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Test for Sufficiency of Evidence of Accessorial Liability Is Same As Test for Sufficiency of Circumstantial Evidence

The Second Department upheld Family Court’s juvenile delinquency finding and explained the burden of proof.  The appellant argued on appeal that, although he was present at the robbery, there was insufficient proof he participated in it:

“The evidence supporting a fact-finding in a juvenile delinquency proceeding is legally sufficient if, viewing that evidence in the light most favorable to the presentment agency, any rational trier of fact could have found the appellant’s commission of all the elements of the charged crimes beyond a reasonable doubt” … . The test is no different when the evidence supporting the fact-finding is circumstantial … . Although “[a] person’s mere presence at the scene of the crime, even with knowledge of its perpetration, cannot render him or her accessorially liable for the underlying criminal conduct” …, the complainant’s testimony in this case, when viewed in the light most favorable to the presentment agency, established the appellant’s active participation in the incident. Accordingly, the evidence was legally sufficient … . Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence …, we nevertheless accord great deference to the opportunity of the trier of fact to view the witnesses, hear the testimony, and observe demeanor … . Upon reviewing the record, we are satisfied that the Family Court’s fact-finding determination was not against the weight of the evidence (see Family Ct Act § 342.2[2]…).  Matter of Chakelton M, 2013 NY Slip Op 07484, 2nd Dept 11-13-13

 

Prosecutor’s Circumvention of the Bruton Rule Required Reversal

The Second Department reversed defendant’s conviction because of the misconduct of the prosecutor.  In spite of the pre-trial ruling redacting the confession of the co-defendant pursuant to the Bruton rule (prohibiting the use of a non-testifying codefendant’s confession), the prosecutor repeatedly indicated to the jury that the codefendant had implicated the defendant:

…[D]uring opening statements, the prosecutor told the jury that, after the nontestifying codefendant was arrested, the police learned of the involvement in the crime of someone called “Live,” i.e., the defendant. Thus, the prosecutor improperly implied that the codefendant implicated the defendant in the crime … . In denying the defendant’s mistrial motion based on this conduct, the court nonetheless admonished the prosecutor, … telling him that the court was “not happy with the remarks.”

Despite this admonishment, in summation, the prosecutor again implied that the codefendant had implicated the defendant. Specifically, he unequivocally suggested that the unnamed accomplice referred to in the “question and answer” portion of the statement, whom the codefendant stated had a 9 millimeter gun, was the defendant. Further, the prosecutor projected for the jury, on a video screen, a copy of the codefendant’s statement, with the word “we” highlighted in red, and directly suggested that the jury should draw the inference that “we” in the codefendant’s statement referred to the codefendant and the defendant. Under the circumstances of this case, this conduct constituted “an unjustifiable circumvention” of the Bruton rule …, and deliberate defiance of the pretrial order. People v Singleton, 2013 NY Slip Op 07509, 2nd Dept 11-13-13

 

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Newly Discovered Evidence Required Vacation of Murder Conviction

The Second Department affirmed Supreme Court’s vacation of a murder conviction (pursuant to a CPL 440.10 motion) based upon newly discovered evidence.  At a hearing, the defendant presented evidence calling into question the testimony of two witnesses who had claimed to have seen the shooting:

CPL 440.10(1)(g) provides that a court may vacate a judgment of conviction upon the ground that: “New evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence.” The defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion (see CPL 440.30[6]…). The power to vacate a judgment of conviction on the ground of newly discovered evidence rests within the discretion of the hearing court … . The court must make its final decision based upon the likely cumulative effect of the new evidence had it been presented at trial … .

Contrary to the People’s contention, the Supreme Court properly determined that the defendant satisfied his burden of proof and that the likely cumulative effect of the newly discovered evidence, including the evidence of the broad conspiracy to pay the eyewitnesses to implicate the defendant as the shooter, would have been a verdict more favorable to the defendant … . People v Singh, 2013 NY Slip Op 07508, 2nd Dept 11-13-13

 

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Valid Waiver of Appeal Does Not Preclude Review of Whether Ineffective Assistance Affected Voluntariness of Plea

The Second Department noted that a valid waiver of appeal precludes review of the factual sufficiency of a plea allocution, but does not preclude review of a claim of ineffective assistance where the voluntariness of the plea may have been affected:

The defendant’s valid waiver of his right to appeal precludes review of his challenge to the factual sufficiency of his plea allocution … . While the valid waiver of his right to appeal would typically preclude review of the defendant’s claim that he was deprived of his right to effective assistance of counsel, here, the defendant claims that the alleged ineffective assistance may have affected the voluntariness of his plea, and, as such, his claim is reviewable … . Nevertheless, contrary to the defendant’s contention, his attorney provided him with meaningful representation … . Moreover, the Supreme Court providently exercised its discretion in denying the defendant’s motion to withdraw his guilty plea … . People v Milton, 2013 NY Slip Op 07507, 2nd Dept 11-13-13

 

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Unpreserved Erroneous Denial of Challenge to Juror Required Reversal

The Second Department, in the interest of justice, reversed defendant’s conviction based on the trial court’s (unpreserved) error in denying defense counsel’s challenge to a juror for cause.  (Defense counsel did not challenge the juror on the specific ground raise on appeal):

Here, during voir dire, a prospective juror stated, “[j]ust my upbringing tells me that the police saw fit to arrest and the District Attorney saw fit to prosecute, so that automatically renders my opinion.” The prospective juror never unequivocally stated that his prior state of mind regarding the police and the District Attorney would not influence his verdict, and that he would render an impartial verdict based solely on the evidence. His responses as a whole showed that there was doubt as to his ability to be impartial. Therefore, the trial court erred in denying defense counsel’s application to discharge this prospective juror for cause … . Because defense counsel exercised a peremptory challenge against this prospective juror, and also exhausted his allotment of peremptory challenges, this error cannot be considered harmless … . People v Campbell, 2013 NY Slip Op 07500, 2nd Dept 11-13-13

 

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Defendant Should Have Been Allowed to Present Evidence Relating to Victim’s Recantation at SORA Hearing

The Second Department determined that Supreme Court should have allowed defendant to present evidence (at the SORA hearing) of the victim’s (his daughter’s) recantation of her allegations of sexual abuse, including the testimony of the victim:

The Supreme Court erred in precluding the defendant from offering into evidence affidavits from his daughter recanting the underlying allegations of sexual abuse, and denying the defendant’s motion in limine to permit his daughter to testify at the SORA hearing. At a SORA hearing, “[t]he court shall allow the sex offender to appear and be heard” (Correction Law § 168-n[3]). The People bear of the burden of establishing, by clear and convincing evidence, the facts supporting the assessment of points under the Guidelines issued by the Board of Examiners of Sex Offenders under the Sex Offender Registration Act (see Correction Law article 6-C [hereinafter SORA]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]). The SORA court “shall review any victim’s statement and any relevant materials and evidence submitted by the sex offender and the district attorney and the recommendation and any materials submitted by the board, and may consider reliable hearsay evidence submitted by either party, provided that it is relevant to the determinations” (Correction Law § 168-n[3]). Further, “[f]acts previously proven at trial or elicited at the time of entry of a plea of guilty shall be deemed established by clear and convincing evidence and shall not be relitigated” (Correction Law § 168-n[3]). Here, the only facts elicited at the time of the defendant’s plea of guilty were that, on one occasion, he touched his daughter’s breasts and that he did so for sexual gratification, and therefore he was barred from relitigating those facts in this SORA proceeding (see Correction Law § 168-n[3]). However, the defendant was entitled to rely upon the proffered evidence for the limited purpose of contesting the People’s allegations that he engaged in intercourse with his daughter and that the sexual misconduct was ongoing, which resulted in the assessment of points under risk factors 2 and 4. Since the excluded evidence was relevant to material issues at the hearing (i.e., the nature and duration of the sexual contact), the defendant should have been permitted to introduce it… . People v Holmes, 2013 NY Slip Op 07459, 2nd Dept 11-13-13

 

Consecutive Sentences for Possession of Weapon and the Crime Committed Later with the Weapon Okay

In a full-fledged opinion by Judge Read, the Court of Appeals determined “a sentence imposed for ‘simple’ knowing, unlawful possession of a loaded weapon (i.e., without any intent to use) was properly run consecutively to the sentence for another crime committed with the same weapon.  [The defendants in these cases] completed the crime of possession independently of their commission of the later crimes, and therefore consecutive sentencing was permissible.”  The court explained:

The mens rea for any crime “‘can be formed, and need only exist, at the very moment the person engages in prohibited conduct or acts to cause the prohibited result, and not at any earlier time'” … .  The mens rea for “simple” possession is knowing unlawful possession of a loaded firearm.  So long as a defendant knowingly unlawfully possesses a loaded firearm before forming the intent to cause a crime with that weapon, the possessory crime has already been completed, and consecutive sentencing is permissible.  People v Brown… 199, 200, 201, CtApp 11-14-13

 

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Representation by Counsel on Unrelated Matter Recently Concluded by Conviction Did Not Preclude Defendant from Validly Waiving Right to Counsel

The Fourth Department noted that the representation of defendant by counsel in an unrelated matter which had just been disposed of by conviction did not prevent defendant from validly waiving his right to counsel when interviewed by the police about the instant charge:

“Under New York’s indelible right to counsel rule, a defendant in custody in connection with a criminal matter for which he is represented by counsel may not be interrogated in the absence of his attorney with respect to that matter or an unrelated matter unless he waives the right to counsel in the presence of his attorney” … .  However, “[w]hen the prior charge has been disposed of by dismissal or conviction, the indelible right to counsel disappears and the defendant is capable of waiving counsel on the new charge” … .  Here, a police detective testified at the Huntley hearing that defendant had been sentenced on the unrelated criminal case before the detective questioned him regarding these crimes, and County Court therefore properly determined that the police were not precluded from questioning him regarding the instant crimes … .  We reject defendant’s contention that the right to counsel lasted until at least 30 days after sentencing, to allow for the filing of a notice of appeal … . People v Koonce, 1031, 4th Dept 11-8-13

 

Maximum Sentence Deemed Unduly Harsh and Severe

The Fourth Department determined the imposition of the maximum sentence for criminal possession of a weapon in the second degree (15 years) was unduly harsh and severe:

Defendant has no prior felony convictions, and he served four years in the United States Navy, receiving an honorable discharge.  Also, it is undisputed that defendant did not threaten anyone with the weapon or use it in a violent manner. Although we are mindful that defendant’s actions endangered the lives of innocent people, including the police officers who were pursuing his vehicle, we conclude that the maximum punishment is not warranted. We therefore modify the judgment as a matter of discretion in the interest of justice by reducing the sentence imposed for criminal possession of a weapon in the second degree to a determinate term of imprisonment of 10 years (see generally CPL 470.15 [6] [b]), to be followed by the five-year period of postrelease supervision imposed by the court. People v Atchison, 1091, 4th Dept 11-8-13

 

Temporary Lawful Possession of Weapon Defense Disproved/Justification Defense in Context of Criminal Possession of a Weapon Explained

The Fourth Department determined the evidence was sufficient to disprove defendant’s defense of temporary and lawful possession of a weapon, and explained how the justification defense relates to criminal possession of a weapon:

Even if, as defendant contends, he originally acquired the gun by disarming his alleged assailant in the course of a robbery, we conclude that the evidence is legally sufficient to establish that he thereafter possessed it with the requisite unlawful intent … .  After evading his alleged robber, defendant returned to the scene of the robbery with the gun drawn and fired five shots, one of which struck his alleged assailant in the leg. Defendant then regained possession of his property, a duffel bag containing $27,000 in cash, and fled upon the approach of the police. Such conduct is “utterly at odds with [defendant’s] claim of innocent possession . . . temporarily and incidentally [resulting] from . . . disarming a wrongful possessor”… .

Defendant further contends that he had no duty to retreat, but was justified in acting as he did, because the People failed to prove that he could have retreated with complete safety.  We reject that contention.  It is well settled that the defense of justification, which involves the “justifiable use of physical force” (Penal Law § 35.05 …), does not apply to criminal possession of a weapon … .  Thus, the “duty to retreat” rule, which applies to the defense of justification in connection with the use of deadly physical force (see § 35.15 [2] [a]), is not relevant here. Nonetheless, justification is relevant to a defendant’s intent in using a weapon.  In other words, “[t]he use of a firearm to engage in conduct that is justifiable under the law is not unlawful.  Thus, an intent to use a firearm against another justifiably is not an intent to use it unlawfully” … .  Here, however, the evidence is legally sufficient to establish that defendant “possessed the firearm with the intent to use it against another unlawfully and not solely with the intent to use it justifiably”… . People v Bailey, 1080, 4th Dept 11-8-13

 

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