Tagged: Penal Law § 265.15(4)

NY Court of Appeals Addresses Another Statutory Presumption

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.

New York State has codified several evidentiary presumptions authorizing courts to instruct a jury that it may infer a fact necessary for an element of a crime charged from supporting facts that the jury finds the prosecution has proved beyond a reasonable doubt. In conformance with federal due process requirements, the inferences to be drawn are not mandatory but permissive. This means that based on the evidence – including any facts adduced by the defense during cross-examination or rebuttal – the jury may, but is not required to, draw an inference that the element has been established.

Such presumptions are potentially decisive for a defendant’s fate and should be carefully considered by the courts. Prior to submitting a case to the jury, trial courts must decide whether the evidence presented was sufficient to instruct the jury on a statutory presumption. Subsequently, appellate courts often are tasked with reviewing whether such an instruction, if given and may have determined the jury’s guilty verdict on the related charge, was improper and constituted an error requiring reversal of the conviction on that charge.

As discussed earlier, in June of this year the NY Court of Appeals, in a 5-2 decision, upheld a 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, where the conviction on this charge was based on an evidentiary presumption under Penal Law § 265.15(4) stating that “[t]he possession by any person of any … weapon … is presumptive evidence of intent to use the same unlawfully against another.” As noted previously, the Court did not fully address a possible constitutional issue regarding the application of the presumption in that case because the issue was not raised on appeal.

Recently the Court of Appeals heard People v. Kims, Slip. Op. 07196 (N.Y. Oct. 23, 2014) that, among other issues, involved the applicability of another statutory presumption. Penal Law § 220.25(2) provides, in summary, that the presence of certain controlled substances in open view in a non-public room under circumstances evincing an intent to prepare such substances for sale is “presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance ….”

The permissive inference allowed by section 220.25(2) has come to be termed the “drug factory” presumption. The New York State Legislature enacted this presumption in 1971 to aid prosecutors in proving a possession charge in circumstances where police did not find a controlled substance on the person of a defendant at the time the defendant was arrested. The presumption nevertheless permits a jury to find “constructive possession” in circumstances where the defendant is in “close proximity” to other facts regarding controlled substances mentioned in the statute.

Presumption in section 220.25(2) applies to any person in close proximity to a controlled substance in the circumstances set forth and is similar to presumption in section 265.15(4) that assigns criminal responsibility for any person in a vehicle in which a firearm is found. The presumptive criminal responsibility extended in these sections to a broad scope of persons provides prosecutors with plea-bargaining opportunities to turn associated persons against one another.

In People v. Kims, the Court of Appeals focused on the fact that the defendant was apprehended by police after exiting his apartment, in which police subsequently found controlled substances and was not trying to avoid arrest by fleeing the location. Under these circumstances, the Court agreed with the Fourth Department’s decision that the defendant, when apprehended, was not in “close proximity” to the controlled substances.

Accordingly, the Court unanimously affirmed the Appellate Division Fourth Department’s decision holding that the trial court erred when instructing the jury on Penal Law § 220.25(2)’s presumption. Relying on its previous decision in People v. Martinez, 628 N.E.2d 1320 (N.Y. 1993), the Court reasoned that in this case the trial court’s error in instructing the jury was not harmless because the jury’s verdict was based on the constructive possession inference. The Court affirmed the Fourth Department’s reversal of the convictions based on the presumption and ordered retrial on these charges, while affirming the defendant’s conviction on other charges.

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.