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PEOPLE’S FAILURE TO OBJECT TO JURY INSTRUCTION WHICH (UNNECESSARILY) INCREASED THEIR BURDEN OF PROOF REQUIRED THE PEOPLE TO MEET THAT BURDEN.

The Second Department determined that People’s failure to object to the judge’s instruction to the jury, which increased the People’s burden of proof, required that the People meet that burden (which the People failed to do). The defendant was charged with first degree robbery. Two victims, Brandt and Bishop, were ordered to lie on the ground at gunpoint. Brandt was shot when he didn’t lie down and later died. Property was taken from Bishop, but not from Brandt. In the charge to the jury, the judge stated that, in order to convict the defendant of first degree robbery, the jury must find property was forcibly taken from Brandt. The People did not object:

As the People correctly concede, the evidence was legally insufficient to establish the defendant’s guilt of robbery in the first degree under Penal Law § 160.15(1), as that crime was charged to the jury. As relevant here, “[a] person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . [c]auses serious physical injury to any person who is not a participant in the crime” (Penal Law § 160.15[1]). In this case, the Supreme Court instructed the jurors, without objection, that to find the defendant guilty of robbery in the first degree, they had to find, inter alia, that the defendant, acting in concert with at least one other individual, forcibly stole property from Brandt. Where, as here, “the trial court’s instructions to the jury increase the People’s burden, and the People fail to object, they must satisfy the heavier burden” … . Inasmuch as the evidence demonstrated that property was only taken from Bishop, the People failed to satisfy their burden as to the count of robbery in the first degree. Although the defendant’s legal sufficiency claim as to this count is unpreserved for appellate review, we reach it in the exercise of our interest of justice jurisdiction … . People v Rose, 2015 NY Slip Op 09702, 2nd Dept 12-30-15

CRIMINAL LAW (PEOPLE’S FAILURE TO OBJECT TO JURY CHARGE WHICH INCREASED THEIR BURDEN OF PROOF REQUIRED THEM TO MEET THAT BURDEN)/JURY INSTRUCTION (PEOPLE’S FAILURE TO OBJECT TO JURY CHARGE WHICH INCREASED THEIR BURDEN OF PROOF REQUIRED THEM TO MEET THAT BURDEN)/BURDEN OF PROOF, CRIMINAL (PEOPLE’S FAILURE TO OBJECT TO JURY CHARGE WHICH INCREASED THEIR BURDEN OF PROOF REQUIRED THEM TO MEET THAT BURDEN)

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Evidence of Constructive Possession of Contraband Insufficient, Convictions Reversed

The defendant was convicted of possession of marijuana and weapons found in a bedroom of an apartment in which defendant and several others were present. The Second Department determined there was insufficient evidence that defendant constructively possessed the contraband and reversed:

The element of constructive possession may be established, inter alia, where it is shown that the defendant exercised ” dominion or control'” over the property by exercising a sufficient level of control over the place where the contraband is found or over the person from whom the contraband is seized … . “Constructive possession may be established by direct evidence or by circumstantial evidence with inferences drawn from the facts presented in the case” … . “Where . . . the prosecution relies wholly upon circumstantial evidence to establish the guilt of the accused, the circumstances must be satisfactorily established and must be of such a character as, if true, to exclude to a moral certainty every other hypothesis except that of the accused’s guilt” … .

Viewing the evidence in the light most favorable to the People …, it was legally insufficient to establish the possession elements of the weapons possession and marijuana possession counts, as charged here. Although the defendant was present in the apartment when the search warrant was executed, “it is settled that one’s mere presence in an apartment or house where contraband is found does not constitute sufficient basis for a finding of constructive possession” … . There was no evidence specifically connecting the defendant to the bedroom where the contraband was found, or otherwise connecting the defendant to the contraband. Under these specific circumstances, the People failed to prove that the defendant exercised dominion and control over the contraband, and therefore failed to prove the possession element of the counts as charged … . People v Brown, 2015 NY Slip Op 08428. 2nd Dept 11-18-15

 

Evidence Insufficient to Support Attempted Rape Conviction, Ordering Victim to Take Off Her Clothes, Without More, Was Not Enough

The Second Department determined the evidence did not support the attempted rape conviction. Although it could be inferred defendant intended to commit a sexual offense (he twice told the victim to take off her clothes), he never touched the victim, made a verbal demand for sex, or removed any of his clothes:

… [W]e find that it was legally insufficient to establish the defendant’s guilt of attempted rape in the first degree beyond a reasonable doubt. The complainant testified that she was sleeping in her bedroom when she awakened to find the defendant, who had entered her house through a window, standing in her bedroom. He initially demanded money from her. After she told him twice that she had none, he yelled at her “take your clothes off.” He then walked around the left side of the bed towards her, again yelled “take your clothes off,” and pulled back her bed covers. After he pulled down the covers, she began screaming and he turned and ran out. There was no evidence that the defendant touched the complainant or that he made a verbal demand to have sexual intercourse with her. Additionally, there was no evidence that the defendant undressed or that any of the complainant’s clothes were removed.

Although it could be reasonably inferred from the evidence adduced at trial that the defendant intended to engage in some type of criminal sexual conduct, it cannot be inferred that he attempted to engage in sexual intercourse by forcible compulsion pursuant to Penal Law § 130.35(1) … . People v Mais, 2015 NY Slip Op 08195, 2nd Dept 11-12-15

 

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The Unaccepted Offer of a Key to Defendant’s Apartment Made to the 10-Year-Old Victim Was Sufficient to Support the Attempted Kidnapping Charge/Twenty-Year-Old Child Molestation Conviction Properly Admitted to Show Defendant’s Intent Re: Kidnapping

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a cogent dissenting opinion by Judge Pigott, determined evidence of a prior sex crime against a child was admissible in an attempted kidnapping prosecution, and further determined the evidence of attempted kidnapping was sufficient. Twenty years earlier, the defendant had been convicted of molesting his step-daughter. Apparently there was a pattern of behavior with his step-daughter which included dressing up (costume) and inviting her to go places with him. That pattern was being repeated with the 10-year-old victim in the instant case. Defendant at one point showed up at the victim’s door dressed up in a costume. Defendant repeatedly asked the victim to go with him for ice cream or to a movie. Defendant offered the key to his apartment to the victim (which she refused). It was that offer (of a key) which formed the basis of the attempted kidnapping charge. The defendant’s conviction for molesting his step-daughter was allowed in evidence to show the defendant’s intent re: kidnapping. The People and the defendant presented expert testimony about defendant’s behavior pattern with his step-daughter and the current victim:

In its written decision and order, the trial court held that the evidence presented by the People demonstrated “more than criminal propensity, but . . . an actual link between the two offenses.” The court noted that the victims of the two offenses “so closely resemble[d] each other . . . as to be virtual twins,” and that “[c]ertain distinctive patterns of behavior employed by the Defendant on each occasion match to an extraordinary degree.” Moreover, the court concluded that the expert testimony at the Ventimiglia hearing demonstrated that “[d]efendant was not merely re-offending, but in fact suffered from a fixated fantasy” and had “transferred his fixation and fantasy from victim number one to victim number two and [was] now re-living the previous sexual encounter.” Based on that expert testimony, the court concluded that “the Defendant’s fixation with the first victim is proof of his intent with regard to the second.” The court stated that it was aware of the potential for prejudice, but was “satisfied that, with careful limitations and adequate caution to the jury, some facts from the earlier case can be utilized to show a unique connection between the two offenses” and that expert testimony would help a jury “to understand what factors should be considered, or discounted, in assessing those facts and that connection.” Under the circumstances presented here, we cannot say that the trial court abused its discretion as a matter of law in admitting evidence of defendant’s prior conviction. * * *

With respect to proof of defendant’s intent, as noted, the People were required to prove that defendant intended to prevent the victim’s liberation by secreting or holding her in a place where she was not likely to be found (see Penal Law §§ 135.00 [2] [a]; 135.20). Defendant’s intent may be inferred from his actions and the surrounding circumstances … . This Court has recognized that “circumstantial evidence of intent is often essential to prosecution for an attempted crime because . . . such evidence may be the only way of proving intent in the typical case of criminal attempt” … . People v Denson, 2015 NY Slip Op 07779, CtApp 10-27-15

 

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Pat-down Search Pursuant to a Stop for a Traffic Infraction Unlawful—Injury to Officer During Unlawful Search Will Not Support Assault Conviction (Which Requires the Officer Be Injured Performing a Lawful Duty)

The Fourth Department determined the pat-down search of defendant after he was stopped for walking in the street was unlawful. Therefore the assault charge stemming from injury to the police officer during the unlawful search was not supported by legally sufficient evidence. The officer was not performing a “lawful duty” at the time of the injury (a required element of the assault charge):

A person is guilty of assault in the second degree under Penal Law § 120.05 (3) when, “[w]ith intent to prevent . . . a police officer . . . from performing a lawful duty . . . , he or she causes physical injury to such . . . police officer” (id.). Here, a police officer stopped defendant for walking in the middle of a roadway in violation of Vehicle and Traffic Law § 1156 (a), and the suppression court found that the search of defendant’s person by another officer was not lawful … . We have previously held that even the more limited pat-down search of a traffic offender “is not authorized unless, when the [person or] vehicle is stopped, there are reasonable grounds for suspecting that the officer is in danger or there is probable cause for believing that the offender is guilty of a crime rather than merely a simple traffic infraction’ ” (People v Everett, 82 AD3d 1666, 1666, …). Here, as in Everett, the search of defendant was unauthorized, and the officer was injured only after he attempted to perform the unlawful search (see id.). Viewing the evidence in the light most favorable to the People …, we thus conclude that the evidence is legally insufficient to establish that the officer was injured while undertaking a lawful duty … . People v Richardson, 2015 NY Slip Op 07069, 4th Dept 10-2-15

 

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Intent to Rob Sufficiently Proven by Circumstantial Evidence

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined there was sufficient evidence to support the attempted robbery conviction.  Defendant, when the business was closed, was dressed in dark clothes, wearing a mask, and carrying a handgun (BB gun) while pounding on the door of the business asking to enter.  The defendant never was allowed inside and ran when the police arrived.  The defendant argued there was no evidence he intended to commit robbery, as opposed to some other crime.  The Court of Appeals found the circumstantial evidence of an intent to commit robbery sufficient:

…[H]ere there was evidence that defendant, who was unknown to any of the employees present that morning, and had no apparent business at Wendy’s, nevertheless showed up masked and armed, carrying a backpack, seeking entry at 6:30 am through a locked rear door not used by the public, with an escape vehicle conveniently parked nearby. This fit the pattern common to an early morning robbery of a commercial establishment and was sufficient to support the inference that defendant intended to steal. People v Lamont, 2015 NY Slip Op 04165, CtApp 5-14-15

 

Police Officer’s Convictions for “Criminal Diversion” (Obtaining Another’s Prescription Medication), and “Official Misconduct” Not Supported by Legally Sufficient Evidence

The Third Department reversed defendant’s convictions for criminal diversion and official misconduct because the offenses were not supported by legally sufficient evidence.  The defendant, a police officer, was accused of obtaining someone’s prescription drugs in exchange for something of pecuniary value (criminal diversion).  She was also accused of flashing her badge to a pharmacist and asking the pharmacist to hurry up with a prescription drug (official misconduct).  The Third Department determined the “criminal diversion” charge was not supported by evidence the drug involved (a muscle relaxant) was a “prescription medication.”  And, in the absence of evidence the defendant knew that flashing her badge constituted an unauthorized exercise of her official functions, there was not sufficient evidence to support the “official misconduct” charge. People v Barnes, 2014 NY Slip Op 03310, 3rd Dept 5-8-14

 

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Proof Requirements for Criminal Enterprise Explained/Sufficiency of Evidence and Weight of Evidence Review Criteria Explained

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, determined the Appellate Division had applied the wrong legal standards to its “sufficiency of evidence” and “weight of the evidence” review of defendants’ enterprise corruption convictions.   The Appellate Division concluded “the People failed to introduce any evidence of a leadership structure, overall planning of the criminal enterprise, or any communication between [the defendants] and any of the … employees in furtherance of the criminal enterprise.”  The alleged criminal enterprise was a company, in which the defendants were principals, which did construction testing (concrete and steel, for example).  It was alleged that the company routinely issued fraudulent certifications and test results indicating the construction materials (used at hundreds of construction sites) complied with the requirements of the city administrative code. The Court of Appeals determined that the structure of the company constituted “evidence of a leadership structure” and communication among the defendants and the company employees (regarding the issuance of fraudulent test results) could be easily inferred from the facts. The Appellate Division had vacated the enterprise corruption convictions.  The Court of Appeals sent the case back to the Appellate Division for a “weight of the evidence” review of the enterprise corruption proof under the correct legal standards.  (The Court of Appeals cannot do a “weight of the evidence” review.)

Sufficiency and weight review are distinct concepts. To determine whether a verdict was based on sufficient proof, a court must “marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained [their] burden of proof” … . Evidence of guilt is legally sufficient if the facts, viewed in the light most favorable to the People, provide a valid line of reasoning and permissible inferences from which the finder of fact could have rationally concluded that the elements of the crime were established beyond a reasonable doubt … .

A legally sufficient verdict, however, may be against the weight of the evidence … . Unlike a sufficiency analysis, weight of the evidence review requires an intermediate appellate court to act, in effect, as a second jury … by rendering its own determination of the facts as proven at trial … .  People v Kancharla, 2014 NY Slip Op 03295, CtApp 5-8-14

 

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Competency of Evidence Before Grand Jury Not Reviewable On Appeal Where Defendant Convicted Upon Legally Sufficient Trial Evidence

In response the defendant’s claim that a child witness was allowed to testify before the grand jury without determining her testimonial capacity, the Fourth Department noted that the competency of evidence before the grand jury is not reviewable on appeal where defendant was convicted upon legally sufficient trial evidence. People v Riley, 2014 NY Slip Op 03140, 4th Dept 5-2-14

 

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Insufficient Evidence Defendant “Caused” the Victim’s Death within the Meaning of the Felony Murder Statute—The Victim, Who Was Assaulted by the Defendant, Died of a Heart Attack

The Fourth Department determined there was insufficient evidence to support defendant’s felony murder conviction.  Defendant assaulted the victim during a burglary/robbery.  The victim, who was obese and had heart disease, suffered a fatal heart attack. The Fourth Department held that the People did not present sufficient evidence the defendant caused the victim’s death within the meaning of the felony murder statute:

A person is guilty of felony murder when, during the commission or attempted commission of an enumerated felony, either the defendant or an accomplice “causes the death of a person other than one of the participants” (Penal Law § 125.25 [3]). A person “causes the death” of another person “when the . . . culpable act is a sufficiently direct cause’ of the death so that the fatal result was reasonably foreseeable” … . Such a culpable act is a sufficiently direct cause of death when it is “an actual contributory cause of death, in the sense that [it] forged a link in the chain of causes which actually brought about the death’ ” … . “An obscure or a merely probable connection between an assault and death will, as in every case of alleged crime, require acquittal of the charge of any degree of homicide” … .

Here, we conclude that the People failed to prove beyond a reasonable doubt that it was reasonably foreseeable that defendant’s actions, i.e., unlawfully entering the victim’s apartment and assaulting him, would cause the victim’s death. As noted, the victim died of a heart attack, and the injuries inflicted upon him by defendant were not life threatening. Indeed, the most serious injury inflicted was a fractured jaw. Although the Chief Medical Examiner testified for the People at trial that defendant caused the victim’s death, she explained that her opinion in that regard was based on her assertion that, “but for” defendant’s actions, the victim would not have died of a heart attack. As the court properly instructed the jury, however, “more than but for’ causation [is] required” to establish felony murder … . Notably, the Chief Medical Examiner did not testify that defendant’s culpable act was a direct cause of the death or that the fatal result was reasonably foreseeable. We thus conclude that the evidence is legally insufficient to establish that defendant committed felony murder, as charged in counts one and two of the indictment, and we therefore modify the judgment accordingly. People v Davis, 2015 NY Slip Op 02628, 4th Dept 3-27-15

 

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