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THE PLEA COLLOQUY IN WHICH DEFENDANT STATED HE CARED FOR THE THREE-YEAR-OLD VICTIM NEGATED AN ESSENTIAL ELEMENT OF DEPRAVED INDIFFERENCE MURDER; PLEA VACATED (FOURTH DEPT).

The Fourth Department, vacating defendant’s plea to depraved indifference murder, determined the plea colloquy negated an essential element of the offense:

… [W]e agree with defendant that, although his admissions during the plea allocution established the mens rea element of recklessness … , his recitation of the facts underlying the charge of murder in the second degree pursuant to Penal Law § 125.25 (2) “cast significant doubt upon his guilt insofar as it negated the [second mens rea] element of depraved indifference” … . In response to the court’s question whether defendant did not care if harm happened to the victim or how the risk to the victim turned out, defendant stated through defense counsel that “[h]e did care for [the victim].” We conclude that defendant’s statement negated the element of depraved indifference because the second mens rea element of the crime required that defendant “did not care whether [the] victim lived or died” … or, in other words, that he did “not care how the risk turn[ed] out” … . Defendant, however, conveyed during the factual recitation the exact opposite of the requisite mental state, i.e., that he did, in fact, care for the victim. People v Bovio, 2022 NY Slip Op 03591, Fourth Dept 6-3-22

Practice Point: The defendant, during the plea colloquy for depraved indifference murder, stated that he cared for the three-year-old victim. That statement negated the element of depraved indifference murder which requires that the defendant “not care if the victim lived or died.” The plea was vacated.

 

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THERE WAS NO EVIDENCE LINKING DEFENDANT TO A BURGLARY EXCEPT A PARTIAL FINGERPRINT FOUND AT THE SCENE WHICH ONLY MATCHED 15 TO 22.5% OF THE CHARACTERISTICS OF DEFENDANT’S INKED PRINT; THE BURGLARY CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s burglary conviction, determined the evidence that a partial fingerprint from the burglary scene matched the defendant was too weak to support the conviction. The conviction was therefore against the weight of the evidence:

On cross-examination, the fingerprint examiner agreed that her opinion is subjective, that two examiners may reach different opinions when examining the same set of prints, and that verification by a second examiner, particularly blind verification, significantly increases the accuracy of fingerprint analysis. She further testified that every individual fingerprint has approximately 80 to 120 classifiable characteristics, and that every characteristic between two prints must be identical for them to be considered a match. Here, because of the limited nature of the partial print, she was only able to match 18 characteristics, meaning that it matched 15% to 22.5% of the characteristics of defendant’s inked print. Further, there was no evidence presented at trial that a second examiner had made a positive verification that the partial print was made by defendant. No other evidence was introduced at trial linking defendant to the crime. People v Jones, 2022 NY Slip Op 03590, Fourth Dept 6-3-22

Practice Point: Here a partial fingerprint matched only 15 to 22.5% of the characteristics of defendant’s inked print and the “match” was not verified by a second examiner conducting a blind verification. There was no other evidence linking defendant to the burglary. The conviction was deemed against the weight of the evidence.

 

THE TRANSFER OF DECEDENT’S HOME TO THE TWO CHILDREN WHO WERE CARING FOR HIM WAS COMPENSATION FOR THE CAREGIVERS PURSUANT TO AN AGREEMENT, NOT A GIFT (WHICH WOULD NOT HAVE BEEN AUTHORIZED BY THE POWER OF ATTORNEY) (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, determined the transfer of decedent’s home to the two children who were caring for decedent was demonstrated to be compensation for the caregivers pursuant to an agreement, not a gift (the power of attorney did not authorize agents to make major gifts):

The court concluded that the transfer was an improper gift, relying on the presumption that “where parties are related, . . . services were rendered in consideration of love and affection, without expectation of payment” … . Even assuming, arguendo, that the presumption applies to the inter vivos transfer at issue here … , we conclude that respondents supported their motion with “clear, convincing and satisfactory evidence[] that there was an agreement  . . that the services would be compensated” … . Matter of Maik, 2022 NY Slip Op 03589, Fourth Dept 6-3-22

Practice Point: Here there was an agreement that the children who cared for the disabled decedent would be compensated. The transfer of decedent’s home to the caregivers was compensation for their services, not a gift (which would not have been authorized by the power of attorney).

 

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MOLINEUX EVIDENCE OF A PRIOR BURGLARY OF THE ROBBERY-VICTIM’S HOME TO SHOW THE INTENT TO COMMIT ROBBERY AND GRAND LARCENY SHOULD NOT HAVE BEEN ADMITTED; THE INTENT TO COMMIT ROBBERY AND GRAND LARCENY WAS DEMONSTRATED BY THE VICTIM’S TESTIMONY RENDERING EVIDENCE OF THE PRIOR BURGLARY TOO PREJUDICIAL (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s robbery and grand larceny convictions, determined Molineux evidence of a burglary of the robbery-victim’s home three days before the robbery should not have been admitted to show intent. The intent to rob was demonstrated by the victim’s testimony, rendering proof of the prior burglary more prejudicial than probative:

… [E]vidence that defendant may have been involved in an earlier burglary of the victim’s home was not necessary for the jury to infer that, three days later, defendant had the intent to rob the victim. Rather, defendant’s intent to forcibly steal property can be inferred from the victim’s testimony that defendant, while wielding a baseball bat, directed him to comply with the demands of an unidentified masked gunman to turn over money and property. Under those circumstances, any probative value of the evidence of the prior burglary “is outweighed by its potential for prejudice” … . For the same reason, defendant’s “intent to deprive another of property” … as required for a conviction of grand larceny in the fourth degree (§ 155.30 [1], [5]), or intent “to place another person in reasonable fear of physical injury, serious physical injury or death” as required for a conviction of menacing in the second degree (§ 120.14 [1]) could likewise be easily inferred from the victim’s testimony describing defendant’s conduct during the alleged crimes. People v Dejesus, 2022 NY Slip Op 03584, Fourth Dept 6-3-22

Practice Point: Evidence of defendant’s commission of an uncharged crime (Molineux evidence) to show defendant’s intent to commit the charged offenses will be deemed too prejudicial if the intent element of the charged offenses is demonstrated by the victim’s testimony.

 

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DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER BASED UPON A PRIOR FEDERAL DRUG CONSPIRACY CONVICTION; THE ISSUE FALLS WITHIN A NARROW EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT).

The Fourth Department determined defendant should not have been sentenced as a second felony offender based upon a prior federal drug conspiracy conviction:

… [T]his case “falls within the narrow exception to [the] preservation rule permitting appellate review when a sentence’s illegality is readily discernible from the . . . record” … . Here, the record establishes that the predicate felony was based on defendant’s previous conviction in federal court of conspiracy to possess with intent to distribute 500 grams or more of cocaine (21 USC § 846; see § 841 [a] [1]; [b]). However, “under New York’s ‘strict equivalency’ standard for convictions rendered in other jurisdictions, a federal conviction for conspiracy to commit a drug crime may not serve as a predicate felony for sentencing purposes” … . People v Lopez, 2022 NY Slip Op 02925, Fourth Dept 4-29-22

Practice Point: A defendant cannot be sentenced as a second felony offender based upon a prior federal drug conspiracy conviction. The issue fell within an exception to the preservation requirement.

 

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ALTHOUGH BAIL-SETTING IS NOT APPEALABLE, WHETHER THE BAIL-SETTING COURT COMPLIED WITH THE CONSTITUTIONAL OR STATUTORY STANDARDS INHIBITING EXCESSIVE BAIL IS A PROPER SUBJECT FOR A HABEAS CORPUS PETITION; HERE THE BAIL-SETTNG COURT DID NOT COMPLY WITH CPL 510.30; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter, determined that, although bail-setting is not appealable, the habeas corpus petition was the proper vehicle for a review of whether the constitutional or statutory standards inhibiting excessive bail were met. Here it was alleged the bail-setting court did not comply with CPL 510.30 by explaining its finding that remand was the least restrictive option:

