did it again.

Where, as here, the evidence at issue is relevant to the very same crime for which the defendant is on trial, there is no danger that the jury will draw an improper inference of propensity because no separate crime or bad act committed by the defendant has been placed before the jury. * * *

The Appellate Division correctly concluded that the contempt order was relevant to prove defendant’s larcenous intent because “it showed that defendant’s conduct did not merely constitute poor financial management but, rather, that defendant, through his businesses, intended to deprive [the business entity] of the diverted money permanently” … . People v Frumusa, 2017 NY Slip Op 04495, CtApp 6-8-17

CRIMINAL LAW (EVIDENCE, CONTEMPT ORDER IN A CIVIL MATTER INVOLVING THE SAME FUNDS AS DEFENDANT WAS ACCUSED OF STEALING IN THE CRIMINAL MATTER IS NOT MOLINEUX EVIDENCE, THE PROBATIVE VALUE OF THE ORDER ON THE QUESTION OF INTENT OUTWEIGHED ITS PREJUDICIAL EFFECT)/EVIDENCE (CRIMINAL LAW, MOLINEUX, CONTEMPT ORDER IN A CIVIL MATTER INVOLVING THE SAME FUNDS AS DEFENDANT WAS ACCUSED OF STEALING IN THE CRIMINAL MATTER IS NOT MOLINEUX EVIDENCE, THE PROBATIVE VALUE OF THE ORDER ON THE QUESTION OF INTENT OUTWEIGHED ITS PREJUDICIAL EFFECT)/MOLINEUX EVIDENCE (CRIMINAL LAW, CONTEMPT ORDER IN A CIVIL MATTER INVOLVING THE SAME FUNDS AS DEFENDANT WAS ACCUSED OF STEALING IN THE CRIMINAL MATTER IS NOT MOLINEUX EVIDENCE, THE PROBATIVE VALUE OF THE ORDER ON THE QUESTION OF INTENT OUTWEIGHED ITS PREJUDICIAL EFFECT)

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TRIAL JUDGE PROPERLY RESETTLED THE RECORD OF THE TRIAL BY CORRECTING TYPOGRAPHICAL ERRORS IN THE TRANSCRIPT WITHOUT A HEARING.

The Court of Appeals, in a full-fledged opinion by Judge Wilson, with two concurring opinions, determined the trial judge properly resettled the record of the trial without holding a hearing. The original transcript indicated the jury was instructed the defendant was charged with “unintentional” murder. The prosecutor submitted an affirmation based upon a conversation with the court stenographer stating that the word “unintentional” was a typographical error and the stenographic notes reflected the word “intentional” was actually used. The stenographer submitted a certified corrected transcript:

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Several factors support the Appellate Division’s conclusion that Supreme Court acted within its discretion to resettle the transcript on the basis of the information before it. The trial judge could rely not only on the reporter’s certification of the corrected transcript, but also on undisputed portions of that transcript, including: the accurate balance of the charge; the fact that two of the five alleged misstatements were attributed to defense counsel, not the court; and, most significantly, the repeated failure of any party to object to what would have been prominent misstatements of the law. Furthermore, as there was no suggestion during oral argument on the motion that any person present at the trial five years earlier could recollect what words were spoken, it is not clear what evidence beyond the reporter’s original stenographic notes might have been obtained through a hearing.

Although it would have been preferable for the court to have received an affidavit from the court reporter, rather than an affidavit of counsel recounting a conversation with that reporter, we cannot say that Supreme Court acted outside its discretion to resettle the transcript without a hearing. People v Bethune, 2017 NY Slip Op 04493, CtApp 6-8-17

 

CRIMINAL LAW (RESETTLING THE RECORD, TRIAL JUDGE PROPERLY RESETTLED THE RECORD OF THE TRIAL BY CORRECTING TYPOGRAPHICAL ERRORS IN THE TRANSCRIPT WITHOUT A HEARING)/APPEALS (CRIMINAL LAW, RESETTLING THE RECORD, TRIAL JUDGE PROPERLY RESETTLED THE RECORD OF THE TRIAL BY CORRECTING TYPOGRAPHICAL ERRORS IN THE TRANSCRIPT WITHOUT A HEARING)

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DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO EVIDENCE OF THE COMPLAINANT’S DISCLOSURE OF ALLEGED SEXUAL ABUSE UP TO SEVEN YEARS AFTER THE ABUSE CEASED, THE EVIDENCE MAY HAVE BEEN ADMISSIBLE AND DEFENSE COUNSEL USED DISCREPANCIES IN THE DISCLOSURES TO SUPPORT THE DEFENSE.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined defense counsel was not ineffective for failing to object to evidence the complainant, who alleged she was sexually abused by the defendant many years earlier, disclosed the abuse to friends three years after the abuse ceased and again four years later. Defense counsel’s strategy was to show the complainant was a “troubled teen” and inconsistencies in the statements were part of a “recent fabrication” defense:

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Here, defendant argues that counsel’s failure to object to the testimony regarding the victim’s disclosures must have arisen from his ignorance or misunderstanding of the law on prompt outcry testimony and, thus, cannot be considered a matter of strategy. We disagree. While “it is generally improper to introduce testimony that the witness had previously made prior consistent statements” to bolster the witness’s credibility, the use of prior consistent statements is permitted to demonstrate a prompt outcry, rebut a charge of recent fabrication, or “to assist in ‘explaining the investigative process and completing the narrative of events leading to defendant’s arrest'” … . “‘New York courts have routinely recognized that nonspecific testimony about [a] child-victim’s reports of sexual abuse [does] not constitute improper bolstering [when] offered for the relevant, nonhearsay purpose of explaining the investigative process'”… .

A conclusion that the fact of the victim’s disclosures herein to the school counselor and detective would likely be admissible to “complete the narrative” was “consistent with [a conclusion that] a reasonably competent attorney” could make  … . … [C}ounsel was not ineffective for failure to make a motion that had little chance of success …. Instead of objecting to that testimony, counsel strategically chose to use the evidence to defendant’s advantage by exploring the substance of, and the circumstances surrounding, the disclosure in depth to support the defense of recent fabrication. People v Honghirun, 2017 NY Slip Op 04496, CtApp 6-8-17

CRIMINAL LAW (INEFFECTIVE ASSISTANCE, EVIDENCE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO EVIDENCE OF THE COMPLAINANT’S DISCLOSURE OF ALLEGED SEXUAL ABUSE UP TO SEVEN YEARS AFTER THE ABUSE CEASED, THE EVIDENCE MAY HAVE BEEN ADMISSIBLE AND DEFENSE COUNSEL USED DISCREPANCIES IN THE DISCLOSURES TO SUPPORT THE DEFENSE)/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO EVIDENCE OF THE COMPLAINANT’S DISCLOSURE OF ALLEGED SEXUAL ABUSE UP TO SEVEN YEARS AFTER THE ABUSE CEASED, THE EVIDENCE MAY HAVE BEEN ADMISSIBLE AND DEFENSE COUNSEL USED DISCREPANCIES IN THE DISCLOSURES TO SUPPORT THE DEFENSE)EVIDENCE (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DELAYED DISCLOSURE OF SEXUAL ABUSE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO EVIDENCE OF THE COMPLAINANT’S DISCLOSURE OF ALLEGED SEXUAL ABUSE UP TO SEVEN YEARS AFTER THE ABUSE CEASED, THE EVIDENCE MAY HAVE BEEN ADMISSIBLE AND DEFENSE COUNSEL USED DISCREPANCIES IN THE DISCLOSURES TO SUPPORT THE DEFENSE)

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EXCESSIVE INTERFERENCE BY THE JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL.

