Friday, August 22, 2014

Judicial notice of facts on appeal

May an appellate court take judicial notice of a fact for the first time on appeal where the trial court refused a party’s request to take judicial notice of the same fact, or even where the lower court was never asked to judicially notice of that fact?  The answer, somewhat counter-intuitively, is yes. 

In Handling a Criminal Case in New York § 23:35 [2013], Gary Muldoon notes that “[i]t is a basic tenet of appellate practice that it is improper for an attorney to argue matters that are dehors (outside) the record on appeal” (see also, e.g., People v Chiles, 70 AD3d 1453 [4th Dept 2010]).  There are exceptions to this rule, however.  One exception is evidence of a defendant’s post-sentencing rehabilitation on the issue of whether a sentence is harsh and excessive (Id. at § 23:36).  Another relates to judicial notice of facts for the first time on appeal, which appellate courts may take, whether the parties have asked for it or not.  Usually (see below), this doesn’t help the defendant any.  However being aware that an argument in favor of such judicial notice can properly be made may be a valuable tool in the appropriate case.  

For example, in People v Schreier, 22 NY3d 494 [2014], discussed in “Surreptitiousness is an element of Unlawful Surveillance” below, the Court of Appeals took judicial notice of the time of sunrise on the date charged in the indictment, citing to a report of the United States Naval Observatory, Astronomical Applications Department, Complete Sun and Moon Data for One Day, Form A-U.S. Cities or Towns, Dec. 24, 2008, Rochester, New York, Day.php.  Significantly, according to the Court’s citation to that authority, the Court itself accessed the reference material on January 23, 2014, just three weeks before its decision was published, well after the appeal had been filed and argued.  

In United States v Davis, 726 F3d 357 [2nd Cir 2013], defendant was federally charged with assaulting another inmate at the Metropolitan Detention Center, which the government alleged was “within the special maritime and territorial jurisdiction of the United States,” an element of that offense.  The government offered no evidence other than the testimony of federal corrections officers that the MDC is a federal facility on federal land.  At the close of the government’s case, the district court denied defendant’s motion to dismiss the charge based on the government’s failure to prove geographic jurisdiction.  The district court denied defendant’s motion but also, as defendant’s request, refused to take judicial notice that the MDC was a federal facility on federal land, holding that that was a question of fact for the jury.  The jury thereafter convicted the defendant of assault as charged. 

On appeal, the Second Circuit held that the testimony of the government’s witnesses relative to geographical jurisdiction was legally insufficient to support defendant’s conviction.  The Court affirmed defendant’s conviction nonetheless, based on its own taking of judicial notice that the MDC is “within the special maritime and territorial jurisdiction of the United States,” based on its review of documents reflecting the transfer of title from New York State to the United States of the land on which the MDC it located.  This was preceded by a detailed examination by the Court of its authority to take judicial notice on appeal of the same fact the district court refused to judicially notice. 

In United States v Hernandez-Fundora, 58 F3d 802, 812 [2nd Cir 1995], the Court drew a distinction between taking judicial notice of  “adjudicative facts” and “legislative facts.”  Adjudicative facts are “those developed in a particular case” which the trial court may take judicial notice of, but must “instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed” so as not to run afoul of the defendant’s Sixth Amendment confrontation rights (Id. at 810).  By contrast,“legislative facts,” the Court held, are “established truths, facts or pronouncements that do not change from case to case but apply universally” (Id. at 812, quoting United States v Gould, 536 F2d 216, 220 [8th Cir 1976]).  A court that takes judicially notice of a legislative fact may then “remove that issue from consideration by the jury” (Id.).  

In Hernandez-Fundora, the Court found that whether Raybrook Federal Correctional Institution was “within the special maritime and territorial jurisdiction of the United States” was a question “premised upon a determination of legislative, rather than adjudicative, facts.”  Accordingly, the Second Circuit held that after the district court took judicial notice of that fact, it properly removed that issue from the jury’s consideration by instructed the jury that Raybrook fell within the special maritime and territorial jurisdiction of the United States.

The Second Circuit noted that it is particularly appropriate for appellate courts to take judicial notice of facts in the first instance that relate to “‘straightforward questions’ such as ‘geography and jurisdiction,’” i.e., legislative facts (Davis, 726 F3d at 367, quoting Landell v Sorrell, 382 F3d 91, 135 n 24 [2nd Cir 2002], citing United States v Hernandez-Fundora, 58 F3d 802, 812 [2nd Cir 1995]; see also, Mills v Denver Tramway Corp., 155 F2d 808, 812 [10th Cir 1946] [trial court’s refusal to take judicial notice of a fact does not preclude party from raising the issue for the first time on appeal or prevent the appellate court from judicially noticing the fact on its own accord]; Ross v American Exp. Co., ___ FSupp2d ___, 2014 WL 1396492 at *21 n 27 [SDNY 2014]). 

Resort to such judicial notice on appeal might be appropriate where, for example, the trial proof establishes that a police officer acted beyond the bounds of his geographical jurisdiction, as demonstrated by reference to a map of the city or town in which the officer was employed (see, e.g., People v Graham, 192 Misc2d 528 [Sup Ct Erie Co 2002], aff’d 1AD3d 1066 [4th Dept 2003] [where officer lacked authority to arrest defendant for traffic infractions outside the town of his employment, initial stop was tainted and all evidence obtained as a result was fruit of the poisonous tree]).

Friday, August 8, 2014

Ear-witness identification procedures, like eye-witness identification procedures, may not be unduly suggestive

As we know, under the due process clauses of the New York State Constitution, Article I, § 6, and the United States Constitution, Fourteenth Amendment, evidence of a pretrial identification of the defendant is inadmissible if the procedure used is “unnecessarily suggestive” (Neil v Biggers, 409 US 188 [1972]; People v Adams, 53 NY2d 241 [1981]; People v Owens, 74 NY2d 677 [1989]; People v Farraro, 144 AD2d 976 [4th Dept 1988]). If tainted by suggestion, identification procedures can lead to irreparable misidentification (People v Rodriguez,79 NY2d at 449); “[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor; perhaps it is responsible for more such errors than all other factors combined”(People v Rodriguez, 79 NY2d at 449). 

With respect to eyewitness testimony, United States Supreme Court has acknowledged that “[t]he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification” (United States v Wade, 388 US 218, 228 [1967]), while studies and psychological research support the court’s finding that identification testimony, among the most common form of evidence presented in criminal trials, is frequently wrong (see e.g., Gary L. Wells et al., “Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads,” 22 Law & Hum. Behav. 603, 605 [1998] [study of 40 cases involving innocent people who were convicted of serious crimes and served time in prison, five on death row, in which 36 involved eyewitness identification where one or more eyewitnesses falsely identified the person]; Innocence Project, [179 of first 230 DNA exonerations involved mistaken identification]).  The Court, explicitly recognizing the relationship between suggestiveness and mistakes in identification has repeatedly expressed concern that police arranged identification procedures may alter a witness’s memory rendering the subsequent identification testimony unreliable (United States v Wade, 388 US 218 [1967], Stovall v Denno, 388 US 293 [1967]; Simmons v United States, 390 US 377 [1968]; Manson v Braithwaite, 432 US 98 [1977]). 

In People v Collins, 60 NY2d 214, 218 [1983], the Court of Appeals held that voice identifications are subject to the same concerns relative to suggestiveness, and same constitutional safeguards, as visual identifications (see also, People v McRae, 195 AD2d 180, 185 [1st Dept 1994]; People v Shepard, 162 AD2d 226 [1st Dept 1990], lv den, 76 NY2d 944). Thus, upon a motion to suppress, it is the prosecution’s obligation to come forward with evidence establishing that the police procedures used were not unduly suggestive as to either visual or aural identifications (People v McRae, 195AD2d 180, 185 [1st Dept 1994]). 

The suggestiveness of pretrial procedures is determined by examination of the totality of the circumstances (People v Valdez, 204 AD2d 369 [2nd Dept 1994]).  The People have the initial burden of going forward to show the “lack of any undue suggestiveness” (People v Chipp, 75 NY2d 327, 335 [1990]; People v Ortiz, 90 NY2d 533 [1997]).  While suggestiveness is often the result of factors that highlight a particular suspect, a suggestiveness inquiry “must also review any actions taken by, or circumstances attributable to, the authorities which prompt, influence, or strengthen the witness’s identification” (Hibel, New York Identification Law, 142 [2006]).

The need to conduct a lineup, and to insure that fillers in the lineup have similar characteristics to the suspect and any description of the perpetrator applies to ear-witness as well as eye-witness identification procedures (People v McRae, 195 AD2d 180 [1st Dept 1994]).  The First Department has held, with respect to an aural identification procedure that 
suggestiveness could be caused by the selection of fillers whose voices were so dissimilar to a description given by the complainant of the criminal’s voice that the complainant would eliminate the fillers out of hand or by the selection of fillers whose voices were so similar to each other and yet so dissimilar to defendant’s as to unfairly highlight defendant’s voice.
(People v McRae, 195 AD2d 180, 185-186 [1st Dept 1994]).

The Court also held that “where the police conducted the voice identification and the defendant was compelled to participate, due process considerations require that the procedures have been conducted in a way not conducive to mistaken identification (internal citations omitted).”  For example, a physical lineup in which the fillers were all of a different race than the defendant would not be permissible merely because the prosecution was able to show that the fillers had been selected by a totally random process (People v McRae, 195 AD2d 180, 186 [1st Dept 1994]).

So too with voice identifications: offering a single recorded voice for identification, for example, is the practical equivalent of displaying the suspect's mug shot to the witness.  Likewise, in a voice lineup, disparity in the voice characteristics of the fillers may be just as suggestive as differing physical characteristics.  

That any failure to meet the constitutional standard may have been through oversight and not intentional is irrelevant to the test for suggestiveness (United States v Wade, 388 US 218 at 228, 229, 235 [1967]). 

Finally, characterization of voice a identification as“confirmatory” is not warranted absent some evidentiary basis for the witness’s familiarity with the defendant’s voice (People v Deleon, 273 AD2d 27, 28 [1st Dept 2000]; see also, Hibel, New York Identification Law, § 1.02[7][c] [2006]).

Wednesday, August 6, 2014

Surreptitiousness is an element of Unlawful Surveillance

Penal Law 250.45 contains four subdivisions describing four different ways a defendant may engage in Unlawful Surveillance in the Second Degree.  Although easily overlooked, each subdivision of the statute includes a requirement that the surveillance in question be done surreptitiously.  

In People v Schreier, 22 NY3d 494 [2014], the Court made clear that surreptitiousness is a separate and distinct element from whether the recording was done without the subject’s knowledge or consent, and is also separate and distinct from the requirement that the recording took place in a location where the subject had a reasonable expectation of privacy (both of which are also required by the statute).  This holding is unsurprising, given the legislative history of the statute, which was enacted to combat “video voyeurism” following an incident where a woman was secretly recorded in her bedroom by her landlord, who had concealed a hidden camera in a smoke detector (People v Schreier, supra, at 497-498, citing Donnino, Practice Commentary, McKinney’s Cons Laws, Book 39, Penal Law § 250.40, at 250).

Earlier, in People v Piznarski, 113 AD3d 166 [3rd Dept 2013], the Third Department, defining the requirement that the recording be surreptitious, held that: 
The term “surreptitious” connotes a secretive act and is defined as “obtained, done, made, etc., by stealth; secret or unauthorized; clandestine[;] ... acting in a stealthy way” ( [ Unabridged, Random House, Inc.]) . . . in this case, the fact that both defendant and the camera were visible in defendant’s room is immaterial, as defendant was using the camera in a surreptitious manner [emphasis added].
The Third Department went on to reject the defendant’s argument that the element of surreptitiousness and the requirement that the recording be without a victim’s knowledge or consent were one in the same, rendering the “knowledge or consent” language superfluous (Id., at 111 [“Indeed, a penal statute may not be interpreted in such a way that ‘words which define or delimit the reach of statutory provisions [are] disregarded as superfluous’ ”] [citations omitted]).  In that case, the court found that neither of the victims were
aware of or consented to defendant recording them while having sex [and] the People also tendered proof of actions by defendant demonstrating that he used the camera surreptitiously. The video of victim B shows that defendant began to record and position the camera on his desk while victim B was outside his bedroom. Similarly, the March 2010 video of victim A shows that defendant turned the camera on while victim A was performing oral sex and had her eyes closed.  Defendant did not call the victims’ attention to the camera or to the fact that he was recording them.  This evidence, which establishes the element of surreptitiousness, can be distinguished from the evidence that proves the victims’ lack of knowledge or consent and gives it independent meaning and effect.
People v Piznarski, supra, at 111-112.

Likewise, in Schreier, the defendant stood at the victim’s front door in the dark early morning hours and held a small black camera in his black-gloved hand to record the victim in her bathroom through a window over the front door, which was not eye level to a person standing on the victim’s porch. In Piznarski, after finding that the victims lacked knowledge or consent of the recording, the Third Department separately considered the defendant’s actions, described above, and found that those actions satisfied the element of surreptitiousness. 

As Schreier makes clear, while the elements of the victim’s reasonable expectation of privacy and the victim’s knowledge or consent focus on the victim, the element of surreptitiousness focuses on the defendant’s conduct.  That the recording occurred without the victim’s knowledge and consent or in an area where the victim would have a reasonable expectation of privacy is not enough to support a charge under this statute; there must also be facts supporting a finding that the defendant acted surreptitiously when making such recording. 

In order to properly charge Unlawful Surveillance, (1) the proof before the grand jury must be legally sufficient to support a finding that the defendant's conduct was surreptitious (separate and apart from the victim's knowledge or consent and the location where the recording occurred), (2) the District Attorney must instruct the grand jury that the defendant's conduct must be surreptitious (and ideally, define surreptitiousness for the grand jury), and (3) the indictment must allege that defendant's conduct was surreptitious.  An indictment that fails to meet these requirements may be challenged based on the legal sufficiency of the proof or as defective.  An indictment that the alleged Unlawful Surveillance was surreptitious fails to allege a crime and therefore, may not be amended to include that missing element (see, CPL 200.70[2]).  

The same requirements should apply before the petit jury, however the model CJI instruction does not define surreptitiousness or make clear to the jury that it is a necessary element of the offense.  In light of Schreier, perhaps the CJI instruction should be amended.  A suggested amended instruction using the first subsection of the statute is set forth below. 

(E Felony)
PENAL LAW 250.45(1)

The _____ count of the indictment charges the defendant with Unlawful Surveillance in the Second Degree in violation of Penal Law 250.45(1).

Under our law, a  person is guilty of Unlawful Surveillance in the Second Degree when, for his or her own, or another person’s amusement, entertainment, or profit, or for the purpose of degrading or abusing a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person’s knowledge or consent. 

Some of the terms used in this definition have their own special meaning in our law.  I will now give you the meaning of the following terms: “imaging device”; “surreptitiously”; [“broadcast;”] “sexual or other intimate parts”; “place and time when a person has a reasonable expectation of privacy”; and “intentionally.”

IMAGING DEVICE means any mechanical, digital or electronic viewing device, camera or any other instrument capable of recording, storing or transmitting visual images that can be utilized to observe a person (Penal Law § 250.40[2]).

SURREPTITIOUSLY means that the act was done stealthily or secretively (People v Piznarski,113 AD3d 166 [3rd Dept 2013], citing [ Unabridged, Random House, Inc.]).

[BROADCAST means electronically transmitting a visual image with the intent that it be viewed by a person. (Penal Law § 250.40[4]). 

SEXUAL OR OTHER INTIMATE PARTS means the human male or female genitals, pubic area or buttocks, or the female breast below the top of the nipple, and shall include such part or parts which are covered only by an undergarment (Penal Law §  250.40[3]).

PLACE AND TIME WHEN A PERSON HAS A REASONABLE EXPECTATION OF PRIVACY means a place and time when a reasonable person would believe that he or she could fully disrobe in privacy (Penal Law § 250.40[1]).

Intent means conscious objective or purpose. Thus, a person INTENTIONALLY uses or installs, [or permits the utilization or installation of] an imaging device to surreptitiously view, [broadcast or record] a person dressing or undressing, or the sexual or other intimate parts of such person, when his or her conscious objective or purpose is to do so (Penal Law § 15.05[1]).

In order for you to find the defendant guilty of this crime, the People are required to prove,  from all the evidence in the case, beyond a reasonable doubt, each of the following elements:

1. That on or about ___________________, in the county of ______, State of New York, the defendant, _______________, used or permitted the utilization of an imaging device to record a person dressing or undressing, or the sexual or other intimate parts of a person at a place and time when such person had a reasonable expectation of privacy, 

2. That the defendant did so surreptitiously;

3. That the defendant did so without such person’s knowledge or consent;

4.   That the defendant did so intentionally; and

5. That the defendant did so for his or her own, or another person’s amusement, entertainment, or profit, or for the purpose of degrading or abusing a person.

Therefore, if you find that the People have proven beyond a reasonable doubt each of those elements, you must find the defendant guilty of the crime of Unlawful Surveillance in the Second Degree as charged.

On the other hand, if you find that the People have not proven beyond a reasonable doubt any one or more of those elements, you must find the defendant not guilty of the crime of  Unlawful Surveillance in the Second Degree as charged in the _______ count of the indictment.

* Thanks to Danielle Wild, 3L, Syracuse Law School, for the draft of the proposed amended instruction.

