Tagged: New York Court of Appeals

NYCA Addresses the Mode of Proceedings Error Doctrine

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.

The “mode of proceedings error” doctrine created by the NY Court of Appeals recognizes that some errors committed by a criminal trial court are so harmful to the integrity of the process that they are subject to appellate review even if defense counsel did not lodge an objection. The doctrine’s procedural safeguard is powerful because when it is held to apply, harmless error analysis is barred and the conviction must be reversed.

In a decision issued on June 7, 2016, the Court of Appeals had to determine whether a trial court committed such error when it accepted a jury’s guilty verdict on a charge of first-degree gang assault before the court had responded to certain notes from the jury requesting review of a court instruction and of testimony by a witness. On appeal, a divided panel of the Fourth Department found this to be a mode of proceedings error requiring reversal and a new trial. People v. Mack, 117 A.D. 3d 1450,  984 N.Y.S.2d 768 (App. Div. 4th Dep’t 2014). The People sought review by the Court of Appeals.

At issue was NY Criminal Procedure Law § 310.30’s requirement that a trial court receiving a note from a deliberating jury must provide counsel with notice of the content of the note and provide a meaningful response to the jury. Also at issue was the scope of the Court’s precedents in cases such as People v. O’Rama, 78 N.Y.2d 270, 579 N.E.2d 189, 574 N.Y.S.2d 159 (1991), in which the Court applied the mode of proceedings doctrine in the context of a court’s response or failure to respond to juror requests for further instruction.

In People v. Mack, it was undisputed that the trial court fulfilled its responsibility to inform counsel of the contents of the jury’s notes. The Court’s precedents also made clear that a court’s failure in that responsibility would constitute a mode of proceedings error. Six judges of the Court of Appeals considered that the issue presented was a new one: whether a mode of proceedings error was committed by a trial court that, although properly informing counsel of the content of jury notes, erred by not providing a response to the jury before accepting the verdict.

A 6-1 majority of the Court found against the defendant. The majority’s review of the Court’s precedents persuaded it that in the juror note context the mode of proceedings doctrine did not apply when, as in this case, defense counsel had sufficient notice, information, and opportunity to lodge an objection. In the majority’s view, the powerful force of the doctrine should not be deployed in such circumstances and where the thought of its applicability might provide perverse incentives to defense counsel to forego objecting.

Judge Rivera authored a forceful dissent. She disagreed with the majority’s statement that the issue presented was novel. In her view, a proper reading of the Court’s precedents indicated that the trial court committed a mode of proceedings error when it defaulted on its “core responsibility under CPL § 310.30” by accepting the jury’s verdict without first responding to its questions “or without alternatively asking the jurors whether they had withdrawn their requests.” With respect to the majority’s comment about perverse incentives, Judge Rivera argued that

[d]efendant’s preference or acquiescence is irrelevant because the duty [to comply with CPL § 310.30] works on the court, not the defendant.

Related Readings:

NYCA Addresses Interesting Mens Rea Question

Earlier this month, the New York Court of Appeals issued its decision in People v. Elliot Parrilla, in which the defendant was convicted of possession of a gravity knife under NY Penal Law § 265.02(1). That provision states that a person is guilty of criminal possession of a weapon in the third degree when

…[s]uch person commits the crime of criminal possession of a weapon in the fourth degree as defined in subdivision one…of section 265.01 and has been previously convicted of any crime.

NY Penal Law § 265.01 defines Criminal Possession of a Weapon in the Fourth Degree as follows:

A person is guilty of criminal possession of a weapon in the fourth degree when: (1) he or she possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or “Kung Fu star”; …

Both sides agreed that, to be convicted, the defendant had to knowingly possess a knife. The defense argued that the defendant also had to know that the knife he possessed was capable of being a “gravity knife.” The Court of Appeals held that he did not, and affirmed the conviction.

Interestingly, when the defendant was arrested he possessed a knife that he had bought at a large retail store in the Bronx  for use in his work as a contractor/ carpenter to cut sheet rock. He testified that on the day of his arrest, he had used the knife to cut tiles, but that he opened it with two hands and had never opened it with one hand by flicking his wrist, which is what makes a knife a gravity knife. The court charged the jury that it could convict the defendant if it found he knowingly possessed a knife, did not have to find that he knew it fit the “legal description of a gravity knife,” but had to find that it did in fact fit that description. Under NY Penal Law § 265.01(5) a gravity knife is

any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.

The Court did not engage in any extended analysis: it relied on the plain language of the statute to find an intent to criminalize possession of weapons that are per se particularly dangerous. It supported this holding by pointing out that knowledge of a firearm’s operability is not an element of criminal possession of a weapon.

Arguably, under the Model Penal Law, the result would be different. Since no mens rea is specified in the statute, the MPC would require that a conviction be based on evidence that the defendant intentionally, knowingly, or recklessly possessed a gravity knife, and it would apply not only to the possession element but to the attendant circumstance that what is possessed is a gravity knife.

Interestingly, again, this was one of the cases argued at Elisabeth Haub School of Law, when the Court of Appeals heard cases at the Judicial Institute. It was a fascinating argument, partly because of the fact that the knives had been legally sold by a major store chain until that chain agreed with the office of the NY County District Attorney to stop selling that item; partly because the defendant apparently did use the knife in his work, and partly because he was only arrested and charged with the weapon after he caused a ruckus with the police. Of course, those are the kinds of facts that you can learn from an oral argument or a trial, but that rarely make it into a written decision on a question of law.

Related Readings:

New NYCA Decision on Attorney Disqualification

The New York Court of Appeals has unanimously reversed an appellate division decision and upheld the decision of a trial judge to relieve a defendant’s assigned counsel despite the defendant’s objections to having new counsel. The case arose when the defendant’s assigned counsel from New York County Defender Services (NYCDS) learned that another lawyer in his office was representing a man who had fled from the scene when his client was arrested for possession of a weapon found nearby. The attorney discovered the potential conflict when he sought to track down the other man to call him as a witness in the hope of casting doubt on who had possessed the gun. The attorney’s  supervisors at the NYCDS had prohibited him from looking for, calling the other man as a witness, or  cross-examining him if the prosecution called him to testify. The trial judge removed the attorney despite the client’s desire to keep him as counsel. The defendant was represented by someone else and convicted. He was sentenced to 20 years to life as a persistent violent felony offender.

The appellate division held that removal had been an abuse of discretion, but the appellate division was reversed. The Court of Appeals held that removal is appropriate where institutional defense organizations represent more than one defendant in the same criminal matter, particularly here, where the lawyer’s supervisors prohibited him from calling a prior client as a witness. It also held that the client had not effectively waived the conflict because, while he insisted on his right to retain his attorney of choice, he also continued to insist on calling the other defendant as a witness.

Related Readings:

NY Court of Appeals Decides to Review 440.10 Summary Denials

In one of its last decisions of 2014, the Court of Appeals held that it will begin reviewing the Appellate Division’s summary denials of CPL 440.10(1)(g) motions.  The Court had held in People v. Crimmins38 N.Y.2d 407, 409 (1974) that

[t]he power to review a discretionary order denying a motion to vacate judgement upon the ground of newly discovered evidence ceases at the Appellate Division.

For nearly 40 years, the Crimmins decision kept the Court of Appeals from reviewing and determining whether such denials constituted “abuse of discretion.” People v. Jones, No. 14-219, ___ N.E.3d ___, 2014 N.Y. Slip Op. 08760, 2 (Dec. 16, 2014). In Jones, this Court overruled itself and explained that “the rule enunciated in Crimmins has needlessly restricted this Court’s power of review concerning CPL 440.10(1)(g) motions….”

In Jones, the Court held that the Appellate Division abused its discretion in summarily denying a defendant’s motion for an evidentiary hearing as part of his efforts to vacate his conviction on the ground of newly discovered evidence, pursuant to CPL 440.10(1)(g). Mr. Jones claimed that newly discovered DNA evidence would exclude him as the perpetrator of crimes of which he was convicted in 1981.  This decision signals a step in the right direction for the NY judiciary trying to grapple with evidence, like DNA, that may not have been available at the time of trial.

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.

Cases: