THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. EMMANUEL JENKINS DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the facts by reversing those parts convicting defendant of attempted rape in the first degree under count 1 of the indictment and robbery in the first degree under count 2 of the indictment and dismissing those counts of the indictment, and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him, following a nonjury trial, of attempted rape in the first degree (Penal Law §§ 110.00, former 130.35 [1]), robbery in the first degree (§ 160.15 [3]), assault in the second degree (§ 120.05 [7]), and criminal possession of a weapon in the third degree (§ 265.02 [1]). The conviction arises from an incident that began when defendant, while working in the kitchen of a correctional facility where he was confined, followed a female civilian employee (victim) to a somewhat secluded area near a storage room. Defendant grabbed the victim's emergency alarm and attempted to prevent the victim from activating it, pressed a melted-down, hollowed-out pen against the victim's neck, fell on top of the victim and told her to be quiet, and then got up and ran away with the alarm approximately 20 seconds into the attack after the victim physically and verbally fought him off.

Defendant first contends that the conviction of attempted rape in the first degree is not supported by legally sufficient evidence and that the verdict with respect to that count is against the weight of the evidence. Even assuming, arguendo, that the conviction of attempted rape in the first degree is supported by legally sufficient evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]), we agree with defendant that the verdict with respect to that count is against the weight of the evidence.

“A legally sufficient verdict ․ may be against the weight of the evidence” (People v Kancharla, 23 NY3d 294, 302 [2014]; see People v Danielson, 9 NY3d 342, 349 [2007]). Indeed, under a weight of the evidence review, “[e]ven if all the elements and necessary findings are supported by some credible evidence, [we] must examine the evidence further” (Bleakley, 69 NY2d at 495; see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]). “If based on all the credible evidence a different finding would not have been unreasonable, then [we] must, like the trier of fact below, ‘weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ ” (Bleakley, 69 NY2d at 495). Thus, “[u]nlike a sufficiency analysis, weight of the evidence review requires [that we] act, in effect, as a second jury ․ by rendering [our] own determination of the facts as proved at trial ‘in light of the elements of the crime as charged to the [factfinder]’ ” (Kancharla, 23 NY3d at 302-303, quoting Danielson, 9 NY3d at 349; see People v Romero, 7 NY3d 633, 644 n 2 [2006]; Bleakley, 69 NY2d at 495).

In pertinent part, “a conviction for attempted rape in the first degree requires proof that the defendant ‘intended and came dangerously close to engaging in forcible sexual intercourse’ with another person” (People v Butkiewicz, 175 AD3d 792, 793 [3d Dept 2019], lv denied 34 NY3d 1076 [2019]; see Penal Law §§ 110.00, former 130.35 [1]). “[T]o constitute an attempt, the defendant's conduct must have passed the stage of mere intent or mere preparation to commit a crime” (People v Lendof-Gonzalez, 36 NY3d 87, 92 [2020] [internal quotation marks omitted]). “Although the act need not be the final one towards the completion of the offense ․, it must be so near to its accomplishment that in all reasonable probability the crime itself would have been committed but for timely interference” (id. at 92-93 [internal quotation marks omitted]). “Stated differently, the acts must come ‘dangerously near’ commission of the completed crime” (id. at 93).

Here, viewing the evidence in light of the elements of the crime in this nonjury trial (see Danielson, 9 NY3d at 349), we conclude that the People failed to prove beyond a reasonable doubt that defendant intended and attempted to have sexual intercourse with the victim. Beyond the surrounding circumstances, such as the location of the attack and defendant's insistence that the victim be quiet, the sole evidence presented by the People from which a factfinder could infer any sexual component to defendant's actions was the victim's testimony that, after they fell to the floor and defendant was on top of her, defendant's “hands were all over [her] at that point.” The victim further acknowledged, however, that defendant never physically reached underneath any of her clothing and never attempted to remove her pants. Unlike comparable cases, the People here adduced no evidence of a particularized sexual motivation or component underlying defendant's actions, nor did the People present evidence—beyond the generalized testimony that defendant's hands were “all over” the victim—that defendant attempted to engage specifically in sexual intercourse with the victim (cf. People v Clyde, 18 NY3d 145, 155 [2011], cert denied 566 US 944 [2012]; People v Barber, 247 AD3d 1471, 1472 [4th Dept 2026]; People v Lamagna, 30 AD3d 1052, 1053 [4th Dept 2006], lv denied 7 NY3d 814 [2006]). Even though “the absence of an explicit demand for sex does not undermine a finding of attempted rape” under circumstances from which a factfinder could reasonably conclude that the defendant intended and attempted to engage, specifically, in forcible sexual intercourse (People v Cruz, 170 AD3d 467, 468 [1st Dept 2019], lv denied 33 NY3d 975 [2019]), we conclude that the evidence is not strong enough to establish the existence of such circumstances in this case. While the prosecutor argued in summation that there was no explanation for defendant's conduct other than that he intended and attempted to rape the victim, we note that, on the evidence presented at trial, defendant could, for example, have been intending and attempting to forcibly touch the victim for sexual gratification (Penal Law § 130.52 [1]) or to sexually abuse the victim by subjecting her to other forms of sexual contact by forcible compulsion (§ 130.65 [1]; see former § 130.00). We thus conclude that, although it could be reasonably inferred from the evidence adduced at trial that defendant intended to engage in some type of criminal sexual conduct, it cannot be inferred beyond a reasonable doubt that he intended and attempted to engage in sexual intercourse by forcible compulsion (see People v Small, 74 AD3d 843, 844 [2d Dept 2010], lv denied 16 NY3d 800 [2011]; see generally People v Flores, 83 AD3d 1460, 1461 [4th Dept 2011], affd 19 NY3d 881 [2012]; People v Mais, 133 AD3d 687, 688 [2d Dept 2015], lv denied 26 NY3d 1147 [2016]). Consequently, we modify the judgment by reversing that part convicting defendant of attempted rape in the first degree under count 1 of the indictment and dismissing that count of the indictment.

Defendant next contends that the conviction of robbery in the first degree is not supported by legally sufficient evidence. As relevant here, “[a] person is guilty of robbery in the first degree when [the person] forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, [the person] or another participant in the crime ․ [u]ses or threatens the immediate use of a dangerous instrument” (Penal Law § 160.15 [3]). Defendant's contention that the evidence is legally insufficient with respect to the count of robbery in the first degree is preserved for our review only insofar as defendant specifically moved for a trial order of dismissal on the ground that the People had not met their burden of establishing the element of the use or threat of use of a dangerous instrument (cf. People v Simmons, 128 AD3d 1379, 1380 [4th Dept 2015], lv denied 26 NY3d 935 [2015]). We reject that contention.

“Dangerous instrument” is defined as “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” (Penal Law § 10.00 [13]). “Serious physical injury” is defined as “physical 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 the function of any bodily organ” (§ 10.00 [10]). “The object itself need not be inherently dangerous. It is the temporary use rather than the inherent vice of the object which brings it within the purview of the statute” (People v Carter, 53 NY2d 113, 116 [1981]). Thus, “any instrument, article or substance, no matter how innocuous it may appear to be when used for its legitimate purpose, becomes a dangerous instrument when it is used in a manner which renders it readily capable of causing serious physical injury” (id. [internal quotation marks omitted]).

Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that a melted-down, hollowed-out pen that, when pressed against a person's neck, was sharp enough to be described by the victim as having a “pointy edge”—which correction officers testified could be used as a weapon and which defendant initially called “weapon” during his own testimony—constitutes a dangerous instrument that was readily capable of causing serious physical injury, such as protracted disfigurement, impairment of health, or loss or impairment of a bodily organ (see People v Marishaw, 174 AD3d 401, 402 [1st Dept 2019], lv denied 34 NY3d 952 [2019]; People v Molnar, 234 AD2d 988, 988 [4th Dept 1996], lv denied 89 NY2d 1038 [1997]).

We nonetheless agree with defendant's further contention that the verdict with respect to the count of robbery in the first degree is against the weight of the evidence because the People failed to prove beyond a reasonable doubt that he intended to permanently deprive the victim of the emergency alarm. “In order to sustain a conviction for robbery in the first degree the People must establish that [the] defendant had the requisite intent—that is, larcenous intent. Larcenous intent means the ‘intent to deprive another of property or to appropriate the same to [the defendant] or to a third person’ ” (People v Medina, 18 NY3d 98, 103 [2011], quoting Penal Law § 155.05 [1]; see § 160.00). The terms “deprive” and “appropriate” are specifically defined in Penal Law § 155.00 (3) and (4), respectively, and connote a purpose “to exert permanent or virtually permanent control over the property taken, or to cause permanent or virtually permanent loss to the owner of the possession and use thereof” (People v Jennings, 69 NY2d 103, 118 [1986] [internal quotation marks omitted]; see Medina, 18 NY3d at 105; People v Terranova, 147 AD3d 1086, 1087 [2d Dept 2017], lv denied 29 NY3d 1087 [2017]). Thus, “[t]he mens rea element of larceny ․ is simply not satisfied by an intent temporarily to use property without the owner's permission, or even an intent to appropriate outright the benefits of the property's short-term use” (Jennings, 69 NY2d at 119).

Here, the undisputed evidence, including from the People's own witnesses, established only that defendant picked up the alarm when he ran away to the correction officers’ kitchen desk, where he immediately threw or dropped the alarm (see generally People v Wright, 63 AD3d 1700, 1702 [4th Dept 2009], revd on other grounds 17 NY3d 643 [2011]; People v Garland, 125 AD2d 328, 329 [2d Dept 1986], lv denied 69 NY2d 827 [1987]). Given defendant's actions and considering in particular the incarceratory setting, in which defendant could not have expected to gain permanent possession of a civilian employee's emergency alarm device, we conclude that the People failed to prove beyond a reasonable doubt that defendant intended to permanently deprive the victim of the alarm (see generally Wright, 63 AD3d at 1702; Garland, 125 AD2d at 329). We therefore further modify the judgment by reversing that part convicting defendant of robbery in the first degree under count 2 of the indictment and dismissing that count of the indictment.

Nonetheless, with respect to defendant's conviction of the remaining counts, we reject defendant's contention that the evidence is legally insufficient to support the conviction of those counts and that the verdict is against the weight of the evidence with respect to them (see generally Bleakley, 69 NY2d at 495).

Defendant additionally contends that he was denied effective assistance of counsel because County Court, in rendering its verdict, may have conflated the standard for a trial order of dismissal and the standard of proof for a conviction, and defense counsel failed to object thereto. That contention is devoid of merit. “[I]n a bench trial, it is presumed that the [court] sitting as the trier of fact made [its] decision based upon ‘appropriate legal criteria,’ ” including the reasonable doubt standard of proof for a conviction (People v Marvin, 216 AD2d 930, 930 [4th Dept 1995], lv denied 86 NY2d 844 [1995]; see People v Moreno, 70 NY2d 403, 406 [1987]). The record in this case establishes that the court articulated and applied the correct standard in denying defendant's initial and renewed motion for a trial order of dismissal (see CPL 290.10 [1] [a]; People v Aleynikov, 31 NY3d 383, 395-396 [2018]), and there is no indication that the court subsequently rendered its verdict “under a ‘standard of proof less exacting than proof beyond a reasonable doubt’ ” (People v Neff, 287 AD2d 809, 810 [3d Dept 2001]; see Marvin, 216 AD2d at 930). Defense counsel's “failure to ‘make a motion or argument that ha[d] little or no chance of success’ ” does not amount to ineffective assistance (People v Caban, 5 NY3d 143, 152 [2005]). Finally, to the extent that defendant's contention is based on defense counsel's allegedly inadequate or erroneous advice concerning defendant's waiver of a jury trial, that contention involves matters outside the record on appeal and therefore must be raised by way of a CPL article 440 motion (see People v Evans, 206 AD3d 1613, 1614 [4th Dept 2022], lv denied 38 NY3d 1133 [2022]; People v Ashkar, 130 AD3d 1568, 1569-1570 [4th Dept 2015], lv denied 26 NY3d 1142 [2016]).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court