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NO PROOF DEFENDANT INTENDED TO PERMANENTLY, AS OPPOSED TO TEMPORARILY, DEPRIVE COMPLAINANT OF POSSESSION OF HIS CAR, ATTEMPTED ROBBERY CONVICTIONS REVERSED.

The Second Department reversed defendant’s attempted robbery convictions as against the weight of the evidence. Defendant, covered in blood, approached the complainant’s car, asked to be taken to the hospital, and then tried to open the car door. That proof was insufficient to demonstrate larcenous intent, which is the intent to permanently deprive someone of his or her property:

“In order to sustain a conviction for robbery . . . the People must establish that defendant had the requisite intent—that is, larcenous intent. Larcenous intent means the intent to deprive another of property or to appropriate the same to himself or to a third person'” … . The terms “deprive” and “appropriate” are specifically defined in Penal Law § 155.00(3) and (4), respectively, and connote a purpose “to exert permanent or virtually permanent control over the property taken, or to cause permanent or virtually permanent loss to the owner of the possession and use thereof” … . Thus, “[t]he mens rea element of larceny . . . is simply not satisfied by an intent temporarily to use property without the owner’s permission, or even an intent to appropriate outright the benefits of the property’s short-term use” … . People v Terranova, 2017 NY Slip Op 01390, 2nd Dept 2-22-17

CRIMINAL LAW (NO PROOF DEFENDANT INTENDED TO PERMANENTLY DEPRIVE COMPLAINANT OF POSSESSION OF HIS CAR, ATTEMPTED ROBBERY CONVICTIONS REVERSED)/EVIDENCE (CRIMINAL LAW, ROBBERY, NO PROOF DEFENDANT INTENDED TO PERMANENTLY DEPRIVE COMPLAINANT OF POSSESSION OF HIS CAR, ATTEMPTED ROBBERY CONVICTIONS REVERSED)/LARCENOUS INTENT (CRIMINAL LAW, ROBBERY, NO PROOF DEFENDANT INTENDED TO PERMANENTLY DEPRIVE COMPLAINANT OF POSSESSION OF HIS CAR, ATTEMPTED ROBBERY CONVICTIONS REVERSED)/ROBBERY (NO PROOF DEFENDANT INTENDED TO PERMANENTLY DEPRIVE COMPLAINANT OF POSSESSION OF HIS CAR, ATTEMPTED ROBBERY CONVICTIONS REVERSED)

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WRIT OF PROHIBITION PROPER REMEDY FOR TRIAL COURT’S ERRONEOUS EVIDENTIARY RULING, COLLATERAL ESTOPPEL DOCTRINE SHOULD NOT HAVE BEEN APPLIED TO PRECLUDE EVIDENCE IN THIS CRIMINAL CASE.

The First Department, in a full-fledged opinion by Justice Gische, determined the trial court should not have applied the collateral estoppel doctrine to preclude the People from introducing evidence the defendant used a firearm to threaten the robbery victim. The grand jury dismissed the robbery first count and indicted on robbery third. The trial court reasoned that the grand jury necessarily found the defendant did not have a weapon by refusing to indict on robbery first. The First Department held: (1) the article 78 proceeding seeking a writ of prohibition (brought by the People against the trial judge) was the appropriate remedy; and (2) the trial judge is prohibited from enforcing the order precluding evidence of the defendant’s possession of a weapon:

A writ of prohibition is an extraordinary remedy, only available to prevent a court from either acting without jurisdiction or in excess of its authorized powers in a proceeding over which it otherwise has jurisdiction … . Prohibition is not available to review mere errors of law, even when the errors are truly egregious … .

“Although the distinction between legal errors and actions made in excess of authority is not always easily made, abuses of power may be identified by their impact on the entire proceeding as distinguished from an error in a proceeding itself” … . The trial court’s ruling in this case was an error that affected the entire proceeding and thus constituted an excess of the court’s authority. The ruling prevents the People from proving the element of force required under third degree robbery because the gun was the only evidence of force that was presented to the grand jury. The People cannot present different facts at trial in support of the indictment … . Although the court did not actually dismiss the third degree robbery charge, the charge cannot withstand a claim of legal insufficiency, because there are no other facts on which the prosecution can rely to prove force, a necessary element of the charge. * * *

A writ of prohibition will lie where a trial court’s erroneous ruling affects the proceeding in a conclusive manner, by terminating the case … . At bar, although the ruling did not actually terminate the case, it effectively terminated the ability of the People to prosecute the highest count in the indictment … . We therefore find that the court’s ruling is reviewable by way of a writ of prohibition. * * *

