May an appellate court take judicial notice of a fact for the first time on appeal where the trial court refused a party’s request to take judicial notice of the same fact, or even where the lower court was never asked to judicially notice that fact?  The answer, somewhat counter-intuitively, is yes. 

In Handling a Criminal Case in New York § 23:35 [2013], Gary Muldoon notes that “[i]t is a basic tenet of appellate practice that it is improper for an attorney to argue matters that are dehors (outside) the record on appeal” (see also, e.g., People v Chiles, 70 AD3d 1453 [4th Dept 2010]). There are exceptions to this rule, however.  One exception is evidence of a defendant’s post-sentencing rehabilitation on the issue of whether a sentence is harsh and excessive (Id. at § 23:36). Another relates to judicial notice of facts for the first time on appeal, which appellate courts may take, whether the parties have asked for it or not.  Usually (see below), this doesn’t help the defendant any. However being aware that an argument in favor of such judicial notice can properly be made may be a valuable tool in the appropriate case.  

For example, in People v Schreier, 22 NY3d 494 [2014], discussed in “Surreptitiousness is an element of Unlawful Surveillance” below, the Court of Appeals took judicial notice of the time of sunrise on the date charged in the indictment, citing to a report of the United States Naval Observatory, Astronomical Applications Department, Complete Sun and Moon Data for One Day, Form A-U.S. Cities or Towns, Dec. 24, 2008, Rochester, New York, http://aa.usno.navy.mil/data/docs/RS_One Day.php.  Significantly, according to the Court’s citation to that authority, the Court itself accessed the reference material on January 23, 2014, just three weeks before its decision was published, well after the appeal had been filed and argued.  

In United States v Davis, 726 F3d 357 [2nd Cir 2013], defendant was federally charged with assaulting another inmate at the Metropolitan Detention Center, which the government alleged was “within the special maritime and territorial jurisdiction of the United States,” an element of that offense. The government offered no evidence other than the testimony of federal corrections officers that the MDC is a federal facility on federal land. At the close of the government’s case, the district court denied defendant’s motion to dismiss the charge based on the government’s failure to prove geographic jurisdiction. The district court denied defendant’s motion but also, as defendant’s request, refused to take judicial notice that the MDC was a federal facility on federal land, holding that that was a question of fact for the jury. The jury thereafter convicted the defendant of assault as charged. 

On appeal, the Second Circuit held that the testimony of the government’s witnesses relative to geographical jurisdiction was legally insufficient to support defendant’s conviction. The Court affirmed defendant’s conviction nonetheless, based on its own taking of judicial notice that the MDC is “within the special maritime and territorial jurisdiction of the United States,” based on its review of documents reflecting the transfer of title from New York State to the United States of the land on which the MDC it located.  This was preceded by a detailed examination by the Court of its authority to take judicial notice on appeal of the same fact the district court refused to judicially notice. 

In United States v Hernandez-Fundora, 58 F3d 802, 812 [2nd Cir 1995], the Court drew a distinction between taking judicial notice of  “adjudicative facts” and “legislative facts.”  Adjudicative facts are “those developed in a particular case” which the trial court may take judicial notice of, but must “instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed” so as not to run afoul of the defendant’s Sixth Amendment confrontation rights (Id. at 810).  By contrast,“legislative facts,” the Court held, are “established truths, facts or pronouncements that do not change from case to case but apply universally” (Id. at 812, quoting United States v Gould, 536 F2d 216, 220 [8th Cir 1976]). A court that takes judicially notice of a legislative fact may then “remove that issue from consideration by the jury” (Id.).  

In Hernandez-Fundora, the Court found that whether Raybrook Federal Correctional Institution was “within the special maritime and territorial jurisdiction of the United States” was a question “premised upon a determination of legislative, rather than adjudicative, facts.” Accordingly, the Second Circuit held that after the district court took judicial notice of that fact, it properly removed that issue from the jury’s consideration by instructed the jury that Raybrook fell within the special maritime and territorial jurisdiction of the United States.

The Second Circuit noted that it is particularly appropriate for appellate courts to take judicial notice of facts in the first instance that relate to “‘straightforward questions’ such as ‘geography and jurisdiction,’” i.e., legislative facts (Davis, 726 F3d at 367, quoting Landell v Sorrell, 382 F3d 91, 135 n 24 [2nd Cir 2002], citing United States v Hernandez-Fundora, 58 F3d 802, 812 [2nd Cir 1995]; see also, Mills v Denver Tramway Corp., 155 F2d 808, 812 [10th Cir 1946] [trial court’s refusal to take judicial notice of a fact does not preclude party from raising the issue for the first time on appeal or prevent the appellate court from judicially noticing the fact on its own accord]; Ross v American Exp. Co., ___ FSupp2d ___, 2014 WL 1396492 at *21 n 27 [SDNY 2014]). 

Resort to such judicial notice on appeal might be appropriate where, for example, the trial proof establishes that a police officer acted beyond the bounds of his geographical jurisdiction, as demonstrated by reference to a map of the city or town in which the officer was employed (see, e.g., People v Graham, 192 Misc2d 528 [Sup Ct Erie Co 2002], aff’d 1 AD3d 1066 [4th Dept 2003] [where officer lacked authority to arrest defendant for traffic infractions outside the town of his employment, initial stop was tainted and all evidence obtained as a result was fruit of the poisonous tree]).