Sometimes an appellate decision rejecting the arguments raised on appeal provides a blueprint as to how similar claims can be raised in a manner that may be more likely to succeed. One such decision is that of the Court of Appeals in People v Johnson (_ NY3d _ , 2016 NY Slip Op 02552 [4/5/16]), in which the Court rejected a defendant’s claim that the People’s use at his criminal trial of excerpts from certain recorded telephone calls defendant made to family and friends during his detention at Rikers Island Correctional Facility violated his right to counsel and were used without proper consent. The calls were recorded and made available to the prosecution by New York City’s Department of Correction in accordance with the Department’s policy and practice of monitoring inmates’ telephone calls, and releasing those recordings, upon request, to the City’s District Attorneys’ Offices. The Department provides notices, including a notice at the start of telephone conversations that inmate telephone conversations are subject to electronic recording and/or monitoring in accordance with Departmental policy and that an inmate’s use of institutional telephones constitutes consent to this recording and/or monitoring. There is no notice that the recordings can or will be provided to the District Attorney or used in court proceedings.
Defendant urged that the Department acted as an agent of the State when it turned the recordings over to the District Attorney because detainees have limited access to outsiders, including their lawyers. Consequently, it was urged that detainees, left without options available to those able to make bail, out of necessity, make statements during telephone conversations that are detrimental to the defense. The Court rejected this argument, holding that “[h]owever accurate this description may be of the realities of the Rikers Island pretrial detention environment, and the opportunity presented to prosecutors by the conditions under which detainees are confined, it does not establish the Department acted as an agent in defendant's case.”
Critically, the Court did not reach the merits of defendant’s claim that he did not consent to the Department's dissemination of his recorded conversations simply by using the Rikers Island telephones. On appeal defendant urged that “his consent cannot be implied because he w was never informed that the recordings may be released to the prosecutor” or whether additional notice that recordings may be released to prosecutors and used in court would serve as a best practice. But that claim was not preserved for review because the “defendant failed to argue to the trial court, as he does now, that his consent cannot be broader than the notice provided to him.”
Thus, trial counsel in future cases need to urge that courts cannot find implied consent for the dissemination of recorded telephone conversations absent notification as to how such recordings may be disseminated or used. The arguments as to why specific notice is required in order to find implied consent are set forth in the Appellant’s and Reply Briefs filed on behalf of Mr. Johnson by his counsel, Stanley Neustadter, which are available at CourtPass on the Court of Appeals website.
It should be noted that Judge Pigott wrote a powerful concurring decision, asserting that “current arrangement between the Department of Corrections and the District Attorney's office creates a serious potential for abuse and may undermine the constitutional rights of defendants who are financially unable to make bail. Something needs to change.” Judge Pigott explains the fundamental unfairness and prejudicial impact of the State being able to record and use telephone conversations of presumed innocent defendants who cannot make bail and of the alternative of asking pretrial detainees to refuse to use the telephone. As Judge Pigott explains, advising a detainee to not to speak over the telephone about anything involving his case, even requests to family members for help in locating a witness or medical records needed for trial, “is not a viable alternative, at least not one that would enable a defendant adequately to ‘prepare a defense . . . without knowledge of the prosecutors.’ ”
Sunday, April 17, 2016
Challenging the Use of Recorded Conversations of Pretrial Detainees
Sometimes an appellate decision rejecting the arguments raised on appeal provides a blueprint as to how similar claims can be raised in a manner that may be more likely to succeed. One such decision is that of the Court of Appeals in People v Johnson (_ NY3d _ , 2016 NY Slip Op 02552 [4/5/16]), in which the Court rejected a defendant’s claim that the People’s use at his criminal trial of excerpts from certain recorded telephone calls defendant made to family and friends during his detention at Rikers Island Correctional Facility violated his right to counsel and were used without proper consent. The calls were recorded and made available to the prosecution by New York City’s Department of Correction in accordance with the Department’s policy and practice of monitoring inmates’ telephone calls, and releasing those recordings, upon request, to the City’s District Attorneys’ Offices. The Department provides notices, including a notice at the start of telephone conversations that inmate telephone conversations are subject to electronic recording and/or monitoring in accordance with Departmental policy and that an inmate’s use of institutional telephones constitutes consent to this recording and/or monitoring. There is no notice that the recordings can or will be provided to the District Attorney or used in court proceedings.
