We don't see misuse of NYCTA MetroCard charges very often, but the Court of Appeals decided such a case today in People v Hightower (#223 decided December 23, 2011). What makes the case applicable to us is that the defendant pled guilty to Petit Larceny, and a unanimous Court of Appeals dismissed the charges because the accusatory was jurisdictionally defective.
Hightower was charged with three charges, PL and two relating to the specific activity (swiping an unlimited MetroCard and accepting money for allowing another person to ride the subway). As I said, he pled to PL, so the fact that the other charges were perfectly well established by the accusatory was irrelevant. The prosecution claimed that Hightower had stolen the (unknown amount of) money which he obtained for use of the card. The Court of Appeals ruled that this money was never owned by the NYC Transit Authority. What is important for our purposes is not the discussion of when an agency becomes owner of the currency, but what failures in a misdemeanor accusatory will render it jurisdictionally defective.
"In People v Dreyden (15 NY3d 100, 103 [2010]), we recognized two broad categories of defects to be used as guideposts in determining whether an accusatory instrument is jurisdictionally flawed: "[t]he distinction between jurisdictional and nonjurisdictional defects 'is between defects implicating the integrity of the process . . . and less fundamental flaws, such as evidentiary or technical matters'" (quoting People v Hansen 95 NY2d 227, 231 [2000]) and we find that the violation of the reasonable cause requirement (as set forth in CPL 100.40 [4][b]) here falls into the first category.
In order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged. Although the information in this case described the events with enough clarity to provide reasonable cause that defendant was engaged in the unlawful sale of NYCTA services and providing unlawful access to NYCTA services, we hold that it was jurisdictionally defective as to the crime of which defendant was actually convicted -- petit larceny."
100.40(4)(b) provides in turn "(b) The allegations of the factual part of such accusatory instrument and/or any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument."
Read together, these two provisions strike me as broad enough to be generally applicable to all failures of the accusatory to substantiate the charge against the defendant, except perhaps when the failure can be deemed "technical". My opinion: few things are going to be more technical than the issue of who owns the money a defendant collects for allowing someone to use his MetroCard. So if that's not technical, most of your cases will not be, either.
This is not a new rule of law, but it is a common occurrence, and so worth keeping in mind. This is especially true for two reasons. First, the defendant pled to PL, which normally vitiates any complaints about sufficiency, and the charges were nonetheless dismissed on appeal. That's a strong rule. Second, because the defendant had already served his time, the charges were dismissed outright. That's a pretty good result for reading the accusatory carefully.
Tuesday, December 13, 2011
We don't see misuse of NYCTA MetroCard charges very often, but the Court of Appeals decided such a case today in People v Hightower (#223 decided December 23, 2011). What makes the case applicable to us is that the defendant pled guilty to Petit Larceny, and a unanimous Court of Appeals dismissed the charges because the accusatory was jurisdictionally defective.
Hightower was charged with three charges, PL and two relating to the specific activity (swiping an unlimited MetroCard and accepting money for allowing another person to ride the subway). As I said, he pled to PL, so the fact that the other charges were perfectly well established by the accusatory was irrelevant. The prosecution claimed that Hightower had stolen the (unknown amount of) money which he obtained for use of the card. The Court of Appeals ruled that this money was never owned by the NYC Transit Authority. What is important for our purposes is not the discussion of when an agency becomes owner of the currency, but what failures in a misdemeanor accusatory will render it jurisdictionally defective.
"In People v Dreyden (15 NY3d 100, 103 [2010]), we recognized two broad categories of defects to be used as guideposts in determining whether an accusatory instrument is jurisdictionally flawed: "[t]he distinction between jurisdictional and nonjurisdictional defects 'is between defects implicating the integrity of the process . . . and less fundamental flaws, such as evidentiary or technical matters'" (quoting People v Hansen 95 NY2d 227, 231 [2000]) and we find that the violation of the reasonable cause requirement (as set forth in CPL 100.40 [4][b]) here falls into the first category.
In order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged. Although the information in this case described the events with enough clarity to provide reasonable cause that defendant was engaged in the unlawful sale of NYCTA services and providing unlawful access to NYCTA services, we hold that it was jurisdictionally defective as to the crime of which defendant was actually convicted -- petit larceny."
100.40(4)(b) provides in turn "(b) The allegations of the factual part of such accusatory instrument and/or any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument."
Read together, these two provisions strike me as broad enough to be generally applicable to all failures of the accusatory to substantiate the charge against the defendant, except perhaps when the failure can be deemed "technical". My opinion: few things are going to be more technical than the issue of who owns the money a defendant collects for allowing someone to use his MetroCard. So if that's not technical, most of your cases will not be, either.
This is not a new rule of law, but it is a common occurrence, and so worth keeping in mind. This is especially true for two reasons. First, the defendant pled to PL, which normally vitiates any complaints about sufficiency, and the charges were nonetheless dismissed on appeal. That's a strong rule. Second, because the defendant had already served his time, the charges were dismissed outright. That's a pretty good result for reading the accusatory carefully.
Hightower was charged with three charges, PL and two relating to the specific activity (swiping an unlimited MetroCard and accepting money for allowing another person to ride the subway). As I said, he pled to PL, so the fact that the other charges were perfectly well established by the accusatory was irrelevant. The prosecution claimed that Hightower had stolen the (unknown amount of) money which he obtained for use of the card. The Court of Appeals ruled that this money was never owned by the NYC Transit Authority. What is important for our purposes is not the discussion of when an agency becomes owner of the currency, but what failures in a misdemeanor accusatory will render it jurisdictionally defective.
"In People v Dreyden (15 NY3d 100, 103 [2010]), we recognized two broad categories of defects to be used as guideposts in determining whether an accusatory instrument is jurisdictionally flawed: "[t]he distinction between jurisdictional and nonjurisdictional defects 'is between defects implicating the integrity of the process . . . and less fundamental flaws, such as evidentiary or technical matters'" (quoting People v Hansen 95 NY2d 227, 231 [2000]) and we find that the violation of the reasonable cause requirement (as set forth in CPL 100.40 [4][b]) here falls into the first category.
In order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged. Although the information in this case described the events with enough clarity to provide reasonable cause that defendant was engaged in the unlawful sale of NYCTA services and providing unlawful access to NYCTA services, we hold that it was jurisdictionally defective as to the crime of which defendant was actually convicted -- petit larceny."
100.40(4)(b) provides in turn "(b) The allegations of the factual part of such accusatory instrument and/or any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument."
Read together, these two provisions strike me as broad enough to be generally applicable to all failures of the accusatory to substantiate the charge against the defendant, except perhaps when the failure can be deemed "technical". My opinion: few things are going to be more technical than the issue of who owns the money a defendant collects for allowing someone to use his MetroCard. So if that's not technical, most of your cases will not be, either.
This is not a new rule of law, but it is a common occurrence, and so worth keeping in mind. This is especially true for two reasons. First, the defendant pled to PL, which normally vitiates any complaints about sufficiency, and the charges were nonetheless dismissed on appeal. That's a strong rule. Second, because the defendant had already served his time, the charges were dismissed outright. That's a pretty good result for reading the accusatory carefully.
Thursday, December 8, 2011
by
Jill Paperno
Special Assistant Monroe County Public Defender
1. When Is An Alleged Robbery Not A Robbery? (Was it a forcible stealing?)
Penal Law Section 160 defines robbery as "forcible stealing." The statute states "A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of:
1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or 2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aides in the commission of the larceny.
we handle many cases in which a client steals items from a supermarket or store, and engages in a confrontation with security or the owner. Whether that confrontation makes the petit larceny a robbery depends on the particular facts of the case. If the defendant, with steaks tucked neatly wherever steaks may be tucked fights the officers, then there is a basis for a robbery charge. If, however, the defendant, hearing security officers' calls to stop, abandons the property and then fights off the officers, or they fall out before the confrontation, there is no robbery.
In People v. Nixon 156 AD2d 144 (First Dept. 1989) the First Department addressed this issue. Mr. Nixon, apparently smitten and broke, stole roses from a florist's stand. The florist pursued him and a physical confrontation involving the florist and a police officer followed. The roses were not found on Mr. Nixon after the confrontation. The First Department reduced Nixon's conviction from Robbery in the Third Degree to Petit Larceny, stating
"To sustain a conviction of robbery in the third degree, the prosecution must prove that the defendant used force in the commission of the theft (Penal Law § 160.05). More specifically, it must be shown not simply that the incident included the use of force, but that the defendant used or threatened 'the immediate use of physical force upon another person for the purpose of: 1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or 2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny' (Penal Law § 160.00; see also People v. Rudelt, 6 A.D.2d 640, 642, 179 N.Y.S.2d 916; People v. Chessman, 75 A.D.2d 187, 193–94, 429 N.Y.S.2d 224, appeal dismissed, 54 N.Y.2d 1016, 446 N.Y.S.2d 248, 430 N.E.2d 1301). The issue presented by the facts at bar is whether it was established that the defendant did, in fact, use physical force 'for the purpose of ... preventing or overcoming resistance ... to the retention [of the stolen property] immediately after the taking.' We do not think that it was.'"
In People v. Miller 217 AD2d 970 (Fourth Dept. 1995) (an appeal from one of my cases where the appellate attorney did way better than I did!) the Fourth Department recognized the requirement that the use of force be for the purpose of taking or retaining the property.
"In order to sustain a conviction for robbery in any degree, it must be shown that, in the course of committing a larceny, defendant used or threatened the immediate use of physical force upon another person for the purpose of either preventing or overcoming resistance to the taking of the property or the retention thereof or for the purpose of compelling the owner to deliver up the property' ( People v. Smith, 166 A.D.2d 879, 879–880, 560 N.Y.S.2d 718, lv. denied 77 N.Y.2d 882, 568 N.Y.S.2d 925, 571 N.E.2d 95, 78 N.Y.2d 927, 573 N.Y.S.2d 479, 577 N.E.2d 1071; see, Penal Law § 160.00). Thus, if the jury had rejected the prosecution's theory that defendant remained in possession of the stolen property (the meat) at the time that he threatened the use of physical force, the jury could not (emphasis added) have concluded that his 'conscious objective in threatening to use physical force was to prevent or overcome resistance to the retention of the property' ( People v. Kellam, 189 A.D.2d 1008, 1010, 592 N.Y.S.2d 864, citing People v. Nixon, 156 A.D.2d 144, 146, 548 N.Y.S.2d 194, appeal dismissed 76 N.Y.2d 870, 560 N.Y.S.2d 984, 561 N.E.2d 884)."
So when you have one of these cases, consider the statements of the security officers, owner or other witnesses, and whether they indicate the property was no longer on the defendant at the time the confrontation ensued.
2. Robbery in the First Degree - subdivisions 2, 3 and 4
Subdivision 2
While we're on the topic, when is a Robbery in the First Degree properly charged under 160.15(2) or (3) and (4) and what is the difference? Subdivision 2 is the charge that a person forcibly steals property and while doing so, he or another participant "is armed with a deadly weapon." Penal Law Section 10.00 (the definitions section), subdivision 12 defines "deadly weapon" as "any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged, or a switchblade knife, gravity knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, plastic knuckles or metal knuckles." So if a defendant is alleged to have engaged in a robbery by either threatening or using a weapon that is not shown and not recovered, threatening or using a gun that is not discharged (to establish it is loaded) or threatening or using one of these other types of weapons, you should be able to challenge the indictment with respect to that charge.
Subdivision 3
The definition of robbery under subdivision 3 requires the defendant use or threaten the immediate use of a dangerous instrument. Immediate is the critical word there. In People v. Pena, the Court of Appeals stated, "Decisional law tells us that, though the statutory ground upon which the first degree robbery count was brought is not explicit in that regard (Penal Law, s 160.15, subd. 3), the jury was required to find that Turrell actually possessed a dangerous instrument at the time of the crime (see People v. Early, 59 A.D.2d 912, 399 N.Y.S.2d 145; People v. Briggs, 52 A.D.2d 1053, 384 N.Y.S.2d 894)." Thus, to be convicted of a charge of robbery requiring the use or threat of immediate use of a dangerous instrument, there must be proof beyond a reasonable doubt that the defendant actually possessed a dangerous instrument. (For the definition of dangerous instrument see Penal Law Section 10.00(13). The Court of Appeals, in People v. Grant 17 NY3d 613 clearly stated this past fall that a defendant's statement alone is insufficient to establish his or her possession of a dangerous instrument.
"We now hold, in accord with Appellate Division precedent, that a defendant's statement that he is in possession of a dangerous instrument, standing alone, does not supply sufficient proof to establish actual possession of a dangerous instrument at the time of the crime to support the charge of first-degree robbery. Rather, we conclude that this type of statement—whether in the form of a verbal threat or a handwritten note—only establishes the threat of physical force necessary to support the charge of third-degree robbery. Accordingly, the People must furnish additional proof, separate and apart from a defendant's statement, that would permit a rational fact finder to infer that a defendant was in actual possession of a dangerous instrument ( see Bello, 92 N.Y.2d at 526, 683 N.Y.S.2d 168, 705 N.E.2d 1209). To hold otherwise would blur the distinction created in the carefully calibrated statutory scheme between the lesser included offense of third-degree robbery, a class D non-violent felony ( see Penal Law § 160.05) and the aggravated charge of first-degree robbery, a class B violent felony ( see Penal Law §§ 160.15[3]; 70.02[1][a] ). Indeed, as we stated in Pena, it is the actual “ employment ” of a dangerous instrument that elevates the use or threat of physical force to first-degree robbery ( see 50 N.Y.2d at 408 n. 2, 429 N.Y.S.2d 410, 406 N.E.2d 1347 [emphasis in original] )."
So a defendant who provides a note to a bank teller indicating s/he has a weapon, but does not gesture or actually possess a weapon, may be guilty of Robbery in the Third Degree, but not Robbery in the First Degree.
Subdivision 4
Subdivision 4 requires that the defendant "display what appears to be a pistol, revolver (or other type of gun listed in the statute). The gun does not have to be operational, or even a real gun for a defendant to be charged with Robbery in the First Degree under this statute. In fact, the defendant may be holding his hand in his jacket in order to be charged under this statute. It is an affirmative defense that the gun is not "a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged." Thus, if your client is charged under this statute and the gun is inoperable, or a BB gun, there is insufficient proof of Robbery in the First Degree. But there is proof of Robbery in the Second Degree, 160.10(2)(b). There are the rare cases where you hope your client is caught with the gun, because if the gun is not found, and you do not have another defense, you may have to prove the affirmative defense to get the lesser charge.
Jill Paperno
Special Assistant Monroe County Public Defender
1. When Is An Alleged Robbery Not A Robbery? (Was it a forcible stealing?)
Penal Law Section 160 defines robbery as "forcible stealing." The statute states "A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of:
1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or 2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aides in the commission of the larceny.
we handle many cases in which a client steals items from a supermarket or store, and engages in a confrontation with security or the owner. Whether that confrontation makes the petit larceny a robbery depends on the particular facts of the case. If the defendant, with steaks tucked neatly wherever steaks may be tucked fights the officers, then there is a basis for a robbery charge. If, however, the defendant, hearing security officers' calls to stop, abandons the property and then fights off the officers, or they fall out before the confrontation, there is no robbery.
In People v. Nixon 156 AD2d 144 (First Dept. 1989) the First Department addressed this issue. Mr. Nixon, apparently smitten and broke, stole roses from a florist's stand. The florist pursued him and a physical confrontation involving the florist and a police officer followed. The roses were not found on Mr. Nixon after the confrontation. The First Department reduced Nixon's conviction from Robbery in the Third Degree to Petit Larceny, stating
"To sustain a conviction of robbery in the third degree, the prosecution must prove that the defendant used force in the commission of the theft (Penal Law § 160.05). More specifically, it must be shown not simply that the incident included the use of force, but that the defendant used or threatened 'the immediate use of physical force upon another person for the purpose of: 1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or 2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny' (Penal Law § 160.00; see also People v. Rudelt, 6 A.D.2d 640, 642, 179 N.Y.S.2d 916; People v. Chessman, 75 A.D.2d 187, 193–94, 429 N.Y.S.2d 224, appeal dismissed, 54 N.Y.2d 1016, 446 N.Y.S.2d 248, 430 N.E.2d 1301). The issue presented by the facts at bar is whether it was established that the defendant did, in fact, use physical force 'for the purpose of ... preventing or overcoming resistance ... to the retention [of the stolen property] immediately after the taking.' We do not think that it was.'"
In People v. Miller 217 AD2d 970 (Fourth Dept. 1995) (an appeal from one of my cases where the appellate attorney did way better than I did!) the Fourth Department recognized the requirement that the use of force be for the purpose of taking or retaining the property.
"In order to sustain a conviction for robbery in any degree, it must be shown that, in the course of committing a larceny, defendant used or threatened the immediate use of physical force upon another person for the purpose of either preventing or overcoming resistance to the taking of the property or the retention thereof or for the purpose of compelling the owner to deliver up the property' ( People v. Smith, 166 A.D.2d 879, 879–880, 560 N.Y.S.2d 718, lv. denied 77 N.Y.2d 882, 568 N.Y.S.2d 925, 571 N.E.2d 95, 78 N.Y.2d 927, 573 N.Y.S.2d 479, 577 N.E.2d 1071; see, Penal Law § 160.00). Thus, if the jury had rejected the prosecution's theory that defendant remained in possession of the stolen property (the meat) at the time that he threatened the use of physical force, the jury could not (emphasis added) have concluded that his 'conscious objective in threatening to use physical force was to prevent or overcome resistance to the retention of the property' ( People v. Kellam, 189 A.D.2d 1008, 1010, 592 N.Y.S.2d 864, citing People v. Nixon, 156 A.D.2d 144, 146, 548 N.Y.S.2d 194, appeal dismissed 76 N.Y.2d 870, 560 N.Y.S.2d 984, 561 N.E.2d 884)."
So when you have one of these cases, consider the statements of the security officers, owner or other witnesses, and whether they indicate the property was no longer on the defendant at the time the confrontation ensued.
2. Robbery in the First Degree - subdivisions 2, 3 and 4
Subdivision 2
While we're on the topic, when is a Robbery in the First Degree properly charged under 160.15(2) or (3) and (4) and what is the difference? Subdivision 2 is the charge that a person forcibly steals property and while doing so, he or another participant "is armed with a deadly weapon." Penal Law Section 10.00 (the definitions section), subdivision 12 defines "deadly weapon" as "any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged, or a switchblade knife, gravity knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, plastic knuckles or metal knuckles." So if a defendant is alleged to have engaged in a robbery by either threatening or using a weapon that is not shown and not recovered, threatening or using a gun that is not discharged (to establish it is loaded) or threatening or using one of these other types of weapons, you should be able to challenge the indictment with respect to that charge.
Subdivision 3
The definition of robbery under subdivision 3 requires the defendant use or threaten the immediate use of a dangerous instrument. Immediate is the critical word there. In People v. Pena, the Court of Appeals stated, "Decisional law tells us that, though the statutory ground upon which the first degree robbery count was brought is not explicit in that regard (Penal Law, s 160.15, subd. 3), the jury was required to find that Turrell actually possessed a dangerous instrument at the time of the crime (see People v. Early, 59 A.D.2d 912, 399 N.Y.S.2d 145; People v. Briggs, 52 A.D.2d 1053, 384 N.Y.S.2d 894)." Thus, to be convicted of a charge of robbery requiring the use or threat of immediate use of a dangerous instrument, there must be proof beyond a reasonable doubt that the defendant actually possessed a dangerous instrument. (For the definition of dangerous instrument see Penal Law Section 10.00(13). The Court of Appeals, in People v. Grant 17 NY3d 613 clearly stated this past fall that a defendant's statement alone is insufficient to establish his or her possession of a dangerous instrument.
"We now hold, in accord with Appellate Division precedent, that a defendant's statement that he is in possession of a dangerous instrument, standing alone, does not supply sufficient proof to establish actual possession of a dangerous instrument at the time of the crime to support the charge of first-degree robbery. Rather, we conclude that this type of statement—whether in the form of a verbal threat or a handwritten note—only establishes the threat of physical force necessary to support the charge of third-degree robbery. Accordingly, the People must furnish additional proof, separate and apart from a defendant's statement, that would permit a rational fact finder to infer that a defendant was in actual possession of a dangerous instrument ( see Bello, 92 N.Y.2d at 526, 683 N.Y.S.2d 168, 705 N.E.2d 1209). To hold otherwise would blur the distinction created in the carefully calibrated statutory scheme between the lesser included offense of third-degree robbery, a class D non-violent felony ( see Penal Law § 160.05) and the aggravated charge of first-degree robbery, a class B violent felony ( see Penal Law §§ 160.15[3]; 70.02[1][a] ). Indeed, as we stated in Pena, it is the actual “ employment ” of a dangerous instrument that elevates the use or threat of physical force to first-degree robbery ( see 50 N.Y.2d at 408 n. 2, 429 N.Y.S.2d 410, 406 N.E.2d 1347 [emphasis in original] )."
So a defendant who provides a note to a bank teller indicating s/he has a weapon, but does not gesture or actually possess a weapon, may be guilty of Robbery in the Third Degree, but not Robbery in the First Degree.
Subdivision 4
Subdivision 4 requires that the defendant "display what appears to be a pistol, revolver (or other type of gun listed in the statute). The gun does not have to be operational, or even a real gun for a defendant to be charged with Robbery in the First Degree under this statute. In fact, the defendant may be holding his hand in his jacket in order to be charged under this statute. It is an affirmative defense that the gun is not "a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged." Thus, if your client is charged under this statute and the gun is inoperable, or a BB gun, there is insufficient proof of Robbery in the First Degree. But there is proof of Robbery in the Second Degree, 160.10(2)(b). There are the rare cases where you hope your client is caught with the gun, because if the gun is not found, and you do not have another defense, you may have to prove the affirmative defense to get the lesser charge.
by
Jill Paperno
Special Assistant Monroe County Public Defender
1. When Is An Alleged Robbery Not A Robbery? (Was it a forcible stealing?)
Penal Law Section 160 defines robbery as "forcible stealing." The statute states "A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of:
1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or 2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aides in the commission of the larceny.
we handle many cases in which a client steals items from a supermarket or store, and engages in a confrontation with security or the owner. Whether that confrontation makes the petit larceny a robbery depends on the particular facts of the case. If the defendant, with steaks tucked neatly wherever steaks may be tucked fights the officers, then there is a basis for a robbery charge. If, however, the defendant, hearing security officers' calls to stop, abandons the property and then fights off the officers, or they fall out before the confrontation, there is no robbery.
In People v. Nixon 156 AD2d 144 (First Dept. 1989) the First Department addressed this issue. Mr. Nixon, apparently smitten and broke, stole roses from a florist's stand. The florist pursued him and a physical confrontation involving the florist and a police officer followed. The roses were not found on Mr. Nixon after the confrontation. The First Department reduced Nixon's conviction from Robbery in the Third Degree to Petit Larceny, stating
"To sustain a conviction of robbery in the third degree, the prosecution must prove that the defendant used force in the commission of the theft (Penal Law § 160.05). More specifically, it must be shown not simply that the incident included the use of force, but that the defendant used or threatened 'the immediate use of physical force upon another person for the purpose of: 1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or 2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny' (Penal Law § 160.00; see also People v. Rudelt, 6 A.D.2d 640, 642, 179 N.Y.S.2d 916; People v. Chessman, 75 A.D.2d 187, 193–94, 429 N.Y.S.2d 224, appeal dismissed, 54 N.Y.2d 1016, 446 N.Y.S.2d 248, 430 N.E.2d 1301). The issue presented by the facts at bar is whether it was established that the defendant did, in fact, use physical force 'for the purpose of ... preventing or overcoming resistance ... to the retention [of the stolen property] immediately after the taking.' We do not think that it was.'"
In People v. Miller 217 AD2d 970 (Fourth Dept. 1995) (an appeal from one of my cases where the appellate attorney did way better than I did!) the Fourth Department recognized the requirement that the use of force be for the purpose of taking or retaining the property.
"In order to sustain a conviction for robbery in any degree, it must be shown that, in the course of committing a larceny, defendant used or threatened the immediate use of physical force upon another person for the purpose of either preventing or overcoming resistance to the taking of the property or the retention thereof or for the purpose of compelling the owner to deliver up the property' ( People v. Smith, 166 A.D.2d 879, 879–880, 560 N.Y.S.2d 718, lv. denied 77 N.Y.2d 882, 568 N.Y.S.2d 925, 571 N.E.2d 95, 78 N.Y.2d 927, 573 N.Y.S.2d 479, 577 N.E.2d 1071; see, Penal Law § 160.00). Thus, if the jury had rejected the prosecution's theory that defendant remained in possession of the stolen property (the meat) at the time that he threatened the use of physical force, the jury could not (emphasis added) have concluded that his 'conscious objective in threatening to use physical force was to prevent or overcome resistance to the retention of the property' ( People v. Kellam, 189 A.D.2d 1008, 1010, 592 N.Y.S.2d 864, citing People v. Nixon, 156 A.D.2d 144, 146, 548 N.Y.S.2d 194, appeal dismissed 76 N.Y.2d 870, 560 N.Y.S.2d 984, 561 N.E.2d 884)."
So when you have one of these cases, consider the statements of the security officers, owner or other witnesses, and whether they indicate the property was no longer on the defendant at the time the confrontation ensued.
2. Robbery in the First Degree - subdivisions 2, 3 and 4
Subdivision 2
While we're on the topic, when is a Robbery in the First Degree properly charged under 160.15(2) or (3) and (4) and what is the difference? Subdivision 2 is the charge that a person forcibly steals property and while doing so, he or another participant "is armed with a deadly weapon." Penal Law Section 10.00 (the definitions section), subdivision 12 defines "deadly weapon" as "any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged, or a switchblade knife, gravity knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, plastic knuckles or metal knuckles." So if a defendant is alleged to have engaged in a robbery by either threatening or using a weapon that is not shown and not recovered, threatening or using a gun that is not discharged (to establish it is loaded) or threatening or using one of these other types of weapons, you should be able to challenge the indictment with respect to that charge.
Subdivision 3
The definition of robbery under subdivision 3 requires the defendant use or threaten the immediate use of a dangerous instrument. Immediate is the critical word there. In People v. Pena, the Court of Appeals stated, "Decisional law tells us that, though the statutory ground upon which the first degree robbery count was brought is not explicit in that regard (Penal Law, s 160.15, subd. 3), the jury was required to find that Turrell actually possessed a dangerous instrument at the time of the crime (see People v. Early, 59 A.D.2d 912, 399 N.Y.S.2d 145; People v. Briggs, 52 A.D.2d 1053, 384 N.Y.S.2d 894)." Thus, to be convicted of a charge of robbery requiring the use or threat of immediate use of a dangerous instrument, there must be proof beyond a reasonable doubt that the defendant actually possessed a dangerous instrument. (For the definition of dangerous instrument see Penal Law Section 10.00(13). The Court of Appeals, in People v. Grant 17 NY3d 613 clearly stated this past fall that a defendant's statement alone is insufficient to establish his or her possession of a dangerous instrument.
"We now hold, in accord with Appellate Division precedent, that a defendant's statement that he is in possession of a dangerous instrument, standing alone, does not supply sufficient proof to establish actual possession of a dangerous instrument at the time of the crime to support the charge of first-degree robbery. Rather, we conclude that this type of statement—whether in the form of a verbal threat or a handwritten note—only establishes the threat of physical force necessary to support the charge of third-degree robbery. Accordingly, the People must furnish additional proof, separate and apart from a defendant's statement, that would permit a rational fact finder to infer that a defendant was in actual possession of a dangerous instrument ( see Bello, 92 N.Y.2d at 526, 683 N.Y.S.2d 168, 705 N.E.2d 1209). To hold otherwise would blur the distinction created in the carefully calibrated statutory scheme between the lesser included offense of third-degree robbery, a class D non-violent felony ( see Penal Law § 160.05) and the aggravated charge of first-degree robbery, a class B violent felony ( see Penal Law §§ 160.15[3]; 70.02[1][a] ). Indeed, as we stated in Pena, it is the actual “ employment ” of a dangerous instrument that elevates the use or threat of physical force to first-degree robbery ( see 50 N.Y.2d at 408 n. 2, 429 N.Y.S.2d 410, 406 N.E.2d 1347 [emphasis in original] )."
So a defendant who provides a note to a bank teller indicating s/he has a weapon, but does not gesture or actually possess a weapon, may be guilty of Robbery in the Third Degree, but not Robbery in the First Degree.
Subdivision 4
Subdivision 4 requires that the defendant "display what appears to be a pistol, revolver (or other type of gun listed in the statute). The gun does not have to be operational, or even a real gun for a defendant to be charged with Robbery in the First Degree under this statute. In fact, the defendant may be holding his hand in his jacket in order to be charged under this statute. It is an affirmative defense that the gun is not "a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged." Thus, if your client is charged under this statute and the gun is inoperable, or a BB gun, there is insufficient proof of Robbery in the First Degree. But there is proof of Robbery in the Second Degree, 160.10(2)(b). There are the rare cases where you hope your client is caught with the gun, because if the gun is not found, and you do not have another defense, you may have to prove the affirmative defense to get the lesser charge.
Jill Paperno
Special Assistant Monroe County Public Defender
1. When Is An Alleged Robbery Not A Robbery? (Was it a forcible stealing?)
Penal Law Section 160 defines robbery as "forcible stealing." The statute states "A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of:
1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or 2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aides in the commission of the larceny.
we handle many cases in which a client steals items from a supermarket or store, and engages in a confrontation with security or the owner. Whether that confrontation makes the petit larceny a robbery depends on the particular facts of the case. If the defendant, with steaks tucked neatly wherever steaks may be tucked fights the officers, then there is a basis for a robbery charge. If, however, the defendant, hearing security officers' calls to stop, abandons the property and then fights off the officers, or they fall out before the confrontation, there is no robbery.
In People v. Nixon 156 AD2d 144 (First Dept. 1989) the First Department addressed this issue. Mr. Nixon, apparently smitten and broke, stole roses from a florist's stand. The florist pursued him and a physical confrontation involving the florist and a police officer followed. The roses were not found on Mr. Nixon after the confrontation. The First Department reduced Nixon's conviction from Robbery in the Third Degree to Petit Larceny, stating
"To sustain a conviction of robbery in the third degree, the prosecution must prove that the defendant used force in the commission of the theft (Penal Law § 160.05). More specifically, it must be shown not simply that the incident included the use of force, but that the defendant used or threatened 'the immediate use of physical force upon another person for the purpose of: 1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or 2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny' (Penal Law § 160.00; see also People v. Rudelt, 6 A.D.2d 640, 642, 179 N.Y.S.2d 916; People v. Chessman, 75 A.D.2d 187, 193–94, 429 N.Y.S.2d 224, appeal dismissed, 54 N.Y.2d 1016, 446 N.Y.S.2d 248, 430 N.E.2d 1301). The issue presented by the facts at bar is whether it was established that the defendant did, in fact, use physical force 'for the purpose of ... preventing or overcoming resistance ... to the retention [of the stolen property] immediately after the taking.' We do not think that it was.'"
In People v. Miller 217 AD2d 970 (Fourth Dept. 1995) (an appeal from one of my cases where the appellate attorney did way better than I did!) the Fourth Department recognized the requirement that the use of force be for the purpose of taking or retaining the property.
"In order to sustain a conviction for robbery in any degree, it must be shown that, in the course of committing a larceny, defendant used or threatened the immediate use of physical force upon another person for the purpose of either preventing or overcoming resistance to the taking of the property or the retention thereof or for the purpose of compelling the owner to deliver up the property' ( People v. Smith, 166 A.D.2d 879, 879–880, 560 N.Y.S.2d 718, lv. denied 77 N.Y.2d 882, 568 N.Y.S.2d 925, 571 N.E.2d 95, 78 N.Y.2d 927, 573 N.Y.S.2d 479, 577 N.E.2d 1071; see, Penal Law § 160.00). Thus, if the jury had rejected the prosecution's theory that defendant remained in possession of the stolen property (the meat) at the time that he threatened the use of physical force, the jury could not (emphasis added) have concluded that his 'conscious objective in threatening to use physical force was to prevent or overcome resistance to the retention of the property' ( People v. Kellam, 189 A.D.2d 1008, 1010, 592 N.Y.S.2d 864, citing People v. Nixon, 156 A.D.2d 144, 146, 548 N.Y.S.2d 194, appeal dismissed 76 N.Y.2d 870, 560 N.Y.S.2d 984, 561 N.E.2d 884)."
So when you have one of these cases, consider the statements of the security officers, owner or other witnesses, and whether they indicate the property was no longer on the defendant at the time the confrontation ensued.
2. Robbery in the First Degree - subdivisions 2, 3 and 4
Subdivision 2
While we're on the topic, when is a Robbery in the First Degree properly charged under 160.15(2) or (3) and (4) and what is the difference? Subdivision 2 is the charge that a person forcibly steals property and while doing so, he or another participant "is armed with a deadly weapon." Penal Law Section 10.00 (the definitions section), subdivision 12 defines "deadly weapon" as "any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged, or a switchblade knife, gravity knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, plastic knuckles or metal knuckles." So if a defendant is alleged to have engaged in a robbery by either threatening or using a weapon that is not shown and not recovered, threatening or using a gun that is not discharged (to establish it is loaded) or threatening or using one of these other types of weapons, you should be able to challenge the indictment with respect to that charge.
Subdivision 3
The definition of robbery under subdivision 3 requires the defendant use or threaten the immediate use of a dangerous instrument. Immediate is the critical word there. In People v. Pena, the Court of Appeals stated, "Decisional law tells us that, though the statutory ground upon which the first degree robbery count was brought is not explicit in that regard (Penal Law, s 160.15, subd. 3), the jury was required to find that Turrell actually possessed a dangerous instrument at the time of the crime (see People v. Early, 59 A.D.2d 912, 399 N.Y.S.2d 145; People v. Briggs, 52 A.D.2d 1053, 384 N.Y.S.2d 894)." Thus, to be convicted of a charge of robbery requiring the use or threat of immediate use of a dangerous instrument, there must be proof beyond a reasonable doubt that the defendant actually possessed a dangerous instrument. (For the definition of dangerous instrument see Penal Law Section 10.00(13). The Court of Appeals, in People v. Grant 17 NY3d 613 clearly stated this past fall that a defendant's statement alone is insufficient to establish his or her possession of a dangerous instrument.
"We now hold, in accord with Appellate Division precedent, that a defendant's statement that he is in possession of a dangerous instrument, standing alone, does not supply sufficient proof to establish actual possession of a dangerous instrument at the time of the crime to support the charge of first-degree robbery. Rather, we conclude that this type of statement—whether in the form of a verbal threat or a handwritten note—only establishes the threat of physical force necessary to support the charge of third-degree robbery. Accordingly, the People must furnish additional proof, separate and apart from a defendant's statement, that would permit a rational fact finder to infer that a defendant was in actual possession of a dangerous instrument ( see Bello, 92 N.Y.2d at 526, 683 N.Y.S.2d 168, 705 N.E.2d 1209). To hold otherwise would blur the distinction created in the carefully calibrated statutory scheme between the lesser included offense of third-degree robbery, a class D non-violent felony ( see Penal Law § 160.05) and the aggravated charge of first-degree robbery, a class B violent felony ( see Penal Law §§ 160.15[3]; 70.02[1][a] ). Indeed, as we stated in Pena, it is the actual “ employment ” of a dangerous instrument that elevates the use or threat of physical force to first-degree robbery ( see 50 N.Y.2d at 408 n. 2, 429 N.Y.S.2d 410, 406 N.E.2d 1347 [emphasis in original] )."
So a defendant who provides a note to a bank teller indicating s/he has a weapon, but does not gesture or actually possess a weapon, may be guilty of Robbery in the Third Degree, but not Robbery in the First Degree.
Subdivision 4
Subdivision 4 requires that the defendant "display what appears to be a pistol, revolver (or other type of gun listed in the statute). The gun does not have to be operational, or even a real gun for a defendant to be charged with Robbery in the First Degree under this statute. In fact, the defendant may be holding his hand in his jacket in order to be charged under this statute. It is an affirmative defense that the gun is not "a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged." Thus, if your client is charged under this statute and the gun is inoperable, or a BB gun, there is insufficient proof of Robbery in the First Degree. But there is proof of Robbery in the Second Degree, 160.10(2)(b). There are the rare cases where you hope your client is caught with the gun, because if the gun is not found, and you do not have another defense, you may have to prove the affirmative defense to get the lesser charge.
Wednesday, December 7, 2011
by
Janet C. Somes
Assistant Monroe County Public Defender
Jim's Eckert recently posted a column on consecutive sentences on misdemeanors (see). This post addresses an additional aspect of that issue
Sometimes courts try to extend a person's liability as far out as possible, and use probation on the second offense to do so by imposing a maximum sentence of a year or six months on one crime and imposing a probationary sentence on another. It is important for attorneys (and judges) to know that, in fact, it is impermissible to impose a probation sentence, where the court has imposed another sentence of over 60 days. In other words, a court may not use probation as a rider to extend a person's exposure where it is also imposing a sentence of more than 60 days.
Penal Law § 60.01(2)(d) provides that “[i]n any case where the court imposes a sentence of imprisonment not in excess of sixty days, for a misdemeanor . . . it may also impose a sentence of probation . . .” Even where sentences are imposed upon separate charges or counts, the provisions of Penal Law 60.01 (2)(d) apply to prohibit the imposition of a sentence of probation as to one charge, where a sentence of imprisonment in excess of the limits set forth therein (60 days for a misdemeanor) have been imposed on another charge (see People v Cerilli, 80 NY2d 1016 [1992][sentencing court’s imposition of probation, along with a term of incarceration on a separate charge in excess of that permitted under PL 60.01 (2)(d), prohibited]; People v Curkendall, 141 AD2d 891 [3d Dept 1988] [imposing sentence in excess of 60 days for misdemeanor and five year probation for felony did not comply with statutory proscriptions for sentencing on more than one crime]; People v Singh, 213 AD2d 568 [2d Dept 1995][impermissible to impose sentence of probation on one felony count and a sentence of imprisonment in excess of six months on another felony count - - appellate court vacated “split” and imposed the definite sentence only]; People v Bucci, 122 AD2d 562 [4th Dept 1986][sentencing defendant to intermittent incarceration in excess of four months on one charge, and probation on the other, prohibited]; People v McIntyre,135 AD2d 920 [3d Dept 1987] [sentencing defendant to incarceration in excess of six months for one felony count and probation on the other, prohibited]; People v Edwards, 108 AD2d 686 [2d Dept 1985] [sentencing defendant to incarceration in excess of 60 days for misdemeanor, and probation, prohibited]).
This prohibition applies even where crimes are unrelated, non-transactional and ordered to run concurrent or consecutive. The reason a court may not impose a concurrent sentence of probation on a defendant who is also sentenced to imprisonment on another charge is because probation is inappropriate for a defendant who is incarcerated as the basic purpose of probation is to provide supervision for an offender without removing him from the community (Cerilli, 80 NY2d 1016). And, a court may not impose a sentence of probation in any case, where a defendant has an undischarged sentence of incarceration of more than one year on a previous crime (Penal Law § 65.00 [1][b][iv]).
Janet C. Somes
Assistant Monroe County Public Defender
Jim's Eckert recently posted a column on consecutive sentences on misdemeanors (see). This post addresses an additional aspect of that issue
Sometimes courts try to extend a person's liability as far out as possible, and use probation on the second offense to do so by imposing a maximum sentence of a year or six months on one crime and imposing a probationary sentence on another. It is important for attorneys (and judges) to know that, in fact, it is impermissible to impose a probation sentence, where the court has imposed another sentence of over 60 days. In other words, a court may not use probation as a rider to extend a person's exposure where it is also imposing a sentence of more than 60 days.
Penal Law § 60.01(2)(d) provides that “[i]n any case where the court imposes a sentence of imprisonment not in excess of sixty days, for a misdemeanor . . . it may also impose a sentence of probation . . .” Even where sentences are imposed upon separate charges or counts, the provisions of Penal Law 60.01 (2)(d) apply to prohibit the imposition of a sentence of probation as to one charge, where a sentence of imprisonment in excess of the limits set forth therein (60 days for a misdemeanor) have been imposed on another charge (see People v Cerilli, 80 NY2d 1016 [1992][sentencing court’s imposition of probation, along with a term of incarceration on a separate charge in excess of that permitted under PL 60.01 (2)(d), prohibited]; People v Curkendall, 141 AD2d 891 [3d Dept 1988] [imposing sentence in excess of 60 days for misdemeanor and five year probation for felony did not comply with statutory proscriptions for sentencing on more than one crime]; People v Singh, 213 AD2d 568 [2d Dept 1995][impermissible to impose sentence of probation on one felony count and a sentence of imprisonment in excess of six months on another felony count - - appellate court vacated “split” and imposed the definite sentence only]; People v Bucci, 122 AD2d 562 [4th Dept 1986][sentencing defendant to intermittent incarceration in excess of four months on one charge, and probation on the other, prohibited]; People v McIntyre,135 AD2d 920 [3d Dept 1987] [sentencing defendant to incarceration in excess of six months for one felony count and probation on the other, prohibited]; People v Edwards, 108 AD2d 686 [2d Dept 1985] [sentencing defendant to incarceration in excess of 60 days for misdemeanor, and probation, prohibited]).
This prohibition applies even where crimes are unrelated, non-transactional and ordered to run concurrent or consecutive. The reason a court may not impose a concurrent sentence of probation on a defendant who is also sentenced to imprisonment on another charge is because probation is inappropriate for a defendant who is incarcerated as the basic purpose of probation is to provide supervision for an offender without removing him from the community (Cerilli, 80 NY2d 1016). And, a court may not impose a sentence of probation in any case, where a defendant has an undischarged sentence of incarceration of more than one year on a previous crime (Penal Law § 65.00 [1][b][iv]).
by
Janet C. Somes
Assistant Monroe County Public Defender
Jim's Eckert recently posted a column on consecutive sentences on misdemeanors (see). This post addresses an additional aspect of that issue
Sometimes courts try to extend a person's liability as far out as possible, and use probation on the second offense to do so by imposing a maximum sentence of a year or six months on one crime and imposing a probationary sentence on another. It is important for attorneys (and judges) to know that, in fact, it is impermissible to impose a probation sentence, where the court has imposed another sentence of over 60 days. In other words, a court may not use probation as a rider to extend a person's exposure where it is also imposing a sentence of more than 60 days.
Penal Law § 60.01(2)(d) provides that “[i]n any case where the court imposes a sentence of imprisonment not in excess of sixty days, for a misdemeanor . . . it may also impose a sentence of probation . . .” Even where sentences are imposed upon separate charges or counts, the provisions of Penal Law 60.01 (2)(d) apply to prohibit the imposition of a sentence of probation as to one charge, where a sentence of imprisonment in excess of the limits set forth therein (60 days for a misdemeanor) have been imposed on another charge (see People v Cerilli, 80 NY2d 1016 [1992][sentencing court’s imposition of probation, along with a term of incarceration on a separate charge in excess of that permitted under PL 60.01 (2)(d), prohibited]; People v Curkendall, 141 AD2d 891 [3d Dept 1988] [imposing sentence in excess of 60 days for misdemeanor and five year probation for felony did not comply with statutory proscriptions for sentencing on more than one crime]; People v Singh, 213 AD2d 568 [2d Dept 1995][impermissible to impose sentence of probation on one felony count and a sentence of imprisonment in excess of six months on another felony count - - appellate court vacated “split” and imposed the definite sentence only]; People v Bucci, 122 AD2d 562 [4th Dept 1986][sentencing defendant to intermittent incarceration in excess of four months on one charge, and probation on the other, prohibited]; People v McIntyre,135 AD2d 920 [3d Dept 1987] [sentencing defendant to incarceration in excess of six months for one felony count and probation on the other, prohibited]; People v Edwards, 108 AD2d 686 [2d Dept 1985] [sentencing defendant to incarceration in excess of 60 days for misdemeanor, and probation, prohibited]).
This prohibition applies even where crimes are unrelated, non-transactional and ordered to run concurrent or consecutive. The reason a court may not impose a concurrent sentence of probation on a defendant who is also sentenced to imprisonment on another charge is because probation is inappropriate for a defendant who is incarcerated as the basic purpose of probation is to provide supervision for an offender without removing him from the community (Cerilli, 80 NY2d 1016). And, a court may not impose a sentence of probation in any case, where a defendant has an undischarged sentence of incarceration of more than one year on a previous crime (Penal Law § 65.00 [1][b][iv]).
Janet C. Somes
Assistant Monroe County Public Defender
Jim's Eckert recently posted a column on consecutive sentences on misdemeanors (see). This post addresses an additional aspect of that issue
Sometimes courts try to extend a person's liability as far out as possible, and use probation on the second offense to do so by imposing a maximum sentence of a year or six months on one crime and imposing a probationary sentence on another. It is important for attorneys (and judges) to know that, in fact, it is impermissible to impose a probation sentence, where the court has imposed another sentence of over 60 days. In other words, a court may not use probation as a rider to extend a person's exposure where it is also imposing a sentence of more than 60 days.
Penal Law § 60.01(2)(d) provides that “[i]n any case where the court imposes a sentence of imprisonment not in excess of sixty days, for a misdemeanor . . . it may also impose a sentence of probation . . .” Even where sentences are imposed upon separate charges or counts, the provisions of Penal Law 60.01 (2)(d) apply to prohibit the imposition of a sentence of probation as to one charge, where a sentence of imprisonment in excess of the limits set forth therein (60 days for a misdemeanor) have been imposed on another charge (see People v Cerilli, 80 NY2d 1016 [1992][sentencing court’s imposition of probation, along with a term of incarceration on a separate charge in excess of that permitted under PL 60.01 (2)(d), prohibited]; People v Curkendall, 141 AD2d 891 [3d Dept 1988] [imposing sentence in excess of 60 days for misdemeanor and five year probation for felony did not comply with statutory proscriptions for sentencing on more than one crime]; People v Singh, 213 AD2d 568 [2d Dept 1995][impermissible to impose sentence of probation on one felony count and a sentence of imprisonment in excess of six months on another felony count - - appellate court vacated “split” and imposed the definite sentence only]; People v Bucci, 122 AD2d 562 [4th Dept 1986][sentencing defendant to intermittent incarceration in excess of four months on one charge, and probation on the other, prohibited]; People v McIntyre,135 AD2d 920 [3d Dept 1987] [sentencing defendant to incarceration in excess of six months for one felony count and probation on the other, prohibited]; People v Edwards, 108 AD2d 686 [2d Dept 1985] [sentencing defendant to incarceration in excess of 60 days for misdemeanor, and probation, prohibited]).
This prohibition applies even where crimes are unrelated, non-transactional and ordered to run concurrent or consecutive. The reason a court may not impose a concurrent sentence of probation on a defendant who is also sentenced to imprisonment on another charge is because probation is inappropriate for a defendant who is incarcerated as the basic purpose of probation is to provide supervision for an offender without removing him from the community (Cerilli, 80 NY2d 1016). And, a court may not impose a sentence of probation in any case, where a defendant has an undischarged sentence of incarceration of more than one year on a previous crime (Penal Law § 65.00 [1][b][iv]).
Friday, December 2, 2011
by
James Eckert
Assistant Monroe County Public Defemder
I previously dealt with consecutive sentences, which are not permitted where a single act or omission represents two separate crimes, or where one offense also represents a material element of another Penal Law Section 70.25(2). In either case, the sentences on two such offenses must be concurrent. The only exception, permitting consecutive sentences, is for wearing a soft body vest under PL 270.20.
There is a broader prohibition in the case of misdemeanors, however. Penal Law 70.25(3) provides that where "consecutive definite sentences of imprisonment are not prohibited by subdivision two of this section [the rules mentioned above] and are imposed on a person for offenses which were committed as parts of a single incident or transaction, the aggregate terms of such sentences should not exceed one year."
"In any event, even assuming that consecutive definite sentences were authorized, such sentences could not total more than one year under Penal Law § 70.25(3). That statute provides that the aggregate of the terms of such sentences shall not exceed one year if the crimes were committed as parts of a “single incident or transaction”. The Legislature's use of that language, as well as the structure of the statute itself, makes it clear that “incident or transaction” is a broader concept than “act or omission” (see, Penal Law § 70.25[2], [3]; People v. Brathwaite, 63 N.Y.2d 839, 843, 482 N.Y.S.2d 253, 472 N.E.2d 29; cf., CPL 40.10[2] ). Regardless of whether defendant's crimes stem from distinct “acts”, they were not committed during separate “incidents or transactions” (compare, People v. Booth, 119 A.D.2d 758, 759, 501 N.Y.S.2d 166 with People v. Salter, 39 A.D.2d 593, 331 N.Y.S.2d 739). There was only one foray onto the college campus, and only one encounter with the purveyor of stolen goods. Defendant's acquiescence in the court's erroneous assertion that there were “two crimes” or “events” does not waive the protection of Penal Law § 70.25(3) (People v. Lopez, supra; People v. Judkins, supra; People v. Pellegriti, supra ). Therefore, we modify the judgment by providing that the sentences run concurrently."
People v. Taylor, 197 A.D.2d 858, 859 (1993).
Even where there is an agreed-upon sentence which violates this subdivision, the illegal sentence is not enforceable:
"Defendant was convicted, upon a plea of guilty, of criminal trespass, second degree (Penal Law, § 140.15) and resisting arrest (Penal Law, § 205.30). He was sentenced to a one year term on each charge, to be served consecutively. The People claim that the sentence was a result of a plea bargain and that defendant waived his rights under the Penal Law (§ 70.25, subd. 3). While the offenses were not committed through a single act or omission and one offense does not constitute a material element of the other (Penal Law, § 70.25, subd. 2), they did arise from a single incident. Therefore, imposition of consecutive definite sentences aggregating more than one year was improper (Penal Law, § 70.25, subd. 3; People v. Silvagnio, 79 A.D.2d 1112, 435 N.Y.S.2d 866; People v. Salter, 39 A.D.2d 593, 331 N.Y.S.2d 739). The waiver argument is without merit because the court does not have authority to enlarge its statutory sentencing power (People v. Selikoff, 35 N.Y.2d 227, 238, 360 N.Y.S.2d 623, 318 N.E.2d 784; People v. Lopez, 28 N.Y.2d 148, 320 N.Y.S.2d 235, 269 N.E.2d 28).
Accordingly we modify the sentence for resisting *951 arrest by directing that it run concurrently with the sentence for criminal trespass, second degree. Judgment unanimously modified on the law and as modified affirmed."
James Eckert
Assistant Monroe County Public Defemder
I previously dealt with consecutive sentences, which are not permitted where a single act or omission represents two separate crimes, or where one offense also represents a material element of another Penal Law Section 70.25(2). In either case, the sentences on two such offenses must be concurrent. The only exception, permitting consecutive sentences, is for wearing a soft body vest under PL 270.20.
There is a broader prohibition in the case of misdemeanors, however. Penal Law 70.25(3) provides that where "consecutive definite sentences of imprisonment are not prohibited by subdivision two of this section [the rules mentioned above] and are imposed on a person for offenses which were committed as parts of a single incident or transaction, the aggregate terms of such sentences should not exceed one year."
"In any event, even assuming that consecutive definite sentences were authorized, such sentences could not total more than one year under Penal Law § 70.25(3). That statute provides that the aggregate of the terms of such sentences shall not exceed one year if the crimes were committed as parts of a “single incident or transaction”. The Legislature's use of that language, as well as the structure of the statute itself, makes it clear that “incident or transaction” is a broader concept than “act or omission” (see, Penal Law § 70.25[2], [3]; People v. Brathwaite, 63 N.Y.2d 839, 843, 482 N.Y.S.2d 253, 472 N.E.2d 29; cf., CPL 40.10[2] ). Regardless of whether defendant's crimes stem from distinct “acts”, they were not committed during separate “incidents or transactions” (compare, People v. Booth, 119 A.D.2d 758, 759, 501 N.Y.S.2d 166 with People v. Salter, 39 A.D.2d 593, 331 N.Y.S.2d 739). There was only one foray onto the college campus, and only one encounter with the purveyor of stolen goods. Defendant's acquiescence in the court's erroneous assertion that there were “two crimes” or “events” does not waive the protection of Penal Law § 70.25(3) (People v. Lopez, supra; People v. Judkins, supra; People v. Pellegriti, supra ). Therefore, we modify the judgment by providing that the sentences run concurrently."
People v. Taylor, 197 A.D.2d 858, 859 (1993).
Even where there is an agreed-upon sentence which violates this subdivision, the illegal sentence is not enforceable:
"Defendant was convicted, upon a plea of guilty, of criminal trespass, second degree (Penal Law, § 140.15) and resisting arrest (Penal Law, § 205.30). He was sentenced to a one year term on each charge, to be served consecutively. The People claim that the sentence was a result of a plea bargain and that defendant waived his rights under the Penal Law (§ 70.25, subd. 3). While the offenses were not committed through a single act or omission and one offense does not constitute a material element of the other (Penal Law, § 70.25, subd. 2), they did arise from a single incident. Therefore, imposition of consecutive definite sentences aggregating more than one year was improper (Penal Law, § 70.25, subd. 3; People v. Silvagnio, 79 A.D.2d 1112, 435 N.Y.S.2d 866; People v. Salter, 39 A.D.2d 593, 331 N.Y.S.2d 739). The waiver argument is without merit because the court does not have authority to enlarge its statutory sentencing power (People v. Selikoff, 35 N.Y.2d 227, 238, 360 N.Y.S.2d 623, 318 N.E.2d 784; People v. Lopez, 28 N.Y.2d 148, 320 N.Y.S.2d 235, 269 N.E.2d 28).
Accordingly we modify the sentence for resisting *951 arrest by directing that it run concurrently with the sentence for criminal trespass, second degree. Judgment unanimously modified on the law and as modified affirmed."
by
James Eckert
Assistant Monroe County Public Defemder
I previously dealt with consecutive sentences, which are not permitted where a single act or omission represents two separate crimes, or where one offense also represents a material element of another Penal Law Section 70.25(2). In either case, the sentences on two such offenses must be concurrent. The only exception, permitting consecutive sentences, is for wearing a soft body vest under PL 270.20.
There is a broader prohibition in the case of misdemeanors, however. Penal Law 70.25(3) provides that where "consecutive definite sentences of imprisonment are not prohibited by subdivision two of this section [the rules mentioned above] and are imposed on a person for offenses which were committed as parts of a single incident or transaction, the aggregate terms of such sentences should not exceed one year."
"In any event, even assuming that consecutive definite sentences were authorized, such sentences could not total more than one year under Penal Law § 70.25(3). That statute provides that the aggregate of the terms of such sentences shall not exceed one year if the crimes were committed as parts of a “single incident or transaction”. The Legislature's use of that language, as well as the structure of the statute itself, makes it clear that “incident or transaction” is a broader concept than “act or omission” (see, Penal Law § 70.25[2], [3]; People v. Brathwaite, 63 N.Y.2d 839, 843, 482 N.Y.S.2d 253, 472 N.E.2d 29; cf., CPL 40.10[2] ). Regardless of whether defendant's crimes stem from distinct “acts”, they were not committed during separate “incidents or transactions” (compare, People v. Booth, 119 A.D.2d 758, 759, 501 N.Y.S.2d 166 with People v. Salter, 39 A.D.2d 593, 331 N.Y.S.2d 739). There was only one foray onto the college campus, and only one encounter with the purveyor of stolen goods. Defendant's acquiescence in the court's erroneous assertion that there were “two crimes” or “events” does not waive the protection of Penal Law § 70.25(3) (People v. Lopez, supra; People v. Judkins, supra; People v. Pellegriti, supra ). Therefore, we modify the judgment by providing that the sentences run concurrently."
People v. Taylor, 197 A.D.2d 858, 859 (1993).
Even where there is an agreed-upon sentence which violates this subdivision, the illegal sentence is not enforceable:
"Defendant was convicted, upon a plea of guilty, of criminal trespass, second degree (Penal Law, § 140.15) and resisting arrest (Penal Law, § 205.30). He was sentenced to a one year term on each charge, to be served consecutively. The People claim that the sentence was a result of a plea bargain and that defendant waived his rights under the Penal Law (§ 70.25, subd. 3). While the offenses were not committed through a single act or omission and one offense does not constitute a material element of the other (Penal Law, § 70.25, subd. 2), they did arise from a single incident. Therefore, imposition of consecutive definite sentences aggregating more than one year was improper (Penal Law, § 70.25, subd. 3; People v. Silvagnio, 79 A.D.2d 1112, 435 N.Y.S.2d 866; People v. Salter, 39 A.D.2d 593, 331 N.Y.S.2d 739). The waiver argument is without merit because the court does not have authority to enlarge its statutory sentencing power (People v. Selikoff, 35 N.Y.2d 227, 238, 360 N.Y.S.2d 623, 318 N.E.2d 784; People v. Lopez, 28 N.Y.2d 148, 320 N.Y.S.2d 235, 269 N.E.2d 28).
Accordingly we modify the sentence for resisting *951 arrest by directing that it run concurrently with the sentence for criminal trespass, second degree. Judgment unanimously modified on the law and as modified affirmed."
James Eckert
Assistant Monroe County Public Defemder
I previously dealt with consecutive sentences, which are not permitted where a single act or omission represents two separate crimes, or where one offense also represents a material element of another Penal Law Section 70.25(2). In either case, the sentences on two such offenses must be concurrent. The only exception, permitting consecutive sentences, is for wearing a soft body vest under PL 270.20.
There is a broader prohibition in the case of misdemeanors, however. Penal Law 70.25(3) provides that where "consecutive definite sentences of imprisonment are not prohibited by subdivision two of this section [the rules mentioned above] and are imposed on a person for offenses which were committed as parts of a single incident or transaction, the aggregate terms of such sentences should not exceed one year."
"In any event, even assuming that consecutive definite sentences were authorized, such sentences could not total more than one year under Penal Law § 70.25(3). That statute provides that the aggregate of the terms of such sentences shall not exceed one year if the crimes were committed as parts of a “single incident or transaction”. The Legislature's use of that language, as well as the structure of the statute itself, makes it clear that “incident or transaction” is a broader concept than “act or omission” (see, Penal Law § 70.25[2], [3]; People v. Brathwaite, 63 N.Y.2d 839, 843, 482 N.Y.S.2d 253, 472 N.E.2d 29; cf., CPL 40.10[2] ). Regardless of whether defendant's crimes stem from distinct “acts”, they were not committed during separate “incidents or transactions” (compare, People v. Booth, 119 A.D.2d 758, 759, 501 N.Y.S.2d 166 with People v. Salter, 39 A.D.2d 593, 331 N.Y.S.2d 739). There was only one foray onto the college campus, and only one encounter with the purveyor of stolen goods. Defendant's acquiescence in the court's erroneous assertion that there were “two crimes” or “events” does not waive the protection of Penal Law § 70.25(3) (People v. Lopez, supra; People v. Judkins, supra; People v. Pellegriti, supra ). Therefore, we modify the judgment by providing that the sentences run concurrently."
People v. Taylor, 197 A.D.2d 858, 859 (1993).
Even where there is an agreed-upon sentence which violates this subdivision, the illegal sentence is not enforceable:
"Defendant was convicted, upon a plea of guilty, of criminal trespass, second degree (Penal Law, § 140.15) and resisting arrest (Penal Law, § 205.30). He was sentenced to a one year term on each charge, to be served consecutively. The People claim that the sentence was a result of a plea bargain and that defendant waived his rights under the Penal Law (§ 70.25, subd. 3). While the offenses were not committed through a single act or omission and one offense does not constitute a material element of the other (Penal Law, § 70.25, subd. 2), they did arise from a single incident. Therefore, imposition of consecutive definite sentences aggregating more than one year was improper (Penal Law, § 70.25, subd. 3; People v. Silvagnio, 79 A.D.2d 1112, 435 N.Y.S.2d 866; People v. Salter, 39 A.D.2d 593, 331 N.Y.S.2d 739). The waiver argument is without merit because the court does not have authority to enlarge its statutory sentencing power (People v. Selikoff, 35 N.Y.2d 227, 238, 360 N.Y.S.2d 623, 318 N.E.2d 784; People v. Lopez, 28 N.Y.2d 148, 320 N.Y.S.2d 235, 269 N.E.2d 28).
Accordingly we modify the sentence for resisting *951 arrest by directing that it run concurrently with the sentence for criminal trespass, second degree. Judgment unanimously modified on the law and as modified affirmed."
Sunday, November 20, 2011
In People v Hackett (2011 NY Slip Op 08061 [4th Dept 11/10/11]), the Appellate Division, Fourth Department, vacated defendant's risk level determination, and remitted the matter to County Court for a new risk level determination, where the assessment was based, in part, on factors that had neither been selected on the risk assessment instrument nor raised by the People at the hearing. The Court held that
the court violated his due process rights by sua sponte assessing those additional points. The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine his or her risk level pursuant to SORA and a meaningful opportunity to respond to the risk level assessment (see § 168-n [3]; People v David W., 95 NY2d 130, 136-140). Here, neither risk factor was originally selected on the RAI or raised by the People at the SORA hearing, and defendant learned of the assessment of the additional points for the first time when the court issued its decision (cf. People v Wheeler, 59 AD3d 1007, lv denied 12 NY3d 711).
In People v Hackett (2011 NY Slip Op 08061 [4th Dept 11/10/11]), the Appellate Division, Fourth Department, vacated defendant's risk level determination, and remitted the matter to County Court for a new risk level determination, where the assessment was based, in part, on factors that had neither been selected on the risk assessment instrument nor raised by the People at the hearing. The Court held that
the court violated his due process rights by sua sponte assessing those additional points. The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine his or her risk level pursuant to SORA and a meaningful opportunity to respond to the risk level assessment (see § 168-n [3]; People v David W., 95 NY2d 130, 136-140). Here, neither risk factor was originally selected on the RAI or raised by the People at the SORA hearing, and defendant learned of the assessment of the additional points for the first time when the court issued its decision (cf. People v Wheeler, 59 AD3d 1007, lv denied 12 NY3d 711).
Parents and teachers know you're more likely to achieve desired behaviors if there are consequences for disobedience. Appellate courts, when dealing with improper conduct by prosecutors, seem unaware of this simple rule. So they repeatedly criticize prosecutorial misconduct in appellate decisions which affirm the conviction. Then they wonder why trial attorneys persist in the behavior which resulted in the conviction and then the affirmance. For example, in People v Washington (2011 NY Slip Op 08404 [4th Dept [11/18/11]), the Court wrote that
Perhaps if the Court, confronted by persistent misconduct, exercised its interest of justice jurisdiction and reversed, trial prosecutors would get the message and finally stop asking these improper questions. And if that seems too much, maybe the Court could deter the misconduct by simply naming in its decision the trial prosecutor who engaged in misconduct. The current practice of affirming while noting that the unnamed prosecutor acted improperly is a demonstrated failure at impacting behavior.
Defendant contends that he was denied a fair trial based on the prosecutor's improper questions on cross-examination concerning whether the prosecution witnesses were lying or were liars. That contention is not preserved for our review inasmuch as defendant failed to object to those questions (see CPL 470.05 [2]), and we decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We note, however, that such questions were improper (see People v Paul, 229 AD2d 932; People v Paul, 212 AD2d 1020, 1021, lv denied 85 NY2d 912; People v Edwards, 167 AD2d 864, lv denied 77 NY2d 877). As this Court stated over 20 years ago, "[o]n numerous occasions, we have forcefully condemned prosecutorial cross-examination which compels a defendant to state that witnesses lied in their testimony" (People v Eldridge, 151 AD2d 966, 966, lv denied 74 NY2d 808). Unfortunately, we find it necessary once again to forcefully condemn such improper conduct by the prosecutor.
Perhaps if the Court, confronted by persistent misconduct, exercised its interest of justice jurisdiction and reversed, trial prosecutors would get the message and finally stop asking these improper questions. And if that seems too much, maybe the Court could deter the misconduct by simply naming in its decision the trial prosecutor who engaged in misconduct. The current practice of affirming while noting that the unnamed prosecutor acted improperly is a demonstrated failure at impacting behavior.
Parents and teachers know you're more likely to achieve desired behaviors if there are consequences for disobedience. Appellate courts, when dealing with improper conduct by prosecutors, seem unaware of this simple rule. So they repeatedly criticize prosecutorial misconduct in appellate decisions which affirm the conviction. Then they wonder why trial attorneys persist in the behavior which resulted in the conviction and then the affirmance. For example, in People v Washington (2011 NY Slip Op 08404 [4th Dept [11/18/11]), the Court wrote that
Perhaps if the Court, confronted by persistent misconduct, exercised its interest of justice jurisdiction and reversed, trial prosecutors would get the message and finally stop asking these improper questions. And if that seems too much, maybe the Court could deter the misconduct by simply naming in its decision the trial prosecutor who engaged in misconduct. The current practice of affirming while noting that the unnamed prosecutor acted improperly is a demonstrated failure at impacting behavior.
Defendant contends that he was denied a fair trial based on the prosecutor's improper questions on cross-examination concerning whether the prosecution witnesses were lying or were liars. That contention is not preserved for our review inasmuch as defendant failed to object to those questions (see CPL 470.05 [2]), and we decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We note, however, that such questions were improper (see People v Paul, 229 AD2d 932; People v Paul, 212 AD2d 1020, 1021, lv denied 85 NY2d 912; People v Edwards, 167 AD2d 864, lv denied 77 NY2d 877). As this Court stated over 20 years ago, "[o]n numerous occasions, we have forcefully condemned prosecutorial cross-examination which compels a defendant to state that witnesses lied in their testimony" (People v Eldridge, 151 AD2d 966, 966, lv denied 74 NY2d 808). Unfortunately, we find it necessary once again to forcefully condemn such improper conduct by the prosecutor.
Perhaps if the Court, confronted by persistent misconduct, exercised its interest of justice jurisdiction and reversed, trial prosecutors would get the message and finally stop asking these improper questions. And if that seems too much, maybe the Court could deter the misconduct by simply naming in its decision the trial prosecutor who engaged in misconduct. The current practice of affirming while noting that the unnamed prosecutor acted improperly is a demonstrated failure at impacting behavior.
In Melendez-Diaz v Massachusetts (129 S.Ct. 2527 [2009]), the Supreme Court held that it violate the right of confrontation for a prosecutor to submit a chemical drug test report without the testimony of a person who performed the test subject to confrontation. Thus, the admission at trial of three sworn “certificates of analysis” or affidavits showing the results of the forensic analysis performed on samples of the seized white powder was reversible error where the analyst did not testify. The Court rejected the ideas that the right to confrontation only applied when the evidence accused someone of a crime or didn’t apply to scientific tests, noting that crime labs have provided unreliable evidence in the past, and said that confrontation would help find the truth.
This year, in Bullcoming v New Mexico (564 U.S. __,131 S.Ct. 2705 [2011]), the Court held that under the confrontation clause “the accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.”
In People v Pealer (2011 NY Slip Op 08397 [4th Dept 11/18/11]) considered whether these holding apply to the calibration and simulator solution certificates used in verifying the accuracy of the breathalyzer test. The problems with the reliability and accuracy of such certificates was revealed in a 1987 Pennsylvania audit report (http://www.ridl.us/phpBB2/viewtopic.php?f=1&t=294). The Fourth Department rejected the contention that these documents were testimonial subject to the right to confrontation, holding that
It should be noted that some local courts have held otherwise (People v Carreira, 27 Misc3d [Watertown City Ct 2010]; People v. Heyanka, 25 Misc3d 978 [Dist Ct Suffolk Co 2009]).
This year, in Bullcoming v New Mexico (564 U.S. __,131 S.Ct. 2705 [2011]), the Court held that under the confrontation clause “the accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.”
In People v Pealer (2011 NY Slip Op 08397 [4th Dept 11/18/11]) considered whether these holding apply to the calibration and simulator solution certificates used in verifying the accuracy of the breathalyzer test. The problems with the reliability and accuracy of such certificates was revealed in a 1987 Pennsylvania audit report (http://www.ridl.us/phpBB2/viewtopic.php?f=1&t=294). The Fourth Department rejected the contention that these documents were testimonial subject to the right to confrontation, holding that
the statements contained in the breath test documents are not accusatory in the sense that they do not establish an element of the crimes. Indeed, standing alone, the documents shed no light on defendant's guilt or innocence. The only relevant fact established by the documents is that the breath test instrument was functioning properly. The functionality of the machine, however, neither directly establishes an element of the crimes charged nor inculpates any particular individual. Thus, the government employees who prepared the records were “not defendant's accuser[s]' in any but the most attenuated sense”, and the breath test documents were properly admitted in evidence over defendant's objection based on the Confrontation Clause (internal citations omitted).
