Tagged: NY Court of Appeals

Recent #NYCA Decisions: Ineffective Assistance of Counsel

The New York Court of Appeals has been busy on the criminal procedure front. Last month it decided several cases, including three that addressed the issue of ineffective assistance of defense counsel. In one, the court held that counsel had been ineffective in failing to move to suppress a gun. In the second and third, the Court held that counsel had not been ineffective in 1) failing to move to reopen a suppression hearing when a detective changed his testimony at trial and 2) failing to object to inflammatory and improper gender based summation comments. The Court essentially found strategic justifications for counsel’s failures, but in split decisions.

In People v. Rashid Bilal, the defendant was charged with Criminal Possession of a Weapon in the Second Degree under N.Y. Penal Law § 265.03(3), based on allegations that he possessed a gun. Without any strategic or other reason, defense counsel failed to move to suppress the gun. The Court held that defense counsel’s failure amounted to ineffective assistance and remanded for a suppression hearing. This is a fairly clear-cut case.

In People v. Roy Gray, where the defendant was charged and convicted of murder in the second degree under N.Y. Penal Law § 125.25(1), the Court reached the opposite conclusion and held that it was not ineffective assistance for the defense lawyer to decline to move to reopen a suppression hearing. Judge Stein, joined by Judge Fahey, dissented.

In Gray, the defendant had moved to suppress three statements: the first, when he had told police he was going to take the blame for the murder because his brother had spent too long in jail, and a second, in writing, after additional Miranda warnings were given, inculpating himself. Both statements were suppressed because of the failure to give adequate Miranda warnings. The People appealed and the Appellate Division reversed, finding that the written statement was admissible because it was attenuated from the initial failure to give adequate Miranda warnings.

At trial, notwithstanding the suppression of the first statement, the defense stipulated that the first statement could be admitted on the theory that it cast doubt on the truthfulness of the written confession. Then, at trial, the detective who had taken the defendant’s statements changed his testimony in a way that raised the issue whether the second statement was a continuation of the first, unlawful interrogation. That is, he testified at trial  for the first time that after the first statement he continued to talk with the defendant for an hour during which time the defendant made a second statement that inculpated him – in substance the same as the subsequent written statement. Even though this testimony would have totally undermined the Appellate Division’s reasoning that the written statement was attenuated from the initial failure to give Miranda warnings, defense counsel did not move to reopen the suppression hearing; instead, he moved to have the detective’s testimony limited to what he had testified to at the hearing – that the first statement was limited to defendant’s intention to falsely confess. The Court recognized that this was a strategic decision, intended to undermine  the impact of the second and written confession, which counsel apparently believed would not be suppressed despite the change in testimony. The Court of Appeals held that this did not constitute ineffectiveness but was instead a reasonable strategic decision.

Judge Stein, in dissent, disagreed. As he saw it, the detective’s altered trial testimony undermined the basis for the Appellate Division’s decision that the second statement was attenuated. Given that the People had stipulated they did not have enough evidence to go forward without the confessions, and given that the People agreed that the written statement “was the culmination of the prior unwarned statements,” the failure to move to reopen the suppression hearing as to the second statement, and the decision to instead rely on the first statement to cast doubt on it – constituted ineffective assistance.

The dissent also disagreed with the majority’s conclusion that defense counsel had not been ineffective in failing to move to reopen because the issue was not a “winning” suppression argument. The dissent agreed that there could be no ineffectiveness where counsel failed to make a motion that has little or no chance of success, here, where “counsel fails to raise a close suppression issue,” that is so important to the proof of his client’s guilt, ineffectiveness is established. It was undisputed that the original Miranda warnings were deficient; there was now new evidence that the police had continued to question the defendant between the first and second statements and that there was “no pronounced break” between the two. Moreover, the decision was not a reasonable strategic one because defense counsel had “nothing to lose and everything to gain” by reopening the suppression hearing. All of the defendant’s statements would have been suppressed.

