People v. Sandel
| Decision Date | 26 September 2018 |
| Docket Number | 3540/2015 |
| Citation | 84 N.Y.S.3d 340,61 Misc.3d 843 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Fernando SANDEL, et al., Defendant. |
| Court | New York Supreme Court |
Carolina Holderness, Esq. and Justin McNabney Esq. of the New York County District Attorney's Office for the People.
Glenn Hardy Esq. for the defendant Cruz, Reginald Sharpe for the defendant Sandel, David Ferguson Esq. for the defendant Rivera.
The defendants, Fernando Sandel, Isaias Rivera and Joey Cruz were convicted after a jury trial of multiple counts of predatory sexual assault in connection with attacks on three women. They filed CPL § 330.30(1) motions to set aside the verdict. Previously, at the close of the evidence the defendants sought a trial order of dismissal. Decision was reserved on whether to dismiss those counts involving the defendants' use of a noxious chemical spray to subdue their victims, counsel having argued it failed to constitute a dangerous instrument under the law. For the reasons stated below, the motions are denied.
The factual background.
On June 28, 2015 defendants Sandel and Cruz sexually attacked a woman on the rooftop of a building in the Bronx. On August 3, 2015 all three defendants attacked a second woman in a room at the Grand Hyatt Hotel on East 42nd Street in Manhattan. The next day they perpetuated a similar offense against a woman in her apartment on Lexington Avenue, also in Manhattan. In each of the cases, the defendants and their victims had arranged to meet. The women believed they would be engaging in consensual sex for money, but the men intended to sexually assault and rob them. To facilitate this intent, the defendants sprayed their victims in the face with a noxious chemical, most likely mace or pepper spray, tied their wrists and ankles and beat them.
A police investigation led to the defendants' arrests. Mr. Rivera and Mr. Sandel were arraigned in Supreme Court, New York County, on September 30, 2015. Defendant Cruz was arraigned the next day. Defendants Sandel and Cruz were each charged in a 45-count indictment with predatory sexual assault, forcible rape and other sex-related acts, robbery, strangulation, unlawful imprisonment, burglary and conspiracy.1 Defendant Rivera faced 35 counts, having not participated in the Bronx crimes. All were remanded for trial.
Jury selection began on April 11, 2018.2 The People's case commenced on May 2, 2018 and concluded on June 4 at which time the defendants made a motion for a trial order of dismissal. The motion was denied except that Counts 8 and 10 were dismissed as to defendants Sandel and Cruz (sexual abuse in the third degree and unlawful imprisonment) and Count 43 was dismissed as to all three (unlawful imprisonment). The Court reserved as to those counts relating to the use of a noxious chemical during the attack.
Following the Court's decision to reserve, the matter proceeded to summations. The remaining counts were given to the jury and on June 8, 2018 the defendants were found guilty of all charges.
The law and its application to the instant facts.
At the end of either the People's case, or after all the evidence has been presented, a judge, upon motion of the defendant, may issue a trial order of dismissal of any count of an indictment because the evidence admitted at trial is not legally sufficient to establish the offense charged or any lesser included offense. The court also may reserve decision until after the jury renders its verdict. CPL § 290.10(1).
At any time after the verdict of guilty and before sentence, a defendant may move to set aside or modify the verdict if there is any ground in the record that if raised on appeal would require reversal or modification of the judgment "as a matter of law by an appellate court." CPL § 330.30(1). A trial judge's powers pursuant to § 330.30(1) are "limited to a determination that the trial evidence was not legally sufficient to establish the defendant's guilt of an offense of which he was convicted." People v. Carter, 63 N.Y.2d 530, 536, 483 N.Y.S.2d 654, 473 N.E.2d 6 (1984). Legally sufficient evidence is "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission" of it. CPL § 70.10(1). The standard to determine legal sufficiency is whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." People v. Carthrens, 171 A.D.2d 387, 392, 577 N.Y.S.2d 249 (1st Dept. 1991).
The defendants' legal argument focuses on the 12 counts (1, 2, 5, 15, 16, 17, 18, 24, 25, 31, 36 and 38) involving the use by the defendants (Cruz and Sandel in counts 1, 2 and 5 and all three defendants in the rest) of a noxious chemical spray to subdue their victims for the purpose of engaging in predatory sexual assault, burglary and robbery. They assert the chemical spray is not a "dangerous instrument" under New York law.
The legal definition of a "dangerous instrument" is "any instrument, article or substance ... which, under the circumstances in which it is used, attempted to be used or threatened to be used is readily capable of causing death or other serious physical injury." PL § 10.00(13) [emphasis supplied]. Serious physical injury is defined as "injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of any bodily organ." PL § 10.00(10). The focus of the statute is not on whether an instrument, article or substance is dangerous per se but whether the manner of use transforms the item into something that can cause death or serious physical injury.
It is obvious that some items are inherently dangerous and capable of causing serious physical injury if improperly used: an automobile ( People v. Diaz, 129 A.D.2d 968, 514 N.Y.S.2d 150 (4th Dept. 1987) ; a lead pipe, ( People v. Jones , 196 A.D.2d 889, 602 N.Y.S.2d 159 (2nd Dept.), appeal denied, 82 N.Y.2d 897, 610 N.Y.S.2d 164, 632 N.E.2d 474 (1993) ; a pistol ( People v. Gamble, 135 A.D.3d 1078, 23 N.Y.S.3d 414 (3rd Dept.), leave to appeal denied, 27 N.Y.3d 997, 38 N.Y.S.3d 107, 59 N.E.3d 1219 (2016) ; a red-hot barbecue fork ( People v. Greene, 72 A.D.3d 1279, 899 N.Y.S.2d 401 (3rd Dept.), leave to appeal denied, 15 N.Y.3d 750, 906 N.Y.S.2d 823, 933 N.E.2d 222 (2010) ; a baseball bat ( People v. Johnson, 63 A.D.3d 470, 882 N.Y.S.2d 401 (1st Dept.), leave to appeal denied, 13 N.Y.3d 745, 886 N.Y.S.2d 99, 914 N.E.2d 1017 (2009) ; a bicycle chain ( People v. Hiraeta, 117 A.D.3d 964, 986 N.Y.S.2d 217 (2nd Dept.), leave to appeal denied, 24 N.Y.3d 1002, 997 N.Y.S.2d 121, 21 N.E.3d 573 (2014) and steel-toed boots, ( People v. Roblee, 70 A.D.3d 225, 890 N.Y.S.2d 166 (3rd Dept. 2009).
But less obviously, benign objects can be "dangerous instruments," capable of causing the requisite injuries under the right circumstances. Examples abound: a plaster arm cast ( People v. Davis, 96 A.D.2d 680, 466 N.Y.S.2d 540 (3rd Dept. 1983) ; a kitchen fork ( Monos v. Monos, 123 A.D.3d 931, 999 N.Y.S.2d 131 (2nd Dept. 2014) ; a knife handle ( People v. Burns, 122 A.D.3d 1435, 996 N.Y.S.2d 842 (4th Dept. 2014), leave to appeal denied, 26 N.Y.3d 927, 17 N.Y.S.3d 89, 38 N.E.3d 835 (2015) ; a frayed electrical cord ( People v. Woodard, 83 A.D.3d 1440, 919 N.Y.S.2d 718 (4th Dept.), appeal denied, 17 N.Y.3d 803, 929 N.Y.S.2d 111, 952 N.E.2d 1106 (2011) ; a door ( People v. Parker, 62 A.D.3d 1195, 883 N.Y.S.2d 315 (3rd Dept.), appeal denied, 13 N.Y.3d 704, 2009 WL 2779377 (2009) ; a piece of cloth ( People v. Marshall, 105 A.D.2d 849, 482 N.Y.S.2d 45 (2nd Dept. 1984) ; hot water ( People v. Mableton, 17 A.D.3d 383, 792 N.Y.S.2d 197 (2nd Dept.), appeal denied, 4 N.Y.3d 888, 798 N.Y.S.2d 733, 831 N.E.2d 978 (2005) ; sneakers ( People v. Lappard, 215 A.D.2d 245, 627 N.Y.S.2d 613 (1st Dept.)appeal denied, 86 N.Y.2d 737, 631 N.Y.S.2d 618, 655 N.E.2d 715 (1995) and a pit bull terrier ( People v. Mateo, 77 A.D.3d 1374, 909 N.Y.S.2d 266 (4th Dept.), leave to appeal denied, 15 N.Y.3d 922, 913 N.Y.S.2d 649, 939 N.E.2d 815 (2010).3
A can of mace, pepper spray or any other noxious chemical is something of a hybrid. The defense argues that such a spray is sanctioned as a non-lethal weapon for law enforcement and sold commercially for use by civilians for self-defense, which signals it cannot be classified as a dangerous instrument. Moreover, the defendants contend that the way the noxious chemical was used here, it did not cause serious physical injury, was not capable of causing such injury and no rational jury could have determined otherwise. The People counter that the way the noxious chemical substance was used here turned it into a dangerous instrument, much the way the handle of a knife or a pair of sneakers became dangerous instruments in the cases cited above. They assert the focus of the statute is not on whether the chemical caused serious physical injury but whether it was used in a way that rendered it capable of doing so.
Surprisingly, there appears to be no appellate authority in New York addressing whether a noxious chemical spray — by whatever name it is marketed — constitutes a dangerous instrument. Two New York City Criminal Courts, however, have found mace to be a dangerous instrument in the context of whether charging it as such could survive a motion to dismiss for facial insufficiency. In People v. McCullum, 184 Misc.2d 70, 73, 706 N.Y.S.2d 616 (2000), the court held that However, in McCullum the case was dismissed because the People failed to establish a prima facie case that the can of mace was operable at...
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