Some Further Thoughts on Tiger

Earlier today, Paul Tsenesidis posted about People v. Tiger, where the Court of Appeals held that a freestanding actual innocence claim without any further constitutional basis, such as IAC or Brady, could not be used to vacate a judgment that was obtained by guilty plea.

Professor Bonventre (Albany Law School) posted an analysis of Tiger on his blog shortly after it came out. I agree with much of what he wrote but disagree with this portion of his post:

It’s not that the statute in question (CPL 440.10) actually says that. Or that the statute cannot be interpreted to allow an actual innocence challenge. No, the majority chose to adopt that interpretation. … So why did the Court choose to reject the availability of an actual innocence challenge? Strangely–and this is cause for at least as much concern as the Court’s decision itself–the majority relied in large measure on Supreme Court precedents.

I read Tiger differently.  I saw it as a statutory interpretation case, not a constitutional one.  Most of the majority’s analysis was focused on the statutes, particularly the differences in plain language between 440.10(1)(h), (1)(g), and (1)(g-1), which together showed that the Legislature had a clear purpose in treating judgments obtained by guilty plea versus trial verdict differently. (Still, the majority’s argument would have been stronger if it had expressly come out to say that its decision was on constraint of the statute and that the Legislature was free to provide relief in these types of situations if it so chooses.)

That said, Professor Bonventre’s point is that the statute does provide relief: CPL § 440.10(1)(h), which states that judgments obtained in violation of constitutional rights are subject to vacatur.  The argument is that the state Constitution provides for such a basis. Thus, citation to federal cases is inapposite.  The New York Court of Appeals has a long tradition of interpreting the New York Constitution as going further than its federal counterpart.  Yet the majority does not engage with those cases or principles.  (On the other hand, most of those cases are in the search/seizure and right to counsel areas, which do not have bearing on a procedural issue.)  If I read Professor Bonventre’s post correctly, he is arguing that the state constitutional issue is properly before the Court—and needed to be addressed—via CPL § 440.10(1)(h).

Still, I come back to the plain language of the statute.  CPL § 440.10(1)(h) permits vacatur if the judgment was obtained in violation of a defendant’s state or federal constitutional right.  The key word in the statute is “obtained.”  In an actual innocence case, the judgment was not “obtained” by some unconstitutional practice. It was obtained by the defendant’s consent to entry of judgment. After all, a person who maintains his or her innocence is allowed to enter into a contractual bargain with the State for a reduced sentence.  See North Carolina v. Alford, 400 U.S. 25 (1970).  Again, to Professor Bonventre’s point, Alford is a federal case, but the principle in Alford has been upheld in New York courts as well. See, e.g.People v. Couser, 28 N.Y.3d 368 (2017). So in a roundabout way, perhaps the Tiger majority did engage state constitutional law in its analysis.

And maybe this is to say that there isn’t much daylight between Professor Bonventre’s position and mine after all.

At the end of the day, the ball is now in the Legislature’s court.  I wonder what the odds are of the Legislature taking up such a meaty criminal justice issue?  (LC)

Free-Standing Actual Innocence Claims and Guilty Pleas

In People v. Tiger, (Ct. App. 6/15/2018) (DiFiore, C.J.) (4-1-2), the Court of Appeals held that claims of actual innocence can not be brought under CPL 440.10(1)(h) after a defendant voluntarily pleads guilty.

This case involved a licensed practical nurse and caregiver who was charged with various crimes after she allegedly burned a disabled 10-year-old girl while bathing her. Following the incident, there was confusion as to whether the girl’s injuries were skin conditions caused by an allergic reaction to her medication or if they were in fact caused by scalding water. After plea negotiations, the defendant pleaded guilty to endangering the welfare of a vulnerable elderly person or an incompetent or physically disabled person in the first degree. During the plea colloquy, the defendant affirmed that “she was pleading guilty because she was, in fact, guilty.” Following the guilty plea, the family of the injured girl filed a civil lawsuit against Ms. Tiger. Based on the conflicting medical evidence as to the source of the girl’s injuries, the civil jury found that the nurse’s actions were not a substantial factor in causing the girl’s injuries but found instead that the injuries in question were caused by an allergic reaction to her medication.

At around the same time as the civil trial, the defendant moved to vacate the judgment under CPL 440.10(1)(h), relying on People v. Hamilton. CPL 440.10 (1) (h) allows a defendant to move to vacate where the judgment was obtained in violation of a defendant’s constitutional right. In Hamilton, the Second Department allowed for a free-standing actual innocence claim to be brought pursuant to 440.10(1)(h). The People opposed defendant’s motion, arguing Hamilton’s holding was limited to situations where a defendant was found guilty after trial, and therefore did not apply to guilty pleas which were voluntarily entered into by defendants. Continue reading

Trustworthiness of Statements Against Penal Interest: How Far Should Courts Inquire?

In People v. Thibodeau (Ct. App. 6/14/18) (4-3), the defendant was convicted in 1995 of Kidnapping 1º after an 18-year-old convenience store clerk disappeared. At trial, the evidence provided that the missing clerk rang up the defendant’s brother for a pack of cigarettes just minutes before she disappeared. Eyewitness testimony also provided an account of two men and a women in the parking lot of the store near a “whitish blue van.” Other incriminating testimony offered at trial included self-declared admissions by the defendant to his inmates, including that the clerk was “killed with his shovel and mutilated.” Nineteen years later, the defendant moved to vacate his conviction because of newly discovered evidence, namely third-party admissions of three men in connection with the clerk’s disappearance.

The lower court found the new evidence lacking; it found that the third-party admissions to be inadmissible hearsay. The Appellate Division affirmed, with one dissenting Justice who granted the defendant leave to further appeal. The Court of Appeals considered whether the defendant’s motion was improperly denied by analyzing the newly admitted evidence standard.  A split 4-3 Court held that the motion was properly denied.

Continue reading

The Necessity of Preservation for Appeal

While defendants may appeal certain rulings that took place during a trial, these issues must have been preserved properly for appeal. In People v. Bailey (Ct. App. 6/14/2018) (Rivera, J.) (6-1), the Court of Appeals held that in order to object to a trial court’s lack of inquiry following an outburst into a juror’s impartiality, the defendant must preserve the objection. Additionally, the Court found that testimony about gang customs and practices was not excessive.

This case stemmed from a trial in which defendant and two inmates were being prosecuted for assault of another inmate when they were all incarcerated at Manhattan Detention Complex. During the trial, defendant’s counsel sought to elicit statements that supported defendant’s theory that his assault was to protect himself after the complainant started a fight due to a codefendant using a racially derogatory term in his direction. On cross-examination, the defendant’s attorney asked if one of the codefendants provoked him and called him an “old n*****.” When complainant said he was not provoked and did not remember if that particular phrase was used, counsel persisted. Continue reading

Intent to Cause Serious Physical Injury Does Not Preclude Finding of Depraved Indifference

In People v. Wilson (Ct. App. 6/14/2018) (Garcia, J.), the Court of Appeals held that evidence of the defendant’s sustained assaults against his girlfriend over a period of two months, resulting in broken bones, brain injury, and permanent cognitive impairment, was sufficient to support a conviction for depraved indifference assault (Penal Law § 120.10[3]).

The defendant moved in with the victim in January 2011 shortly after meeting her and shortly thereafter began subjecting her to regular, severe physical violence. In August 2011, she suffered a burst blood clot on her ear and visited the hospital, where the doctor noted signs of previous trauma, including bruises that had healed abnormally. In September 2011, the defendant spoke with the victim’s mother and told her the victim was “acting possessed” and “banging her head against the wall.” The victim’s mother cleverly suggested her daughter receive a spiritual blessing with the aim of using the ceremony as a way to check on her daughter. Defendant also spoke with a friend around this time who heard moaning in the background over the phone and told defendant to take the victim to the hospital. Continue reading