You are here: / Criminal Law
,

Horse Deemed a “Companion Animal”/Aggravated Cruelty to Animals Conviction Upheld

The Third Department affirmed defendant’s convictions, which stemmed from the killing of a horse.  The court determined the horse was a “companion animal” within the meaning of the Agricultural and Markets Law and, therefore, the elements of aggravated cruelty to animals were proven:

…[D]efendant claims that the charge of aggravated cruelty to animals was jurisdictionally defective for failure to allege a material element of the crime, arguing that the horse was not a “companion animal” (Agricultural and Markets Law § 353a [1]…).  However, horses are excluded from the statutory definition of companion animals only when they are “‘[f]arm animal[s]’ . . . raised for commercial or subsistence purposes” (Agricultural and Markets Law § 350 [4]).  Any domesticated animal, including a horse, may be a companion animal where, as here, it is not kept for such purposes and is “normally maintained in or near the household of the owner or person who cares for [it]” (Agricultural and Markets Law § 350 [5] ….  Likewise, there was no jurisdictional defect in the charge of criminal mischief in the second degree by intentionally damaging the property of another, as a companion animal is property (see Penal Law § 145.10…). People v Lohnes, 104483, 3rd Dept 12-19-13

 

, ,

Failure to Call One of the Parties Who Signed a Drug-Analysis Report Did Not Violate the Confrontation Clause/No Evidence the Party Conducted Any Testing or Analysis

The Third Department determined that the Confrontation Clause was not violated because a party [Lafond] who had signed the report identifying the controlled substance defendant was accused of selling did not testify.  The court determined Lafond had nothing to do with the chemical tests and analysis.  The party who actually did the chemical tests and analysis, Brant, testified:

…Brant – the analyst who identified the oxycodone, performed the chemical tests on it, determined the nature of the substance, and authored the report – in fact testified and was subject to crossexamination … .  The report is certified pursuant to CPL 190.30 (2) with the following language: “I, Clifford E. Brant, . . . hereby certify” and then states that it is “my [i.e. Brant’s] report and contains the opinions and interpretations of the examination I performed in the above referenced case” (emphasis added).  Brant also testified that Lafond cosigned the report after an administrative review of it, as required by State Police protocol.  There is no support in the record for the proposition that Lafond examined or analyzed the substance, observed Brant doing so, or was signing the report in that capacity.  Indeed, Brant testified that after he alone performed the forensic chemical testing, he sealed, signed and dated the laboratory bag containing the pill, which remained intact as of the trial, supporting the conclusion that Lafond only read and signed the report after it was completed to ensure that proper procedure was followed …, and she had no role in ascertaining or verifying the identity of the substance in issue.  Thus, the “actual analyst who performed the tests” … and “wr[o]te [the] report[]” … testified.   We find that Lafond, who neither analyzed the substance in issue nor authored the report, was not a “witness” against defendant for purposes of the Confrontation Clause … and, accordingly, no Crawford violation occurred as a result of the People admitting Brant’s report into evidence without calling Lafond to testify. People v Wolz, 104909, 104910, 3rd Dept 12-19-13

 

New Trial Ordered: Juror Found “Grossly Unqualified” by the Trial Judge Should Have Been Dismissed/One Juror Was Absent from the Deliberations for About An Hour

The Third Department ordered a new trial was because one of the juror’s, juror No. 4 should have been dismissed after the trial court determined that the juror was “grossly unqualified,” and because deliberations continued while juror No. 4 was absent from the jury room for about an hour:

“If at any time after the trial jury has been sworn and before the rendition of its verdict, . . . . the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case . . . , the court must discharge such juror” (CPL 270.35 [1]…  ).  “A juror will be deemed to be grossly unqualified to serve only when, after conduct[ing] a probing, tactful inquiry into the specific circumstances, it becomes obvious that a particular juror possesses a state of mind which would prevent the rendering of an impartial verdict” … .  Although the trial court traditionally is accorded “great deference in deciding whether a juror is grossly unqualified” …, inasmuch as juror No. 4 repeatedly expressed her inability to render a decision one way or the other, and County Court expressly found that she was both grossly unqualified to serve and unable to afford either the People or defendant a fair trial, County Court erred in failing to discharge juror No. 4… .

Moreover, even assuming that we discerned no impropriety with respect to juror No. 4’s continued service on the jury, we nonetheless would be compelled to reverse defendant’s conviction and order a new trial, as it is readily apparent from the record that the jury deliberated – on at least one occasion – with fewer than 12 members present.  CPL 310.10 (1) provides, in relevant part, that “[f]ollowing the court’s charge, . . . the jury must retire to deliberate upon its verdict in a place outside the courtroom . . . and must, except as otherwise provided in [CPL 310.10 (2)], be continuously kept together under the supervision of a court officer.”  Consistent with the provisions of CPL 310.10 (2), “[a]t any time after the jury has been charged or commenced its deliberations, and after notice to the parties and affording such parties an opportunity to be heard on the record outside of the presence of the jury, the court may declare the deliberations to be in recess and may thereupon direct the jury to suspend its deliberations and to separate for a reasonable period of time to be specified by the court.”  Additionally, “[b]efore each recess, the court must . . . direct [the jury] not to resume its deliberations until all twelve jurors have reassembled in the designated place at the termination of the declared recess.” * * *

Here … juror No. 4 was absent from the jury room for slightly more than one hour… . People v Cridelle, 104319, 3rd Dept 12-19-13

 

Restitution Hearing Required/Insufficient Proof to Substantiate the Amount/Conclusory Admission by Defendant Not Enough

The Third Department determined defendant was entitled to a restitution hearing, noting that the record did not include proof sufficient to substantiate the restitution amount.  The defendant’s stating a dollar amount, or a conclusory admission of the amount in a plea agreement, is not enough to meet the court’s and the People’s burden:

A restitution hearing “must be held where the record lacks sufficient evidence for a court to determine the amount of restitution ordered or the defendant requests such a hearing” … .  Although a defendant’s statement at the time of the plea or sentencing can constitute sufficient evidence, that statement must include a concession of facts concerning the amount of loss; a defendant merely stating a dollar amount or making a conclusory admission as part of a plea agreement will not satisfy the court’s obligation or the People’s burden … .  At sentencing here, defendant requested a hearing.  Additionally, despite defendant’s plea agreement, including a condition that he pay a specific amount of restitution, the record does not include sufficient proof to substantiate that amount.   Thus, we must remit for a restitution hearing… . People v Johnson, 104064, 3rd Dept 12-19-13

 

, ,

Defendant Entitled to a Hearing on His Motion to Vacate His Conviction/Defendant Alleged He Would Not Have Pled Guilty Absent His Attorney’s Affirmative Misinformation About the Deportation Consequences of the Plea

The Third Department, in a full-fledged opinion by Justice Spain, determined defendant was entitled to a hearing on his motion to vacate his conviction based on the allegation defense counsel gave defendant affirmative misinformation about the deportation consequences of his guilty plea:

Defendant’s motion to vacate sufficiently raises a question as to whether trial counsel provided him with affirmative misinformation regarding the deportation consequences of his guilty plea and adequately alleges facts that, if credited, show a reasonable probability that, but for counsel’s erroneous assurances in this regard, defendant would have insisted on going to trial … . Accordingly, defendant is entitled to a hearing on the issues raised in his CPL 440.10 (1) (h) motion and the order must, therefore, be reversed… . People v Diallo, 104609, 3rd Dept 12-19-13

 

 

,

Prosecutorial Misconduct and Defense Counsel’s Ineffectiveness Required Reversal

The Second Department reversed defendant’s conviction, in the interest of justice, finding the prosecutor’s improper comments during summation deprived defendant of a fair trial. In addition, the Second Department determined defense counsel was ineffective in eliciting inadmissible expert testimony detrimental to the defense and failing to object to the prosecutor’s misconduct:

Re: prosecutorial misconduct during summation, the Second Department wrote:

In summing up, a prosecutor “must stay within the four corners of the evidence and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused” … . At trial, the defendant presented evidence concerning his cooperation with law enforcement authorities in drug cases against the complainants’ mother to establish that the complainants had a motive to fabricate their allegations against him. During summation, the prosecutor improperly referred to such evidence as “an elaborate attempt to distract [the jury] from the real issues in this case” … . The prosecutor also inaccurately stated that the defendant, who had testified on his own behalf, needed “a clarification about which child’s vagina he did or did not touch,” when the defendant, in fact, had asked whether the question concerned his paramour, the complainants’ mother. In addition, the prosecutor made an irrelevant and inflammatory argument intended to convince the jury that the … defendant’s denials of the sexual abuse allegations in the indictment were implicit admissions that he had abused the complainants outside the periods of time designated for the charged crimes … .Furthermore, the prosecutor impugned the defendant’s right to testify and improperly suggested that he lied on the stand, when she referred to him as “an opportunist” who “took the stand, and . . . said what he thought he had to to save himself” … . Finally, the prosecutor impermissibly vouched for the credibility of a witness based on his position as a law enforcement officer … . The cumulative effect of these improper comments deprived the defendant of a fair trial … .

Re: the ineffectiveness of defense counsel, the Second Department wrote:

During cross-examination by defense counsel, the People’s expert on child sexual abuse accommodation syndrome offered testimony that the truthfulness of a child’s disclosure of sexual abuse could be analyzed by looking at whether the content is specific and not age-appropriate knowledge. Despite the fact that this testimony was inadmissible …, and favorable to the People, defense counsel inexplicably asked the expert to elaborate, eliciting highly damaging testimony that a child’s allegations of oral sexual conduct, sexual contact between males, or reciprocal contact would be “rather unique and idiosyncratic,” and more believable than “just a global statement that I was touched.” Thus, defense counsel intentionally elicited inadmissible and unduly prejudicial testimony during cross-examination … . Defense counsel also was deficient in failing to object to the prosecutor’s improper remarks during summation … . The cumulative effect of defense counsel’s errors deprived the defendant of the effective assistance of counsel … . Accordingly, the judgment must be reversed and a new trial ordered for this reason as well. People v Mehmood, 2013 NY Slip Op 08461, 2nd Dept 12-18-13

 

,

Conviction Under Accomplice Liability Theory Reversed After a Weight of the Evidence Analysis

The Second Department reversed defendant’s conviction for criminal sale of a controlled substance under an accomplice liability theory, finding the conviction against the weight of the evidence. The officer who purchased the drugs assumed, based on circumstantial evidence, the drugs were supplied to the seller by the defendant (who was in a vehicle with the seller and a woman) but did not actually see any transaction between the defendant and the seller:

Although the officer testified that, based upon his training and experience as an undercover officer who had made over 500 buys, he believed that the codefendant received drugs from the defendant inside the vehicle, he admitted that he did not observe an exchange of money or drugs between the codefendant and the defendant. People v Curry, 2013 NY Slip Op 08455, 2nd Dept 12-18-13

 

 

,

Abstention from Alcohol While Incarcerated and Exemplary Prison Record Did Not Warrant Downward Departure Re: Sex Offender Status/Basics of Sex Offender Registration Act (SORA) Proceedings Explained In Some Depth

The First Department affirmed the sex offender status determined by Supreme Court, rejecting the arguments that an exemplary prison record and abstention from alcohol during a long incarceration warranted a downward departure.  The court took the trouble to explain some of the basics of a Sex Offender Registration Act (SORA) determination:

In assessing a sex offender’s danger to the community, and therefore, its recommendation to the court hearing a SORA application, the Board of Examiners of Sex Offenders (BOSE) must consider 15 statutory factors, applying them in accordance with the Risk Assessment Guidelines developed to assess an individual applicant’s risk of a repeat offense (Correction Law § 168—l[5]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006]). The evaluation is made using a Risk Assessment Instrument (RAI), identifying each factor which, if applicable, is assigned a numerical value. If a particular factor is not applicable, it is assessed at zero. The values are then tallied, resulting in a recommended risk assessment which is considered as presumptively correct at the SORA hearing before the court … .

One of the factors BOSE considers is “whether the sex offender’s conduct was found to be characterized by repetitive and compulsive behavior, associated with drugs or alcohol” … (Correction Law § 168-1[5][a][ii]). The guidelines clarify that if the individual has a history of drug or alcohol abuse “or was abusing drugs and or alcohol at the time of the offense,” 15 points will be assessed in that category (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15). Pursuant to the guidelines, BOSE or the court may choose to score zero points in this category, if the drug and/or alcohol abuse is “in the distant past, but [the defendant’s] more recent history is one of prolonged abstinence” … .

Since defendant admittedly committed his crime while intoxicated, this alone supports the 15 point assessment made against him in this category … . Thus the issue turns on whether his prolonged abstinence from alcohol use, while incarcerated, provides a basis for a 15 point reduction in this category. We find that it does not.

We have consistently held that even when alcohol use in the commission of the crime is remote in time, and the defendant has abstained from alcohol use for a prolonged period while incarcerated, such remoteness and abstinence are unreliable predictors of the risk for re-offense post-release, or to the threat posed by the sex offender to public safety … .   * * *

The SORA court also providently exercised its discretion in denying defendant’s application for a discretionary downward departure to a level 2 based upon claims that he had an exemplary record while incarcerated, has shown remorse for his crime, and is now a productive member of society * * *.

We emphasize that a SORA risk-level determination is not an extended form of punishment for the sex crime committed, but a collateral consequence of the conviction intended to protect the public at large from the possibility of future crime … . A departure from a sex offender’s presumptive risk level is generally warranted only 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” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4…)… .  People v Watson, 2013 NY Slip Op 08379, 1st Dept 12-17-13

 

,

Police Officers Properly Allowed to Testify About Victim’s Identification of Defendant Shortly After the Crime/Prior Consistent Statements Not Hearsay

In a full-fledged opinion by Judge Smith, over a dissent, the Court of Appeals determined that two police officers, as well as the victim, were properly allowed to testify about the victim’s identification of the defendant shortly after the crime, extending the rule announced by the Court of Appeals in People v Huertas (75 NY2d 487):

Velez [the victim] identified defendant at trial as one of the robbers and also testified, without objection, to a description he had given the police on the night of the crime of a black man “about 5’6, short hair, round face, thick eyebrows” and wearing a white shirt.  The description fits defendant, but in the video the man alleged to be defendant is wearing a blueish-gray shirt.  Velez testified that, before he saw the video, he realized that his description of the shirt was in error, and corrected it.

Two police officers also testified, over objection, that Velez had given a description on the night of the crime. The officers’ accounts of the description were brief, and consistent with Velez’s.  One said that Velez had described a man “between 5’6 to 5’7 in height wearing shorts and . . . a white T-shirt.”  The other said only that Velez had described “a short black male, dark skinned.” * * *

Huertas involved a … prior consistent statement: a witness’s description, given shortly after the crime, of the person who committed it.  Huertas held testimony about a description to be admissible not under any exception to the hearsay rule, but because the testimony is not hearsay at all. It is admitted not for the truth or accuracy of the prior description, but as “evidence that assists the jury in evaluating the witness’s opportunity to observe at the time of the crime, and the reliability of her memory at the time of the corporeal identification” (Huertas, 75 NY2d at 493).  * * *

The issue here is whether the rule of Huertas, like CPL 60.30’s hearsay exception for prior eyewitness identifications, is limited to a witness’s account of his or her own previous statement.  We see nothing to justify such a limitation.  A statement that is not hearsay when the declarant testifies to it does not become hearsay when someone else does so. People v Smith, 226, CtApp 12-17-13

 

,

Defense Counsel Should Have Been Allowed to Refresh Witness’s Recollection With a Prior Statement/Conviction Reversed

In a full-fledged opinion by Judge Smith, the Court of Appeals reversed defendant’s conviction because the trial judge refused to permit defense counsel to refresh a witness’s recollection with the witness’s prior statement.  Defendant had the victim in a headlock during a fight. The victim subsequently died.  A central issue at trial was how long defendant held the victim in a headlock.  One witness (Flynn) gave a statement indicating the headlock lasted 6 to 10 seconds.  The People did not call her.  The defense called her and she testified the headlock could have lasted “a minute or so.”  Defense counsel then attempted to refresh her recollection with her prior statement.  The trial court didn’t allow it, saying the witness had “given no indication she needs her memory refreshed:”

When a witness, describing an incident more than a year in the past, says that it “could have” lasted “a minute or so,” and adds “I don’t know,” the inference that her recollection could benefit from being refreshed is a compelling one.  More fundamentally, it was simply unfair to let the jury hear the “a minute or so” testimony -testimony damaging to the defense, from a defense witness’s own lips — while allowing the defense to make no use at all of an earlier, much more favorable, answer to the same question.  The trial court suggested to defense counsel that this was “an effort to impeach your own witness,” but counsel had not yet got to the point of impeachment; she only wanted to refresh the witness’s recollection.  And in any event, technical limitations on the impeachment of witnesses must sometimes give way, in a criminal case, to a defendant’s right to a fair trial (Chambers v Mississippi, 410 US 284 [1973]). People v Oddone, 236, CtApp 12-12-13

 

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