Category Archives: N.Y. Court of Appeals

Harmless Error Saves Conviction

In People v. Martin (Ct. App. 3/28/2019), the Court held that even if there was error in allowing the defendant’s statements into evidence under the pedigree exception to Miranda, it was harmless error and would not warrant reversal. Continue reading

The Futility of Cross-Examinations in a World Where Past Recollections Recorded Are Admitted

In People v. Tapia (Ct. App. 4/2/19), the Court held that a testifying witness’s prior Grand Jury testimony was properly admitted as a past recollection recorded to supplement his trial testimony.

A police officer had testified, before the Grand Jury, as to the events of a violent altercation. However, at the time of trial, this officer, who had retired from law enforcement, revealed that the could not independently recall the details of the altercation. So, the People sought to have his prior Grand Jury Testimony admitted as a past recollection recorded. Defense counsel objected, claiming that such an admission would violate the Defendant’s Sixth Amendment right to confrontation since the officer would not be subject to cross-examination due to his lack of memory regarding the incident. Simultaneously, the Defendant requested a missing witness charge in the event that the officer would not take the stand. Considering these two rather contradictory arguments, the trial court found that the officer was available for confrontation as “[h]e is literally subject to cross-examination by being on the witness stand under oath and passed to [the defendant] as a witness for cross[-]examination.” The officer, therefore, testified at trial and read portions of his prior grand jury testimony into the record. On cross-examination, the officer admitted that he could not swear that he reviewed the court reporter’s transcript of his testimony for accuracy before the trial. The jury, considering all of the evidence presented, then convicted the Defendant of Attempted Assault 1°.

In considering the defendant’s appeal, the Court considered the basic requirements in admitting a past recollection recorded:

1) the witness must have observed the matter recorded; 2) the recollection must have been fairly fresh at the time when it was recorded; 3) the witness must currently be able to testify that the record is a correct representation of his or her knowledge and recollection at the time it was made; and 4) the witness must lack sufficient present recollection of the information recorded.

The Court determined that the trial court had not abused its discretion, and that the People properly satisfied all the requirements in the admission of the past recollection recorded in the case. During his direct examination, the officer stated that he testified truthfully before the Grand Jury, and since that testimony took place merely a few days after the alleged incident, his recollection of the altercation was fresh. The officer’s statement on cross-examination as to the court reporter’s accuracy was meritless in the eyes of the court – the court reporter certified the Grand Jury transcript as a true and accurate record of the testimony. The Defendant’s Confrontation Clause argument was similarly fruitless – after all, the purpose of the Confrontation Clause is to provide the Defendant to confront the witness “in a face-to-face encounter before the trier of fact,” which in fact happened here. Therefore, the Confrontation was not violated in this case, since the officer testified in court “even if [his] memory was faulty.” The trier of fact in this case was afforded the opportunity to assess the witness’s credence and reliability, based on his testimony during the trial itself and his grand jury testimony.

The dissent stressed that the admission of the officer’s grand jury testimony violated both CPL 670.10 and the Court’s prior decision in People v. Green. Judge Wilson, writing for the dissent, emphasized that the officer’s Grand Jury testimony had not been subject to cross-examination, and therefore, it was not “subject to vigorous truth testing.” As such, the “majority’s decision [took] a large step towards reinstating the very procedures the common law deemed illegitimate: trial by declaration or affidavit.” The majority’s decision, in fact, has the potential of setting dangerous precedent in which a defendant will no longer have the opportunity to challenge a witness’s recollection of events. Since the prosecution may admit testimony and evidence that was not subject to cross-examination, a witness with faulty memory will rely solely on what is written in the minutes or sworn affidavit. Therefore, the defendant will no longer be able to “confront” the witness, but rather will be left to “address” a document that the witness reads from in front of the fact-finder. In the case of this defendant, in particular, the dissent was largely concerned with the lack of evidence to convict the defendant of Attempted Assault 1°.

Event Tickets Create a Legal Right Under New York Penal Law

In People v. Watts (Ct. App. 11/20/2018) (Fahey, J.), the Court of Appeals considered the issue of whether an event ticket, such as a concert or sporting event ticket, affects a legal right, interest, obligation, or status within the meaning of Penal Law § 170.10 (1). The Court held that it does.

Defendant Rodney Watts was indicted on multiple counts of Criminal Possession of a Forged Instrument 2º for selling counterfeit concert tickets. Watts moved to dismiss the indictment, contending that a counterfeit concert ticket falls outside of the Forgery 2º statute and, therefore, the Criminal Possession of a Forged Instrument 2º statute, because a concert ticket does not “affect a legal right, interest, obligation or status” under the statute. Additionally, Watts argued that the catchall clause of Penal Law § 170.10(1) must be read to contemplate only documents of the same character as a “deed, will, codicil, contract, assignment, commercial instrument, [or] credit card.” Watts argued that concert tickets are not any of these. The trial court denied Watts’ motion.

Watts was subsequently arrested and indicted again but this time for possession of counterfeit sporting event tickets. His motion to dismiss on the same grounds as before were similarly denied by the trial court. Watts eventually pled guilty to two counts of Criminal Possession of a Forged Instrument in the 2° in satisfaction of both indictments. Watts appealed his conviction arguing that the indictments were jurisdictionally defective, but the Appellate Division affirmed the conviction.

The defendant’s argument on appeal was that event tickets are revocable licenses and do not “affect a legal right, interest, obligation or status” under the statute. The Court agreed in part. Relying on prior case law, the Court stated that Watts was correct that an event ticket was a revocable license, but the nature of an event ticket could affect a legal right or legal status. An event ticket is a license, issued by the proprietor, as convenient evidence of the right of the holder to admission into the event.

Additionally, the Court based its reasoning on contracts law principles. The Court stated that under certain circumstances, a ticket holder can recover the price of an event ticket in an action for breach of contract. The purchase of an event ticket is a contract that binds the creator and if the holder of the ticket were to be wrongfully ejected or denied entry from the event, he or she would have a breach of contract claim against the licensor. Based on these principles the Court held that event tickets do create a legal right under the Penal Law as well. (MK/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.

Failure to Timely File Criminal Leave Application Does Not Constitute Ineffective Assistance Under State Constitution

In People v. Grimes (Ct. App. 10/23/2018) (5-2), the Court of Appeals held that, under article I, section 6 of the New York State Constitution, a defendant is not entitled to a writ of error coram nobis to bypass the limitation set by the legislature in CPL 460.30 in which to file a criminal leave application. Judge Wilson authored a dissent, joined by Judge Rivera. Continue reading