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THE PRINCIPAL WITNESS AGAINST DEFENDANT IN THIS FIRST DEGREE MURDER (MURDER-FOR-HIRE) TRIAL WAS AN ACCOMPLICE AS A MATTER OF LAW; IT WAS REVERSIBLE ERROR TO FAIL TO SO INSTRUCT THE JURY; ALTHOUGH THE ISSUE WAS NOT PRESERVED, IT WAS CONSIDERED IN THE INTEREST OF JUSTICE; THE DEFENDANT’S ALLEGED SILENCE IN RESPONSE TO AN ACCUSATION (ADOPTIVE ADMISSION) WAS INADMISSIBLE BECAUSE THE PEOPLE DID NOT PROVE DEFENDANT HEARD THE ACCUSATION (SECOND DEPT). ​

The Second Department, reversing defendant’s murder-first-degree conviction and ordering a new trial, determined the jury should have been instructed that the defendant’s paramour, Lovell, who was involved the plot to have the victim killed by a third-party, and who testified against the defendant at trial, was an accomplice as a matter of law. Despite defense counsel’s failure to preserve the error, the issue was considered on appeal in the interest of justice. The Second Department also held that the “adoptive admission” by the defendant should not have been admitted in evidence. It was alleged the defendant remained silent when her mother-in-law accused her of killing the victim. The People did not prove defendant actually heard the accusation:

Supreme Court failed to instruct the jury that Lovell was an accomplice and subject to the statutory corroboration requirement. Although the court was “under a duty to charge . . . even without a request from the defendant … , the rule of preservation requires that defense counsel object to the court’s failure in order to preserve a question of law for appellate review … . Notwithstanding defense counsel’s failure to object at trial, under the circumstances of this case, we reach the unpreserved error in the interest of justice and find that the failure to properly instruct the jury constituted reversible error … …. [T]he evidence of the defendant’s guilt, which consisted principally of Lovell’s testimony, was not overwhelming … . * * *

“To use a defendant’s silence or evasive response as evidence against the defendant, the People must demonstrate that the defendant heard and understood the assertion, and reasonably would have been expected to deny it” … . Here, the People failed to establish that the defendant actually heard the mother-in-law’s accusations or that the defendant had an opportunity to respond to the accusations prior to the mother-in-law disconnecting the phone call. Therefore, the court should not have admitted the evidence. People v Noel, 2022 NY Slip Op 04647, Second Dept 7-20-22

Practice Point: The testimony of defendant’s paramour, who was involved in the murder-for-hire, was the principal evidence against the defendant. The failure to instruct the jury that the paramour was an accomplice as a matter of law whose testimony must be corroborated was reversible error. Although the error was not preserved the Second Department considered it ion appeal in the interest of justice. The defendant’s silence in the face of an accusation (an adoptive admission) should not have been admitted in evidence because the People did not prove the defendant heard the accusation.

 

DEFENDANT WAS ENTITLED TO THE VACATION OF THE SENTENCE FOR THE MURDER OF HIS FATHER’S GIRLFRIEND UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant was entitled to the vacation of his sentence for the murder of his father’s girlfriend pursuant to the Domestic Violence Survivors Justice Act (DVSJA). Defendant was 19 at the time of the killing of his father and his father’s girlfriend, with whom he resided. supreme Court had granted defendant’s motion with regard to the manslaughter conviction for the killing of his father, but denied the motion with regard to the murder conviction for the killing of his father’s girlfriend. The facts are not discussed, but the Second Department found that the facts supported the vacation of the sentence for the murder of father’s girlfriend:

The DVSJA permits courts to impose reduced alternative, less severe, sentences in certain cases involving defendants who are victims of domestic violence … .. The DVSJA sets forth three factors for a court to consider, namely: (1) whether the defendant was a victim of domestic violence inflicted by a member of the same family or household at the time of the offense; (2) whether the abuse was a significant contributing factor to the defendant’s criminal behavior; and (3) whether, having regard for the nature and circumstances of the crime and the history, character, and condition of the defendant, a sentence in accordance with the customary statutory sentencing guidelines would be unduly harsh (see Penal Law § 60.12). The preponderance of the evidence standard applies … . The DVSJA permits the court to impose a less punitive and less harsh sentence without diminishing the seriousness of the offense or finding the crime to have been justified … . People v Burns, 2022 NY Slip Op 04638, Second Dept 7-20-22

Practice Point: Here defendant was 19 when he killed his father and his father’s girlfriend. Based on the facts, which were not discussed, the Second Department determined the sentences should be vacated and defendant should be resentenced pursuant to the Domestic Violence Survivors Justice Act.

 

THE FEDERAL POSSESSION-OF-A-FIREARM-BY-A-FELON STATUTE IS NOT THE EQUIVALENT OF A NEW YORK FELONY BECAUSE THE FEDERAL STATUTE DOES NOT REQUIRE A SHOWING THE WEAPON WAS OPERABLE; DEFENDANT’S SECOND FELONY OFFENDER ADJUDICATION VACATED (SECOND DEPT).

The Second Department, vacating defendant’s second felony offender adjudication, determined the federal possession-of-a-firearm-by-a-felon statute is not the equivalent of a New York felony:

… [T]he defendant should not have been adjudicated a second felony offender on the basis of a prior federal conviction for possession of a firearm by a felon (see 18 USC § 922[g][1]). “An out-of-state felony conviction qualifies as a predicate felony under New York’s sentencing statutes only if it is for a crime ‘whose elements are equivalent to those of a New York felony'” (… see Penal Law § 70.06[1][b][i]). Here, the defendant’s predicate crime does not require as one of its elements that the firearm be operable … and thus, does not constitute a felony in New York for the purpose of enhanced sentencing … . People v Bilfulco, 2022 NY Slip Op 04637, Second Dept 7-20-22

Practice Point: The federal possession-of-a-weapon statute (18 USC 922[g][1]) is not the equivalent of a New York felony because it does not require that the weapon be operable. Therefore that federal statute cannot be the basis for a second felony offender adjudication.

 

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HERE THE APPELLATE COURT SEVERED PORTIONS OF THE SEARCH WARRANT AS OVERBROAD; THE VALID PORTIONS AUTHORIZED A SEARCH OF THE PHONE FOR EVIDENCE OF CHILD ABUSE; THE SEARCH OF THE PHONE AS AUTHORIZED BY THE VALID PORTIONS OF THE WARRANT TURNED UP A VIDEO OF A RAPE; THAT VIDEO WAS PROPERLY SEIZED PURSUANT TO THE PLAIN VIEW DOCTRINE (THIRD DEPT).

The Third Department determined that the search warrant for defendant’s cell phone was overbroad in that it authorized a search for evidence of all the sex offenses listed in Article 130 of the Penal Law. But the portions of the warrant which authorized a search for evidence of sexual abuse and child pornography were supported by probable cause. In searching the phone pursuant to the valid portion of the warrant, the police found a video of defendant committing rape. That video was correctly seized under the “plain view” doctrine:

We agree with defendant’s overbreadth contention only insofar as the affidavit was insufficient to establish probable cause to search defendant’s cell phone and seize evidence related to all of the many crimes classified under Penal Law article 130 … . Notwithstanding that overbreadth, probable cause existed to search and seize photographic and video evidence from defendant’s cell phone related to his alleged June 2018 commission of the crime of sexual abuse in the first degree (see Penal Law § 130.65 [2] …). Furthermore, even though the June 2018 video itself was not child pornography as that term is generally understood under the Penal Law … , it was also reasonable for the issuing magistrate to conclude, based on the affidavit and the content of the June 2018 video, that a search of all data on defendant’s cell phone would yield additional evidence of the crime of sexual abuse, along with crimes classified under Penal Law articles 235 and 263 … . Therefore, because “the warrant [i]s largely specific and based on probable cause” … , we need only sever the overbroad portion of the warrant that directed a search for evidence of Penal Law article 130 crimes other than sexual abuse.

… [O]ur severance decision does not require exclusion of the May 2018 videos allegedly depicting him committing the crime of rape in the first degree because they are not “the fruit[s] of the invalid portion of the search warrant” … .. Rather, we find that those videos were properly seized pursuant to the plain view doctrine, which authorizes law enforcement to seize an item in plain view if “(i) they are lawfully in a position to observe the item; (ii) they have lawful access to the item itself when they seize it; and (iii) the incriminating character of the item is immediately apparent” … . People v Alexander, 2022 NY Slip Op 04585, Third Dept 7-14-22

Practice Point: Here portions of the search warrant for defendant’s cell phone were invalid as overbroad (the warrant authorized a search for evidence of all the sex offenses listed in Article 130 of the Penal Law). The Third Department “severed the overbroad portions” and determined the valid portions authorized the search for evidence of sex abuse. In conducting the search pursuant to the valid portions of the warrant, a video of a rape was found. That video was properly seized pursuant to the plain view doctrine.

 

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THE EVIDENCE OF “WITNESS ELIMINATION MURDER” WAS INSUFFICIENT; THERE WAS NO EVIDENCE THE VICTIM, DEFENDANT’S WIFE, WITNESSED THE DEFENDANT’S SEXUAL RELATIONSHIP WITH HIS DAUGHTER AND NO EVIDENCE DEFENDANT FEARED CRIMINAL PROCEEDINGS WERE IMMINENT; MURDER FIRST DEGREE REDUCED TO MURDER SECOND DEGREE (THIRD DEPT).

The Third Department, over two separate concurrences, determined the evidence that the defendant murdered his wife to eliminate her as a witness was legally insufficient. Therefore defendant’s first-degree murder conviction was reduced to second-degree murder. Defendant was in a sexual relationship with his minor daughter. The People alleged defendant killed his wife to prevent her from testifying about his sexual relationship with his daughter. But there was no evidence defendant’s wife had witnessed the sexual relationship:

There was no evidence that the deceased victim observed defendant and the minor victim engage in sexual relations or sexual conduct, and the minor victim did not disclose the sex offenses to the deceased victim. At most, the deceased victim may have been a “coincidental witness” since she had suspicions of the sex offenses, but she would not have been in a position to provide “powerful, direct evidence” of defendant’s criminal sexual acts … . Second, there was no evidence that defendant feared that criminal proceedings were imminent or that he was otherwise cognizant of the fact that the deceased victim might be called to testify against him. The People point to defendant’s statement — in a recorded jail telephone conversation that took place with his mother after defendant was indicted on murder in the second degree — wherein he states that if the prosecution had recorded his jail telephone conversations with the minor victim after the murder (and thus become aware of the sexual relationship between them), the People would be “using murder one.” In our opinion this conclusory statement does not constitute an admission to witness elimination murder. Aside from its speculative nature, there is simply no evidence in the record that defendant was even aware of the elements of murder in the first degree, let alone that he had this concern at the time of the stabbing. Viewed in the light most favorable to the People, the evidence is simply insufficient to establish a witness elimination murder … . People v Agan, 2022 NY Slip Op 04581, Third Dept 7-14-22

Practice Point: Here two elements of “witness elimination murder” were not supported by legally sufficient evidence. There was no evidence the victim, defendant’s wife, was a witness to defendant’s sexual relationship with his daughter. And there was no evidence defendant feared an imminent criminal prosecution based upon his sexual relationship with his daughter. The first-degree murder conviction was reduced to second-degree murder.

 

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WHERE CONVICTIONS UNDER MULITPLE INDICTMENTS COME UP FOR REVIEW IN THE SAME SORA HEARING, THE BOARD OF EXAMINERS OF SEX OFFENDERS SHOULD PREPARE A SINGLE RISK ASSESSMENT INSTRUMENT ENCOMPASSING ALL THE OFFENSES (SECOND DEPT).

The Second Department noted that where a defendant has been convicted of sex offenses under multiple indictment, Board of Examiners of Sex Offenders (the Board) should create one risk assessment instrument (RAI) for all the offenses:

… [W]here, as here, convictions under multiple indictments come up for disposition at the same SORA hearing, the Board should prepare a single RAI that “should be completed on the basis of all of the crimes” that are the subject of the disposition, considering them all together as the “Current Offense[s]” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5-6 [2006] …), and the court should render a single SORA risk assessment determination … . People v Songster, 2022 NY Slip Op 04570, Second Dept 7-13-22

Practice Points: Where sex-offense convictions under multiple indictments are the subject of the same SORA hearing, the Board should prepare a singe risk assessment instrument (RAI) encompassing all the offenses.

 

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AFTER THE SECOND DEPARTMENT’S VACATION OF DEFENDANT’S “ENDANGERING THE WELFARE OF A PHYSICALLY DISABLED CHILD” CONVICTION (BY GUILTY PLEA) ON “ACTUAL INNOCENCE” GROUNDS WAS REVERSED BY THE COURT OF APPEALS, THE SECOND DEPARTMENT AGAIN VACATED THE CONVICTION ON “INEFFECTIVE ASSISTANCE” GROUNDS; THE MEDICAL RECORDS INDICATED THE CHILD WAS NOT BURNED BY HOT WATER, BUT RATHER SUFFERED AN ALLERGIC REACTION TO MEDICATION (SECOND DEPT). ​

The Second Department, reversing County Court, determined defendant’s motion to vacate her conviction by guilty plea on ineffective-assistance grounds should have been granted. Defendant, a nurse, was accused of endangering the welfare of a physically disabled child by bathing the child in hot water causing thermal burns. This case has a long history, including the vacation of the conviction by the Second Department on the ground of actual innocence. The Second Department was reversed by the Court of Appeals which held the “actual innocence” argument cannot be raised where the defendant has pled guilty. Here the Second Department vacated the conviction again on the ground of ineffective assistance. There was medical evidence which was consistent with the child’s skin condition being caused by a reaction to medication, as opposed to hot water. Defendant’s counsel did not obtain the skin biopsy report, which attributed the skin condition to an allergic reaction to medication, and did not consult a medical expert:

… [D]espite references in the hospital records indicating that a skin biopsy was ordered, the defendant’s former counsel failed to obtain the skin biopsy pathology report, which would have supported the conclusion that the child’s skin condition was caused, not by thermal burns, but by toxic epidermal necrolysis (hereinafter TEN), a condition associated with an allergic reaction to a medication that the child had been taking. In this regard, the pathology report, which was prepared by three pathologists, set forth that the skin biopsies were performed the day after the child was admitted to the hospital, and that the child’s skin condition was “consistent with a diagnosis” of TEN if no oral lesions were present, or Stevens Johnson Syndrome (hereinafter SJS) if associated with oral lesions. An addendum to the report indicated that the clinical data ruled out SJS, and, therefore, implicated TEN as the diagnosis.

The defendant also demonstrated that her former counsel failed to consult a medical expert, or take steps to either seek the services of a court-appointed medical expert, or find a source of funding to secure the services of a medical expert before counseling the defendant to plead guilty. At the hearing, the defendant offered the expert testimony of Bruce Farber, a physician board-certified in the fields of internal medicine and infectious diseases, who reviewed all the medical records, including the subject pathology report. He opined that, based upon his review of medical records, as well as the pathology report, the child’s skin condition was caused by TEN, and not thermal burns. He testified that the medical records, including the hospital chart, showed that the various medical providers, including a pediatrician, emergency room physician, dermatologist, infectious disease expert, and a burn fellow formulated differential diagnoses including SJS, TEN, or staphylococcal scalded skin syndrome, none of which included thermal burns. People v Tiger, 2022 NY Slip Op 04568, Second Dept 7-13-22

Practice Point: Here defense counsel told defendant to plead guilty to endangering the welfare of a disabled child (by bathing the child in hot water), causing burns. But the medical records included a skin biopsy report which indicated the child suffered an allergic reaction to medication, not thermal burns. The failure to investigate the medical records and the failure to consult a medical expert were deemed to constitute ineffective assistance.

 

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THE EVIDENCE OF “PHYSICAL INJURY” WAS LEGALLY INSUFFICIENT; ASSAULT THIRD CONVICTION VACATED (SECOND DEPT). ​

The Second Department, vacating defendant’s assault third conviction, determined the evidence of physical injury was legally insufficient:

… [T]he evidence was legally insufficient to support the defendant’s conviction of assault in the third degree, charged in count 6 of the indictment. The evidence, when viewed in the light most favorable to the prosecution … , was not legally sufficient to establish, beyond a reasonable doubt, that the complainant named in count 6 of the indictment sustained a physical injury within the meaning of Penal Law § 10.00(9). Physical injury is defined as “impairment of physical condition or substantial pain” … . Here, the evidence at trial established that this complainant was attacked and that he suffered bruises to his face and neck. This complainant testified at trial that he was not in pain during the time of the attack and that his bruises lasted a couple of weeks. He did not testify that he was in pain after the attack or that he took any medication or sought medical attention. People v Medina, 2022 NY Slip Op 04566, Second Dept 7-13-22

Practice Point: The complainant testified he was not in pain at the time of the attack and his bruises lasted a couple of weeks. He did not testify that he was in pain after the attack or that he took any medication or sought medical attention. The evidence of “physical injury” was legally insufficient. Defendant’s assault third conviction was vacated.

 

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THE DEFENDANT WAS CHARGED WITH CRIMINALLY NEGLIGENT HOMICIDE BASED UPON STRIKING THE VICTIM WITH HER CAR; IN SUMMATION THE PROSECUTOR CHARACTERIZED DEFENDANT’S ACTIONS AS INTENTIONAL, DENIGRATED THE DEFENSE THEORIES, REFERRED TO IRRELEVANT CONDUCT, AND ASSUMED FACTS NOT IN EVIDENCE; DEFENDANT WAS DEPRIVED OF A FAIR TRIAL BY THE PROSECUTORIAL MISCONDUCT; THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined defendant was deprived of a fair trial by prosecutorial misconduct. Although some of the errors were not preserved, the appeal was considered in the interest of justice:

The charge of criminally negligent homicide arose from an incident in which the defendant, while operating her motor vehicle, struck Evelyn Rodriguez, who had been standing next to the defendant’s vehicle, thereby causing Rodriguez’s death. The remaining charges were related to the defendant’s conduct of removing and damaging certain personal property placed by Rodriguez and her partner, Freddy Cuevas, on the sidewalk outside a residence owned by the defendant’s mother. The items were part of a memorial to Rodriguez’s and Cuevas’s daughter, Kayla, who had been murdered two years earlier and whose body had been discovered on the defendant’s mother’s property. * * *

The prosecutor mischaracterized the evidence relating to the charge of criminally negligent homicide and confused the jury by repeatedly using language to suggest that the defendant’s conduct in striking Rodriguez with the vehicle was intentional or reckless. … [T]he prosecutor used language such as “conscious, blameworthy choices,” “knowingly commit blameworthy acts,” “took a risk that took [Rodriguez’s] life,” “you don’t get to knowingly choose to do something wrong,” “[y]ou don’t get to drive over someone because you feel a mother’s memorial is a nuisance,” and, illogically, “[s]he failed to perceive that risk, and she chose to go ahead anyway” … .

The prosecutor continually denigrated the defense, referring to defense theories, repeatedly, as “excuses,” and also as “garbage,” and he falsely and provocatively claimed that the “defense repeatedly argued that the death of Kayla . . . was an inconvenience and a nuisance” … . The prosecutor continually evoked sympathy for Rodriguez using strong emotional terms, such as referring to her, and to her and Cuevas together, numerous times, as “the grieving mother” and the “grieving parents” and referring to Kayla repeatedly as Rodriguez’s “murdered daughter” or “murdered teenage daughter” … .

… [I]n arguing that the defendant engaged in “blameworthy conduct creating or contributing to a substantial and unjustifiable risk” so as to meet the standard of criminally negligent homicide … , the prosecutor, throughout the course of his summation, referred to conduct not relevant to the driving conduct that formed the basis of the criminally negligent homicide charge. Specifically, the prosecutor encouraged the jury to consider the defendant’s actions in removing the memorial, which he recurrently characterized as “blameworthy,” when determining whether the defendant’s conduct was sufficiently blameworthy to constitute criminally negligent homicide. The prosecutor compounded the prejudicial effect of this error by repeatedly using inflammatory and emotional language, and assuming facts not in evidence, to describe the defendant’s conduct of removing the memorial. People v Drago, 2022 NY Slip Op 04561, Second Dept 7-13-22

Practice Point: Even if the errors are not preserved, prosecutorial misconduct during summation may require reversal. The defendant was charged with criminal negligence, yet in summation the prosecutor kept characterizing her conduct as intentional. In addition, the prosecutor denigrated the defense theories, referred to defendant’s conduct which was not relevant to the charge and assumed facts not in evidence.

 

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A FAMILY OFFENSE PROCEEDING MAY BE BROUGHT IN THE COUNTY WHERE THE FAMILY MEMBER RESIDES, AS WELL AS IN THE COUNTY WHERE THE OFFENSE OCCURRED (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the family offense proceeding should not have been dismissed based on the allegation venue was improper. A family offense proceeding may be brought based upon the residence of the family member, as well as were the offense took place:

A family offense proceeding pursuant to Family Court Act article 8 “may be originated in the county in which the act or acts referred to in the petition allegedly occurred or in which the family or household resides or in which any party resides” … . Here, since the mother resides in Rockland County, the mother commenced this proceeding in a proper venue. Matter of VanDunk v Bonilla, 2022 NY Slip Op 04554, Second Dept 7-13-22

Practice Point: A family offense proceeding may be brought in the county where the family member resides, as well as the county where the offense occurred.

 

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