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Evidence Insufficient to Support Reckless Endangerment in the First Degree—No One In Line of Fire

The Fourth Department reversed defendant’s conviction for reckless endangerment in the first degree in a shooting case where there was no evidence anyone was near the line of fire:

“A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct [that] creates a grave risk of death to another person” (Penal Law § 120.25). The evidence at trial established only that defendant stood on a street corner and fired up to five shots from a handgun. The People “presented no evidence that any person . . . ‘was in or near the line of fire’ ” so as to create a grave risk of death to any such person… .  People v Stanley, 757, 4th Dept 7-5-13

 

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Defendant’s Being in the “General Area” Where Was Weapon Was Found and Defendant’s DNA on the Weapon Was Not Enough to Support Possession Conviction

The Third Department reversed defendant’s conviction for criminal possession of a weapon as against the weight of the evidence.  The evidence demonstrated that the defendant was in the general area where the gun was found and the defendant could not be excluded from the mixed DNA found on the gun.  The court wrote:

No one saw defendant with the gun, he was just near where it was found and his DNA was on it. The officer testified that defendant was 20 to 30 feet past the house, whereas Fox [defendant’s companion] was off his bicycle and appeared to be doing something near the house. The officer further testified that he found the gun in front of that house, and vaguely stated that defendant  was  in “the general area” where the gun was found. This does not prove that defendant possessed the gun on Sheridan Avenue at that time. Based  on  the  testimony  of the  officer and  the  forensic scientist, it is possible that Fox – who  the officer had seen directly in front of the house – could have had the gun and left it on the ground at that time, and defendant’s DNA could have been there from handling  it previously (which  may  prove  that defendant handled the  gun at some  point, but not  at the date and time alleged in the  indictment) or through  secondary  transfer (i.e., if Fox  touched defendant  and  then  the  gun,  transferring some  of defendant’s DNA onto the gun). Because this scenario is equally likely to have occurred, we cannot say that the weight of the evidence supports the verdict finding defendant guilty  ….  People v Graham, 104177, 3rd Dept 6-27-13

 

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Conviction for Possession With Intent to Sell Against Weight of Evidence​

In finding defendant’s conviction for possession with intent to sell was against the weight of the evidence, the Second Department (with a dissent) wrote:

…[T]he amount of cocaine recovered from the defendant was relatively small and not inconsistent with personal use. Indeed, convictions for criminal possession of a controlled substance involving intent to sell generally stem from situations where a significantly greater quantity of drugs is recovered from the defendant’s person…. Even more important, the defendant was found to be in possession of no drug paraphernalia or weapons, and he had only $20 in cash … .Although there was testimony that street drug sales often involve bags of drugs costing $20 each, the mere fact that the defendant was in possession of a single $20 bill cannot be considered indicative of an intent to sell.  People v McFadden, 2013 NY Slip Op 03690, 2nd Dept, 5-22-12

 

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Evidence of Physical Injury (re Assault) Insufficient

In reversing an Assault 3rd conviction, the Second Department determined, under a weight of the evidence analysis, the proof of “physical injury” was insufficient:

Upon reviewing the record here, we find that the verdict of guilt was against the weight of the evidence, since the evidence presented at trial did not establish, beyond a reasonable doubt, that the complainant sustained a “physical injury” within the meaning of Penal Law § 10.00(9). Physical injury is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). The complainant testified that he sustained bruising and scraping to his right arm, neck, and back, but he did not seek any medical treatment or miss any work. The complainant also provided no details that would corroborate his subjective description of pain, nor did he take any pain medication. Accordingly, there was insufficient evidence that the complainant suffered a “physical injury”…, and the judgment must be reversed and the indictment dismissed. People v Boley, 2013 NY Slip Op 03109, 2nd Dept, 5-1-13

 

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Insufficient Evidence of Recklessness In Shooting Case

The Fourth Department reversed an Assault 2nd conviction and dismissed the indictment after a “weight of the evidence” review.  The prosecution’s theory was that the defendant acted recklessly by pointing a sawed-off shotgun at the victim, disregarding the risk that it would fire. But the proof at trial was that the shotgun discharged just as the defendant picked it up. The Fourth Department wrote:

The People … failed to present any evidence establishing that defendant brought the gun to the park; that the gun belonged to defendant; and that defendant had any knowledge that the gun was loaded with live ammunition or was aware of—and consciously disregarded—the risk that it might misfire (see generally Penal Law § 15.05 [3]).  People v Evans, 255, KA 10-01056, 4th Dept. 3-22-13

 

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Weight of Evidence Review Applies to More than Just Credibility—It Also Applies to Failure to Prove Elements Beyond a Reasonable Doubt

The Second Department determined the conviction for “criminal sexual act in the first degree” was against the weight of the evidence because the relevant testimony, although credible, did not prove all the elements of the crime beyond a reasonable doubt:

The defendant correctly contends that his conviction of criminal sexual act in the first degree is against the weight of the evidence. 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” … . Here, we take no issue with the credibility of the People’s witnesses, or the jury’s decision to credit the complainant’s version of events over that of the defendant. However, weight 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” … .  People v Ross, 2013 NY Slip Op 01860, 2009-00582, Ind No 11304/07, 2nd Dept. 3-20-13

 

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Conviction of Endangering Welfare of a Child Against Weight of Evidence; Defendant Did Not Open Door to Questioning About Prior Bad Acts Ruled Off Limits in Sandoval Hearing; Rape Shield Law Exception Applied

In reversing the conviction, the Second Department determined that the acquittal on a rape count rendered the conviction on a related “endangering the welfare of a child” count “against the weight of the evidence.”  The Second Department also ruled that questions posed by defense counsel did not “open the door” to questioning by the prosecutor about prior “bad acts” which the trial court had ruled off limits in a Sandoval hearing.  The Second Department further ruled that an exception to the “rape shield law” was applicable and evidence the complainant had sex with defendant’s brother should have been admitted because it was relevant to a defense-theory alleging the brother had committed acts with which the defendant was charged. In ordering a new trial on one of the counts, the Second Department found that “the cumulative effect of certain trial errors deprived defendant of a fair trial…”.  In discussing the Sandoval error, the Second Department wrote: 

The purpose of a Sandoval hearing is to provide the defendant with “definitive advance knowledge of the scope of cross-examination as to prior conduct to which he will be subjected,” so that the defendant can decide whether to take the witness stand … . In the interest of fairness, a trial court’s authority to change its Sandoval ruling is limited once the defendant has decided to testify in good faith reliance on that ruling … . “When a defendant testifies to facts that are in conflict with the precluded evidence, he opens the door on the issue in question, and he is properly subject to impeachment by the prosecution’s use of the otherwise precluded evidence” … .

With respect to the rape shield law, the Second Department wrote:

A woman’s character or reputation for chastity is irrelevant to a charge that she was sexually abused … . Thus, the Rape Shield Law, codified in CPL 60.42, provides that “[e]vidence of a victim’s sexual conduct shall not be admissible in a prosecution for an offense or an attempt to commit an offense defined in article one hundred thirty of the penal law [i.e., sex offenses].” CPL 60.42 also provides five statutory exceptions. The first four exceptions allow the admission into evidence of a complainant’s prior sexual conduct in narrowly defined factual circumstances, which are inapplicable here … . The fifth exception, however, “vest[s] discretion in the trial court” … . Pursuant to CPL 60.42(5), evidence of a victim’s prior sexual conduct may be introduced upon a determination by the court that such evidence is “relevant and admissible in the interests of justice” (CPL 60.42[5]…). The Court of Appeals has recognized that, “in the interests of justice,” evidence of a complainant’s sexual conduct may be admissible if it is relevant to a defense … . In contrast, such evidence must be precluded if it does not tend to establish a defense to the crime, and will only harass the victim and possibly confuse the jurors … .  People v Fisher, 2013 NY Slip Op 01847, 2011-06453, Ind No 3421/09, 2nd Dept. 3-20-13​

 

 

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“Weight of the Evidence” Review.

The Third Department upheld the defendant’s rape conviction in a full-fledged opinion by Justice Spain.  The case is interesting because it is a true “weight of the evidence” analysis where the appellate court conducted “a full review of the testimony adduced at trial,” acting in the role of a jury. There was a strong dissent which argued the conviction should be reversed because the trial judge did not turn over to the defense certain records concerning the complainant’s mental health after an in camera review.  People v McCray, 103682 Third Dept 1-17-13

 

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