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PROSECUTOR ADMONISHED FOR IMPROPER REMARKS IN SUMMATION (CONVICTION NOT REVERSED HOWEVER); INSUFFICIENT EVIDENCE OF PHYSICAL INJURY TO SUPPORT ASSAULT 3RD CONVICTION.

The Fourth Department admonished the prosecutor for improper remarks in summation, but did not reverse the conviction. The court found the evidence of “physical injury” insufficient to support the Assault 3rd conviction and reversed that unpreserved error under a “weight of the evidence” analysis:

Despite this Court’s repeated admonitions to prosecutors not to engage in misconduct during summation, the prosecutor improperly referred to facts not in evidence when he insinuated that the victim regretted that she did not get out of defendant’s vehicle … . The prosecutor also improperly appealed to the jury’s sympathy and bolstered the victim’s credibility, and did so repeatedly, by commenting on how difficult it was for her to recount her ordeal, first to the police, then before the grand jury, and finally in her trial testimony … . In addition, the prosecutor improperly suggested that the jury experiment on themselves to see how quickly bite marks fade … . Nevertheless, “[a]lthough we do not condone the prosecutor’s conduct, it cannot be said here that it caused such substantial prejudice to the defendant that he has been denied due process of law’ ” … . We admonish the prosecutor, however, “and remind him that prosecutors have special responsibilities . . . to safeguard the integrity of criminal proceedings and fairness in the criminal process’ ” … . * * *

We conclude, upon our independent review of the evidence, that the People failed to prove beyond a reasonable doubt that the victim sustained a physical injury … . The indictment alleged that defendant caused physical injury to the victim “by striking her in the face.” Although the victim testified that defendant struck her in the face, and photographs of the victim showed swelling and discoloration of the left side of her face, the victim did not testify that she suffered substantial pain from that injury or that she sought medical attention for it … . People v Gibson, 2015 NY Slip Op 09722, 4th Dept 12-31-15

CRIMINAL LAW (PROSECUTOR ADMONISHED FOR IMPROPER REMARKS IN SUMMATION)/CRIMINAL LAW (ASSAULT 3RD CONVICTION NOT SUPPORTED BY SUFFICIENT EVIDENCE OF PHYSICAL INJURY)/PROSECUTORIAL MISCONDUCT (IMPROPER REMARKS IN SUMMATION)/EVIDENCE (INSUFFICIENT EVIDENCE OF PHYSICAL INJURY RE: ASSAULT 3RD CONVICTION)/ASSAULT 3RD (INSUFFICIENT EVIDENCE OF PHYSICAL INJURY)

INSUFFICIENT EVIDENCE DEFENDANT COMMITTED BURGLARY; DEFENDANT, THROUGH AN UNLOCKED DOOR, ENTERED A VESTIBULE THAT WAS NOT RESTRICTED TO USE BY TENANTS.

The Second Department reversed defendant’s burglary conviction because of insufficient evidence defendant entered the victim’s dwelling. Defendant entered a vestibule through an unlocked door and there was no indication the area was restricted to use by tenants only:

To be guilty of burglary in the first degree, a person must, among other things, knowingly enter or remain unlawfully in a dwelling (see Penal Law § 140.30). Here, while the evidence at trial showed that the defendant entered the vestibule of the victim’s apartment building through an outer door that did not lock, there was no indicia that access to the building or vestibule was restricted to tenants. Thus, the weight of the evidence does not warrant a finding that the defendant knowingly entered the victim’s dwelling … . People v Huggins, 2015 NY Slip Op 09119, 2nd Dept 12-9-15

 

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Where Arrest Was Not Authorized, Conviction for Resisting Arrest Was Against the Weight of the Evidence

The People conceded defendant’s actions (apparently simply standing with a group) did not constitute disorderly conduct. Therefore, the Fourth Department determined, defendant’s arrest for disorderly conduct was unauthorized and his conviction of resisting arrest was against the weight of the evidence:

