New York Criminal Law and Procedure

Reversal for right to public trial violation

In a very brief opinion, the First Department reversed the conviction in People v. Gray (1st Dept. 8/18/2011) because the trial court ordered the complete closure of the courtroom during the undercover's testimony.  The Defendant requested that certain family members be allowed to stay, but the court summarily rejected the request without comment.  Of particular concern to the First Department was that "the record does not otherwise show that the court considered whether there existed any reasonable accommodations that would have protected the public nature of the criminal proceedings."  The court reiterated that "trial courts are required to consider alternatives to closure even when they are not offered by the parties."  

The lesson for trial courts and for prosecutors is to make a proper record that explicitly considers alternatives to complete closure.  (LC)

Is mere presence at a crime scene itself a crime?

As every first year law student knows, mere presence at the scene of a crime is not sufficient to impose criminal liability on a defendant.  The actus reus requirement mandates that a person do something (or fail to comply with a duty imposed by law) or affirmatively aid and abet someone else in the commission of a crime.  

As we blogged about last week, new increased penalties have taken effect for Knowing Presence at an Animal Fight, N.Y. Agriculture and Markets Law § 355(5).  What was previously a violation is now a Class B misdemeanor.  It criminalizes: "[t]he knowing  presence  as  a  spectator  at  any  place  where  an  exhibition of animal fighting is being conducted."  It is, to my knowledge, the only crime on the books in New York that runs counter to the rule that mere presence is not a crime.  (The only other offense I can think of is Trespass, but even that statute requires an affirmative act of entering or remaining unlawfully.)

That is not to say that the statute is unconstitutional.  The "mere presence" rule comes from case law interpreting the actus reus and accomplice liability statutes.  The Legislature is free, I suppose, to make mere presence a crime under circumstances as it sees fit.  Here, punishing and, thus, deterring the audience to animal fighting is an important part of shutting down animal fighting rings.  Without an audience betting on and cheering on the fight, promoters of the fight will have little to gain.  (LC)

Rethinking Criminal Law on the bar exam

Last week, thousands of aspiring lawyers took the bar exam.  In New York, Criminal Law and Criminal Procedure are tested on both the Multistate Bar Exam and state portions of the bar exam.  Including these subjects on the "New York day" makes perfect sense to me.

The MBE is a different matter altogether.  The MBE is a six hour, 200 multiple choice question exam that is administered in most states.  Both questions and their answers are developed by the National Conference of Bar Examiners.  "The questions on the examination are designed to be answered by applying fundamental legal principles rather than local case or statutory law," says the NCBE.  What are the fundamental legal principles that apply to Criminal Law?  Most bar takers are taught to look to the common law, Model Penal Code, and modern statutory developments to ascertain these principles.

But this is unrealistic and unworkable.  Putting aside Criminal Procedure, which does have a core set of U.S. Supreme Court decisions that make up its framework, there is no such thing as "fundamental legal principles" in Criminal Law.  Very few states still have a common law approach to the subject.  Nearly every state's Criminal Law is governed by the "local case or statutory law" that the MBE rejects.  Common law, MPC, and modern statutory developments often conflict with one another.

There are some things that states' "local case or statutory law" have in common—mens rea, actus reus, causation, and other general principles.  But even with these broad categories, the details are so numerous and varied that it is difficult just to ascertain which rules most states follow.  The NCBE "subject matter outline" for Criminal Law is not much help.  It is a half page long.  Students, bar prep companies, and others are left guessing which rules are applicable and which ones are not majority rules.

In my view, Criminal Law should be tested solely on the state portion of the bar exam.  (LC)

What is the "interest of justice" anyway?

"Interest of justice" is used in a couple of places in the CPL.  One is for a dismissal of an accusatory instrument at the trial level.  The test is well established and there is abundant case law explaining when a trial court should and should not grant a motion to dismiss in the interest of justice. 

There is another mention of the term in the CPL: Intermediate appellate courts (Appellate Division, Appellate Term, County Court)—but not the Court of Appeals except in death penalty cases—can reverse or modify a judgment in the interest of justice.  This allows the courts to reverse or modify for unpreserved questions and to reduce a sentence that is lawful but excessive.  Unfortunately, there is little guidance for courts to determine whether to exercise this discretion.

In a recent article, I explored the interplay of preservation and "interest of justice" jurisdiction.  I compare the federal and state standards and offer a test for courts to apply.  The article can be downloaded from my SSRN page.  (LC)

More thoughts on the Central Booking case

Last week, I blogged about People v. Osorio (NYC Crim. Ct. 6/21/2011) (Sciarrino, J.), in which the Criminal Court dismissed an accusatory instrument charging the Defendant with Promoting Prison Contraband 2º because Central Booking, which is operated by the police department, is not a "detention facility."  The Defendant was caught handing marijuana to another arrestee in Manhattan Central Booking. 

I am thinking that there was an alternative basis for dismissal.  Penal Law § 15.10 requires, for every crime, the commission of a "voluntary act" or a legally culpable omission.  Here, I think a strong argument could be made that there was not a voluntary act.  The People's theory for PPC 2º must have been that the Defendant "introduced" marijuana by bringing it into Central Booking.

But, importantly, the Defendant did not enter Central Booking voluntarily.  He was brought by the police.  While the underlying marijuana possession was illegal (no matter where it occurred), I do not think he could be charged with Promoting Prison Contraband—which depends on the possession being committed in a particular location—when the Defendant was forced into that location.  See Martin v. State, 31 Ala. App. 334 (1944) (police push drunk individual onto street and then arrest him for Public Intoxication; held, no voluntary act). 

(It is unclear from the accusatory instrument quoted in the court's opinion, but I read the opinion as saying that the Defendant was already in Central booking when the handoff occurred.  If this was not the case, and the Defendant was on the outside of the facility or holding pen, then my voluntariness argument would not prevail.)  (LC)

Thoughts on the culpable mental states ... and depraved indifference

Crimes that are not strict liability offenses require a "culpable mental state."  According to Penal Law § 15.00(6), this term "means 'intentionally' or 'knowingly' or 'recklessly' or with 'criminal negligence,' as these terms are defined in section 15.05." 

How then, could, the Court of Appeals hold in People v. Feingold that depraved indifference is a culpable mental state?  This seems to contradict the plain meaning of § 15.00, which identifies four and only four culpable mental states.  Curiously, this issue is not raised anywhere in Feingold or in any of the cases leading up to it, except for Register, which Feingold of course overruled.  In Register, the majority held:

Further evidence that “recklessness” is the mens rea, and the only mens rea, of the crime is to be found in other sections of article 15. Section 15.05, which was intended to “limit and crystalize” the culpable mental states involved in the criminal law (see Hechtman, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law, § 15.05), includes recklessness as one of those culpable mental states but it does not list “depraved indifference”. Moreover, subdivision 1 of section 15.15 provides that when an offense requires a particular culpable mental state, such mental state is designated by use of the terms found in section 15.05. When only one culpable mental state appears in a statute defining an offense, section 15.15 directs that the mental state is presumed to apply to every element of the offense. The only culpable mental state found in section 125.25 which defines depraved mind murder is recklessness; it is defined in subdivision 3 of section 15.05 (which prohibits evidence of intoxication to negative it) and the statute prescribes that it apply to every element of the offense.

The Register dissent draws mainly on history to make the argument that depraved indifference is its own culpable mental state.  It addresse the majority's Penal Law §§ 15.05 and 15.15 argument by contending without citation to authority, that the four culpable mental states were not meant to be an "all inclusive list."  But this seems to be contradicted by the plain text of Penal law § 15.00(6), which says that the term means intentionally, knowingly, reckless, or criminal negligence.  The Legislature did not appear to leave room for the court to read in new culpable mental states. (LC)

New case on Rape Shield Law

In People v. Scott (Ct. App. 5/3/2011) (Jones, J.) (7-0), three 8th grade girls went to a party and then to another house, where they drank, smoked marijuana, and engaged in sexual activity.  One of them alleged that a male minor (Steven A.) and the Defendant, a 23-year-old male, had sex with her, the latter against her will.  The trial court agreed with the People that evidence of sexual contact with Steven A. was inadmissible under the Rape Shield Law unless the People introduced evidence about the victim's bruising.  In addition, the Defendant was prohibited from elicitng from another witness that the victim stated that she was crying because she had sex with Steven A.

The Court of Appeals ducked the question of whether the witness' statement was admissible notwithstanding the Rape Shield Law, since it was relevant to a defense and in the interests of justice to do so.  The court declined to address the issue because the Defendant was acquitted of Rape 1º—forcible rape.  Instead, he was convicted of Rape 2º—statutory rape, which does not require evidence of force or lack of consent. 

So let's continue where the court left off.  What if the Defendant had been convicted of forcible rape?  One could argue that the evidence of the other sexual encounter should have been admitted since it would have gone to rebut the implication that she was crying because she had been forcibly raped.  On the other hand, the question is not just whether the evidence was relevant to a defense but also whether it is in the interests of justice to admit it.  Here, the court must take into account the strong policy reasons behind the Rape Shield Law.  In addition, the People were permitted to introduce the victim's statement to one of the other girls that she did not want to have sex with Defendant.  She made the statement while exiting the bedroom where she was alone with the Defendant.  She came out crying and wearing only a bed sheet.  The helpfulness of the second statement, purporting to explain her crying as a result of her encounter with Steven A., is ultimately undercut by the first, where she is crying and speaking about the incident with the Defendant.  Ultimately, in balancing the various interests, the court could have concluded that it was not an abuse of discretion to exclude the evidence.  (LC)

Gravity knives and testilying

I have previous written and blogged about testilying—the phenomenon of some police officers committing perjury to further their cases.  The police who commit testilying view it as a small indiscretion serving a greater good, the conviction of a criminal.  Testilying often comes about in the Fourth Amendment/suppression hearing context, where the police officer need only mouth certain "magic words" that establish probable cause, reasonable suspicion, or some other lesser standard.

In People v. Brannon (Ct. App. 5/5/2011) (Pigott, J.) (6-1), the issue was whether, in two companion cases, the police officers established sufficient reasonable suspicion that the defendants had gravity knives.  The Court of Appeals held that reasonable suspicion in the gravity knife context requires specific facts that led the police officer to believe that the object was a gravity knife and not some other type of knife.  But, ordinarily, a person cannot tell if an object is a gravity knife unless it is opened.  The court responded:

Reasonable suspicion, however, does not require absolute certainty that the knife the individual is carrying is a gravity knife. Rather, the issue is whether, under the circumstances, the officer possessed specific and articulable facts from which he or she inferred that the defendant was carrying a gravity knife.

Using this standard, the court was able to distinguish the two cases.  In Brannon, while the officer saw the "hinged top of a closed knife" and saw the "outline" of a knife in his pocket, he was unable to testify that it was a pocket knife.  However, in Fernandez, the officer's testimony was that he saw the "head" of a knife and "based on his experience that gravity knives are commonly carried in a person's pocket, attached with a clip, with the 'head' protruding."

Judge Jones dissented from Fernandez but concurred in Brannon.  He noted a key problem with the court's articulated standard:

In my view, had the officer in Brannon merely testified that he believed a gravity knife, and not a pocketknife, was present, then the outcome in that case would have been different. Instead of requiring the police and the People to articulate a specific factual basis for reasonable suspicion justifying these stops, in these types of cases, prosecutors will now be encouraged to present police officers who can describe their training and experience with gravity knives, and testify that a gravity knife, and not a "typical pocket knife", was observed. Given the highly intrusive nature of these stops, the acceptance of these conclusory statements at Mapp/Dunaway hearings as a minimal basis for the admission of evidence poses a significant danger.

(LC)

Necessity defense: Professor DeGirolami weighs in

My colleague, Professor Marc DeGirolami, posted on the Mirror of Justice blog a summary and critique of this week's decision in People v. Rodriguez (Ct. App. 3/24/2011) (Pigott, J.) (5-1-1).  The case involves the necessity/choice-of-evils defense.  The facts of the case are bizarre to say the least, but they raise an interesting question about when the defense should be available. (LC)

COA reduces Depraved Indifference Murder to Man 2º

In People v. Prindle (Ct. App. 2/22/2011) (4-3), the Defendant's trial for Depraved Indifference Murder occurred before Feingold overruled Register.  Thus, without objection, the trial court gave a Register-style charge to the jury.  The Court of Appeals, in a brief memorandum decision, passed on whether the Defendant's motion for trial order of dismissal adequately preserved his argument that the evidence was legally insufficient under Feingold.  Rather, applying the charge as actually given, the Court of Appeals concluded that the evidence was legally insufficient for Depraved Indifference Murder and reduced the conviction to Manslaughter 2º.  Using a cf. signal, the court distinguished People v. Gomez, 65 N.Y.2d 9 (1985).

The Defendant and a co-defendant were in the middle of stealing two snow plows when the police arrived on the scene.  The defendants sped off in a van.  During the chase, the Defendant, who was driving, collided the van with another vehicle; the passenger in that car died five days later from her injuries. 

Writing for a three-judge dissent, Judge Pigott noted the following facts as evidence that the Defendant's showed depraved indifference under Register:

• he drove at a high rate of speed through a residential neighborhood;
• he drove through several red lights;
• he drove into the oncoming lane of traffic on numerous occasions;
• he collided with a truck before hitting the victim's car two blocks later; and
• after hitting the truck, he sped through two more lights and continued driving into oncoming traffic.

Judge Pigott concluded that this case was worse than the facts presented in Gomez.  In that case, the driver, going at a high rate of speed, killed two children after striking two cars a block before.  The Court of Appeals, in affirming the depraved indifference murder conviction in Gomez, emphasized two factors: the defendant's excessive speed and the failure to brake.   Judge Pigott noted the same factors were present in Prindle.

Perhaps the cases are distinguishable, however.  The passenger in Gomez pleaded with the defendant to stop after hitting the first child.  Yet, the defendant sped up and drove his car onto the opposite sidewalk where a crowd was standing.  In my view, it is these facts that are particularly indicative of indifference to human life; they show that he was particularly wicked and did not care about the lives of other people.  On the other hand, perhaps this is a Feingold analysis and I am not properly looking at the case through a Register lens.  Under Register, the People did not have to prove that the defendant's mental state was subjectively depraved. Instead, they only needed to assess "the degree of risk presented by defendant's reckless conduct."  The defendant's thought processes after causing the first death and hearing his passenger's pleading were not important in Prindle because only the objective circumstances of the crime (e.g., the excessive speed and failure to brake) mattered.  So, although the majority in Prindle said that it was applying a Register analysis, I wonder if, in fact, it was looking for evidence of a subjective mental state that it found missing.  Given that the majority wrote only a brief memorandum decision, it is difficult to tell what facts it found missing from the record. (LC)

Is 30.30 a speedy trial statute?

People v. Farkas (Ct. App. 2/22/2011) (Lippman, C.J.) (7-0) is a run-of-the-mill CPL § 30.30 case.  The Defendant was accused of stealing a photographer's camera and punching him in the face.  The initial charge, however, was only for Assault 3º and the People stated ready for trial.  More than a year alter, the Grand Jury indicted the Defendant for Robbery 1º and related charges.  The Court of Appeals held that the theft-rleated charges "directly derived" from the initial accusatory instrument and thus all of the time excludable for the Assault charges would apply to the new charges. 

What is interesting about the court's opinion is its use of the phrase "speedy trial."  Throughout the opinion, the court refers to CPL § 30.30 as a "speedy trial statute."  It is no such thing.  CPL § 30.30 does not guarantee that a defendant must be brought to trial within a specified period of time.  Instead, it requires that the People state their readiness for trial by a certain date.  The rule is directed at the People and does not impose any temporal obligation on a trial court to start a defendant's trial.

CPL § 30.20, not § 30.30, is New York's speedy trial statute.  It states only that "the defendant is entitled to a speedy trial."  Case law has established factors that courts will look to in deciding whether a trial has been speedily commenced or not.

The distinction is an important one.  Once the People declare their readiness, CPL § 30.30 is satisfied (unless they fall back into unreadiness).  Thus, in post-readiness, delays attributable to calendar backlog do not lead to dismissal or bail reduction under CPL § 30.30.  Rather, court delays implicate the true speedy trial statute, CPL § 30.20, whose "fuzzy" factors test is difficult to satisfy.

The Legislature did not help matters by captioning § 30.30 as "Speedy Trial; Time Limitations," which only contributes to the confusion about this statute.   Still, the Court of Appeals has itself noted the distinction between CPL § 30.20 and § 30.30 in various decisions and, thus, I was surprised by the Farkas decision's reference to CPL § 30.30 as a "speedy trial statute."  (LC)

Depraved indifference under Suarez or Feingold? Doesn't matter, says the COA

Last week, the Court of Appeals decided an interesting depraved indifference murder case: People v. Taylor (Ct. App. 11/18/2010) (Jones, J.).  The defendant struck the victim over the head and then dumped her body on the roof of his building, knotting a plastic bag tightly around her head.  At trial, the defense made a motion for trial order of dismissal that specifically referenced Suarez.  On appeal, the defendant argued that People v. Feingold, which had been decided shortly after the judgment of conviction, required reversal.

The Court of Appeals first found that the legal sufficiency claim was properly preserved even though the defense only referenced Suarez at trial.  Suarez set forth two situations in which a one-on-one killing could be depraved, rather than intentional: (1) without intent to inflict serious injury or death, the defendant nevertheless abandoned a helpless victim in a situation in which he or she is likely to die; or (2) "acting with a conscious objective not to kill but to harm — engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim."  "Feingold, decided after defendant's conviction here, did not reject, but extended, Suarez's reasoning," said the court.  Feingold explicitly stated that depraved indifference was its own mental state.  Suarez stated the circumstances in which that mental stated could be proved.  Thus, preservation under Suarez was preservation under Feingold.

This holding underscores my long-held belief that there were actually two different legal principles evolving between Register and Feingold.  The first was the basic question of whether depraved indifference is a culpable mental state (this affects questions like whether intoxication is a defense).  The second is what amount of proof is required to show depravity.  Early post-Register cases afforded great deference to the jury.  Later cases (e.g., Suarez) limited the types of killing that could constitute depraved indifference.  

Turning to the merits, the court found that this was a classic, intentional, one-on-one killing.  The defendant struck the victim with a blunt object and then disposed of her body.  There was no torture or abandonment of a helpless victim.  Thus, the conviction was reversed.  (LC)

Ambiguous plea record creates sentencing confusion

In People v. Cornell (4th Dept. 7/9/2010), the court reversed an appeal of an Arson 2° conviction and agreed with the defendant's argument that the trial court failed to advise him that the sentencing would include a period of post-release supervision (PRS). 

The court emphasized that trial courts have a "constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences." People v. Ford, 86 NY2d 397, 402-403. Also, the court stressed that due process requires that the record establish a voluntary and intelligent choice among alternatives open to the defendant. Here, the court offered a sentence of 14 years plus a five year PRS period, which the defendant rejected. Then, after the trial began, the court had an off-the-record discussion with the defendant and defense counsel; after the discussion, the court reiterated, on-the-record, that it would sentence the defendant to no more than 14 years' imprisonment if he pleaded guilty to Arson 2°. However, this time, there was no mention of a period of PRS. Even though the defendant rejected the same offer earlier that day, he stated that he understood and accepted the offer. Later, he was sentenced to a determinate term of a imprisonment of 14 years and PRS of five years. 

The People argued that the plea need not be vacated because the rejected plea offer included an advisement, by the court, that the sentence would include PRS. However, the appellate court held that the record did not clearly establish that PRS was part of the sentence. Rather, the accepted period was a maximum of 14 years and did not clearly state any other conditions. So, the defendant was not necessarily informed that the sentence could potentially be 14 years of imprisonment plus the 5 years of PRS. The fact that the prosecutor mentioned a period of PRS earlier in the day did not excuse the plea court from fulfilling its constitutional duty. 

Judges Smith and Sconiers dissented, arguing that the record established that the defendant was advised of the PRS conditions and characterized the two plea discussions as "an ongoing plea allocution." Thus, there was no need for the plea court to reiterate that the sentence would include PRS.  

The case rests upon the interpretation of the plea record: specifically, whether two offers were made, or, as the dissent emphasizes, the record reflects an ongoing, uninterrupted negotiation. Apart from the constitutional duty for a defendant to completely understand his sentence and various conditions of it, the majority viewed the off-the-record commentary and the beginning of the trial as a sufficient interruption in the plea negotiations to establish two separate offers, each with different conditions. The best practice is, of course, to make the record abundantly clear and always state that PRS is mandatory and what the length of PRS will be at sentencing. (RB/LC)

Pleading a gravity knife charge

The Court of Appeals recently held that an unsupported conclusory statement in an accusatory instrument that an object is a per se weapon under Penal Law Article 265 is a violation of the reasonable clause requirement.  This amounts to a jurisdictional defect.

In People v. Dreyden (Ct. App. 6/15/2010) (Pigott, J.) (6-1), the defendant pleaded guilty to CPW 4° after a knife was found in his possession.  The plea was in exchange for a sentence of time served.  The defendant then appealed his conviction on the ground that the accusatory instrument was jurisdictionally defective, because it did not include any non-conclusory allegations sufficient to establish the basis of the arresting officer’s belief that the knife recovered from the defendant was a gravity knife.  The Appellate Term affirmed the judgment of conviction, holding that an accusatory instrument can satisfy jurisdictional requirements without containing the statutory criteria for a gravity knife.

The Court of Appeals reversed, holding that an accusatory instrument is jurisdictionally defective if it fails to supply the defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy.  An arresting officer can satisfy this test by briefly explaining how he or she formed the belief that the object observed met the statutory requirements.  A gravity knife has two requirements: (1) a blade that "is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force;" and (2) the blade, "when released, is locked in place by means of a button, spring, lever or other device."  Here, the accusatory instrument merely stated, in conclusory fashion, that the item was a gravity knife.

In dissent, Judge Smith agreed that the accusatory instrument was defective, but argued that the defect was not jurisdictional.  He noted that no element of the crime with which the defendant was charged was omitted from the accusatory instrument and asserted that the court failed to demonstrate how the defendant was deprived of fair notice or put at risk of double jeopardy by the defect.  Additionally, the dissent argued that the defendant’s failure to raise the jurisdictional challenge at the onset of his trial did not rise to the level of fundamental procedural irregularities that permit raising unpreserved issues at appeal.  Under People v. Agramonte, 87 N.Y.2d 765, 770 (1996), only errors that go to the essential validity of the proceedings conducted may be raised on appeal without being preserved below.  Finally, the dissent argued that calling this type of defect “jurisdictional” served no useful purpose and incorrectly increased the number of situations where trivial errors make the process of prosecuting and punishing offenders more difficult. 

I wonder if this case represents a backtrack from Kalin.  Kalin seemed to adopt a more flexible standard for judging facial sufficiency by focusing on the purposes of accusatory instruments (notice to the accused, guarding against double jeopardy violations, and enabling the defendant to prepare for trial).  This case seems to say that, with some crimes, the deponent must provide additional evidence to support the various elements of a crime. (MM/LC)

Defendant fails to make sufficient showing for suppression hearing

In People v. Scully (Ct. App. 5/6/2010), a unanimous Court of Appeals affirmed the defendant's conviction, rejecting his contention that the motion court erred in denying a hearing on his suppression motion. 

The facts were simple: Utica Police were executing a drug-related search warrant at a residence.  The warrant was for the second floor of the premises as well as two John Does and "any other person who may be found to have such property [drugs, paraphernalia, and guns] in his possession or under his control at the time of the execution of said warrant."  The police went to the first floor entrance where they heard the defendant coming down the stairs.  He asked what they wanted and the plainclothes police replied, "one," meaning a $20 rock of crack-cocaine.  The defendant opened the door and he was detained and searched.  The police found a gun, ammunition, and money.

The defendant's motion papers alleged only that the search warrant was issued without probable cause.  However, his papers did not demonstrate how or why there was a lack of probable cause.  As such, the allegations were pure legal conclusions and insufficient to entitle the defendant to a hearing.

This case serves as an important reminder to defense counsel to supplement their omnibus motion papers with specific facts that, if found to be true at a hearing and when applied to the law, yield the legal remedy they seek.  In other words, every legal conclusion must be supported by facts. 

Another issue in the case was standing.  After the police arrested the defendant, they went upstairs and searched the second floor residence.  Various drugs and drug paraphernalia were found there.  The defendant did not allege sufficient facts to show that he had standing to challenge the search.  Again, he alleged only that the warrant lacked probable cause.  (LC)

New COA case on witness bolstering and procedure for responding to jury notes

In People v. Ochoa (Ct. App. 2/16/2010) (PIgott, J.) (4-3) and People v. Figueroa (Ct. App. 2/16/2010) (Pigott, J.) (4-3), the defendants were tried jointly for a robbery.  The People alleged that the defendants forcibly stole a video game console from the complainant while the three of them and a fourth person were smoking crack-cocaine.  There were two issues on appeal: (1) whether the People improperly rehabilitated two impeached witnesses (the complainant and the fourth individual); and (2) whether Supreme Court properly responded to a note from the jury foreperson.

With respect to the witness rehabilitation issue, the complainant admitted that his testimony before the Grand Jury was inconsistent on several key points.  He explained that he was "confused" by the questions before the Grand Jury.  The prosecutor was allowed to ask the witness whether he was "confused" by other questions that concerned other aspects of the crime.  The other witness admitted to inconsistencies between her written statement to the police and her trial testimony.  The prosecutor was permitted to clarify whether the other information in the statement was correct.

The court found that both inquiries on redirect examination were proper because they explained or clarified the inconsistencies that were elicited on cross-examination.   The dissent responded, "This was not a case of clarifying or explaining a statement only partially examined by opposing counsel. This was an attempt to recast the entire testimony of two witnesses who had given many versions of the crime and surrounding events."

On balance, I think the majority got this issue right, although the case illustrates that one party's "clarification" is another's "bolstering."  A party attempting to rehabilitate a witness should avoid presenting the questions as a prior consistent statement (i.e., there were plenty of other more important statements that were not inconsistent and therefore the witness testified truthfully) but instead as clarification as to which of the prior statements were incorrect.

Regarding the second issue, after several days of deliberation, readbacks, and deadlocks, the jury announced it had reached a verdict.  The jury foreperson also sent a note to the judge stating that he had concerns about reading the verdict.  The court conducted an ex parte interview of the juror, during which the court explained how the verdict would be taken and the limited role the foreperson would play.  The juror "seemed relieved and said, 'Oh, okay, fine.'"  After the meeting, the court informed the parties of what had transpired; neither objected to the procedure.  The verdict was taken and the foreperson agreed that the verdict was his.

The Court of Appeals noted that it would have been a better practice for the trial court to have followed the procedures in CPL § 310.30: provide notice of the note and an opportunity to be heard to the parties before  it conducted its inquiry of the juror.  Nevertheless, the court found that the trial court did not abuse its discretion because the note was ambiguous and the subsequent conversation indicated that the juror was only as to the manner in which the verdict would be read.  Therefore, the inquiry was ministerial.  Since the parties could not have "provided a meaningful contribution" to the inquiry, their input was not required. 

The dissent, however, contended that the majority erred in considering the events after-the-fact (the substance of the conversation and the juror's response to the post-verdict polling) as evidence that the inquiry was ministerial. 

On this issue, I think the dissent has the better argument.  The only on-point case cited by the majority was People v. Hameed, 88 N.Y.2d 232 (1996).  But in that case the trial judge knew the inquiry would be ministerial because the juror's initial inquiry indicated that she wanted to know if she could attend church during sequestration.  Here, on the other hand, the juror's note was, to use the majority's description, "ambiguous."  This is precisely why the notice-and-be-heard provisions are so important.  What if the juror had said, "Well, I'm not comfortable reading the verdict because I was bullied into agreeing to it ..."?  I suppose the court could have told the juror to wait outside while he or she consulted with the parties, but by then the damage may have been irreparable.  The defense would have lost the opportunity to observe the initial questioning and the juror's reactions.  (LC)

COA decides curious 30.30 case

People v. Price (Ct. App. 2/11/2010) concerns the catch-all proviso in CPL § 30.30, which excludes time periods in which there are "exceptional circumstances."  In Price, the defendant was charged with Attempted Disseminating Indecent Material to Minors 1º based on an Internet chat with an undercover officer, posing as a 14-year-old girl.  While sexually explicit, the communications did not involve any exchange of sexual images.  The defendant was arraigned on the charges in a Suffolk County local criminal court.

Meanwhile, the Second Department had reversed a defendant's conviction under a similar set of facts.  That court held that a defendant could not be convicted for the crime in question unless there was a transmission of images.  The People obtained leave to appeal that case to the Court of Appeals.

Back to Price.  The Suffolk County District Attorney's Office, believing it could not obtain an indictment in light of AD2's ruling in the other case, decided against proceeding with an indictment against the defendant in Price.  Instead, it decided to wait until the Court of Appeals issued its ruling in the AD2 case on appeal.  And, indeed, the People's decision was fortuitous: The Court of Appeals reversed the AD2 in People v. Kozlow, 8 N.Y.3d 544 (2007) and held that a defendant could be convicted of the crime without transmitting images. 

The People then obtained an indictment in Price.  Meanwhile, more than six months had elapsed since the felony complaint was filed.  Accordingly, the defendant filed a motion to dismiss on CPL § 30.30 grounds.  Superior Court granted the motion and the Second Department affirmed.

The Court of Appeals likewise affirmed, holding that the timing of events with the Kozlow appeal did not amount to "exceptional circumstances" in Price. Chief Judge Lippman wrote:

Application of the exclusion under these circumstances would permit a scenario in which a criminal complaint could pend for an open-ended and potentially lengthy period on the mere prospect that a change in the law might render it again viable. As we stated in People v Cortes (80 NY2d 201 [1992]), '[l]egal rulings are routine events in criminal trials. The fact that a particular ruling may be erroneous does not by itself transform that ruling into an 'exceptional circumstance' (id. at 211-212).

The court recognized the unusual nature of the case and that the "People here were not in control of the ultimate circumstance that prevented them from being unable to proceed to trial --- the erroneous Appellate Division decision in Kozlow."  Nevertheless, it posited a number of alternatives that the People could have pursued, none of which I find particularly satisfying:

• seek a continuance from the local criminal court rather than litigate "exceptional circumstances" after the fact.  However, this would not have affected the substance of the court's § 30.30 analysis, only its timing.  The motion court would have still been bound to apply § 30.30 once six months had elapsed. 

• dismiss the felony complaint and refile if and when AD2 was reversed.  The court acknowledged in footnote one that this runs contrary to the plain language of People v. Osgood, 52 N.Y.2d 37 (1980), which held that when a felony complaint is dismissed, a subsequent complaint relating to the same offense relates back, for CPL § 30.30 purposes, to the date the original complaint was filed.  The court's response is essentially that Osgood could be confined to its facts and the People, in Price, could have "litigated [the issue] through the appellate process."  But Osgood's language is quite explicit, as is the CPL on the relation back of accusatory instruments.  Moreover, the court in footnote one never says that Osgood is bad law, only that it might not have applied in Price.  In fairness, the People were entitled to rely on Osgood and, for that matter, AD2's ruling in Kozlow.       Moreover, dismissal of the complaint would not have provided any real certainty to Price, who would have still been on notice that his case was not truly "over" just because the felony complaint had been dismissed.

Of course, part of the dissatisfaction with Price is that we know he should have been prosecuted because, in retrospect, AD2's decision in Kozlow was incorrect.  What I think the Court of Appeals was trying to do was to look at the case as if it had not reversed Kozlow.  Then, Price would have been pending for many months for naught and a defendant would have unnecessarily had his life inconvenienced by pending criminal charges.

All-in-all, Price is a troubling development in the CPL § 30.30 area and might warrant (gasp) some legislative tinkering with CPL § 30.30, perhaps adding a new exception for cases where the People certify, in good faith, that they are delaying prosecution in order to wait for a key appellate decision that is likely to affect whether they will prosecute the case at all.  (LC)

Burglary: an unjust evolution?

Modern burglary statutes look nothing like their common law ancestors.  At common law, burglary required proof of a breaking and entering, of a dwelling house, in the nighttime, with the intent to commit a felony once inside.  New York's burglary statute is typical in that it requires proof of only entry (but not breaking), it is also committed when a defendant enters with permission but then remains unlawfully, it applies to any building (not just dwellings), and the intent is to commit any crime (not just a felony).  The result --- an unjust one, in my opinion --- is that most common shopliftings are now punishable as Burglary 3º.

People v. Zokari (1st Dept. 12/17/2009), decided today, is a fairly typical case.  The defendant entered a Duane Reade store in Manhattan and stole 103 packets of gum.  The court rejected the defense argument that he lacked the intent to steal before he entered the store, a conclusion with which I agree.  The defendant had been barred from Duane Reade stores but nevertheless entered the store in question with a large garbage bag.  There was no reasonable view of the evidence that the defendant entered the store with legitimate shopping in mind.

Putting aside the only legal defense to the charge (lack of intent), was this really a case worthy of prosecution as a felony?  Is the defendant really what the Legislature had in mind as a "burglar"?  Is shoplifting of gum really worth a sentence of 2.25-4.5 years, even for a second felony offender?

Zokari demonstrates that, in the shoplifting context, larceny and burglary have merged into one offense.  Rare is the shoplifter who does not enter the store without the intent to steal.  The only thing standing between an information charging Petit Larceny and an indictment charging Grand Larceny is prosecutorial discretion.  Now, perhaps Mr. Zokari was worthy of prosecution as a felon.  We don't know much about his background, other than that he was banned from Duane Reade in the past and was a second felony offender.  Perhaps he had a long rap sheet of thefts and the only way to send him a message, and protect the community from further thefts, was to incapacitate him for several years in a state prison.  Maybe the People had good reason to prosecute this man as a felon.  If so, the better move would be to create a recidivist theft statute (see, for example, Virginia's Grand Larceny statute which makes it a felony to steal after having been convicted three times in the past of Petit Larceny).  This would be preferable to stretching Burglary beyond its intended and logical boundaries.  (LC)

Flashing brights does not give cause for car stop

In People v. Rose (4th Dept. 11/13/2009), a unanimous panel of the Fourth Department concluded the police lacked reasonable suspicion to stop the defendant's vehicle after the driver flashed its brights while an oncoming car approached.  The court noted the general rule that "police stops of automobiles in this State are legal only pursuant to routine, nonpretextual traffic checks to enforce traffic regulations or where there exists at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime' . . . or where the police have probable cause to believe that the driver . . . has committed a traffic violation'."  Here, the police officer relied on VTL § 375(3), which he claimed prohibited the flashing of brights.  The court concluded, "Section 375(3) actually provides in relevant part that, 'whenever a vehicle approaching from ahead is within [500] feet . . ., the headlamps, if of the multiple beam type . . . shall be operated so that dazzling light does not interfere with the driver of the approaching vehicle . . . .' The mere flashing of lights, alone, does not constitute a violation of the statute."  Since the officer operated on a mistake of law, suppression was required --- a result with which I agree.

However, the court's recitation of the law omits a key component of the rule, in my opinion.  Police do not just enforce the law; they also serve a community caretaking function (rescuing cats from trees, helping car accident victims, giving directions, etc.).  There are certain situations in which a traffic stop could be justifiably based on the community caretaking function.  For example, a person flashing their brights might be trying to signal distress of some kind.  Perhaps there is a kidnapper with a loaded gun in the passenger seat.  Or maybe the driver needs medical attention and does not have a cell phone to call an ambulance.  For whatever reason, the flashing of brights might be a signal for help.  If the objective circumstances support that conclusion, the officer should be able to make a limited stop.  Nevertheless, since the officer in Rose explicitly testified that he stopped the car because he thought the driver violated the VTL, it is purely an academic question in this case and the court reached the right result.  (LC)

Out-of-state DWI blood draws

People v. Lerow (4th Dept. 11/20/2009) (Peradotto, J.) presents a question of first impression for New York courts and will likely be taken up by the Court of Appeals.  In that case, the defendant was injured in a motorcycle accident.  Responding officers, as well as an eyewitness, reported the defendant's breath smelled of an alcoholic beverage.  Because of his injuries, the defendant was transported to a hospital in Pennsylvania.  A New York sheriff's deputy went to the hospital and requested that a nurse take a sample of the defendant's blood.  The question is whether this blood draw was lawful because it was done out-of-state.

The Fourth Department unanimously concluded that deputy had authority to order the blood draw even though he was out-of-state.  The court distinguished between official acts that depend on the sovereignty of the state --- such as the power of arrest --- with mere evidence gathering.  A "police officer" does not lose his status as an agent of the state under the latter category merely because he leaves the state.  Moreover, the court held that it would be illogical to limit the reach of the implied consent statute based on the "fortuity" of the defendant requiring medical care outside of the state.  The court cited favorably decisions of other states upholding the authority of their officers to collect DWI blood samples out-of-state.  Since Pennsylvania has a similar implied consent law, the court's rule would not offend Pennsylvania law or that state's public policy. 

(The court also rejected an argument that Pennsylvania law, which requires blood draws by physicians, not nurses, should control, reasoning that choice-of-law principles dictated the application of New York law, the law of the prosecution forum.)

The court's arguments are persuasive, but I am not entirely convinced by its reasoning.  The sheriff's deputy was not merely collecting evidence --- at least not in the same sense that a detective does when he interviews witnesses out-of-state, for example.  Rather, the authority under the implied consent statute is a specific grant of authority by the state only to a certain class of persons: "police officers."  Only official "police officer" may request a blood draw, not a private citizen. In contrast, any private citizen could conceivably go into another state and take witness statements.  (LC)

Tolling civil statutes of limitation for criminal prosecutions

A colleague recently brought to my attention CPLR 215(8), an interesting statute that may have implications for criminal practitioners who also handle personal injury cases.  CPLR 215 generally governs the statute of limitations -- one year -- for intentional torts such as assault, battery, false imprisonment, malicious prosecution, libel, and slander.

CPLR 215(8) provides an exception to the one year limitations period when "it is shown that a criminal action against the same defendant has been commenced with respect to the event or occurrence from which a claim governed by this section arises."  The plaintiff then has one year from the termination of the criminal prosecution to the bring the civil lawsuit "notwithstanding that the time in which to commence such action has already expired or has less than a year remaining."  (For sex crimes, the grace period is 5 years, not 1.)  For the definition of termination, CPLR 215(8) directs the reader to CPL § 1.20, which provides that a criminal action is terminated with the imposition of sentence "or some other final disposition in a criminal court of the last accusatory instrument filed in the case."

There are obvious policy benefits to this statute for all involved:

• For the defendant, he is not forced to litigate two cases at the same time, particularly since the civil action could require him to present his own evidence to defend against a motion for summary judgment.
• Conceivably, a defendant could negotiation a global settlement of both the criminal and civil actions.  If the plaintiff-victim wants restitution more than imprisonment/punishment, he or she can notify the prosecution of that interest.
• For the plaintiff-victim, he or she may be able to see how the People's evidence --- which will probably his or her own evidence later on --- at trial develops. 

There are downsides, however.  A defendant might not necessarily receive notice of the civil action.  Having resolved a criminal action, he may move on with his life, only to discover --- a year later --- that he is being sued civilly.  Evidence may be lost, etc.

My colleague and I are interested to see how this statute works in practice.  If you have any anecdotes to share concerning CPLR 215(8), please contact me at cunninl1@stjohns.edu.  (LC)

Search of defendant's pocket unlawful ... but harmless error?

In People v. Lazcano (4th Dept. 10/2/2009), the Fourth Department affirmed the defendant's conviction for Assault in the Second Degree.  One of the issues was a search of the defendant in which a police officer, who did not testify at the suppression hearing, recovered a knife from the defendant's pocket.  The People established, through a fellow officer, that there was reasonable suspicion to stop the defendant and frisk him for weapons.  However, the testifying officer was unable to establish, to the court's satisfaction, that the searching officer was justified in reaching into the defendant's pocket.  The testifying officer's observations were insufficient to establish what, if anything, the searching officer may have felt during the frisk.

Nevertheless, the court concluded that the error was harmless because "there is no reasonable possibility that the court's error in refusing to suppress the knife might have contributed to the conviction."  We are not told much about the facts of the case---other than it was an assault prosecution---but I find it hard to believe that showing the jury a weapon recovered from the defendant would not have had some effect on the verdict.  Perhaps the only issue was justification/self-defense?  (LC)

SCIs and compliance with CPL § 195.10 (updated)

Felony defendants have a constitutional right to indictment by Grand Jury.  Certain violations of this constitutional right are jurisdictional in nature; thus, they serve a purported waiver and may even be raised for the first time on appeal. 

In certain cases, a defendant may waive indictment and enter a plea to a Superior Court Information.  There are four requirements, however, for this procedure: (1) it is not available if  the local criminal court accusatory instrument charged a Class A felony punishable by death or life imprisonment (i.e., not the A-I or A-II drug crimes); (2) the defendant must have been held for Grand Jury action by a local criminal court; (3) the District Attorney consents to the waiver; and (4) the various procedures (written waiver, etc.) of Article 195 have been complied with.  Regarding the second requirement, a defendant cannot be directly charged by an SCI.  In other words, it cannot be used as a substitute for a direct indictment.  A defendant may waive indictment only if he has first been charged in a local criminal court (but not a Class A felony).

Sometimes the record on appeal will be sketchy as to whether there were local criminal court proceedings.  Defendants on appeal may claim that the second requirement was not satisfied and, therefore, the purported waiver of indictment and SCI were invalid.  This was the issue raised in People v. Dennis (3d Dept. 10/1/2009).  The Third Department rejected the defendant's argument, finding that there was sufficient evidence that the defendant had been held for Grand Jury action.  First, the record indicated that the case had been transferred to County Court.  Thus, logically, it must have been transferred from a local criminal court.  Moreover, County Court's order approving the waiver and SCI indicated, albeit summarily, that CPL § 195.10 had been complied with.  These facts, coupled with the presumption of regularity accorded to judicial proceedings and the failure of the defendant to show contrary evidence, were sufficient to reject the defendant's claim on appeal.

Nevertheless, the better practice is for either the papers or, preferably, the record in Superior Court to indicate that the defendant had been held for Grand Jury action by a local criminal court.  Ideally the local criminal court should be named and a docket number provided for that underlying action.  Perhaps the prosecutor, before the waiver is executed in Superior Court, should state on the record, "Your Honor, the defendant before the court was previously charged, by felony complaint, in the local criminal court of ____, index number ____.  On ____, that court held the defendant for Grand Jury action.  Now, today, he desires to waive indictment and enter a plea to a Superior Court Information."  This simple recitation would make the record crystal clear and prevent any confusion on appeal.  (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)

AD2 decides two cases on child testimony

This week, the Second Department decided two issues dealing with the capacity of children to take an oath and testify:

• People v. Batista (2d Dept. 8/4/2009) - On the People's appeal from the dismissal of the indictment, the court held that the 4-year-old witness was not capable of appreciating the nature of the oath or the consequences for failing to tell the truth.  Accordingly, her taped testimony should not have been presented to the Grand Jury as sworn testimony.  And since the People offered the evidence as sworn testimony and did not instruct the Grand Jury on the need for corroboration, County Court was not required to reach the issue of whether there was sufficient evidence before the Grand Jury that would suffice to corroborate the child's unsworn testimony.
• People v. Castellanos (2d Dept. 8/4/2009) - The court affirmed the defendant's conviction.  A 6-year-old witness testified at trial.  The court found he was competent to give testimony because the "examination of the child revealed that he knew the difference between telling the truth and telling a lie, promised to tell the truth, and indicated that he would be punished by his mother and by God if he lied."  Curiously, the court stated that the complainant was competent to give "unsworn" testimony.  However, the court's finding --- that he knew the different between the truth and a lie, promised to tell the truth, and understand the consequences for telling a lie -- satisfied the standard for sworn testimony.  Perhaps this was a typo in the court's opinion and, in fact, the child gave sworn testimony?  If it was unsworn testimony, there would be no need to establish the requirements of knowledge, promise, and potential punishment.  See CPL 60.20(2). 

(LC)