Finally, in People v. Urselina King, where the main issue argued on appeal concerned whether the court had improperly discharged potential jurors on hardship grounds, the Court affirmed the burglary in the first degree and assault in the second degree convictions under N.Y. Penal Law § 140.30(3) and N.Y. Penal Law § 120.05(2) respectively. With respect to ineffective assistance, the Court held that defense counsel was not ineffective for failing to object to “inflammatory gender-based” statements in the prosecutor’s summation. The effect of the statements was that the viciousness of the attack in question meant it could only have been done by a woman and, at the same time, that the victim, a different kind of woman, was more believable because she filled the “female victim” stereotype. Although finding that this double-barreled gender stereotyping was inflammatory and irrelevant, the majority concluded that the prosecutor’s remarks “were so over the top and ridiculous that defense counsel may very well have made a strategic decision not to object…out of a reasonable belief that the jury would be alienated by the prosecutor’s boorish comments.” The Court concluded that, on the whole, defense counsel rendered effective assistance.

Related Readings:

Recent New York Court of Appeals Decisions on Bruton

In two cases, People v. Assad Cedeno and People v. Keith Johnson, the NY Court of Appeals recently held that the defendants were deprived of their Sixth Amendment rights to be confronted with the witnesses against them by inadequately redacted statements of non-testifying co-defendants that were admitted at trial. Because the inadequately redacted statements remained facially incriminating, the convictions were reversed.

In People v. Cedeno, No. 24, 2016 NY Slip Op. 02281 (Mar. 29, 2016), which arose out of a gang fight, the lower court dealt with a statement by a co-defendant describing the defendant as “one of the Latin Kings wearing red and white trunks…[who] pulled out a knife and rushed the whole crowd and then ran over to the victim and started punching him with a small knife.” The statement was redacted to remove the description of the defendant’s clothing.

Judges Piggott and Garcia dissenting, the Court held that despite the redaction the statement remained facially incriminating and violated the defendant’s confrontation rights. The oral statement did not do so, because it contained a reference to a generic Latin King. However, the written version, which also went to the jury,  replaced the description with a  large blank space.  The Court concluded that since the defendant was one of the three co-defendants sitting at the table with the declarant, the statement powerfully implicated him. Presumably the Court was saying that the fact that it could have implicated one of the other defendant “latin kings” at the table did not change the result.

The dissenters would have held  that despite the blank spaces and clear signs of alteration the statement did not cause the jurors to realize that it specifically referred to the defendant.

In People v. Johnson, No. 25, 2016 NY Slip Op. 02282 (Mar. 29, 2016), the co-defendant had testified in the grand jury and gave a false exculpatory statement about what had occurred during the crime, which included a description of the defendant’s role in trying to rob an undercover officer in a buy and bust operation. The grand jury testimony was read into evidence. The Court rejected the People’s argument that the statement could not be inculpatory under Bruton because it offered “perfectly innocent explanation of the evening’s events.” The Court held that the co-defendant’s explicitly incriminating the defendant in possession of the robbery proceeds and in the initial stages of the drug transaction violated the defendant’s constitutional rights, even if the statement was ultimately exculpatory.

Related Readings:

NYCA Upholds Use of Prior Bad Act Evidence to Rebut EED Claim

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.

Pursuant to N.Y. Penal Law § 125.25 (1)(a), a defendant charged with intentional murder may present an affirmative defense that at the time of the killing he suffered from an “extreme emotional disturbance” (EED) for which there is “a reasonable explanation or excuse.” If a preponderance of evidence supports this defense, defendant will be convicted of manslaughter, rather than murder.

The NY Court of Appeals has reviewed a dozen or so cases on the potential merits of an EED claim. Most of these presented the issue of whether the trial judge erred by declining defendant’s request to charge the jury on an EED defense. In a November 18, 2015, decision the Court of Appeals reviewed the case of People v. Israel, 2015 N.Y. Slip Op. 08370, in which the trial court did charge the jury on defendant’s EED claim, but the jury rejected it.

The key facts in Israel were that in June 2007 the defendant, upon seeing a friend chased and threatened by several men, fired a gun multiple times at the pursuers, killing one of them. With respect to the killing, the prosecution introduced alternative counts of intentional murder and depraved indifference murder. Note, however, that Penal Law permits an EED defense for an intentional murder charge but not for depraved indifference murder.

At trial in support of his EED claim, the defendant called a psychiatrist, who opined that defendant suffered (untreated) post-traumatic stress disorder (PTSD) as a result of an altercation defendant had with two men in October 2005, during which defendant was stabbed eight times in the back. The expert testified that defendant reacted violently in June 2007 because his PTSD was triggered when he saw his friend being chased and attacked. The expert further testified that defendant was “not a violent person by nature” and had no “significant history of having done violent acts.”

To contest the claim that defendant’s action in June 2007 was attributable solely to the PTSD, the prosecution cross-examined the psychiatrist about two incidents prior to the stabbing and about one that occurred in 2010, in all of which defendant reacted violently with little or no provocation. Regarding the 2010 incident, the prosecution subsequently called to the stand a corrections officer, who testified that while defendant was incarcerated in August 2010, he smashed an inmate telephone in anger and threatened the officer.

In People v. Israel, the jury rejected defendant’s EED argument and convicted him of intentional murder for killing one of his friend’s pursuers and of attempted murder for firing at police officers who came to the scene.

The issue on appeal at the Appellate Division, First Department was whether the trial judge erred by allowing the prosecutor to cross-examine witnesses about the defendant’s other bad acts and to present testimony about the 2010 prison incident. As I wrote earlier, to be admissible such evidence must relate to a material issue and must not be used to show defendant’s propensity to commit wrongful acts.

The Court of Appeals unanimously held that by making an EED claim, defendant raised a material issue about his state of mind at the time of the killing and thus “opened the door” to rebuttal about whether PTSD was the sole reason for his actions at that time. Noting that objection to evidence of one of the two prior bad acts had effectively been waived at trial, the Court found that the prosecutor’s questions about defendant’s other bad act prior to his stabbing were for consideration, as the trial judge made clear in limiting instruction to the jury, only to the issue raised by defendant about his state of mind at the time of the killing and not for evidence of propensity.

The Court did agree with defendant that the trial court erred in admitting evidence of the 2010 prison incident (three years after the crime charged) because the focus of an EED defense must be on whether defendant was suffering from an EED at the time of the crime charged. This evidence should have been excluded as pointing only to propensity, but the Court held this error harmless because other admissible evidence showed “overwhelming” proof and affirmed defendant’s conviction.

Related Readings:

A Tragic Case Tests the Powers of Statutory Interpretation

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.

As noted here previously, the New York Court of Appeals recently reviewed People v. Jorgensen, a case of a woman whose reckless driving caused her unborn child to suffer injuries that led to the child’s death six days after birth. Among other charges, the prosecution sought to convict the woman of second-degree manslaughter for recklessly causing the death of “another person,” the person here being the defendant’s baby daughter. The first jury to hear the case failed to reach a unanimous verdict. The jury in a second trial returned a verdict of guilty, which was affirmed by the Appellate Division, Second Department.

The legality of the conviction presented the Court of Appeals with a matter of first impression. Case law in the Appellate Division had previously upheld manslaughter convictions of defendants whose reckless acts directed against a pregnant woman resulted in the death of the child after birth. The issue now was whether a similar manslaughter conviction could be lodged against a pregnant woman for her own recklessness.

Writing only for himself in dissent, Judge Fahey marshaled powerful arguments that the applicable N.Y. Penal Law statutes, when read together and in their plain meaning, demonstrated that the defendant was guilty of manslaughter. He noted that recklessness, as defined by N.Y. Penal Law § 15.05(3), provides responsibility for future consequences of a defendant’s disregard of substantial and unjustifiable risks, and the consequence in this case was the death of a person born shortly after the reckless act.

The Court’s majority, however, reversed the conviction. The majority did not dispute that the victim of defendant’s reckless conduct was a person under the law at the time she died. Indeed, the majority’s own report of the facts and issues refers to the victim as a “baby” and as a “child.” Nevertheless, as a predicate for moving beyond the plain meaning of the applicable statutes referenced by Judge Fahey, the majority purported to find an ambiguity in their references to “person.”

It seems, however, that the ambiguity found by the majority does not in fact involve possibly different meanings of the word “person” as used in the statutes. The majority does not explicitly identify conflicting meanings of “person.” Moreover, the majority does not dispute the propriety of the manslaughter convictions in the Appellate Division cases referenced above, but simply distinguishes them as not involving charges against a pregnant woman.

Instead, what concerned the majority was that other Penal Law provisions in which the legislature provided for a pregnant woman’s responsibility for harm caused to her fetus, such as through self-abortion acts, classify the offense in question as a misdemeanor and require proof of the pregnant woman’s intent. Accordingly, the majority framed the statutory interpretation issue as: “whether the legislature intended to criminalize a mother’s own reckless conduct” – not the conduct of another – in a situation such as in this case.

Because the only penal statutes that unambiguously hold a pregnant woman criminally responsible for the death of a child she is carrying do so in a very different context, require proof of her intent, and provide only for a misdemeanor charge, the majority decided that a felony conviction based on a pregnant woman’s recklessness is not supported “under the current statutory scheme.” In the majority’s view, manslaughter liability in a case such as this is a matter for the legislature to decide prospectively after full consideration. It should not be initiated by a prosecutor’s charging decision and decided by a court without sufficient guidance by the legislature.

A complication in this case was that the defendant, when taken to a hospital after the accident, consented to an emergency cesarean section. In doing so, she was trying to save her child’s life. But the fleeting success of this effort also provided the basis for a manslaughter charge against her.

Seven years ago, defendant’s careless act placed in mortal danger the daughter she had been carrying in her womb for 34 weeks. It took two jury trials before the prosecution could obtain a manslaughter conviction against her. Because of the statutory ambiguity found by the Court of Appeals, the defendant’s conviction is reversed, and she will not have to serve the three to nine year sentence set by the trial court.

Sometimes life imposes harsher suffering than any sentence provided by law would.

Related Readings:

NY Court of Appeals Affirms Attempted Kidnapping Conviction

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.

Is evidence that an adult male made repeated offers to take a ten-year old girl on outings with him and at one time offered her the keys to his apartment legally sufficient to support a conviction for second degree kidnapping, where the man had only a passing acquaintance with the girl, his offers were unsolicited by the girl or her mother, and where the girl refused all the man’s requests to meet with her or to accept the keys to his apartment?

The Court of Appeals was confronted with this question recently in People v. Denson. As discussed previously, a 5-1 majority of the Court rejected Denson’s argument that the trial court erred in admitting evidence of his 1978 conviction for sexual abuse of his stepdaughter. But that was not all there was to this appeal.

Denson’s other argument raised the sufficiency of evidence issue mentioned above. The issue merited consideration because at no time did the defendant use any physical force against the girl; nor did she ever begin to accompany the defendant on any outing that he proposed to her. All of the defendant’s alleged efforts to attempt to kidnap the girl consisted only of offers to take her on outings or to provide her with the keys to his apartment – all of which the girl refused.

The applicable statutes relating to kidnapping and Court of Appeals precedents on attempt required the prosecutor to prove beyond a reasonable doubt that the defendant “must have engaged in conduct that came dangerously near commission of the completed crime,” which completion here would involve abducting the girl and holding her in a place where she would “not likely be found.” After all evidence was presented in a nonjury trial, the trial court found that the prosecutor met this burden.

On appeal to the Court of Appeals, Denson argued that the trial evidence was legally insufficient (1) to show his intent to abduct the girl and (2) to show evidence of an attempt to commit the actus reus of abduction.

In a decision issued on October 27, 2015, a 5-1 majority of the Court of Appeals, applying the standard of review for challenges to the legal sufficiency of evidence, found that, viewing the evidence in the light most favorable to the prosecution, the trial judge as factfinder could reasonably conclude that all elements of attempted kidnapping were proven beyond a reasonable doubt.

With respect to intent, the Court found the circumstantial evidence at trial, which included testimony by the girl’s mother and admissible evidence of defendant’s prior conviction, sufficient to withstand the sufficiency of evidence challenge.

With respect to the actus reus attempt element, Denson argued that because the trial evidence showed that the girl never acquiesced to any of his offers, the evidence was legally insufficient to show that he came “dangerously near” to abducting her. The Court disagreed, stating that its case law focuses primarily on evidence of a defendant’s conduct, which in this case included defendant’s 30 to 40 offers to meet alone with the girl. The Court added that if it were to accept defendant’s argument, a kidnapping defendant “could never be guilty of attempt because the crime charged could not be completed without the acquiescence of the victim.” The Court held that “under the circumstances of this case, a rational factfinder could conclude that defendant had moved beyond mere preparation to the point that his conduct was potentially and immediately dangerous.”

In his dissent, Judge Eugene Pigott agreed with defendant’s argument that because the girl rejected defendant’s offer to accept the keys to his apartment, the evidence at trial was legally insufficient to support the attempted kidnapping conviction. Judge Pigott stated that although “defendant clearly engaged in alarming behavior with the child…his actions, even viewing them in a light most favorable to the People, did not come ‘dangerously close’ to attempted kidnapping.” In Judge Pigott’s view, appropriate recourse was for psychological treatment for the defendant, rather than incarceration.

Related Reading: