Robles and Article 78

One other point worth mentioning about Robles is footnote 5, where the majority states, “We do not address whether Robles could have pursued relief by commencing a CPLR article 78 proceeding, ‘from which an appeal to this Court might ultimately have been taken’ (Newsday, 3 NY3d at 652).”  That’s a very interesting issue.  Would Article 78 be available to pursue relief?  I suppose the respondent would be the JSC who denied the motion to quash, and the basis would be CPLR 7803(3) or (4).

But there’s a problem with that approach.  CPLR 7801(2) states: “Except where otherwise provided by law, a proceeding under this article shall not be used to challenge a determination: … which was made in a civil action or criminal matter.” So that there is not an otherwise appeal process (CPLR 7801(1)) if of no moment if the decision is part of a civil or criminal action, which the Court in Robles says that it is.  The key language, though, is the last clause of CPLR 7801(2): “unless it is an order summarily punishing a contempt committed in the presence of the court.” If the reporter is held in summary contempt for refusing to testify, then an Article 78 proceeding can be commenced.

The question then is the nature of such contempt proceedings.  At least one authority takes the position that “[a]n order of contempt is not summarily granted and is not subject to review under Article 78 where it is made after due warning upon a record adequate for judicial review and with an opportunity for the contemnor to purge him- or herself of the contempt.” 6 N.Y. Jur. 2d Article 78 § 47 (citing Hunter v. Murray, 130 A.D.2d 836 [3d Dept. 1987] [“Accordingly, the court possessed the jurisdiction, power and discretion to hold petitioner in criminal contempt (Judiciary Law § 751), and since petitioner had available to him full judicial review of the record of proceedings finding him in contempt through normal avenues of appellate review, relief under CPLR article 78 is not available (see, Matter of Morgenthau v. Roberts, 65 N.Y.2d 749, 492 N.Y.S.2d 21, 481 N.E.2d 561; Matter of Legal Aid Society of Sullivan County v. Scheinman, 53 N.Y.2d 12, 439 N.Y.S.2d 882, 422 N.E.2d 542). Petitioner’s argument of the applicability of the provisions of CPLR 7801(2) is without merit, since the order of contempt herein was not “summarily” granted, but made after due warning upon a record adequate for appellate review and with an opportunity to purge himself of the contempt.”]).

I haven’t dug too deeply into this aspect of Article 78, but I suspect we will see this issue further developed the next time a report unsuccessfully moves to quash a subpoena. (LC)

Non-Party Cannot Appeal Order Denying Motion to Quash Subpoena Issued During Criminal Proceeding

An order resolving a nonparty’s motion to quash a subpoena issued prior to the commencement of a criminal action is final and appealable. However, in Matter of People v. Juarez (Robles) (Ct. App. 6/27/18) (per curiam) (4-3), a closely divided Court of Appeals held that no direct appellate review is authorized for an order resolving a nonparty’s motion to quash a subpoena issued after the commencement of a criminal action.

This case arose out of a criminal prosecution in which the People charged Conrado Juarez with one count of second-degree murder for the killing of “Baby Hope,” a four-year-old girl. In 1991, the victim’s partially decomposed body was found in a cooler near the Henry Hudson Parkway. She had been sexually assaulted and suffocated, but the semen investigators discovered was too degraded for analysis. For two decades, police could not identify the victim or the killer. In 2013, officers tracked down the victim’s mother, and from there, identified defendant as the probable killer. After his arrest, defendant Juarez gave a videotaped confession in which he admitted to strangling the victim during a sexual encounter.

After giving the videotaped confession and while in pre-trial detention, the defendant gave an interview to nonparty Frances Robles, an investigative reporter with the New York Times. The Times subsequently published a story based on this interview, in which the defendant offered an alternate account of the victim’s death that differed in some respects from the video-taped confession.

Before defendant’s Huntley hearing, the People obtained two subpoenas meant to compel Robles’ participation in the case: one for Robles’ own testimony and one for Robles’ written interview notes. Robles moved to quash both. Continue reading

Some Further Thoughts on Tiger

Earlier today, Paul Tsenesidis posted about People v. Tiger, where the Court of Appeals held that a freestanding actual innocence claim without any further constitutional basis, such as IAC or Brady, could not be used to vacate a judgment that was obtained by guilty plea.

Professor Bonventre (Albany Law School) posted an analysis of Tiger on his blog shortly after it came out. I agree with much of what he wrote but disagree with this portion of his post:

It’s not that the statute in question (CPL 440.10) actually says that. Or that the statute cannot be interpreted to allow an actual innocence challenge. No, the majority chose to adopt that interpretation. … So why did the Court choose to reject the availability of an actual innocence challenge? Strangely–and this is cause for at least as much concern as the Court’s decision itself–the majority relied in large measure on Supreme Court precedents.

I read Tiger differently.  I saw it as a statutory interpretation case, not a constitutional one.  Most of the majority’s analysis was focused on the statutes, particularly the differences in plain language between 440.10(1)(h), (1)(g), and (1)(g-1), which together showed that the Legislature had a clear purpose in treating judgments obtained by guilty plea versus trial verdict differently. (Still, the majority’s argument would have been stronger if it had expressly come out to say that its decision was on constraint of the statute and that the Legislature was free to provide relief in these types of situations if it so chooses.)

That said, Professor Bonventre’s point is that the statute does provide relief: CPL § 440.10(1)(h), which states that judgments obtained in violation of constitutional rights are subject to vacatur.  The argument is that the state Constitution provides for such a basis. Thus, citation to federal cases is inapposite.  The New York Court of Appeals has a long tradition of interpreting the New York Constitution as going further than its federal counterpart.  Yet the majority does not engage with those cases or principles.  (On the other hand, most of those cases are in the search/seizure and right to counsel areas, which do not have bearing on a procedural issue.)  If I read Professor Bonventre’s post correctly, he is arguing that the state constitutional issue is properly before the Court—and needed to be addressed—via CPL § 440.10(1)(h).

Still, I come back to the plain language of the statute.  CPL § 440.10(1)(h) permits vacatur if the judgment was obtained in violation of a defendant’s state or federal constitutional right.  The key word in the statute is “obtained.”  In an actual innocence case, the judgment was not “obtained” by some unconstitutional practice. It was obtained by the defendant’s consent to entry of judgment. After all, a person who maintains his or her innocence is allowed to enter into a contractual bargain with the State for a reduced sentence.  See North Carolina v. Alford, 400 U.S. 25 (1970).  Again, to Professor Bonventre’s point, Alford is a federal case, but the principle in Alford has been upheld in New York courts as well. See, e.g.People v. Couser, 28 N.Y.3d 368 (2017). So in a roundabout way, perhaps the Tiger majority did engage state constitutional law in its analysis.

And maybe this is to say that there isn’t much daylight between Professor Bonventre’s position and mine after all.

At the end of the day, the ball is now in the Legislature’s court.  I wonder what the odds are of the Legislature taking up such a meaty criminal justice issue?  (LC)

Free-Standing Actual Innocence Claims and Guilty Pleas

In People v. Tiger, (Ct. App. 6/15/2018) (DiFiore, C.J.) (4-1-2), the Court of Appeals held that claims of actual innocence can not be brought under CPL 440.10(1)(h) after a defendant voluntarily pleads guilty.

This case involved a licensed practical nurse and caregiver who was charged with various crimes after she allegedly burned a disabled 10-year-old girl while bathing her. Following the incident, there was confusion as to whether the girl’s injuries were skin conditions caused by an allergic reaction to her medication or if they were in fact caused by scalding water. After plea negotiations, the defendant pleaded guilty to endangering the welfare of a vulnerable elderly person or an incompetent or physically disabled person in the first degree. During the plea colloquy, the defendant affirmed that “she was pleading guilty because she was, in fact, guilty.” Following the guilty plea, the family of the injured girl filed a civil lawsuit against Ms. Tiger. Based on the conflicting medical evidence as to the source of the girl’s injuries, the civil jury found that the nurse’s actions were not a substantial factor in causing the girl’s injuries but found instead that the injuries in question were caused by an allergic reaction to her medication.

At around the same time as the civil trial, the defendant moved to vacate the judgment under CPL 440.10(1)(h), relying on People v. Hamilton. CPL 440.10 (1) (h) allows a defendant to move to vacate where the judgment was obtained in violation of a defendant’s constitutional right. In Hamilton, the Second Department allowed for a free-standing actual innocence claim to be brought pursuant to 440.10(1)(h). The People opposed defendant’s motion, arguing Hamilton’s holding was limited to situations where a defendant was found guilty after trial, and therefore did not apply to guilty pleas which were voluntarily entered into by defendants. Continue reading

Trustworthiness of Statements Against Penal Interest: How Far Should Courts Inquire?

In People v. Thibodeau (Ct. App. 6/14/18) (4-3), the defendant was convicted in 1995 of Kidnapping 1º after an 18-year-old convenience store clerk disappeared. At trial, the evidence provided that the missing clerk rang up the defendant’s brother for a pack of cigarettes just minutes before she disappeared. Eyewitness testimony also provided an account of two men and a women in the parking lot of the store near a “whitish blue van.” Other incriminating testimony offered at trial included self-declared admissions by the defendant to his inmates, including that the clerk was “killed with his shovel and mutilated.” Nineteen years later, the defendant moved to vacate his conviction because of newly discovered evidence, namely third-party admissions of three men in connection with the clerk’s disappearance.

The lower court found the new evidence lacking; it found that the third-party admissions to be inadmissible hearsay. The Appellate Division affirmed, with one dissenting Justice who granted the defendant leave to further appeal. The Court of Appeals considered whether the defendant’s motion was improperly denied by analyzing the newly admitted evidence standard.  A split 4-3 Court held that the motion was properly denied.

Continue reading