[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Steward 2025 NY Slip Op 01825 Decided on March 26, 2025 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on March 26, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department BETSY BARROS, J.P. WILLIAM G. FORD LILLIAN WAN LAURENCE L. LOVE, JJ. 2018-03416 (Ind. No. 10492/14) [*1] The People of the State of New York, respondent, v Anthony D. Steward, appellant. Patricia Pazner, New York, NY (Steven C. Kuza of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Joseph M. DiPietro of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (Daniel M. Lewis, J.), rendered January 8, 2018, as amended January 17, 2018, convicting him of criminal possession of a controlled substance in the fourth degree and unlawful possession of marihuana, after a nonjury trial, and imposing sentence. The appeal brings up for review the denial (Barry A. Schwartz, J.), after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence. ORDERED that the appeal from so much of the judgment, as amended, as convicted the defendant of unlawful possession of marihuana is dismissed as academic; and it is further, ORDERED that the judgment, as amended, is reversed insofar as reviewed, on the law, and the matter is remitted to the Supreme Court, Queens County, for a new trial on the count of the indictment charging the defendant with criminal possession of a controlled substance in the fourth degree. The defendant was convicted, after a nonjury trial, of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09[1]) and unlawful possession of marihuana ( id. former § 221.05, repealed by L 2021, ch 92, § 15). The evidence adduced at trial established that, on the evening of July 8, 2014, police officers stopped a vehicle in which the defendant was a passenger for alleged traffic infractions involving tinted windows and a broken rear taillight. A police officer testified that, during the subject stop, he smelled marihuana and saw a bag of marihuana inside the vehicle. Another officer searched the defendant and recovered, among other things, six bags of crack cocaine, a marihuana cigarette, and a bag of marihuana from the defendant's person. The defendant's conviction of unlawful possession of marihuana became a nullity by operation of law, independently of any appeal, and without requiring any action by this Court ( see CPL 160.50[5]; People v Bensabeur , 225 AD3d 891 , 892). Consequently, the appeal from so much of the judgment, as amended, as convicted the defendant of unlawful possession of marihuana must be dismissed as academic ( see People v Bensabeur , 225 AD3d at 892). The defendant's contention that the Supreme Court erred in denying suppression of all physical evidence because the stop of the vehicle was improper is unpreserved for appellate review ( see CPL 470.05[2]; see People v West , 218 AD3d 798 , 799), and in any event, without merit. Although the Court of Appeals recently concluded that testimony that a vehicle's windows were "excessively tinted" was insufficient to establish a basis for a stop based upon a traffic infraction ( People v Nektalov , 42 NY3d 363 , 366 [internal quotation marks omitted]), in this case, a police officer further testified that one of the vehicle's rear taillights was broken with the light from a white bulb emitting light through the crack, indicative of a "defective or inoperable brake light" ( People v John , 119 AD3d 709 , 710), which was a sufficient basis for the stop. Moreover, the court properly concluded that the subsequent search of the defendant's person was supported by probable cause ( see People v Clements , 221 AD3d 1023 , 1025; People v Henderson , 197 AD3d 663 , 664). Viewing the evidence adduced at the trial in the light most favorable to the prosecution ( see People v Contes , 60 NY2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt of criminal possession of a controlled substance in the fourth degree beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15[5]; People v Danielson , 9 NY3d 342 ), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v Mateo , 2 NY3d 383, 410; People v Bleakley , 69 NY2d 490, 494). Upon reviewing the record here, we are satisfied that the verdict of guilt as to that count was not against the weight of the evidence ( see People v Romero , 7 NY3d 633 ). However, the Supreme Court, in rendering its verdict, impermissibly shifted the burden of proof to the defendant. The defendant asserted at trial that he had been framed by the police. In delivering its verdict, the court ruled that "the credible testimony before me does not persuade this Court beyond a reasonable doubt that [the] defendant was in fact framed. And that being so . . . I find [the] defendant guilty." The court's finding "reverses the constitutionally required principles that the defense bears no burden and that it is the prosecution that must introduce evidence sufficient to persuade the fact finder, beyond a reasonable doubt, of the defendant's guilt" ( People v Antommarchi , 80 NY2d 247, 252; see People v David , 41 NY3d 90 , 97). Accordingly, the judgment, as amended, must be reversed insofar as reviewed, and we remit the matter to the Supreme Court, Queens County, for a new trial on the count of the indictment charging the defendant with criminal possession of a controlled substance in the fourth degree. In light of our determination, we need not reach the parties' remaining contentions. BARROS, J.P., FORD, WAN and LOVE, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court

[Assistant]
Defendant's conviction after a non-jury trial is reversed and a new trial
ordered. Defendant contended that he had been framed by the police. In
delivering its verdict, the court ruled that "the credible testimony before
me does not persuade this Court beyond a reasonable doubt that defendant
was in fact framed. And that being so . . . I find defendant guilty.
" The
court's finding "reverses the constitutionally required principles that the
defense bears no burden and that it is the prosecution that must introduce
evidence sufficient to persuade the fact finder, beyond a reasonable doubt,
of the defendant's guilt.
"


[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

[*1] People v Palacios (Eduardo) 2025 NY Slip Op 50344(U) Decided on March 20, 2025 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on March 20, 2025 SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT PRESENT: Tisch, J.P., James, Perez, JJ. &em; The People of the State of New York, Respondent, - against Eduardo Palacios, Defendant-Appellant. Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Mary V. Rosado, J.), rendered April 18, 2016, after a jury trial, convicting him of driving while intoxicated and leaving the scene of an incident without reporting, and imposing sentence. Per Curiam. Judgment of conviction (Mary V. Rosado, J.), rendered April 18, 2016, affirmed. Defendant was convicted, after a jury trial, of driving while intoxicated ( see Vehicle and Traffic Law § 1192 [3]) and leaving the scene of an incident without reporting ( see Vehicle and Traffic Law § 600 [1] [a]). Although not challenged by defendant, we find that the verdict was supported by legally sufficient evidence and was not against the weight of the evidence ( see People v Danielson , 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations. An eyewitness testified that defendant crashed his vehicle into the witness's vehicle, and then fled the scene on foot, while staggering and appearing disoriented. The police officers' testimony demonstrated that when they encountered defendant shortly thereafter, he exhibited classic signs of intoxication, such as watery and bloodshot eyes, an unsteady gait, and a strong odor of alcohol on his breath. Defendant admitted to the officers that he had been drinking and that he felt "twisted"; and they recovered an open bottle of vodka from inside his vehicle. Defendant also refused to take a breath test ( see People v Varriale , 238 AD2d 208 [1997]). A trial court has great latitude in limiting the scope and duration of counsel's closing statements ( see Herring v New York , 422 US 853, 862 [1975]; People v Brown , 136 AD2d 1, 16 [1988], lv denied 72 NY2d 857 [1988] , cert denied 488 US 897 [1988]) and, in this case, the trial court did not improvidently exercise its discretion. During defense counsel's summation, the court inquired "is 10 more minutes sufficient time, or do you need more?" Counsel requested a "little more." Subsequently, the court stated "counsel please start wrapping up" and later stated "Counsel, five minutes." Defense counsel then completed summation. Here, the court's limitation, which was made after first inquiring about how much more time counsel needed to complete summation and then, after warning counsel to "start wrapping [*2] up," was a sound exercise of discretion ( see People v Love , 244 AD2d 431, 431 [1997], lv denied 91 NY2d 876 [1997] ; People v Brown, 136 AD2d at 16-17). People v Gibian (76 AD3d 583 , 588 [2010], lv denied 15 NY3d 920 [2010]), heavily relied upon by defendant, which involved a "sudden midclosing imposition of a time limit" on summation, without any advance warning of any limit, is therefore distinguishable. In any event, even assuming error, it was harmless beyond a reasonable doubt in view of the overwhelming evidence of defendant's guilt ( People v Crimmins , 36 NY2d 230, 241-242 [1975]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur I concur Decision Date: March 20, 2025

[Assistant]
During defense counsel's summation, the court inquired
"is 10 more minutes sufficient time, or do you need more?" Counsel
requested a "little more.
" The court later asked the attorney to "please start
wrapping up" and subsequently gave him a 5-minute caution, the attorney
then finished his summation. This was a sound exercise of judicial
discretion and clearly distinguishable from People v Gibian, 76 AD3d
583, lv denied 15 NY3d 920 (2010),
"which involved a 'sudden mid-
closing imposition of a time limit' on summation, without any advance
warning of any limit.
"


[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Hinchey 2025 NY Slip Op 01262 Decided on March 6, 2025 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered:March 6, 2025 113535 [*1] The People of the State of New York, Respondent, v Jason Hinchey, Appellant. Calendar Date:January 9, 2025 Before:Garry, P.J., Egan Jr., Aarons, Pritzker and Lynch, JJ. Jane M. Bloom, Monticello, for appellant. Emmanuel C. Nneji, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent. Garry, P.J. Appeal from a judgment of the County Court of Ulster County (James Farrell, J.), rendered March 11, 2022, upon a verdict convicting defendant of the crimes of aggravated family offense (three counts) and bail jumping in the second degree. Following a domestic dispute on March 28, 2019, defendant was charged by indictment with three counts of aggravated family offense for the specified offenses of criminal obstruction of breathing or blood circulation (count 1), assault in the third degree (count 2) and unlawful imprisonment in the second degree (count 3). He later failed to appear in court and was charged, in a separate indictment, with bail jumping in the second degree. The People's motion to consolidate the indictments for trial was granted, and, following a jury trial, defendant was convicted as charged. County Court sentenced him to a prison term of 1⅓ to 4 years for each conviction and directed that the sentences on counts 2 and 3 run concurrently to each other but consecutively to count 1 and that his sentence for bail jumping run consecutively to counts 1 through 3, resulting in an aggregate prison term of 4 to 12 years. [FN1] Defendant appeals. We initially reject the argument that County Court abused its discretion in granting the People's motion to consolidate the indictments for trial. Joinder of multiple offenses is authorized when, "[e]ven though based upon different criminal transactions, such offenses, or the criminal transactions underlying them, are of such nature that either proof of the first offense would be material and admissible as evidence in chief upon a trial of the second, or proof of the second would be material and admissible as evidence in chief upon a trial of the first" (CPL 200.20 [2] [b]; see CPL 200.20 [4]; People v Lane , 56 NY2d 1, 7 [1982]). Here, proof of the aggravated family offenses would have been relevant and admissible to establish defendant's motive in a trial on the later bail jumping charge, and proof of defendant's bail jumping would have been relevant and admissible as evidence of his consciousness of guilt in a trial on the aggravated family offenses ( see People v Contreras , 191 AD2d 235, 236 [1st Dept 1993], lv denied 82 NY2d 716 [1993], cert denied 511 US 1040 [1993]; cf. People v Watkins , 180 AD3d 1222, 1234 [3d Dept 2020], lv denied 35 NY3d 1030 [2020]; People v Torra , 309 AD2d 1074, 1075 [3d Dept 2003], lv denied 1 NY3d 581 [2003]; see generally People v Doe , 148 Misc 2d 120, 121-124 [Sup Ct, NY County 1990]). We share County Court's view that defendant failed to make any persuasive argument of undue prejudice arising from consolidation ( see People v Torra , 309 AD2d at 1075), particularly when considering that defendant ultimately elected to assert defenses regarding his motive and intent ( see Penal Law §§ 25.00, 35.15; 215.59). We also discern no issue with respect to County Court's handling of the prior bad act evidence — specifically, evidence of three prior incidents of physical violence and [*2] /or verbal threats by defendant toward the victim from within the year preceding the subject March 28, 2019 incident, as well as a March 13, 2019 conviction for his false imprisonment of her as part of one of those incidents. This prior behavior provided relevant background as to the dynamic between defendant and the victim and was directly relevant to defendant's motive and intent, again notably in the face of his justification defense as to counts 2 and 3 ( see People v Dorm , 12 NY3d 16 , 19 [2009]; People v Pitt , 170 AD3d 1282 , 1284 [3d Dept 2019], lv denied 33 NY3d 1072 [2019]; People v Knox , 167 AD3d 1324 , 1325-1326 [3d Dept 2018], lv denied 33 NY3d 950 [2019]; see generally People v Molineux , 168 NY 264, 293 [1901]). [FN2] We further agree with the court that the probative value of the evidence outweighed any unfair prejudice to defendant, notwithstanding the similarity between the prior bad acts and the charged conduct, and any such prejudice was minimized by timely and appropriate limiting instructions ( see People v Dorm , 12 NY3d at 19; People v Cole , 215 AD3d 1064 , 1065-1066 [3d Dept 2023], lv denied 40 NY3d 927 [2023]; People v LaDuke , 204 AD3d 1083 , 1088 [3d Dept 2022], lv denied 38 NY3d 1072 [2022]; compare People v Elmy , 117 AD3d 1183 , 1186-1187 [3d Dept 2014]; People v Westerling , 48 AD3d 965 , 968 [3d Dept 2008]). The court's Sandoval ruling, concerning the same evidence, was also a provident exercise of discretion given defendant's demonstrated determination to further his self-interest in derogation of the interests of others and the attendant possibility that he would choose to act similarly on a witness stand ( see People v Sandoval , 34 NY2d 371, 377 [1974]; see also People v Hayes , 97 NY2d 203, 205-206, 208 [2002]). Defendant lastly argues that County Court was required to run his sentences on counts 1 through 3 concurrently. We disagree. Although the imposition of concurrent or consecutive sentences is a matter generally entrusted to the discretion of the court ( see Penal Law § 70.25), Penal Law § 70.25 (2) does mandate that concurrent sentences be imposed "(1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other" ( People v Laureano , 87 NY2d 640, 643 [1996]; accord People v Brahney , 29 NY3d 10 , 14 [2017]; People v Couser , 28 NY3d 368 , 375 [2016]). "[T]o determine whether consecutive sentences are permitted, a court must first look to the statutory definitions of the crimes at issue to discern whether the actus reus elements overlap" ( People v Rodriguez , 25 NY3d 238 , 244 [2015] [internal quotation marks and citation omitted]; see People v Brahney , 29 NY3d at 14; People v Ramirez , 89 NY2d 444, 451 [1996]). In other words, "the court must determine whether the actus reus element is, by definition, the same for both offenses (under the first prong of the statute), or if the actus reus for one offense is, by definition, a material element of the second offense [*3] (under the second prong)" ( People v Laureano , 87 NY2d at 643 [emphasis omitted]; see People v Wright , 19 NY3d 359 , 363-364 [2012]; People v Day , 73 NY2d 208, 211 [1989]). If it is neither, then the People have satisfied their burden to demonstrate the legality of consecutive sentencing ( see People v Brahney , 29 NY3d at 14-15; People v Laureano , 87 NY2d at 643; People v Day , 73 NY2d at 211). The specified offenses underlying the aggravated family offense counts are criminal obstruction of breathing or blood circulation, assault in the third degree and false imprisonment in the second degree ( see generally Penal Law § 240.75 [1]; CPL 530.11 [1] [e]). We compare the first two in evaluating County Court's consecutive sentencing decision. As charged here, the actus reus — or "[a]ct," meaning "bodily movement" (Penal Law § 15.00 [1]; see People v McKnight , 16 NY3d 43 , 48 [2010]) — that constitutes criminal obstruction of breathing or blood circulation is applying pressure to the throat or neck of another ( see Penal Law § 121.11 [a]). The actus reus required for the manner of assault in the third degree charged here is conduct causing physical injury to another ( see Penal Law § 120.00 [1]), "[p]hysical injury" being defined as either "impairment of physical condition or substantial pain" (Penal Law § 10.00 [9]). Although the Penal Law requires "no particular degree" of pain or impairment to satisfy the element of physical injury ( People v McDowell , 28 NY2d 373, 375 [1971]), objectively, the application of pressure contemplated by Penal Law § 121.11 cannot satisfy it ( see People v Chiddick , 8 NY3d 445 , 447 [2007]; People v Lewis , 294 AD2d 847, 847 [4th Dept 2002]); indeed, the obstruction of breathing offense was created to provide redress for the suffering endured by victims of domestic violence whose batterers employed such methods of control but caused no demonstrable pain, physical trauma or injury ( see People v Figueroa , 40 Misc 3d 1010, 1012-1018 [City Ct, City of Rye 2013]; compare Penal Law §§ 121.12 [requiring that a person commit the crime of criminal obstruction of breathing or blood circulation and thereby cause "stupor, loss of consciousness for any period of time, or any other physical injury or impairment"], 121.13 [requiring that a person commit the crime of criminal obstruction of breathing or blood circulation and thereby cause "serious physical injury"]). The statutory overlap addressed by Penal Law § 70.25 (2) is therefore not present here ( see People v McGovern , 42 NY3d 532 , 536-537 [2024]; compare People v Brahney , 29 NY3d at 16; People v Sturkey , 77 NY2d 979, 980 [1991]), and the imposition of consecutive sentences was thus left to the discretion of County Court ( see People v Day , 73 NY2d at 212). [FN3] To the extent that the court's exercise of that discretion is challenged, we find no abuse thereof under these facts, where defendant repeatedly punched the victim in her head before placing his hand around her throat and covering her face [*4] with a pillow ( see generally People v Ramirez, 89 NY2d at 450). Egan Jr., Aarons, Pritzker and Lynch, JJ., concur. ORDERED that the judgment is affirmed. Footnotes Footnote 1: To the extent that the Criminal Disposition Report in the record reflects otherwise, we rely on the unambiguous sentencing transcript. Footnote 2: As defendant acknowledges, in the absence of a stipulation, his March 13, 2019 conviction was also admissible to satisfy an essential element of the aggravated family offense counts ( see CPL 200.63). Footnote 3: In light of our conclusion that there is no overlap under either prong of Penal Law § 70.25 (2), we need not address defendant's argument as to whether his offenses in this single criminal transaction should be deemed separate and distinct acts for restrictive sentencing purposes ( see generally People v Brahney , 29 NY3d at 14-15).

[Assistant]
In his
opening, defense counsel told the jury that the police investigation was
inadequate and told the jury that the defendant was married and had a
"strong relationship" with his wife that was focused on family.
" It was
appropriate for the prosecutor to elicit information from the investigator about the defendant's marriage since it was a fair response to defense
counsel's trial strategy and attacks on the credibility and motives of the
prosecution's witnesses.


[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Anderson 2025 NY Slip Op 01101 Decided on February 26, 2025 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on February 26, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department FRANCESCA E. CONNOLLY, J.P. ROBERT J. MILLER LOURDES M. VENTURA PHILLIP HOM, JJ. 2023-03666 (Ind. No. 72234/21) [*1] The People of the State of New York, respondent, v Tyler Anderson, appellant. Andrea S. Ferrante, Staten Island, NY, for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Ruth E. Ross, and Jeffrey Eng of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (Raymond L. Rodriguez, J.), rendered March 15, 2023, convicting him of criminal possession of a weapon in the second degree, criminal possession of a controlled substance in the seventh degree, and reckless driving, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed. Contrary to the defendant's contention, the Supreme Court did not err in permitting the admission into evidence of certain surveillance videos, ballistics evidence, and two 911 calls. This evidence was "relevant to the very same crime for which the defendant [was] on trial" ( People v Duchi , 176 AD3d 968 , 968 [internal quotation marks omitted]; see People v Frumusa , 29 NY3d 364 , 370) and provided a complete "narrative of the events charged in the indictment" as well as "necessary background information" ( People v Jones , 206 AD3d 671 , 673 [internal quotation marks omitted]; see People v Bonich , 208 AD3d 679 , 680; People v Martinez , 201 AD3d 658 , 659). Moreover, any prejudice to the defendant was minimized by the court's limiting instructions ( see People v Blackwell , 219 AD3d 619 , 621; People v Taylor , 210 AD3d 807 , 808; People v Sterling , 162 AD3d 914 , 914). The defendant's contention that he was deprived of his right to a fair trial due to improper remarks made by the prosecutor during summation is without merit. The challenged remarks were fair response to arguments made by defense counsel in summation ( see People v Bethea , 159 AD3d 710 , 712; People v Nanand , 137 AD3d 945 , 947; People v Roscher , 114 AD3d 812 , 813). The defendant's contention that the Supreme Court violated his Sixth Amendment right of confrontation by limiting defense counsel's cross-examination of a certain witness is without merit. Although a criminal defendant is guaranteed the right to confront adverse witnesses through cross-examination ( see US Const 6th Amend; NY Const, art I, § 6), "these rights do not guarantee unfettered cross-examination" ( People v Delgado , 221 AD3d 909 , 911; see People v Agosto , 203 AD3d 841 , 842) and do not give criminal defendants "carte blanche to circumvent the rules of evidence" ( People v Hayes , 17 NY3d 46 , 53 [internal quotation marks omitted]). "The trial court [*2] has broad discretion to limit the scope of cross-examination when the questions are irrelevant or only marginally relevant, concern collateral issues, or pose a danger of misleading the jury" ( People v Wingate , 184 AD3d 738 , 739 [internal quotation marks omitted]; see People v Jones , 184 AD3d 751 , 753; People v Herrera-Machuca , 181 AD3d 901 , 902). Here, the court did not limit defense counsel's line of questioning, and instead, defense counsel voluntarily withdrew the questions. In any event, the limiting of the defense counsel's questioning of a certain witness would have been provident to avoid inquiry into a speculative and remote matter ( see People v Jones , 184 AD3d at 753). The sentence imposed was not excessive ( see People v Suitte , 90 AD2d 80). CONNOLLY, J.P., MILLER, VENTURA and HOM, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court

[Assistant]
A
defendant is not guaranteed unfettered cross-examination by the 6th
Amendment.
"The trial court has broad discretion to limit the scope of
cross-examination when the questions are irrelevant or only marginally
relevant, concern collateral issues, or pose a danger of misleading the jury"
(People v Wingate, 184 AD3d 738).


[User]
Summarize the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Kerr 2025 NY Slip Op 00236 [234 AD3d 794] January 15, 2025 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 12, 2025 [*1] The People of the State of New York, Respondent, v Kaeshawn Kerr, Appellant. Rosenberg Law Firm, Brooklyn, NY (Jonathan Rosenberg of counsel), for appellant. David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss of counsel), for respondent. Appeal by the defendant from a judgment of the County Court, Orange County (Hyun Chin Kim, J.), rendered March 3, 2022, convicting him of criminal possession of a weapon in the second degree and criminal possession of a forged instrument in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is reversed, on the law, and a new trial is ordered. In fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15 [5]; People v Danielson , 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v Mateo , 2 NY3d 383, 410 [2004]; People v Bleakley , 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v Romero , 7 NY3d 633 [2006]). Nevertheless, the defendant is entitled to a new trial because the County Court improperly conducted the trial in the defendant's absence. "Before proceeding in [a] defendant's absence, the court [must make an] inquiry and recite[ ] on the record the facts and reasons it relied upon in determining that [the] defendant's absence was deliberate" ( People v Brooks , 75 NY2d 898, 899 [1990]; see People v Amato , 172 AD2d 545, 545 [1991]). Here, the court failed to provide an adequate statement of reasons or bases for its determination that the defendant's absence from the trial was deliberate. Although the court stated that it was basing its determination on the defendant's "history" and "conduct within the last few days," it failed to detail the history and conduct upon which its determination was based ( see People v Johnson , 154 AD3d 777 , 778-780 [2017]; People v Callahan , 134 AD3d 1432 , 1433 [2015]). Accordingly, we reverse the judgment and order a new trial. Since there must be a new trial, we note that, although the issue is unpreserved for appellate review ( see CPL 470.05 [2]), the defendant correctly contends that the County Court should have instructed the jury on the home or place of business exception with regard to the count of criminal possession of a weapon in the second degree ( see People v Reid , 212 AD3d 845 , 847-848 [2023]; People v Martin , 36 AD3d 717 , 718 [2007]). [*2] The defendant's remaining contention need not be reached in light of our determination. Chambers, J.P., Christopher, Love and Hom, JJ., concur.

[Assistant]
New trial
ordered because the trial was improperly conducted without the
defendant's presence.
"Here, the court failed to provide an adequate
statement of reasons or bases for its determination that the defendant's
absence f rom the trial was deliberate. Although the court stated that it was
basing its determination on the defendant's 'history' and 'conduct within the
last few days,
' it failed to detail the history and conduct upon which its
determination was based (see People v Johnson, 154 AD3d 777; People v
Callahan, 134 AD3d 1432).
"


[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Guzman 2025 NY Slip Op 01321 Decided on March 11, 2025 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: March 11, 2025 Before: Moulton, J.P., Kennedy, Gesmer, Mendez, Rodriguez, JJ. Ind No. 1306/21|1306/21|Appeal No. 3875|Case No. 2022-04641| [*1] The People of the State of New York, Respondent, v Alexander Guzman, Defendant-Appellant. Jenay Nurse Guilford, Center for Appellate Litigation, New York (Leanna J. Duncan of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (David M. Cohn of counsel), for respondent. Judgment, Supreme Court, Bronx County (Steven Hornstein, J.), rendered October 17, 2022, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him to a five-year term of probation, unanimously affirmed. Defendant's valid waiver of his right to appeal forecloses both his suppression claim ( see People v Thomas , 34 NY3d 545 , 565 [2019], cert denied 589 US __, 140 S Ct 2634 [2020]; People v Guerrero , 200 AD3d 432 [1st Dept 2021], lv denied 38 NY3d 950 [2020]) and his claim pursuant to New York State Rifle & Pistol Assn. v Bruen , 597 US 1 [2022])( see People v Johnson , 225 AD3d 453 [1st Dept 2024], lv granted 42 NY3d 939 [2024]). As an alternative holding, we find that both arguments lack merit. The officer's search of defendant's fanny pack was supported by reasonable suspicion where defendant fled from police who stopped him based on the violation of not wearing a helmet while riding on an ATV (all-terrain vehicle), defendant's fanny pack appeared to be weighed down by a heavy object or objects, defendant reached toward the bag as he fled, and he resisted being handcuffed when the officers caught up to him ( see People v Chestnut , 51 NY2d 14, 23 [1980], cert denied 449 US 1018 [1980]; People v Watkins , 226 AD2d 173,174 [1st Dept 1996], lv denied 88 NY2d 996 [1996]). With regard to defendant's Second Amendment claim based on Bruen , we find that defendant lacked standing to challenge New York's gun licensing scheme because he did not apply for a gun license ( see Johnson , 225 AD3d at 455; United States v Decastro , 682 F3d 160, 164 [2d Cir 2012], cert denied 568 US 1092 [2013]) and that he has failed to establish that his conviction is unconstitutional under Bruen ( see People v Cherif , 220 AD3d 543 [1st Dept 2023], lv denied 40 NY3d 1079 [2023]; People v Adames , 216 AD3d 519 , 520 [1st Dept 2023], lv denied 40 NY3d 949 [2023]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: March 11, 2025

[Assistant]
Valid
waiver of appeal forecloses appellate consideration of his claim that his
conviction cannot stand in light of o New York State Rifle & Pistol Assn. v
Bruen, 597 US 1 (2022). In any event,
"defendant lacked standing to
challenge New York's gun licensing scheme because he did not apply for a
gun license [citations omitted], and he has failed to establish that his
conviction is unconstitutional under Bruen (see People v Cherif, 220
AD3d 543 [1st Dept 2023], lv denied 40 NY3d 1079 [2023]; People v
Adames, 216 AD3d 519, 520 [1st Dept 2023], lv denied 40 NY3d 949
[2023]).
"


