You are here: / Criminal Law
,

COUNTY COURT ERRONEOUSLY DISMISSED THREE INDICTMENT COUNTS AFTER IMPROPERLY WEIGHING THE EVIDENCE PRESENTED IN THE GRAND JURY PROCEEDINGS.

The Fourth Department, reversing County Court, reinstated three indictment counts which County Court had dismissed. The Fourth Department explained the criteria for sufficient evidence in grand jury proceedings and the court’s sufficiency-review powers. Here it was determined County Court improperly weighed the evidence:

“The standard for reviewing the legal sufficiency of the evidence before the grand jury is whether the evidence, viewed in the light most favorable to the People, if unexplained and uncontradicted, would be sufficient to warrant conviction by a trial jury” … . “On a motion to dismiss, the reviewing court’s inquiry is confined to the legal sufficiency of the evidence and the court is not to weigh the proof or examine its adequacy” … . ” In the context of the [g]rand [j]ury procedure, legally sufficient means prima facie, not proof beyond a reasonable doubt’ ” … . Further, the fact “[t]hat other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry, as long as the [g]rand [j]ury could rationally have drawn the guilty inference” … .

Here, we conclude that the evidence, viewed in the light most favorable to the People … , is legally sufficient to support the counts that were dismissed by County Court, and that the court improperly weighed the evidence … . People v Roth, 2016 NY Slip Op 05257, 4th Dept 7-1-16

CRIMINAL LAW (COUNTY COURT ERRONEOUSLY DISMISSED THREE INDICTMENT COUNTS AFTER IMPROPERLY WEIGHING THE EVIDENCE PRESENTED IN THE GRAND JURY PROCEEDINGS)/EVIDENCE (GRAND JURY, COUNTY COURT ERRONEOUSLY DISMISSED THREE INDICTMENT COUNTS AFTER IMPROPERLY WEIGHING THE EVIDENCE PRESENTED IN THE GRAND JURY PROCEEDINGS)/GRAND JURY (COUNTY COURT ERRONEOUSLY DISMISSED THREE INDICTMENT COUNTS AFTER IMPROPERLY WEIGHING THE EVIDENCE PRESENTED IN THE GRAND JURY PROCEEDINGS)

BROADER FLORIDA STATUTE COULD NOT PROVIDE THE BASIS FOR SECOND FELONY OFFENDER STATUS.

The First Department determined a Florida statute was broader than its New York counterpart and the Florida conviction (for a violation of the Florida statute) could not be the basis of second felony offender status in New York:

The court incorrectly adjudicated defendant a second felony offender based on a conviction under a Florida statute that is broader than its New York counterpart for enhanced sentencing purposes … . Florida Statutes Annotated § 831.02 is broader than Penal Law § 170.25 because the Florida statute could be violated by uttering or publishing an instrument that merely contained false information, while under the New York statute an instrument is only considered forged if it is falsely made, completed or altered; a genuine instrument containing false information does not suffice … .  People v Catmon, 2016 NY Slip Op 05228, 1st Dept 6-30-16

CRIMINAL LAW (BROADER FLORIDA STATUTE COULD NOT PROVIDE THE BASIS FOR SECOND FELONY OFFENDER STATUS)/SECOND FELONY OFFENDER (BROADER FLORIDA STATUTE COULD NOT PROVIDE THE BASIS FOR SECOND FELONY OFFENDER STATUS)

, , ,

PROSECUTOR’S QUESTIONING DEFENDANT ABOUT AN ADMISSION ALLEGEDLY MADE TO HIS ATTORNEY REQUIRED REVERSAL IN THE INTEREST OF JUSTICE.

The Second Department reversed defendant’s conviction in the interest of justice because he was improperly cross-examined about an admission allegedly made to his attorney:

The defendant contends that he was deprived of a fair trial because the Supreme Court allowed the prosecutor, on cross-examination, to question him, in violation of the attorney-client privilege, as to whether he made a certain admission to his attorney which contradicted his trial testimony. Although the defendant failed to preserve this claim for appellate review … , we nevertheless reach it in the exercise of our interest of justice jurisdiction … . Allowing this questioning was error, as it concerned a statement the defendant allegedly made to his attorney … . The error was not harmless, as the proof of the defendant’s guilt was not overwhelming and the questioning was highly damaging to the defendant’s credibility, the jury’s assessment of which, compared to that of the complainant, was the central issue in the case … . Under the circumstances of this case, the court’s instructions to the jury in its preliminary instructions and final charge that questions in and of themselves were not evidence, and that the jurors were prohibited from inferring any facts from the mere asking of a question, cannot be deemed to have obviated any prejudice resulting from the error … . People v Loiseau, 2016 NY Slip Op 05172, 2nd Dept 6-29-16

CRIMINAL LAW (PROSECUTOR’S QUESTIONING DEFENDANT ABOUT AN ADMISSION ALLEGEDLY MADE TO HIS ATTORNEY REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/ATTORNEYS (CRIMINAL LAW, PROSECUTOR’S QUESTIONING DEFENDANT ABOUT AN ADMISSION ALLEGEDLY MADE TO HIS ATTORNEY REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/EVIDENCE (CRIMINAL LAW, PROSECUTOR’S QUESTIONING DEFENDANT ABOUT AN ADMISSION ALLEGEDLY MADE TO HIS ATTORNEY REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)

, ,

SORA COURT PROPERLY REJECTED DOWNWARD DEPARTURE BECAUSE CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD DID NOT INVOLVE A SEXUAL OFFENSE.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a two-judge dissent, determined the SORA court did not err when it assessed 30 points for defendant's prior conviction (involving a different victim) for endangering the welfare of a child which did not involve a sexual offense. Based upon the language of the guidelines. the majority concluded the non-sexual offense could properly be considered subject to a possible downward departure. Here the SORA court, taking into consideration all the relevant evidence, was deemed justified in rejecting a downward departure:

As we recently stated, “[i]n determining whether to depart from a presumptive risk level, the hearing court weighs the aggravating or mitigating factors alleged by the departure-requesting party to assess whether, under the totality of the circumstances, a departure is warranted” … . Here, the only mitigating factor defendant presented to the SORA court was that the prior endangering the welfare of a child conviction was not sexual in nature. Although the SORA court considered this argument when deciding whether to downwardly depart, it certainly was not required to consider the mitigating factor in a vacuum without considering any aggravating factors that would weigh against a downward departure … . In this case, there were numerous aggravating factors not adequately captured by the [risk assessment] that countered defendant's argument for a downward departure. Therefore, the SORA court did not abuse its discretion in determining that the “totality of the circumstances” did not warrant a downward departure because such a departure would have resulted in an “under-assessment of the defendant's dangerousness and risk of sexual recidivism” … . People v Sincerbeaux, 2016 NY Slip Op 05062, CtApp 6-28-16

CRIMINAL LAW (SORA COURT PROPERLY REJECTED DOWNWARD DEPARTURE BECAUSE CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD DID NOT INVOLVE A SEXUAL OFFENSE)/EVIDENCE (CRIMINAL LAW, SORA, SORA COURT PROPERLY REJECTED DOWNWARD DEPARTURE BECAUSE CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD DID NOT INVOLVE A SEXUAL OFFENSE)/SEX OFFENDER REGISTRATION ACT (SORA) (SORA COURT PROPERLY REJECTED DOWNWARD DEPARTURE BECAUSE CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD DID NOT INVOLVE A SEXUAL OFFENSE)/SORA (SORA COURT PROPERLY REJECTED DOWNWARD DEPARTURE BECAUSE CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD DID NOT INVOLVE A SEXUAL OFFENSE)

,

POLICE OFFICERS MAY BE CROSS-EXAMINED BASED ON ALLEGATIONS MADE IN A PENDING CIVIL SUIT, CRITERIA EXPLAINED.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, clarified the criteria for cross-examination of police officers who are defendants in a pending law suit alleging bad acts such as false arrest and fabrication of evidence. The court looked at three cases and applied the criteria to the facts of each. With respect to the one case which was reversed, the court wrote:

Specific allegations of prior bad acts in a federal lawsuit against a particular witness do establish a good faith basis for cross-examining that witness about the misconduct. Because defendant had the necessary good faith basis to ask about the prior bad acts alleged in the complaint, and there was no danger that such cross-examination would go to anything other than the police officers’ credibility, the trial court abused its discretion in not allowing cross-examination into the acts alleged in the federal lawsuit based on the reasoning that the prejudicial value outweighed the probative value merely because the lawsuit was still pending. While we recognize that the scope of cross-examination rests in the sound discretion of the trial judge … , in this case, it was an abuse of discretion to restrict defendant’s right to cross-examine key prosecution witnesses based on a finding that some unidentified prejudice outweighed the probative value of the questions. The questions had a good faith basis and there is no suggestion in this record that the main issues would have been obscured and the jury confused … . People v Smith, 2016 NY Slip Op 05061, CtApp 6-28-16

 

CRIMINAL LAW (POLICE OFFICERS MAY BE CROSS-EXAMINED BASED ON ALLEGATIONS MADE IN A PENDING CIVIL SUIT, CRITERIA EXPLAINED)/EVIDENCE (CRIMINAL LAW, POLICE OFFICERS MAY BE CROSS-EXAMINED BASED ON ALLEGATIONS MADE IN A PENDING CIVIL SUIT, CRITERIA EXPLAINED)/POLICE OFFICERS (CRIMINAL LAW, EVIDENCE, (POLICE OFFICERS MAY BE CROSS-EXAMINED BASED ON ALLEGATIONS MADE IN A PENDING CIVIL SUIT, CRITERIA EXPLAINED)/CROSS-EXAMINATION (CRIMINAL LAW, POLICE OFFICERS MAY BE CROSS-EXAMINED BASED ON ALLEGATIONS MADE IN A PENDING CIVIL SUIT, CRITERIA EXPLAINED)

,

CRITERIA FOR ALLOWING EXPERT EVIDENCE ON THE RELIABILITY OF EYEWITNESS IDENTIFICATION CLARIFIED; EXCLUDING THE PROFFERED EVIDENCE HERE WAS NOT AN ABUSE OF DISCRETION.

The Court of Appeals, over a three-judge dissent, reversing the Appellate Division, determined the trial court did not abuse its discretion (as a matter of law) when it denied defendant’s motion to present expert evidence about eyewitness identification. The Court of Appeals clarified how its precedent on the topic should be applied:

The decision to admit or exclude expert testimony concerning factors that affect the reliability of eyewitness identifications rests within the sound discretion of the trial court … . When the motion is considered during the People’s case-in-chief, the trial court performs this function by weighing the request to introduce such testimony “against other relevant factors, such as the centrality of the identification issue and the existence of corroborating evidence” (… see … People v LeGrand, 8 NY3d 449, 459 [2007]). To the extent LeGrand has been understood to require courts to apply a strict two-part test that initially evaluates the strength of the corroborating evidence, it should instead be read as enumerating factors for trial courts to consider in determining whether expert testimony on eyewitness identification “‘would aid a lay jury in reaching a verdict'” … . Courts reviewing such a determination simply examine whether the trial court abused its discretion in applying the “standard balancing test or prejudice versus probative value” … .

Here, Supreme Court did not abuse its discretion as a matter of law when it precluded the introduction of the expert testimony. The trial court was entitled to reject the expert testimony after balancing the probative value of the evidence against its prejudicial or otherwise harmful effects. In light of the fact that “trial courts generally have the power to limit the amount and scope of evidence presented,” … on this record, the Appellate Division erred in holding that Supreme Court abused its discretion as a matter of law in precluding the testimony. People v McCullough, 2016 NY Slip Op 05060, CtApp 6-28-16

CRIMINAL LAW (CRITERIA FOR ALLOWING EXPERT EVIDENCE ON THE RELIABILITY OF EYEWITNESS IDENTIFICATION CLARIFIED; EXCLUDING THE PROFFERED EVIDENCE HERE WAS NOT AN ABUSE OF DISCRETION)/EVIDENCE (CRIMINAL LAW, CRITERIA FOR ALLOWING EXPERT EVIDENCE ON THE RELIABILITY OF EYEWITNESS IDENTIFICATION CLARIFIED; EXCLUDING THE PROFFERED EVIDENCE HERE WAS NOT AN ABUSE OF DISCRETION)/IDENTIFICATION (CRIMINAL LAW, CRITERIA FOR ALLOWING EXPERT EVIDENCE ON THE RELIABILITY OF EYEWITNESS IDENTIFICATION CLARIFIED; EXCLUDING THE PROFFERED EVIDENCE HERE WAS NOT AN ABUSE OF DISCRETION)/EXPERT EVIDENCE (CRIMINAL LAW, CRITERIA FOR ALLOWING EXPERT EVIDENCE ON THE RELIABILITY OF EYEWITNESS IDENTIFICATION CLARIFIED; EXCLUDING THE PROFFERED EVIDENCE HERE WAS NOT AN ABUSE OF DISCRETION)

,

GUNPOINT DETENTION NOT JUSTIFIED, SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED.

The Fourth Department determined the gunpoint detention of defendant was not justified by what the officer knew or observed. The motion to suppress the seized marijuana and handgun should have been granted:

The People concede that the sergeant’s encounter with defendant constituted a level three forcible detention under People v De Bour …, and thus required “a reasonable suspicion that [defendant] was involved in a felony or misdemeanor” … . “[A]ctions that are at all times innocuous and readily susceptible of an innocent interpretation . . . may not generate a founded suspicion of criminality” … .

We agree with defendant that the arresting sergeant lacked the requisite reasonable suspicion. There is no evidence in the record that the sergeant was informed of the recovery of marihuana in the area the day before defendant’s arrest, and defendant’s actions in merely “grabbing” at his waistline and bending down to the floor of the vehicle, without more, were insufficient to provide the sergeant with the requisite suspicion that defendant committed a crime, and to justify defendant’s gunpoint detention … . People v Elliott, 2016 NY Slip Op 04838, 4th Dept 6-17-16

 

CRIMINAL LAW (GUNPOINT DETENTION NOT JUSTIFIED, SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED)/EVIDENCE (CRIMINAL LAW, GUNPOINT DETENTION NOT JUSTIFIED, SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED)/SUPPRESSION (CRIMINAL LAW, GUNPOINT DETENTION NOT JUSTIFIED, SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED)

,

NO JUSTIFICATION FOR A STRIP SEARCH, EVIDENCE SHOULD HAVE BEEN SUPPRESSED.