Defendant urged that the Department acted as an agent of the State when it turned the recordings over to the District Attorney because detainees have limited access to outsiders, including their lawyers. Consequently, it was urged that detainees, left without options available to those able to make bail, out of necessity, make statements during telephone conversations that are detrimental to the defense. The Court rejected this argument, holding that “[h]owever accurate this description may be of the realities of the Rikers Island pretrial detention environment, and the opportunity presented to prosecutors by the conditions under which detainees are confined, it does not establish the Department acted as an agent in defendant's case.”
Critically, the Court did not reach the merits of defendant’s claim that he did not consent to the Department's dissemination of his recorded conversations simply by using the Rikers Island telephones. On appeal defendant urged that “his consent cannot be implied because he w was never informed that the recordings may be released to the prosecutor” or whether additional notice that recordings may be released to prosecutors and used in court would serve as a best practice. But that claim was not preserved for review because the “defendant failed to argue to the trial court, as he does now, that his consent cannot be broader than the notice provided to him.”
Thus, trial counsel in future cases need to urge that courts cannot find implied consent for the dissemination of recorded telephone conversations absent notification as to how such recordings may be disseminated or used. The arguments as to why specific notice is required in order to find implied consent are set forth in the Appellant’s and Reply Briefs filed on behalf of Mr. Johnson by his counsel, Stanley Neustadter, which are available at CourtPass on the Court of Appeals website.
It should be noted that Judge Pigott wrote a powerful concurring decision, asserting that “current arrangement between the Department of Corrections and the District Attorney's office creates a serious potential for abuse and may undermine the constitutional rights of defendants who are financially unable to make bail. Something needs to change.” Judge Pigott explains the fundamental unfairness and prejudicial impact of the State being able to record and use telephone conversations of presumed innocent defendants who cannot make bail and of the alternative of asking pretrial detainees to refuse to use the telephone. As Judge Pigott explains, advising a detainee to not to speak over the telephone about anything involving his case, even requests to family members for help in locating a witness or medical records needed for trial, “is not a viable alternative, at least not one that would enable a defendant adequately to ‘prepare a defense . . . without knowledge of the prosecutors.’ ”
Defendant urged that the Department acted as an agent of the State when it turned the recordings over to the District Attorney because detainees have limited access to outsiders, including their lawyers. Consequently, it was urged that detainees, left without options available to those able to make bail, out of necessity, make statements during telephone conversations that are detrimental to the defense. The Court rejected this argument, holding that “[h]owever accurate this description may be of the realities of the Rikers Island pretrial detention environment, and the opportunity presented to prosecutors by the conditions under which detainees are confined, it does not establish the Department acted as an agent in defendant's case.”
Critically, the Court did not reach the merits of defendant’s claim that he did not consent to the Department's dissemination of his recorded conversations simply by using the Rikers Island telephones. On appeal defendant urged that “his consent cannot be implied because he w was never informed that the recordings may be released to the prosecutor” or whether additional notice that recordings may be released to prosecutors and used in court would serve as a best practice. But that claim was not preserved for review because the “defendant failed to argue to the trial court, as he does now, that his consent cannot be broader than the notice provided to him.”
Thus, trial counsel in future cases need to urge that courts cannot find implied consent for the dissemination of recorded telephone conversations absent notification as to how such recordings may be disseminated or used. The arguments as to why specific notice is required in order to find implied consent are set forth in the Appellant’s and Reply Briefs filed on behalf of Mr. Johnson by his counsel, Stanley Neustadter, which are available at CourtPass on the Court of Appeals website.