The Court of Appeals has recognized … that for policy reasons collateral estoppel is not as liberally applied in criminal prosecutions as in civil actions … . The rigid application of collateral estoppel must yield to society’s preeminent and overwhelming interest in ensuring the correctness of determinations of guilt or innocence … . “Thus, if … collateral estoppel ‘cannot practicably be followed if a necessary witness is to give truthful testimony, then [the doctrine] should not be applied'” … . Matter of Clark v Newbauer, 2017 NY Slip Op 01326, 1st Dept 2-21-17

 

CRIMINAL LAW (WRIT OF PROHIBITION PROPER REMEDY FOR TRIAL COURT’S ERRONEOUS EVIDENTIARY RULING, COLLATERAL ESTOPPEL DOCTRINE SHOULD NOT HAVE BEEN APPLIED TO PRECLUDE EVIDENCE IN THIS CRIMINAL CASE)/CIVIL PROCEDURE (WRIT OF PROHIBITION PROPER REMEDY FOR TRIAL COURT’S ERRONEOUS EVIDENTIARY RULING, COLLATERAL ESTOPPEL DOCTRINE SHOULD NOT HAVE BEEN APPLIED TO PRECLUDE EVIDENCE IN THIS CRIMINAL CASE)/EVIDENCE (CRIMINAL LAW, WRIT OF PROHIBITION PROPER REMEDY FOR TRIAL COURT’S ERRONEOUS EVIDENTIARY RULING, COLLATERAL ESTOPPEL DOCTRINE SHOULD NOT HAVE BEEN APPLIED TO PRECLUDE EVIDENCE IN THIS CRIMINAL CASE)/JUDGES (CRIMINAL LAW, WRIT OF PROHIBITION PROPER REMEDY FOR TRIAL COURT’S ERRONEOUS EVIDENTIARY RULING, COLLATERAL ESTOPPEL DOCTRINE SHOULD NOT HAVE BEEN APPLIED TO PRECLUDE EVIDENCE IN THIS CRIMINAL CASE)/PROHIBITION (CRIMINAL LAW, WRIT OF PROHIBITION PROPER REMEDY FOR TRIAL COURT’S ERRONEOUS EVIDENTIARY RULING, COLLATERAL ESTOPPEL DOCTRINE SHOULD NOT HAVE BEEN APPLIED TO PRECLUDE EVIDENCE IN THIS CRIMINAL CASE)/COLLATERAL ESTOPPEL (CRIMINAL LAW, WRIT OF PROHIBITION PROPER REMEDY FOR TRIAL COURT’S ERRONEOUS EVIDENTIARY RULING, COLLATERAL ESTOPPEL DOCTRINE SHOULD NOT HAVE BEEN APPLIED TO PRECLUDE EVIDENCE IN THIS CRIMINAL CASE)

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MIRANDA WARNINGS AND 710.30 NOTICE NOT REQUIRED; DEFENDANT’S STATEMENT HE RESIDED AT THE APARTMENT WHERE CONTRABAND WAS FOUND WAS IN RESPONSE TO PEDIGREE QUESTIONS.

The First Department determined the defendant’s statement that he lived in the apartment which was searched and where contraband was found did not require Miranda warnings or a 710.30 notice:

Neither Miranda warnings nor CPL 710.30(1)(a) notice was required with respect to defendant’s statement, in response to a detective’s pedigree question, that his residence was the apartment where the police had executed a search warrant and discovered contraband. The detective’s routine administrative questioning was not designed to elicit an incriminating response … , even if the answer was reasonably likely to be incriminating … . People v Martin, 2017 NY Slip Op 01309, 1st Dep 2-21-17

 

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FIVE HOUR BREAK SUFFICIENT TO DISSIPATE EFFECT OF THE MIRANDA VIOLATION.

The First Department determined Supreme Court properly denied suppression of the February 5th statement, as well as the first portion of the July 11th videotaped statement by the defendant, despite the suppression of statements made five or six hours earlier on July 11. The videotaped statement was deemed sufficiently attenuated from the inadmissible statements:

Defendant’s videotaped statement was made approximately five hours after the initial Miranda violation. Much shorter breaks have been found sufficient to dissipate the taint of a Miranda violation … . In addition, “defendant had demonstrated an unqualified desire to speak” … , seemed alert and relaxed in the video, and did not appear nervous or intimidated. Indeed, he was even “laughing on occasion.”

Defendant had been Mirandized after his first encounter with the police concerning the case, on February 5. Further, the ADA — who had not participated in the earlier interrogation — was the sole questioner in the admitted portion of the video. Although two of the detectives who had conducted the earlier interrogation were present, they did not participate in the questioning in the admitted segment. Notably, the court suppressed any references to the suppressed statements made earlier on July 11th, as well as the later portion of the video in which the detectives participated in questioning … . People v Richardson, 2017 NY Slip Op 01304, 1st Dept 2-21-17

 

CRIMINAL LAW (FIVE HOUR BREAK SUFFICIENT TO DISSIPATE EFFECT OF THE MIRANDA VIOLATION)/EVIDENCE (CRIMINAL LAW, FIVE HOUR BREAK SUFFICIENT TO DISSIPATE EFFECT OF THE MIRANDA VIOLATION)/SUPPRESSION (CRIMINAL LAW, FIVE HOUR BREAK SUFFICIENT TO DISSIPATE EFFECT OF THE MIRANDA VIOLATION)/MIRANDA VIOLATION (CRIMINAL LAW, FIVE HOUR BREAK SUFFICIENT TO DISSIPATE EFFECT OF THE MIRANDA VIOLATION)/STATEMENTS (CRIMINAL LAW, FIVE HOUR BREAK SUFFICIENT TO DISSIPATE EFFECT OF THE MIRANDA VIOLATION)

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THREATENING TO CALL SOMEONE TO HAVE VICTIM BEATEN UP MET THE THREAT OF IMMEDIATE USE OF PHYSICAL FORCE ELEMENT OF ROBBERY.

The First Department, in a full-fledged opinion by Justice Acosta, determined the evidence was sufficient to support defendant’s robbery second and grand larceny fourth convictions. Defendant told the victim (Diaz) she would have him beaten up if he didn’t give her $20. The court held the victim had been threatened with immediate use of force within the meaning of the statute:

With respect to defendant’s robbery conviction, the evidence demonstrates that defendant threatened Diaz with the immediate use of physical force. Pursuant to Penal Law § 160.00(1), a person is guilty of robbery “when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of . . . [p]reventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking.” However, “[t]he statute does not require the use of any words whatsoever, but merely that there be a threat, whatever its nature, of the immediate use of physical force” … . There is also no requirement that a weapon be displayed or that the victim be physically injured to demonstrate that there was a threat of immediate physical force … . Further, the threat of the immediate use of force may be demonstrated by “a chain of actions on the part of [the] defendant” … .

Diaz testified that he gave defendant the $20 because he was “scared” after defendant … prevented him from leaving and defendant explicitly threatened him that if he did not comply, her boyfriend would beat him up. Defendant then went to speak to a man who gestured that he was going to call someone … . People v Villanueva, 2017 NY Slip Op 01299, 1st Dept 2-16-17

 

CRIMINAL LAW (THREATENING TO CALL SOMEONE TO HAVE VICTIM BEATEN UP MET THE THREAT OF IMMEDIATE USE OF PHYSICAL FORCE ELEMENT OF ROBBERY)/EVIDENCE (CRIMINAL LAW, THREATENING TO CALL SOMEONE TO HAVE VICTIM BEATEN UP MET THE THREAT OF IMMEDIATE USE OF PHYSICAL FORCE ELEMENT OF ROBBERY)/ROBBERY (THREATENING TO CALL SOMEONE TO HAVE VICTIM BEATEN UP MET THE THREAT OF IMMEDIATE USE OF PHYSICAL FORCE ELEMENT OF ROBBERY)/THREAT (ROBBERY, THREATENING TO CALL SOMEONE TO HAVE VICTIM BEATEN UP MET THE THREAT OF IMMEDIATE USE OF PHYSICAL FORCE ELEMENT OF ROBBERY)/IMMEDIATE USE OF PHYSICAL FORCE (ROBBERY, THREATENING TO CALL SOMEONE TO HAVE VICTIM BEATEN UP MET THE THREAT OF IMMEDIATE USE OF PHYSICAL FORCE ELEMENT OF ROBBERY)

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VICTIM’S IDENTIFICATION TESTIMONY WAS SUFFICIENT TO SUPPORT CONVICTION, DESPITE LOSS OF CONSCIOUSNESS, DIZZINESS AND INCONSISTENCIES.

The First Department, over an extensive dissent, determined the identification testimony by the assault victim was credible, despite a period of unconsciousness, dizziness and inconsistencies:

[The] grounds for undercutting one-witness identifications [in other cases] are not comparable to the dizziness and loss of consciousness caused by the subject assault, and the limited nature of the complainant’s two opportunities to look directly at his attacker. Our system of criminal justice relies on victims of violence identifying their attackers when they are able to do so. It would be ironic indeed if the severity of an attack and the resulting injuries were to prompt courts to treat the subsequent identification as unworthy of belief, despite the complainant’s certainty. Of course, the defense is entitled to question an identification based on the complainant’s compromised condition caused by the attack. However, that argument did not sway the jury here, and upon our review of the evidence at trial, it does not appear that the complainant was unable to make an identification.