The Fourth Department determined there were insufficient grounds for a strip search and defendant’s motion to suppress the drugs seized from his person should have been granted:

… [T]he search performed by the officer constituted a strip search … , which must be justified by “a reasonable suspicion that the arrestee is concealing evidence underneath clothing” … . We conclude that the officer did not have the requisite reasonable suspicion. Defendant was fully cooperative with the officer, admitting his possession of marihuana and denying possession of any other contraband. There was no indication that defendant might be concealing any contraband under his clothing, and the mere fact that he possessed marihuana does not justify a strip search. Although the People assert that the search was justified because defendant appeared to be nervous about being searched, the record reflects that defendant became nervous only after the officer began to perform the strip search … . People v Tisdale, 2016 NY Slip Op 04842, 4th Dept 6-17-16

 

CRIMINAL LAW (NO JUSTIFICATION FOR A STRIP SEARCH, EVIDENCE SHOULD HAVE BEEN SUPPRESSED)/EVIDENCE (CRIMINAL LAW, NO JUSTIFICATION FOR A STRIP SEARCH, EVIDENCE SHOULD HAVE BEEN SUPPRESSED)/STRIP SEARCH (NO JUSTIFICATION FOR A STRIP SEARCH, EVIDENCE SHOULD HAVE BEEN SUPPRESSED)/SUPPRESSION (CRIMINAL LAW, NO JUSTIFICATION FOR A STRIP SEARCH, EVIDENCE SHOULD HAVE BEEN SUPPRESSED)

ONLY ONE FINE SHOULD HAVE BEEN IMPOSED WHERE TWO CONVICTIONS AROSE FROM THE SAME ACT.

The Fourth Department determined one fine, not two, should have been imposed on two convictions arising from the same act:

We agree with defendant, however, that the fines are illegal to the extent the court imposed a fine on both a conviction for criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree that arose from a single act … . People v Regatuso, 2016 NY Slip Op 04836, 4th Dept 6-17-16

CRIMINAL LAW (ONLY ONE FINE SHOULD HAVE BEEN IMPOSED WHERE TWO CONVICTIONS AROSE FROM THE SAME ACT)/SENTENCING (ONLY ONE FINE SHOULD HAVE BEEN IMPOSED WHERE TWO CONVICTIONS AROSE FROM THE SAME ACT)/FINES (CRIMINAL LAW, (ONLY ONE FINE SHOULD HAVE BEEN IMPOSED WHERE TWO CONVICTIONS AROSE FROM THE SAME ACT)

,

PERMITTING NONRESPONSIVE ANSWERS FROM WITNESSES AND NOT ADDRESSING THE PEOPLE’S FAILURE TO PRESENT THE CONFIDENTIAL INFORMANT AS A WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE.

The Third Department determined defendant was not provided effective assistance of counsel. Defense counsel permitted lengthy, unresponsive answers from the People’s witnesses and failed to address in any way the People’s failure to present the confidential informant (CI) as a witness in this “buy and bust” case:

 

Although defense counsel lodged some successful objections at trial, he largely permitted the People’s police witnesses to provide lengthy, nonresponsive answers to questions asked on both direct and cross-examination, even after County Court commented on his failure to object or request that the nonresponsive testimony be stricken from the record. …

Even more perplexing, however, was defense counsel’s absolute failure to address the absence of the CI, a pivotal player in the “buy and bust” operation. Initially, the record is devoid of any indication that defense counsel recognized the possibility of requesting a missing witness charge … . It is difficult to imagine any legitimate trial tactic for not requesting such a charge under the particular circumstances of this case … . People v Smith, 2016 NY Slip Op 04745, 3rd Dept 6-16-16

 

CRIMINAL LAW (PERMITTING NONRESPONSIVE ANSWERS FROM WITNESSES AND NOT ADDRESSING THE PEOPLE’S FAILURE TO PRESENT THE CONFIDENTIAL INFORMANT AS A WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE)/ATTORNEYS (CRIMINAL LAW, PERMITTING NONRESPONSIVE ANSWERS FROM WITNESSES AND NOT ADDRESSING THE PEOPLE’S FAILURE TO PRESENT THE CONFIDENTIAL INFORMANT AS A WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE OF COUNSEL (PERMITTING NONRESPONSIVE ANSWERS FROM WITNESSES AND NOT ADDRESSING THE PEOPLE’S FAILURE TO PRESENT THE CONFIDENTIAL INFORMANT AS A WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE

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