Tagged: firearms

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.

References:

Federal Judge Recommends Reform of Plea-Bargaining Process

Federal District Judge Jed S. Rakoff has a long-standing reputation for being an honest, open-minded, and fair jurist when presiding over criminal cases.   He has continually shown the courage to address some of the most profound issues within our criminal justice system, and has always taken the “high road” in doing so.  Many criminal defense practitioners have lauded Judge Rakoff’s judicial wisdom as well as his “no-nonsense” attitude when dealing with prosecutors that play fast-and-loose with their ethical obligation to disclose favorable evidence.

According to Professor Peter Widulski of Pace Law School, who once served as a law clerk for Judge Rakoff:

Judge Rakoff is one of the most brilliant and respected members of the federal bench. He is a man of the highest integrity, and his dedication to the law is a model for all jurists and lawyers. This dedication is manifested not only in his work on the bench but in the extensive teaching he has done for many years at Columbia Law School.

Recently, Judge Rakoff has proposed innovative changes to help reform the plea-bargaining process. He suggested a new process whereby magistrate judges would hear evidence and issue plea bargaining recommendations  pre-trial. Such proceedings would allow both the prosecution and defense an opportunity to present relevant facts, and to weigh-in on the evidence likely to be presented by the government at a trial.

Judge Rakoff explained that such a process would bring “plea bargaining from behind closed doors and relieve pressure on the defendants deciding whether to risk a longer sentence by heading to trial.”  He also noted that judges should become more involved in the process to protect defendants from feeling bullied into pleading guilty and help prevent overzealous prosecutors from using mandatory minimum sentences as a coercive bargaining chip.

Judge Rakoff estimates that from 1% to 8% of the prison population may be the result of false guilty pleas. He notes that the “current process is totally different from what the founding fathers had in mind.”  He explained that more needs to be done to protect innocent people from coerced pleas –as “even 0.5% [of false pleas] would total more than 10,000 [innocent] people” in prison.

In 2009, Judge Rakoff was also outspoken about sentencing inequities created by mandatory minimums for firearm offenses. In Unites States v. Ballard, Judge Rakoff refused to submit to the government’s request to impose a Guideline range sentence on non-gun counts, and to stack consecutive mandatory sentences for each firearm conviction on the defendant’s armed robbery counts. He noted that the case did not warrant the 64-year sentence advocated by the prosecution and refused to become a party to such an “unconscionable result.” He found that the imposition of a one-month sentence for the non-firearm counts was proper given the two consecutive 25-year sentences required under 18 U.S.C. § 924(c).

Judge Rakoff explained that the case was illustrative of the distorting effects of mandatory minimum sentences, given that a co-defendant was given a plea bargain excluding mandatory minimums, and obtained a sentence of 168 months in prison. He observed that the extreme sentencing disparity between the co-defendants was simply a result of one exercising his constitutional right to go to trial –while the other defendant did not. He noted that

[w]hen the letter of the law so far departs from justice as to become the instrument of brutality, common sense should call a halt.

In 2006, Judge Rakoff also took a courageous stance against the disproportional sentencing recommendations that may occasionally arise in a case under the Sentencing Guidelines.  In United States v. Adelson, Judge Rakoff imposed a non-guideline sentence of 42 months imprisonment to a defendant convicted of conspiracy, securities fraud, and the three of the false filing counts -although the Government argued that the Sentencing Guidelines, if properly calculated, called for a sentence of life imprisonment.

Judge Rakoff noted that what the case “exposed, more broadly, was the utter travesty of justice that sometimes results from the guidelines’ fetish with abstract arithmetic, as well as the harm that guideline calculations can visit on human beings if not cabined by common sense.” He concluded that “[t]his is one of those cases in which calculations under the Sentencing Guidelines lead to a result so patently unreasonable as to require the Court to place greater emphasis on other sentencing factors to derive a sentence that comports with federal law.”

It is to be hoped that all members of the Bar will rally behind Judge Rakoff to help facilitate reform to correct the injustices caused by the combination of our plea-bargaining process and harsh mandatory minimum sentencing.

A true leader of his time, “Judge Rakoff enjoys well-deserved admiration for fairness, and he has the courage and insight to address important issues of law and the administration of justice, without fear or favor” said Professor Widulski.

Related Readings:

New York State Passes Gun Control Laws

BY: PCJC

Today, the New York legislature overwhelmingly enacted tough new gun control measures that would broadly ban all assault weapons, limit the size of gun magazines to 7 bullets, impose background checks for all gun sales, and require mental health professionals to alert authorities to persons with mental illnesses who are believed to have guns. Other provisions in the bill add new gun crimes, increase punishments for gun-related offenses, and protect the privacy of gun owners.

The legislation, known as the Secure Ammunition and Firearms Enforcement Act (NY – SAFE), is the first enactment by an state of new and tougher gun laws following the massacre in Sandy Hook elementary school the killed twenty children and 6 school staff. Here is the full text of the bill.

Related Readings:

Sweeping Limits on Guns Become Law in New York by Thomas Kaplan (New York Times, Jan. 2013)
Community View: Gun owners have a responsibility by Bennett L. Gershman (Dec. 28, 2012)
Editorial: Experts Discuss Future of Gun Laws, Mental-Health Treatment (Dec. 20, 2012)
Editorial Spotlight Replay: Panel Discusses Next Steps After Newtown (Dec. 19, 2012)
Editorial Spotlight: Panel to Discuss Next Steps After Newtown (Dec. 18, 2012)