TOPICS CONTINUED
TOPIC 10 - CRIMES AGAINST HABITATION: BURGLARY AND ARSON
Burglary
People v Barney, 99 N.Y.2d 367, 786 N.E.2d 31, 756 N.Y.S.2d 132 (2003)
Two questions are central to this appeal. First, was there legally sufficient evidence that the house defendant entered unlawfully was a dwelling within the meaning of Penal Law § 140.25 (2) when its sole occupant had passed away three days prior to the entry? Second, was defendant entitled to an instruction on the lesser included offense of third degree burglary? We conclude that the evidence was legally sufficient, and that defendant was not entitled to the charge down.
On August 21, 1999, the only occupant of the subject premises died in a motorcycle accident. Aware of the death and that decedent kept marijuana in the house, defendant entered the house through an unlocked door and proceeded to search for the drugs. Unable to locate the marijuana, defendant began to gather other property found in the house when the police, summoned by a neighbor, came and arrested him. At the time, the utilities were still connected and the house was furnished. Although the house was owned by decedent's mother, she maintained a separate residence and had no intention of moving in. After her son's death and prior to the burglary she had given a key to her son's friend so that he could take care of the premises... (Click on above link for court case.)
People v Grant, 132 A.D.2d 929, 518 N.Y.S.2d 262 (4th Department 1987) *Scroll down for court case*
Judgment unanimously reversed on the law and new trial granted. Memorandum: Defendant was convicted of burglary in the third degree and grand larceny in the second degree for stealing seven cartons of baseball caps from a trailer atop a flatbed car in the Conrail yard in Niagara Falls. We agree with defendant's contention on appeal that the court erred in denying his request to instruct the jury on trespass as a lesser included offense of burglary in the third degree.
Trespass is a lesser included offense of burglary in the third degree because it is theoretically impossible to commit burglary without concomitantly and by the same conduct committing trespass (Penal Law § 140.05, 140.20 Penal; cf., People v. Summer, 64 A.D.2d 658). Therefore, the court was bound to charge trespass at defendant's request unless there was no reasonable view of the evidence that defendant was guilty of trespass but not of burglary (People v. Martin, 59 N.Y.2d 704, 705). (Click above link for court case)
Arson
People v Fleming, 164 A.D.2d 942, 560 N.Y.S.2d 50 (2nd Department 1990) *Scroll down for court case*
The evidence adduced at the trial establishes that a fire was started in the defendant's mother's apartment by putting a match to combustible liquid poured on the mattress at the foot of the bed. Burned clothing was found on the bed after the fire. The fire caused smoke damage to the ceiling and walls, heat damage to a light fixture in the ceiling, and charring to the mattress and bed frame. The evidence also established that the defendant, who was at the apartment at the time the fire started, admitted to neighbors that, because of a dispute with his mother over money, he "just tried to burn the bitch", that he tied her up and set her on fire, and that he "wanted the bitch to die". The defendant's mother, who was conscious after the fire and who had no burns on her body and no thermal injury to her lungs, died in the hospital 10 hours later. According to the prosecution, she died of smoke inhalation, while, according to the defense, her death was the result of a heart attack. (Click above link for case)
TOPIC 11 - CRIMES AGAINST PROPERTY
Larceny
People v Bastian, 743 N.Y.S.2d 217, 294 A.D.2d 882 (4th Department) *Scroll down for case*
Defendant appeals from a judgment convicting him after a jury trial of scheme to defraud in the first degree (Penal Law § 190.65 [b]) and grand larceny in the fourth degree (§ 155.30 [1]). The evidence at trial established that defendant promised two women, one of whom was an undercover officer, that he would make their driving while intoxicated (DWI) charges disappear in exchange for a fee. Defendant contends that the evidence is legally insufficient to support his conviction of both crimes because the People did not establish fraudulent intent or a false promise. We disagree. An "inference of wrongful intent logically flowed from the proven facts and [a] valid line of reasoning could lead a rational trier of fact, viewing the evidence in the light most favorable to the People, to conclude that the defendant committed the charged crime." (Click on above link for case)
Robbery
People v Coleman, 278 A.D.2d 891, 718 N.Y.S.2d 504 (4th Department) *Scroll down for case)*
Defendant appeals from a judgment convicting him after a nonjury trial of robbery in the third degree (Penal Law § 160.05), attempted petit larceny (Penal Law § 110.00, 155.25), and two counts of petit larceny (Penal Law § 155.25). County Court sentenced defendant as a second felony offender to concurrent terms of imprisonment of 2 to 4 years for the robbery count, one year for each count of petit larceny, and six months for the attempted petit larceny count.
Contrary to defendant's contention, the evidence is legally sufficient to support the robbery conviction ( see, People v Bleakley, 69 N.Y.2d 490, 495; People v. Broadwater, 105 A.D.2d 1065). The testimony of the cashier at the grocery store that defendant struck her, causing her to fall, provided the requisite evidence of force to support the robbery conviction. (Click on above link for case)
Embezzlement
People v Yannett, 49 N.Y.2d 296, 401 N.E.2d 410, 425 N.Y.S.2d 300 (1980) *Scroll down for case*
Defendant appeals from an order of the Appellate Division which affirmed a judgment of Broome County Court convicting him of the crime of larceny in the second degree. The conviction is premised upon the claim that defendant embezzled certain funds that were in his possession but were actually owned by certain residents of a nursing home owned and operated by defendant. The dispositive question on this appeal is whether the funds which defendant was convicted of embezzling were held by him on behalf of the residents, or whether those moneys were in fact owned by defendant. (Click on above link for court case)
Extortion
People v Caban, 258 A.D.2d 87, 696 N.Y.S.2d 1 (1st Department 1999) *Scroll down for case*
In the words of Grover Cleveland, "a public office is a public trust. "This applies not only to elected officials, but to all who work for the people, including the police.
Must such a public servant who commits extortion be charged with that crime under the same section of the Penal Law with which a civilian would be charged? Or may the District Attorney charge an officer with a separate count of extortion requiring abuse of his/her public office, a crime which a civilian could not commit?
The District Attorney may decide to charge a police officer with violation of the law as a civilian or, if the circumstances warrant, in his/her opinion may charge the officer with the same crime based upon an abuse of police power. A court may not interfere with that discretionary power of the District Attorney and dictate what charges should be brought (Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 573). (Click on above link for case)
Fraud and False Pretenses
People v Sala, 95 N.Y.d 254, 739 N.E. 2d 727, 716 N.Y.S2d 361 (2000) *Scroll down for case*
As former principals of First Meridian Planning Corporation, defendants were convicted of various crimes arising out of a scheme to defraud investors. All defendants challenge the legal sufficiency of the evidence as to fraudulent intenta necessary element in all of the crimes charged. Because this contention lacks merit, we affirm the order of the Appellate Division. Another aspect of this appeal requires us to consider our power to address an issue raised by two of the defendants: whether a conviction for grand larceny by false pretenses (Penal Law § 155.05 [2] [a]) may be based merely upon the concealment or *259 omission of material facts. For reasons that follow, we are unable to reach this question. Defendants Roger V. Sala, John Donovan and Roger C. Sala were each indicted on one count of scheme to defraud in the first degree (Penal Law § 190.65 [1]). Roger V. and Donovan were also indicted on 16 counts of grand larceny (Penal Law §§ 155.30, 155.35) and 16 counts of securities fraud (General Business Law § 352-c [6]).[1] Defendants were tried jointly. (Click on above link for case)
TOPIC 12 - CRIMES AGAINST PUBLIC ORDER AND MORALS
New York’s Approach to Public Order and Morals
Twenty-one individuals invested money with defendants and became shareholders in a pool designated 'Seniors'. Defendant Walter Stein believed that he had devised a handicapping system, which, if used as a basis for daily bets on horse races, would procure sure winnings for the participants. Of the persons intrigued by defendants' get rich quick system, some were close relatives, others were clients of defendant Walter Stein's accounting firm, and still others were neighbors or friends...The question presented is whether under that set of facts defendants are merely players, as they claim, or whether their conduct constitutes a violation of section 986 of the Penal Law.
In September 2000, defendant took photographs of her six-year-old daughter (hereinafter the victim) posing in various stages of undress, while her five-year-old son and seven-year-old daughter were present. As relevant here, the photographs depict the victim lying on a bed with her raised buttocks exposed, squatting cross-legged on the floor with her bare buttocks exposed, standing with her shorts pulled down and her genitals exposed, pulling her shirt up with her bare chest exposed, and squatting with her buttocks exposed as an adult's hands spread her buttocks apart. These photographs and their negatives were the basis of a 19-count indictment handed down in March 2001. The indictment charges defendant with five counts of using a child in a sexual performance (see Penal Law § 263.05), five counts of promoting a sexual performance by a child (see Penal Law § 263.15), five counts of possession of a sexual performance by a child (see Penal Law § 263.16), one count of sexual abuse in the first degree (see Penal Law § 130.65) and three counts of endangering the welfare of a child (see Penal Law § 260.10).
Based solely on this exchange, the officer escorted Bright to the Long Island Railroad police office, where he asked Bright to produce identification. When Bright failed to produce any, the officer informed him that he was under arrest for loitering pursuant to Penal Law § 240.35 (7). Bright was read his Miranda warnings and asked to empty his pockets. As Bright removed a piece of paper from his trouser pocket, two credit cards and four other identification cards fell to the floor, none of which belonged to him. Bright then told the officer that he had found the various cards and planned to sell them.
Defendant Bright was charged by indictment with two counts of criminal possession of stolen property in the second degree (Penal Law § 165.45), and one count of criminal possession of stolen property in the third degree (Penal Law § 165.40)
TOPIC 13 - CRIMES AGAINST THE STATE
Airline Bombing
Preparation for Airline Bombing Conspiracy
Discovery of Airline Bombing Plot
Arrests of Shah, Yousef, and Murad
United States v Yusef, 327 F.3d 56 (2003) *Scroll down for entire case*
Defendants-appellants Ramzi Yousef, Eyad Ismoil, and Abdul Hakim Murad appeal from judgments of conviction entered in the United States District Court for the Southern District of New York (Kevin Thomas Duffy, Judge) on April 13, June 2, and June 15, 1998, respectively. Judge Duffy presided over two separate jury trials. In the first trial, Yousef, Murad, and Wali Khan Amin Shah were tried on charges relating to a conspiracy to bomb United States commercial airliners in Southeast Asia. In the second trial, Yousef and Ismoil were tried for their involvement in the February 1993 bombing of the World Trade Center in New York City. Yousef, Ismoil, and Murad now appeal from their convictions, asserting a number of claims. Yousef and Ismoil also appeal from the District Court's denial of several of their post-judgment motions. In reviewing these claims, we view the evidence in the light most favorable to the Government, as required by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). (Click on above link for case)