Monday, June 04, 2007

AD1: Decisions for May 24, 2007

Criminally negligent assault conviction based on driving on sidewalk, driving the wrong way up a one-way street, hanging on to the victim from a moving car and steering with the same hand that is holding a loaded handgun is against the weight of the evidence

People v Conway, 2007 NY Slip Op 04400 [available here]

While on patrol in the Bronx, officer Mark Conway observed a young man walking down the street. For reasons not explained in the decision on appeal, Conway believed the young man was carrying a gun. (Conway, 2007 NY Slip Op 04400.) A pursuit followed, during which Conway drove up on a sidewalk, drove the wrong way down a one-way street, and grabbed the fleeing suspect from a moving car while driving and holding his service revolver with the same hand. Conway's gun went off during the chase, and the young suspect was severely injured. No gun was recovered from the suspect. (Id. at __.)

Conway was convicted after a bench trial of misdemeanor criminally negligent assault. The First Department reversed his conviction, finding the evidence legally insufficient to establish criminal negligence. The Court of Appeals reversed, finding a reasonable view of the evidence supported the conviction. The Court of Appeals remanded the case back down to the First Department to conduct a weight of the evidence review. (Id. at __.) The First Department again reversed the conviction, finding that the trial judge's verdict was against the weight of the evidence. From the majority decision:

Despite some current equivocation by the People, it was previously uncontradicted that the stop, itself, was proper, and it follows that Conway acted within the bounds of the law when he chased an escaping suspect. Moreover, the essential facts of that chase, as narrated by Conway, are not disputed (except by Dantae Johnson, the complainant) and are even supported by portions of the People's evidence. [...]

Finally, a criminal negligence analysis, in determining reasonableness and gross deviation, ultimately turns on the particular circumstances under which the accused acts. The particular facts of this case as previously noted, and which remain unchanged, warrant the finding that, weighing all the competing inferences, Conway did not act unreasonably under the circumstances.

(Id. at __.)

Justice Williams dissented in unusually strong terms, going so far as to state, "[t]his case presents a perfect example of why police misconduct is such a persistent, endemic problem in this city and country; it is condoned in high places." (Id. at __ [SMITH, J., dissenting].)