The CJI charge for PL § 160.15 (3) is as follows
“Under our law, a person is guilty of Robbery in the First Degree when that person forcibly steals property and when, in the course of the commission of the crime [or of immediate flight therefrom], that person [or another participant in the crime] uses or threatens the immediate use of a dangerous instrument.”
This charge tracks the statutory elements. In 1980, the Court of Appeals held that although the statute (PL § 160.15 (3)) “is not explicit in that regard...the jury [considering such as charge is] required to find that [the defendant] actually possessed a dangerous instrument at the time of the crime. People v. Pena, 50 NY2d 400 [1980].
Yet, in People v Ford (__ NY3d __, 2008 NY Slip Op 09856 [2008]) a 4-3 decision rendered on December 17, 2008, the Court held that where the trial court instructed the jury, pursuant to the above quoted language from the CJI, the instruction, which did not use the term "actual possession," failed to
convey that requirement to the jury. Although the jury instruction parroted the statute, we have previously noted that the ‘actual possession’ requirement is not explicit in the statute, but rather is based on judicial interpretation in decisional law.
Thus, the Court held that the conviction could be affirmed, even if there was legally insufficient proof of actual possession, since there was “legally sufficient evidence to establish that defendant 'used or threatened the immediate use' of a knife in the course of the robbery, as the trial court charged.”
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The other notable thing about this case is that the court found that defendant's trial order of dismissal motion was adequate to preserve the question of the legal sufficiency of the evidence. Unfortunately this is notable because despite acres of land being deforested to make the paper on which cases finding T.O.D. motions inadequate to preserve legal sufficiency claims are now printed, defense counsel continue to make "and the defendant challenges each and every element of every count charged in the indictment" pro forma T.O.D. motions.
ReplyDeleteThere is no point in making such a motion. It preserves nothing. It serves no function apart from fostering a misplaced impression of the lawyer's competence in the defendant's eyes while delaying the court staff's internet shopping opportunities for an extra 2 or 3 minutes.
This might work better:
1. Copy off the CJI charge for each count.
2. Highlight the elements in the charge.
3. Address each element in turn, offering specific examples of how the proof is legally insufficient with respect to that element.
3a. If, per Ford, the gravamen of an element, or a part of it is not clear from the CJI charge or the language of the statute, remember to specifically address the insufficiency of that part as well.
4. Move to dismiss based on each of the arguments raised, which you might think would be assumed, but having come this far, why leave it to chance?
Thus, the proper preservation of a frequently occurring legal issue is transformed from a mystical Kabuki dance which few successfully perform to a task requiring little skill or imagination: verbally comparing the case proof to the relevant legal elements.