Tagged: NY Court of Appeals

NY Court of Appeals Decision on Evidence of Prior Bad Acts

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.

Federal and state law demand careful scrutiny of a prosecutor’s attempt to introduce evidence of a defendant’s bad acts committed prior to, and unrelated to, the crime charged. Such scrutiny is necessary because of the danger that the prior bad act will be taken as proving the defendant guilty of the crime charged, simply because of defendant’s purported propensity to commit crime, thus taking attention away from the evidence relating to the specific charge under consideration. Caution regarding prior bad act evidence is especially necessary in jury trials, but the law imposes cautionary rules even when the fact finder is a judge.

The New York Court of Appeals has confronted this issue many times and did so again recently in People v. Denson. In this case, the prosecution pursued charges against a man who made repeated attempts to meet with a ten-year old girl who lived in an apartment in a building in which the defendant worked. These attempts included defendant’s offer to provide the girl with the keys to his apartment; this offer, and all defendant’s other offers to meet – made on at least thirty occasions – were rejected by the girl.

The prosecutor obtained a grand jury indictment against the defendant on charges of attempted kidnapping in the second degree under N.Y. Penal Law §§ 110.00 and 135.20, and endangering the welfare of a child under N.Y. Penal Law § 260.10(1). To support the intent element of the attempted kidnapping charge, the prosecutor sought to introduce evidence of defendant’s 1978 sodomy conviction relating to sexual abuse of his stepdaughter. The prosecution’s theory was that because the victim of the prior case and the potential victim in the case at hand were both young girls and because the prior case involved sexual abuse, the evidence of defendant’s prior conviction was probative to show that he intended to abduct the girl in the case at hand for similar sexual abuse.

Upon the trial judge’s initial rejection of this evidence, the prosecution renewed its request through a hearing in which it presented expert testimony in support of the theory that defendant’s actions in the prior case and in the case at hand showed a pattern of criminal conduct with criminal intention against young girls. The defense provided testimony of its own expert in rebuttal. After the hearing, the judge admitted the evidence of the 1978 conviction, finding it probative evidence of intent, which the law allows as an exception to the rule against evidence of prior bad acts.

After trial in which, among other testimony, both experts testified, the judge, as fact finder in this nonjury trial, convicted the defendant on both charges. On appeal to the Appellate Division, First Department, the convictions were affirmed by a divided vote.

In a decision issued on October 27, 2015, a 5-1 majority of the New York Court of Appeals affirmed the convictions, concluding that the trial court did not abuse its discretion by considering evidence of defendant’s prior conviction. The majority considered that the judge had reason to find this evidence as probative for the issue of defendant’s intent and that such evidence outweighed the danger of prejudice based on propensity.

Judge Eugene Pigott dissented. In his view, the trial court abused its discretion in considering the 1978 sex crime conviction because in the case at hand “no sex crime was involved or charged.” Judge Pigott added that the prior conviction could not be “relevant to show that defendant intended to kidnap the child, as his prior conviction did not include any kidnaping.”

Related Reading:

The NY Court of Appeals Issues a Difficult Decision on Personhood

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.

Does New York’s Penal Law subject a pregnant woman to a manslaughter charge for the death of her child if, while driving a vehicle recklessly, she causes a collision that injures her fetus and as a result of these injuries, her child dies days after being delivered?

As noted here previously, the New York Court of Appeals was confronted with this question this year in a case arising from a May 2008 car accident in which a woman, Jennifer Jorgensen, while driving in Suffolk County, swerved out of her lane and crashed into a vehicle traveling in the opposing lane. Two people in the other vehicle were killed, and Jorgensen’s child, after delivery through emergency caesarian section, died six days later from injuries suffered in utero from the accident.

Suffolk County prosecutors pursued three manslaughter counts against Jorgensen for recklessly causing the death of the two people whose vehicle she struck and for the death of her child. A jury found Jorgensen not guilty on the counts relating to the people in the other vehicle but convicted her on the count relating to her child. Jorgensen appealed her conviction on that count.

The NY Court of Appeals’ review of this matter was not about sufficiency of the evidence considered by the jury. Rather, all judges agreed that the issue on appeal involved a question of statutory interpretation.

In a decision issued on October 22, 2015, Judge Eugene Pigott, writing for a 5-1 majority, framed the issue as follows: “did the legislature, through its enactment of [the relevant] statutory provisions, intend to hold pregnant women criminally responsible for engaging in reckless conduct against themselves and their unborn fetuses, such that they should be subject to criminal liability for prenatal conduct that results in postnatal death?”

Upon review of Penal Law §§ 125.15(1) addressing reckless manslaughter and 125.05(1) defining personhood as relating to homicide, the majority decided that the answer to the above question is NO. Given the unusual facts and issues in this case of first impression, the majority dismissed the count in question and stated that criminal liability for a case such as this “should be clearly defined by the legislature, not the courts;” nor should it “be left to the whim of a prosecutor.”

Judge Fahey in his dissent insisted that the wording of the statutes in question showed the legislature’s intent to criminalize an act such as that involved in this case. In support, he pointed to Appellate Division case law on related issues finding homicide liability based on acts committed against a pregnant woman that caused the death of the child after being born alive.

The majority opinion resolved this case in the defendant’s favor, based on the current statutory scheme. The court’s resolution suggests that the legislature could amend its statutes to provide a different outcome in the future, should an unusual case like this arise again. Whether the legislature will do so is an open question. Consideration would need to be given to the tragic circumstances in cases such as this one.

Related Readings:

NY Court of Appeals Confronts a Tragic Case on Personhood

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 September 8, 2015, the N.Y. Court of Appeals heard oral arguments in People v. Jorgensen, in which Jennifer Jorgensen is appealing her second-degree manslaughter conviction for recklessly causing the death of her daughter, who died as a result of a head-on car collision in May 2008, allegedly caused by Jorgensen’s reckless driving.

At the time of the accident, the victim at issue was in the seventh or eighth month of gestation in Jorgensen’s womb. As stated in the case summary, “Jorgensen’s baby was delivered alive by emergency Caesarean section less than two hours after the accident, but died six days later.”

In June 2009, the Suffolk County Prosecutor indicted Jorgensen on several charges, including the manslaughter charge relating to the death of her child. The first trial ended with a hung jury. In the second trial, the defendant was only convicted on the charge of manslaughter for the death of her daughter and the sentence of three to nine years in prison was imposed. The Appellate Division Second Department affirmed the manslaughter conviction.

As set out by N.Y. Penal Law § 125.00, “Homicide means conduct which causes the death of a person or an unborn child with which a female has been pregnant for more than twenty-four weeks under circumstances constituting murder, manslaughter in the first [or second] degree, criminally negligent homicide, abortion in the first degree or self-abortion in the first degree.” Penal Law § 125.05(1) adds that “‘[p]erson,’ when referring to the victim of a homicide, means a human being who has been born and is alive.”

This is indeed a very sad and tragic case. Jorgensen argues that her manslaughter conviction was contrary to law because her daughter had not been born (and so was not a “person”) at the time she (Jorgensen) allegedly engaged in reckless conduct. She adds that she consented to the Caesarean section in an effort to save her baby’s life. The Prosecutor is arguing that because Jorgensen’s daughter was born alive, the child was a person under the law and Jorgensen must bear criminal responsibility for recklessly causing her death.

Related Readings:

NY Court of Appeals Decides to Review 440.10 Summary Denials

In one of its last decisions of 2014, the Court of Appeals held that it will begin reviewing the Appellate Division’s summary denials of CPL 440.10(1)(g) motions.  The Court had held in People v. Crimmins, 38 N.Y.2d 407, 409 (1974) that

[t]he power to review a discretionary order denying a motion to vacate judgement upon the ground of newly discovered evidence ceases at the Appellate Division.

For nearly 40 years, the Crimmins decision kept the Court of Appeals from reviewing and determining whether such denials constituted “abuse of discretion.” People v. Jones, No. 14-219, ___ N.E.3d ___, 2014 N.Y. Slip Op. 08760, 2 (Dec. 16, 2014). In Jones, this Court overruled itself and explained that “the rule enunciated in Crimmins has needlessly restricted this Court’s power of review concerning CPL 440.10(1)(g) motions….”

In Jones, the Court held that the Appellate Division abused its discretion in summarily denying a defendant’s motion for an evidentiary hearing as part of his efforts to vacate his conviction on the ground of newly discovered evidence, pursuant to CPL 440.10(1)(g). Mr. Jones claimed that newly discovered DNA evidence would exclude him as the perpetrator of crimes of which he was convicted in 1981.  This decision signals a step in the right direction for the NY judiciary trying to grapple with evidence, like DNA, that may not have been available at the time of trial.

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)