Any inconsistencies in the complainant’s testimony were minor, possibly due to limitations in his English skills, and did not undermine his overall credibility. People v Kahson B., 2017 NY Slip Op 01265, 1st Dept 2-16-17

 

CRIMINAL LAW (VICTIM’S IDENTIFICATION TESTIMONY WAS SUFFICIENT TO SUPPORT CONVICTION, DESPITE LOSS OF CONSCIOUSNESS, DIZZINESS AND INCONSISTENCIES)/EVIDENCE (CRIMINAL LAW, VICTIM’S IDENTIFICATION TESTIMONY WAS SUFFICIENT TO SUPPORT CONVICTION, DESPITE LOSS OF CONSCIOUSNESS, DIZZINESS AND INCONSISTENCIES)/IDENTIFICATION (CRIMINAL LAW, EVIDENCE, VICTIM’S IDENTIFICATION TESTIMONY WAS SUFFICIENT TO SUPPORT CONVICTION, DESPITE LOSS OF CONSCIOUSNESS, DIZZINESS AND INCONSISTENCIES)

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TESTIMONY BY OFFICER WHO WAS PRESENT BUT DID NOT ADMINISTER THE DWI BREATHALYZER TEST DID NOT VIOLATE THE CONFRONTATION CLAUSE.

The Court of Appeals determined the testimony of an officer (Mercado) who was present throughout the DWI breathalyzer test process administered by another officer (Harriman) did not violate the Confrontation Clause. Harriman had retired and moved out of state by the time of defendant’s trial:

The only step in the testing process that the Appellate Term found Mercado did not personally perform or observe, and the sole stated basis for that court finding a Confrontation Clause violation, was verification of the simulator solution temperature as displayed on the machine. Inasmuch as the written 13-step checklist completed by Harriman was not admitted into evidence, no testimonial statement by a nontestifying witness concerning the temperature — or any aspect of the testing procedure — was used against defendant. Thus, any argument as to Mercado’s failure to observe the temperature reading would merely relate to whether there was a proper foundation for his testimony, which would not implicate a Confrontation Clause violation … . However, to the extent that the Appellate Term based its decision on the failure of an “essential” step in the testing procedure, the trial record contradicts that court’s conclusion that there was an absence of evidence that the machine will shut itself down and fail to perform the test if the temperature is outside the proper range … . * * *

Mercado observed Harriman perform all of the steps on the checklist and saw the breathalyzer machine print out the results. Based upon his personal observations, Mercado — as a trained and certified operator who was present for the entire testing protocol — was a suitable witness to testify about the testing procedure and results in defendant’s test. Inasmuch as Mercado testified as to his own observations, not as a surrogate for Harriman, there was no Confrontation Clause violation. Any alleged irregularities concerning the testing procedure would relate to the weight of Mercado’s testimony, not its admissibility … . People v Hao Lin, 2017 NY Slip Op 01253, CtApp 2-16-17

 

CRIMINAL LAW (TESTIMONY BY OFFICER WHO WAS PRESENT BUT DID NOT ADMINISTER THE DWI BREATHALYZER TEST DID NOT VIOLATE THE CONFRONTATION CLAUSE)/EVIDENCE (CRIMINAL LAW, TESTIMONY BY OFFICER WHO WAS PRESENT BUT DID NOT ADMINISTER THE DWI BREATHALYZER TEST DID NOT VIOLATE THE CONFRONTATION CLAUSE)/CONFRONTATION CLAUSE (DWI, TESTIMONY BY OFFICER WHO WAS PRESENT BUT DID NOT ADMINISTER THE DWI BREATHALYZER TEST DID NOT VIOLATE THE CONFRONTATION CLAUSE)/DRIVING WHILE INTOXICATED (BREATHALYZER, TESTIMONY BY OFFICER WHO WAS PRESENT BUT DID NOT ADMINISTER THE DWI BREATHALYZER TEST DID NOT VIOLATE THE CONFRONTATION CLAUSE)/BREATHALYZER (DWI, (TESTIMONY BY OFFICER WHO WAS PRESENT BUT DID NOT ADMINISTER THE DWI BREATHALYZER TEST DID NOT VIOLATE THE CONFRONTATION CLAUSE)

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DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, CONVICTION REVERSED.

