Wednesday, February 22, 2012

Molineux is Alive and Well and Coming to a Courtroom Near You

In People v Cass (#28 decided 2/16/12) the defendant's claim of extreme emotional disturbance was undercut by the fact that he'd allegedly committed a nearly identical murder 14 months earlier. In both cases he claimed that he was surprised by men making sexual advances to him and he "just lost it". Though in the instant case Cass' belt was used to drag the deceased and in the prior case it was used to cause death. The defense countered the DA's request by saying that the prior allegations were not inconsistent with the claimed EED defense, but rather supported it, and in any event were highly prejudicial even if modestly probative.

The Court of Appeals held: "By asserting the defense of extreme emotional disturbance, defendant necessarily put his state of mind at the time of the Dombrova killing in issue. We have held that where a defendant puts an affirmative fact--such as a claim regarding his/her state of mind--in issue, evidence of other uncharged crimes or prior bad acts may be admitted to rebut such fact" ... "This highly probative evidence is directly relevant to defendant's extreme emotional disturbance defense in that it has a logical and natural tendency to disprove his specific claim that he was acting under an extreme emotional disturbance at the time of the Dombrova homicide (See Santarelli, 49 NY2d at 248). The evidence arguably shows that defendant had a premeditated intent to target gay men for violence, thereby tending to rebut the loss of control he claimed as part of his extreme emotional disturbance defense. Thus, the evidence tends to establish that the subjective element of the defense has not been made out." Thus, even if the Molineux evidence is not wholly inconsistent with the defense, if it has sufficient value as a counter to a proffered defense, it can be admissible. The Court of Appeals also stressed repeatedly the DA's theory, implying perhaps that a prosecution can be tailored to fit particularly nasty Molineux evidence.

The Court also upheld the use of Molineux to prove identity where the complainant was the defendant's wife and the defendant admitted being present at the scene of the crime when it took place (People v Agina Case #12). The complainant alleged that the defendant accused her of cheating on him, and that he proceeded to bind and torture her. He released her and the two then had four reasonably good days together before she alerted authorities. On the theory that since the defendant denied committing the crimes in question, he had placed identity in issue, the trial court allowed the defendant's ex-wife to testify that, 15 months before the allegations at trial, he had accused her of cheating on him, bound her and tortured her. The Appellate Division reversed, saying "identity my ass" (I haven't read the decision). The Court of Appeals reinstated the conviction. "The issue before us is whether defendant's identity was so conclusively established as to prevent the exception from being invoked. We hold that it was not." "While the existence of the complainant's injuries was proved by photographs, nothing in the People's case except the complainant's testimony (apart from the evidence of the uncharged crime) pointed to defendant as the person who injured her. Since the jury might doubt the complainant's word, this evidence was not conclusive. It is true, as the dissent says, that there was no possibility of mistaken identity (dissenting op at 2-3). But the jury could have believed that the complainant's identification was intentionally false, as defense counsel's opening suggested, in language quoted by the dissent: "she is not telling the truth" (dissenting op at 4)."

Judges Ciparek and Jones dissented for the obvious reason that the complainant's ability to identify her husband was not an actual issue at trial.

Friday, February 17, 2012

Request to Consult an Attorney is Not By Itself a Refusal to Take Chemical Breath Test

In People v Smith(2/16/12]) the Court of Appeals reversed a conviction for driving while impaired upon a holding that the trial court erred in permitting the People to introduce evidence that Mr. Smith refused to take a chemical breath test to determine his blood alcohol content when requested to do so by State Troopers.

At the scene of his motor vehicle stop, the troopers administered Mr. Smith both Miranda warnings and chemical test warnings as contemplated in Vehicle and Traffic Law § 1194(2)(f).

The chemical test warnings informed defendant:

"You are under arrest for driving while intoxicated. I am going to ask you if you will submit to a chemical test to determine the alcohol and/or drug content of your blood. Before I do, I must advise you that a refusal to submit to a chemical test or any portion thereof will result in the immediate suspension and subsequent revocation of your license or operating privileges, whether or not you are found guilty of the charge for which you were arrested. Your refusal to submit to a chemical test or any portion thereof can be introduced into evidence against you at any trial, proceeding or hearing resulting from this arrest. Do you understand what I have told you? Will you submit to a chemical test for the purpose of determining the alcohol and/or drug content of your blood?"

Mr. Smith twice responded that he understood the warnings but wanted to speak to his lawyer before deciding whether to take a chemical test.

He tried but was was unable to reach his lawyer by telephone. A half-hour later, the troopers read the chemical test warnings a third time and sought an answer from defendant concerning whether he would take a chemical test. Defendant responded that he was waiting for his attorney to call him back. The troopers interpreted defendant's response as a refusal to submit to the test and they recorded that refusal on a form pursuant to Vehicle and Traffic Law § 1194(2)(b). Smith was never advised that his time to seek a consultation with an attorney had elapsed. Thus, he maintained that he was unaware that his response to the third request — that he was waiting to hear back from his lawyer — would be interpreted as a refusal to take the test.

After reiterating its holding in People v Shaw (72 NY2d 1032 [1988] that police need not inform suspects of their right to consult counsel prior to deciding whether to submit to chemical tests, the Court held that

All that is required for a refusal to be admissible at trial is a record basis to show that, through words or actions, defendant declined to take a chemical test despite having been clearly warned of the consequences of refusal. In this case, such evidence would have been present if, during the third request, troopers had merely alerted defendant that his time for deliberation had expired and if he did not consent to the chemical test at that juncture his response would be deemed a refusal. Indeed, we already approved the use of a comparable admonition in People v O'Rama (78 NY2d 270, 280-281 [1991]) where, after defendant continued to express his desire to consult with counsel before taking a chemical test despite his inability to promptly reach his lawyer, the police properly advised defendant that his insistence on waiting for his attorney would be interpreted as a refusal.

Since Mr. Smith had not been so informed, it as error to permit testimony about a refusal.