Tag: People v. Washington

  • People v. Washington, 25 N.Y.3d 1092 (2015): When Defense Counsel’s Explanation of Actions Does Not Create a Conflict of Interest

    25 N.Y.3d 1092 (2015)

    Defense counsel’s explanation of their actions, when asked by the court in response to a client’s pro se motion alleging ineffective assistance, does not necessarily create an actual conflict of interest, provided the explanation remains factual and does not undermine the client’s claims.

    Summary

    The New York Court of Appeals addressed whether a defense attorney’s response to a client’s pro se motion for new counsel created an actual conflict of interest. The defendant, Kareem Washington, filed a pro se motion alleging ineffective assistance. The trial court questioned defense counsel about these allegations, and counsel provided factual explanations of his actions. The Court of Appeals held that defense counsel’s factual recounting of his efforts did not create a conflict of interest, distinguishing between explaining actions and taking a position adverse to the client. The court affirmed the lower court’s denial of the motion for new counsel, emphasizing that counsel’s response was limited to factual clarifications of his conduct and did not undermine the client’s claims of ineffective assistance.

    Facts

    Kareem Washington was convicted of first-degree robbery. Prior to trial, he filed a pro se motion seeking new counsel, alleging ineffective assistance. The motion was filed about six weeks before trial, but was not brought to the court’s attention until after the guilty verdict. The trial court questioned Washington’s defense counsel about the allegations of ineffective assistance. Counsel provided factual explanations of his actions, including his efforts to provide discovery and discuss trial strategy with Washington. The court observed that Washington contradicted many of his claims during the trial. Based on these observations and counsel’s explanations, the trial court denied Washington’s motion. The Appellate Division affirmed, and the Court of Appeals granted leave to appeal.

    Procedural History

    Washington was convicted by a jury in the Supreme Court, Bronx County. Before sentencing, he filed a pro se motion alleging ineffective assistance of counsel. The trial court denied the motion after questioning defense counsel about the allegations. The Appellate Division, First Department, affirmed the conviction. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether defense counsel’s responses to the court’s questions regarding allegations of ineffective assistance created an actual conflict of interest, thereby entitling the defendant to new counsel.

    Holding

    No, because defense counsel’s factual explanations did not create an actual conflict of interest.

    Court’s Reasoning

    The court reiterated the principle that a defendant is entitled to new counsel upon a showing of good cause, such as a conflict of interest. It clarified that an attorney does not necessarily create a conflict of interest by responding to the court’s questions about a client’s claims of ineffectiveness. Quoting People v. Mitchell, the court stated that counsel may address allegations of ineffectiveness “when asked to by the court” and “should be afforded the opportunity to explain his performance.” The court distinguished between providing a factual explanation of actions and taking a position adverse to the client. The court cited precedent, emphasizing that counsel takes a position adverse to his client when suggesting the motion lacks merit. Conversely, it emphasized that counsel does not create an actual conflict merely by “outlining his efforts on his client’s behalf.” In this case, defense counsel’s responses were limited to factual clarifications of his conduct and did not undermine the client’s claims. The court’s reasoning focused on the nature of the attorney’s responses, emphasizing that they provided factual information about their actions and did not adopt a position adverse to the client.

    Practical Implications

    This case provides guidance on the permissible scope of defense counsel’s responses to client’s pro se motions alleging ineffective assistance. It clarifies that attorneys can explain their actions to the court, without automatically creating a conflict of interest, so long as their responses remain factual and do not undermine their client’s claims. This decision is critical for trial judges and attorneys dealing with post-trial claims of ineffective assistance of counsel. It also emphasizes that a defendant’s credibility and the court’s observations during trial are important in assessing claims of ineffective assistance. Later courts should consider this case when analyzing claims of ineffective assistance where counsel is questioned regarding their conduct.

  • People v. Washington, 23 N.Y.3d 228 (2014): Duty to Inform DWI Suspect of Attorney’s Contact

    People v. Washington, 23 N.Y.3d 228 (2014)

    When an attorney contacts the police on behalf of a DWI suspect before a chemical test is administered, the police must inform the suspect of the attorney’s communication, unless doing so would unduly interfere with the test’s administration.

    Summary

    Defendant was arrested for DWI after a fatal car accident. While she was being processed, her attorney contacted the police, requesting that they not question or test her. The police, without informing her of the attorney’s call, obtained her consent for a breathalyzer test and administered it. The New York Court of Appeals held that the police violated her limited right to counsel under People v. Gursey. The Court reasoned that because the attorney contacted the police before the breathalyzer was administered, the police were obligated to inform the defendant of the communication so she could decide whether to consult with counsel.

    Facts

    Jonai Washington struck and killed a pedestrian while driving. Police officers noted she admitted to consuming four beers earlier. She failed field sobriety tests and was arrested for driving while intoxicated. At police headquarters, she was read a chemical test authorization form and signed it, consenting to a breathalyzer test.
    Meanwhile, her family contacted an attorney who then called the Sheriff’s Department and was transferred to a sergeant at police headquarters. The attorney stated he represented Washington and asked the police not to question or test her. This call occurred before the breathalyzer test began, but Washington was not informed of the attorney’s call before the test was initiated.

    Procedural History

    Washington was indicted for manslaughter, vehicular manslaughter, and DWI. She moved to suppress the breathalyzer results, arguing a violation of her right to counsel. The Supreme Court granted the motion, suppressing the results. The Appellate Division affirmed, finding that the police violated Washington’s right to counsel by failing to inform her of her attorney’s contact before the breathalyzer test and that the People failed to show that providing such notice would have interfered with the administration of the test. The dissenting justice granted the People leave to appeal to the Court of Appeals.

    Issue(s)

    Whether the police are required to inform a DWI suspect that an attorney has contacted them on their behalf before administering a chemical test, even if the suspect has already consented to the test.

    Holding

    Yes, because the statutory right to legal consultation applies when an attorney contacts the police before a chemical test is performed, and the police must alert the suspect to the presence of counsel, whether the contact is made in person or telephonically, unless doing so would unduly interfere with the administration of the test. The suspect could have revoked her consent prior to administration of the test after conferring with counsel.

    Court’s Reasoning

    The Court of Appeals relied on its prior holding in People v. Gursey, which recognized a limited right to counsel in DWI cases based on the implied consent law. While Gursey primarily addressed situations where the suspect *personally* requests counsel, the Court extended its reasoning to situations where counsel intervenes on the suspect’s behalf *before* the chemical test is administered. The Court reasoned that Vehicle and Traffic Law § 1194 grants a driver a qualified right to refuse a chemical test, and advice from counsel may be sought to inform that decision. The Court stated that the police must advise the accused that a lawyer has made contact on the accused’s behalf. Once so informed, the accused may choose to consult with counsel or forgo that option and proceed with the chemical test.

    The Court emphasized that the right to counsel is not absolute and cannot be used to unduly delay the administration of the chemical test, referencing the time-sensitive nature of blood alcohol content evidence. However, because the police failed to inform Washington of her attorney’s contact *before* the breathalyzer was administered, and the People did not demonstrate that providing such notice would have been unreasonable, the Court held that her right to counsel was violated, and suppression of the test results was warranted. The operative point is the actual performance of the procedure and, until it occurs, legal assistance may be sought “if such access does not interfere unduly” with the administration of the chemical test.

  • People v. Washington, 8 N.Y.3d 565 (2007): Enforceability of Conditional Agreements in Conspiracy Law

    People v. Washington, 8 N.Y.3d 565 (2007)

    An agreement to commit a crime can form the basis of a conspiracy charge even if the agreement’s execution is conditional, provided the defendant subjectively believes the condition is likely to be fulfilled.

    Summary

    The New York Court of Appeals addressed whether a conditional agreement to commit murder can be prosecuted under conspiracy law. The defendant, incarcerated on other charges, agreed to pay for the murder of a rival upon his release from prison. He was subsequently convicted of conspiracy in the second degree. The Court of Appeals affirmed, holding that the conditional nature of the agreement (defendant’s release from prison) did not negate the existence of a conspiracy because the defendant reasonably believed the condition would be met. The court emphasized that the agreement to commit murder was concrete and unambiguous, and overt acts were undertaken in furtherance of that agreement.

    Facts

    Defendant, while incarcerated, told a fellow inmate (a government informant) that he was willing to pay to have the complaining witness in his child endangerment case killed. Later, he changed the intended victim to a rival named “Seven,” who allegedly shot him. The informant, working with police, introduced an undercover officer posing as a hitman to the defendant. The defendant instructed the undercover to contact his associates to arrange the killing. He gave the undercover contact information and a description of Seven. The defendant specified that the killing should occur after his release from prison and after he obtained money.

    Procedural History

    The defendant was charged with conspiracy in the second degree. The Supreme Court found the defendant guilty after a non-jury trial. The Appellate Division affirmed the conviction. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the evidence was legally sufficient to support a conviction for conspiracy where the agreement to commit murder was conditional upon the defendant’s release from prison and his ability to secure funds.

    Holding

    Yes, because the conditions imposed by the defendant did not negate the existence of a conspiratorial agreement, as he reasonably believed the condition (his release from prison) would occur, and the agreement itself was concrete and unambiguous.

    Court’s Reasoning

    The Court of Appeals referenced Penal Law § 105.15, which defines conspiracy in the second degree as agreeing with one or more persons to engage in conduct constituting a Class A felony, with the intent that such conduct be performed. The court noted that a conspiracy consists of an agreement to commit a crime, coupled with an overt act in furtherance of the conspiracy. The court addressed the issue of whether conditions placed on an agreement negate the existence of a conspiracy. It surveyed federal circuit court approaches, noting the split between circuits that consider the likelihood of the condition being met and those that deem conditions irrelevant unless they make the agreement illusory. The court aligned itself with the First and Eighth Circuits, indicating that an agreement with a condition is effective if the defendant subjectively believes the condition is likely to be fulfilled. The Court distinguished the case from United States v. Melchor-Lopez, where there was no agreement because the defendant’s conditions were unacceptable to the other party. The court stated: “Here, the conditions that defendant imposed on the performance of the agreement — to commit a murder — were that nothing was to happen to Seven until defendant was released from jail and was able to secure money to pay for the hit. These requirements were not “conditions” negating the existence of an agreement to kill Seven — they were terms of the agreement.” The court further noted that a conspiratorial agreement requires a “concrete and unambiguous . . . expression of [defendant’s] intent to violate the law” (People v. Caban, 5 NY3d 143, 149 [2005]). In this case, the defendant’s intent was clear, and overt acts were committed to further that intent. The court found sufficient evidence of an agreement on the price for the murder, noting that the defendant did not object when the amount was mentioned in front of the undercover officer. The Court concluded, viewing the evidence in the light most favorable to the prosecution, that the defendant’s conviction was supported by the evidence presented at trial.

  • People v. Washington, 86 N.Y.2d 208 (1995): Prosecution’s Duty to Disclose Impeachment Evidence

    People v. Washington, 86 N.Y.2d 208 (1995)

    A prosecutor’s duty to disclose exculpatory material under Brady v. Maryland extends to evidence impeaching the credibility of a prosecution witness, especially if that witness’s testimony may be determinative of the defendant’s guilt or innocence.

    Summary

    Defendant was convicted of murder and robbery based largely on informant testimony. After his conviction, he sought to vacate the judgment, presenting affidavits from informants recanting their testimony and alleging prosecutorial misconduct. The New York Court of Appeals held that the trial court erred in denying a hearing on whether the prosecution failed to disclose information that could have impeached a key witness. The court emphasized that prosecutors must disclose evidence affecting witness credibility, and the failure to do so may warrant a new trial.

    Facts

    Regina Carter was killed during a robbery. Defendant was arrested based on statements from four police informants alleging he confessed to the crime. Two informants, Washington and McKinney, testified at trial. Years after his conviction, Defendant sought to vacate the judgment, submitting affidavits: Washington and McKinney recanted their trial testimony and Youmans, another informant who did not testify at trial, stated he told the prosecutor that Washington’s statement was false and induced by police promises. The prosecutor did not disclose Youmans’ recantation to the defense before trial.

    Procedural History

    The Supreme Court denied Defendant’s motion to vacate the judgment without a hearing. The Appellate Division affirmed both the conviction and the denial of the motion. The New York Court of Appeals granted leave to appeal and modified the Appellate Division’s order, remitting the case for a hearing on the Brady issue.

    Issue(s)

    Whether the prosecutor’s failure to disclose that a potential witness, Youmans, had informed the prosecutor that another witness, Washington, had fabricated his testimony constituted a violation of Defendant’s due process rights under Brady v. Maryland, warranting a hearing on Defendant’s motion to vacate the judgment of conviction.

    Holding

    Yes, because the prosecutor has a duty to disclose exculpatory evidence, including evidence that could impeach the credibility of a key prosecution witness, and Youmans’ statement to the prosecutor suggested that Washington’s testimony was fabricated.

    Court’s Reasoning

    The Court of Appeals determined that Youmans’ affidavit, stating he informed the prosecutor that Washington’s testimony was false, constituted potential Brady material. The court emphasized that a prosecutor’s duty extends to disclosing evidence that impeaches the credibility of a prosecution witness, particularly when that witness’s testimony is crucial to the case. The court cited Giglio v. United States, noting that the “good faith” of a prosecutor is not a valid excuse for nondisclosure. The court stated, “A prosecutor’s duty of disclosing exculpatory material extends to disclosure of evidence impeaching the credibility of a prosecution witness whose testimony may be determinative of guilt or innocence.” Because the People’s papers did not concede the truth of Youmans’ averments, and Youmans’ statements were not conclusively refuted, a hearing was required to determine whether Youmans communicated undisclosed Brady material to the prosecution. The Court directed the hearing court to determine whether the undisclosed evidence created a reasonable doubt that did not otherwise exist. If so, the conviction must be vacated and a new trial ordered; otherwise, the motion to vacate should be denied.

  • People v. Washington, 51 N.Y.2d 214 (1980): Impeachment with Suppressed Statements and the ‘Trustworthiness’ Standard

    People v. Washington, 51 N.Y.2d 214 (1980)

    A defendant’s prior inconsistent statements, even if suppressed due to a Miranda violation, can be used to impeach their credibility at trial, provided the trustworthiness of the evidence satisfies legal standards, but a pretrial finding that the defendant did not make the statement does not automatically bar its use for impeachment.

    Summary

    The New York Court of Appeals addressed whether a defendant’s suppressed statements, obtained in violation of Miranda rights, could be used to impeach his trial testimony. The defendant argued that the pretrial suppression court’s finding that he did not make the statements barred their use for any purpose. The Court of Appeals held that such statements could be used for impeachment if trustworthy, and the determination of whether the defendant made the statement is a factual question for the jury. The court emphasized that the ‘trustworthiness’ standard does not require a pretrial determination that the defendant made the statement, and that any dispute on this point is a matter for the jury.

    Facts

    Police officers, investigating a report of a man with a gun, found the defendant asleep on a couch with a gun in his pocket. The defendant allegedly made two inconsistent statements about the gun’s origin: first, that he found it in a car, and later, that his wife planted it on him.

    Procedural History

    Prior to trial, the defendant moved to suppress the statements, claiming a violation of his constitutional rights. The suppression court found the arresting officer’s testimony regarding the statements not credible and granted the motion to suppress. At trial, the court allowed the prosecution to use the suppressed statements to impeach the defendant’s testimony. The jury convicted the defendant. The Appellate Division affirmed. The dissenting justice granted leave to appeal.

    Issue(s)

    1. Whether a defendant’s statements, suppressed due to a Miranda violation, can be used to impeach their credibility at trial under Harris v. New York.

    2. Whether a pretrial finding that the defendant did not make the suppressed statements bars their use for impeachment.

    Holding

    1. Yes, because statements obtained in violation of Miranda, though inadmissible as evidence in chief, may be used to impeach the defendant’s credibility, provided they are trustworthy.

    2. No, because the determination of whether the defendant made the statement is a factual question for the jury to resolve.

    Court’s Reasoning

    The court relied on Harris v. New York, which allows the use of statements obtained in violation of Miranda for impeachment purposes, provided they are trustworthy. The court clarified that ‘trustworthiness’ in this context primarily relates to voluntariness (i.e., the statements were not the product of coercion or duress). The court emphasized the traditional rule that any dispute over whether the defendant made the statement is a factual issue for the jury. “Traditionally, of course, any dispute as to whether the defendant made the statement would present a factual question for the jury to resolve.” The court distinguished the case from situations where the prosecution knowingly uses perjured testimony, which violates the defendant’s due process rights. However, a disputed claim of fabricated evidence involving only witness credibility can be resolved by the jury. The court reasoned that extending pretrial suppression hearings to encompass claims of fabricated evidence would be an unwarranted expansion of the exclusionary rule. The court stated, “The purpose of the court’s decision in that case was not to alter the rules of evidence with respect to prior inconsistent statements but rather to preserve one of ‘the traditional truth-testing devices of the adversary process’.”

  • People v. Washington, 46 N.Y.2d 116 (1978): Establishing Probable Cause for Wiretap Orders

    People v. Washington, 46 N.Y.2d 116 (1978)

    To sustain wiretap and eavesdropping orders, probable cause must be established on the face of each application, without relying on unexpressed assumptions or placing an undue burden on defendants to analyze the bases for prior orders.

    Summary

    The New York Court of Appeals affirmed the Appellate Division’s decision to vacate convictions obtained through wiretap and eavesdropping orders. The court held that the orders, obtained during a District Attorney’s investigation of police involvement in illegal gambling, were unsustainable because they relied on unacceptable premises, including unstated connections between evidence, judicial recollection of prior orders’ bases, and an unreasonable burden on defendants to decipher the justification for the orders. The court acknowledged that guilty defendants might escape punishment, but emphasized the importance of upholding procedural justice.

    Facts

    The New York County District Attorney’s office conducted an investigation into police involvement in illegal gambling operations. During the investigation, the DA obtained 107 wiretap and eavesdropping orders. The legality of these orders was later challenged.

    Procedural History

    The Appellate Division vacated the convictions that were based on evidence obtained through the wiretap and eavesdropping orders. The People appealed this decision to the New York Court of Appeals.

    Issue(s)

    Whether wiretap and eavesdropping orders can be sustained when probable cause is not evident on the face of each application, and instead relies on presumptions about connections between evidence, judicial recollection of prior orders’ bases, and an unreasonable burden on defendants to analyze the justifications for the orders.

    Holding

    No, because sustaining the orders would require unacceptable presumptions about the linking of evidence, judicial recollection, and the defendant’s ability to understand the unexpressed basis for the orders. It would also place an intolerable burden on the persons for whose protection the restrictions on wiretapping and eavesdropping orders have been imposed.

    Court’s Reasoning

    The Court of Appeals determined that sustaining the wiretap and eavesdropping orders required several unacceptable presumptions. First, that connections between evidence could be pieced together despite changes in federal and state law. Second, that the judge signing the orders recalled the bases of prior orders and understood them to be the basis for subsequent orders, even without explicit indication. Third, that reviewing courts and defendants would understand the unexpressed basis upon which the orders had been granted, and that defendants would have a fair opportunity to analyze those bases. The court stated that “None of these presumptions reflect reality and in any event would place an intolerable burden on the very persons for whose protection the restrictions on wiretapping and eavesdropping orders have been imposed.” The court acknowledged that this decision might allow guilty parties to escape conviction, but emphasized that such is the cost of maintaining procedural justice. The court further justified its holding by noting the considerable time that had passed since the crimes and that the issues concerned a gap between older law and current statutory and decisional law. The court concluded that reversing the Appellate Division to “save the prosecutions” would create a damaging precedent by violating fundamental principles of procedural justice.

  • People v. Washington, 27 N.Y.2d 401 (1971): Defendant’s Prior Knowledge as a Bar to Relief for Perjured Testimony

    People v. Washington, 27 N.Y.2d 401 (1971)

    A defendant with prior knowledge of a witness’s perjury regarding promises of leniency from the prosecution, who fails to disclose this knowledge to the court or jury, is barred from later seeking relief based on that perjury.

    Summary

    Washington sought coram nobis relief, arguing that a prosecution witness, Anderson, falsely testified he had no expectation of leniency. The prosecutor knew this was false but did not correct it. Normally, this would warrant a new trial. However, Washington knew of the promises to Anderson *before* his trial. Despite this knowledge, Washington did not reveal it when questioned about Anderson’s motives. Washington’s counsel also confirmed that Washington had told him about the promises before the trial. The court held that because Washington knew of the perjury and failed to act, he was barred from relief. The court emphasized it would be punishing the People rather than protecting legitimate interests of the defendant.

    Facts

    1. Martin Anderson, a key prosecution witness in Washington’s trial, testified he had no reason to expect leniency in exchange for his testimony.
    2. This testimony was false; Anderson had received assurances of leniency from the prosecutor.
    3. After Washington’s trial, the indictment against Anderson was dismissed based on his cooperation in Washington’s trial.
    4. Prior to his own trial, Washington was informed by Anderson about the promises of leniency.
    5. During his trial, when questioned about Anderson’s motives, Washington was evasive and did not disclose his knowledge of the promises.

    Procedural History

    1. Washington was convicted based, in part, on Anderson’s testimony.
    2. Washington then filed a coram nobis application, claiming that Anderson’s false testimony warranted a new trial.
    3. The lower court denied the application.
    4. The New York Court of Appeals affirmed the denial.

    Issue(s)

    1. Whether a defendant, who knew before his trial that a prosecution witness perjured himself regarding promises of leniency and failed to disclose this knowledge, is entitled to coram nobis relief based on that perjury.

    Holding

    1. No, because both the defendant and his counsel, with knowledge of the facts, stood silently by and did nothing themselves to remedy the situation; the court will not merely punish the prosecution and thus penalize the People, where there cannot be said to be legitimate interests of the defendant to be protected.

    Court’s Reasoning

    The Court of Appeals acknowledged the prosecutor’s failure to correct Anderson’s false testimony would normally warrant reversal under People v. Savvides. However, the court distinguished this case because Washington knew of the perjury before his trial and failed to disclose it. The court reasoned that allowing Washington to benefit from this situation would be unfair because he knowingly withheld information that could have been used to impeach Anderson’s testimony. The court stated, “Where, however, as here, both the defendant and his counsel, with knowledge of the facts, stood silently by and did nothing themselves to remedy the situation, we would make a very limited exception to the Savvides rule. To do otherwise, in our view, would be merely to punish the prosecution, and thus to penalize the People, where there cannot be said to be legitimate interests of the defendant to be protected.” The court emphasized the need to protect the integrity of the trial process and prevent defendants from strategically withholding information to secure a later advantage. The court declined to penalize the People when the defendant possessed, and failed to utilize, the pertinent exculpatory information.

  • People v. Washington, 18 N.Y.2d 366 (1966): Intent Requirement for Criminal Mischief

    People v. Washington, 18 N.Y.2d 366 (1966)

    To be guilty of criminal mischief under Penal Law § 1433, a defendant must have intended to damage the property, or at least intended to damage property, not merely committed an intentional act that resulted in unintended damage.

    Summary

    Washington was adjudged a youthful offender for malicious mischief after a trash can thrown by his codefendant, Cannon, damaged a parked car. The evidence suggested Cannon intended to hit the car’s occupants, not the car itself. The New York Court of Appeals reversed, holding that Penal Law § 1433, concerning willful property damage, requires intent to damage property, not merely an intentional act resulting in unintended damage. The court also found insufficient evidence to establish Washington as an accomplice.

    Facts

    The complaining witness, Williams, stopped his car to let a passenger out. Washington, Cannon, and another man were nearby. Washington shouted an epithet at Williams and swung at Williams’ companion. Williams exited the car on the other side. Cannon threw a litter basket at Williams, but it hit Williams’ car, causing damage. Washington then threw a pipe at Williams, striking him, but nothing thrown by Washington struck the car.

    Procedural History

    The Criminal Court of the City of New York found Washington guilty of malicious mischief. The Appellate Term affirmed by a 2-1 vote. A dissenting Justice cited People v. Hackley, arguing that intent to injure a person is insufficient to satisfy the requirements of Penal Law § 1433. The case was then appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether Penal Law § 1433, which penalizes a person who “unlawfully and wilfully destroys or injures any real or personal property of another,” requires proof that the defendant intended to damage the property, or whether it is sufficient to show that the defendant willed the act that caused the damage, even if the damage was not intended.
    2. Whether, given that Cannon threw the litter basket that damaged the car, there was sufficient evidence to find Washington an accomplice to the crime of damaging the automobile.

    Holding

    1. No, because in the context of § 1433, “wilfully” includes and requires the element of intent to do the damage complained of, or at least an intent to damage property.
    2. No, because the proof was insufficient to establish the charged offense as to either Cannon or Washington.

    Court’s Reasoning

    The court reasoned that the term “wilfully” in § 1433 requires intent to cause the damage, or at least an intent to damage property. The court noted the severe penalties associated with the statute, including a long term of imprisonment for damages exceeding $250 and liability for treble damages in a civil action. The court found it unlikely that the legislature intended such severe penalties for unintentional acts where the perpetrator intended to assault someone but missed and damaged property. The court stated, “In its context in section 1433 the word ‘wilfully’ would seem to include and require the element of intent to do the damage complained of, or at least an intent to damage property.” The court suggested that the appropriate remedy for unintentional damage in such a situation is a civil action for damages.

    Regarding Washington’s potential liability as an accomplice, the court stated that Washington could only be criminally liable if there was enough proof to justify finding him an accomplice. The court referenced People v. Kupperschmidt, 237 N.Y. 463, 465, stating that accomplice liability requires showing that the defendant has taken a guilty part in the commission of the crime. However, because the proof was insufficient to establish the charged offense as to either Cannon or Washington, the court declined to definitively rule on the accomplice issue.

    Judges Scileppi and Keating concurred in the reversal, but solely on the ground that Cannon alone caused the damage and there was insufficient evidence to prove that Washington was Cannon’s accomplice. They explicitly stated their disapproval of the holding in People v. Hackley, indicating that if there had been sufficient proof of accomplice liability, they would have voted for affirmance, notwithstanding the Hackley decision.