Sunday, February 28, 2016

Statutory presumptions, Part 2: Factual predicates are required to justify the use of presumptions

Recall that we noted in the last post that presumptions may not be invoked where the underlying facts needed to support them are not present (see People v Zekaj, 191 AD2d 663 [2nd Dept 1993]; People v Wilt, 105 AD2d 1089 [4th Dept 1984]).  When are the underlying facts insufficient to warrant invoking a presumption?  As you might expect, there’s no black on white rule, so we’ll lay out the considerations below.  

Consider a common fact pattern: police find a loaded handgun under the front seat of a car occupied by the defendant and two others. All three are charged with Criminal Possession of a Weapon in the Second Degree.  As is typically the case, there is no direct proof bearing on defendant’s alleged intent to unlawfully use the weapon found in the vehicle, nor is there any proof regarding defendant’s actual possession or knowledge of the presence of the weapon in the vehicle.  So, the prosecution’s case relies on two presumptions: first, that everyone in the vehicle is presumed to possess the weapon (Penal Law § 265.15[3]) and second, that one who possesses a loaded weapon is presumed to do so with the intent to use it unlawfully against another (Penal Law § 265.15[4]). 

We’ll talk about problems with presumption stacking next time (sort of like multiplying fractions - you wind up with a smaller, not a greater number or burden of proof).  Leave that aside for now while we consider the use of each presumption independently.  What does case law say about the requisite factual basis?  With apologies for citation format, then:

“Presumptions must be carefully scrutinized before they will be allowed to operate against an accused since there is a real and substantial possibility that they will conflict with the overriding, more fundamental presumption of innocence accorded to every defendant” (Leary v United States, 395 US 6).  Absent a “a reasonably high degree of probability that the presumed fact follows from those proved directly” (People v Leyva, 38 NY2d 160, 166), “the danger . . . is that of logical gaps – that is, subjective inferential links based on probabilities of low grade or insufficient degree – which undetected, elevate coincidence and, therefore, suspicion into permissible inference” (People v Cleague, 22 NY2d 363).  In such a cases, reliance on a presumption may lead to a mistaken or demonstrably incorrect result. 

For example, police officers possess deadly weapons, however that possession, without more, is no evidence of any intention to use those weapons unlawfully.  In fact, just the opposite presumption would be more likely: that the officers possess their weapons for the purpose of enforcing, rather than violating, the law.  The legislature recognized specific instances where the facts affirmatively defeat the presumption by enacting exemptions in Penal Law § 265.20; section 265.20(a)(1)(b) relates to police officers.

Penal Law § 10.00(8) defines “possession” as “to have physical possession or otherwise to exercise dominion or control over tangible property.”  Thus, in order for the presumption of possession to be constitutionally applied, the proof at trial must support a rational inference that each occupant of the vehicle was aware of the presence of the gun and possessed both the ability and intent to exercise dominion or control over it (County Court of Ulster County v Allen, supra, 442 US 140, 152). 

In Ulster County, three men and a sixteen-year-old girl were traveling together from Detroit to New York City.  When the car was stopped for a traffic violation, a trooper noticed a gun sticking out of the girl’s open handbag, which held two guns.  The Supreme Court reasoned that because “the guns were lying on the car’s floor or seat in plain view” it was “rational to infer that each of the respondents was fully aware of the guns’ presence and had both the ability and intent to exercise dominion and control over them.”  The Court found a rational basis permitting invocation of the presumption of possession where codefendants were not casual passengers but well-known to each other, and the weapons were not “out of defendants’ sight” (442 US at 152).

The Court did not reach the issue of the constitutionality of the presumption in cases where a gun was hidden in a car or inaccessible to a defendant.  Rather, the Court refused to find Penal Law § 265.14(3) unconstitutional on its face simply because it could “sweep[] within its compass many occupants who may not know they are riding with a gun (which may be out of their sight), and many who may be aware of the presence of the gun but not permitted to access it,” in the grounds that the defendants lacked standing to challenge the application of the presumption in these hypothetical situations.

In its Ulster County decision, however, the Second Circuit held that in a case involving casual passengers and a gun concealed from defendant’s sight, invocation of the automobile–  possession presumption would unconstitutionally diminish the People’s burden of proof  (Ulster County v Allen, 568 F2d 998). 

Such concerns might be triggered (ha, ha) where there is no independent evidence that the defendant knew that the gun was in the vehicle, or lacked any relationship with the others in the vehicle other than that of “casual passengers,” which could support a finding that they shared a common purpose. Absent any independent supporting evidence, there could be no rational basis to infer that the defendant was aware of the presence of the gun and possessed both the ability and intent to exercise dominion or control over the gun.  Furthermore, there would be no substantial assurance that the presumed fact of possession is more likely than not to flow from the proven fact upon which it is made to depend – the defendant’s presence in a car where a concealed gun was found.  

Under these circumstances, for a conviction to stand, it must be “clear that the presumption is not the sole and sufficient basis for a finding of guilt” (Ulster County v Allen, 442 US at 165).  Where the prosecution’s entire case for possession is based solely upon the fact that the defendant was present in a car where a concealed handgun was found and the record is devoid of any independent factual basis that could suggest that the defendant knew that a gun was present or had the ability to exercise dominion or control over it, resort to the presumptions of possession or the intention to use unlawfully would be improper.

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