As the People correctly concede, the evidence fails to establish beyond a reasonable doubt that the arrest of defendant for disorderly conduct was authorized. The Court of Appeals has “made clear that evidence of actual or threatened public harm (inconvenience, annoyance or alarm’) is a necessary element of a valid disorderly conduct charge” …, and there is no evidence of such actual or threatened harm here. Inasmuch as it “is not disorderly conduct . . . for a small group of people, even people of bad reputation, to stand peaceably on a street corner” …, the arrest of defendant for engaging in that conduct was not authorized. “There being no probable cause that authorized defendant’s arrest, [he] cannot be guilty of resisting arrest” … . Thus, we conclude that the jury “failed to give the evidence the weight it should be accorded” … . People v Howard, 2015 NY Slip Op 07100, 4th Dept 10-2-15

 

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“Outside Influence Upon the Jury” Argument Rejected—“Weight of the Evidence” Review Required New Trial [Editor’s Note—There Appears [to Me] to Be No Difference Between What Can Be Reviewed Under the “Weight of the Evidence” Criteria, Which Need Not Be Preserved by a Motion to Dismiss, and What Can Be Reviewed Under the “Legally Sufficient Evidence” Criteria, Which Must Be Preserved by a Specific Motion to Dismiss]

The Second Department, in applying its “weight of the evidence review,” determined that the counts of the indictment stemming from an alleged burglary or attempted burglary were not supported by evidence the defendant entered the victim’s house illegally. Therefore those counts were dismissed. The court explained how a “weight of the evidence” review is applied. [It seems to this writer that there no longer is a distinction between a “weight of the evidence” review, which need not be preserved by a motion to dismiss, and a “legally sufficient evidence” review, which must be preserved by a specific motion to dismiss.] The court also explained the criteria for determining whether there was undue outside influence on the jury (here alleged discussion of a newspaper article about the trial and defendant’s reputation as a troublemaker).  The “undue outside influence” argument was rejected. Concerning the “weight of the evidence” review, the court wrote:

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]…), we essentially sit as the “thirteenth juror” and “decide[ ] which facts were proven at trial” … . “[W]eight of the evidence review is not limited to issues of credibility” … . “Rather, in conducting its weight of the evidence review, a court must consider the elements of the crime, for even if the prosecution’s witnesses were credible their testimony must prove the elements of the crime beyond a reasonable doubt'” … .

Here, the People failed to prove beyond a reasonable doubt that the defendant committed burglary in the first degree and, concomitantly, failed to prove the defendant’s guilt of murder in the second degree (felony murder) under the first count of the indictment, which was predicated upon his commission or attempted commission of burglary. To prove the defendant’s guilt of burglary in the first degree, the People were required to prove, among other things, that the defendant “knowingly enter[ed] or remain[ed] unlawfully in a dwelling” (Penal Law § 140.30). “A person enters or remains unlawfully’ in or upon premises when he is not licensed or privileged to do so” (Penal Law § 140.00[5]). “In general, a person is licensed or privileged’ to enter private premises when he [or she] has obtained the consent of the owner or another whose relationship to the premises gives him [or her] the authority to issue such consent” … .

There was no evidence produced at trial as to how the defendant, who was acquainted with Jones, entered Jones’ house. An investigating police detective testified that there was no evidence of forced entry into the house, and neither of two statements the defendant gave to the police, admitting that he was in Jones’ house when Jones was killed, indicate that he entered the premises unlawfully. Under these circumstances, since the People failed to introduce any evidence as to how the defendant gained entry to Jones’ house, they failed to prove that the defendant entered the house unlawfully. People v Marsden, 2015 NY Slip Op 06260, 2nd Dept 7-22-15

 

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Assault-Related Convictions Not Supported by the Weight of the Evidence/Prosecution Held to Erroneous Jury Instruction Which Was Not Challenged

The Second Department determined defendant’s convictions were not supported by the weight of the evidence and the prosecution should be held to an erroneous jury instruction which was not challenged. The defendant was acquitted of possession of a weapon and was not charged with acting in concert with others. Absent any evidence the defendant caused the injury to the victim his assault-related convictions could not stand. The jury was erroneously instructed that burglary requires proof the defendant unlawfully entered “and” (not “or”) remained in the victim’s dwelling. Because the erroneous instruction was not challenged, the People are held to it. The burglary conviction could not stand because the defendant was invited into the dwelling:

The evidence presented by the People was that the defendant alone caused serious physical injury to the victim by slashing him with an unidentified dangerous instrument. The jury was not charged that the defendant was acting-in-concert with the others. While the defendant was convicted of two counts of assault in the first degree and gang assault in the first degree, he was acquitted of criminal possession of a weapon in the fourth degree. In conducting our weight of the evidence review, we may consider the jury’s acquittal of the defendant on that count … . Given the victim’s testimony that, during the struggle, he heard the defendant say “no, don’t stab him, don’t stab him,” and that he did not see who slashed him, and considering that testimony along with the jury’s acquittal of the defendant of criminal possession of a weapon in the fourth degree, we find that the evidence, when properly weighed, did not establish that the defendant caused serious physical injury to the victim or that he did so by means of a dangerous instrument.

While a person is guilty of burglary in the first degree when he or she either knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein (see Penal Law § 140.30), here, the trial court, without objection, erroneously instructed the jury that, in order to find the defendant guilty of the two counts of this charge, the People were required to prove that the defendant “unlawfully entered and remained” in the victim’s dwelling (emphasis added). Since the People did not object to this erroneous charge, they were “bound to satisfy the heavier burden” … . Given that the evidence demonstrated that the defendant knocked on the victim’s door and announced his presence, and that the victim voluntarily invited the defendant into the apartment, the People failed to satisfy their burden as to these two counts. People v Samuels, 2015 NY Slip Op 05968, 2nd Dept 7-8-15

 

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Evidence Did Not Support Conviction for Attempted Possession of Burglar’s Tools— Conviction Was Against the Weight of the Evidence

The First Department determined the evidence was not sufficient to support a conviction for attempted possession of burglar’s tools (the conviction was against the weight of the evidence). The defendant had tools in his possession and stopped his bicycle to look inside two or three cars (in broad daylight).  However the defendant did not touch the tools. Therefore the element of the offense which requires circumstances indicating the tools were about to be used to commit a burglary was not supported:

“A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime” (Penal Law § 110.00.) “While the statutory formulation of attempt would seem to cover a broad range of conduct—anything tend[ing] to effect’ a crime—case law requires a closer nexus between defendant’s acts and the completed crime” … . The accused must engage in conduct that comes “dangerously close” to a completed crime before it can be combined with a criminal intent to constitute an attempted crime …

“A person is guilty of attempted possession of burglar’s tools when, with the intent to possess burglar’s tools, he tries to possess any tool, instrument or other article adapted, designed or commonly used for committing or facilitating offenses involving larceny by a physical taking, and the surrounding circumstances evince an intent to use same in the offense of such character” … .

Although the element of intent may be satisfied by circumstantial evidence …, under the particular circumstances of this case the officer’s testimony that he observed defendant, in broad daylight, stopping his bicycle between two or three cars and looking through the driver’s side front window, is not, in and of itself, sufficient to support the inference that defendant intended to use the tools to steal any items from the cars. The officer admitted, inter alia, that during the 15 seconds that he observed defendant, he never saw him touch either a tool in the pouch or any of the cars and that the screwdriver set had to be assembled to be usable … . People v Pannizzo, 2015 NY Slip Op 05894, 1st Dept 7-7-15

 

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Medical Examiner’s Testimony Did Not Rule Out the Possibility that Someone Other than the Defendant Contributed DNA to a Mixture from At Least Three Persons—Conviction Reversed as Against the Weight of the Evidence

The First Department, over a dissent, determined that defendant’s conviction of criminal possession of a weapon was against the weight of the evidence. The medical examiner testified there was a mixture of DNA from at least three persons found on the weapon and defendant “could” have been a contributor to that mixture. “In other words, the medical examiner could not rule out the reasonable possibility that another unrelated individual could match the DNA profile.”  The court explained its role in a “weight of the evidence,” as opposed to a “legal insufficiency,” analysis:

