New York Criminal Law and Procedure

Broken nose, three chipped teeth do not constitute serious physical injury

In People v. Rosado (1st Dept. 10/4/2011), the issue for the court was whether the People proved the existence of a serious physical injury.  After he sustained the injuries, the victim underwent surgery on his nose.  The surgery was successful and, apart from a slight indendentation in the nose, he did not suffer any lasting effects.  The indentation did not qualify as a serious disfigurement because a "reasonable observer" would not find the "altered appearance distressing or objectionable."  In addition, the victim's three chipped teeth did not rise to the level of serious injury.  Accordingly, the Defendant's conviction was reduced to Assault 3º, a misdemeanor.  (LC)

AD1 affirms trial court order setting aside verdict

In People v. Rios (1st Dept. 9/22/2011), the previous manager of a building as well as the corporate owner, were found guilty of Criminally Negligent Homicide and Reckless Endangerment 2º.   The victims in the case were two firefighters who were killed while trying to extinguish the flames.  Two of the apartments had unsafe conditions.  The first had faulty wiring.  The second had an illegal partition.  The fire started in the first apartment and then spread.  The People's theory was that the conditions in the second apartment were the cause of the firefighters' deaths and that the manager had actual knowledge of them.

Following the conviction, the trial court set aside the verdict under CPL § 330.30, finding insufficient evidence of knowledge.  The First Department agreed with the decision.  "The inferences upon which the People rely are impermissibly speculative. Furthermore, the People called the building's superintendent, who testified that he knew about the partition in 4-L but never told Rios about it. Even if the jury discredited that testimony, such disbelief would not supply affirmative proof of the contrary proposition."  (LC)

COA examines depraved indifference and recklessness

Last month, the Court of Appeals decided an important new case clarifying the difference between the mens rea of depraved indifference and reckless.  In People v. Lewie (Ct. App. 6/9/2011) (Smith, J.) (5-2), the Defendant was found guilty of both Manslaughter 2º and Reckless Endangerment 1º; implicitly, therefore, the jury believed that she acted both recklessly and with depraved indifference in the death of her son. 

At trial, the People's theory was that the Defendant's boyfriend killed her son.  They charged two counts of Manslaughter 2º: one on an omission theory that the Defendant knew her son had suffered injuries but did not seek help and another on a negligent entrustment theory: that in the last 45 days of her son's life, she knew she was putting him in danger but leaving him in the care of the boyfriend.  She was also charged with Reckless Endangerment 1º and Endangering the Welfare of a Child.  The Appellate Division reversed on the first theory of Manslaughter 2º but otherwise affirmed.  The Court of Appeals affirmed the conviction for Manslaughter 2º (under the second theory) but reversed on Reckless Endangerment 1º.  "As to both counts, the critical question is what the evidence shows as to defendant's state of mind when, over a period of six weeks, she repeatedly left her baby with the man who abused and eventually killed him."

The majority found abundant evidence to prove recklessness.  "We conclude that the evidence is sufficient to support the jury's finding that defendant knew such a risk existed. The evidence shows that defendant knew, or at least believed it possible, that Flint [the boyfriend] was hitting, shaking and biting her child. She knew that he was capable of inflicting significant injury on an adult, herself. She believed him capable of killing a small animal in a rage. She was worried enough to tell Flint that, if he was angry, he should 'shake a teddy bear, not Colbi.' Yet, she left Colbi with Flint again and again — even after she saw, on November 12 and 13, that Colbi had been seriously hurt."

Curiously, the People did not charge Murder 2º under a Depraved Indifference theory, even though they charged Reckless Endangerment 1º, which requires the same mens rea, and there was a death.  The majority explains this as an exercise of "prosecutorial discretion."  In any event, it found evidence of the mental state lacking.   First, it noted the distinction between reckless and depraved indifference, pointing out that "depraved" does not necessarily mean what most people think it does.  "The distinction between conscious disregard of a known risk to human life (required for a reckless manslaughter conviction) and depraved indifference to human life (required for a depraved indifference murder or first degree reckless endangerment conviction) can be hard to grasp, especially in a disturbing case like this one. Consciously to disregard a substantial risk to the life of one's own child — as the jury found, on legally sufficient evidence, this defendant did — is shocking behavior, and in ordinary speech people might call it 'depraved.' But 'depraved indifference to human life,' as used in the murder and reckless endangerment statutes, is something even worse ... [A] person who is depravedly indifferent is not just willing to take a grossly unreasonable risk to human life — that person does not care how the risk turns out."  

Here, the Defendant was aware of the risk that her boyfriend might harm her son, but she was not indifferent to it.  She did care and worry that something bad might happen.  "Some of the evidence most damaging to defendant on the manslaughter count is actually favorable to her on the depraved indifference issue. Thus her statement that she 'was scared' and 'never knew what she was going to come home to' shows that she was fearful of harm to her baby, not that she was indifferent to the possibility. And in telling Flint to 'shake the teddy bear instead of Colbi,' she was trying, however weakly and ineffectively, to protect the child."  (LC)

Homicide with bow-and-arrow splits Court of Appeals on requested intoxication charge

In a short opinion in People v. Sirico (Ct. App. 6/7/2011) (6-1), the Court of Appeals affirmed that an intoxication charge to intentional murder is warranted only if there is evidence that the defendant's intoxication affected his ability to form an intent.  Without going into detail, the majority, in an unsigned memorandum, held, "[T]here is insufficient evidence to support an inference that defendant was so intoxicated as to be unable to form the requisite criminal intent. Indeed, the uncontradicted record evidence, including defendant's own account, supports the conclusion that his overall behavior on the day of the incident was purposeful."

Judge Jones, in dissent, argued that the Defendant had presented sufficient evidence to at least warrant an intoxication charge. 

The facts were bizarre, to say the least, if only because of the Defendant's choice of weapon.  After consuming two large glasses of whiskey and one Xanax, the Defendant retrieved a bow and began launching arrows.  One hit a car and the other fatally wounded a neighbor.  The Defendant also threatened others with the bow-and-arrows.  The People contended that the Defendant's outrageous behavior was caused by "an issue with the mechanism of his prosthetic leg" and not intoxication.  Judge Jones noted that it was for the jury to determine which of the two stories it believed.  (LC)

More thoughts on the Central Booking case

Last week, I blogged about People v. Osorio (NYC Crim. Ct. 6/21/2011) (Sciarrino, J.), in which the Criminal Court dismissed an accusatory instrument charging the Defendant with Promoting Prison Contraband 2º because Central Booking, which is operated by the police department, is not a "detention facility."  The Defendant was caught handing marijuana to another arrestee in Manhattan Central Booking. 

I am thinking that there was an alternative basis for dismissal.  Penal Law § 15.10 requires, for every crime, the commission of a "voluntary act" or a legally culpable omission.  Here, I think a strong argument could be made that there was not a voluntary act.  The People's theory for PPC 2º must have been that the Defendant "introduced" marijuana by bringing it into Central Booking.

But, importantly, the Defendant did not enter Central Booking voluntarily.  He was brought by the police.  While the underlying marijuana possession was illegal (no matter where it occurred), I do not think he could be charged with Promoting Prison Contraband—which depends on the possession being committed in a particular location—when the Defendant was forced into that location.  See Martin v. State, 31 Ala. App. 334 (1944) (police push drunk individual onto street and then arrest him for Public Intoxication; held, no voluntary act). 

(It is unclear from the accusatory instrument quoted in the court's opinion, but I read the opinion as saying that the Defendant was already in Central booking when the handoff occurred.  If this was not the case, and the Defendant was on the outside of the facility or holding pen, then my voluntariness argument would not prevail.)  (LC)

Thoughts on the culpable mental states ... and depraved indifference

Crimes that are not strict liability offenses require a "culpable mental state."  According to Penal Law § 15.00(6), this term "means 'intentionally' or 'knowingly' or 'recklessly' or with 'criminal negligence,' as these terms are defined in section 15.05." 

How then, could, the Court of Appeals hold in People v. Feingold that depraved indifference is a culpable mental state?  This seems to contradict the plain meaning of § 15.00, which identifies four and only four culpable mental states.  Curiously, this issue is not raised anywhere in Feingold or in any of the cases leading up to it, except for Register, which Feingold of course overruled.  In Register, the majority held:

Further evidence that “recklessness” is the mens rea, and the only mens rea, of the crime is to be found in other sections of article 15. Section 15.05, which was intended to “limit and crystalize” the culpable mental states involved in the criminal law (see Hechtman, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law, § 15.05), includes recklessness as one of those culpable mental states but it does not list “depraved indifference”. Moreover, subdivision 1 of section 15.15 provides that when an offense requires a particular culpable mental state, such mental state is designated by use of the terms found in section 15.05. When only one culpable mental state appears in a statute defining an offense, section 15.15 directs that the mental state is presumed to apply to every element of the offense. The only culpable mental state found in section 125.25 which defines depraved mind murder is recklessness; it is defined in subdivision 3 of section 15.05 (which prohibits evidence of intoxication to negative it) and the statute prescribes that it apply to every element of the offense.

The Register dissent draws mainly on history to make the argument that depraved indifference is its own culpable mental state.  It addresse the majority's Penal Law §§ 15.05 and 15.15 argument by contending without citation to authority, that the four culpable mental states were not meant to be an "all inclusive list."  But this seems to be contradicted by the plain text of Penal law § 15.00(6), which says that the term means intentionally, knowingly, reckless, or criminal negligence.  The Legislature did not appear to leave room for the court to read in new culpable mental states. (LC)

UUV conviction upheld

While mere entry into a car is not enough to support a conviction for Unauthorized Use of a Vehicle (UUV), entry and subsequent vandalism of the car's interior is sufficient.  In People v. Franov (Ct. App. 5/10/2011) (Graffeo, J.) (4-1-2), the defendant broke into a car, vandalized the interior, and left with a part that he had taken from inside the vehicle.  At issue was whether the evidence was legally sufficient to convict him of UUV.  The majority concluded that it was.

The majority relied principally on legislative history.  The prior version of the UUV statute criminalized only joyriding or attempted joyriding (i.e., actual operation).  The amended version states, however, that a person is guilty if "[k]nowing that he does not have the consent of the owner, he takes, operates, exercises control over, rides in or otherwise uses a vehicle." In subsequent cases, the Court of Appeals affirmed that the statute had been broadened.  It upheld convictions for defendants sitting in a parked car, one with the key in the ignition and the other with the engine running.  In a third case, the defendant was sitting in the passenger seat of his car while his companion was trying to start the car; the defendant's conviction was upheld.

The majority held that operability is not the "sine qua non" of the statute.  Thus, that the defendant did not have a key was not relevant.  "On the other hand, entry alone is not enough under the statute, which expressly requires some degree of control or use. The inadvertent entry into a vehicle mistaken for one's own would not constitute this crime — something more is needed since the statute contains a knowledge component. Whether denominated as exercising control over or otherwise using a vehicle, we conclude that a violation of the statute occurs when a person enters an automobile without permission and takes actions that interfere with or are detrimental to the owner's possession or use of the vehicle."

Judge Smith, in a concurring opinion, would have retained what he saw as the rule from the court's prior cases: "unauthorized occupation without consent."  He takes the majority to task for its new rule requiring "interference."  He posits several hypotheticals: "Does an intruder manifest 'control or use' if he talks to a friend while sitting in the car? Smokes a cigarette? Looks out the window for the time it would take to smoke a cigarette? The only example the majority gives of something that would not be prohibited is 'inadvertent entry into a vehicle mistaken for one's own,' but an entry without mens rea is excluded on the face of the statute, which applies only to someone who acts '[k]nowing that he does not have the consent of the owner.'"

Judge Jones, joined by Judge Pigott, dissented.  The dissent would have adopted the following rule: "'unauthorized use' convictions may only be sustained where the defendant's presence in a stationary vehicle is coupled with other evidence demonstrating the ability to operate the vehicle or the means to do so. Based on the foregoing, I would hold that for the purpose of legal sufficiency, in order for a lone defendant to come within the unauthorized use of a vehicle statute, evidence must be adduced at trial that he or she, without the authorization of the vehicle owner (and with an intent to operate the vehicle), obtained the means to set the vehicle's mechanism in operation or possessed tools designed to bypass the vehicle's ignition system." (LC)

PRS Watch: More resentencing fallout

Some issues never seem to die.  Depraved indifference murder was one.  PRS/Catu/Sparber is another.  In a group of consolidated appeals, last week the Court of Appeals rejected defendants' arguments that their resentencings, to include a period of PRS, were improper.  The case is People v. Lingle (Ct. App. 4/28/2011).  Judge Read wrote the majority opinion.  Judge Ciparick dissented from two of the six cases.

In most of the cases, the defendants were resentenced while they were still incarcerated.  The Court rejected arguments that this violated double jeopardy and due process.  Williams drew a clear line in the sand.  Resentencing is permitted before a defendant is released from custody, but it is not allowed after a defendant has been released, since he earned an expectation of finality.  Since resentencing is only for the purpose of adding a term fo PRS, the Court held that a resentencing court may not reconsider the incarceration part of a defendant's sentence.  Finally, the Appellate Division may not exericse its interest of justice authority to reduce the prison portion of a sentence on appeal.

Judge Ciparick dissented from two of the cases.  In the first, Sharlow, the defendant was out on a conditional release, since he had completed 6/7'ths of his sentence, when he was resentenced.  Judge Ciparick found that this fell on the Williams side of the line and resentencing was a violation of double jeopardy.  She also concluded that both the resentencing court and the Appellate Division have authority to reconsider the length of the original prison sentence.

On balance, I agree with aspects of both the majority and dissenting opinions.  The majority got it right that Williams crafted a bright line rule and that defendants still in prison can be resentenced without violating double jeopardy.  Sharlow baffles me, though.  He had been released from prison and began living his life.  That he was still under supervision is of no moment, as Williams concluded.  I fail to see the difference between the scenarios.  I also agree with Judge Ciparick regarding the Appellate Division's inherent authority.  The interest of justice power that that court possesses is broad and permits reversal and modification even in the absence of error by the lower court.  (LC)

COA overturns an Attempted Sexual Abuse conviction

In People v. Cecunjanin (Ct. App. 4/5/11) (Smith, J.) (7-0), a woman, who the court referred to as Catherine, was drinking heavily at a bar. Catherine's blood alcohol level after the incident was .267%. Catherine was brought into a back room closet by two men, one the owner of the bar and the other his friend. While in the closet she fought off their sexual advances and she was able to keep them from removing her shorts. Catherine refused to leave with the men and further fought off their advances by siting on the floor. 

The Defendant, the bar owner, was convicted of Attempted Sexual Abuse 1° and  Unlawful Imprisonment 2º.  The conviction was affirmed by the Appellate Division.  The Court of Appeals modified the judgment by vacating the conviction for Attempted Sexual Assault 1º.

Sexual Abuse 1º states, "A person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact . . . [w[hen the other person is incapable of consent by reason of being physically helpless . . . ." The Court of Appeals stated that the crime requires proof of both (1) sexual contact and (2) the victim must be unable to communicate an unwillingness to act, and that these elements must be present at the same time.

Here, though, the Defendant was charged with Attempted Sexual Abuse 1º.  The court posed a question: "If a person is physically helpless, how can an attempt to subject her to sexual contact fall short of success?"  The court theorized that it could happen if a third party intervened to prevent the contact.  Otherwise, if the victim stopped the attack, then by definiton he or she was not physically helpless.  "The People argue . . . that Catherine was physically helpless at the moment she prevented defendant from fondling her [in the bar, before going into the storage room]. The argument is self-refuting; she could not have blocked him if she were helpless. A reading of the record as a whole shows that Catherine may well have been physically helpless at some times, and that defendant may have attempted to subject her to sexual contact at other times, but there is no evidence that the two occurred together." 

This appears to have been a simple error by the prosecution in charging the wrong sexual assault crime.  Since the victim resisted and the Defendant was in dangerous proximity to completing the assault, the Defendant should have been charged with Attempted Sexual Abuse 1º (by forcible compulsion) or, if there was evidence that the Defendnat intended to have sexual intercourse, Attempted Rape 1º.  (MK/LC)

Parole status not controlling for 2009 DLRA resentencing application

The Drug Law Reform Act of 2009 (2009 DLRA) allows for incarcerated felons who committed a class B felony prior to January 13, 2005 and who are serving an indeterminate sentence with a maximum of more than three years to apply for resentencing (CPL 440.46).  In People v. Phillips (2d Dept. 3/15/2011), the Appellate Division held that parole status was not controlling for a 2009 DLRA resentencing application. The Defendant's motion for resentencing had been denied by the County Court, holding that the Defendant was a reincarcerated parole violator and that made him ineligible for resentencing.

The Appellate Division reversed, holding that parole violations do not automatically bar DLRA 2009 relief. While the AD2 acknowledged that the Court of Appeals stated that the legislature did not want new crimes to trigger the opportunity for resentencing, the Court held that only applied to the Drug Law Reform Act of 2005 and not 2009 DLRA. The court held that relief under 2009 DLRA could not be denied on the basis that the defendant is reincarcerated as a parole violator. The denial of the defendant's motion was reversed and remanded for a new determination. 

This case now sets up a department split.  The First Department previously held that parole violators were not eligible for resentencing under the 2009 DLRA (People v. Pratts, 74 A.D.3d 536, 537, lv. granted, 15 N.Y.3d 895).  Leave was granted in that case.  It will be interseting to see how the Court of Appeals resolves the issue.  (JMM/LC)

Failure to advise of consequences of PRS violation

We all know that postrelease supervision (PRS) is a direct, not collateral, consequence of a conviction and, therefore, courts must advise a defendant that there will be a term of PRS before he or she pleads guilty.  But does that rule extend to advising a defendant that violating a PRS condition could lead to a prison sentence?  The Second Department recently said "no" in People v. Monk (2d Dept. 3/15/2011).  Prior to Monk, both the First and Third Departments had said that the consequences of violating a PRS term are collateral and need not be told to a pleading defendant.

The consequneces of violating a term of PRS are individual to the defendant and discretionary with the Parole Board.  Thus, the Second Department held, what happens after a PRS violation is collateral and does not affect the voluntariness of the plea.

This result makes sense, since the ramifications of violating the conditions of postrelease supervision are subject to the discretion of the Board of Parole, rendering them, by nature, merely collateral to pleas and sentences. Specifically, alleged violations of the conditions of postrelease supervision are heard and determined by the Board of Parole, and, upon determining that there is probable cause to believe that a defendant has violated such a condition, the Board of Parole must conduct a revocation hearing (see Penal Law § 70.45[4]; Executive Law § 259-i[3]). If the presiding officer at that hearing is satisfied, by a preponderance of the evidence, that the defendant has violated one or more conditions of postrelease supervision, the presiding officer then determines the remedy that is to be imposed upon the defendant (see Executive Law § 259-i[3][f][x]). The remedies that may be imposed are, as relevant here, a restoration of the defendant to supervision; or, as an alternative to reincarceration, the placement of the defendant in a parole transition facility for not more than 180 days with subsequent restoration to supervision; or directing the defendant's reincarceration for up to the balance of the remaining period of postrelease supervision, not to exceed five years (id.).

Thus, the consequences that arise from violating conditions of postrelease supervision are within the discretion of the Board of Parole, and are therefore collateral to the judgment of conviction. Accordingly, there is no requirement that a trial court must specifically advise a defendant of the consequences of violating conditions of postrelease supervision, in order for the defendant's guilty plea to be knowingly and voluntarily entered.

(LC)

 

In companion underage drinking cases, beer purchase tips the weight-of-the-evidence review

In People v. Kellie St. Andrews (3d Dept. 3/10/2011) and People v. Jimmy Joe St. Andrews (3d Dept. 3/10/2011), the Third Department reached conflicting conclusions on strikingly similar facts. In the two cases, the wife and husband, respectively, were both convicted of Endangering the Welfare of a Child. Both defendants were present on April 20, 2008, when their 16 year old son hosted a party behind the house with 20-40 guests, many of whom were under the age of 21. According to witnesses, Kellie St. Andrews purchased a 30 pack of Keystone-light beer for the guests’ consumption and “left it in the truck” for her son’s friends. As a result, she was further convicted of Unlawfully Dealing with a Child 1°. In addition to facilitating access to the beer, witnesses suggested that she condoned the behavior, because no one concealed the beer cans while she walked around. Even though some witnesses called into question whether she could actually see the underage drinking and that she may not have seen the underage drinking, the conflicting testimony was not resolved in her favor. 

A weight of the evidence review involves an independent evidentiary analysis of whether a different verdict would have been reasonable and asks the court to “weigh the probative force of conflicting testimony and resulting inferences.” The wife’s conviction was supported by the record and thus, not against the weight of the evidence. 

By contrast, Jimmy Joe St. Andrews’s conviction was set aside. He was also present, but most witnesses agreed that during the party, he was either busy taking care of his five year old grandchildren or had went inside by 7:30PM, when it was “really dark.” Further testimony revealed that “a man – who may or may not have been the defendant” yelled at a female guest who was riding a child’s toy and drinking beer; nonetheless, the court reasoned that it was still unlikely that he would have seen any drinking. The court resolved that it was “purely speculative” that he would see the beer cans “at a distance while he was tending to his two grandchildren.” Given the substantial amount of people drinking at the party, the court did not consider his ability to hear or in any way notice such a gathering.  

Both defendants claimed that they were unaware that underage drinking occurred. The factual distinction is Kelly St. Andrews’s beer purchase and more recognizable presence at the party, which supported her knowledge and patent facilitation of the underage drinking. (RB/LC)

 

Defendant violated order of protection even though victim not home

In People v. Clisby (3d Dept. 3/3/2011), the Third Department affirmed that a "stay away" provision in an order of protection is violated by a defendant even if the victim is not home at the time.  In that case, the Defendant was the subject of a Family Court order of protection that required him to stay at least 1,000 feet away from the victim's home.  The Defendant was convicted of Criminal Contempt 2º after he drove into the parking lot of the victim's apartment building when she was not home. 

The court rejected the Defendant's argument that he committed, at most, a "technical violation" of the order and the charge should have been dismissed.  The plain terms of the order required him to stay away from the victim's residence.  Criminal Contempt 2º did not require evidence that the victim was home or otherwise alarmed or annoyed by the Defendant's conduct.  (LC)

AD3 finds no duplicity in assault charge

Last week, I blogged about a recent Court of Appeals decision on multiplicity: charging multiple offenses for a single crime.  The flip side of multiplicity is duplicity: charging multiple crimes in a single count.  The latter concern implicates notice and jury unanimity.  If a defendant is charged with multiple crimes in one count, it is difficult for him to know how to defense himself and whether a jury's guilty verdict is unanimous as to the method or act of the crime.

In People v. Wright (3d Dept. 2/24/2011), the Appellate Division held that a count of Aggravated Assault was not duplicitous.  The case involved an 11-year-old who suffered a left orbital fracture in her face.  The indictment charged that the Defendant caused this injury "by means of punching and/or striking and/or pushing her."  The Defendant argued that this language caused a duplicity problem, but the Third Department disagreed:

Defendant complains that [the child's mother]'s trial testimony — indicating that defendant punched, kicked, slapped and spanked his daughter more than 80 times in the alleged time period — made it impossible to determine if the verdict was unanimous or if the jury found him guilty of one crime based upon different instances of abuse ... . This fear is unfounded because the count specifies that it relates to the assault which resulted in the eye injury. Thus, the count contained only one offense and was not duplicitous, either as charged or based upon the evidence presented at trial.

Thus, the court suggests that where multiple, alternative acts are alleged to cause only a single injury, there is not a duplicity problem with the indictment.  The court properly distinguished the Court of Appeals' decision in People v. Bauman (Ct. App. 3/26/2009), in which the court found a depraved indifference assault charge to be duplicitious when it alleged:

striking [victim] about the head and body with fists and/or a baseball bat and/or a hammer; and/or burning said person with a frying pan; and/or scalding said person with hot water; and/or placing a vacuum cleaner hose on said person's genital area; and/or providing inappropriate and/or inadequate nutrition; and/or subjecting said person to inadequate and/or inappropriate living conditions; and/or failing to seek medical attention. 

In that case, there were multiple acts and multiple results; thus, the charge was duplicitious. (LC)

Counsel found effective in burglary case

Counsel’s performance, in an Ineffective Assistance of Counsel claim, is evaluated “in totality;” that standards asks whether counsel’s conduct amounted to “meaningful representation.” To prevail on an IAC claim, the defendant needs to show that the error was “so egregious and prejudicial” that it deprived him of a fair trial.

In People v. Cummings (Ct. App. 2/24/2011), the defendant, after a Burglary 2° conviction, claimed that his attorney’s conduct was deficient because counsel did not  dispute the legal sufficiency of the People’s proof that a police precinct containing dormitories for overnight use did not constitute a “dwelling.” The Court of Appeals disagreed.

Penal Law § 140.25(2) requires proof that the defendant entered or remained unlawfully in a dwelling.  A building is considered a dwelling when a person living there at night usually occupies it. The Court added that the Legislature intended “usually occupied” to be a flexible standard.

In finding counsel to be effective, the court emphasized that the attorney attempted to have the Burglary 2° charge dismissed pretrial by arguing that the precinct was not a dwelling.  Counsel did not, however, reiterate this argument during trial.  This, as held by the Court, was “not so egregious as to deprive the defendant of a fair trial” because the People presented additional evidence at trial that had not been before the Grand Jury.

(RB/LC)

 

Multiple sexual contacts result in a "single uninterrupted" Sexual Assault count

The Court of Appeals held that a single uninterrupted attack where the suspect gropes several parts of the victim’s body may result in only one charge of  sexual abuse. In People v. Alonzo (Ct. App. 2/24/2011) (Smith, J.) (7-0), the Defendant persuaded two women to visit him in the middle of the night; shortly after arriving, the women decided that they wanted to leave but were stifled by a locked door. Eventually, a neighbor woke up and finally encouraged the Defendant to pen the door. The Defendant then followed the women out of the building. There, he grabbed one from behind and pinned her down while groping her breasts and buttocks. The second woman tried to protect her friend by striking the Defendant. The second woman was then thrown down to the ground and the Defendant groped her buttocks and breasts as well. Eventually, the first woman kicked the Defendant in the stomach and gave the two a chance to finally get away. 

The Grand Jury indicted the defendant on two counts of Unlawful Imprisonment and four counts of Sexual Abuse. Specifically, there were two counts of sexual abuse for each victim: the first alleging forcible hand-to-breast contact, and second, hand-to-buttocks. The Defendant moved to dismiss two of the four counts as multiplicitious and the County Court granted his motion; the Appellate Division affirmed. The Court of Appeals also affirmed. 

Generally, where a defendant, “in an uninterrupted course of conduct directed at a single victim, violates a single provision of the Penal Law, he commits a single crime.” The Court of Appeals relied upon the Legislative intent for the fact sensitive determination of deciding how many crimes are committed in a given sequence of events. 

Here, the defendant committed a single uninterrupted occurrence of forcible compulsion. Even thought there were probably more occurrences of “sexual contact,” the Court, however, would not hold that each movement of the Defendant’s hand would be prosecuted as a single crime. It analogized this to a hypothetical indictment for 10 counts of assault where 10 punches were thrown. This indictment would be clearly considered to be multiplicitous, and not duplicitous. The evidence here shows a single crime of sexual abuse against each victim, but the Court emphasized that where the evidence reasonably permits a Grand Jury to find that one or two crimes occurred, the indictment charging two should not be dismissed. (RB/LC)

 

COA refuses to clean up the Legislature's sloppy statute writing

Insurance Fraud (Penal Law § 176.30) is committed when a defendant undertakes a "fraudulent insurance act" (Penal Law § 176.05(1)), which means a fradulent application or claim for benefit under a "commercial insurance policy."  By its plain terms, this definition cannot apply to Medicaid fraud.  In 1998, a new definition was added to section 176.05: "fraudulent health care insurance act," which could include fraudulent acts directed as a "public or private health plan."  The Legislature, however, never created a crime that used this definition.  Insurance Fraud still relates only to "fraudulent insurance" acts.  While its intention was probably to offer this as an alternative way in which a person could be found guilty of Insurance Fraud, the Legislature never took the required step to amend anything in the Penal Law beyond the definitional section of 176.05. The Judicial Conference noted this problem back in 2003 and recommended that then-Chief Administrative Judge Jonnathan Lippman "recommend repair," but the Legislature never took any action to correct this oversight.  Oops.

In People v. Boothe (Ct. App. 2/24/2011) (Pigott, J.) (6-0), the Defendant was charged with Insurance Fraud under a "fraudulent health care insurance act" theory.  The Court of Appeals affirmed the dismissal of these charges.  It declined to use tools of statutory interpretation to correct the problem. 

It will be interesting to see if the Legislature acts now.  (LC)

COA reduces Depraved Indifference Murder to Man 2º

In People v. Prindle (Ct. App. 2/22/2011) (4-3), the Defendant's trial for Depraved Indifference Murder occurred before Feingold overruled Register.  Thus, without objection, the trial court gave a Register-style charge to the jury.  The Court of Appeals, in a brief memorandum decision, passed on whether the Defendant's motion for trial order of dismissal adequately preserved his argument that the evidence was legally insufficient under Feingold.  Rather, applying the charge as actually given, the Court of Appeals concluded that the evidence was legally insufficient for Depraved Indifference Murder and reduced the conviction to Manslaughter 2º.  Using a cf. signal, the court distinguished People v. Gomez, 65 N.Y.2d 9 (1985).

The Defendant and a co-defendant were in the middle of stealing two snow plows when the police arrived on the scene.  The defendants sped off in a van.  During the chase, the Defendant, who was driving, collided the van with another vehicle; the passenger in that car died five days later from her injuries. 

Writing for a three-judge dissent, Judge Pigott noted the following facts as evidence that the Defendant's showed depraved indifference under Register:

• he drove at a high rate of speed through a residential neighborhood;
• he drove through several red lights;
• he drove into the oncoming lane of traffic on numerous occasions;
• he collided with a truck before hitting the victim's car two blocks later; and
• after hitting the truck, he sped through two more lights and continued driving into oncoming traffic.

Judge Pigott concluded that this case was worse than the facts presented in Gomez.  In that case, the driver, going at a high rate of speed, killed two children after striking two cars a block before.  The Court of Appeals, in affirming the depraved indifference murder conviction in Gomez, emphasized two factors: the defendant's excessive speed and the failure to brake.   Judge Pigott noted the same factors were present in Prindle.

Perhaps the cases are distinguishable, however.  The passenger in Gomez pleaded with the defendant to stop after hitting the first child.  Yet, the defendant sped up and drove his car onto the opposite sidewalk where a crowd was standing.  In my view, it is these facts that are particularly indicative of indifference to human life; they show that he was particularly wicked and did not care about the lives of other people.  On the other hand, perhaps this is a Feingold analysis and I am not properly looking at the case through a Register lens.  Under Register, the People did not have to prove that the defendant's mental state was subjectively depraved. Instead, they only needed to assess "the degree of risk presented by defendant's reckless conduct."  The defendant's thought processes after causing the first death and hearing his passenger's pleading were not important in Prindle because only the objective circumstances of the crime (e.g., the excessive speed and failure to brake) mattered.  So, although the majority in Prindle said that it was applying a Register analysis, I wonder if, in fact, it was looking for evidence of a subjective mental state that it found missing.  Given that the majority wrote only a brief memorandum decision, it is difficult to tell what facts it found missing from the record. (LC)

Court of Appeals affirms forged instrument conviction

In People v. Muhammad (Ct. App. 2/17/2011) (Pigott, J.) (7-0), a unanimous Court of Appeals affirmed a defendant's conviction for Criminal Possession of a Forged Instrument 2º, after a traffic stop revealed that the defendant's borrowed car had fake credit cards strewn about the car.  The jury was charged on the theories of actual and constructive possession, as well as the statutory presumption that someone who possessed two or more forged credit cards knew they were forged and had the intent to defraud another.  On appeal, the defendant argued that the court's charge did not adequately convey that the People were required to prove knowledge.

Here, knowledge was proved based on the "fact that defendant had strewn his belongings through the car he was driving," which meant that the "defendant must have known the cards were in the car."  The trial court correctly noted that constructive possession still requires "knowing doiminion or control" over the items.  Adding the word "knowing" to the statutory presumption would have confused the jury "by suggesting that it could not infer the requisite knowing possession from constructive possession."  (LC)

Is Attempted Stalking a legally cognizable offense?

In People v. Aponte (Ct. App. 2/10/2011) (Pigott, J.) (7-0), the Defendant was originally charged with Stalking 3º, Harrassment 1º, and Harrassment 2º, after he followed the complainant on more than 25 times in the previous three years.  The People moved to reduce the charge to Attempted Stalking 3º and the Defendant was tried without a jury and convicted.  At issue was whether Attempted Stalking 3º is a legally cognizable offense.  The Court of Appeals concluded that it was.  The Defendant argued that the statute already encompasses attempt-ish actions because a person may be guilty even if a person is not actually put in fear.  The statute only requires a reasonable likelihood that his actions would.

The court concluded that there is nothing impossible attempting to engage in conduct that is likely to cause fear.  "Thus, if a telephone call or e-mail were 'likely to cause' the consequences referred to, an attempt to make such a phone call or send such an e-mail - even if the communication never reached its intended recipient - would be an attempt."

COA takes on DisCon

Disorder Conduct is a frequently prosecuted crime, but the language of the statute is sufficiently broad that the courts have taken great pains to prevent misapplication.  In People v. Weaver (Ct. App. 2/10/2011) (Graffeo, J.), a unanimous Court of Appeals clarified the requirements under the DisCon statute.

The case involves a bizarre set of facts apropros for a blog post on the day after Valentine's Day.  An officer came upon a man and woman "dressed in wedding attire" verbally fighting in the parking lot of a hotel.  They had apparently been married earlier that day.  The defendant hurled obscenities at his wife and the officer in a "very loud," "very aggressive," and "very threatening" matter. 

The court summarized the law: "[A] person may be guilty of disorderly conduct only when the situation extends beyond the exchange between the individual disputants to a point where it becomes 'a potential or immediate public problem.'"  Here, the defendant argued that this was a simple, individual dispute between he and his wife.  However, "weigh[ing] the whole incident," the jury had ample evidence to conclude that the defendant violated the statute.  This incident occurred during the early morning hours, in a parking lot of a hotel that was open for business, and there were a number of people in the vicinity.  (LC)

Depraved indifference murder applies to one-on-one killing of baby

It is now black-letter law in New York that depraved indifference murder cannot apply to a one-on-killing ... unless the victim was particularly vulnerable and the murder itself was brutal.  In People v. McLain (3d Dept. 1/20/2011) (Spain, J.), the Defendant was accused of murdering her 2-year-old son.  The victim had numerous, severe bruises and traumatic brain injuries that left him comatose.  The defense was that her boyfriend was the one who inflicted the injuries.  The jury rejected this claim and the Third Department found that there was ample evidence that she, not her boyfriend, caused the injuries.

The Third Department also found that the Defendant's conduct met the definition of depraved indifference.  "[T]he cause of death was the blunt force injuries caused by an estimated 10 or more blows to the head."  Moreover, the child had fresh bruises all over his body, including his head, and he had retinal hemorrhaging, a rib fracture, and a damaged lung.  This medical evidence demonstrated that the Defendant acted with "uncommon brutality" against a particularly vulnerable victim.  (LC)

Burglary and the house under foreclosure

One of the elements of Burglary is the unlawfulness of the entry.  In People v. Klem (2d Dept. 1/25/2011), the Defendant was accused of entering an abandoned building that had been foreclosed.  Although there was a judgment of foreclosure and an order of sale, the complainant still had a property interest in the premises until the property was actually sold.  Therefore, there was legally sufficient evidence on this element when the complainant testified that she did not consent to the Defendant's entry.  

Nevertheless, the conviction was reversed.

As relevant to that charge, the defendant sought to call a witness who allegedly would have testified that, on the day of the incident, a hot water heater was taken from her property, and that her property abutted property owned by the employer of one of the codefendants. This testimony was relevant to the theory of defense, which was that the hot water heater that was seen in the defendants' possession by the People's witnesses had not been taken from the building on the complainant's property, and also would have served to impeach the credibility of the People's principal witnesses on the material issues of whether the defendants entered the complainant's building, and whether they did so with the intent of committing a crime therein.

(LC)

Identification of drugs not necessary for Health Care Fraud

In a case of first impression, the First Department interpreted the new Health Care Fraud crime, Penal Law Article 177.  In People v Khan (1st Dept. 1/20/2011) (Acosta, J.) (5-1), Defendant was convicted of Health Care Fraud (HCF) 4°.  A person is guilty of HCF 4° (§ 177.10) when he commits HCF 5° (§ 177.05) and the aggregate amount wrongfully received during a one year period exceeds three thousand dollars.

Section 177.05 provides that:

A person is guilty of health care fraud in the fifth degree when, with intent to defraud a health plan, he or she knowingly and willfully provides materially false information or omits material information for the purpose of requesting payment from a health plan for a health care item or service and, as a result of such information or omission, he or she or another person receives payment in an amount that he, she or such other person is not entitled to under the circumstances.

The NYPD and NY Human Resources Administration conducted a joint undercover investigation of a pharmacy in two phases.  During the first phase, an investigator made multiple cash purchases from Defendant of prescription drugs (Amitriptyline and Clonidine) without a prescription.  During the second phase, the investigator was provided with a Medicaid card and prescriptions for various drugs.  The card and prescriptions were issued to a fictitious person that the investigator identified to Defendant as his wife.  On multiple occasions the investigator presented prescriptions to the Defendant and requested that Defendant dispense drugs to the investigator other than the drugs prescribed.  The investigator told Defendant that he needed the drugs so that he could make money.  Defendant generally complied with the investigator's requests, and on multiple occasions he dispensed Amitriptyline and Clonidine instead of the prescribed drugs.  Subsequent to each transaction in the second phase, Defendant submitted reimbursement requests to Medicaid that indicated that he had dispensed the prescribed drugs to the fictitious person.  Defendant received reimbursements from Medicaid pursuant to this arrangement which, in aggregate, exceeded three thousand dollars during a one year period.

On appeal, Defendant argued that the evidence was insufficient to support the HCF 4° conviction because the People failed to establish the falsity of the information provided to Medicaid.  The First Department cited People v. Ramirez, 33 A.D.3d 460 (1st Dept. 2006), for the proposition that evidence is to be viewed as a whole when determining support for a conviction.  The court held that § 177.05 did not require the People to prove the chemical composition of the drugs.  The court indicated that the falsity of the information turned on the identity of the recipient and not the identity of the drug.  Although the court acknowledged that the evidence concerning the March 6, 2008, incident was weak, it found that this weakness was alleviated by considering the nature of the relationship between the investigator and Defendant established and cultivated during the combined phases.  Thus, the court affirmed the conviction on the ground that the evidence was sufficient when examined as a whole.

In dissent, Justice Catterson contended that the evidence proffered was sufficient to support a HCF 5° conviction but insufficient to support a HCF 4° conviction.  The dissent focused on the evidence concerning March 6, 2008; the dissent argued that because the evidence as to this particular date's transaction was weak, the People were not able to establish the $3,000 threshold for HCF 4º.  On March 6, 2008, the investigator presented a prescription for a drug called Sustiva, but requested that Defendant instead dispense “the usual pills.”  Per the arrangement established during the first phase, “the usual pills” meant Amitriptyline and Clonidine.  Defendant dispensed a bottle of pills labeled Sustiva.  The dissent argued that because the People failed to proffer the actual identity of the pills there was insufficient evidence to support the conclusion that Defendant falsely informed Medicaid that he dispensed Sustiva.  Additionally, the dissent argued that the evidence concerning March 6, 2008, was insufficient to conclude that Defendant knew on that day that the investigator was not delivering the drugs to the person named on the prescriptions.  The dissent agreed that the evidence concerning the other dates in question was sufficient to support the conviction, but by excluding the March 6 reimbursement the aggregate reimbursement amount dropped below the three thousand dollar threshold.  Thus, the dissent would have reduced the conviction. (MM/LC)

AD1: Correction of illegal aggregate sentence permits restructuring of component sentences

To correct an illegal aggregate sentence, an intermediate appellate court may restructure the component lawful and offending sentences such that the lawful result resembles the original aggregate sentence.

In People v. Rodriguez (1st Dept. 12/28/2010), Defendant was convicted by a jury of Attempted Murder 2°, Assault 1°, Robbery 2°, and two counts of Robbery 1°, and sentenced as a second violent offender to an aggregate term of 40 years.  The demarcation of the aggregate sentence was 25 years for Attempted Murder 2° consecutive to 15 years for Assault 1°.  The other sentences were to be served concurrently with each other and with the consecutive term.  The additional sentences consisted of 25 years for each count of Robbery 1° and 15 years for Robbery 2°.  On appeal, Defendant challenged the legality of the aggregate sentence. Penal Law § 70.25 provides that sentences for related offenses may not run consecutively where a single act constitutes: (1) multiple offenses; or (2) one of the offenses and a material element of the other offense.  The People conceded, and the First Department held, that the assault and attempted murder sentences stemmed from the same acts and therefore could not be imposed consecutively.  The First Department remanded so that the trial court could realign the sentences to lawfully arrive at the intended aggregate sentence.  Defendant argued for an interpretation of CPL § 430.10 that would preclude the trial court from altering the three concurrent sentences.

CPL § 430.10 provides that once a lawful sentence of imprisonment has commenced it may not be altered unless specifically authorized by law.  The First Department cited People v. Montel, 704 N.Y.S.2d 462 (N.Y. App. Div. 1st Dep't 2000), for the precedent of vacating illegal consecutive sentences and remanding so that concurrent sentences could be imposed consecutively to reflect the intended aggregate sentence.  The First Department indicated that the procedure set forth in Montel was proper as long as the corrected aggregate sentence did not exceed the original aggregate sentence.  Additionally, the First Department held that § 430.10 was not violated because no individual sentence would be altered on remand; instead,  only the order of sentences would be changed.

In a concurrence, Justice McGuire emphasized the challenges courts face when sentencing multiple defendants for multiple charges.  Justice McGuire noted that the Supreme Court held in Bozza v. United States, 330 U.S. 160, 166-167 (1947), that “[t]he Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.”  In contrast with the majority, Justice McGuire noted that § 430.10 is only applicable where the entire aggregate sentence is lawful, and thus because the original aggregate sentence at issue here was illegal the trial court was free to restructure the underlying sentences.  Finally, Justice McGuire pointed out that if Defendant were permitted to prevail his aggregate sentence would be equivalent to the aggregate sentence of his far less culpable accomplice, a result that Justice McGuire found would deprive him of a just sentence.  (MM/LC)