CPL 440.10 (subd. 3, par. [a])

November 22, 2014,

Defendant's claim that the trial court abused its discretion in not providing a hearing on this charge suffers from two defects. First, although defendant waited for ov three years to bring the instant proceeding, his attorney made no effort to explain this delay other than to say he was busy working on defendant's appeal. Moreover, nowhere does criminal defendant disclose when he learned of the alleged coercive tactics employed by the prosecutor. As a result, defendant has failed to show that he used due diligence in adducing such facts prior to sentencing as required by CPL 440.10 (subd. 3, par. [a]). The second flaw in defendant's position is that he has failed to allege sufficient facts to show that the prosecutor's allegedly coercive tactics could have prejudiced his defense. Defendant was well aware that BL had given a signed statement on July 9, 1975, nearly three weeks before she was subpoenaed to appear before the Grand Jury, in which she stated that she had spoken with Mrs. SF on Wednesday morning, June 18, the day Mrs. SF died.

Nevertheless, criminal defendant did not call BL as a defense witness at trial, nor has he made any effort to explain why. If the reason for failing to do so was his knowledge that BL had subsequently signed the contradictory statement on July 29 under the improper direction of the District Attorney, then his failure to promptly investigate the circumstances surrounding this change and immediately bring the matter to the court's attention is inexcusable. If, however, the reason is that BL' original, arguably equivocal, statement and her anticipated testimony would not have been helpful to the defense, then the prosecutor's alleged misconduct did not prejudice the defendant. Finding himself on the horns this dilemma, defendant not only failed to make the requisite showing of due diligence (CPL 440.10, subd. 3, par. [a] ), but he also failed to sufficiently allege that he was prejudiced by the alleged misconduct which, because it would have to be proven for defendant to succeed in having his conviction vacated, must be alleged. (CPL 440.30, subd. 4, par. [b].) Hence, defendant has not met the minimum requirements necessary for the court to either vacate his conviction or, in the alternative, order that an evidentiary hearing be held.

We note in passing that the mere act of interviewing BL on July 29, 1975 and then deciding not to present her testimony to the Grand Jury does not constitute prosecutorial misconduct per se. Indeed, as the official charged with the orderly presentation of evidence to the Grand Jury, it is sound practice for the prosecutor to interview and, when appropriate, dismiss prospective witnesses in order to eliminate unnecessary or equivocal material so that grand jurors' time can be conserved. This is especially so where, as here, the prospective witness had given a prior statement, conceded to have been freely made, wherein she stated that she was unsure of the very facts that she would be called upon to testify to before the Grand Jury.

Consequently, it cannot be said that the trial court abused its discretion in denying defendant's motion insofar as it was based on prosecutorial misconduct.

Defendant's claim of juror misconduct, which is apparently premised on CPL 440.10 (subd. 1, par. [f]), is equally unavailing. That section provides that the court may vacate a judgment of conviction upon the ground that improper and prejudicial conduct not appearing in the record occurred during a trial resulting in the judgment which conduct, if it had appeared in the record, would have required a reversal of the judgment upon an appeal therefrom. Once again, however, the only explanation given for failing to promptly investigate and report these alleged instances of juror misconduct is that defense counsel w busy preparing defendant's appeal. We believe that this explanation, in light of defendant's three-year delay in bringing this motion, is insufficient, as a matter of law, to satisfy the due diligence requirement of CPL 440.10 (subd. 3, par. [a] ). No drug or weapon was found.

Furthermore, with respect to all but one of defendant's claims of juror misconduct, only hearsay allegations contained in the affidavits of defense counsel and a private investigator employed by him have been proffered in support thereof. Since no explanation was given as to why affidavits could not be obtained from jurors who allegedly admitted to having acted improperly or from those jurors who allegedly observed other jurors acting improperly, and since the only juror who gave an affidavit, EG, did not state which or how many jurors heard an allegedly improper comment by juror, defendant cannot be heard to say that the trial court abused its discretion in denying the motion on this ground.

We also note that, as a matter of policy, efforts to undermine a jury's verdict by systematically questioning the individual jurors long after they have been dismissed in hopes of discovering some form of misconduct should not be encouraged.

Defendant's final ground for vacatur is that the Doctor who is a medical expert who testified for the prosecution, misrepresented facts critical to his opinion concerning the time of Mrs. SF's death. While defendant seeks to frame this contention in terms of CPL 440.10 (subd. 1, par. [b] ), he is in actuality basing his claim on newly discovered evidence pursuant to CPL 440.10 (subd. 1, par. [g] ). Consequently, the trial court's exercise of discretion in denying the defendant's motion on this ground is beyond our power to review.

They were arrested at the next station

November 22, 2014,

On August 24, 2010, after a jury trial, defendants, AR and HT, were convicted of Grand Larceny in the Fourth Degree (PL § 155.30[5]) and Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40).

