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Evidence of Physical Injury (re Assault) Insufficient

In reversing an Assault 3rd conviction, the Second Department determined, under a weight of the evidence analysis, the proof of “physical injury” was insufficient:

Upon reviewing the record here, we find that the verdict of guilt was against the weight of the evidence, since the evidence presented at trial did not establish, beyond a reasonable doubt, that the complainant 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” (Penal Law § 10.00[9]). The complainant testified that he sustained bruising and scraping to his right arm, neck, and back, but he did not seek any medical treatment or miss any work. The complainant also provided no details that would corroborate his subjective description of pain, nor did he take any pain medication. Accordingly, there was insufficient evidence that the complainant suffered a “physical injury”…, and the judgment must be reversed and the indictment dismissed. People v Boley, 2013 NY Slip Op 03109, 2nd Dept, 5-1-13

 

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Acquittal on Assault Charges in First Trial Did Not Preclude Presentation of Evidence of the Assaults in Second Trial—Collateral Estoppel Doctrine Could Not Be Successfully Invoked Because the Meaning of the Acquittals Was Nearly Impossible to Discern

In a second trial, the defendant moved to preclude the prosecution from introducing evidence of two assaults which were the subjects of acquittals in the first trial.  The trial court allowed evidence of the two assaults.  On appeal the defendant argued that evidence of the assaults of which she was acquitted was precluded by the doctrine of collateral estoppel.  The Fourth Department disagreed and affirmed the trial court’s admission of the evidence, noting that the exact meaning of an acquittal in a criminal trial is often impossible to demonstrate:

“The doctrine of collateral estoppel, or issue preclusion, operates in a criminal prosecution to bar relitigation of issues necessarily resolved in defendant’s favor at an earlier trial” …. Thus, the doctrine applies in a situation such as this, where at a prior trial there was a mixed verdict in which the jury acquitted a defendant of certain charges, but was unable to reach a verdict on the remaining charges ….  “Application of the collateral estoppel doctrine requires that the court determine what the first judgment decided and how that determination bears on the later judgment . . . The rule is easily stated but frequently difficult to implement because the meaning of a general verdict is not always clear and mixed verdicts may, at times, appear inherently ambiguous.  Nevertheless, the court must assume the jury reached a rational result . . . , and a defendant claiming the benefit of estoppel carries the burden of identifying the particular issue on which he [or she] seeks to foreclose evidence and then establishing that the fact finder in the first trial, by its verdict, necessarily resolved that issue in his [or her] favor” …. “Defendant’s burden to show that the jury’s verdict in the prior trial necessarily decided a particular factual issue raised in the second prosecution is a heavy one indeed, and as a practical matter severely circumscribes the availability of collateral estoppel in criminal prosecutions . . . ‘[I]t will normally be impossible to ascertain the exact import of a verdict of acquittal in a criminal trial’ ” …. People v Brandie E…, KA 09-01366, 202, 4th Dept, 4-26-13

 

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Fact that Defendant Was Seen With a .25 Caliber Handgun Two and a Half Months Before Charged Shooting Allowed In Evidence to Prove “Identity”

The defendant was convicted of shooting the victim with a .25 caliber handgun.  Under Molineux, the prosecution was allowed to present evidence that the defendant, two and a half months before, was seen brandishing a .25 caliber handgun.  The trial court determined this “prior crime” evidence was admissible to prove the identity of the shooter.  The Third Department affirmed with a strong dissent.  The quotation below, which is from the dissent, outlines one of the elements of a Molineux analysis of prior-crime evidence to prove identity:

[THE FOLLOWING QUOTATION IS FROM THE DISSENT]

The mere fact that defendant was allegedly seen with a .25 caliber weapon on an occasion over two months prior to the crime does not reveal any unique and distinctive modus operandi, nor a “distinctive repetitive pattern”  … . The only behavior described was the act of pulling out a gun – there is nothing unique or distinctive about this act, standing alone – and the weapon was not fired during the alleged earlier incident. Defendant’s mere presence in the same place twice is certainly not unusual, as other people were also present on both occasions. There was simply no evidence that might be considered “‘so unique that the mere proof that . . . defendant had committed a similar act would be highly probative of the fact that he committed the one charged'” … .  People v Myers, 104004, 3rd Dept, 4-25-13

 

 

 

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Insufficient Evidence of Recklessness In Shooting Case

The Fourth Department reversed an Assault 2nd conviction and dismissed the indictment after a “weight of the evidence” review.  The prosecution’s theory was that the defendant acted recklessly by pointing a sawed-off shotgun at the victim, disregarding the risk that it would fire. But the proof at trial was that the shotgun discharged just as the defendant picked it up. The Fourth Department wrote:

The People … failed to present any evidence establishing that defendant brought the gun to the park; that the gun belonged to defendant; and that defendant had any knowledge that the gun was loaded with live ammunition or was aware of—and consciously disregarded—the risk that it might misfire (see generally Penal Law § 15.05 [3]).  People v Evans, 255, KA 10-01056, 4th Dept. 3-22-13

 

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Because the “Identity” of the Perpetrator Was Not an Issue, Allowing Evidence of Prior Crimes to Prove Identity Was Reversible Error.

In a case based upon allegations the defendant assaulted his wife in a jealous rage, the trial judge allowed evidence of a prior crime to prove the “identity” of the perpetrator pursuant to the Molineux rule. The Second Department, in a prior decision, reversed the conviction finding that the perpetrator’s identity was not an issue in the case. After the initial reversal by the Second Department, the Court of Appeals, in turn, reversed the Second Department finding that the perpetrator’s identity had not been “conclusively established,” and sent the case back to determine if the identity exception was applicable to the facts. The Second Department stuck to its initial reasoning, finding that allowing the “prior crime” evidence on the issue of the perpetrator’s “identity” was an abuse of discretion because the prejudicial effect of the evidence outweighed its probative value. People vs Agina, 2005-11978, Ind. No. 1733/04 Second Dept. 2-13-13

 

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Although Victim Was Shot Injuries Did Not Constitute “Serious Physical Injury” Within Meaning of Assault 1st Statute.

Although the victim was shot in the chest and arm, the Fourth Department determined there was insufficient evidence of serious physical injury and reduced the Assault 1st conviction to Attempted Assault 1st.  The Court did not reach the issue whether the indictment was supported by legally sufficient evidence because the issue was not raised in the omnibus motion (suggesting that a conviction does not preclude raising insufficient-evidence-to-indict on appeal).  People vs Madera, 6, KA 11-00450 Fourth Dept. 2-8-13

 

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