You are here: / Fourth Department

Tag Archive for: Fourth Department

Temporary Lawful Possession of Weapon Defense Disproved/Justification Defense in Context of Criminal Possession of a Weapon Explained

The Fourth Department determined the evidence was sufficient to disprove defendant’s defense of temporary and lawful possession of a weapon, and explained how the justification defense relates to criminal possession of a weapon:

Even if, as defendant contends, he originally acquired the gun by disarming his alleged assailant in the course of a robbery, we conclude that the evidence is legally sufficient to establish that he thereafter possessed it with the requisite unlawful intent … .  After evading his alleged robber, defendant returned to the scene of the robbery with the gun drawn and fired five shots, one of which struck his alleged assailant in the leg. Defendant then regained possession of his property, a duffel bag containing $27,000 in cash, and fled upon the approach of the police. Such conduct is “utterly at odds with [defendant’s] claim of innocent possession . . . temporarily and incidentally [resulting] from . . . disarming a wrongful possessor”… .

Defendant further contends that he had no duty to retreat, but was justified in acting as he did, because the People failed to prove that he could have retreated with complete safety.  We reject that contention.  It is well settled that the defense of justification, which involves the “justifiable use of physical force” (Penal Law § 35.05 …), does not apply to criminal possession of a weapon … .  Thus, the “duty to retreat” rule, which applies to the defense of justification in connection with the use of deadly physical force (see § 35.15 [2] [a]), is not relevant here. Nonetheless, justification is relevant to a defendant’s intent in using a weapon.  In other words, “[t]he use of a firearm to engage in conduct that is justifiable under the law is not unlawful.  Thus, an intent to use a firearm against another justifiably is not an intent to use it unlawfully” … .  Here, however, the evidence is legally sufficient to establish that defendant “possessed the firearm with the intent to use it against another unlawfully and not solely with the intent to use it justifiably”… . People v Bailey, 1080, 4th Dept 11-8-13

 

People’s Delay In Providing Bill of Particulars Did Not Require Dismissal Under Speedy Trial Statute

The Fourth Department determined that the People’s delay in providing a bill of particulars did not require dismissal of the indictment pursuant to the speedy trial statute:

…[D]efendant asserted that the People’s bill of particulars was due on January 7, 2009—15 days after defendant’s request (see CPL 200.95 [2])—but that it was not served until August 10, 2009.  According to defendant, the time period from January 7 to August 10, which exceeds six months, constitutes postreadiness delay that should be charged to the People, thus warranting dismissal under CPL 30.30.  We reject that contention. Prior to their failure to serve a timely bill of particulars, the People announced their readiness for trial on the record, and “[f]ailing to serve a bill of particulars is in no way inconsistent with the prosecution’s continued readiness” … .  We addressed a similar contention in People v Runion (107 AD2d 1080), determining that “[t]he court should not have granted the motion made under CPL 30.30 to dismiss the indictment because of the delays of the prosecutor, after she had announced her readiness for trial, in providing discovery materials and in serving a supplemental bill of particulars.  Defendant’s remedies for such delays do not include dismissal under CPL 30.30” (id. at 1080).  People v Griffin, 1154, 4th Dept 11-8-13

 

,

Prosecutorial Misconduct Noted (Conviction Upheld However)

In affirming defendant’s conviction, the Fourth Department noted its agreement with defendant’s assertions of prosecutorial misconduct:

We agree with defendant that it was improper for the prosecutor to remark that a witness was afraid of defendant inasmuch as that was not a fair comment on the evidence … .  We further agree with defendant that the prosecutor improperly used defendants past crimes of violence to suggest that the witness had “a reason to be afraid.”  It is fundamental that the function of crossexamining a defendant about his or her prior criminal, vicious, or immoral acts “is solely to impeach [the defendant’s] credibility as a witness” … .  Nevertheless, we conclude that the prosecutor’s isolated remarks were not so egregious as to deprive defendant of a fair trial …, particularly considering that this was a bench trial… .  People v King, 1135, 4th Dept 11-8-13

 

Shooting Accomplished With Two Weapons Constituted a Single Continuing Offense/Indictment Not Duplicitous

Over a dissent, the Fourth Department determined a shooting accomplished with more than one weapon did not constitute two distinct offenses, but rather constituted a continuing offense, and, therefore, the indictment was not duplicitous:

It is well established that, “ ‘[w]here an offense may be committed by doing any one of several things, the indictment may, in a single count, group them together and charge the defendant with having committed them all, and a conviction may be had on proof of the commission of any one of the things, without proof of the commission of the others’ ” … .  Contrary to the position of the dissent, we conclude that the evidence at trial established that the multiple shots fired from two separate firearms “constitute[d] a single uninterrupted assault rather than a series of distinct criminal acts . . . , and the assault ‘occurred over a short time frame, without apparent abeyance, and was triggered by a single incident of anger’ ” … .  “The fact that more than one dangerous instrument allegedly was used by the defendant[], and more than one [shot] was [fired] causing the [victim] several injuries, does not transform this single criminal incident into multiple assaults or acts of [reckless endangerment] which must be charged by separate counts” … .  We respectfully disagree with the position of the dissent that there were separate impulses with an abeyance between them.  Rather, the evidence established that defendant assaulted the victim and his fiancée in an attempt to seek revenge for the fiancée’s alleged assault on defendant’s sister. There was one motive and one impulse:  to seek revenge.  We see no distinction between a situation in which an assaulting defendant takes the time to reload one weapon and one in which the assaulting defendant takes the time to obtain a second weapon with the single impulse of continuing the ongoing assault.

With respect to the count of reckless endangerment in the first degree, the conduct encompassed by that count was the act of endangering the life of the victim’s fiancée, who was in the vicinity of the victim the entire time defendant was shooting at the victim. “Where . . . a crime by its nature as defined in the Penal Law may be committed either by one act or by multiple acts and can be characterized as a continuing offense over time, the indictment may charge the continuing offense in a single count” … .  Under the circumstances of this case, the crime of reckless endangerment “involved a continuing offense” and could therefore encompass multiple acts in one count without being duplicitous … .  In our view, the fact that the multiple shots were fired from two separate firearms did not transform this continuing offense into two separate offenses.  We disagree with the dissent’s assumption that the fiancée was “potentially out of harm’s way” when she sought refuge in a vehicle during the barrage of gunshots inasmuch as the vehicle was still in the vicinity of the gunshots.  “[R]eckless endangerment is a conduct specific . . . crime,” and here the conduct underlying that count of the indictment was the firing of multiple gunshots in the vicinity of the fiancée … .  We thus conclude that the indictment was not rendered duplicitous by the court’s instruction that the jury could find defendant guilty of the assault and reckless endangerment charges if it found that defendant used either firearm or both.   We reject the view of the dissent that “ ‘there were two distinct shooting incidents’ ” … .  People v Flanders, 963, 4th Dept 11-8-13

 

Criteria for CPL 440.20 Motion Explained/Predicate Offenses Must Run Concurrently

The Fourth Department noted the trial court applied the wrong criteria to defendant’s motion pursuant to CPL 440.20 to vacate his consecutive sentences and determined defendant’s sentences must run concurrently.  Either the robbery or forgery count could serve as the predicate for the felony assault count and therefore the sentences for the predicate counts must run concurrently with the sentence for felony assault:

…[T]he court erred in denying the motion on the ground that defendant could have raised this issue on his direct appeal.  Mandatory denial of a motion pursuant to CPL 440.20 is required only when the issue “was previously determined on the merits upon an appeal from the judgment or sentence” (CPL 440.20 [2]), which in this case it was not … .  The court erred in conflating the provisions of CPL 440.10 with those of CPL 440.20.  The procedural bar set forth in CPL 440.10 (2) (c) “applies only to motions made pursuant to section 440.10, and it is undisputed that the instant motion was made pursuant to section 440.20” … .

We agree with defendant that the consecutive sentences for the robbery and forgery counts are illegal under the facts of this case. The indictment and charge to the jury set forth that either count could serve as the predicate for the count of felony assault, and thus the predicate counts must run concurrently with the count of felony assault … .  The sentences imposed on the counts of robbery and forgery must therefore also run concurrently… . People v Povoski, 1050.1, 4th Dept 11-8-13

 

,

References to Counsel Did Not Constitute an Unequivocal Request for Counsel

The Fourth Department determined defendant’s references to an attorney did not amount to an unequivocal request for counsel such that questioning should cease:

The right to counsel attaches, inter alia, “when a person in custody requests to speak to an attorney or when an attorney who is retained to represent the suspect enters the matter under investigation” … .  Here, defendant did not ask to speak to an attorney at any point during the police interrogation.  Defendant’s statements to the effect that he had an attorney and his questions whether he should have an attorney present were not an unequivocal invocation of the right to counsel … .  Further, defendant failed to “present[] evidence establishing that he was in fact represented by counsel at the time of interrogation, as defendant contended” … .  Although defendant indicated that he had a lawyer in connection with his marital separation, we conclude that the lawyer “was not retained ‘in the matter at issue’ ” … .  Contrary to the further contention of defendant, “the record of the suppression hearing supports the court’s determination that the statements at issue were not rendered involuntary by reason of any alleged coercion by the police” … . People v Henry, 1096, 4th Dept 11-8-13

 

,

Portions of Covenant Not to Compete Unenforceable/Liquidated Damages Clause Constituted a Penalty

The Fourth Department determined a covenant not to compete was ambiguous with respect to the scope of prohibited activity, unenforceable to the extent it attempted to bind third parties, and the liquidated damages clause in the covenant was an unenforceable penalty:

…[T]he liquidated damages clause is an unenforceable penalty.  Liquidated damages are enforceable only to the extent that they constitute “ ‘an estimate, made by the parties at the time they enter into their agreement, of the extent of the injury that would be sustained as a result of breach of the agreement’ ” … .  Typically, a liquidated damages clause is enforceable if the stipulated amount of damages “bears a reasonable proportion to the probable loss and the amount of actual loss is incapable or difficult of precise estimation” … .  However, if the clause provides for damages “ ‘plainly or grossly disproportionate to the probable loss, the provision calls for a penalty and will not be enforced’ ” … .   Here, although the amount of actual damages is incapable of precise estimation, the amount of liquidated damages was grossly disproportionate to the probable loss and was designed to penalize plaintiff for his interference with the Agreement, as well as the interference of others with the Agreement.  Moreover, the liquidated damages clause here eliminates the balance due under the Agreement based on minor breaches of the covenant not to compete such that it is an “unconscionable penalty and should not be enforced” … .  Del Nero v Colvin…, 911, 4th Dept 11-8-13

 

Contract Which Theoretically Could Be Completed in a Year, Even If Highly Unlikely, Survives Statute of Frauds Defense

The Fourth Department determined a contract which could possibly be performed in a year, even though such performance is unlikely, survives the statute of frauds defense:

…[D]efendants contend that Supreme Court erred in determining that an alleged oral agreement between the parties is not void and unenforceable pursuant to the statute of frauds (see General Obligations Law § 5-701 [a] [1]…).  The alleged oral agreement provided that defendants would purchase plaintiff’s business for $480,000 and make an initial payment of $10,000, followed by 23 monthly payments of $20,000 and a final payment of $10,000.  No party asserted that prepayment of the purchase price was prohibited under the alleged oral agreement.  Plaintiff asserted that she fully performed her obligations under the alleged oral agreement and that defendants made several payments thereunder before defaulting. …

Taking plaintiff’s “allegations as true and resolv[ing] all inferences which reasonably flow therefrom in [her] favor” …, we conclude that the court properly denied the motion.  “As long as [an] agreement may be ‘fairly and reasonably interpreted’ such that it may be performed within a year, the [s]tatute of [f]rauds will not act as a bar [to enforcing it] however unexpected, unlikely, or even improbable that such performance will occur during that time frame” … .  Here, the absence of a term prohibiting payment in full within the first year makes possible full performance of the alleged oral agreement within that year, and thus defendants did not meet their burden of establishing that the statute of frauds renders the alleged oral agreement void and unenforceable… . DeJohn v Speech, Language & Communication Associates …, 1082, 4th Dept 11-8-13

 

,

Sheriff Entitled to Poundage Even If No Money Collected—Execution by Sheriff Triggered Settlement

The Fourth Department determined the sheriff was entitled to poundage even though no money was actually collected by the sheriff (the execution by the sheriff triggered a settlement):

The Sheriff …. moved for an order awarding the payment of poundage pursuant to CPLR 8012.  We conclude that the court erred in denying that motion.  “ ‘Poundage is a fee awarded to the Sheriff in the nature of a percentage commission upon moneys recovered pursuant to a levy or [an] execution of attachment’ . . . The Sheriff’s right to receive poundage fees is wholly statutory . . . , and the statute must be strictly construed . . . Under the statute, the Sheriff is entitled to poundage fees ‘for collecting money by virtue of an execution’ (CPLR 8012 [b] [1])” … .  Although it is undisputed that the Sheriff did not actually collect any money, an award of poundage may still be made where, inter alia, “a settlement is made after a levy by virtue of an execution” (…see CPLR 8012 [b] [2]; …). …[W]here, as here, “payment by the debtor is made directly to the creditor after a sheriff levies, the payment constitutes a settlement, and the sheriff will be entitled to poundage” … .  Pursuant to the unambiguous language of the statute, the Sheriff is entitled to $24,500 in poundage based on the settlement amount of $650,000 (see CPLR 8012 [b] [1], [2]). Foley v West-Herr Ford Inc…, 1040, 4th Dept 11-8-13

 

,

Indictment Should Not Have Been Dismissed Based on Prosecutorial Misconduct

In determining the trial court erred in dismissing the indictment based upon the prosecutorial misconduct, the Fourth Department explained:

“ ‘[D]ismissal of an indictment under CPL 210.35 (5) must meet a high test and is limited to instances of prosecutorial misconduct, fraudulent conduct or errors which potentially prejudice the ultimate decision reached by the [g]rand [j]ury’ ” … .  As the Court of Appeals has stated, “not every improper comment, elicitation of inadmissible testimony, impermissible question or mere mistake renders an indictment defective.  Typically, the submission of some inadmissible evidence will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment” … .

Here, the prosecutor was required to establish that the four-year-old victim could provide unsworn testimony, but failed to do so… . The prosecutor also violated the unsworn witness rule during an attempt to persuade the child to testify about the incident … .  Nevertheless, we conclude that the prosecutor did not thereby engage in conduct that was fraudulent in nature, nor was the prosecutor’s conduct so egregious as to impair the integrity of the grand jury proceedings … .  We further conclude that the remaining evidence is legally sufficient to sustain the indictment.  People v Elioff, 1002, 4th Dept 10-4-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy