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“Serious Physical Injury” Element of Gang Assault Not Supported by Legally Sufficient Evidence

The Second Department determined the evidence of the “serious physical injury” element of the gang assault charge was not supported by legally sufficient evidence:

The defendant challenges his conviction of gang assault in the first degree, asserting that the People failed to present legally sufficient evidence that [the victim] suffered a “serious physical injury,” which is defined as “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” (Penal Law § 10.00[10]). * * *

Although [the victim] was stabbed in the right flank, his wounds required no stitches, and there was no evidence that he suffered any permanent damage to his kidney, which suffered a small laceration. Moreover, when he was examined, [the victim] was oriented and alert, able to converse, and had normal vital signs and blood pressure. Further, the only evidence of protracted disfigurement or impairment of health was that he had a scar, which the jury saw, and that he felt pain on the scar. The record, however, includes no description of the scar or what, if any, limitations [the victim] suffered as a result of his injury. Thus, the People failed to adduce legally sufficient evidence that [the victim] suffered a “serious physical injury” within the meaning of Penal Law § 10.00(10), which is an element of gang assault in the first degree … . People v Mazariego, 2014 NY Slip Op 03863, 2nd Dept 5-28-14

 

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Statement About Gang Affiliation Should Have Been Suppressed—Not Merely “Pedigree” Information

The Second Department determined that defendant’s statement about his gang affiliation should have been suppressed. The defendant had not yet been read his Miranda rights.  The People’s argument that the statement was simply part of so-called “pedigree” information (like “address” and “phone number”) was rejected.  The error was deemed harmless however.  People v Hiraeta, 2014 NY Slip Op 03698, 2nd Dept 5-21-14

 

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Evidence of Gang Membership Properly Admitted to Show Motive for Assault

The Second Department determined evidence of defendant’s membership in a gang, including expert evidence, was properly admitted in light of defense counsel’s argument defendant had no motive to assault correction officers.  People v Murray, 2014 NY Slip Op 02957, 2nd Dept 4-30-14

 

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Gang Affiliation and Prior Drug Offenses Admissible Under Molineux in Murder Case/Motion to Suppress Statement Made When Questioning Continued After Defendant Stated He Did Not Want to Answer Any More Questions Should Have Been Granted

The Third Department determined evidence of defendant’s gang affiliation and uncharged drug offenses were admissible in defendant’s murder trial under Molineux.  In addition, the Third Department determined defendant’s statements made after he said he didn’t want to answer any more questions should have been suppressed.  [The Third Department rejected the People’s argument that the suppression issue was decided in a prior prosecution and the doctrine of collateral estoppel should apply.] With respect to the Molineux and “right to remain silent” issues, the Court wrote:

“Generally speaking, evidence of uncharged  crimes or prior bad acts may be admitted where they fall within the recognized Molineux exceptions – motive, intent, absence of mistake, common plan or scheme and identity – or where such proof is inextricably interwoven with the charged crimes, provide[s] necessary background or complete[s] a witness’s narrative” … . Here, defendant’s drug-related activities and purported gang membership provided necessary background information, explained how [the other parties] and defendant knew one another (as well as why defendant’s acquaintances went along with his plan to rob the weed spot[where the murder took place]) and, viewed in the context of the activities that occurred prior to the shooting, established both defendant’s awareness of the weed spot and a motive for the shooting; thus, such “evidence was highly probative of several relevant and material issues at trial and genuinely interwoven with the facts surrounding the shooting” … .

The case law makes clear that “[a] defendant’s invocation of the right to remain silent must be scrupulously honored” … once the right is asserted in an “unequivocal and unqualified” fashion … Whether  a defendant’s  request in this regard is “unequivocal is a mixed question of law and fact that must be determined with reference to  the  circumstances surrounding  the  request[,] including the defendant’s demeanor, manner of expression and the particular words found to have been used by the defendant” … .  People v Johnson, 104081, 3rd Dept, 5-16-13

SUPPRESSION, SUPPRESS

 

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