207 A.D.3d 748
N.Y. App. Div.2022Background
- Defendant Rashan A. Hay was convicted after a nonjury trial (Aug. 10, 2016) of: burglary in the second degree as a sexually motivated felony; burglary in the second degree; attempted rape in the first degree; attempted assault in the third degree; and unlawful possession of marihuana. Sentence imposed by Supreme Court, Kings County.
- Appeal taken to the Appellate Division, Second Department challenging sufficiency/weight of the evidence and other issues; defendant also filed a pro se supplemental brief.
- The Appellate Division reviewed legal sufficiency and independently reviewed weight of the evidence, giving deference to the trial factfinder's view of witnesses and demeanor.
- The court held the evidence legally sufficient and the verdict not against the weight of the evidence as to the remaining convictions.
- The court dismissed the appeal as academic as to the marihuana conviction because that conviction became a nullity under CPL 160.50(5).
- The People conceded, and the court agreed, that the burglary-in-the-second-degree count (non-sexually-motivated) was an inclusory/concurrent count of the burglary-as-sexually-motivated-felony conviction; that count and its sentence were vacated and dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Legal sufficiency of evidence | Prosecution: evidence proves guilt beyond reasonable doubt | Hay: evidence insufficient to convict | Evidence legally sufficient; conviction affirmed (except vacated/count dismissed issues) |
| Weight of the evidence | Evidence weight supports verdict | Hay: verdict against weight of evidence | Independent review accords deference; verdict not against weight |
| Duration of order of protection | People: duration not contested on appeal | Hay: order too long | Unpreserved at sentencing; appellate court declines to reach it in interest of justice |
| Marihuana conviction nullity | State: conviction affected by CPL 160.50(5) | Hay: appealed conviction | Conviction became nullity by operation of law; appeal dismissed as academic |
| Inclusory burglary count | People conceded duplicative charge | Hay sought dismissal of duplicative count | Court vacated the duplicative burglary in the second degree conviction and dismissed that count |
Key Cases Cited
- People v Contes, 60 N.Y.2d 620 (legal sufficiency standard)
- People v Danielson, 9 N.Y.3d 342 (appellate independent weight review)
- People v Mateo, 2 N.Y.3d 383 (deference to factfinder's opportunity to view witnesses)
- People v Bleakley, 69 N.Y.2d 490 (weight of the evidence principles)
- People v Romero, 7 N.Y.3d 633 (standards for weight review)
- People v Nieves, 2 N.Y.3d 310 (preservation requirements for order of protection challenges)
- People v Jackson, 144 A.D.3d 945 (inclusory/concurrent count doctrine)