Defendant, AR, moves, pursuant to CPL § 440.10, to vacate the criminal conviction, on the ground that he was deprived of his constitutional right to effective assistance of counsel.

On December 7, 2009, the Grand Jury indicted defendant, HT and KJ, upon the theory that defendant and HT served as accomplices to KJ, the principal actor in a subway robbery pickpocketing. The prosecution alleges that as KJ removed an iPhone from the knapsack of an undercover police officer, defendant and HT used their bodies to conceal KJ's actions.

On March 25, 2010, Supreme Court Justice dismissed the indictment against KJ, for the People's failure to afford him the opportunity to testify before the Grand Jury.

A month later, the prosecution re-presented the charges against KJ to the Grand Jury. The People called two witnesses: NYPD Officers IR and MD. Both had been assigned to subway anti-crime duty on December 2, 2009. IR testified that he witnessed the theft. MD described his role as the decoy, the officer who wore the backpack that contained the iPhone.

KJ also testified, denying the charges and offering a different version of the events. According to KJ, on December 2, 2009, he was in Far Rockaway, Queens, visiting his mother. That morning, he boarded a westbound "A" train and ran into his friend HT. KJ and HT got off at the Broadway/Nassau stop and were transferring to the Lexington Avenue line when, by happenstance, they bumped into defendant. After KJ, HT and defendant got on a northbound express train, KJ noticed a bag near a chair located in the corner of the subway car. He examined the bag and touched the iPhone to see if it worked. KJ then set down both items on the chair. He told the Grand Jury that defendant and HT didn't do anything felony. They didn't go in the bag.

Apparently, the grand jurors believed KJ. His indictment was not resurrected. This had no impact on defendant and HT, because in a prosecution based on accessorial liability it is not a defense that a co-actor has not been prosecuted for or convicted of any offense based upon the conduct in question. PL § 20.00.

Before the trial commenced, defendant's attorney made repeated phone calls to KJ, imploring him to testify on defendant's behalf. KJ refused. He had moved to California and could not be located.

The People allege that on the morning of December 2, 2009, Officers IR and MD, both wearing plain clothes, were participating in a five-man decoy operation on the Lexington Avenue subway line. At about 10:00 a.m., they were standing in Grand Central Station, on the northbound platform of the 4/5/6 trains. MD, the decoy, was dressed as a tourist, sporting patent leather shoes, a green blazer and an I Love New York cap. The knapsack on his back contained an iPhone in an exterior mesh pouch. Officer RM, Lieutenant KC and Sergeant AR were the other members of the team.

To Be Cont...

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Law Enforcement Assistance Administration

November 21, 2014,

Defendant, charged with robbery in the first degree and related offenses, moves for a dismissal of the indictment and for other forms of relief on the ground of discriminatory prosecution in that he is being prosecuted as a major offender by the Bronx District Attorney. The major offense program, which has been operating in Bronx County since July 2, 1973, with the financial assistance of the Law Enforcement Assistance Administration, is basically a program of accelerated prosecution. It is directed towards the perpetrator of the serious crime and the repeat offender. Its goal is to insure swift and certain justice for such malefactor.

As part of the program, the Bronx District Attorney's office instituted a system of screening procedures which identifies those cases in which the crime is particularly heinous or the alleged offender is a serious recidivist. Those cases are then evaluated by the major offense bureau for selective prosecution. The criminal prosecution of major offense cases is marked by limited plea bargaining, full disclosure to defense counsel, immediate and thorough case preparation, and the assignment of a single assistant district attorney to handle a given case through all stages, from inception to conclusion.

A Bronx County Criminal lawyer said that in an evaluation of the bureau's performance in the first three years of its existence, it was found that the median time between arrest and case disposition was 97 days compared to a median time of 400 days for all other felony cases prosecuted by the Bronx District Attorney. A comparison between major offense cases and a select group of similar cases from the caseload of the Bronx District Attorney's Supreme Court bureau shows an overall conviction rate of 96% for the former and 84% for the latter; after trial, the conviction rate was 92% for the former and 52% for the latter. In cases prosecuted by the major offense bureau, 94% of those convicted were incarcerated as opposed to 79% in the comparison group cases. A survey of dispositions in a typical year since the program's inauguration shows that the average maximum sentence for a defendant prosecuted by the major offense bureau is 10 years. In the comparison group the average maximum is 3.5 years.

To Be Cont...

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CPL 460.50(5)

November 21, 2014,

The two cases hereunder involves an appeal on conviction involving the crime of grand larceny.