The Second Department determined excessive interference by the judge deprived defendant of a fair trial:

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“Trial judges have wide discretion in directing the presentation of evidence but must exercise that discretion appropriately and without prejudice to the parties” … . While “neither the nature of our adversary system nor the constitutional requirement of a fair trial preclude a trial court from assuming an active role in the truth-seeking process,” the court’s discretion in this area is not unfettered … . “The overarching principle restraining the court’s discretion is that it is the function of the judge to protect the record at trial, not to make it. Although the law will allow a certain degree of judicial intervention in the presentation of evidence, the line is crossed when the judge takes on either the function or appearance of an advocate at trial” … . Thus, while there is no absolute bar to a trial court asking a particular number of questions of the witnesses in order to advance the goals of truth and clarity, a court may not “assume the advocacy role traditionally reserved for counsel, and in order to avoid this, the court’s discretion to intervene must be exercised sparingly” … .

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Here, notwithstanding numerous objections by defense counsel, the Supreme Court exercised little or no restraint in questioning the witnesses at length and improperly “assume[d] the advocacy role traditionally reserved for counsel” (id.). We acknowledge that this trial was lengthy because it involved three codefendants and multiple complainants. However, contrary to the People’s contention, the court’s questioning of the witnesses far exceeded what was necessary to “clarify[ ] confusing testimony” or facilitate “the orderly and expeditious progress of the trial” … . The court engaged in protracted and often unnecessary questioning on both direct and cross-examination, and at times acted as an advocate for the People … . People v Robinson, 2017 NY Slip Op 04473, 2nd Dept 6-7-17

 

CRIMINAL LAW (JUDGES, EXCESSIVE INTERFERENCE BY THE JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL)/JUDGES (CRIMINAL LAW, EXCESSIVE INTERFERENCE BY THE JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL)

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BRIEF MENTION OF AN OFFENSE FOR WHICH THE INTERROGATING DETECTIVE KNEW DEFENDANT WAS REPRESENTED BY COUNSEL TAINTED THE INTERROGATION AND REQUIRED SUPPRESSION OF THE INTERVIEW.

The First Department, reversing the denial of defendant’s motion to suppress his statements, over a two justice dissent, determined the detective’s mention of a drug offense for which defendant was represented by counsel during questioning on a homicide required suppression of the interrogation:

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Although the reference to the drug charges on which defendant was represented was brief and flippant, it was not, in context, innocuous or discrete and fairly separable from the homicide investigation. The detective told defendant during the questioning that he knew defendant was involved in selling drugs at the location of the murder and that the killing was over a drug debt. The remarks regarding the pending drug case went to defendant’s alleged participation in the drug trade at the location of the homicide, the very activity out of which a motivation for killing the victim arose. Indeed, it succeeded in eliciting from defendant a response that may fairly be interpreted as incriminating himself in dealing drugs at the location, the alleged motivation and context out of which the homicide occurred. Accordingly, because questioning regarding the drug case on which defendant was represented by counsel was intertwined with questioning regarding the homicide, defendant’s statements should have been suppressed.

However, we find no other basis for suppression. As the dissent notes, the repeated comments made to defendant by the detective and his colleagues to the effect that defendant should “tell [his] side of the story” immediately because if he were to wait until trial, “[no] one is going to believe” him and he would be “charged with murder, not . . . manslaughter” did not vitiate the Miranda warnings defendant had received … . People v Silvagnoli, 2017 NY Slip Op 04392, 1st Dept 6-6-17

 

CRIMINAL LAW (SUPPRESSION OF STATEMENT, BRIEF MENTION OF AN OFFENSE FOR WHICH THE INTERROGATING DETECTIVE KNEW DEFENDANT WAS REPRESENTED BY COUNSEL TAINTED THE INTERROGATION AND REQUIRED SUPPRESSION OF THE INTERVIEW)/EVIDENCE (CRIMINAL LAW, SUPPRESSION, BRIEF MENTION OF AN OFFENSE FOR WHICH THE INTERROGATING DETECTIVE KNEW DEFENDANT WAS REPRESENTED BY COUNSEL TAINTED THE INTERROGATION AND REQUIRED SUPPRESSION OF THE INTERVIEW)/ATTORNEYS (CRIMINAL LAW, SUPPRESSION, BRIEF MENTION OF AN OFFENSE FOR WHICH THE INTERROGATING DETECTIVE KNEW DEFENDANT WAS REPRESENTED BY COUNSEL TAINTED THE INTERROGATION AND REQUIRED SUPPRESSION OF THE INTERVIEW)/RIGHT TO COUNSEL (CRIMINAL LAW, SUPPRESSION, BRIEF MENTION OF AN OFFENSE FOR WHICH THE INTERROGATING DETECTIVE KNEW DEFENDANT WAS REPRESENTED BY COUNSEL TAINTED THE INTERROGATION AND REQUIRED SUPPRESSION OF THE INTERVIEW)

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POLICE LOST A VIDEO WHICH WAS LIKELY TO BE OF MATERIAL IMPORTANCE, FAILURE TO GIVE THE ADVERSE INFERENCE CHARGE TO THE JURY WAS (HARMLESS) ERROR.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a two judge dissenting opinion authored by Judge Wilson, determined defendant was entitled to an adverse inference charge with respect to the loss of video of a shooting, but that the failure to so charge the jury was harmless error under the facts. The defendant allegedly fired shots from across the street toward the entrance of a club. The video would have shown the victim and witnesses near the club entrance, but not the shooter:

Once the police collected the video, the People had an obligation to preserve it … .

Under these circumstances — where defendant acted with due diligence by requesting the evidence in discovery and the lost evidence was video footage of the murder defendant was charged with committing — it cannot be said that the evidence was not “reasonably likely to be of material importance” (Handy, 20 NY3d at 665). According to the trial testimony, the camera captured the moment when the victim was shot and the location of the two eyewitnesses at the time of the shooting. There was also testimony that the video contained footage of people going in and out of the club throughout the course of the night, making it at least possible that the video captured the earlier incident involving defendant and the bouncer — a key issue in the sequence of events. Contrary to the determination of the Appellate Division, a video of the shooting and of the eyewitnesses at or around the time of the murder is certainly “relevant to the case” … and is sufficient to satisfy the standard set out in Handy. Moreover, as in Handy, testimony concerning what appeared on the video came in large part from a witness whose own actions “created the need to speculate about its contents” … . Accordingly, the trial court erred in failing to give an adverse inference instruction. People v Viruet, 2017 NY Slip Op 04386, CtApp 6-6-17

 

CRIMINAL LAW (POLICE LOST A VIDEO WHICH WAS LIKELY TO BE OF MATERIAL IMPORTANCE, FAILURE TO GIVE THE ADVERSE INFERENCE CHARGE TO THE JURY WAS (HARMLESS) ERROR)/EVIDENCE (CRIMINAL LAW, POLICE LOST A VIDEO WHICH WAS LIKELY TO BE OF MATERIAL IMPORTANCE, FAILURE TO GIVE THE ADVERSE INFERENCE CHARGE TO THE JURY WAS (HARMLESS) ERROR)/ADVERSE INFERENCE JURY INSTRUCTION (CRIMINAL LAW, POLICE LOST A VIDEO WHICH WAS LIKELY TO BE OF MATERIAL IMPORTANCE, FAILURE TO GIVE THE ADVERSE INFERENCE CHARGE TO THE JURY WAS (HARMLESS) ERROR)

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REFERENCES TO DEFENDANT’S PRIOR COMMISSION OF A VIOLENT CRIME AND IMPRISONMENT WERE INTERTWINED WITH THE DEFENSE EVIDENCE OF DEFENDANT’S LACK OF RESPONSIBILITY DUE TO MENTAL ILLNESS, THE PROBATIVE VALUE OUTWEIGHED THE PREJUDICIAL EFFECT.

