In the People v. Drouin, 2016 NY Slip Op 06906 (App. Div. Third Department, October 20, 2016), the Court finds that there was legally insufficient evidence to satisfy the requisite mens rea element of larceny. The two basic elements of any crime are a criminal act accompanied by a criminal mind. This case is another example of why Mens Rea matters.

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In the People v. Karagoz, 2016 NY Slip Op. 06842 (App. Div. Second Department October 19, 2016), the Second Department reviews whether evidence was properly suppressed, the inquiry focuses on whether the police were correct in approaching the defendant.

The Court reviewed the testimony from the officer – “he observed a Buick in the northbound left turning lane on Oceanside Road; the operator of the Buick appeared to be unconscious behind the wheel. The officer parked his vehicle behind the Buick. Another police vehicle arrived on the scene and parked in front of the Buick. In addition, two ambulances arrived on the scene and were facing south on Oceanside Road blocking southbound traffic. Both police vehicles and the ambulances had their lights on. Traffic could pass through on the northbound side of Oceanside Road; the left northbound turning lane and southbound traffic were blocked.” A short time after, the officer walked back to his vehicle and noticed the Defendant stopped her vehicle behind his in the turning lane. The officer approached the vehicle and asked for the basic stuff: license, registration and insurance card. Upon this inquiry, the officer noted the bloodshot eyes, slurred speech and detected the odor of an alcoholic beverage. The officer approached the Defendant based on his observation that the Defendant’s stop seemed “odd.”

The question in this case is whether the police could approach the Defendant’s vehicle on this basis – that the officer found it odd she was there: more

In People v. Rivera, 2016 NY Slip Op 07036 (Second Department, October 26, 2016), the Court deals with the issue as to whether the Defendant was improperly sentenced as a mandatory persistent violent felony offender. The Defendant went to trial and lost. He was sentenced and, as any good criminal defense attorney would do, he pled with the prosecutor for leniency; however, the defendant was never heard as to the issue of whether he should be considered a mandatory persistent violent felony offender.  The Court reiterated the following facts:

The defendant was convicted, upon a jury verdict, of criminal possession of a weapon in the second degree. Several weeks before sentence was imposed, the prosecutor submitted to the Supreme Court a sentencing letter in which he summarized, among other things, the defendant’s criminal history, including convictions of violent felony offenses in 1986 and 1995. The prosecutor asserted that the defendant was a “mandatory persistent violent felony offender,” that the minimum permissible term was 16 years to life imprisonment, and the maximum was 25 years to life imprisonment. He urged the court to impose a sentence of 20 years to life imprisonment. A week before sentence was imposed, defense counsel responded to the prosecutor’s letter. Counsel acknowledged that the minimum permissible term was 16 years to life, and he urged the court to exercise leniency. The People never submitted a formal statement pursuant to CPL 400.16. At sentencing, the court did not ask the defendant whether he had seen the prosecutor’s letter, and it did not give the defendant an opportunity to controvert any allegations about his prior violent felony convictions. Indeed, the court said nothing about the defendant’s status as a persistent violent felony offender until it actually imposed sentence. The defendant appealed his judgment of conviction to this Court, but he did not raise any claim related to his sentence (see People v Rivera, 98 AD3d 529).

In his appeal, the defendant claims that he had ineffective assistance of counsel and that he was not a persistent violent felony offender. Albeit the Defendant claimed his sentence was illegal, the Court summarily “faulted the defendant for not objecting to the procedure when he was sentenced and for not raising his sentencing claims on his direct appeal…” while it “acknowledged that the procedure by which the defendant was sentenced as a persistent violent felony offender was not in compliance with CPL 400.15 and 400.16.” more

In the People v. Aragon, 2016 NY Slip Op 07104 (Nov. 1, 2016), the New York Court of Appeals decided whether the accusatory instrument alleging that defendant unlawfully possessed “brass metal knuckles” was facially sufficient. Here, because the Defendant allowed himself to be prosecuted by an information, the Court of Appeals agrees that the information was sufficient, affirming the Appellate Term.

It is important to note, at the outset, that the Defendant waived (yes, this can be done and often times the Defendant may not realize the impact of this) prosecution by an information. Accordingly, Criminal Procedure Law § 100.15 (3) provides that the factual part of a misdemeanor complaint “must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges.” The complaint must also “provide reasonable cause to believe that the defendant committed the offense charged” (CPL 100.40 [4] [b]; see People v Dumas, 68 NY2d 729, 731 [1986]). “[A]n accusatory instrument must be given a reasonable, not overly technical reading” (People v Konieczny, 2 NY3d 569, 576 [2004]). Thus, the test for facial sufficiency “is, simply, whether the accusatory instrument failed to supply defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy” (People v Dreyden, 15 NY3d 100, 103 [2010]). So what about brass knuckles?

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