Category Archives: Penal Law

Who Was the First Initial Deadly Aggressor?

When it occurred, the killing of Vonde Cabbagestalk drew a great deal of media attention, since the shooter was an off-duty New York City corrections officer. At issue in the case on appeal was whether the defendant was entitled to a justification charge. The trial court said no; the three-judge majority of the Appellate Division said yes. The Court of Appeals agreed today with the trial court, finding that the evidence showed that the defendant was the first initial deadly aggressor and, thus, not entitled to a justification charge. The case is People v. Brown (Ct. App. 5/7/2019) (Wilson, J.) (7-0).

One of the things I appreciate about this case is how methodical Judge Wilson undertakes his justification analysis. Justification is a tricky topic because it involves a great deal of “back and forth,” examining the conduct of the shooter and the deceased.

In Brown, it was undisputed that the defendant shot and killed the victim in the lobby of the defendant’s building after an argument. There were several witnesses, but only one saw the shooting. He saw the victim swing at the defendant but apparently miss. The defendant was holding a gun. The victim then “swiped” at the gun and said, “[I]f you going to pull a gun out, you got to use it.” The defendant did just that. He was then convicted of Manslaughter 1º after the jury acquitted on Murder 2º.

Judge Wilson’s analysis proceeded in a logical manner:

  • This was the use of deadly physical force. Therefore, to be entitled to a jury instruction on justification, there must be a reasonable view of the evidence that the defendant was confronted with deadly physical force and must not be the first initial aggressor of that force.
  • A person can be the first initial aggressor as to physical force but another can be the initial aggressor as to the deadly physical force. That is what happened here.
  • “To determine who the ‘initial aggressor’ is, then, both the sequence of the attacks (or imminently threatened attacks) and the nature of those attacks matter: which attacks were ‘physical force’ and which attacks were ‘deadly physical force?'”
  • The victim was unarmed.
  • The victim “swiped” at the gun only after the defendant first produced the firearm.
  • The victim and others made clear that it seemed that the defendant was going to use the gun.
  • Because the defendant drew the gun first and was the initial deadly aggressor, he was not entitled to the justification defense unless he retreated or the victim was the initial deadly aggressor.
  • There was no withdrawal (or communication of it, etc.).
  • The “swipe” at the gun did not constitute use or threat of deadly physical force and, in any event, occurred after the defendant first pulled out the gun. This left the defendant as the first initial deadly force aggressor.

(LC)

Fatal Car Crash Does Not Rise to the Level of Criminal Negligence

The defendant in People v. Smith (App. Term 1st Dept. 12/7/2018), the was convicted after a bench trial of Reckless Driving, Failure to Exercise Due Care to Avoid Collision with a Pedestrian, and Failure to Yield to a Pedestrian. The Appellate Term, First Department, reversed the defendant’s convictions holding that the defendant’s actions did not rise to the level of criminal negligence and the convictions were against the weight of the evidence.

The defendant’s convictions stemmed from a motor vehicle accident where she was the driver. The defendant was driving and as she began to make a left turn, her vehicle was hit by a FedEx truck. The impact of the collision caused her to lose control of her vehicle and, in an attempt to avoid hitting a pedestrian, defendant drove the vehicle onto a sidewalk, where it scraped a building before striking and killing a pedestrian. Testimony at trial showed that prior to striking the pedestrian, when the defendant tried to step on the brakes, her vehicle would not stop. At the conclusion of trial, and at the defendant’s request, the Criminal Court utilized the criminal negligence mens rea with respect to the charged offenses Failure to Exercise Due Care and Failure to Yield. The defendant was convicted of all charges.

A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he or she fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. Penal Law § 15.05(4). The criminal negligence standard is more serious than that required in a civil suit. The criminal standard requires a defendant to have engaged in some blameworthy conduct creating or contributing to a substantial and unjustifiable risk of a proscribed result; nonperception of a risk, even if the proscribed result occurs, is not enough.

Here, the People failed to prove beyond a reasonable doubt that the defendant’s actions were criminal. The court noted that although the facts of the case would be enough to sustain a suit under the civil negligence standard, none of the evidence pointed to any criminal wrongdoing. The defendant was not speeding, driving recklessly, or operating in an intoxicated state. She used her turn signal and looked for pedestrians. Although the harm caused was fatal, it was not the result of morally blameworthy conduct on the defendant’s part. (MK/LC)

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)

“Dangerous Contraband”: What is it?

