Petition for Writ of Certiorari — Ahmed Khalil, Petitioner v. New York

Supreme Court briefFeb 17, 2023

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People v. Khalil, ~ N.Y.S.3d —- (2022)

2022 N.Y. Slip Op. 03950

2022 WL 2162754

Supreme Court, Appellate Division,

Third Department, New York.

The PEOPLE of the State of New York, Respondent,

Ahmed KHALIL, Appellant.

112974

Calendar Date: April 26, 2022

Decided and Entered: June 16, 2022

Attorneys and Law Firms

Tully Rinckey PLLC, Rochester (Peter J. Pullano of counsel),

for appellant.

Gary M. Pasqua, District Attorney, Canton (Matthew L.

Peabody of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Aarons, Reynolds Fitzgerald and

Ceresia, JJ.

MEMORANDUM AND ORDER

Ceresia, J.

*1 Appeal from a judgment of the County Court of St.

Lawrence County (McKeighan, J.), rendered June 29, 2020,

upon a verdict convicting defendant of the crimes of stalking

in the first degree, unlawful imprisonment in the second

degree, menacing in the third degree, harassment in the

second degree, petit larceny, grand larceny in the fourth

degree and criminal mischief in the fourth degree.

Defendant and the victim were involved in a relationship

in the spring and summer of 2018. Following an incident

during which defendant confined the victim and took her

cellphone when she tried to call the police, leading her to

jump out of defendant's car and flee into a church to escape

him, defendant was charged in an eight-count indictment

with stalking in the first degree, unlawful imprisonment in

the second degree, menacing in the third degree, harassment

in the second degree, two counts of petit larceny, grand

larceny in the fourth degree and criminal mischief in the

fourth degree. Defendant moved to dismiss the indictment on

statutory speedy trial grounds, which motion was denied by

County Court. Following a jury trial, defendant was convicted

of all of the charges with the exception of one count of petit

larceny. He was thereafter sentenced to a prison term of four

years followed by three years of postrelease supervision for

his conviction of stalking in the first degree, a concurrent

prison term of one to three years for his conviction of grand

larceny in the fourth degree, and time served for the remaining

convictions. Defendant appeals.

Defendant first argues that he was deprived of his statutory

right to a speedy trial. The People are required to announce

readiness for trial within 90 days when a defendant is

charged with a misdemeanor, and within six months when

he or she is charged with a felony (CPL 30.30[l][a],

[b]). “Whether the People complied with this obligation is

determined by computing the time elapsed from the filing of

the first accusatory instrument and the People's declaration of

readiness, subtracting any periods of delay that are excludable

under the tenns of the statute and then adding to the result any

postreadiness periods of delay that are actually attributable

to the People and are ineligible for an exclusion” (People v.

Pentalow, 196 A.D.3d 871, 872, 149 N.Y.S.3d 713 [2021]

[internal quotation marks and citations omitted]).

On August 25, 2018, defendant was arraigned in local

criminal court on three informations charging him with

the misdemeanors of unlawful imprisonment in the second

degree and menacing in the third degree, as well as the

violation of harassment in the second degree. The People

declared their readiness for trial five days later, on August

30, 2018. Thereafter, between August 31,2018 and July 11,

2019, defense counsel made successive written requests to

adjourn the proceedings. On July 11, 2019, the People filed

an indictment containing the three initial charges as well as

five new charges, including two felonies, and announced their

readiness for trial with respect to it.

*2 Defendant contends that the People's initial declaration

of readiness on August 30, 2018 was rendered illusory by

the filing of the indictment, such that the approximately 1014

months that passed between his arraignment on August 25,

2018, and the People's announcement of readiness on the

indictment on July 11,2019, should be charged to the People.

This contention is without merit (see People v. Morales, 309

A.D.2d 1065, 1066, 765 N.Y.S.2d 918 [2003], Iv denied 1

N.Y.3d 576, 775 N.Y.S.2d 793, 807 N.E.2d 906 [2003]).

Where the charges set forth in an indictment are directly

derived from previously-filed accusatory instruments in that

they stem from the same criminal transaction, the indicted

charges relate back to the date of the filing of the earlier

People v. Khalil, — N.Y.S.3d —- (2022)

'' 2022 N.Y. Slip Op. 03950

accusatory instruments both for purposes of calculating the

period within which the People must declare readiness (see

People v. Osgood, 52 N.Y.2d 37, 45, 436 N.Y.S.2d 213, 417

N.E.2d 507 [1980]) and for computing any excludable time

(seePeople v. Sinistaj, 67 N.Y.2d 236,237,501 N.Y.S.2d 793,

492 N.E.2d 1209 [1986]; People ex rel. Greenstein v. Sheriff

of Schenectady County, 220 A.D.2d 190, 193, 645 N.Y.S.2d

339 [1996]).

Preliminarily, we agree with defendant that all of the

charges set forth in the indictment arose out of the same

criminal transaction as that alleged in the local criminal

court informations, such that they all relate back to the

informations. Therefore, the speedy trial clock began to run

on August 25, 2018, the date of the filing of the informations,

and we must determine whether any of the time between that

date and the People's announcement of readiness on July 11,

2019 can be excluded from the speedy trial calculation.

In that regard, “the period of delay resulting from a

continuance granted by the court at the request of, or with the

consent of, the defendant or his or her counsel” is excludable

(CPL 30.30[4][b]; see People v. Abdullah, 133 A.D.3d 925,

927, 20 N.Y.S.3d 659 [2015], Iv denied 27 N.Y.3d 990, 38

N.Y.S.3d 101, 59 N.E.3d 1213 [2016]). Although the People

are charged with the five days of delay from August 26, 2018

to August 30, 2018, the period beginning on August 31,2018

and continuing through July 11, 2019 is excluded from the

speedy trial calculation due to defendant's own adjournment

requests. Accordingly, defendant's speedy trial rights were not

violated (see People v. Skinner, 211 A.D.2d 979, 979, 621

' N.Y.S.2d 733 [1995], WemW86N.Y.2d 741, 631 N.Y.S.2d

621, 655 N.E.2d 718 [1995]). We also reject defendant's

argument that the People violated notions of “fundamental

fairness” by waiting over 10 months to present the case to

a grand jury, as defendant's speculative assertion that the

People engaged in tactical delay is unsupported by the record

(see People v. Grey, 150 A.D.2d 823, 824, 540 N.Y.S.2d 378

[1989], Iv denied 74 N.Y.2d 810, 546 N.Y.S.2d 568, 545

N.E.2d 882 [1989]).

Next, defendant claims that his conviction for grand larceny

in the fourth degree is not supported by legally sufficient

evidence and is against the weight of the evidence, and

that his remaining convictions are against the weight of the

evidence. “When conducting a legal sufficiency analysis, we

view the evidence in the light most favorable to the People

and evaluate whether there is any valid line of reasoning and

permissible inferences which could lead a rational person

to the conclusion reached by the jury on the basis of the

evidence at trial and as a matter of law satisfy the proof

and burden requirements for every element of the crime

charged” (People v. LaDuke, 204 A.D.3d 1083, 1084, 166

N.Y.S.3d 697 [2022] [internal quotation marks and citations

omitted]). “In assessing whether a verdict is supported by

the weight of the evidence, we must first determine whether,

based on all the credible evidence, a different finding would

not have been unreasonable, and, if it would have been

reasonable for the jury to reach a different conclusion, then

we must weigh the relative probative force of conflicting

testimony and the relative strength of conflicting inferences

that may be drawn from the testimony to determine whether

the jury has failed to give the evidence the weight it should

be accorded” (People v. Cade, 203 A.D.3d 1221, 12211222, 164 N.Y.S.3d 288 [2022] [internal quotation marks,

brackets and citations omitted]). Our weight of the evidence

“analysis entails viewing the evidence in a neutral light and

giving deference to the jury's credibility assessments” (People

v. Kiah, 156 A.D.3d 1054, 1055, 67 N.Y.S.3d 337 [2017]

[internal quotation marks and citations omitted], Ivs denied

31 N.Y.3d 981, 984, 77 N.Y.S.3d 659, 662, 102 N.E.3d 436,

439 [2018]).

*3 According to the victim's testimony at trial, her

relationship with defendant, who shares her Muslim faith,

was brief and tumultuous, marked by her increasing fear of

defendant, who verbally abused her and prevented her from

seeing her friends or moving about freely. The tension in the

relationship escalated, culminating in the events giving rise to

the charges in this case. On the evening of August 22, 2018,

the two argued, and the victim attempted to find a place on

her college campus where defendant would not find her, so

she could study for an exam that she was scheduled to take

the next morning. Defendant, however, ultimately found her

and slept beside her while she studied all night.

On the morning of August 23, 2018, according to the victim,

she wanted to take a shower before her exam, so they left

the victim's car on campus and went in defendant's car to

their shared residence, a recreational vehicle (hereinafter the

RV). While in the RV, the two continued the argument that

had begun the night before, wherein the victim was telling

defendant that their relationship was not working. Defendant

shouted that it was not for the victim to decide whether to

leave or stay. He repeatedly told her “your ass is mine,” and

said that he would be the one to decide whether to kick her

out of the RV and his life. He threatened to have her deported

and to cause her family to be ashamed of her. The victim, who

by this point was in the bathroom wearing only underwear,

felt frightened for her life and tried to call the police, but

People v. Khalil, — N.Y.S.3d —- (2022)

2022 N.Y. Slip Op. 03950

defendant grabbed her phone from her, leaving marks on her

wrists, and began taking pictures of her. He then locked the

door of the RV, closed the curtains, and told the victim that

she was not leaving until he told her to. The victim testified

that defendant then took her perfume and a piece of cotton

and began cleaning under her fingernails, telling her that he

was removing his skin from where she had scratched him so

it would appear that “nothing ha[d] happened.” The victim

missed her exam that morning.

in a bathing suit. As a result of these messages, the victim's

family disowned her, although they later reconciled.

*4 The deputy testified and corroborated the victim's version

of events. The People also introduced the video taken by

defendant during the search for the victim's belongings, as

well as text messages between defendant and the victim.

Additionally, the People presented testimony from an expert

witness regarding the victim's Muslim culture. This witness

testified that Muslim women are often reluctant to report

domestic abuse because they can be seen as “tarnished,” and

honor killings can occur when a woman has been perceived

as behaving in a manner of which her male family members

do not approve. A witness who encountered the victim on

August 23,2018 testified that she would not make eye contact

and kept looking behind her. One of the friends who received

an email from the victim that day testified that she indicated

in the email that she feared for her life. The triend testified

that upon seeing the victim later at the safe house, she was

disoriented and crying.

The victim later convinced defendant to drive her to a doctor's

appointment and then back to campus to speak to her adviser,

but defendant refused to return her phone to her. She did not

tell anyone at the doctor's office what was happening, but she

did email two friends while she was at school, asking for help

and telling them that she was in trouble. The victim asked

one friend to pick her up, and the friend agreed, but defendant

picked her up before the friend arrived. Defendant and the

victim drove around for a time, and when they pulled up to

a stop sign, the victim tried to exit the vehicle, but defendant

kept driving and ran through two red lights. He then drove

to an isolated area and began searching her for recording

devices. The victim again tried to run away from the car but

defendant ran after her and brought her back. Defendant then

went to a drive-through window to purchase coffee, keeping

the receipt and telling her it was proof that they were having

“a regular day” and “nothing has happened.” Ultimately, the

victim jumped out of the car while it was still moving and fled

into a church. A couple she encountered there gave her a ride

back to her campus. She met with a campus security officer,

who took pictures of the marks on her wrists, after which she

spent the night in a safe house.

Defendant testified on his own behalf. According to

defendant, on the morning of August 23, 2018, he and the

victim both overslept, causing the victim to miss her exam.

The two drove to the victim's appointments together and went

out to eat. Defendant testified that at one point, the victim

became suicidal, and she got out of the car and purposefully

tried to get hit by another car. He ran after her and asked her to

come back to the car, and she complied. Eventually, defendant

dropped the victim off at the church and, at that point, based

on something the victim had said, defendant was concerned

for his own life and the lives of his family.

On August , 24, 2018, according to the victim's testimony,

she returned to the RV with a sheriffs deputy to retrieve her

belongings, but defendant initially refused to let them enter.

Defendant eventually relented, but used his cell phone to film

the victim and the deputy. The victim had trouble finding her

belongings, which were strewn about the RV in places where

she did not keep them. She found her purse, containing her

wallet, credits cards, driver's license and keys, “hid[den] in the

back side of the bed.” The deputy lifted a mattress and found a

folder containing the victim's important personal documents.

When the victim located her phone under a pile of other items,

the SIM card was missing. Upon finding the SIM card and

placing it back in the phone, the victim discovered that the

phone had been used to send messages to her family stating “I

am a whore,” that she was dating a Christian man, and that she

had a sexually transmitted disease, as well as pictures of her

Turning to defendant's legal sufficiency challenge with

respect to the count of grand larceny in the fourth degree,

pertaining to the victim's purse, as relevant here, a person

is guilty of this crime when he or she, with an intent to

deprive another of property by permanently withholding it,

steals property consisting of a credit or debit card (see Penal

Law §§ 155.00[3], 155.30[4]). “Larcenous intent is rarely

susceptible of proof by direct evidence, and must usually be

inferred from the circumstances surrounding the defendant's

actions” (People v. Michaels, 132 A.D.3d 1073, 1075, 18

N.Y.S.3d 723 [2015] [internal quotation marks and citations

omitted]). Viewing the evidence in the light most favorable to

the People, we conclude that there is legally sufficient proof

supporting each element of this crime - namely, that after the

victim had escaped from the vehicle, defendant took her purse

containing credit cards and brought it into the RV, where, after

’

People v. Khalil, — N.Y.S.3d —- (2022)

2022 N.Y. Slip Op. 03950

some difficulty, it was discovered hidden behind a bed, a place

where the victim normally did not keep it.

fell within the permissible statutory range, and taking into

account the seriousness of defendant's conduct, we perceive

no basis upon which to modify the aggregate sentence,

notwithstanding defendant's lack of a criminal history (see

People v. Kruppenbacher, 163 A.D.3d 1266, 1267, 80

N.Y.S.3d 740 [2018], Iv denied 32 N.Y.3d 1065, 89N.Y.S.3d

120, 113 N.E.3d 954 [2018]; People v. Edwards, 43 A.D.3d

496, 497, 840 N.Y.S.2d 238 [2007]).

As for defendant's weight of the evidence argument pertaining

to all of the counts, a different verdict would not have been

unreasonable, given that defendant testified and provided an

exculpatory version of the events in question. Ultimately,

however, “[t]he conflicting testimony of the victim and

defendant presented a classic he-said she-said credibility

determination for the jury to resolve” (People v. Kiah, 156

A.D.3d at 1056, 67 N.Y.S.3d 337 [internal quotation marks

and citation omitted]). Viewing the evidence in a neutral light

and deferring to the jury's determination that the victim's

version of events was credible, we find that the verdict is

supported by the weight of the evidence.

All Citations

Finally, we find defendant's claim that his sentence is harsh

and excessive to be unavailing. Noting that the sentence

— N.Y.S.3d —, 2022 WL 2162754, 2022 N.Y. Slip Op.

03950

End of Document

Egan Jr., J.P., Lynch, Aarons and Reynolds Fitzgerald, JJ.,

concur.

ORDERED that the judgment is affirmed.

. v-

; ' .

OCT

3 2022

BEFORE: ANTHONY CANNATARO, Acting Chief Judge

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

-againsi-

ORDER

DENYING

LEAVE

AHiYlED KHALIL,

Appellant.

Appellant haying applied for leave to appeal to this Court pursuant to Criminal Procedure

Law § 460.20 from an order in the above-captioned case;*

UPON the papers filed and due deliberation, it is

ORDERED that the application is denied.

Dated:

Anthony Cannataro, Acting Chief Judge

* Description of Order: Order of the Appellate Division, Third Department, entered June 16, 2022,

affirming a judgment of the Count}' Court, St. Lawrence County, rendered June 29, 2020.

•*

^tate of Betti jgork

Court of appeals

BEFORE: ANTHONY CANNATARO, Acting Chief Judge

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent,

-againstAHMED KHALIL,

ORDER

DENYING

RECONSIDERATION

Appellant.

Appellant having moved for reconsideration in the above-captioned case of an application

for leave to appeal denied by order dated September 26, 2022;

UPON the papers filed and due deliberation, it is

ORDERED that the motion for reconsideration is denied.

Dated:

NOV 3 0 2022

Anthony Cannataro, Acting Chief Judge

Additional material

from this filing is

available in the

Clerk's Office.

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