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Presentation of Evidence of an Uncharged Offense Without Seeking a Ruling on Its Admissibility in Advance Deprived Defendant of a Fair Trial

The Third Department determined the presentation of evidence of an uncharged sexual offense deprived defendant of a fair trial. Without seeking a ruling in advance, and without presenting an argument why the evidence was relevant to anything other than criminal propensity, the prosecutor presented evidence alleging defendant’s sexual misconduct involving a child other than the victim in the charged offense. In ordering a new trial, the Third Department explained:

It is beyond dispute that evidence of a defendant’s uncharged crimes or prior bad acts cannot be admitted solely for the purpose of proving criminal propensity … . Rather, “evidence of uncharged crimes or prior bad acts may be admitted where they fall within the recognized Molineux exceptions – motive, intent, absence of mistake, common plan or scheme and identity – or where such proof is inextricably interwoven with the charged crimes, provide[s] necessary background or complete[s] a witness’s narrative” …, and the trial court further determines that the probative value of such evidence outweighs its prejudicial effect … . Here, the record does not reflect that the People sought any sort of ruling from County Court regarding the admissibility of defendant’s uncharged crime/prior bad act before eliciting such testimony from the victim’s mother on their case-in-chief …, nor does the record reveal that the People made any attempt to “identify some issue, other than mere criminal propensity, to which the evidence [was] relevant”… . People v Brown, 105062, 3rd Dept 2-20-14

 

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Questioning of Defendant Did Not Constitute “Custodial Interrogation”

The Third Department determined County Court should not have suppressed defendant’s statements as the product of custodial interrogation. The police investigation had led to defendant’s IP address being associated with accessing child pornography on the Internet. The investigator went to defendant’s place of employment and asked the defendant to accompany him to the police station, which the defendant agreed to do:

The testimony … revealed that defendant was brought to a room at the police station where he was interviewed for a total of no more than 30 minutes. During the brief period that preceded the Miranda warnings, defendant was not handcuffed or restrained in any manner and the investigators did not do anything to convey that defendant was not free to leave … . Moreover, the two questions that preceded the Miranda warnings – the first asked defendant for his address and the second inquired into defendant’s Internet service – were investigatory, as opposed to accusatory. Considering the totality of the circumstances, and in light of County Court’s determinations that [the interrogating officer] was “frank, candid, and trustworthy and [that] his testimony had the general force and flavor of credibility,” we find that the People met their burden of establishing beyond a reasonable doubt that defendant’s pre-Miranda statements were not the product of a custodial interrogation… . People v Henry, 106048, 3rd Dept 2-20-14

 

Handling Of Consecutive Sentences Under the Drug Law Reform Act Explained

Finding the resentence excessive, the Second Department reduced defendant’s resentence under the Drug Law Reform Act (DLRA) from five consecutive 20-year terms to five consecutive 15-year terms, noting that because the original sentence (five 25-to-life terms) was consecutive, the terms imposed under the Drug Law Reform Act must also be consecutive:

Here, the defendant sought to be resentenced for the convictions of criminal sale of a controlled substance in the first degree, for which he had originally received consecutive sentences amounting to a total aggregate term of imprisonment of 125 years to life. Although the Supreme Court correctly observed that it was powerless, under the DLRA, to alter the defendant’s sentence so that the five terms of imprisonment imposed for the convictions of criminal sale of a controlled substance in the first degree run concurrently with each other …, it was nevertheless permitted to “consider any facts or circumstances relevant to the imposition of a new sentence” (L 2004, ch 738, § 23…). Accordingly, under the circumstances, in evaluating the appropriate terms of imprisonment to impose upon resentencing, the Supreme Court should have considered the fact that the sentences that were originally imposed for the convictions of criminal sale of a controlled substance in the first degree were directed to run consecutively to each other … . Here, since the resentences imposed by the Supreme Court were required to run consecutively with each other, the total aggregate term of imprisonment for the convictions of criminal sale of a controlled substance in the first degree still amounted to 100 years in prison. * * *Under the circumstances of this case, including the fact that the courts are constrained from giving effect to the ameliorative purpose of the DLRA by directing resentences to run concurrently with each other when they were originally directed to run consecutively …, we conclude that the resentence imposed was excessive to the extent indicated… . People v Cole, 2014 NY Slip Op 01182, 2nd Dept 2-19-14

 

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Re: A Mental Hygiene Law Civil Commitment Proceeding for a Sex Offender, Failure to Give the Jury an Adequate Explanation of the Meaning of “Sex Offense” May Have Resulted in an Unsupported “Mental Abnormality” Finding

The Second Department determined the trial court committed reversible error by not, upon defense counsel’s request, giving a further instruction to the jury on the meaning of “sex offense” as part of the jury charge on mental abnormality. The jury found the appellant had committed a sexually motivated felony and suffers from a mental abnormality (re: civil commitment of a sex offender under the Mental Hygiene Law). The appellant had pled guilty to the burglary of a woman’s home. During the burglary the appellant allegedly had “touched that woman’s vagina and buttocks with a hard object.” At the “Mental Hygiene Law” trial, the State presented evidence of appellant’s sexual behavior in prison which did not constitute a sex offense enumerated under the Mental Hygiene Law. The jury may not have understood how to evaluate the “unenumerated” behavior under the Mental Hygiene Law:

Here, the State’s evidence consisted predominantly of instances of the appellant’s sexually inappropriate acts that would not constitute sex offenses under Mental Hygiene Law article 10. Specifically, the State’s expert testified at length regarding instances in which the appellant masturbated while he could be observed by prison officers or by staff members while placed at a secure treatment facility, and his propensity to continue to act in a sexually improper manner. The appellant’s conduct, however, at most, might constitute the crime of public lewdness (Penal Law § 245), a class B misdemeanor, which is not one of the sex offenses enumerated under Mental Hygiene Law article 10. In light of the particular circumstances presented in this proceeding, the Supreme Court should have granted the appellant’s request to issue an expanded charge to the jury containing supplemental information as to the specific statutory meaning of “sex offense,” so that the jury could make a proper evaluation of the evidence.…

[T]he Supreme Court’s failure to either provide the statutory definition of “sex offense” under Mental Hygiene Law article 10 or to inform the jury that there is a distinction between a predisposition to commit a “sex offense” and a predisposition to commit nonenumerated acts of sexual misconduct could have misled the jury into making a finding of mental abnormality, based solely upon the evidence of the appellant’s predisposition to commit any improper sexual conduct. Consequently, a new trial is required … . Matter of State of New York v Adrien S, 2014 NY Slip Op 01175, 2nd Dept 2-19-14

 

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No Prejudice from Loss of Hand-Written Police Report (Rosario Material)/Trial Judge Did Not Abuse Discretion In Denying Request for Adverse Inference Jury Charge

In a full-fledged opinion by Judge Read, over a dissent, the Court of Appeals determined the trial judge did not abuse his discretion by failing to give the adverse inference charge with respect to a hand-written police report (“scratch 61”) which could not be located. The opinion explains the history of the sanctions appropriate when Rosario material is not turned over to the defense. With respect to nonwillful loss or destruction of Rosario material, the court explained the defendant must demonstrate prejudice, not demonstrated under the facts here:

…[O]ur rule is clear: nonwillful, negligent loss or destruction of Rosario material does not mandate a sanction unless the defendant establishes prejudice … . If prejudice is shown, the choice of the proper sanction is left to the sound discretion of the trial judge, who may consider the degree of prosecutorial fault … . The focus, though, is on the need to eliminate prejudice to the defendant … . Here, defendants did not establish prejudice, as is their burden. Defendants fault the trial judge for not analyzing prejudice when he denied their request for an adverse inference charge, but they did not even mention the word. … The judge essentially (and correctly) ruled that inadvertent loss alone was insufficient to require a sanction. Of course, it is difficult to imagine how defendants might have been prejudiced by the loss of the scratch 61, as the defense attorneys and the judge all no doubt knew. A scratch 61 is a handwritten complaint report that [was] placed in a bin for typing, likely by a civilian employee of the police department. Defendants were provided the typewritten complaint report, which would have differed from the scratch 61 only if the typist made a mistake — i.e., the handwritten scratch 61 is not subject to editing before typing. People v Martinez…, 13, 14, CtApp 2-18-14

 

Attempted Kidnapping Charge Supported by Sufficient Evidence/Defendant Tried to Convince the 10-Year-Old Victim to Take His Keys and Go to His Apartment

The First Department, over a dissent, determined there was sufficient evidence to support the attempted kidnapping charge, in spite of the absence of force. The defendant tried to convince the 10-year-old victim to take his keys and go to his apartment:

The crime of attempted kidnapping in the second degree was established by evidence that defendant intended to secrete or hold the 10-year-old victim in his apartment, a place where she was not likely to be found; that he made efforts to move or confine the victim without consent (see Penal Law §§ 135.00; 135.20); and that defendant came dangerously near to achieving his objective.The evidence left no doubt that the victim was unlikely to be found had she succumbed to defendant’s pressure to take his keys and go to the apartment. Similarly, the evidence left no doubt that defendant, a “highly-fixated” pedophile, attempted to restrain the victim, i.e. to move her to a different location without the permission of her mother.The dissent, in arguing that the crime was not established because defendant did not grab or unsuccessfully attempt to grab the victim, misconstrues the statutory requirement of restraint. While, with respect to an adult, it is necessary to establish that the movement or confinement was accomplished by “force, intimidation or deception,” the definition of restraint, with respect to a child less than 16 years of age, encompasses movement or confinement by “any means whatever,” including the acquiescence of the child (Penal Law § 135.00[1][b]). In relaxing the requirement with respect to minors, the Legislature recognized that a child is not possessed of the same faculties as an adult and is incapable of consenting to any type of confinement. People v Denson, 2014 NY Slip Op 01141, 1st Dept 2-18-14

 

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“Summary Exhibits” Improperly Admitted Under “Voluminous Writings” Exception to the Best Evidence Rule

The Fourth Department reversed defendant’s conviction finding that summary exhibits were improperly admitted in evidence under the “voluminous writings” exception to the best evidence rule. In addition, the court determined defense counsel was ineffective for failure to review the summary exhibits and object to their admission:

We conclude that the summary exhibits were improperly admitted under the voluminous writings exception to the best evidence rule inasmuch as defendant was not provided with the data underlying those exhibits prior to trial …nor were those exhibits based solely upon information already in evidence … . Defendant was thus denied “a full and fair opportunity” to challenge the accuracy of the summary exhibits… . People v Case, 1310, 4th Dept 2-14-14

 

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Whether an Element of a Crime Has Been Proven Beyond a Reasonable Doubt Can Now Be Determined in a “Weight of the Evidence” Review/Such a Determination Is a Matter of Law Identical to a Determination the Evidence Is Legally Insufficient/After Making Such a “Legal” “Weight of the Evidence” Determination, the Court Is Not Constrained to Dismiss the Indictment As It Is When It Makes a “Factual” Determination a Conviction Is Not Supported by the Weight of the Evidence

In a full-fledged opinion by Justice Scudder, with concurring and dissenting opinions, the Fourth Department reduced defendant’s conviction from murder to manslaughter after applying a “weight of the evidence” analysis. The court explained it is now well-settled that a “weight of the evidence” review may consider whether the elements of the crime were proved beyond a reasonable doubt. Here the court determined there was insufficient evidence of an intent to kill. The stab wounds were inflicted in an attempt to escape the victim’s grasp during an altercation started by the victim. Even though the evidence was analyzed under a “weight of the evidence” review, the court actually concluded the evidence of intent to kill was insufficient as a matter of law. Because a question of law was determinative, the court held that it had the power to reduce the conviction, rather than dismiss the indictment (dismissal of the indictment is the statutory remedy for a “factual” “against the weight of the evidence” finding):

…[I]t is now well established that, “in conducting its weight of the evidence review, a court must consider the elements of the crime, for even if the prosecution’s witnesses were credible their testimony must prove the elements of the crime beyond a reasonable doubt” (Danielson, 9 NY3d at 349). Upon our review of the elements of the crime of murder in the second degree, we conclude that, viewing the facts in the light most favorable to the People, “a jury could [not] logically conclude that the People sustained [their] burden of proof” with respect to the element of intent to kill … . * * *

We therefore conclude that, despite the fact that our review is in the context of a contention that the verdict is against the weight of the evidence, our assessment of the elements of the crime of murder in the second degree under these circumstances is not a determination on the facts (see CPL 470.15 [5]), i.e., a consideration of the “credible evidence, conflicting testimony and inferences that could be drawn from the evidence” (Danielson, 9 NY3d at 349). Instead, our assessment is a determination on the law that the evidence is legally insufficient with respect to the element of intent (see CPL 470.15 [4] [b]).

We respectfully disagree with our dissenting colleague’s conclusion that our review is limited by defendant’s “request for only a weight-based review” and that, based on that request, we must reverse the judgment as against the weight of the evidence and dismiss the indictment. Our conclusion that the judgment should be modified by reducing the conviction to a lesser included offense is supported by our reasoning that a defendant may not usurp our authority to determine the appropriate statutory remedy as set forth in CPL 470.20 by the manner in which he or she challenges the legal sufficiency of the evidence, i.e., within the context of a weight of the evidence contention rather than by an express contention that the conviction is not supported by legally sufficient evidence (see generally Bleakley, 69 NY2d at 495). In other words, we conclude that we are not required to afford the remedy of dismissal of the indictment pursuant to CPL 470.20 (5) merely because defendant’s contention that the evidence of the intent to kill was not proved beyond a reasonable doubt is made in the context of a request for a weight of the evidence review, rather than in the context of a contention that the conviction is not supported by legally sufficient evidence, even if that contention is not preserved for our review. People v Heatley, 1051, 4th Dept 2-14-14

 

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Defendant’s Reaching for Something in His Pocket, Without More, Did Not Justify Police Pursuit

The Fourth Department, over a dissent, determined that the defendant’s reaching for something in his pocket, without more, did not justify police pursuit. Therefore defendant’s suppression motion was properly granted:

Here, although defendant was reaching for his jacket pocket as he walked or ran away from the second officer, neither officer testified that he saw a bulge or the outline of a weapon in defendant’s jacket. Rather, the second officer believed that defendant had a gun only because, in his experience, if an individual pulled vigorously at an object in his or her pocket, but the object did not come out easily, that object usually was a weapon. While we are mindful that an officer may rely on his or her knowledge and experience in determining whether reasonable suspicion exists, we respectfully disagree with our dissenting colleagues that the above circumstances were sufficient to establish the requisite reasonable suspicion “in the absence of other objective indicia of criminality” … . Here, before pursuing defendant, the second officer knew only that defendant was walking across the street in a high-crime area, in the general vicinity of a house where an unnamed person of unestablished reliability claimed to have seen guns, and that, when the police approached, defendant walked or ran away while grabbing at his jacket pocket. We cannot conclude, based on the totality of those circumstances, that the police were justified in pursuing defendant… . People v Ingram, 1115, 4th Dept 2-14-14

 

No Probable Cause for Arrest—Convictions Stemming from Arrest Reversed

The Fourth Department determined the deputy sheriff did not have probable cause to arrest the defendant without a warrant because the defendant had not committed a crime in the deputy’s presence. Therefore all the charges stemming from the illegal arrest were not supported by legally sufficient evidence:

We conclude that the evidence is legally insufficient to establish that the deputy’s arrest of defendant was lawful inasmuch as the deputy lacked reasonable cause to believe that defendant committed an offense in her presence (see CPL 140.10 [1] [a]). Because the arrest was not authorized at its inception, the evidence is legally insufficient to support the conviction of assault, obstructing governmental administration, and resisting arrest …, and reversal therefore is required. People v LaBoy, 96, 4th Dept 2-14-14

 

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