Category: Insufficiency

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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New York Marijuana Arrests are especially high in New York City. Smoking pot in public. Usually the defendant was smoking in a park or had the unique scent of marijuana emanating from their possessions before the New York City Police intervene. In People v. Velez, 2015CN008005, NYLJ 1202765159918, at *1 (Crim., NY, Decided August 12, 2016), the Defendant was charged with one count of Criminal Possession of Marihuana in the Fifth Degree (Penal Law §221.10 [1]) and one count of Unlawful Possession of Marihuana (Penal Law §221.05). As is often the predicate of a great many arrests, stops, searches, seizures and sometimes frisks, the New York City Police Officers swore that

“I observed the defendant holding a marijuana cigarette in a public place and open to public view. I then took the marijuana, one cigarette containing marijuana, from the ground where I observed the defendant discard it. I took marijuana, two bags containing marijuana not burning or open to public view, from the defendant’s pocket. I observed Police Officer Christopher O’Connor, Shield # [] of the Midtown North Precinct also take five bags containing marijuana from a container in the defendant’s bag…I believe the substance is marijuana based upon my professional training as a police officer making marijuana arrests, the odor emanating from the substance, an observation of the packaging, which is characteristic of marijuana, and a field test that confirmed that the substance is marijuana.”

The Defendant was arrested  for the marijuana that the defendant allegedly threw to the ground. Was it in a public place? As The New York Law Journal Reports, “[a] Manhattan judge has tossed out a drug possession charge for a man accused of holding a marijuana cigarette in public, finding that the complaint against him did not adequately describe the public place where he allegedly committed the offense.”  more

Traffic Infractions and Vehicle and Traffic Law Violations bear serious consequences in New York State. This case comes by way of “[a]ppeal from eight judgments of the City Court of Rye, Westchester County…The judgments convicted defendant, after a nonjury trial, of three charges of failing to obey a traffic control device, three charges of failing to signal before turning, operating an unregistered motor vehicle, and failing to wear a seatbelt while operating a motor vehicle, respectively.” The defendant contends that the “City Court failed to provide findings of fact to support its decision as required by CPLR 4213 (b) or, in the alternative, remit the matter for a new trial.” The Court disagrees but reviews the evidence based on its discretion and the interests of justice.

So what happened here: a New York State motorist was pulled over and received eight (8) eight simplified traffic informations charging the motorist with failing to obey a traffic control device (Vehicle and Traffic Law §1110 [a]) by traveling in excess of the posted speed limit (three charges), failing to signal before turning (Vehicle and Traffic Law §1163 [d]) (three charges), operating an unregistered motor vehicle (Vehicle and Traffic Law §401 [1]), and failing to wear a seatbelt while operating a motor vehicle (Vehicle and Traffic Law §1229-c [3]). He goes to trial and the judge convicts the motorist of all of the above mentioned charges. Not a unique situation.

What is unique is the Court reviewing the case and finding that evidence was legally insufficient to establish the motorists’ guilt of all of these violations: more

A slew of news articles and challenges to what is a legal knife and what is an illegal knife, a Gravity Knife, have surfaced throughout New York and, more specifically, New York City. The sale of Gravity Knives and folding Knives in New York City have caused an uproar, including a recent challenge (2d Cir.) to the New York City District Attorney’s Office of criminally charging certain knife possessions. The most basic criminal procedure class teaches its students that a crime has two elements, mens rea and actus reus. One must know it is a crime before one can commit a crime. Here, the New York Court of Appeals determined that knowledge of what a gravity knife is can no longer be considered an element of that crime:

It is not disputed that defendant Elliot Parrilla possessed a folding utility knife at the time of his arrest. He asserts, however, that he was unaware that the knife’s characteristics rendered it a gravity knife and that the People were required to prove such knowledge to establish an element of the crime of which he was convicted — criminal possession of a weapon in the third degree. We reject defendant’s argument and hold, based upon the statutory language, that the mens rea prescribed by the Legislature for criminal possession of a gravity knife simply requires a defendant’s knowing possession of a knife, not knowledge that the knife meets the statutory definition of a gravity knife.

Penal Law §265.01 (1) states that a “person is guilty of criminal possession of a weapon in the fourth degree when:…[h]e or she possesses any…gravity knife.” Section 265.00 (5) defines “‘[g]ravity knife'” as “any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.” The crime is defined as a class A misdemeanor. The law was created, in part, to address individuals walking the streets of New York carrying foot long knives that could easily be concealed. “The Penal Law identifies gravity knives as per se weapons and criminalizes the mere possession of one” (People v. Brannon, 16 NY3d 596, 599 [2011]). In other words, section 265.01 (1) “criminalizes the mere possession, and not use, of a gravity knife” (id. at 602). Over the years, the development of knives and knife weapons has changed.

The Court concludes, however, that

Penal Law §265.01 (1) does not require the People to prove that defendants knew that the knife in their possession met the statutory definition of a gravity knife. The plain language of that subdivision demonstrates that the Legislature intended to impose strict liability to the extent that defendants need only be aware of their physical possession of the knife (see Penal Law §§15.00 [2]; 15.10). While knowing possession of the knife is required (see Penal Law §15.15 [2]), we conclude it is not necessary that defendants know that the knife meets the technical definition of a gravity knife under Penal Law §265.00 (5).

Buyer beware: the possession of a gravity knife is a crime in New York, a misdemeanor. There may be a constitutional violation if such knife was not , however, a Gravity Knife and yet one were to be incarcerated and/or criminally charged with possession of a gravity knife. Should you need assistance with such matters, call the Law Offices of Cory H. Morris.

The case is People v. Parrilla, No. 99, NYLJ 1202756639632, at *1 (Ct. of App., Decided May 3, 2016), http://www.newyorklawjournal.com/id=1202756639632/People-v-Elliot-Parrilla-No-99#ixzz4BSGEjWn9

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In New York, you can be charged with a crime for some rather innocuous behavior, including rioting. Hire a good criminal defense attorney – that is no April Fools Joke. The Defendant here was accused of just that, rioting, “being involved in a fight where he and at least four other individuals struck each other with closed fists.” The Court’s job here was to evaluate the criminal charges to see if they were legally sufficient.

The charges filed indicate that there was a fight, a brawl… Perhaps even, a riot. In this “melee” a chair was thrown and people were thrown all about. As a result, the Defendant is charged with Riot in the Second Degree (PL §240.05) and Disorderly Conduct (PL §240.20[5]).

Penal Law §240.05 provides that “[a] person is guilty of riot in the second degree when, simultaneously with four or more other person, he engages in tumultuous and violent conduct and thereby intentionally or recklessly causes or creates a grave risk of public alarm.” “The phrase ‘tumultuous and violent conduct’…means much more than mere loud noise or ordinary disturbance. ‘It is designed to connote frightening mob behavior involving ominous threats of injury, stone throwing or other such terrorizing acts.'” People v. Morales, 158 Misc.2d 443 (Crim Ct, NY County 1993), quoting Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law §240.05, at 210.

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Defendant is charged with one count of criminal possession of a weapon in the fourth degree (Penal Law ‘265.01 [2]). A person is guilty of criminal possession of a weapon in the fourth degree when he “possesses any dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another.” (Penal Law ‘ 265.01 [2]).

The Court frames the issue: “[t]he questions presented here are whether the allegations — that an officer found a knife on the floor of defendant’s car and that defendant made a statement indicating that he possessed the knife for self-protection — establish reasonable cause to believe (1) that defendant knowingly possessed a “dangerous knife” and (2) that he possessed the knife with the intent to use it unlawfully against another. Defendant contends that the allegations are insufficient to establish reasonable cause to believe that he had the intent to use the knife unlawfully against another.” Pp. 1-2. After reiterating the legal standard for facial insufficient (see Pp. 2), the Court recites the legal standard for Reasonable Cause:

“Reasonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it” Pp. 5. See CPL 70.10 [2]). “Reasonable cause to believe that a person has committed an offense” focuses upon the issue of whether the evidence is of sufficient weight and persuasiveness to establish a reasonable likelihood a defendant committed the offense. Peter Preiser, Practice Commentary, McKinney’s Consolidated Laws of New York Annotated, CPL 70.10)…. The measure of “reasonable cause” is the equivalent of the familiar constitutional standard called “probable cause” (People v. Johnson, 66 NY2d 398, 402, n. 2 [1985]).

For either to exist, the evidence must be strong enough to support a reasonable belief that it is more probable than not that a defendant committed a crime (see People v. Mercado, 68 NY2d 874, 877 [1986]). When “evidence or information which appears reliable discloses facts or circumstances” (CPL 70.10 [b]) which favor equally guilt or innocence the reasonable cause standard is not met (People v. Carrasquillo, 54 NY2d 248, 254 [1981] [“conduct equally compatible with guilt or innocence will not suffice”]).

Although the Court finds that it is clear (by his statements and the surrounding circumstances of its recovery) that the Defendant possessed a knife, it is unclear whether the Defendant possessed the intent to actually use that knife. The defendant indicated that it was dangerous out there and that he needed the knife for self-protection. By establishing possession of a “dangerous knife”, the People are entitled to the statutory presumption that defendant intended to use the knife unlawfully against another. (Penal Law §265.15[4]). The presumption establishes reasonable cause but can be overcome by the defendant.  more

The defendant appeals from a conviction of criminal possession of a controlled substance in the third degree. The Court suppresses the physical evidence – case is sent back down to the County Court pursuant to CPL 470.45. The Court notes “that defendant correctly concedes that the vehicle was lawfully stopped for having excessively tinted windows in violation of the Vehicle and Traffic Law [and] concedes that, following the stop of the vehicle, the officer was entitled to make level one inquiries concerning defendant’s identity and destination…and to direct him to exit the vehicle when the driver admitted that he had no driver’s license and defendant was unable to produce identification.” (citations omitted). At issue here is the second level of inquiry – the officer should have stopped instead of pursuing the defendant.   more

The Prosecution failed to present legally sufficient evidence at trial – the trial involving sexual assault against a child. The Defendant here was a Rabbi and the child was one who was confused during testimony. The Court makes it decision not based upon the credibility of the witnesses but upon the prosecution’s failures. At the close of the case, the defense, as often happens, moved for a dismissal. Indeed,

At the conclusion of the people’s case or at the conclusion of all the evidence, the court may…issue a trial order of dismissal, dismissing any count of an indictment upon the ground that the trial evidence is not legally sufficient to establish the offense charged therein or any lesser included offense…. CPL §290.10(1)(a).

CPL §290.10 applies to jury and nonjury trials, alike, and permits a trial order of dismissal only when the evidence presented at trial is insufficient as a matter of law. See People v. Sabella, 35 NY2d 158 [1974]. Legally sufficient evidence means “competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commissions thereof….” CPL §70.10(1); emphasis added. If the prosecutor has established a prima facie case, the evidence is deemed legally sufficient, Sabella, at 167, and the case proceeds to deliberation by the finder of fact.

Here, “the People failed, as a matter of law, to present a prima facie case in that they were unable to present legally sufficient evidence to establish the date on which the alleged offense occurred. Predatory Sexual Assault Against A Child and Sexual Abuse in the First Degree require that the prosecutor prove among other elements the date and the place of the alleged incident.” Pp. 3.  more

The Defendant was charged with, inter alia, unauthorized use of a vehicle in the third degree. It is alleged that the Defendant went into someone else’s car and stole their wallet… The People do not give us much more information other than that. The issue here becomes whether the charging instrument was facially sufficient or, put another way, whether the charging instrument alleges facts of an evidentiary nature supporting or tending to support the charge and provides reasonable cause to believe the defendant committed the offense charged. See CPL 100.15(3) and CPL 100.40(4). The Court notes that there are no allegations that the defendant took any action or interfered with the victim’s possession or use of the car. The instrument charging the defendant did not allege or demonstrate that the defendant took any sort of control over the vehicle but merely entered the vehicle to obtain the victim’s wallet.

New York Criminal Defense Attorneys, it is important to note that an argument concerning an accusatory instrument’s facial sufficiency is jurisdictional and must be reviewed even if the defendant failed to raise it in the Criminal Court. Pp. 2 (citing People v. Alejandro, 70 NY2d 133 (1987)). Thus, defendant’s claim was not forfeited upon his plea of guilty. Id. (citing People v. Dreyden, 15 NY3d 100, 103 (2010); People v. Konieczny, 2 NY3d 569, 573 (2004). Here the allegations presented in the charging instrument did not allege anything in regards to the defendant taking control, driving, moving or interfering with the use of the  victim’s car in any matter. Although the allegations are of a nature that the defendant entered the car, the charging instrument did not provide reasonable cause to believe that the defendant had engaged in the unauthorized use of a vehicle in the third degree, to which he plead guilty. “[T]he judgment of conviction is reversed, defendant’s guilty plea is vacated, the count of the accusatory instrument charging defendant with unauthorized use of a vehicle in the third degree is dismissed, the remaining counts of the instrument are reinstated, and the matter is remitted to the Criminal Court for all further proceedings on the remaining counts of the accusatory instrument.” Pp. 4.

The case is The People v. Gavrilov, 2013-135 K CR, NYLJ 1202741921574, at 1 (App. Tm., 2nd, Decided October 21, 2015) accessible at httpwww.newyorklawjournal.comid=1202741921574The-People-v-Gavrilov-2013135-K-CR#ixzz3r5owGKud