Tagged: NY CPL 330.30

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.”

Cases:

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

Impeaching Arresting Police Officers

In this primer, the author offers observations on successful strategies for impeaching an arresting police officer when your client claims innocence.

By Steve Cobb, Pace Law School Class of 2014

Nothing is more commonplace than a criminal defendant who claims  to be innocent.  But what can be done when it appears that the arresting officer’s testimony is in fact incorrect or false?  Criminal defense lawyers face a significant disadvantage when they seek to  discredit arresting officers.  Nonetheless, it can be done.  Here is a three-step approach that may be helpful.

STEP ONE: OBTAIN FAVORABLE POLICE TESTIMONY:  In order to expose false testimony, the arresting officers should be subjected to cross examination early in the case, when their memories are still fresh and they have not had a chance to be prepared by the prosecutor.  Preliminary hearings, suppression hearings, or refusal hearings give the defense attorney a good opportunity to acquire information and lock the arresting officer(s) into their testimony.  What we are looking for here are inconsistencies in the testimony, from the witness himself and between the witnesses if there are more than one.

The purpose of the pre-trial examination is not to make the officer look like a liar, but rather to gather information and find the truth.  Thus, direct or open ended questions should be used instead of leading ones, so that the witness can fully describe what happened in his own words.  Avoid arguing, and make a sincere effort to get complete testimony on the record.  If you are patient and courteous, you may be amazed at how readily the false testimony seems to reveal itself.  Remember Lieutenant Columbo?  He was an excellent interrogator – friendly, but very knowledgeable, and tenacious.    And effective!

I found a good resource in the Wisconsin Public Defender’s office, Cross Examining Police Officers and Agents:  Who’s in Control Now?   Here, the author mentions:

  1. Take away the police officer’s edge by being more familiar with the facts than he is – review the materials and visit the crime scene, if necessary.
  2. Try to establish that some element of the offense is missing.
  3. Force the police officer to commit to his/her version of events.

Once the (hopefully contradicting) testimony has been obtained, you may move for suppression or dismissal.  Should the judge deny your motion for pre-trial relief, as is likely, you may now go to trial.

STEP TWO: TRIAL.  The goal here is to highlight the inconsistencies in the police officer testimony.  Perhaps the testimony is self-contradictory or it contradicts the testimony of another officer.  You may also, as suggested by the Wisconsin Public Defender, try to establish that an essential element of the charge is missing.  When the prosecutor rests, you can move to dismiss the charges based on “legally insufficient evidence” pursuant to CPL 290.10.   Should that motion be denied, then move on and present your case.  In the event that you lose the trial, move on to Step Three, a pre-sentencing motion to set aside the verdict.

STEP THREE:  330.30 MOTION TO THE TRIAL COURT:  Now you can make use of all the inconsistent testimony you obtained!  Under CPL 330.30, a trial court has only limited authority to set aside a verdict (and dismiss the criminal charges), but one of the permissible grounds is that the conviction was based on “legally insufficient evidence,” that is, testimony that is “incredible as a matter of law.”  Pursuant to the statute, and People v. Carthrens, 171 A.D.2d 387 (1991), a trial court may not reverse a conviction based on the weight of the evidence, but it may set aside the verdict if the testimonial evidence was so contradictory and so insufficient that a rational jury could not have found, in any way, that the elements of the offense were proved beyond a reasonable doubt.

Obviously, the standard of proof required to win this motion is very high, and of the sixteen cases I researched involving a motion made on these grounds, only one of them People v. Quinones, succeeded.  There is also case law holding that a challenge based on insufficiency of evidence will not work where there is more than one prosecution witness.  See, e.g., People v. Ledwon,  46 N.E. 1046 (N.Y. 1897), People v. Delamota, 960 N.E.2d 383 (N.Y. 2011).

Will this approach work?  Well, it can’t hurt, and should the trial court deny your request for relief, at least you have established a good foundation from which to make a “weight of the evidence” argument to the Appellate Division after the conviction.

Related Readings: