Category Archives: N.Y. Court of Appeals

Credibility Determinations and Buford Inquiries

In People v. Kuzdzal (Ct. App. 5/8/2018) (DiFiore, C.J.) (4-1-1), defense counsel reported that a spectator—who was either the defendant’s girlfriend or friend—claimed that she heard two jurors referring to the defendant by a derogatory term (a “scumbag”) and that the same jurors laughed and made faces during the trial. However, there was an inconsistency as to when the alleged conversation took place; the spectator also changed her story. After questioning of the spectator, the trial court declined defense counsel’s request to make an inquiry of the jurors in question.

The Court of Appeals held that it was proper for the trial court to question the spectator first to ensure that “the jury proceedings were not ‘jeopardized by unauthorized invasions'” (quoting Remmer v. United States, 347 U.S. 227 [1954]).

The Court nevertheless emphasized the procedure set forth in People v. Buford, 69 N.Y.2d 290 (1987), for dealing with claims of juror misconduct:

We emphasize that our procedure set forth in Buford stands as the framework to evaluate sworn jurors who allegedly engaged in substantial misconduct preventing the rendering of an impartial verdict. Trial courts, when presented with some credible information indicating that a sworn juror may be grossly unqualified, must conduct a “probing and tactful inquiry” of the juror (see 69 NY2d at 299). However, if the trial judge determines, upon inquiry, that the allegation of misconduct is not credible, there is no reason to take the next step to address the nature of the alleged misconduct — whether it is premature deliberations, as in Mejias, or the preexisting bias of a juror. Unnecessarily confronting sworn jurors with unfounded, irrelevant, or incredible allegations of misconduct may impact the impartiality of the jury, and mandating such an intrusive procedure regardless of the particular circumstances of a case may only encourage untoward tactics intended to disrupt the proceedings. Accordingly, we must trust our trial courts to make the determination in the first instance as to whether to conduct an inquiry of a sworn juror. In so doing, a defendant’s right to an impartial verdict is properly balanced with the jury’s right to adjudicate “free from outside interference” (People v Rivera, 15 NY3d 207, 212 [2010]). Here, we conclude that the procedure followed by the trial court to first examine the spectator to ascertain the reliability of her allegation was not an abuse of discretion as a matter of law.

However, since the Appellate Division never exercised its factual review power to determine the “threshold issue” of whether the spectator was, in fact, incredible and, therefore, no Buford review was required, the Court remitted the case to that court for further proceedings.

Judge Wilson concurred with the result but would have analyzed the matter through the lens of “substantial misconduct” rather than “grossly unqualified to serve.”  See CPL 270.35.

Judge Rivera dissented.  First, she agreed with the Appellate Division that the lower court should have conducted a Buford inquiry of the jurors themselves. Second, she disagreed with the majority’s decision to remit the case to the Appellate Division for a factual review. Pointing to language from the Appellate Division’s opinion, Judge Rivera makes the case that the Appellate Division did consider the facts when reaching its decision that inquiry of the jurors was required. Judge Rivera also questioned what the Appellate Division is to do on remand, since it had concluded that there was “sufficient credible information before the trial court to require a Buford inquiry.”

This case illustrates the tough bind that trial courts are in when faced with claims of juror misconduct.  Make inquiry, and you risk disturbing the jury unnecessarily.  Don’t inquire, and the appellate courts will fault you for not following the proper procedure.  On balance, trial courts are wise to err on the side of inquiry, even if on a limited basis. (LC)

Identity Theft

In People v. Roberts (Ct. App. 5/3/2018) (Rivera, J.) (6-1), the Court of Appeals held that the statutory requirement that a defendant assume the identity of another person is not a separate element of the crime of identity theft, but merely introduces categories of conduct through which an identity may be assumed. Thus, a person is guilty of this relatively new crime (established in 2002) if he or she uses the personally identifying information of another.

The case was heard as a consolidated appeal from the conviction of two defendants, Kerri Roberts and Terrie J. Rush. Roberts was arrested after attempting to purchase $1,000 worth of merchandise from a sporting goods store in New York City using an American Express credit card printed with the name “Craig E. Jonathan.” Roberts also presented a New Jersey driver’s license bearing the same name, but featuring a photograph of Roberts himself. An investigation revealed that the credit card number had been issued to a person living near Buffalo, who had not given Roberts permission to use her card, and that Craig E. Jonathan was an entirely fictitious person. Roberts was charged with one count of Identity Theft in the Second Degree and two counts of Criminal Possession of a Forged Instrument in the Second Degree.  Roberts moved to dismiss the identity theft count on the grounds that he was pretending to be Craig E. Jonathan, not the credit card account holder. The trial court rejected Roberts’ motion and he was convicted on all counts. Roberts appealed, and the Appellate Division, First Department vacated Roberts’ Identity Theft conviction and dismissed that count of the indictment, but otherwise affirmed. The First Department reasoned that mere use of personal identifying information, such as a credit card number, is insufficient in and of itself to establish the crime of identity theft. The Court held that the People must prove both that the defendant used personal identifying information and assumed the victim’s identity. Since Roberts assumed the identity of the fictitious Craig E. Jonathan, rather than the identity of the credit card account holder, that element of the crime of identity theft was not satisfied.

Likewise, Rush was convicted based on her involvement in a scheme in which she deposited stolen and forged checks in a bank account opened under the name of an uninvolved third-party, without that person’s knowledge or permission, from which the funds were later withdrawn. The victim’s signature was forged on the back of each check deposited into the account, and the deposit slips listed the victim’s name and the unauthorized bank account number. Rush was convicted of one count of Identity Theft in the Second Degree and one count of Criminal Possession of a Forged Instrument in the Second Degree. Rush appealed, and the Appellate Division, Fourth Department, unanimously affirmed Rush’s conviction, holding that Rush’s use of the victim’s name and bank account number established that she assumed his identity within the meaning of the statute. Contrary to the First Department, the Fourth Department held that assuming the identity of another person is not a separate and discrete element that must be proved.

The relevant statute states that a person is guilty of First- and Second-Degree Identity Theft “when [such person] knowingly and with intent to defraud assumes the identity of another person by presenting [himself or herself] as that other person, or by acting as that other person or by using personal identifying information of that other person, and thereby . . . commits or attempts to commit [a felony]” (Penal Law §§ 190.79 [3]; 190.80 [3]).

The Court of Appeals pointed out that the Penal Law broadly defines “personal identifying information” to include the type of data commonly used in transacting commercial matters such as a “person’s name; address; telephone number; social security number; checking, savings, debit card, or credit card account number or code; signature,” or “any other name, number, code or information that may be used alone or in conjunction with other such information to assume the identity of another person” (Penal Law § 190.77 [1]).

The Court of Appeals focused on the statutory text in reaching its conclusion that actually assuming the identity of another is not a separate element that must be proven to support a conviction for identity theft. The Court reasoned that, because the statute says a person must “assume the identity of another person by presenting [themselves] as that other person, or by acting as that other person or by using personal identifying information of that other person,” the statutory text expressly defines the types of conduct by which a person assumes the identity of another (emphasis added). Therefore, because any of the statutorily enumerated types of conduct are ways in which an identity can be assumed, assuming the identity of another is not a separate and distinct element of the crime. Essentially, the majority concluded that use of personal identifying information, without more, establishes that a defendant assumed another person’s identity, provided the requisite mens rea is present.

The Court also rejected the defendants’ argument that the rule of lenity should apply in this case. The Court found that the statute was clear and that the overall legislative scheme and supporting legislative history confirm the clarity of the statutory language. The Court also rejected the argument that a split between the First and Fourth Departments is indicative of inherent ambiguity in the statute.

Judge Wilson wrote a spirited, separate opinion, concurring in part and dissenting in part. Judge Wilson concurred in the Court’s affirmance of defendant Rush’s conviction, but dissented from the Court’s reversal reinstating defendant Roberts’. (BJD/LC)

Breathalyzer Results After Two Hours; An Issue of Consent

Oftentimes, when individuals refuse to submit to a breathalyzer test, there are consequences they must be warned of by police. However, these consequences are not absolute. In People v. Odum (Ct. App. 5/3/2018) (Stein, J.) (5-2), the Court of Appeals held that because the breathalyzer test was not administered pursuant to Vehicle and Traffic Law § 1194, and the defendant’s consent to take the test was not voluntary, the results of the test were properly suppressed.

The defendant in this case was arrested on multiple charges, including operating a motor vehicle while under the influence of alcohol. More than two hours after his arrest, he was asked by police to submit to a breathalyzer test. When defendant said no, he was given “refusal warnings” as set forth in Vehicle and Traffic Law § 1194. In pertinent part, these warnings indicate that if defendant refuses to submit to breathalyzer testing, his driver’s license would be revoked, whether or not he was guilty, and his refusal would be entered into evidence against him in any trial proceedings from the arrest. Following these warnings, the defendant agreed to take the breathalyzer test.

At the threshold, the Court of Appeals held that because the breathalyzer test was not performed within two hours of the defendant’s arrest, and the requirements necessary to obtain a court order pursuant to the Vehicle and Traffic Laws were not met, the tests results were not admissible under the statutory scheme. The Court then proceeded to an analysis developed in People v. Atkins, which states that the test results may still be admissible if the defendant voluntarily consented to take the test because the two hour limitation has no application when the defendant expressly consents to the test.  At issue in this case was whether the warnings given for refusal to consent were legally accurate, and thus, whether the defendant’s consent was indeed voluntary.

The Court noted that pursuant to Vehicle and Traffic Law § 1194 (2)(f), evidence of refusal to take a breathalyzer test is admissible. There is no time limit expressly enunciated in this provision. However, the Court of Appeals focused on the language of Vehicle and Traffic Law § 1194(2)(a), because § 1194 (2)(f) refers back to this section, which authorizes the chemical test. Vehicle and Traffic Law § 1194(2)(a) provides in turn that a defendant is deemed to have given consent to a chemical breath test so long as the test is administered within two hours after such person has been placed under arrest for driving while intoxicated.

Therefore, the Court of Appeals held that “because the warnings given to defendant were at least partially inaccurate — i.e., as to the admissibility at trial of his refusal to submit to testing — the courts below properly suppressed the results of the breathalyzer test on the ground that defendant’s consent to take the test was involuntary.”

Chief Judge DiFiore dissented because she believed that the only holding consistent with precedent, the purpose of the statute, and the record before the court is that the statutory two-hour rule has no applicability to the refusal warnings provided to a motorist who consents to a breath test. (JC/LC)

Summary affirmance of reversal on 4th Amendment grounds

Yesterday, the Court of Appeals summarily affirmed the Appellate Division's reversal of the conviction in People v. Williams (Ct. App. 9/13/2011).  The intermediate appellate court had found that the Defendant was arrested without probable.  Although the Court of Appeals noted that "different conclusions may not have been unreasonable," there was nevertheless evidence in the record to support the Appellate Division's decision.  That foreclosed further review by the Court of Appeals, since probable cause is a mixed question of law and fact. (LC)

Special prosecutor can immunize a witness

In People v. Abrams (Ct. App. 6/14/2011), a unanimous Court of Appeals held that a special prosecutor has the same authority as a District Attorney to seek immunity for a witness.  The Defendant was accused of firing a gunshot at his estranged wife.  A special prosecutor was appointed because the newly elected DA had represented the Defendant on either pending or previous charges.  The victim informed the special prosecutor that she intended to invoke her Fifth Amendment privilege against self-incrimination if called to testify.  The concern was that her trial testimony was going to differ materially from her testimony before the Grand Jury.  The special prosecutor granted immunity from perjury after consulting with the elected DA and receiving his "permission."  Defendant objected, citing the conflict of interest of the DA.

Special prosecutors have the same powers of district attorneys during the appointment period.  Any prosecutor has the power to seek immunity and County Court is empowered to grant it.  Ipso facto, a special prosecutor can seek immunity for a witness.

The wrinkle here is that the special prosecutor consulted with the elected DA.  The court did not find a problem with this, holding:

He conferred with the district attorney merely to confirm that he was empowered to grant immunity to a witness, and that the district attorney would honor the grant. In short, the district attorney's "permission" did not vest the special prosecutor with any more authority than he already enjoyed. As the Appellate Division observed, the record does not suggest that the district attorney shared confidential information with the special prosecutor, or that he prompted or influenced the special prosecutor's decision to immunize Tiffany from prosecution.