The First Department, over a two-justice dissent, determined the prosecutor’s mention of the details of a prior violent crime of which defendant was convicted, evidence the defendant had been in prison, ineffective redaction of references to the prior crime in the medical records, restrictions on the defense expert’s testimony concerning the expert’s reasons for doubting defendant committed the prior crime, and defense counsel’s mention of the prior crime in voir dire, did not warrant reversal. Defendant was convicted of robbing a women of $40 at knife point. Defendant claimed he was not responsible by reason of mental illness. There was evidence he suffered from schizophrenia and he claimed voices told him to commit robbery to get money to buy cigarettes:

The court properly exercised its discretion in admitting evidence that defendant had been released from prison a few months before the robbery, and denying counsel’s request to redact that information from defendant’s medical records. In support of the defense of lack of criminal responsibility by reason of mental disease or defect, the defense psychiatric expert testified that defendant had been stable throughout his years in custody, when he received proper treatment for his schizophrenia. However, after he was released, he no longer received treatment, he became unstable, he began hearing voices, and he committed the robbery a few months later. Evidence of defendant’s confinement in prison was “inextricably interwoven” with the expert’s testimony and conclusion … . The court minimized the possible prejudice by excluding evidence of defendant’s underlying conviction and only admitted references to his imprisonment.

The court properly rejected defendant’s suggested use of terms such as “institution” or “facility,” rather than “prison,” because such terms might have confused the jury, or led it to speculate on the circumstances surrounding his confinement. Moreover, the court instructed the jury that the evidence was admitted solely for the purpose of evaluating the expert’s opinion. Thus, the probative value of the evidence outweighed any prejudicial effect, which was avoided by the court’s thorough limiting instructions … .

The dissent claims that the trial court infringed on defendant’s ability to present a defense when the court prevented defendant’s expert from expanding on his answers provided during cross-examination about defendant’s prior violent act. Defendant did not preserve his claim regarding the alleged limitations on his expert’s testimony, and we decline to review it in the interest of justice. As an alternative holding, we find no basis for reversal. People v Sanabria, 2017 NY Slip Op 04359, 1st Dept 6-1-17

CRIMINAL LAW (EVIDENCE, PRIOR CRIMES, REFERENCES TO DEFENDANT’S PRIOR COMMISSION OF A VIOLENT CRIME AND IMPRISONMENT WERE INTERTWINED WITH THE DEFENSE EVIDENCE OF DEFENDANT’S LACK OF RESPONSIBILITY DUE TO MENTAL ILLNESS, THE PROBATIVE VALUE OUTWEIGHED THE PREJUDICIAL EFFECT)/EVIDENCE (CRIMINAL LAW, PRIOR CRIMES, REFERENCES TO DEFENDANT’S PRIOR COMMISSION OF A VIOLENT CRIME AND IMPRISONMENT WERE INTERTWINED WITH THE DEFENSE EVIDENCE OF DEFENDANT’S LACK OF RESPONSIBILITY DUE TO MENTAL ILLNESS, THE PROBATIVE VALUE OUTWEIGHED THE PREJUDICIAL EFFECT)/PRIOR CRIMES AND BAD ACTS (CRIMINAL LAW, EVIDENCE, REFERENCES TO DEFENDANT’S PRIOR COMMISSION OF A VIOLENT CRIME AND IMPRISONMENT WERE INTERTWINED WITH THE DEFENSE EVIDENCE OF DEFENDANT’S LACK OF RESPONSIBILITY DUE TO MENTAL ILLNESS, THE PROBATIVE VALUE OUTWEIGHED THE PREJUDICIAL EFFECT)

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WHETHER THE POLICE ENTRY INTO DEFENDANT’S HOME WAS JUSTIFIED BY EXIGENT CIRCUMSTANCES IS A MIXED QUESTION OF LAW AND FACT AND IS THEREFORE NOT REVIEWABLE BY THE COURT OF APPEALS.

