Tagged: New York Court of Appeals

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.

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NY Court of Appeals Issues a Ruling on Depraved Indifference Murder

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.

Reviewing a case of egregious recklessness that caused the death of an innocent victim, a 5-2 majority of the Court of Appeals reversed a conviction for depraved indifference murder and cautioned that efforts to prosecute a defendant on this charge must “fit within the narrow category of cases wherein the facts evince a defendant’s utter disregard for human life.”

In April 2009, Jose Maldonado hot-wired and stole a minivan in the Greenpoint section of Brooklyn. In a determined effort to avoid capture by police pursuing him through streets in a mixed residential and commercial area, during a five-minute period Maldonado greatly exceeded the speed limit, drove through several red lights, repeatedly swerved into opposing traffic lanes, and repeatedly drove the wrong way on one-way streets. After one pedestrian narrowly managed to dive away to escape being struck by the van, which did not brake, Maldonado drove, again without braking, into another pedestrian, Violet Kryzak (aged 37), who was crossing Manhattan Avenue with the traffic light in her favor. The van’s windshield on the passenger side showed signs of impact with Ms. Kryzak’s body.

Maldonado said he thought he “hit the girl in the hand or something.” Apparently, it was not her hand that he smashed into because impact with the stolen van, which witnesses estimated to be going at least 70 mph, catapulted Ms. Kryzak’s body into the air, to land more than 160 feet from the point of collision. Without stopping to seek help for Kryzak (who died at the scene), Maldonado continued his effort to avoid capture, speeding north in a southbound lane with the van’s windshield caved in on the passenger side. Apparently realizing shortly afterwards that he could not escape with the van, he crashed it into a car, got out, and ran away. This last attempt to avoid capture was unavailing, thanks to civilians who grabbed him and held him for the police.

Among other charges, the prosecutor sought to convict Maldonado for second-degree murder, pursuant to N.Y. Penal Law § 125.25 (2), on the basis that Maldonado recklessly created a grave risk of death to another person and caused such death in circumstances that evinced his depraved indifference to human life [DIM]. A jury unanimously agreed, and the Appellate Division unanimously affirmed the conviction.  It held that the evidence was legally sufficient to support defendant’s conviction for depraved indifference murder and that, upon independent review, the conviction was not against the weight of the evidence.

Maldonado sought review by the Court of Appeals. Maldonado’s appellate counsel conceded that Maldonado’s conduct was reckless but argued that it did not meet the requirements for DIM established in the Court’s recent precedents.

On July 1, 2014, a majority of the Court agreed. Quoting one of its precedents, the Court stated that “a depraved and utterly indifferent actor is someone who does not care if another is injured or killed” by his reckless conduct. The Court held that “assuming the People proffered evidence indicating that defendant was aware of and disregarded the substantial risk of injury or death caused by his driving, they failed to submit evidence establishing that defendant did not care whether grievous harm resulted.”

Despite applying the applicable standard to review the record in the light most favorable to the prosecution, the Court found that “defendant sought to mitigate the consequences of his reckless driving” by at times swerving to avoid crashing into other vehicles. The Court credited defendant for such “conscious avoidance of risk,” which it stated was “the antithesis of a complete disregard for the safety of others.” The Court found that, despite the fatal collision with Violet Kryzak, the purpose of Maldonado’s extremely dangerous driving tactics was simply “to speed his flight and to avoid crashing into other vehicles or pedestrians.” According to the Court’s review, the record showed “no indication that [Maldonado’s] conduct … was motivated solely by his intent to evade capture, regardless of the risk to human life.” Therefore, the Court ordered that, given Maldonado’s “conscious avoidance of risk” during his concededly reckless driving in a desperate effort to avoid capture for his crimes, his killing of Violet Kryzak rendered him guilty only of second-degree manslaughter.

In a dissenting opinion joined by Judge Graffeo, Judge Pigott noted that after Maldonado narrowly avoided collision with one pedestrian and then struck and killed Ms. Kryzak, he did not cease his reckless conduct “when he had the opportunity to display that he cared whether or not he might strike a pedestrian.” Applying the required standard of review, Judge Pigott stated that there was “a valid line of reasoning and permissible inferences from which a rational jury” could find that defendant “simply did not care whether or not a pedestrian died,” thus demonstrating not just extreme recklessness but also “utter indifference to the value of human life.”

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New York Court of Appeals Issues a Divided Ruling on a Statutory Presumption of Unlawful Intent

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.

In a June 26, 2014 decision, the New York Court of Appeals unanimously held that the evidence at trial supported Appellant Oliverio Galindo’s conviction for possession of a loaded firearm outside his home or place of business, pursuant to Penal Law § 265.03(3). But the Court was divided, 5-2, on whether his conviction pursuant to Penal Law § 265.03(1)(b) for possession of a loaded firearm with the intent to use it unlawfully against another person was in accordance with law.

Critical to this issue was Penal Law § 265.15(4), which states that “[t]he possession by any person of any … weapon … is presumptive evidence of intent to use the same unlawfully against another.” This presumption is permissive, not mandatory. But if the prosecution establishes the predicate fact (weapon possession), the presumed fact (unlawful intent) becomes part of the prosecution’s prima facie case, which the jury may rely on, with consideration of any rebuttal by the defense.

It was undisputed that on a public street Galindo shot his cousin in the leg. But the evidence regarding Galindo’s intent in regard to this shooting was much less clear. The defense did not present evidence, but argued that the statutory presumption of unlawful intent was rebutted through testimony presented by a prosecution witness who reported that Galindo told him that Galindo shot his cousin accidentally (i.e., not with unlawful intent).

Because Galindo challenged his intent-related conviction as insufficiently supported by the evidence (and not as violating due process), the Court reviewed the evidence in a light most favorable to the People. The majority interpreted the statutes as not requiring the People “to prove that defendant specifically intended to use the gun unlawfully against [his cousin] or any particular person.” The majority thus held that even if the evidence “may have suggested that defendant did not intend to use the gun unlawfully against [his cousin], it was not inconsistent with the inference that he intended to use the gun unlawfully against someone other than his cousin.” (emphasis in original). Therefore, the evidence relating to Galindo’s shooting of his cousin (whether unlawful or accidental) was essentially immaterial, except that it established the predicate fact of weapon possession, which then permitted the jury to presume Galindo’s intent to use the gun unlawfully against anyone, whether identified at trial or not.

Judge Pigott, in a dissenting opinion joined by Chief Judge Lippman, concluded that “[g]iven the lack of any evidence, direct or circumstantial, concerning defendant’s intent to use the weapon unlawfully against another, the jury could not have rationally concluded that the defendant’s mere possession of a loaded firearm established his intent to unlawfully use it against another.” (emphasis in original).

Responding to this, the majority said, “[b]ut that is exactly what the Legislature intended Penal Law § 265.15(4) to permit a jury to do: find that a defendant intended to use a weapon unlawfully merely because he or she possessed that weapon.” (emphasis added)

The Galindo majority did not fully address the constitutionality of Penal Law  § 265.15(4) because defendant did not raise this issue on appeal. Nevertheless, both the majority and dissent referenced County Court of Ulster County v. Allen, 442 U.S. 140 (1979), a habeas case in which a sharply divided Supreme Court upheld the constitutionality of another New York statutory presumption. In Allen, the element statutorily permitted to be presumed was possession of a firearm attributed to any and all persons based on the predicate fact that they were occupants of an automobile when a firearm was found in the vehicle.

The Allen majority held that the proper constitutional test requires consideration of whether the fact to be presumed is “more likely than not to flow from” the statutory predicate facts. The majority stated that this standard (lower than beyond a reasonable doubt) is appropriate for permissive presumptions “[a]s long as it is clear that the presumption is not the sole and sufficient basis for a finding of guilt.”

The four Allen dissenters found the statutory presumption unconstitutional and stated that “an individual’s mere presence in an automobile where there is a handgun does not even make it ‘more likely than not’ that the individual possesses the weapon.”

In Galindo, the fact permitted to be presumed was intent to use a weapon unlawfully. The Court of Appeals interpreted section 265.15(4) to support a finding of this mens rea element even in cases in which there was no evidence supporting a finding of intent other than the predicate fact of possession.

In light of the above, the Court of Appeals may need to address the constitutionality of Penal Law  § 265.15(4) in a future case.

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Case Divides Court on Criminal Defendant’s Right to be Present at All Stages of Trial

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 June 10, the New York Court of Appeals issued a divided opinion in People v. Rivera regarding a criminal defendant’s right to be present during any supplemental instructions the trial court may give to even a single member of the jury. Defendant Rivera was charged with murder and illegal possession of a weapon. While the jury was deliberating, the trial judge informed the attorneys that juror number 11 requested to speak with the court, and the attorneys consented to the judge’s meeting with the juror, with no one else present.

The judge then had a colloquy in the robing room with the juror, who it turned out, wanted further guidance on “imminent danger,” relating to the defendant’s argument that he killed in self-defense. After the colloquy, the judge informed the attorneys and defendant about the meeting and told them that a transcript of the colloquy was available for review. Neither counsel requested a reading of the transcript.

The jury acquitted on the murder charge but found the defendant guilty of the weapons charge. On appeal, the Second Department reversed the conviction on the weapons charge because the defendant was not present during the court’s colloquy with juror number 11.

A majority of the Court of Appeals affirmed the Second Department’s decision and agreed that holding this colloquy in the absence of the defendant was – similar to the recent People v. Walston decision– a violation of CPL § 310.30 and a “mode of proceedings error” that did not require an objection in order to be raised on appeal.

Rivera was a 4-3 decision. Judge Abdus-Salaam wrote an extensive and vigorous dissenting opinion, in which Judges Read and Smith joined. The dissenters opined that, given the facts of the case and the purpose of the presence rule,

the trial court committed a de minimis violation of defendant’s right to be present rather than a mode of proceedings error.

The dissenters cautioned that

[u]nder the majority’s holding, a conscientious defense counsel has every reason to encourage a trial court to conduct insignificant proceedings in the defendant’s absence, knowing that the court’s actions will not meaningfully affect the jury’s consideration of the case and will provide a guaranteed reversal of a conviction on appeal.

The Rivera majority took a strong stand on the “absolute right” of a criminal defendant to be present during all instructions a court provides to the jury. On the other hand, the Rivera dissenters raise the concern that strict application of the “mode of proceedings” doctrine may lead to situations in which defense counsel’s advocacy for the client requires counsel not to object to errors where an objection would otherwise be required.

Rivera and Walston indicate that the Court of Appeals is divided on the scope of CPL § 310.30 and the “mode of proceedings” doctrine. It seems likely that the Court will confront these issues again.

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N.Y. Court of Appeals Issues Ruling on Disclosure of Jury Notes in Criminal Cases

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 June 12, 2014, the New York Court of Appeals issued a memorandum decision on the responsibilities of a trial court when a jury sends a note asking for clarification of the court’s instructions on the elements of the crimes presented for the jury’s deliberations.

The appeal arose from a case in which the prosecution charged the defendant with second-degree murder, pursuant to N.Y. Penal Law § 125.25(1), which requires proof of intent to kill.  At the close of proof in the case, the trial court, in addition to instructing the jury on the elements of this charge, granted the defense counsel’s request to instruct the jury on the lesser included offense of first degree manslaughter, in the event that the jury, pursuant to Penal Law § 125.20(1), found that the defendant’s intent was not to kill the victim but only to cause serious physical injury that unintentionally resulted in the victim’s death.

During its deliberations, the jury sent the judge the following note: “Power Point – Judges directions on Manslaughter/Murder in the Second Degree -(Intent).” The judge did not present the jury’s note to the parties (apparently receiving no request to do so), but simply informed them that the jury was requesting “the Judge’s directions on manslaughter and murder in the second degree.” Of particular importance in this case is that the judge did not inform counsel of the note’s reference to intent. When the judge called the jury to the courtroom to hear his response to the note, the judge said that he understood them to be asking merely for a read-back of the instructions on the elements of charges at issue, and the judge repeated these instructions.

The jury acquitted defendant on the murder charge but found him guilty on the manslaughter charge. In rendering this verdict, the jury had to make a crucial decision about the defendant’s intent. Their verdict implied that they found that the defendant’s intent was not to kill but to cause serious physical injury.

The Defense appealed, arguing that the trial judge erred by not informing counsel of the jury note’s reference to intent. The Court of Appeals agreed. The Court noted that Criminal Procedure Law § 310.30 requires that when the trial court receives a request from the jury “for further instruction or information with respect to the law,” the court must give notice of the content of the request to the People and the defense. The Court stated that under its precedent in People v. O’Rama, 579 N.E.2d 189 (N.Y. 1991), this notice must be “meaningful,” so that the defense is able “to evaluate the inquiry and the proper responses in light of the defendant’s interests.” Id. at 192. The O’Rama court stated that

[a] court can neither serve the goal of maximizing counsel’s participation nor satisfy the CPL 310.30 requirement that meaningful notice be given when counsel is not afforded a verbatim account of a juror’s communication and is thereby deprived of an advance opportunity to suggest a response.

Id. at 193. Following this precedent, the Court held that the trial judge’s conduct with respect to the jury note, omitting specific reference to the intent issue, failed to satisfy this obligation. Moreover, because the Court deemed this a failure of the trial court’s “core responsibilities” relating to the court’s “mode of proceedings,” the Court held that under O’Rama an objection by defense counsel was not required to preserve the issue for appeal.

The Court vacated the defendant’s manslaughter conviction, with leave to the People to resubmit that charge to a grand jury.

Judge Robert Smith concurred in the result, while stating some misgivings that excusing the preservation requirement in such a case may provide defense counsel with a tactical opportunity to avoid seeking full disclosure to counsel of the contents of a juror note in hopes of a future reversal of the conviction. He suggested that a future case might raise and brief the issue of the scope and validity of the “mode of proceedings” doctrine and afford the Court with an opportunity to reconsider and revise of this doctrine.

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