New York Criminal Law and Procedure

Conviction Reversed Because of Usurpation of Judicial Function by Law Clerk and Court Officer

This week, the Second Department reversed a defendant's conviction for Criminal Possession of a Weapon in the Third Degree.  In People v. Cassell (2d Dept. 5/26/2009), a case out of Kings County, a juror informed a court officer that she did not want to continue deliberations and that she wanted to go home.  The court officer escorted her outside.  The judge's law clerk informed the court officer to bring the juror back into the jury room to continue deliberations.  The court officer told the juror that she would have to continue deliberations and "I don't think you're going to be going home."  The juror complied.  Ten minutes later, the jury returned a guilty verdict.

The court reversed:

While a court officer can communicate with the jury during deliberations in connection with his or her administerial duty (see CPL 310.10[1]), the court officer's communication here conveyed a legal instruction to the juror regarding her duty and obligation to continue deliberating (see People v Torres, 72 NY2d 1007, 1008-1009; People v Ahmed, 66 NY2d 307, 312; People v Ciaccio, 47 NY2d 431, 437; People v Lara, 199 AD2d 419; People v Tucker, 182 AD2d 654]). This instruction should have been given to the juror directly by the trial court in the defendant's presence (see People v Bonaparte, 78 NY2d 26, 30; People v Rogoski, 194 AD2d 754, 755) and the trial court's failure to have done so is per se reversible (see People v Lara, 199 AD2d 419; People v Boyd, 166 AD2d 659). Additionally, it was error for the law clerk to assume a judicial function (see People v Ahmed, 66 NY2d at 311-312). Accordingly, the judgment of conviction must be reversed and a new trial ordered.

(LC)

AD2 - New Decisions

The Second Department has posted new decisions.  (LC)

Insurance Fraud Indictment Dismissed on Venue Grounds

Today, the First Department unanimously reversed the conviction in People v. Lightbody (1st Dept. 5/28/2009), on the facts, finding that the verdict was against the weight of the evidence.  The prosecution was for insurance fraud.  The defendant falsely reported to his insurance company that he had parked his car in Queens and that the car was thereafter stolen.  Defendant's false reports --- one to the police and the other to his insurance company --- were both made in Queens.  His car, however, was found burned in Bronx County. 

The court rejected the theory that Bronx County was a proper venue:

The People's theory of venue is that both the knowledge and fraudulent intent elements of insurance fraud (see Penal Law § 176.05[1]) occurred in Bronx County. A person may be convicted of an offense in an appropriate court of a county when "[c]onduct occurred within such county sufficient to establish...an element of such offense" (CPL 20.40[1][a]). Here, however, the evidence established that all the elements of the crime - namely, defendant's knowledge of the falsity of his report, his intent to commit insurance fraud, and the making of the false statements - occurred in Queens County, not the Bronx. While it is reasonable to infer that defendant brought or caused his car to be brought to the Bronx and burned, that conduct is not an element of insurance fraud; instead, it is part of the evidence establishing that defendant's claim was actually false.

...

Defendant's actions in relation to the car were not elements of insurance fraud. Therefore, as relevant to jurisdiction or venue, the elements of the crime occurred in Queens (see People v Cullen, 50 NY2d at 175; People v Leonard, 106 AD2d 470 [1984], lv denied 64 NY2d 1020 [1985]).

There are venue cases and Practice Commentaries that say that the venue provisions of the CPL should be interpreted "liberally."  This case demonstrates, however, that even a liberal interpretation of venue has its limits.  It is not enough if evidence of a crime's elements is found in a particular county.  At least one of the elements themselves must have been committed in the prosecution county.  Finally, "intent" and "knowledge" --- elements of insurance fraud --- are not, for venue purposes, "continuing."  They are "formed" or "developed," to use the First Department's language.

As a matter of strategy, it is curious that the People decided to prosecute this case in the Bronx.  The defendant was not charged with arson, which is the only act that occurred in the Bronx.  Given the common perception that Bronx juries favor the defense in criminal cases, coupled with the weak connection of the case to the Bronx, I would have expected this case to have been prosecuted in Queens where at least the argument could be made that the true injury --- the fraud --- occurred. 

It is interesting that the reversal was on the facts, no the law.  As the Court of Appeals noted in People v. Cullen, 50 N.Y.2d 168 (1980), a conviction can be reversed on the law "only if there is no evidence in the record upon which the jury could have found jurisdiction."  On the other hand, a reversal on venue grounds can also be predicated on the facts, in the exercise of the Appellate Division's weight-of-the-evidence review power.  By reversing on the facts here, was the First Department implicitly saying that the evidence was nevertheless legally sufficient?  I doubt it.  This was not a case where there were competing facts and the court found some more persuasive than others.  Here, the court seemed to be saying that there was no evidence to support the contention that an element was satisfied in the Bronx.  If that is the case, then the reversal should have been on the law.  I wonder if perhaps there were preservation problems that prevented the court from reversing on the law and it did not want to say that it was reversing in the interest of justice.  These are important points since review by the Court of Appeals is impossible when a reversal is on the facts.  (LC)

AD1 & AD3 - New Decisions

The First and Third Departments have posted new decisions.  (LC)

Judge Sotomayor: The State Criminal Justice Connection

Today, the President nominated U.S. Circuit Judge Sonia Sotomayor to the Supreme Court of the United States.  While much of the focus today has been on her time as a district and circuit judge, Judge Sotomayor began her legal career as an assistant district attorney in New York County.  According to the ABA, she spent five years in the Manhattan DA's Office, prosecuting robberies, assaults, murders, police brutality, and child pornography. She called the experience "wonderful training for a lawyer."  She later entered private practice before being appointed to the bench.  (LC)

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

AD2 - New Decisions

The Second Department has posted new decisions.  (LC)

AD3 Rejects Second Amendment Challenge to Penal Law Article 265

In People v. Perkins (3d Dept. 5/21/2009) (Stein, J.), a case out of Schenectady, the defendant got into an argument with another person outside of that individual's home.  The defendant drew a gun and fired two shots in the person's direction.  The Third Department unanimously rejected the defendant's challenge to Penal Law Article 265 on Second Amendment grounds:

We reject defendant's contention that the statutes under which he was convicted violate the Second Amendment of the US Constitution and Civil Rights Law § 4. Defendant's reliance on District of Columbia v Heller (___ US ___, 128 S Ct 2783 [2008]) is misplaced. While the United States Supreme Court concluded in that case that the Second Amendment confers a constitutionally protected individual right to keep and bear arms as a means of self-defense within the home, it also held that the right conferred by the Second Amendment — and, by extension, Civil Rights Law § 4 (see Chwick v Mulvey, 2008 NY Slip Op 22486[U], *19 [2008]) — is not absolute and may be limited by reasonable governmental restrictions (see District of Columbia v Heller, 128 S Ct at 2816).

Unlike the statute at issue in Heller, Penal Law article 265 does not effect a complete ban on handguns and is, therefore, not a "severe restriction" improperly infringing upon defendant's Second Amendment rights. Moreover, in our view, New York's licensing requirement remains an acceptable means of regulating the possession of firearms (see People v Morrill, 101 AD2d 927, 927 [1984]; People v Ferguson, 21 Misc 3d 1120[A], 2008 NY Slip Op 52112[U], *4 [NY City Crim Ct 2008]) and will not contravene Heller so long as it is not enforced in an arbitrary and capricious manner (see District of Columbia v Heller, 128 S Ct at 2819).

Here, defendant was not in his home at the time of the crime and did not have a valid pistol permit. Inasmuch as the relevant sections of the Penal Law are constitutionally sound and defendant's conduct did not conform to that which is protected by the Second Amendment and Civil Rights Law § 4, defendant's constitutional challenge lacks merit.

(LC)

AD1 & AD3 - New Decisions

The First and Third Departments have posted new decisions.  (LC)

AT2 - New Decisions

The Appellate Term, Second Department, has posted new decisions, including People v. Salanardi (2d App. Term. 5/21/2009).  There, the Criminal Court sua sponte dismissed the accusatory instrument on speedy trial grounds.  The Appellate Term reversed, citing the familiar principle that speedy trial motions must be in writing and upon reasonable notice to the People.  (LC)

Proposed Legislation Relating to Insanity Acquitees

When a person is found not responsible by reason of mental disease or defect, he or she is considered acquitted of the charge.  Nevertheless, an insanity acquitee can face many years of de facto incarceration at an Office of Mental Health secure or non-secure psychiatric facility.  The governing procedures for such confinement are in CPL § 330.20.

I came across two new bills that were recently introduced in the Assembly and Senate that relate to insanity acquitees:

• S.B. 5466, introduced by Senator Schneiderman, would require a court to revoke an insanity acquitee's firearm license, inquire of the person whether he possesses any firearms, and order the surrender of the firearms to the authorities.  This law would also apply to "incapacitated persons" under CPL Article 730 and persons subject to civil commitment orders under the Mental Hygiene Law.
• A.B. 8090, introduced by Assemblymember Gunther, would require insanity acquitees charged with designated offenses to register as sex offenders.

A.B. 8090 is by far the more controversial of the two bills.  It deviates substantially from the established principle that a verdict of not responsible by reason of mental disease or defect is, in fact, an acquittal.  Nevertheless, there is a strong public policy interest behind the legislation.  An insanity acquitee who was charged with a sex crime may, in fact, be more dangerous than someone who is found guilty.  Since the purpose of sex offender registration laws is to protect and inform the public about such dangers, the bill strikes me as a reasonable infringement on a patient's freedom.  (LC)

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

AD2 - New Decisions

The Second Department has posted new decisions.  (LC)

AT2 - New Decisions

The Appellate Term, Second Department, has posted new decisions.  (LC)

AD1 & AD3 - New Decisions

The First and Third Departments have posted new decisions.  (LC)

Procedures at the AD1

Justice David Saxe has an interesting article in today's Law Journal about how the Appellate Division, First Department, operates.  For those who practice before the First Department, the article is a gem of a read.  It is a rare glimpse into the internal procedures of the court. 

Justice Saxe discusses:

• how justices prepare for argument;
• the bench memoranda prepared by court attorneys;
• procedures during oral argument;
• how opinions are assigned and decisions are reached;
• motions; and
• disciplinary matters.

The article is free with registration.  (LC)

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

Warrantless GPS Tracking of Car Requires Warrant

Today, in People v. Weaver (Ct. App. 5/12/2009), the Court of Appeals held that the warrantless surveillance of a car through a global positioning system (GPS) tracking device is unconstitutional.  The court's decision was expressly on state constitutional grounds.  The court split 4-3, with Chief Judge Lippman writing for the majority and Judges Smith and Read writing dissents.

The factual record in Weaver was, unfortunately, not fully developed.  The court notes that it was "not clear from the record why defendant was placed under electronic surveillance."  In any event, the State Police placed a GPS tracking device -- known as a "Q-Ball" -- on the defendant's van and monitored his position for 65 days.  The defendant was later tried for burglary charges.  The GPS evidence was admitted to show that his vehicle was present at one of the crime scenes.

The majority's decision was based largely on the intrusive nature of GPS tracking technology.  The majority thus distinguished United States v. Knotts, in which a rudimentary tracking device was briefly attached to a chemical drum and the police monitored the drum's movements in real-time.

