Tagged: felony

Should Felony Convicts Have Their Non-Waivable Surcharges Deferred?

POST WRITTEN BY: Michael B. Mushlin, Professor of Law at Elisabeth Haub School of Law at Pace University, Scholar, and Renowned Expert on Prisoners’ Rights.

All felony defendants convicted of a felony in New York are assessed a non-waivable $375 surcharge upon conviction. When they are sent to prison their prison accounts are assessed to pay these charges which depletes the meager amounts that inmates are able to earn in prison which otherwise might be used to buy supplies that can ease the burden of incarceration and also to maintain essential contact with their families through phone calls and visits. Theoretically, judges can defer these charges while the defendant is in prison, but the standard for doing so is hard to satisfy and the procedure for doing so has been made so enormously difficult by a recent restrictive decision  of the New York State Court of Appeals, People v. Jones26 N.Y. 3d 730 (2016), that it almost never happens. Ironically, the law governing these matters involving small sums of money is as complex as the law that controls major securities transaction.

In People v. Tookes, __ N.Y.S. 3d __, 2016 WL 3221208 (Sup. Ct. NY County June 8, 2016), (attached) Judge Daniel Conviser of the New York State Supreme Court sensitively addresses this issue and in his analysis indicates why a legislative fix is needed to address this problem. Judge Conviser in his opinion demonstrates powerfully why something that seems so insignificant to so many is so critical to people in prison. Judge Conviser in the conclusion of this opinion notes that:

[s]entencing for a trial court is not an abstract exercise. A sentence is pronounced on a human being, who, no matter what crime he or she has committed, stands in the well, often in custody, and often with family members close by, who upon a sentence to state prison will suffer a significant punishment … as the one human being who is most directly responsible for sending a fellow human being to be confined in a correctional facility where much of what makes a life worth living is taken, the sentencing court should have the ability to provide the extra soap or deodorant, the postage stamps which might make communicating with family easier or even the extra food which might make prison life more bearable.

Id. at 14. These words demonstrate a humanity and understanding that is rare to find in a judicial opinion. I hope that this decision will lead to change in the law to allow judges in appropriate cases to defer these charges at least during the period of a prisoner’s incarceration. It certainly deserves wide circulation and attention.

NY Court of Appeals Overturns a Murder Conviction Because of Ineffective Assistance of Counsel

POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

On July 1, 2015, the N.Y. Court of Appeals issued a 5-1 ruling regarding a prosecutor’s comments on summation that may overstate the probative value of DNA evidence presented at trial and defense counsel’s obligation to object to such comments. People v. Wright, No. 109, 2015 N.Y. Slip Op. 05621 (July 1, 2015).

The case involved the murder and alleged rape of a woman in Rochester, N.Y., who was found dead of strangulation by means of a ligature, shortly after she had sexual intercourse. A Monroe County prosecutor pursued charges of intentional murder, felony murder, and rape. Defense counsel admitted in opening statement that defendant had intercourse with the victim around the time in question, but argued that this intercourse was consensual. Counsel also vigorously opposed the murder charges.

In its case in chief, the prosecution called three expert witnesses who testified about the potential scientific value in general of the different methods of DNA testing they employed. The experts also carefully explained the limited probative value that could be deduced from their analysis of the ligature and items relating to the victim’s sexual intercourse.

The jury rejected the rape and felony murder charges, but convicted the defendant of intentional murder, pursuant to Penal Law § 125.25(1). The trial court imposed a sentence of 25 years to life. By a 3-2 vote, the Appellate Division affirmed. People v. Wright, 982 N.Y.S. 2d 219, 115  A.D. 3d 1257 (App. Div. 4th Dep’t 2014).

In the July 1 ruling, all six Court of Appeals judges who participated in the case (including especially dissenting Judge Eugene Pigott) credited defense counsel for effectively eliciting from the prosecution’s expert witnesses during cross-examination the limited probative value their testimony provided regarding identifying the defendant as the person possibly responsible for the murder. The appeal therefore focused decisively on statements made by the prosecution on summation and defense counsel’s response (or lack thereof) to such comments.

Upon review of the record, the Court’s majority held that during summation the prosecution prejudicially overstated the probative value of the DNA evidence its own witnesses provided relating to the circumstances of the case. The Court identified several instances in which the prosecutor told the jury that expert testimony conclusively showed that defendant’s DNA was a match for that found on the ligature. The Court noted that these comments contravened what the experts had in fact stated: that DNA analysis was only able to show that the defendant’s DNA could not be excluded from that found on the ligature.

The Court determined that the prosecutor’s “apparent intent was to persuade the jury that the DNA established that defendant had committed the rape and murder, when the evidence did not, and could not, dispositively establish his guilt.” The Court further held that defense counsel provided ineffective assistance because it could not identify any tactical reason to excuse counsel’s “multiple failures” to object to the prosecutor’s “numerous misrepresentations of the evidence.”

In support of its ruling, the majority noted the significant impact that DNA evidence may have on a jury’s deliberations. It further concluded that aside from the expert testimony, evidence produced at trial was insufficient to support defendant’s conviction for second degree murder. Accordingly, the Court reversed the Appellate Division and remanded the case for a new trial.

NY Court of Appeals Ducks a Decision on a Troubling Mens Rea Issue

POST WRITTEN BY: Professors Peter Widulski and Bennett L. Gershman

In April 2011, a man exited a subway train at a station in Manhattan and encountered a police sergeant and two other police officers. The officers reported that the man shouted obscenities and gesticulated at them and accused them of blocking his access to a stairway to an upper platform. They further reported that the man continued to swear at them as the sergeant followed him up the stairs. The sergeant reported that his intention in following the man – subsequently identified as Richard Gonzalez – was to issue Gonzalez a summons for disorderly conduct. While following Gonzalez, the sergeant noticed the handle of what appeared to him to be a knife in Gonzalez’s back pocket. After detaining Gonzalez on suspicion of disorderly conduct, the sergeant seized the item in Gonzalez’s back pocket and determined that it was a “gravity knife” because the blade in the handle snapped and locked into place upon flicking the wrist holding the handle. Under New York’s Penal Law it is a crime to possess a “gravity knife.”

The Manhattan District Attorney’s Office indicted Mr. Gonzalez for criminal possession of a weapon in the third degree, pursuant to Penal Law § 265.02 (1), which, in conjunction with Penal Law § 265.01 (1), subjects a defendant to third degree criminal possession of a gravity knife, a felony, if the defendant was previously convicted of a crime. Prior to trial, the defendant moved to suppress evidence of his possession of the knife on the ground that his detention for disorderly conduct was unlawful, and therefore the seizure of the knife was the fruit of the unlawful arrest. The defendant’s motion was denied, and a jury subsequently convicted him of third degree criminal possession of a weapon. He was sentenced to 3 ½ to 7 years in state prison.

On appeal, a five-judge panel of the Appellate Division, First Department, unanimously held that the facts supported probable cause to arrest the defendant for disorderly conduct. People v. Gonzalez, 112 A.D.3d 440 (1st Dep’t 2013). The court further unanimously held that the only mens rea element the prosecution had to prove regarding possession of a gravity knife was that the defendant knew he possessed a knife “in general,” rejecting defendant’s argument that the prosecution needed to prove that he knew the knife he possessed had the characteristics of a gravity knife.

Leave to appeal to the Court of Appeals was granted, and on April 28, 2015, the Court of Appeals heard oral arguments in the Gonzalez case at the Judicial Institute on the campus of Pace Law School. Although the parties argued both the probable cause issue and the mens rea issue, it appeared to us that the Court’s questions focused primarily on the issue of whether the prosecution needed to prove that the defendant knew that he possessed a knife with the characteristics of the prohibited “gravity knife.” And to observers, it appeared that the Court was clearly troubled by this issue. Gonzalez’s appellate counsel informed the Court of the undisputed facts that Gonzalez had purchased the knife – a “Husky” brand utility knife which he used in his long-time work as an independent contractor – at a Home Depot store some five years earlier. Counsel argued forcefully, and several of the judges appeared to accept the argument – that fairness required the prosecution to prove that Gonzalez knew that the knife he lawfully purchased for his work had the characteristics of a gravity knife. Indeed, in watching the back and forth, we were reminded of the famous Supreme Court decision, Morissette v. United States, 342 U.S. 246 (1952), taught in every first-year law school class, in which Justice Robert Jackson wrote: “A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory ‘But I didn’t mean to,’ and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution.”

In the face of the persistent and probing questions put to her by several of the judges, the prosecutor argued that the Legislature intended only that a person know simply that he possessed a knife, not whether the knife had the characteristics of a prohibited weapon. When Judge Eugene Pigott pressed her with hypothetical situations in which someone might possess quite innocently a lawfully purchased gravity knife, counsel stated that prosecutorial discretion might be used to avoid unfair prosecutions. Judge Pigott responded by noting that such discretion could lead to discriminatory results, based perhaps on a prosecutor’s consideration of the defendant’s race, or other improper considerations.

In a decision issued on June 15, 2015, the New York Court of Appeals unanimously reversed. But the Court reversed the Appellate Division not on the weapon possession issue but on the ground that “there is no record support for the motion court’s determination that defendant’s rant against the police officers constituted the crime of disorderly conduct.” Thus, the Court was able to avoid addressing the troubling issue regarding whether there is any mental culpability requirement for possession of a weapon, besides the requirement that the person know he possesses an object, which turns out to be a prohibited item.

Why courts avoid decisions on some issues really goes to the heart of the judicial process. Courts typically do not reach out to decide difficult-to-resolve questions if they do not have to. This is especially true when a court confronts issues relating to the legitimacy of a statute, or an interpretation of a statute that may break new ground. Clearly, the weapons issue in Gonzalez was a broader and much more difficult question than the detention issue, a purely legal question. The Court ducked the weapons issue knowingly, and probably with the knowledge that it would confront a similar issue again, and on a record making a resolution more likely.

Focus on Collateral Consequences of Conviction

BY: Lissa Griffin & Lucie Olejnikova

As attention is drawn to the social impact of excessive sentences, supermax detention, and overcriminalization, it makes sense to look at the same time at the social impact of collateral consequences. What purposes do collateral consequences actually serve? Not allowing someone who has served a sentence or fulfilled a punishment for criminal conduct to vote, drive, get benefits, get work without revealing a conviction, work in human services or other select industries, live in an affordable area, and the like not only holds the convict back from successful reintegration, but also prevents communities from moving on.

NICCCThe ABA has created and launched the NICCC database (National Inventory of Collateral Consequences of Convictions) that collects the law on collateral consequences in the Federal system and each of the fifty states. For review of the database, click here.

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