Information on the new Monroe County Gun Court Part

The following description of the "Gun Crimes Part" was generated as a result of meetings with Supreme Court Justice Thomas Moran, District Attorney Sandra Doorley and Monroe County Public Defender Timothy Donaher, as well as several others.  We are sharing this with you so that you will become aware of the process.  This memo does not reflect any endorsement of the process by ETKS or its attorneys:

Gun Crimes Part

There is a new Supreme Court part designated to handle crimes involving guns.  The Court, named the “Gun Crimes Part”, began accepting cases during the last two months.  Defendants charged with Criminal Possession of a Weapon in the Second Degree or Criminal Possession of a Weapon in the Third Degree as top counts, or other felonies involving guns, will have their cases directed to this court, often referred to as “Gun Court.”  Supreme Court Justice Thomas E. Moran will preside over the court.

On Friday, December 4, 2015 Judge Moran, District Attorney Sandra Doorley and Dave Fluellen, a probation officer in charge of a component program  of the court (“Swift, Certain and Fair”) met with defense attorneys and some court personnel to discuss the program.  In subsequent meetings among the key players, issues relating to discovery and the contract have been addressed.  Although all details have not been finalized, in general, the following procedures will be used.  

Gun Crimes Part cases in general:

Defendants charged with CPW2, CPW3 or other felony charges involving guns occurring in the city of Rochester will be arraigned in Part 5.  The PH date will be set.  If during preliminary negotiations there is a possibility of a plea, attorneys can request an adjournment to “set” a PH as we often do now.  

Discovery was discussed preliminarily at the meeting, and in greater detail during later discussions between Sandra Doorley and Tim Donaher, the Monroe County Public Defender.  Ms. Doorley ultimately agreed that if the defense attorney signs a discovery agreement, discovery as set forth in the agreement will be provided.  (A copy of the discovery agreement is attached.  Note – defense counsel does waive the right to a Bill of Particulars, and certain other rights, so defense counsel should review the agreement before deciding whether to sign.)

Judge Moran will oversee all plea negotiations.  If there is an adjournment to set a preliminary hearing for the purpose of plea negotiations, the case will be forwarded to Judge Moran, who will handle the preliminary hearing if there is no plea agreement reached and the case has not been indicted.  Preliminary hearings will be at 9:00 a.m.

If the case is indicted on the CPW2 or CPW3 the case will be forwarded to Judge Moran.  At the indictment stage, cases will be tagged for Gun Crimes Part with a stamp on the indictment.

If you want to have a pre-plea investigation ordered during the course of negotiations prior to indictment, Judge Moran will be the judge to issue the order.

Sandra Doorley noted that prosecutors will have the discretion to offer reduced charges in appropriate cases, with supervisor approval.  

Judge Moran expressed a preference that cases in which there will be a reduction be pled before indictment, and that reductions after indictment would not be common.  He also indicated that one of the goals of the new court include quicker handling of cases.  So if you are trying to reach a resolution, since the case will be going to Judge Moran after indictment, you might want to try to resolve it before indictment with Judge Moran’s participation.

Indicted Cases:

Indicted cases will be stamped “Gun Crimes Part.”  They will be litigated before Judge Moran.  Nothing about this process limits the defense from engaging in any appropriate litigation on these cases.

Swift, Certain and Fair:

(Not kidding, this is really the name of the new initiative. Sounds like someone is trying to convince themselves). There is a new initiative involving interim probation supervision of certain defendants charged with CPW3, CPW2 and other violent felony cases called “Swift, Certain and Fair” which will be actively overseen by Judge Moran. This new program was the result of planning by the Monroe County District Attorney’s Office, Monroe County Probation, the Rochester Police Department, R.I.T., and DCJS.  As part of the DCJS GIVE initiative, the grant provides funding for one Probation Officer position and additional GPS monitoring capability.  

The program will accept up to sixteen cases of defendants who are between the ages of sixteen and twenty-four, not predicate felons and are considered to be at-risk, but potentially able to comply with program requirements. Participation in the program will be a disposition that defense counsel can request, and for which a client must be screened.  If a client is accepted to the program all parties will sign a contract, as they do in diversion courts. 

Defendants in this program will be placed on interim probation under the supervision of a unit headed by Dave Fluellen of the Probation Department.  They will have to plead to a felony at the outset and sign a contract that the defense attorney and prosecutor will negotiate.  Defendants in this program will have to wear ankle bracelets for the first six months of the interim probation.  They will be carefully monitored, provided case managers, and receive rewards for compliance and sanctions for noncompliance, based on a graduated scale of sanctions, as they progress through the program.  If a participant successfully completes the program within a year, s/he will be allowed to withdraw his/her initial plea and plead to a reduced charge with a probation sentence.  If the client violates a condition the “Swift, Certain and Fair” component kicks in – the client gets a notice, even if it is late at night, to appear before Judge Moran at 9:00 the next morning.  Attorneys will also be notified and expected to appear.

  

The existence of “Swift, Certain and Fair” will not preclude YO eligible defendants who are not considered as “at risk” or otherwise unable to obtain entry into “Swift, Certain and Fair”  from obtaining YO dispositions with probation as a sentence, or other defendants who may otherwise  be appropriate for a probation sentence from obtaining that disposition.

Miscellaneous:

All of the details have not yet been worked out, and there are still questions about aspects of the program, such as what will happen to a defendant who is on felony probation – where will the new VOP go?  Or what will happen if a person who has a felony charge pending picks up a new gun charge – will the older felony follow the defendant to gun court?  As more information is developed, it will be circulated.

Information on the new Monroe County Gun Court Part

The following description of the "Gun Crimes Part" was generated as a result of meetings with Supreme Court Justice Thomas Moran, District Attorney Sandra Doorley and Monroe County Public Defender Timothy Donaher, as well as several others.  We are sharing this with you so that you will become aware of the process.  This memo does not reflect any endorsement of the process by ETKS or its attorneys:

Gun Crimes Part

There is a new Supreme Court part designated to handle crimes involving guns.  The Court, named the “Gun Crimes Part”, began accepting cases during the last two months.  Defendants charged with Criminal Possession of a Weapon in the Second Degree or Criminal Possession of a Weapon in the Third Degree as top counts, or other felonies involving guns, will have their cases directed to this court, often referred to as “Gun Court.”  Supreme Court Justice Thomas E. Moran will preside over the court.

On Friday, December 4, 2015 Judge Moran, District Attorney Sandra Doorley and Dave Fluellen, a probation officer in charge of a component program  of the court (“Swift, Certain and Fair”) met with defense attorneys and some court personnel to discuss the program.  In subsequent meetings among the key players, issues relating to discovery and the contract have been addressed.  Although all details have not been finalized, in general, the following procedures will be used.  

Gun Crimes Part cases in general:

Defendants charged with CPW2, CPW3 or other felony charges involving guns occurring in the city of Rochester will be arraigned in Part 5.  The PH date will be set.  If during preliminary negotiations there is a possibility of a plea, attorneys can request an adjournment to “set” a PH as we often do now.  

Discovery was discussed preliminarily at the meeting, and in greater detail during later discussions between Sandra Doorley and Tim Donaher, the Monroe County Public Defender.  Ms. Doorley ultimately agreed that if the defense attorney signs a discovery agreement, discovery as set forth in the agreement will be provided.  (A copy of the discovery agreement is attached.  Note – defense counsel does waive the right to a Bill of Particulars, and certain other rights, so defense counsel should review the agreement before deciding whether to sign.)

Judge Moran will oversee all plea negotiations.  If there is an adjournment to set a preliminary hearing for the purpose of plea negotiations, the case will be forwarded to Judge Moran, who will handle the preliminary hearing if there is no plea agreement reached and the case has not been indicted.  Preliminary hearings will be at 9:00 a.m.

