Tagged: Judge Robert Smith

N.Y. Court of Appeals Judge Robert Smith Hears His Last Oral Arguments

POST WRITTEN BY: Prof. 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 November 19, 2014, the Court of Appeals heard oral arguments in four cases, two of which presented criminal procedure issues relating to whether a defendant can employ a post-verdict, pre-sentence CPL § 330.30 motion to raise issues based on facts not discovered until after the verdict was rendered and have such facts considered as part of the record for purposes of direct appeal. In response to probing questions from the Court, all attorneys involved made forceful and well-informed arguments.

The November 19 arguments were the last that Judge Robert Smith will hear prior to his retirement from the Court. In accord with Court of Appeals tradition, at the conclusion of the arguments the other members of the Court rose and applauded Judge Smith. Chief Judge Lippman expressed his thanks and admiration to Judge Smith for his dedicated service to the Court before an audience that included the Judge’s family and virtually all members of the Court staff.

One of the most important legacies of Judge Smith’s tenure regarding criminal justice issues is the strong and thoughtful stance he took in many cases to curb prosecutors’ unfounded employment of a depraved indifference murder charge pursuant to N.Y. Penal Law § 125.25(2).  Section 125.25(2) provides for a second degree murder charge in cases where a defendant, without intent, causes the death of another person “[u]nder circumstances evincing a depraved indifference to human life [when the defendant] engages in conduct which creates a grave risk of death ….”

Dissenting in a case in which the Court majority upheld three depraved indifference murder convictions, Judge Smith stated that

experience shows that juries, especially in cases with inflammatory facts, will often find depraved indifference where the evidence does not support it, and as a result we have reversed many convictions in recent years because the proof of this mens rea was insufficient.

In the cases in question, Judge Smith found that the facts showed at most a basis for conviction on a lesser charge of second degree manslaughter. He cautioned the majority that its affirmance of the murder convictions “departs from the rigor we have previously shown [in depraved indifference murder appeals] and makes it more difficult to attain our long-sought goal of reserving convictions of this crime for the very few cases that warrant them.”

This writer was one of the clerks employed by Judge Smith when he took the bench in January 2004. After oral arguments one day during the winter of 2004, my co-clerks and I met with the Judge to discuss that day’s oral arguments. In a criminal appeal argued that day, when the Court pressed the defense attorney on a secondary argument he made for his client, the attorney responded in a sheepish way and declined to pursue that argument. Judge Smith asked us what we thought about this: he wanted to convey that the attorney’s response was unacceptable. He told us that the attorney had a basis to support this argument and that he should have presented it, prefacing his argument by saying: “It is my responsibility to fight for my client’s liberty with everything I have.”


  • People v. Heidgen, 3 N.E.3d 657 (N.Y. 2013) (Smith, J., dissenting)

NY Court of Appeals Holds Unconstitutional a Law Prohibiting Cyberbullying

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

The internet’s opportunities for communication can be, and in most cases are, beneficial. But some persons may maliciously utilize such opportunities to expose others to embarrassment, and the harm inflicted can be extremely damaging, especially when such communications expose minors to severe embarrassment relating to sexual matters. Such communications have come to be termed “cyber-bullying.”

With instances of cyber-bullying increasing, public authorities have responded with varying measures, including criminalization, in an effort to curb such communications. But because the communications at issue are speech, their restriction must survive constitutional review under the First Amendment’s free speech clause.

New York State has a prior history of protecting minors against the damaging effects of sexual communications. In New York v. Ferber, 458 U.S.747 (1982), the U.S. Supreme Court unanimously upheld, against a Free Speech challenge, a New York statute prohibiting persons from knowingly promoting a sexual performance by a child under the age of 16 by distributing material which depicted such a performance (reversing a decision of the N.Y. Court of Appeals).

On July 1, 2014, by a 5-2 vote the N.Y. Court of Appeals struck down as violating the First Amendment a law against cyber-bullying enacted by the Albany County legislature. On appeal, the County conceded that there was wording in the law that was constitutionally overbroad, but argued that, pursuant to accepted severability practice utilized in constitutional interpretation, the Court could sever the offending words and leave in place the remaining portions of the law as constitutionally valid and thus affirm the misdemeanor conviction of an Albany County high-school student who anonymously posted on Facebook photographs and detailed information about the alleged sexual practices and predilections of his classmates.

Thus, the key issue on appeal was the application of proper judicial employment of the severability doctrine, which allows a court to excise unconstitutional elements of a law in order to preserve constitutionally valid elements that may sustain conviction for the crime charged. While the Court majority acknowledged that some elements of the law’s text could be appropriately severed, other portions could not, without leaving in place other issues potentially raising further First Amendment problems.

Judge Robert Smith, in a dissenting opinion joined by Judge Pigott, stated that, with application of Albany County’s concessions for excision, the law passed constitutional muster. On Judge Smith’s reading of the applicable precedents, the defendant’s “speech designed to inflict serious emotional injury is protected only” if the defendant’s Facebook posting was “directed at a matter of public concern,” which was clearly not present in the case before the Court.