Sunday, March 29, 2015

One Apparently Wrongful Conviction Results in Two Important Decisions from the Second Circuit

In 1993, Hector Rivas was convicted of the 1987 murder of  his former girlfriend.  The prosecution defeated Mr.Rivas’s alibi by relying on the testimony of the medical examiner which placed the time of death as occuring on the day prior to that for which Mr. Rivas had an alibi. What was noteworthy about this testimony was that for the six years prior to trial the medical examiner had placed the time of death on the date for which Rivas had an alibi and only switched at trial. Defense counsel failed to investigate the purported basis of this switch.

Six years later Mr. Rivas brought a 440 motion claiming ineffective assistance of counsel. In support of his motion Rivas presented essentially unchallenged expert testimony from a pathologist persuasively showing that woman died on the day of his alibi and not on the date the medical examiner testified she did.  Further, the motion  presented compelling evidence that the medical examiner had perjuriously purported to base his time-of-death opinion in part on “brain slides” that, Rivas later learned, were nonexistent. Rivas also introduced evidence that, at the time of Rivas's trial, the medical examiner was under investigation by state and local agencies (including possibly the office of the prosecutor who charged Rivas) for various forms of misconduct. At trial, Rivas’s counsel failed to challenge the medical examiner’s reliance on the non-existent “brain slides,” or to cross-examine him regarding the investigations into his alleged misconduct that were pending at the very time of the prosecution of Rivas.

The 440 motion was denied and Riva’s habeas corpus petition was dismissed by the District Court as time barred.

But in 2012, in Rivas v. Fischer, 687 F.3d 514 (2d Cir. 2012), nearly 20 years after Rivas’s conviction, ,the Second Circuit re-instated the habeas petition. The Court held, for the first time, that a gateway showing of actual innocence can equitably toll the statute of limitations for the filing of petition for a writ of habeas corpus and that Rivas had made such a showing:

    Rivas has raised a credible and compelling claim of actual innocence, as those concepts are understood in the relevant habeas jurisprudence. His claim is based on new information not presented to the jury that dramatically undermines the central forensic evidence linking him to the crime of which he was convicted. In sum and substance, Rivas has shown, through the essentially unchallenged testimony of a respected forensic pathologist, that the victim was almost certainly killed at a time when he had an uncontested alibi, and not earlier, as the prosecution had contended at his trial. We are not here called to determine whether Rivas is in fact innocent. However, on the record before us, we “cannot have confidence in the outcome of [Rivas’s] trial” unless we can be assured that “the trial was free of nonharmless constitutional error.”   
        [W]e now conclude, as a matter of first impression in this Circuit, that a credible and compelling showing of actual innocence under the standard described by the Supreme Court in Schlup and House warrants an equitable exception to AEDPA’s limitation period, allowing the petitioner to have his otherwise time-barred claims heard by a federal court. Because Rivas has made such a showing, we reverse the decision of the [district court] dismissing his petition for habeas relief and remand for full consideration of his underlying constitutional claims.
        Although this hugely important decision prompted numerous inmates to file habeas corpus petitions premised on claims of actual innocence, it did not immediately help Mr. Rivas. On remand the District Court denied the petition, holding that the state court's rejection of the 440 motion  “was comprised of both reasonable factual determinations and a reasonable application of Strickland.”
   
    On March 11, 2015, the Second Circuit reversed and granted the petition. The Court held that the no reasonable argument could be made that the petitioner’s defense counsel satisfied his duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. Moreover, the Court found that no reasonable argument can be made that defense counsel’s deficient performance did not prejudice the defense. Consequently, as a result, the state court’s conclusion to the contrary, in denying the 440 motion, involved an “unreasonable application” of  Strickland. The Second Circuit then directed the district court to issue a writ of habeas corpus in 60 days unless the state has taken concrete and substantial steps to expeditiously retry the petitioner.

    Critically, the Court held that trial counsel failed to satisfy his
    constitutional “duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052. Considering all the circumstances, no “fairminded jurist[ ]” could agree that the quantum of evidence known to [counsel] at the time justified his decision to forego further investigation and rely instead on a critically deficient alibi and two perfunctory items of impeachment evidence that only scratched the surface of [the medical examiner’s] revised findings. Harrington, 562 U.S. at 101 (“Strickland does not establish that a cursory investigation automatically justifies a tactical decision....”).
    Thus, the Court strongly held that counsel has a constitutional obligation to investigate that may include a duty to consult with an expert.

Thursday, March 26, 2015

A wrinkle in the Penal Law; prosecutions for Manslaughter in the First Degree where the defendant did NOT intend to cause serious physical injury, but death results.

A person is guilty of Manslaughter in the First Degree when, with intent to cause serious physical injury to another person, he causes the death of such person (CJI2d [NY] Penal Law § 125.20[1]).  Penal Law § 10(10) defines “serious  physical  injury” as physical injury which creates a substantial risk of death, or which causes death or serious and protracted  disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.”

But what about the case where the defendant acts intentionally to cause the victim physical injury (but NOT serious physical injury) and death results?  Not only does this fact pattern not satisfy the elements of Manslaughter in the First Degree, there is no other applicable homicide offense in the Penal Law. The classic example is a leg-shooting or leg-stabbing case where defendant’s acts support a claim that he did NOT intend to cause a grave risk of death, but where he nonetheless severs the femoral artery, causing death.  

In some cases, a defendant’s “intent can be inferred from the act itself” (People v Bracey, 41 NY2d 296, 301 [1977] [possession of weapon during a robbery satisfied element of intent to use the weapon unlawfully against another]).  Likewise, the circumstances of some shootings, by their nature, can establish the defendant’s intent to cause serious physical injury (see, People v Vigliotti, 270 AD2d 904 [4th Dept 2000] [victim shot in chest from two feet or less during argument with defendant; proof sufficient to establish intent to cause serious physical injury]; People v Ramirez, 182 AD2d 569 [1st Dept 1992] [same]; People v Dukes, 30 AD3d 682 [3rd Dept 2006] [victim shot in back during argument over defendant’s girlfriend; proof sufficient to establish intent to cause serious physical injury]; People v Almonte, 135 AD2d 824 [2nd Dept 1987] [victim shot at point blank range]). 

The use of a weapon, depending on the manner in which it is used, may also be indicative of the intent to inflict serious physical injury (People v Haynes, 39 AD3d 562 [2nd Dept 2007] [defendant killed the victim by driving a car straight at him]); People v Lewis, 300 AD2d 827 [3rd Dept 2002] [defendant killed victim by stabbing victim causing a deep penetrating wound through the back to the heart]; People v Owens, 251 AD2d 898 [3rd Dept 1998] [defendant shot victim once and attempted to fire again]; People v Andrews, 78 AD3d 1229 [3rd Dept 2010] [intent to cause serious physical injury found where defendant repeatedly swung hammer at victim’s head in violent vertical strikes]).

The nature of the wound or mechanism of injury does not necessarily establish, without more, the element of serious physical injury.  Not every gunshot ineluctably results in serious physical injury (see, People v Gray, 30 AD3d 771 [3rd Dept 2006] [victim shot with shotgun from 20 feet away, evidence insufficient to establish serious physical injury]; see also, People v Rojas, 61 NY2d 726 [1984] [gunshot injury does not by itself establish substantial pain as required for physical injury]; People v Francis, 112 AD2d 167 [2nd Dept 1985] [same]; People v Horton, 9 AD3d 503 [3rd Dept 2004] [gunshot wound to neck insufficient to establish serious physical injury]; see also, People v Daniels, 97 AD3d 845, [3rd Dept 2012] [single stab wound to the head was insufficient to establish serious physical injury]; People v Sleasman, 24 AD3d 1041 [3rd Dept 2005] [throat slashing did not establish serious physical injury]).

On the other hand, shooting a victim in the extremities may, depending on the circumstances, evince an intent to cause serious physical injury (see, People v Grier, 261 AD2d 555 [2nd Dept 1999] [proof that defendant aimed gun at victim’s genitals and fired sufficient to establish defendant’s intent to cause serious physical injury]; People v Davis, 300 AD2d 78 [1st Dept 2002] [Victim shot in arm, proof of intent to cause serious physical injury was sufficient where defendant pointed gun at victim’s chest and she pushed it away before shot was fired]; see also, People v Linton, 21 AD3d 909 [2nd Dept 2005] [multiple shots to hip, back, and hands]; People v Garcia, 202 AD2d 189 [1st Dept 1994] [shot to kneecap]).  While not every shooting where the target is the victim’s extremities will evince an intent to cause serious physical injury, some leg-shooting cases could support a finding of an intent to cause serious physical injury or protracted loss of use of a bodily function or organ – shooting the victim point blank in the kneecap, as in Garcia, for example.

Where a defendant acts in manner specifically calculated not to cause death and with the intent to injure but not to cause serious physical injury (as in a leg-shooting or leg-stabbing case), and death results, the elements of Manslaughter in the First Degree are not satisfied, since Manslaughter in the First Degree requires a finding that the injury that defendant inflicted or intended to inflict presented a grave risk of death – i.e.,  death was a reasonably foreseeable consequence and the step from serious physical injury (posing a grave risk of death) and death itself is a relatively small one.

In such a case, the defendant’s conduct may also not be reckless as required to support a conviction for Manslaughter in the Second Degree under Penal Law § 125.15(1) where there is no evidence that the defendant was aware of and consciously disregarded a substantial and unjustifiable risk of death from shooting someone in the legs (Allstate Ins. Co. v Zuk, 78 NY2d 41 [1991]; People v Licitra, 47 NY2d 554 [1979]), absent any proof that the defendant had any medical training or knowledge of anatomy or physiology regarding the risks of a leg wound involving the femoral artery, and that such involvement could likely be fatal.
  
Even if the proof at trial establishes that the defendant was aware of the dangers of severing the femoral artery, a victim shot in the leg more often does not die or suffer serious physical injury; one whose intention is to cause injury that brings the victim a hair’s breadth away from death would not intentionally shoot the victim in the leg, since even a trained marksman could not expect to strike the femoral artery if firing at a moving target, from a distance, i the dark, etc., and while a shooter might reasonably expect to hit the victim in the leg, he could not have any reasonable expectation of causing a grave risk of death, which would require an unattainable level of precision.  Because the risk of death from shooting a victim in the leg is not of a nature and degree that disregarding such risk could constitute a gross deviation from the standard of care a reasonable person would observe, these facts would also fail to support a conviction for Manslaughter in the Second Degree (see, Penal Law 15.05[3]). 

Thus, where the shot (or stab) pattern demonstrates the absence of any intent to cause death or serious physical injury and instead reflects an extremely unlucky shot (or stab) resulting in a plainly unintentional and unpredictable death, this proof fails to satisfy the elements of Manslaughter in the First Degree or any lesser, related homicide offense. 

Friday, March 13, 2015

Arrested for a crime in NYS before age 19, am I a JD, JO,YO or an adult?

Generally those less than 16 years old are not criminally responsible for conduct (PL§ 30.00(1). Except for Juvenile Offenders (JO) all youths under the age of 16 are adjudicated exclusively in Family Court where they are prosecuted as Juvenile Delinquents. Fam Ct Act art 3. There are exceptions to every rule of course, this is NYS. JOs can be charged with committing serious felonies as young as age 13. See, PL § 70.05.
First some definitions. Juvenile Delinquent (JD): persons over 7 less than 16 alleged to have committed a crime if an adult, are not criminally responsible by reason of infancy (Family Court Act § 301.2(1). Juvenile Offender (JO): persons 13, 14, or 15 are criminally responsible for acts constituting Murder 2d (intentional not felony murder); persons 14 or 15 are criminally responsible for a listing of serious felonies (PL§ 10.00(18) and CPL§ 1.20(42). Youthful Offender (YO): persons 16, 17, or 18 (less than 19 birth dates are important) or a youth charged as a JO whose conviction of the crime based upon a determination of the court is vacated and replaced with YO finding (CPL§ 720.10 (1) and (2), 720.35(3)).
The age at the time of commission is controlling for each determination. Family Court Act §302(1), CPL §1.20(42), 720.10(1).
Proceedings for JO are governed by CPL §180.75 et al., and mirror those for an adult CPL §180.10., 180.60, 180.80, but allow for possible Removal to Family Court under CPL §175.4 &5. With certain exceptions, a local court SHALL at the request of the DA order removal to Family Court. CPL §175.4. The defendant child, may while the matter is pending in local court, move in superior court to remove the case. Procedures for such a determination by the superior court are governed pursuant to CPL §180.75(6)(a)&(b). If transferred, the case is thereafter treated as a juvenile delinquency matter. If not transferred the JO is tried in adult criminal court, convictions result in adult penalties and an adult criminal record, unless granted YO status.  
Proceedings for YO are governed by CPL §720.10 - 720.35. The YO determination is mandatory for first offense misdemeanor charges for 16, 17 or 18 (less than 19) with NO prior convictions and No prior YO determination. YO determinations are discretionary by the court for 16, 17 or 18 (less than 19) with NO prior felony, NO prior felony YO, NO prior JD plus a finding in the interest of justice. CPL §720.20(1)(a). Some youths are not eligible if convicted for A-I or A-II felonies, or an armed felony under PL §1.20(41), or Rape 1st, CSA 1st, Agg. SA, or any youth previously convicted and sentenced for a felony, any youth with a prior YO adjudication for a felony. CPL §720.10(2)
A YO adjudication is comprised of a YO Finding (CPL §720.10(4) and a YO sentence (CPL §720.10(5) and is completed by the imposition and entry of the YO sentence. CPL §720.10(6). Absent statutory elimination, all eligible defendants are entitled to an independent determination of whether to grant youthful offender status which lies in the discretion that must be made by of the sentencing court. CPL§ 720.20 [1] [a]. See, People v Rudolph, 2013 NY Slip Op 04840 [21 NY3d 497]. Such a determination is independent and cannot to be sacrificed in plea bargaining extended or limited by the DA.
YO privacy of proceedings is governed by CPL§ 720.15(2) providing arraignment and all proceedings in the discretion of the court and with the defendant’s consent must be conducted in private. Such privacy only applies to misdemeanors not felony offenses or complaints. CPL §720.15(3). 
Currently, New York and North Carolina are the only two states that prosecute youths over age 16 as adults. The way 16 and 17 year-olds are treated in the state court system could be overhauled if the state Legislature adopts changes to the juvenile justice system proposed by Gov. Andrew M. Cuomo. Under Gov. Cuomo’s proposed legislation, the age of criminal responsibility will rise to 18, with most criminal cases involving 16- and 17-year-olds being referred to Family Court for adjudication rather than adult courts. One effect of this change is that youths under the age of 18 no longer will be held at county jails while awaiting disposition of their cases and in most circumstances, absent a violent felony, will not face jail or a prison sentence, and not suffer a criminal conviction. A report prepared at the Governor’s request by the Commission on Youth, Public Safety and Justice states that, although state law requires 16 and 17 year olds to be housed apart from adult inmates, youths still come in contact with older inmates in common areas, placing them at risk of physical injury or sexual abuse. Raise the Age/NY (see, http://raisetheageny.com) lists the consequences of NYS’s obsession with continuing to prosecute children in adult courts. A reform group called Correctional Association claims more than eight hundred 16 & 17 year olds are being held in adult jails and prisons across NY. They report these youths suffer increased sexual and physical abuse and higher risks of suicide compared with teens in juvenile facilities. 
Importing this information within an application for independent determination by the sentencing court under People v Rudolph, 2013 NY Slip Op 04840 [21 NY3d 497] may yield more favorable dispositions from independent courts, blunting the injurious impact on our young clients, and changing a plea bargaining system governed solely by the discretion of the prosecution.  
Good Hunting.