"I Did This Before" Admissible as Res Gestae

In a prosecution for murder in the fist degree based on a murder committed during a rape (Penal Law § 125.27 [1] [a] [vii]), as well as two counts of rape in the first degree (§ 130.35 [1]), the Court in People v Owens [4th Dep 5/2/08], held that defendant's

contention that the court erred in permitting the victim who [*2]was the subject of the two rape counts to testify that during the course of the rape defendant stated, "I did this before. Sooner or later I'm going to get caught. I might as well face my consequences." The statement was properly admitted as part of the res gestae of the rape counts (see People v Lewis, 25 AD3d 824, 826, lv denied 7 NY3d 791, 796; People v Ayala, 273 AD2d 40, lv denied 95 NY2d 863; People v Chavys, 263 AD2d 964, 965, lv denied 94 NY2d 821), and it constituted an admission with respect to those counts (see generally People v Geddes, ___ AD3d ___ [Mar. 14, 2008]; People v Figgins, 48 AD3d 1042). We note that the court properly instructed the jury to consider the testimony only with respect to the rape counts, and not the murder counts, thus limiting " the possibility of prejudice' " (People v Dozier, 32 AD3d 1346, 1347, lv dismissed 8 NY3d 880; see generally People v Dickson, 21 AD3d 646, 647).

When Can Multiple Acts Be Grouped Together in an Intentional or Depraved Assault Count?

Five months after oral argument, in People v Bauman [2008 NY Slip Op 04182](4th Dept 5/2/08] a divided Fourth Department issued a decision addressing the propriety of grouping multiple acts over an extend period of time in a single count charging intentional or depraved indifference assault.

The allegations are indisputably ugly. The People presented evidence that

defendants resided with the victim, who suffers from multiple sclerosis, and that over an eight-month period they allegedly struck the victim with, inter alia, their fists, a baseball bat and a hammer. That alleged conduct by defendants caused the victim to sustain various injuries, including a detached retina, fractured fingers, ribs and facial bones, and internal bleeding. The People also presented evidence that defendants allegedly burned the victim with a frying pan, scalded him with hot water, denied him food, locked him in a basement room for several hours at a time, and required him to sleep in the unheated basement on a plastic lawn chair. Emergency personnel who were called to the residence found the victim in the basement, near death.

The two co-defendants were each charged with both intentional and depraved indifference assault. Both counts listed numerous acts. The intentional assault count alleged that "[defendants] caused such injury . . . by means of a dangerous instrument, to wit: a baseball bat and/or a frying pan and/or a vacuum cleaner and/or a hammer." The depraved assault count alleged that

on or about and between August 1, 2004 and April 7, 2005, under circumstances evincing a depraved indifference to human life, recklessly engaged in a course of conduct which created a grave risk of death to another person . . . by striking said person about the head and body with fists and/or a baseball bat and/or a hammer; and/or burning said person with a frying pan; and/or scalding said person with hot water; and/or placing a vacuum cleaner hose on said person's genital area; and/or providing inappropriate and/or inadequate nutrition; and/or subjecting said person to inadequate and/or inappropriate living conditions; and/or failing to seek medical attention and thereby caused serious physical injury to [said person].

The trial court dismissed both counts of the indictment as duplicitous and the People appealed. In a signed opinion by Presiding Justice Scudder, the three justice majority affirmed.

With respect to the intentional assault the Court explained

Here, the alleged use by defendants of multiple dangerous instruments caused the victim to sustain multiple serious physical injuries, including second degree burns, fractured facial bones, fingers, and ribs, as well as internal bleeding. We thus conclude that count one charges more than one offense. It is of particular "significan[ce] that the charged conduct was not the product of one impulse,' permitting only one prosecution no matter how long the action may continue, but[, rather, the charged conduct was the product of] successive and distinguishable impulses, each able to support a separate charge" (People v Okafore, 72 NY2d 81, 87; cf. People v Hines, 39 AD3d 968, 969-970, lv denied 9 NY3d 876). Indeed, we note that a jury might find both that defendants committed the offense of intentional assault by burning the victim's arm with a hot frying pan and that they committed the offense of intentional assault by breaking the victim's fingers with a hammer. Thus, in the event of a conviction, "there is such a multiplicity of acts encompassed in [count one] as to make it virtually impossible to determine the particular act [or acts of intentional assault] as to which the jury reached a unanimous verdict" (Keindl, 68 NY2d at 421; cf. Hines, 39 AD3d at 969-970). "The [potential] prejudice to the defendant[s] is manifest" (Keindl, 68 NY2d at 421).

The dissenting judges agreed with this portion of the decision. It was the Court's holding regarding the depraved assault count that divided the Court. The majority held that

Although the alleged conduct in count two is not duplicitous with respect to the element of depraved indifference to human life, we nevertheless conclude that, as with count one, in the event of a conviction there "is such a multiplicity of acts . . . as to make it virtually impossible to determine the particular" conduct that allegedly created a grave risk of death or which serious injury was thereby caused, and thus whether the jury reached a unanimous verdict (Keindl, 68 NY2d at 421; cf. Hines, 39 AD3d at 969-970). A jury might find that the alleged aggregate conduct over the eight-month period created a grave risk of death, resulting in the serious physical injuries of lowered body temperature and unconsciousness of the victim, but it might [*3]also find that the alleged course of conduct of repeatedly beating the victim caused a grave risk of death resulting in the serious physical injuries of, inter alia, fractures and internal bleeding. Indeed, a jury might find on the alleged facts that defendants' ongoing conduct created a grave risk of death on several occasions over the eight-month period, each of which resulted in serious physical injury (see generally Penal Law § 120.10 [3]). By way of contrast, in the event that the same ongoing conduct alleged in count two had resulted in the death of the victim, the multiple acts would have caused a single result, i.e., death (see § 125.25 [2]; see generally People v Dickerson, 42 AD3d 228, 234-235, lv denied 9 NY3d 960). With respect to the offense of assault in the first degree, Penal Law § 120.10 (3) contemplates that the result of reckless conduct creating a grave risk of death is serious physical injury and, here, there are multiple serious physical injuries that were caused by the alleged acts over the eight-month period. Thus, because count two alleged "the commission of a particular offense[, i.e., depraved indifference assault,] occurring repeatedly during a designated period of time" (Keindl, 68 NY2d at 418), that count is duplicitous (see generally id. at 417-418).

By contrast, the two dissenting justices in an opinion by Justice Fahey, reasoned that

depraved indifference assault is akin to the crimes of endangering the welfare of a child or depraved indifference murder, because it is "a crime that by its nature may be committed either by one act or by multiple acts and readily permits characterization as a continuing offense over a period of time" (People v Keindl, 68 NY2d 410, 421; see People v Brammer, 189 AD2d 885, lv denied 81 NY2d 967).Based on our conclusion that depraved indifference assault is a continuing crime, we are then faced with the issue of duplicity.....The test for duplicity that has evolved is whether, under a particular count alleged to be duplicitous, a defendant can "be convicted of [any] of the crimes charged therein, should the district attorney elect to waive the other[s]" (People v Klipfel, 160 NY 371, 374; see Butler, 161 Misc 2d at 984).... Gravamen is the essence of a claim (see Black's Law Dictionary 721 [8th ed 2004]). Here, the gravamen of the act of depraved indifference assault is that the defendants acted with depraved indifference. The character of the act is defined by the ongoing abuse of the victim, which resulted in both serious physical injury and a grave risk of death. In view of our determination that depraved indifference assault is a continuing crime, we are compelled to conclude that there was only one occasion on which defendants' conduct resulted in serious physical injury and a grave risk of death, i.e., on April 7, 2005. We thus conclude that count two of the indictment is not duplicitous because it alleges a continuing offense with a series of serious physical injuries culminating in a grave risk of death on one occasion.

Finally, we note that, as the Court of Appeals stated in the context of depraved indifference murder, "a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim" is a prime example of depraved indifference (People v Suarez, 6 NY3d 202, 212). Such a course of conduct must necessarily involve multiple incidents. If one were to contend that the inclusion of multiple incidents renders a depraved indifference count duplicitous, then it would be impossible to prove an allegation of "a brutal and prolonged course of conduct" in support of a charge of depraved indifference. The allegations of depraved indifference assault in this case, if proven, establish the requisite shocking and callous conduct toward a particularly vulnerable victim over a prolonged period of time.

Leave to appeal this decision has been granted by a dissenting justice. Thus, this case will be reviewed by the Court of Appeals.

Selected Criminal and Family Law Decisions From the First Department

By Janet Somes:

From January & February, 2008

CRIMINAL LAW

People v Stephens, 47 AD3d 586 (decided Jan. 31, 2008)
Lower court order of suppression of evidence reversed (ouch). Defendant was taking a walk in area where there had been some robberies. One hand was swinging while his other hand was still, near his waistband. Defendant “apparently noticed the officers” but kept looking straight ahead “as if he was very nervous or had seen a ghost”. When cops got out of car D ran and cops caught him, but not before he threw gun under a car (and some drugs too). Lower court’s finding that D’s behavior was innocuous, and reasonable suspicion lacking, was wrong, as First Dept explained that cop had suspicion that D carrying a gun based upon the way he was walking, and that suspicion was heightened when he ran away before cops could ask him questions.

People v Inglasis, 47 AD3d 593 (decided Jan. 31, 2008)
In burglary trial, it was not ineffective, or otherwise prejudicial for defense counsel to elicit from detective that he “believed” defendant had been arrested for prior robberies, given that the court immediately “struck” the testimony.

Matter of Elvin G., 47 AD3d 527 decided Jan. 29, 2008)
Search issue in JD proceeding. Lower court denied suppression without hearing on ground of factual inadequacies in allegations. Affirmed. Dean of school, responding to teacher reporting an electronic noise, possibly from a cell phone, had all students stand and started “checking” their pockets. D then took a hunting knife out of his pocket and held it in open view. First Department held there was not search, and even if there was, it was reasonably tailored to be least intrusive, most effective means of finding the offending cell phone. Only an issue of law here, which was resolvable on allegations, and no reason to remand for more proof as dissent would have done.
*DISSENT (2 judges): Was the Dean’s actions the least intrusive and most effective means? Send it back for a hearing on that issue. Also, court below failed to apply correct legal standard to this search. No showing that the suspected cell phone presented any kind of threat to safety or educational process, justifying a warrantless search. Also, family court found Dean’s actions necessary to restore order to classroom, but allegations suggested this was a substantial invasion not warranted by a ringing cell phone, which had stopped ringing by the time of the search. There were factual disputes to be resolved.

People v Packman, (January 29, 2008)
Denial of suppression reversed and indictment dismissed in well written decision. Police were looking to arrest driver of vehicle (not D) on forgery charges. They stopped car driven by suspected forger, and told passenger (D) to stay in car and keep hands in sight. D tried to exit vehicle and tried to walk away, but police stopped him. D then told to get out of car. D frisked and a small knife taken out of his pocket. Police asked for ID and D told them it was in his backpack. Police asked if they could open backpack it to get ID. A knife, which was the basis of the CPW conviction, was found in backpack. Not only was frisk illegal, but Court rejects theory that search of backpack was result of benign request and consent. People failed to meet their high burden to show consent was unequivocal product of an essentially free and unconstrained choice. People’s burden under these facts is “insuperable”.
*DISSENT: Consent valid, finding attenuation.

People v Rouse, 47 AD3d 637 (January 29, 2008)
Denial of 30.30 motion affirmed. Pre-trial readiness period of 30 days properly charged to Defendant as time without counsel, notwithstanding that the court had assigned counsel. Court assigned attorney who was in another court. There had been no request by counsel for an adjournment or consent to one. Since counsel had just been assigned and had no knowledge of the case, defendant was still without counsel within the meaning of the statute, according to the court. As to post-readiness delay, six weeks was reasonable for DA to respond to motions and provide Grand Jury minutes.

People v Harrison, 47 AD3d 541 (January 29, 2008)
Burglary third conviction affirmed. Although unpreserved, the issue of whether a van is a building is resolved against D, as the van at issue was an "inclosed motor truck," and it met the definition of a "building" under Penal Law § 140.00 (2) and § 140.20 .

People v Nunez, 47 AD3d 545 (January 29, 2008)
Order granting 30.30 dismissal affirmed. People’s statement of readiness as to challenged time period was equivocal, and held against them. DA told the court that they may not be ready on the trial date of April 17th because the DA may need to try another case that day, and suggested a date of May 2. The time between April 17 and May 2 goes against the DA.

People v Allen, 47 AD3d 543 (January 29, 2008)
CPL 440.30 (1-a) does not permit a D who has pled guilty to seek DNA testing.

People v Collado, 47 AD3d 547 (January 29, 2008)
Police had probable cause where unidentified complainant pointed out D and his companions as guys who tried to rob him. As police approached, men took “evasive” action and one (not D) pulled out “air gun” which resembled firearm. That provided probable cause to arrest and remove D to station. Although police could not find the unidentified complainant of alleged initial robbery, while at station D was conveniently identified by a witness of a different robbery, which resulted in present conviction. No one is bothered that the original unidentified complainant disappeared. Also, on PSR sentencing issue, resort to court documents (worksheet and commitment) will permit the imposition of a mandatory PRS period, where court failed to mention it during sentence (Okay, in light of the Court of Appeals decision in People v Sparber. __ NY3d __ (4/29/08) we know that this part of the decsion is wrong).

People v Holman, 46 AD3d 518 (January 24, 2008)
Court was within its discretion to permit juror to submit written questions for the witness, some of which it struck as improper, and others of which it permitted the witness to answer. Also, counsel consented to both procedure and specific questions asked, so current complaint regarding those issues was waived.

People v Davis, 47 AD3d 506 (January 22, 2008)
Refusal to charge lesser included robbery charge affirmed. Victim testified D displayed what appeared to be a firearm and there is no reason to selectively discredit this one portion of V’s testimony to charge down to a robbery third. Also, accomplice testified he heard D threaten to use gun.
*DISSENT: Jurors could have rejected accomplice’s testimony given the proof which showed no gun, and his failure to mention his current claim about D’s threat to use gun before.

People v Shemesh, (January 15, 2008)
Lower court correctly dismissed indictment (with leave to re-present) for failure to offer D a reasonable opportunity to testify before the GJ. Notice of D’s desire to testify clearly served, as was notice that he would not be able to testify during Passover dates. Although three dates were discussed for D to testify, DA eventually only offered a date when D was observing Passover. People had argued that (1) there is no valid religious reason he could not testify during Passover as attested to by a Rabbi, and (2) D did other things during that time which showed maybe he was not all that devout. First Dept would not even go there. Statutory right to testify conflicted with right to exercise religion, and D was diligent and persistent in trying to schedule a date that did not conflict.
*DISSENT: takes issue with majority’s conclusion that D did not testify on two days before Passover began due to no fault of his own.

People v Jean-Pierre, 47 AD3d 445 (January 10, 2008)
Lower court order of suppression of evidence reversed (ouch again). Arresting officer erroneously believed that a “03" sticker on D’s New Jersey License plate meant that the registration had expired in 2003. Upon stopping car, officer got a whiff of weed and saw some baggies of the stuff. His belief about the registration was reasonable, and it was a error of fact not law. Therefore he was justified in stopping the car.

People v Thomas, 47 AD3d 415 (January 3, 2008)
Conviction reversed and new trial granted. Retained counsel was properly relieved by court over D’s objection. But, court should have provided D a reasonable opportunity to retain new counsel, instead of assigning counsel chosen by the court. D made clear that if the court was going to relieve his first attorney, he wanted to hire a new one of his own choosing. Reversal would also be required by the trial court’s improvident exercise of discretion in refusing to order a CPL 730 examination as requested by new counsel. It had been over a year since the last one and there were strong indications a new exam was needed.

People v Mobley, 48 AD3d 374 (Feb 28, 2008)
Lower court order of suppression affirmed. Even though there was testimony that area was high crime area known for drugs and prostitution, there was no indication of such with regard to the lawfully parked car containing a female and male, which police approached, for no objective, credible reason, requesting information about the reason for their presence. Even if first inquiry justified, nothing about response served to elevate level of suspicion, there was no reason for second approach. Gun in plain view, seen during second approach, suppressed. Court did not buy DA’s argument that second approach was just a continuation of first approach.

People v Graham, 48 AD3d 265 (Feb 14, 2008)
Two counts reversed because court below erred in denying suppression of statements. D given Miranda by one cop, and 8 hours later he told a different cop he did not want to talk. Without re-administering Miranda, second cop told D there was evidence linking him to crime and D confessed. Questioning should have seized after D said he did not want to talk. Error harmless as to other counts.


FAMILY LAW

Matter of Kalya, 47 AD3d 571 (decided Jan. 31, 2008)
Neglect (mental illness) determination affirmed. Mother’s behavior of poor impulse control and poor insight was found by the majority to constitute judgment so strongly impaired as to expose the child to risk of substantial harm as to sustain a finding of neglect. Mother’s mental health challenges included depression, inability to cope, tearfulness to the point of inability to communicate, and anger flare-ups. From the evidence doctors concluded a concomitant inability to care adequately for the child. These opinions and observations were based upon a one week period.
* DISSENT (2 judges). Of the two doctors who testified, neither had observed mother long enough to make mental illness diagnosis (2 hours by one, and 1 week following trauma of miscarriage by the other.) Evidence did not show anything more than a physically exhausted mother who had just suffered a miscarriage and had who momentarily “lost it”. Inadequate evidence of neglect due to mental illness. Also, there was a good reason for mother to become angry with the doctor - - he lied to her and tricked her into thinking she was being sent to a place for a “rest” due to exhaustion, only to learn she was being sent to hospital where she was held for evaluation. Second doctor diagnoses of depression was not shown to cause risk to child. Even if there was proof of mental illness, causal connection between condition and risk of harm not established as there needs to be a substantial probability of neglect resulting in risk to child.

Matter of Joshua R., 47 AD3d 465 (January 15, 2008)
Family Court ordered modified and finding of abuse and derivative abuse vacated (neglect and derivative neglect affirmed). After child refused to eat, father forced food in his mouth causing him to vomit, and slapped child causing a bloody nose and black eye. Neglect and derivative neglect (as to sister) were affirmed. Court noted that there was evidence that father did not believe his striking child was excessive, and the evidence did not support a finding that father inflicted an injury to child "which cause[d] or create[d] a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ" (Family Ct Act § 1012 [e] [I]).
*DISSENT: Other evidence shows father had uncontrolled anger and which creates a substantial risk of the requisite harm.

Matter of Jeffery C. (January 10, 2008)
Family Court adjudication of JD modified with PINS adjudication instead. Isolated incident was basis for the JD. The JD adjudication was not the least restrictive available alternative to meet needs of child and community.

Matter of Medina Armor S. (January 10, 2008)
Family Court termination of parental rights reversed, where court inappropriately found incarcerated father abandoned child. Father in prison on murder conviction, with earliest release date in 2016, and drug addicted mother’s whereabouts unknown. Agency took children to prison once to visit father 4 years before bringing termination petition. Petition alleged failure to communicate or visit for 6 months prior to time petition brought. Caseworker testified that she did not contact father directly, and that she did not know she could. (Family court schooled her on her obligation to communicate directly with incarcerated parent.) Evidence showed agency made no efforts to assist in communication. Right before petition filed, an inmate advocacy group contacted agency to arrange visit with father. “Although the court found respondent had abandoned the children, what it really did was take the easier route to termination of parental rights by improperly applying the ‘permanently neglected child’ element of ‘insubstantial contacts’ (Social Services Law § 384-b[7]) rather than the ‘abandoned’ child standard (§ 384-b[5])”, noting these subdivisions are designed to accomplish two different goals. No abandonment on these facts. Good decision.

Recent 2nd Department Decisions

From Jim Eckert:

People v Russell , 47 AD3d 732 - Defendant, charged with CPW3, claimed temporary lawful possession. The court ruled that the trial court failed to make clear in the jury instructions that the People had to disprove this claim beyond a reasonable doubt, especially in light of the trial court’s failure to adequately marshal the evidence. Answering a jury question on the issue still failed because “the proper standard regarding the burden of proof was not clearly and unequivocally conveyed.” The court apparently went beyond the CJI as well. If the rule on appeal is that the People’s burden "must be clearly and unequivocally conveyed", it would represent a significant improvement over the typical standard, which is whether the charge, taken as a whole, conveys the right standard. The latter test frequently results in approval of a charge which contains contradictory statements of the law. If the trial court doesn't know the law, the jury is still presumed to divine the proper standard from a confused court if it's in the charge somewhere. You'd think that the law must be "must be clearly and unequivocally conveyed", until now you'd have been wrong. You may still be wrong.

People v Gonzalez , 47 AD3d 831 - Following a robbery, the victim gave a description which was at odds in some ways with the defendant’s characteristics. The defense attempted to introduce expert testimony, which was denied without a Frye hearing. The court, citing People v LeGrand (8 NY3d 449) reversed based on the trial court’s refusal to permit the introduction of expert testimony on the reliability of ID testimony.

People v Romeo , 47 AD3d 954 - D “killed [the victim]” in 1985. He agreed to surrender in 1987, but instead fled to Canada and “killed a New Brunswick constable”. He returned to the US and was arrested a few days later. DNA was taken, implicating D, and he was indicted the same month. The prosecution agreed to permit Canada to try the defendant first, and successfully opposed the defendant’s motion to be arraigned first. Speedy trial concerns were raised at this time, and the County Court judge who denied the defendant’s motion said the People would have to live with the risks they were taking. D was convicted in Canada, and the People made no effort to obtain his return. In 1999, the defendant moved to dismiss on constitutional and statutory speedy trial grounds; it was denied. The People successfully argued that the then-existing extradition treaty would have required that his Canadian sentence be commuted. The treaty was amended in 2003 and extradition was sought. In 2006 D pled to Man1 and 7-21 concurrent. He did not renew his speedy trial claim. The Second Departement ruled that his constitutional speedy trial claim was not barred because he had not abandoned it before it was decided - because it was denied in 1999. On the merits, the court held that, murder is serious, but a twelve year delay is extraordinary. That the People may have mistakenly believed that the defendant could be extradited once he was convicted in Canada “militate[s] in the People’s favor”, but not enough. Unspecified prejudice to the defendant was recited, so I am not sure if it’s the obvious, or something not mentioned. The charge was dismissed.

People v Berry , 2008 WL 803939 - Inferential bolstering lives! The People elicited testimony from a detective that a telephone/address book was recovered from one of two people who fled from the scene, and who the complainant said was not the perpetrator. The detective said he photocopied one page from this person’s phone book, and put out a “wanted card” for the defendant. “The plain implication of the detective’s testimony was that [the person with the phone book], who was not called as a witness at trial, accused the defendant of committing the instant offense (see People v Johnson , 7 AD3d 732 ...)”. The People also said, in opening, that this person knew who did the shooting and identified him to police. The defendant’s objection was poor, but the trial court’s ruling demonstrated that it confronted and resolved the issue. Because this implicated the defendant’s confrontation rights, and it was a single eyewitness case, conviction reversed.

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.).

Unreasonable To Respond To Attack

span style="font-style:italic;">People v Mcclellan 2008 NY Slip Op 02271 (3/14/2008)

In holding that the proof was sufficient for a jury to find justification disproved, the Court held that even if a 17 year old African-American, who was walking with four African-Americans companions in a predominately Caucasian neighborhood, when five Caucasian men yelled racial epithets and initiated a physical confrontation,

actually believed that deadly physical force was necessary," it nevertheless supports a finding that defendant's belief was not reasonable under the circumstances (People v Wesley, 76 NY2d 555, 559; see People v Butera, 23 AD3d 1066, 1068, lv denied 6 NY3d 774, 832).

Failure to Raise Dispositive Statute of Limitations Defense Will Not Always Result in Finding of Ineffective Assistance of Counsel

In People v Wise 2008 NY Slip Op 02264 (3/14/2008), the Fourth Department has held that under the circumstances of the case (in which the People on appeal conceded that a conviction for one of the counts was time barred and the Appellate Division dismissed the count) the failure of counsel to raise a dispositive statute of limitations defense did not deny the defendant his right to effective assistance of counsel.

Defendant further contends that defense counsel should have sought dismissal of the count charging him with endangering the welfare of a child because that count was time-barred, and that as a result he was denied his right to effective assistance of counsel. As the People correctly concede, that count is governed by the two-year statute of limitations (see CPL 30.10 [2] [c]), and it should have been dismissed as time-barred (see People v Rogner, 265 AD2d 688). We therefore modify the judgment accordingly.

We further conclude under the circumstances of this case, however, that defendant was not thereby denied his right to effective assistance of counsel. "[T]he failure to raise a defense as clear-cut and completely dispositive as a statute of limitations . . ., in the absence of a reasonable explanation for it, is hard to reconcile with a defendant's constitutional right to the effective assistance of counsel" (People v Turner, 5 NY3d 476, 481). Nevertheless, we conclude that defense counsel's single omission did not "so seriously compromise[] [the] defendant's right to a fair trial [as to] qualify as ineffective representation" (see People v Hobot, 84 NY2d 1021, 1022; see generally People v Flores, 84 NY2d 184, 187-189). Contrary to defendant's contention, the incidents underlying the count of endangering the welfare of a child, although subject to a Ventimiglia hearing, would nevertheless have been admissible as probative of the sexual gratification element of the sexual abuse charges (see generally People v Ortiz, 16 AD3d 831, 833, lv denied 4 NY3d 889; People v Graves, 8 AD3d 1045, lv denied 3 NY3d 674; People v Evans, 259 AD2d 629, lv denied 93 NY2d 924), and we note that the count at issue is now being dismissed as time-barred.