Category Archives: Commentaries

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)

Gay/Trans Panic Defense

Eric Lesh, the executive director of LeGaL, the LGBT Bar Association of New York, and James Castle, of Cozen O’Connor, have an article in today’s New York Law Journal calling on the Legislature to pass proposed legislation to outlaw the “gay and trans ‘panic defense,” which they summarize as, “a blame-shifting strategy upon which those accused of LGBT murder think they can rely in order to rally the anti-LGBT biases of judges and juries and mitigate their perceived culpability.”  Essentially, the accused uses the sexual orientation or gender identity of the victim as a “reasonable explanation or excuse” to establish extreme emotional disturbance, dropping a Murder charge down to Manslaughter.

Lesh and Castle argue: Continue reading

Reversal for right to public trial violation

In a very brief opinion, the First Department reversed the conviction in People v. Gray (1st Dept. 8/18/2011) because the trial court ordered the complete closure of the courtroom during the undercover's testimony.  The Defendant requested that certain family members be allowed to stay, but the court summarily rejected the request without comment.  Of particular concern to the First Department was that "the record does not otherwise show that the court considered whether there existed any reasonable accommodations that would have protected the public nature of the criminal proceedings."  The court reiterated that "trial courts are required to consider alternatives to closure even when they are not offered by the parties."  

The lesson for trial courts and for prosecutors is to make a proper record that explicitly considers alternatives to complete closure.  (LC)

Is mere presence at a crime scene itself a crime?

As every first year law student knows, mere presence at the scene of a crime is not sufficient to impose criminal liability on a defendant.  The actus reus requirement mandates that a person do something (or fail to comply with a duty imposed by law) or affirmatively aid and abet someone else in the commission of a crime.  

As we blogged about last week, new increased penalties have taken effect for Knowing Presence at an Animal Fight, N.Y. Agriculture and Markets Law § 355(5).  What was previously a violation is now a Class B misdemeanor.  It criminalizes: "[t]he knowing  presence  as  a  spectator  at  any  place  where  an  exhibition of animal fighting is being conducted."  It is, to my knowledge, the only crime on the books in New York that runs counter to the rule that mere presence is not a crime.  (The only other offense I can think of is Trespass, but even that statute requires an affirmative act of entering or remaining unlawfully.)

That is not to say that the statute is unconstitutional.  The "mere presence" rule comes from case law interpreting the actus reus and accomplice liability statutes.  The Legislature is free, I suppose, to make mere presence a crime under circumstances as it sees fit.  Here, punishing and, thus, deterring the audience to animal fighting is an important part of shutting down animal fighting rings.  Without an audience betting on and cheering on the fight, promoters of the fight will have little to gain.  (LC)

Rethinking Criminal Law on the bar exam

Last week, thousands of aspiring lawyers took the bar exam.  In New York, Criminal Law and Criminal Procedure are tested on both the Multistate Bar Exam and state portions of the bar exam.  Including these subjects on the "New York day" makes perfect sense to me.

The MBE is a different matter altogether.  The MBE is a six hour, 200 multiple choice question exam that is administered in most states.  Both questions and their answers are developed by the National Conference of Bar Examiners.  "The questions on the examination are designed to be answered by applying fundamental legal principles rather than local case or statutory law," says the NCBE.  What are the fundamental legal principles that apply to Criminal Law?  Most bar takers are taught to look to the common law, Model Penal Code, and modern statutory developments to ascertain these principles.

But this is unrealistic and unworkable.  Putting aside Criminal Procedure, which does have a core set of U.S. Supreme Court decisions that make up its framework, there is no such thing as "fundamental legal principles" in Criminal Law.  Very few states still have a common law approach to the subject.  Nearly every state's Criminal Law is governed by the "local case or statutory law" that the MBE rejects.  Common law, MPC, and modern statutory developments often conflict with one another.

There are some things that states' "local case or statutory law" have in common—mens rea, actus reus, causation, and other general principles.  But even with these broad categories, the details are so numerous and varied that it is difficult just to ascertain which rules most states follow.  The NCBE "subject matter outline" for Criminal Law is not much help.  It is a half page long.  Students, bar prep companies, and others are left guessing which rules are applicable and which ones are not majority rules.

In my view, Criminal Law should be tested solely on the state portion of the bar exam.  (LC)