New York Criminal Law and Procedure

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)

Criminalizing purchase of knockoffs?

Recent news articles have reported that a City Council member intends to introduce a bill to criminalize the purchase of counterfeit designer goods such as handbags and watches.  The proposed misdemeanor would carry up to a year in jail.  The bill has not been posted on the City Council's website yet, but a press release from the sponsor says, "The bill targets those who purchase goods which they should know are counterfeit, based on the cost or quality of the item or the conditions and location of the seller or sale." 

If this law is passed, enforcement will be difficult—if not impossible—and will no doubt result in a serious challenge for vagueness.  The mens rea appears to be negligence: whether the buyer "should have known" that the product was a knockoff.  Proving this beyond a reasonable doubt will be tough.  Every prosecuted buyer will claim that he or she was simply getting a good deal.  If the bill is passed, I predict most charges will be resolved at arraignment with ACDs.  I also see a lot of unhappy tourists.

If the City is serious about the problem, a better approach would be to target the sellers for sales tax and trademark violations rather than citing tourists for buying fake handbag.  (LC)

Kamins pens article summarizing new criminal justice legislation

Justice Kamins has a new article in the New York Law Journal summarizing recently enacted legislation concerning the criminal justice system. 

Among the new laws:

• a prohibition on large city police departments from keeping an electronic database of stops
• Leandra's Law, which make DWI an E Felony if a child under 16 was present in the car and requires an ignition interlock for every person convicted of DWI
• creation of a Statewide Office of Indigent Services, which will study and make recommendations for improving indigent defense
• creation of a new crime, Strangulation
• assaults on nurses or sanitation enforcement agents are now Class C felonies
• there is now a statutory right to "one phone call" (anywhere in the U.S. or Puerto Rico!) upon arrest
• probation reports are no longer required in misdemeanor cases where the judge does not impose more than 180 days (the previous limit was 90 days)
• VTL blood draws no longer require physician supervision
• unconstitutional provisions of the Loitering statute have now been removed
• OAG now has jurisdiction prosecute, criminally, Unauthorized Practice of Law

Take a look at Justice Kamins' well written article for more on these and other new laws.  (LC)

New Decisions

There are new decisions from nearly every court!

First, the Court of Appeals (summaries of these will be posted later this week):

• People v. Dreyden (Ct. App. 6/15/2010) (Pigott, J.) (6-1) - accusatory instrument deficient if it does not demonstrate how a knife is a "gravity knife"
• People v. Mitchell (Ct. App. 6/15/2010) (Read, J.) (7-0) - transfer of case for probation supervision does not transfer authority to decide 440 motion 
• People v. Ballman (Ct. App. 6/10/2010) (Lippman, C.J.) (7-0) - elevation of DWI for out of state conviction prior to 2006
• People v. McLean (Ct. App. 6/10/2010) (Smith, J.) (4-3) - preservation of right to counsel violation claim
• People v. Frederick (Ct. App. 6/10/2010) (7-0) - retrial issues

There are also new decisions from the First, Second, Third, and Fourth Departments, along with the Second Appellate Term.  (LC)

AD2 & AD4 - New Decisions

The Second and Fourth Departments have posted new decisions.  (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)

Thoughts on the Proposed Crime of Criminal Sale to Children

When I first read the proposed reform of the Rockefeller Drug Laws, A.06085, I was glad to see that it contained a provision that would add Penal Law § 220.48, Criminal Sale of a Controlled Substance to a Child.  Based on the title of the crime, I thought it would fill in a glaring hole in Article 220.  When an adult sells drugs to a child, there are special and unique public policy interests that come into play, including the protection of children from predators.  Criminal Sale In or Near School Grounds (Penal Law § 220.44), while laudably aimed at protecting children, only applies to sales that occur on school grounds or within 1,000 feet of such facilities.

Despite the optimistic nature of its title, a close examination of the proposed legislation reveals that it will not serve much of a purpose.  A person would be guilty of this crime when:

being over twenty-one years old, he or she knowingly and unlawfully sells to a person less than sixteen years of age a controlled substance in violation of any one of subdivisions one through six-a or subdivision nine of section 220.34 of this article.

The controlled substances referenced include narcotic preparations (controlled substances in Schedules III(d) or III(e), such as nalorphine or codeine, the latter in excess of a certain amount), methadone, ketamine, and GHB (the so-called "date rape drug").  Glaringly omitted from this list are narcotic drugs under Schedule I or II, such as heroin and cocaine.

The bill summary touts this provision as "elevat[ing] penalties" for the sale of drugs to children.  It is one of the few provisions of Article 220 that would still carry mandatory prison time.  However, it is ultimately a fairly ineffective provision.  By exempting narcotic drugs and marijuana, it removes any real teeth from the crime.  Heroin, cocaine, and crack are the most prevalent and dangerous street drugs.  I predict that very few persons will be prosecuted under the new Penal Law § 220.48.  (LC)

Proposed Amendments to the Rockefeller Drug Laws

Yesterday, the Assembly passed A.6085, which reforms the Rockefeller Drug Laws in several key respects.  The text of the bill can be quickly read in 15-20 minutes and I encourage all attorneys in criminal practice to do so.  Although the bill is reported as giving additional discretion to sentencing judges, it does much more. 

Among the key provisions that have been widely reported:

• establishment of a drug court in each county. 
• defendants can be ordered to undergo an alcohol or substance abuse assessment.
• first and second offenders convicted of Class B, C, D, or E felonies can be sentenced to local jail, probation, or a split sentence.  The maximums have not changed, only the ability of judges to award these non-prison sentences at the low range.  These alternative-to-prison sentences do not apply to certain offenses and offenders with violent felonies in their histories.
• offenders convicted of Class B, C, D, or E controlled substance crimes can be sentenced to a boot-camp style "Shock Incarceration Program."
• courts' authority to dismiss a case, in the interest of justice, upon the defendant's successful completion of a diversion program, is crystallized.

There are additional provisions that have not been getting as much press:

• alteration of the presumptions in Penal Law § 220.25 for possession in a car or room.  The presumptions will become permissible inferences instead.
• the proposed legislation creates three new crimes, including Criminal Sale of a Controlled Substance to a Minor (a Class B felony), Trafficking Through a Controlled Substance Organization (a Class A felony), and Criminal Possession of a Weapon While Selling or Attempting to Sell a Controlled Substance" (a Class C felony).  Prison time is mandatory for all three of these crimes. 
• courts can sentence offenders directly to the DOCS Willard Drug Treatment Program.
• the law extends the eligibility of offenders to enter the DOCS CASAT program.
• weight threshold limits for Class A-I and A-II offenses, which were not changed in 2004, are raised.
• DOCS must establish reentry programs for prisoners.
• any convicted person, regardless of sentence (probation, jail, prison, etc.), who has a documented history of substance abuse, must receive at least one year of substance abuse treatment.
• certain convicted drug offenders -- those who were convicted of pre-2005 indeterminate Class B felonies -- can apply for resentencing under the determinate sentencing regime that was enacted in early 2005.
• judges can seal drug convictions, including felonies (one) and misdemeanors (three), provided the defendant has remained crime-free or has completed a treatment program.
• parole eligibility for Conspiracy in the Second Degree (a Class B felony) will become a determinate sentencing offense.

(LC)

Admission of Business Records of Banks, Telephone Companies, and Internet Providers Before the Grand Jury

CPL § 190.30, which governs the rules of evidence before the Grand Jury, was recently amended to permit the introduction of certain business records without the need for testimony from custodians of records.  The amendment was made by L. 2008, c. 279, § 14, and took effect August 1, 2008.

The amendment created section 8 of the statute.  It permits the introduction of two types of certified business records.  The first is a person's "subscription to and charges and payments for communication equipment and services," including, but not limited to, telephone and Internet service records.  The statute does not apply to "recorded conversations or images communicated thereby."  The second category of records pertains to "financial transactions, and a person's ownership or possessory interest in any account, at a bank, insurance company, brokerage, exchange or banking organization."  Importantly, the statute does not apply to records prepared by law enforcement agencies or by any entity in anticipation of litigation.  Note, however, that CPL § 190.30(2) permits the introduction of certain public records through a similar certification procedure.

To be admitted, the records must be accompanied by a certification listing the records, attesting that the declarant is a custodian of records, and otherwise establishing the foundation for business records (kept in the course of business, contemporaneous with the act, and duty to maintain the records).

Apparently this statute was enacted to alleviate a burden on cable, telephone, and Internet companies, as well as banks and other financial institutions.  These businesses previously had to send custodians of records to testify before the Grand Jury in identity theft, cable service theft, and other cases.  Since these companies are sometimes located out-of-state or in an otherwise inconvenient location, the Legislature now provides that these routine witnesses can "testify" through a sworn certification.  This saves considerable expense and inconvenience.  Since a custodian's testimony is usually routine and uneventful, defendants are not prejudiced by the amendment.  (LC)

Tough Times Ahead in the Budget

Governor Paterson's proposed budget calls for deep cuts in the criminal justice sector, including:

• Closure of various prison camps and annexes.
• Reform various parole laws and policies to release approximately 1,600 offenders into the community.
• Elimination of the Road to Recovery program for offenders with drug and alcohol problems (the budget website notes that additional money is being put into other similar programs).
• Elimination of aid to Westchester County for police patrols on certain highways.
• No more state inspections of local jails that are accredited by the American Correctional Association absent cause to believe that health or safety is at risk.
• Expansion of medical parole for offenders other than those convicted of Murder in the First Degree.  As the budget website points out, "These inmates ... require the most expensive medical care."  (One wonders where these sick inmates will go once they are discharged.  Medicaid/Medicare?)
• Cuts in state aid to local probation departments and community correction agencies.
• Deep cuts to the Office of Mental Health (OMH) and other mental hygiene agencies and programs.
• Shifting treatment of sex offenders away from an inpatient treatment model.
• Reduction of aid to local governments, generally.

The proposed budget is online and contains helpful summaries, broken down by subject area (e.g., mental health, public safety, etc.).  (LC)

New legislation

Judge Barry Kamins recently wrote a nice summary of recently enacted legislation in the criminal law area.  His article is free (with registration) on the New York Law Journal website.  (LC)