[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Gomez 2025 NY Slip Op 01875 Decided on March 27, 2025 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: March 27, 2025 Before: Kern, J.P., Friedman, Kapnick, Mendez, Higgitt, JJ. Ind No. 5328/14|Appeal No. 3996-3996A-3996B|Case No. 2017-3037 2019-04865 2023-05306| [*1] The People of the State of New York, Respondent, v Heriberto Gomez, Defendant-Appellant. Jenay Nurse Guilford, Center for Appellate Litigation, New York (Frances Weil of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Anna Notchick of counsel), for respondent. Judgment, Supreme Court, New York County (Roger S. Hayes, J.), rendered April 7, 2017, as amended April 21, 2017, convicting defendant, after a jury trial, of seven counts of burglary in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent prison terms of 16 years to life, unanimously affirmed. Order, same court and Justice, entered on or about April 10, 2019, which denied defendant's CPL 440.20 motion to set aside the sentence, unanimously affirmed. Order, same court (Ruth Pickholz, J.), entered on or about June 2, 2023, which denied defendant's second CPL 440.20 motion to set aside the sentence, unanimously affirmed. Defendant was not denied the right to be present for a material stage of his trial when counsel and the court had a preliminary, informal conference addressing potential jury charges ( see People v Collins , 99 NY2d 14, 19 [2002]; People v Davis , 172 AD2d 273, 273 [1st Dept 1991], lv denied 78 NY2d 921 [1991]). The informal conference addressed a purely legal matter, namely whether there was a reasonable view of the evidence presented thus far supporting an intoxication instruction ( see Collins at 19). In any event, the court made no determinations at that time, and shortly after the informal conference, it summarized the discussions for defendant, at which time defendant was offered an opportunity to speak with counsel and could have provided input if warranted ( see People v Johnson , 27 AD3d 238 , 238 [1st Dept 2006], lv denied 7 NY3d 790 [2006]). The informal conference was merely preliminary to a subsequent proceeding in court which was held in defendant's presence, and defendant had an opportunity to provide meaningful input at that subsequent time as well ( see People v Torres , 61 AD3d 489 , 490 [1st Dept 2009], lv denied 12 NY3d 921 [2009]). The court properly denied defendant's request to submit burglary in the third degree as a lesser included offense, since there was no reasonable view of the evidence that would support a finding that defendant committed only the lesser offense but not the greater ( see generally People v Glover , 57 NY2d 61, 63 [1982]). More specifically, defendant failed to present any reasonable view of the evidence that these buildings' common areas, which included the building lobbies, basements and a courtyard, were inaccessible to the residents of the buildings so as to render this a burglary of a building but not a "dwelling" ( see People v Joseph , 28 NY3d 1003 , 1006 [2016]; People v Carlucci , 196 AD3d 418 , 419 [1st Dept 2021], lv denied 37 NY3d 1026 [2021]). Defendant's argument that the court should have issued an expanded charge concerning the meaning of the term "dwelling" is unpreserved, and we decline to consider it in the interest of justice. As an alternative holding, we find that the court properly declined to issue the expanded charge, as there was no evidence reasonably supporting it ( see generally People v J.L., 36 NY3d 112 , 119 [2020]; People v Jones [*2] , 73 NY2d 902, 903 [1989]). We have considered and rejected defendant's constitutional challenges to his sentence and his claim that his sentence is irrational ( see People v Cortes , 193 AD3d 659 , 660 [1st Dept 2021], lv denied 37 NY3d 964 [2021]; People v Corey , 190 AD3d 620 , 621 [1st Dept 2021], lv denied 37 NY3d 964 [2021]; People v Johnson , 38 AD3d 1057 , 1059 [3d Dept 2007]). We do not reach defendant's arguments concerning whether the United States Supreme Court's holding in Erlinger v United States (602 US 821 [2024]) renders unconstitutional the sentencing procedures used to determine that he was a persistent violent felony offender. Defendant did not contest the relevant periods of incarceration as a threshold matter ( see People v Hernandez , __ NY3d __, 2025 NY Slip Op 00904 [2025]); and, defendant waived the issue and relinquished the argument that the People had not established the dates of incarceration ( see People v Stanton , 234 AD3d 602 [1st Dept 2025]). We also note that even if defendant had established a constitutional violation premised on Apprendi v New Jersey (530 US 466 [2000]), such violation would be subject to harmless error review ( see People v Kozlowski , 11 NY3d 223 , 250 [2008], cert denied 556 US 1282 [2009]). We find that any alleged error in this case would be harmless.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: March 27, 2025

[Assistant]
"Defendant was not denied the right to be present for a material stage of
his trial when counsel and the court had [an in-chambers] preliminary,
informal conference addressing potential jury charges,
" a purely legal
matter that was not decided until the subsequent in-court proceeding in
defendant's presence.


[User]
Summarize the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Wells 2025 NY Slip Op 00056 [234 AD3d 447] January 7, 2025 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 12, 2025 [*1] The People of the State of New York, Respondent, v Carl D. Wells, Appellant. Caprice R. Jenerson, Office of the Appellate Defender, New York (Ronald Zapata of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Julia Gorski of counsel), for respondent. Judgment, Supreme Court, New York County (Gregory Carro, J., motion to consolidate; Jill Konviser, J., 2016 pro se inquiry; Daniel Conviser, J., 2019 proceedings, trial, and sentence), rendered February 26, 2019, convicting defendant, after a jury trial, of four counts of robbery in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 20 years to life, unanimously affirmed. The court did not deprive defendant of his right to represent himself. Defendant never made an unequivocal request to do so, as the context reveals that he did not want to proceed pro se for all purposes ( see e.g. People v Ramos , 35 AD3d 247 [1st Dept 2006], lv denied 8 NY3d 924 [2007]). Rather than demonstrating a "definitive commitment to self-representation" ( People v LaValle , 3 NY3d 88 , 106 [2004]), the court's extensive inquiry revealed that defendant wanted a co-counsel, and that his intention was to avoid trial altogether by "litigat[ing the case] to a dead end." Further, the court did not deny his request outright. Instead, the court deferred defendant's request ( see People v Little , 151 AD3d 531 , 532 [1st Dept 2017], lv denied 30 NY3d 951 [2017]). To the extent that he made an unequivocal request to proceed pro se, he abandoned his application ( see People v Hirschfeld , 282 AD2d 337, 339 [1st Dept 2001], lv denied 96 NY2d 919 [2001], cert denied 534 US 1082 [2002]; compare People v Trammell , 183 AD3d 155 , 161-162 [1st Dept 2020], lv denied 35 NY3d 1071 [2020]). Defendant did not preserve his claim that the consolidation of the indictments or the court's instructions denied him a fair trial ( see People v Kello , 96 NY2d 740, 743-744 [2001]), or his claims that the court's instructions were inadequate or that the consolidation order limited the People's theory of the case. We decline to review his claims in the interest of justice. As an alternative holding, we reject them on the merits ( see People v Scott , 276 AD2d 380 [1st Dept 2000], lv denied 96 NY2d 738 [2001]). In any event, any error in denying severance was harmless in light of the overwhelming evidence of defendant's guilt, which included defendant's confession as to each robbery ( see People v Crimmins , 36 NY2d 230 [1975]). Defendant has not preserved his claim that the court's modification of its Sandoval ruling denied him a fair trial ( see People v Grant , 7 NY3d 421 , 424 [2006]). He also waived his claim by repeatedly stating that he wanted to tell the jury about the facts underlying his claims and admitting that he had intentionally opened the door ( see People v Jones , 256 AD2d 30, 31 [1st Dept 1998], lv denied 93 NY2d 900 [1999]). We decline to review his claim in the interest of justice. As an alternative holding, we reject it on the merits. When a defendant takes advantage of a Sandoval ruling to testify to facts that are "in conflict with the precluded evidence," the defense thereby "opens the door" on the issue, and is [*2] "properly subject to impeachment by the prosecution's use of the otherwise precluded evidence" ( People v Fardan , 82 NY2d 638, 646 [1993]; see People v Leach , 125 AD3d 568 , 569 [1st Dept 2015], lv denied 25 NY3d 1074 [2015], cert denied 577 US 1033 [2015]). Here, defendant used the opportunity of his counsel's general question to create the misleading impression that he was innocent of any wrongdoing and had been victimized by the criminal justice system, and the unsolicited nature of the response made clear that he did so intentionally. When asked by his counsel whether he had a gun in December 2006, he did not just answer "no," but portrayed himself, at length, as a person who did not like guns and had never possessed a gun. Thus, the court providently exercised its discretion in determining that defendant had opened the door and allowed the People to ask defendant the precluded evidence of the facts underlying his 1992 robbery conviction, which led to his parole in 2004 and his incarceration in New York in 2005, and involved the display of what appeared to be a firearm. Defendant has not preserved his claim that the court improperly failed to provide a limiting instruction at the time that evidence was admitted, and the court's final instruction advised the jury of the proper use of such evidence. Defendant's challenges to the prosecutor's summation are unpreserved, and we decline to review his unpreserved claims in the interest of justice. As an alternative holding, we find no basis for reversal ( see People v Overlee , 236 AD2d 133, 143-144 [1st Dept 1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro , 184 AD2d 114, 118-119 [1st Dept 1992], lv denied 81 NY2d 884 [1993]). Under New York law, "[t]rial courts must retain appropriate discretion to control their courtrooms and trial proceedings," which necessarily includes "decisions pertaining to courtroom security" ( People v Gamble , 18 NY3d 386 , 396-397 [2012]). Here, the court providently exercised its discretion when it situated a court officer behind defendant, a court officer by the door, and a court officer in the corner of the courtroom while defendant was on the stand. Further, as requested by defense counsel, the court instructed the jury that it was "standard procedure" to place a court officer behind a defendant while he testifies, and that the jurors should not "assign any significance" to it. A court officer's presence behind defendant for that limited time would not "telegraph[ ] to the jury that defendant was a dangerous individual" ( see id. at 397). The People were not required to call every analyst involved in the DNA testing in this case. A defendant's right to confrontation is not violated simply because an expert DNA analyst refers to data gathered by nontestifying technicians ( see People v Brown , 13 NY3d 332 , 340 [2009]). Here, the analyst testified about her review of the data and her independent conclusions based thereon. There was no Confrontation Clause violation because [*3] the expert analyst's testimony demonstrated her own "independent analysis" of the data to make a comparison, and the analysis was not merely "a conduit for the conclusions of others" ( People v John , 27 NY3d 294 , 315 [2016]; see People v Jordan , 40 NY3d 396 , 402 [2023]). We find unavailing defendant's contention that, in sentencing him as a mandatory persistent violent felony offender, the court erred in accepting his 1990 and 1992 convictions without affording him an adjournment to obtain certain transcripts and a hearing to determine whether the conviction was unconstitutional. A defendant who challenges the constitutionality of his prior conviction bears the burden to overcome "the presumptions of the validity and regularity of the previous felony conviction[ ] . . . by substantial evidence to the contrary" ( People v Harris , 61 NY2d 9, 15-16 [1983]; People v Diggins , 45 AD3d 266 , 267-268 [1st Dept 2007], affd 11 NY3d 518 [2008]). Defendant has not satisfied his burden of overcoming the presumptive constitutionality of his 1990 plea, and we note that we previously rejected defendant's claim that his 1992 conviction was unconstitutional ( see People v Wells , 221 AD2d 281 [1st Dept 1995], lv denied 87 NY2d 978 [1996]). We perceive no basis for reducing the sentence. We have considered defendant's pro se claims and find them unavailing. Concur—Singh, J.P., Kapnick, Scarpulla, Pitt-Burke, O'Neill Levy, JJ.

[Assistant]
No Confrontation Clause violation because the DNA analyst's testimony
demonstrated her own "independent analysis" of the data to make a
comparison, and the analysis was not merely "a conduit for the
conclusions of others.
"


[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Williams 2025 NY Slip Op 00901 Decided on February 18, 2025 Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on February 18, 2025 No. 10 [*1] The People & c., Respondent, v Raymond Williams, Appellant. Ayushe Misra, for appellant. Anna Notchick, for respondent. MEMORANDUM: The Appellate Division order should be affirmed. Defendant contends that the evidence was legally insufficient to support his conviction of burglary in the third degree (Penal Law § 140.20). We reject that contention. "A verdict is legally sufficient when, viewing the facts in a light most favorable to the People, 'there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt' " ( People v Danielson , 9 NY3d 342 , 349 [2007], quoting People v Acosta , 80 NY2d 665, 672 [1993]). "A sufficiency inquiry requires a court to marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained its burden of proof" ( id. ). Here, defendant was charged with burglary in the third degree based on his trespass on the premises of a CVS store with the intent to steal Red Bull energy drinks. A person is guilty of burglary in the third degree when such person "knowingly enters or remains unlawfully in a building with intent to commit a crime therein" (Penal Law § 140.20). With respect to the knowledge element, a rational jury could have found that defendant knew his entry into the store was unlawful based on the trespass notice that defendant signed, barring him from entering any CVS location, as well as the testimony of the CVS employee who explained the trespass notice to defendant ( see People v [*2] Magnuson , 177 AD3d 1089 , 1091 [3d Dept 2019]; People v Pearson , 163 AD3d 446 , 447 [1st Dept 2018]; People v Polite , 302 AD2d 227, 227 [1st Dept 2003]). With respect to the intent element, a rational jury could have found that defendant entered the CVS with the intent to commit a crime therein. Surveillance footage depicted defendant engaging in behavior outside and inside the store that a jury could have rationally viewed as furtive. In addition, the store manager testified that, when she told defendant to stop and give her the Red Bull, defendant became upset, "slammed" the items down, and left without protest. The jury also could have reasonably concluded that defendant's statements to the police during an interview, including that he "f—d up," he "did it," and "all [he] took was a [R]ed [B]ull," constituted an admission of his intent to steal even if—as defendant contends—some of those statements could also be interpreted as referencing a separate incident. [FN1] Contrary to defendant's suggestion, the availability of innocent explanations for his conduct did not preclude the jury from rationally finding that the People proved the elements of burglary in the third degree beyond a reasonable doubt ( see People v Reed , 22 NY3d 530 , 535 [2014]; People v Grassi , 92 NY2d 695, 699 [1999]). At most, defendant identifies competing inferences to be drawn from the evidence, which a rational jury could have rejected ( see People v McDade , 14 NY3d 760 , 761 [2010]; People v Barnes , 50 NY2d 375, 381 [1980]). WILSON , Chief Judge (dissenting): Two cans of Red Bull cost about $6. Seven years of incarceration costs anywhere between $800,000 and $4 million, depending on the location within New York State [FN2] . For attempting to take two cans of Red Bull from a CVS, Raymond Williams was convicted of third-degree burglary, a felony, and sentenced to three and a half to seven years in prison. Mr. Williams was a perpetual petty shoplifter with substance abuse and mental health problems, so perhaps this result makes sense to someone. It does not to me. Mr. Williams's story is not uncommon. For much of his life, he has struggled with homelessness and drug addiction. Both factors disproportionately increase the risk of being caught up in the criminal justice system and sentenced to spend time in prison. Mr. Williams had previously been found guilty of many minor shoplifting offenses, including from other CVS stores. His problems were addressed by sentences of incarceration and probation, not treatment. Mr. Williams's prosecution occurred in 2017. His appeal comes to us 8 years later, and the People's brief in our Court explains that what happened to Mr. Williams back then is not what would happen now: "For retail-theft cases where a defendant does not present a serious public safety risk, the Office now typically pursues multiple alternatives to incarceration. Defendants charged with a retail-theft felony are frequently diverted to the problem-solving courts under CPL Article 216 or similar provisions, where, in place of incarceration, they can receive programming to address underlying problems of substance abuse, mental health, and more. Defendants charged with a retail-theft misdemeanor are also routinely directed to an array of behavioral health court parts and programs, including the Midtown Community Justice Center, Manhattan Justice Opportunities, and others." Putting both psychiatric and fiscal wisdom aside, although it was within the discretion of prosecutors to charge Mr. Williams with felony burglary instead of, for example, petty larceny or trespass, the trial evidence was legally insufficient to convict him of burglary. No evidence in the case could have led a jury to conclude beyond a reasonable doubt that Mr. Williams intended to steal the two Red Bulls. I would therefore reverse his conviction. I. In reviewing the legal sufficiency of evidence supporting a conviction, we consider the evidence in the light most favorable to the People ( People v Acosta , 80 NY2d 665, 672 [1993]). The bulk of the evidence is the video captured on store cameras, which is unambiguous. On the morning of January 19, 2017, Raymond Williams entered the CVS store at 300 Park Avenue South in Manhattan. Several store cameras captured his movements and actions within the store. He can be seen walking past the store at first, then turning back and entering the store. He was carrying a bag. Once inside, Mr. Williams turned right and walked down the second aisle from the front of the store, glanced over his shoulder, then turned again and proceeded down the aisle with the beverage coolers. He opened one of the coolers, reached in, and removed two cans. Holding one can in each hand, he walked down the aisle toward the front of the store. He did not exit the store with them, but instead walked past the exit toward the self-checkout area. He never put, or attempted to put, the cans into his bag or pockets. A CVS employee recognized him as someone subject to a trespass notice (a document he signed several months earlier at a different CVS store, which barred him from entering any CVS stores because of prior thefts) and directed the head cashier to alert the store manager. The manager confronted Mr. Williams near the self-checkout and asked him to leave ("She tells him stop. Give the items. You don't belong here"). Mr. Williams handed over the cans and left. The manager returned the cans to the cooler. The CVS employee who recognized Mr. Williams testified that she recognized Mr. Williams as someone subject to a trespass notice, so she told the cashier to page for the store manager. The cashier paged over the loudspeaker ("Security to the front, please"). The employee testified that Mr. Williams "got upset" and "slammed" the Red Bulls down after the manager confronted him. The jury found Mr. Williams guilty of third-degree burglary, and the court sentenced him, as a second violent felony offender, to the maximum term of three-and-a-half to seven years. II. "A person is guilty of burglary in the third degree when he [or she] knowingly enters or remains unlawfully in a building with intent to commit a crime therein" (Penal Law § 140.20). "A person 'enters or remains unlawfully' in or upon premises when he [or she] is not licensed or privileged to do so" (Penal Law § 140.00[5]). "A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct" (Penal Law § 15.05[1]). Viewed in the light most favorable to the People, the trial evidence was insufficient to allow a jury to conclude beyond a reasonable doubt that Mr. Williams intended to steal when he entered the CVS at 300 Park Avenue South. The People argue that the jury could have rationally inferred Mr. Williams' intent to steal two Red Bulls from three actions: First, he paused before entering the store, moved on, then entered a few seconds later; second, he looked over his shoulder at the end of an aisle; and third, after being told to leave, he "slammed" the Red Bulls down. None of those actions tends to show an intent to steal. The first two are everyday occurrences. Likely everyone reading this has bypassed a store and then turned around thinking the store might have something the person wants to buy. People walking into stores, particularly unfamiliar stores, look around all the time. Finally, slamming down the Red Bulls and leaving the store after being told "Stop. Give the items. You don't belong here" does not say anything about what he intended to do before being stopped. Mr. Williams's conduct cannot rationally be linked to guilt. A legal sufficiency analysis requires that we view the evidence "in the light most favorable to the People." "[S]urmise or conjecture" cannot suffice ( see e.g. People v Castillo , 47 NY2d 270, 277 [1979] ["(T)he foundation for the findings must be facts and inferences that are so reasonable that they cannot be confused with mere conjecture or suspicion"]; People v. Scharf , 217 NY 204 [1916] ["It is not enough to create a conjecture or suspicion, nor should the jury be permitted to guess at the truth . . . A mere surmise or conjecture does not raise a conflict of proof or a question of fact"]). [FN3] The majority states that the surveillance footage depicted Mr. Williams "engag[ed] in behavior outside and inside the store that a jury could have rationally viewed as furtive" (majority op at 2). The majority does not specify what was conceivably "furtive" about Mr. Williams's behavior. The standard for legal sufficiency is whether an inference is rational and makes the relevant legal question at least a bit more likely than not. If the evidence showed that Mr. Williams, immediately before entering the CVS, hopped on one foot through a chalk hopscotch grid a child had drawn in front of the store, we would not conclude that was evidence of an intent to steal, any more than bypassing a store and turning back to enter it would (indeed, the first is more unusual than the second, but neither bears on intent to steal). One can argue anything, including (as the People did) that Mr. Williams's glancing over his shoulder or pausing before entering the store proved his guilt. But that conduct could not reasonably support a finding of guilt. The majority also implies, as the People did, that Mr. Williams's intent can be inferred from his inaction: Mr. Williams did not attempt to pay for the Red Bulls when confronted by the store manager. Again, Mr. Williams, who had previously signed a trespass notice saying that he could not enter any CVS, was instructed that he did not belong in the store and to give the drinks back. Nothing about that, taken in the light most favorable to the People, could lead a jury to find beyond a reasonable doubt that Mr. Williams intended to steal the Red Bulls. Finally, with nothing in Mr. Williams's conduct to support any inference of intent, the majority relies on statements he made to police, a month later, that he "f—d up," he "did it," and "all [he] took was a [R]ed [B]ull." The detective's interrogation of Mr. Williams a month after the incident does not line up at all with the unambiguous video evidence or testimony of the store employees. The majority selectively excerpts those statements out of a portion of the interrogation during which Mr. Williams admits to drinking a Red Bull " in the store ." The full statement reads as follows: "I f—d up you know what I'm saying? I did it. I did it. I'm not going to say I didn't do it—I did it. did it, it's bringing back memories. I was high running around crazy doing drugs and I was running, I was thirsty. I did have the Red Bull, the other Red Bull, I drunk it, I'm not going to lie. I had one Red Bull—I drank it in the store—then the lady told me put it back. I said hey—I told her I was thirsty and that's all I took out was a Red Bull, that's it. This is real different now. That's what going to hurt me." It is crystal clear from the surveillance video that Mr. Williams did not drink a Red Bull in the store, and the People do not claim that he did. His admission was also contradicted by the CVS employee's testimony that she took two unopened Red Bulls from him and returned them to inventory. No rational trier of fact could conclude that those statements related to the events at 300 Park Avenue South on January 19, for which he was tried. The absence of confession to the charged crime is entirely a consequence of the way the detective conducted the questioning and Mr. Williams's confused state. At the beginning of the interview, the detective explained to Mr. Williams that he was accused of two different trespassing violations at two different CVS stores in Manhattan on January 19th. She then gave Mr. Williams a description of his conduct that is contrary to the surveillance video, and never once asked a clear question about the charged event. Mr. Williams repeatedly expressed confusion about the time and location of the incidents they were discussing. When the detective showed him the trespass notice and asked if it had been given to him, Mr. Williams responded, "That same day." The detective corrected him and stated he received the notice in September 2016. Williams then asked, "This CVS? Which CVS is this? Is this the same CVS?". The jury was only aware of a single incident, and was led to believe that the entire conversation between Mr. Williams and the detective involved a single incident at a single CVS store. It did not. Perhaps Mr. Williams was confessing to the commission of a different crime, in a different location, at a different time. But we do not allow a jury to impute intent to commit a crime from commission of other crimes. Even when read out of context, as the majority does, Mr. Williams's statements do not establish his intent to steal two Red Bulls when he entered the store, as required for burglary ( see People v Gaines 74 NY2d 358, 546 [1989] ["(I)n order to be guilty of burglary for unlawful entry, a defendant must have had the intent to commit crime at time of entry"]). The statements would at most support a conviction for petty larceny, which does not require that Mr. Williams had the intent to steal when he entered the store. Additionally, CPL 60.50 provides that "A person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed" (CPL 60.50; see People v Lipsky , 57 NY2d 560, 571 [1982]; see also CPL 70.10[1] ["evidence is not legally sufficient when corroboration required by law is absent"]). Neither the store video nor the testimony constitutes any proof that the offense of third-degree burglary was committed, so his conviction for burglary should be reversed. III. Imprisoning someone for attempting to walk off with two cans of Red Bull—even a recidivist Red Bull shoplifter—for three and a half to seven years is very hard to justify to the public. Belatedly, one of the jurors in Mr. Williams case recognized that, and also explained that the jury convicted Mr. Williams based not on the evidence of his conduct that day, but on the trespass notice from a prior incident, thus underscoring the point that the evidence offered as proof of Mr. Williams's intent to steal was insufficient to persuade the jury. At trial, the court instructed the jury that the trespass notice could not be used to show that Mr. Williams intended to steal or had a propensity to steal, but could be used by the jury solely to establish that Mr. Williams's entry to the CVS was unlawful, which is a necessary element of burglary. One of the jurors wrote the following to the court after conviction but before sentencing: "If you recall, you came and briefly spoke with the jury after the case—you said that Mr. Williams had something around 60-70 prior convictions, presumably as a means of reassuring us of our verdict. Unfortunately, this did not provide me any such solace. What I saw was a man with a history of poverty and drug use, characterized as a criminal. I believe that you decide your sentences based on fair justice and the well-being of the people of New York, but I must plead that you offer Mr. Williams your sympathy regarding his sentence. I know that he could be sentenced up to 7 years for the crime of burglary, especially given his criminal record, but this case was only a burglary in the very loosest interpretation of the law. 7 years for this crime, given the facts of the case, is a ridiculously harsh sentence. I ask that you consider Mr. Williams as a well intentioned man, who does not deserve to be imprisoned for this mistake. You said yourself that Mr. Williams's prior transgressions should not be counted against him, and I ask that you employ that same logic here. Please, Judge Fitzgerald, please choose a sentence for Mr. Williams that matches the severity of this crime. No one was hurt, the Red Bulls were put back on the shelves, and the defendant clearly lacked knowledge of his trespass order. I'm not sure what the minimum sentence is for this case, but I implore you to choose that minimum, or as close to it as you can. In the deliberation room, I argued adamantly for Mr. Williams's innocence. It seemed that despite having signed the trespass notice, Mr. Williams did not seem to have recollection of the trespass order, and thus could reasonably have been entering the CVS with the intention of purchasing Red Bull. Furthermore, his alleged confession included a statement that he drank a Red Bull "in the store" which did not seem to happen on the video, showing a lack of clarity regarding the events of the case. Ultimately, I was convinced by the other jurors that the trespass notice was damning evidence for conviction. Unfortunately, on further reflection, I now have tremendous doubt as to that decision. I could write great lengths on the facts of the case which explain my doubt, but I recognize that it's too late. I feel deep remorse, which is why I felt the need to write to you regarding the sentence." Although our caselaw is replete with decisions saying that we assume that juries follow the instructions of the court as to limitations on the way evidence can be used ( see e.g. People v Morris , 21 NY3d 588 , 598 [2013]), we are merely hopeful that the instructions are followed, not at all confident that they have been. Here, as the juror's note makes clear, it was not the video, not the testimony of the manager, and not Mr. Williams's statements on which the jury relied, but, instead, the trespass notice. Perhaps, as appellate judges, we have no choice but to assume the court's instructions are followed, but as I was once told, if you put a child in a room and say not to think about pink elephants, that's exactly what the child will think of. [FN4] A 2020 survey of more than 1000 Americans, conducted by the Associated Press-NORC Center for Public Affairs Research, showed that more than two-thirds of those surveyed believed the U.S. criminal justice system (including the police, prosecutors, defense counsel, courts and prisons) either needed reforms or a complete overhaul [FN5] . More than four times as many thought a complete overhaul was required than those who thought no changes were needed. Those findings are in line with many other studies conducted over the past decade [FN6] . A majority of Americans also support treating addiction as a health problem rather than a criminal problem, and support treatment over incarceration for people with drug addiction and mental illness. [FN7] Mr. Williams's case illustrates so many of the reasons for that lack of trust and confidence. Persistent recidivist shoplifting is a significant problem. It is constantly frustrating for shoppers, who have to wait to have displays unlocked, and for retailers, who lose countless items to theft. But charging the attempted theft of two Red Bulls as felony burglary reveals a different persistent problem: the prosecutorial overcharging of petty offenses [FN8] . As explained by the current Manhattan District Attorney's office in its brief in this appeal, treating petty offenders with mental health and/or substance abuse problems as dangerous criminals is unhelpful, is a huge waste of taxpayer dollars that could be better spent on addressing those problems instead of incarceration, and is not now the paradigm used by that office. Mr. Williams has struggled with substance abuse his entire life. He started abusing alcohol as a teenager, and since then, has spent most of his money toward feeding his drug and alcohol addiction. For at least ten years prior to the instant offense, he was homeless and living without food stamps. He also suffered from diabetes, which, combined with his homelessness and drug use, meant that he was often sick from low blood sugar levels. During that period, Mr. Williams developed a lengthy criminal history of non-violent misdemeanor petty larceny, including 29 theft convictions, "all with similar facts" to the instant offense. Some of those convictions led to stints in prison, which was the only aid he received for his problems. If nothing else, his shoplifting recidivism showed that the current system is broken—it offered him no mental health, substance abuse or supportive housing that might have put him on a different path. Instead, for moving two Red Bulls from the cooler to the checkout area, the court sentenced Mr. Williams to the maximum term allowable by law for third-degree felony burglary. In doing so, the sentencing court emphasized that the maximum term of three and a half to seven years was necessary "to keep him away from other people's property for as long as reasonable" and "the only fair sentence for the community". The community, though, paid more than a million dollars to incarcerate Mr. Williams. The severity of that sentence in relation to the offense also erodes public confidence in the criminal justice system, which is one of the reasons the Unified Court System, together with the Executive and Legislative branches, has been working to expand the availability of treatment courts and diversion programs. IV. Punishing Mr. Williams for offenses growing out of his addiction and poverty is neither necessary nor fair—not just unnecessary and unfair to Mr. Williams, but to the community at large. People living with mental illness or addiction in New York are much more likely to encounter the criminal justice system—even though community-based treatment is cheaper and more effective than services in prison [FN9] . Unhoused people are also much [*3] more likely—up to 11 times more likely—to be arrested than those who are housed. [FN10] But incarceration does nothing to address their health and housing needs. Misdemeanor convictions for offenses such as petty larceny reduce earning potential and deepen inequality [FN11] . The resources we use to incarcerate those populations could be better spent on housing, job training and educational support. "Let's just be honest: there's nothing compassionate about letting people suffer without treatment on the streets." [FN12] Some of the problems of housing scarcity and inequality are external, but there are many things courts, and others within the criminal justice system, can do. Our courts can ensure that individuals are not convicted on artificially heightened charges and can sentence defendants to mental health services instead of prison. District attorneys can follow New York County's example by prioritizing treatment rather than prison for those charged with low-level offenses. Finally, as the New York City Bar has set forth in a recent report, the Legislature can narrow the actions that should be punished through the criminal system and take steps to decriminalize minor crimes, change sentencing structures and reduce sentences overall [FN13] . We can build a better system that focuses on treatment and rehabilitation, not reflexive incarceration, so people like Mr. Williams can receive the resources they need to have the chance to build productive lives in the community, rather than be excluded from it. Order affirmed, in a memorandum. Judges Rivera, Singas, Cannataro, Troutman and Genovesi concur. Chief Judge Wilson dissents in an opinion, in which Judge Halligan concurs. Judge Garcia took no part. Decided February 18, 2025 Footnotes Footnote 1: Insofar as defendant and the dissent assert that defendant's confession was not sufficiently corroborated ( see CPL 60.50) and therefore could not be used to establish defendant's guilt, defendant failed to preserve any such argument. In any event, the People introduced "additional proof that the offense charged ha[d] been committed" ( id. ). Footnote 2: Jullian Harris-Calvin et al., The Cost of Incarceration in New York State , Vera Institute of Justice (Oct. 2022); New York City Comptroller's Office Budget Bureau, NYC Department of Correction FYs 2011-21 Operating Expenditures, Jail Population, Cost Per Incarcerated Person, Staffing Ratios, Performance Measure Outcomes, and Overtime (Dec. 2021). Footnote 3: "[E]vidence is relevant 'if it tends to prove the existence or non-existence of a material fact, i.e., a fact directly at issue in the case' ( People v Cerda , 40 NY3d 369 , 376 [2023] [quoting People v Primo , 96 NY2d 351, 355 (2001)]). Evidence is something that makes a factual proposition more likely true than false, and information that does neither is not evidence. Put differently, a piece of evidence that does not make a material fact more likely to be true is not evidence at all ( cf. McCormick on Evidence § 185 [8th ed Jan. 2020 update] ["(T)o think about whether an item of evidence has probative value . . . one can simply ask, 'Does learning of this evidence make it either more or less likely that the disputed fact is true?'"]). Footnote 4: See generally Krulewitch v United States , 336 US 440 (1949) (Jackson, J. concurring) ("The naive assumption that prejudicial effects can be overcome by instructions to the jury . . . all practicing lawyers know to be unmitigated fiction"); Paul S. Milich, The Degrading Character Rule in American Criminal Trials , 47 Ga L Rev 775, 780 (2013) ("Once the jury learns that the defendant has a criminal past, the odds of conviction skyrocket"). Footnote 5: Associated Press-NORC Center for Public Affairs Research, June 2020 AP-NORC Center Poll , https://apnorc.org/projects/widespread-desire-for-policing-and-criminal-justice-reform/ [accessed Jan 23, 2025]. Footnote 6: See e.g. ACLU, Smart Justice Campaign Polling on Americans' Attitudes on Criminal Justice (Nov. 16, 2017) (Of the over 1,000 surveyed, "91% say that the criminal justice has problems that need fixing"), https://www.aclu.org/press-releases/91-percent-americans-support-criminal-justice-reform-aclu-polling-finds [accessed Jan 23, 2025]. Footnote 7: See id. ("71 percent of Americans agree that incarceration is often counterproductive to public safety, since 'sending someone to prison for a long sentence increases the chances that he or she will commit another crime when they get out because prison doesn't do a good job of rehabilitating problems like drug addiction and mental illness'"); see also Legal Action Center, Public Opinion Supports Bold Action to Reform Nation's Drug and Criminal Justice Policies ("Most Americans (67%) believe we should treat addiction to opioids and other drugs more as a health problem rather than a criminal problem, including 78% of Democrats and 55% of Republicans"), https://www.lac.org/assets/files/LAC-polling-sheet-combo-no-crops.pdf [accessed Jan 31, 2025]. Footnote 8: See generally Megan T. Stevenson & Sandra G. Mayson, The Scale of Misdemeanor Justice , 98 BU L Rev 731 (2018) (estimating that over 13 million misdemeanor cases are filed in the United States each year); Brennan Center, Hidden Toll: New York City's Misdemeanor System (finding that petit larceny and property-related charges increased in 2021 and 2022 after charges fell during the pandemic); People v Britt , 34 NY3d 607 , 630 (Wilson, J., dissenting) (citing scholarly literature in support of decriminalizing minor offenses and redirecting resources away from their prosecution). Footnote 9: Erica Bryant, The United States Criminalizes People Who Need Health Care and Housing , Vera Institute (Oct. 17, 2023) ("New York City spends an appalling $556,539 annually to jail people in hellish conditions on Rikers Island. In contrast, it costs about $42,000 to house someone in a supportive housing program that provides individualized services for people with behavioral health needs that can lead to incarceration"), https://www.vera.org/news/the-united-states-criminalizes-people-who-need-health-care-and-housing (citing New York City Comptroller's Office Budget Bureau, supra at note 1). Footnote 10: National Law Center on Homelessness and Poverty (NLCHP), Housing Not Handcuffs (Dec. 2019), 50. Footnote 11: Brennan Center, Poverty and Mass Incarceration in New York: An Agenda for Change (Feb. 23, 2021), https://www.brennancenter.org/our-work/policy-solutions/poverty-and-mass-incarceration-new-york-agenda-change. Footnote 12: Governor Kathy Hochul, 2025 State of the State Address, Jan. 14, 2025. Footnote 13: Report by the Mass Incarceration Task Force, Corrections and Community Reentry Committee, and Criminal Justice Operations Committee, A Pathway Out of Mass Incarceration and Towards a New Criminal Justice System: Recommendations for the New York State Legislature, Assn. of Bar of City of New York (May 2021), https://www.nycbar.org/wp-content/uploads/2023/05/2020883-APathwayOutOfMassIncarceration.pdf.

[Assistant]
Court of
Appeals affirmed burglary third conviction largely based on defendant
violating a trespass notice. As to proving an intent to steal (defendant was
confronted before leaving store), Court observed "availability of innocent
explanations for his conduct did not preclude the jury from rationally
finding that the People proved the elements of burglary in the third degree
beyond a reasonable doubt" (citations omitted).


[User]
Summarize the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Correll 2025 NY Slip Op 00796 Decided on February 11, 2025 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: February 11, 2025 Before: Singh, J.P., González, Scarpulla, Rosado, O'Neill Levy, JJ. Ind. No. 821/08 Appeal No. 3652 Case No. 2012-02134 [*1] The People of the State of New York, Respondent, v Kyle Correll, Defendant-Appellant. Caprice R. Jenerson, Office of The Appellate Defender, New York (Rosemary Herbert of counsel), and Holwell Shuster & Goldberg LLP, New York (Adan Martinez of counsel), for appellant. for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Stephen J. Kress of counsel), for respondent. Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered June 7, 2012, as amended June 19, 2013, convicting defendant, following a jury trial, of enterprise corruption, two counts of grand larceny in the fourth degree, and scheme to defraud in the first degree, and sentencing him to concurrent prison terms of 1 1/3 to 4 years on each count, unanimously modified, on the law, to the extent of vacating defendant's conviction under count 2 of the indictment as well as criminal acts 1 and 6 in the criminal acts alleged against defendant in the enterprise corruption count, and otherwise affirmed. This Court agrees with the parties that defendant's conviction under count 2 of the indictment charging grand larceny in the fourth degree, as well as criminal acts 1 and 6 alleged in count 1 of the indictment charging enterprise corruption, must be reversed because the trial evidence, which included evidence suggesting that defendant threatened physical damage to construction sites through vandalism, varied from the theory of the indictment ( see People v Grega , 72 NY2d 489, 496-498 [1988]). Each of defendant's remaining arguments allege insufficiency in some aspect of the proof. However, we find that the evidence was legally sufficient to satisfy the requirement that a defendant "instill fear" as required to prove grand larceny in the fourth degree by extortion ( People v Jennings , 140 AD3d 526 , 527 [1st Dept. 2016], lv denied 28 NY3d 931 [2016] ; see People v Forde , 153 AD2d 466,471-472 [1st Dept 1990] [emphasizing that threats do not need to be explicit]); sufficient for attempt to commit grand larceny in the fourth degree by extortion ( see People v Denson , 26 NY3d 179 , 189 [2015] ; Forde , 153 AD2d at 471-472); and sufficient to prove that defendant "obtain[ed] property with a value in excess of one thousand dollars from one or more [victims]" (Penal Law 190.65[1][b]), an element of scheme to defraud in the first degree ( see People v Taylor , 304 AD2d 434, 435 [1st Dept 2003], lv denied 100 NY2d 566 [2003]). We also reject defendant's argument that the scheme to defraud conviction was against the weight of the evidence ( see People v Danielson , 9 NY3d 342 -348-349 [2007]; see also People v Baque , __ NY3d __, 2024 NY Slip Op 05244 [2024]). Finally, because defendant has failed to show that he committed less than three of the criminal acts alleged in the indictment, his challenge to his enterprise corruption conviction also fails (Penal Law § 460.70[2]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: February 11, 2025

[Assistant]
Judgment modified, with the People's agreement, by vacating Grand
Larceny 4 conviction and criminal acts 1 alleged in Enterprise Corruption
count, because the trial evidence, which included evidence suggesting that
defendant threatened physical damage to construction sites through
vandalism, varied from the theory of the indictment (see People v Grega,
72 NY2d 489, 496-498 [1988]).


[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

[*1] People v Alny (Joe) 2025 NY Slip Op 50216(U) Decided on February 24, 2025 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on February 24, 2025 SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT PRESENT: Brigantti, J.P., James, Perez, JJ. 570153/22 The People of the State of New York, Respondent, against Joe Alny, Defendant-Appellant. Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Jonathan Svetkey, J.), rendered March 11, 2022, convicting him, upon his plea of guilty, of disorderly conduct, and imposing sentence. Per Curiam. Judgment of conviction (Jonathan Svetkey, J.), rendered March 11, 2022, affirmed. Since defendant waived the right to be prosecuted by information, the accusatory instrument must be assessed under the reasonable cause standard applicable to a misdemeanor complaint ( see People v Dumay , 23 NY3d 518 , 524 [2014]). So viewed, the accusatory instrument was jurisdictionally valid because it described facts of an evidentiary nature establishing reasonable cause to believe that defendant was guilty of the charged offense of stalking in the fourth degree ( see Penal Law § 120.45 [1]). The instrument recited that between October 1, 2021 and December 28, 2021, the victim "received approximately eleven voicemails from the defendant on her work cell phone and over twenty emails from the defendant," including messages stating that defendant: "tried many, many, many times based on my memories to call"; that he was "really disappointed why you don't visit me"; and "let's have sex." The instrument further stated that defendant "received a letter from [the victim's] place of work instructing him that he no longer had permission to enter [the victim's] place of work [and] the defendant entered and was outside of her place of work multiple times after he was in receipt of this letter"; and that defendant's conduct caused the victim to feel nervous, anxious and unsafe. These factual allegations and the reasonable inferences to be drawn from them were sufficient, for pleading purposes, to establish that defendant engaged in a course of conduct aimed at the victim that was likely to cause reasonable fear to her physical health and safety and was for no legitimate purpose ( see People v Stuart , 100 NY2d 412, 428 [2003]; People v Brandel , 30 Misc 3d 134 [A], 2011 NY Slip Op 50082[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011], lv [*2] denied 16 NY3d 828 [2011]). Penal Law § 120.45 "properly reach[es] those delusional stalkers who believe either that their victims are in love with them or that they can win their victims' love by pursuing them" ( People v Stuart , 100 NY2d at 427 [internal quotation marks and citation omitted]). Since the stalking charge was facially sufficient, the court had jurisdiction over defendant and was authorized to accept his plea to the uncharged lesser offense of disorderly conduct ( see People v Keizer , 100 NY2d 114, 117—118 [2003]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concurI concur Decision Date: February 24, 2025

[Assistant]
Court found accusatory instrument was valid where it: (a)
detailed a 3-month period where defendant sent numerous voicemails (11)
and emails (20); (b) stated defendant received a letter that defendant had
no permission to enter the victim's work but both entered and was outside
of their "multiple times after he was in receipt of the letter"; and (c)
asserted defendant's conduct made the victim "nervous, anxious and
unsafe.
"


[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Huggins 2025 NY Slip Op 01298 Decided on March 06, 2025 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: March 06, 2025 Before: Kern, J.P., Mendez, Rodriguez, Pitt-Burke, Higgitt, JJ. Ind No. 5872/2011|Appeal No. 3825-3825A-3825B|Case No. 2014-2796 2024-00809 2024-00844| [*1] The People of the State of New York, Respondent, v Henry Huggins, Defendant-Appellant. Jenay Nurse Guilford, Center for Appellate Litigation, New York (Matthew Bova of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Samuel Z. Goldfine of counsel), for respondent. Judgment, Supreme Court, New York County (Richard Carruthers, J., at Frye and suppression hearings; Marcy L. Kahn, J., at trial and sentencing), rendered May 30, 2014, convicting defendant, after a jury trial, of burglary in the first degree, robbery in the first and second degrees, and assault in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 2o years to life on the burglary and robbery in the first degree counts and 16 years to life on the assault in the second degree count, to run consecutively to a term of 18 years to life on the robbery in the second degree count, for an aggregate term of 38 years to life, unanimously affirmed. Order, same court (Marcy L. Kahn, J.), entered on or about May 30, 2014, which denied defendant's CPL 440.30[1-a] motion to retest the DNA evidence, and order, same court (Thomas Farber, J.), entered on or about September 5, 2020, which denied his CPL 440.10 motion to vacate judgment, unanimously affirmed. The verdict was not against the weight of the evidence ( see People v Danielson , 9 NY3d 342 , 348-349 [2007]; see also people v Baque , __ NY3d __, 2024 NY Slip Op 05244 [2024]). There is no basis for disturbing the jury's determination that defendant was the assailant in both incidents, which was established by the surveillance videos, defendant's possession of clothing that matched the clothing worn by the robber in the videos, cell site evidence that placed defendant in the vicinity of the robberies at the time the crimes were committed, and other evidence. The evidence sufficiently supports the jury's conclusion that the second robbery victim sustained a "protracted impairment of health" (Penal Law § 10.00[10]). As a result of defendant's attack, the victim suffered a double fracture to his left shoulder and was unable to put on his clothing without help for four to six weeks ( see People v Herrera , 202 AD3d 517 , 519 [1st Dept 2022], lv denied 38 NY3d 1134 [2022]). As the People concede, the court erred in concluding, after a Frye hearing, that the results of DNA analysis obtained through the use of the forensic statistical tool (FST) was inadmissible ( see People v Williams , 35 NY3d 24 , 41-42 [2020]). Nevertheless, the error was harmless in light of the overwhelming evidence of guilt ( see id. at 42-43; People v Crimmins , 36 NY2d 230, 241-242 [1975]). Even without the use of the forensic statistical tool, defendant's DNA was found on all 15 loci tested, and when considered with the non-DNA evidence, there is no significant probability that the jury would have concluded that defendant was not the perpetrator ( id . at 43). Defendant did not have a right to be present at the Frye hearing, which was not a "core segment" of his trial ( see People v Morales , 80 NY2d 450, 455 [1992]). Further, the Frye hearing, which was conducted as part of a separate case to which defendant was not a party, was not even an ancillary proceeding that he had a qualified right to attend [*2] . Defendant had no right to be produced to attend a proceeding in an unrelated case as an observer. Even if defendant had been a party to the Frye hearing, the proceeding did not involve factual matters about which defendant had any knowledge. Rather, the hearing involved the legal question of whether FST had gained general acceptance, which was based on highly technical scientific testimony. Thus, defendant would not have had anything of value to contribute, and his presence would not have assisted in the defense ( see People v Williams , 85 NY2d 945, 947 [1995]). The court providently exercised its discretion in admitting evidence of defendant's refusal to participate in a lineup to show a consciousness of guilt ( see generally People v Kearse , 177 AD2d 392 [1st Dept 1991], lv denied 70 NY2d 1003 [1992]). Circumstantial evidence suggesting a consciousness of guilt is not inadmissible merely because it is "equivocal" or "consistent with suppositions other than guilt" ( see People v Yazum , 13 NY2d 302, 304 [1963]). In that regard, "ambiguities or explanations tending to rebut an inference of guilt do not render [consciousness of guilt] evidence inadmissible but, rather, must be introduced as part of the defense and submitted to the jury" ( id .; People v Taveras , 228 AD3d 410 , 411 [1st Dept 2024], lv denied 42 NY3d 1054 [2024]). In any event, the court's charge, which followed the CJI instruction, properly instructed the jury on how to consider that evidence. We find that defendant received effective assistance of counsel under the state and federal standards ( see People v Benevento , 91 NY2d 708, 713-714 [1998]; Strickland v Washington , 466 US 668 [1984]). Defendant primarily faults his counsel for failing to preclude the FST evidence and for the manner in which his counsel handled that evidence at trial. However, the DNA evidence was irrelevant to three of his four crimes, and even without the FST evidence, compelling evidence established his guilt as to both victims. In any event, the evidence at the 440.10 hearing established that defendant's challenges to his counsel's performance regarding the FST evidence would not have affected the DNA expert's conclusion that the DNA was best analyzed as a three-person mixture to which FST could be applied. Although defendant argues that the "maximum allele methodology," the "total allele methodology," and the unreliability of the "2-locus methodology" would have supported the conclusion that the DNA was a four-person mixture, other than the defense expert, whose testimony was rejected by the hearing court, the hearing evidence made clear that none of these approaches was used by the Office of the Chief Medical Examiner (OCME). Although there was some impeachment value in an article written by the OCME criminalist who analyzed the DNA and testified at the trial, we find that trial counsel had valid strategic reasons for not confronting the criminalist with her article. Defendant also claims that his counsel [*3] was ineffective for failing to move to suppress the items recovered from his locker pursuant to a search warrant and arguing that the search warrant was invalid. However, defense counsel moved to controvert the search warrant on the ground defendant raises, and after the court found that the warrant was supported by probable cause, asked the court to reconsider its decision, and again raised these arguments at the suppression hearing. Thus, where the search warrant was sufficient to establish probable cause, counsel's failure to obtain a favorable ruling did not amount to ineffective assistance ( see People v Satterfield , 66 NY2d 796, 798-799 [1985]; People v Brown, ___AD3d___ , 2024 NY Slip Op 06550, *4 [2024] [an attorney will not be deemed ineffective just because the strategy they choose was a losing tactic]; People v Harris , 242 AD2d 470 [1st Dept 1997], lv denied 91 NY2d 834 [1997] [counsel will not be found ineffective where the record fails to establish that the defendant "would have prevailed on the suppression theory he now claims should have been advanced by counsel"]). Defendant failed to alert the 440.10 court that it did not rule on his false evidence, Brady , or newly discovered evidence claims. Thus, these claims are unpreserved ( see People v Holmes , 202 AD3d 519 , 520 [1st Dept 2022], lv denied 38 NY3d 1008 [2022]), and we decline to review them in the interest of justice. As an alternative holding, we reject these claims on the merits. Defendant has not demonstrated that the People introduced fraudulent evidence ( see CPL 440.10[1][b]), where OCME did not utilize the methodology that defendant claims resulted in a 90 percent error rate. Nor has defendant established that newly discovered evidence required vacatur of his conviction ( see CPL 440.10[1][g]). Defendant has failed to explain why he could not have obtained the data underlying the criminalist's article by exercising due diligence ( see People v Salemi , 309 NY 208, 215-216 [1955], cert denied 350 US 950 [1956]). Further, even if defendant had confronted the criminalist with the data, it would not likely have altered the verdict, where the People could have disproved the claimed error rate on redirect examination or by calling another OCME witness to testify. Finally, defendant has failed to establish a Brady violation ( see CPL 440.10[1][h]), as the underlying data was not favorable to defendant, and was not suppressed by the prosecution ( see People v Garrett , 23 NY3d 878 , 884-885 [2014]). The court providently denied defendant's motion for DNA retesting ( see CPL 440.30[1-a]). As the motion court found, there was no reasonable probability that DNA retesting would have led to a more favorable result ( see People v Sposito , 30 NY3d 1110 , 1111 [2018]). At most, it could have shown that an unknown person had come in contact with the victim's jacket, which would not have exculpated defendant given the extensive evidence of his guilt. The sentencing court did not violate defendant's [*4] right against self-incrimination, where defendant was told that he did not have to speak, but instead chose to deny his crime. The court fully explained its reasons for imposing a lengthy sentence. To the extent that the court noted that defendant took "no responsibility for his actions," lack of remorse and unwillingness to accept responsibility for one's crimes are appropriate factors in sentencing ( see People v Walsh , 101 AD3d 614 [1st Dept 2012]). We perceive no basis for reducing the sentence. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: March 6, 2025

[Assistant]
Court erred in concluding, after a Frye hearing, that the results of
DNA analysis obtained through the use of the forensic statistical tool
(FST) was inadmissible.
Defendant did not have a right to be present at the Frye hearing.
Court properly admitted evidence of defendant's refusal to participate
in a lineup to show a consciousness of guilt.