Parole Cannot Be Denied Solely Due To Seriousness of Crime

In Matter of Johnson v New York State Div. of Parole (2009 NY Slip Op 06359 [4th Dept 8/27/09]) an appeal from the dismissal of an Article 78 petition challenging the denial of parole, the Fourth Department reversed and ordered a new parole hearing upon a finding that the Parole Board failed to weigh all of the relevant statutory factors and that there is "a strong indication that the denial of petitioner's application was a foregone conclusion." The Court explained that

Although parole release determinations are discretionary, the Parole Board is required "to give fair consideration to each of the applicable statutory factors as to every person who comes before it, and where the record convincingly demonstrates that the [Parole] Board did in fact fail to consider the proper standards, the courts must intervene" (citations omitted)." In this case,

the only reason for the Parole Board's denial of parole that is discernable from the perfunctory reference to "[t]he violence associated with this terrible crime" is that the determination was based solely upon the seriousness of the crime. "The Legislature, however, has not defined seriousness of [the] crime' in terms of specific categories of either crimes or victims and it is apparent that in order to preclude the granting of parole exclusively on this ground there must have been some significantly aggravating or egregious circumstances surrounding the commission of the particular crime" (citation omitted). Here, the mere reference to the violence of the crime, without elaboration, does not constitute the requisite "aggravating circumstances beyond the inherent seriousness of the crime itself" (id.). Further, the record is devoid of any indication that the Parole Board in fact considered the statutory factors that weighed in favor of petitioner's release, such as petitioner's exemplary institutional record and the favorable remarks of County Court at the time of sentencing. In fact, during the notably truncated hearing, the Parole Board focused on matters unrelated to any statutory factor.

Parole Cannot Be Denied Solely Due To Seriousness of Crime

In Matter of Johnson v New York State Div. of Parole (2009 NY Slip Op 06359 [4th Dept 8/27/09]) an appeal from the dismissal of an Article 78 petition challenging the denial of parole, the Fourth Department reversed and ordered a new parole hearing upon a finding that the Parole Board failed to weigh all of the relevant statutory factors and that there is "a strong indication that the denial of petitioner's application was a foregone conclusion." The Court explained that

Although parole release determinations are discretionary, the Parole Board is required "to give fair consideration to each of the applicable statutory factors as to every person who comes before it, and where the record convincingly demonstrates that the [Parole] Board did in fact fail to consider the proper standards, the courts must intervene" (citations omitted)." In this case,

the only reason for the Parole Board's denial of parole that is discernable from the perfunctory reference to "[t]he violence associated with this terrible crime" is that the determination was based solely upon the seriousness of the crime. "The Legislature, however, has not defined seriousness of [the] crime' in terms of specific categories of either crimes or victims and it is apparent that in order to preclude the granting of parole exclusively on this ground there must have been some significantly aggravating or egregious circumstances surrounding the commission of the particular crime" (citation omitted). Here, the mere reference to the violence of the crime, without elaboration, does not constitute the requisite "aggravating circumstances beyond the inherent seriousness of the crime itself" (id.). Further, the record is devoid of any indication that the Parole Board in fact considered the statutory factors that weighed in favor of petitioner's release, such as petitioner's exemplary institutional record and the favorable remarks of County Court at the time of sentencing. In fact, during the notably truncated hearing, the Parole Board focused on matters unrelated to any statutory factor.

In 2004, the United States Supreme Court, in Crawford v. Washington (541 U.S. 36 [2004]), overruled its prior holding in Ohio v Roberts ( 41 U.S. 36 [2004]) that reliability of hearsay evidence is the test for admissibility, and held that “Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination…. [T]he only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.”

In holdings which limited the impact of the Crawford hold state courts have frequently looked at the issue of reliability in determining whether evidence was testimonial and subject to confrontation. For example the Court of Appeals in People v Rawlins and People v Meekins (10 N.Y.3d 136 [2/19/2008]), considered how Crawford applies two categories of evidence: DNA reports and , fingerprints, comparisons. The Court held that the test for testimonial evidence under Crawford is not the expectation of the declarant that the statement would be used in court. Rather, the Court of Appeals in Rawlins held that the Crawford test for testimonial has three primary factors: we look not only to [1] the interrogator's primary purpose in questioning, but also, [2] in declarant's view, to the purpose the statement was intended to serve, and to [3] the motivation for the statement. Applying this test the Court held that fingerprint comparison reports are testimonial and the fact that they are kept in the ordinary course of business of the police is irrelevant. In Meekins the Court held that DNA profiles, as opposed to DNA comparisons, are not testimonial. The Court explained

the testing and procedures employed in this case were "neither discretionary nor based on opinion" nor did they concern the exercise of fallible human judgment over questions of cause and effect. This is not to say that errors could not have been made in the testing procedure itself. But those errors, if any, are not the product of "testimony" as we understand that term. Because the Gene Screen technicians only contemporaneously...Further, it is of no moment that the Gene Screen technicians knew or had every reason to know (because they were working on a rape kit) that their findings could generate results that could later be used at trial, nor that Gene Screen was performing work for law enforcement. Neither the prosecution nor law enforcement could have influenced the outcome; the government's involvement is inconsequential. Finally, the documents prepared by the Gene Screen technicians were not directly accusatory; none of them compared the DNA profile they generated to defendant's.

Was the Court correct? A variation of this issue was decided by the United States Supreme Court in Melendez-Diaz v. Massachusetts (129 S.Ct. 2527 [June 25, 2009]), in which the Court held that, under the Sixth Amendment, as interpreted in Crawford the Confrontation Clause requires that the expert who prepared a scientific report must be produced at trial so that the defendant has the opportunity to cross-examine the expert. The test for testimonial in Melendez-Diaz was that the statements were made “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”

So does this mean that the Court of Appeals was wrong in Meekins? Maybe not. After Melendez-Diaz was decided certiorari was denied in Meekins.

Also, the Court granted certiorari in Briscoe v Virginia where the issue is whether where a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness.

Some (here and here) have speculated that because Melendez-Diaz was a 5-4 decision with an unusual split (the majority was comprised of Scalia, Thomas, Souter, Stevens, and Ginsberg) and Souter is gone, replaced by Sotomayor, a former prosecutor, Briscoe might overturn Melendez-Diaz. Others are less concerned. Stay tuned.

In 2004, the United States Supreme Court, in Crawford v. Washington (541 U.S. 36 [2004]), overruled its prior holding in Ohio v Roberts ( 41 U.S. 36 [2004]) that reliability of hearsay evidence is the test for admissibility, and held that “Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination…. [T]he only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.”

In holdings which limited the impact of the Crawford hold state courts have frequently looked at the issue of reliability in determining whether evidence was testimonial and subject to confrontation. For example the Court of Appeals in People v Rawlins and People v Meekins (10 N.Y.3d 136 [2/19/2008]), considered how Crawford applies two categories of evidence: DNA reports and , fingerprints, comparisons. The Court held that the test for testimonial evidence under Crawford is not the expectation of the declarant that the statement would be used in court. Rather, the Court of Appeals in Rawlins held that the Crawford test for testimonial has three primary factors: we look not only to [1] the interrogator's primary purpose in questioning, but also, [2] in declarant's view, to the purpose the statement was intended to serve, and to [3] the motivation for the statement. Applying this test the Court held that fingerprint comparison reports are testimonial and the fact that they are kept in the ordinary course of business of the police is irrelevant. In Meekins the Court held that DNA profiles, as opposed to DNA comparisons, are not testimonial. The Court explained

the testing and procedures employed in this case were "neither discretionary nor based on opinion" nor did they concern the exercise of fallible human judgment over questions of cause and effect. This is not to say that errors could not have been made in the testing procedure itself. But those errors, if any, are not the product of "testimony" as we understand that term. Because the Gene Screen technicians only contemporaneously...Further, it is of no moment that the Gene Screen technicians knew or had every reason to know (because they were working on a rape kit) that their findings could generate results that could later be used at trial, nor that Gene Screen was performing work for law enforcement. Neither the prosecution nor law enforcement could have influenced the outcome; the government's involvement is inconsequential. Finally, the documents prepared by the Gene Screen technicians were not directly accusatory; none of them compared the DNA profile they generated to defendant's.

Was the Court correct? A variation of this issue was decided by the United States Supreme Court in Melendez-Diaz v. Massachusetts (129 S.Ct. 2527 [June 25, 2009]), in which the Court held that, under the Sixth Amendment, as interpreted in Crawford the Confrontation Clause requires that the expert who prepared a scientific report must be produced at trial so that the defendant has the opportunity to cross-examine the expert. The test for testimonial in Melendez-Diaz was that the statements were made “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”

So does this mean that the Court of Appeals was wrong in Meekins? Maybe not. After Melendez-Diaz was decided certiorari was denied in Meekins.

Also, the Court granted certiorari in Briscoe v Virginia where the issue is whether where a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness.

Some (here and here) have speculated that because Melendez-Diaz was a 5-4 decision with an unusual split (the majority was comprised of Scalia, Thomas, Souter, Stevens, and Ginsberg) and Souter is gone, replaced by Sotomayor, a former prosecutor, Briscoe might overturn Melendez-Diaz. Others are less concerned. Stay tuned.

In 1995, in People v Gray (86 NY2d 10 [1995]) the Court of Appeals held that a motion for a trial order of dismissal on the grounds of insufficiency of proof must specify the insufficiency in order to preserve the issue for review. When motion to dismiss is not sufficiently specific there is not a preserved issue of law before the appellate court (See People v Hawkins, 11 NY3d 484 [2008](discussed here).

One would think that fourteen years later defense attorneys would be familiar with and comply with the requirement that there be a specific motion for a trial order of dismissal. Based on the frequency of decisions in which the appellate court has held that the issue of sufficiency of proof raised on appeal was not preserved for review as a matter of law, it is clear that the holding of Gray had yet to become part of the DNA of defense counsel.

this is not hyperbole. In June and July, 2009, the Appellate Division, Fourth Department issued three packets of decisions. In all three packets there was a decision in which the trial attorney had not raised a specific motion for a trial order of dismissal. First, on June 5, 2009 in People v Joseph (63 AD3d 1658 [June 5, 2009]), then on June 12, 2009, in People v Mills (63 AD3d 1717 [June 12, 2009]) and, again on July 10, 2009 in People v Reome (2009 NY Slip Op 05804 [July 10, 2009]).

Since 1995 there have been more than 1500 such decisions statewide. In an effort to deal with this problem, Don Thompson and I will be lecturing at the Appellate Division, Fourth Department September 2009 trainer on appellate strategies when the attorney failed to preserve the issue. Then in October, I will be be presenting a CLE for NYSDA on the ethical implications of the failure of preserve the issue of insufficiency of proof.

In 1995, in People v Gray (86 NY2d 10 [1995]) the Court of Appeals held that a motion for a trial order of dismissal on the grounds of insufficiency of proof must specify the insufficiency in order to preserve the issue for review. When motion to dismiss is not sufficiently specific there is not a preserved issue of law before the appellate court (See People v Hawkins, 11 NY3d 484 [2008](discussed here).

One would think that fourteen years later defense attorneys would be familiar with and comply with the requirement that there be a specific motion for a trial order of dismissal. Based on the frequency of decisions in which the appellate court has held that the issue of sufficiency of proof raised on appeal was not preserved for review as a matter of law, it is clear that the holding of Gray had yet to become part of the DNA of defense counsel.

this is not hyperbole. In June and July, 2009, the Appellate Division, Fourth Department issued three packets of decisions. In all three packets there was a decision in which the trial attorney had not raised a specific motion for a trial order of dismissal. First, on June 5, 2009 in People v Joseph (63 AD3d 1658 [June 5, 2009]), then on June 12, 2009, in People v Mills (63 AD3d 1717 [June 12, 2009]) and, again on July 10, 2009 in People v Reome (2009 NY Slip Op 05804 [July 10, 2009]).

Since 1995 there have been more than 1500 such decisions statewide. In an effort to deal with this problem, Don Thompson and I will be lecturing at the Appellate Division, Fourth Department September 2009 trainer on appellate strategies when the attorney failed to preserve the issue. Then in October, I will be be presenting a CLE for NYSDA on the ethical implications of the failure of preserve the issue of insufficiency of proof.