Criminal Law Update: 12-17-09

Robbery
Force Used to Escape v. Force Used to Retain Stolen Property
People v. Bynum
Spain, J.
Schenectady County Court (Milano, J.)

In Bynum, the defendant was convicted following trial of robbery in the third degree in connection with the theft of watches from a drug store. The defendant argued that there was legally insufficient evidence to establish that he used force during the commission of the theft. According to the decision, the facts raised at trial established that the defendant -- after being approached by store security -- turned over two stolen watches, still in their packaging. When he was ordered to empty his pockets, the defendant attempted to escape from the store and a "scuffle" ensued.

In upholding the defendant's conviction, the Court found that there was legally sufficient evidence to establish that the defendant used force. The Court noted that "force merely used in order to escape will not support a robbery." Despite this pronouncement, in addition to the uncontroverted evidence that the defendant used force in order to escape, the Court found that since the defendant was found to still be in possession of additional stolen watches, he used force in furtherance of retaining said stolen property and hence a robbery had been established.

Thus, the reason of logic, had the defendant emptied all of his pockets prior to the scuffle, a robbery charge would not stand. The lesson -- if you are going to use force to escape the clutches of a security guard, dispose of all of the stolen property first.

Burglary in the Second Degree
Revocation of Authorization to be Present
People v. Rodriguez
Peters, J.
Broome County Court (Smith, J.)

Court reasserted that when a burglary is predicated on unlawfully remaining, you measure intent at the instant the authorization to be on the premises is terminated. The defendant was requested to leave the complainant's apartment after she learned the reason for his presence was to collect a drug debt. After authorization terminated, the defendant began taking property from the apartment as collateral for his outstanding debt. The Court found sufficient evidence to support the conviction.

Consolidation of Indictments
Prejudice to the Defendant Still Takes a Back Seat to Efficiency
People v. Rodriguez
Peters, J.
Broome County Court (Smith, J.)

The Court upheld the consolidation of two indictments. The first charged the defendant with burglary in the second degree for remaining in the premises of the complainant's apartment and taking tangible property to satisfy a drug debt. The second charged the defendant with menacing and weapon possession that occurred some two weeks later when the victim of the burglary approached the defendant seeking the return of his property. Despite the fact that these charges arose out of separate and distinct criminal transactions, the Court affirmed their consolidation as the "burglary charge was relevant and admissible to show defendant's motive and intent with respect to the menacing and weapon charges." Lastly, the Court noted that since the defendant was acquitted of the weapons and menacing charges, the defendant was not prejudiced.

CPL 70.30(3) Reduction
Dismissal or Acquittal Means Just That
People v. Gentry
Kavanaugh, J.
Schenectady County Court (Clark, J.)

The defendant argued that he was entitled to a one-year reduction in his sentence due to the fact that he had served two years in prison on a conviction that had been vacated on a 440 motion. Examining the language of CPL 70.30(3) that provides for such reductions, the Court disagreed, on account of the fact that after his conviction had been vacated, the defendant pleaded guilty to a lesser charge in full satisfaction upon which a one-year sentence was imposed. Thus, despite the fact that the defendant served more time than he should have, the guilty plea to a lesser offense in satisfaction after the conviction was vacated precluded his use of CPL 70.30 which is reserved only for those who are acquitted or have their charges dismissed.

Practice Tip: If you would otherwise be eligible for a 70.30(3) reduction, be cautious of taking a dismissal in the interests of justice or an ACOD as it could preclude use of this remedy.


Restitution Hearing
People v. Gazivoda
Mercure, P.J.
Ulster County Court (J. Bruhn)

In Gazivoda, the defendant pleaded guilty to violating Lien Law Sec. 79-a(1)(b) by misappropriating trust funds. Court remanded for a restitution hearing, at which the People bear the burden of proving each component of the restitution computation. In doing so, the Court reaffirmed the notion that a defendant is entitled to a restitution hearing simply upon the asking, "irrespective of the level of evidence in the record."

Criminal Law Update: 12-17-09

Third Dept Changes Course in Banking Law Interpretation

Estates and Banking Law : Matter of Corcoran

Reversing its previous holding, the Appellate Division, Third Department has now held, for the first time, that the presumption afforded by Banking Law Sec. ____ will apply to brokerage accounts in surrogate's court proceedings. In Matter of Corcoran, the Third Department was called upon to decide whether Surrogate's Court, Saratoga County erred by granting the respondent a directed verdict with respect to whether petitioner had established that the decedent, the parties' mother, did not intend to create a joint account with right of survivorship with respect to a pair of brokerage accounts when she marked a box stating joint w/right of survivorship on the signature cards. According to Surrogate's Court, petitioner failed to meet his burden of establishing that the brokerage accounts -- which listed respondent as the joint holder with right of survivorship -- were not intended as a nontestamentary bequest but, rather for mere convenience.

In Corcoran, the decedent was possessed of a number of brokerage and bank accounts at her death. Her will left nearly her entire estate to her two children in equal shares. When the will was to be probated, the decedent's son became aware of the fact that just prior to executing her will, the decedent had signed over all of her brokerage and bank accounts into a joint tenancy with her daughter (Respondent). Petitioner-Appellant immediately commenced an action to declare that the bank and brokerage accounts were testamentary assets and not joint assets with right of survivorship.

The issue at trial thus, hinged upon who had the burden fo establishing the ownership of the accounts. Or so everyone thought. At the close of Appellant's proof, Respondent moved for a directed verdict on the ground that the accounts, which listed the decedent and Respondent as joint tenants created a presumption under Banking Law Sec. ___ that they were joint with right of survivorship. Under this reasoning, Appellant bore of burden of rebutting this presumption. Appellant countered that the Banking Law presumption did not apply to brokerage accounts. Ultimately, Surrogate's Court granted Respondent's motion for a directed verdict.

Given the paucity of evidence either way (that decedent intended to create a joint brokerage account with her daughter or, that it was meant only for a matter of convenience), the determination of who bore the burden would be determinative. Appellant, relying upon the Third Department's earlier pronouncement in Matter of Antoinette, asserted that the Banking Law presumption was inapplicable to brokerage accounts and, thus, the decision to grant a directed verdict was improper as a matter of law.

In Matter of Antoinette,