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     Criminal Law of New York





  • People v. Burgh, 89 A.D. 2nd 672, 453 N.Y.S. 2d 783 (3rd Department)  *Scroll down for case*

    • Appeal from a judgment of the County Court of Broome County (Coutant, J.), rendered January 21, 1981, upon a verdict convicting defendant of the crime of robbery in the first degree. Defendant and his accomplice, Grayson Banks, robbed at knifepoint a Binghamton taxi driver. During the robbery the driver received knife wounds to his face and hand. Banks confessed shortly after being arrested. The police investigation which followed revealed that defendant was the other man involved. Each was accused in a one-count indictment of aiding and abetting the other in committing robbery in the first degree. Before trial, Banks pleaded guilty as charged and received a sentence of 3 to 9 years. Defendant, who elected to be tried, was convicted of the same offense and was sentenced to a term of imprisonment of not less than 6 2/3 years and not greater than 20 years. Defendant contends, among other things, that he was deprived of a fair trial because during jury selection the prosecutor informed the panel that Banks had pleaded guilty and therefore would not be involved in the trial. (Click on above link for more about this case.)

The Application of Criminal Law

  • People v. Carroll, 93 N.Y.2d 564, 715 N.E.2d 500, 693 N.Y.S. 2d 498 (1999)

    • Over the course of several days, three–year–old Shanaya Jones was beaten to death by her father. Defendant, the child's stepmother, witnessed most of the violence, but did not alert the authorities or summon medical assistance until Shanaya was dead. The issue before us is whether the Grand Jury that indicted defendant for Endangering the Welfare of a Child had sufficient evidence that defendant was "legally charged" with the care of Shanaya (Penal Law § 260. We conclude that it did, because the evidence supported an inference that defendant was acting as the functional equivalent of Shanaya's parent at the relevant time.


Void for Vagueness

  • People v. Nelson, 69 N.Y. 2d 302, 506 N.E.2d 907, 514 N.Y.S.2d 197 (1987)
    • In People v Nelson et al., each of the defendants was charged with jostling (Penal Law § 165.25) in Criminal Court informations. Police officers allegedly observed each of them patting down victims' pockets, reaching to purposely touch handbags, putting their hands into other people's pockets or crowding victims or acting as lookouts while their companions took these actions. On defendants' motions, Criminal Court dismissed the informations, holding the jostling statute void for vagueness. The Appellate Term reversed, denied defendants' motions to dismiss and reinstated the informations...(Click on link above for complete case.)

Equal Protection

  • People v. Barnes, 62 N.Y.2d 702, 465 N.E.2d 35, 476 N.Y.S.2d 528 (1984)
    • The defendant, having pleaded guilty to the class B misdemeanor of attempted resisting arrest, was sentenced to 90 days' imprisonment and a penalty assessment of $40. Defendant contends that the penalty assessment imposed under section 60.35 of the Penal Law, and made enforceable under CPL 420.35, is civil in nature and is unconstitutional in that it discriminates against individuals who are convicted of Penal Law offenses in violation of the equal protection clauses of the State and Federal Constitutions...(Click on link above for complete case.)

Ex-Post Facto Laws

  • People v. Weinberg, 83N.Y.2d 262, 631N.E.2d 97, 609 N.Y.S. 2d 155 (1994)
    • In January 1987, defendant was indicted for three misdemeanor counts of failure to file a tax return (Tax Law § 1801) and one class E felony count of repeated failure to file a tax return (Tax Law § 1802), arising from his failure to file New York State personal income tax returns for the years 1983, 1984 and 1985. In August 1987, eight months after he was indicted, defendant did file the delinquent returns. Defendant was ultimately convicted on all counts. Defendant appealed his conviction and the Appellate Division affirmed (190 AD2d 767). A Judge of this Court granted defendant leave to appeal, and we now affirm...(Click on link above for complete case.)

Free Speech

  • People v. Shack, 86 N.Y. 2d 529, 658 N.E.2d 706, 634 N.Y.S.2d 660 (1995)
    • Defendant appeals from an order of the Appellate Term *533 affirming his conviction, upon a jury verdict, of violating Penal Law § 240.30 (2), aggravated harassment in the second degree. The statute provides: "A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he * * * [m]akes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication."

      Defendant contends that the statute violates the United States and New York State Constitutions because it prohibits constitutionally protected speech, and because it violates his constitutional right to due process. Defendant also maintains that the information charging him with commission of the crime lacked sufficient specificity because it failed to set forth the dates and times of his alleged criminal conduct. Finally, defendant complains that he was deprived of a fair trial because the complaining witness was permitted to testify in violation of the psychologist/patient privilege set forth in CPLR 4507. We hold that the statute is not unconstitutional and find no merit in defendant's remaining contentions. Accordingly, the order of the Appellate Term should be affirmed...(Click on link above for complete case.)

Cruel and Unusual Punishment

  • People v. Broadie, 37 N.Y.2d 100, 332 N.E.2d 338, 371 N.Y.S.2d 471 (1975)  *Scroll down for case*
    • Eight defendants, convicted of drug offenses, in separate appeals challenge the constitutionality of statutes classifying the crimes for which they were convicted as class A felonies, the highest rank of crime in this State (Penal Law, § 220.40, 220.39, 220.18). They also challenge the applicable sentencing provisions imposing a mandatory maximum sentence of life imprisonment and minimums from one or six years to eight and one-third years... (Click on link above for complete case.)


The Act or Actus Reus

  • People v. Newton, 72 Misc.2d 646, 340 N.Y.S.2d 77 (1973)
    • Petitioner [defendant] comes before this court to enforce his civil right to liberty. He resorts to the great writ of habeas corpus which has for centuries been the only real and sufficient bastion of personal freedom and dignity. He inquires not into the offense charged to him but into the esteemed right to liberty which is the matrix of our judicial system. The instant writ tests the legality of petitioner's detention, notwithstanding the criminal act he is alleged to have committed.The sole issue to be decided by this court is one of jurisdiction over the person of the petitioner.A hearing was held before this court on January 19, 1973 and January 22, 1973 and the court has examined the minutes of a hearing held in the New York City Criminal Court, Queens County, on December 14, 1972. The following findings of fact and conclusions of law are made in the absence of any testimony offered before the court by any person aboard flight No. 101 from the Bahamas to Luxembourg:

      On December 7, 1972 petitioner boarded Air International Bahamas' flight No. 101 bound from the Bahamas to Luxembourg. While on board, the petitioner had concealed on his person a loaded .38 caliber revolver and a quantity of ammunition. At some time during the flight, the captain became aware of the fact that petitioner might possibly be carrying a firearm. There is some indication that the petitioner, severely handicapped and ambulatory only with the aid of prosthetic devices, caused himself to be unruly...(Click above link for more information about this case).

Mental State or Mens Rea

  • People v. Strong, 45 A.D.2d 18, 356 N.Y.S.2d 200 (4th Department 1974) *Scroll down for case*
    • Defendant appeals from the judgment of Monroe County Court entered upon a verdict finding him guilty of manslaughter in the second degree as charged in a one-count indictment for causing the death of one Kenneth Goins. The sole ground on which defendant rests the appeal is his contention that the trial court erred in refusing to grant his request that the jury be charged that they could find him guilty of criminally negligent homicide (Penal Law, § 125.10) as a lesser included crime under the indictment.

      Defendant, 57 years old, claims to be the leader in the United States of a religious sect known as Sudan Muslims, the central belief and practice of which is that the mind has power over matter, including the body. He had about 70 followers in Rochester, Kenneth Goins being one of them. He asserted that he had the power temporarily to cause one's heart to stop and the blood to cease flowing in such person's veins, and to do other supernatural acts. He claimed that he had done such feats for 40 years without injury to a "follower". To demonstrate the efficacy of his religion and his power, it was defendant's practice to hold meetings and to put a follower through what he called "a submission". There was evidence that during such a submission he had stuck as many as five knives into a follower without injury.

Strict Liability

  • People v. Dozier, 72 A.D.2d 478, 424 N.Y.S.2d 1010 (1st Department 1980) *Scroll down for case*
    • Convicted, upon his plea of guilty, of rape in the third degree, in that being over the age of 21 years, he had sexual intercourse with a female less than 17 years of age (Penal Law, § 130.25, subd 2), defendant challenges New York's statutory rape law as violative of due process and equal protection. Specifically, defendant claims that the statute offends constitutional precepts because it does not permit ignorance, fraud or mistake as to the female's age to be asserted as a defense and, further, that it arbitrarily and capriciously fixes the age at which a female may consent to sexual intercourse at 17 years.

      In dealing with sex offenses, the Penal Law (§ 130.05, subd 3, par [a]) provides that a person is deemed incapable of consent when, inter alia, "he is * * * less than seventeen years old".

      In support of his due process challenge defendant claims that complainant, before engaging in sexual relations with him, showed him an identification card which represented that she was 18 years of age, and that had he known that she was not even 17 he would have refrained from having intercourse with her.

      Before pleading guilty defendant unsuccessfully raised the same issue in a motion to have the statute declared unconstitutional.

      We find that the statute serves a significant State interest in that it protects a certain class of minors from any adverse consequences of sexual intercourse, even if consensual. Following long-settled principles, we also find no constitutional prohibition against imposing criminal liability for conduct in which mens rea is not an element of the offense. 


Parties to Crime or Accessorial Liability

  • People V. Comfort, 113 A.D.2d 420, 496 N.Y.S.2d 857 (4th Department 1985) *Scroll down for case)
    • On the night of December 5, 1980 the defendant Joseph Comfort shot to death undercover New York State Police Investigator Robert Van Hall and grievously wounded his partner, William Gorenflo. This incident was the culmination of events which began on November 14, 1980 with the arrival in Corning, New York, of Jose Otero and Edwardo Blanco from Florida with 28 ounces of cocaine. The drugs were delivered to the defendant Larry Comfort who accepted them on assignment for sale and distribution in the Corning area and for which he agreed to pay $2,000 per ounce when the drugs were sold. Thereafter, Larry attempted to distribute and sell the cocaine. On November 28, 1980, Otero and Blanco  returned to Corning in an effort to secure payment for the drugs and Larry eventually paid them approximately $10,750. Trial testimony reflected that Larry had neither the remaining $46,000 which he owed them nor the bulk of the cocaine and that when Otero and Blanco pressed their demands upon him either to pay for the cocaine or return it to them, he became frightened and confused and expressed fears for his safety and that of his young son. (Click on above link for case)
  • People v. Evans, 58 A.D.2d 919, 396 N.Y.S2d 727 93rd (Department 1977)   *Scroll down for case*
    • Appeal from a judgment of the County Court of Albany County, rendered November 15, 1976, convicting defendant upon her plea of guilty of the crime of rape in the first degree. Defendant pleaded guilty to an accusation of rape in the first degree in satisfaction of an indictment charging her with that offense as well as the crimes of first degree sodomy, unlawful imprisonment and second degree assault. Her contention on appeal that she could not properly be convicted of that crime is wholly without merit. The indictment alleged that she and another had intentionally aided a male codefendant in having sexual intercourse with the female victim by forcible compulsion. Defendant admitted her participation in the incident before her guilty plea was accepted. Essentially, this involvement consisted of beating and holding the victim down while the male codefendant had intercourse with her. That being the case, defendant's liability for the conduct of her associates stands adequately established (Penal Law, § 20.00) and the fact that she is legally incapable of committing such an offense in her individual capacity has no effect on these proceedings...(Click on link above for case)

Vicarious Liability

  • People v. Byrne, 77 N.Y.2d 460, 570 N.E.2d 1066, 568 N.Y.S.2d 717 (1991)
    • Section 65(1) of the Alcoholic Beverage Control Law prohibits the sale of alcoholic beverages to minors, and section 130(3) makes a violation of that prohibition a misdemeanor. It is well established that the crime created by these statutes is one of "strict liability" for which proof of the accused's guilty knowledge or intent is not required (e.g., People v Leonard, 8 NY2d 60; People v Werner, 174 NY 132). The question presented on this appeal is whether these statutes also create a crime of "vicarious liability," permitting conviction of a natural person for the acts of another solely because of the parties' business relationship.

      On March 12, 1983, Thomas Byrne, defendant James Byrne's brother, allegedly sold alcoholic beverages to two individuals who were under the age of nineteen. The alleged sales occurred in a Bronx County tavern known as Manions, which was owned by a corporate entity called Tullow Taverns, Inc. Defendant and his brother Thomas each owned 50% of the shares of this corporation. Additionally, defendant held the title of corporate president, while Thomas was designated secretary-treasurer.

      Defendant and Thomas Byrne were both charged with violating Alcoholic Beverage Control Act 65(1) by "sell[ing] or caus[ing] or permit[ting] to be sold alcoholic beverages, to wit, beer, to [a] person being actually under the age of nineteen years."  (Click on link above for case.)



  • People v Caban, 772 N.Y.S.2d 675 (1st Department 2004)
    • In this prosecution of defendant for conspiring with others to murder a rival drug dealer, there are two primary issues on appeal. The first is whether the prosecution established a prima facie case of conspiracy by evidence independent of the hearsay declarations of two co-conspirators sought to be introduced at trial. The second is whether the trial court's failure to instruct the jury sua sponte that a prosecution witness was an accomplice as a matter of law should be reviewed in the interest of justice, despite defense counsel's explicit request that the witness's accomplice status be submitted to the jury as a factual question...(Click on above link for case)


  • People v Rizzo, 246 N.Y.334, 158 N.E. 888 A.L.R. 711 (1927)
    • The police of the city of New York did excellent work in this case by preventing the commission of a serious crime. It is a great satisfaction to realize that we have such wide-awake guardians of our peace. Whether or not the steps which the defendant had taken up to the time of his arrest amounted to the commission of a crime, as defined by our law, is, however, another matter. He has been convicted of an attempt to commit the crime of robbery in the first degree, and sentenced to state’s prison. There is no doubt that he had the intention to commit robbery, if he got the chance. An examination, however, of the facts is necessary to determine whether his acts were in preparation to commit the crime if the opportunity offered, or constituted a crime in itself, known to our law as an attempt to commit *336 robbery in the first degree. (Click on above link for court case.)
  • People v Arroyo, 93 N.Y.2d 990, 717 N.E.2d 696, 695 N.Y.S.2d 537 (1999)
    • In January 1991, after some discussion and planning, defendant, Jose Sorrentini and Chris Claudio—the driver, the lookout and the shooter, respectively—lured Guy Maresca to a deserted area in the Bronx by ordering pizza from his place of employment. When Maresca drove to the appointed address to make his delivery, Claudio ran toward him and fired a single shot. He missed. Claudio made a second attempt to shoot Maresca, but the gun jammed and Maresca sped away. Based on information provided by Sorrentini, a police informant, all three men were arrested and charged. After trial, defendant was convicted of conspiracy in the second degree, attempted murder in the second degree and criminal possession of a weapon in the second degree. He was sentenced to consecutive, indeterminate prison terms of 8 1/3 to 25 years and 5 to 15 years, respectively, on the attempted murder and conspiracy counts and to a concurrent term of 5 to 15 years on the weapons possession count. (Click on above link for case)


  • People v Lubow, 29 N.Y.2d 58, 272 N.E.2d 331, 323 N.Y.S.2d 829 (1971)
    • The revised Penal Law creates a new kind of offense, simpler in structure than an attempt or a conspiracy, and resting solely on communication without need for any resulting action (art. 100, Criminal Solicitation, part of tit. G, Anticipatory Offenses, L.1965, ch. 1030) Consol.Laws, c. 40. Attempts to commit crimes and conspiracies are continued with some changes as crimes and these, too, are grouped within title G as 'Anticipatory Offenses' (art. 105, Conspiracies; art. 110, Attempts). The basic statutory definition of criminal solicitation is that with intent that another person shall 'engage in conduct constituting a crime' the accused 'solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct'. This basic definitory language is continued through three grades of solicitation, the gravity depending on what crime the conduct sought to be induced would effectuate. (Click on above link for court case)


Self Defense and Other Defenses

  • People v Minaya (Ind. No. 01-01433) (Second Department) (2002-08674) (2004) *Scroll down for case*
    • The question on this appeal is whether a court which mistakenly sentenced a defendant to three years, instead of eight years as agreed at the time of plea, could correct its error a few months later without violating either the statutory prohibition against changing sentences (CPL 430.10) or the defendant's constitutional rights under the double jeopardy clause. The trial court held the error correctable but the Appellate Division reversed on the ground that the correction represented a change in sentence prohibited by the statute. The People appeal.

      In 1978 the defendant was indicted for robbery in the first degree and related offenses for allegedly robbing a gas station with a shotgun. As the result of a plea bargain he agreed to plead guilty to attempted robbery in the first degree in exchange for an eight-year sentence. When the plea was entered on January 12, 1979 the defendant acknowledged that he received no promise other than that  "the sentence will be zero to eight years". The court accepted the plea on that representation. (Click on link above for complete court case).

  • People v Cataldo, 260 A.D.2d 62, 688 N.Y.S.2d 265 (3rd Department 1999)
    • Defendant was indicted on one count of manslaughter in the first degree stemming from the fatal stabbing of Robert Hickey on July 18, 1997 in the Town of Owego, Tioga County. Defendant and Hickey were attending a party at a friend's home when an altercation arose during which Hickey confronted defendant for the purpose of provoking a fight. Hickey, however, was restrained by another friend from engaging in a physical confrontation. Later, outside the residence, defendant was standing next to the driver's seat of his automobile with the door open, arguing with his girlfriend who was adjacent to the passenger-side door. Hickey again approached defendant and indicated that he wanted to fight. Defendant testified that as Hickey was standing in front of him, he squatted down and retrieved a knife from his car. Although none of the witnesses observed a knife displayed at any time, defendant asserted that he showed the knife to Hickey for the purpose of preventing the fight. According to witnesses who testified at trial, a fight ensued after Hickey pushed defendant who reacted by punching Hickey in the face. The altercation, which occurred primarily on the ground, ended when another individual was able to separate the two combatants. Thereafter, defendant left the scene in his automobile and Hickey was taken into the house. As a result of the fight, Hickey sustained a fatal stab wound to the abdomen and the left flank which pierced his spleen and kidney. He also suffered a deep cut on his left hand and a large cut on his forehead. (Click on link above for complete case)

Limitations in Self-Defense and Defense of Others

  • People v Carrera, 282 A.D.2d 614, 725 N.Y.S.2d 344 (2nd Department 2001)
    • Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reversing the conviction of manslaughter in the second degree and vacating the sentence imposed thereon, and a new trial is ordered on that count of the indictment; as so modified, the judgment is affirmed.  During a struggle between the defendant and the deceased, the defendant stabbed the deceased in the chest with a steak knife. At trial, the defendant testified that the deceased swung what he believed to be an ice pick at his head. As they continued to struggle, the defendant stabbed the deceased. The "ice pick," which was actually a screwdriver, fell to the floor. The defendant then picked up the screwdriver and struck the deceased, causing contusions, abrasions, and puncture wounds. It was undisputed that the deceased was armed with the screwdriver before the encounter. None of the eyewitnesses, however, saw the screwdriver in the deceased's hand before he was stabbed. The Assistant Medical Examiner testified that the deceased died from the single knife wound to his chest. The trial court charged the jury on the defense of justification, but the jury found the defendant guilty of manslaughter in the second degree...(Click on above link for court case)
  • People v Hernandez, 98 N.Y.2d 175, 774 N.E.2d 198, 746 N.Y.S.2d 434 (2002)

    • Defendant was convicted of manslaughter and criminal use of a firearm after he shot and killed James Carter inside the Bronx apartment building where defendant resided. At trial, defendant pursued a Penal Law § 35.15 (2) justification defense, asserting that the victim, a guest of another tenant, had attacked him in the lobby and a struggle ensued on a common stairwell which culminated in the shooting. On appeal, defendant contends Supreme Court erred when it refused to instruct the jury that defendant had no duty to retreat from the lobby and stairwell because these areas were part of his dwelling under Penal Law § 35.15 (2) (a) (i). We disagree. (Click on above link for court case)

Justification: Necessity or a Choice of Evils

  • The Queen v Dudley & Stephens, 14 Q.B.D. (Queen’s Bench Division) 273 (1884)
    • A man who, in order to escape death from hunger, kills another for the purpose of eating his flesh, is guilty of murder; although at the time of the act he is in such circumstances that he believes and has reasonable ground for believing that it affords the only chance of preserving his life. At the trial of an indictment for murder it appeared, upon a special verdict, that the prisoners D. and S., seamen, and the deceased, a boy between seventeen and eighteen, were cast away in a storm on the high seas, and compelled to put into an open boat; that the boat was drifting on the ocean, and was probably more than 1000 miles from land; that on the eighteenth day, when they had been seven days without food and five without water, D. proposed to S. that lots should be cast who should be put to death to save the rest, and that they afterwards thought it would be better to kill the boy that their lives should be saved; that on the twentieth day D., with the assent of S., killed the boy, and both D. and S. fed on his flesh for four days; that at the time of the act there was no sail in sight nor any reasonable prospect of relief; that under these circumstances there appeared to the prisoners every probability that unless they then or very soon fed upon the boy, or one of themselves, they would die of starvation...(Click on above link for case)



  • People v Kohl, 72 N.Y.2d 191, 527 N.E.2d 1182, 532 N.Y.S.2d 45 (1988) *Scroll down for case*
    • The decisive issue is whether Penal Law § 40.15, defining New York's affirmative defense of mental disease or defect, violates the State constitutional Due Process Clause because Penal Law § 25.00 (2) places the burden of proof by a preponderance of evidence on defendants for all affirmative defenses. We conclude that there is no State constitutional violation because placing this burden on the defendant does not relieve or transform the People's primary and constant burden of proving, beyond a reasonable doubt, all the elements of the crimes charged, including all components of the applicable  culpable mental state element. Thus, we affirm the Appellate Division order upholding the conviction.

      Defendant rented a house on a dairy farm in which he resided with his girlfriend and their infant son. On May 13, 1985, Peter Schiltz took his two sons, aged 2 and 3, with him to the dairy farm to deliver feed. When the delivery was completed, Schiltz lifted his sons into the front seat of his truck and started to leave. Defendant came out of his house and fired shots from a .12 gauge shotgun into the front seat. The initial shots killed one son and wounded the other and Schiltz. Returning to his house, defendant told his girlfriend that the man outside had sexually assaulted defendant's children. Defendant reloaded the gun and ran out screaming, "I got to get him. He's getting away." Schiltz had staggered to the barn where defendant stalked him, firing two more shots. Schiltz was on his hands and knees pleading for his life when defendant fired two final, fatal shots, saying, "Take that, you son of a bitch." The owner of the farm appeared and yelled, "Why, why did you do this?" Defendant said that Schiltz was going to pay one of his sons to sexually assault defendant's infant son. Before the police arrived, defendant assured his girlfriend, "They can't hurt me. I'm from another planet". . . (Click on link above for case)


  • People v Crumpler, 242 A.D.2d 956, 662 N.Y.S.2d 341 (4th Department)  *Scroll down for case)
    • On April 26, 1995, at about 4:45 A.M., a McDonalds Restaurant at 1420 Lyell Avenue in Rochester was robbed by three men, one of whom brandished a gun. The men forced the assistant manager, at gunpoint, to open the safe. Defendant, the only other employee in the store at the time, initially indicated to the police that he was in the grill area at the time of the robbery and did not see anything. He eventually admitted that he had been approached by three men as he walked to work that morning, one of whom had a gun. The man held the gun to his head and demanded that defendant turn off the alarm and leave the door unlocked when he arrived at work. The man also told defendant that he knew where defendant lived and threatened to "shoot up" defendant's house if defendant did not comply with his demands. Defendant testified that he complied with the demands because he feared for his safety and that of his coworker and family... (Click on above link for case.)


  • People v Brown, 82 N.Y.2d 869, 631 N.E.2d 106, 609 N.Y.S.2d 164 (1993)
    • Defendant was convicted in Syracuse City Court of patronizing a prostitute in the fourth degree (Penal Law § 230.03). County Court, Onondaga County, affirmed the conviction. Defendant's principal argument on appeal to this Court is that it was reversible error for the Trial Judge to deny his request for a jury charge on the affirmative defense of entrapment (Penal Law § 40.05). We affirm, finding no evidentiary basis on this record to warrant the requested instruction.

      A trial court must charge entrapment on a defendant's *871 request where the evidence adduced at trial, when viewed in the light most favorable to the defendant, reasonably and sufficiently supports the defense (see, People v Butts, 72 N.Y.2d 746, 748-750; People v Watts, 57 N.Y.2d 299, 301). Defendant bore the burden of establishing entrapment by a preponderance of the evidence (Penal Law § 25.00 [2]), that is, to demonstrate that: (1) he was actively induced or encouraged to commit the offense by a public official; and (2) such inducement or encouragement created a "substantial risk" that the offense would be committed by defendant who was not otherwise disposed to commit it (Penal Law § 40.05; People v Butts, supra, at 750-751; People v Alwadish, 67 N.Y.2d 973, 974). (Click on above link for case)


  • People v Westergard, 69 N.Y.2d 642, 503 N.E.2d 1018, 511 N.Y.S.2d 587 (1986)
    • Defendant, charged with burglaries of several Poughkeepsie businesses in the early morning of January 24,1983, at trial contended that his chronic alcoholism and drug abuse constituted a disease or serious mental disorder short of insanity that relieved him of liability for those crimes. This defense was supported by his own testimony, as well as that of his brother and a psychologist. Defendant testified that in January 1983 he was an active alcoholic. On the evening in question, he had gone from bar to bar drinking and eating dried mushrooms, then he entered a store and took money from the cash register, kicked a hole in a wall and stole change from the cash register in an adjoining store, and tore the coin box from a cigarette machine. His brother testified that defendant had been drinking the evening of the burglaries, that defendant (then 21) had been drinking heavily since he was 12 or 13 years old, that when he drank he became violent and uncontrollable, and that he also used drugs, often in combination with alcohol. A psychologist testified that alcoholism is a recognized disease. Having twice interviewed defendant in late 1983, he gave his opinion that defendant is an alcoholic, that he behaved typically for an alcoholic the night in question, that he was intoxicated, and that he was incapable of "acting purposefully with regard to a conscious objective" but acted out of rage. Three prosecution witnesses who had seen defendant in the critical hours of January 24, 1983 gave their opinion that defendant was not intoxicated. (Click on above link for case)


Classifying Homicides, and Exceptions to the Requirement of a Mental State

  • People v Harris, 95 N.Y.2d 316, 740 N.E.2d 227, 717 N.Y.S.2d 82 (2000)
    • Defendant was convicted after a jury trial of murder in the second degree (Penal Law § 125.25 [1]). The evidence established that defendant killed his long-time friend, Larry Amorose, with a machete. With the help of his girlfriend, defendant decapitated and dismembered Amorose's body, put the body parts in garbage bags and discarded the bags in the ocean off Coney Island.

      The trial court rejected defendant's request for a charge on extreme emotional disturbance (Penal Law § 125.25 [1] [a]) on the ground that the evidence was insufficient to justify submission of that affirmative defense to the jury. The Appellate Division affirmed the judgment of conviction (266 AD2d 564), and a Judge of this Court granted defendant leave to appeal. We now reverse. (Click on above link for case)

Homicide and Unborn Children

  • People v Joseph, 496 N.Y.S.2d 328, 130 Misc.2d 377 (County Court 1985)
    • Defendant is charged with multiple counts of criminally negligent homicide and vehicular manslaughter, among other charges, for conduct alleged to have caused the death of Donna Nehme, and the subsequent stillbirth of her child. Counts 9, 10 and 11 charge the defendant with these offenses due to the "death" of a victim identified in the indictment as "The Stillborn Nehme." The defendant moves for the dismissal of counts 9, 10 and 11, asserting that the "death" of an unborn child cannot support a prosecution for the offenses charged... (Click on above link for court case)

Aggravating Factors and the Death Penalty

  • People v Cahill, -- N.E.2d --, 2003 WL 22770167 (2003)
    • Appeal, pursuant to NY Constitution, article VI, § 3 (b) and CPL 450.70 (1), from a judgment of the Onondaga County Court (William J. Burke, J.), rendered October 5, 1999. The judgment convicted defendant, upon a jury verdict, of murder in the first degree (two counts), assault in the first degree, and criminal possession of a weapon in the fourth degree (two counts), and sentenced defendant, upon a penalty phase jury determination, to death on each count of murder, 12½ to 25 years' imprisonment for the count of assault, and one year on each count of criminal possession of a weapon, to run concurrently.  evin M. Doyle, Capital Defender, New York City ( Ann M. Parrent, Claudia Van Wyk and Sean J. Bolser of counsel), for appellant. I. Mr. Cahill was denied his right to a fair trial before an impartial jury because inflammatory and prejudicial pretrial publicity saturated the community from which the jury was drawn. 


Simple Assault

  • People v Garcia, 194 A.D.2d 1011, 599 N.Y.S.2d 669 (3rd Department) *Scroll down for case*
    • Defendant was convicted upon a jury verdict of assault in the third degree and criminal possession of a weapon in the third degree stemming from his conduct in the early morning hours of August 26, 1990 in causing lacerations to the throat and arm of Douglas Virgil by striking him with a large broken beer glass. The incident occurred in an apartment at the Olcott Hotel in the City of Oneida, Madison County, and was witnessed by Alan Rossi (the tenant), John Francis and Matthew Francis. The testimony showed that all those present except Matthew Francis had been drinking beer and that while the group was socializing, defendant and Virgil collided and a confrontation between them ensued with punches exchanged until Rossi broke up the fight and defendant left at Rossi's request. Defendant returned within minutes carrying a large beer glass, broke the glass against a door frame and swiped at Virgil with the broken edge of the glass, ultimately cutting Virgil's throat and arm. The two wrestled to the floor and defendant thereafter departed.​ (Click above link for court case.)

Sexual Assault and Rape

  • People v Aronsen, 204 A.D.2d 470, 611 N.T.S.2d 901 (2nd Department 1994) *Scroll down for court case*
    • Under Kings County Indictment 7848/90, the defendant was accused of several crimes, including rape in the first degree and sodomy in the first degree. At trial, his attorney requested an intoxication charge and this request was denied. The defendant was found guilty of only one count, that is, sexual abuse in the first degree (see, Penal Law § 130.65), based on evidence of his having forcibly come into contact with the victim's breast for the purpose of sexual gratification. This appeal followed.​The key question, then, is whether a rational juror might have either ascribed the defendant's lewd act to some purpose other than that of achieving sexual gratification (see, Penal  Law § 130.00) or found that the defendant was so besotted as to have had no purpose at all for his engaging in this act. As unlikely as such conclusions might seem to us as a matter of fact, we cannot say, as a matter of law, that they are conclusions which no rational juror could possibly reach. We are therefore obligated to order a new trial. (Click above link for court case.)


  • People v Tillman, 69 A.D.2d 975, 416 N.Y.S.2d 102 (4th Department) *Scroll down for case*
    • ​Defendant was convicted of two counts of kidnapping (one related to the restraint imposed upon the complainant before her rape and the second to her confinement and transportation in the trunk of her automobile), one count of rape in the first degree and one count of unauthorized use of a motor vehicle. Defendant contends, inter alia, (1) that since complainant's confinement was not for ransom but merely incidental to the unlawful taking and use of the automobile, the facts on which the kidnapping counts were predicated did not rise to the level of "kidnapping" in its commonly accepted sense as construed by the courts, and (2) that the trial court erroneously refused to charge unlawful imprisonment as a lesser included offense of the kidnapping counts. (Click on above link for court case)