Criminal Contempt Conviction Upheld Even Without Order of Protection in Evidence

In People v. Simpson (App. Term 2d Dept. 11/29/2018), the defendant was charged with Stalking 4° for incidents that had occurred in 2011 and 2012 involving the girlfriend (the victim) of defendant’s husband. Defendant was also charged with Criminal Contempt 2° based on an incident that had occurred in October 2013, in which defendant had allegedly violated an order of protection in favor of the victim and against the defendant. After a jury trial, the defendant was convicted of Criminal Contempt 2°. The Appellate Term, Second Department, affirmed the defendant’s conviction, but the decision drew a dissent from Justice Brands.

At trial, the victim testified that in October 2013, she had been sitting in her car on the phone when the defendant approached her vehicle and asked the victim questions regarding her relationship with the defendant’s husband. The defendant then allegedly threatened the victim, telling her that “she would pay.” The victim filed a report with the police shortly after. After the People rested their case-in-chief, defense counsel unsuccessfully moved for a trial order of dismissal on the Stalking charge but also stated on the record that they could not in good-faith move to dismiss the Criminal Contempt 2º charge. Prior to summations, both parties stipulated that there was a valid order of protection in favor of the victim against the defendant at the time of the alleged incident. But a copy of the order of protection was not produced. Defendant was acquitted of the Stalking charge but convicted of Criminal Contempt 2°.

On appeal, Defendant contended that the People did not prove her guilty beyond a reasonable doubt of Criminal Contempt 2º because they failed to introduce into evidence the order of protection, and there was otherwise no proof of the conduct that it prohibited. The Court declined to review this, stating that Defendant’s claim was unpreserved when she failed to move to dismiss the charge at trial. Defendant also claimed on appeal the denial of effective assistance of counsel. Here, the Court held that the defendant was not denied effective assistance of counsel because defense counsel had extensively cross-examined the victim and brought out credibility issues that the jury took into account as well as getting an acquittal on the stalking charge.

Justice Brands would have reversed the conviction and ordered a new trial. As to the defendant’s first claim, Justice Brands agreed with the defendant’s contention that the People’s evidence was insufficient for a conviction on the criminal contempt charge. Even though it was stipulated into the record that there was a valid order of protection in place, the actual contents of the order of protection, namely delineating the type of order of protection and the conduct the defendant must refrain from doing, were not entered into the record. Without the contents of the order of protection, Justice Brands reasoned that there was no proof Defendant violated any of its terms. Because defense counsel did not move to dismiss the Criminal Contempt charge in the absence of an order of protection in evidence, Justice Brands stated that this alone would be enough to grant Defendant relief for ineffective assistance of counsel. Justice Brands stated that this case represents a “rare occasion” in which a single misstep by defense counsel can rise to the level of ineffective assistance. (MK/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)

Wrong Advice and Lack of Support By Defense Counsel Leads to Ineffective Assistance of Counsel

In People v. Griffith (4th Dept. 11/9/2018), the Fourth Department found that the defendant had been denied effective assistance of counsel when his attorney refused to assist him in appealing his denied petition for a downward modification under the Sex Offender Registration Act (SORA). The defendant claimed in his petition that he was entitled to a downward modification of his previously-imposed classification as a level three risk pursuant to Correction Law §168-o(2). The court initially found that the defendant’s claim on appeal arises under CPLR 5701 not under Correction Law §168-o(2).

When the defendant moved forward with his petition, his assigned counsel wrote a letter to the court indicating that the petition was meritless and that he would not support the petition. Additionally, he advised the defendant to withdraw the petition so that defendant would not delay his right to file a new modification petition in two years. But the defendant’s counsel was wrong. Under Correction Law §168-o(2) a defendant may file a petition “no more than once annually.”

The Court concluded that by refusing to support the defendant’s petition and giving him incorrect advice, there was ineffective assistance of counsel because the defendant’s attorney essentially became a witness against the defendant and took a position adverse to him. (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)