New York Criminal Law and Procedure

Possession of forged instrument count dismissed

In People v. Bailey (Ct. App. 2009), blogged previously, the Court of Appeals held that a conviction for Possession of a Forged Instrument requires proof that the defendant intended to use the instrument for fraudulent purposes.  In that case, the defendant had counterfeit currency on his person.  The currency was found during a search incident to arrest after he was caught attempting to pickpocket from unsuspected women.  The Court of Appeals reversed, holding the larcenous intent from the pickpocket incidents could not be transferred or imputed to the possession charge.  In that case, there was no evidence that the defendant intended to pass the counterfeit currency off as real.

This week, the First Department reversed a defendant's conviction, in the interest of justice, for similar reasons.  In People v. Brunson (1st Dept. 10/29/2009), the defendant was arrested after he was found shoplifting from a store from which he had been barred previously.  During a search of his person, store personnel found an altered state benefit card.  Since there was no proof that the defendant intended to use the card, his conviction for Possession of a Forged Instrument was reversed.  The court rejected, "as too speculative to establish an element of a crime, the People's theory that defendant intended to use the card to misrepresent his identity in the event of his arrest and prevent store personnel from detecting his status as a person barred from the store."  (LC)

Assault conviction reversed; insufficient evidence of physical injury

Assault 3º requires evidence of physical injury.  In People v. Balan (1st App. Term. 10/28/2009), the Appellate Term concluded the evidence was legally insufficient on this point.  After an altercation with the defendant, the complainant experienced an unspecified amount of pain, as well as swelling and redness, to her legs and face.  She did not visit the hospital.  "The complainant's testimony, viewed in light of the objective circumstances, does not support a finding that she suffered impairment of physical condition or substantial pain. ... 'Petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives' constitute only harassment and not assault, because they do not inflict physical injury' (People v Chiddick, 8 NY3d at 448 [citations omitted]).'"

The court also ordered a new trial on the harassment charge.  At trial, the defense requested a charge on justification, but the lower court refused.  "Contrary to the People's contention, justification is available as a defense to a harassment charge, at least one stemming from a defendant's use of physical force, where, as here, evidence supporting the defense has been presented."  Justification is not limited to specific mens rea or crimes.  (LC)

AD1, AD3, AT1, & AT2 - New Decisions

There are new decisions from the First and Third Departments, and the First and Second Appellate Terms.  (LC)

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

AD3 finds accusatory instrument jurisdictionally defective and reverses defendant's guilty plea

In People v. Casey (3d Dept. 10/22/2009), the indictment charged the defendant with Assault 2º.  The defendant successfully argued the evidence before the Grand Jury was legally insufficient for the felony.  County Court agreed and ordered a reduction of the charge to a misdemeanor, Assault 3º.  Rather than giving the People an opportunity to either file a prosecutor's information charging the misdemeanor, re-presenting the charge to the Grand Jury, or appealing the order, the court simply amended the face of the indictment to charge a misdemeanor.  Both parties proceeded on the amended indictment.  The defendant pleaded guilty, waived his right to appeal, but nevertheless appealed.  The court found the issue survived the appeal waiver.

On the merits, the court concluded, "There is no statutory authority for the court to amend that indictment and, in its own words, draft an accusatory instrument charging defendant with a reduced crime. Its authority in this circumstance is strictly defined by statute and is limited to a determination as to whether the charges contained in the indictment are supported by legally sufficient evidence. The drafting of an accusatory instrument that reflects the court's finding and charges a defendant with a crime that is supported by legally sufficient evidence is a statutory obligation that must be fulfilled by the People. As such, we find that the indictment as amended by County Court was jurisdictionally defective and defendant's conviction must be reversed."  (LC)

COA - New Decisions

The Court of Appeals announced new decisions today:

• People v. Abney (Ct. App. 10/27/2009) (Read, J.) - expert testimony on eyewitness reliability
• People v. D'Alessandro (Ct. App. 10/27/2009 (Lippman, C.J.) - Appellate Division incorrectly decided defendant's subsequent coram nobis application as a motion for reargument of the original application.  Reversed and remanded for determination on the merits.

More on Abney later.  (LC)

AD3 reverses sex crimes conviction on weight of the evidence grounds

Last week, the Third Department reversed the conviction in People v. O'Neil (3d Dept. 10/22/2009) (Peters, J.) on weight of the evidence grounds.  The defendant, a school gym teacher, was accused of committing sex acts with a 14-year-old student.  There was no forensic evidence, only the competing testimonies of the complainant and the defendant.

Even from the cold record, the court found the evidence did not warrant conviction.  The court noted several inconsistencies in the complainant's own account, her reputation for lying, contradictions between her testimony at trial and before the Grand Jury, and her tendency to attempt to manipulate school administrators in retaliation against teachers who confronted her.  In contrast, the defendant was a well-respected coach and teacher.  Moreover, the jury acquitted of many of the charges.  (LC)

Authentication of videotapes

In People v. Roberts (3d Dept. 10/22/2009), the Third Department reversed a defendant's sex crimes-related conviction because the People failed to make a proper foundation for the admission of a critical videotape. 

The defendant's roommate found the videotape, which showed the defendant performing various sexual acts on a victim who was asleep or unconscious.  Although the People established a chain of custody from the time the roommate found the video to it being played in court, "there was no testimony concerning the making of the videotape, where it was kept or who had access to it during the nearly three-year period from the time of its making to its discovery by defendant's housemate in 2006."  The court was particularly concerned about the possibility of tampering.  "Had the People provided some other foundational proof — such as expert testimony that the videotape fairly and accurately depicted what was before the camera and that an analysis of it revealed no indication of alterations — 'the gap in the chain of custody would affect the weight but not the admissibility of the tape'."  The court rejected the People's harmless error argument due to the scarcity of other evidence of the defendant's guilt.  The case was reversed and remanded for a new trial. (LC)

Can an LLC be liable for intentional conduct of its employees?

In People v. Highgate LTC Mgt., LLC (3d Dept. 10/22/2009) (Mercure, J.), the Attorney General prosecuted the defendant, an LLC, for conduct arising out of its mis-operation of a nursing home.  The defendant was charged with six counts of willful violation of health laws and three counts of falsifying business records in the second degree, arising out of its employees' treatment of a particularly ill patient.

The defendant contended that, as an LLC, it could not be held vicariously liable for the intentional conduct of its employees.  It pointed to Penal Law § 20.20, which applies respondeat superior to corporations but does not mention LLCs or other legal entities.

The Third Department unanimously rejected the defendant's argument, although it agreed that Penal Law § 20.20 was not applicable because the defendant is not a corporation. The court first noted that the U.S. Supreme Court has specifically applied  respondeat superior, in certain circumstances, to corporations "and other associations," a phrase which clearly implicates entities such as an LLC.  As a matter of state law, the predecessor, common law rule that predated Penal Law § 20.20 limited the application of respondeat superior for intentional acts "that are either (1) in 'violat[ion] [of] positive prohibitions or commands of statutes regarding corporate acts', (2) 'authoriz[ed] through action of its officers or which [are] done with the the acquiescence of its officers', or (3) performed on behalf of the corporation if undertaken 'within the scope of [the agents'] authority, real or apparent.'" (internal citations omitted). The court held that application of this rule to LLCs was appropriate because LLCs are considered "persons" under the Penal Law; and like a hospital, the operation of a nursing home implicates public interest concerns and legitimate government regulation.  The court further noted there was no "rational basis" to exempt a nursing home that is an LLC when a corporate nursing home would be liable.  (LC)

Trial court conducts proper inquiry after defendant's remarks at plea raised question on intent element

In People v. McNair (Ct. App. 10/22/2009), a unanimous Court of Appeals affirmed the defendant's conviction for Forgery 2º, rejecting his claim that his statements at allocution negated the intent element of fraud.  The court agreed that the defendant's initial remarks "cast significant doubt" about whether he intended to defraud.  However, the plea court properly conducted a follow-up inquiry to ensure that the plea was knowing and voluntary.  "Having failed to move thereafter to withdraw his plea, defendant waived any further challenge to the allocution, and thus no issue is preserved for our review."  (LC)

Warning: Tread carefully when cross-examining a witness about an oath

One of the issues in People v. Caba (3d Dept. 10/22/2009) (Lahtinen, J.) was whether the People improperly cross-examined a defense witness about the oath she took to testify truthfully.  The questions were "regarding the fact that the oath had been administered to him by the clerk using a book that ostensibly was not sacred to that witness's particular religion."  The court found the cross-examination improper and, for this and an additional error, reversed.  "The inquiry on this topic, which was pursued further on re-direct and then by County Court, veered too far into an impermissible discussion in front of the jury of various aspects of the witness's religious beliefs."  It had the effect of impeaching the witness with religion.

The witness' oath was proper, since it was "calculated to awaken the conscience and impress the mind of the person taking it in accordance with his [or her] religious or ethical beliefs."  If the prosecutor had concerns about this particular oath because of the book that was used, the more appropriate procedure was an inquiry of the witness outside the presence of the jury.  (LC)

AD3 reverses conviction for Criminal Possession of a Forged Instrument

In People v. Asai (3d Dept. 10/22/2009), the defendant made ten applications for Price Chopper AdvantageCards in various stores.  Among other things, the cards allow the bearer to have check-writing privileges at certain grocery stores.  The defendant submitted ten applications, each with his correct name, address, and other identifying information.  However, he supplied false drivers' license numbers and linked the cards to closed checking accounts or accounts with insufficient funds.  He used the various cards to write checks, drawn on the invalid accounts, to obtain thousands of dollars of groceries without paying for them.

The issue for the court was whether the applications were "forged instruments."  The court found they were not and reversed the defendant's convictions on the possession counts because the defendant his own name, address, and other identifying information.  Despite giving false driver's license numbers, he never purported to be anyone other than "Eric Asai."  "[S]ince 'the ostensible maker and the actual maker [of the applications] are one and the same, there can be no forgery under the statute' (People v Cunningham, 2 NY3d at 597)."  (LC)

AD2, AD3, AT1, & AT2 - New Decisions

There are new decisions from the Second Department, Third Department, First Appellate Term, and Second Appellate Term.  (LC)

Court of Appeals narrowly finds no Molineux error as to some prior bad acts, harmless error as to other

Today's case, People v. Arafet (Ct. App. 10/22/2009) (Smith, J.), split the Court of Appeals 4-3 on a Molineux issue.

The defendant was charged with stealing a trailer containing a million dollars of merchandise.  The defendant was linked to the theft, which occurred in Rotterdam, NY, and resulted in the trailer being abandoned in New Jersey, by: (1) cell phone records, showing he traveled from New Jersey to New York and back again during the relevant time frame; (2) only one tractor-trailer traveled the route during the timeframe in question; (3) the defendant's fingerprint was on the toll ticket for the tractor-trailer; and (4) cell phone records showed the defendant called a truck bay rental business.  There was also cell phone evidence that the defendant called Nelson Quintanilla, who promptly traveled from Florida to New Jersey after the theft.

The Molineux evidence involved four uncharged crimes, three of which involved the individuals the defendant phoned.  Two showed that the truck bay rental business was part of a fencing operation; however, the defendant was not implicated in those thefts.  A third showed that Quintanilla was the defendant's accomplice in a prior trailer theft.  The fourth prior --- which the court found should not have been admitted --- involved the defendant stealing a trailer in April 2000; none of the other individuals were involved.

The court quickly dispensed with the two fencing operation incidents. 

[T]he issue is easy: This was not Molineux evidence at all. The point of Molineux is to prevent a jury from convicting a defendant because of his criminal propensity. Evidence of two criminal transactions in which defendant was not involved could show nothing about his propensity. The evidence was relevant to the case: It showed that a business defendant called in the hours immediately after the theft was one where stolen goods could be disposed of, and it thus supported an inference that defendant at that moment needed a fence's services."

Regarding the prior theft that the defendant and Quintanilla committed, the court concluded that it did implicate Molineux, but it was nevertheless admissible.

The predicate for its admission was evidence showing that defendant called Quintanilla shortly after the theft; that Quintanilla traveled from Florida to New Jersey beginning the next day; and that Quintanilla arrived in northern New Jersey not long before the discovery of the stolen trailer, with a tractor attached, on a highway in the vicinity. Abandonment of the tractor-trailer (unless the thief walked away from it) was a task that required an accomplice with a second vehicle. The evidence supported an inference that Quintanilla provided defendant with the ride he needed. ... Because the evidence supported a finding that Quintanilla and defendant were working together to commit the crime in this case, Molineux did not require that the jury be kept ignorant of the fact that they had worked together on such a transaction before.

On the final prior bad act, the April 2000 incident, the court found error:

The People acknowledge, in substance, that the only relevance of that proof was to show that defendant was an experienced trailer thief. This is not, the People argue, pure propensity evidence because of the nature of the crime — a specialized one, that required unusual skills, knowledge and access to the means of committing it. But we see no justification, at least in a case like this, for creating a "specialized crime" exception to Molineux. No doubt this crime is beyond the skills of the average citizen; most people could not swiftly hook a trailer to a tractor and drive it away. But the crime could probably have been committed by any experienced tractor-trailer driver, and we cannot believe there was no less prejudicial way to prove that defendant had experience in that line of work. This was not a crime "so unique that the mere proof that the defendant had committed a similar act would be highly probative of the fact that he committed the one charged" (People v Condon, 26 NY2d 139, 144 [1970]). Admitting the evidence of the April 2000 incident violated the Molineux rule.

The court nevertheless found that this single Molineux error was harmless.  First, it was persuaded that the fingerprint on the toll record was, in fact, the defendant's.  "A qualified expert testified without contradiction that he had found "at least fifteen obvious points of identification in common" between the fingerprint on the toll card and one known to come from defendant's left index finger. It is of no significance that defendant shares one characteristic — a "loop" rather than a "whorl" or "arch" demarcation — with most of the population; the fifteen points of identification prove the fingerprints match." Second, no other tractor-trailer traveled the same route during the time in question.  Third, the defendant placed phone calls to a fencing operation.  Fourth, the former accomplice traveled from Florida to New Jersey.  Fifth, the trial court instructed the jury properly on the use of the evidence.

Judge Ciparick dissented.  She found all of the collateral evidence troubling:

The prejudicial effect that all of this extensive collateral evidence had is clear: the jury was naturally led to believe that, because defendant had committed two cargo thefts in the past and at the time of this alleged crime telephoned a federally convicted "fence" of stolen goods, he was guilty of the crimes charged here. It is remarkable that one-fifth of this trial record — spanning several hundred pages of trial testimony from numerous state and federal law enforcement officers and dozens of exhibits — is consumed by collateral matters, including multiple photographs depicting warehouses, stolen trucks and stolen goods related to extraneous crimes. In total, two FBI agents and three police officers testified as to uncharged matters and convictions involving cargo thefts and stolen goods. Much of the prosecution's summation was then centered upon these matters.

Judge Ciparick agreed that County Court committed error by admitting evidence of the defendant's prior conviction.  She disagreed that it was harmless error.  According to the dissent, the evidence was not overwhelming and there was, in any event, significant prejudice to the defendant.  (LC)

COA & AD1 - New Decisions

The Court of Appeals and First Department have posted new decisions.  The Court of Appeals cases are:

• People v. Arafet (Ct. App. 10/22/2009) (Smith, J.) - Molineux
• People v. McNair (Ct. App. 10/22/2009) - sufficiency of factual allocution at plea

(LC)

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

AD2 - New Decisions

The Second Department has posted new decisions.  (LC)

State Senator Hiram Monserrate found not guilty of felonies; guilty of misdemeanor

State Senator Hiram Monserrate has been on trial in Queens County for allegedly assaulting his girlfriend.  He opted for a bench trial.  Today, the judge found him not guilty of the most serious charges --- felony assault --- but guilty of reckless assault, a misdemeanor.  Sentencing will occur later this month.  (LC)

AD1 - New Decisions

The First Department has announced new decisions.  (LC)

Does a defendant commit "escape" if there is no securing order?

There is a new Court of Appeals decision today, People v. Hardy (Ct. App. 10/15/2009). Prior to sentencing  on an unrelated drug charge, there was an adjournment and the court raised the defendant's bail.  The defendant was handcuffed and escorted outside the courtroom to a bench in the hallway. He was told to wait there.  The sheriff's deputy apparently left his prisoner unattended to go back inside the courtroom to get the securing order from the clerk.  In the meantime, the defendant simply walked out of the courthouse ... with his hands handcuffed behind his back.  He even held the courthouse door open for a court employee. 

The defendant argued on appeal that he could not be convicted of Escape 2º because there was not a securing order in place.  The court unanimously rejected the argument:

To make out escape in the second degree, the People were required to establish that defendant broke free or got away from the restraint or control of the deputies. Here, such restraint or control was authorized pursuant to County Court's order increasing bail which, along with the court's statements following the bail increase and defendant's immediately being placed in handcuffs, made it clear that defendant was not free to just leave. Because the People proved that defendant removed himself from the lawful custody of the deputies without authorization, they met their burden and the elements of Penal Law § 205.10(2) were satisfied.

(LC).

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

Reversal for ineffective assistance of counsel

In People v. Clarke (2d Dept. 10/6/2009), the Second Department reversed the defendant's conviction,  because he received ineffective assistance of counsel.  The defendant was convicted of Attempted Murder 2º and CPW 2º.  The conviction stemmed from an incident in which the defendant allegedly shot a friend of his former girlfriend. 

The Second Department found that the defendant's trial attorney committed a multitude of errors:

• The complainant gave conflicting descriptions of the shooter.  Counsel's cross-examination was "meager" on this point.
• There was conflicting information about where the complainant went in the moments leading up to the shooting.  A police report indicated he went to an ATM before going home.  On the stand, the complainant testified he went directly to his residence.  Counsel did not pursue this point.
• The attorney failed to object to the admission of inadmissible evidence or to at least seek redaction of the unduly prejudicial material in the evidence.
• During the five-day trial, defense counsel made only five objections.

In summary, the court concluded, "In conclusion, we do not find that any single example of deficient representation was sufficient to deprive the defendant of the effective representation of counsel ... . Rather, we conclude that, given the totality of his counsel's deficient representation, the cumulative effect of these errors deprived the defendant of a meaningful representation and a fair trial ... . This is especially so where, as here, the determination of guilt in this one-witness identification case hinged on sharp issues of credibility ... ." (LC)

AD2 & AD4 - New Decisions

The Second and Fourth Departments have posted new decisions.  (LC)

AD1 & AD3 - New Decisions

The First and Third Departments have posted new decisions.  (LC)

AT2 - New Decisions

The Appellate Term, Second Department, has posted new decisions.  (LC)