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Defendant Was Convicted of Bribing Three Witnesses to Recant their Statements Identifying Defendant’s Brother as the Shooter in a Killing;

Evidence of the Murder of Another Witness Who Identified Defendant’s Brother as the Shooter, Evidence which Was Not Linked by Trial Evidence to the Defendant But which Was Likely to Raise Suspicion About the Defendant’s Involvement, Was Allowed in Defendant’s Bribery Trial to Explain the Subsequent Actions of the Three Witnesses Defendant Was Accused of Bribing

The Second Department, over a substantial dissent, determined defendant was not deprived of a fair trial by the introduction of evidence of a murder which was not tied to the defendant, but which may have raised serious questions about the defendant’s involvement in the minds of the jurors.  The defendant was accused of bribing three witnesses who had identified defendant’s brother as the shooter in a killing which  took place in a park. That shooting was witnessed by three teen-aged girls and a man named Gibson. The defendant met with all three girls and paid them money.  They all recanted their statements about defendant’s brother’s involvement in the park shooting. On the day before defendant’s brother’s trial, Gibson was shot and killed.  A man confessed to that shooting and the defendant was never linked to the Gibson killing. Evidence of the Gibson killing was allowed in evidence to demonstrate the state of mind of the three teen-aged girls who, after learning of Gibson’s killing, recanted their recantations and stood by their original statements identifying the defendant’s brother as the park shooter.  The court determined the evidence of the Gibson killing was not Molineux evidence because the jury was never told of any link between the Gibson killing and the defendant.  Therefore, the court reasoned, the Gibson killing was not a prior uncharged crime or bad act done by the defendant.  The court, however, seemed to use the analysis required under Molineux and found that the evidence of the Gibson killing was admissible to explain the girls’ actions and to explain why they and their families were relocated after the Gibson killing:

Evidence of uncharged crimes is generally excluded under the Molineux rule (People v Molineux, 168 NY 264) for policy reasons, because such evidence may induce the jury to base a finding of guilt on collateral matters, or to convict a defendant because of his or her past criminal history … . Nevertheless, evidence of prior uncharged crimes may be received if it is relevant to some issue other than the defendant’s criminal disposition … . The purposes for which uncharged crime evidence may properly be admitted include completing the narrative of the events charged in the indictment and providing necessary background information … . “Where there is a proper nonpropensity purpose, the decision whether to admit evidence of the defendant’s prior bad acts rests upon the trial court’s discretionary balancing of probative value and unfair prejudice” … .

However, “[t]he Molineux rule was created to address a particular prejudice inherent to a particular type of proof: evidence of a defendant’s prior crimes and bad acts” … . That type of prejudice is not present in this case, because evidence that Gibson was murdered two days before he was scheduled to testify against Sykes did not constitute proof that the defendant committed an uncharged crime or bad act. * * *

Even if the evidence of Gibson’s death could arguably be viewed as suggesting that the defendant committed an uncharged crime, it was properly admitted to explain why the girls, having recanted their original statements identifying [defendant’s brother] as [the park] killer, admitted to the police that they had made false recantations, and adhered to their original statements. Indeed, two of the girls testified that Gibson’s murder, two days before the presentation of evidence in the [defendant’s brother’s] trial was to begin, frightened them. The impact of Gibson’s murder on the state of mind of these witnesses was interwoven with the narrative of the charged crimes, and necessary to help the jury understand the case in context, because it explained the girls’ conduct in coming forward to disavow the recorded statements … .   People v Harris, 2014 NY Slip Op 03532, 2nd Dept 5-14-14

 

Rape and Incest Counts Rendered Indictment Multiplicitous/Trial Testimony Rendered Counts Duplicitous

The Second Department determined the trial testimony rendered some of the rape and incest counts duplicitous.  The defendant’s daughter testified she was raped once a week for three weeks every month.  The court determined that where the jury found the defendant guilty of all three crimes charged within a particular month, the counts were not duplicitous because the jury would have had to vote unanimously on all three crimes.  However, where the defendant was convicted of only one or two of the crimes charged for a particular month, it was impossible to know whether the jury voted unanimously on the same alleged crimes.  In addition the court noted that some of the counts charging rape and incest were based on the same conduct, rendering the indictment multiplicitous as well:

“Each count of an indictment may charge one offense only” (CPL 200.30[1]). A count that, in violation of the statute, charges more than one offense, “is void for duplicity” … . “The proscription against duplicitous counts . . . seeks [inter alia] to prevent the possibility that individual jurors might vote to convict a defendant of that count on the basis of different offenses,’ in effect, permitting a conviction even though a unanimous verdict was not reached”… . “Where a crime is completed by a discrete act, and where a count in the indictment is based on the repeated occurrence of that act over a course of time, the count includes more than a single offense and is duplicitous” … . “Even if a count is valid on its face, it is nonetheless duplicitous where the evidence presented to the grand jury or at trial makes plain that multiple criminal acts occurred during the relevant time period, rendering it nearly impossible to determine the particular act upon which the jury reached its verdict” … .

The younger daughter testified that the defendant had sexual intercourse with her once, on Tuesday or Wednesday, every week for the first three weeks of each month during the period at issue, while skipping the fourth week, because she was menstruating. The verdict sheet presented to the jury contained three counts for each month at issue. The first count for each month described the alleged crime as occurring on or about the first of the subject month to on or about the last day of the month. The second count for each month provided the same description as the first count for each month, but also stated that the alleged crime was “separate and distinct from the act mentioned and described” in the first count for that month. The third count provided the same description as the first count for each month, but also stated that the alleged crime was “separate and distinct from the acts mentioned and described” in the first and second counts for that month.

Contrary to the defendant’s contention, where the jury convicted the defendant of all three of the counts for the same month, it is clear, based on the younger daughter’s testimony, that they were unanimous in convicting him of each of the three different crimes. However, as the People correctly concede, where the defendant was convicted of only one or two of the counts charging rape or incest in a particular month, it is impossible to determine whether the jury unanimously found the defendant guilty of the same crime, because neither the wording on the verdict sheet, nor the jury charge, linked “the testimony of vaginal intercourse sequentially or otherwise to the different counts of the indictment”… . People v Jean, 2014 NY Slip Op 03534, 2nd Dept 5-14-14

 

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People Did Not Meet Their Burden of Demonstrating the Legality of the Police Action—Seized Handgun, Identification and Statement Properly Suppressed

The Second Department determined the People did not meet their burden of demonstrating the legality of the police action at the suppression hearing.  The handgun recovered from the defendant’s backpack was properly suppressed:

Where a defendant moves to suppress evidence, the People bear the initial burden of establishing the legality of the police conduct in the first instance, while the defendant bears the ultimate burden of proving, by a preponderance of the evidence, that the challenged evidence should not be used against him or her … . Based on the record before it, the Supreme Court properly suppressed the handgun seized from the backpack in the defendant’s possession, since the People failed to meet their burden of demonstrating the legality of the police conduct. Although the police officers properly initiated a common-law inquiry to obtain explanatory information from a group of six men, which included the defendant, based upon information from an anonymous informant …, reasonable suspicion justifying an intrusive search of the backpack in the defendant’s possession never arose … . Accordingly, the police search of the backpack was improper, requiring suppression of the handgun recovered from the backpack. Additionally, suppression of identification evidence and a statement made by the defendant to law enforcement officials was also required, as such evidence was fruit of the poisonous tree … . People v Nichols, 2014 NY Slip Op 03541, 2nd Dept 5-14-14

 

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Court Should Have Granted an Adjournment in Contemplation of Dismissal In a Juvenile Delinquency Proceeding

The First Department, over a dissent, determined that an adjournment in contemplation of dismissal (ACD) was the least restrictive dispositional alternative in a juvenile delinquency proceeding:

An adjournment in contemplation of dismissal would have been the least restrictive dispositional alternative consistent with appellant’s needs and the community’s need for protection … . This was appellant’s first offense. She admitted the allegations of the petition but asserted, as did her mother, that the incident resulted from her having been bullied by the complainant with no corrective action taken by appellant’s school. While appellant had truancy issues at school, at the time of the disposition she was employed, was being treated for depression, and was generally making progress. Based on all these factors, there is no reason to believe that appellant needed any supervision beyond that which could have been provided under an ACD. It should also be noted that under the terms of an ACD, the court could have required the Probation Department to monitor appellant, and her observance of a curfew and other requirements. Matter of Clarissa V, 2014 NY Slip Op 03431, 5-13-14

 

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Juvenile Delinquency Adjudication Appropriate to Ensure Residential Supervision

The First Department determined Family Court had properly adjudicated the appellant a juvenile delinquent, despite the relatively minor offense, because the appellant was in need of residential supervision:

The court properly exercised its discretion in adjudicating appellant a juvenile delinquent. Although the underlying offense was not serious, appellant was in need of a residential, nonsecure placement under the Close to Home Initiative program. The court properly declined to adjudicate appellant a person in need of supervision … , particularly since appellant had already demonstrated, following a prior proceeding brought by her mother, that such a disposition would not control appellant’s behavior. Accordingly, a juvenile delinquency adjudication was necessary to ensure appellant’s compliance with residential treatment. “[T]he irony is presented that while the court may direct the PINS youth not to abscond, the statutory authority constraining the court essentially precludes an effective remedy should the youth abscond” … . Matter of Amari D, 2014 NY Slip Op 03452, 1st Dept 5-13-14

 

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Aggravated Harassment Statute Unconstitutionally Vague and Overbroad/Criminal Impersonation Statute Encompasses Injury to Reputation

In a full-fledged opinion by Judge Abdus-Salaam, over a partial dissent, the Court of Appeals found the aggravated harassment statute unconstitutionally vague and overbroad, and determined the “injury” contemplated by the criminal impersonation (second degree) statute encompassed injury to reputation.  The defendant's father is a “Dead Sea Scrolls” scholar.  The defendant engaged in an email campaign in which he created emails which purported to be from other “Dead Sea Scrolls” scholars and which had the effect of promoting his father's positions.  The defendant was convicted of criminal impersonation, aggravated harassment, identity theft, forgery and unauthorized use of a computer.  Ultimately the Court of Appeals affirmed convictions for nine counts of criminal impersonation and the forgery counts.  With respect to harassment and criminal impersonation, the court wrote:

A person is guilty [of criminal impersonation in the second degree] when he or she “impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another” (Penal Law § 190.25).  * * *

…[W]e conclude that injury to reputation is within the “injury” contemplated by Penal Law § 190.25. Many people, particularly with a career in academia, as relevant to this case, value their reputations at least as much as their property,[FN2] and we believe the Legislature intended that the scope of the statute be broad enough [*7]to capture acts intended to cause injury to reputation.

Accordingly, a person may be found guilty of criminal impersonation in the second degree if he or she impersonates another with the intent to cause a tangible, pecuniary injury to another, or the intent to interfere with governmental operations … . In addition, a person who impersonates someone with the intent to harm the reputation of another may be found guilty of this crime.

Penal Law § 240.30(1)(a) provides that “[a] person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she . . . communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm.” We agree with defendant that this statute is unconstitutionally vague and overbroad … .

In People v Dietze (75 NY2d 47 [1989]), this Court struck down a similar harassment statute, former Penal Law § 240.25, which prohibited the use of abusive or obscene language with the intent to harass, annoy or alarm another person. We determined that the statute [*8]was unconstitutional under both the State and Federal Constitutions, noting that “any proscription of pure speech must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence” (id. at 52).

The reasoning applied in Dietze applies equally to our analysis of Penal Law § 240.30(1)(a). The statute criminalizes, in broad strokes, any communication that has the intent to annoy. Like the harassment statute at issue in Dietze, “no fair reading” of this statute's “unqualified terms supports or even suggests the constitutionally necessary limitations on its scope” … . People v Golb, 2014 NY Slip Op 03426, CtApp 5-13-14

 

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Pretrial Motion to Dismiss the Accusatory Instrument, Arguing the Facts Alleged Did Not Constitute the Crime Charged, Preserved the Legal-Sufficiency Issue for Appeal, Despite the Absence of a Motion for a Trial Order of Dismissal on the Same Ground

The Court of Appeals, in a full-fledged opinion by Judge Smith, with three judges dissenting, determined defendant's pretrial motion to dismiss the charges, arguing that the facts alleged by the People did not constitute the crime charged, preserved the “legal sufficiency” issue for appeal, despite the absence of a motion for a trial order of dismissal on the same ground. The defendant was charged with trespass and resisting arrest. The defendant had permission to be on the property.  County court had dismissed the trespass conviction, but upheld the resisting arrest conviction.  The Court of Appeals determined the arresting officer, because of prior dealings with the defendant, did not have probable cause to believe the defendant was trespassing, therefore the resisting arrest charge could not stand either.  The bulk of the majority opinion, and both dissenting opinions, dealt with the preservation issue.  The majority took great pains to explain that this holding did not affect the two leading cases concerning the preservation requirements re: the insufficiency of trial evidence (People v Gray, 86 NY2d 10; People v Hines, 97 NY2d 56):

As a general matter, a lawyer is not required, in order to preserve a point, to repeat an argument that the court has definitively rejected … . When a court rules, a litigant is entitled to take the court at its word. Contrary to what the dissent appears to suggest, a defendant is not required to repeat an argument whenever there is a new proceeding or a new judge.

It is true that a challenge to the sufficiency of the accusatory instrument at arraignment is conceptually different from a challenge based on the proof at trial, and that often an issue decided in one proceeding will not be the same as the issue presented in another. But here the issue was the same. People v Finch, 2014 NY Slip Op 03424, CtApp 5-13-14

 

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Courts Charged with Supervising Defendants Found Not Responsible by Reason of Mental Disease or Defect Have the Power To Impose a Condition Allowing the Office of Mental Health to Seek Judicial Approval for a Mandatory Psychiatric Evaluation When the Defendant Does Not Comply with Release Conditions and Refuses to Be Examined Voluntarily

The Court of Appeals, in a full-fledged opinion by Judge Read, over a dissent, determined that a court charged with supervising a defendant who has been found not responsible by reason of mental disease or defect can include in “an order of conditions a provision allowing the [NYS] Office of Mental Health (OMH) to seek judicial approval of a mandatory psychiatric evaluation in a secure facility when a defendant found not responsible by reason of mental disease or defect fails to comply with the conditions of his release and refuses to undergo voluntary examination.”  The appellate division had held that Criminal Procedure Law section 330.20 prohibited the inclusion of such a requirement in an order of conditions:

Section 330.20 mandates an order of conditions whenever a track-one defendant moves from secure to nonsecure confinement, or is no longer institutionalized (Criminal Procedure Law § 330.20 [11], [12]), and allows the court to fashion these orders in whatever way, in its judgment, most effectively protects the public while serving the defendant's interest in remaining in the least restrictive environment possible. “[T]he order of conditions is the vehicle by which the . . . court effectuates its continuing supervisory authority over” a defendant found not responsible for a crime by reason of mental disease or defect … . And while the Commissioner and the district attorney may appeal from an order of conditions, the defendant may not (see Criminal Procedure Law § 330.20 [21]). This insulates the supervising court from a defendant's attempt to argue that a condition, thought by the judge to be a necessary prophylactic measure, excessively restricts his freedom.

Accordingly, section 330.20 authorizes orders that, along with a prescribed treatment plan, include “any other condition which the court determines to be reasonably necessary or appropriate” (Criminal Procedure Law § 330.20 [1] [o] [emphases added]). * * *

The effective-evaluation provision enables OMH to evaluate a track-one defendant who does not comply with court-ordered conditions and refuses to be examined voluntarily. Track-one defendants are released into the community with the express understanding that they may endanger the public and themselves if their mental health declines. Indeed, reported cases illustrate the perils posed when such defendants do not follow the regime designed by mental-health professionals and imposed by courts to safeguard their stability and functioning in the community … . The dangers of noncompliance are exacerbated when a track-one defendant also refuses to submit to a psychiatric evaluation thereby denying vital information to the Commissioner, whom section 330.20 (12) makes responsible for ensuring compliance with orders of conditions issued with release orders. Matter of Allen B v Sprout, 2014 NY Slip Op 03427, CtApp 5-13-14

 

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Response to Sex Offender Treatment Program Must Be “Exceptional” to Warrant Downward Departure (SORA)

The Second Department noted that defendant did not present sufficient support for a downward departure based upon his participation in a sex offender treatment program because the defendant did not establish his response to treatment was “exceptional.” People v Tisman, 2014 NY Slip Op 02913, 2nd Detp 4-30-14

 

Judge’s Statement Defense Counsel Should Confine Her Opening to What She Intended to Prove, Under the Facts, Did Not Shift Burden of Proof

The Second Department determined the trial judge’s admonition to defense counsel to confine her opening statement to what she intended to prove did not shift the burden of proof:

Contrary to the defendant’s contention, the Supreme Court’s admonitions to defense counsel to confine her opening statement to what she intended to prove did not shift the burden of proof. The court thoroughly instructed the jury that the defense did not have to make an opening statement, that the burden of proof remained with the People, and that the defendant had no burden … . Furthermore, the court’s comments did not prevent defense counsel from completing her opening statement, or overly restrict her opening statement … . Under the circumstances of this case, there is no realistic view that the court’s remarks could be interpreted so as to skew the burden of proof .. . The court’s remarks were brief, isolated, and innocuous in context … . People v Robles, 2014 NY Slip Op 02960, 2nd Dept 4-30-14

 

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