In People v. Flagg (4th Dept. 11/16/2018), the Fourth Department considered a defendant’s appeal despite the lack of preservation and expounded upon what constitutes “dangerous contraband” in a prison.

At the lower court, the defendant was convicted  by a jury of Promoting Prison Contraband 1° and CPCS 7°. These convictions arose after correction officers obtained a disposable glove containing four Tramadol pills from the defendant’s possession, while he was incarcerated at a local jail.

For the crime of Promoting Prison Contraband 1º, the People were required to prove that the defendant was (1) confined in a detention facility, and (2) knowingly and unlawfully made, obtained, or possessed any “dangerous contraband.” Dangerous contraband is defined by the Penal Law as “contraband which is capable of such use as may endanger the safety or security of a detention facility or any person therein.” The test that the Court of Appeals developed in People v. Finley to determine whether a substance is dangerous is “whether its particular characteristics are such that there is a substantial probability that the item will be used in a manner that is likely to cause death or other serious injury, to facilitate an escape, or to bring about other major threats to a detention facility’s institutional safety or security.”

On appeal, the defendant contended that there was legally insufficient evidence to establish that the Tramadol pills were “dangerous.” Although defense counsel moved for a dismissal, the Court noted that this was not enough to preserve the issue for review, but considered the defendant’s appeal in the interest of justice.

The People presented testimony from corrections officers that the pills were dangerous because inmates will fight over the drugs and inmates will also get high and try to fight the staff, or attack other inmates. Additionally, a Sheriff’s detective testified that if not prescribed to the person who was taking the pills, it could cause the person who ingested the pill’s death.

The Court found that this testimony was only discussing broad penological concerns and was speculative and conclusory. The evidence did not establish a substantial probability of a major threat to the facility, or death or serious injury. Specifically, the Court found that there was no specific evidence regarding the dosage of Tramadol or what it would do if ingested by an individual. Thus, the Court found that the People did not establish the “dangerousness” of the pills possessed by the defendant and therefore, the convicted should be reduced to Promoting Prison Contraband 2°.

Further, the Court noted that drugs in it of themselves are not inherently dangerous and the specific use and effects are necessary to show whether or not a drug is dangerous. The Court stated the determination of what types and quantities of drugs are considered dangerous is best left to the legislature. (JC)

Old Enough to Know Better, But Not Enough to Warrant a 35-Year Sentence

The Fourth Department in People v. Jones (4th Dept. 11/9/2018) considered whether it should, in its discretion, override the lower court’s decision on two matters: (1) whether the defendant should have been sentenced as a youth offender or as an adult, and (2) whether the sentence imposed was too harsh and excessive. The Court ultimately used its authority to amend the lower court’s decision on the second count in the “interest of justice.”

The defendant was convicted of Assault 1º and two counts of CPW 2º; he committed the crimes when he was 18 years old. Although CPL 720.10(3) provides that “a youth who has been convicted of an armed felony offense . . . is an eligible youth if the court determines that one or more of the following factors exist: (i) mitigating circumstances that bear directly upon the manner in which the crime was committed; or (ii) where the defendant was not the sole participant in the crime, the defendant’s participation was relatively minor although not so minor as to constitute a defense to the prosecution.” Therefore, the only relevant mitigating factors related to a CPL 720.10(3), or “eligible youth,” inquiry revolve around the circumstances of the crime itself, such as “a lack of injury to others or evidence that the defendant did not display a weapon during the crime.” Here, the Fourth Department affirmed the lower court’s decision in trying the defendant as an adult rather than an eligible youth because he carried a loaded gun on several occasions and shot a gang member.

Although the Court decided that trying the defendant as an adult was just, it determined that the 35-year sentence imposed on the defendant was too harsh. As a matter of discretion in the interest of justice, the Fourth Department modified the defendant’s sentence to run for an aggregate term of 25 years. The Court contemplated multiple factors in deciding to reduce the sentence; the defendant’s lack of a criminal record, the fact that the victim was attempting to commit an armed robbery of the defendant’s gang members, and the fact that the People offered a plea constituting a 20-year sentence all contributed to the Court’s decision to impose a more lax sentence.

Two judges dissented to the second part of the majority’s opinion; they did not believe the Court should amend the sentence in any way. This decision was not necessary in the “interest of justice.” Although the dissent noted the defendant’s low intellect and rough childhood, it was of paramount significance that the defendant was a dangerous individual who was known to carry a loaded gun. Thus, he should be “locked up for a long time.”