Author Archives: Larry Cunningham

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.

Appeal Waivers

I have a piece in tomorrow’s New York Journal arguing that waivers of the right to appeal serve a valid and important purpose in the criminal justice system.  Here is an excerpt:

The settlement of a case signifies the end—not the beginning or continuation—of litigation. This is true in both civil litigation and criminal cases. By pleading guilty, the accused is conceding that the People have the requisite proof beyond a reasonable doubt and that a trial is unnecessary. Typically, the relinquishment of trial-based rights is given in exchange for some benefit at sentencing. The parties have reached a mutual agreement, and the case should end.

Appellate litigation is not without costs. The indigent defendant is entitled to a court-appointed lawyer, the People must assign an assistant to write and argue a brief, and the intermediate appellate court must take the time to hear and decide the case. Doing all of this in the context of where the parties have come together to reach an agreement is a waste of resources for all sides and the court.

And so, it is no wonder that district attorneys and some judges insist on appeal waivers as part of guilty pleas. But the choice to accept or reject such a waiver always remains with the defendant, a point the Court of Appeals emphasized in People v. Seaberg, 74 N.Y.2d 1, 8-9 (1989), when it upheld the constitutionality of appeal waivers. People v. Batista, 2018 N.Y. Slip Op. 7445 (2d Dept. Nov. 7, 2018), reminds plea courts that they must not conflate appeal waivers with the litany of rights that a defendant gives up by pleading guilty.

Thus, it is immaterial whether such waivers are asked for “across-the-board”; an individual defendant is always free to reject it.

At a time when our courts—particularly our intermediate appellate courts—are stretched thin (see Andrew Denney, “NY Appeals Judges Say Trial Courts Should Act to Quell Appeal Waiver Challenges,” N.Y.L.J., Nov. 9, 2018 (noting the delays in the overburdened Second Department)), precious judicial resources should be reserved for those cases where there are meritorious arguments in live cases, not ones where the parties have concluded that litigation should end. If the defendant in a particular case disagrees, he or she should reject any plea offer that contains an appeal waiver, proceed to trial, and, if convicted, litigate an appeal, as is his or her constitutional right.

 

Rare AD2 Reversal for Factual Insufficiency

Under its factual review power, the Appellate Division sits as a “thirteenth juror” to determine whether the factfinder—the jury or, in a bench trial, the judge—was justified in finding the defendant guilty beyond a reasonable doubt.  This assessment does not permit the court to view the evidence in the light most favorable to the People, as is required in a legal sufficiency review.  Since the Court of Appeals can only review questions of law, “weight of the evidence” decisions cannot be reviewed by that higher court.

Recently, the Second Department reversed a conviction on weight of the evidence grounds—a rare move.  In People v. Herskovic (App. Div. 2d Dept. 10/10/2018), the court reversed the defendant’s conviction for Gang Assault 2º and related charges, which stemmed from a 2013 attack upon the victim by a group of 20 Hasidic Jewish men in Brooklyn. The victim was not able to identify the defendant as one of the attackers.  The victim and eyewitnesses also gave conflicting accounts of the attack.

The People relied principally on DNA recovered from the defendant’s sneaker, which one of the attackers had taken off of him and thrown on a roof.   However, the DNA sample was small (97.9 picograms, short of the 100.0 picograms needed for a traditional DNA analysis) and was a mixture of two or more individuals’ DNA.   A criminologist testified to a procedure that the Office of the Chief Medical Examiner had developed to analyze such small and mixed samples to determine a “likelihood ratio.”  However, even with these “tweaked” protocols, the court found the DNA evidence lacking:

The analysis also found that it was 133 times more likely that the DNA sample originated from the defendant and the complainant than from the complainant and an unknown unrelated person. The FST analysis of the DNA was based upon a Caucasian population, and failed to take into account the genetic history of the defendant, a member of the Hasidic population. Moreover, the likelihood ratio result was only 133, a relatively insubstantial number.

Based on the weak testimony and “less than convincing” DNA analysis, the court reversed on the facts.  As a result, the defendant may not be retried.  For more on this case, see this article from the New York Law Journal (subscription required).

Sufficiency of Accusatory Instrument Charging Patronizing a Prostitute 3º

A few days ago, the Court of Appeals reversed the Appellate Term’s decision dismissing an accusatory instrument as jurisdictionally defective.  At issue was whether the term “manual stimulation” in the context of Patronizing a Prostitute 3º was sufficient.

At the Appellate Term, the defendant argued, “the [term] ‘manual stimulation’ he sought could refer to a ‘foot rub, therapeutic massage, chiropractic adjustment, personal training – even an energetic match of thumb wrestling’.”

I think I’ll let the Court of Appeals’ opinion on this issue speak for itself:

The factual allegations that defendant requested “manual stimulation” from a woman on a street corner, for a specific sum of money, at 2:25 a.m., supplied “defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy” (People v Dreyden, 15 NY3d 100, 103 [2010]). Defendant’s argument that “manual stimulation” could be indicative of nonsexual conduct ignores the inferences of sexual activity to be drawn from the factual context in which the statement was alleged to have been made—a late night solicitation of a physical personal service from an individual on a public street, in exchange for a sum of money. Any assertion that defendant was referring to a nonsexual activity “was a matter to be raised as an evidentiary defense not by insistence that this information was jurisdictionally defective” (see Casey, 95 NY2d at 360). The fact that the instrument used a clinical phrase for the sexual activity alleged does not render the instrument jurisdictionally defective.

(LC).