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WHERE THE RELEVANT OFFENSES WERE COMMITTED IN TWO COUNTIES, NO NEED FOR TWO SORA RISK ASSESSMENT PROCEEDINGS.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined only one SORA risk assessment proceeding should have been held. Defendant had simultaneously pled guilty to crimes committed in two counties. All of the crimes were taken into consideration in the first SORA assessment proceeding:

Where, as here, a single RAI [risk assessment instrument] addressing all relevant conduct is prepared, the goal of assessing the risk posed by the offender is fulfilled by a single SORA adjudication. To hold otherwise — that is, to permit multiple risk level determinations based on conduct included in a single RAI — would result in redundant proceedings and constitute a waste of judicial resources. Here, for instance, once the Division of Criminal Justice Services was notified of the Richmond County SORA court’s determination, “it had the information it needed to serve SORA’s goal of ‘protect[ing] the public from’ this particular sex offender” … . Any further proceedings then became duplicative. People v Cook, 2017 NY Slip Op 02467, CtApp 3-30-17

 

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TRIAL COURT PROPERLY CHARGED THE JURY WITH THE INITIAL AGGRESSOR EXCEPTION TO THE JUSTIFICATION DEFENSE, APPELLATE DIVISION REVERSED.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a three-judge dissenting opinion, reversing the Appellate Division, determined the trial court properly charged the initial aggressor exception to the justification defense in this homicide case. The evidence was not clear about the timing, but the victim (McWillis) pursued the defendant with a plastic mop handle and swung at the defendant close in time to the shooting:

Here, as the Appellate Division dissent noted, “[n]o matter what the court charged in relation to the initial aggressor issue, [the jury could have reasonably concluded] there was simply no evidentiary support for a finding that defendant was justified in using deadly physical force against McWillis when faced with McWillis’s either threatened or actual use of a mop handle” … . Our law has “never required that an actor’s belief as to the intention of another person to inflict serious injury be correct in order for the use of deadly force to be justified, but [it has] uniformly required that the belief comport with an objective notion of reasonableness” … . Thus, the jury could have concluded that defendant’s choice to respond to a swinging plastic mop handle with a loaded and operable gun was not reasonable, especially in light of his prior comments to police about taking the law into his own hands … . People v Valentin, 2017 NY Slip Op 02470, CtApp 3-30-17

 

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TRIAL COURT CORRECTLY REFUSED TO CHARGE THE JURY ON THE JUSTIFICATION DEFENSE IN THIS ASSAULT CASE.

The Court of Appeals determined the trial court properly refused to charge the jury with the justification defense in this assault case:

Contrary to defendant’s contention, the trial court properly refused to instruct the jury on the defense of justification. Viewing the record in the light most favorable to defendant, as we must … , we conclude there is no reasonable view of the evidence that would have permitted the factfinder to conclude that defendant’s conduct was justified … . That is, we agree with the People that there is no evidence that objectively supports a belief that defendant was in danger of being physically harmed by the victim at the time defendant used force against him … .

Here, after “knocking [the victim] out,” defendant was able to freely and safely walk away from the bodega. Moreover, there simply is no evidence that, once he returned to the bodega, defendant needed to leave that store to strike the victim to defend himself. Even if defendant’s trial testimony establishes that he actually believed that the victim was lying in wait for him with a weapon … , there is no reasonable view of the evidence that “a reasonable person in . . . defendant’s circumstances would have believed” the victim to have threatened him with the imminent use of unlawful physical force … . Put simply, the surveillance footage reflects that defendant’s ambush of the victim with the milk crate cannot be considered self defense. People v Sparks, 2017 NY Slip Op 02469, CtApp 3-30-17

 

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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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