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ALTHOUGH THE EVIDENCE DEFENDANT ACTED AS AN ACCOMPLICE IN THE FATAL SHOOTING OF THE VICTIM WAS LEGALLY SUFFICIENT, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF WEAKNESS OF THE EVIDENCE DEFENDANT KNEW OF THE SHOOTER’S INTENT TO KILL THE VICTIM, AS OPPOSED TO AN INTENT TO ROB OR ASSAULT (THIRD DEPT).

The Third Department determined there was legally sufficient evidence to support defendant’s conviction that he acted as an accomplice in the fatal shooting of the victim by another man, White-Span. In other words, the elements of the charged offense were supported by some credible evidence. Defendant’s conviction was reversed, however, under a weight of the evidence analysis based on the weakness of the evidence that the defendant knew White-Span intended to kill the victim, as opposed to rob or assault the victim:

“Despite the [necessary] elements being supported by some credible evidence, because a different [verdict] would not have been unreasonable, this Court must independently examine the evidence further, viewing it in a neutral light to see if the verdict is against the weight of the evidence”… . Even if we accept that the evidence proved beyond a reasonable doubt that White-Span intentionally caused the victim’s death by shooting him and that defendant intentionally aided White-Span in locating and isolating the victim, the evidence does not prove beyond a reasonable doubt that defendant knew — before the shooting occurred — that White-Span planned to kill the victim, because defendant could have had other equally plausible reasons for wanting access to the victim, such as robbery or assault. …

In light of the People’s failure to establish beyond a reasonable doubt that defendant shared White-Span’s intent to kill the victim, the judgment of conviction must be reversed and the indictment against defendant dismissed … . People v Croley, 2018 NY Slip Op 04984, Third Dept 7-5-18

​CRIMINAL LAW (EVIDENCE, ALTHOUGH THE EVIDENCE DEFENDANT ACTED AS AN ACCOMPLICE IN THE FATAL SHOOTING OF THE VICTIM, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF WEAKNESS OF THE EVIDENCE DEFENDANT KNEW OF THE SHOOTER’S INTENT TO KILL THE VICTIM, AS OPPOSED TO AN INTENT TO ROB OR ASSAULT (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, ACCOMPLICE, ALTHOUGH THE EVIDENCE DEFENDANT ACTED AS AN ACCOMPLICE IN THE FATAL SHOOTING OF THE VICTIM, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF WEAKNESS OF THE EVIDENCE DEFENDANT KNEW OF THE SHOOTER’S INTENT TO KILL THE VICTIM, AS OPPOSED TO AN INTENT TO ROB OR ASSAULT (THIRD DEPT))/ACCESSORIAL LIABILITY (ALTHOUGH THE EVIDENCE DEFENDANT ACTED AS AN ACCOMPLICE IN THE FATAL SHOOTING OF THE VICTIM, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF WEAKNESS OF THE EVIDENCE DEFENDANT KNEW OF THE SHOOTER’S INTENT TO KILL THE VICTIM, AS OPPOSED TO AN INTENT TO ROB OR ASSAULT (THIRD DEPT))/APPEALS (WEIGHT OF THE EVIDENCE, ACCESSORIAL LIABILITY, ALTHOUGH THE EVIDENCE DEFENDANT ACTED AS AN ACCOMPLICE IN THE FATAL SHOOTING OF THE VICTIM, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF WEAKNESS OF THE EVIDENCE DEFENDANT KNEW OF THE SHOOTER’S INTENT TO KILL THE VICTIM, AS OPPOSED TO AN INTENT TO ROB OR ASSAULT (THIRD DEPT))/INTENT (CRIMINAL LAW, ACCESSORIAL LIABILITY,  ALTHOUGH THE EVIDENCE DEFENDANT ACTED AS AN ACCOMPLICE IN THE FATAL SHOOTING OF THE VICTIM, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF WEAKNESS OF THE EVIDENCE DEFENDANT KNEW OF THE SHOOTER’S INTENT TO KILL THE VICTIM, AS OPPOSED TO AN INTENT TO ROB OR ASSAULT (THIRD DEPT))/SHARED INTENT (CRIMINAL LAW, ACCESSORIAL LIABILITY,  ALTHOUGH THE EVIDENCE DEFENDANT ACTED AS AN ACCOMPLICE IN THE FATAL SHOOTING OF THE VICTIM, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF WEAKNESS OF THE EVIDENCE DEFENDANT KNEW OF THE SHOOTER’S INTENT TO KILL THE VICTIM, AS OPPOSED TO AN INTENT TO ROB OR ASSAULT (THIRD DEPT))

