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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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ALTHOUGH THE ISSUES WERE NOT RAISED ON APPEAL, THE APPELLATE COURT VACATED THE SENTENCES EITHER BECAUSE THE CONCURRENT SENTENCES WERE ILLEGAL OR BECAUSE THE GUILTY PLEAS WERE INDUCED BY THE PROMISE OF ILLEGAL CONCURRENT SENTENCES (FOURTH DEPT).

The Fourth Department, raising issues not raised in the appeals, determined the concurrent sentences imposed by the judge had to be vacated because the judge did not put the reasons for the concurrent sentences on the record. All the sentences were vacated because the guilty pleas were induced by a promise of illegal concurrent sentences:

… [D]efendant committed the crimes to which he pleaded guilty in appeal Nos. 2 and 3 while released on recognizance for the charge to which he pleaded guilty in appeal No. 1, and defendant also committed the crime to which he pleaded guilty in appeal No. 2 while released on recognizance for the charge to which he pleaded guilty in appeal No. 3. Thus, in the absence of a statement of the facts and circumstances warranting concurrent sentences set forth on the record, the court was required to direct that the felony sentences run consecutively (see § 70.25 [2-b] …). …

A court may, in the interest of justice, impose a concurrent sentence for a conviction of assault in the second degree under Penal Law § 120.05 (7), provided that the court sets forth in the record its reasons for imposing a concurrent sentence (see Penal Law § 70.25 [5] [c] …) … [T]he court imposed a concurrent sentence without setting forth its reason on the record.

… [B]ecause defendant’s guilty pleas in appeal Nos. 1 through 5 were all induced by the promise of illegal concurrent sentencing, we must also vacate the sentence imposed in appeal No. 4, and in each of the five appeals we remit the matter to County Court to afford defendant the opportunity to either withdraw his guilty plea or be resentenced in compliance with Penal Law § 70.25 (2-b) and (5) … . People v Horton, 2022 NY Slip Op 04501, Fourth Dept 7-8-22

Practice Point: Sentences for crimes committed when defendant has been released on his own recognizance can not be concurrent unless the judge puts the relevant facts and reasoning on the record. The same goes for assault second. Here the reasons for the concurrent sentences were not put on the record, rendering the concurrent sentences illegal. Because all the guilty pleas were induced by the promise of concurrent sentences, all the sentences were vacated. The “illegal concurrent sentences” issue had not been brought up on appeal.

 

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THE EVIDENCE OF PHYSICAL INJURY WAS LEGALLY INSUFFICIENT; ASSAULT SECOND CONVICTION REDUCED TO ATTEMPTED ASSAULT SECOND (FOURTH DEPT).

The Fourth Department, reducing defendant’s assault second conviction to attempted assault second, determined the proof o physical injury was not legally sufficient:

… [T]he evidence is legally insufficient to establish that he caused physical injury to the victim by means of a dangerous instrument and thus that the conviction of assault in the second degree is not supported by legally sufficient evidence … . The evidence, viewed in the light most favorable to the People … , establishes that defendant attempted to stab the victim and the two struggled over the knife; however, the victim suffered no more than minor cuts to her hands that did not require bandaging and caused only transient pain … . … [T]he evidence is legally sufficient to establish defendant’s guilt of the lesser included offense of attempted assault in the second degree … . People v Lopez-Sarmiento,2022 NY Slip Op 04493, Fourth Dept 7-8-22

Practice Point: Here the evidence the victim suffered “physical injury” as defined in the Penal Law was deemed legally insufficient. The assault second conviction was reduced to attempted assault second.

