Category Archives: App. Div. 2d Dept.

Rare AD2 Reversal for Factual Insufficiency

Under its factual review power, the Appellate Division sits as a “thirteenth juror” to determine whether the factfinder—the jury or, in a bench trial, the judge—was justified in finding the defendant guilty beyond a reasonable doubt.  This assessment does not permit the court to view the evidence in the light most favorable to the People, as is required in a legal sufficiency review.  Since the Court of Appeals can only review questions of law, “weight of the evidence” decisions cannot be reviewed by that higher court.

Recently, the Second Department reversed a conviction on weight of the evidence grounds—a rare move.  In People v. Herskovic (App. Div. 2d Dept. 10/10/2018), the court reversed the defendant’s conviction for Gang Assault 2º and related charges, which stemmed from a 2013 attack upon the victim by a group of 20 Hasidic Jewish men in Brooklyn. The victim was not able to identify the defendant as one of the attackers.  The victim and eyewitnesses also gave conflicting accounts of the attack.

The People relied principally on DNA recovered from the defendant’s sneaker, which one of the attackers had taken off of him and thrown on a roof.   However, the DNA sample was small (97.9 picograms, short of the 100.0 picograms needed for a traditional DNA analysis) and was a mixture of two or more individuals’ DNA.   A criminologist testified to a procedure that the Office of the Chief Medical Examiner had developed to analyze such small and mixed samples to determine a “likelihood ratio.”  However, even with these “tweaked” protocols, the court found the DNA evidence lacking:

The analysis also found that it was 133 times more likely that the DNA sample originated from the defendant and the complainant than from the complainant and an unknown unrelated person. The FST analysis of the DNA was based upon a Caucasian population, and failed to take into account the genetic history of the defendant, a member of the Hasidic population. Moreover, the likelihood ratio result was only 133, a relatively insubstantial number.

Based on the weak testimony and “less than convincing” DNA analysis, the court reversed on the facts.  As a result, the defendant may not be retried.  For more on this case, see this article from the New York Law Journal (subscription required).

Another reversal for equivocal answers by juror

The Second Department reversed the conviction in People v. MacFarlane (2d Dept. 8/23/2011), because the trial court sat a prospective juror who had given equivocal answers to a question about police credibility.  The Defendant was on trial for Murder 2º.  During voir dire, the juror reported that several family members were police officers.  "The prospective juror expressed on two occasions her concern that she may give the testimony of a police officer more credence than she would to other witnesses. When asked if she would give no greater credibility to the testimony of police officers, the prospective juror replied, 'I would like to think that I can be fair, but it's hard.' When asked if she could evaluate the testimony of police officers in the same way as any other witness, the prospective juror answered, 'I would hope so.' Further, in response to a query from defense counsel as to whether she could be fair and impartial, the prospective juror stated, 'I'd like to think of myself as a fair person, but I — it's — I — I do give police officers a little more credence, I think, than I would other people.'"

Based on the juror's responses, the Appellate Division found that the juror should have been excused for cause.  

Lesson learned?  While it is frustrating for both jurors and attorneys, the latter must ensure that the former give unequivocal answers to questions about bias.  Jurors who remain on the fence about such an issue must be excused.  (LC)

Lawyers as jurors

Conduct by a juror is improper if it may affect a substantial right of the defendant.

In People v Davis, (2d Dept. 5/24/2011) (Hall, J.), the defendant appealed his conviction of two counts of Murder 2°, six counts of Robbery 1°, three counts of Burglary 1°, and one count of Criminal Possession of a Weapon 2° for his participation in an apartment raid.  The trial jury included a juror who practiced as a real estate attorney.  After the jury convicted the defendant, several jurors wrote letters to the prosecutor, the court, and the defense attorney explaining that while they were deliberating the attorney-juror instructed the others about the law.  Based on the conduct of the attorney-juror, defendant raised a motion to set aside the verdict pursuant to CPL § 330.30(2).  The trial court denied the motion without a hearing.  It reasoned that inquiry into the activities raised by the letters would be impermissible due to the rule forbidding inquiry into the tenor or content of jury deliberations.

In affirming the conviction, the Second Department held that the trial court did not abuse its discretion when it denied the motion without conducting a hearing.  The Second Department explained that while inquiry into the tenor of jury deliberations is generally impermissible, inquiry into improper jury influence may be allowed on a case by case basis.  After referencing several Court of Appeals cases for the premise that improper influence is evident where the jury comes to possess factual evidence not introduced at trial, the Second Department found that the attorney-juror did not convey facts beyond those presented at trial.  This finding was supported by the record of jury notes requesting reinstruction on the law and readbacks of the defendant’s testimony.  Additionally the court noted that the statements allegedly made by the attorney-juror were accurate interpretations of the law, but that even if the statements were incorrect that they would not constitute improper conduct as set forth in CPL § 330.30. 

I have always been suspicious of having a lawyer on my juries for precisely the reason raised by this case.  I have usually exercised my preemptories to excuse potential lawyer-jurors.  I see several problems with lawyer-jurors: (1) they may, as in this case, advise the rest of the jurors on the law; (2) the other jurors may turn to the lawyer-juror for legal interpretation; and (3) the lawyer-juror's views may carry more weight because of his or her status.  Some may view these problems as actually benefits.  I see some merit to this conclusion, depending of course on the particular juror at hand.  Nevertheless, I am ultimately persuaded that having a lawyer-juror on the jury is too much of a wildcard.  (MM/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)

Court must conduct a sufficient inquiry before enhancing a sentence for plea violation

The Second Department in People v. Zobe (2d Dept. 3/15/11), explained the procedure that must be followed before a defendant's sentence can be enhanced for violating a  condition of his plea agreement before sentencing.

The Defendant pleded guilty to Insurance Fraud 3º. As part of his plea agreement the Defendant stated he understood: (1) he must answer all questions asked by the Department of Probation truthfully and be consistent with the answers he gave during the plea colloquy; and (2) if the first condition is violated his sentence would be enhanced up to the maximum allowed.  The County Court, Westchester County, enhanced the Defendant's sentence after the Court found he violated his plea agreement when he was untruthful with the probation department.

After the Defendant was arrested for insurance fraud, he alleged the police beat him and handcuffed him to a chair.  Zobe later sued Yonkers Police Department. The Defendant made several statements to his probation officer about the alleged beating, including "all a false arrest." However, the Defendant never denied committing the insurance fraud. The County Court concluded the statements to his probation officer violated his plea agreement and enhanced his sentence. 

The Second Department reversed the County Court because the lower court failed to conduct a sufficient inquiry as to whether or not the Defendant violated a condition of his plea agreement. As part of that inquiry the Defendant should have been given an opportunity to present evidence that his later statements to his probation officer did not contradict the earlier statements he made in court.  (MK/LC)