Category Archives: Commentaries

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)

What is the “interest of justice” anyway?

"Interest of justice" is used in a couple of places in the CPL.  One is for a dismissal of an accusatory instrument at the trial level.  The test is well established and there is abundant case law explaining when a trial court should and should not grant a motion to dismiss in the interest of justice. 

There is another mention of the term in the CPL: Intermediate appellate courts (Appellate Division, Appellate Term, County Court)—but not the Court of Appeals except in death penalty cases—can reverse or modify a judgment in the interest of justice.  This allows the courts to reverse or modify for unpreserved questions and to reduce a sentence that is lawful but excessive.  Unfortunately, there is little guidance for courts to determine whether to exercise this discretion.

In a recent article, I explored the interplay of preservation and "interest of justice" jurisdiction.  I compare the federal and state standards and offer a test for courts to apply.  The article can be downloaded from my SSRN page.  (LC)

More thoughts on the Central Booking case

Last week, I blogged about People v. Osorio (NYC Crim. Ct. 6/21/2011) (Sciarrino, J.), in which the Criminal Court dismissed an accusatory instrument charging the Defendant with Promoting Prison Contraband 2º because Central Booking, which is operated by the police department, is not a "detention facility."  The Defendant was caught handing marijuana to another arrestee in Manhattan Central Booking. 

I am thinking that there was an alternative basis for dismissal.  Penal Law § 15.10 requires, for every crime, the commission of a "voluntary act" or a legally culpable omission.  Here, I think a strong argument could be made that there was not a voluntary act.  The People's theory for PPC 2º must have been that the Defendant "introduced" marijuana by bringing it into Central Booking.

But, importantly, the Defendant did not enter Central Booking voluntarily.  He was brought by the police.  While the underlying marijuana possession was illegal (no matter where it occurred), I do not think he could be charged with Promoting Prison Contraband—which depends on the possession being committed in a particular location—when the Defendant was forced into that location.  See Martin v. State, 31 Ala. App. 334 (1944) (police push drunk individual onto street and then arrest him for Public Intoxication; held, no voluntary act). 

(It is unclear from the accusatory instrument quoted in the court's opinion, but I read the opinion as saying that the Defendant was already in Central booking when the handoff occurred.  If this was not the case, and the Defendant was on the outside of the facility or holding pen, then my voluntariness argument would not prevail.)  (LC)

Thoughts on the culpable mental states … and depraved indifference

Crimes that are not strict liability offenses require a "culpable mental state."  According to Penal Law § 15.00(6), this term "means 'intentionally' or 'knowingly' or 'recklessly' or with 'criminal negligence,' as these terms are defined in section 15.05." 

How then, could, the Court of Appeals hold in People v. Feingold that depraved indifference is a culpable mental state?  This seems to contradict the plain meaning of § 15.00, which identifies four and only four culpable mental states.  Curiously, this issue is not raised anywhere in Feingold or in any of the cases leading up to it, except for Register, which Feingold of course overruled.  In Register, the majority held:

Further evidence that “recklessness” is the mens rea, and the only mens rea, of the crime is to be found in other sections of article 15. Section 15.05, which was intended to “limit and crystalize” the culpable mental states involved in the criminal law (see Hechtman, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law, § 15.05), includes recklessness as one of those culpable mental states but it does not list “depraved indifference”. Moreover, subdivision 1 of section 15.15 provides that when an offense requires a particular culpable mental state, such mental state is designated by use of the terms found in section 15.05. When only one culpable mental state appears in a statute defining an offense, section 15.15 directs that the mental state is presumed to apply to every element of the offense. The only culpable mental state found in section 125.25 which defines depraved mind murder is recklessness; it is defined in subdivision 3 of section 15.05 (which prohibits evidence of intoxication to negative it) and the statute prescribes that it apply to every element of the offense.

The Register dissent draws mainly on history to make the argument that depraved indifference is its own culpable mental state.  It addresse the majority's Penal Law §§ 15.05 and 15.15 argument by contending without citation to authority, that the four culpable mental states were not meant to be an "all inclusive list."  But this seems to be contradicted by the plain text of Penal law § 15.00(6), which says that the term means intentionally, knowingly, reckless, or criminal negligence.  The Legislature did not appear to leave room for the court to read in new culpable mental states. (LC)