It should be noted that some local courts have held otherwise (People v Carreira, 27 Misc3d [Watertown City Ct 2010]; People v. Heyanka, 25 Misc3d 978 [Dist Ct Suffolk Co 2009]).
In Melendez-Diaz v Massachusetts (129 S.Ct. 2527 [2009]), the Supreme Court held that it violate the right of confrontation for a prosecutor to submit a chemical drug test report without the testimony of a person who performed the test subject to confrontation. Thus, the admission at trial of three sworn “certificates of analysis” or affidavits showing the results of the forensic analysis performed on samples of the seized white powder was reversible error where the analyst did not testify. The Court rejected the ideas that the right to confrontation only applied when the evidence accused someone of a crime or didn’t apply to scientific tests, noting that crime labs have provided unreliable evidence in the past, and said that confrontation would help find the truth.
This year, in Bullcoming v New Mexico (564 U.S. __,131 S.Ct. 2705 [2011]), the Court held that under the confrontation clause “the accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.”
In People v Pealer (2011 NY Slip Op 08397 [4th Dept 11/18/11]) considered whether these holding apply to the calibration and simulator solution certificates used in verifying the accuracy of the breathalyzer test. The problems with the reliability and accuracy of such certificates was revealed in a 1987 Pennsylvania audit report (http://www.ridl.us/phpBB2/viewtopic.php?f=1&t=294). The Fourth Department rejected the contention that these documents were testimonial subject to the right to confrontation, holding that
It should be noted that some local courts have held otherwise (People v Carreira, 27 Misc3d [Watertown City Ct 2010]; People v. Heyanka, 25 Misc3d 978 [Dist Ct Suffolk Co 2009]).
This year, in Bullcoming v New Mexico (564 U.S. __,131 S.Ct. 2705 [2011]), the Court held that under the confrontation clause “the accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.”
In People v Pealer (2011 NY Slip Op 08397 [4th Dept 11/18/11]) considered whether these holding apply to the calibration and simulator solution certificates used in verifying the accuracy of the breathalyzer test. The problems with the reliability and accuracy of such certificates was revealed in a 1987 Pennsylvania audit report (http://www.ridl.us/phpBB2/viewtopic.php?f=1&t=294). The Fourth Department rejected the contention that these documents were testimonial subject to the right to confrontation, holding that
the statements contained in the breath test documents are not accusatory in the sense that they do not establish an element of the crimes. Indeed, standing alone, the documents shed no light on defendant's guilt or innocence. The only relevant fact established by the documents is that the breath test instrument was functioning properly. The functionality of the machine, however, neither directly establishes an element of the crimes charged nor inculpates any particular individual. Thus, the government employees who prepared the records were “not defendant's accuser[s]' in any but the most attenuated sense”, and the breath test documents were properly admitted in evidence over defendant's objection based on the Confrontation Clause (internal citations omitted).
It should be noted that some local courts have held otherwise (People v Carreira, 27 Misc3d [Watertown City Ct 2010]; People v. Heyanka, 25 Misc3d 978 [Dist Ct Suffolk Co 2009]).
Thursday, November 10, 2011
While the remedy was merely remand for a new hearing, this decision could prove important if it stops a court from assessing points at the SORA hearing. It's also an important reminder that SORA is a contested process where the People bear the burden.
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1236 KA 11-00285
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V
PATRICK HACKETT, DEFENDANT-APPELLANT.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (NORMAN P. EFFMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM OF COUNSEL), FOR RESPONDENT.
Appeal from an order of the Cattaraugus County Court (Larry M. Himelein, J.), dated January 25, 2010. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Cattaraugus County Court for further proceedings in accordance with the following Memorandum: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.), defendant contends that County Court miscalculated his total risk factor score in the risk assessment instrument (RAI), and thus mistakenly determined that he was presumptively a level three risk based on that score. We agree with defendant. In fact, pursuant to the correct total risk factor score in the RAI, defendant is presumptively classified as a level two risk. We note, however, that the court also sua sponte assessed additional points under risk factor 3 (Number of Victims) and risk factor 4 (Duration of Offense Conduct with Victim) in the RAI, which then rendered defendant a presumptive level three risk. We further agree with defendant that the court violated his due process rights by sua sponte assessing those additional points. The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine his or her risk level pursuant to SORA and a meaningful opportunity to respond to the risk level assessment (see § 168-n [3]; People v David W., 95 NY2d 130, 136-140). Here, neither risk factor was originally selected on the RAI or raised by the People at the SORA hearing, and defendant learned of the assessment of the additional points for the first time when the court issued its decision (cf. People v Wheeler, 59 AD3d 1007, lv denied 12 NY3d 711). We therefore reverse the order, vacate defendant’s risk level determination, and remit the matter to County Court for a new risk level determination, and a new hearing if necessary, in compliance with Correction Law §168-n (3) and defendant’s due process rights.
Decided November 10, 2011
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1236 KA 11-00285
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V
PATRICK HACKETT, DEFENDANT-APPELLANT.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (NORMAN P. EFFMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM OF COUNSEL), FOR RESPONDENT.
Appeal from an order of the Cattaraugus County Court (Larry M. Himelein, J.), dated January 25, 2010. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Cattaraugus County Court for further proceedings in accordance with the following Memorandum: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.), defendant contends that County Court miscalculated his total risk factor score in the risk assessment instrument (RAI), and thus mistakenly determined that he was presumptively a level three risk based on that score. We agree with defendant. In fact, pursuant to the correct total risk factor score in the RAI, defendant is presumptively classified as a level two risk. We note, however, that the court also sua sponte assessed additional points under risk factor 3 (Number of Victims) and risk factor 4 (Duration of Offense Conduct with Victim) in the RAI, which then rendered defendant a presumptive level three risk. We further agree with defendant that the court violated his due process rights by sua sponte assessing those additional points. The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine his or her risk level pursuant to SORA and a meaningful opportunity to respond to the risk level assessment (see § 168-n [3]; People v David W., 95 NY2d 130, 136-140). Here, neither risk factor was originally selected on the RAI or raised by the People at the SORA hearing, and defendant learned of the assessment of the additional points for the first time when the court issued its decision (cf. People v Wheeler, 59 AD3d 1007, lv denied 12 NY3d 711). We therefore reverse the order, vacate defendant’s risk level determination, and remit the matter to County Court for a new risk level determination, and a new hearing if necessary, in compliance with Correction Law §168-n (3) and defendant’s due process rights.
Decided November 10, 2011
While the remedy was merely remand for a new hearing, this decision could prove important if it stops a court from assessing points at the SORA hearing. It's also an important reminder that SORA is a contested process where the People bear the burden.
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1236 KA 11-00285
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V
PATRICK HACKETT, DEFENDANT-APPELLANT.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (NORMAN P. EFFMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM OF COUNSEL), FOR RESPONDENT.
Appeal from an order of the Cattaraugus County Court (Larry M. Himelein, J.), dated January 25, 2010. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Cattaraugus County Court for further proceedings in accordance with the following Memorandum: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.), defendant contends that County Court miscalculated his total risk factor score in the risk assessment instrument (RAI), and thus mistakenly determined that he was presumptively a level three risk based on that score. We agree with defendant. In fact, pursuant to the correct total risk factor score in the RAI, defendant is presumptively classified as a level two risk. We note, however, that the court also sua sponte assessed additional points under risk factor 3 (Number of Victims) and risk factor 4 (Duration of Offense Conduct with Victim) in the RAI, which then rendered defendant a presumptive level three risk. We further agree with defendant that the court violated his due process rights by sua sponte assessing those additional points. The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine his or her risk level pursuant to SORA and a meaningful opportunity to respond to the risk level assessment (see § 168-n [3]; People v David W., 95 NY2d 130, 136-140). Here, neither risk factor was originally selected on the RAI or raised by the People at the SORA hearing, and defendant learned of the assessment of the additional points for the first time when the court issued its decision (cf. People v Wheeler, 59 AD3d 1007, lv denied 12 NY3d 711). We therefore reverse the order, vacate defendant’s risk level determination, and remit the matter to County Court for a new risk level determination, and a new hearing if necessary, in compliance with Correction Law §168-n (3) and defendant’s due process rights.
Decided November 10, 2011
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1236 KA 11-00285
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V
PATRICK HACKETT, DEFENDANT-APPELLANT.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (NORMAN P. EFFMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM OF COUNSEL), FOR RESPONDENT.
Appeal from an order of the Cattaraugus County Court (Larry M. Himelein, J.), dated January 25, 2010. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Cattaraugus County Court for further proceedings in accordance with the following Memorandum: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.), defendant contends that County Court miscalculated his total risk factor score in the risk assessment instrument (RAI), and thus mistakenly determined that he was presumptively a level three risk based on that score. We agree with defendant. In fact, pursuant to the correct total risk factor score in the RAI, defendant is presumptively classified as a level two risk. We note, however, that the court also sua sponte assessed additional points under risk factor 3 (Number of Victims) and risk factor 4 (Duration of Offense Conduct with Victim) in the RAI, which then rendered defendant a presumptive level three risk. We further agree with defendant that the court violated his due process rights by sua sponte assessing those additional points. The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine his or her risk level pursuant to SORA and a meaningful opportunity to respond to the risk level assessment (see § 168-n [3]; People v David W., 95 NY2d 130, 136-140). Here, neither risk factor was originally selected on the RAI or raised by the People at the SORA hearing, and defendant learned of the assessment of the additional points for the first time when the court issued its decision (cf. People v Wheeler, 59 AD3d 1007, lv denied 12 NY3d 711). We therefore reverse the order, vacate defendant’s risk level determination, and remit the matter to County Court for a new risk level determination, and a new hearing if necessary, in compliance with Correction Law §168-n (3) and defendant’s due process rights.
Decided November 10, 2011
Tuesday, October 25, 2011
In People v Ventura (2011 NY Slip Op 07475 [10/25/11]) the Court of Appeals held that it is an abuse of discretion for intermediate appellate courts to dismiss an appeal because of the involuntary deportation of the appellant. The Court explained that
courts have been inclined to dismiss appeals pursued by physically absent defendants because they voluntarily absconded, forfeiting their right to appeal. This Court has previously reasoned that "it [is] essential to any step, on behalf of a person charged with a felony after indictment found, that he should be in custody; either actual . . . or constructive" as "the whole theory of criminal proceedings is based upon the idea of the defendant being in the power, and under the control of the court, in his person" (People v Genet, 59 NY 80, 81 [1874]). Accordingly, dismissals have been predicated primarily on a policy-based rationale that courts should not aid in the deliberate evasion of justice through continued consideration of appeals...Here, this policy concern is not present. {Appellant;s] were involuntarily removed from the country and their extrication lacked the scornful or contemptuous traits that compel courts to dismiss appeals filed by those who elude criminal proceedings. Rather, they, and other similarly situated defendants, have a greater need to avail themselves of the appellate process in light of the tremendous ramifications of deportation...The invariable importance of the fundamental right to an appeal, as well as the distinct role assumed by the Appellate Divisions within New York's hierarchy of appellate review (see NY Const Art. 6, § 5; see e.g., CPLR 5501 [c]), makes access to intermediate appellate courts imperative...
Finally, in our view, the perceived inability to obey the mandate of the court is not implicated here. In other jurisdictions, defendants who continue prosecution of their appeals through representation of counsel are not deemed unavailable to obey the mandate of the court (see People v Puluc-Sique, 182 Cal App 4th 894, 899 [Ct App 2010]). Moreover, disposition of the discrete appellate issues would result in either an affirmance or outright dismissal of the convictions; neither outcome would require the continued legal participation of defendants.
In People v Ventura (2011 NY Slip Op 07475 [10/25/11]) the Court of Appeals held that it is an abuse of discretion for intermediate appellate courts to dismiss an appeal because of the involuntary deportation of the appellant. The Court explained that
courts have been inclined to dismiss appeals pursued by physically absent defendants because they voluntarily absconded, forfeiting their right to appeal. This Court has previously reasoned that "it [is] essential to any step, on behalf of a person charged with a felony after indictment found, that he should be in custody; either actual . . . or constructive" as "the whole theory of criminal proceedings is based upon the idea of the defendant being in the power, and under the control of the court, in his person" (People v Genet, 59 NY 80, 81 [1874]). Accordingly, dismissals have been predicated primarily on a policy-based rationale that courts should not aid in the deliberate evasion of justice through continued consideration of appeals...Here, this policy concern is not present. {Appellant;s] were involuntarily removed from the country and their extrication lacked the scornful or contemptuous traits that compel courts to dismiss appeals filed by those who elude criminal proceedings. Rather, they, and other similarly situated defendants, have a greater need to avail themselves of the appellate process in light of the tremendous ramifications of deportation...The invariable importance of the fundamental right to an appeal, as well as the distinct role assumed by the Appellate Divisions within New York's hierarchy of appellate review (see NY Const Art. 6, § 5; see e.g., CPLR 5501 [c]), makes access to intermediate appellate courts imperative...
Finally, in our view, the perceived inability to obey the mandate of the court is not implicated here. In other jurisdictions, defendants who continue prosecution of their appeals through representation of counsel are not deemed unavailable to obey the mandate of the court (see People v Puluc-Sique, 182 Cal App 4th 894, 899 [Ct App 2010]). Moreover, disposition of the discrete appellate issues would result in either an affirmance or outright dismissal of the convictions; neither outcome would require the continued legal participation of defendants.
Thursday, October 20, 2011
The sealing requirement of CPL 160.50 "was designed to lessen the adverse consequences of unsuccessful criminal prosecutions by limiting access to official records and papers in criminal proceedings which terminate in favor of the accused" http://www.blogger.com/img/blank.gif(Matter of Harper v Angiolillo, 89 NY2d 761, 766 [1997. The limited exceptions to the sealing requirement are to be strictly construed in accordance with this purpose.
In Matter of Albany County Dist. Attorney's Off. v William T. (2011 NY Slip Op 07339 [3d Dept 10/20/11]) the Appellate Division, Third Department reversed a County Court order which granted an ex parte application, made on behalf of the prosecutor and police department involved in a pending out of state prosecution, to unseal the records from a dismissed and sealed prior case for use in the pending criminal proceedings. The Court explained that
In Matter of Albany County Dist. Attorney's Off. v William T. (2011 NY Slip Op 07339 [3d Dept 10/20/11]) the Appellate Division, Third Department reversed a County Court order which granted an ex parte application, made on behalf of the prosecutor and police department involved in a pending out of state prosecution, to unseal the records from a dismissed and sealed prior case for use in the pending criminal proceedings. The Court explained that
petitioner relied upon an exception that permits a law enforcement agency to obtain the release of sealed records if "justice requires that such records be made available to it" (CPL 160.50 [1] [d] [ii]). The Court of Appeals has clarified, however, that "[t]he statute's . . . primary focus is the unsealing of records for investigatory purposes" and, as such, the exception is analogous to other investigatory tools employed to uncover criminal conduct "prior to commencement of a criminal proceeding" (Matter of Katherine B. v Cataldo, 5 NY3d at 205 [emphasis added]). Apart from a "singular circumstance" not present here, the exception does not apply to a prosecutor — such as the Pennsylvania district attorney prosecuting respondent's case — seeking sealed records "after commencement of a criminal proceeding" (id.; see Matter of Akieba Mc., 72 AD3d 689, 690 [2010]; Preiser, 2005 Supp Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 160.50, 2011 Supp Pamphlet, at 125-126). A Pennsylvania police department also sought the records, but there is no indication that its "investigation" was in any way separate — at the time of the request — from the pending prosecution. Indeed, the only reasons given for seeking the records were for their admission at trial, as well as to assist in respondent's sentencing and evaluation for sex offender registration purposes.
The sealing requirement of CPL 160.50 "was designed to lessen the adverse consequences of unsuccessful criminal prosecutions by limiting access to official records and papers in criminal proceedings which terminate in favor of the accused" http://www.blogger.com/img/blank.gif(Matter of Harper v Angiolillo, 89 NY2d 761, 766 [1997. The limited exceptions to the sealing requirement are to be strictly construed in accordance with this purpose.
In Matter of Albany County Dist. Attorney's Off. v William T. (2011 NY Slip Op 07339 [3d Dept 10/20/11]) the Appellate Division, Third Department reversed a County Court order which granted an ex parte application, made on behalf of the prosecutor and police department involved in a pending out of state prosecution, to unseal the records from a dismissed and sealed prior case for use in the pending criminal proceedings. The Court explained that
In Matter of Albany County Dist. Attorney's Off. v William T. (2011 NY Slip Op 07339 [3d Dept 10/20/11]) the Appellate Division, Third Department reversed a County Court order which granted an ex parte application, made on behalf of the prosecutor and police department involved in a pending out of state prosecution, to unseal the records from a dismissed and sealed prior case for use in the pending criminal proceedings. The Court explained that
petitioner relied upon an exception that permits a law enforcement agency to obtain the release of sealed records if "justice requires that such records be made available to it" (CPL 160.50 [1] [d] [ii]). The Court of Appeals has clarified, however, that "[t]he statute's . . . primary focus is the unsealing of records for investigatory purposes" and, as such, the exception is analogous to other investigatory tools employed to uncover criminal conduct "prior to commencement of a criminal proceeding" (Matter of Katherine B. v Cataldo, 5 NY3d at 205 [emphasis added]). Apart from a "singular circumstance" not present here, the exception does not apply to a prosecutor — such as the Pennsylvania district attorney prosecuting respondent's case — seeking sealed records "after commencement of a criminal proceeding" (id.; see Matter of Akieba Mc., 72 AD3d 689, 690 [2010]; Preiser, 2005 Supp Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 160.50, 2011 Supp Pamphlet, at 125-126). A Pennsylvania police department also sought the records, but there is no indication that its "investigation" was in any way separate — at the time of the request — from the pending prosecution. Indeed, the only reasons given for seeking the records were for their admission at trial, as well as to assist in respondent's sentencing and evaluation for sex offender registration purposes.
by
James Eckert, Assistant Monroe County Public Defender
Is a note saying "gimme all your money, I have a gun" legally sufficient to prove robbery while in actual possession of a firearm readily capable of causing death or other serious physical injury?
That is the question considered by the the Court of Appeals in, People v Grant (_NY3d_ [10/20/11) at (see). Grant dealt with a reduction based on Grand Jury minutes, wherein the only proof of the existence of a gun and its capacity to cause serious physical injury or death was a note threatening the bank teller, saying that the defendant had a gun and if she didn't give him the money he'd shoot. We're not talking trial proof. Four judges of the Court of Appeals held that a note saying the defendant had a gun was not prima facie evidence of the actual existence and possession of a gun readily capable of shooting anyone.
First degree robbery, subdivision three, requires that defendant "actually possessed a dangerous instrument at the time of the crime". PL 160.15(3) reads "uses or threatens the immediate use of a dangerous instrument". It is subdivision four which allows a robbery conviction for possession of a finger, if that finger "appears to be a pistol, revolver ...". Subdivision three has been held to require an actually existing weapon (People v Pena, 50 NY2d 400 [1980]). In Pena, defendant had a paper bag over his hand and threatened to shoot. When apprehended shortly after, Pena had the bag, which contained a knife. The Court of Appeals ruled that under subdivision three "it was the employment of such an instrumentality that was significant" (Pena, footnote 2). The Court held that the proof showed that Pena had a knife at the time of the robbery and that he used that knife to threaten the victim. Apparently, nobody understood how knives worked back in 1980.
Nonetheless, as the majority noted in Grant, all four departments interpreted Pena to mean that a defendant, under 160.15(3), had to actually possess an actual weapon. A mere threat to harm someone with a weapon is not sufficient. Thus, the defendant's statement that he has a gun, without other proof of actual possession, is insufficient to prove the existence of such a gun. "Absent some other corroboration that defendant actually possessed a dangerous instrument" the grand jury could not rationally have drawn the guilty inference. The dissenters were prepared to hold that actual possession was not required, except the prosecution abandoned that position on appeal! Nonetheless, the dissent would have held that defendant's "admission" (I'd call it a mere claim coupled with ample incentive to lie) was sufficient to prove the fact admitted. Further, the dissent would have held that the defendant's threat to shoot was sufficient proof of operability which would have, if unexplained and uncontradicted, permitted a jury to convict (effectively shifting the burden to the defense). The dissent was willing to admit that some threats could be too vague to sustain the grand jury, much less a conviction (e.g. "if you don't keep your dogs quiet I'm going to destroy the earth" might be insufficient to prove possession of a fully operational Death Star).
The Grant decision has application beyond robbery first under subdivision three. If the defendant's admission of a fact is, without more, insufficient proof of that fact even at Grand Jury, then we should be looking for and challenging the absence of corroboration in other areas.
James Eckert, Assistant Monroe County Public Defender
Is a note saying "gimme all your money, I have a gun" legally sufficient to prove robbery while in actual possession of a firearm readily capable of causing death or other serious physical injury?
That is the question considered by the the Court of Appeals in, People v Grant (_NY3d_ [10/20/11) at (see). Grant dealt with a reduction based on Grand Jury minutes, wherein the only proof of the existence of a gun and its capacity to cause serious physical injury or death was a note threatening the bank teller, saying that the defendant had a gun and if she didn't give him the money he'd shoot. We're not talking trial proof. Four judges of the Court of Appeals held that a note saying the defendant had a gun was not prima facie evidence of the actual existence and possession of a gun readily capable of shooting anyone.
First degree robbery, subdivision three, requires that defendant "actually possessed a dangerous instrument at the time of the crime". PL 160.15(3) reads "uses or threatens the immediate use of a dangerous instrument". It is subdivision four which allows a robbery conviction for possession of a finger, if that finger "appears to be a pistol, revolver ...". Subdivision three has been held to require an actually existing weapon (People v Pena, 50 NY2d 400 [1980]). In Pena, defendant had a paper bag over his hand and threatened to shoot. When apprehended shortly after, Pena had the bag, which contained a knife. The Court of Appeals ruled that under subdivision three "it was the employment of such an instrumentality that was significant" (Pena, footnote 2). The Court held that the proof showed that Pena had a knife at the time of the robbery and that he used that knife to threaten the victim. Apparently, nobody understood how knives worked back in 1980.
Nonetheless, as the majority noted in Grant, all four departments interpreted Pena to mean that a defendant, under 160.15(3), had to actually possess an actual weapon. A mere threat to harm someone with a weapon is not sufficient. Thus, the defendant's statement that he has a gun, without other proof of actual possession, is insufficient to prove the existence of such a gun. "Absent some other corroboration that defendant actually possessed a dangerous instrument" the grand jury could not rationally have drawn the guilty inference. The dissenters were prepared to hold that actual possession was not required, except the prosecution abandoned that position on appeal! Nonetheless, the dissent would have held that defendant's "admission" (I'd call it a mere claim coupled with ample incentive to lie) was sufficient to prove the fact admitted. Further, the dissent would have held that the defendant's threat to shoot was sufficient proof of operability which would have, if unexplained and uncontradicted, permitted a jury to convict (effectively shifting the burden to the defense). The dissent was willing to admit that some threats could be too vague to sustain the grand jury, much less a conviction (e.g. "if you don't keep your dogs quiet I'm going to destroy the earth" might be insufficient to prove possession of a fully operational Death Star).
The Grant decision has application beyond robbery first under subdivision three. If the defendant's admission of a fact is, without more, insufficient proof of that fact even at Grand Jury, then we should be looking for and challenging the absence of corroboration in other areas.
by
James Eckert, Assistant Monroe County Public Defender
Is a note saying "gimme all your money, I have a gun" legally sufficient to prove robbery while in actual possession of a firearm readily capable of causing death or other serious physical injury?
That is the question considered by the the Court of Appeals in, People v Grant (_NY3d_ [10/20/11) at (see). Grant dealt with a reduction based on Grand Jury minutes, wherein the only proof of the existence of a gun and its capacity to cause serious physical injury or death was a note threatening the bank teller, saying that the defendant had a gun and if she didn't give him the money he'd shoot. We're not talking trial proof. Four judges of the Court of Appeals held that a note saying the defendant had a gun was not prima facie evidence of the actual existence and possession of a gun readily capable of shooting anyone.
First degree robbery, subdivision three, requires that defendant "actually possessed a dangerous instrument at the time of the crime". PL 160.15(3) reads "uses or threatens the immediate use of a dangerous instrument". It is subdivision four which allows a robbery conviction for possession of a finger, if that finger "appears to be a pistol, revolver ...". Subdivision three has been held to require an actually existing weapon (People v Pena, 50 NY2d 400 [1980]). In Pena, defendant had a paper bag over his hand and threatened to shoot. When apprehended shortly after, Pena had the bag, which contained a knife. The Court of Appeals ruled that under subdivision three "it was the employment of such an instrumentality that was significant" (Pena, footnote 2). The Court held that the proof showed that Pena had a knife at the time of the robbery and that he used that knife to threaten the victim. Apparently, nobody understood how knives worked back in 1980.
Nonetheless, as the majority noted in Grant, all four departments interpreted Pena to mean that a defendant, under 160.15(3), had to actually possess an actual weapon. A mere threat to harm someone with a weapon is not sufficient. Thus, the defendant's statement that he has a gun, without other proof of actual possession, is insufficient to prove the existence of such a gun. "Absent some other corroboration that defendant actually possessed a dangerous instrument" the grand jury could not rationally have drawn the guilty inference. The dissenters were prepared to hold that actual possession was not required, except the prosecution abandoned that position on appeal! Nonetheless, the dissent would have held that defendant's "admission" (I'd call it a mere claim coupled with ample incentive to lie) was sufficient to prove the fact admitted. Further, the dissent would have held that the defendant's threat to shoot was sufficient proof of operability which would have, if unexplained and uncontradicted, permitted a jury to convict (effectively shifting the burden to the defense). The dissent was willing to admit that some threats could be too vague to sustain the grand jury, much less a conviction (e.g. "if you don't keep your dogs quiet I'm going to destroy the earth" might be insufficient to prove possession of a fully operational Death Star).
The Grant decision has application beyond robbery first under subdivision three. If the defendant's admission of a fact is, without more, insufficient proof of that fact even at Grand Jury, then we should be looking for and challenging the absence of corroboration in other areas.
James Eckert, Assistant Monroe County Public Defender
Is a note saying "gimme all your money, I have a gun" legally sufficient to prove robbery while in actual possession of a firearm readily capable of causing death or other serious physical injury?
That is the question considered by the the Court of Appeals in, People v Grant (_NY3d_ [10/20/11) at (see). Grant dealt with a reduction based on Grand Jury minutes, wherein the only proof of the existence of a gun and its capacity to cause serious physical injury or death was a note threatening the bank teller, saying that the defendant had a gun and if she didn't give him the money he'd shoot. We're not talking trial proof. Four judges of the Court of Appeals held that a note saying the defendant had a gun was not prima facie evidence of the actual existence and possession of a gun readily capable of shooting anyone.
First degree robbery, subdivision three, requires that defendant "actually possessed a dangerous instrument at the time of the crime". PL 160.15(3) reads "uses or threatens the immediate use of a dangerous instrument". It is subdivision four which allows a robbery conviction for possession of a finger, if that finger "appears to be a pistol, revolver ...". Subdivision three has been held to require an actually existing weapon (People v Pena, 50 NY2d 400 [1980]). In Pena, defendant had a paper bag over his hand and threatened to shoot. When apprehended shortly after, Pena had the bag, which contained a knife. The Court of Appeals ruled that under subdivision three "it was the employment of such an instrumentality that was significant" (Pena, footnote 2). The Court held that the proof showed that Pena had a knife at the time of the robbery and that he used that knife to threaten the victim. Apparently, nobody understood how knives worked back in 1980.
Nonetheless, as the majority noted in Grant, all four departments interpreted Pena to mean that a defendant, under 160.15(3), had to actually possess an actual weapon. A mere threat to harm someone with a weapon is not sufficient. Thus, the defendant's statement that he has a gun, without other proof of actual possession, is insufficient to prove the existence of such a gun. "Absent some other corroboration that defendant actually possessed a dangerous instrument" the grand jury could not rationally have drawn the guilty inference. The dissenters were prepared to hold that actual possession was not required, except the prosecution abandoned that position on appeal! Nonetheless, the dissent would have held that defendant's "admission" (I'd call it a mere claim coupled with ample incentive to lie) was sufficient to prove the fact admitted. Further, the dissent would have held that the defendant's threat to shoot was sufficient proof of operability which would have, if unexplained and uncontradicted, permitted a jury to convict (effectively shifting the burden to the defense). The dissent was willing to admit that some threats could be too vague to sustain the grand jury, much less a conviction (e.g. "if you don't keep your dogs quiet I'm going to destroy the earth" might be insufficient to prove possession of a fully operational Death Star).
The Grant decision has application beyond robbery first under subdivision three. If the defendant's admission of a fact is, without more, insufficient proof of that fact even at Grand Jury, then we should be looking for and challenging the absence of corroboration in other areas.
Thursday, October 13, 2011
Weight Of Evidence Review Must Be Manifest In Appellate Division Decision
When an appellant urges that the weight of the credible evidence does not support the conviction, the decision of the intermediate appellate court must reflect that the court exercised its authority, sitting like a thirteenth juror, to assess http://www.blogger.com/img/blank.gifwhether the evidence supports the conviction. Thus, in People v Brown (2011 NY Slip Op 07146 [10/13/11]), where the order of that Appellate Division manifested a lack of application of that review power, the Court of Appeals reversed a conviction and remitted for a proper assessment of the weight of the evidence
Weight Of Evidence Review Must Be Manifest In Appellate Division Decision
When an appellant urges that the weight of the credible evidence does not support the conviction, the decision of the intermediate appellate court must reflect that the court exercised its authority, sitting like a thirteenth juror, to assess http://www.blogger.com/img/blank.gifwhether the evidence supports the conviction. Thus, in People v Brown (2011 NY Slip Op 07146 [10/13/11]), where the order of that Appellate Division manifested a lack of application of that review power, the Court of Appeals reversed a conviction and remitted for a proper assessment of the weight of the evidence
Monday, October 10, 2011
Among the many important life lessons set forth in The Princess Bride is the distinction between dead and mostly dead:
As the decision of the Appellate Division, Fourth Department, in People v Sanders (2011 NY Slip Op 07100 [4th Dept 10/7/11]) shows, that distinction parallels the distinction between a void conviction and a voidable one. One is as though it never was. And the other, invalidly obtained is still slightly alive.
In Sanders, the Court considered the application of the double jeopardy protections to a voidable conviction. Upon Mr. Sanders' convictions for Criminally Negligent Homicide and Assault the People sought persistent felony offender status for defendant based, in part, on his 2003 assault conviction. Sanders opposed persistent felony offender status on grounds that his 2003 guilty plea was to a charge not contained in the felony complaint and not a lesser included offense, and that his right to be indicted by a grand jury had thus been violated . The court agreed with defendant, finding "that the [*2]defendant's conviction . . . in 2003 was jurisdictionally defective and a nullity and cannot be counted in determining that he is a persistent felony offender" (People v Sanders, 24 Misc 3d 1232[A], 2009 NY Slip Op 51693[U], *2).
While the 2003 conviction was jurisdictionally defective and voidable, Sanders never moved to vacate it. Despite the fact that the 2003 conviction had never been vacated, the People proceeded to present evidence of the assault upon that conviction was based to a grand jury and obtained an indictment charging Sanders with assault in the first degree based upon the same incident for which he had pleaded guilty to assault in the second degree in 2003. The County Court granted Sanders' motion to dismiss on double jeopardy grounds, since the 2003 conviction had not been vacated. The People appealed and the Appellate Division, Fourth Department affirmed even though the 2003 conviction was based on a jurisdictionally defective SCI. Relying on Matter of Campbell v Pesce (60 NY2d 165), the Court held that
Miracle Max: It just so happens that your friend here is only mostly dead. There's a big difference between mostly dead and all dead. Mostly dead is slightly alive. With all dead, well, with all dead there's usually only one thing you can do.
Inigo Montoya: What's that?
Miracle Max: Go through his clothes and look for loose change.
As the decision of the Appellate Division, Fourth Department, in People v Sanders (2011 NY Slip Op 07100 [4th Dept 10/7/11]) shows, that distinction parallels the distinction between a void conviction and a voidable one. One is as though it never was. And the other, invalidly obtained is still slightly alive.
In Sanders, the Court considered the application of the double jeopardy protections to a voidable conviction. Upon Mr. Sanders' convictions for Criminally Negligent Homicide and Assault the People sought persistent felony offender status for defendant based, in part, on his 2003 assault conviction. Sanders opposed persistent felony offender status on grounds that his 2003 guilty plea was to a charge not contained in the felony complaint and not a lesser included offense, and that his right to be indicted by a grand jury had thus been violated . The court agreed with defendant, finding "that the [*2]defendant's conviction . . . in 2003 was jurisdictionally defective and a nullity and cannot be counted in determining that he is a persistent felony offender" (People v Sanders, 24 Misc 3d 1232[A], 2009 NY Slip Op 51693[U], *2).
While the 2003 conviction was jurisdictionally defective and voidable, Sanders never moved to vacate it. Despite the fact that the 2003 conviction had never been vacated, the People proceeded to present evidence of the assault upon that conviction was based to a grand jury and obtained an indictment charging Sanders with assault in the first degree based upon the same incident for which he had pleaded guilty to assault in the second degree in 2003. The County Court granted Sanders' motion to dismiss on double jeopardy grounds, since the 2003 conviction had not been vacated. The People appealed and the Appellate Division, Fourth Department affirmed even though the 2003 conviction was based on a jurisdictionally defective SCI. Relying on Matter of Campbell v Pesce (60 NY2d 165), the Court held that
Although the constitutional Double Jeopardy Clauses do not bar a second prosecution where the prior judgment of conviction has been vacated upon the defendant's motion or appeal because of an error in the proceedings (see Lockhart v Nelson, 488 US 33, 38; United States v Tateo, 377 US 463, 465-467), the 2003 judgment of conviction has never been vacated. The judgment of conviction is still on defendant's criminal record and would presumably remain on his record even if he were convicted in the instant prosecution. We do not see how there can be two separate convictions on defendant's record for the same offense without implicating the constitutional prohibition against double jeopardy.
Among the many important life lessons set forth in The Princess Bride is the distinction between dead and mostly dead:
As the decision of the Appellate Division, Fourth Department, in People v Sanders (2011 NY Slip Op 07100 [4th Dept 10/7/11]) shows, that distinction parallels the distinction between a void conviction and a voidable one. One is as though it never was. And the other, invalidly obtained is still slightly alive.
In Sanders, the Court considered the application of the double jeopardy protections to a voidable conviction. Upon Mr. Sanders' convictions for Criminally Negligent Homicide and Assault the People sought persistent felony offender status for defendant based, in part, on his 2003 assault conviction. Sanders opposed persistent felony offender status on grounds that his 2003 guilty plea was to a charge not contained in the felony complaint and not a lesser included offense, and that his right to be indicted by a grand jury had thus been violated . The court agreed with defendant, finding "that the [*2]defendant's conviction . . . in 2003 was jurisdictionally defective and a nullity and cannot be counted in determining that he is a persistent felony offender" (People v Sanders, 24 Misc 3d 1232[A], 2009 NY Slip Op 51693[U], *2).
While the 2003 conviction was jurisdictionally defective and voidable, Sanders never moved to vacate it. Despite the fact that the 2003 conviction had never been vacated, the People proceeded to present evidence of the assault upon that conviction was based to a grand jury and obtained an indictment charging Sanders with assault in the first degree based upon the same incident for which he had pleaded guilty to assault in the second degree in 2003. The County Court granted Sanders' motion to dismiss on double jeopardy grounds, since the 2003 conviction had not been vacated. The People appealed and the Appellate Division, Fourth Department affirmed even though the 2003 conviction was based on a jurisdictionally defective SCI. Relying on Matter of Campbell v Pesce (60 NY2d 165), the Court held that
Miracle Max: It just so happens that your friend here is only mostly dead. There's a big difference between mostly dead and all dead. Mostly dead is slightly alive. With all dead, well, with all dead there's usually only one thing you can do.
Inigo Montoya: What's that?
Miracle Max: Go through his clothes and look for loose change.
As the decision of the Appellate Division, Fourth Department, in People v Sanders (2011 NY Slip Op 07100 [4th Dept 10/7/11]) shows, that distinction parallels the distinction between a void conviction and a voidable one. One is as though it never was. And the other, invalidly obtained is still slightly alive.
In Sanders, the Court considered the application of the double jeopardy protections to a voidable conviction. Upon Mr. Sanders' convictions for Criminally Negligent Homicide and Assault the People sought persistent felony offender status for defendant based, in part, on his 2003 assault conviction. Sanders opposed persistent felony offender status on grounds that his 2003 guilty plea was to a charge not contained in the felony complaint and not a lesser included offense, and that his right to be indicted by a grand jury had thus been violated . The court agreed with defendant, finding "that the [*2]defendant's conviction . . . in 2003 was jurisdictionally defective and a nullity and cannot be counted in determining that he is a persistent felony offender" (People v Sanders, 24 Misc 3d 1232[A], 2009 NY Slip Op 51693[U], *2).
While the 2003 conviction was jurisdictionally defective and voidable, Sanders never moved to vacate it. Despite the fact that the 2003 conviction had never been vacated, the People proceeded to present evidence of the assault upon that conviction was based to a grand jury and obtained an indictment charging Sanders with assault in the first degree based upon the same incident for which he had pleaded guilty to assault in the second degree in 2003. The County Court granted Sanders' motion to dismiss on double jeopardy grounds, since the 2003 conviction had not been vacated. The People appealed and the Appellate Division, Fourth Department affirmed even though the 2003 conviction was based on a jurisdictionally defective SCI. Relying on Matter of Campbell v Pesce (60 NY2d 165), the Court held that
Although the constitutional Double Jeopardy Clauses do not bar a second prosecution where the prior judgment of conviction has been vacated upon the defendant's motion or appeal because of an error in the proceedings (see Lockhart v Nelson, 488 US 33, 38; United States v Tateo, 377 US 463, 465-467), the 2003 judgment of conviction has never been vacated. The judgment of conviction is still on defendant's criminal record and would presumably remain on his record even if he were convicted in the instant prosecution. We do not see how there can be two separate convictions on defendant's record for the same offense without implicating the constitutional prohibition against double jeopardy.
Friday, September 30, 2011
In reversing a conviction after a trial held in absentia, the Fourth Department, in People v Houghtaling (4th Dept 9/30/11), explained
that County Court erred in conducting the trial in his absence. Even assuming, arguendo, that the court advised defendant of the scheduled trial date and warned him that the trial would proceed in his absence if he failed to appear (see generally People v Parker, 57 NY2d 136, 141), we conclude that the court failed to inquire into defendant’s absence and to recite “on the record the facts and reasons it relied upon in determining that defendant’s absence was deliberate” (People v Brooks, 75 NY2d 898, 899, mot to amend remittitur granted 76 NY2d 746; see People v Dugan, 210 AD2d 971, 972, lv denied 85 NY2d 972).
In reversing a conviction after a trial held in absentia, the Fourth Department, in People v Houghtaling (4th Dept 9/30/11), explained
that County Court erred in conducting the trial in his absence. Even assuming, arguendo, that the court advised defendant of the scheduled trial date and warned him that the trial would proceed in his absence if he failed to appear (see generally People v Parker, 57 NY2d 136, 141), we conclude that the court failed to inquire into defendant’s absence and to recite “on the record the facts and reasons it relied upon in determining that defendant’s absence was deliberate” (People v Brooks, 75 NY2d 898, 899, mot to amend remittitur granted 76 NY2d 746; see People v Dugan, 210 AD2d 971, 972, lv denied 85 NY2d 972).
In People v Spencer (4th Dept 9/30/11) the Appellate Division, Fourth Department, reversed a conviction and vacated a Superior Court Information (SCI) where the defendant pled guilty pursuant to a SCI after he was indicted for a crime arising from the same incident. As the Court explained the
waiver of indictment was invalid inasmuch as there is no evidence in the record before us that a local criminal court held him over for the action of a grand jury on the charges in the superior court information (SCI). Defendant is correct that his contention “is a jurisdictional one which survives his appeal waiver and guilty plea”
(People v Dennis, 66 AD3d 1058, 1058; see People v Boston, 75 NY2d 585, 589 n), and we agree with defendant that his contention has merit. As the record establishes, at the time defendant waived indictment and consented to be prosecuted by an SCI, he had already been indicted on the burglary charges, which arose from the same incident. Consequently, we agree with defendant that, “[g]iven the objective and the plain language of CPL 195.10 (2) (b), the conclusion is inescapable that waiver cannot be accomplished after indictment, as was the case here, even where it is the defendant who orchestrates the scenario” (Boston, 75 NY2d at 589). We therefore reverse the judgment in appeal No. 2, vacate the sentence imposed, and dismiss the SCI.
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