AD1 order dated December 27, 2012, modifying the judgments of conviction by vacating the enterprise corruption count based on legal insufficiency and running the remaining counts concurrently in the interest of justice. Decision below: 101 AD3d 585, ___ NYS2d ___. Catterson, J. (AD dissenter in part), granted leave to the defendants December 28, 2012.

ISSUES PRESENTED:

(1) Whether the evidence admitted regarding the enterprise corruption count, which should not have been charged, unduly prejudiced the defendants regarding the remaining charges and requires a new trial on those charges. (2) Sufficiency of the evidence on the remaining charges. (3) The trial court’s exclusion of defense evidence of industry practice to show lack of criminal intent, as well as sundry other issues.

Factual background: Defendants were officers of NYC construction contractors convicted of enterprise corruption for their role in, among other things, the falsification of test results, improper inspections of construction projects, and double-billing of clients. The First Department found that the enterprise corruption counts were not supported by sufficient proof, and were against the weight of the evidence, because the People had failed to establish, among other things, that the defendants “spearheaded a criminal enterprise.”

Issues before the Court: (1) Whether the convictions were supported by sufficient proof and/or were against the weight of the evidence.

The Court held: Under the rules established in People v. Western Express, Intl.. Inc., 19 N.Y.3d 652 (2012), the proof was adequate to establish defendants’ guilt, and warranted remittal for the Appellate Division to reconsider the weight of the evidence in light of those rules.

CAL Observes: For the first time, the Court of Appeals expressly states that it has the power to review a weight-of-the-evidence challenge if the Appellate Division reviewed the evidence “using an incorrect legal principle” (Slip Op. at 9). While Judge Graffeo’s opinion cites People v. Romero for this principle, Romero addressed a much more limited question, and produced a much more limited rule. It involved the question of whether the Appellate Division had assessed the credibility of witnesses when performing its weight-of-the-evidence review. Answering that the Appellate Division had engaged in the proper review, Romero held only that, when the Appellate Division’s decision “manifest[s] a lack of application of that review power,” the Court of Appeals was empowered to “reverse and remit for a proper assessment of the weight of the evidence.” 7 N.Y.3d 633, 646 (2007). While such a rule seems to have been implicit in the Court’s decision in People v. Danielson, 9 N.Y.3d 342 (2007), it is in apparent tension with the Court’s subsequent in People v. Riley, 19 N.Y.3d 944 (2012). Interestingly, Judge Graffeo, writing for a unanimous court, did not attempt to distinguish Riley, where the Court ruled, over a dissent from Judge Pigott, that it did not have the authority to assess the legal standard applied by the Appellate Division in reviewing the weight of the evidence. 19 N.Y.3d at 946-47. Despite its apparent conflict with Riley, the Court’s decision appears correct— or at least fair— because it would be anomalous for a court to apply one elemental definition when reviewing for sufficiency, but another when reviewing weight. But see, People v. Johnson, 14 N.Y.3d 917, 919 (2010)(Appellate Division must weigh evidence “in light of the elements of the crime as charged to the jury”).