… [A]fter considering all of the relevant factors under CPL 510.30 (1), the bail-setting court determined that remand was the least restrictive condition. We conclude that the bail-setting court failed to comply with the statutory mandate of CPL 510.10 (1) because it failed to “explain its choice of release, release with conditions, bail or remand on the record or in writing.” We therefore reverse the judgment, reinstate the petition, and grant the petition in part, and we remit the matter to the bail-setting court for further proceedings to satisfy the requirements of CPL 510.10 (1) … . People ex rel. Steinagle v Howard, 2022 NY Slip Op 02901, Fourth Dept 4-29-22

Practice Point: Although bail-setting is not appealable, a habeas corpus petition can be used to argue the bail-setting court did not comply with the constitutional or statutory standards inhibiting excessive bail. Here the court’s failure to explain its choice to remand the defendant violated CPL 510.30.

 

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A PROSECUTION WITNESS’S WRITTEN STATEMENT DID NOT MEET THE CRITERIA FOR PAST RECOLLECTION RECORDED AND SHOULD NOT HAVE BEEN ADMITTED; THE JUDGE’S USE OF THE PHRASE “POTENTIALLY AIDS” INSTEAD OF “INTENTIONALLY AIDS” IN THE ACCOMPLICE LIABILITY JURY INSTRUCTION PREJUDICED THE DEFENDANT; ALTHOUGH THE JURY INSTRUCTION ERROR WAS NOT PRESERVED, THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined: (1) a written statement by a prosecution witness should not have been admitted as “past recollection recorded;” and (2) the jury instruction on accomplice liability prejudiced defendant. The jury-instruction error was not preserved but was considered in the interest of justice:

“The foundational requirements for the admissibility of a past recollection recorded are: (1) the witness must have observed the matter recorded; (2) the recollection must have been fairly fresh at the time when it was recorded; (3) the witness must currently be able to testify that the record is a correct representation of his or her knowledge and recollection at the time it was made; and (4) the witness must lack sufficient present recollection of the information recorded”  … . ,,,

… [T]he prosecution witness in question did not testify that his written statement accurately represented his knowledge and recollection when made. To the contrary, the witness testified that the statement was not accurate when given because he was under the influence of narcotics at that time … . Moreover, because the statement was made more than six months after the alleged events recorded therein, the recollection was not “fairly fresh” when recorded … . …

Penal Law § 20.00 provides that a “person is criminally liable for [the conduct of another] when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct” ,,, . … [W]e conclude that the court’s use of the phrase “potentially aids” rather than “intentionally aids” significantly prejudiced defendant, who was alleged to have aided and abetted the principal by driving him to and from the crime scene…. . People v Gardner, 2022 NY Slip Op 02911, Fourth Dept 4-29-22

Practice Point: Here the written statement did not meet the criteria for admissibility as past recollection recorded. The witness testified the statement was not accurate when given because he was high and the statement was not “fresh” because it was made six months after the events described in it.

 

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DEFENDANT WAS CONVICTED OF ASSAULT THIRD BASED UPON HIS LOSING CONTROL OF THE CAR AND CRASHING, INJURING A PASSENGER; THE “CRIMINAL NEGLIGENCE” ELEMENT OF ASSAULT THIRD WAS NOT SUPPORTED BY THE EVIDENCE; CONVICTION REVERSED UNDER A “WEIGHT OF THE EVIDENCE” ANALYSIS (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, determined the criminal-negligence element of assault third was not proven. Defendant was driving with a passenger when he crossed into the oncoming lane, pulled back into his lane, lost control and crashed, injuring the passenger:

In cases involving criminal negligence arising out of automobile accidents involving excess rates of speed, such as here, “it takes some additional affirmative act by the defendant to transform ‘speeding’ into ‘dangerous speeding’ ” … . With respect to the issue of defendant’s rate of speed, the trial testimony from the prosecution’s expert witness that defendant was driving at the excessive speed of approximately 92 miles per hour at the time of the incident was speculative … . The expert’s calculation of the vehicle’s speed was based on the assumption of “100 percent braking,” but there was no evidence that defendant braked at all before his vehicle collided with the mailbox, tree and utility pole and came to a stop. Moreover, the People’s version of the events, that defendant deliberately attempted to “flatten out the curve” by crossing the double line of the curve, does not rise to the level of moral blameworthiness to constitute criminal negligence … . People v Palombi, 2022 NY Slip Op 02896, Fourth Dept 4-29-22

Practice Point: In the context of an assault third charge alleging a car accident was the result of defendant’s “criminal negligence,” proof of speeding, as opposed to proof of “dangerous speeding,” will not support a conviction. This case is a good example of “legally sufficient evidence” resulting in a conviction which is determined on appeal to be “against the weight of the evidence.” The expert evidence presented to show the speed at which defendant was driving was speculative and based upon an unproved assumption. That evidence was deemed too weak to support a conviction, thereby rendering the conviction “against the weight of the evidence.”

 

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THE MAJORITY CONCLUDED THAT, IF IT WAS ERROR TO ADMIT TESTIMONY THAT THE RAPE VICTIM WAS AWARE DEFENDANT HAD BEEN INCARCERATED, THE ERROR WAS HARMLESS; TWO DISSENTERS ARGUED THE EVIDENCE HAD NO PROBATIVE VALUE BECAUSE THE VICTIM’S STATE OF MIND WAS NOT IN ISSUE AND ITS INTRODUCTION WAS THERFORE HIGHLY PREJUDICIAL (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined that, if it was error to admit testimony that the rape victim was aware defendant had been incarcerated, the error was harmless. The dissenters argued that the victim’s state of mind, i.e., awareness of defendant’s prior incarceration, was irrelevant because the victim was immediately overpowered and pushed to the floor upon opening the door for the defendant:

From the dissent:

The evidence … had no probative value under the circumstances of this case and should have been excluded as prejudicial … . People v Hartsfield, 2022 NY Slip Op 02908, Fourth Dept 4-29-22

Practice Point: The two dissenters argued that evidence the rape victim was aware defendant had been incarcerated should not have been admitted because it was  irrelevant and highly prejudicial. The evidence was irrelevant because the victim’s state of mind was not in issue.

 

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THE MAJORITY HELD THE DEFENDANT’S ACTIONS INSIDE THE STOPPED VEHICLE RAISED A REASONABLE SUSPICION DEFENDANT WAS ARMED, JUSTIFYING A PAT DOWN SEARCH; THE DISSENT ARGUED THE DEFENDANT’S ACTIONS WERE EQUIVOCAL AND INNOCUOUS (FOURTH DEPT).

The Fourth Department, over a dissent, determined the police officer’s observations of defendant inside the stopped vehicle were sufficient to raise a reasonable suspicion the defendant was armed, which justified the pat down search. The dissent argued that the proof presented at the suppression hearing did not meet the “reasonable suspicion” standard.

Although the dissent suggests otherwise, the fact that the officer’s view of defendant was obscured to some extent when defendant was partially concealed inside the vehicle and was observed surreptitiously reaching toward his waistband constitutes a “circumstance that supports a reasonable suspicion that [defendant was] armed or pose[d] a threat to [officer] safety” … .

From the dissent:

“Reasonable suspicion ‘may not rest on equivocal or “innocuous behavior” that is susceptible of an innocent as well as a culpable interpretation’ ” … . Inasmuch as defendant’s nervousness and movements were susceptible of an innocent interpretation, particularly in light of his status as the vehicle’s only black occupant, and inasmuch as defendant was, according to the officer’s testimony, “fully compliant” with the officers’ instruction to exit the vehicle, I agree with defendant that his conduct while in the vehicle was insufficient to establish reasonable suspicion necessary for law enforcement to conduct a pat frisk of his person … . People v Ginty, 2022 NY Slip Op 02899, Fourth Dept 4-29-22

Practice Point: Although only the dissent felt this analysis applied here, a person’s “equivocal” or “innocuous” behavior, like nervousness or shaking, does not support a “reasonable suspicion” that a person is armed.

 

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