New York Criminal Law and Procedure

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

AD2 - New Decisions

The Second Department has posted new decisions.  (LC)

AD3 Details Reasons for Not Lowering Sentence in the Interest of Justice

Intermediate appellate courts have the power to reduce a defendant's sentence as an exercise of discretion and in the interest of justice, notwithstanding the legality of the sentence or the lack of abuse of discretion by the sentencing court.  See CPL § 470.15(6)(b).  Typically, an Appellate Division will state summarily either that it is or is not reducing in the interest of justice.  Rarely does the court explain why.

In People v. Williams (3d Dept. 9/24/2009), a unanimous panel of the Third Department affirmed a defendant's sentence of 1-to-3 years for Vehicular Manslaughter 2º and DWI.  In refusing to reduce the sentence, the court stated:

While we acknowledge that this Court has broad, plenary power to modify a sentence that it considers unduly harsh or severe, such is only done in extraordinary circumstances or where the trial court has abused its discretion, which we fail to find here. While there may have been mitigating factors present that County Court considered in issuing defendant's sentence, the presentence investigation report detailed her "self absorption" and "apparent indifference to the life she took." Thus, noting that it was considerably less than the possible maximum, we decline to disturb defendant's sentence.

(citations omitted).  (LC)

AD1 & AD3 - New Decisions

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

COA & AD1 - New Decisions

The Court of Appeals announced a new decision today in People v. Kolupa (Ct. App. 9/22/2009) (SSM), finding that the defendant failed to preserve his claim that the People did not corroborate a child victim's testimony.  Although a motion to dismiss was made at the close of the People's case, the defendant went on to present his own evidence but did not renew his original motion.

There are also new decisions from the First Department.  (LC)

Field Trips for Insanity Patients?

This week, Washington State's mental health system came under fire after Phillip Arnold Paul, an insanity acquittee -- a person found not guilty by reason of insanity ("mental disease or defect" in New York lingo) -- escaped during an outing to a state fair.  The outing had been arranged by the mental hospital.  He was captured Sunday afternoon.  Paul's escape was apparently motivated by a judge's refusal to grant his request, earlier this month, to be transferred to a residential facility.

Insanity acquittees are not convicted criminals; rather, they are considered patients entitled to rehabilitation and treatment.  In New York, a person acquitted by reason of mental disease or defect is usually first committed to one of two secure facilities run by the state Office of Mental Health.  These facilities look and feel like prisons, complete with barbed wire, metal detectors, and armed guards.  Patients remain in state custody until they are no longer a danger to themselves or society.  Some patients are so ill that they remain in secure custody for the rest of their lives.

A patient who is no longer dangerous, but still requires in-patient treatment, is transferred to one of many non-secure facilities around the state.  Eventually he or she can be released into the community under an order of conditions.  Each level in the step-down process requires judicial consent.  OMH, the patient (represented by Mental Hygiene Legal Service, an arm of the Appellate Division), and the District Attorney are each given an opportunity to present evidence and be heard before a patient is transferred from secure to non-secure custody and from non-secure custody to full release.

Furloughs --- temporary releases from non-secure facilities into the community --- serve a therapeutic purpose.  Many patients begin their reintegration into society with one-on-one trips with their psychiatrist to the bank, grocery store, and the park.  The psychiatrist or other professional is able to observe how the patient handles the stresses of being off-grounds.  Later, OMH may seek furloughs of ratios of several patients to one professional.  Eventually, the patient may go on unsupervised and even overnight furloughs into the community.

CPL § 330.20(10) governs furlough applications, which can only be made by OMH and only if the agency believes "consistent with the public safety and welfare of the community and the defendant, the clinical condition of the defendant warrants a granting of the privileges authorized by a furlough order."  If the court finds public safety and welfare of the community and the defendant would be served by a furlough order, it must grant the application. 

