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Evidence Insufficient to Support Attempted Rape Conviction, Ordering Victim to Take Off Her Clothes, Without More, Was Not Enough

The Second Department determined the evidence did not support the attempted rape conviction. Although it could be inferred defendant intended to commit a sexual offense (he twice told the victim to take off her clothes), he never touched the victim, made a verbal demand for sex, or removed any of his clothes:

… [W]e find that it was legally insufficient to establish the defendant’s guilt of attempted rape in the first degree beyond a reasonable doubt. The complainant testified that she was sleeping in her bedroom when she awakened to find the defendant, who had entered her house through a window, standing in her bedroom. He initially demanded money from her. After she told him twice that she had none, he yelled at her “take your clothes off.” He then walked around the left side of the bed towards her, again yelled “take your clothes off,” and pulled back her bed covers. After he pulled down the covers, she began screaming and he turned and ran out. There was no evidence that the defendant touched the complainant or that he made a verbal demand to have sexual intercourse with her. Additionally, there was no evidence that the defendant undressed or that any of the complainant’s clothes were removed.

Although it could be reasonably inferred from the evidence adduced at trial that the defendant intended to engage in some type of criminal sexual conduct, it cannot be inferred that he attempted to engage in sexual intercourse by forcible compulsion pursuant to Penal Law § 130.35(1) … . People v Mais, 2015 NY Slip Op 08195, 2nd Dept 11-12-15

 

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Non-Constitutional Appellate Issues Re: Refusal to Submit to a Chemical Test (DWI) Do Not Survive a Guilty Plea

The Second Department, in a full-fledged opinion by Justice Leventhal, determined defendant, by pleading guilty, had forfeited his right to appellate review of (non-constitutional) rulings about the admissibility of his refusal to submit to a chemical test (DWI) after his involvement in a car accident. The court explained why some appellate issues survive a guilty plea and some don’t:

The Court of Appeals has repeatedly observed that “a plea of guilty generally marks the end of a criminal case, not a gateway to further litigation'” … . A guilty plea signals the defendant’s intention not to litigate the issue of his or her guilt, “and necessarily involves the surrender of certain constitutional rights, including the right to confrontation, the privilege against self incrimination and the right to trial by jury” … . A guilty plea not only encompasses a waiver of the specific rights attached to a trial, but also “effects a forfeiture of the right to renew many arguments made before the plea” … . “This is so because a defendant’s conviction rests directly on the sufficiency of his plea, not on the legal or constitutional sufficiency of any proceedings which might have led to his conviction after trial'” … . The forfeiture occasioned by a guilty plea extends to a variety of claims, including those premised upon a failure to provide CPL 710.30 notice … , the statutory right to a speedy trial … , the exercise of alleged discriminatory peremptory challenges … , and adverse rulings on Sandoval and Ventimiglia/Molineux applications … .

However, not every claim is forfeited by a guilty plea. The issues that survive a valid guilty plea generally relate either to jurisdictional matters, such as an insufficient accusatory instrument, or to rights of a constitutional dimension that go to the heart of the criminal justice process … . “The critical distinction is between defects implicating the integrity of the process, which may survive a guilty plea, and less fundamental flaws, such as evidentiary or technical matters, which do not” … . Examples of rights of constitutional dimension which are not forfeited by a guilty plea include the constitutional right to a speedy trial, the protection against double jeopardy, and the competency of the defendant to stand trial … .

Among the limited group of issues that survive a valid guilty plea and may be raised on a subsequent appeal are those relating to the denial of a motion to suppress evidence under CPL 710.20 … . The Legislature has preserved such claims for appellate review through the enactment of CPL 710.70(2) … . CPL 710.70(2) expressly grants a defendant a statutory right to appellate review of an order denying a motion to suppress evidence “notwithstanding the fact” that the judgment of conviction “is entered upon a plea of guilty.” However, the statutory right to appellate review created by CPL 710.70(2) applies to orders which deny a motion to suppress evidence on the grounds enumerated by CPL 710.20 … .  Athough CPL 710.20(5)  authorizes a defendant to move to suppress evidence of “a chemical test of the defendant’s blood administered in violation of the provisions” of Vehicle and Traffic Law § 1194(3) or “any other applicable law,” that provision is not implicated here. In this case, the defendant did not move to suppress the results of a chemical test of his blood. Indeed, the police did not perform a chemical test upon the defendant. Rather, he moved to preclude the People from admitting testimony of his refusal to submit to a chemical test. Such a motion cannot be characterized as one seeking suppression under CPL 710.20(5). Accordingly, the defendant does not have a statutory right to appellate review of the County Court’s ruling permitting the introduction of evidence of his refusal to submit to a chemical test.

Nor is the defendant’s claim that the County Court erred in ruling that the People would be permitted to introduce evidence at trial of his refusal to submit to a chemical test a claim of constitutional dimension, or one that bears upon the integrity of the judicial process. Rather, the court’s determination relates to an evidentiary or technical matter. People v Sirico, 2015 NY Slip Op 07862, 2nd Dept 10-28-15

 

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The Unaccepted Offer of a Key to Defendant’s Apartment Made to the 10-Year-Old Victim Was Sufficient to Support the Attempted Kidnapping Charge/Twenty-Year-Old Child Molestation Conviction Properly Admitted to Show Defendant’s Intent Re: Kidnapping

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a cogent dissenting opinion by Judge Pigott, determined evidence of a prior sex crime against a child was admissible in an attempted kidnapping prosecution, and further determined the evidence of attempted kidnapping was sufficient. Twenty years earlier, the defendant had been convicted of molesting his step-daughter. Apparently there was a pattern of behavior with his step-daughter which included dressing up (costume) and inviting her to go places with him. That pattern was being repeated with the 10-year-old victim in the instant case. Defendant at one point showed up at the victim’s door dressed up in a costume. Defendant repeatedly asked the victim to go with him for ice cream or to a movie. Defendant offered the key to his apartment to the victim (which she refused). It was that offer (of a key) which formed the basis of the attempted kidnapping charge. The defendant’s conviction for molesting his step-daughter was allowed in evidence to show the defendant’s intent re: kidnapping. The People and the defendant presented expert testimony about defendant’s behavior pattern with his step-daughter and the current victim:

In its written decision and order, the trial court held that the evidence presented by the People demonstrated “more than criminal propensity, but . . . an actual link between the two offenses.” The court noted that the victims of the two offenses “so closely resemble[d] each other . . . as to be virtual twins,” and that “[c]ertain distinctive patterns of behavior employed by the Defendant on each occasion match to an extraordinary degree.” Moreover, the court concluded that the expert testimony at the Ventimiglia hearing demonstrated that “[d]efendant was not merely re-offending, but in fact suffered from a fixated fantasy” and had “transferred his fixation and fantasy from victim number one to victim number two and [was] now re-living the previous sexual encounter.” Based on that expert testimony, the court concluded that “the Defendant’s fixation with the first victim is proof of his intent with regard to the second.” The court stated that it was aware of the potential for prejudice, but was “satisfied that, with careful limitations and adequate caution to the jury, some facts from the earlier case can be utilized to show a unique connection between the two offenses” and that expert testimony would help a jury “to understand what factors should be considered, or discounted, in assessing those facts and that connection.” Under the circumstances presented here, we cannot say that the trial court abused its discretion as a matter of law in admitting evidence of defendant’s prior conviction. * * *

With respect to proof of defendant’s intent, as noted, the People were required to prove that defendant intended to prevent the victim’s liberation by secreting or holding her in a place where she was not likely to be found (see Penal Law §§ 135.00 [2] [a]; 135.20). Defendant’s intent may be inferred from his actions and the surrounding circumstances … . This Court has recognized that “circumstantial evidence of intent is often essential to prosecution for an attempted crime because . . . such evidence may be the only way of proving intent in the typical case of criminal attempt” … . People v Denson, 2015 NY Slip Op 07779, CtApp 10-27-15

 

The Court’s Failure to Respond to Jury Note Requesting Transcripts of Recorded Phone Calls, Portions of Which Were Translated from Spanish to English, Mandated Reversal

The Court of Appeals reversed the appellate division and held that the court’s failure to respond to the jury’s request for transcripts of recorded phone calls, portions of which were translated from Spanish to English, was reversible error. The request, under the facts, was substantive, not ministerial. Therefore, the court was required to inform counsel of the request and to respond to it:

For reasons stated in People v Silva (24 NY3d 294 [2014] …, the Appellate Division erred in holding that reversal was not required. Contrary to the Appellate Division’s determination, the jury’s request to see the transcripts did not merely require “the ministerial actions of informing the jury that none of the items they requested were in evidence” … . Inasmuch as a significant portion of defendant’s conversations were conducted in Spanish, the jury could not be expected to understand the recordings without the aid of the transcripts … . Moreover, the trial court expressly invited the jurors to ask for the transcripts during deliberations and told them the procedure by which they could see the transcripts, which involved reassembling the jury in the courtroom. Thus, the jury’s requests for the transcripts required a substantive response, and reversal is required because these “substantive jury notes, marked as court exhibits, were neither revealed to the attorneys nor addressed by the court[]” (Silva, 24 NY3d at 300). People v Mendez, 2015 NY Slip Op 07786, CtApp 10-27-15

 

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Pat-down Search Pursuant to a Stop for a Traffic Infraction Unlawful—Injury to Officer During Unlawful Search Will Not Support Assault Conviction (Which Requires the Officer Be Injured Performing a Lawful Duty)

The Fourth Department determined the pat-down search of defendant after he was stopped for walking in the street was unlawful. Therefore the assault charge stemming from injury to the police officer during the unlawful search was not supported by legally sufficient evidence. The officer was not performing a “lawful duty” at the time of the injury (a required element of the assault charge):

A person is guilty of assault in the second degree under Penal Law § 120.05 (3) when, “[w]ith intent to prevent . . . a police officer . . . from performing a lawful duty . . . , he or she causes physical injury to such . . . police officer” (id.). Here, a police officer stopped defendant for walking in the middle of a roadway in violation of Vehicle and Traffic Law § 1156 (a), and the suppression court found that the search of defendant’s person by another officer was not lawful … . We have previously held that even the more limited pat-down search of a traffic offender “is not authorized unless, when the [person or] vehicle is stopped, there are reasonable grounds for suspecting that the officer is in danger or there is probable cause for believing that the offender is guilty of a crime rather than merely a simple traffic infraction’ ” (People v Everett, 82 AD3d 1666, 1666, …). Here, as in Everett, the search of defendant was unauthorized, and the officer was injured only after he attempted to perform the unlawful search (see id.). Viewing the evidence in the light most favorable to the People …, we thus conclude that the evidence is legally insufficient to establish that the officer was injured while undertaking a lawful duty … . People v Richardson, 2015 NY Slip Op 07069, 4th Dept 10-2-15

 

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Where Arrest Was Not Authorized, Conviction for Resisting Arrest Was Against the Weight of the Evidence

The People conceded defendant’s actions (apparently simply standing with a group) did not constitute disorderly conduct. Therefore, the Fourth Department determined, defendant’s arrest for disorderly conduct was unauthorized and his conviction of resisting arrest was against the weight of the evidence:

As the People correctly concede, the evidence fails to establish beyond a reasonable doubt that the arrest of defendant for disorderly conduct was authorized. The Court of Appeals has “made clear that evidence of actual or threatened public harm (inconvenience, annoyance or alarm’) is a necessary element of a valid disorderly conduct charge” …, and there is no evidence of such actual or threatened harm here. Inasmuch as it “is not disorderly conduct . . . for a small group of people, even people of bad reputation, to stand peaceably on a street corner” …, the arrest of defendant for engaging in that conduct was not authorized. “There being no probable cause that authorized defendant’s arrest, [he] cannot be guilty of resisting arrest” … . Thus, we conclude that the jury “failed to give the evidence the weight it should be accorded” … . People v Howard, 2015 NY Slip Op 07100, 4th Dept 10-2-15

 

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County Court Should Not Have Dismissed the Indictment on a Ground Not Raised by the Defendant Without Giving the People the Opportunity to Address the Issue

After reviewing the grand jury testimony, County Court dismissed the indictment on a ground (the complainant’s lack of testimonial capacity) not raised in defendant’s omnibus motion.  The Second Department reversed because the People had not been given the opportunity to address the issue:

In an omnibus motion, the defendant sought, inter alia, to dismiss the indictment on the general grounds that the grand jury proceedings were defective and that the charges were not supported by legally sufficient evidence before the grand jury. The County Court, upon its own examination of the grand jury minutes, determined, sua sponte, that there was an issue as to the complainant’s testimonial capacity, and dismissed the indictment on the ground that the complainant lacked testimonial capacity.

The County Court erred in dismissing the indictment based upon a specific defect in the grand jury proceedings not raised by the defendant, without affording the People notice of the specific defect and an opportunity to respond. A motion to dismiss an indictment pursuant to CPL 210.20 must be made in writing and upon reasonable notice to the People (see CPL 210.45[1]). Moreover, “orderly procedures require that the People be given the opportunity to address any alleged defects prior to dismissal of an indictment”… . People v Coleman, 2015 NY Slip Op 06676, 2nd Dept 8-26-15

 

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“Outside Influence Upon the Jury” Argument Rejected—“Weight of the Evidence” Review Required New Trial [Editor’s Note—There Appears [to Me] to Be No Difference Between What Can Be Reviewed Under the “Weight of the Evidence” Criteria, Which Need Not Be Preserved by a Motion to Dismiss, and What Can Be Reviewed Under the “Legally Sufficient Evidence” Criteria, Which Must Be Preserved by a Specific Motion to Dismiss]

The Second Department, in applying its “weight of the evidence review,” determined that the counts of the indictment stemming from an alleged burglary or attempted burglary were not supported by evidence the defendant entered the victim’s house illegally. Therefore those counts were dismissed. The court explained how a “weight of the evidence” review is applied. [It seems to this writer that there no longer is a distinction between a “weight of the evidence” review, which need not be preserved by a motion to dismiss, and a “legally sufficient evidence” review, which must be preserved by a specific motion to dismiss.] The court also explained the criteria for determining whether there was undue outside influence on the jury (here alleged discussion of a newspaper article about the trial and defendant’s reputation as a troublemaker).  The “undue outside influence” argument was rejected. Concerning the “weight of the evidence” review, the court wrote:

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]…), we essentially sit as the “thirteenth juror” and “decide[ ] which facts were proven at trial” … . “[W]eight of the evidence review is not limited to issues of credibility” … . “Rather, in conducting its weight of the evidence review, a court must consider the elements of the crime, for even if the prosecution’s witnesses were credible their testimony must prove the elements of the crime beyond a reasonable doubt'” … .

Here, the People failed to prove beyond a reasonable doubt that the defendant committed burglary in the first degree and, concomitantly, failed to prove the defendant’s guilt of murder in the second degree (felony murder) under the first count of the indictment, which was predicated upon his commission or attempted commission of burglary. To prove the defendant’s guilt of burglary in the first degree, the People were required to prove, among other things, that the defendant “knowingly enter[ed] or remain[ed] unlawfully in a dwelling” (Penal Law § 140.30). “A person enters or remains unlawfully’ in or upon premises when he is not licensed or privileged to do so” (Penal Law § 140.00[5]). “In general, a person is licensed or privileged’ to enter private premises when he [or she] has obtained the consent of the owner or another whose relationship to the premises gives him [or her] the authority to issue such consent” … .

There was no evidence produced at trial as to how the defendant, who was acquainted with Jones, entered Jones’ house. An investigating police detective testified that there was no evidence of forced entry into the house, and neither of two statements the defendant gave to the police, admitting that he was in Jones’ house when Jones was killed, indicate that he entered the premises unlawfully. Under these circumstances, since the People failed to introduce any evidence as to how the defendant gained entry to Jones’ house, they failed to prove that the defendant entered the house unlawfully. People v Marsden, 2015 NY Slip Op 06260, 2nd Dept 7-22-15

 

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Assault-Related Convictions Not Supported by the Weight of the Evidence/Prosecution Held to Erroneous Jury Instruction Which Was Not Challenged

The Second Department determined defendant’s convictions were not supported by the weight of the evidence and the prosecution should be held to an erroneous jury instruction which was not challenged. The defendant was acquitted of possession of a weapon and was not charged with acting in concert with others. Absent any evidence the defendant caused the injury to the victim his assault-related convictions could not stand. The jury was erroneously instructed that burglary requires proof the defendant unlawfully entered “and” (not “or”) remained in the victim’s dwelling. Because the erroneous instruction was not challenged, the People are held to it. The burglary conviction could not stand because the defendant was invited into the dwelling:

The evidence presented by the People was that the defendant alone caused serious physical injury to the victim by slashing him with an unidentified dangerous instrument. The jury was not charged that the defendant was acting-in-concert with the others. While the defendant was convicted of two counts of assault in the first degree and gang assault in the first degree, he was acquitted of criminal possession of a weapon in the fourth degree. In conducting our weight of the evidence review, we may consider the jury’s acquittal of the defendant on that count … . Given the victim’s testimony that, during the struggle, he heard the defendant say “no, don’t stab him, don’t stab him,” and that he did not see who slashed him, and considering that testimony along with the jury’s acquittal of the defendant of criminal possession of a weapon in the fourth degree, we find that the evidence, when properly weighed, did not establish that the defendant caused serious physical injury to the victim or that he did so by means of a dangerous instrument.

While a person is guilty of burglary in the first degree when he or she either knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein (see Penal Law § 140.30), here, the trial court, without objection, erroneously instructed the jury that, in order to find the defendant guilty of the two counts of this charge, the People were required to prove that the defendant “unlawfully entered and remained” in the victim’s dwelling (emphasis added). Since the People did not object to this erroneous charge, they were “bound to satisfy the heavier burden” … . Given that the evidence demonstrated that the defendant knocked on the victim’s door and announced his presence, and that the victim voluntarily invited the defendant into the apartment, the People failed to satisfy their burden as to these two counts. People v Samuels, 2015 NY Slip Op 05968, 2nd Dept 7-8-15

 

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Evidence Did Not Support Conviction for Attempted Possession of Burglar’s Tools— Conviction Was Against the Weight of the Evidence

The First Department determined the evidence was not sufficient to support a conviction for attempted possession of burglar’s tools (the conviction was against the weight of the evidence). The defendant had tools in his possession and stopped his bicycle to look inside two or three cars (in broad daylight).  However the defendant did not touch the tools. Therefore the element of the offense which requires circumstances indicating the tools were about to be used to commit a burglary was not supported:

“A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime” (Penal Law § 110.00.) “While the statutory formulation of attempt would seem to cover a broad range of conduct—anything tend[ing] to effect’ a crime—case law requires a closer nexus between defendant’s acts and the completed crime” … . The accused must engage in conduct that comes “dangerously close” to a completed crime before it can be combined with a criminal intent to constitute an attempted crime …

“A person is guilty of attempted possession of burglar’s tools when, with the intent to possess burglar’s tools, he tries to possess any tool, instrument or other article adapted, designed or commonly used for committing or facilitating offenses involving larceny by a physical taking, and the surrounding circumstances evince an intent to use same in the offense of such character” … .

Although the element of intent may be satisfied by circumstantial evidence …, under the particular circumstances of this case the officer’s testimony that he observed defendant, in broad daylight, stopping his bicycle between two or three cars and looking through the driver’s side front window, is not, in and of itself, sufficient to support the inference that defendant intended to use the tools to steal any items from the cars. The officer admitted, inter alia, that during the 15 seconds that he observed defendant, he never saw him touch either a tool in the pouch or any of the cars and that the screwdriver set had to be assembled to be usable … . People v Pannizzo, 2015 NY Slip Op 05894, 1st Dept 7-7-15

 

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