Tuesday, October 25, 2011

Involuntary Deportation Is Not A Basis For Dismissal Of An Appeal To The Appellate Division

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

Sealed Records Cannot Be Obtained Solely For Use In Pending Criminal Proceedings

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

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.

Saying "I Have A Gun" Does Not Prove That One Has A Gun

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.

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

Monday, October 10, 2011

Double Jeopardy and the Princess Bride

Among the many important life lessons set forth in The Princess Bride is the distinction between dead and mostly dead:
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.