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23-Week-old Child Who Was Born Alive and Lived for 2 1/2 Hours After Removal from Life-Support Was a “Person” Within the Meaning of the Manslaughter Statute

The Fourth Department determined the 23-week-old child delivered by cesarean section was a “person” within the meaning of the manslaughter statute.  The child’s mother was severely injured in a head-on collision with defendant’s vehicle and the child was delivered to save the mother’s life. The child was taken off life-support because of the high risk of cognitive and neurological deficits and died 21/2 hours later. The court, in essence, determined the child was a “person” because she was born alive.

The Penal Law provides that a defendant “is guilty of manslaughter in the second degree when . . . [he or she] recklessly causes the death of another person” (§ 125.15 [1]). Furthermore, ” [p]erson,’ when referring to the victim of a homicide, means a human being who has been born and is alive” (§ 125.05 [1]), and the Penal Law defines homicide as “conduct which causes the death of a person or an unborn child with which a female has been pregnant for more than twenty-four weeks” (§ 125.00).

Defendant first contends that the evidence is not legally sufficient because, pursuant to the above statutory scheme, a child who is less than 24 weeks of gestational age is not a person. That contention is without merit. Penal Law § 125.00 uses the disjunctive “or” in defining who may be the victim of a homicide, and it is a well-settled rule of statutory interpretation that “[u]se of the conjunction or’ in a statute usually indicates that the language is to be construed in an alternative sense”… . Therefore, a victim who is born alive may be a person for the purposes of a homicide pursuant to section 125.00, regardless of whether he or she is less than 24 weeks of gestational age. People v Hardy, 2015 NY Slip Op 03961, 4th Dept 5-8-15

 

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Ordinance Prohibiting “Unnecessary Noise” Is Not Unconstitutionally Vague

The defendant was stopped by the police for a violation of a city ordinance prohibiting “unnecessary noise” (a loud car stereo).  The defendant argued that the stop, which resulted in drug charges, was not justified by probable cause because the “unnecessary noise” ordinance is “unconstitutionally vague.” The Fourth Department determined the ordinance was not unconstitutionally vague because it is tailored to the context of what can be heard more than 50 feet from a vehicle on a public highway and is sufficiently definite to put defendant on notice his conduct was forbidden:

Municipal ordinances “enjoy an exceedingly strong presumption of constitutionality’ ” …, and such legislative enactments “are to be construed so as to avoid constitutional issues if such a construction is fairly possible”… . “The void-for-vagueness doctrine embodies a rough idea of fairness’ ” …, and “an impermissibly vague ordinance is a violation of the due process of law” … . In addressing such a challenge, courts first “must determine whether the statute in question is sufficiently definite to give a person of ordinary intelligence fair notice that his [or her] contemplated conduct is forbidden by the statute” … . “Second, the court must determine whether the enactment provides officials with clear standards for enforcement”

* * * … [T]he City Ordinance is not unconstitutionally vague because the section under which defendant was convicted was tailored to a specific context—the creation of “unnecessary noise” beyond 50 feet of a motor vehicle on a public highway (City Ordinance § 40-16 [b]). In our view, “[w]hat is usual noise in the operation of a car [radio or other sound production device] has become common knowledge . . . and any ordinary motorist should have no difficulty in ascertaining” whether the noise in question violates the applicable standard … . Based on the foregoing, we conclude that the ordinance in question was “sufficiently definite” to put defendant on notice that his conduct was forbidden, and that it provided the police “with clear standards for enforcement” … . People v Stephens, 2015 NY Slip Op 03991, 4th Dept 5-8-15

 

Police Officer’s Convictions for “Criminal Diversion” (Obtaining Another’s Prescription Medication), and “Official Misconduct” Not Supported by Legally Sufficient Evidence

The Third Department reversed defendant’s convictions for criminal diversion and official misconduct because the offenses were not supported by legally sufficient evidence.  The defendant, a police officer, was accused of obtaining someone’s prescription drugs in exchange for something of pecuniary value (criminal diversion).  She was also accused of flashing her badge to a pharmacist and asking the pharmacist to hurry up with a prescription drug (official misconduct).  The Third Department determined the “criminal diversion” charge was not supported by evidence the drug involved (a muscle relaxant) was a “prescription medication.”  And, in the absence of evidence the defendant knew that flashing her badge constituted an unauthorized exercise of her official functions, there was not sufficient evidence to support the “official misconduct” charge. People v Barnes, 2014 NY Slip Op 03310, 3rd Dept 5-8-14

 

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Court of Appeals Can Not Hear the Appeal of an Issue Not Preserved by Objection

The Court of Appeals could not hear the defendant’s appeal because the issue was not preserved by an objection or by an express decision on the question by the trial court. “The issue argued on this appeal is whether the police were required to again read defendant his Miranda rights when they interviewed him a second time, at his request and in the presence of counsel. In particular, defendant contends that the courts below erred in determining that the presence of counsel obviated the need for police to advise him of his right to remain silent during the second interview. Defendant, however, did not make this argument in his motion papers to the trial court or at the suppression hearing. Moreover, while a general objection — such as that contained in defendant’s omnibus motion — is sufficient to preserve an issue for our review when the trial court “expressly decided the question raised on appeal” …, here, Supreme Court did not expressly decide the issue of whether the police were required to advise defendant of his right to remain silent under the circumstances presented by the second interview.” People v Graham, 2015 NY Slip Op 03767, CtApp 5-7-15

 

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Court Can Not Use Its Contempt Power to Compel the District Attorney to Prosecute a Criminal Matter

The District Attorney did not wish to proceed with disorderly conduct prosecutions against persons who demonstrated in support of the Occupy Movement. The City Court judge handling the cases, however, ordered the district attorney to appear at a scheduled suppression hearing, threatening to exercise the court’s contempt powers if the district attorney did not appear. The district attorney appeared but informed the judge no witnesses would be called. When the judge persisted, again threatening to use the contempt powers, the district attorney brought an Article 78 proceeding seeking a writ of prohibition.  The writ was granted and the Court of Appeals affirmed.  Under the doctrine of separation of powers, only the district attorney can decide whether to prosecute.  The courts can not compel the prosecution of criminal actions:

“Prohibition is available to restrain an inferior court or Judge from exceeding its or his [or her] powers in a proceeding over which the court has jurisdiction” … . To demonstrate a clear legal right to the extraordinary writ of prohibition, a petitioner is required to show that the challenged action was “in reality so serious an excess of power incontrovertibly justifying and requiring summary correction” … .

“The concept of the separation of powers is the bedrock of the system of government adopted by this State in establishing three coordinate and coequal branches of government, each charged with performing particular functions” … . Under the doctrine of separation of powers, courts lack the authority to compel the prosecution of criminal actions … . Such a right is solely within the broad authority and discretion of the district attorney’s executive power to conduct all phases of criminal prosecution (see County Law § 700 [1]… ).

The courts below correctly determined that a trial court cannot order the People to call witnesses at a suppression hearing or enforce such a directive through its contempt powers. Any attempt by the Judge here to compel prosecution through the use of his contempt power exceeded his jurisdictional authority. It is within the sole discretion of each district attorney’s executive power to orchestrate the prosecution of those who violate the criminal laws of this State … . Matter of Soares v Carter, 2015 NY Slip Op 03879, CtApp 5-7-15

 

Charging the Defendant with the Use of Two Weapons During a Single Incident Did Not Render the Indictment Duplicitous—Only Proof of the Use of One Weapon Was Required

The indictment alleged the defendant committed assault and reckless endangerment by using a pistol and a rifle.  The proof at trial demonstrated the defendant shot the victim twice, using two weapons, in the course of the same incident. The judge charged the jury using the conjunctive language of the indictment.  When the jury asked if it must find both weapons were used to commit the offenses, the judge explained that only the use of one of the weapons needed to be proved. The Court of Appeals affirmed, concluding the indictment was not duplicitous, i.e., the indictment did not charge two crimes in a single indictment count:

CPL 200.30 (1) requires that “each count of an indictment may charge one offense only.” Thus, a count is duplicitous if it charges more than one offense. …”[W]hether multiple acts may be charged as a continuing crime is resolved by reference to the language in the penal statute to determine whether the statutory definition of the crime necessarily contemplates a single act.” Under Penal Law § 120.10 (1), a person is guilty of assault in the first degree when “with intent to cause serious physical injury to another person, he [or she] causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.” Thus, the prosecution was not required to prove that defendant used two weapons. Penal Law § 120.25 states that a person is guilty of reckless endangerment in the first degree when, “under circumstances evincing a depraved indifference to human life, he [or she] recklessly engages in conduct which creates a grave risk of death to another person.” Again, the prosecution was not required to prove that defendant used both weapons.

…[T]he evidence at trial did not render the charges duplicitous. There was evidence that defendant attacked the victim out of one impulse – to seek revenge for the fiancée’s alleged assault on defendant’s sister….”[A]s a general rule . . . it may be said that where a defendant, in an uninterrupted course of conduct directed at a single victim, violates a single provision of the Penal Law, he commits but a single crime.” Although defendant used two guns, this was a single incident … . People v Flanders, 2015 NY Slip Op 03768, CtApp 5-7-15

 

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Murder Conviction Against the Weight of the Evidence—Strangulation Was the Result of an Attempt to Increase Sexual Pleasure—No Intent to Kill

The Second Department determined that defendant’s conviction for intentional murder was against the weight of the evidence.  The victim died of strangulation, but the defendant’s actions were motivated by the desire to increase sexual pleasure, not by an intent to kill.  People v Davis, 2014 NY Slip Op 03277, 2nd Dept 5-7-14

 

Assault and Robbery Committed by Separate Acts Involving the Same Victim–Consecutive Sentences Justified

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a two-judge dissent, determined defendant was properly sentenced consecutively for robbery and assault.  The defendant first demanded that the victim turn over a necklace the victim was wearing. As the victim was complying, the defendant shot the victim. The court determined the two crimes were committed by separate acts, thereby justifying consecutive sentences. The dissent dealt with a different issue: i.e., whether CPL 430.10 prohibited Supreme Court from “reconfiguring” defendant's sentence after the case was remitted to it by the Appellate Division. After the Appellate Division determined two of the original sentences should have been imposed concurrently, the original 40-year sentence was reduced to 25. On remand, the sentencing court “reconfigured” the sentences to bring them up again to 40 years. CPL 430.10 prohibits the sentencing court from “modifying” a sentence after it has begun to be served. The “reconfigured” 40-year sentence was affirmed here by the Court of Appeals.  With respect to the consecutive sentences, the court explained:

Penal Law § 70.25 (2) mandates that concurrent sentences be imposed for “two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other.” We have held that, “[t]o determine whether consecutive sentences are permitted, a court must first look to the statutory definitions of the crimes at issue” to discern whether the actus reus elements overlap … . Even where the crimes have an actus reus element in common, “the People may yet establish the legality of consecutive sentencing by showing that the 'acts or omissions' committed by defendant were separate and distinct acts” … . Conversely, where “the actus reus is a single inseparable act that violates more than one statute, [a] single punishment must be imposed” … . The People bear the burden of establishing the legality of consecutive sentencing by “identifying the facts which support their view” that the crimes were committed by separate acts … .

Even if, as defendant contends, the statutory elements of his robbery and assault convictions overlap, the People have demonstrated in this case that the assault count and the robbery count at issue were committed by separate and distinct acts. People v Rodriguez, 2015 NY Slip Op 03877, CtApp 5-7-15

 

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Plea of “Nolo Contendere” to a Sex Offense in Florida Constitutes a “Conviction” of a Sex Offense Requiring Registration in New York

Petitioner pled “nolo contendere” to a sex offense in Florida. Petitioner contended that the offense was based on his having consensual sex with a 15-year-old classmate when petitioner was 18.  The Florida court withheld adjudication. The Court of Appeals determined petitioner was required to register as a sex offender upon his move to New York. The “nolo contendere” plea meets the definition of “conviction” in New York. A “sex offender” in New York is one who has been “convicted” of a “sex offense” which includes a felony in another jurisdiction for which the offender is required to register as a sex offender (the case here):

We held in People v Daiboch (265 NY 125 [1934]), … that the entry of a nolo contendere plea in another jurisdiction, followed by a judgment placing the defendant on probation for two years, was a prior conviction for purposes of sentencing the defendant as a second offender. Although Daiboch did not involve SORA, we confronted the same issue presented by this case: whether a defendant's out-of-state nolo contendere plea for which a non-incarceratory sentence was imposed qualifies as a conviction in New York. Nolo contendere pleas, like Alford pleas, are “no different from other guilty pleas” (Matter of Silmon v Travis, 95 NY2d 470, 475 [2000] [recognizing that an Alford plea may generally be used for the same purposes as any other conviction]). And because New York defines a conviction to include the entry of a guilty plea, regardless of the subsequent sentence or judgment, the ultimate disposition of petitioner's Florida conviction is irrelevant. New York distinguishes between a conviction and a “judgment of conviction,” the latter of which includes “a conviction and the sentence imposed thereon” (CPL 1.20 [15]). As we have previously observed, the Legislature intended the Criminal Procedure Law to provide the “definitive meaning” of the term “conviction” for other criminal statutes, and it meant what it said when it defined “conviction” separately from a judgment or sentence … . Matter of Kasckarow v Board of Examiners of Sex Offenders of State of N.Y., 2015 NY Slip Op 03878, CtApp 5-7-15

 

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Admission of Child Abuse Made by Defendant to Psychiatrist Protected by Physician-Patient Privilege—Even Though the Admission Can Be Disclosed in Child Protective Proceedings, the Privilege Applies in a Criminal Trial

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that an admission of child sexual abuse made to the defendant's psychiatrist was privileged.  The psychiatrist should not have been allowed to testify about the admission at defendant's trial.  The error was not harmless. The Court made it clear that the relaxed evidentiary standards in child protective proceedings where physicians are required to report abuse, do not extend to the context of a criminal trial where the defendant's liberty is at stake:

The Legislature has determined that the protection of children is of paramount importance, so much so that it has either limited or abrogated the privilege through statutory enactments.

The People erroneously assert that these exceptions place offenders on notice that the physician-patient privilege does not apply to statements or admissions triggering a duty to disclose. But it is one thing to allow the introduction of statements or admissions in child protection proceedings, whose aim is the protection of children, and quite another to allow the introduction of those same statements, through a defendant's psychiatrist, at a criminal proceeding, where the People seek to punish the defendant and potentially deprive him of his liberty. Evidentiary standards are necessarily lower in the former proceedings than in the latter because the interests involved are different. Thus, the relaxed evidentiary standards in child protection proceedings lend no credence to the People's argument that defendant should have known that any admission of abuse he made to his psychiatrist would not be kept confidential. People v Rivera, 2015 NY Slip Op 03764, CtApp 5-7-15

 

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