AD 4th Dept: Selected Decisions of March 21, 2008

Reckless, But Not Depraved

In People v Bolling 2008 NY Slip Op 02654 (4th Dept 3/21/08), the Fourth Department, once again, has reduced a depraved murder conviction to that of reckless manslaughter. In this case, the Court held that the fatal shot to the decedent’s thigh
"does not warrant a finding that defendant's conduct demonstrated the utter disregard for the value of human life' necessary to support the conviction
of depraved indifference murder (People v Suarez, 6 NY3d 202, 214).”
Other cases in which the Court similarly held that the evidence was insufficient
to support a depraved murder conviction include People v De Capua, 37 AD3d
1189 (4th Dept 2007), People v Smothers, 41 AD3d 1271 (4th Dept 2007),People v Casper, 42 AD3d 879 4th Dept 2007) and People v Lawhorn, 21 AD3d 1289 (4th Dept 2005).

A General Objection Is Generally Insufficient

Reminding attorneys that a general objection is hardly any better than no
objection at all, the Court, in People v Mobley 2008 NY Slip Op 02663 (4th Dept 3/21/2008), held that

Because defendant made only a general objection to the testimony of a
police officer that there was "a point in time in [her] investigation
when [she] came up with the name of a suspect" and that the name of
the suspect was that of defendant, he also failed to preserve for our
review his contention that such testimony constituted inadmissible
inferential hearsay (see People v Piper, 21 AD3d 816, lv denied 5
NY3d 884; People v Pierre, 300 AD2d 1070, lv denied 99 NY2d 631).

Proof of Illegal Entry Insufficient to Establish Intent to Commit Larceny


In affirming a trial court’s pre-trial reduction of a burglary count to one
of criminal trespass, the Court, in People v Holmes 2008 NY Slip Op 02669
(4th Dept 3/21/2008), held that

The evidence before the grand jury, viewed in the light most
favorable to the prosecution (see People v Antonelli, 300 AD2d 312,
313, lv denied 99 NY2d 612, citing People v Manini, 79 NY2d 561), is
legally insufficient to support the burglary charge because the
indictment expressly set forth that defendant intended to commit a
larceny, and the People failed to present evidence from which the
grand jury could infer that he had that intent (see generally People
v Barnes, 50 NY2d 375, 379). Although "it is not necessary for the
People in a burglary prosecution to demonstrate the exact crime which
defendant intended to commit while unlawfully in the building . . .,
the prosecution in this case expressly limited its theory to one of
larceny, and, having done so, . . . the prosecution [is held] to this
narrower theory alone" (id.).