If the case is indicted on the CPW2 or CPW3 the case will be forwarded to Judge Moran.  At the indictment stage, cases will be tagged for Gun Crimes Part with a stamp on the indictment.

If you want to have a pre-plea investigation ordered during the course of negotiations prior to indictment, Judge Moran will be the judge to issue the order.

Sandra Doorley noted that prosecutors will have the discretion to offer reduced charges in appropriate cases, with supervisor approval.  

Judge Moran expressed a preference that cases in which there will be a reduction be pled before indictment, and that reductions after indictment would not be common.  He also indicated that one of the goals of the new court include quicker handling of cases.  So if you are trying to reach a resolution, since the case will be going to Judge Moran after indictment, you might want to try to resolve it before indictment with Judge Moran’s participation.

Indicted Cases:

Indicted cases will be stamped “Gun Crimes Part.”  They will be litigated before Judge Moran.  Nothing about this process limits the defense from engaging in any appropriate litigation on these cases.

Swift, Certain and Fair:

(Not kidding, this is really the name of the new initiative. Sounds like someone is trying to convince themselves). There is a new initiative involving interim probation supervision of certain defendants charged with CPW3, CPW2 and other violent felony cases called “Swift, Certain and Fair” which will be actively overseen by Judge Moran. This new program was the result of planning by the Monroe County District Attorney’s Office, Monroe County Probation, the Rochester Police Department, R.I.T., and DCJS.  As part of the DCJS GIVE initiative, the grant provides funding for one Probation Officer position and additional GPS monitoring capability.  

The program will accept up to sixteen cases of defendants who are between the ages of sixteen and twenty-four, not predicate felons and are considered to be at-risk, but potentially able to comply with program requirements. Participation in the program will be a disposition that defense counsel can request, and for which a client must be screened.  If a client is accepted to the program all parties will sign a contract, as they do in diversion courts. 

Defendants in this program will be placed on interim probation under the supervision of a unit headed by Dave Fluellen of the Probation Department.  They will have to plead to a felony at the outset and sign a contract that the defense attorney and prosecutor will negotiate.  Defendants in this program will have to wear ankle bracelets for the first six months of the interim probation.  They will be carefully monitored, provided case managers, and receive rewards for compliance and sanctions for noncompliance, based on a graduated scale of sanctions, as they progress through the program.  If a participant successfully completes the program within a year, s/he will be allowed to withdraw his/her initial plea and plead to a reduced charge with a probation sentence.  If the client violates a condition the “Swift, Certain and Fair” component kicks in – the client gets a notice, even if it is late at night, to appear before Judge Moran at 9:00 the next morning.  Attorneys will also be notified and expected to appear.

  

The existence of “Swift, Certain and Fair” will not preclude YO eligible defendants who are not considered as “at risk” or otherwise unable to obtain entry into “Swift, Certain and Fair”  from obtaining YO dispositions with probation as a sentence, or other defendants who may otherwise  be appropriate for a probation sentence from obtaining that disposition.

Miscellaneous:

All of the details have not yet been worked out, and there are still questions about aspects of the program, such as what will happen to a defendant who is on felony probation – where will the new VOP go?  Or what will happen if a person who has a felony charge pending picks up a new gun charge – will the older felony follow the defendant to gun court?  As more information is developed, it will be circulated.

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.

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.

This is the first in a series of several blog posts on statutory presumptions in criminal prosecutions, many of which deal with guns and drugs (presumption that all occupants possess a firearm found in a vehicle [Penal Law § 265.15(3)]; presumption that all occupants of a vehicle knowingly possess controlled substance not concealed on a occupant’s person [Penal Law § 265.25(1)]; presumption of knowing possession by all occupants of controlled substances or marijuana in open view in a room used as a drug factory [Penal Law § 220.25(2)]).  As noted in Handling a Criminal Case in New York (Muldoon, Thomson Reuters, § 1:33 [2015-2016]) “these function as ‘shortcuts’ to allow the prosecution to establish an element of a crime by establishing other facts. 

In future installments I intend to examine presumption stacking, a defendant’s burden to rebut a presumption once invoked, and may also take a separate excursion into common law presumptions: innocence, sanity, competence, regularity, and finality.  But for today, the more basic underlying question: Why do we need or allow these shortcuts?  

We know that to be constitutional, presumptions must be permissive, not mandatory (Sandstrom v Montana, 442 US 510 [1979]).  So why do we have them at all?  In the absence of a presumption, the prosecution can argue that the jury should reach the same conclusion concerning possession or intent as is suggested by the presumption, and the jury could elect to do so.  Consider, for example, the knowing (or not) possession of gun in room or car –  intent and knowledge are virtually always issues in any criminal prosecution and rarely known or knowable with any certainty, and the fiction of our judicial system that they are knowable with consistently repetitive certainty is as true in cases involving presumptions as in any other.  The use of a presumption therefore, gives the prosecution a legislatively-conferred leg up, where none is needed, and the net effect is the watering down of the constitutionally-required burden of proof. 

In Leary v United States, 395 US 6, 33 [1969], the Supreme Court held that “a criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary,’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.”  Presumptions, then, are justified by the claim that the ultimate fact flows from and is likely true where the underlying inferential facts are proven to exist.  But such claims are not based on any empirical evidence, but rather, hunches, guesses, and “experience” (whatever that means) that is little better than resort to old wives tales and war stories.  

In truth, presumptions represent an unnecessary legislative concession in the absence of any direct evidence that tilts the jury in the direction of a finding that the missing facts are true, basing a verdict on that finding, which a jury could make on its own, without the help of a presumption.  I suggest that real reason for presumptions is fear: the fear of not guilty verdicts where the prosecution has not proven the ultimate fact, resulting in too many probably guilty (but not proven to be so beyond a reasonable doubt) defendants going free, a socially unacceptable result.

Importantly, a presumption can act as the necessary lynch pin of the jury’s verdict.  An example is provided by People v Whitfield, 158 AD2d 922 [4th Dept 1990], where the prosecution failed to request that the jury could presume defendant’s knowing possession of stolen property from his recent and exclusive possession of the fruits of a crime.  Because there was no other evidence of knowing possession, the proof was held to be legally insufficient to support defendant’s conviction.  In other words, had the prosecution requested and the court instructed the jury on the presumption, that permissible inference could have formed the only basis establishing the element of knowing possession.

Importantly, presumptions may not be invoked where the underlying facts needed to support them are not present.  Be careful not to fall into the trap of assuming that because presumptions are present in the statute, they are available upon request in every case.  They are not (see People v Zekaj, 191 AD2d 663 [2nd Dept 1993]; People v Wilt, 105 AD2d 1089 [4th Dept 1984]).

Wilt (which is still good law), offers an important lesson.  In that case, the Fourth Department found the statutory presumption that all occupants of a vehicle are presumed to possess a weapon in the vehicle unconstitutional as applied to the defendant, who presented evidence that he was only in the vehicle for 5-6 minutes before it was stopped, never looked in the trunk (where the gun was found), and did not know there was a gun in the trunk.  The Court, reasoning that there was no “rational connection” between the discovery of the gun in the trunk and Wilt’s presumed possession, reversed his conviction and dismissed the indictment.

Along these lines recall that, going all the way back to the landmark presumptions case of Ulster County v Allen, 442 US 140 [1979], the Supreme Court held that resort to a presumption is improper where there is no rational way under the facts of the case for the fact-finder to presume the ultimate fact from the other facts in the case.  

Next time: problems presented by presumption stacking.

This is the first in a series of several blog posts on statutory presumptions in criminal prosecutions, many of which deal with guns and drugs (presumption that all occupants possess a firearm found in a vehicle [Penal Law § 265.15(3)]; presumption that all occupants of a vehicle knowingly possess controlled substance not concealed on a occupant’s person [Penal Law § 265.25(1)]; presumption of knowing possession by all occupants of controlled substances or marijuana in open view in a room used as a drug factory [Penal Law § 220.25(2)]).  As noted in Handling a Criminal Case in New York (Muldoon, Thomson Reuters, § 1:33 [2015-2016]) “these function as ‘shortcuts’ to allow the prosecution to establish an element of a crime by establishing other facts. 

In future installments I intend to examine presumption stacking, a defendant’s burden to rebut a presumption once invoked, and may also take a separate excursion into common law presumptions: innocence, sanity, competence, regularity, and finality.  But for today, the more basic underlying question: Why do we need or allow these shortcuts?  

We know that to be constitutional, presumptions must be permissive, not mandatory (Sandstrom v Montana, 442 US 510 [1979]).  So why do we have them at all?  In the absence of a presumption, the prosecution can argue that the jury should reach the same conclusion concerning possession or intent as is suggested by the presumption, and the jury could elect to do so.  Consider, for example, the knowing (or not) possession of gun in room or car –  intent and knowledge are virtually always issues in any criminal prosecution and rarely known or knowable with any certainty, and the fiction of our judicial system that they are knowable with consistently repetitive certainty is as true in cases involving presumptions as in any other.  The use of a presumption therefore, gives the prosecution a legislatively-conferred leg up, where none is needed, and the net effect is the watering down of the constitutionally-required burden of proof. 

In Leary v United States, 395 US 6, 33 [1969], the Supreme Court held that “a criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary,’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.”  Presumptions, then, are justified by the claim that the ultimate fact flows from and is likely true where the underlying inferential facts are proven to exist.  But such claims are not based on any empirical evidence, but rather, hunches, guesses, and “experience” (whatever that means) that is little better than resort to old wives tales and war stories.  

In truth, presumptions represent an unnecessary legislative concession in the absence of any direct evidence that tilts the jury in the direction of a finding that the missing facts are true, basing a verdict on that finding, which a jury could make on its own, without the help of a presumption.  I suggest that real reason for presumptions is fear: the fear of not guilty verdicts where the prosecution has not proven the ultimate fact, resulting in too many probably guilty (but not proven to be so beyond a reasonable doubt) defendants going free, a socially unacceptable result.

Importantly, a presumption can act as the necessary lynch pin of the jury’s verdict.  An example is provided by People v Whitfield, 158 AD2d 922 [4th Dept 1990], where the prosecution failed to request that the jury could presume defendant’s knowing possession of stolen property from his recent and exclusive possession of the fruits of a crime.  Because there was no other evidence of knowing possession, the proof was held to be legally insufficient to support defendant’s conviction.  In other words, had the prosecution requested and the court instructed the jury on the presumption, that permissible inference could have formed the only basis establishing the element of knowing possession.

Importantly, presumptions may not be invoked where the underlying facts needed to support them are not present.  Be careful not to fall into the trap of assuming that because presumptions are present in the statute, they are available upon request in every case.  They are not (see People v Zekaj, 191 AD2d 663 [2nd Dept 1993]; People v Wilt, 105 AD2d 1089 [4th Dept 1984]).

Wilt (which is still good law), offers an important lesson.  In that case, the Fourth Department found the statutory presumption that all occupants of a vehicle are presumed to possess a weapon in the vehicle unconstitutional as applied to the defendant, who presented evidence that he was only in the vehicle for 5-6 minutes before it was stopped, never looked in the trunk (where the gun was found), and did not know there was a gun in the trunk.  The Court, reasoning that there was no “rational connection” between the discovery of the gun in the trunk and Wilt’s presumed possession, reversed his conviction and dismissed the indictment.

Along these lines recall that, going all the way back to the landmark presumptions case of Ulster County v Allen, 442 US 140 [1979], the Supreme Court held that resort to a presumption is improper where there is no rational way under the facts of the case for the fact-finder to presume the ultimate fact from the other facts in the case.  

Next time: problems presented by presumption stacking.

Last week's post discussed People v Jones (2015 NY Slip Op 09773), in which the Appellate Division, Fourth Department, reversed a conviction in the interest of justice due to numerous acts of prosecutorial misconduct in summation which were egregious, but largely unpreserved by timely objection. That is obviously a great result for Mr. Jones and his appellate attorney (good work, Catherine Josh). And it allows trial counsel to join in celebrating the client's reversal.

But defense counsel who fail to object to prejudicial misconduct in summation risk other results. 

The worst possibility is that the appellate court might decline to exercise its discretionary jurisdiction to reverse in the interest of justice on an issue that might have merited reversal if the error had been preserved for review as a matter of law. 

There is another possibility in which the defendant is granted a new trial and appellate counsel might be happy with the results, but in which trial counsel is not likely to feel too good -- the appellate court might reverse for ineffective assistance of counsel based on trial counsel's failure to timely object to prosecutorial misconduct. 

Thrice in recent years, the Court of Appeals has reversed convictions on findings of ineffective assistance of counsel based, at least in part, on the failure to object to prejudicial prosecutorial misconduct in summation.

As discussed in detail here, in People v Fisher (2012 NY Slip Op 02416 [4/3/12]) the Court of Appeals reversed convictions for various sex offenses and ordered a new trial upon a finding that the defendant's trial attorney rendered ineffective assistance of counsel by failing to object to the prosecutor's summation was egregiously improper and there was no evident strategic basis for counsel's failure to object. The Court wrote that

Even when viewed in the "totality" of the representation provided defendant, defense counsel's failure to object to any, let alone all, of the prosecutor's egregiously improper departures during summation, particularly in the highly charged, potentially outcome determinative context in which they occurred, deprived defendant of the right to effective assistance of counsel (see People v Baldi, 54 NY2d 137, 146-147 [1981]). We see no strategic basis for counsel's failure to object to these highly prejudicial instances of prosecutorial abuse, in critical respects utterly attenuated from the evidence and the applicable principles of law.

Then, in People v Oathout (2013 NY Slip Op 03122 [21 NY3d 127] [5/3/13]), the Court reversed on a finding of ineffective assistance of counsel, in part, based on counsel's failure to object to multiple acts of misconduct in summation

He failed to object to the prosecutor's vouching for Lugo's credibility when the prosecutor told the jury that the police would not keep using her as a confidential informant if she were not credible. He also failed to object when the prosecutor pointed out to the jury that defendant, who did not testify at trial, took notes with his left hand during the trial and continued to theorize how the crime was consistent with its commission by a left-handed person—like defendant. Defense counsel failed to object despite the fact that there was no evidence presented either that defendant was left-handed or that the crime was committed by a left-handed person.

Most recently, in People v Wright (2015 NY Slip Op 05621 [25 NY3d 769] [7/1/15]), the Court, citing Oathout, reversed a conviction on a finding that defense counsel's ineffective assistance of counsel deprived the defendant of a fair trial when counsel defense counsel failed to object, time and again, when the prosecutor repeatedly misrepresented to the jury critical DNA evidence as proof of defendant's guilt by suggesting that the evidence directly linked defendant to the murder although it did not.

Again, the good news is that in all three cases there was ultimately a reversal. But in all three cases the defendant was convicted and lost his appeal at the Appellate Division. Thus, in all three cases the defendant spent years in prison prior to the reversal. All of that and a finding of ineffective assistance of counsel could have been avoided by timely objection to misconduct during summation.

However tempting it is to sit back  and simply exhale after giving a defense summation, neither the defendant nor the defense counsel can afford to have counsel stop working during the prosecutor's summation, which is quite a critical stage of the trial.