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Where There Is Evidence, Other than or in Addition to a Chemical Test, of a Blood Alcohol Content, the Jury Can Be Instructed that It May Base Its Verdict on Its Own Finding Re: Blood Alcohol Content

The Court of Appeals determined defendant was not entitled to a jury instruction that a “blood alcohol content of less that .08 is prima facie evidence defendant was not intoxicated” on the basis of her expert's testimony that her blood alcohol content was below .08 at the time she was driving (her subsequent blood alcohol test result was .09).  However, the Court of Appeals explained the defendant could have requested a jury instruction which would allow the jury to find she was not intoxicated if the jury first made the finding her blood alcohol level was below .08:

Since the evidence of her BAC that defendant presented here was not determined by a chemical test but was contained in the opinion of a defense expert, that evidence did not have the “prima facie” effect specified by the statute and defendant was not entitled to the charge she sought.

…It should not be thought, however, that the BAC thresholds specified in Vehicle and Traffic Law § 1195 (2)(A) must be entirely omitted from a jury charge in a common law DWI case or in a driving while ability impaired (DWAI) case brought under Vehicle and Traffic Law § 1192 (1) (“No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol”). It is obvious from Vehicle and Traffic Law §§ 1192 (2) and 1195 (2) that the Legislature has made judgments about the significance of certain statistical thresholds — i.e., that a BAC of .08% or more justifies an inference of intoxication; that a BAC below .08% justifies an inference of non-intoxication; that a BAC above .07% justifies an inference of impairment; and that a BAC equal to or less than .05% justifies an inference that the driver was neither intoxicated nor impaired in her ability to drive. There is no reason why juries should remain unaware of these legislative judgments.

Thus, in this case Town Court should, if it had been requested to do so, have charged the jury in words or substance: If you find that there was less than .08 of one percent by weight of alcohol in defendant's blood while she was operating the motor vehicle, you may, but are not required to, find that she was not in an intoxicated condition. Similarly, in a DWAI case where the defendant proffers evidence other than chemical tests of a BAC at or below .05%, it would be proper to charge: If you find that there was .05 of one percent or less by weight of alcohol in the defendant's blood while she was operating a motor vehicle, you may, but are not required to, find that her ability to operate the motor vehicle was not impaired by the consumption of alcohol. And the People are entitled to a corresponding charge when they rely on evidence other than chemical tests to show that a defendant's BAC was above .08% in a DWI case, or above .07% in a DWAI case.  People v Fratangelo, 2014 NY Slip Op 04041, CtApp 6-5-14

 

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Given the Surrounding Circumstances, the Allegation that the Juvenile Was in Possession of a Machete Was Sufficient to Allege the Juvenile Was in Possession of a “Dangerous Knife” within the Meaning of the Penal Law

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined a juvenile delinquency petition which alleged the juvenile was in possession of a machete sufficiently alleged the statutory element of possession of a “dangerous knife:”

The statute does not define the term “dangerous knife.” In Matter of Jamie D. (59 NY2d 589 [1983]), however, this Court held that the term, as used in the statute, “connotes a knife which may be characterized as a weapon” (id. at 592). We explained that certain knives may fall within the scope of the statute based solely on the knife's particular characteristics. For instance,”a bayonet, a stiletto, or a dagger” would come within the meaning of “dangerous knife” because those instruments are “primarily intended for use as a weapon” (id. at 592-93).

We also explained that other knives, which are designed and primarily intended for use as “utilitarian utensils,” may also come within the statutory language in at least two ways (id. at 593). First, a knife may be converted into a weapon, and second, “the circumstances of its possession, although there has been no modification of the implement, may permit a finding that [*4]on the occasion of its possession it was essentially a weapon rather than a utensil” (id. at 593).

A “machete” is generally defined as “a large, heavy knife that is used for cutting plants and as a weapon” (http://www.merriam-webster.com/dictionary/machete). While a machete has utilitarian purposes, under the circumstances of this case, it would be unreasonable to infer from the statement supporting the petition that respondent was using the machete for cutting plants. Rather, the arresting officer's description of the “machete”, with its 14-inch blade, being carried by respondent late at night on a street in Brooklyn, adequately states “circumstances of . . . possession” (Jamie D. at 593) that support the charge that defendant was carrying a weapon. Matter of Antwaine T, 2014 NY Slip Op 04042, CtApp 6-5-14

 

Court Must Make a Youthful Offender Determination Even When Defendant Waives It

The First Department noted that the sentencing court must consider youthful offender treatment for every eligible youth even where the defendant waives the youthful offender determination as part of a negotiated plea:

…[T]he Court of Appeals in People v Rudolph (21 NY3d 497 [2013]) that CPL 720.20(1) requires “that there be a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forgo it as part of a plea bargain” requires a new sentencing proceeding. Although defendant pleaded guilty to an armed felony, he was potentially eligible under CPL 720.10(3), and he was thus entitled to a determination … . This issue survives defendant’s waiver of his right to appeal … . People v Malcolm, 2014 NY Slip Op 04050, 1st Dept 6-5-14

 

Jury Instructions Which Lumped Counts Together and Did Not Give the Jury the Information Necessary to Distinguish One Count from Another Mandated a New Trial

The Second Department determined a new trial was required because the jury instructions were defective.  The court lumped counts charging the same crime together when explaining the elements, but did not give the jury any indication how the counts differed from one another.  The jury was given no indication which counts implicated defendant as an accessory and which counts implicated defendant as a principal:

We agree with the defendant that the charge, as given, suggested that if the jury found the defendant guilty of any one of the subject counts, it should find him guilty of all three counts. Furthermore, because the court’s charge failed to define the counts in a way that would distinguish them from one another, the jury could not have known which count was based on a finding that the defendant had engaged in sexual intercourse with the complainant and which count was based on accessorial liability and a finding that the codefendant had engaged in sexual intercourse with the complainant. Contrary to the People’s contention, parenthetical notations on the verdict sheet cannot supplant a court’s duty to charge the jury as required by CPL 300.10(4). Since it is not possible to determine whether the jury here actually found that the defendant had himself engaged in sexual intercourse with the complainant or that he had acted as an accessory to the codefendant’s sexual intercourse with the complainant, the defendant is entitled to a new trial on those charges … . People v Jadharry, 2014 NY Slip Op 04028, 2nd Dept 6-4-14

 

Warrantless Entry Justified by Exigent Circumstances

The Third Department, over a dissent, affirmed County Court’s finding that the warrantless entry of a building was justified by exigent circumstances:

“Appraising a particular situation to determine whether exigent circumstances justified a warrantless intrusion into a protected area presents difficult problems of evaluation and judgment. This difficulty is highlighted by the fact that Judges, detached from the tension and drama of the moment, must engage in reflection and hindsight in balancing the exigencies of the situation against the rights of the accused” … . Pursuant to the emergency exception to the warrant requirement, the police may make a warrantless entry into a protected area if three prerequisites are met: “(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property. (2) The search must not be primarily motivated by intent to arrest and seize evidence. (3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched” … . The requisite reasonable grounds for the belief that an emergency exists must be based upon objective facts, rather than the subjective feelings of the police … . * * *

In our view, the information known to law enforcement rendered it objectively reasonable for the officers to believe that the armed perpetrator could still be inside the building. Although the dissent stresses the fact that the subject building was a multi-family house, thus discounting the officer’s observation of people on the second floor, the evidence adduced at the suppression hearing does not establish that the responding officers had any knowledge of the building’s configuration. To the contrary, both the arresting officer and one of the officers who ultimately entered the apartment testified that, at that point in time, they were unaware of the layout of the building. While further investigation and consideration removed from the exigencies of the situation may have uncovered this fact, “the requirement of reasonable grounds to believe that an emergency existed must be applied by reference to the circumstances then confronting the officer, including the need for a prompt assessment of sometimes ambiguous information concerning potentially serious consequences” … . People v Gibson, 2014 NY Slip Op 03877, 3rd Dept 5-29-14

 

Violation of Defendant’s Right to Remain Silent Was Harmless Error—Elements of “Extreme Emotional Disturbance” Defense to Murder Explained

The Third Department, over a dissent, determined that the error in eliciting testimony, in violation of defendant’s post-Miranda right to remain silent, about defendant’s failure to apprise law enforcement that he shot the victims while under extreme emotional disturbance, was harmless error.  The decision includes a detailed discussed of the relevant criteria for “extreme emotional disturbance:”

As the Court of Appeals has instructed, the extreme emotional disturbance defense is comprised of both subjective and objective elements. “The subjective element focuses on the defendant’s state of mind at the time of the crime and requires sufficient evidence that the defendant’s conduct was actually influenced by an extreme emotional disturbance” …, i.e., “that the [defendant’s]; claimed explanation as to the cause of his [or her]; action [was]; not contrived or [a]; sham” … . This subjective element is “generally associated with a loss of self-control” … . The objective element, in turn, “requires proof of a reasonable explanation or excuse for the emotional disturbance . . . [, which]; must be determined by viewing the subjective mental condition of the defendant and the external circumstances as the defendant perceived them to be at the time, however inaccurate that perception may have been, and assessing from that standpoint whether the explanation or excuse for [the]; emotional disturbance was reasonable” … .

To be sure, the extreme emotional disturbance defense “is significantly broader in scope than the ‘heat of passion’ doctrine [that]; it replaced” … and, for that reason, the “[a];ction[s]; influenced by [such defense]; need not be spontaneous” … . “‘Rather, it may be that a significant mental trauma has affected a defendant’s mind for a substantial period of time, simmering in the unknowing subconscious and then inexplicably coming to the fore'” … . That said, evidence demonstrating a defendant’s “high degree of self-control” … , as well as any “postcrime conduct . . . suggest[ing]; . . . that [the defendant]; was in full command of his [or her]; faculties and had consciousness of guilt” … , is entirely inconsistent with an extreme emotional disturbance defense.  People v Pavone, 2014 NY Slip Op 03881, 3rd Dept 5-29-14

 

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Case Summary by Board of Examiners of Sex Offenders and Sworn Felony Complaint Constitute Clear and Convincing Evidence in a SORA Proceeding

The Second Department determined the case summary provided by the Board of Examiners of Sex Offenders and the sworn felony complaint provided clear and convincing evidence of continuing sexual misconduct against the victim:

In establishing a defendant’s risk level pursuant to the Sex Offender Registration Act (hereinafter SORA) (see Correction Law art 6-C), the People bear the burden of establishing, by clear and convincing evidence, the facts supporting the determinations sought (see Correction Law § 168-n[3]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]…). ” In assessing points, evidence may be derived from . . . the victim’s statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders . . . or any other reliable source, including reliable hearsay'” … .

Here, the case summary and the sworn felony complaint constituted “reliable hearsay” (Correction Law § 168-n[3]…)  and provided clear and convincing evidence to warrant the assessment of 20 points under risk factor four, for engaging in a continuing course of sexual misconduct against the victim … .  People v Patronick, 2014 NY Slip Op 03816, 2nd Dept 5-28-14

 

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Evidence Defendant Had Victimized Other Children Justified Upward Departure in SORA Proceeding

The Second Department determined that clear and convincing evidence defendant had victimized other children justified an upward departure in the SORA proceeding:

…[T]he court’s classification of the defendant as a level three sex offender was justified. The People proved by clear and convincing evidence that the defendant had engaged in sexual misconduct with children other than the child whose victimization led to the defendant’s conviction. This constituted aggravating factors of a kind not otherwise taken into account by the guidelines that warranted an upward departure to level three … . People v DeJesus, 2014 NY Slip Op 03815, 2nd Dept 5-28-14

 

“Serious Physical Injury” Element of Gang Assault Not Supported by Legally Sufficient Evidence

The Second Department determined the evidence of the “serious physical injury” element of the gang assault charge was not supported by legally sufficient evidence:

The defendant challenges his conviction of gang assault in the first degree, asserting that the People failed to present legally sufficient evidence that [the victim] suffered a “serious physical injury,” which is defined as “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” (Penal Law § 10.00[10]). * * *

Although [the victim] was stabbed in the right flank, his wounds required no stitches, and there was no evidence that he suffered any permanent damage to his kidney, which suffered a small laceration. Moreover, when he was examined, [the victim] was oriented and alert, able to converse, and had normal vital signs and blood pressure. Further, the only evidence of protracted disfigurement or impairment of health was that he had a scar, which the jury saw, and that he felt pain on the scar. The record, however, includes no description of the scar or what, if any, limitations [the victim] suffered as a result of his injury. Thus, the People failed to adduce legally sufficient evidence that [the victim] suffered a “serious physical injury” within the meaning of Penal Law § 10.00(10), which is an element of gang assault in the first degree … . People v Mazariego, 2014 NY Slip Op 03863, 2nd Dept 5-28-14

 

Defendant’s Refusing to Be Interviewed by the Probation Department Was a Valid Ground for Sentence Enhancement

The Second Department determined the defendant’s refusing to be interviewed by the probation department was a valid ground for a sentence enhancement:

A defendant’s “failure to abide by a condition of a plea agreement to truthfully answer questions asked by [a]; probation department is an appropriate basis for the enhancement of the defendant’s sentence” … . Here, the plea condition requiring the defendant to cooperate with the Dutchess County Office of Probation and Community Corrections (hereinafter the OPCC) was explicit and objective, and the plea allocution reveals that the defendant acknowledged, understood, and accepted such condition … . Accordingly, the Supreme Court properly imposed an enhanced sentence based upon the defendant’s violation of the condition by refusing to be interviewed by the OPCC. People v Mazyck, 2014 NY Slip Op 03864, 2nd Dept 5-28-14

 

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