In my view, Phillips Arnold Paul would never have been granted a furlough order in New York.  During recent releases to the residential facility, the patient's mental status deteriorated.  He escaped from a mental hospital in 1990; during his re-apprehension, he injured a deputy sheriff.  His underlying crime was particularly heinous: a strangling and slashing of a 78-year-old who the patient believed was a witch casting spells on him.  Based on these facts, particularly the recent decompensation and a judge's finding earlier this month that he was dangerous, it is tough to say that the public safety would be served by even supervised visits to the community.  (LC)

Cyrus Vance Wins Manhattan D.A. Primary

This week, Cyrus Vance defeated his opponents, Richard Aborn and Leslie Crocker Snyder, to secure the Democratic Party nomination for District Attorney of New York County; with no Republican opponent in the general election, he has all but secured the position currently held by long-time DA Robert Morgenthau.  Here is a roundup of news reports about Vance's election and the changes he intends to bring to the office: NY1, New York Times, New York Post, Daily News (plus the questionnaire Vance submitted to the News), and the Associated Press.  (LC)

AD2 - New Decisions

The Second Department has posted new decisions.  (LC)

AD3 - New Decisions

The Third Department has posted new decisions.  The criminal cases are all Anders affirmances.  (LC)

AT1 - New Decisions

The First Appellate Term has posted a new decision.  (LC)

COA - New Decision

The Court of Appeals has announced a new decision: People v. Mayo (Ct. App. 9/15/2009) (SSM).  The case involved constructive possession of crack-cocaine.  The issue was the sufficiency of the evidence presented to the Grand Jury.  The court's opinion in full:

The order of the Appellate Division should be affirmed. The evidence presented to the grand jury was legally sufficient to establish that defendant constructively possessed 96 glassine bags containing crack/cocaine recovered from underneath clothing on an apartment's bedroom floor. Specifically, there was evidence that when the police unexpectedly arrived at the apartment, defendant was getting dressed in the apartment's small 8' by 10' bedroom; that his 18-month-old child was present in the apartment; that a plastic bag containing 47 small glassine bags containing crack/cocaine was in plain view on the bedroom dresser; that the additional 96 glassine bags containing crack/cocaine recovered from the bedroom floor were packaged similarly to the drugs recovered from the dresser; and that defendant was in close proximity to the drugs on both the dresser and the floor. Further, the grand jury could have reasonably inferred that the drugs did not belong to the apartment's lessee by virtue of the fact that she volunteered the location of the additional drugs in a manner that prevented the defendant and his accomplice from overhearing. This evidence, considered together, made out a prima facie case that defendant exercised dominion and control over the contraband (People v Manini, 79 NY2d 561, 573-575 [1992]).

(LC).

Plain Language in Accusatory Instruments?

The Federal Rules of Civil Procedure require civil complaints to plead a "short and plain statement of the claim."  In contrast, New York criminal law does not require accusatory instruments to be plain.  Rather, CPL § 100.15 provides, "The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges."  In most cases when an instrument is drafted by a prosecutor, the factual part is confusing, full of legalese, and incomprehensible to a lay person.  For example:

Deponent states that he is informed by Police Officer John Smith that, at the above time and place, the defendant had in his possession, in his right hand, a ziplock bag containing a white rock-like substance.  Deponent is further informed by informant that, according to his training and experience, which includes training in the recognition of controlled substances and their packaging, the aforementioned white rock-like substance is alleged and believed to be CRACK-COCAINE.

Deponent further states that defendant stated, in sum and substance: OK, YOU GOT ME. I'M SORRY. CAN I GET A D.A.T. NOW?

While technically complying with CPL § 100.15, this accusatory instrument is confusing.  Who or what is a "deponent"?  Why is a cop an "informant"?  Who did the defendant make the statement to?  Why is that Smith, not the deponent, knows the defendant had drugs?  Why all the legalese about training and experience?

While CPL § 100.15 does not require a plain statement of the facts, it certainly does not prohibit it.  The following recitation would be sufficient:

Police Officer John Smith told me that he saw the defendant with a bag in his right hand.  Inside the bag were white rocks.  Officer Smith told me that he has training and experience in identifying controlled substances.  He believes that the rocks he saw in the bag were crack-cocaine.

Later, while I was booking the defendant at the precinct, he spontaneously stated, in substance: OK, YOU GOT ME. I'M SORRY.  CAN I GET A D.A.T. NOW?

Indeed, the simple substitution of "deponent" with I/me makes the instrument much easier to read. 

Plain language in accusatory instruments would have the following advantages:

• Complainants, particularly civilians, would have a better idea of what they are signing and swearing to.
• If the instrument is used at trial (for example, to impeach a witness), the jury would have a better understanding of what the instrument means.
• Lawyers and judges would have an easier time of deciphering what the evidence is against the accused, particularly in the pressured environment of an arraignment part.

(LC)

Thoughts on the Grand Jury ... by a Former Grand Juror (updated)

Today's Daily News has an interesting piece by Michael Aronson, who recently served on a Grand Jury in New York County.  Overall he appears to have had an unpleasant experience.  Among his complaints:

• The Grand Jury is a rubberstamp for prosecutors.  He cites the following statistic, "Of about 125,000 adult felony arrests in Manhattan in the last five years, grand juries have only dismissed charges three times."
• An A.D.A. refused to give him a written copy of the general instructions for grand jurors. 
• A.D.A.'s had to be reminded to leave physical evidence with the Grand Jury rather than taking it outside the room during deliberations.
• The Grand Jury was not provided with a copy of the Penal Law.
• Grand jurors were dissuaded from notetaking: "As for note-taking, which is fully permitted under the law, grand jurors are counseled against doing so and given three reasons why it's a bad idea."
• The instructions state that the Grand Jury "should" indict if it finds reasonable cause that the defendant committed a felony; however, the law states that the Grand Jury "may" indict.

The Grand Jury has certainly been no stranger to criticism that it is a rubberstamp for prosecutors.  However, I have never heard of the dismissal statistic Mr. Aronson cites.  In fact, I thought "no bills" are quite common, as are reduction of charges and directions to file charges against juvenile offenders in Family Court.  UPDATE: Indeed, DCJS' report of adult felony arrests by county shows that there have only been 3 "no bills" in New York County in the last five years. Other counties, such as the Bronx, show higher numbers.  Does anyone know if the DCJS data is accurate?

I agree with Mr. Aronson that grand jurors should be given a copy of the preliminary instructions.  Indeed, CPL § 190.20(5) requires that each grand juror receive a written copy of CPL Article 190.

The Grand Jury should not be left with a copy of the Penal Law.  Jurors are not expected to be trained in statutory interpretation.  Thus, the Grand Jury's legal advisor, either the court or prosecutor, is required by CPL § 190.25(6) to instruct the Grand Jury on the law.  Indeed, this advice must be recorded in the minutes of the proceeding.  This advice may be a recitation of the statutes, but often it will include an explanation of the relevant provisions, thus saving the Grand Jury from having to sort through unnecessary sections of the Penal Law to discern the elements of applicable offenses.

Regarding note-taking, the CJI model instructions for the empaneling of a Grand Jury states, "Note-taking by grand jurors is neither prohibited nor encouraged."  Similarly, the CJI instructions do not state that a Grand Jury "should" indict, only that it "may" indict if it finds sufficient evidence and cause to do so.  (LC)

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

COA, AD2, & AD3 - New Decisions

The Court of Appeals, Second Department, and Third Department have posted new decisions.  (LC)

COA - New Decision

There is a new decision from the Court of Appeals: People v. McDaniel (Ct. App. 9/1/2009) (SSM), holding that trial counsel was not ineffective.  (LC)

AD1 - New Decisions

The First Department has posted new decisions.  (LC)