Category Archives: Commentaries

New case on Rape Shield Law

In People v. Scott (Ct. App. 5/3/2011) (Jones, J.) (7-0), three 8th grade girls went to a party and then to another house, where they drank, smoked marijuana, and engaged in sexual activity.  One of them alleged that a male minor (Steven A.) and the Defendant, a 23-year-old male, had sex with her, the latter against her will.  The trial court agreed with the People that evidence of sexual contact with Steven A. was inadmissible under the Rape Shield Law unless the People introduced evidence about the victim's bruising.  In addition, the Defendant was prohibited from elicitng from another witness that the victim stated that she was crying because she had sex with Steven A.

The Court of Appeals ducked the question of whether the witness' statement was admissible notwithstanding the Rape Shield Law, since it was relevant to a defense and in the interests of justice to do so.  The court declined to address the issue because the Defendant was acquitted of Rape 1º—forcible rape.  Instead, he was convicted of Rape 2º—statutory rape, which does not require evidence of force or lack of consent. 

So let's continue where the court left off.  What if the Defendant had been convicted of forcible rape?  One could argue that the evidence of the other sexual encounter should have been admitted since it would have gone to rebut the implication that she was crying because she had been forcibly raped.  On the other hand, the question is not just whether the evidence was relevant to a defense but also whether it is in the interests of justice to admit it.  Here, the court must take into account the strong policy reasons behind the Rape Shield Law.  In addition, the People were permitted to introduce the victim's statement to one of the other girls that she did not want to have sex with Defendant.  She made the statement while exiting the bedroom where she was alone with the Defendant.  She came out crying and wearing only a bed sheet.  The helpfulness of the second statement, purporting to explain her crying as a result of her encounter with Steven A., is ultimately undercut by the first, where she is crying and speaking about the incident with the Defendant.  Ultimately, in balancing the various interests, the court could have concluded that it was not an abuse of discretion to exclude the evidence.  (LC)

Gravity knives and testilying

I have previous written and blogged about testilying—the phenomenon of some police officers committing perjury to further their cases.  The police who commit testilying view it as a small indiscretion serving a greater good, the conviction of a criminal.  Testilying often comes about in the Fourth Amendment/suppression hearing context, where the police officer need only mouth certain "magic words" that establish probable cause, reasonable suspicion, or some other lesser standard.

In People v. Brannon (Ct. App. 5/5/2011) (Pigott, J.) (6-1), the issue was whether, in two companion cases, the police officers established sufficient reasonable suspicion that the defendants had gravity knives.  The Court of Appeals held that reasonable suspicion in the gravity knife context requires specific facts that led the police officer to believe that the object was a gravity knife and not some other type of knife.  But, ordinarily, a person cannot tell if an object is a gravity knife unless it is opened.  The court responded:

Reasonable suspicion, however, does not require absolute certainty that the knife the individual is carrying is a gravity knife. Rather, the issue is whether, under the circumstances, the officer possessed specific and articulable facts from which he or she inferred that the defendant was carrying a gravity knife.

Using this standard, the court was able to distinguish the two cases.  In Brannon, while the officer saw the "hinged top of a closed knife" and saw the "outline" of a knife in his pocket, he was unable to testify that it was a pocket knife.  However, in Fernandez, the officer's testimony was that he saw the "head" of a knife and "based on his experience that gravity knives are commonly carried in a person's pocket, attached with a clip, with the 'head' protruding."

Judge Jones dissented from Fernandez but concurred in Brannon.  He noted a key problem with the court's articulated standard:

In my view, had the officer in Brannon merely testified that he believed a gravity knife, and not a pocketknife, was present, then the outcome in that case would have been different. Instead of requiring the police and the People to articulate a specific factual basis for reasonable suspicion justifying these stops, in these types of cases, prosecutors will now be encouraged to present police officers who can describe their training and experience with gravity knives, and testify that a gravity knife, and not a "typical pocket knife", was observed. Given the highly intrusive nature of these stops, the acceptance of these conclusory statements at Mapp/Dunaway hearings as a minimal basis for the admission of evidence poses a significant danger.


Necessity defense: Professor DeGirolami weighs in

My colleague, Professor Marc DeGirolami, posted on the Mirror of Justice blog a summary and critique of this week's decision in People v. Rodriguez (Ct. App. 3/24/2011) (Pigott, J.) (5-1-1).  The case involves the necessity/choice-of-evils defense.  The facts of the case are bizarre to say the least, but they raise an interesting question about when the defense should be available. (LC)

COA reduces Depraved Indifference Murder to Man 2º

In People v. Prindle (Ct. App. 2/22/2011) (4-3), the Defendant's trial for Depraved Indifference Murder occurred before Feingold overruled Register.  Thus, without objection, the trial court gave a Register-style charge to the jury.  The Court of Appeals, in a brief memorandum decision, passed on whether the Defendant's motion for trial order of dismissal adequately preserved his argument that the evidence was legally insufficient under Feingold.  Rather, applying the charge as actually given, the Court of Appeals concluded that the evidence was legally insufficient for Depraved Indifference Murder and reduced the conviction to Manslaughter 2º.  Using a cf. signal, the court distinguished People v. Gomez, 65 N.Y.2d 9 (1985).

The Defendant and a co-defendant were in the middle of stealing two snow plows when the police arrived on the scene.  The defendants sped off in a van.  During the chase, the Defendant, who was driving, collided the van with another vehicle; the passenger in that car died five days later from her injuries. 

Writing for a three-judge dissent, Judge Pigott noted the following facts as evidence that the Defendant's showed depraved indifference under Register:

  • he drove at a high rate of speed through a residential neighborhood;
  • he drove through several red lights;
  • he drove into the oncoming lane of traffic on numerous occasions;
  • he collided with a truck before hitting the victim's car two blocks later; and
  • after hitting the truck, he sped through two more lights and continued driving into oncoming traffic.

Judge Pigott concluded that this case was worse than the facts presented in Gomez.  In that case, the driver, going at a high rate of speed, killed two children after striking two cars a block before.  The Court of Appeals, in affirming the depraved indifference murder conviction in Gomez, emphasized two factors: the defendant's excessive speed and the failure to brake.   Judge Pigott noted the same factors were present in Prindle.

Perhaps the cases are distinguishable, however.  The passenger in Gomez pleaded with the defendant to stop after hitting the first child.  Yet, the defendant sped up and drove his car onto the opposite sidewalk where a crowd was standing.  In my view, it is these facts that are particularly indicative of indifference to human life; they show that he was particularly wicked and did not care about the lives of other people.  On the other hand, perhaps this is a Feingold analysis and I am not properly looking at the case through a Register lens.  Under Register, the People did not have to prove that the defendant's mental state was subjectively depraved. Instead, they only needed to assess "the degree of risk presented by defendant's reckless conduct."  The defendant's thought processes after causing the first death and hearing his passenger's pleading were not important in Prindle because only the objective circumstances of the crime (e.g., the excessive speed and failure to brake) mattered.  So, although the majority in Prindle said that it was applying a Register analysis, I wonder if, in fact, it was looking for evidence of a subjective mental state that it found missing.  Given that the majority wrote only a brief memorandum decision, it is difficult to tell what facts it found missing from the record. (LC)

Is 30.30 a speedy trial statute?

People v. Farkas (Ct. App. 2/22/2011) (Lippman, C.J.) (7-0) is a run-of-the-mill CPL § 30.30 case.  The Defendant was accused of stealing a photographer's camera and punching him in the face.  The initial charge, however, was only for Assault 3º and the People stated ready for trial.  More than a year alter, the Grand Jury indicted the Defendant for Robbery 1º and related charges.  The Court of Appeals held that the theft-rleated charges "directly derived" from the initial accusatory instrument and thus all of the time excludable for the Assault charges would apply to the new charges. 

What is interesting about the court's opinion is its use of the phrase "speedy trial."  Throughout the opinion, the court refers to CPL § 30.30 as a "speedy trial statute."  It is no such thing.  CPL § 30.30 does not guarantee that a defendant must be brought to trial within a specified period of time.  Instead, it requires that the People state their readiness for trial by a certain date.  The rule is directed at the People and does not impose any temporal obligation on a trial court to start a defendant's trial.

CPL § 30.20, not § 30.30, is New York's speedy trial statute.  It states only that "the defendant is entitled to a speedy trial."  Case law has established factors that courts will look to in deciding whether a trial has been speedily commenced or not.

The distinction is an important one.  Once the People declare their readiness, CPL § 30.30 is satisfied (unless they fall back into unreadiness).  Thus, in post-readiness, delays attributable to calendar backlog do not lead to dismissal or bail reduction under CPL § 30.30.  Rather, court delays implicate the true speedy trial statute, CPL § 30.20, whose "fuzzy" factors test is difficult to satisfy.

The Legislature did not help matters by captioning § 30.30 as "Speedy Trial; Time Limitations," which only contributes to the confusion about this statute.   Still, the Court of Appeals has itself noted the distinction between CPL § 30.20 and § 30.30 in various decisions and, thus, I was surprised by the Farkas decision's reference to CPL § 30.30 as a "speedy trial statute."  (LC)