You are here: / Criminal Law
, ,

Defendant Cannot Be Convicted of Both Intentional and Depraved Indifference Murder Where there Is a Single Victim/”Transferred Intent” Theory Explained and Applied/Insufficient Evidence Defendant Intimidated a Witness—the Witness’ Grand Jury Testimony Should Not Have Been Admitted

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a partial dissent, resolved a split among the departments and determined a defendant cannot be convicted of both intentional murder and depraved indifference murder where there is a single victim. It was alleged that the defendant fired his weapon at one person, but killed an uninvolved bystander who was several buildings away. The trial judge submitted both the intentional and depraved indifference murder theories to the jury in the conjunctive (not in the alternative). Defendant was convicted of both offenses. The Court of Appeals’ analysis turned on “transferred intent.”  Conviction under New York’s “transferred intent” theory requires the jury to conclude the defendant acted intentionally.  Intentional murder, even where “transferred intent” is involved, is incompatible with depraved indifference murder, which is, by definition, not intentional. Where there is a single victim, only one or the other mental state can apply, not both. The Court of Appeals further determined the trial court erred when it allowed in evidence the grand jury testimony of a witness who refused to testify, purportedly out of fear. There was not sufficient evidence connecting the defendant to any actions or words aimed at instilling fear in the witness.  A new trial was ordered for the intentional, depraved indifference and attempted murder counts:

The purpose of the transferred intent theory is “to ensure that a person will be prosecuted for the crime [that person] intended to commit even when, because of bad aim or some other ‘lucky mistake,’ the intended target was not the actual victim” … . Given this stated goal, the Court has cautioned that transferred intent “should not be employed to ‘multiply criminal liability, but to prevent a defendant who has committed all the elements of a crime (albeit not upon the same victim) from escaping responsibility for that crime” … . Hence, it should be applied where a defendant “could not be convicted of the crime because the mental and physical elements do not concur as to either the intended or actual victim” … .

… Whether based on the defendant’s conscious objective towards the intended victim, or on a transferred intent theory directed at a different, and actual, victim, defendant’s conviction depends on a jury finding that defendant harbored the requisite intentional mental state. Defendant cannot then also be guilty of the same murder premised on a depraved state of mind.

That the People had at their disposal two bases by which to establish the requisite state of mind — transferred intent and depraved indifference — does not permit the People to seek multiple convictions for the one murder for which the defendant was charged, prosecuted and tried. To hold otherwise is contrary to “the basic principle that a defendant should not be convicted and punished more than once for conduct which, although constituting only one prohibited act, may because of statutory definition, be theorized as constituting separate criminal acts” … . Under New York law, defendant is held accountable for the murder he committed, even if it was not the one he set out to complete (Penal Law 125.25 [1]). People v Dubarry, 2015 NY Slip Op 02865, CtApp 4-7-15

 

,

As Long as a Police Officer’s Mistake is “Objectively Reasonable,” a Stop Based Upon the Mistake Will Not Be Invalidated/There Is No Analytical Distinction Between a Mistake of Law and a Mistake of Fact in this Context

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a dissent, determined that a police officer’s objectively reasonable mistake about the law will not invalidate a stop based upon that mistake.  Here the defendant was stopped by the police after she rolled through a stop sign at the exit of a supermarket parking lot.  The defendant was ultimately arrested and charged with driving while intoxicated.  It turned out that the stop sign, although regulation size and color, was not registered with the town and was therefore not “legally authorized.” The local court dismissed the charges, finding the initial vehicle stop, based upon a mistake of law, improper. The Court of Appeals reversed, holding the mistake of law was “objectively reasonable.”  The court noted that a police officer cannot be expected to know the location of every “unregistered” stop sign in his/her jurisdiction. The court made it clear, in deciding whether the actions taken by the police were objectively reasonable, there should be no distinction between mistakes of fact and mistakes of law:

…[W]e look to the reasonableness of the officer’s belief that defendant violated the Vehicle and Traffic Law, without drawing any distinction between mistakes of fact and mistakes of law. * * * … [W]e are not saying that it would have been objectively reasonable for the arresting officer to have claimed ignorance of the requirement in Vehicle and Traffic Law § 1100 (b) that a stop sign in a parking lot be registered to be valid. We are saying that the stop was nonetheless constitutionally justified because the officer was not chargeable with knowing each and every stop sign that was registered under the Newark Village Code.  People v Guthrie, 2015 NY Slip Op 02867, CtApp 4-7-15

 

A Defendant Who Has Been Found Mentally Unfit to Proceed To Trial Cannot Be Subjected to a Parole Revocation Proceeding

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that a defendant who has been deemed unfit to proceed to trial following a psychiatric examination cannot be subjected to a parole violation hearing.  The defendant, who was on lifetime parole for murder and had been committed to the custody of the Office of Mental Health (OMH), assaulted a fellow patient.  After a psychiatric examination, the defendant was deemed unfit to proceed to trial on charges stemming from the assault. Thereafter the Department of Corrections and Community Services (DOCCS) brought parole revocation proceedings against the defendant. The defendant was transferred to the custody of DOCCS and, after a hearing, his parole was revoked and he was incarcerated.  The Appellate Division (reversing Supreme Court) granted the defendant’s petition to annul the parole revocation, and returned the defendant to parole. The Court of Appeals affirmed, holding that subjecting the defendant to the parole revocation hearing, after defendant had been deemed mentally incompetent, violated defendant’s right to due process.  The Court of Appeals noted that its ruling may result in the release of persons found unfit for trial, something only the legislature can remedy:

It is, of course, well established — as a matter of common law and also of due process — that “a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial” … . The State contends that parole revocation proceedings do not raise the same concerns because parole revocation is not part of a criminal prosecution.

It is true that parole revocation deprives an individual only of “a restricted form of liberty” and thus implicates “some form of due process [but] not the full panoply of rights due a defendant in a criminal proceeding” … . Just as due process requires us to safeguard the liberty of parolees, we must also recognize the state’s strong interest in effectively managing parolees without unduly burdensome procedural restraints … . However, in balancing these competing interests, we conclude that several of the reasons underlying the bar against prosecuting a mentally incompetent defendant apply also to parole revocation hearings. Clearly salient are constitutional concerns about the fundamental fairness of a proceeding in which a defendant who is unable to make decisions about his defense may be returned to prison. But foremost is the concern already mentioned, about the accuracy of the proceedings. An incompetent parolee is not in a position to exercise rights, such as the right to testify and the opportunity to confront adverse witnesses (see 9 NYCRR 8005.18 [b] [2], [4]), that are directly related to ensuring the accuracy of fact-finding. It is true, as the State emphasizes, that the parolee is guaranteed a right to representation by counsel at the revocation hearing. But representation is not enough. A parolee must be able to provide the factual underpinnings of the presentation.

We conclude, therefore, that holding a parole revocation hearing after a court has deemed the parolee to be mentally incompetent violates the due process provision in our State Constitution… . Matter of Lopez v Evans, 2015 NY Slip Op 02868, CtApp 4-7-15

 

,

Increasing Defendant’s Risk Level Based Upon His Mental Retardation Was an Abuse of Discretion

In a risk assessment proceeding pursuant to the Sex Offender Registration Act (SORA), the First Department determined Supreme Court should not have increased defendant’s risk level from a presumptive level two to level three based upon his mental retardation. The court explained that there had been no “clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases his ability to control impulsive sexual behavior: “

The court erred in finding that defendant’s mental retardation warranted an upward departure to level three. The essence of the court’s reasoning was that defendant lacked the ability to appreciate the inappropriateness of his actions, or could not control his impulsive behavior. A departure from the presumptive risk level is warranted “where there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” … . The guidelines clearly provide for an automatic override to a presumptive level three designation where there has been a clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases his ability to control impulsive sexual behavior. Here, no such clinical assessment has been made, and thus an upward departure on this basis was improper… . People v McKelvin, 2015 NY Slip Op 02914, 1st Dept 4-7-15

 

,

Misrepresentations About Expunged Drug-Related Offenses on Student’s Law School Admission Application Supported the Rescinding of the Student’s Admission After Completion of Three Semesters

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a dissent, determined a law school did not act arbitrarily and capriciously when it determined a student had made misrepresentations about (expunged) criminal offenses in his admission-application and rescinded his admission after three semesters of study:

Courts have a “restricted role” in reviewing determinations of colleges and universities … . A determination will not be disturbed unless a school acts arbitrarily and not in the exercise of its honest discretion, it fails to abide by its own rules … or imposes a penalty so excessive that it shocks one’s sense of fairness … . None of those factors is present here.

The law school’s treatment of [the student] was rational insofar as it was not wholly inconsistent with the school’s approach to rescission of admission in general. The law school states that while it routinely receives, and often grants, requests from enrolled students to amend the criminal history sections of their applications, such amendments usually involve minor offenses such as open container or traffic violations, or small quantity marijuana possession. Amendments are by no means guaranteed – -the law school states that on at least two occasions, when the information contained in the subsequent disclosure would have prevented the individual from being considered for admission, the students’ admission was rescinded.

The law school avers that it has an unwritten policy of not admitting people who sell drugs and that if [the student] had disclosed on his application that his arrest was for the distribution of LSD to an undercover officer and possession with intent to distribute, his application would have been denied during the initial screening process. The school explains that it generally distinguishes between applicants with a history of personal drug use, and those with a history of drug dealing – – the former can be accepted under certain circumstances, but the latter are not. Matter of Powers v St. John’s Univ. Sch. of Law, 2015 NY Slip Op 02799, CtApp 4-2-15

 

 

, ,

Denial of Application for Renewal of General Contractor’s Registration Based Upon a Conviction Which Preceded a Prior Renewal Was Arbitrary and Capricious

The First Department determined the denial of petitioner’s application for renewal of his general contractor’s registration, based upon a conviction which preceded a prior renewal, was arbitrary and capricious.  The court noted that the presumption derived from petitioner’s certificate of relief from disabilities was not rebutted:

Respondent’s determination lacked a rational basis (see CPLR 7803[3]…). Respondent arbitrarily concluded that petitioner’s prior conviction for filing false documents bore a direct relationship to the duties and responsibilities attendant to the general contractor registration, the license for which he sought renewal (see Correction Law §§ 752[1], 750[3]…). * * *

Respondent’s failure to rebut the presumption of rehabilitation deriving from petitioner’s certificate of relief from disabilities also renders its determination arbitrary and capricious … . Matter of Jakubiak v New York City Dept. of Bldgs., 2015 NY Slip Op 02858, 1st Dept 4-2-15

 

Conviction Based Upon a Plea Allocution In Which Defendant Was Not Informed of the Period of Post-Release Supervision Can Not Be Used as a Predicate Violent Felony for Purposes of Sentencing as a Persistent Violent Felony Offender

The Third Department determined a conviction based upon a plea allocution in which defendant was not informed of the period of post-release supervision (PRS) could not serve as a predicate felony for sentencing as persistent violent felony offender:

Defendant challenges the use of his 1999 conviction as a predicate violent felony, asserting that at the time of his plea to that charge he was not informed that the resulting sentence would include a mandatory period of postrelease supervision (hereinafter PRS). “Notwithstanding his failure to appeal from the [1999] conviction, defendant had an independent statutory right to challenge its use as a predicate conviction on the ground it was unconstitutionally obtained” … . It is well established that a court must advise a defendant of the direct consequences of a plea prior to sentencing, specifically including the existence and duration of any PRS requirement … .

Here, the transcript of defendant’s 1999 plea allocution reveals that he was not advised that his plea would result in a mandatory period of PRS. Rather, defendant was first informed about the PRS through the court’s pronouncement of his sentence. Defendant made comments expressing his surprise as to the PRS immediately thereafter, but he was not afforded an opportunity to withdraw his plea, either during his original sentencing or when he was later resentenced to adjust the duration of the PRS to conform with the requirements of Penal Law § 70.45. Given the apparent infirmities in defendant’s 1999 plea allocution, we find that County Court erred in accepting the resulting conviction as a predicate violent felony for the purpose of sentencing defendant as a persistent violent felony offender … . People v Brewington, 2015 NY Slip Op 02805, 3rd Dept 4-2-15

 

Juror Had Personal/Professional Relationships with Two Prosecution Witnesses—For Cause Challenge Should Have Been Granted

The Third Department determined the defendant’s conviction must be reversed because a juror had personal/professional relationships with two of the prosecution witnesses and defendant’s for cause challenge to the juror was denied:

A juror whose relationship with a potential witness is so close “that it is likely to preclude him [or her] from rendering an impartial verdict” (CPL 270.20 [1] [c]) must be excused even if the juror states that he or she can be impartial, because “the risk of prejudice arising out of the close relationship . . . [is] so great that recital of an oath of impartiality could not convincingly dispel the taint” … . In determining whether a relationship is so close as to require disqualification, a court should consider factors “such as the frequency, recency or currency of the contact, whether it was direct contact, . . . the nature of the relationship as personal and/or professional . . . [and] any facet of the relationship likely to preclude the prospective juror from being impartial” … . As to the first witness, a former working relationship, without more, will not necessarily give rise to implied bias requiring disqualification … . Here, however, the juror described the relationship as more than merely professional; he stated that he knew the witness well, had discussed many subjects with him, had strong feelings about him and tended to believe him, and he volunteered that he was concerned as to whether the relationship would affect his judgment. The juror’s longstanding social relationship with the second witness was sufficiently close that the witness was aware that the juror had been called to jury duty on the case he had investigated, and sufficiently current that the juror and witness had spoken only a few days before the trial. Thus, this relationship, like that with the first witness, “was far more than a ‘nodding acquaintance'” … . Failure to excuse the juror could have “create[d] the perception that the accused might not receive a fair trial before an impartial finder of fact” … . Accordingly, based upon these two relationships, defendant’s challenge for cause should have been granted. People v Hamilton, 2015 NY Slip Op 02804, 3rd Dept 4-2-15

 

, ,

Defense Counsel Took a Position Adverse to the Defendant’s—Sentence Vacated

The Third Department determined the defendant’s sentence must be vacated because defense counsel took a position adverse to the defendant re: the defendant’s motion to withdraw his plea:

“It is well settled that a defendant has a right to the effective assistance of counsel on his or her motion to withdraw a guilty plea”… . While defense counsel need not support a pro se motion to withdraw a plea, counsel may not become a witness against his or her client …, make remarks that “affirmatively undermine” a defendant’s arguments …, or otherwise “take a position that is adverse to the defendant” … . Here, when asked to respond to defendant’s pro se motion, counsel advised that, in his opinion, “[County] Court thoroughly explained everything to him . . ., [defendant had] no questions concerning the plea” and that there was no way that he could see that defendant “pleaded without knowing what he was pleading to.” In our view, because counsel’s opinion was adverse to defendant, a conflict of interest arose and County Court should have assigned a new attorney to represent defendant … . People v Prater,2015 NY Slip Op 02806, 3rd Dept 4-2-15

 

Jury Instruction Reversed Burden of Proof—New Trial Ordered

The Third Department determined defendant’s conviction must be reversed because the trial court’s instruction to the jury reversed the burden of proof.  The defendant was accused of killing a pit bull in violation of Agriculture and Markets Law  353(a)(1):

….[D]efendant contends that County Court erred in rendering a supplemental jury instruction that effectively shifted the burden of proof to defendant to prove his own innocence. While defendant failed to preserve this issue through an appropriate objection, given the nature of the challenged instruction, we exercise our interest of justice jurisdiction to take corrective action … . Without question, the People bear the burden of proving a defendant’s guilt beyond a reasonable doubt, and County Court so charged the jury twice before giving the instruction at issue. After receiving a further note from the jury requesting definitions for certain terms, including “depraved” and “sadistic,” the court determined that it would “be beneficial . . . to once again go over the definition of aggravated cruelty.” In doing so, however, the court advised the jury: “Thus, if you find beyond a reasonable doubt that the defendant did not engage in conduct which caused the animal extreme pain or which was not done or carried out in an especially depraved or sadistic manner, you must find the defendant not guilty.” This charge impermissibly shifted the burden of proof by suggesting that defendant needed to prove his innocence beyond a reasonable doubt. Compounding the problem, the charge was rendered shortly before the jury rendered the guilty verdict. In our view, this was a fundamental error, requiring the reversal of the judgment and a new trial … . People v Facey, 2015 NY Slip Op 02810, 3rd Dept 4-2-15

 

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