Author Archives: Larry Cunningham

People Successfully Defend Police Contact Under Level One of DeBour; Court Suppresses Under Higher Level

People v. Hill (Ct. App. 5/2/2019) is an interesting case that highlights an important point about the DeBour four levels of police-citizen interaction.

This case involved a run-of-the-mill “clean halls” stop in NYCHA housing. The defendant was seen repeatedly entering and exiting a public housing building. The police stopped him and asked for his identification, which he provided. An officer took the ID to the apartment that the defendant was supposedly visiting; the occupant did not know the defendant. The defendant was arrested for trespass. During a search incident to lawful arrest, the police found 42 bags of crack cocaine.

The defendant argued that this was a Level 3 intrusion and required reasonable suspicion, which was lacking. The People argued that it was a Level 1 request for information, which required only an objective, credible reason.

The Court of Appeals agreed that, at the inception, the encounter was justified under Level 1 of DeBour. However:

the record demonstrates that the encounter thereafter rose beyond a level-one request for information, which the People failed to justify as lawful. Consequently, the People have failed to preserve any argument that the encounter in this case was justified under levels two or three of DeBour.

If I am reading the Court’s opinion correctly, the People failed to argue in the alternative before the motion court that, even if this was a Level 3 encounter, it was justified by reasonable suspicion. From a preservation point-of-view, both sides should always argue in the alternative in case a court concludes that a different DeBour level applies than the party originally asserts. (LC)

Who Was the First Initial Deadly Aggressor?

When it occurred, the killing of Vonde Cabbagestalk drew a great deal of media attention, since the shooter was an off-duty New York City corrections officer. At issue in the case on appeal was whether the defendant was entitled to a justification charge. The trial court said no; the three-judge majority of the Appellate Division said yes. The Court of Appeals agreed today with the trial court, finding that the evidence showed that the defendant was the first initial deadly aggressor and, thus, not entitled to a justification charge. The case is People v. Brown (Ct. App. 5/7/2019) (Wilson, J.) (7-0).

One of the things I appreciate about this case is how methodical Judge Wilson undertakes his justification analysis. Justification is a tricky topic because it involves a great deal of “back and forth,” examining the conduct of the shooter and the deceased.

In Brown, it was undisputed that the defendant shot and killed the victim in the lobby of the defendant’s building after an argument. There were several witnesses, but only one saw the shooting. He saw the victim swing at the defendant but apparently miss. The defendant was holding a gun. The victim then “swiped” at the gun and said, “[I]f you going to pull a gun out, you got to use it.” The defendant did just that. He was then convicted of Manslaughter 1º after the jury acquitted on Murder 2º.

Judge Wilson’s analysis proceeded in a logical manner:

  • This was the use of deadly physical force. Therefore, to be entitled to a jury instruction on justification, there must be a reasonable view of the evidence that the defendant was confronted with deadly physical force and must not be the first initial aggressor of that force.
  • A person can be the first initial aggressor as to physical force but another can be the initial aggressor as to the deadly physical force. That is what happened here.
  • “To determine who the ‘initial aggressor’ is, then, both the sequence of the attacks (or imminently threatened attacks) and the nature of those attacks matter: which attacks were ‘physical force’ and which attacks were ‘deadly physical force?'”
  • The victim was unarmed.
  • The victim “swiped” at the gun only after the defendant first produced the firearm.
  • The victim and others made clear that it seemed that the defendant was going to use the gun.
  • Because the defendant drew the gun first and was the initial deadly aggressor, he was not entitled to the justification defense unless he retreated or the victim was the initial deadly aggressor.
  • There was no withdrawal (or communication of it, etc.).
  • The “swipe” at the gun did not constitute use or threat of deadly physical force and, in any event, occurred after the defendant first pulled out the gun. This left the defendant as the first initial deadly force aggressor.

(LC)

Conviction Overturned Where Trial Court Negotiated a Cooperation Agreement with a Co-Defendant

In New York, unlike other states and the federal system, trial judges and defendants may bypass the People and enter into plea negotiations directly. This is not uncommon. However, in People v. Towns (Ct. App. 5/7/2019), the Court of Appeals held that the trial court “abandoned the role of a neutral arbiter and assumed the function of an interested party” when it entered into a cooperation agreement with a co-defendant, which required that individual to testify against Towns in exchange for a more favorable sentence. The Court’s decision was unanimous, although Judge Rivera would have gone a step further and held that the trial judge showed actual bias.

The case was a simple, straightforward robbery, in which the issue was the identity of the perpetrators. The co-defendant implicated the defendant. His plea agreement with the judge called for a possible punishment of between 9 and 15 years; the judge, however, promised a sentence on the low end of the range if the co-defendant cooperated in the defendant’s case. At the defendant’s trial, the prosecution elicited that the co-defendant had not entered into a cooperation agreement with the district attorney’s office. The judge instructed the jury that the agreement was between the co-defendant and the court.

The Appellate Division criticized the trial court but upheld the conviction, finding that the court’s conduct did not deprive the defendant of a fair trial.

The Court of Appeals disagreed, analogizing to cases where judges made caustic remarks, called its own witnesses at trial, aggressively cross-examined witnesses, or acted as an appellate court in its own case. The focus, for the Court of Appeals, was the lack of neutrality that the judge showed. The Court was particularly troubled by the trial court’s statements tying its understanding of truthful testimony with the co-defendant’s prior statement:

Indeed, whatever its subjective intentions, the trial court effectively procured a witness in support of the prosecution by inducing the codefendant to testify concerning statements the codefendant made to police—which identified defendant as one of the robbers—in exchange for the promise of a more lenient sentence. Significantly, by tying its assessment of the truthfulness of the codefendant’s testimony to that individual’s prior statements to police, the trial court essentially directed the codefendant on how the codefendant must testify in order to receive the benefit of the bargain.

The case was remitted for trial before a different judge. (LC)

COA Orders a 440 Hearing – But Where is the Factual Dispute?

The Court of Appeals took the rare step of ordering a hearing on a defendant’s CPL § 440.10 motion. In People v. Brown (Ct. App. 5/2/2019) (6-1), the defendant and a co-defendant were found guilty of Depraved Indifference Murder and related charges. The defendant’s lawyer was hired to represent a third individual, who was present at the scene, on unrelated charges. The trial court was informed of the potential conflict of interest and conducted a Gomberg inquiry after appointing conflict counsel. The defendant waived any possible conflict of interest. The case proceeded to trial with the original attorney representing the defendant.

The defendant later apparently had a change of mind and brought a CPL § 440.10 motion, arguing he was deprived of effective assistance of counsel because his lawyer had a conflict of interest. Specifically, the defendant alleged that the third individual had actually paid the lawyer to represent the defendant. He stated that the conflict counsel only explained to him that his attorney would be prohibited from cross-examining the individual if he was called as a witness; the implications of the third individual paying for the attorney’s fees were not explained to him. However, the defendant had told the trial during the Gomberg inquiry that he or his family had hired the lawyer. There was no mention of the third individual doing so. The defendant did not provide an affidavit from his trial lawyer in connection with his 440 motion.

The Court of Appeals noted that there are two types of conflicts of interest: actual or potential, but that even some actual conflicts can be waived. Without identifying the factual issue in dispute, the Court said that the motion court erred in not holding a hearing:

On this record, we conclude that Supreme Court abused its discretion in determining that a hearing was not warranted to address the allegations contained in defendant’s CPL 440.10 motion regarding Chabrowe’s representation of defendant and whether any conflict of interest existed warranting reversal. 

Judge Stein, in dissent, pushed back. She noted that a motion court, in the first instance, must decide whether a 440 motion can be decided without a factual hearing. Quoting from People v. Chu-Joi, Judge Stein wrote, “[T]he court is not required to credit defendant’s evidence of fraud — particularly, his own, utterly unexplained, fraud on the trial court — that is self-serving and uncorroborated because the court does not have to accept every sworn allegation as true” (cleaned up). Here, the fraud upon the trial court was the defendant’s own statement during the Gomberg inquiry that he or his family had hired the attorney; there was no mention of the third individual doing so.

Ultimately, I am as perplexed as Judge Stein as to what factual issue the motion court is to decide. The defendant told the trial court that his lawyer was paid by him or his family and, in any event, he expressly waived any conflict of interest after consulting with conflict counsel. Where is the issue?

Underlying the majority’s decision may be justified annoyance in how the motion court handled the defendant’s CPL § 440.10 motion in the first instance. Quoting from the majority: “Supreme Court made no findings of fact or conclusions of law and denied the motion in a one sentence order, stating: ‘[d]efendant’s motion pursuant to CPL 440.10 is denied without a hearing for the reasons set forth at great length in the People’s opposing [papers].'” Appellate courts look with disfavor on trial court decisions that merely adopt one party’s briefs without further analysis. So perhaps what the Court of Appeals was looking for was some independent analysis and explanation of why the People’s position was correct. (LC)

Suazo: Where We Go From Here

Yesterday, the New York Court of Appeals held that, as a matter of federal constitutional law, a noncitizen has a right to a jury trial for a petty offense if he or she can show that the charged crime may result in deportation. The majority’s reasoning boils down to the following. A person has a right to a jury trial when he or she is facing a “serious crime,” which has mostly been measured by the potential length of the sentence; “seriousness” should also consider other types of consequences; and deportation or removal is one such type of serious consequence, thus requiring a jury trial on demand. In this post, I’ll analyze the Court’s decision and predict where we’re headed in this area.

Background

First, some background about the jury trial right under the U.S. Constitution and New York law.  Under the Sixth Amendment, there is a right to a jury trial for “serious” offenses but not for “petty” ones.  One bright-line rule in this regard is that if the potential punishment is six months or greater, the offense is “serious.”  However, the Supreme Court has also clarified that offenses that carry a maximum punishment of less than six months may still be “serious” (and carry a right to a jury trial) if other punishment render it so.  

In New York, CPL § 340.40 provides greater protections to defendants than under the Sixth Amendment.  In counties other than the five boroughs of New York City, there is a jury trial right for all misdemeanors, regardless of potential punishment.  However, under § 340.40(2), prosecutions in New York City of misdemeanors carrying potential punishments of six months or less—such as the one of Mr. Suazo—are tried to a judge only.  (One note: Class A misdemeanors carry a maximum punishment of one year in jail, and Class B misdemeanors carry a maximum punishment of three months in jail.  However, it is incorrect to read CPL § 340.40(2)’s bench trial trial rule as being limited to Class B misdemeanors only.  There are a handful of unclassified misdemeanors sprinkled throughout the law that carry punishments of between three and six months [see Penal Law § 55.10].) 

Suazo: The Facts

Saylor Suazo was charged with a number of domestic violence-related misdemeanors.  He was later accused of violating an order of protection that grew out of the earlier prosecution. The offenses occurred in The Bronx. Immediately before trial, the People moved to reduce the Class A misdemeanor charges to attempts, rendering them Class B charges, punishable by a maximum of three months in jail.  Under New York law, the case proceeded to trial without a jury. 

Suazo: The Holding

In addressing whether deportation or removal is an “additional penalty beyond incarceration” that elevates otherwise “petty” misdemeanors to “serious” offenses, the Court of Appeals concluded, “There can be no serious dispute that, if deemed a penalty for Sixth Amendment purposes, deportation or removal is a penalty of the utmost severity.”

The Court based this conclusion on the fact that deportation proceedings often involve pre-adjudication detention, which then leads to “lifelong banishment or exile” from the United States, a country that a person may consider home, and that deportation is often triggered under federal law by some state criminal conviction.  The Court rejected the People’s arguments that deportation is a civil, collateral consequence, not a penalty.  The Court relied principally on the Supreme Court’s decision in Padilla v. Kentucky, which held that defense attorneys must advise noncitizen defendants of the immigration consequences of guilty pleas.  And given the large increase in immigration enforcement proceedings since 1996, there is a ready “connection” between state criminal convictions and deportation.  The majority also noted that the Supreme Court has never held that collateral consequences cannot be considered as a factor in the Sixth Amendment jury trial right analysis. 

Returning to the facts, the Court held that at least one of the charges—Criminal Obstruction of Breathing or Blood Circulation (Penal Law § 121.11)—qualified as a deportable offense and, therefore, the defendant was entitled to a jury trial.

Suazo: The Dissents

There were two dissents.  Judge Garcia wrote that the Sixth Amendment jury trial right analysis should focus solely on the penalties imposed by the New York legislature for the specific offense at issue.  He called upon the Supreme Court to weigh in to settle the issue.  Judge Wilson dissented on the grounds that deportation has never been considered to be a criminal penalty.  Indeed, deportation proceedings themselves do not come with the right to a jury trial.  They are, instead, administrative proceedings.  He also noted that “the problems underlying this issue would vanish” if the Legislature were to amend CPL § 340.40(2) to remove the New York City exception.

Analysis

The dissents have the better argument here.  Courts have historically looked to the punishments imposed by the state legislature to determine if an offense is petty or serious.  Certainly one can imagine a situation where the jail penalty is low but some additional penalty (lifelong probation?) might elevate an offense to seriousness.  But the focus is always on the definition from the Legislature that applies to all persons accused of the crime.  The majority’s decision sets up a situation where certain defendants have greater constitutional rights than others who are charged with the same crime, all based on consequences imposed by another sovereign, the federal government.  

My fundamental disagreement with the Court is the following sentence: “There can be no serious dispute that, if deemed a penalty for Sixth Amendment purposes, deportation or removal is a penalty of the utmost severity.”  I do dispute the Court’s use of the term “penalty.”  Immigration proceedings are civil, not criminal, and what they impose—deportation or removal—is not a “penalty.”  If it were, there would be a right to a jury trial in deportation proceedings, which would have to be held before Article III judges, not employees of the Justice Department, a point made by Judge Wilson.

There are also some significant issues that will need to be sorted out in the future, such as the Equal Protection argument I raise below. 

Implications

  • This decision only impacts prosecutions in New York City.  Under CPL § 340.40, trials of all misdemeanors outside of the five boroughs must occur with a jury, unless waived by the defendant.
  • In addition, this decision only impacts those misdemeanors carrying the possibility of deportation.  However, federal immigration law is less than clear in some respects. However, the majority notes, “it is the defendant’s burden to overcome the presumption that the crime charged is petty and establish a Sixth Amendment right to a jury trial … . In the event the parties disagree as to the potential immigration consequences of a conviction, we are confident that our courts are competent to resolve such questions as they are presented.”
  • This decision may very well be bad news for many noncitizen defendants.  Now, after this decision, prosecutors will no longer have an incentive to amend accusatory instruments to drop the top charges to Class B misdemeanors. Noncitizens may now find themselves facing the original, Class A misdemeanors.  If convicted, they could end up serving more time in jail.  
  • Although I have no inside information, I suspect that the Bronx District Attorney will seek certiorari from the Supreme Court of the United States.  It would not surprise me if the petition was granted, since this case raises an interesting issue of federal law, and at least one other high court (the D.C. Court of Appeals) has reached the same holding as the New York Court of Appeals.  On the other hand, these decisions could be considered outliers, and the Court may very well chose not to take up the case and instead allow the issue to be litigated in other courts.  The Supreme Court is not a court for the correction of error, after all.
  • The defendant in this case only preserved a claim under the Sixth Amendment.  In the event the U.S. Supreme Court reverses, I fully expect that this issue will again be litigated under the New York Constitution, which is far more generous on civil liberties issues than its federal counterpart. 
  • I wonder if we should now expect citizen-defendants to bring Equal Protection Clause challenges to CPL § 340.40(2)’s New York City carve-out, arguing that Suazo impermissibly provides greater rights to noncitizens such that Suazo should simply be extended to all defendants.  Maybe there’s even a Privileges and Immunities Clause argument to be made?  (I have not done enough research in either doctrine to be able to opine one way or another — I just raise this as a potential issue for future litigation.)  In the text accompanying footnote 8, the Court leaves for another day “whether a citizen would likewise be entitled to a jury trial when charged with an otherwise deportable offense.”
  • The usual caveats about landmark decisions apply.  First, it applies only to cases in the direct appeal pipeline. Second, defendants who wish to take advantage of this ruling on appeal must have preserved the claim in the lower court; otherwise, they will have to rely on the Appellate Division’s interest-of-justice authority, and they will be out of luck when they get to the Court of Appeals, which can only hear questions of law (although query whether this is a mode of proceedings error). Third, the courts will have to wrestle with whether to make Suozo retroactive.  And, finally, this decision is going to be of little help to petitioners in federal habeas actions, given AEDPA deference.