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Proof at Trial Did Not Sufficiently Pinpoint Time of the Alleged Sexual Offenses—Convictions Vacated

The Second Department determined the proof at trial did not sufficiently pinpoint the time of the alleged sexual offenses.  The offenses were alleged at trial to have been committed within a four-year time period for one victim and within a one-year time period for another.  The related convictions were vacated:

Here, numerous counts of the consolidated indictment charged various acts of criminal sexual act (see Penal Law § 130.45[1]) and sexual abuse (see Penal Law §§ 130.55, 130.60), which involved several single acts. These acts spanned a time period of at least four years with respect to Gabrielle, and approximately one year with respect to Angela. In an effort to specify a time period that was not unreasonably excessive, the District Attorney drafted the indictment to divide these time periods mostly into two-month intervals. Although the indictment, on its face, may have been sufficient, the trial testimony revealed that the complainants lacked any ability “to particularize the date and time of the alleged . . . offense[s]” …, and that there was no real basis in fact for the intervals alleged with respect to these counts … . Thus, “[t]he mere fact that the District Attorney artfully drafted the indictment by arbitrarily dividing” those otherwise excessive time periods into two-month intervals despite the absence of any basis in fact, “cannot detract from the conclusion that the time periods” with respect to these single-act crimes “were unreasonable” under the circumstances here … . Under the circumstances of this case, despite the defendant’s failure to preserve the issue for appellate review, we reach the issue in the interest of justice, and we vacate the defendant’s convictions of criminal sexual act in the second degree, sexual abuse in the second degree, and sexual abuse in the third degree … . People v Atta, 2015 NY Slip Op 01809, 2nd Dept 3-4-15

 

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Where Proof Is Directed Exclusively to a Theory Not Charged in the Indictment, the Proof Is Insufficient to Support the Conviction—Such a Variance Need Not Be Preserved by Objection to Be Raised on Appeal/Conduct of Spectators (Mouthing Words When Victim Testified) Did Not Require that the Spectators Be Removed and Did Not Mandate the Declaration of a Mistrial

The Fourth Department determined that variance between the charges described in the indictment and the proof at trial required the dismissal of several counts.  Such a variance does not need to be preserved for appeal by objection.  The court noted that the trial judge’s failure to exclude spectators who were mouthing word’s during the victim’s testimony was not an abuse of discretion:

“Where the charge against a defendant is limited either by a bill of particulars or the indictment itself, the defendant has a fundamental and nonwaivable’ right to be tried only on the crimes charged” … . We have thus held that, where, as here, a defendant contends that he or she has been convicted upon an uncharged theory of the crime, such a contention does not require preservation… . * * *

“Where there is a variance between the proof and the indictment, and where the proof is directed exclusively to a new theory rather than the theory charged in the indictment, the proof is deemed insufficient to support the conviction” … . Counts two and three of the indictment alleged hand-to-vagina contact, but the victim testified that the only part of defendant’s body that came into contact with her vagina was defendant’s penis. Indeed, when asked specifically if any other part of defendant’s body came into contact with her vagina during the incident encompassed by counts two and three, the victim responded, “No.” Count nine of the indictment alleged penis-to-vagina contact, but the victim testified that defendant touched her vagina with his hand during that incident. Again, when asked specifically if any other part of defendant’s body came into contact with her vagina during the incident encompassed by count nine, the victim responded, “No.” We thus conclude that the evidence is legally insufficient to support the conviction with respect to counts two, three and nine and that defendant was denied his fundamental and nonwaivable right to be tried on only those crimes charged in the indictment. We therefore modify the judgment accordingly.  People v Duell, 2015 NY Slip Op 00014, 4th Dept 1-2-15

 

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Insufficient Evidence Defendant Shared the Intent of the Seller of Heroin—Conviction Under an “Acting in Concert” or “Accomplice” Theory Reversed

Using its “interests of justice” jurisdiction over an unpreserved error, the Fourth Department determined the evidence was insufficient to support defendant’s conviction under an “acting in concert” or “accomplice” theory.  There was insufficient evidence the defendant shared the intent to sell heroin:

“To establish an acting-in-concert theory in the context of a drug sale, the People must prove not only that the defendant shared the requisite mens rea for the underlying crime but also that defendant, in furtherance of the crime, solicited, requested, commanded, importuned or intentionally aided the principal in the commission of the crime . . . The key to our analysis is whether a defendant intentionally and directly assisted in achieving the ultimate goal of the enterprise–—the illegal sale of a narcotic drug” … .

We conclude that the evidence is legally insufficient to establish that defendant acted in concert with the codefendant to sell heroin to the buyer inasmuch as he did nothing “more than simply direct the [buyer] to a location where [she] could purchase [heroin]” … . “While this evidence certainly demonstrated that the defendant was able to identify a local purveyor of narcotics, it did not show . . . that he shared the seller’s intent to bring the transaction about . . . [Indeed], by merely responding to the [buyer’s] inquiry as to who had drugs for sale, the defendant did nothing to solicit or request, much less demand[,] importune[, or assist in] the illicit sale” … . We therefore reverse the judgment of conviction and dismiss the indictment. People v Davila, 2015 NY Slip Op 00016, 4th Dept 1-2-15

 

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Proof of “Physical Injury” Legally Insufficient (Lacerated Finger)

The Second Department determined the evidence of “physical injury” suffered by Sergeant Klein , required for the offense of Assault in the Second Degree, was legally insufficient:

Physical injury is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). Sergeant Klein did not testify at trial. His medical records, which were admitted into evidence, indicated that he suffered a laceration to a finger on his right hand, with abrasions, pain, and swelling. While it is true that, to constitute physical injury, the pain caused by such a wound need not “be severe or intense to be substantial” …, it must, at a minimum, cause “more than slight or trivial pain” (id. at 447) or, to some extent, result in the impairment of the use of the finger (see Penal Law § 10.00[9]). No evidence was introduced that the injuries sustained by Sergeant Klein caused him more than trivial pain, or that the use of his finger was impaired by these injuries … . Accordingly, the defendant’s conviction of assault in the second degree under count two of the indictment must be vacated, and that count of the indictment must be dismissed. People v Perry, 2014 NY Slip Op 07689, 2nd Dept 11-12-14

 

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Defendant Did Not Forfeit His Right to Counsel by Making Four Applications for Reassignment of Assigned Counsel/Evidence of Burglary and Criminal Mischief Insufficient–Possession of Stolen Items Not Enough

The Second Department reversed defendant’s conviction, finding that defendant had not forfeited his right to counsel because he had made four applications for reassignment of assigned counsel.  The court also determined the possession of stolen items removed in time from the burglary, without more, was not enough to support the burglary and criminal mischief convictions.  With respect to the “forfeiture of the right to counsel,” the court explained:

The record does not support a finding that the defendant forfeited the right to counsel. Where a criminal defendant moves for reassignment of counsel as a mere dilatory tactic, that application may properly be denied … . However, a finding of a forfeiture of the right to counsel is an “extreme, last [ ] resort” … . Here, the record does not show that the defendant engaged in any conduct warranting a forfeiture finding. Rather, the record shows that, at most, he engaged in dilatory conduct, refused to cooperate with his attorneys and was argumentative, and at one point “yelled” at one of his attorneys in an incident characterized by the Supreme Court as a “heated exchange.” Further, it is undisputed that the defendant did not validly waive the right to counsel. Indeed, the record shows that he consistently sought the assistance of assigned counsel.

The defendant’s conduct, as reflected by the record, did not support or justify the Supreme Court’s ruling, which forced the defendant to proceed to trial without the benefit of counsel … . People v Isaac, 2014 NY Slip Op 06844, 2nd Dept 10-8-14

 

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Prosecution Failed to Prove the Requisite Intent and Materiality in a Perjury Case

In reversing defendant’s (Hadid’s) conviction for perjury, the Second Department determined there was insufficient evidence defendant testified with the requisite intent and there was insufficient evidence the allegedly perjurious statement was “material.” The alleged perjury was testimony by the defendant at the trial of one Kargu. The decision illustrates the stringent proof requirement in a perjury case:

Viewing the evidence in the light most favorable to the prosecution … , we find that it was legally insufficient to establish Hadid’s guilt of perjury in the first degree beyond a reasonable doubt … . As a matter of law, the evidence failed to establish that Hadid had made a false statement under oath. To prove falsity, the prosecution must show that the witness was intentionally, rather than mistakenly, testifying falsely … . To determine intent, the court will look at whether the statement at issue related to a memorable fact, the significance of the event at the time it occurred, the line of inquiry of the examiner, and whether a fact was deliberately concealed if concealment is alleged … . * * *

The People’s also failed to establish beyond a reasonable doubt that Hadid’s statements were material to the Kargu trial … . ” [T]he test of materiality is whether the false testimony was capable of influencing the tribunal on the issue before it'” … .

Contrary to the prosecution’s contention, neither Hadid’s statements at trial nor his credibility were material to Kargu’s guilt or nonguilt … . People v Hadid, 2014 NY Slip Op 06842, 2nd Dept 10-8-14

 

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Defendant’s Actions In Driving Under the Influence and Causing a Collision Did Not Support Convictions for Offenses Requiring Proof of a Depraved Indifference to Human Life

The Second Department determined that there was insufficient proof of “depraved indifference” to support defendant’s convictions for first degree assault and reckless endangerment stemming from a collision with a vehicle driven by Petrone:

Depraved indifference is ” best understood as an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not'” … . It is embodied in conduct that is ” so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes [serious physical injury to] another'” … .

The issue of whether a defendant possessed a state of mind evincing depraved indifference to human life is highly fact-sensitive, requiring a case-by-case analysis … . Here, the prosecution’s witnesses established that the defendant’s vehicle, without braking, collided into the back of Petrone’s vehicle while both were traveling eastbound in the left lane on Northern Boulevard. The collision was of such force that both vehicles left the roadway and flipped over. Moreover, the testimony of the forensic toxicologist demonstrated that, at the time of the accident, the defendant was significantly impaired due to his ingestion of six different drugs, including methadone. Nevertheless, the evidence of the defendant’s conduct did not support a finding of depraved indifference. The defendant was not driving well in excess of the speed limit, he was not driving the wrong way into oncoming traffic, he had not failed to obey traffic signals, and there was no evidence that he was driving erratically prior to the collision … . Under these factual circumstances, the prosecution failed to establish that the defendant possessed an “utter disregard for the value of human life” or that he “simply [did not] care whether grievous harm result[ed] or not” from his actions … . Consequently, there is simply no “valid line of reasoning and permissible inferences [that] could lead a rational person to the conclusion” … that the defendant acted with depraved indifference to human life when he caused the injuries to Petrone… . People v Jakobson, 2014 NY Slip Op 05354. 2nd Dept 7-16-14

 

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Proof of “Physical Injury” Was Legally Insufficient

The Second Department determined the “physical injury” element of robbery in the second degree had not been proven:

“Physical injury” is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). The subject complainant testified that he sustained an injury to his left ring finger after he was attacked from behind and fell to the ground. The complainant went to the hospital after the incident, where his bruised finger was bandaged and placed in a splint, but X rays revealed no broken bones and there was no evidence presented that he was prescribed pain medication. A “bruise” was still present four years after the incident, but the complainant only testified generally that he felt pain on his hand and arms immediately after the incident, and he did not testify that the injury limited or diminished his ability to use his finger for any length of time. Under these circumstances, there was insufficient evidence from which a jury could infer that the complainant suffered substantial pain or impairment of physical condition … . People v Boney, 2014 NY Slip Op 05197, 2nd Dept 7-9-14

 

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Evidence which Should Have Been Presented In the People’s Direct Case Should Not Have Been Allowed in Rebuttal

The Second Department determined the trial court erred in allowing the People to present more evidence after the defense rested. The charges were based upon allegations the defendant caused injuries to her baby by shaking the baby.  The People’s evidence demonstrated the defendant denied knowing that shaking the baby could cause injury.  The People were allowed to present evidence, after the defense had rested, that a nurse had explained the dangers of shaking to the defendant:

A court has the discretion to permit a party to present evidence in rebuttal, which, more properly, should have been presented in that party’s original case (see CPL 260.30[7]…). The Court of Appeals has approved the exercise of this discretion where the evidence proffered relates to an element of the offense which is “simple to prove and not seriously contested, and reopening the case does not unduly prejudice the defense” … .

Here, the missing element of the People’s case was not a simple, uncontested fact, but, instead, was the mens rea of the subject offense … . Indeed, the People’s own evidence established that the defendant denied knowing that her actions could result in injury to the child. Furthermore, the parties’ expert witnesses ” hotly contested'” … whether shaking could cause the type of injuries at issue and, if so, how much force would be necessary to cause such injuries, and there was no evidence that the defendant knew of the point when rocking or shaking could become potentially injurious.

Because this case does not fit within “the narrow circumstances where . . . the missing element is simple to prove and not seriously contested, and reopening the case does not unduly prejudice the defense” …, the Supreme Court improvidently exercised its discretion in granting the People’s application to present the nurse’s testimony in rebuttal. Without this testimony, the People’s evidence was legally insufficient to establish the mens rea element of endangering the welfare of a child beyond a reasonable doubt … . People v Robinson, 2014 NY Slip Op 04970, 2nd Dept 7-2-2014

 

“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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