Author Archives: Mostafa Khairy

Criminal Contempt Conviction Upheld Even Without Order of Protection in Evidence

In People v. Simpson (App. Term 2d Dept. 11/29/2018), the defendant was charged with Stalking 4° for incidents that had occurred in 2011 and 2012 involving the girlfriend (the victim) of defendant’s husband. Defendant was also charged with Criminal Contempt 2° based on an incident that had occurred in October 2013, in which defendant had allegedly violated an order of protection in favor of the victim and against the defendant. After a jury trial, the defendant was convicted of Criminal Contempt 2°. The Appellate Term, Second Department, affirmed the defendant’s conviction, but the decision drew a dissent from Justice Brands.

At trial, the victim testified that in October 2013, she had been sitting in her car on the phone when the defendant approached her vehicle and asked the victim questions regarding her relationship with the defendant’s husband. The defendant then allegedly threatened the victim, telling her that “she would pay.” The victim filed a report with the police shortly after. After the People rested their case-in-chief, defense counsel unsuccessfully moved for a trial order of dismissal on the Stalking charge but also stated on the record that they could not in good-faith move to dismiss the Criminal Contempt 2º charge. Prior to summations, both parties stipulated that there was a valid order of protection in favor of the victim against the defendant at the time of the alleged incident. But a copy of the order of protection was not produced. Defendant was acquitted of the Stalking charge but convicted of Criminal Contempt 2°.

On appeal, Defendant contended that the People did not prove her guilty beyond a reasonable doubt of Criminal Contempt 2º because they failed to introduce into evidence the order of protection, and there was otherwise no proof of the conduct that it prohibited. The Court declined to review this, stating that Defendant’s claim was unpreserved when she failed to move to dismiss the charge at trial. Defendant also claimed on appeal the denial of effective assistance of counsel. Here, the Court held that the defendant was not denied effective assistance of counsel because defense counsel had extensively cross-examined the victim and brought out credibility issues that the jury took into account as well as getting an acquittal on the stalking charge.

Justice Brands would have reversed the conviction and ordered a new trial. As to the defendant’s first claim, Justice Brands agreed with the defendant’s contention that the People’s evidence was insufficient for a conviction on the criminal contempt charge. Even though it was stipulated into the record that there was a valid order of protection in place, the actual contents of the order of protection, namely delineating the type of order of protection and the conduct the defendant must refrain from doing, were not entered into the record. Without the contents of the order of protection, Justice Brands reasoned that there was no proof Defendant violated any of its terms. Because defense counsel did not move to dismiss the Criminal Contempt charge in the absence of an order of protection in evidence, Justice Brands stated that this alone would be enough to grant Defendant relief for ineffective assistance of counsel. Justice Brands stated that this case represents a “rare occasion” in which a single misstep by defense counsel can rise to the level of ineffective assistance. (MK/LC)

Fatal Car Crash Does Not Rise to the Level of Criminal Negligence

The defendant in People v. Smith (App. Term 1st Dept. 12/7/2018), the was convicted after a bench trial of Reckless Driving, Failure to Exercise Due Care to Avoid Collision with a Pedestrian, and Failure to Yield to a Pedestrian. The Appellate Term, First Department, reversed the defendant’s convictions holding that the defendant’s actions did not rise to the level of criminal negligence and the convictions were against the weight of the evidence.

The defendant’s convictions stemmed from a motor vehicle accident where she was the driver. The defendant was driving and as she began to make a left turn, her vehicle was hit by a FedEx truck. The impact of the collision caused her to lose control of her vehicle and, in an attempt to avoid hitting a pedestrian, defendant drove the vehicle onto a sidewalk, where it scraped a building before striking and killing a pedestrian. Testimony at trial showed that prior to striking the pedestrian, when the defendant tried to step on the brakes, her vehicle would not stop. At the conclusion of trial, and at the defendant’s request, the Criminal Court utilized the criminal negligence mens rea with respect to the charged offenses Failure to Exercise Due Care and Failure to Yield. The defendant was convicted of all charges.

A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he or she fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. Penal Law § 15.05(4). The criminal negligence standard is more serious than that required in a civil suit. The criminal standard requires a defendant to have engaged in some blameworthy conduct creating or contributing to a substantial and unjustifiable risk of a proscribed result; nonperception of a risk, even if the proscribed result occurs, is not enough.

Here, the People failed to prove beyond a reasonable doubt that the defendant’s actions were criminal. The court noted that although the facts of the case would be enough to sustain a suit under the civil negligence standard, none of the evidence pointed to any criminal wrongdoing. The defendant was not speeding, driving recklessly, or operating in an intoxicated state. She used her turn signal and looked for pedestrians. Although the harm caused was fatal, it was not the result of morally blameworthy conduct on the defendant’s part. (MK/LC)

Wrong Advice and Lack of Support By Defense Counsel Leads to Ineffective Assistance of Counsel

In People v. Griffith (4th Dept. 11/9/2018), the Fourth Department found that the defendant had been denied effective assistance of counsel when his attorney refused to assist him in appealing his denied petition for a downward modification under the Sex Offender Registration Act (SORA). The defendant claimed in his petition that he was entitled to a downward modification of his previously-imposed classification as a level three risk pursuant to Correction Law §168-o(2). The court initially found that the defendant’s claim on appeal arises under CPLR 5701 not under Correction Law §168-o(2).

When the defendant moved forward with his petition, his assigned counsel wrote a letter to the court indicating that the petition was meritless and that he would not support the petition. Additionally, he advised the defendant to withdraw the petition so that defendant would not delay his right to file a new modification petition in two years. But the defendant’s counsel was wrong. Under Correction Law §168-o(2) a defendant may file a petition “no more than once annually.”

The Court concluded that by refusing to support the defendant’s petition and giving him incorrect advice, there was ineffective assistance of counsel because the defendant’s attorney essentially became a witness against the defendant and took a position adverse to him. (MK/LC)

Event Tickets Create a Legal Right Under New York Penal Law

In People v. Watts (Ct. App. 11/20/2018) (Fahey, J.), the Court of Appeals considered the issue of whether an event ticket, such as a concert or sporting event ticket, affects a legal right, interest, obligation, or status within the meaning of Penal Law § 170.10 (1). The Court held that it does.

Defendant Rodney Watts was indicted on multiple counts of Criminal Possession of a Forged Instrument 2º for selling counterfeit concert tickets. Watts moved to dismiss the indictment, contending that a counterfeit concert ticket falls outside of the Forgery 2º statute and, therefore, the Criminal Possession of a Forged Instrument 2º statute, because a concert ticket does not “affect a legal right, interest, obligation or status” under the statute. Additionally, Watts argued that the catchall clause of Penal Law § 170.10(1) must be read to contemplate only documents of the same character as a “deed, will, codicil, contract, assignment, commercial instrument, [or] credit card.” Watts argued that concert tickets are not any of these. The trial court denied Watts’ motion.

Watts was subsequently arrested and indicted again but this time for possession of counterfeit sporting event tickets. His motion to dismiss on the same grounds as before were similarly denied by the trial court. Watts eventually pled guilty to two counts of Criminal Possession of a Forged Instrument in the 2° in satisfaction of both indictments. Watts appealed his conviction arguing that the indictments were jurisdictionally defective, but the Appellate Division affirmed the conviction.

The defendant’s argument on appeal was that event tickets are revocable licenses and do not “affect a legal right, interest, obligation or status” under the statute. The Court agreed in part. Relying on prior case law, the Court stated that Watts was correct that an event ticket was a revocable license, but the nature of an event ticket could affect a legal right or legal status. An event ticket is a license, issued by the proprietor, as convenient evidence of the right of the holder to admission into the event.

Additionally, the Court based its reasoning on contracts law principles. The Court stated that under certain circumstances, a ticket holder can recover the price of an event ticket in an action for breach of contract. The purchase of an event ticket is a contract that binds the creator and if the holder of the ticket were to be wrongfully ejected or denied entry from the event, he or she would have a breach of contract claim against the licensor. Based on these principles the Court held that event tickets do create a legal right under the Penal Law as well. (MK/LC)

Sufficiently Pleading an Unauthorized Use of a Vehicle Charge

For a misdemeanor complaint to be facially sufficient, the accusatory instrument must provide facts that would establish each element of the crimes being charged. In People v. Bajas (App. Term 2d Dept. 8/31/2018), the Court affirmed the defendant’s conviction,  holding that the allegations in the accusatory instrument sufficiently alleged facts that established the “control or use of [a] vehicle” element of Penal Law § 165.05(1). The case drew a dissent from Judge Weston.

The defendant was arrested after an officer observed the defendant, at 4:24 AM, pull the handle of a 2006 Ford Suburban, enter the vehicle, and rummage through the glove compartment and center console of the Ford Suburban. The defendant was arrested and charged with Unauthorized Use of a Vehicle in the 3°, Attempted Petit Larceny, and Resisting Arrest. During his second court appearance, the defendant pleaded guilty to Unauthorized Use of a Vehicle in the 3° with the understanding that if he successfully completed a drug treatment program, the case would be dismissed. If he was unsuccessful in treatment, the defendant would be sentenced to one year of incarceration to run concurrently with a sentence on a prior, unrelated, felony charge. The defendant did not complete the drug treatment program and was sentenced to imprisonment.

On appeal, defendant contends that his conviction should be reversed because the factual part of the accusatory instrument, which merely alleged that he had entered a vehicle and rummaged through the glove compartment and the center console, did not satisfy the reasonable cause requirement for a misdemeanor complaint charging Unauthorized Use of a Vehicle in the Third degree. A person is guilty of Unauthorized Use of a Vehicle in the 3° when:

[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. A person who engages in any such conduct without the consent of the owner is presumed to know that he does not have such consent.

The broad language of the statute has been interpreted to apply to a person who “enters an automobile without permission and takes actions that interfere with or are detrimental to the owner’s possession or use of the vehicle.” Entry into a vehicle alone is not enough; there must be some degree of control or use. The court relied on this reasoning for holding that the defendant’s rummaging through the car and center console satisfied the statute.

Judge Weston, on the other hand, would have reversed the judgment, vacated the guilty plea, and dismissed the accusatory instrument. In her dissent, Judge Weston pointed to the majority’s reliance on the Court of Appeals decision in People v. Franov. Franov dealt with an entry into a vehicle where the defendant vandalized and then removed certain automotive parts from the dashboard. Judge Weston believed that merely rummaging through a vehicle does not constitute vandalism, and since there was no allegation in the accusatory instrument of any further action on the part of defendant, in addition to the entry, the statute was not satisfied. Instead, Judge Weston would have the Court follow the same rationale as a similar previously decided case, People v. Gavrilov. This case held that the defendant’s entry into a vehicle and stealing a wallet from inside was not enough to constitute “use or control” of the vehicle for the purposes of the statute. Here, there was not even property taken (MK/LC.