 

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GIVEN WHAT THE INFORMANT TOLD THE POLICE, THE FACT THAT DEFENDANT GRABBED AT HIS WAISTBAND WHEN THE POLICE APPROACHED HIM ON THE STREET PROVIDED REASONABLE SUSPICION THE DEFENDANT HAD A WEAPON AND THEREBY JUSTIFIED PURSUIT; THE DISSENT ARGUED THE INFORMATION FROM THE INFORMANT WAS NOT ENOUGH BY ITSELF AND THE PEOPLE DID NOT PROVE DEFDENDANT GRABBED AT HIS WAISTBAND BEFORE OR AFTER THE CHASE STARTED (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the police had “reasonable suspicion” to pursue defendant as he fled when the police approached on the street. The defendant discarded a handgun as he fled:

… [P]olice responded to a 911 call that a parolee wanted on an outstanding warrant and who was known to possess guns was a passenger in a certain vehicle. The officers found a vehicle matching the description given by the 911 caller and followed it, losing sight of the vehicle momentarily but then spotting it stopped on a curb with the passenger standing outside the vehicle. As one of the officers exited the police vehicle and began to approach the passenger, the passenger ran away while holding the left side of his waistband and the officer chased after him. …

The court properly determined that the officers had at least an objective, credible reason to approach defendant and request information … . Defendant’s subsequent flight with his hand on his waistband from the approaching officer, combined with the 911 caller’s report about a wanted violent parolee who was potentially armed, and the police officers’ observations confirming the vehicle and suspect descriptions from the 911 call, provided the officers with reasonable suspicion to pursue defendant … .

From the dissent:

The People assert that the court properly determined that the pursuit was justified because, in addition to the information provided by the informant, the arresting officer observed defendant grabbing the front of his pants while running away, as if he had a gun in his waistband. Although defendant’s act of grabbing his waistband increased the degree of suspicion, perhaps even to the level required for pursuit, the evidence at the suppression hearing does not establish whether the arresting officer observed that conduct before or after he gave chase. People v Leonard, 2022 NY Slip Op 04468, Fourth Dept 7-8-22

Practice Point: Coupled with information provided from an informant claiming the defendant had guns and was violent, the defendant’s grabbing at his waistband as the police approached him on the street provided the police with reasonable suspicion the defendant had a weapon, thereby justifying police pursuit when defendant fled. The dissent argued the information from the informant did not provide reasonable suspicion and the People did not prove defendant grabbed at his waistband before he fled.

 

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THE PEOPLE DID NOT PRESENT EVIDENCE OF THE TEMPORAL REQUIREMENTS FOR AN ASSESSMENT OF 20 POINTS FOR RISK FACTOR 4 AND DEFENSE COUNSEL AGREED WITH THAT 20-POINT ASSESSMENT, THEREBY WAIVING ANY OBJECTION TO IT ON APPEAL; DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL; NEW SORA HEARING ORDERED (SECOND DEPT).

The Second Department, reversing the SORA risk level assessment, determined defendant did not receive effective assistance of counsel at the SORA hearing. The People did not present evidence of defendant’s commission of two or more sexual offenses separated by more than 24 hours or three or more over at least two weeks to justify the relevant 20 point assessment (risk factor 4). Defense counsel agreed to that 20 point assessment. Defense counsel contested a different assessment but that argument was deemed to have no merit. Defendant’s counsel was deemed ineffective and a new SORA hearing was ordered:

… [T]he sole argument advanced by the defendant’s assigned counsel, challenging the assessment of points under risk factor 9, was clearly devoid of merit. Counsel then expressly conceded that the points in all other categories had been properly assessed, even though there was at least a colorable argument to be made that the People had failed to establish that the temporal requirements for the assessment of points under risk factor 4 were satisfied …  Contrary to the People’s contention, it cannot be said that such an argument would have had little or no chance of success. Although the case summary established that the defendant committed multiple offending acts, it did not contain any information as to when these acts occurred relative to each other, and therefore, standing alone, was insufficient to support the assessment of 20 points under risk factor 4 … . Moreover, counsel’s argument regarding risk factor 9, and other statements made by counsel during the hearing, indicated that counsel was not adequately familiar with the applicable law … . In addition, counsel stated that he was seeking a downward departure, but failed to articulate any argument in support of such a departure … . People v Echols, 2022 NY Slip Op 04310, Second Dept 7-6-22

Practice Point: At the SORA risk-level hearing, defense counsel agreed with an assessment of 20 points for risk level 4 despite the People’s failure to submit any evidence in support of it. Because counsel agreed to the assessment, any objection to it was waived and could not be raised on appeal. However, the ineffective-assistance argument, based upon defense counsel’s failure to object to that same 20 point assessment, was properly raised on appeal and was the basis for reversal.

 

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