Today's Court of Appeals decision (People v Kent #70, 5/8/12) has two very important components.
First - proving a defendant has "cache files" on his computer isn't enough to prove that he knew he had such files saved on his computer.
Second - "merely viewing" child pornography is not possession or procurement.
Cache files are created when a user visits a website. The computer typically stores that page on the computer. That way it doesn't need to be downloaded it the next time. This makes web browsing faster. Caches are typically created of images as well. The CoA in Kent discussed "the evidentiary significance of 'cache files,' or temporary internet files automatically created and stored on a defendant's hard drive, and the defendant's awareness of the presence of such files. We conclude that where the evidence fails to show that defendant had such awareness, the People have not met their burden of demonstrating defendant's knowing procurement or possession of those files."
In other words, if the People cannot prove that your client knew how web browsers work, at least to the extent that they store cache files, then they cannot prove their case. This can be a serious problem - if the defendant knew how to prevent cache files from being generated, he might have prevented prosecution. So in most cases, the DA needs to prove that defendant knew a little, but not a lot. Even more importantly, looking at child pornography isn't enough to warrant prosecution under this section. "We further conclude that merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law."
The facts are these: a professor complained that his computer didn't work. IT people found kiddie porn on the computer. The porn was "cached" (i.e. stored automatically) under a screen name matching the defendant's first name. "There was no evidence that defendant was aware either of the cache function of his computer or that any of these files were stored in the cache." There was also a subfolder with the defendant's initials and "porndef" containing somewhere between 15,000-30,000 images of underage girls in lingerie.
Then there were messages which the Court discussed:
"The JK folder held a file labeled "porndef.pb," which contained a document that included the text of four messages dated between June 1999 and July 2000 and directed to the unidentified recipient "P.B." As the Appellate Division noted, it is unclear whether these messages were ever sent. The messages apparently relate to a potential research project on the regulation of child pornography and include comments such as "sooner or later someone at this college is going to wonder why I keep looking at porno sites." A final message dated July 11, 2001 states:
“Well, this last batch pretty much tears it. While, as somebody's father, I'm pretty appalled by this stuff, I also don't want to get arrested for having it. So let's do this—if this is a legitimate research project, let's write it up and tell the deans (and preferably also the cops) what we're doing and why. Otherwise, let's drop it in the most pronto possible fashion. “I don't even think I can mail the disk to you, or anyone else, without committing a separate crime. So I'll probably just go ahead and wipe them. You have the URL's if you want to pursue it. “See you sooner or later, no doubt. Kent.”"
A graphic video of children engaging in sex acts would also prove to be something of a problem.
The Appellate Division had upheld the conviction, although it was concerned with whether the "cache" was enough to prove possession. The Court of Appeals noted that the"[AD] adopted the view, however, that 'a Web page stored in the cache is evidence of past procurement of the images on that page.'" In other words, the cache wasn't so much possession in and of itself, it was simply proof that the defendant had accessed the images, and thus 'possessed' them earlier. The key holding:
"Defendant argues that merely "accessing and displaying" Web images of child pornography does not constitute procurement for purposes of Penal Law § 263.15. Defendant further contends that his possession convictions are invalid because Penal Law §263.16 criminalizes the possession of tangible items only and that, absent proof that defendant was aware of his computer's cache function, he could not have knowingly possessed any item stored in the cache. For the reasons that follow, we agree with defendant's first proposition. We also agree that where a promotion or possession conviction is premised on cached images or files as contraband, the People must prove, at a minimum, that the defendant was aware of the presence of those items in the cache. We hold, however, that regardless of a defendant's awareness of his computer's cache function, the files stored in the cache may constitute evidence of images that were previously viewed; to possess those images, however, the defendant's conduct must exceed mere viewing to encompass more affirmative acts of control such as printing, downloading or saving."
The court held: "that such images were simply viewed, and that defendant had the theoretical capacity to exercise control over them during the time they were resident on the screen, is not enough to constitute their procurement or possession." The court reviewed relevant Federal statutes. Of course, the defendant didn't benefit much from the decision:
"We agree with the Appellate Division, however, that defendant was properly convicted of promotion and possession of the "Arina" video, and possession of 132 images of child pornography recovered from the unallocated space on his computer. Investigator Friedman's testimony established that at some point defendant downloaded and/or saved the video and the images, thereby committing them to the allocated space of his computer, prior to deleting them. Thus, viewing the evidence in the light most favorable to the People, a rational fact finder could conclude that defendant acquired the video and exercised control over it and the images (see People v Contes, 60 NY2d 620, 621 [1983]). That defendant did so knowingly was conclusively established by, among other things, copious evidence of his persistent pattern of browsing for child pornography sites; his meticulous cataloguing of thumbnail images of young, provocatively dressed girls; his deletion of illegal images and retention of legal ones; and defendant's messages to "P.B." discussing the pornographic content of the images and sites defendant perused."
Judges Graffeo and Pigott dissented from the core holding. Judge Smith addressed her position in a concurrence:
"Under Judge Graffeo's reading, someone who does no more than click on a link for the purpose of looking at a pornographic picture for free -- someone who has never interacted with a child victim, has never copied, downloaded or saved a pornographic picture of a child, and has never put a penny in the pocket of a child pornographer -- is subject to up to seven years in prison for a first offense ( see Penal Law § 70.00 [2] [d]). This is surely a stringent punishment for someone whom many would think more pathetic than evil. Nor can we safely assume that bringing as many consumers as possible within the reach of the law is the most effective way to lessen or eliminate the trade: A policy of draconian enforcement directed at the most minor and peripheral of users is perhaps no more likely to eliminate child pornography than a similar policy would be to eliminate illegal drugs."
Tuesday, May 8, 2012
Today's Court of Appeals decision (People v Kent #70, 5/8/12) has two very important components.
First - proving a defendant has "cache files" on his computer isn't enough to prove that he knew he had such files saved on his computer.
Second - "merely viewing" child pornography is not possession or procurement.
Cache files are created when a user visits a website. The computer typically stores that page on the computer. That way it doesn't need to be downloaded it the next time. This makes web browsing faster. Caches are typically created of images as well. The CoA in Kent discussed "the evidentiary significance of 'cache files,' or temporary internet files automatically created and stored on a defendant's hard drive, and the defendant's awareness of the presence of such files. We conclude that where the evidence fails to show that defendant had such awareness, the People have not met their burden of demonstrating defendant's knowing procurement or possession of those files."
In other words, if the People cannot prove that your client knew how web browsers work, at least to the extent that they store cache files, then they cannot prove their case. This can be a serious problem - if the defendant knew how to prevent cache files from being generated, he might have prevented prosecution. So in most cases, the DA needs to prove that defendant knew a little, but not a lot. Even more importantly, looking at child pornography isn't enough to warrant prosecution under this section. "We further conclude that merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law."
The facts are these: a professor complained that his computer didn't work. IT people found kiddie porn on the computer. The porn was "cached" (i.e. stored automatically) under a screen name matching the defendant's first name. "There was no evidence that defendant was aware either of the cache function of his computer or that any of these files were stored in the cache." There was also a subfolder with the defendant's initials and "porndef" containing somewhere between 15,000-30,000 images of underage girls in lingerie.
Then there were messages which the Court discussed:
"The JK folder held a file labeled "porndef.pb," which contained a document that included the text of four messages dated between June 1999 and July 2000 and directed to the unidentified recipient "P.B." As the Appellate Division noted, it is unclear whether these messages were ever sent. The messages apparently relate to a potential research project on the regulation of child pornography and include comments such as "sooner or later someone at this college is going to wonder why I keep looking at porno sites." A final message dated July 11, 2001 states:
“Well, this last batch pretty much tears it. While, as somebody's father, I'm pretty appalled by this stuff, I also don't want to get arrested for having it. So let's do this—if this is a legitimate research project, let's write it up and tell the deans (and preferably also the cops) what we're doing and why. Otherwise, let's drop it in the most pronto possible fashion. “I don't even think I can mail the disk to you, or anyone else, without committing a separate crime. So I'll probably just go ahead and wipe them. You have the URL's if you want to pursue it. “See you sooner or later, no doubt. Kent.”"
A graphic video of children engaging in sex acts would also prove to be something of a problem.
The Appellate Division had upheld the conviction, although it was concerned with whether the "cache" was enough to prove possession. The Court of Appeals noted that the"[AD] adopted the view, however, that 'a Web page stored in the cache is evidence of past procurement of the images on that page.'" In other words, the cache wasn't so much possession in and of itself, it was simply proof that the defendant had accessed the images, and thus 'possessed' them earlier. The key holding:
"Defendant argues that merely "accessing and displaying" Web images of child pornography does not constitute procurement for purposes of Penal Law § 263.15. Defendant further contends that his possession convictions are invalid because Penal Law §263.16 criminalizes the possession of tangible items only and that, absent proof that defendant was aware of his computer's cache function, he could not have knowingly possessed any item stored in the cache. For the reasons that follow, we agree with defendant's first proposition. We also agree that where a promotion or possession conviction is premised on cached images or files as contraband, the People must prove, at a minimum, that the defendant was aware of the presence of those items in the cache. We hold, however, that regardless of a defendant's awareness of his computer's cache function, the files stored in the cache may constitute evidence of images that were previously viewed; to possess those images, however, the defendant's conduct must exceed mere viewing to encompass more affirmative acts of control such as printing, downloading or saving."
The court held: "that such images were simply viewed, and that defendant had the theoretical capacity to exercise control over them during the time they were resident on the screen, is not enough to constitute their procurement or possession." The court reviewed relevant Federal statutes. Of course, the defendant didn't benefit much from the decision:
"We agree with the Appellate Division, however, that defendant was properly convicted of promotion and possession of the "Arina" video, and possession of 132 images of child pornography recovered from the unallocated space on his computer. Investigator Friedman's testimony established that at some point defendant downloaded and/or saved the video and the images, thereby committing them to the allocated space of his computer, prior to deleting them. Thus, viewing the evidence in the light most favorable to the People, a rational fact finder could conclude that defendant acquired the video and exercised control over it and the images (see People v Contes, 60 NY2d 620, 621 [1983]). That defendant did so knowingly was conclusively established by, among other things, copious evidence of his persistent pattern of browsing for child pornography sites; his meticulous cataloguing of thumbnail images of young, provocatively dressed girls; his deletion of illegal images and retention of legal ones; and defendant's messages to "P.B." discussing the pornographic content of the images and sites defendant perused."
Judges Graffeo and Pigott dissented from the core holding. Judge Smith addressed her position in a concurrence:
"Under Judge Graffeo's reading, someone who does no more than click on a link for the purpose of looking at a pornographic picture for free -- someone who has never interacted with a child victim, has never copied, downloaded or saved a pornographic picture of a child, and has never put a penny in the pocket of a child pornographer -- is subject to up to seven years in prison for a first offense ( see Penal Law § 70.00 [2] [d]). This is surely a stringent punishment for someone whom many would think more pathetic than evil. Nor can we safely assume that bringing as many consumers as possible within the reach of the law is the most effective way to lessen or eliminate the trade: A policy of draconian enforcement directed at the most minor and peripheral of users is perhaps no more likely to eliminate child pornography than a similar policy would be to eliminate illegal drugs."
First - proving a defendant has "cache files" on his computer isn't enough to prove that he knew he had such files saved on his computer.
Second - "merely viewing" child pornography is not possession or procurement.
Cache files are created when a user visits a website. The computer typically stores that page on the computer. That way it doesn't need to be downloaded it the next time. This makes web browsing faster. Caches are typically created of images as well. The CoA in Kent discussed "the evidentiary significance of 'cache files,' or temporary internet files automatically created and stored on a defendant's hard drive, and the defendant's awareness of the presence of such files. We conclude that where the evidence fails to show that defendant had such awareness, the People have not met their burden of demonstrating defendant's knowing procurement or possession of those files."
In other words, if the People cannot prove that your client knew how web browsers work, at least to the extent that they store cache files, then they cannot prove their case. This can be a serious problem - if the defendant knew how to prevent cache files from being generated, he might have prevented prosecution. So in most cases, the DA needs to prove that defendant knew a little, but not a lot. Even more importantly, looking at child pornography isn't enough to warrant prosecution under this section. "We further conclude that merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law."
The facts are these: a professor complained that his computer didn't work. IT people found kiddie porn on the computer. The porn was "cached" (i.e. stored automatically) under a screen name matching the defendant's first name. "There was no evidence that defendant was aware either of the cache function of his computer or that any of these files were stored in the cache." There was also a subfolder with the defendant's initials and "porndef" containing somewhere between 15,000-30,000 images of underage girls in lingerie.
Then there were messages which the Court discussed:
"The JK folder held a file labeled "porndef.pb," which contained a document that included the text of four messages dated between June 1999 and July 2000 and directed to the unidentified recipient "P.B." As the Appellate Division noted, it is unclear whether these messages were ever sent. The messages apparently relate to a potential research project on the regulation of child pornography and include comments such as "sooner or later someone at this college is going to wonder why I keep looking at porno sites." A final message dated July 11, 2001 states:
“Well, this last batch pretty much tears it. While, as somebody's father, I'm pretty appalled by this stuff, I also don't want to get arrested for having it. So let's do this—if this is a legitimate research project, let's write it up and tell the deans (and preferably also the cops) what we're doing and why. Otherwise, let's drop it in the most pronto possible fashion. “I don't even think I can mail the disk to you, or anyone else, without committing a separate crime. So I'll probably just go ahead and wipe them. You have the URL's if you want to pursue it. “See you sooner or later, no doubt. Kent.”"
A graphic video of children engaging in sex acts would also prove to be something of a problem.
The Appellate Division had upheld the conviction, although it was concerned with whether the "cache" was enough to prove possession. The Court of Appeals noted that the"[AD] adopted the view, however, that 'a Web page stored in the cache is evidence of past procurement of the images on that page.'" In other words, the cache wasn't so much possession in and of itself, it was simply proof that the defendant had accessed the images, and thus 'possessed' them earlier. The key holding:
"Defendant argues that merely "accessing and displaying" Web images of child pornography does not constitute procurement for purposes of Penal Law § 263.15. Defendant further contends that his possession convictions are invalid because Penal Law §263.16 criminalizes the possession of tangible items only and that, absent proof that defendant was aware of his computer's cache function, he could not have knowingly possessed any item stored in the cache. For the reasons that follow, we agree with defendant's first proposition. We also agree that where a promotion or possession conviction is premised on cached images or files as contraband, the People must prove, at a minimum, that the defendant was aware of the presence of those items in the cache. We hold, however, that regardless of a defendant's awareness of his computer's cache function, the files stored in the cache may constitute evidence of images that were previously viewed; to possess those images, however, the defendant's conduct must exceed mere viewing to encompass more affirmative acts of control such as printing, downloading or saving."
The court held: "that such images were simply viewed, and that defendant had the theoretical capacity to exercise control over them during the time they were resident on the screen, is not enough to constitute their procurement or possession." The court reviewed relevant Federal statutes. Of course, the defendant didn't benefit much from the decision:
"We agree with the Appellate Division, however, that defendant was properly convicted of promotion and possession of the "Arina" video, and possession of 132 images of child pornography recovered from the unallocated space on his computer. Investigator Friedman's testimony established that at some point defendant downloaded and/or saved the video and the images, thereby committing them to the allocated space of his computer, prior to deleting them. Thus, viewing the evidence in the light most favorable to the People, a rational fact finder could conclude that defendant acquired the video and exercised control over it and the images (see People v Contes, 60 NY2d 620, 621 [1983]). That defendant did so knowingly was conclusively established by, among other things, copious evidence of his persistent pattern of browsing for child pornography sites; his meticulous cataloguing of thumbnail images of young, provocatively dressed girls; his deletion of illegal images and retention of legal ones; and defendant's messages to "P.B." discussing the pornographic content of the images and sites defendant perused."
Judges Graffeo and Pigott dissented from the core holding. Judge Smith addressed her position in a concurrence:
"Under Judge Graffeo's reading, someone who does no more than click on a link for the purpose of looking at a pornographic picture for free -- someone who has never interacted with a child victim, has never copied, downloaded or saved a pornographic picture of a child, and has never put a penny in the pocket of a child pornographer -- is subject to up to seven years in prison for a first offense ( see Penal Law § 70.00 [2] [d]). This is surely a stringent punishment for someone whom many would think more pathetic than evil. Nor can we safely assume that bringing as many consumers as possible within the reach of the law is the most effective way to lessen or eliminate the trade: A policy of draconian enforcement directed at the most minor and peripheral of users is perhaps no more likely to eliminate child pornography than a similar policy would be to eliminate illegal drugs."
Monday, May 7, 2012
The arresting officer's refusal report, admitted in evidence at the hearing, indicates that upon stopping petitioner because he was speeding, following too closely, and changing lanes without signaling, the officer observed that petitioner was unsteady on his feet, had bloodshot eyes, slurred speech and "a strong odor of alcoholic beverage on [his] breath." However, the field sobriety test, administered approximately 25 minutes later, a video of which was admitted in evidence at the hearing, establishes that petitioner was not impaired or intoxicated. Specifically, the video demonstrates that over the course of four minutes, petitioner was subjected to standardized field sobriety testing and at all times clearly communicated with thearresting officer, never slurred his speech, never demonstrated an inability to comprehend what he was being asked, and followed all of the officer's commands. Petitioner successfully completed the three tests he was asked to perform; thus never exhibiting any signs of impairment or intoxication. Certainly, the contents of the arresting officer's refusal report, standing alone, establish reasonable grounds for the arrest under the Vehicle and Traffic Law (Matter of Nolan v Adduci, 166 AD2d 277, 278 [1990] [police officer's testimony that operator of motor vehicle was exceeding the speed limit, driving erratically, and his breath smelled of alcohol constituted reasonable grounds to arrest him for driving under the influence of alcohol], appeal dismissed 77 NY2d 988 [1991]). However, where, as here, a field sobriety test conducted less than 30 minutes after the officer's initial observations, convincingly establishes that petitioner was not impaired or intoxicated, respondent's determination that there existed reasonable grounds to believe that petitioner was intoxicated has no rational basis and is not inferable from the record (Matter of American Tel. & Tel. Co. v State Tax Commn., 61 NY2d 393, 400 [1984] ["If the agency's determination is not supported by substantial evidence or it constitutes a clearly erroneous interpretation of the law or the facts, it will be annulled"]). A field sobriety test is "accepted within the scientific community as a reliable indicator of intoxication" (People v Hammond, 35 AD3d 905, 907 [2006], lv denied 8 NY3d 946 [2007]). Here, the field sobriety test, conducted shortly after petitioner was operating his motor vehicle, which failed to establish that petitioner was intoxicated or otherwise impaired, leads us to conclude that respondent's determination is not supported by substantial evidence. ,,,,, it is simply unreasonable and uninferable that petitioner was intoxicated or impaired while operating his motor vehicle and yet, 25 minutes later he successfully and without any difficulty passed a field sobriety test. Matter of Whelan v Adduci (133 AD2d 273 (1987], lv denied 70 NY2d 616 [1988]) is inapposite. Matter of Whelan simply stands for the proposition that a police officer's observation of blood shot eyes and alcohol on an operator's breath constitute reasonable grounds to believe that the operator is intoxicated or impaired (id. at 273); a proposition with which we agree and is aptly supported by the case law (see Matter of Nolan, 166 AD2d at 278). However, as is the case here, the court in Matter of Whelan was never confronted with evidence that shortly after the officer's observations of intoxication or impairment, the operator successfully completed a field sobriety test.
The arresting officer's refusal report, admitted in evidence at the hearing, indicates that upon stopping petitioner because he was speeding, following too closely, and changing lanes without signaling, the officer observed that petitioner was unsteady on his feet, had bloodshot eyes, slurred speech and "a strong odor of alcoholic beverage on [his] breath." However, the field sobriety test, administered approximately 25 minutes later, a video of which was admitted in evidence at the hearing, establishes that petitioner was not impaired or intoxicated. Specifically, the video demonstrates that over the course of four minutes, petitioner was subjected to standardized field sobriety testing and at all times clearly communicated with thearresting officer, never slurred his speech, never demonstrated an inability to comprehend what he was being asked, and followed all of the officer's commands. Petitioner successfully completed the three tests he was asked to perform; thus never exhibiting any signs of impairment or intoxication. Certainly, the contents of the arresting officer's refusal report, standing alone, establish reasonable grounds for the arrest under the Vehicle and Traffic Law (Matter of Nolan v Adduci, 166 AD2d 277, 278 [1990] [police officer's testimony that operator of motor vehicle was exceeding the speed limit, driving erratically, and his breath smelled of alcohol constituted reasonable grounds to arrest him for driving under the influence of alcohol], appeal dismissed 77 NY2d 988 [1991]). However, where, as here, a field sobriety test conducted less than 30 minutes after the officer's initial observations, convincingly establishes that petitioner was not impaired or intoxicated, respondent's determination that there existed reasonable grounds to believe that petitioner was intoxicated has no rational basis and is not inferable from the record (Matter of American Tel. & Tel. Co. v State Tax Commn., 61 NY2d 393, 400 [1984] ["If the agency's determination is not supported by substantial evidence or it constitutes a clearly erroneous interpretation of the law or the facts, it will be annulled"]). A field sobriety test is "accepted within the scientific community as a reliable indicator of intoxication" (People v Hammond, 35 AD3d 905, 907 [2006], lv denied 8 NY3d 946 [2007]). Here, the field sobriety test, conducted shortly after petitioner was operating his motor vehicle, which failed to establish that petitioner was intoxicated or otherwise impaired, leads us to conclude that respondent's determination is not supported by substantial evidence. ,,,,, it is simply unreasonable and uninferable that petitioner was intoxicated or impaired while operating his motor vehicle and yet, 25 minutes later he successfully and without any difficulty passed a field sobriety test. Matter of Whelan v Adduci (133 AD2d 273 (1987], lv denied 70 NY2d 616 [1988]) is inapposite. Matter of Whelan simply stands for the proposition that a police officer's observation of blood shot eyes and alcohol on an operator's breath constitute reasonable grounds to believe that the operator is intoxicated or impaired (id. at 273); a proposition with which we agree and is aptly supported by the case law (see Matter of Nolan, 166 AD2d at 278). However, as is the case here, the court in Matter of Whelan was never confronted with evidence that shortly after the officer's observations of intoxication or impairment, the operator successfully completed a field sobriety test.
Thursday, May 3, 2012
The Court of Appeals today, in People v Liden (#67) determined that an Article 78 proceeding is not the only valid way to challenge a determination by the Board of Examiners of Sex Offenders that he must register as a sex offender.
Ordinarily such a determination is a simple matter of reading the statute. If the defendant is convicted of certain listed crimes, he must register as a sex offender. For out of state convictions, however, a determination must be made. The Board, and Appellate Divisions, had taken the position that this was an administrative determination, which can only be challenged via article 78. My own view was that this was an obvious due process violation, as the defendant's status as a sex offender was determined at a proceeding which denied him notice and an opportunity to be heard (much as the original SORA classification process struck down in People v David W, 95 NY2d 130 [2000] [holding that the availability of an Article 78 was insufficient to satisfy the requirements of due process as to the level of classification]). If an article 78 is insufficient to secure the defendant's right to due process regarding what kind of sex offender he is, it seems to me that it is also insufficient to secure the defendant's right to due process regarding whether he is a sex offender at all.
The Court of Appeals today determined that permitting the defendant to challenge - during the SORA classification hearing - the Board's decision that he was required to register was simply a good policy. It held that "A determination by the Board of Examiners of Sex Offenders that a person who committed an offense in another state must register in New York is reviewable in a proceeding to determine the offender's risk level."
It helped that all of the parties agreed that the defendant should not have been required to register, and that he was classified a level three, the highest classification.
Ordinarily such a determination is a simple matter of reading the statute. If the defendant is convicted of certain listed crimes, he must register as a sex offender. For out of state convictions, however, a determination must be made. The Board, and Appellate Divisions, had taken the position that this was an administrative determination, which can only be challenged via article 78. My own view was that this was an obvious due process violation, as the defendant's status as a sex offender was determined at a proceeding which denied him notice and an opportunity to be heard (much as the original SORA classification process struck down in People v David W, 95 NY2d 130 [2000] [holding that the availability of an Article 78 was insufficient to satisfy the requirements of due process as to the level of classification]). If an article 78 is insufficient to secure the defendant's right to due process regarding what kind of sex offender he is, it seems to me that it is also insufficient to secure the defendant's right to due process regarding whether he is a sex offender at all.
It helped that all of the parties agreed that the defendant should not have been required to register, and that he was classified a level three, the highest classification.
The Court of Appeals today, in People v Liden (#67) determined that an Article 78 proceeding is not the only valid way to challenge a determination by the Board of Examiners of Sex Offenders that he must register as a sex offender.
Ordinarily such a determination is a simple matter of reading the statute. If the defendant is convicted of certain listed crimes, he must register as a sex offender. For out of state convictions, however, a determination must be made. The Board, and Appellate Divisions, had taken the position that this was an administrative determination, which can only be challenged via article 78. My own view was that this was an obvious due process violation, as the defendant's status as a sex offender was determined at a proceeding which denied him notice and an opportunity to be heard (much as the original SORA classification process struck down in People v David W, 95 NY2d 130 [2000] [holding that the availability of an Article 78 was insufficient to satisfy the requirements of due process as to the level of classification]). If an article 78 is insufficient to secure the defendant's right to due process regarding what kind of sex offender he is, it seems to me that it is also insufficient to secure the defendant's right to due process regarding whether he is a sex offender at all.
The Court of Appeals today determined that permitting the defendant to challenge - during the SORA classification hearing - the Board's decision that he was required to register was simply a good policy. It held that "A
determination by the Board of Examiners of Sex Offenders that a person who
committed an offense in another state must register in New York is reviewable
in a proceeding to determine the offender's risk level."
It helped that all of the parties agreed that the defendant should not have been required to register, and that he was classified a level three, the highest classification.
Ordinarily such a determination is a simple matter of reading the statute. If the defendant is convicted of certain listed crimes, he must register as a sex offender. For out of state convictions, however, a determination must be made. The Board, and Appellate Divisions, had taken the position that this was an administrative determination, which can only be challenged via article 78. My own view was that this was an obvious due process violation, as the defendant's status as a sex offender was determined at a proceeding which denied him notice and an opportunity to be heard (much as the original SORA classification process struck down in People v David W, 95 NY2d 130 [2000] [holding that the availability of an Article 78 was insufficient to satisfy the requirements of due process as to the level of classification]). If an article 78 is insufficient to secure the defendant's right to due process regarding what kind of sex offender he is, it seems to me that it is also insufficient to secure the defendant's right to due process regarding whether he is a sex offender at all.
It helped that all of the parties agreed that the defendant should not have been required to register, and that he was classified a level three, the highest classification.
Tuesday, April 17, 2012
How would you like to live in a world where all testimony helpful to you was believed completely, all testimony harmful to you was discredited, and you were allowed to draw conclusions from the evidence favorable to you so long as there was a valid line of reasoning and permissible inferences which could lead a reasonable juror to the conclusion you were proposing? That world is called the "Charge Conference".
When the defense requests a lesser included offense, or a defense, the evidence must be viewed in the light most favorable to the defendant (see People v March, 89 AD3d 1496 [4th Dept 2011]; People v Zona, 60 AD2d 1279 [4th Dept 2009]; People v McManus, 67 NY2d 541, 549 [1986] ["The court must view the record in a light most favorable to the accused"]). We know what this means when the evidence is viewed in the light most favorable to the prosecution during a TOD motion - the court must assume that everything which helps the prosecution was believed by the jury, and everything which hurt their case was not believed.
There is a good reason for this: the jury is permitted to believe whatever they like, and disbelieve whatever they like. So for a court to take the case away from the jury, it must be convinced that even if the jury did everything they are permitted to do, they still could not reach the necessary conclusions. If the only testimony on value is $900, and the statute requires $1000, there is no testimony the jury can accept or reject which gets them to $1000. On the other hand, if someone testifies to $1001, no matter how incredible that person was, no matter how much contrary evidence there is, the proof is legally sufficient on the issue of value being over $1000.
The same test is used on lessers. If anything the jury could believe - or disbelieve - would permit them to reach the conclusion you propose, then the court must assume the jury reaches that conclusion. In fact, it is easier for the defense, because the jury need only find a reasonable doubt, not proof beyond a reasonable doubt. Disbelieving the defendant's testimony is not proof beyond a reasonable doubt (it's often treated as such, but that's a separate argument). However, disbelieving a witness is the very definition of reasonable doubt. What part of the complainant's testimony is so absolutely certain that it cannot possibly be doubted? Who invented the all-or-nothing rule, if you accept part of the complainant's testimony (to get the lesser) you must accept all of it (which proves the greater)? Where is the authority for that?
The rule for prosecutors is to ask whether any “valid line of reasoning and permissible inferences” could lead a reasonable juror to the conclusion that the defendant has been proven guilty beyond a reasonable doubt (People v Mateo, 3 NY3d 383, 409 [2004]). That is the light most favorable to the prosecution, and there is no case saying or even implying that the light most favorable to the defense operates under a different, lesser, rule. A lesser included offense must be submitted to the jury under CPL 300.50 if 1) it is requested, and 2) “there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater”. Do not let the “in its discretion” phrase in CPL 300.50(1) fool you. CPL 300.50(2) requires that, if the lesser is requested, the court must submit that lesser. The discretionary language deals with unrequested lessers.
The judge’s responsibility is to view the evidence in the light most favorable to the defendant, then decide whether there is such a reasonable view of the evidence. That is, to determine whether there is a “valid line of reasoning and permissible inferences” that could lead a reasonable juror to the conclusion urged by the defense. It’s the same test as a TOD motion. “When determining whether to give a charge on a claimed defense, the trial court must view the evidence in the light most favorable to the defendant. Upon defendant's request, the court must instruct the jury on the defense if it is sufficiently supported by the evidence; failure to do so may constitute reversible error. Also, it is basic that a ‘jury may accept portions of the defense and prosecution evidence or either of them’. Therefore, inconsistency in claimed defenses or even between a defendant's testimony and a defense ‘should not deprive defendant of the requested charge’ if the charge would otherwise be warranted by the evidence” (People v Butts, 72 NY2d 746, 750 [1988] [internal citations omitted]). The "jury is free to accept or reject part or all of the defense or prosecution's evidence” (People v Henderson, 41 NY2d 233, 236 [1976] [internal citation omitted]).
The way to approach this, it seems to me, is to ask what would happen if the lesser was charged, and the defendant was convicted of that lesser. Would the proof of that charge be legally insufficient? If not, then there is a reasonable view of the evidence that the defendant committed the lesser.
Step two is to ask whether that verdict - acquitting the defendant of the greater but convicting him of the lesser - would be repugnant? If not, then there is also a reasonable view of the evidence that the defendant was not guilty of the greater, though guilty of the lesser. Repugnancy is a pretty tough test to fail, "When there is a claim that repugnant jury verdicts have been rendered in response to a multiple-count indictment, a verdict as to a particular count shall be set aside only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury. Review of the entire record in an attempt to divine the jury's collective mental process of weighing the evidence is inappropriate." (People v Tucker, 55 NY2d 1 [1981]). If it would not be repugnant, then definitionally there is a reasonable view of the evidence that the defendant committed the lesser but did not commit the greater.
When considering a lesser, put yourself in the shoes of an obstinate juror. You can accept half of what someone says and reject the other half. You can accept half of every sentence out of the mouth of every witness and reject the other half. You can accept odd numbered exhibits and reject even numbered ones (though not for that reason). If there is any “valid line of reasoning and permissible inferences” which could lead an obstinate (but not irrational) juror to the conclusion that your client committed the lesser but not the greater, you’re entitled to it. Jurors are permitted to believe people we all know are lying and to disbelieve people we all know are truthful. They can reject documentation, even experts, without ever explaining why.
Their role as sole judges of fact means nothing if there is no charge permitting jurors to convert those findings into a verdict.
It doesn’t matter what your theory is. It doesn’t matter that you offered proof contradicting everything necessary to a conviction of the lesser. It doesn’t matter that you would sound like an idiot arguing the lesser given everything else you’ve based your defense on. It doesn’t matter that the jury would have to thread a needle to accept this and reject that to reach your conclusion. Jurors are permitted to do that. The court must never judge the quality of the evidence. The court must never judge the competing proof. The analysis of lessers is conducted the same way as it is for sufficiency.
What part of the government's proof is absolute and irrefutable? Which witness was it who must be believed 100% if believed at all?
When the defense requests a lesser included offense, or a defense, the evidence must be viewed in the light most favorable to the defendant (see People v March, 89 AD3d 1496 [4th Dept 2011]; People v Zona, 60 AD2d 1279 [4th Dept 2009]; People v McManus, 67 NY2d 541, 549 [1986] ["The court must view the record in a light most favorable to the accused"]). We know what this means when the evidence is viewed in the light most favorable to the prosecution during a TOD motion - the court must assume that everything which helps the prosecution was believed by the jury, and everything which hurt their case was not believed.
There is a good reason for this: the jury is permitted to believe whatever they like, and disbelieve whatever they like. So for a court to take the case away from the jury, it must be convinced that even if the jury did everything they are permitted to do, they still could not reach the necessary conclusions. If the only testimony on value is $900, and the statute requires $1000, there is no testimony the jury can accept or reject which gets them to $1000. On the other hand, if someone testifies to $1001, no matter how incredible that person was, no matter how much contrary evidence there is, the proof is legally sufficient on the issue of value being over $1000.
The same test is used on lessers. If anything the jury could believe - or disbelieve - would permit them to reach the conclusion you propose, then the court must assume the jury reaches that conclusion. In fact, it is easier for the defense, because the jury need only find a reasonable doubt, not proof beyond a reasonable doubt. Disbelieving the defendant's testimony is not proof beyond a reasonable doubt (it's often treated as such, but that's a separate argument). However, disbelieving a witness is the very definition of reasonable doubt. What part of the complainant's testimony is so absolutely certain that it cannot possibly be doubted? Who invented the all-or-nothing rule, if you accept part of the complainant's testimony (to get the lesser) you must accept all of it (which proves the greater)? Where is the authority for that?
The rule for prosecutors is to ask whether any “valid line of reasoning and permissible inferences” could lead a reasonable juror to the conclusion that the defendant has been proven guilty beyond a reasonable doubt (People v Mateo, 3 NY3d 383, 409 [2004]). That is the light most favorable to the prosecution, and there is no case saying or even implying that the light most favorable to the defense operates under a different, lesser, rule. A lesser included offense must be submitted to the jury under CPL 300.50 if 1) it is requested, and 2) “there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater”. Do not let the “in its discretion” phrase in CPL 300.50(1) fool you. CPL 300.50(2) requires that, if the lesser is requested, the court must submit that lesser. The discretionary language deals with unrequested lessers.
The judge’s responsibility is to view the evidence in the light most favorable to the defendant, then decide whether there is such a reasonable view of the evidence. That is, to determine whether there is a “valid line of reasoning and permissible inferences” that could lead a reasonable juror to the conclusion urged by the defense. It’s the same test as a TOD motion. “When determining whether to give a charge on a claimed defense, the trial court must view the evidence in the light most favorable to the defendant. Upon defendant's request, the court must instruct the jury on the defense if it is sufficiently supported by the evidence; failure to do so may constitute reversible error. Also, it is basic that a ‘jury may accept portions of the defense and prosecution evidence or either of them’. Therefore, inconsistency in claimed defenses or even between a defendant's testimony and a defense ‘should not deprive defendant of the requested charge’ if the charge would otherwise be warranted by the evidence” (People v Butts, 72 NY2d 746, 750 [1988] [internal citations omitted]). The "jury is free to accept or reject part or all of the defense or prosecution's evidence” (People v Henderson, 41 NY2d 233, 236 [1976] [internal citation omitted]).
The way to approach this, it seems to me, is to ask what would happen if the lesser was charged, and the defendant was convicted of that lesser. Would the proof of that charge be legally insufficient? If not, then there is a reasonable view of the evidence that the defendant committed the lesser.
Step two is to ask whether that verdict - acquitting the defendant of the greater but convicting him of the lesser - would be repugnant? If not, then there is also a reasonable view of the evidence that the defendant was not guilty of the greater, though guilty of the lesser. Repugnancy is a pretty tough test to fail, "When there is a claim that repugnant jury verdicts have been rendered in response to a multiple-count indictment, a verdict as to a particular count shall be set aside only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury. Review of the entire record in an attempt to divine the jury's collective mental process of weighing the evidence is inappropriate." (People v Tucker, 55 NY2d 1 [1981]). If it would not be repugnant, then definitionally there is a reasonable view of the evidence that the defendant committed the lesser but did not commit the greater.
When considering a lesser, put yourself in the shoes of an obstinate juror. You can accept half of what someone says and reject the other half. You can accept half of every sentence out of the mouth of every witness and reject the other half. You can accept odd numbered exhibits and reject even numbered ones (though not for that reason). If there is any “valid line of reasoning and permissible inferences” which could lead an obstinate (but not irrational) juror to the conclusion that your client committed the lesser but not the greater, you’re entitled to it. Jurors are permitted to believe people we all know are lying and to disbelieve people we all know are truthful. They can reject documentation, even experts, without ever explaining why.
Their role as sole judges of fact means nothing if there is no charge permitting jurors to convert those findings into a verdict.
It doesn’t matter what your theory is. It doesn’t matter that you offered proof contradicting everything necessary to a conviction of the lesser. It doesn’t matter that you would sound like an idiot arguing the lesser given everything else you’ve based your defense on. It doesn’t matter that the jury would have to thread a needle to accept this and reject that to reach your conclusion. Jurors are permitted to do that. The court must never judge the quality of the evidence. The court must never judge the competing proof. The analysis of lessers is conducted the same way as it is for sufficiency.
What part of the government's proof is absolute and irrefutable? Which witness was it who must be believed 100% if believed at all?
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