Monday, July 21, 2014

Custodial Interviews By Child Protective Workers and Miranda

    A common practice after the arrest after an arrest for child sex crimes is for a Child Protective Services (CPS) Investigator to go the jail to interview the suspect regarding a CPS investigation of the same incident underlying the suspect’s arrest. In many cases the  CPS Investigator does not read the suspect Miranda warnings or obtain a Miranda waiver before conducting these custodial interrogations. The ostensible rationale is that the CPS Investigators are not law enforcement officers and they are not conducting these custodial interrogations with regard to the criminal charges, but rather with respect to a possible civil proceeding arising out of the same alleged conduct. And after incriminating statements are obtained, the CPS Investigator shares them with police and prosecutor, as required by Social Services Law §§411, 413, 424.
    Regardless of whether the police invited this type of interrogation, the statements thereby obtained should be inadmissible under Miranda.
    First, there can be no dispute that the incarcerated suspect was in custody. The focus of the suppression court will be whether the questioning constitutes interrogation by a “public servant engaged in law enforcement activity or by a person then acting under [their] direction or in cooperation with [them]” (CPL § 60.45[2][b]) under Miranda.
    Typically, these CPS workers are members of a county-wide, multidisciplinary team comprised of members of the District Attorney's office, police and social service agencies and cooperate with the District Attorney’s office by providing information when requested.
    It is irrelevant that the police and District Attorney might not have expressly requested that the CPS Investigator interview defendant, since such a request is unnecessary in light of the statutory provisions both that the interview be performed and that the CPS caseworkers cooperate with the District Attorney's office regarding the case.
    As the Appellate Division, Third Department, held in People v Wilhelm (34 AD3d 40 [3d Dept 2006]):
    we are satisfied that the CPS caseworkers involved here had a "cooperative working arrangement" with and were acting as agents of the police and prosecutor in interviewing defendant and relaying her incriminating statements (People v Greene, 306 AD2d 639, 641).   Moreover, contrary to the People's assertion that the CPS investigation  remained separate from that performed by the District Attorney's office,"the subject of the interrogation and the subject of the criminal charges [were] so inextricably interwoven in terms of both their temporal proximity and factual interrelationship as to render unavoidable the conclusion that any interrogation concerning the [allegations in the hotline report] would almost inevitably involve some potentially incriminating discussion of the facts of the crime itself" (People v Townes, 41 NY2d 97, 104 [1976]). It is therefore immaterial that the CPS caseworkers considered their investigation separate from that of the police and that they did not characterize the police as being in charge of the multidisciplinary team....  As we have stated: “The regulatory mandate that a CPS caseworker conduct face-to-face interviews with subjects of child abuse reports (18 NYCRR 432.2[b][3][ii][a] ) cannot overcome a subject's constitutional right if the CPS caseworker is an agent for the police at the time of the interview. That mandate can be complied with either by arranging an interview with the subject and counsel or merely completing the information gathering by the CPS caseworker without the ability to use the statement in any criminal proceeding” (People v Greene, supra at 641).
(People v Wilhelm, 34 AD3d 40, 45–50 [3d Dept 2006].)
    Further, two holdings of the United States Supreme Court on the need for Miranda warnings for custodial interrogations conducted by government officials who are not law enforcement officers are both instructive and controlling.
    In Mathis v United States (391 US 1 [1968]), the Court considered the applicability of Miranda to questioning of Mathis, a state prisoner, by an IRS agent regarding discrepancies in two of his federal tax returns, during which Mathis made incriminating statements that were later introduced at his criminal trial on charges of tax fraud. The Government argued  that Miranda did not apply since the questioning had been part of a routine tax investigation, civil in nature, unrelated to the reason Mathis was in custody(Id. at 2). The Supreme Court rejected this fact as dispositive, noting that “tax investigations frequently lead to criminal prosecutions, just as the one here did,” and that any tax investigation could lead to a criminal prosecution (Mathis, 391 US at 4). In dismissing the Government's argument that Miranda did not apply because the questions asked of Mathis were part of a routine civil tax investigation, the Supreme Court noted that "[t]hese differences are too minor and shadowy to justify a departure from the well-considered conclusions of Miranda with reference to warnings to be given to a person held in custody."  (Mathis, 391 US at 4).
    In Estelle v Smith (451 US 454 [1981]) the United States Supreme Court considered when the questioning by a person who is not a law enforcement officer is subject to the requirements of Miranda. The issue in Estelle was whether the statements  made to a psychiatrist at a court ordered competence examination, in which Miranda warnings had not been administered, could be used at the penalty phase of the defendant’s court proceedings. The Supreme Court, in holding that the defendant’s Miranda and Fifth Amendment rights had been violated, explained that
    When [the doctor] went beyond simply reporting to the court on the issue of competence and testified for the prosecution at the penalty phase on the crucial issue of respondent's future dangerousness, his role changed and became essentially like that of an agent of the State recounting unwarned statements made in a postarrest custodial setting. During the psychiatric evaluation, respondent assuredly was “faced with a phase of the adversary system” and was “not in the presence of [a] perso[n] acting solely in his interest.” (citation omitted). Yet he was given no indication that the compulsory examination would be used to gather evidence necessary to decide whether, if convicted, he should be sentenced to death. He was not informed that, accordingly, he had a constitutional right not to answer the questions put to him.
Estelle v Smith, 451 US 454, 467 (1981).
    Thus, statements obtained by  CPS workers during custodial questioning of suspects, without Miranda warnings and waivers should be inadmissible as violative of Miranda.

Tuesday, July 15, 2014

New York State’s Affirmative Defenses: Legitimate Tools for the Defense or Traps for the Unwary?

Last month, one of our clients had his murder conviction reversed by the Appellate Division, Fourth Department, after the trial court belatedly charged the affirmative defense of renunciation over objection (People v Brewer, 2014 WL 2782143, __ AD3d __ [4th Dept June 20, 2014]).  The court recognized the general rule that a court may not charge an affirmative defense over a defendant’s objection, and acknowledged that the Third Department had adopted a rule that the Court can never charge an affirmative defense without the defendant’s consent (see People v Ciborowski, 302 AD2d 620, 622 [3rd Dept 2003]).  Nonetheless, the Brewer Court declined to adopt such a bright line rule and ruled in dicta that there may be “limited circumstances” when an affirmative defense is the only viable defense and can thus be charged over objection.
This case provides an opportunity to examine New York’s affirmative defenses and also provides an interesting “control” regarding the efficacy of such defenses. 
Brewer was charged with murder in the second degree as both a principal and an accomplice.  In his written statement, Brewer, who was only eighteen years old at the time, admitted that he agreed to kill the victim for $10,000 and was driven from Elmira to Rochester for that purpose.  When it came time to actually pull the trigger however, Brewer stated that the victim locked eyes with him and told him not to do it.  Brewer froze, unable to shoot.  In a rage, Brewer’s co-defendant (who had agreed to hire Brewer) grabbed the gun from Brewer, chased the victim down and shot and killed him.
Brewer went to trial twice on the prosecutor’s theory that he was an accomplice to murder.  At the first trial, renunciation was not charged as an affirmative defense.  The jury deadlocked 10 to 2 for acquittal on the murder count.  At the second trial, after two days of deliberation, the jury sent back a note that they were deadlocked but asked if there were anything in the law about “changing your mind at the last minute.”  The trial court charged them with the renunciation defense, over objection, and the jury convicted Brewer within two hours.
This "experiment” suggests what trial attorneys have always suspected: that if there is any way to advance your theory of defense without an affirmative defense, do it.  New York’s affirmative defenses do two things very well.  First, they act as burden-shifting machines, making the prosecutor’s job much less onerous.  Second, they impose almost unattainable standards on the defendant, in an apparent effort to limit the application of the defense to “deserving” defendants and close the door to the rest of us.
Burden Shift
The difference between an affirmative defense and an ordinary defense is the burden of proof.  An ordinary defense, such as justification or alibi, must be disproved beyond a reasonable doubt by the prosecutor, and the jury must be specifically instructed on this.  In contrast, an affirmative defense imposes the burden of proof (usually by a preponderance of the evidence) on the defendant.  Recognizing this burden, and the unfairness of foisting it on an unwilling defendant, the Court of Appeals has repeatedly reversed cases where an affirmative defense was imposed on an unwilling defendant (see e.g., People v Bradley, 88 NY2d 901, 902 [1996] [extreme emotional disturbance]; People v DeGina, 72 NY2d 768, 776-777 [1988] [entrapment]).
New York Affirmative Defenses
New York Penal Law Article 40 groups the general affirmative defenses that apply to all criminal offenses.
1.       Duress (PL § 40.00) (Defendant must be coerced by the use or threatened “imminent” use of force which a person “of reasonable firmness” would be unable to resist.  This defense is not available if a person intentionally or recklessly placed himself in the position where he or she may be subjected to duress.)
2.         Entrapment (PL § 40.50) (Defendant was actively “induced or encouraged” to engage in crime by a public servant or agent attempting to obtain evidence against him.  Methods used by the public servant or agent must be such to create substantial risk that a person “not otherwise disposed to commit the offense” would commit it.  This defense opens the door to “predisposition” evidence.)
3.     Renunciation (PL § 40.10) (Under circumstances showing “voluntary and complete” renunciation, defendant withdrew from participation and made a “substantial effort” to prevent the crime from happening.  Renunciation is not “voluntary or complete” if it is motivated in whole or in part by a fear of getting caught or a decision to postpone the crime to a later date.)
4.        Mental Disease or Defect (PL § 40.15) (At the time of the crime, as a result of mental disease or defect, defendant lacked substantial capacity to know or appreciate either the nature and consequences of such conduct or that such conduct was wrong. This defense, if successfully asserted, triggers psychiatric examinations to determine whether defendant is mentally ill or dangerously mentally ill pursuant to CPL 330.20.)
To these defenses are added offense-specific affirmative defenses, such as extreme emotional disturbance to intentional murder in the second degree (PL § 125.25 [1] [a]) and “not having any reasonable ground to know a co-defendant was armed with a weapon” to felony murder (PL 125.25 [3][c]).
It is a rare defendant who would be able to surmount the burden of proof necessary to show that he or she is “deserving” of an affirmative defense (as is evident by merely listing their elements).  Indeed, it seems that if the elements of these affirmative defenses were met, the defendant would not face prosecution at all.  Or even if prosecuted, the defendant would not need the actual instructions of these affirmative defenses to be charged to the jury; the jury would likely simply refuse to convict on either a generalized “lack of intent” theory or under its traditional mercy-dispensing authority.
Of course, there are times when you must assert an affirmative defense on behalf of your client.  (Note: Because affirmative defenses impose a burden of proof on a defendant, it is your client, not you as the attorney, who ultimately decides whether to assert the defense, as opposed to the decision to submit a lesser included offense which resides with the attorney [see People v Colville, 20 NY3d 20, 32 (2012)]). 

If your client decides he or she wants to assert an affirmative defense, you should be prepared to accentuate the facts of your case instead of the language of the affirmative defense–which, as was demonstrated in Brewer, will only lead the jury to a conviction where they would otherwise not be so disposed.

Tuesday, July 1, 2014

The People’s failure to disclose civil allegations against a police witness may still constitute a Brady violation under circumstances different than those in People v. Garrett.

by Danielle Wild, 2015 J.D. Candidate at Syracuse University College of Law and Intern at Easton Thompson Kasperek Shiffrin LLP

Yesterday, the New York Court of Appeals decided People v. Garrett, holding the People did not commit a Brady violation when they failed to disclose that a federal civil action had been brought against one of their police witnesses.
Mark Garrett was convicted after a trial by jury of two counts of murder in the second degree.  In addition to circumstantial evidence connecting Garrett to the crime, the People presented evidence of his confession.  Garrett maintained that his confession was false and coerced by the interrogating detectives.
In a CPL 440.10 motion to vacate his judgment of conviction, Garrett claimed the People committed a Brady violation by failing to disclose to him the federal civil rights action that had been filed against one of the interrogating detectives.  The complaint alleged that the detective had coerced a confession in an unrelated arson case.  The Court of Appeals disagreed.
In an opinion written by Judge Abdus-Salaam, the majority determined that, although the civil allegations were favorable to Garrett, given his own allegations that the detective coerced his confession, Garrett had not met his burden of proving the remaining elements of a Brady claim—i.e. that the People suppressed the information or that he was prejudiced by their non-disclosure.
First, the majority held the People had not suppressed the information because they had neither actual nor constructive knowledge of the civil allegations against the detective until after their Brady obligations had ceased.
Although the civil complaint was filed and answered more than a month before Garrett’s arrest, the files related to the civil case were sealed until after Garrett’s trial and sentencing had concluded.  Given that, the majority concluded that the People adequately proved they had no knowledge of the allegations until after sentencing, at which time they were not obligated under Brady to disclose the information.
Yesterday’s decision therefore does not foreclose a defendant from arguing the People have an obligation to disclose civil allegations against a police witness if those allegations were unsealed prior to the defendant’s trial or sentencing.
(The majority did, however, explicitly reject Garrett’s argument that a prosecutor has a duty to ask his police witnesses whether any allegations were pending and a duty to conduct a cursory search through court dockets for any such allegations.)
When considering whether the People were imputed with constructive knowledge, the majority addressed several case-specific factors before holding they were not.
First, the civil allegations against the detective did not arise out of the detective’s investigation of Garrett’s case but instead arose out of the detective’s alleged misconduct in an unrelated case.  The majority made clear the People may be imputed with knowledge of any “bad acts” engaged in by a police officer during the course of his investigation of a defendant’s case. 
Second, according to the majority, the allegations were only collateral to Garrett’s case, at best, to the extent they may have provided him with impeachment material. 
Third, the majority emphasized that Garrett only argued that the detective’s knowledge of the allegations against him were attributable to the prosecutor; he never alleged that imputation derived from the knowledge of any other police officer or member of the prosecution team.  This suggests that the holding may have been different if Garrett offered proof showing that a government agent other than the detective against whom the allegations were filed knew of the allegations.
Notwithstanding the suppression prong, the majority held that the undisclosed evidence did not meet the materiality standard required under Brady because Garrett previously tried and failed to admit similar impeachment evidence against the detective at both the suppression hearing and at trial—i.e. evidence that another interrogating detective had participated in case involving a false confession.  Both the suppression court and the trial court sustained objections to the line of questioning based on relevance grounds.  It seemed unlikely to the majority that Garrett would have had greater success with admitting the evidence at issue.
Again, this leaves open the possibility that a defendant may be successful in establishing prejudice and materiality if the suppression court or the trial court, in its discretion, allows similar impeachment evidence to be admitted.
Moreover, the majority admitted that the Court has never squarely addressed whether inadmissible evidence may be considered material under Brady if it could lead to admissible evidence, recognizing that some federal courts have held that it may.  Since Garrett failed to show what, if any, admissible evidence disclosure of the allegations against the detective would have led to, the majority again avoided addressing the issue.
Admissibility aside, the majority noted that the impeachment value of the undisclosed civil allegations was minimal at best because another interrogating detective gave corroborating testimony as to the voluntariness of and circumstances surrounding Garrett’s confession.
In the absence of such corroborating testimony, a defendant may be able to demonstrate the requisite prejudice and materiality to satisfy the third prong of a Brady claim.
Chief Judge Lippman wrote a concurring opinion, joined by Judges Smith and Rivera, agreeing with the majority that the civil allegations against the detective were not material under Brady.  However, they disagreed with the majority’s suppression analysis and would have held that the detective’s knowledge of the allegations pending against him should be imputed to the People because, as a member of the prosecution team, he had an independent obligation to disclose impeachment evidence.  Further, they believed that the majority erred in considering the materiality of the evidence in their suppression analysis.
Judge Smith also wrote a separate concurring opinion, joined by Judge Pigott, questioning whether the Court was even able to consider the materiality prong of the Brady claim given that the County Court did not consider it when it denied Garrett’s CPL 440.10 motion.

Friday, June 27, 2014

Ipads and apps in your legal practice

Jill Paperno, author of
Representing the Accused: A Practical Guide to Criminal Defense

As the Supreme Court recognized this week in Riley v. California, 2014 WL 2864483, technology is an inescapable component of our daily lives.  In Riley, the Court answered the question of whether warrants are required before police can search cell phones – and the answer was yes (with exceptions for exigent circumstances).  Justice Roberts, who wrote for the majority, stated, “These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

So given the ubiquitous (my grandfather always used that word and this is the first time I ever have!) nature of cell phones and mobile technology, we should use the technology not just to check on the misbehavior of our children or the reviews a restaurant received, but to enhance our practice.  I was asked about my use of cell phone technology by Niki Black, author and blogger.  Her interview with me in “Above the Law”, her blog, is found here:

Of course, as the article indicates, I have a love affair with my Ipad.  But different strokes for different folks – some prefer other types of mobile devices.  

As for my favorite work related uses and apps, I’ll list a few:

  • The CPL, a $6 app, is searchable, and always handy.
  • The PL, another $6 app, a constant resource.
  • The CPLR – for those pesky subpoena rules
  • Training materials relating to frequently arising issues and topics, such as subpoenas
  • The mobile access to Westlaw
  • Medical abbreviations app
  • Translator
  • Calculator apps
  • Pages – a word processing app that can be used to prepare or edit documents, store them and have them accessible whenever necessary
  • Timeline 3D – I’m looking forward to using it for a presentation or summation some day
  • Ibooks – Great for downloading books from the web, such as the OCA Search and Seizure manual, the Sex Offender Registration Act guidelines for classification, the Parole Manual and much more.  (Check out “Has a Child Been Molested” by Patrick Clancy and Lee Coleman in its free downloadable form, as well as other resources from their website)
  • Unit converter (so you never have to remember the grams/ounces thing)
  • Photography for quick screen grabs of facebook and other elusive internet things, like articles that don’t let you simply print and copy
  • Document organizing apps (I use Goodreader) – There are document organizing apps that enable you to collect and organize documents into files.  This is one of my most frequently used app.  I have downloaded and classified all of the OCA jury instructions, sentencing charts, phone number lists (probation, PD office, DA office, courts, etc.), the Rules of Professional Conduct, etc.

As our courts and most offices provide wifi, I went the cheap route and got the wifi version which works for me in most locations.  I also find myself frequently looking at maps and street level locations (but beware, sometimes the addresses are wrong) when new information comes up at a hearing.