Author Archives: Larry Cunningham

The Importance of Juror Conduct: How Not Following Instructions Can Impact A Post-Trial Verdict

When jurors communicate with third parties about the case in which they are hearing, it can adversely impact the trial by prejudicing the defendant. In People v. Neulander (4th Dept. 6/29/2018), one juror’s misconduct impacted the defendant’s rights and resulted in a new trial.

The defendant in this case was convicted by a jury of Murder 2º of his wife and Tampering with Physical Evidence.

The defendant contended that his conviction should be set aside on grounds of juror misconduct. Under CPL 330.30(2), the verdict may be set aside for juror misconduct if the misconduct may have affected a substantial right of the defendant, and it was not known to the defendant prior to the verdict. The defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion.

The defendant established during his CPL 330.30(2) hearing that a juror engaged in text messaging with third parties about the trial, including receiving a text from her father saying: Continue reading

Robles and Article 78

One other point worth mentioning about Robles is footnote 5, where the majority states, “We do not address whether Robles could have pursued relief by commencing a CPLR article 78 proceeding, ‘from which an appeal to this Court might ultimately have been taken’ (Newsday, 3 NY3d at 652).”  That’s a very interesting issue.  Would Article 78 be available to pursue relief?  I suppose the respondent would be the JSC who denied the motion to quash, and the basis would be CPLR 7803(3) or (4).

But there’s a problem with that approach.  CPLR 7801(2) states: “Except where otherwise provided by law, a proceeding under this article shall not be used to challenge a determination: … which was made in a civil action or criminal matter.” So that there is not an otherwise appeal process (CPLR 7801(1)) if of no moment if the decision is part of a civil or criminal action, which the Court in Robles says that it is.  The key language, though, is the last clause of CPLR 7801(2): “unless it is an order summarily punishing a contempt committed in the presence of the court.” If the reporter is held in summary contempt for refusing to testify, then an Article 78 proceeding can be commenced.

The question then is the nature of such contempt proceedings.  At least one authority takes the position that “[a]n order of contempt is not summarily granted and is not subject to review under Article 78 where it is made after due warning upon a record adequate for judicial review and with an opportunity for the contemnor to purge him- or herself of the contempt.” 6 N.Y. Jur. 2d Article 78 § 47 (citing Hunter v. Murray, 130 A.D.2d 836 [3d Dept. 1987] [“Accordingly, the court possessed the jurisdiction, power and discretion to hold petitioner in criminal contempt (Judiciary Law § 751), and since petitioner had available to him full judicial review of the record of proceedings finding him in contempt through normal avenues of appellate review, relief under CPLR article 78 is not available (see, Matter of Morgenthau v. Roberts, 65 N.Y.2d 749, 492 N.Y.S.2d 21, 481 N.E.2d 561; Matter of Legal Aid Society of Sullivan County v. Scheinman, 53 N.Y.2d 12, 439 N.Y.S.2d 882, 422 N.E.2d 542). Petitioner’s argument of the applicability of the provisions of CPLR 7801(2) is without merit, since the order of contempt herein was not “summarily” granted, but made after due warning upon a record adequate for appellate review and with an opportunity to purge himself of the contempt.”]).

I haven’t dug too deeply into this aspect of Article 78, but I suspect we will see this issue further developed the next time a report unsuccessfully moves to quash a subpoena. (LC)

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)

Gravity knife law upheld by CA2 against facial challenge

In Copeland v. Vance (2d Cir. 6/22/2018) (Katzmann, C.J.) (3-0), a unanimous panel of the Second Circuit upheld New York’s ban on gravity knives—and the “wrist flick” test to determine whether a knife falls under the statute—against a facial challenge.

Plaintiffs claimed that New York’s gravity knife statute, Penal Law §§ 265.01(1) and 265.00(5), was void for vagueness because “ordinary people cannot reliably identify legal knives.”  The statute defines a gravity knife as “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.”

Initially, the court had to decide whether the plaintiffs had brought an “as-applied” or “facial” challenge, since that would determine the test to be applied. Continue reading

Refusal to permit summations results in overturned verdict

In a bench trial, the court may not prohibit summations if the judgment will result in jail time.  Doing so is a violation of the Sixth Amendment’s right to counsel.  In People v. Harris (Ct. App. 6/26/2018) (7-0), the defendant was tried for a Class B misdemeanor with the court as trier of fact.  However, the judge announced at the close of the evidence that it would exercise its “prerogative” not to hear summations.  The court immediately rendered a verdict finding the defendant guilty of the charge and sentencing him to 90 days in jail.

First, the Court of Appeals held that the claim was reviewable on appeal even though no objection was taken to the court’s ruling.  The manner in which the trial judge proceeded “deprived defense counsel of a practical ability to timely and meaningfully object to the court’s ruling of law.”  Thus, the Appellate Term erred in holding that the claim was unpreserved.

On the merits, the Court held that the failure to permit summations deprived the defendant of his Sixth Amendment right to counsel, since his attorney was not able to be heard.  New York’s former CPL § 320.20(3)(c), which gave trial courts the discretion not hear summations on nonjury indictments, was ruled unconstitutional in Herring v. New York, 422 U.S. 853 (1975).

The Court’s ruling in Harris came with two important caveats:

Our analysis is limited to the facts in this case and we do not address the constitutionality of the statute as applied to other nonjury trials that may not involve a deprivation of liberty. Similarly, defendant never argued that the denial of an opportunity to deliver summations violated his statutory right to counsel (see CPL 170.10).

Overall, Harris is a straightforward case with clear implications for future cases. (LC)