The Court of Appeals, over an extensive dissent by Judge Rivera, determined whether entry into defendant’s home was justified by exigent circumstances is a mixed question of facts and law that cannot be addressed by the Court of Appeals:

The order of the Appellate Division should be affirmed. The conclusion that the warrantless entry by police into defendant’s home was justified by exigent circumstances is a mixed question of law and fact. Where, as here, there is support in the record for the Appellate Division’s conclusion, the issue is beyond our further review … . “The rule applies ‘where the facts are disputed . . . or where reasonable minds may differ as to the inference to be drawn [from the established facts]'”… . The dissent’s conclusion to the contrary is based on a narrative derived from the suppression hearing record that unduly emphasizes the testimony and resulting inferences that are favorable to defendant. …

RIVERA, J. (dissenting):

As a matter of law, there is no record evidence to support the trial court’s ruling that exigent circumstances justified the warrantless entry into defendant’s home … . Therefore, the Appellate Division should be reversed and a new trial ordered. I dissent. People v Sivertson, 2017 NY Slip Op 04320, CtApp 6-1-17

 

CRIMINAL LAW (APPEALS, COURT OF APPEALS, WHETHER THE POLICE ENTRY INTO DEFENDANT’S home WAS JUSTIFIED BY EXIGENT CIRCUMSTANCES IS A MIXED QUESTION OF LAW AND FACT AND IS THEREFORE NOT REVIEWABLE BY THE THE COURT OF APPEALS)/APPEALS (CRIMINAL LAW, COURT OF APPEALS, WHETHER THE POLICE ENTRY INTO DEFENDANT’S HOME WAS JUSTIFIED BY EXIGENT CIRCUMSTANCES IS A MIXED QUESTION OF LAW AND FACT AND IS THEREFORE NOT REVIEWABLE BY THE THE COURT OF APPEALS)/SUPPRESS, MOTION TO (CRIMINAL LAW, APPEALS, COURT OF APPEALS, WHETHER THE POLICE ENTRY INTO DEFENDANT’S HOME WAS JUSTIFIED BY EXIGENT CIRCUMSTANCES IS A MIXED QUESTION OF LAW AND FACT AND IS THEREFORE NOT REVIEWABLE BY THE THE COURT OF APPEALS)/EXIGENT CIRCUMSTANCES (CRIMINAL LAW, SUPPRESSION, APPEALS, COURT OF APPEALS, WHETHER THE POLICE ENTRY INTO DEFENDANT’S HOME WAS JUSTIFIED BY EXIGENT CIRCUMSTANCES IS A MIXED QUESTION OF LAW AND FACT AND IS THEREFORE NOT REVIEWABLE BY THE THE COURT OF APPEALS)

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SCHOOL CUSTODIAN’S STATEMENT TO A TEACHER THAT ON THE DAY HE IS FIRED HE WILL COME IN AND ‘COLUMBINE THIS SHIT’ DID NOT CONSTITUTE SUFFICIENT EVIDENCE OF A TERRORISTIC THREAT WITHIN THE MEANING OF THE PENAL LAW, DISMISSAL OF THE INDICTMENT AFTER A READING OF THE GRAND JURY MINUTES WAS PROPER.

The Second Department determined defendant’s statement to a teacher that on the day he was fired from his school custodian job he would “Columbine this shit” was not legally sufficient evidence of a “terrorist threat” within the meaning of the Penal Law. The indictment was properly dismissed upon reading the grand jury minutes:

” In the context of a Grand Jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt'”… . “The reviewing court’s inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes, and whether the Grand Jury could rationally have drawn the guilty inference. That other, innocent inferences could possibly be drawn from those facts is irrelevant to the sufficiency inquiry as long as the Grand Jury could rationally have drawn the guilty inference”… .

According to the grand jury minutes, the defendant, who was a custodian at a school for more than a decade, was eating a sandwich in the school’s faculty break room when a teacher entered the room and asked how he was doing after the first week of school. The defendant allegedly told the teacher that another teacher was on his “shit list,” and that “people better stay out of [his] way.” When the teacher told him, among other things, that he should “try to relax a little bit” and that “we all have to like work together here,” the defendant allegedly got out of his chair and told the teacher that she “better be absent the day they fire me because I am going to come in here and Columbine this shit.” He then mimed shooting a gun while imitating gun noises. Based upon his statements, the defendant was charged in an indictment with making a terroristic threat (Penal Law § 490.20), a class D felony.

Penal Law article 490 was enacted shortly after the attacks on September 11, 2001, to ensure that terrorists are prosecuted and punished in state courts with appropriate severity … . In construing the statute, courts must be cognizant that “the concept of terrorism has a unique meaning and its implications risk being trivialized if the terminology is applied loosely in situations that do not match our collective understanding of what constitutes a terrorist act” … . Penal Law § 490.20(1) provides, in pertinent part, that “[a] person is guilty of making a terroristic threat when with intent to intimidate . . . a civilian population . . . he or she threatens to commit or cause to be committed a specified offense and thereby causes a reasonable expectation or fear of the imminent commission of such offense.”

Contrary to the People’s contentions, the Supreme Court properly granted that branch of the defendant’s omnibus motion which was to dismiss the indictment since the People failed to present legally sufficient evidence that the defendant’s comment caused a reasonable expectation or fear of the imminent commission of a specified offense … . The teacher testified that she did not believe that the defendant’s threat of a school shooting was imminent and, therefore, she waited to report the defendant’s comment. Moreover, the defendant’s alleged threat was expressly conditioned by the phrase, “the day they fire me.” The People did not present any evidence that the defendant was about to be terminated from his job, or had any reason to believe that he was going to be terminated. People v Hulsen, 2017 NY Slip Op 04294, 2nd Dept 5-31-17

 

CRIMINAL LAW (TERRORISTIC THREAT, EVIDENCE, SCHOOL CUSTODIAN’S STATEMENT TO A TEACHER THAT ON THE DAY HE IS FIRED HE WILL COME IN AND ‘COLUMBINE THIS SHIT’ DID NOT CONSTITUTE SUFFICIENT EVIDENCE OF A TERRORISTIC THREAT WITHIN THE MEANING OF THE PENAL LAW, DISMISSAL OF THE INDICTMENT AFTER A READING OF THE GRAND JURY MINUTES WAS PROPER)/EVIDENCE (CRIMINAL LAW, TERRORISTIC THREAT, SCHOOL CUSTODIAN’S STATEMENT TO A TEACHER THAT ON THE DAY HE IS FIRED HE WILL COME IN AND ‘COLUMBINE THIS SHIT’ DID NOT CONSTITUTE SUFFICIENT EVIDENCE OF A TERRORISTIC THREAT WITHIN THE MEANING OF THE PENAL LAW, DISMISSAL OF THE INDICTMENT AFTER A READING OF THE GRAND JURY MINUTES WAS PROPER)/GRAND JURY (EVIDENCE, TERRORISTIC THREAT,  SCHOOL CUSTODIAN’S STATEMENT TO A TEACHER THAT ON THE DAY HE IS FIRED HE WILL COME IN AND ‘COLUMBINE THIS SHIT’ DID NOT CONSTITUTE SUFFICIENT EVIDENCE OF A TERRORISTIC THREAT WITHIN THE MEANING OF THE PENAL LAW, DISMISSAL OF THE INDICTMENT AFTER A READING OF THE GRAND JURY MINUTES WAS PROPER)/TERRORISM (CRIMINAL LAW, TERRORISTIC THREAT, SCHOOL CUSTODIAN’S STATEMENT TO A TEACHER THAT ON THE DAY HE IS FIRED HE WILL COME IN AND ‘COLUMBINE THIS SHIT’ DID NOT CONSTITUTE SUFFICIENT EVIDENCE OF A TERRORISTIC THREAT WITHIN THE MEANING OF THE PENAL LAW, DISMISSAL OF THE INDICTMENT AFTER A READING OF THE GRAND JURY MINUTES WAS PROPER)

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DEFENDANT’S DRIVING WHILE INTOXICATED AT HIGH SPEEDS AND IGNORING TRAFFIC LIGHTS, RESULTING IN AN INTERSECTION COLLISION WHICH KILLED THE OTHER DRIVER, SUPPORTED THE DEPRAVED INDIFFERENCE MURDER CONVICTION.

The Second Department, over a partial dissent, determined the evidence supported defendant’s conviction for depraved indifference murder in this driving-while-intoxicated/vehicular-homicide case. Defendant, who was intoxicated and high on marijuana, drove at high speeds through residential neighborhoods, ignoring traffic lights at intersections. A collision an an intersection split the victim’s (Whether’s) car in two and killed him instantly. The dissent argued the high evidence-threshold for depraved indifference murder was not met:

A person is guilty of depraved indifference murder when, “[u]nder circumstances evincing a depraved indifference to human life, [such person] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person” (Penal Law § 125.25[2]). Depraved indifference is a culpable mental state which “is best understood [*3]as an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not” … . Thus, “a depraved and utterly indifferent actor is someone who does not care if another is injured or killed” … . “The mens rea of depraved indifference to human life can, like any other mens rea, be proved by circumstantial evidence” … .

Here, the evidence proved beyond a reasonable doubt that the defendant recklessly engaged in conduct which created a grave risk of death to another person. First, the defendant was knowingly driving with a revoked driver license. Second, the defendant was driving while intoxicated with a BAC of approximately 0.25%, and high on marijuana. Third, the defendant engaged in a high-speed chase with the police for approximately two miles. Fourth, during this chase, the defendant sped through narrow streets of a residential neighborhood, traveling at speeds of more than double the legal limit. The defendant also ran through numerous stop signs and red traffic lights, without slowing down.

The evidence further demonstrated that prior to the crash, the defendant sped eastbound down Pine Street, a residential street with stop signs and traffic lights, reaching a speed of over 80 miles per hour. Perhaps most significantly, the compelling circumstantial evidence demonstrated that as the defendant approached a red traffic light at the intersection of Guy Lombardo Avenue, he narrowly missed another vehicle that crossed the intersection, and seconds later, without slowing down, he ran the red light and crashed into Whethers’ vehicle with such force that he split the vehicle in two, instantly killing Whethers. The direct and circumstantial evidence proved that the defendant deliberately drove his vehicle into this intersection with an utter disregard for the value of human life, and thus was legally sufficient to support the determination that the defendant acted with depraved indifference … . People v Williams, 2017 NY Slip Op 04302, 2nd Dept 5-31-17

 

CRIMINAL LAW (EVIDENCE, DEPRAVED INDIFFERENCE MURDER, DEFENDANT’S DRIVING WHILE INTOXICATED AT HIGH SPEEDS AND IGNORING TRAFFIC LIGHTS, RESULTING IN AN INTERSECTION COLLISION WHICH KILLED THE OTHER DRIVER, SUPPORTED THE DEPRAVED INDIFFERENCE MURDER CONVICTION)/EVIDENCE (CRIMINAL LAW, DEPRAVED INDIFFERENCE MURDER, DEFENDANT’S DRIVING WHILE INTOXICATED AT HIGH SPEEDS AND IGNORING TRAFFIC LIGHTS, RESULTING IN AN INTERSECTION COLLISION WHICH KILLED THE OTHER DRIVER, SUPPORTED THE DEPRAVED INDIFFERENCE MURDER CONVICTION)/DEPRAVED INDIFFERENCE MURDER  DEFENDANT’S DRIVING WHILE INTOXICATED AT HIGH SPEEDS AND IGNORING TRAFFIC LIGHTS, RESULTING IN AN INTERSECTION COLLISION WHICH KILLED THE OTHER DRIVER, SUPPORTED THE DEPRAVED INDIFFERENCE MURDER CONVICTION)

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