The first was an appeals by (1) criminal defendant NJ from a judgment of the County Court, Nassau County, rendered October 14, 1983, convicting him of grand larceny in the second degree, attempted grand larceny in the second degree, and falsifying business records in the first degree, upon a jury verdict, and imposing sentence; and (2) defendant DC from a judgment of the County Court, Nassau County, rendered September 16, 1983, convicting her of grand larceny in the second degree and falsifying business records in the first degree, upon a jury verdict, and imposing sentence.

Judgments affirmed, and the matters are remitted to the Criminal County Court, Nassau County, for further proceedings pursuant to CPL 460.50 (subd. 5).

On these appeals, defendants contend, inter alia, that they are entitled to dismissal of the indictment against them because, among other things, the record contains insufficient evidence to satisfy the corroboration requirement of CPL 60.50. We disagree.

CPL 60.50 provides that person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed. In meeting this requirement of additional proof, it is sufficient to show corroborating circumstances which, when considered in connection with the confession are sufficient to establish the defendant's guilt in the minds of the jury beyond a reasonable doubt. While is not enough that the additional proof partially corroborates the truthfulness of the confession confession may, however, be used as a key or clue to the explanation of circumstances, which, when so explained, establish the criminal act. Moreover, it is not necessary that the proof 'every reasonable hypothesis save that of guilt'the statute is satisfied by the production of some proof, of whatever weight, that a crime was committed by someone.
The People's proof herein, which consisted of, inter alia, documentary evidence of the invoices of BR, Inc., to its X-ray film supplier, EP X-Ray Company and to Franklin General Hospital, as well as testimony as to the manner in which X-ray film shipments were made from EP to Franklin General Hospital, was sufficient corroborating evidence, together with each defendant's confession or admissions, to establish the scheme whereby BR, Inc., together with defendants, arranged for the shipment of fewer X-ray films than were ordered and paid for by Franklin General Hospital, which was the basis for the counts of the indictment. As noted in People v. Lipsky: in addition to the confession there is proof of circumstances which, although they may have an innocent construction, are nevertheless calculated to suggest the commission of crime, and for the explanation of which the confession furnishes the key, the case cannot be taken from the jury for a non-compliance with the requirement of.
Accordingly, there was sufficient evidence to support the jury's findings. We have considered defendants' other contentions and find them to be without merit.

The second case is an appeal by defendant from a judgment of the County Court, Nassau County, rendered April 18, 1989, convicting her of scheme to defraud in the first degree, grand larceny in the second degree (three counts), grand larceny in the third degree (ten counts), and grand larceny in the fourth degree, upon a jury verdict, and imposing sentence.
Contrary to the defendant's contention, we find that the trial court did not improvidently exercise its discretion in denying her motion for a severance on the ground that defenses which might be offered by her codefendants would be antagonistic to her defense. The proof against the defendant and her codefendants was virtually identical since all of them were charged with participating in the same scheme to credit card fraud. Furthermore, the ground advanced simply did not constitute good cause to order separate trials.

Nor do we find error in the trial court's denial, without a hearing, of the defendant's motion to controvert a search warrant. The affidavit upon which the warrant was issued contained more than enough information to satisfy the court that there was probable cause to believe that the defendants were engaging in conduct which constituted the crimes, among others, of scheme to defraud and grand larceny. The defendant failed to make a preliminary showing that a false statement, made knowingly and intentionally, or with reckless disregard for the truth, was included in the affidavit, and thus no hearing was. We have examined the defendant's remaining contentions and find them to be without merit.

Accordingly, the judgment is affirmed, and the case is remitted to the County Court, Nassau County, for further proceedings pursuant to CPL 460.50(5).

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CPL 20.40 (2) (c) ...cont

November 20, 2014,

A court may thus exercise "protective jurisdiction" if the criminal defendant's conduct has a "materially harmful impact" upon governmental processes or the welfare of the community. It is not sufficient under the statute that the conduct caused an injury to a particular person; what is required is injury to the county's governmental processes or community as a whole, and that the defendant intended that effect or acted with knowledge of such effect.

This court is not aware of any cases applying CPL 20.40 (2) (c) to confer jurisdiction over a prosecution charging a criminal defendant with failure to register under SORA. A starting point in understanding this statute as it applies to the present case is the Court of Appeals analysis, and the examples it provided in its opinion.

Some cases have found protective jurisdiction where conduct in one county would further the commission of a potential crime in the county in which a prosecution for such conduct (but not the future crime) was brought. Other cases have found protective jurisdiction where a defendant's out-of-county conduct would have an effect particularly on governmental processes. CPL 20.40 (2), however, is not limited to these situations, for it extends to any conduct that has a material effect on the community, if such conduct was performed with the requisite intent under the statute.

Considering the policy behind SORA, this court concludes that Bronx County is a county in which this action was properly brought. As stated by the United States Court of Appeals for the Second Circuit, "The legislative history of the [SORA] supports the preamble's characterization of the twin purposes served by the SORA protecting communities by notifying them of the presence of individuals who may present a danger and enhancing law enforcement authorities' ability to fight sex crimes."

The defendant's alleged failure to register does not have an effect only on a particular individual (such as the assault victim), but instead has an effect on the community as a whole in which he resides namely, Bronx County, because the failure to register impedes notification to the community of sex offenders living in that community. It also impinges on the ability of law enforcement authorities to fight sex crimes, and thereby also has an effect on the governmental processes of Bronx County. The defendant's alleged failure to register thus meets a prime element of the jurisdictional test enumerated by Fea. Further, his alleged failure to register has an effect that is material as required by CPL 20.10 (4). The lack of registration is material in the community in which an offender resides because efforts to "conduct investigations and quickly apprehend sex offenders are impaired by the lack of information about sex offenders" in the community. Likewise, the failure to register deprives the community of the statutory information. Indeed, lawmakers have found the need for sex offender registration to be so critical that all 50 States have sex offender registration laws in effect. Moreover, the Federal Government has enacted legislation to encourage States to adopt laws requiring convicted sex crimes offenders and offenders against children to register with law enforcement agencies. Finally, because the purpose behind registration to protect a sex offender's community by requiring the offender's registration is fairly obvious, this court concludes that it has protective jurisdiction because the facts alleged, if true, would establish that the defendant failed to register, knowing that such failure would be likely to have a material effect in Bronx County.

In sum, the court concludes that the materially harmful impact to Bronx County caused by the defendant's alleged failure to register in New York County furnishes grounds, pursuant to CPL 20.40 (2) (c), for this court to properly exercise jurisdiction over the prosecution in the instant matter.

Accordingly, the defendant's motion to dismiss is denied.

Criminal Division in Bronx Supreme Court...cont

November 20, 2014,

"The well-recognized rule is that such adjudication rests within the sound discretion of the court and depends upon all of the facts and circumstances in the case. It is not an abuse of discretion to reject the recommendation of the District Attorney." Defendant disagrees, and points to the language in subdivision (1) (b) as applicable to her because, in addition to the fact that she was under the age of 19 at the time of the incident, the case was never presented to a grand jury, having originated in and remained pending in New York City Criminal Court at the time the sole felony charge was dismissed. Thereafter, there was a "merger" of the Bronx branch of the Criminal Court of the City of New York into Supreme Court, Bronx County, Criminal Term, so as to create an all new Supreme Court, Bronx County, Criminal Division for disposition of all felony and misdemeanor charges. However, counsel argues, but for the merger of Criminal Court into the new Criminal Division, defendant's case would have been disposed of in the local court, thereby triggering the mandatory provision in subdivision (1) (b).

The authority for the creation of the Criminal Division is an administrative order promulgated by Chief Administrative Judge, establishing the Criminal Division in Bronx Supreme Court, effective September 21, 2004. As counsel further argues, pursuant to those new rules, under the last section entitled Procedure upon transfer of a criminal case hereunder: "Each case transferred from the Criminal Court of the City of New York to the Supreme Court and referred for disposition to the criminal division thereof pursuant to section 142.2 of this Part shall be subject to the same substantive and procedural law as would have applied to it had it not been transferred. An appeal taken from the trial court in such a case shall be taken to the same intermediate appellate court to which such appeal would have been taken had the case not been transferred hereunder."

Clearly, the creation of the Criminal Division has spawned issues unique to the Bronx. Indeed, there have already been a slew of decisions addressing some of the special problems that have arisen.

With all respect to my colleague, I am not prepared to go so far. I am mindful of his arguments and find them sound. However, I find persuasive the fact that the Legislature neither anticipated nor was it formally consulted on the creation of the Criminal Division. While that branch of government may now act if this situation becomes apparent enough to gain Albany's attention, it is clear that the Legislature's intent was to afford youthful offender status and its benefits unless there is an overriding reason not to. In this regard, Judge's thoughtful decision for a unanimous Court of Appeals, remains instructive. Noting the difference between local criminal courts, which may only try cases up to the misdemeanor level, and superior courts such as Supreme Court, he wrote :"In light of this jurisdictional underpinning, it becomes clear that the classification in CPL 720.20 is based on the gravity of the sex crimes with which a youth is charged. Viewing the distinction as one resting upon the gravity of the crime charged, we are of the opinion that there is a rational basis for distinguishing between a youth accused of a felony and one charged with a misdemeanor. The seriousness of the crime charged in a Grand Jury indictment for a felony offense, considered in conjunction with the defendant's prior record or behavior, is of significant bearing upon the question whether youthful offender status should be afforded to a particular individual."

Because the Chief Administrative Judge's rule has done away with the jurisdictional distinction, albeit for the neutral purpose of making the disposition of criminal cases more efficient in the Bronx, the Legislature's true intent would be thwarted by literal adherence to the statute's scheme. Accordingly, the defendant's motion is granted and I will resentence the defendant as a mandatory youthful offender. Given this resolution, there is no necessity of reaching defendant's remaining constitutional arguments.

SJB sometimes preyed on area residents ...cont

November 19, 2014,

The claim of error based on the court's remarks to the voir dire panel is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. While it would have been preferable, in a case involving a terrorism charge, for the court to forgo the reference to jury service as a way to "speak back" to the 9/11 terrorists, we think it highly unlikely that the jurors misinterpreted this hortatory rhetoric as an invitation (in the words of defendant's brief) to "vindicate their own rage at the terrorists by their treatment of case" that "undermined the impartiality of the proceedings." Nothing in the court's remarks likened defendant to the 9/11 terrorists; on the contrary, the court specifically explained that defendant was not being charged with politically motivated terrorism. Significantly, the trial took place a full six years after 9/11, and defendant does not claim that anything the jurors learned of his background might have caused them to connect him to the 9/11 terrorists. Further, given the vast scale of the 9/11 catastrophe, the distinction between those attacks and the crimes charged here was unmistakable.

We find unavailing defendant's argument that the performance of his lead trial counsel was so deficient as to deny him effective assistance of counsel. To the extent defendant argues that counsel failed to make certain objections or to call certain witnesses, we presume, in the absence of a complete record developed by a motion to vacate the judgment pursuant to CPL 440.10, that counsel exercised professional judgment and strategic discretion in determining how to conduct the defense. In fact, the existing record reflects that counsel followed a coherent strategy that sought to show that defendant committed no crime beyond weapon possession, a charge that he was unlikely to defeat given the denial of his suppression motion. Further, counsel competently attacked the credibility of ES, the People's main witness, and brought out the inconsistencies between his testimony and that of other witnesses. Ultimately, counsel obtained an acquittal on the second-degree murder charge, the most serious count of the indictment. While we do not condone counsel's absences and tardiness, defendant fails to establish that these had any impact on the defense.

We reject defendant's various arguments that his statements to the police should have been suppressed on his pretrial motion. We see no grounds for disturbing the suppression court's determination, based on credible evidence, that the police committed no violation in entering defendant's apartment when they first approached him for questioning.

Finally, as the case is being remitted for resentencing on the reduced counts of the judgment of conviction, defendant's argument for reduction of his aggregate sentence of 40 years to life is academic.

Accordingly, the judgment of the Supreme Court, Bronx County rendered December 10, 2007, convicting defendant, after a jury trial, of manslaughter in the first degree as a crime of terrorism, attempted murder in the second degree as a crime of terrorism, criminal possession of a weapon in the second degree as a crime of terrorism and conspiracy in the second degree, and sentencing him to consecutive terms of 20 years to life on the manslaughter count and the attempted murder count, and to concurrent terms of 15 years on the weapon possession count and 5 to 15 years on the conspiracy count, should be modified, on the law, to reduce the conviction for manslaughter in the first degree as a crime of terrorism to manslaughter in the first degree, the conviction for attempted murder in the second degree as a crime of terrorism to attempted murder in the second degree, and the conviction for criminal possession of a weapon in the second degree as a crime of terrorism to criminal possession of a weapon in the second degree, and, as so modified, affirmed, and the case remitted to Supreme Court with directions to resentence defendant on the reduced counts of the judgment.

SJB sometimes preyed on area residents ...cont

November 18, 2014,

While we reject defendant's other challenges to his conviction, we find that the evidence is not legally sufficient to establish that he acted with the requisite intent to render his offenses crimes of terrorism. Specifically, even assuming in the People's favor that the Mexican-American residents of the St. James Park area may constitute "a civilian population" under Penal Law § 490.25(1), the evidence was insufficient to support a finding that defendant committed his crimes with the intent to intimidate or coerce that "civilian population" generally, as opposed to the much more limited category of members of rival gangs. We therefore reduce the convictions for crimes of criminal terrorism to the corresponding specified crimes as lesser included offenses, and remit for resentencing on those counts.

In arguing for upholding the convictions for committing the specified offenses as crimes of terrorism, the People rely heavily on evidence that the SJB sometimes preyed on area residents who were not gang members. Specifically, the People point to evidence that the SJB robbed patrons of a certain restaurant on Jerome Avenue and engaged in extortion of a local house of prostitution. However, the People identify nothing in the record from which it could reasonably be inferred that the actions of defendant and the other SJB members on the night in question were motivated by the desire to intimidate the Mexican-American community of the St. James Park area. Indeed, as previously noted, the incident did not even occur within the SJB's territory, the home of the "civilian population" that, under the People's theory, the SJB intended to intimidate or coerce. Moreover, it should be borne in mind that a "crime of terrorism" within the meaning of Penal Law § 490.25(1) is not established unless the alleged terroristic intent is connected to the particular specified offense underlying the charge. To paraphrase a familiar legal maxim:" Proof of terroristic intent in the air, so to speak, will not do'". In any event, here, we see no evidence of intent to terrorize the Mexican-American community of the St. James Park area generally, whether connected to or disconnected from the underlying specified criminal offenses.

To the extent the People argue, as they did at trial, that members of other Mexican-American gangs in the SJB's area of the Bronx qualify as "a civilian population" under Penal Law § 490.25(1), we find this argument unavailing. To decide this appeal, we need not define the minimum size of "a civilian population" that may be the target of terrorism for purposes of Penal Law article 490 10. Rather, it suffices to observe that the term "to intimidate or coerce a civilian population," in the context of the aforementioned legislative findings, implies an intention to create a pervasively terrorizing effect on people living in a given area, directed either to all residents of the area or to all residents of the area who are members of some broadly defined class, such as a gender, race, nationality, ethnicity, or religion. The intention by a gang member to intimidate members of rival gangs, when not accompanied by an intention to send an intimidating or coercive message to the broader community, does not, in our view, meet the statutory standard. Domestic violence often resulted.

The foregoing conclusion is reinforced by the legislative history and judicial construction of similar definitions of terroristic intent in certain earlier-enacted federal statutes from which Penal Law article 490's definition of such intent appears to have been derived in relevant part.
We reject defendant's argument that the trial evidence was insufficient to support the judgment insofar as he was convicted of the specified offenses (attempted murder, manslaughter and weapon possession) as lesser included offenses underlying the terrorism charges and of conspiracy. The People's chief fact witness was the aforementioned ES, a leader of the SJB and an accomplice in the crimes with which defendant was charged 15. It was permissible for defendant to be convicted based on ES's testimony because that testimony found support in "corroborative evidence tending to connect the defendant with the commission of the offenses".

To Be Cont...

Appellate Division's reversal on the law was itself erroneous.

November 18, 2014,

The criminal defendant is a physician who had been employed by SG Company located in Nassau County. The company had a contract with UMD, Inc., covering its employees, and some of these employees or their wives were treated privately by the defendant after he left SG's service. The People charged that, although the defendant treated them in a number of instances for ailments not covered by SG's agreement with United Medical, he filed statements of claims with the latter in which he recited that he had treated them for bursitis, an ailment which was covered, and that, on the basis of such false claims involving seven patients he received $492 from UMD under the Blue Shield portion of the contract. This proof furnished the predicate for a conviction of grand larceny criminal counts of filing false insurance claims (Penal Law, § 1202, subd. 1.)

The principal witnesses against the defendant were the patients whom he treated, and the primary question on this appeal revolves about whether those witnesses were the defendant's accomplices and whether the trial court properly charged on this subject.

In general, the proof adduced was that a number of SG employees or their wives went to see the defendant because they were suffering from such varied complaints as nerves, a carbuncle on the foot or a pain in the stomach; that the defendant treated for such ailments, which were not covered by Blue Shield; and that he thereafter filed statements of claims with UMD in which he declared that those patients were suffering from bursitis and that he treated them therefore by needling the bursa on five or six occasions. The several patients in question testified that the defendant had handed them Blue Shield claim forms which they either signed in blank, or without reading; that they had not been suffering from bursitis; that they had not been treated for such ailment; and that they had not received any injections or needling for bursitis. It appeared, in one or two instances, that, when the patient had paid the defendant for his services, the latter had submitted a claim for a larger amount and out of such sum had remitted to the patient the smaller amount which the latter had paid him. Testifying on his own behalf, the defendant readily admitted that he had filled out the forms and that he had been reimbursed by the UMD under Blue Shield. He insisted, however, that he had throughout acted honestly and properly; that the patients who testified against him actually suffered from bursitis; and that he treated them for bursitis and gave them the injections described in the claims.

The jury, undoubtedly disbelieving the defendant, returned a verdict of guilt of second degree larceny and of filing false insurance claims, and the trial court imposed a prison term on the grand larceny count but suspended its execution. On appeal, the Appellate Division, by a closely divided court, reversed and ordered a new trial, as we now know, solely on the law. The majority regarded as erroneous the trial court's instructions with respect to the accomplice status of the patients who testified and the requirements of corroboration. It also characterized a sentence in the charge relating to the presumption of innocence' as 'another error which appears to have been an inadvertence.

To Be Cont...

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Defendant committed a larceny...cont

November 17, 2014,

This case, and others then pending against this criminal Defendant, were thereafter adjourned numerous times for assorted reasons. All of those other cases have been disposed of. Defendant has declined to make restitution as part of any plea agreement in this case, which then proceeded toward trial. But, by notice that is undated, Criminal Defendant made the present motion for the items of relief specified above. Because of my determination that the accusatory instrument is facially defective, I do not reach Defendant's other requests for relief.

Defendant asserts that the underlying dispute is essentially civil, that the work performed by the complaining repair shop was unsatisfactory, that the complaining repair shop did not give her a written estimate, thereby depriving itself of a lien on her car, and that, in any event, the People accuse her of doing nothing more than stealing her own car. She thus seeks dismissal on a variety of grounds, including that the accusatory instrument is facially defective. The People in opposition assert that the entire motion is untimely because not made within 45 days of arraignment, and, among other things, that the arguments made by Defendant provide no basis for dismissal. They make reference to their having turned over a copy of a repair bill reflecting that Defendant owes $3,534.32, and posit that Mr. JW' s attestations that the entire amount is still owed, together with the attestation that Defendant "fled from the repair shop with her automobile and without paying the owed amount demonstrate the existence of a prima facie case of petit larceny. The People are in error.

It is well settled that, in order to be sufficient, an information must both provide reasonable cause to believe that the defendant committed the offense charged, and contain sworn, non-hearsay allegations supporting every element of that offense, and the defendant's commission thereof. The information thus must demonstrate the existence of a prima facie case, but the prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt. When ruling on the sufficiency of an information, a court must accept the factual allegations as true, and, if the facts attested to by a complaining witness give rise to a reasonable inference that a defendant acted with the requisite mental culpability, an accusatory instrument will not be dismissed on the ground that the mental culpability element is inadequately premised. In determining whether an information is sufficient, the court is limited to reviewing the facts as they are set forth in the four corners of the document, but a court need not dismiss, and may allow the People time to formally cure, if they demonstrate both an intention, and an ability, to do so.

A prima facie case of petit larceny requires proof that the accused, acting with intent either to deprive another of property, or to appropriate that property to himself, herself or a third person, wrongfully takes, obtains or withholds that property from the owner thereof. For purposes of Penal Law Article 155, an owner is any person who has a right to possession superior to that of the person who takes it. A person or jural entity maintaining a garage for the repair of motor vehicles can acquire a lien on a car brought in for repair, and thus "may detain such motor vehicle until the amount due is paid, but in order for the lien to attach, the repair work must be at the request or consent of the owner. Moreover, the garage must be duly licensed. Indeed, a garage owner that refuses to return a car to its owner upon request where no valid lien exists has committed an act of conversion.

Insofar as Defendant's pre-trial motion concerns the legal sufficiency of the accusatory instrument, the People's assertion that the application is untimely is without merit. And since Mr. JW bases his supporting deposition not on what he witnessed, but on his having been advised that Defendant took her car from the garage, the information remains premised almost entirely on hearsay, thus rendering it defective. More to the point, however, is the failure of the accusatory instrument to demonstrate prima facie that the repair garage had a valid lien on the date of the incident, and that it thus also had a right of possession superior to Defendant's. In addition to its other flaws, because it contains no attestations about the licencing status of Mr. JW or his garage, and because it contains no attestations that Defendant requested or consented to the repairs for which payment has not been made, the information before me fails to provide reasonable cause to believe that Defendant committed a larceny. And since the People have demonstrated neither an intention nor an ability to cure these defects, the motion must be granted.

SJB sometimes preyed on area residents

November 17, 2014,

Defendant appeals from a judgment of the Supreme Court, Bronx County rendered December 10, 2007, convicting him, after a jury trial, of manslaughter in the first degree as a crime of terrorism, attempted murder in the second degree as a crime of terrorism, criminal possession of a weapon in the second degree as a crime of terrorism and conspiracy in the second degree, and imposing sentence.

A Bronx County Criminal lawyer said that on August 18, 2002, a fight among members of rival gangs broke out following a party in the Bronx. In the course of the fighting, shots were fired, resulting in the death of a 10-year-old girl and the paralysis of a young man. Defendant Edgar Morales, a member of a gang of Mexican-American young adults and teenagers known as the St. James Boys (SJB), was ultimately charged with having committed these shootings. In what appears to have been the first prosecution for a crime of terrorism under Penal Law § 490.25, the People proceeded against defendant on the theory that he committed the charged specified offenses as crimes of terrorism because he acted with the intent to further the alleged purpose of the SJB gang to "intimidate or coerce a civilian population." The People alleged that the "civilian population" defendant and his gang targeted for intimidation comprised Mexican-Americans residing in the area of the Bronx in which the SJB sought to assert its dominance. This area is sometimes described in the record as the general vicinity of St. James Park, although the People's expert witness on gang behavior testified that the area extends (east to west) from Webster Avenue to University Avenue and (north to south) from 204th Street to 170th Street.

A jury trial resulted in defendant's conviction for three specified offenses as crimes of terrorism (manslaughter in the first degree, attempted murder in the second degree, and criminal possession of a weapon in the second degree) and one non-terrorism offense (conspiracy in the second degree).

It is the People's position that individuals of a particular ethnicity living in a particular urban neighborhood or group of neighborhoods may constitute "a civilian population" within the meaning of Penal Law § 490.25(1). Defendant argues, to the contrary, that the Anti-Terrorism Act, as a response to 9/11, was intended to address criminal acts carried out for the purpose of creating a mass impact, on the scale of a country, state or city. This standard is not met, according to defendant, by acts that would intimidate only persons of a given ethnicity residing in a particular neighborhood, or group of neighborhoods, within a vastly larger city. Defendant further argues that, even if a community as relatively small as the Mexican-American population of the St. James Park area could constitute "a civilian population" within the meaning of § 490.25, the People's evidence was insufficient to establish that defendant committed specified crimes with the intent to coerce and intimidate the area's Mexican-American population as a whole. Defendant contends that, on this record, the subject incident could not reasonably be found to have been anything more than an act of inter-gang rivalry -a genuine evil, to be sure, but not the sort of criminality that Article 490 was intended to address.

To Be Cont...

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People v. Winfrey...cont

November 16, 2014,

Both the aforesaid contentions were considered by this Criminal Court in People v. Winfrey, wherein it was held that incarceration in a foreign state prison does not, per se, constitute 'good cause' for a delay in prosecution. In that case, after reviewing precedent decisional law, this Court pointed out that the burden of bringing an accused to trial is upon the prosecution, and that statutes enabling persons incarcerated in prisons within New York State or other states, which are signatories to the Agreement on Detainers, to request a disposition of criminal charges against them in no way alleviate the prosecution's burden. In that connection, then, it is irrelevant for present purposes whether or not the accused, himself made efforts to bring the instant indictment of trial, as he has asserted in his unsupported allegations. Moreover, in Winfrey, this Court expressed the opinion that the holding in People v. Brandfon, must be viewed as erroneous in light of the criminal case law, which developed thereafter.

Furthermore, after the Brandfon decision, the Appellate Courts of this State held that incarceration in a Federal penitentiary, whether within or without the State of New York, did not constitute good cause for failure to bring a case to trial within the meaning of Section 668, C.C.P. because the prisoners involved therein could have been brought to trial by virtue of a Federal statute, which permits the Attorney General to release Federal prisoners for trial in state courts, if he deems it to be in the public interest. For, these reasons, this Court viewed itself bound to reject the Brandfon decision and to follow the mandate emerging from later cases to the affect that an accused person must be returned from other jurisdictions for trial when there is a statutory device available for effecting that result. Finally, this Court, in Winfrey, pointed out that the extradition statutes of New York and Alabama constituted such a statutory device and concluded that, since the prosecution had made no effort to return the accused for trial, the indictment had to be dismissed. The affidavit in opposition to the instant motion totally fails to demonstrate any reason why this Court erred in rejecting the prosecution's arguments and, consequently, this Court again rejects these contentions.

As a practical matter, it is possible for New York State authorities to return accused persons to this state for trial from another state jurisdiction by the device of Executive Agreement. For, as a matter of comity, the executive authorities of various states may agree that a prisoner serving a sentence in the asylum state will be surrendered for trial to the demanding state on condition that the said prisoner be returned to the asylum state after trial, without either state waiving jurisdiction over the prisoner. Accordingly, the section of New York's extradition law empowering the Governor to agree with the executive authority of a foreign state that a person serving a sentence in said foreign state be extradited; be returned for trial and thereafter returned to the other state, is merely a codification of an already existing executive power. In the Court's view, the failure of the prosecution to make even the slightest effort to effect an Executive Agreement for the return of the accused is fatal to the prosecution's assertion that 'good cause' existed for the delay in prosecuting the instant indictment. On that score, it may be observed, that the allegation that another Assistant District Attorney had 'communicated' with the office of the Governor of New York State in an unsuccessful effort to return a co-accused in this case for trial from the same prison where he was incarcerated, is legally inadequate to raise the question of the effect a refusal by one of the governors of the states involved to enter into an Executive Agreement of the type herein under discussion would have upon the rights of an accused. The resolution of that problem must await a proper case. Arson was no issue.

In the instant case, detainer warrant for the arrest of the accused was lodged at another jurisdiction, after which the County authorities made no effort to return him for trial. In view of these facts and for the reasons assigned above, the court ordered that the indictment pending against the him be and is hereby dismissed.