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Dissenter Would Have Reduced Defendant’s Sentence Because of His Age (15), the Factual Background of the Offense and Defendant’s “Sad Life”

The First Department affirmed the conviction and sentence of a defendant who was 15 years old at the time he pled guilty.  The court determined the sentencing court properly refused to grant the defendant youthful offender status.  The decision is notable for the extensive dissent of Justice Freedman who would have reduced the defendant’s sentence because of his age, the facts of the offense and the defendant’s background.  From the dissent:

I write separately because I believe the current law that allows 15 year olds to be tried as adult criminals, even though they are sentenced as juvenile offenders, belies everything science has taught us about the functioning of the juvenile brain (People v Rudolph, 21 NY3d 497 [Graffeo, J., concurring at 506] [2013]). For that reason, I would reduce the sentence to 2 to 6 years to be served concurrently with the five-year term of defendant’s Kings County sentence, but would not accord defendant the youthful offender treatment that he seeks. * * *

In the 2010 presentence report in the instant matter, the probation department stated that defendant “would benefit from a mental health evaluation and a residential mental health treatment program.” However, the court sentenced him to three to nine and denied youthful offender treatment. In pronouncing sentence here, the court noted that defendant had “a very sad life,” but since he “violated every condition” a sentence near the maximum without youthful offender treatment was warranted. The differences between juvenile and adult criminals were highlighted by the United State Supreme Court in Graham v Florida (560 US 48, 68 [2010] [“(a)s petitioner(s) point out, developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence” and “(a)s compared to adults, juveniles have a lack of maturity and an underdeveloped sense of responsibility. . . . Juveniles are more capable of change than are adults, and their actions are less likely to be evidence of irretrievably depraved character’ than are the actions of adults,” quoting Roper v Simmons, 543 US 551, 569, 570 (2005); see also People v Rudolph, 21 NY3d 506]).  People v Crawford, 2014 NY Slip Op 05364, 1st Dept 7-17-14

 

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Defendant’s Actions In Driving Under the Influence and Causing a Collision Did Not Support Convictions for Offenses Requiring Proof of a Depraved Indifference to Human Life

The Second Department determined that there was insufficient proof of “depraved indifference” to support defendant’s convictions for first degree assault and reckless endangerment stemming from a collision with a vehicle driven by Petrone:

Depraved indifference is ” best understood as an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not'” … . It is embodied in conduct that is ” so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes [serious physical injury to] another'” … .

The issue of whether a defendant possessed a state of mind evincing depraved indifference to human life is highly fact-sensitive, requiring a case-by-case analysis … . Here, the prosecution’s witnesses established that the defendant’s vehicle, without braking, collided into the back of Petrone’s vehicle while both were traveling eastbound in the left lane on Northern Boulevard. The collision was of such force that both vehicles left the roadway and flipped over. Moreover, the testimony of the forensic toxicologist demonstrated that, at the time of the accident, the defendant was significantly impaired due to his ingestion of six different drugs, including methadone. Nevertheless, the evidence of the defendant’s conduct did not support a finding of depraved indifference. The defendant was not driving well in excess of the speed limit, he was not driving the wrong way into oncoming traffic, he had not failed to obey traffic signals, and there was no evidence that he was driving erratically prior to the collision … . Under these factual circumstances, the prosecution failed to establish that the defendant possessed an “utter disregard for the value of human life” or that he “simply [did not] care whether grievous harm result[ed] or not” from his actions … . Consequently, there is simply no “valid line of reasoning and permissible inferences [that] could lead a rational person to the conclusion” … that the defendant acted with depraved indifference to human life when he caused the injuries to Petrone… . People v Jakobson, 2014 NY Slip Op 05354. 2nd Dept 7-16-14

 

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Police Did Not Have Sufficient Information to Justify Request that 12-Year-Old Lift His Shirt–Weapon Recovered After Juvenile’s Refusal (and a Police Pursuit) Should Have Been Suppressed

The Second Department determined the police did not have sufficient information to justify a request that appellant, who was 12 years old, to lift his shirt.  The weapon found on the appellant’s person should have been suppressed:

At issue here is whether the officers could ask the appellant to lift his shirt, even after he refused, and then pursue him as he fled the scene. Based upon a founded suspicion that criminal activity is afoot, the subject may be asked to produce identification …, may be asked whether he has weapons, and may be asked to remove his hands from his pockets … . However, asking a person to open his or her coat is an “intrusive step” which requires sufficient evidence of criminal activity to permit more than an inquiry by the police … . Here, the police acknowledge they did not see an object until they took their “intrusive step” of demanding that the appellant lift up the front of his shirt after he refused to do so, whereupon a police officer pursued him with his gun drawn.