Here, we are not presented with the use of a mere beeper to facilitate visual surveillance during a single trip. GPS is a vastly different and exponentially more sophisticated and powerful technology that is easily and cheaply deployed and has virtually unlimited and remarkably precise tracking capability. With the addition of new GPS satellites, the technology is rapidly improving so that any person or object, such as a car, may be tracked with uncanny accuracy to virtually any interior or exterior location, at any time and regardless of atmospheric conditions. Constant, relentless tracking of anything is now not merely possible but entirely practicable, indeed much more practicable than the surveillance conducted in Knotts. GPS is not a mere enhancement of human sensory capacity, it facilitates a new technological perception of the world in which the situation of any object may be followed and exhaustively recorded over, in most cases, a practically unlimited period. The potential for a similar capture of information or "seeing" by law enforcement would require, at a minimum, millions of additional police officers and cameras on every street lamp.

... One need only consider what the police may learn, practically effortlessly, from planting a single device. The whole of a person's progress through the world, into both public and private spatial spheres, can be charted and recorded over lengthy periods possibly limited only by the need to change the transmitting unit's batteries. Disclosed in the data retrieved from the transmitting unit, nearly instantaneously with the press of a button on the highly portable receiving unit, will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity, is a highly detailed profile, not simply of where we go, but by easy inference, of our associations —political, religious, amicable and amorous, to name only a few — and of the pattern of our professional and avocational pursuits. When multiple GPS devices are utilized, even more precisely resolved inferences about our activities are possible. And, with GPS becoming an increasingly routine feature in cars and cell phones, it will be possible to tell from the technology with ever increasing precision who we are and are not with, when we are and are not with them, and what we do and do not carry on our persons — to mention just a few of the highly feasible empirical configurations.

Notably, in Weaver there was no real-time tracking.  Instead, the police planted the device on the car and then left.  They would occasionally download the information from the device by driving past the car and pressing a button on a receiver.  The information was wirelessly transmitted from the Q-Ball to the receiver.

Judge Smith challenged the majority's attempt to draw a line between "acceptable means of observation and more efficient, high-tech ones."  He noted that the police could have assigned a team of officers to track his movements to all of the private places mentioned in the majority's opinion.  The "newness" of GPS technology was, for Judge Smith, not a particular reason to find that the defendant had an expectation of privacy that was unjustifiably intruded upon:

The majority's answer is that the GPS is new, and vastly more efficient than the investigative tools that preceded it. This is certainly true — but the same was true of the portable camera and the telephone in 1880, the automobile in 1910 and the video camera in 1950. Indeed, the majority distinguishes Knotts on the ground that it involved a beeper — "what we must now ... recognize to have been a very primitive tracking device" (majority op at 8). I suspect that the GPS used in this case will seem primitive a quarter of a century from now. Will that mean that police will then be allowed to use it without a warrant?

The proposition that some devices are too modern and sophisticated to be used freely in police investigation is not a defensible rule of constitutional law. As technology improves, investigation becomes more efficient — and, as long as the investigation does not invade anyone's privacy, that may be a good thing. It bears remembering that criminals can, and will, use the most modern and efficient tools available to them, and will not get warrants before doing so. To limit police use of the same tools is to guarantee that the efficiency of law enforcement will increase more slowly than the efficiency of law breakers. If the people of our State think it worthwhile to impose such limits, that should be done through legislation, not through ad hoc constitutional adjudication, for reasons well explained in Judge Read's dissent (op of Read, J at 11-14).

Judge Smith was troubled by the trespass on the defendant's property -- the surreptious placement of the device on the car without the owner's permission.  He nevertheless concluded that this did not amount to a constitutional violation.

Judge Read would have affirmed for two additional reasons.  She argued that the majority failed to justify why it was deciding that the State Constitution required reversal and, second, that the court should have deferred to the Legislature.

Weaver is going to be an important decision.  It sets forth the court's hesitance to allow new technology to gather evidence without a warrant.  It re-emphasizes that the State Constitution is not a mere parrot of its federal counterpart.  Under appropriate circumstances, the Court of Appeals is willing to extend broader protections for civil rights and liberties than the U.S. Supreme Court.  The decision also raises questions about other new technologies, such as cell phone tracking data.  While such data is usually collected pursuant to court order, there may be an open question as to whether CPL Article 705, which governs so-called "trap and trace orders," comports with the State Constitution.  (LC)

COA - New Decisions

The Court of Appeals has posted a new decision:

• People v. Weaver (Ct. App. 5/12/2009) (Lippman, C.J.; Smith, J., dissenting; Read, J., dissenting) - warrantless GPS tracking of vehicle unconstitutional under the State Constitution

(LC)

Transfer of Probation Deprives Original Sentencing Court of Jurisdiction Over CPL 440 Motion

In People v. Mitchell (4th Dept. 5/7/2009), the defendant was convicted of felony DWI and Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree in Essex County.  He was placed on probation.  Since he resided in Franklin County, the defendant's probation was transferred to Franklin County under CPL § 410.80(1).  He thereafter filed a CPL Article 440 motion to set aside the conviction and sentence because the predicate conviction for DWI was not valid and therefore he was improperly convicted of and sentenced for a felony.  The defendant's motion was filed in Essex County Court.  That court denied the motion, asserting that it lacked jurisdiction.

The Appellate Division affirmed. 

CPL 410.80 (2) provides that a sentencing court may transfer the supervision of a defendant's probation to another jurisdiction within the state and that, upon such transfer, "the appropriate court within the jurisdiction of the receiving probation department shall assume all powers and duties of the sentencing court and shall have sole jurisdiction in the case." While it is true, as defendant points out, that the statute in question bears the title "Transfer of supervision of probationers," we do not agree that such a transfer only serves to divest the sentencing court of jurisdiction over issues that arise regarding defendant's compliance with the terms of his probation. The statute is explicit in entrusting "all powers and duties of the sentencing court" upon the court to which the matter has been transferred (CPL 410.80 [2]). As a result, under the express wording of the statute, we are constrained to conclude, despite the logistical problems that may result, once supervision of defendant was transferred to Franklin County, the Essex County Court no longer had jurisdiction to entertain defendant's CPL article 440 motion.

The key statutory language, in my view, is "shall have sole jurisdiction in the case."  The prior clause ("all powers and duties of the sentencing court") is ambiguous: Is deciding a CPL Article 440 motion a power and duty of a sentencing court or of the court in general?  Does it matter that a defendant files a CPL § 440.20 (motion to vacate sentence) rather than a CPL § 440.10 (motion to vacate judgment, which includes the verdict plus sentence)?  These questions are academic, because of the further statutory language that the receiving court has "sole jurisdiction in the case."  (LC).

AD2 - New Decisions

The Second Department has posted new decisions.  (LC)

When Attorneys Switch Sides

Prosecutors often leave district attorneys' offices to become defense attorneys.  Sometimes --- particularly in smaller counties --- defense attorneys will switch sides and become prosecutors.  A recent case from the Third Department provides a stark reminder that, in the latter category, special care must be taken to ensure that the attorneys' former clients are protected.

In People v. Good (3d Dept. 5/7/2009), the defendant was charged with a child sex offense.  His appointed attorney withdrew from representation after he was hired by the Broome District Attorney's Office.  Defendant's second attorney negotiated a plea bargain and the defendant entered a guilty plea.  At sentencing, the defendant appeared with a retained attorney, who moved to permit the defendant to withdraw his guilty plea, because (1) the defendant's plea was involuntary since the defendant was illiterate and (2) the second appointed attorney ineffectively represented him.  The retained attorney did not argue that the Broome District Attorney's Office should have been disqualified from prosecuting the defendant.

Despite this failure of preservation, the Appellate Division reached the issue in the interest of justice, concluding that it was error for the Broome District Attorney's Office, which now employed the defendant's first attorney, to prosecute the case:

The Court of Appeals has established that when a defense attorney who represents a defendant during the initial stages of a criminal proceeding becomes employed by the District Attorney's office that is prosecuting the defendant's ongoing case, the defendant and the public are given "the unmistakable appearance of impropriety and [the situation] create[s] the continuing opportunity for abuse of confidences entrusted to the attorney during the months of his [or her] active representation of defendant" (People v Shinkle, 51 NY2d 417, 420 [1980]; People v Gaines, 277 AD2d at 900-901; see also People v Abar, 99 NY2d 406, 410 [2003]; People v English, 88 NY2d 30, 33-34 [1996]; People v Herr, 86 NY2d 638, 641 [1995]; Matter of Schumer v Holtzman, 60 NY2d 46, 55 [1983]). The rule requiring disqualification when there is a "risk of prejudice attendant on the abuse of confidence, however slight" (People v Shinkle, 51 NY2d at 421), "is necessary to prevent situations in which former clients must depend on the good faith of their former lawyers turned adversaries to protect and honor confidences shared during the now extinct relationship. In those situations the risk of abuse is obvious" (People v Herr, 86 NY2d at 641).

Here, the record establishes that after five months of representation and two months prior to his plea, defendant's first assigned counsel accepted a position with the Broome County District Attorney's office, not "a 'huge' metropolitan office" (People v English, 88 NY2d at 34), and when County Court permitted counsel's withdrawal, defendant was not informed of any possible conflict and did not waive objection to the conflict (see People v Gaines, 277 AD2d at 901; cf. People v McCrone, 12 AD3d 848, 849-850 [2004], lv denied 4 NY3d 800 [2008]). At the time of the plea, defendant should not have had to "depend on the good faith of [his] former lawyer[] turned adversar[y]" (People v Herr, 86 NY2d at 641) to protect and honor confidences gained in that relationship. Indeed, in moving to withdraw defendant's plea, defendant's retained counsel relied upon conversations that he recently had with the first assigned counsel (now a prosecutor), who reportedly expressed willingness to testify at a hearing on the motion concerning knowledge that he acquired as defense counsel. We find that defendant's right to counsel was thereby violated given the substantial risk of an abuse of confidence and not merely an appearance of impropriety (see People v Herr, 86 NY2d at 641; Matter of Schumer v Holtzman, 60 NY2d at 55; People v Shinkle, 51 NY2d at 421). Accordingly, the judgment of conviction should be reversed.

(LC).

AT2 - New Decisions

The Appellate Term, Second Department, has posted new decisions.  (LC)

Charging Lesser-Included Offenses to the Jury

Justice McGuire, writing for a unanimous panel of the First Department, penned a thorough opinion in People v. Fernandez (1st Dept. 5/7/2009), discussing when a trial court should charge lesser-included offenses to the jury.  At issue in Fernandez was whether Supreme Court erred in declining the defendant's request to charge Criminally Negligent Homicide.  The defendant was charged and convicted of Manslaughter in the Second Degree for recklessly causing the death of another.

A lesser-included offense should not be charged to the jury "only where every possible hypothesis but guilt of the higher crime [is] excluded" (People v. Johnson, 45 N.Y.2d 546 [1978]).  Here, the difference between the two charges was their mens rea: recklessness versus criminal negligence.  The court noted that determining mens rea is a fact-laden inquiry that is, except in rare circumstances, "quintessentially a question for the jury."  The opinion then reviews the trial testimony and concludes that it was possible for the jury to conclude that the defendant acted with criminal negligence but not recklessness. 

Fernandez should be read by any criminal defense attorney in the First Department who is contemplating a tough fight on getting lesser-included offenses charged to a jury, particularly if his or her case involves a dispute over mens rea.  The opinion emphasizes that it is very difficult for a judge to rule, as a matter of law, that no reasonable view of the evidence supports a lesser, but not the greater, mens rea.  (LC)

AD1 & AD3 - New Decisions

The First and Third Departments have posted new decisions.  (LC)