The Court of Appeals, in a memorandum decision that does not explain the relevant facts, reversing defendant’s conviction, determined defendant did not receive effective assistance of counsel. People v Maldonado, 2017 NY Slip Op 01254, CtApp 2-16-17

 

CRIMINAL LAW (DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, CONVICTIION REVERSED)/ATTORNEYS (CRIMINAL LAW, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, CONVICTIION REVERSED)/INEFFECTIVE ASSISTANCE (ATTORNEYS, CRIMINAL LAW, (DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, CONVICTIION REVERSED)

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SUPREME COURT SHOULD NOT HAVE DISMISSED PETITION FOR CIVIL MANAGEMENT OF A SEX OFFENDER FOR FAILURE TO STATE A CAUSE OF ACTION.

The Second Department determined Supreme Court should not have dismissed a petition for civil management of a sex offender (Ezekial R) for failure to state a cause of action:

The Supreme Court, relying on Matter of State of New York v Donald DD. (24 NY3d 174), dismissed the State of New York’s petition for the civil management of Ezikiel R. on the ground that it failed to state a cause of action. This was error. It is true that a diagnosis of antisocial personality disorder does not, by itself, “distinguish the sex offender whose mental abnormality subjects him to civil commitment from the typical recidivist convicted in an ordinary criminal case” … . Here, however, the petition alleges a mental abnormality based on a composite diagnosis of antisocial personality disorder and psychopathy, and is supported by expert evidence containing an additional diagnosis of conduct disorder, a provisional diagnosis of sexual sadism disorder, and a determination that Ezikiel R.’s actions were suggestive of his potential for deviant sexual behavior and/or sexual preoccupation. Under these circumstances, the petition was facially valid and not subject to dismissal prior to a probable cause hearing … . Although the court at a probable cause hearing or the factfinder at trial may or may not be convinced by the expert evidence, the evidence was not so deficient as to warrant dismissal of the petition at this early juncture … . Matter of State of New York v Ezikiel R., 2017 NY Slip Op 01213, 2nd Dept 2-15-17

MENTAL HYGIENE LAW (SUPREME COURT SHOULD NOT HAVE DISMISSED PETITION FOR CIVIL MANAGEMENT OF A SEX OFFENDER FOR FAILURE TO STATE A CAUSE OF ACTION)/SEX OFFENDERS (MENTAL HYGIENE LAW, SUPREME COURT SHOULD NOT HAVE DISMISSED PETITION FOR CIVIL MANAGEMENT OF A SEX OFFENDER FOR FAILURE TO STATE A CAUSE OF ACTION)

FAILURE TO CHARGE THE JURY ON LESSER INCLUDED OFFENSES REQUIRED REVERSAL.

The Second Department, reversing defendant’s conviction, determined the facts elicited at this murder trial, viewed in the light most favorable to the defendant, warranted charges to the jury on manslaughter second and criminally negligent homicide. Because the possession of a weapon charge was directly related to the homicide charge, a new trial on the criminal possession of a weapon count was also necessary:

Under the facts adduced at the trial, the Supreme Court erred in failing to charge manslaughter in the second degree … and criminally negligent homicide … when requested by the defendant. Although a witness testified that, in the course of a physical altercation, the defendant pulled a gun from his back waist area and shot the decedent, the defendant testified that the decedent brandished the gun, that the two men struggled over the weapon, and that the gun accidentally went off during the struggle. Viewed in the light most favorable to the defendant, there was a reasonable view of the evidence that the defendant may have been guilty of the lesser crimes and not the greater … . Therefore, the failure to charge manslaughter in the second degree and criminally negligent homicide compromised the defendant’s right to a fair trial.

In addition, the failure to charge manslaughter in the second degree, which is defined as “recklessly” causing the death of another person …, had a prejudicial effect with respect to the defendant’s conviction of criminal possession of a weapon in the second degree, which is defined as possession of “any loaded firearm” … . The defendant’s possession of the weapon is factually related to the shooting and, thus, given the underlying factual relationship between the crimes, the defendant is entitled to a new trial on the count of criminal possession of a weapon in the second degree … . People v Davis, 2017 NY Slip Op 01223, 2nd Dept 2-15-17

 

CRIMINAL LAW (FAILURE TO CHARGE THE JURY ON LESSER INCLUDED OFFENSES REQUIRED REVERSAL)/LESSER INCLUDED OFFENSES (CRIMINAL LAW, FAILURE TO CHARGE THE JURY ON LESSER INCLUDED OFFENSES REQUIRED REVERSAL)/JURY INSTRUCTIONS (CRIMINAL LAW, FAILURE TO CHARGE THE JURY ON LESSER INCLUDED OFFENSES REQUIRED REVERSAL)

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