Tagged: NYCA

May Decisions from the NY Court of Appeals

Several interesting criminal procedure decisions were handed down in May by the New York Court of Appeals:

People v. Stone2017 N.Y. Slip Op. 03559, 29 N.Y.3d 166 (May 4, 2017) (Court’s PDF) – Conviction affirmed where the defendant argued his right to confrontation was violated where a detective was permitted to testify that an unavailable witness had identified the defendant. The Court held that the trial court “eliminated any prejudice to defendant by striking the offending testimony from the record and instructing the jury to disregard the statements.”

People v. Bushey29 N.Y.3d 158, 53 N.Y.S.3d 604 (May 4, 2017) (Court’s PDF) – In this case, the Court held that a police officer may run a car’s license plate number through the government database without any suspicion of wrongdoing; that this does not constitute a search, and that any information obtained as result of such inquire may form probable cause for the police officer to stop the vehicle.

People v. Smalling, 29 N.Y.3d 981, 75 N.E.3d 665, 53 N.Y.S.3d 248 (May 2, 2017) (Court’s PDF) – In this case, the Court reversed a conviction and ordered a new trial where the trial court had agreed not to give a jury instruction on constructive possession but then ultimately did give such an instruction.

NYCA Addresses the Mode of Proceedings Error Doctrine

POST WRITTEN BYProf. 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 “mode of proceedings error” doctrine created by the NY Court of Appeals recognizes that some errors committed by a criminal trial court are so harmful to the integrity of the process that they are subject to appellate review even if defense counsel did not lodge an objection. The doctrine’s procedural safeguard is powerful because when it is held to apply, harmless error analysis is barred and the conviction must be reversed.

In a decision issued on June 7, 2016, the Court of Appeals had to determine whether a trial court committed such error when it accepted a jury’s guilty verdict on a charge of first-degree gang assault before the court had responded to certain notes from the jury requesting review of a court instruction and of testimony by a witness. On appeal, a divided panel of the Fourth Department found this to be a mode of proceedings error requiring reversal and a new trial. People v. Mack, 117 A.D. 3d 1450,  984 N.Y.S.2d 768 (App. Div. 4th Dep’t 2014). The People sought review by the Court of Appeals.

At issue was NY Criminal Procedure Law § 310.30’s requirement that a trial court receiving a note from a deliberating jury must provide counsel with notice of the content of the note and provide a meaningful response to the jury. Also at issue was the scope of the Court’s precedents in cases such as People v. O’Rama, 78 N.Y.2d 270, 579 N.E.2d 189, 574 N.Y.S.2d 159 (1991), in which the Court applied the mode of proceedings doctrine in the context of a court’s response or failure to respond to juror requests for further instruction.

In People v. Mack, it was undisputed that the trial court fulfilled its responsibility to inform counsel of the contents of the jury’s notes. The Court’s precedents also made clear that a court’s failure in that responsibility would constitute a mode of proceedings error. Six judges of the Court of Appeals considered that the issue presented was a new one: whether a mode of proceedings error was committed by a trial court that, although properly informing counsel of the content of jury notes, erred by not providing a response to the jury before accepting the verdict.

A 6-1 majority of the Court found against the defendant. The majority’s review of the Court’s precedents persuaded it that in the juror note context the mode of proceedings doctrine did not apply when, as in this case, defense counsel had sufficient notice, information, and opportunity to lodge an objection. In the majority’s view, the powerful force of the doctrine should not be deployed in such circumstances and where the thought of its applicability might provide perverse incentives to defense counsel to forego objecting.

Judge Rivera authored a forceful dissent. She disagreed with the majority’s statement that the issue presented was novel. In her view, a proper reading of the Court’s precedents indicated that the trial court committed a mode of proceedings error when it defaulted on its “core responsibility under CPL § 310.30” by accepting the jury’s verdict without first responding to its questions “or without alternatively asking the jurors whether they had withdrawn their requests.” With respect to the majority’s comment about perverse incentives, Judge Rivera argued that

[d]efendant’s preference or acquiescence is irrelevant because the duty [to comply with CPL § 310.30] works on the court, not the defendant.

Related Readings:

NYCA Addresses Interesting Mens Rea Question

Earlier this month, the New York Court of Appeals issued its decision in People v. Elliot Parrilla, in which the defendant was convicted of possession of a gravity knife under NY Penal Law § 265.02(1). That provision states that a person is guilty of criminal possession of a weapon in the third degree when

…[s]uch person commits the crime of criminal possession of a weapon in the fourth degree as defined in subdivision one…of section 265.01 and has been previously convicted of any crime.

NY Penal Law § 265.01 defines Criminal Possession of a Weapon in the Fourth Degree as follows:

A person is guilty of criminal possession of a weapon in the fourth degree when: (1) he or she possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or “Kung Fu star”; …

Both sides agreed that, to be convicted, the defendant had to knowingly possess a knife. The defense argued that the defendant also had to know that the knife he possessed was capable of being a “gravity knife.” The Court of Appeals held that he did not, and affirmed the conviction.

Interestingly, when the defendant was arrested he possessed a knife that he had bought at a large retail store in the Bronx  for use in his work as a contractor/ carpenter to cut sheet rock. He testified that on the day of his arrest, he had used the knife to cut tiles, but that he opened it with two hands and had never opened it with one hand by flicking his wrist, which is what makes a knife a gravity knife. The court charged the jury that it could convict the defendant if it found he knowingly possessed a knife, did not have to find that he knew it fit the “legal description of a gravity knife,” but had to find that it did in fact fit that description. Under NY Penal Law § 265.01(5) a gravity knife is

any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.

The Court did not engage in any extended analysis: it relied on the plain language of the statute to find an intent to criminalize possession of weapons that are per se particularly dangerous. It supported this holding by pointing out that knowledge of a firearm’s operability is not an element of criminal possession of a weapon.

Arguably, under the Model Penal Law, the result would be different. Since no mens rea is specified in the statute, the MPC would require that a conviction be based on evidence that the defendant intentionally, knowingly, or recklessly possessed a gravity knife, and it would apply not only to the possession element but to the attendant circumstance that what is possessed is a gravity knife.

Interestingly, again, this was one of the cases argued at Elisabeth Haub School of Law, when the Court of Appeals heard cases at the Judicial Institute. It was a fascinating argument, partly because of the fact that the knives had been legally sold by a major store chain until that chain agreed with the office of the NY County District Attorney to stop selling that item; partly because the defendant apparently did use the knife in his work, and partly because he was only arrested and charged with the weapon after he caused a ruckus with the police. Of course, those are the kinds of facts that you can learn from an oral argument or a trial, but that rarely make it into a written decision on a question of law.

Related Readings: