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ALTHOUGH THE MURDER WAS A NECESSARY ELEMENT OF THE BURGLARY CHARGE, THE PEOPLE JUSTIFIED CONSECUTIVE SENTENCES BY PRESENTING PROOF THE TWO CRIMES ENCOMPASSED DISTINCT ACTS.

The Court of Appeals, in a full-fledged opinion by Judge Klein, determined there was sufficient evidence the burglary and murder were separate acts to justify consecutive sentences. The defendant was charged with breaking and entering his girlfriend’s home, dragging her downstairs and then murdering her:

“By definition, the act of causing death is subsumed within the element causing . . . physical injury” … and, thus, the act constituting murder here was a material element of that burglary count. The People therefore concede that, with respect to the latter burglary charge, they were required to identify facts establishing that defendant committed this offense and murder through separate and distinct acts. Because “the People offer[ed] evidence of the existence of . . . separate and distinct act[s]” with respect to that count of burglary in the first degree — indeed, with respect to both counts — “the trial court ha[d] discretion to order consecutive sentences” … . People v Brahney, 2017 NY Slip Op 02465, CtApp 3-30-17

 

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INSUFFICIENT EVIDENCE TO SUPPORT PHYSICAL INJURY ELEMENT OF ASSAULT THIRD, INSUFFICIENT EVIDENCE TO WARRANT SENTENCING AS A PERSISTENT FELONY OFFENDER.

The Second Department determined the evidence of physical injury was not sufficient to support the assault third conviction. The court further determined the totality of the circumstances did not support sentencing defendant as a persistent felony offender:

The record, which contains photographs that were shown to the jury depicting the complainant’s injury, demonstrated that the complainant sustained a one-half inch laceration on one of her toes, which stopped bleeding before an emergency medical technician arrived at the scene. No evidence was introduced that the injury sustained by the complainant caused her more than trivial pain. The complainant’s vague testimony that she was unable to wear shoes for an unspecified period of time failed to sufficiently demonstrate that the use of her foot was impaired by her injury. Accordingly, there was insufficient evidence that the complainant suffered a “physical injury” within the meaning of Penal Law § 10.00(9) … . …

… [T]he totality of the evidence adduced at the persistent felony offender hearing, although warranting the defendant’s adjudication as a second felony offender, did not warrant his adjudication as a persistent felony offender … . In addition, in reaching its determination, the Supreme Court improperly considered a crime of which the defendant was acquitted as a basis for sentencing … . People v Fews. 2017 NY Slip Op 02443, 2nd Dept 3-29-17

 

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ALTHOUGH DEFENDANT OBJECTED TO THE SANDOVAL RULING AT TRIAL, THE OBJECTION WAS NOT ON THE PRECISE GROUND RAISED ON APPEAL, THE ISSUE WAS THEREFORE NOT PRESERVED.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two-judge concurring opinion, determined defendant’s objection to a Sandoval ruling about the admissibility of evidence of a juvenile delinquency adjudication did not preserve the precise issue which was the subject of the appeal. The concurring opinion argued the error had been preserved, but was harmless. The People sought to introduce evidence of the facts underlying the juvenile delinquency adjudication, but not the adjudication itself. The defendant objected arguing that the defendant should not be judged by actions taken when his mind and values were undeveloped. The court ruled the People could elicit the fact that defendant was adjudicated a juvenile delinquent, but could not elicit the facts. On appeal defendant argued it was a legal error to admit evidence of the juvenile delinquency adjudication:

Under the unique factual circumstances of this case and based on the trial court’s colloquy with counsel, we conclude that defendant’s challenge to the Sandoval ruling is unpreserved. Defendant did not make the argument he now asserts at the time of the alleged erroneous ruling, or at any time at all. Instead, he argued, against the People’s initial proffer, that the court should deny the request because defendant’s actions should not be judged based on a young offender’s undeveloped mind and sense of values. Defendant failed to argue that it would be legal error to permit the People to elicit that defendant was adjudicated a juvenile delinquent … . Defendant did not make that argument before or after the compromise ruling, or at any point during the proceedings “when the court had the ‘opportunity of effectively chang[ing]’ its ruling” … and avoiding the error of which defendant now complains. People v Jackson, 2017 NY Slip Op 02361, CtApp 3-28-17

 

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DEFENDANT’S HAND UNDER HIS HOODIE WAS SUFFICIENT TO SUPPORT THE ELEMENT OF ROBBERY FIRST WHICH REQUIRES THE DISPLAY OF WHAT APPEARS TO BE A FIREARM.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a full-fledged dissenting opinion, determined the evidence was sufficient to support the element of robbery first degree which requires the display of what appears to be a firearm. The defendant threatened to shoot the teller and, at some point in time, one of his hands was under his hoodie.  The defendant was quickly apprehended and no firearm was found:

We reject defendant’s assumption that the timing of the moment at which the defendant places a hand under his clothing is dispositive of the legal sufficiency analysis. A victim may reasonably believe that a gun is being used, on the basis of conduct that makes it appear that the defendant is holding a gun, regardless of whether the defendant makes a movement while addressing the victim or keeps his hand concealed throughout the encounter in a manner and location suggesting the presence of a gun. Whether a defendant displays what appears to be a firearm does not depend on when precisely the defendant begins the display, provided it occurs “in the course of the commission of the crime or of immediate flight therefrom” (Penal Law § 160.15 [4]). People v Smith, 2017 NY Slip Op 02362, CtApp 3-28-17

 

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EVIDENCE OF AN ALLEGED PRIOR IDENTICAL SEXUAL ASSAULT NOT ADMISSIBLE TO SHOW INTENT, MOTIVE, OR AS BACKGROUND EVIDENCE, CONVICTION REVERSED.

The Court of Appeals, in a full-fledged opinion by Justice Abdus-Salaam, reversing defendant’s conviction, determined evidence of an alleged prior sexual assault, identical to the charged offense, should not have been admitted to show intent or motive, or as background evidence:

Here, … the victim’s testimony as to the alleged prior sexual abuse was not necessary to show the nature of the relationship between her and defendant or to “sort out ambiguous but material facts” … . The victim testified as to her relationship with defendant, stating that they are relatives who lived, at certain times, in the same home and that on the night of the indicted sexual assault, she and her boyfriend went to defendant’s home to spend time together and drink alcohol. The introduction of the prior alleged assault was not necessary to clarify their relationship or to establish a narrative of the relevant events.

Further, the evidence of the uncharged crime was not admissible to show intent. The intent here — sexual gratification — can be inferred from the act. * * *

To the extent the evidence was admissible to show defendant’s motive in getting the victim drunk, the evidence was highly prejudicial, as it showed that defendant had allegedly engaged in the exact same behavior on a prior occasion with the same victim — classic propensity evidence. The prejudicial nature of the Molineux evidence far outweighed any probative value that may be attributed to it. People v Leonard, 2017 NY Slip Op 02359, CtApp 3-28-17

 

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POSSESSION OF COCAINE CAN BE PROVEN WITHOUT SUBMITTING THE COCAINE ITSELF AS EVIDENCE.

The Court of Appeals, in a short memorandum decision, noted that possession of cocaine can be proven without submitting the cocaine itself as evidence:

Although the People did not recover or introduce any of the cocaine that defendant was charged with possessing, “direct evidence in the form of contraband or other physical evidence is not the only adequate proof” (People v Samuels , 99 NY2d 20, 24 [2002]). The People presented sufficient evidence in the form of, among other things, defendant’s intercepted phone calls replete with drug-related conversations, visual surveillance, and the testimony of cooperating witnesses. People v Whitehead, 2017 NY Slip Op 02358, CtApp 3-28-17

 

FINE BELOW THE MINIMUM STATUTORY AMOUNT WAS ILLEGAL AND WAS THEREFORE VACATED BY THE APPELLATE DIVISION.

The Fourth Department, over a two-justice dissent, determined the $1500 fine imposed in connection with a DWI was illegal because the statute required a minimum fine of $2000.00. The court determined no fine should be imposed. The dissent agreed the fine was illegal but argued the matter should be remitted:

As the People correctly concede, however, the court erred in imposing a $1,500 fine. Vehicle and Traffic Law § 1193 (1) (c) (ii) provides that a person convicted of driving while intoxicated as a class D felony “shall be punished by a fine of not less than two thousand dollars nor more than ten thousand dollars or by a period of imprisonment as provided in the penal law, or by both such fine and imprisonment.” The court therefore had the authority to impose a fine and a sentence of imprisonment, but was required to impose a minimum fine of $2,000 if it chose to impose any fine. We cannot allow the $1,500 illegal fine to stand … and, as a matter of discretion in the interest of justice, we conclude that no fine should be imposed. We therefore modify the judgment by vacating the fine. People v Neal, 2017 NY Slip Op 02320, 4th Dept 3-24-17

CRIMINAL LAW (FINE BELOW THE MINIMUM STATUTORY AMOUNT WAS ILLEGAL AND WAS THEREFORE VACATED BY THE APPELLATE DIVISION)/FINES (CRIMINAL LAW, FINE BELOW THE MINIMUM STATUTORY AMOUNT WAS ILLEGAL AND WAS THEREFORE VACATED BY THE APPELLATE DIVISION)

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SORA GUIDELINE WHICH ALLOWS JUVENILE DELINQUENCY ADJUDICATION TO BE CONSIDERED IN THE CRIMINAL HISTORY CALCULATION SHOULD NOT BE FOLLOWED.

The Fourth Department determined the language in the SORA guideline which allows a juvenile delinquency adjudication to be used to calculate points in the criminal history category should not be followed because it conflicts with provisions of the Family Court Act:

The risk assessment guidelines issued by the Board provide that a juvenile delinquency adjudication is considered a crime for purposes of assessing points under the criminal history section of the risk assessment instrument (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [Guidelines], at 6 [2006]). Family Court Act § 381.2 (1) provides, however, that neither the fact that a person was before Family Court for a juvenile delinquency hearing, nor any confession, admission or statement made by such a person is admissible as evidence against him or her in any other court. Section 380.1 (1) further provides that “[n]o adjudication under this article may be denominated a conviction and no person adjudicated a juvenile delinquent shall be denominated a criminal by reason of such adjudication.” Given this conflict between the Guidelines and the plain language of the Family Court Act, we agree with the [2nd] Department[ ] … and conclude that the Board “exceeded its authority by adopting that portion of the Guidelines which includes juvenile delinquency adjudications in its definition of crimes for the purpose of determining a sex offender’s criminal history” … . People v Brown, 2017 NY Slip Op 02323, 4th Dept 3-24-17

CRIMINAL LAW (SORA GUIDELINE WHICH ALLOWS JUVENILE DELINQUENCY ADJUDICATION TO BE CONSIDERED IN THE CRIMINAL HISTORY CALCULATION SHOULD NOT BE FOLLOWED)/SEX OFFENDER REGISTRATION ACT (SORA) (SORA GUIDELINE WHICH ALLOWS JUVENILE DELINQUENCY ADJUDICATION TO BE CONSIDERED IN THE CRIMINAL HISTORY CALCULATION SHOULD NOT BE FOLLOWED)/FAMILY LAW (SORA GUIDELINE WHICH ALLOWS JUVENILE DELINQUENCY ADJUDICATION TO BE CONSIDERED IN THE CRIMINAL HISTORY CALCULATION SHOULD NOT BE FOLLOWED)/JUVENILE DELINQUENCY (SORA GUIDELINE WHICH ALLOWS JUVENILE DELINQUENCY ADJUDICATION TO BE CONSIDERED IN THE CRIMINAL HISTORY CALCULATION SHOULD NOT BE FOLLOWED) 

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DEFENDANT THREW BAGS OF COCAINE ONTO THE FLOOR IN PLAIN SIGHT OF POLICE OFFICERS, NOT SUFFICIENT TO SUPPORT TAMPERING WITH EVIDENCE CHARGE.

The Fourth Department determined the evidence was insufficient for conviction of the tampering with evidence charge. Defendant threw bags of cocaine on the floor. There was insufficient evidence that the act of throwing the drugs on the floor was intended to conceal the evidence:

… [T]he evidence is legally insufficient to support the conviction of tampering with physical evidence. Insofar as relevant here, a person is guilty of that crime when, “[b]elieving that certain physical evidence is about to be produced or used in an official proceeding or a prospective official proceeding, and intending to prevent such production or use, he [or she] suppresses it by any act of concealment” … . The People’s theory was that defendant tampered with physical evidence by throwing bags of cocaine onto the floor of a store with the intent of concealing the drugs from the pursuing police officers and thereby preventing the use of the drugs in a prospective official proceeding. The evidence at trial established that officers observed defendant throw bags of suspected crack cocaine onto the floor when he passed through the front entrance of the store. Although the offense of tampering with physical evidence does not require the actual suppression of physical evidence, there must be an act of concealment while intending to suppress the evidence … . We conclude that the evidence is legally insufficient to establish that defendant accomplished an act of concealment inasmuch as he dropped the items onto the floor in plain sight of the officers … . People v Parker, 2017 NY Slip Op 02208, 4th Dept 3-24-17

CRIMINAL LAW (DEFENDANT THREW BAGS OF COCAINE ONTO THE FLOOR IN PLAIN SIGHT OF POLICE OFFICERS, NOT SUFFICIENT TO SUPPORT TAMPERING WITH EVIDENCE CHARGE)/EVIDENCE (CRIMINAL LAW, TAMPERING WITH EVIDENCE, DEFENDANT THREW BAGS OF COCAINE ONTO THE FLOOR IN PLAIN SIGHT OF POLICE OFFICERS, NOT SUFFICIENT TO SUPPORT TAMPERING WITH EVIDENCE CHARGE)/TAMPERING WITH EVIDENCE (DEFENDANT THREW BAGS OF COCAINE ONTO THE FLOOR IN PLAIN SIGHT OF POLICE OFFICERS, NOT SUFFICIENT TO SUPPORT TAMPERING WITH EVIDENCE CHARGE)

FAILURE TO READ JURY NOTE INTO RECORD REQUIRED REVERSAL.

The Fourth Department, over an extensive dissent, determined the trial court erred when it did not read the contents of a jury note into the record. The note said the jury “was not sure what to do:”

The record establishes that a jury note marked as court exhibit 8 stated that “[w]e have made decision on the Third Count we are having hard time with 1 and 2 just giving you are [sic] status.” Soon thereafter, a jury note marked as court exhibit 9 stated that “[w]e have arrived on decision on 2 and 3, but we have a lot of work to do on #1. I don[‘]t see it being quick. Not sure what to do. We ars [sic] starting to make way.” * * *

Our dissenting colleague concludes that the jury’s statement, “[n]ot sure what to do,” was a ministerial inquiry concerning the logistics of the jury’s deliberations, i.e., the jury was asking whether it should continue deliberating that evening considering the late hour. We agree that the note could be interpreted that way, but we conclude that it also could be interpreted as it was interpreted by the court, i.e., the jury was having difficulty reaching a unanimous verdict and was making a substantive inquiry for guidance concerning further deliberations. In response to the note, the court issued an Allen-type charge. Quite simply, even if we consider all the surrounding circumstances, the jury note was ambiguous, and we must resolve that ambiguity in defendant’s favor .. . People v Morrison, 2017 NY Slip Op 02324, 4th Dept 3-24-17

 

CRIMINAL LAW (FAILURE TO READ JURY NOTE INTO RECORD REQUIRED REVERSAL)/JURY NOTE (CRIMINAL LAW, FAILURE TO READ JURY NOTE INTO RECORD REQUIRED REVERSAL)

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