The appellant had the “right to be let alone” … . The police may lawfully pursue an individual if they have a reasonable suspicion that he or she has committed or is about to commit a crime … . However, in this case, the police only acquired a basis to pursue the appellant after they took the intrusive step of demanding that he raise the front of his shirt and saw the butt of a gun. Since the pursuit of the appellant was unlawful, the gun which he abandoned in response to the pursuit should have been suppressed… . Matter of Shakir J, 2014 NY Slip Op 05336, 2nd Dept 7-16-14

 

Dissenters Would Have Reduced the Defendant’s Sentence—Defendant Was 16 Years Old at the Time of the Offenses and Was Offered a Lower Sentence as Part of a Plea Bargain

Although the Fourth Department affirmed defendant’s conviction and sentence, two dissenting justices would have reduced the defendant’s sentence.  The dissenters noted that the defendant was 16 years old at the time of the offenses and there was a great disparity between the sentence after trial and the sentence offered as part of a plea bargain.  People v Angona, 2014 NY Slip Op 05257, 4th Dept 7-11-14

 

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Insufficient Proof of Value of Stolen Property, Evidence of Prior Crimes Improperly Admitted, Identification Testimony Improperly Admitted, Prosecutor Improperly Vouched for Witnesses—New Trial Ordered

In reversing the defendant’s grand larceny conviction, the Fourth Department determined the evidence of the value of the property was “conclusory” consisting only of “rough estimates” and was therefore legally insufficient.  The court also determined evidence of uncharged crimes and identification testimony should not have been admitted, and noted the prosecutor improperly vouched for the credibility of prosecution witnesses. With respect to the uncharged crimes and identification evidence, the court wrote:

…[W]e agree with defendant that County Court erred in allowing the People to introduce evidence concerning an uncharged burglary to prove his identity as the perpetrator of the burglary and petit larceny charged in the indictment. The instant crime is “not so unique as to allow admission of evidence of the [uncharged burglary] on the theory of the similarity of the modus operandi” … . The court further erred in admitting the testimony of a witness who identified defendant in an out-of-court photo array procedure and thereafter identified him in court. The People failed to satisfy their obligation pursuant to CPL 710.30 inasmuch as no statutory notice was given by the People with respect to their intent to offer “testimony regarding an observation of the defendant at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such” (CPL 710.30 [1]…). The errors in admitting evidence of the uncharged burglary and the identification of defendant are not harmless, considered singularly or in combination, inasmuch as the proof of defendant’s guilt is not overwhelming, and there is a significant probability that the jury would have acquitted defendant had it not been for either of the errors… . People v Walker, 2014 NY Slip Op 05254, 4th Dept 7-11-14

 

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Claimant’s Inculpatory Statement Demonstrated to Be Product of Police Misconduct

Fourth Department affirmed the judgment against the state for wrongfull conviction and imprisonment.  After nine years of imprisonment for attempted murder, another came forward and credibly confessed to the crime.  The claimant was released and sued the state.  The state argued on appeal that, because the claimant made an inculpatory statement, the proof that he did not bring about his own conviction was insufficient.  In rejecting that argument, the court explained:

Claimant consistently maintained his innocence and contended that his inculpatory statement was coerced. “[A] coerced false confession does not bar recovery under section 8-b because it is not the claimant’s own conduct’ within the meaning of the statute” … . It is well settled that “[t]he voluntariness of a confession can only be determined through an examination of the totality of the circumstances surrounding the confession” … . “Relevant criteria include the duration and conditions of detention, the manifest attitude of the police toward the detainee, the existence of threat or inducement, and the age, physical state and mental state of the detainee” … . The use or misuse of a polygraph examination is also a factor to be considered in determining whether there was impermissible coercion … .

Here, we conclude that the record fully supports the court’s determination that claimant’s inculpatory statement was the product of police misconduct … . Claimant was awake for 34 hours before making his only inculpatory statement, which was the second statement he made. He had been interrogated for 15 hours in a six- by eight-foot windowless room. He ate nothing and drank only one can of soda and, although he was a heavy smoker, he had no cigarettes in the prior four or five hours. He remained under the severe emotional trauma of having seen his wife in a horrible bloodied and battered condition. Claimant was advised that, if he took a polygraph exam and passed, he would be permitted to go home.

Notably, the polygraph operator expressed significant concern to fellow officers about the reliability of the polygraph exam because claimant was “somewhat physiologically unresponsive to the polygraph.” Gristwood v State of New York, 2014 NY Slip Op 05259, 4th Dept 7-11-14

 

Even In a Nonjury Trial, a Defendant Should Not Be In Shackles Unless Reasons Are Placed on the Record

The Third Department found the error harmless, but it noted that, even in a nonjury trial, the defendant should not be in shackles in the courtroom unless reasons for the restraint are put on the record:

Even in a nonjury trial, a defendant should not remain restrained in the courtroom unless the trial court sets forth particularized reasons for such restraint on the record … . People v Whitehead, 2014 NY Slip Op 05213, 3rd Dept 7-10-14

 

Alleged Error Did Not Raise a Question of Jurisdiction or Constitute a Constitutional Defect—Therefore the Alleged Error Did Not Survive the Guilty Plea

The Third Department described the types of fundamental errors which survive a guilty plea. The prosecutor’s alleged failure to inform the grand jury of defendant’s request to call witnesses in not one of them:

By his plea of guilty, defendant forfeited this argument. “As a rule, a defendant who in open court admits guilt of an offense charged may not later seek review of claims relating to the deprivation of rights that took place before the plea was entered” … . As relevant here, a claim “that the District Attorney did not inform the grand jury of defendant’s request to call witnesses to testify on his behalf as required by CPL 190.50 (6) . . . does not activate a question of jurisdiction or constitute a constitutional defect and, thus, does not survive a guilty plea” … . People v McCommons, 2014 NY Slip Op 05215, 3rd Dept 7-10-14

 

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Proof of “Physical Injury” Was Legally Insufficient

The Second Department determined the “physical injury” element of robbery in the second degree had not been proven:

“Physical injury” is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). The subject complainant testified that he sustained an injury to his left ring finger after he was attacked from behind and fell to the ground. The complainant went to the hospital after the incident, where his bruised finger was bandaged and placed in a splint, but X rays revealed no broken bones and there was no evidence presented that he was prescribed pain medication. A “bruise” was still present four years after the incident, but the complainant only testified generally that he felt pain on his hand and arms immediately after the incident, and he did not testify that the injury limited or diminished his ability to use his finger for any length of time. Under these circumstances, there was insufficient evidence from which a jury could infer that the complainant suffered substantial pain or impairment of physical condition … . People v Boney, 2014 NY Slip Op 05197, 2nd Dept 7-9-14

 

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Off-Duty Corrections Officer Was Not Acting Within the Scope of His Employment When Decedent Was Shot

The Second Department determined that an off-duty corrections officer (Maldonado) was not acting within the scope of his employment when he shot and killed a man:

“Under the doctrine of respondeat superior, an employer can be held vicariously liable for the torts committed by an employee acting within the scope of the employment” … . “An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of his [or her] employer, or if his [or her] act may be reasonably said to be necessary or incidental to such employment” … . However, an employer may not be held vicariously liable for its employee’s alleged tortious conduct if, at the time of the underlying incident, the employee was acting solely for personal motives unrelated to the furtherance of the employer’s business … .

Here, the claimant’s decedent was shot by an off-duty New York State Corrections Officer, Emilio Maldonado, after a dispute. The record showed, inter alia, that Maldonado was assaulted by the claimant’s decedent and his brother following a traffic dispute. At the time of the incident, Maldonado was driving his personal vehicle, and was accompanied by family members. He was carrying his own privately-owned weapon as well as a badge. * * *

Although Maldonado testified in a related criminal action that he intended or planned to “cuff” and detain the assailants, it is undisputed that he never took any affirmative steps toward effecting a detention. In particular, he did not order the assailants to halt, and he did not physically attempt to handcuff or detain them. It is also undisputed that after the shooting, Maldonado did not attempt to detain the fleeing assailants. Under these circumstances, the claimant failed to raise a triable issue of fact as to whether Maldonado acted within the scope of his official duties… . Wood v State of New York, 2014 NY Slip Op 05173, 7-9-14

 

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