It should be noted that Judge Pigott wrote a powerful concurring decision, asserting that “current arrangement between the Department of Corrections and the District Attorney's office creates a serious potential for abuse and may undermine the constitutional rights of defendants who are financially unable to make bail. Something needs to change.” Judge Pigott explains the fundamental unfairness and prejudicial impact of the State being able to record and use telephone conversations of presumed innocent defendants who cannot make bail and of the alternative of asking pretrial detainees to refuse to use the telephone. As Judge Pigott explains, advising a detainee to not to speak over the telephone about anything involving his case, even requests to family members for help in locating a witness or medical records needed for trial, “is not a viable alternative, at least not one that would enable a defendant adequately to ‘prepare a defense . . . without knowledge of the prosecutors.’ ”
Tuesday, March 15, 2016
Gun Court - proposed voluntary discovery agreement
As correctly noted by my good pal Anonymous, I neglected to post the Gun Court voluntary discovery agreement - here it is:
VOLUNTARY DISCLOSURE AGREEMENT
CR # ________________
It is hereby agreed between the parties to the above-entitled action:
1. For those criminal cases referred to the Monroe County Gun Crimes Part, the District Attorney of Monroe County will, as soon as practicable, provide pre-indictment discovery to the defendant’s attorney of record, for the purpose of facilitating potential plea discussions. Discoverable materials include those items set forth in CPL Section 240.20(1) and may include, where applicable, the defendant’s DCJS record, any relevant medical records which the District Attorney obtains, any warrants issued in connection with the case, any photographs shown to the witnesses in a procedure conducted to determine the identity of the perpetrator of the crimes charged and all police reports and memoranda relating to the criminal charges set forth under the above-referenced crime report number. The District Attorney of Monroe County, however, reserves the right to redact from the items listed above, any information which, she, in her complete discretion, deems confidential.
2. The defendant will, as soon as practicable, disclose to the District Attorney all materials discoverable by a prosecutor pursuant to CPL Section 240.30(1) which may be material and relevant to the pre-indictment discussions.
3. Each party may inspect, photograph, copy or test any item disclosed by the other party pursuant to paragraphs (1) and (2) above, upon an appointment made at least two (2) days in advance, provided that suitable arrangements are made to preserve the chain of custody and integrity of any items taken for testing.
4. Both parties recognize that the duty of disclosure imposed by paragraphs (1) and (2) of this agreement is voluntary and is a continuing one. In the event that the above-referenced crime matter cannot be resolved by a Superior Court Information but rather, is presented to a Monroe County Grand Jury and an indictment or prosecutor’s information is returned, materials subject to disclosure as contemplated within this agreement, pursuant to CPL Section 240.20 (1), will be disclosed within thirty (30) days of arraignment. Moreover, the defendant shall, within thirty (30) days of arraignment, disclose to the District Attorney all materials discoverable by a prosecutor pursuant to CPL 240.30 (1).
Materials subject to disclosure under this agreement which are obtained after the thirty (30) day periods specified herein, will be disclosed within fifteen (15) days after they are obtained, or prior to the commencement of trial, whichever occurs first.
5. In the event that an indictment or prosecutor’s information is handed up by a grand jury and voluntary disclosure has been provided pursuant to paragraph (4) of this agreement, the defendant will not submit requests, demands or motions pursuant to CPL Sections 200.95; 240.20; or 240.40(1) seeking any particular discovery materials previously provided by the District Attorney and the District Attorney will not submit any demands or motions pursuant to CPL Sections 240.30 or 240.40(2)(a) seeking any particular discovery previously provided by the defendant; however either party may submit requests or demands for any materials subject to disclosure under CPL Article 240 which have not been previously provided under the agreement. Furthermore, either party may file a written motion within forty-five (45) days of defendant’s arraignment, except that such motion may, for good cause shown, be made at any time before commencement of trial.
6. The District Attorney reserves the right to submit a written motion pursuant to CPL Section 240.40(2)(b) for the provision of non-testimonial evidence.
7. The District Attorney consents to an enlargement of defendant’s time in which to serve a Notice of Alibi pursuant to CPL Section 250.20 until forty-five (45) days after defendant’s arraignment on the indictment or prosecutor’s information.
8. The parties will exchange lists of the witnesses whom they expect to call in their direct cases at trial, immediately prior to the commencement of trial.
Gun Court - proposed voluntary discovery agreement
As correctly noted by my good pal Anonymous, I neglected to post the Gun Court voluntary discovery agreement - here it is:
VOLUNTARY DISCLOSURE AGREEMENT
CR # ________________
It is hereby agreed between the parties to the above-entitled action:
1. For those criminal cases referred to the Monroe County Gun Crimes Part, the District Attorney of Monroe County will, as soon as practicable, provide pre-indictment discovery to the defendant’s attorney of record, for the purpose of facilitating potential plea discussions. Discoverable materials include those items set forth in CPL Section 240.20(1) and may include, where applicable, the defendant’s DCJS record, any relevant medical records which the District Attorney obtains, any warrants issued in connection with the case, any photographs shown to the witnesses in a procedure conducted to determine the identity of the perpetrator of the crimes charged and all police reports and memoranda relating to the criminal charges set forth under the above-referenced crime report number. The District Attorney of Monroe County, however, reserves the right to redact from the items listed above, any information which, she, in her complete discretion, deems confidential.
2. The defendant will, as soon as practicable, disclose to the District Attorney all materials discoverable by a prosecutor pursuant to CPL Section 240.30(1) which may be material and relevant to the pre-indictment discussions.
3. Each party may inspect, photograph, copy or test any item disclosed by the other party pursuant to paragraphs (1) and (2) above, upon an appointment made at least two (2) days in advance, provided that suitable arrangements are made to preserve the chain of custody and integrity of any items taken for testing.
4. Both parties recognize that the duty of disclosure imposed by paragraphs (1) and (2) of this agreement is voluntary and is a continuing one. In the event that the above-referenced crime matter cannot be resolved by a Superior Court Information but rather, is presented to a Monroe County Grand Jury and an indictment or prosecutor’s information is returned, materials subject to disclosure as contemplated within this agreement, pursuant to CPL Section 240.20 (1), will be disclosed within thirty (30) days of arraignment. Moreover, the defendant shall, within thirty (30) days of arraignment, disclose to the District Attorney all materials discoverable by a prosecutor pursuant to CPL 240.30 (1).
Materials subject to disclosure under this agreement which are obtained after the thirty (30) day periods specified herein, will be disclosed within fifteen (15) days after they are obtained, or prior to the commencement of trial, whichever occurs first.
5. In the event that an indictment or prosecutor’s information is handed up by a grand jury and voluntary disclosure has been provided pursuant to paragraph (4) of this agreement, the defendant will not submit requests, demands or motions pursuant to CPL Sections 200.95; 240.20; or 240.40(1) seeking any particular discovery materials previously provided by the District Attorney and the District Attorney will not submit any demands or motions pursuant to CPL Sections 240.30 or 240.40(2)(a) seeking any particular discovery previously provided by the defendant; however either party may submit requests or demands for any materials subject to disclosure under CPL Article 240 which have not been previously provided under the agreement. Furthermore, either party may file a written motion within forty-five (45) days of defendant’s arraignment, except that such motion may, for good cause shown, be made at any time before commencement of trial.
6. The District Attorney reserves the right to submit a written motion pursuant to CPL Section 240.40(2)(b) for the provision of non-testimonial evidence.
7. The District Attorney consents to an enlargement of defendant’s time in which to serve a Notice of Alibi pursuant to CPL Section 250.20 until forty-five (45) days after defendant’s arraignment on the indictment or prosecutor’s information.
8. The parties will exchange lists of the witnesses whom they expect to call in their direct cases at trial, immediately prior to the commencement of trial.
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.
Sunday, February 28, 2016
Recall that we noted in the last post that presumptions may not be invoked where the underlying facts needed to support them are not present (see People v Zekaj, 191 AD2d 663 [2nd Dept 1993]; People v Wilt, 105 AD2d 1089 [4th Dept 1984]). When are the underlying facts insufficient to warrant invoking a presumption? As you might expect, there’s no black on white rule, so we’ll lay out the considerations below.
Consider a common fact pattern: police find a loaded handgun under the front seat of a car occupied by the defendant and two others. All three are charged with Criminal Possession of a Weapon in the Second Degree. As is typically the case, there is no direct proof bearing on defendant’s alleged intent to unlawfully use the weapon found in the vehicle, nor is there any proof regarding defendant’s actual possession or knowledge of the presence of the weapon in the vehicle. So, the prosecution’s case relies on two presumptions: first, that everyone in the vehicle is presumed to possess the weapon (Penal Law § 265.15[3]) and second, that one who possesses a loaded weapon is presumed to do so with the intent to use it unlawfully against another (Penal Law § 265.15[4]).
We’ll talk about problems with presumption stacking next time (sort of like multiplying fractions - you wind up with a smaller, not a greater number or burden of proof). Leave that aside for now while we consider the use of each presumption independently. What does case law say about the requisite factual basis? With apologies for citation format, then:
“Presumptions must be carefully scrutinized before they will be allowed to operate against an accused since there is a real and substantial possibility that they will conflict with the overriding, more fundamental presumption of innocence accorded to every defendant” (Leary v United States, 395 US 6). Absent a “a reasonably high degree of probability that the presumed fact follows from those proved directly” (People v Leyva, 38 NY2d 160, 166), “the danger . . . is that of logical gaps – that is, subjective inferential links based on probabilities of low grade or insufficient degree – which undetected, elevate coincidence and, therefore, suspicion into permissible inference” (People v Cleague, 22 NY2d 363). In such a cases, reliance on a presumption may lead to a mistaken or demonstrably incorrect result.
For example, police officers possess deadly weapons, however that possession, without more, is no evidence of any intention to use those weapons unlawfully. In fact, just the opposite presumption would be more likely: that the officers possess their weapons for the purpose of enforcing, rather than violating, the law. The legislature recognized specific instances where the facts affirmatively defeat the presumption by enacting exemptions in Penal Law § 265.20; section 265.20(a)(1)(b) relates to police officers.
Penal Law § 10.00(8) defines “possession” as “to have physical possession or otherwise to exercise dominion or control over tangible property.” Thus, in order for the presumption of possession to be constitutionally applied, the proof at trial must support a rational inference that each occupant of the vehicle was aware of the presence of the gun and possessed both the ability and intent to exercise dominion or control over it (County Court of Ulster County v Allen, supra, 442 US 140, 152).
In Ulster County, three men and a sixteen-year-old girl were traveling together from Detroit to New York City. When the car was stopped for a traffic violation, a trooper noticed a gun sticking out of the girl’s open handbag, which held two guns. The Supreme Court reasoned that because “the guns were lying on the car’s floor or seat in plain view” it was “rational to infer that each of the respondents was fully aware of the guns’ presence and had both the ability and intent to exercise dominion and control over them.” The Court found a rational basis permitting invocation of the presumption of possession where codefendants were not casual passengers but well-known to each other, and the weapons were not “out of defendants’ sight” (442 US at 152).
The Court did not reach the issue of the constitutionality of the presumption in cases where a gun was hidden in a car or inaccessible to a defendant. Rather, the Court refused to find Penal Law § 265.14(3) unconstitutional on its face simply because it could “sweep[] within its compass many occupants who may not know they are riding with a gun (which may be out of their sight), and many who may be aware of the presence of the gun but not permitted to access it,” in the grounds that the defendants lacked standing to challenge the application of the presumption in these hypothetical situations.
In its Ulster County decision, however, the Second Circuit held that in a case involving casual passengers and a gun concealed from defendant’s sight, invocation of the automobile– possession presumption would unconstitutionally diminish the People’s burden of proof (Ulster County v Allen, 568 F2d 998).
Such concerns might be triggered (ha, ha) where there is no independent evidence that the defendant knew that the gun was in the vehicle, or lacked any relationship with the others in the vehicle other than that of “casual passengers,” which could support a finding that they shared a common purpose. Absent any independent supporting evidence, there could be no rational basis to infer that the defendant was aware of the presence of the gun and possessed both the ability and intent to exercise dominion or control over the gun. Furthermore, there would be no substantial assurance that the presumed fact of possession is more likely than not to flow from the proven fact upon which it is made to depend – the defendant’s presence in a car where a concealed gun was found.
Under these circumstances, for a conviction to stand, it must be “clear that the presumption is not the sole and sufficient basis for a finding of guilt” (Ulster County v Allen, 442 US at 165). Where the prosecution’s entire case for possession is based solely upon the fact that the defendant was present in a car where a concealed handgun was found and the record is devoid of any independent factual basis that could suggest that the defendant knew that a gun was present or had the ability to exercise dominion or control over it, resort to the presumptions of possession or the intention to use unlawfully would be improper.
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