On this appeal, defendant does not ask us to reverse his convictions of criminal possession of a weapon in the second and third degrees on the ground that the trial evidence was legally insufficient to support such convictions. Instead, defendant argues that his convictions should be reversed because the jury’s verdict was against the weight of the evidence. An appellate court weighing the evidence “must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony'” … . “If based on all the credible evidence a different finding would not have been unreasonable” and if the “trier of fact has failed to give the evidence the weight it should be accorded, the appellate court may set aside the verdict” … . When an appellate court performs weight of the evidence review, it sits, in effect, as a “thirteenth juror” … .

We agree with defendant that the verdict was against the weight of the evidence … . The evidence failed to connect defendant with a pistol that had been discarded during a shooting incident. People v Graham, 2015 NY Slip Op 04401, 1st Dept 5-26-15

 

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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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Murder Conviction Against the Weight of the Evidence—Strangulation Was the Result of an Attempt to Increase Sexual Pleasure—No Intent to Kill

The Second Department determined that defendant’s conviction for intentional murder was against the weight of the evidence.  The victim died of strangulation, but the defendant’s actions were motivated by the desire to increase sexual pleasure, not by an intent to kill.  People v Davis, 2014 NY Slip Op 03277, 2nd Dept 5-7-14

 

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Defendant’s “Agency” Defense to a Drug Sale Addressed Under a “Weight of the Evidence” Review (Defense Was Disproved Beyond a Reasonable Doubt)

The Third Department noted that, although the defendant did not preserve his claim his conviction was not supported by legally sufficient evidence, an appellate court will review whether a conviction is supported by proof beyond a reasonable doubt under a “weight of the evidence” review.  The Third Department then went on to find the defendant’s agency defense had been disproved by the People beyond a reasonable doubt.  The court explained the agency defense:

To the extent that defendant contends that the underlying conviction is not supported by legally sufficient evidence, we note that defendant’s generalized motion to dismiss at the close of the People’s case was insufficient to preserve his present claim, i.e., that the People failed to disprove his agency defense beyond a reasonable doubt … . Additionally, defendant, who testified upon his own behalf, failed to renew this motion at the close of all proof; accordingly, defendant’s challenge to the legal sufficiency of the evidence is not preserved for our review … . “That said, our weight of the evidence [analysis] necessarily involves an evaluation of whether all elements of the charged crime[s] were proven beyond a reasonable doubt at trial” … .

Insofar as is relevant here, “[a] person is guilty of criminal sale of a controlled substance in the third degree when he or she knowingly and unlawfully sells . . . a narcotic drug” (Penal Law § 220.39 [1]). Defendant does not dispute that he sold a narcotic drug, i.e., cocaine, to the undercover deputy on the dates in question, but contends that he acted solely as the deputy’s agent in this regard and, at best, is guilty of criminal possession of a controlled substance … . Under the agency doctrine, a person who procures drugs solely as the agent of a buyer is not guilty of either criminal sale or of possession with the intent to sell … . “[W]hether the defendant was a seller, or merely a purchaser doing a favor for a friend, is generally a factual question for the [factfinder] to resolve on the circumstances of the particular case” … . Such a determination, in turn, may hinge upon a number of factors, including “the nature and extent of the relationship between the defendant and the buyer, whether it was the buyer or the defendant who suggested the purchase, whether the defendant has had other drug dealings with this or other buyers or sellers and, of course, whether the defendant profited, or stood to profit, from the transaction” … . Notably, profit does not necessarily equate with pecuniary gain; indeed, this Court has recognized that a defendant may stand to benefit from the underlying sale when such transaction was undertaken in the hopes of receiving either assistance in getting a job … in exchange for obtaining the requested drugs. People v Robinson, 2014 NY Slip Op 08672, 3rd Dept 12-11-14

 

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