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DESPITE RULING THAT NO EVIDENCE OF DEFENDANT’S REQUESTS TO TALK TO COUNSEL COULD BE PRESENTED, TWO TESTIFYING WITNESSES VIOLATED THAT RULING, BECAUSE THAT EVIDENCE CONFLICTED WITH THE DEFENSE STRATEGY A MISTRIAL SHOULD HAVE BEEN DECLARED, NEW TRIAL ORDERED (THIRD DEPT).

The Third Department reversed defendant’s conviction of felony leaving the scene of an accident and ordered a new trial. Defendant struck a pedestrian whose body came into defendant’s car through the windshield. Defendant did not contact the police for over an hour. Prior to trial defense counsel obtained a ruling from the judge that the People could not introduce any evidence defendant sought to communicate with counsel. That ruling was violated twice by testifying witnesses:

Defendant’s strategy at trial relied in large part upon the fact that she was not at fault in the accident but did witness the victim’s body being propelled through her windshield and coming to rest inches away from her. She relied upon this state of affairs to contend that her failure to contact authorities was not because she was “coldly calculating,” but because she was in shock and incapable of doing so. Defendant further questioned the proof supporting the People’s hypothesis that she left the scene with her sister before the 911 call.

Any indication that defendant sought to consult with counsel would undermine the foundation of this defense by prejudically suggesting that she was conscious of guilt, rational enough to consider the question of counsel and, perhaps, capable of reporting the accident or taking steps to avoid doing so … . …

In our view, [the] repeated violations of the pretrial ruling, in a case where defendant’s capacity to act and her actions after the accident were in serious dispute, caused harm that could not be reliably dissipated. County Court therefore abused its discretion in declining to declare a mistrial … and, inasmuch as we do not agree with defendant that the People deliberately acted to provoke a mistrial …  we remit for a new trial. People v Lentini, 2018 NY Slip Op 04983, Third Dept 7-5-18

CRIMINAL LAW (EVIDENCE, DESPITE RULING THAT NO EVIDENCE OF DEFENDANT’S REQUESTS TO TALK TO COUNSEL SHOULD BE PRESENTED, TWO TESTIFYING WITNESSES VIOLATED THAT RULING, BECAUSE THAT EVIDENCE CONFLICTED WITH THE DEFENSE STRATEGY A MISTRIAL SHOULD HAVE BEEN DECLARED, NEW TRIAL ORDERED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, DESPITE RULING THAT NO EVIDENCE OF DEFENDANT’S REQUESTS TO TALK TO COUNSEL SHOULD BE PRESENTED, TWO TESTIFYING WITNESSES VIOLATED THAT RULING, BECAUSE THAT EVIDENCE CONFLICTED WITH THE DEFENSE STRATEGY A MISTRIAL SHOULD HAVE BEEN DECLARED, NEW TRIAL ORDERED (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, EVIDENCE, DESPITE RULING THAT NO EVIDENCE OF DEFENDANT’S REQUESTS TO TALK TO COUNSEL SHOULD BE PRESENTED, TWO TESTIFYING WITNESSES VIOLATED THAT RULING, BECAUSE THAT EVIDENCE CONFLICTED WITH THE DEFENSE STRATEGY A MISTRIAL SHOULD HAVE BEEN DECLARED, NEW TRIAL ORDERED (THIRD DEPT))/MISTRIAL (CRIMINAL LAW, EVIDENCE, DESPITE RULING THAT NO EVIDENCE OF DEFENDANT’S REQUESTS TO TALK TO COUNSEL SHOULD BE PRESENTED, TWO TESTIFYING WITNESSES VIOLATED THAT RULING, BECAUSE THAT EVIDENCE CONFLICTED WITH THE DEFENSE STRATEGY A MISTRIAL SHOULD HAVE BEEN DECLARED, NEW TRIAL ORDERED (THIRD DEPT))

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ALTHOUGH DEFENDANT WAS PRESENT IN A GARAGE WHERE METHAMPHETAMINE WAS BEING MANUFACTURED, THE EVIDENCE WAS INSUFFICIENT TO DEMONSTRATE SHE CONSTRUCTIVELY POSSESSED THE DRUGS, POSSESSION CONVICTION REVERSED AND INDICTMENT DISMISSED (THIRD DEPT).

The Third Department reversed defendant’s conviction of criminal possession of a controlled substance and dismissed the indictment. Defendant’s presence in a garage where methamphetamine was being manufactured was not enough to support the People’s theory she constructively possessed the drugs. The facts that defendant had admitted to using methamphetamine in the past and had recently purchase a legal allergy drug which can be used in the manufacture of methamphetamine did not demonstrate her exercise of dominion and control over the drugs in the garage:

As defendant was not found to be in physical possession of methamphetamine, the People proceeded against her on a theory of constructive possession. Thus, it was their burden to establish that she “exercise[d] dominion or control” over the methamphetamine in the one-pot or the area where it was found (Penal Law § 10.00 [8]…) . Defendant’s mere presence in the garage where the methamphetamine was found is not enough, standing alone, to establish dominion or control … . There were no other indicators that defendant had dominion or control over the garage or of the property where it was located; she did not reside there, and there was no evidence that she had keys, kept belongings there or frequently spent time there … . The People argue that the couch where defendant said she was napping was near the shelf where the one-pot containing methamphetamine was found … , and they emphasize the one-pot’s presence in plain view, the smoke and chemical odor noticed by the police officer and the presence in the garage of various substances and tools used to produce methamphetamine. However, knowledge of the presence of an illegal substance does not, without more, meet the People’s burden to demonstrate that a defendant “had the ability and intent to exercise dominion or control over the contraband” … . People v Yerian, 2018 NY Slip Op 04981, Third Dept 7-5-18

​CRIMINAL LAW (EVIDENCE, CONSTRUCTIVE POSSESSION, ALTHOUGH DEFENDANT WAS PRESENT IN A GARAGE WHERE METHAMPHETAMINE WAS BEING MANUFACTURED, THE EVIDENCE WAS INSUFFICIENT TO DEMONSTRATE SHE CONSTRUCTIVELY POSSESSED THE DRUGS, POSSESSION CONVICTION REVERSED AND INDICTMENT DISMISSED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, CONSTRUCTIVE POSSESSION, ALTHOUGH DEFENDANT WAS PRESENT IN A GARAGE WHERE METHAMPHETAMINE WAS BEING MANUFACTURED, THE EVIDENCE WAS INSUFFICIENT TO DEMONSTRATE SHE CONSTRUCTIVELY POSSESSED THE DRUGS, POSSESSION CONVICTION REVERSED AND INDICTMENT DISMISSED (THIRD DEPT))/CONSTRUCTIVE POSSESSION (CRIMINAL LAW, ALTHOUGH DEFENDANT WAS PRESENT IN A GARAGE WHERE METHAMPHETAMINE WAS BEING MANUFACTURED, THE EVIDENCE WAS INSUFFICIENT TO DEMONSTRATE SHE CONSTRUCTIVELY POSSESSED THE DRUGS, POSSESSION CONVICTION REVERSED AND INDICTMENT DISMISSED (THIRD DEPT))/DOMINION AND CONTROL (CRIMINAL LAW, CONSTRUCTIVE POSSESSION, ALTHOUGH DEFENDANT WAS PRESENT IN A GARAGE WHERE METHAMPHETAMINE WAS BEING MANUFACTURED, THE EVIDENCE WAS INSUFFICIENT TO DEMONSTRATE SHE CONSTRUCTIVELY POSSESSED THE DRUGS, POSSESSION CONVICTION REVERSED AND INDICTMENT DISMISSED (THIRD DEPT))/METHAMPHETAMINE (CRIMINAL LAW, CONSTRUCTIVE POSSESSION, ALTHOUGH DEFENDANT WAS PRESENT IN A GARAGE WHERE METHAMPHETAMINE WAS BEING MANUFACTURED, THE EVIDENCE WAS INSUFFICIENT TO DEMONSTRATE SHE CONSTRUCTIVELY POSSESSED THE DRUGS, POSSESSION CONVICTION REVERSED AND INDICTMENT DISMISSED (THIRD DEPT))

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EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT DID NOT JUSTIFY ENTRY AND SEARCH OF DEFENDANT’S APARTMENT, CONVICTIONS REVERSED (THIRD DEPT).

The Third Department reversed defendant’s criminal contempt and violation of probation convictions because the evidence of the offenses was the fruit of an illegal entry and search of defendant’s apartment. The attempt to justify the entry and search under the emergency exception to the warrant requirement was rejected. The police officer who entered defendant’s apartment, Carmichael, apparently expected that a man named Collins would be in the apartment with defendant. There was an order of protection prohibiting contact between the defendant and Collins:

We conclude that Carmichael’s testimony established that there was not an objectively reasonable basis for him to believe that there was an ongoing emergency in defendant’s apartment that required immediate assistance to protect life or property. Carmichael was aware that defendant was no longer incarcerated. There was no evidence that defendant’s apartment had been forcibly entered, nor was there any other indication of an ongoing crime or emergency. The low, muffled sound that he heard and the faint light that was seen through the window were consistent with an occupant watching television, a reasonable activity at that hour of night. … The police had been advised that Collins had been seen in the vicinity of defendant’s apartment during the evening in question, and they considered the possibility that he was at her apartment in violation of the order of protection. …

Further, even had Carmichael’s initial entry been lawful, his subsequent search of defendant’s apartment was not. A protective sweep is justified only when the police “have articulable facts upon which to believe that there is a person present who may pose a danger to those on the scene” … . People v Sears, 2018 NY Slip Op 04980, Third Dept 7-5-18

​CRIMINAL LAW (EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT DID NOT JUSTIFY ENTRY AND SEARCH OF DEFENDANT’S APARTMENT, CONVICTIONS REVERSED (THIRD DEPT))/WARRANTLESS ENTRY AND SEARCH (EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT DID NOT JUSTIFY ENTRY AND SEARCH OF DEFENDANT’S APARTMENT, CONVICTIONS REVERSED (THIRD DEPT))/HOME (CRIMINAL LAW, WARRANTLESS ENTRY AND SEARCH, EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT DID NOT JUSTIFY ENTRY AND SEARCH OF DEFENDANT’S APARTMENT, CONVICTIONS REVERSED (THIRD DEPT))/SEARCH (CRIMINAL LAW, WARRANTLESS ENTRY AND SEARCH, EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT DID NOT JUSTIFY ENTRY AND SEARCH OF DEFENDANT’S APARTMENT, CONVICTIONS REVERSED (THIRD DEPT))/SUPPRESSION (CRIMINAL LAW, EVIDENCE, EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT DID NOT JUSTIFY ENTRY AND SEARCH OF DEFENDANT’S APARTMENT, CONVICTIONS REVERSED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION, (EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT DID NOT JUSTIFY ENTRY AND SEARCH OF DEFENDANT’S APARTMENT, CONVICTIONS REVERSED (THIRD DEPT))

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INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing County Court, determined there was sufficient evidence before the Grand Jury to support several counts dismissed by the motion court. The dismissed counts related to allegedly false information on business records about farm employees’ hours and pay and the employment of a minor (a 14-year-old killed operating heavy farm equipment) in violation of the Labor Law:

“To dismiss an indictment or counts thereof on the basis of insufficient evidence before a grand jury, a reviewing court must consider whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury” … . “In the context of grand jury proceedings, ‘legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt'” … . “The reviewing court’s inquiry is limited to ‘whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes,’ and whether ‘the [g]rand [j]ury could rationally have drawn the guilty inference'” … . * * *

Viewed most favorably to the People, we find that the evidence before the grand jury provided a prima facie case of falsifying business records in the first degree and offering a false instrument for filing in the first degree. Although there was no proof that defendant himself compiled the relevant time sheets or submitted them to [the bookkeeper], the evidence established that employees reported their hours directly to defendant — who regularly paid them in cash off the books — and that defendant was solely responsible for the accuracy of the payroll information, personally certified the accuracy of two amended [the unemployment insurance] forms and instructed one of his employees to lie about the number of hours he worked. * * *

“[W]here an indictment count incorporates by reference the statutory provision applicable to the crime intended to be charged, it has been repeatedly held that this is sufficient to apprise [a] defendant of the charge and, therefore, renders the count jurisdictionally valid” … . Here, counts 14 and 15 of the indictment each begin by accusing defendant of the crime of prohibited employment of a minor in violation of Labor Law § 145, which provides that a knowing violation of a provision of article 4 of the Labor Law is punishable by a misdemeanor. While County Court correctly noted that Labor Law § 145 does not state a substantive offense, each count then goes on to specify the particular section of article 4 of the Labor Law which defendant is alleged to have violated, as well as the conduct forming the basis of the charges. People v Park, 2018 NY Slip Op 04985, Third Dept 7-5-18

​CRIMINAL LAW (EVIDENCE, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/INDICTMENTS (EVIDENCE, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/GRAND JURY (EVIDENCE, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/EMPLOYMENT LAW (CRIMINAL LAW, FALSE BUSINESS RECORDS, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/LABOR LAW (CRIMINAL LAW, INDICTMENTS, GRAND JURY, EVIDENCE,  INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/MINORS (EMPLOYMENT LAW, CRIMINAL LAW, LABOR LAW, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))/UNEMPLOYMENT INSURANCE (CRIMINAL LAW, EVIDENCE, INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT))

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INSUFFICIENT EVIDENCE DEFENDANT INTENDED TO DESTROY A MOTORCYCLE WHEN SHE STARTED A FIRE IN A GARAGE, CRIMINAL MISCHIEF CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction under a weight of the evidence analysis, determined there was insufficient proof that defendant intended to destroy a motorcycle that was in the garage in which she started a fire. She testified she started the fire because she was angry with her husband and she expected he would put the fire out. The fire was started in an area of the garage which was not near the motorcycle:

We agree with defendant, however, that the verdict finding her guilty of criminal mischief in the third degree is against the weight of the evidence. County Court instructed the jurors that defendant was guilty of that crime if they found that she intentionally “damage[d] property of another person in an amount exceeding $250,” specifically “a Suzuki motorcycle.” The People presented evidence that a motorcycle belonging to defendant’s husband was completely destroyed by the fire that defendant allegedly set, a loss valued at over $4,000. No evidence was offered of the value of any damage caused by defendant prior to the fire, and the only evidence of how and why the fire started came from defendant’s statements to law enforcement, wherein she stated that she did not know why she started the fire, but that she was angry at her husband with whom she had been fighting and thought that he would return to the garage to put out the fire. Moreover, defendant told law enforcement that she started the fire by igniting a fleece blanket in a part of the garage different from where the motorcycle was located. Defendant’s statements are consistent with the testimony of the fire protection inspector regarding the origin of the fire and are not contradicted by any other evidence in the record. Thus, viewing the evidence in light of the elements of the crime of criminal mischief in the third degree as charged to the jury …, we conclude that the jury’s determination that defendant set the fire with the intention of damaging her husband’s motorcycle is against the weight of the evidence … . People v Colbert, 2018 NY Slip Op 04879, Fourth Dept 6-29-18

​CRIMINAL LAW (INSUFFICIENT EVIDENCE DEFENDANT INTENDED TO DESTROY A MOTORCYCLE WHEN SHE STARTED A FIRE IN A GARAGE, CRIMINAL MISCHIEF CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (FOURTH DEPT))/APPEALS  (INSUFFICIENT EVIDENCE DEFENDANT INTENDED TO DESTROY A MOTORCYCLE WHEN SHE STARTED A FIRE IN A GARAGE, CRIMINAL MISCHIEF CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (FOURTH DEPT))/EVIDENCE (INSUFFICIENT EVIDENCE DEFENDANT INTENDED TO DESTROY A MOTORCYCLE WHEN SHE STARTED A FIRE IN A GARAGE, CRIMINAL MISCHIEF CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (FOURTH DEPT))/WEIGHT OF THE EVIDENCE  (INSUFFICIENT EVIDENCE DEFENDANT INTENDED TO DESTROY A MOTORCYCLE WHEN SHE STARTED A FIRE IN A GARAGE, CRIMINAL MISCHIEF CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (FOURTH DEPT))/CRIMINAL MISCHIEF (INSUFFICIENT EVIDENCE DEFENDANT INTENDED TO DESTROY A MOTORCYCLE WHEN SHE STARTED A FIRE IN A GARAGE, CRIMINAL MISCHIEF CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (FOURTH DEPT))/INTENT (CRIMINAL LAW, CRIMINAL MISCHIEF, (INSUFFICIENT EVIDENCE DEFENDANT INTENDED TO DESTROY A MOTORCYCLE WHEN SHE STARTED A FIRE IN A GARAGE, CRIMINAL MISCHIEF CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (FOURTH DEPT))

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VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over two dissents, reversing the Appellate Division, determined that the street stops and searches of the defendants (Nonni and Parker) were valid under the DeBour criteria. The police had received a report of a robbery at the location, the defendants were the only persons seen when the police arrived, and both ran or walked away when asked to stop. The court noted that justification for street stops presents a mixed question of law and fact which can be reviewed by the Court of Appeals only to the extent of determining whether the lower court rulings have support in the record. The Court of Appeals reversed, however, because the record did not allow review of two jury notes received by the judge but not specifically addressed by the trial judge or counsel:

Here, for both defendants, the police had a founded suspicion of criminal activity to support a common-law right of inquiry. The police received a radio transmission of a burglary in progress, and their encounter with defendants at the reported address occurred a mere five minutes later. The officers first saw defendants exiting private property, the scene of a suspected crime. The officers observed no other persons or cars in the secluded, residential area, and it was early in the morning on a federal holiday. In accordance with De Bour, those circumstances were sufficient to justify the officers asking defendants what they were doing and where they were going, and to continue inquiring when defendants did not respond after the officers identified themselves. Further, the officers’ testimony, credited by the court, that defendant Nonni then “actively fled from the police,” combined with the specific circumstances observed by the officers during their initial encounter with defendants, provides sufficient record support for the court’s determination that there was reasonable suspicion of criminal activity to justify defendant Nonni’s pursuit, forcible stop, and detainment … .  …

According to the arresting officers’ testimony, after defendant Parker saw defendant Nonni run and some police officers give chase, defendant Parker increased his pace, acted in an evasive manner, and crossed the street onto the front lawn of another property. The officer twice characterized Parker’s movements as “running,” albeit at a slow pace. While active avoidance of a confrontation between the police and an acquaintance does not itself give rise to reasonable suspicion, its combination with the specific, highly-suspicious circumstances observed by the police may give rise to heightened suspicion. Thus, record support exists for the court’s conclusion that the officers had reasonable suspicion, and that the pursuit, stop, and detainment of defendant Parker, as well as the subsequent search of his bag, were permissible. * * *

… .[T]he court did not read into the record the contents of the notes at issue here …. Further, there is no hint in the record that the court provided counsel the contents of the notes; rather, an inference may be drawn to the contrary. Tellingly, while the court had read other notes, and had confirmed that counsel had read their contents on the record in the past, there is no such record regarding these two substantive notes. Indeed, the court’s reference with respect to the first note—that it believed counsel had agreed to the readback it would provide in response—made no reference to the other two notes, suggesting that there was no discussion about those notes. Whether the record demonstrates a court has shown counsel prior jury notes as a matter of practice is irrelevant, since there must be specific, record proof that the court did so for each note. People v Parker, 2018 NY Slip Op 04776, CtApp 6-28-18

​CRIMINAL LAW (VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/APPEALS (CRIMINAL LAW, VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/STREET STOPS  (VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/EVIDENCE (CRIMINAL LAW, VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/SUPPRESSION (CRIMINAL LAW, STREET STOPS, VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/DE BOUR (STREET STOPS, VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/EVIDENCE (CRIMINAL LAW, STREET STOPS, VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/JURY NOTES (CRIMINAL LAW, COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/O’RAMA (JURY NOTES, CRIMINAL LAW, COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))

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SEIZURE OF CREDIT CARDS FROM UNDER THE HOOD OF DEFENDANT’S CAR WAS NOT THE RESULT OF AN ILLEGAL SEARCH, POLICE WERE FOLLOWING A PROCEDURE TO SAFEGUARD THE CAR FROM THEFT (FIRST DEPT).

The First Department determined the seizure of credit cards from under the hood of defendant’s car was not the result of an illegal search. The police had validly impounded the car and were following a procedure which required that the car be disabled to thwart theft:

Police entry into the car and under its hood was reasonable because it was done in compliance with the Police Department Patrol Guide’s safeguarding procedure, requiring police to disable all vehicles being safeguarded, in order to prevent theft. The limited entry into the car was done to protect the owner’s property, and was not an attempt to search for incriminating evidence, as shown by the fact that, upon discovering the credit cards in the hood, the police did not search any other part of the vehicle … . The officers’ failure to perform this safeguarding procedure within the 48-hour period allowed by the Patrol Guide, after which a vehicle is to be moved from the precinct to the Property Clerk’s storage facility, was a minor deviation from procedure, and did not undermine the reasonableness of the limited search, where the remainder of the procedure was followed and, as noted, there was no indication that the police were using the procedure as a pretext to search for incriminating evidence … . People v Keita, 2018 NY Slip Op 04847, First Dept 6-28-18

​CRIMINAL LAW (SEIZURE OF CREDIT CARDS FROM UNDER THE HOOD OF DEFENDANT’S CAR WAS NOT THE RESULT OF AN ILLEGAL SEARCH, POLICE WERE FOLLOWING A PROCEDURE TO SAFEGUARD THE CAR FROM THEFT (FIRST DEPT))/SEARCH AND SEIZURE (SEIZURE OF CREDIT CARDS FROM UNDER THE HOOD OF DEFENDANT’S CAR WAS NOT THE RESULT OF AN ILLEGAL SEARCH, POLICE WERE FOLLOWING A PROCEDURE TO SAFEGUARD THE CAR FROM THEFT (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, SEARCH AND SEIZURE, SEIZURE OF CREDIT CARDS FROM UNDER THE HOOD OF DEFENDANT’S CAR WAS NOT THE RESULT OF AN ILLEGAL SEARCH, POLICE WERE FOLLOWING A PROCEDURE TO SAFEGUARD THE CAR FROM THEFT (FIRST DEPT))/SUPPRESSION (CRIMINAL LAW, SEARCH AND SEIZURE, SEIZURE OF CREDIT CARDS FROM UNDER THE HOOD OF DEFENDANT’S CAR WAS NOT THE RESULT OF AN ILLEGAL SEARCH, POLICE WERE FOLLOWING A PROCEDURE TO SAFEGUARD THE CAR FROM THEFT (FIRST DEPT)

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RECORDING OF DEFENDANT’S PHONE CALL MADE WHILE DETAINED PROPERLY SUBPOENAED BY THE PROSECUTION, MOTION COURT PROPERLY DENIED DEFENDANT’S MOTION TO PRECLUDE THE RECORDING (FIRST DEPT).

The First Department determined the recording of a phone call made by defendant while he was detained was properly subpoenaed by the prosecution and defendant’s motion to preclude the recording was properly denied:

The motion court correctly declined to preclude a recorded telephone call that defendant made while detained before trial. Defendant’s challenge to the admissibility of the call, made primarily on Fourth Amendment grounds, is unavailing. Defendant impliedly consented to the recording of the call based on his receipt of multiple forms of notice that his calls would be recorded, and he was not entitled to separate notice that the calls might be subpoenaed by prosecutors… . Recordings of detainees’ calls are made for security purposes, and not for the purpose of gathering evidence. However, like any other nonprivileged evidence that is possessed by a nonparty and is relevant to a litigation, it may be subject to a lawful subpoena. Accordingly, once defendant consented to the recording of his phone calls, and chose nevertheless to make a call containing a damaging statement, he had no reasonable expectation that the call would be immune from being subpoenaed by the prosecution. People v Holmes, 2018 NY Slip Op 04821, First Dept 6-28-18

​CRIMINAL LAW (RECORDING OF DEFENDANT’S PHONE CALL MADE WHILE DETAINED PROPERLY SUBPOENAED BY THE PROSECUTION, MOTION COURT PROPERLY DENIED DEFENDANT’S MOTION TO PRECLUDE THE RECORDING (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, PRISON PHONE CALLS, RECORDING OF DEFENDANT’S PHONE CALL MADE WHILE DETAINED PROPERLY SUBPOENAED BY THE PROSECUTION, MOTION COURT PROPERLY DENIED DEFENDANT’S MOTION TO PRECLUDE THE RECORDING (FIRST DEPT))/PRISON PHONE CALLS (CRIMINAL LAW, EVIDENCE, RECORDING OF DEFENDANT’S PHONE CALL MADE WHILE DETAINED PROPERLY SUBPOENAED BY THE PROSECUTION, MOTION COURT PROPERLY DENIED DEFENDANT’S MOTION TO PRECLUDE THE RECORDING (FIRST DEPT))

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FAILURE TO PLEAD A JURISDICTIONAL DEFECT AS A DEFENSE WAIVED THE DEFECT; WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT)

The Second Department noted that the defendant’s (NYS’s) failure to plead a jurisdictional defect as a defense (defendant had not timely filed and served notice of claim) waived the defect. The claimant did not present expert evidence to support the medical malpractice claim and therefore did not demonstrate that any alleged deviation from the accepted standard of care was the proximate case of his injury. The claimant alleged a negligent failure to diagnose a urinary tract infection (UTI):

“To establish a prima facie case of medical malpractice, a plaintiff must set forth (1) the standard of care in the locality where the treatment occurred, (2) that the defendant breached that standard of care, and (3) that the breach was the proximate cause of his or her injuries”… . Further, where, as here, the subject matter (UTIs) and treatment thereof are “not within the ordinary experience and knowledge of laypersons”… , the claimant must establish a prima facie case of medical malpractice through expert medical opinion … . Whitfield v State of New York, 2018 NY Slip Op 04773, Second Dept 6-27-18

COURT OF CLAIMS (FAILURE TO PLEAD A JURISDICTIONAL DEFECT AS A DEFENSE WAIVED THE DEFECT; WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/NOTICE OF CLAIM (COURT OF CLAIMS, FAILURE TO PLEAD A JURISDICTIONAL DEFECT AS A DEFENSE WAIVED THE DEFECT; WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/NEGLIGENCE (MEDICAL MALPRACTICE, WITHOUT EXPERT OPINION THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/MEDICAL MALPRACTICE (EXPERT OPINION, WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/EVIDENCE (MEDICAL MALPRACTICE, WITHOUT EXPERT OPINION THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/EXPERT OPINION (MEDICAL MALPRACTICE, WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))

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