by

Jill Paperno,

Special Assistant Monroe County Public Defender

In defending a client charged with criminal possession of a weapon it is important to be familiar with the various presumptions set forth in Penal Law 265.15.

(1) Machine-guns – presence is presumptive evidence that all in the area possessed

(2) Presence in stolen vehicle of items specified in the statute is presumptive evidence that all in the vehicle possessed

(3) Presence in an automobile of items listed is “presumptive evidence of its possession by all persons occupying such automobile at the time such weapon, instrument or appliance is found” except (a) if it’s on the person of one of the occupants (b) it is in a taxi so it does not apply to the driver, or (c) if it’s a pistol or revolver and an occupant, “not present under duress” has a license to carry and conceal.

            This is an important presumption to know.  When your client is a back seat passenger in a car occupied by three people including the driver, and the gun is found in front of the front seat passenger (or possibly even in the trunk), your client can still be charged.  But see People v. Wilt, 105 AD2d 1089:

Here, defendant testified in his own defense and called several witnesses who corroborated his story that he had only been in the automobile for five or six minutes to look for his girlfriend. He stated that he had never looked in the trunk of the car which had a missing trunk lock and did not know that a gun was inside the trunk. The overwhelming and uncontradicted evidence renders the statutory presumption of Penal Law unconstitutional as applied to this defendant. In our view, there is no “rational connection” between the discovery of the gun in the trunk and defendant's presumed possession (cf. Leary v. United States, 395 U.S. 6, 33, 89 S.Ct. 1532, 1546, 23 L.Ed.2d 57;  Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519). Absent the statutory presumption, the evidence is legally insufficient to convict defendant of knowingly possessing a loaded firearm as a matter of law.

People v. Wilt, 105 A.D.2d 1089, 1090, 482 N.Y.S.2d 629, 630-31 (1984)There are some terrible cases on this.  You should consider whether to move against the indictment based on the use of the presumption before the grand jury, to seek clarification of the basis for the indictment in your request for the bill of particulars, and to attempt to avoid its use at trial.  If you cannot avoid its use, be prepared to be familiar with the jury instruction and argue against the application of the presumption (which constitutionally is actually a “permissive inference”) to the jury.

The presumption and automatic standing

            If a defendant is charged solely based on the presumption, the defendant has automatic standing to challenge the stop or seizure of the weapon.  (This does not mean the facts will necessarily be sufficient – see People v. Mendoza 82 NY2d 415.)  If the possession is charged based on actual or constructive possession and the presumption, there is no automatic standing.

The Court of Appeals in People v. Millan (supra ) recognized an exception to this standing requirement where the People charge the defendant with possession solely on the basis of the statutory presumption that allows a defendant to be convicted based on his or her mere presence in the automobile or room in which contraband is found (Penal Law § 220.25 [narcotics]; § 265.15 [weapons] ). The MillanCourt held, as a matter of fundamental fairness, that a defendant charged with actual possession solely on the basis of a statutory presumption has “automatic standing” to challenge the legality of a search. The “critical factor” (69 N.Y.2d at 518, 516 N.Y.S.2d 168, 508 N.E.2d 903) in the Court's holding was that the charged crime was founded “only” (id. at 519, 516 N.Y.S.2d 168, 508 N.E.2d 903) on the statutory presumption. Indeed, the Court stressed two more times that its holding was limited to cases in which the prosecution's case is based “solely” or “entirely” on the presumption (id.). Clearly, we must give effect to this unequivocal statement of the Court's holding. The fatal flaw in defendants' position is that it requires us to disregard that unequivocal statement.

People v. Cheatham, 54 A.D.3d 297, 299, 863 N.Y.S.2d 407, 410 (1^stDept 2008).

            In order to pursue your opportunity to have a probable cause hearing you should make every effort to establish that the charge of possession, if based on the presumption, was based solely on the presumption.  You can start by seeking a statement in your request for bill of particulars about the nature of the possession.   Request that the prosecutor specify whether the alleged possession of the weapon is based on actual possession, constructive possession or the presumption.  It is important to challenge a claim that the possession is alleged based on the presumption and some other type of possession, because if a defendant is alleged to have possessed two ways, the defendant is not entitled to automatic standing to challenge the stop and/or seizure.  So if the prosecutor alleges actual and constructive, don’t just accept their word for it.  Analyze what the nature of the possession is.  If the prosecutor asserts that it is actual possession, you probably still have a good basis to assert standing, at least as to the stop and seizure of the defendant that led to the seizure of the weapon.  If the prosecutor asserts that it is constructive, then consider whether it really meets the legal standard for constructive possession.

In New York, the rule has long been that to support a charge that a defendant was in constructive possession of tangible property, the People must show that the defendant exercised “dominion or control” over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized (see, Penal Law § 10.00[8]; People v. Francis, 79 N.Y.2d 925, 582 N.Y.S.2d 982, 591 N.E.2d 1168; People v. Pearson, 75 N.Y.2d 1001, 557 N.Y.S.2d 269, 556 N.E.2d 1076 [evidence legally insufficient to establish defendant's constructive possession of cocaine found in back room of grocery store in absence of evidence that defendant owned, rented or had control over or a possessory interest in store or room];⁷ People v. Tirado, 47 A.D.2d 193, 366 N.Y.S.2d 140, affd. on opn. below, 38 N.Y.2d 955, 384 N.Y.S.2d 151, 348 N.E.2d 608 [proximity of drugs in apartment and defendant's control of premises support conclusion of constructive possession]; People v. Diaz, 112 A.D.2d 311, 491 N.Y.S.2d 758 [evidence that defendant instructed another to retrieve and sell cocaine to undercover officer sufficient to establish defendant's constructive possession of cocaine]; People v. Rivera, 77 A.D.2d 538, 430 N.Y.S.2d 88 [defendant who commanded his brother to get a gun and pull trigger had complete dominion and control over gun]; cf., People v. Patel, 132 A.D.2d 498, 133 A.D.2d 38, 518 N.Y.S.2d 384, lv. denied, 70 N.Y.2d 935, 524 N.Y.S.2d 687, 519 N.E.2d 633 [in absence of any proof that defendant had authority over person in actual possession of gun, there is no constructive possession] ).

People v. Manini, 79 N.Y.2d 561, 573-74, 594 N.E.2d 563, 569-70 (1992).

            If there is no actual possession and no constructive possession that meets the legal standard, then the possession is based on the presumption, and you are entitled to automatic standing for purposes of getting the hearing. (In Cheatham, supra, the Appellate Court noted the defendant’s oral and written statements acknowledging his proximity to the cocaine in denying his claim to automatic standing. People v. Cheatham, 54 A.D.3d 297, 863 N.Y.S.2d 407 [2008])

            A word about motions seeking probable cause hearings – the law does not require that you provide an affidavit from your client.  But some judges, despite the clear statutory language, as well as the clear import of case law, still require an affidavit.  Sometimes making the record is more important.  Sometimes getting the hearing in order to have a shot at suppression or getting the opportunity to question the officers is more important.  Make sure you decide what to do based on what will help your case the most, but be careful about what you put in any client’s affidavit you provide to the court as it can be used against your client. 

(4)  Possession of a weapon…made or adapted for use primarily as a weapon, is presumptive evidence of intent to use the same unlawfully against another. 

            What if the prosecutor now seeks to bootstrap the possession charge to a possession with intent to use unlawfully against another, using the presumption of unlawful intent contained in Penal Law 265.15(4)?  There is a bar to premising one inference upon another as a basis for conviction.  In People v. Dumas the Kings County Court articulated the basis for opposing the use of two presumptions together to elevate a count:

While Courts generally permit the introduction of proof of circumstances that may have “a fair and legitimate influence in determining the question involved ...” (see, People v. Razezicz, supra, 206 N.Y. at p. 270, 99 N.E. 557), the unsupportable “coupling” of two statutory presumptions, as occurred in this case, had the effect of preordaining a conclusion which the Grand Jury could never have reached by legally sufficient independent evidence. As noted by one commentator: “statutorily enacted ... permissive inferences have received the official imprimatur of the state; they have been enshrined in official rules of law expressed in formal legal language. These official actions convey disproportionate authority and carry more weight with juries than other items of admissible evidence” (see, Collier, The Improper Use of Presumptions in Recent Criminal Adjudication, 38 Stanford L.Rev. 423, 442 [1986] ). After scrutinizing the Grand Jury minutes, it is clear to this Court that the finding that defendant intended to use the weapons unlawfully against another did not flow naturally, logically or rationally from any provenfacts, but was based entirely upon the impermissible “bootstrapping” of presumptions. If the defendant had been the actual shooter or if she had physically possessed the weapons, a different result might ensue (see,People v. Coluccio, 170 A.D.2d 523, 566 N.Y.S.2d 87 app. den. 77 N.Y.2d 993, 571 N.Y.S.2d 919, 575 N.E.2d 405; People v. Gillespie, 168 A.D.2d 567, 562 N.Y.S.2d 783 app. den. 77 N.Y.2d 961, 570 N.Y.S.2d 494, 573 N.E.2d 582; People v. Lee, 154 A.D.2d 399, 545 N.Y.S.2d 786 app. den.75 N.Y.2d 772, 551 N.Y.S.2d 914, 551 N.E.2d 115; People v. Wooten, 149 A.D.2d 751, 540 N.Y.S.2d 533 app. den. 74 N.Y.2d 822, 546 N.Y.S.2d 580, 545 N.E.2d 894; People v. Wynn, 108 A.D.2d 768, 484 N.Y.S.2d 927). Indeed, if there had been a scintilla of evidence which might rationally support a charge that she intended to use the weapons, this indictment would be sustained (see, Matter of John N., 168 A.D.2d 386, 563 N.Y.S.2d 397; People v. Evans, 106 A.D.2d 527, 483 N.Y.S.2d 339). Here, the “intent” charges were proffered merely because defendant was present in the automobile, in which weapons were found. This, alone, was insufficient. (See, People v. Nieves,135 A.D.2d 579, 522 N.Y.S.2d 166 app. den. 71 N.Y.2d 1031, 530 N.Y.S.2d 566, 526 N.E.2d 58; People v. Cummings, 131 A.D.2d 865, 517 N.Y.S.2d 225; People v. Wade, 122 Misc.2d 50, 469 N.Y.S.2d 571 supra ).

In conclusion, while this Court finds a sufficient basis in fact to support the rebuttable presumption that defendant possessed weapons³, (in that she appears to have knowingly participated in their transport from North Carolina to Brooklyn), there is no rational basis to invoke the further presumption that she also intended to use those weapons unlawfully against another.

People v. Dumas, 156 Misc. 2d 1025, 1029-30, 595 N.Y.S.2d 644, 647-48 (Sup. Ct. 1992)

(5)  Possession of a defaced machine-gun, firearm, rifle or shotgun is presumptive evidence that the person who possessed it also defaced it.

But on the other hand, there is no “room presumption” for possession of weapons as there is for possession of controlled substances.

by

Jill Paperno,

Special Assistant Monroe County Public Defender

In defending a client charged with criminal possession of a weapon it is important to be familiar with the various presumptions set forth in Penal Law 265.15.

(1) Machine-guns – presence is presumptive evidence that all in the area possessed

(2) Presence in stolen vehicle of items specified in the statute is presumptive evidence that all in the vehicle possessed

(3) Presence in an automobile of items listed is “presumptive evidence of its possession by all persons occupying such automobile at the time such weapon, instrument or appliance is found” except (a) if it’s on the person of one of the occupants (b) it is in a taxi so it does not apply to the driver, or (c) if it’s a pistol or revolver and an occupant, “not present under duress” has a license to carry and conceal.

            This is an important presumption to know.  When your client is a back seat passenger in a car occupied by three people including the driver, and the gun is found in front of the front seat passenger (or possibly even in the trunk), your client can still be charged.  But see People v. Wilt, 105 AD2d 1089:

Here, defendant testified in his own defense and called several witnesses who corroborated his story that he had only been in the automobile for five or six minutes to look for his girlfriend. He stated that he had never looked in the trunk of the car which had a missing trunk lock and did not know that a gun was inside the trunk. The overwhelming and uncontradicted evidence renders the statutory presumption of Penal Law unconstitutional as applied to this defendant. In our view, there is no “rational connection” between the discovery of the gun in the trunk and defendant's presumed possession (cf. Leary v. United States, 395 U.S. 6, 33, 89 S.Ct. 1532, 1546, 23 L.Ed.2d 57;  Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519). Absent the statutory presumption, the evidence is legally insufficient to convict defendant of knowingly possessing a loaded firearm as a matter of law.

People v. Wilt, 105 A.D.2d 1089, 1090, 482 N.Y.S.2d 629, 630-31 (1984)There are some terrible cases on this.  You should consider whether to move against the indictment based on the use of the presumption before the grand jury, to seek clarification of the basis for the indictment in your request for the bill of particulars, and to attempt to avoid its use at trial.  If you cannot avoid its use, be prepared to be familiar with the jury instruction and argue against the application of the presumption (which constitutionally is actually a “permissive inference”) to the jury.

The presumption and automatic standing

            If a defendant is charged solely based on the presumption, the defendant has automatic standing to challenge the stop or seizure of the weapon.  (This does not mean the facts will necessarily be sufficient – see People v. Mendoza 82 NY2d 415.)  If the possession is charged based on actual or constructive possession and the presumption, there is no automatic standing.

The Court of Appeals in People v. Millan (supra ) recognized an exception to this standing requirement where the People charge the defendant with possession solely on the basis of the statutory presumption that allows a defendant to be convicted based on his or her mere presence in the automobile or room in which contraband is found (Penal Law § 220.25 [narcotics]; § 265.15 [weapons] ). The Millan Court held, as a matter of fundamental fairness, that a defendant charged with actual possession solely on the basis of a statutory presumption has “automatic standing” to challenge the legality of a search. The “critical factor” (69 N.Y.2d at 518, 516 N.Y.S.2d 168, 508 N.E.2d 903) in the Court's holding was that the charged crime was founded “only” (id. at 519, 516 N.Y.S.2d 168, 508 N.E.2d 903) on the statutory presumption. Indeed, the Court stressed two more times that its holding was limited to cases in which the prosecution's case is based “solely” or “entirely” on the presumption (id.). Clearly, we must give effect to this unequivocal statement of the Court's holding. The fatal flaw in defendants' position is that it requires us to disregard that unequivocal statement.

People v. Cheatham, 54 A.D.3d 297, 299, 863 N.Y.S.2d 407, 410 (1^st Dept 2008).

            In order to pursue your opportunity to have a probable cause hearing you should make every effort to establish that the charge of possession, if based on the presumption, was based solely on the presumption.  You can start by seeking a statement in your request for bill of particulars about the nature of the possession.   Request that the prosecutor specify whether the alleged possession of the weapon is based on actual possession, constructive possession or the presumption.  It is important to challenge a claim that the possession is alleged based on the presumption and some other type of possession, because if a defendant is alleged to have possessed two ways, the defendant is not entitled to automatic standing to challenge the stop and/or seizure.  So if the prosecutor alleges actual and constructive, don’t just accept their word for it.  Analyze what the nature of the possession is.  If the prosecutor asserts that it is actual possession, you probably still have a good basis to assert standing, at least as to the stop and seizure of the defendant that led to the seizure of the weapon.  If the prosecutor asserts that it is constructive, then consider whether it really meets the legal standard for constructive possession.

In New York, the rule has long been that to support a charge that a defendant was in constructive possession of tangible property, the People must show that the defendant exercised “dominion or control” over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized (see, Penal Law § 10.00[8]; People v. Francis, 79 N.Y.2d 925, 582 N.Y.S.2d 982, 591 N.E.2d 1168; People v. Pearson, 75 N.Y.2d 1001, 557 N.Y.S.2d 269, 556 N.E.2d 1076 [evidence legally insufficient to establish defendant's constructive possession of cocaine found in back room of grocery store in absence of evidence that defendant owned, rented or had control over or a possessory interest in store or room];⁷ People v. Tirado, 47 A.D.2d 193, 366 N.Y.S.2d 140, affd. on opn. below, 38 N.Y.2d 955, 384 N.Y.S.2d 151, 348 N.E.2d 608 [proximity of drugs in apartment and defendant's control of premises support conclusion of constructive possession]; People v. Diaz, 112 A.D.2d 311, 491 N.Y.S.2d 758 [evidence that defendant instructed another to retrieve and sell cocaine to undercover officer sufficient to establish defendant's constructive possession of cocaine]; People v. Rivera, 77 A.D.2d 538, 430 N.Y.S.2d 88 [defendant who commanded his brother to get a gun and pull trigger had complete dominion and control over gun]; cf., People v. Patel, 132 A.D.2d 498, 133 A.D.2d 38, 518 N.Y.S.2d 384, lv. denied, 70 N.Y.2d 935, 524 N.Y.S.2d 687, 519 N.E.2d 633 [in absence of any proof that defendant had authority over person in actual possession of gun, there is no constructive possession] ).

People v. Manini, 79 N.Y.2d 561, 573-74, 594 N.E.2d 563, 569-70 (1992).

            If there is no actual possession and no constructive possession that meets the legal standard, then the possession is based on the presumption, and you are entitled to automatic standing for purposes of getting the hearing. (In Cheatham, supra, the Appellate Court noted the defendant’s oral and written statements acknowledging his proximity to the cocaine in denying his claim to automatic standing. People v. Cheatham, 54 A.D.3d 297, 863 N.Y.S.2d 407 [2008])

            A word about motions seeking probable cause hearings – the law does not require that you provide an affidavit from your client.  But some judges, despite the clear statutory language, as well as the clear import of case law, still require an affidavit.  Sometimes making the record is more important.  Sometimes getting the hearing in order to have a shot at suppression or getting the opportunity to question the officers is more important.  Make sure you decide what to do based on what will help your case the most, but be careful about what you put in any client’s affidavit you provide to the court as it can be used against your client. 

(4)  Possession of a weapon…made or adapted for use primarily as a weapon, is presumptive evidence of intent to use the same unlawfully against another. 

            What if the prosecutor now seeks to bootstrap the possession charge to a possession with intent to use unlawfully against another, using the presumption of unlawful intent contained in Penal Law 265.15(4)?  There is a bar to premising one inference upon another as a basis for conviction.  In People v. Dumas the Kings County Court articulated the basis for opposing the use of two presumptions together to elevate a count:

While Courts generally permit the introduction of proof of circumstances that may have “a fair and legitimate influence in determining the question involved ...” (see, People v. Razezicz, supra, 206 N.Y. at p. 270, 99 N.E. 557), the unsupportable “coupling” of two statutory presumptions, as occurred in this case, had the effect of preordaining a conclusion which the Grand Jury could never have reached by legally sufficient independent evidence. As noted by one commentator: “statutorily enacted ... permissive inferences have received the official imprimatur of the state; they have been enshrined in official rules of law expressed in formal legal language. These official actions convey disproportionate authority and carry more weight with juries than other items of admissible evidence” (see, Collier, The Improper Use of Presumptions in Recent Criminal Adjudication, 38 Stanford L.Rev. 423, 442 [1986] ). After scrutinizing the Grand Jury minutes, it is clear to this Court that the finding that defendant intended to use the weapons unlawfully against another did not flow naturally, logically or rationally from any proven facts, but was based entirely upon the impermissible “bootstrapping” of presumptions. If the defendant had been the actual shooter or if she had physically possessed the weapons, a different result might ensue (see,People v. Coluccio, 170 A.D.2d 523, 566 N.Y.S.2d 87 app. den. 77 N.Y.2d 993, 571 N.Y.S.2d 919, 575 N.E.2d 405; People v. Gillespie, 168 A.D.2d 567, 562 N.Y.S.2d 783 app. den. 77 N.Y.2d 961, 570 N.Y.S.2d 494, 573 N.E.2d 582; People v. Lee, 154 A.D.2d 399, 545 N.Y.S.2d 786 app. den.75 N.Y.2d 772, 551 N.Y.S.2d 914, 551 N.E.2d 115; People v. Wooten, 149 A.D.2d 751, 540 N.Y.S.2d 533 app. den. 74 N.Y.2d 822, 546 N.Y.S.2d 580, 545 N.E.2d 894; People v. Wynn, 108 A.D.2d 768, 484 N.Y.S.2d 927). Indeed, if there had been a scintilla of evidence which might rationally support a charge that she intended to use the weapons, this indictment would be sustained (see, Matter of John N., 168 A.D.2d 386, 563 N.Y.S.2d 397; People v. Evans, 106 A.D.2d 527, 483 N.Y.S.2d 339). Here, the “intent” charges were proffered merely because defendant was present in the automobile, in which weapons were found. This, alone, was insufficient. (See, People v. Nieves, 135 A.D.2d 579, 522 N.Y.S.2d 166 app. den. 71 N.Y.2d 1031, 530 N.Y.S.2d 566, 526 N.E.2d 58; People v. Cummings, 131 A.D.2d 865, 517 N.Y.S.2d 225; People v. Wade, 122 Misc.2d 50, 469 N.Y.S.2d 571 supra ).

In conclusion, while this Court finds a sufficient basis in fact to support the rebuttable presumption that defendant possessed weapons³, (in that she appears to have knowingly participated in their transport from North Carolina to Brooklyn), there is no rational basis to invoke the further presumption that she also intended to use those weapons unlawfully against another.

People v. Dumas, 156 Misc. 2d 1025, 1029-30, 595 N.Y.S.2d 644, 647-48 (Sup. Ct. 1992)

(5)  Possession of a defaced machine-gun, firearm, rifle or shotgun is presumptive evidence that the person who possessed it also defaced it.

But on the other hand, there is no “room presumption” for possession of weapons as there is for possession of controlled substances.

On direct appeal,  with limited exceptions, such as facts as to which a court may take judicial notice, the appellate courts may only consider the facts as they appear on the record (see,e.g., People v Kinchen, 60 NY2d 772 [1983]). Yet sometimes significant and material portions of the proceedings may not appear on the record. For example, Sandoval hearings may be conducted in chambers without a court reporter present. 

Although some appellate decisions permit  an appeal to be held in abeyance pending a reconstruction hearing   (see, People v Odiat, 191 AD2d 183;  People v Armlin, 37 NY2d 167, 173; People v. James, 132 A.D.2d 932, 933 ), the Court of Appeals has restricted the use of reconstruction hearings to establish a record (People v Velasquez, 1 NY3d 44 [2003] ["Reconstruction hearings may be appropriate where it is clear that a proceeding took place that was not transcribed ( see e.g. People v. Michalek, 82 N.Y.2d 906 [1994] [reconstruction hearing ordered where Sandoval hearing held but not transcribed] ); the trial court refused to record the proceedings ( see e.g. People v. Davidson, 89 N.Y.2d 881 [1996] [trial court refused to record substantial portions of voir dire proceeding] ); the minutes have been lost; or there is significant ambiguity in the record. Reconstruction hearings should not be routinely ordered where, as here, the record is simply insufficient to establish facts necessary to meet the defendant's burden of showing that he was absent from a material stage of the trial."]). 

Rather than wait until appeal to discover whether one's client will be able to appeal on a record which fully and accurately captures all that occurred in the lower court, trial counsel can and should take the simple step of reciting for the court reporter to record that which occurred but had not been recorded ("let the record reflect that...). As the decision in People v Torres (2012 NY Slip Op 05461 [4th Dept 7/6/12]) demonstrates, the difference between a client obtaining a reversal may depend on something as simple as an attorney recounting on the record before a court reporter that which had occurred unrecorded.

In Torres, there was partial closing of the courtroom during jury selection that resulted in the exclusion of the defendant's wife. There was no contemporaneous record objection to this exclusion. Later, in the context of a post-trial 330.30 motion, there was an agreement by the court and parties that the defendant had, in fact, objected. Although the Appellate Division panel split 3-2 as to whether the courtroom closing was reversible error, the entire panel agreed that the issued had been preserved for review as a matter of law.

As the majority opinion explains

defendant's objection was made off the record, the parties and the court agreed during argument on defendant's post-trial motion to set aside the verdict that defendant had indeed objected to the court's procedure. It is well settled that a post-trial motion pursuant to CPL 330.30 cannot preserve a contention for review that is raised for the first time in the motion (see People v McFadden, 94 AD3d 1150, 1150; People v Jones, 85 AD3d 1667, 1668), but as noted that is not what occurred here inasmuch as defendant made an objection before jury selection. The objection merely was not placed on the record at that time. Here, the record establishes that "the trial judge was made aware, before he ruled on the issue, that the defense wanted him to rule otherwise, [and thus] ]preservation was adequate" (People v Caban, 14 NY3d 369, 373). 

On direct appeal,  with limited exceptions, such as facts as to which a court may take judicial notice, the appellate courts may only consider the facts as they appear on the record (see,e.g., People v Kinchen, 60 NY2d 772 [1983]). Yet sometimes significant and material portions of the proceedings may not appear on the record. For example, Sandoval hearings may be conducted in chambers without a court reporter present. 

Although some appellate decisions permit  an appeal to be held in abeyance pending a reconstruction hearing   (see, People v Odiat, 191 AD2d 183;  People v Armlin, 37 NY2d 167, 173; People v. James, 132 A.D.2d 932, 933 ), the Court of Appeals has restricted the use of reconstruction hearings to establish a record (People v Velasquez, 1 NY3d 44 [2003] ["Reconstruction hearings may be appropriate where it is clear that a proceeding took place that was not transcribed ( see e.g. People v. Michalek, 82 N.Y.2d 906 [1994] [reconstruction hearing ordered where Sandoval hearing held but not transcribed] ); the trial court refused to record the proceedings ( see e.g. People v. Davidson, 89 N.Y.2d 881 [1996] [trial court refused to record substantial portions of voir dire proceeding] ); the minutes have been lost; or there is significant ambiguity in the record. Reconstruction hearings should not be routinely ordered where, as here, the record is simply insufficient to establish facts necessary to meet the defendant's burden of showing that he was absent from a material stage of the trial."]). 

Rather than wait until appeal to discover whether one's client will be able to appeal on a record which fully and accurately captures all that occurred in the lower court, trial counsel can and should take the simple step of reciting for the court reporter to record that which occurred but had not been recorded ("let the record reflect that...). As the decision in People v Torres (2012 NY Slip Op 05461 [4th Dept 7/6/12]) demonstrates, the difference between a client obtaining a reversal may depend on something as simple as an attorney recounting on the record before a court reporter that which had occurred unrecorded.

In Torres, there was partial closing of the courtroom during jury selection that resulted in the exclusion of the defendant's wife. There was no contemporaneous record objection to this exclusion. Later, in the context of a post-trial 330.30 motion, there was an agreement by the court and parties that the defendant had, in fact, objected. Although the Appellate Division panel split 3-2 as to whether the courtroom closing was reversible error, the entire panel agreed that the issued had been preserved for review as a matter of law.

As the majority opinion explains

defendant's objection was made off the record, the parties and the court agreed during argument on defendant's post-trial motion to set aside the verdict that defendant had indeed objected to the court's procedure. It is well settled that a post-trial motion pursuant to CPL 330.30 cannot preserve a contention for review that is raised for the first time in the motion (see People v McFadden, 94 AD3d 1150, 1150; People v Jones, 85 AD3d 1667, 1668), but as noted that is not what occurred here inasmuch as defendant made an objection before jury selection. The objection merely was not placed on the record at that time. Here, the record establishes that "the trial judge was made aware, before he ruled on the issue, that the defense wanted him to rule otherwise, [and thus] ]preservation was adequate" (People v Caban, 14 NY3d 369, 373). 

In a 5-2 decision, the Court of Appeals, in People v Maracle (2012 NY Slip Op 05121 [NY 6/27/12]), held that a waive of the right to appeal a conviction does not necessarily waive the right to appeal the sentence and that under the facts .The Court explained that

While it is evident that defendant waived her right to appeal her conviction, there is no indication in the record that defendant waived the right to appeal the harshness of her sentence. She seeks only the right to appeal the harshness of the sentence that went from one of probation to a maximum sentence of imprisonment on each count of the indictment because she failed to comply with a condition set by the court. The CPL makes clear the distinction between a conviction and a sentence. A "conviction" is defined as "the entry of a plea of guilty to, or verdict of guilty upon, an accusatory instrument other than a felony complaint, or to one or more counts of such instrument" (CPL 1.20 [13]). "Sentence" is defined as "the imposition and entry of a sentence upon conviction" (CPL 1.20 [14]). Both the "conviction" and the "sentence" comprise the "judgment," which is "completed by the imposition and entry of the sentence" (CPL 1.20 [15]). As such, although defendant waived her right to appeal the conviction, she never expressly waived her right to appeal the sentence. Unlike the situation in People v Hidalgo (91 NY2d 733 [1998]), it is not clear that "the trial court engaged in a full and adequate colloquy, and [that] defendant expressly waived her right to appeal without limitation." It is evident from the colloquy that the court, at most, apprised defendant that if she did not pay one half of the restitution by sentencing, there would be no promise as to her sentence and that she would not be able to withdraw her plea - something she is not seeking. There was no mention of defendant not being able to appeal the harshness of her sentence. The most critical error that occurred here, and the one that distinguishes this case from Hidalgo, is that during the plea colloquy in this case, the court did not explain that the appeal waiver would bar defendant from not only challenging the sentence she hoped to receive, i.e., five years probation, but also any sentence that the court would impose in the event defendant failed to meet the court's condition of paying $23,000 by the date of sentencing. It cannot be said that, at the time of her plea colloquy five months before the imposition of sentence, defendant knowingly and intelligently waived her right to appeal a sentence that, at that point, had not yet been declared by the court. In that respect, this case is more analogous to our holding in People v Johnson (14 NY3d 483 [2010]).

In a 5-2 decision, the Court of Appeals, in People v Maracle (2012 NY Slip Op 05121 [NY 6/27/12]), held that a waive of the right to appeal a conviction does not necessarily waive the right to appeal the sentence and that under the facts .The Court explained that

While it is evident that defendant waived her right to appeal her conviction, there is no indication in the record that defendant waived the right to appeal the harshness of her sentence. She seeks only the right to appeal the harshness of the sentence that went from one of probation to a maximum sentence of imprisonment on each count of the indictment because she failed to comply with a condition set by the court. The CPL makes clear the distinction between a conviction and a sentence. A "conviction" is defined as "the entry of a plea of guilty to, or verdict of guilty upon, an accusatory instrument other than a felony complaint, or to one or more counts of such instrument" (CPL 1.20 [13]). "Sentence" is defined as "the imposition and entry of a sentence upon conviction" (CPL 1.20 [14]). Both the "conviction" and the "sentence" comprise the "judgment," which is "completed by the imposition and entry of the sentence" (CPL 1.20 [15]). As such, although defendant waived her right to appeal the conviction, she never expressly waived her right to appeal the sentence. Unlike the situation in People v Hidalgo (91 NY2d 733 [1998]), it is not clear that "the trial court engaged in a full and adequate colloquy, and [that] defendant expressly waived her right to appeal without limitation." It is evident from the colloquy that the court, at most, apprised defendant that if she did not pay one half of the restitution by sentencing, there would be no promise as to her sentence and that she would not be able to withdraw her plea - something she is not seeking. There was no mention of defendant not being able to appeal the harshness of her sentence. The most critical error that occurred here, and the one that distinguishes this case from Hidalgo, is that during the plea colloquy in this case, the court did not explain that the appeal waiver would bar defendant from not only challenging the sentence she hoped to receive, i.e., five years probation, but also any sentence that the court would impose in the event defendant failed to meet the court's condition of paying $23,000 by the date of sentencing. It cannot be said that, at the time of her plea colloquy five months before the imposition of sentence, defendant knowingly and intelligently waived her right to appeal a sentence that, at that point, had not yet been declared by the court. In that respect, this case is more analogous to our holding in People v Johnson (14 NY3d 483 [2010]).

EED Charge Required Where Defendant "Snapped" and Inflicted 50+ wounds

In People v McKenzie (#133 decided 6/26/12) the Court held that, in determining whether to charge Extreme Emotional Disturbance in a homicide trial, "the relevant inquiry was whether the evidence, viewed most favorably to defendant, presented a triable question, we believe that the issue of the reasonableness of defendant's explanation should have been put to the jury."  I believe that, while this language is not the precise formulation I was hoping for when I argued McKenzie, that it does support an argument I made at a recent CLE.  Specifically, I think that if there is a valid line of reasoning and permissible inferences which would support a particular lesser, then the lesser must be charged - it's the same test as legal sufficiency for the prosecution.  Otherwise the jury is being limited as trier of fact, and that function is effectively shared with the trial court.

The Court of Appeals stressed that "a court is bound to view the evidence in the light most favorable to the defendant ... an exercise understood to be incompatible with weighing the evidence to resolve competing inferences" (citation omitted), "The charge must be given if there is evidence reasonably supportive of the defense, even if there is other evidence which, if credited, would negate it".  "Reasonably supportive", to my mind, is the same test as for legal sufficiency.  The defense does not need to show that the jury should rule a certain way, or is likely to, merely that it would not be unreasonable or based solely on speculation.

The McKenzie decision is rooted in the EED statute: "the evidence would have permitted defendant's jury reasonably to conclude by a preponderance (Penal Law § 25.00 [2]) that, at the time of the homicide, he was affected by an extreme emotional disturbance, and that that disturbance was supported by a reasonable explanation or excuse rooted in the situation as he perceived it".  However, the phrase "reasonably to conclude" I think goes to all defense requests for lessers. 



An Appellate Division is not permitted to weigh the alternatives and find that the defendant's position is reasonable, but not reasonable enough.  "Although, it is true, as the Appellate Division evidently found, that the evidence in the aggregate would have permitted the jury to reject defendant's claim of emotional disturbance and loss of control, it was instead the viability of the alternative, contrary inference - that defendant in fact experienced an emotional break which caused him to 'snap' - that should have guided the trial court's determination of the charge request."  Neither the AD nor the trial court can weigh the facts: "A claim of extreme emotional disturbance must, of course, be credibly supported if the defense upon which it rests is to be submitted to the jury ... but that requirement was not intended to cast the trial court in the fact-finding role properly reserved to the jury" (citation omitted).  A trial court is only permitted to deny a charge based on "objectively discernible deficiencies."

Specifically regarding EED, the mental infirmity required is simply a loss of self control (perhaps a "profound" loss of self-control).  "The court denied the charge instead upon the ground that there was no proof that defendant had a 'mental infirmity that r[ose] short of a mental disease or defect.'  But the purpose of this quoted language, as it has been used in our decisions to describe the predicate for an extreme emotional disturbance defense, patently was not to tether the defense to proof of an underlying psychiatric disorder; 'mental infirmity' in the presently relevant context refers more broadly to any reasonably explicable emotional disturbance so extreme as to result in and become manifest as a profound loss of self- control." (citations omitted).  No psychiatric diagnosis is necessary ("it may be established without psychiatric evidence"), though one would obviously be relevant and helpful.  The court recognized that a conviction for either murder in the second degree or manslaughter in the first degree represented "highly punitive options".

There was concern at the Court of Appeals regarding the necessity of charging EED in all domestic dispute homicides, and this is something to keep in mind for the future (the court held that the reasonableness of the EED "might well be understood to pose a closer question").  The decision was unanimous, opinion by Chief Judge Lippman.