You are here: / Criminal Law

HERE DEFENDANT SET A FIRE TO CONCEAL EVIDENCE AND WAS CONVICTED OF ARSON AND TAMPERING WITH EVIDENCE; BECAUSE BOTH CHARGES AROSE FROM A SINGLE ACT, THE SENTENCES MUST RUN CONCURRENTLY (THIRD DEPT).

The Third Department determined the sentences for arson and tampering with evidence arose from a single act and, therefore, the sentences must run concurrently. Defendant had participated in tying her disabled child to a bed. When defendant returned home, the child had died. To conceal the evidence, defendant participated in setting the home on fire. Under these circumstances, the arson and tampering with evidence charges arose from a single act:

… County Court should not have imposed consecutive terms of imprisonment upon defendant’s convictions of arson in the third degree and tampering with physical evidence. … “Sentences imposed for two or more offenses may not run consecutively where, among other things, a single act constitutes two offenses” … . Given that the fire admittedly was set to conceal evidence, the arson and tampering with physical evidence convictions necessarily arose from a single act. As a result, although the terms of imprisonment imposed upon such convictions properly ran consecutively to the sentence imposed upon defendant’s conviction of manslaughter in the first degree … , the sentences imposed upon the arson and tampering convictions must run concurrently with one another … , and defendant’s sentence is modified to that extent. People v Franklin, 2022 NY Slip Op 04677, Third Dept 7-21-22

Practice Point: The defendant set a fire to conceal evidence and was charged with and convicted of arson and tampering with evidence. Because both convictions arose from a single act, the sentences must run concurrently.

 

, , ,

ON REMAND FROM THE US SUPREME COURT, THE COURT OF APPEALS FOUND THAT THE VIOLATION OF DEFENDANT’S RIGHT OF CONFRONTATION WAS HARMLESS ERROR (CT APP).

The Court of Appeals, on remand from the US Supreme Court, determined the evidentiary error was harmless and affirmed defendant’s conviction. The defendant was convicted of murder. The plea allocution of Morris, who was initially prosecuted for the same murder (but exonerated by DNA evidence). was allowed in evidence in defendant’s trial, a violation of defendant’s right to confront the witnesses against him. The Court of Appeals held the evidence against defendant was overwhelming rendering the violation of defendant’s right of confrontation harmless:

… “[T]here is no reasonable possibility” that the erroneously admitted plea allocution “might have contributed to defendant’s conviction” (People v Crimmins , 36 NY2d 230, 237 [1975]). The plea allocution neither exculpated Morris nor inculpated defendant as the shooter, thus allowing defendant to argue to the jury that Morris was the perpetrator. Indeed, it merely supported a conclusion that Morris possessed a .357 magnum revolver on the day in question, and [a witness] had already testified to that alleged fact. … [T]he prosecutor’s reliance on the plea was exceedingly minimal. Under these circumstances and in light of the other, overwhelming evidence of defendant’s guilt, the error below was “harmless beyond a reasonable doubt” (id. at 237, citing Chapman v California , 386 US 18 [1967]). People v Hemphill, 2022 NY Slip Op 04663, CtApp 7-21-22

Practice Point: It is worth remembering that even a constitutional error, here the violation of defendant’s right to confront the witnesses against him, is subject to a harmless-error analysis.

 

, , ,

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.

 

,

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.

 

, ,

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.

 

,

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.

 

, ,

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.

 

,

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.

 

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