You are here: / Criminal Law
,

MURDER CONVICTION REVERSED, AGAINST THE WEIGHT OF THE EVIDENCE.

The Third Department reversed defendant’s murder conviction, finding it against the weight of the evidence. The victim, who died from blunt force trauma to the abdomen, was defendant’s two-year-old son. The forensic evidence placed the time of the injury during a period when defendant was not home. Contradictions in witness testimony rendered it too weak to support the conviction. The Third Department went through the trial evidence in detail. The evidence cannot be fairly summarized here. People v Taft, 2016 NY Slip Op 08123, 3rd Dept 12-1-16

CRIMINAL LAW (MURDER CONVICTION REVERSED, AGAINST THE WEIGHT OF THE EVIDENCE)/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, MURDER CONVICTION REVERSED, AGAINST THE WEIGHT OF THE EVIDENCE)/APPEALS (CRIMINAL LAW, MURDER CONVICTION REVERSED, AGAINST THE WEIGHT OF THE EVIDENCE)

,

DEFENSE COUNSEL INEFFECTIVE FOR FAILURE TO MOVE TO SEVER AT TRIAL AFTER AN ANTAGONISTIC DEFENSE WAS PURSUED BY THE CO-DEFENDANT.

The Second Department, reversing the conviction, determined the defense attorney’s failure to move to sever the defendant’s trial from the co-defendant’s and request a missing witness charge constituted ineffective assistance. The need for severance became apparent during the trial when counsel for the co-defendant pursued a defense antagonistic to that of the defendant. The court noted the motion for severance can be made any time before the end of the trial when the defendant could not previously have been aware of the basis for it:

Where a defendant claims prejudice as a result of a joint trial because his defense is antagonistic to that of a codefendant, “severance is not required solely because of hostility between the parties, differences in their trial strategies or inconsistencies in their defenses” … . However, “severance is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant’s guilt” … . Thus, severance should be granted where the defenses are not only antagonistic, but also mutually exclusive and irreconcilable … . Although a severance motion must generally be made before the commencement of trial … , CPL 255.20(3) permits a pretrial motion to be made and decided “at any time before the end of trial” when “the defendant could not, with due diligence, have been previously aware” of the basis for the motion. CPL 255.20(3) further provides that the court may, “in the interest of justice, and for good cause shown,” entertain and dispose of a pretrial motion “at any time before sentence.” People v Davydov, 2016 NY Slip Op 08090, 2nd Dept 11-30-16

CRIMINAL LAW (DEFENSE COUNSEL INEFFECTIVE FOR FAILURE TO MOVE TO SEVER AT TRIAL AFTER AN ANTAGONISTIC DEFENSE WAS PURSUED BY THE CO-DEFENDANT)/ATTORNEYS (CRIMINAL, DEFENSE COUNSEL INEFFECTIVE FOR FAILURE TO MOVE TO SEVER AT TRIAL AFTER AN ANTAGONISTIC DEFENSE WAS PURSUED BY THE CO-DEFENDANT)/INEFFECTIVE ASSISTANCE (DEFENSE COUNSEL INEFFECTIVE FOR FAILURE TO MOVE TO SEVER AT TRIAL AFTER AN ANTAGONISTIC DEFENSE WAS PURSUED BY THE CO-DEFENDANT)/SEVERANCE, MOTION FOR (DEFENSE COUNSEL INEFFECTIVE FOR FAILURE TO MOVE TO SEVER AT TRIAL AFTER AN ANTAGONISTIC DEFENSE WAS PURSUED BY THE CO-DEFENDANT)

,

CIVIL MATTER PROPERLY STAYED UNTIL RELATED CRIMINAL MATTER RESOLVED, DISCRETIONARY CRITERIA EXPLAINED.

The Second Department determined Supreme Court properly stayed a civil matter after the defendant was indicted in a related criminal matter and indicated he would invoke his Fifth Amendment right to remain silent if the civil matter went forward:

A motion pursuant to CPLR 2201 to stay a civil action pending resolution of a related criminal action is directed to the sound discretion of the trial court … . “Factors to consider include avoiding the risk of inconsistent adjudications, [duplication] of proof and potential waste of judicial resources. A compelling factor is a situation where a defendant will invoke his or her constitutional right against self incrimination” … . “Although the pendency of a criminal proceeding does not give rise to an absolute right under the United States or New York State Constitutions to a stay of a related civil proceeding . . . there is no question but that the court may exercise its discretion to stay proceedings in a civil action until a related criminal dispute is resolved” … .

Here, this action and the criminal proceeding against Samuel arise from the same facts. While a stay may cause inconvenience and delay to the plaintiffs, the failure to grant the stay would cause Samuel to “suffer the severe prejudice of being deprived of a defense” … . Moreover, a prior determination in the criminal proceeding could have collateral estoppel effect in this action, thereby simplifying the issues … . Mook v Homesafe Am., Inc., 2016 NY Slip Op 08054, 2nd Dept 11-30-16

 

CIVIL PROCEDURE (CIVIL MATTER PROPERLY STAYED UNTIL RELATED CRIMINAL MATTER RESOLVED)/CRIMINAL LAW (CIVIL MATTER PROPERLY STAYED UNTIL RELATED CRIMINAL MATTER RESOLVED)

,

UNDER THE FACTS, ERROR TO ALLOW EVIDENCE OF DEFENDANT’S FACEBOOK COMMENT AND GANG AFFILIATION AS SANDOVAL EVIDENCE.

Although the errors were deemed harmless, the Second Department noted that allowing, as Sandoval evidence, a comment posted by defendant on Facebook and evidence of defendant’s gang affiliation was improper under the facts:

The Supreme Court erred, in its Sandoval ruling … , in permitting the People to elicit testimony from the defendant regarding a comment posted on his Facebook page, since the comment was not probative of the defendant’s credibility … . The Supreme Court further erred in permitting the People to elicit testimony from certain witnesses regarding the defendant’s alleged gang affiliation and involvement in a prior violent incident. Contrary to the People’s contention and the Supreme Court’s conclusion, the defendant did not introduce evidence that could properly be construed as character evidence and, thus, it was improper to permit the People to elicit evidence as to the defendant’s alleged prior bad acts on that basis … . In addition, the Supreme Court improperly modified its Sandoval ruling by permitting the prosecutor to question the defendant regarding his alleged gang affiliation and the prior violent incident, as the defendant did not “open the door” to the otherwise precluded evidence … . People v Borgella, 2016 NY Slip Op 07972, 2nd Dept 11-23-16

CRIMINAL LAW (UNDER THE FACTS, ERROR TO ALLOW EVIDENCE OF DEFENDANT’S FACEBOOK COMMENT AND GANG AFFILIATION)/EVIDENCE (CRIMINAL LAW, SANDOVAL, UNDER THE FACTS, ERROR TO ALLOW EVIDENCE OF DEFENDANT’S FACEBOOK COMMENT AND GANG AFFILIATION)/SANDOVAL (UNDER THE FACTS, ERROR TO ALLOW EVIDENCE OF DEFENDANT’S FACEBOOK COMMENT AND GANG AFFILIATION)

,

DEFENDANT, WHO WAS CHARGED WITH POSSESSION OF A WEAPON, SHOULD HAVE BEEN ALLOWED TO CROSS-EXAMINE THE ARRESTING OFFICER ABOUT A CIVIL LAWSUIT WHICH ALLEGED THE OFFICER FABRICATED A WEAPONS CHARGE.

The Second Department determined prohibiting the cross-examination of a police officer about a federal lawsuit which alleged the officer fabricated a weapons charged was reversible error. Defendant was arrested by the officer and charged with possession of a weapon allegedly found by the officer in the seat of the car where defendant was sitting:

The Court of Appeals has held that law enforcement witnesses should be treated in the same manner as any other prosecution witness for purposes of cross-examination and that civil allegations of misconduct in a federal lawsuit filed against a law enforcement agent are favorable to a defendant as impeachment evidence insofar as such allegations bear on a law enforcement officer’s credibility as a witness … . Furthermore, there is no prohibition against cross-examining a witness, including a police officer, about bad acts that have never been formally proven at a trial … .

In cross-examining a law enforcement witness, the same standard for good faith basis and specific allegations relevant to credibility applies, as does the same broad latitude to preclude or limit cross-examination … . Counsel must first present a good faith basis for inquiring, namely the lawsuit relied upon. Second, specific allegations from the lawsuit that are relevant to the credibility of the law enforcement witness must be identified. Third, the trial judge must exercise discretion in assessing whether inquiry into such allegations would confuse or mislead the jury, or create a substantial risk of undue prejudice to the parties … . People v Enoe, 2016 NY Slip Op 07977, 2nd Dept 11-23-16

 

CRIMINAL LAW (DEFENDANT, WHO WAS CHARGED WITH POSSESSION OF A WEAPON, SHOULD HAVE BEEN ALLOWED TO CROSS-EXAMINE THE ARRESTING OFFICER ABOUT A CIVIL LAWSUIT WHICH ALLEGED THE OFFICER FABRICATED A WEAPONS CHARGE)/EVIDENCE (CRIMINAL LAW, DEFENDANT, WHO WAS CHARGED WITH POSSESSION OF A WEAPON, SHOULD HAVE BEEN ALLOWED TO CROSS-EXAMINE THE ARRESTING OFFICER ABOUT A CIVIL LAWSUIT WHICH ALLEGED THE OFFICER FABRICATED A WEAPONS CHARGE)/POLICE OFFICERS (CROSS-EXAMINATION, (DEFENDANT, WHO WAS CHARGED WITH POSSESSION OF A WEAPON, SHOULD HAVE BEEN ALLOWED TO CROSS-EXAMINE THE ARRESTING OFFICER ABOUT A CIVIL LAWSUIT WHICH ALLEGED THE OFFICER FABRICATED A WEAPONS CHARGE)

, ,

JURY SHOULD HAVE BEEN INSTRUCTED A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW (REQUIRING CORROBORATION OF THE WITNESS’ TESTIMONY), REQUEST FOR ACCOMPLICE INSTRUCTION DURING JURY DELIBERATIONS PRESERVED THE ISSUE FOR APPEAL.

The Third Department, reversing defendant’s conviction, determined the jury should have been instructed a witness (Perkins) was an accomplice as a matter of law. The defendant was charged and convicted of tampering with evidence (attempting to dispose of a jacket allegedly worn when defendant committed murder). It was alleged defendant instructed Perkins to get rid of his boots. The court noted that defendant’s request for the instruction, made during deliberations in response to a jury note, preserved the issue for appeal:

… [I]t is well settled that, “to be an accomplice for corroboration purposes, the witness must somehow be criminally implicated and potentially subject to prosecution for the conduct or factual transaction related to the crime[] for which the defendant is on trial” … . Thus, “a ‘witness is an accomplice as a matter of law only if the jury could reasonably reach no other conclusion but that he [or she] 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'” … .

Perkins’ testimony established that she picked defendant up at the same location that the jacket was later found and she subsequently disposed of defendant’s boots pursuant to his direction. In addition, she was arrested the same day as defendant, was charged with a felony, entered into a cooperation agreement with the People and, pursuant to that agreement, pleaded guilty to a misdemeanor in exchange for her truthful testimony against defendant. When defendant requested the accomplice charge, he stated that Perkins had pleaded guilty to “obstructing governmental administration . . . in exchange for not being prosecuted for tampering.” In light of this, we find that Perkins was an accomplice as a matter of law “since [s]he could have been (and was) charged with a crime ‘based upon some of the same facts or conduct’ upon which the charge[] against defendant [was] based” … . People v Whyte, 2016 NY Slip Op 07880, 3rd Dept 11-23-16

CRIMINAL LAW (JURY SHOULD HAVE BEEN INSTRUCTED A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW (REQUIRING CORROBORATION OF THE WITNESS’ TESTIMONY), REQUEST FOR ACCOMPLICE INSTRUCTION DURING JURY DELIBERATIONS PRESEVED THE ISSUE FOR APPEAL)/EVIDENCE (CRIMINAL LAW, JURY SHOULD HAVE BEEN INSTRUCTED A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW (REQUIRING CORROBORATION OF THE WITNESS’ TESTIMONY), REQUEST FOR ACCOMPLICE INSTRUCTION DURING JURY DELIBERATIONS PRESEVED THE ISSUE FOR APPEAL)/APPEALS (CRIMINAL LAW, REQUEST FOR ACCOMPLICE INSTRUCTION DURING JURY DELIBERATIONS PRESEVED THE ISSUE FOR APPEAL)

,

CRITERIA FOR INQUIRY INTO DEFENDANT’S REQUEST TO REPRESENT HIMSELF EXPLAINED, NOT MET HERE.

The Third Department, reversing defendant’s conviction, determined the trial judge did not use the right criteria in denying defendant’s request to represent himself:

County Court inquired into defendant’s background, emphasized the importance of having counsel represent him, cautioned against the dangers of representing himself and tested defendant’s skill as an advocate with several evidentiary questions. The issue, however, is not the extent of defendant’s legal knowledge, but his capacity to knowingly waive the right to counsel … . In denying the request, County Court essentially ruled that it was not in defendant’s best interest and that the application was untimely, without expressly addressing defendant’s capacity to waive his right to counsel. Since defendant’s request was made prior to the commencement of trial, it was unquestionably timely … . Moreover, we are satisfied that defendant, who informed the court that he had obtained his GED and engaged in paralegal studies for a year, and was described by the court as “bright” and “articulate,” competently, intelligently and voluntarily waived his right to the counsel. People v Poulos, 2016 NY Slip Op 07879, 3rd Dept 11-23-16

CRIMINAL LAW (CRITERIA FOR INQUIRY INTO DEFENDANT’S REQUEST TO REPRESENT HIMSELF EXPLAINED, NOT MET HERE)/ATTORNEYS (CRIMINAL LAW, CRITERIA FOR INQUIRY INTO DEFENDANT’S REQUEST TO REPRESENT HIMSELF EXPLAINED, NOT MET HERE)/PRO SE CRIMINAL LAW, CRITERIA FOR INQUIRY INTO DEFENDANT’S REQUEST TO REPRESENT HIMSELF EXPLAINED, NOT MET HERE)/RIGHT TO COUNSEL (CRITERIA FOR INQUIRY INTO DEFENDANT’S REQUEST TO REPRESENT HIMSELF EXPLAINED, NOT MET HERE)

,

FAILURE TO MOVE TO SUPPRESS STATEMENT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

The Third Department determined, under the facts, defendant’s counsel was ineffective in failing to move to suppress defendant’s statement, which was made after 26 hours of interrogation:

… “[C]ounsel had everything to gain and nothing to lose by moving to suppress the [oral statements]” … . This is not to say that counsel must always seek to suppress evidence, and we reiterate that counsel is not ineffective for failing to make meritless motions … . Under the circumstances of this case, however, had counsel taken steps to suppress statements from the interrogation, the potential upside would have been the exclusion of the inconsistent statements … . Another potential gain would have been a basis to exclude the seized physical evidence obtained by the search warrants inasmuch as these warrants were secured, in part, by information obtained from defendant’s interrogation … . Indeed, with respect to this physical evidence, counsel recognized that, by not seeking to suppress the physical evidence on which blood had been found, he had to explain the blood’s presence to the jury. He further admitted that the People’s case would have been weaker had this physical evidence been excluded. While we do not pass on whether counsel would have been ultimately successful in suppressing either defendant’s oral statements or the seized physical evidence, we do conclude that a colorable basis existed for seeking suppression. Given the potential benefit in doing so, we discern no strategic or legitimate reason to let any of this crucial evidence come in unabated at trial … . People v Zeh, 2016 NY Slip Op 07881, 3rd Dept 11-23-16

CRIMINAL LAW (FAILURE TO MOVE TO SUPPRESS STATEMENT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL)/ATTORNEYS (CRIMINAL LAW, FAILURE TO MOVE TO SUPPRESS STATEMENT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL)/INEFFECTIVE ASSISTANCE (FAILURE TO MOVE TO SUPPRESS STATEMENT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL)

,

CONSECUTIVE-CONCURRENT SENTENCING RULES EXPLAINED IN SOME DETAIL, TELLING DEFENDANT HE COULD RECEIVE CONSECUTIVE SENTENCES FOR ATTEMPTED FELONY MURDER AND THE UNDERLYING FELONY (ROBBERY) DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE.

The Court of Appeals, in an opinion by Judge Abdus-Salaam, resolving two appeals stemming from the same incident, over a three-judge dissent in the “sentencing” appeal, affirmed the defendant’s conviction, finding that the concurrent/consecutive sentencing rules were properly applied, and the Alford plea was not tainted by erroneous information provided by defense counsel. Defendant, during the course of an armed robbery of several victims in a park, discharged a weapon, grazing one of the victims. Defendant was charged with robbery, attempted robbery and attempted first degree felony murder. The court noted that the Appellate Division here (4th Department) found that consecutive sentences for felony murder and the underlying felony could have been imposed (not the case here). while two other departments have held such sentences must be concurrent. The Court of Appeals did not address that issue because it was raised in a reply brief:

In People v Laureano, we explained that when “determining whether concurrent sentences are required, the sentencing court must first examine the statutory definitions of the crimes for which defendant has been convicted” (87 NY2d at 643). The court must then determine “whether the actus reus element is, by definition, the same for both offenses (under the first prong of the statute), or if the actus reus for one offense is, by definition, a material element of the second offense (under the second prong)” (id.). The court must focus on actus reus rather than mens rea “[b]ecause both prongs of Penal Law § 70.25 (2) refer to the ‘act or omission’ . . . that constitutes the offense” … .

If a defendant’s acts or omissions do not fit under either prong of the statute, “the People have satisfied their obligation of showing that concurrent sentences are not required” … . When there “is some overlap of the elements of multiple statutory offenses,” courts retain discretion to impose consecutive sentences “if the People can demonstrate that the acts or omissions committed by the defendant were separate and distinct acts” … , even “though they are part of a single transaction” … . * * *

We have not directly addressed whether the sentence on a first-degree felony murder charge must run concurrently with the sentence imposed on the underlying felony. At the time of defendant’s sentencing, the 4th Department had yet to address this issue, but the 2nd and 3rd Departments had, holding that a sentence for first-degree felony murder had to run concurrently with the sentence imposed on the underlying felony … . However, when faced with the issue in this case, the 4th Department affirmed the sentencing court’s conclusion that the sentences could run consecutively. Under these circumstances, we cannot say that defense counsel’s advice to defendant, even if erroneous, rendered him ineffective … . People v Couser, 2016 NY Slip Op 07831, CtApp 11-22-16

 

CRIMINAL LAW (CONSECUTIVE-CONCURRENT SENTENCING RULES EXPLAINED IN SOME DETAIL)/SENTENCING (CONSECUTIVE-CONCURRENT SENTENCING RULES EXPLAINED IN SOME DETAIL)/CONSECUTIVE SENTENCES (CONSECUTIVE-CONCURRENT SENTENCING RULES EXPLAINED IN SOME DETAIL)/CONCURRENT SENTENCES (CONSECUTIVE-CONCURRENT SENTENCING RULES EXPLAINED IN SOME DETAIL)/ATTORNEYS (TELLING DEFENDANT HE COULD RECEIVE CONSECUTIVE SENTENCES FOR ATTEMPTED FELONY MURDER AND THE UNDERLYING FELONY (ROBBERY) DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/FELONY MURDER (TELLING DEFENDANT HE COULD RECEIVE CONSECUTIVE SENTENCES FOR ATTEMPTED FELONY MURDER AND THE UNDERLYING FELONY (ROBBERY) DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)

NOT ADMINISTERING THE DWI COORDINATION TESTS TO DEFENDANT BECAUSE OF A LANGUAGE BARRIER DID NOT VIOLATE EQUAL PROTECTION OR DUE PROCESS.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a two-judge dissent, determined the failure to administer coordination tests in a DWI case because of a “language barrier,” did not violate equal protection or due process. In this case the defendant was of Hispanic origin and spoke Spanish. The requirement that the tests be administered in English was deemed facially neutral and not directed at a suspect class, and the state was deemed to have a substantial interest in avoiding the cumbersome requirement that an arresting officer administer the tests in the arrestee’s language:

The challenged policy withstands rational basis review. Both the NYPD and the public have a substantial interest in ensuring the reliability of coordination tests, and the clarity of the instructions is crucial to the reliability of the results. Indeed, the record makes clear that coordination tests are designed not only to assess a suspect’s “motor skills in completing the specific tasks,” but also to evaluate the suspect’s “capacity to [] follow instructions.” But coordination tests are uniquely ill-suited for administration via translation; they are generally lengthy — containing thirty lines of instructions — and require contemporaneous demonstration and explanation of the tasks to be performed. * * *

… [T]he implicated State interests are substantial. The State has a clear interest in avoiding the cumbersome and prohibitively expensive administrative and fiscal burdens of providing the requested translation services. The State also has a strong interest in ensuring the accuracy of physical coordination tests, and the use of translated instructions — either through qualified interpreters or through multilingual officers — could compromise the test’s reliability. Given the substantial State interests involved, defendant’s due process claim must be rejected … . People v Aviles, 2016 NY Slip Op 07836, CtApp 11-22-16

 

CRIMINAL LAW (NOT ADMINISTERING THE DWI COORDINATION TESTS TO DEFENDANT BECAUSE OF A LANGUAGE BARRIER DID NOT VIOLATE EQUAL PROTECTION OR DUE PROCESS)/DWI (NOT ADMINISTERING THE DWI COORDINATION TESTS TO DEFENDANT BECAUSE OF A LANGUAGE BARRIER DID NOT VIOLATE EQUAL PROTECTION OR DUE PROCESS)/EQUAL PROTECTION (NOT ADMINISTERING THE DWI COORDINATION TESTS TO DEFENDANT BECAUSE OF A LANGUAGE BARRIER DID NOT VIOLATE EQUAL PROTECTION OR DUE PROCESS)/DUE PROCESS (NOT ADMINISTERING THE DWI COORDINATION TESTS TO DEFENDANT BECAUSE OF A LANGUAGE BARRIER DID NOT VIOLATE EQUAL PROTECTION OR DUE PROCESS)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy