You are here: / Criminal Law
,

Possession of Modest Amount of Drugs Is Not Sufficient to Make Out a Prima Facie Case of an Intent to Sell

The Fourth Department determined the defendant’s possession of less than an ounce of drugs was not sufficient to make out a prima facie case of defendant’s intent to sell:

We reject the People’s contention that the evidence was sufficient to make out a prima facie case that defendant possessed the cocaine with the intent to sell it. Although “defendant’s possession of a substantial’ quantity of drugs can be cited as circumstantial proof of an intent to sell . . . , it cannot be said as a matter of law that the quantity of uncut and unpackaged drugs possessed in this case permitted an inference that defendant intended to sell them. More than mere possession of a modest quantity of drugs, not packaged for sale and unaccompanied by any other saleslike conduct, must be present for such an inference to arise” … .Consequently, the court properly concluded that the evidence was insufficient to establish that defendant possessed a controlled substance with intent to sell it … . People v Nellons, 2015 NY Slip Op 08305, 4th Dept 11-13-15

 

Probationers Do Not Lose All Privacy and Fourth Amendment Rights; Condition that Probationer Waive His Fourth Amendment Rights and Consent to the Search of His Home Struck

The Fourth Department determined the condition of probation requiring the probationer to consent to the search of his home, which was not part of the plea agreement, was not enforceable. A probationer does not lose all Fourth Amendment protections:

We agree with defendant … that the waiver of the right to appeal does not encompass his challenge to the condition of probation that required him to sign a consent to waive his Fourth Amendment rights against a search of his home on the ground that it is related to defendant’s “drug/alcohol abuse,” inasmuch as that condition was not part of the plea agreement … . We also agree with defendant that the condition does not relate to “the probationary goal of rehabilitation” and thus is not enforceable on that ground … . Indeed, the presentence report indicated that the 51-year-old defendant, a first-time offender, does not have a history of drug or alcohol abuse and that he was not under the influence of drugs or alcohol at the time of the offense. It is well established that “a probationer’s home is protected by the constitutional requirement that searches be reasonable . . . [A] probationer loses some privacy expectations and some part of the protections of the Fourth Amendment, but not all of both” … . We therefore modify the judgment by striking as a condition of probation the requirement that defendant consent to the waiver of his Fourth Amendment rights against a search of his home. People v Mead, 2015 NY Slip Op 08304, 4th Dept 11-13-15

 

Evidence Insufficient to Support Attempted Rape Conviction, Ordering Victim to Take Off Her Clothes, Without More, Was Not Enough

The Second Department determined the evidence did not support the attempted rape conviction. Although it could be inferred defendant intended to commit a sexual offense (he twice told the victim to take off her clothes), he never touched the victim, made a verbal demand for sex, or removed any of his clothes:

… [W]e find that it was legally insufficient to establish the defendant’s guilt of attempted rape in the first degree beyond a reasonable doubt. The complainant testified that she was sleeping in her bedroom when she awakened to find the defendant, who had entered her house through a window, standing in her bedroom. He initially demanded money from her. After she told him twice that she had none, he yelled at her “take your clothes off.” He then walked around the left side of the bed towards her, again yelled “take your clothes off,” and pulled back her bed covers. After he pulled down the covers, she began screaming and he turned and ran out. There was no evidence that the defendant touched the complainant or that he made a verbal demand to have sexual intercourse with her. Additionally, there was no evidence that the defendant undressed or that any of the complainant’s clothes were removed.

Although it could be reasonably inferred from the evidence adduced at trial that the defendant intended to engage in some type of criminal sexual conduct, it cannot be inferred that he attempted to engage in sexual intercourse by forcible compulsion pursuant to Penal Law § 130.35(1) … . People v Mais, 2015 NY Slip Op 08195, 2nd Dept 11-12-15

 

,

Reversible Error to Admit Hearsay Statements Made by the Victim Four Years After the Alleged Incident Under the “Prompt Outcry” Exception to the Hearsay Rule

The Third Department ordered a new trial in a sexual assault case because hearsay testimony about what the victim said four years after the alleged assault was admitted under the “prompt outcry” exception to the hearsay rule (without any substantive explanation for the delay):

Whether a complaint is sufficiently prompt so as to fall within the exception is not a matter of precision and depends upon the facts of a given case … . That being said, “courts traditionally have required the complaint to be made ‘at the first suitable opportunity'” …, and “[a]ny significant delay must be adequately explained” … . Here, the victim did not disclose the abuse until 2011, four years after she and her sister were placed in the custody of her father and the abuse had ended. The victim testified that she waited so long to disclose the abuse because defendant had threatened to kill her if she told anyone, but that threat was made during a supervised visit between the victim and defendant. The visitation had ceased well before the disclosures were made, and the victim had neither seen nor spoken to defendant since 2009. We are left, in other words, with disclosures that were made four years after the abuse ended and over two years after the victim last interacted with defendant … .

The People suggest that this prolonged delay can be attributed to the facts that the victim had sustained psychological trauma and suffered from a mild neurological impairment. Research indeed “suggest[s] that withholding a complaint may not be unusual,” but that fact is not dispositive in assessing whether a complaint was made promptly … . To hold otherwise would run against the very purpose of the exception, namely, to address “the tendency of some jurors to doubt the victim in the absence of” a prompt complaint of abuse … . As for the victim’s neurological condition, it suffices to say that no proof in the record suggests that it would have compelled her to remain silent for such a long period of time. Thus, given the absence of any adequate explanation for the victim’s prolonged delay in disclosing the abuse, her disclosures cannot be described as prompt outcries, and the hearsay testimony regarding them should not have been admitted into evidence … . Inasmuch as the evidence of guilt in this case was not overwhelming — indeed, the verdict hinged on the question of whether the victim was credible — we cannot say that the erroneous admission of this bolstering hearsay was harmless … . People v Stone, 2015 NY Slip Op 08205, 3rd Dept 11-12-15

 

,

Intoxication Jury Instruction Was Warranted, Conviction Reversed

In reversing defendant’s conviction, the Second Department determined there was sufficient evidence of defendant’s intoxication to warrant the intoxication jury instruction:

The defendant’s convictions of assault in the second degree and criminal possession of a weapon in the fourth degree arise out of an incident during which the defendant allegedly struck another man (hereinafter the complainant) with a metal pipe in the presence of the complainant’s wife. Viewing the intoxication evidence in the light most favorable to the defendant …, we conclude, contrary to the Supreme Court’s determination, that an intoxication instruction (see Penal Law § 15.25) was warranted … . The complainant’s wife testified that, just prior to the subject assault, she observed the defendant with a can of beer in his hand and that the defendant seemed drunk. She further testified that the defendant’s breath smelled like beer, his speech was slurred, and that the defendant, with whom she was familiar, was “not himself.” Under these circumstances, there is “sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis” … . Accordingly, the Supreme Court erred in denying the defendant’s request to give an intoxication instruction to the jury and, thus, reversal is warranted … . People v Goldring, 2015 NY Slip Op 08189, 2nd Dept 11-12-15

 

, ,

Questioning by Police and Caseworker Violated Defendant’s Right to Counsel, Failure to Suppress Statements Was Not Harmless Error

The Third Department reversed defendant’s conviction (for murder of mother, stepfather and stepbrother) because defendant’s “yeah probably” response to the question whether he wanted a lawyer was deemed an unequivocal request for a lawyer. A public defender, who represented defendant in a prior case, had sent a letter to the district attorney indicating he was aware of the murders and that he didn’t want defendant questioned in his absence. The police who questioned defendant did not tell defendant about the letter. The court determined that the letter did not cause the right to counsel to attach because it did not state the public defender was representing defendant on the murders. However, given the interrogating officers’ knowledge of the letter, they should have asked defendant directly whether he wanted the public defender’s representation. In addition, a child protective caseworker’s (MacNeil’s) subsequent questioning of the defendant violated his right to counsel because the caseworker was deemed an agent of the police:

… [T]he People contend that defendant’s statement — namely, “Yeah, probably” — did not unequivocally invoke his right to counsel. We disagree. The word “probably” is defined as “very likely” or “almost certainly” (Merriam—Webster Online Dictionary, http://www.MerriamWebster.com/dictionary/probably). It is difficult to conceive of circumstances where “probably” would mean “no,” particularly here, where the police knew that defendant was currently represented, albeit on unrelated charges, and also knew that counsel was so clearly attempting to protect his current client’s constitutional rights. Defendant’s demeanor and tone when saying “Yeah, probably” was his simple expression, in everyday language, that he was not competent or capable to deal with the officers’ questioning. Thus, based on the particular circumstances herein, a reasonable police officer would have understood that defendant’s statement was a request for counsel, requiring questioning without representation to cease .. . * * *

As it cannot be said that there is no reasonable possibility that the admission of defendant’s statements at trial affected the jury’s verdict, County Court committed reversible error in failing to suppress defendant’s statements to the officers… . * * *

MacNeil acknowledged that she works closely with the police in these types of investigations and that, to the best of her recollection, Hamilton [a police officer who had questioned defendant] was present in the room as she was speaking with defendant. Based on the foregoing, we find that MacNeil was acting as an agent of law enforcement and, therefore, her questioning also infringed upon defendant’s right to counsel. Thus, as the product of interrogation by a public servant engaged in law enforcement activity, defendant’s statements to MacNeil were involuntary and should have been suppressed … . People v Slocum, 2015 NY Slip Op 08203, 3rd Dept 11-12-15

 

, , ,

Frye Hearing to Determine Acceptance of Paraphilia NOS Diagnosis Required

The Second Department determined defendant sex offender’s request for a Frye hearing in Mental Hygiene Law proceedings for civil commitment should have been granted. Defendant questioned the general acceptance in the psychiatric community of a “paraphilia NOS” diagnosis:

“[E]xpert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has gained general acceptance in its specified field” … . Recently, in Matter of State of New York v Donald DD. (24 NY3d 174), the Court of Appeals noted that paraphilia NOS “is a controversial diagnosis,” and that it had not yet decided “the question that would be decided at a Frye hearing: whether the diagnosis of paraphilia NOS . . . has gained general acceptance in the psychiatric community'” (id. at 186-187). However, the Court of Appeals declined to reach this issue in Matter of Donald DD. because no Frye hearing had been requested or held (id. at 187). Here, however, a Frye hearing was requested and the appellant supported his request with scientific literature. Under these circumstances, a Frye hearing should be conducted to resolve the question of whether the diagnosis of paraphilia NOS has achieved general acceptance in the psychiatric and psychological communities. Matter of State of New York v Richard S., 2015 NY Slip Op 08179, 2nd Dept 11-12-15

 

, ,

Pedophilia Diagnosis, in Combination with Anti-Social Personality Disorder (ASPD), Substance Abuse Disorders, Failed Treatment and History of Sexual Misconduct, Constituted Sufficient Proof Respondent Had Serious Difficulty Controlling His Behavior Warranting Civil Commitment

The First Department, in a full-fledged opinion by Justice Richter, reversed Supreme Court (which had set aside the jury verdict) and determined civil commitment of respondent sex offender was supported by the evidence. The case is another attempt to interpret and implement the criteria for civil commitment laid out by the Court of Appeals in Matter of State of New York v Donald DD. (Kenneth T.), 24 NY 3d 174 (2014). The respondent here was diagnosed with pedophilia, which, combined with anti-social personality disorder (ASPD), substance abuse disorders, respondent’s history of sexual misconduct, and his failure to benefit from treatment programs, was deemed sufficient proof respondent had difficulty controlling his behavior:

In Kenneth T., the State’s expert testified that Kenneth T. suffered from paraphilia not otherwise specified (paraphilia NOS) and ASPD, and that, together, these disorders predisposed him to committing sexual misconduct and resulted in his having serious difficulty controlling that conduct. In concluding that Kenneth T. had the requisite serious difficulty, the expert identified two factors: the fact that Kenneth T. had carried out two rapes under circumstances allowing for identification by his victims, and the fact that he committed the second rape despite having spent significant time in prison for the earlier rape. In finding this evidence legally insufficient, the Court stated that the serious difficulty prong could rarely, if ever, be satisfied from the facts of a sex offense alone … .

Here, in contrast, [the State’s expert] did not solely rely on the facts of respondent’s sex offenses in concluding that he had serious difficulty controlling his urges. Instead, Dr. [the expert] based his opinion on respondent’s triple diagnosis (pedophilia, ASPD and substance abuse disorders), his pattern of sexual misconduct, and his abject failure to satisfactorily progress in treatment. Notably, the underlying sexual disorder in Kenneth T. was paraphilia NOS, not pedophilia. The distinction is critical because, unlike paraphilia, pedophilia can only be diagnosed where the individual has actually acted upon sexual urges towards prepubescent children (or has experienced significant distress at those urges) for more than six months. Thus, pedophilia, by definition, involves an element of difficulty in control. Further, the DSM-5 explicitly recognizes that the dangerous combination of respondent’s ASPD and pedophilia increases the likelihood that he will act out sexually with children (see DSM-5 at 699). In addition, the diagnosis of respondent’s substance abuse disorders, not present in Kenneth T., provides a further basis for the jury’s finding of serious difficulty. * * *

By this decision, we do not hold that all offenders who suffer from pedophilia are automatically, by virtue of that diagnosis alone, subject to mandatory civil management. We simply hold that the State’s evidence in this case — including respondent’s multiple diagnoses, his history of sexual misconduct, his admitted inability to control his pedophilic urges, his lack of satisfactory progress in sex offender treatment and his failure to have a viable relapse prevention plan — was legally sufficient to uphold the jury’s conclusion that respondent has difficulty controlling his sexually offending behavior. Matter of State of New York v Floyd Y., 2015 NY Slip Op 08102, 1st Dept 11-10-15

 

,

Lineup Was Unduly Suggestive, Court Suggested Everyone In the Lineup Should Have Been Given an Eye Patch Because the Complainant Described the Perpetrator as Having a “Deformed Eye”

The First Department reversed defendant’s conviction and ordered a new trial because the lineup in which defendant was identified by the complainant was unduly suggestive. The complainant had described the perpetrator as having a “deformed eye,” and defendant was the only person in the lineup with that feature. The court suggested having everyone in the lineup wear an eye patch:

The complainant described the perpetrator of the alleged robbery as having one distinctive physical feature: a “deformed right eye” which “appeared to be something further into his head.” At the suppression hearing, the detective who prepared a photo array and a postarrest lineup testified that, in each instance, defendant was the only participant who had an “apparently defective eye.” Under the circumstances, we find that the photo array and lineup were unduly suggestive because “only the defendant matche[d] a key aspect of the description of the perpetrator,” namely, a deformed right eye … . While we recognize the practical difficulties in finding fillers with similarly defective eyes, or photographs of such persons, “[a] simple eye patch provided to each of the lineup participants or a hand over an eye would have sufficed to remove any undue suggestiveness of the procedure” …, and similar measures could have been taken with regard to the photos. People v Perry, 2015 NY Slip Op 08046, 1st Dept 11-5-15

 

Report of a Robbery Five Minutes Before Justified Street Stop, Flight Justified Pursuit

The First Department, in a full-fledged opinion by Justice Friedman, over a two-justice dissent, determined the police were justified in stopping the defendants for a level-two inquiry, and were further justified in pursuing and detaining them. The majority found that the report of a robbery at a country club five minutes before, together with seeing the defendants on the private country club driveway justified a level two street stop and inquiry. When one of the men fled and the others walked away, the police were justified pursuing and detaining them. The dissenters argued that the police knew only that a robbery in the vicinity of the country club had been reported and that seeing the defendants walking on the driveway in broad daylight justified only a level one inquiry and, therefore, did not justify pursuit:

… [D]efendants were first seen on private property where a burglary had just been reported, in a suburban area, with nobody else visible anywhere in the vicinity. This gave rise to a founded suspicion of criminality, justifying a level-two common-law inquiry under the De Bour analysis.

The police did not exceed the bounds of a common-law inquiry when they requested defendants to stop so that the police could “ask them a question,” because such a direction does not constitute a seizure … . Instead of stopping, defendant Nonni immediately ran, and defendant Parker immediately made what officers described as a “hurried” and “evasive” departure … . Under all the circumstances, the record supports the conclusion that both defendants “actively fled from the police,” rather than exercising their “right to be let alone” … . Defendants’ flight elevated the existing level of suspicion to reasonable suspicion, justifying pursuit and an investigative detention … . Here, “[f]light, combined with other specific circumstances indicating that the suspect[s] . . . [might have been] engaged in criminal activity, . . . provide[d] the predicate necessary to justify pursuit”… . People v Nonni, 2015 NY Slip Op 08081, 1st Dept 11-5-15

 

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