COURT OF APPEALS

No decisions reported

FIRST DEPARTMENT

CLICK TO READ People v. Maximillian Nunez, Docket # 2019-4427 (2021 NY Slip Op 00266)

Appeal of a conviction after trial of Criminal Possession of a Weapon in the Second Degree and sentence of 16-Life as a Persistent Violent Felony Offender reversed, remanded for a new trial.

Prior to trial, the People provided a Voluntary Disclosure Form which noticed two statements Defendant allegedly made while in custody after his arrest.  In those two statements, police claimed they overheard Defendant urge his girlfriend to take responsibility for the gun.  Each statement was overheard by a different police officer.

At the suppression hearing, the People called one officer as a witness but not the other.  The court ruled that the statement was admissible.  No evidence was presented regarding the second statement overheard by the other officer.

At a pretrial conference 16 months later, the prosecutor, explaining that the first officer was unavailable to testify because he had been transferred to an assignment outside the United States, asked the court to reopen the suppression hearing to allow the second detective to testify to the statement he allegedly overheard. The court granted the application over defense objection, and, after the detective’s testimony at the reopened hearing, ruled that the statement to which the detective testified was admissible.  The first officer did not testify at trial, and only the second statement was received in evidence.

The First Department reversed, finding that the court should not have reopened the hearing.  The prosecution had a full and fair opportunity to present both of its witnesses and seek admission of both statements, but chose not to, and the court had issued a ruling on the suppression motion.

Additionally, at trial the prosecutor presented extensive evidence regarding large-scale drug trafficking offenses with which the girlfriend and her relatives were charged.  While some evidence was relevant to provide background information as to why the apartment was searched, the extent of the evidence was unnecessarily prejudice.  At a new trial, that evidence was limited.

CLICK TO READ People v. Phillip DeBlasio, Docket # 2019-2099 (2021 NY Slip Op 00376)

Conviction after a bench trial of Making a Terroristic Threat reversed, Indictment dismissed.

At the end of an altercation, Defendant, who was Muslim, threatened to shoot “you guys” referring to several Bangladeshi worshippers at defendant’s mosque. Although there was evidence presented at trial that defendant bore animus toward Bangladeshi people, the threat mentioned no group or population and instead appears to have been based on a personal dispute defendant had with one or more of his fellow worshippers over money or a missing phone. Accordingly, this threat was not directed at a “civilian population.”  Accordingly, the evidence was legally insufficient.

SECOND DEPARTMENT

No reversals reported.

THIRD DEPARTMENT

No reversals reported.

FOURTH DEPARTMENT

No reversals reported.

SECOND CIRCUIT

CLICK TO READ United States v. Oscar Minaya, Docket # 14-1891

Appeal of a conviction after jury trial of several offenses, including four counts of Using or Carrying a Firearm in Furtherance of a Crime of Violence, 18 U.S.C. § 924(c)(1)(A)(ii).  Those charges arose from other counts such as Conspiracy to Commit a Hobbs Act Robbery, Conspiracy to Commit Kidnapping, Hobbs Act Robbery, and Kidnapping.

The Second Circuit reversed the firearms counts finding that Conspiracy to Commit a Hobbs Act Robbery does not qualify as a crime of violence under the “force clause” of 18 U.S.C. § 924(c)(3)(A).  The Second Circuit also held that Conspiracy to Commit Kidnapping likely also does not qualify as a crime of violence.  But since the Government conceded that point, the Second Circuit did not need to decide that question.

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