Tagged: evidence

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.

NY Court of Appeals Addresses the Scope of the Exigent Circumstances Doctrine

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 Fourth Amendment’s protection against “unreasonable searches and seizures” requires the police to obtain a warrant prior to searching someone’s person, house, papers, or effects for evidence of a crime, subject to certain exceptions that courts have acknowledged. A major exception is that warrantless searches and seizures are constitutionally permissible when required by “exigent circumstances.” While this exception is well recognized, courts are frequently confronted with cases in which the scope of this exception is an issue.

In 2012, New York’s Second Department Appellate Division was confronted with an appeal in People v. Jenkins in which New York City police officers, while on patrol, heard gunshots coming from the rooftop of an apartment building. Upon entering the building, the officers observed a man holding a firearm who then fled into one of the apartments in the building, along with another man. When no occupant of the apartment responded to the officers’ request to open the apartment’s locked door, the officers entered after breaking down the door with a sledgehammer.

The officers’ forcible and warrantless entry into the apartment and seizure of the two men was, given the circumstances observed by the officers, justified under the exigent circumstances exception. At issue in the case was further action by the officers in seizing and searching a silver box in which they found the gun that had been fired, which they had not otherwise been able to find on either of the men or in plain view.

The Second Department, reversing the lower court’s suppression decision, held that the exigent circumstances that justified the officers’ entry into the apartment and seizure of the suspects extended as well to justify the search of the silver box.

In a unanimous opinion issued on October 16, 2014, the New York Court of Appeals reversed. The Court of Appeals noted that by the time the officers seized and searched the silver box, they had already handcuffed the men, so there was no danger that the defendant would destroy or dispose of the gun. Nor was there any urgency for further searches to protect the officers or any of the other occupants of the apartment against harm. Therefore, any search of the silver box would have required a warrant.

Source:

  • People v. Jenkins, 100 A.D.3d, 954 N.Y.S.2d 183 (App. Div. 2d Dep’t 2012), rev’d, 2014 Slip. Op. No. 148 (N.Y. Oct. 16, 2014).

Scrutinizing Verdicts

Two recent events overlap to raise a question about rendering of verdicts after trial. In Warger v. Schauers, the US Supreme Court recently heard oral argument about whether a civil plaintiff can move for a new trial based on information about something that occurred during jury deliberations that ended in a defendant’s verdict. The case raises the seemingly settled question about whether  the courts and the public and the parties can have access to information about what happens in a jury room during deliberations. The current answer is a resounding no, and, based on press and opinion, the Supreme Court does not seem likely to change that.

In Warger, the plaintiff sought to rely on information that the forewoman had stated during deliberations that her daughter had been at fault in an auto accident and that her life would have been ruined if she had been sued. Apparently, the forewoman had made no mention of this during voir dire. The plaintiff relied on this information to seek a new trial, arguing that the forewoman had been dishonest and should not have been seated on the jury. The lower courts have refused to rely on this information because it violates the total privacy given to jury deliberations in the United States (absent a third-party influence into the jury room).

In contrast  to this total prohibition against scrutiny of deliberations we have the reading, on worldwide television, of the verdict in the Oscar Pistorius trial. Not only was the verdict rendered in public; according to South African law the judge who rendered it (with the help of two appointed assessors) gave all of her reasons for the verdict, including resolution of credibility questions, the drawing or rejection of inferences, and the like.

So these two cases are a study in contrasts. Is it necessary to close our eyes to improprieties in the jury room – if indeed they occur – in order to secure the right to a traditional lay jury? Do we have to give up the judgment of lay jurors to learn the reasons why a jury resolves a case the way it does? Food for thought.

TODAY – Cell Phone Searches after Riley: Investigative and Evidentiary

Pace Criminal Justice Institute is co-hosting a CLE TODAY – Tuesday, October 7, 2014 at 6:00 pm – 8:30 pm titled Cell Phone Searches after Riley: Investigative and Evidentiary, in the Law Library Moot Court Room, at Pace Law School, White Plains, NY.

Join the panel of speakers including Professors David Bender, David Dorfman, and Bennett Gershman, Bronx A.D.A. and ’88 alumni Thomas Kapp, and Town of Greenburgh Chief of Police and ’06 alumni Chris McNerney as they discuss the implications of the United States Supreme Court decision Riley v. California, No. 13-132, 13-212, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). In Riley, the Court consolidated two criminal appeals that both involved a defendant challenging the admissibility of evidence found during police officers’ warrantless search of data stored on the defendant’s cell phone.

Attendees can earn up to 2.5 CLE skills credit. We look forward to seeing you there!

The Jonathan Fleming Case: Investigation of Wrongful Conviction

With an interesting perspective on the problem of wrongful convictions, the investigators, Kim Anklin and Bob Rahn, tell the story of how they helped uncover and produce the evidence that established a wrongful conviction in Brooklyn. Take a moment to read the full article about the Jonathan Fleming case, written by one of the investigators.

Kim Anklin, The Investigation of a Wrongful Conviction: The Jonathan Fleming Case.