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INTENT TO HARASS NOT DEMONSTRATED; EXPIRATION OF ORDER OF PROTECTION DID NOT MOOT APPEAL.

The Fourth Department determined the evidence did not support an intent to harass and the family offense petition was dismissed. The court noted the fact that the related protective order had expired did not render the appeal moot because the order still imposes significant enduring consequences that can be relieved by an appellate decision:

The Referee found that respondent committed a family offense, i.e., harassment in the second degree, based upon the Referee's conclusion that respondent told petitioner during a lengthy telephone call that he did not know what he would do if he saw her with another man, sent her two or three text messages stating that he hoped to reconcile with her, and then left on petitioner's car several mementos that petitioner had given him along with the message that he would “never forget [her], bye.” Notwithstanding the Referee's implicit finding that petitioner was upset by the communications, “her reaction is immaterial in establishing [respondent]'s intent” … . Furthermore, although “[t]he requisite intent may be inferred from the surrounding circumstances” … , the circumstances here failed to establish that respondent acted with the requisite intent. Even crediting the Referee's credibility determinations that respondent engaged in the conduct described above, we conclude that such conduct was comprised of relatively innocuous acts that were insufficient to establish that respondent engaged in a course of conduct with the intent to harass, alarm or annoy petitioner … . Matter of Shephard v Ray, 2016 NY Slip Op 02239, 4th Dept 3-25-16

FAMILY LAW (FAMILY OFFENSE, INTENT TO HARASS NOT DEMONSTRATED)/FAMILY LAW (FAMILY OFFENSE, EXPIRATION OF ORDER OF PROTECTION DID NOT MOOT APPEAL)/FAMILY OFFENSE (HARASSMENT, INTENT TO HARASS NOT DEMONSTRATED)/HARASSMENT (FAMILY OFFENSE, INTENT TO HARASS NOT DEMONSTRATED)/APPEALS (FAMILY OFFENSE, EXPIRATION OF ORDER OF PROTECTION DID NOT MOOT APPEAL)

DENIAL OF MOTHER’S REQUEST FOR A LINCOLN HEARING WAS AN ABUSE OF DISCRETION.

The Fourth Department determined Family Court should have held a Lincoln hearing before granting father's motion to dismiss mother's petition to modify a custody order which awarded sole legal and primary physical custody of their daughter, now 14, to father:

We conclude that the court abused its discretion in denying the mother's request that it conduct a Lincoln hearing before ruling on the father's motion … . Such a hearing may be conducted “during or after fact-finding” … , and may be used to support an allegation of a change in circumstances … . The decision whether to conduct such a hearing is discretionary, but it is “often the preferable course” to conduct one … .

In this case, the child was 14 years old at the time of trial and expressed a preference to live with the mother, the Attorney for the Child did not oppose a Lincoln hearing, and many of the changed circumstances alleged by the mother concerned matters within the personal knowledge of the child but not that of the mother or her witnesses. Under those circumstances, we conclude that a Lincoln hearing would have provided the court with ” significant pieces of information [it needed] to make the soundest possible decision' ” … . Matter of Noble v Brown, 2016 NY Slip Op 02238, 4th Dept 3-25-16

FAMILY LAW (DENIAL OF MOTHER'S REQUEST FOR A LINCOLN HEARING WAS AN ABUSE OF DISCRETION)/CUSTODY (FAMILY LAW, DENIAL OF MOTHER'S REQUEST FOR A LINCOLN HEARING WAS AN ABUSE OF DISCRETION)/LINCOLN HEARING (DENIAL OF MOTHER'S REQUEST FOR A LINCOLN HEARING WAS AN ABUSE OF DISCRETION)

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SPECIAL NEEDS STUDENT SHOULD HAVE BEEN ALLOWED TO AMEND HER NOTICE OF CLAIM TO REFLECT ALLEGATIONS OF AN ASSAULT AND RAPE SHE MADE IN HER DEPOSITION, ALLEGATIONS WHICH DIFFERED DRAMATICALLY FROM THOSE MADE IN THE ORIGINAL NOTICE OF CLAIM.

The Fourth Department, over an extensive dissent, determined Supreme Court should have allowed plaintiff, a special needs student, to amend her notice of claim to reflect allegations made in her deposition. At the deposition, she alleged she was raped by an African-American male under the bleachers on the athletic field. Her original notice of claim alleged she was raped by a white man in a locker room. The essence of the notice of claim was the school district's failure to supervise plaintiff, who was always to be accompanied by an aide. The Fourth Department determined the essence of the claim, failure to supervise, remained unchanged and the amendment would not prejudice the school district:

“Pursuant to [General Municipal Law] section 50-e (6), a court in its discretion may permit the correction of a notice of claim where there has been a mistake, omission, irregularity or defect made in good faith . . . , provided it shall appear that the other party was not prejudiced thereby' ” … . We conclude that Doe's documented delays in cognitive and social functioning, together with her fear of the assailant and post traumatic stress disorder allegedly resulting from the attack, provide a good faith basis for the amendment sought by plaintiffs … .

We further conclude that the District is not prejudiced by the proposed amendment. Contrary to the contention of the District, the amendment sought by plaintiffs does not make “substantive changes in the theory of liability” … . Plaintiffs' theory of liability in the original notice of claim was that Doe suffered injury as the result of the District's negligent failure to provide the level of supervision that it had previously determined was necessary for her, i.e., door-to-door transportation and an aide to accompany her at all times throughout the school day. Plaintiffs' claim remains that defendant was negligent in failing to supervise Doe, regardless of the identity of her assailant or the precise location of the attack. Doe v Rochester City School Dist., 2016 NY Slip Op 02275, 4th Dept 3-25-16

EDUCATION SCHOOL LAW (SPECIAL NEEDS STUDENT SHOULD HAVE BEEN ALLOWED TO AMEND HER NOTICE OF CLAIM TO REFLECT ALLEGATIONS OF AN ASSAULT AND RAPE SHE MADE IN HER DEPOSITION, ALLEGATIONS WHICH DIFFERED DRAMATICALLY FROM THOSE MADE IN THE ORIGINAL NOTICE OF CLAIM)/MUNCIPAL LAW (SPECIAL NEEDS STUDENT SHOULD HAVE BEEN ALLOWED TO AMEND HER NOTICE OF CLAIM TO REFLECT ALLEGATIONS OF AN ASSAULT AND RAPE SHE MADE IN HER DEPOSITION, ALLEGATIONS WHICH DIFFERED DRAMATICALLY FROM THOSE MADE IN THE ORIGINAL NOTICE OF CLAIM)/NOTICE OF CLAIM  (SPECIAL NEEDS STUDENT SHOULD HAVE BEEN ALLOWED TO AMEND HER NOTICE OF CLAIM TO REFLECT ALLEGATIONS OF AN ASSAULT AND RAPE SHE MADE IN HER DEPOSITION, ALLEGATIONS WHICH DIFFERED DRAMATICALLY FROM THOSE MADE IN THE ORIGINAL NOTICE OF CLAIM)

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SEIZURE OF COCAINE WAS NOT SUFFICIENTLY ATTENUATED FROM ILLEGAL DETENTION, SUPPRESSION SHOULD HAVE BEEN GRANTED; RULING THAT DETENTION WAS ILLEGAL WAS NOT ADVERSE TO THE DEFENDANT AND THEREFORE COULD NOT BE RECONSIDERED ON APPEAL.

The Fourth Department determined cocaine found on defendant's person in a strip search should have been suppressed. Defendant was stopped on the street after the police saw an exchange between defendant and a woman. The defendant was patted down with his consent but nothing was found. The defendant was then placed in the back of a police car uncuffed. When the police questioned the woman, she told them defendant had cocaine between his buttocks, where it was eventually found. The trial court found defendant had been illegally detained but did not suppress. The court noted that, because the illegal detention finding was not adverse to the defendant, the court could not consider the issue on appeal. Therefore, the People's argument that the police actions were proper from the outset could not be entertained. The court concluded the seizure of the cocaine was not sufficiently attenuated from the illegal detention:

As a preliminary matter, we note that, “[s]ince we are reviewing a judgment on the defendant's appeal, and the issue of whether the defendant was [unlawfully detained] was not decided adversely to him, we are jurisdictionally barred from considering” the People's contention that the police officers' encounter with defendant was lawful at its inception and at every stage thereafter … .

We agree with defendant that the court erred in determining that the seizure of evidence from his person was attenuated from the taint of the illegality … . “While the effect of illegally initiated police intrusion may potentially become attenuated, as a practical matter there is rarely opportunity for the attenuation of primary official illegality in the context of brief, rapidly unfolding street or roadside encounters predicated on less than probable cause . . . [O]nce a wrongful police-initiated intrusion is established, suppression of closely after-acquired evidence appears to follow ineluctably” … . People v King, 2016 NY Slip Op 02264, 4th Dept 3-25-16

CRIMINAL LAW (SEIZURE OF COCAINE WAS NOT SUFFICIENTLY ATTENUATED FROM ILLEGAL DETENTION, SUPPRESSION SHOULD HAVE BEEN GRANTED)/EVIDENCE (SEIZURE OF COCAINE WAS NOT SUFFICIENTLY ATTENUATED FROM ILLEGAL DETENTION, SUPPRESSION SHOULD HAVE BEEN GRANTED)/SUPPRESSION (SEIZURE OF COCAINE WAS NOT SUFFICIENTLY ATTENUATED FROM ILLEGAL DETENTION, SUPPRESSION SHOULD HAVE BEEN GRANTED)/SEARCHES AND SEIZURES (SEIZURE OF COCAINE WAS NOT SUFFICIENTLY ATTENUATED FROM ILLEGAL DETENTION, SUPPRESSION SHOULD HAVE BEEN GRANTED)/STREET STOPS (SEIZURE OF COCAINE WAS NOT SUFFICIENTLY ATTENUATED FROM ILLEGAL DETENTION, SUPPRESSION SHOULD HAVE BEEN GRANTED)/APPEALS (CRIMINAL LAW, RULING THAT DETENTION WAS ILLEGAL WAS NOT ADVERSE TO THE DEFENDANT AND THEREFORE COULD NOT BE RECONSIDERED ON APPEAL)

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MIDTRIAL ORAL MOTION TO SUPPRESS, MADE AFTER THE PEOPLE BELATEDLY PROVIDED THE SEARCH WARRANT APPLICATION, REQUIRED A HEARING; COURT’S SUA SPONTE DENIAL OF THE MOTION WAS IMPROPER.

The Fourth Department determined the denial of defendant's midtrial motion to suppress evidence seized pursuant to a search warrant should not have been denied without a hearing. The search warrant application was not provided to the defense until after the trial had begun. The application indicated probable cause for the warrant was gained through a prior “security sweep” of the building:

In determining whether a hearing is required pursuant to CPL 710.60, “the sufficiency of defendant's factual allegations should be evaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) defendant's access to information” … . We note that the motion was not required to be made in writing, as would be required for a pretrial motion to suppress (see CPL 710.60 [1]) and, because it was properly “made orally in open court” during trial, the court was required, “where necessary, [to] conduct a hearing as provided in [CPL 710.60 (4)], out of the presence of the jury if any, and make findings of fact essential to the determination of the motion” (CPL 710.60 [5]).

We conclude that a hearing was necessary herein. Defendant's allegation that the search was of his home was sufficient “to demonstrate a personal legitimate expectation of privacy in the searched premises” … . * * * … [T]he People's current contention [that the sweep was justified by exigent circumstances] … ” raise[s] a factual dispute on a material point which must be resolved before the court can decide the legal issue' of whether evidence was obtained in a constitutionally permissible manner” … . Thus, before ruling on the motion, “it was incumbent upon [Supreme C]ourt to conduct a hearing to determine whether there were sufficient exigent circumstances [or other factors such as an ongoing emergency situation that would] justify the . . . warrantless entry” into the building … . Therefore, we hold the case, reserve decision, and remit the matter to Supreme Court for a hearing on defendant's midtrial suppression motion … . People v Samuel, 2016 NY Slip Op 02222, 4th Dept 3-25-16

CRIMINAL LAW (MIDTRIAL ORAL MOTION TO SUPPRESS, MADE AFTER THE PEOPLE BELATEDLY PROVIDED THE SEARCH WARRANT APPLICATION, REQUIRED A HEARING; COURT'S SUA SPONTE DENIAL OF THE MOTION WAS IMPROPER)/EVIDENCE (CRIMINAL LAW, MIDTRIAL ORAL MOTION TO SUPPRESS, MADE AFTER THE PEOPLE BELATEDLY PROVIDED THE SEARCH WARRANT APPLICATION, REQUIRED A HEARING; COURT'S SUA SPONTE DENIAL OF THE MOTION WAS IMPROPER)/SUPPRESSION (CRIMINAL LAW, MIDTRIAL ORAL MOTION TO SUPPRESS, MADE AFTER THE PEOPLE BELATEDLY PROVIDED THE SEARCH WARRANT APPLICATION, REQUIRED A HEARING; COURT'S SUA SPONTE DENIAL OF THE MOTION WAS IMPROPER)/SEARCHES AND SEIZURES (MIDTRIAL ORAL MOTION TO SUPPRESS, MADE AFTER THE PEOPLE BELATEDLY PROVIDED THE SEARCH WARRANT APPLICATION, REQUIRED A HEARING; COURT'S SUA SPONTE DENIAL OF THE MOTION WAS IMPROPER)

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JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION, NEW TRIAL ORDERED.

The Fourth Department reversed defendant's conviction for possession of a weapon, finding the People's request for a constructive-possession jury instruction should not have been granted. The defendant had been seen holding an object that appeared to have been fired and DNA evidence tied defendant to a revolver that was found five feet away from where defendant was lying, shot, in a parking lot.  There was no evidence which warranted a jury charge on constructive, as opposed to physical, possession of the weapon:

To meet their burden of proving defendant's constructive possession of the [revolver], the People had to establish that defendant exercised dominion or control over [the revolver] by a sufficient level of control over the area in which [it was] found” … . Here, we conclude that there is no view of the evidence that defendant had constructive possession of the revolver … . Defendant's “mere presence in an area where” the revolver was found “is not sufficient to establish that he exercised such dominion and control as to establish constructive possession” … . We further conclude that the error is not harmless inasmuch as we cannot determine if the verdict was based upon defendant's physical possession of the revolver or his constructive possession of it … . People v Diallo, 2016 NY Slip Op 02213, 4th Dept 3-25-16

CRIMINAL LAW (JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION, NEW TRIAL ORDERED)/EVIDENCE (CRIMINAL LAW, JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION, NEW TRIAL ORDERED)/CONSTRUCTIVE POSSESSION (CRIMINAL LAW, JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION, NEW TRIAL ORDERED)

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SEARCH WARRANT WAS NOT BASED UPON PROBABLE CAUSE TO BELIEVE THE EVIDENCE SOUGHT WOULD BE AT THE SEARCHED LOCATION, MOTION TO SUPPRESS WAS PROPERLY GRANTED AND INDICTMENT WAS PROPERLY DISMISSED.

The Fourth Department affirmed Supreme Court's granting of defendant's motion to suppress the fruits of a search warrant for a house (285 Lincoln Avenue). The search warrant sought evidence of a murder at a residence on Grafton Street. The defendant had been driven to the Grafton Street residence on the day of the murder. The search warrant at issue was for a different residence, 285 Lincoln Avenue. The search warrant application was based upon evidence the defendant's cell phone had been in the vicinity of the 285 Lincoln Avenue, the defendant had been seen in the driveway of 285 Lincoln Avenue, and defendant was a Facebook friend of the person to whom the utilities at 285 Lincoln Avenue were registered. However defendant was never seen entering 295 Lincoln Avenue and the search warrant application did not provide probable cause to believe evidence of the Grafton Street murder would be found at the property:

It is well settled that a search warrant may be issued only upon a showing of probable cause to believe that a crime has occurred, is occurring, or is about to occur … , and where there is sufficient evidence from which to form a reasonable belief that evidence of the crime may be found inside the location sought to be searched … . Here, we conclude that the Supreme Court properly determined that the application for the search warrant contained no specific factual allegations that tied the location of 285 Lincoln Avenue to the evidence sought to be seized; failed to establish any dominion and control of 285 Lincoln Avenue by defendant; and failed to tie defendant to the Grafton Street murder, or to his possession of evidence or contraband pertaining to that murder … . People v Moxley, 2016 NY Slip Op 02192, 4th Dept 3-25-16

CRIMINAL LAW (SEARCH WARRANT WAS NOT BASED UPON PROBABLE CAUSE TO BELIEVE THE EVIDENCE SOUGHT WOULD BE AT THE SEARCHED LOCATION, MOTION TO SUPPRESS WAS PROPERLY GRANTED AND INDICTMENT WAS PROPERLY DISMISSED)/EVIDENCE (CRIMINAL LAW, SEARCH WARRANT WAS NOT BASED UPON PROBABLE CAUSE TO BELIEVE THE EVIDENCE SOUGHT WOULD BE AT THE SEARCHED LOCATION, MOTION TO SUPPRESS WAS PROPERLY GRANTED AND INDICTMENT WAS PROPERLY DISMISSED)/SUPPRESSION (SEARCH WARRANT WAS NOT BASED UPON PROBABLE CAUSE TO BELIEVE THE EVIDENCE SOUGHT WOULD BE AT THE SEARCHED LOCATION, MOTION TO SUPPRESS WAS PROPERLY GRANTED AND INDICTMENT WAS PROPERLY DISMISSED)/SEARCHES AND SEIZURES  (SEARCH WARRANT WAS NOT BASED UPON PROBABLE CAUSE TO BELIEVE THE EVIDENCE SOUGHT WOULD BE AT THE SEARCHED LOCATION, MOTION TO SUPPRESS WAS PROPERLY GRANTED AND INDICTMENT WAS PROPERLY DISMISSED)

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FORCIBLE DETENTION AMOUNTED TO ARREST WITHOUT PROBABLE CAUSE, GUILTY PLEA VACATED, INDICTMENT DISMISSED.

The Fourth Department determined the forcible detention of defendant prior to finding heroin in plain view in a vehicle in which defendant was a passenger constituted an illegal arrest. The seized evidence, therefore, should have been suppressed and the indictment dismissed:

We … agree with defendant that he was unlawfully arrested without probable cause prior to the police finding packets of heroin in plain view in the vehicle. Although “[i]t is well established that not every forcible detention constitutes an arrest” … , we conclude that defendant was arrested when an officer, with his weapon drawn, opened the unlocked front seat passenger door of the vehicle, physically removed defendant, had him lie down on the ground, handcuffed and searched him, and placed him in a patrol vehicle … . “Under such circumstances, a reasonable [person] innocent of any crime, would have thought' that he [or she] was under arrest” … . Contrary to the People's contention and the court's determination, the officer's conduct ” went beyond merely ordering defendant from [the vehicle]. [He] took the additional “protective measures” of frisking defendant, handcuffing him and placing him in a police car . . . [S]uch an intrusion amounts to an arrest[,] which must be supported by probable cause' ” … . Inasmuch as the police lacked probable cause to arrest defendant before the officer returned to the vehicle and discovered the packets of heroin, the court should have suppressed that evidence, as well as the evidence subsequently found on defendant's person, as fruit of the poisonous tree … . People v Finch, 2016 NY Slip Op 02191, 4th Dept 3-25-16

CRIMINAL LAW (FORCIBLE DETENTION AMOUNTED TO ARREST WITHOUT PROBABLE CAUSE, GUILTY PLEA VACATED, INDICTMENT DISMISSED)/EVIDENCE (CRIMINAL LAW, FORCIBLE DETENTION AMOUNTED TO ARREST WITHOUT PROBABLE CAUSE, GUILTY PLEA VACATED, INDICTMENT DISMISSED)/SUPPRESSION (FORCIBLE DETENTION AMOUNTED TO ARREST WITHOUT PROBABLE CAUSE, GUILTY PLEA VACATED, INDICTMENT DISMISSED)/STREET STOPS (FORCIBLE DETENTION AMOUNTED TO ARREST WITHOUT PROBABLE CAUSE, GUILTY PLEA VACATED, INDICTMENT DISMISSED)

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DEFENDANT’S STARING AT THE POLICE FROM ACROSS THE ROAD DID NOT JUSTIFY THE INITIAL APPROACH BY THE POLICE, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED AND INDICTMENT FOR POSSESSION OF A WEAPON SHOULD HAVE BEEN DISMISSED.

The Fourth Department determined defendant's motion to suppress should have been granted and the indictment must be dismissed. The police approached the defendant and others in a patrol car merely because they had observed the defendant staring at the police from the other side of the road. The police pulled along side defendant and asked “what's up guys?” Defendant walked away and discarded a weapon. The Fourth Department found that the initial approach by the police was not warranted:

We conclude that merely staring at or otherwise looking in the direction of police officers or a patrol vehicle in a high crime area while continuing to proceed on one's way, absent any indicia of nervousness, evasive behavior, or other movements in response to seeing the police, i.e., “attendant circumstances . . . sufficient to arouse the officers' interest” … , is insufficient to provide the police with the requisite “objective, credible reason, not necessarily indicative of criminality” to justify a level one encounter … . Here, beyond the fact that defendant had stared at the police in a “higher crime area” while continuing to walk down the sidewalk, the officers testified to no further observations of defendant or the other men that drew their attention … and, to the extent that the court found that defendant displayed any nervous or evasive behavior upon initially seeing the officers, we conclude that such a finding is unsupported by the record. We agree with defendant that the officers lacked other attendant circumstances to arouse their interest inasmuch as the encounter occurred at 6:30 in the evening rather than late at night and there was automobile traffic in the area at that time … . People v Savage, 2016 NY Slip Op 02184, 4th Dept 3-25-16

CRIMINAL LAW (DEFENDANT'S STARING AT THE POLICE FROM ACROSS THE ROAD DID NOT JUSTIFY THE INITIAL APPROACH BY THE POLICE, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED AND INDICTMENT FOR POSSESSION OF A WEAPON SHOULD HAVE BEEN DISMISSED)/SUPPRESSION (DEFENDANT'S STARING AT THE POLICE FROM ACROSS THE ROAD DID NOT JUSTIFY THE INITIAL APPROACH BY THE POLICE, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED AND INDICTMENT FOR POSSESSION OF A WEAPON SHOULD HAVE BEEN DISMISSED)/EVIDENCE (CRIMINAL LAW, DEFENDANT'S STARING AT THE POLICE FROM ACROSS THE ROAD DID NOT JUSTIFY THE INITIAL APPROACH BY THE POLICE, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED AND INDICTMENT FOR POSSESSION OF A WEAPON SHOULD HAVE BEEN DISMISSED)/STREET STOPS (DEFENDANT'S STARING AT THE POLICE FROM ACROSS THE ROAD DID NOT JUSTIFY THE INITIAL APPROACH BY THE POLICE, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED AND INDICTMENT FOR POSSESSION OF A WEAPON SHOULD HAVE BEEN DISMISSED)

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THE SOLE REMEDY WHEN A CONVICTION IS DEEMED AGAINST THE WEIGHT OF THE EVIDENCE IS DISMISSAL OF THE INDICTMENT, REDUCTION TO A LESSER INCLUDED OFFENSE IS NOT AVAILABLE.

The Fourth Department, over a two-justice dissent, determined: (1) the defendant's conviction for robbery second degree was against the weight of the evidence because the physical injury element was not proved beyond a reasonable doubt (the injury at issue was a small cut on the victim's finger); and (2) when a conviction is deemed against the weight of the evidence, the only remedy is dismissal of the indictment and not a reduction to a conviction of a lesser included offense. The dissent saw no reason reduction to a conviction of a lesser included offense should not be available as a remedy:

“CPL 470.20 (5) provides that the determination by an intermediate appellate court that a verdict is against the weight of the evidence requires dismissal of the indictment . . . [T]he power to reduce a conviction to a lesser included offense is limited to cases in which it is determined that the evidence is not legally sufficient to establish the defendant's guilt of an offense of which he [or she] was convicted but is legally sufficient to establish his [or her] guilt of a lesser included offense' (CPL 470.15 [2] [a]).” Thus, we conclude that “CPL 420.20 (5) requires dismissal of the indictment if it is determined that the verdict is against the weight of the evidence” (id. at 31). Indeed, the Court of Appeals has explained that “[a]n important judicial bulwark against an improper criminal conviction is not only the restrictive scope of review undertaken during a sufficiency analysis, but the protection provided by weight of the evidence examination in an intermediate appellate court. This special power requires the court to . . . determine whether the verdict was factually correct[,] and acquit a defendant if the court is not convinced that the jury was justified in finding that guilt was proven beyond a reasonable doubt” … . As we explained in Heatley (116 AD3d at 30), “if the legislature had intended to provide the same relief to modify a judgment in the event that the weight of the evidence failed to support the conviction but supported a lesser included offense, it would have done so.” People v Cooney, 2016 NY Slip Op 02203, 4th Dept 3-25-16

CRIMINAL LAW (APPEALS, THE SOLE REMEDY WHEN A CONVICTION IS DEEMED AGAINST THE WEIGHT OF THE EVIDENCE IS DISMISSAL OF THE INDICTMENT, REDUCTION TO A LESSER INCLUDED OFFENSE IS NOT AVAILABLE)/APPEALS (CRIMINAL LAW, THE SOLE REMEDY WHEN A CONVICTION IS DEEMED AGAINST THE WEIGHT OF THE EVIDENCE IS DISMISSAL OF THE INDICTMENT, REDUCTION TO A LESSER INCLUDED OFFENSE IS NOT AVAILABLE)/WEIGHT OF THE EVIDENCE REVIEW (CRIMINAL LAW, THE SOLE REMEDY WHEN A CONVICTION IS DEEMED AGAINST THE WEIGHT OF THE EVIDENCE IS DISMISSAL OF THE INDICTMENT, REDUCTION TO A LESSER INCLUDED OFFENSE IS NOT AVAILABLE)

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