Friday, October 28, 2005

Court of Appeals: 'expurgatory oath' sufficient to cure potential juror's previous ambiguous statements on ability to be fair and impartial

People v Shulman, 2005 NY Slip Op 07827

The other decision of note handed down this week by the Court of Appeals is People v Shulman (2005 WL 2759199, 2005 NY Slip Op 07827 [available here]). The opinion (authored by Judge Read) is a big'un, as is to be expected in a death-penalty case. Besides being notable for one of the truly gruesome recitations of fact to be found in a published criminal decision (severed limbs figure prominently), the opinion does not break much new legal ground. In fact, beyond clarifying the first-degree "similar fashion" murder statute, the most interesting aspect of the opinion deals with Arnold-type jury selection issues.

Defendant argued on appeal that two prospective jurors should have been struck for cause because their responses during voir dire raised a doubt as to their ability to be fair and impartial. The first potential juror (a former correction's officer) wrote in his jury questionnaire that "life without parole" meant "'3 hots and a cot, free medical, $50[,]000 a year wasted." The second potential juror "answered questions probing her ability to put her opinion [regarding defendant's guilt] aside by stating that 'I think I can' or that she would 'try.'" (People v Shulman, 2005 WL 2759199 at *__ [2005].) Both jurors subsequently recited the 'expurgatory oath', i.e. each juror "assured the trial court and the parties that [they] could be impartial." (Id.) This was enough for the Judge Read and the unanimous Court:

As we have noted, words like 'think or try' are 'not . . . talismanic word[s] that automatically make[] a statement equivocal. [The juror's] other answers dispelled any doubt about her ability to deliberate impartially. [...] In light of that response as well as her many other assurances of impartiality, the trial court had ample basis for rejecting defendant's for cause challenge to [the juror].


Again, this opinion does not break any new ground, but it does reinforce an important concept for trial defense attorneys to keep in mind during jury voir dire--often, it is a juror's final statement on his or her ability to be impartial that controls. No matter how much a juror equivocates, an appellate court is probably not going to disturb a trial judge's denial of a 'for cause' challenge if the potential juror finishes her colloquy by agreeing that she can be fair and impartial. Prosecutors and trial judges are increasingly savvy on this score (perhaps because the Fourth Department continues to hand down reversals based on failure to elicit an unequivocal assurance that a juror can be fair and impartial (see my previous posts here and here.), and I think it is almost inevitable that this 'fertile ground' for reversal will eventually dry up.

Wednesday, October 26, 2005

Court of Appeals: consent to "search" car does not equal consent to "destroy car with crowbar"

People v Gomez, 2005 WL 2759218, 2005 NY Slip Op 07828

In a decision handed down yesterday, the Court of Appeals holds that a police officer may not "conduct a destructive search of an automobile based on a suspect's general consent to search." (People v Gomez, 2005 WL 2759218, 2005 NY Slip Op 07828 [available here].) The police in Gomez pulled over defendant because his car had an excessive amount of window tinting. After stopping the car, the officers asked defendant if they could search the car; defendant said sure (apparently forgetting that he was in the process of transporting 1 1/2 pounds of cocaine). The Court described the search:

[The officer] immediately went to the rear seat, unlocked it and pulled it back. He observed gray 'non-factory' carpet in the location above the area where he earlier spotted fresh undercoating. He then pulled up the glued carpeting and discovered a cut in the floorboard. [The officer] used his pocket knife to twist open the sheet metal. After struggling to reach what he thought was a plastic bag, [the Officer] returned to his cruiser and retrieved a crowbar, which he used to pry open part of the gas tank. The officers ultimately recovered seven bags of cocaine weighing approximately 1 1/2 pounds from the compartment found in the gas tank.


After noting the Supreme Court's standard for "'measuring the scope of a suspect's consent under the Fourth Amendment'"--i.e. "what would the typical reasonable person have understood by the exchange between the officer and the suspect," (See Florida v Jimeno, 500 US 248, 251 [1991]), the Court of Appeals found that the officers' actions in Gomez exceeded defendant's consent as a matter of law:

In the absence of other circumstances indicating that defendant authorized the actions taken by police, a general consent to search alone cannot justify a seizure that impairs the structural integrity of a vehicle or that results in the vehicle being returned in a materially different manner than it was found. A reasonable person would not have understood the officer's request to search to include prying open a hole in the floorboard and gas tank with a crowbar. Here, the officer clearly crossed the line when he took his action without first obtaining defendant's specific consent.


This is a welcome, common-sense outcome--it seems relatively obvious that a motorist who gives the police consent to search his vehicle does not imply consent to the police ripping apart his car with a crowbar.

However, Judge Read dissents, and takes the majority for task for setting out a "bright line" rule--according to Judge Read, "the majority is just wrong to conclude that, as a matter of Fourth Amendment principles, a search resulting in 'damage' is per se outside the scope of a general consent." (Id.) Judge Read would shift the focus, "[s]o, just as 'it was objectively reasonable for the police to conclude' in Jimeno that they had consent to search any containers in the car 'which might bear drugs', it was objectively reasonable in this case for [the officer] to believe that he had permission to search any area of defendant's car in which narcotics might be secreted." (Id.)

The dissent's logic can be taken to some absurd extremes--what if the officer thought the cocaine might be in the tires? Could he slash the tires based on a defendant's general consent to search? Can officers cut through upholstery if they believe the drugs might be secreted in the car's seat cushions? Drugs can be hidden anywhere in a car--under the dissent's logic, it would apparently be acceptable for the police, acting under a general consent to search, to disassemble the entire car and leave it up on blocks on the side of the road when the search was done. The dissent doesn't answer such hypotheticals, but it does raise the specter of 9/11, arguing that the majority's standard will "hamstring police officers who reasonably suspect that a vehicle contains a hidden compartment--an alteration with few, if any, innocent purposes--which might conceal far more lethal cargo than narcotics." (Id., citing the 9/11 Commission Report.)

For its part, the majority counters that "[W]e cannot agree with the dissent that Fourth Amendment jurisprudence must strive to avoid rules." (Id.)

Wednesday, October 19, 2005

Unofficial stats: September 2005 term.

Here are my unofficial stats for the September 2005 term, based on the criminal decisions posted at the Fourth Department's web site:

Total criminal decisions: 77

Reversals / Modifications: 11

I've collected the noteworthy reversals from the September term in a previous post (available here.)

The October term of Court is underway, with decisions for the October term coming down November 10, 2005.

Saturday, October 15, 2005

Best of the Rest (September 2005 term)

As previously noted, the September term of the Fourth Department was not a great one for criminal decisions. Here are the best of the rest, in no particular order:

People v Rodriguez (or, note my exception, again): the Fourth refused to reach the merits of defendant's Sandoval issue because "[b]y failing to object to the court's ultimate Sandoval ruling, defendant failed to preserve for our review his contention that the ruling constitutes an abuse of discretion." (People v Rodriguez, 2005 WL 2404602, 2005 NY Slip Op 07179 [decision available here].) I think this "ultimate objection" requirement is unnecessary for preservation, and revives in fact if not in verbiage the old technical "exception" requirement for preservation. Alas, the Fourth Department still does not agree. See my previous post on the subject here.

People v Mayo: defendant's guilty plea to SCI vacated because "[w]here, as here, a defendant is charged with a class A felony, the defendant cannot validly waive indictment or consent to be prosecuted by a superior court information." (People v Mayo, 2005 WL 2404043, 2005 NY Slip Op 07082 [decision available here].)

People v Chambers: duration of an order of protection improper because the trial court "failed to take into account the jail time credit to which he was entitled." (People v Chambers, 801 NYS2d 171 [decision available here].) The issue was not preserved, but the Fourth Department reached it in the interests of justice.

People v Davis: a rare reduction of defendant's sentence as harsh and excessive. (See People v Davis, 2005 WL 2404142, 2005 NY Slip Op 07110 [decision available here].)

People v Cooke & People v Robinson: vacating defendants' sentences in the interest of justice: "because restitution was not part of the plea agreement, the court should have afforded defendant the opportunity to withdraw his plea before ordering him to pay restitution." (People v Robinson, 2005 WL 2404422, 2005 NY Slip Op 07136 [decision available here].)

The decision in People v Kilgore deserves somewhat lengthier treatment. The majority reversed defendant's drug possession conviction, finding that defendant's "motion to suppress physical evidence by the police following a warrantless entry into his apartment" should have been granted because "exigent circumstances" did not exist to justify the warrantless entry. (See People v Kilgore, 2005 WL 2403327, 2005 NY Slip Op 07019 [decision available here].) The Court set out the relevant factors to consider:

'Although not to be taken as a rigid formula, the following factors should be considered in determining whether exigent circumstances exist: (1) the gravity or violent nature of the offense; (2) whether there is a reason to believe the suspect is armed; (3) whether there is a clear showing of probable cause; (4) whether there is a strong reason to believe the subject is in the premises being entered; (5) the likelihood the suspect will escape if not swiftly apprehended; and (6) the peaceful circumstances of the entry.'

(Id [citing the relevant factors from People v Burr, 124 AD2d 5.].)

The majority found no exigent circumstances existed because "[a]lthough the alleged victim herein reported to the police that she had been raped, there was no indication that defendant was armed. Additionally, the alleged victim told the police that she left defendant's apartment after defendant had fallen asleep, and thus there was no suggestion that defendant would have escaped if not swiftly apprehended." (Id.)

Justice Hayes dissented, and would have applied the Burrfactors differently in finding exigent circumstances existed; from the dissent:

A violent offense had been reported, i.e., a rape, and the police had probable cause to believe that defendant had committed the offense. The police had 'strong reason to believe' that defendant was inside the apartment, based on the statement of the victim that her attacker was asleep when she left the apartment and the sounds heard by one of the officers coming from inside the apartment. Although there was no specific evidence that defendant would attempt to escape, 'there [also] is no indication that he was not seeking to escape.' The police entered the apartment peacefully through the apartment door, which was left ajar. Thus, in my view, the court properly refused to suppress the physical evidence seized from defendant's apartment.

(Id. at ___ [HAYES, J., dissenting].)

It is hard to fault either the majority or dissent--each picked those Burr factors that supported their respective outcomes and downplayed the others. My hunch is that the fact that this was a drug possession conviction--and not a conviction for the reported rape--made the difference for the majority.

Sunday, October 09, 2005

Court of Appeals to review whether deprivation of right to counsel at suppression subject to harmless error analysis

The Court of Appeals has granted leave to review the Fourth Department's decision in People v Wardlaw (18 AD3d 106), where the Fourth Department held that deprivation of a defendant's right to counsel at a suppression hearing was subject to harmless error analysis. At the time the decision was handed down, I noted that it seemed the Fourth Department was getting a little ahead of itself, because the Court of Appeals had previously ruled that deprivation of the right to counsel was fundamental error not subject to harmless error analysis regardless of when the deprivation occurs. See my previous posts on Wardlaw here and here. I am glad to see the Court of Appeals has decided to take a look at the issue.

The Court of Appeals will also review the Fourth Department's decision in People v Pacer (796 NYS2d 787), where the Fourth found that an affidavit of mailing was "testimonial" under Crawford v Washington and thus not admissible unless the declarant is subject to cross-examination. See my previous post on Pacer here.

Saturday, October 08, 2005

Jeffrey Fisher outline for Crawford.

Jeffrey Fisher (the attorney who briefed and argued Crawford v Washington [previous Crawford-related posts here, here, here, and here,]) has a periodically-updated outline of post-Crawford developments. You can get the outline here. Very useful. I've added a permanent link to the outline over to the left. (Hat tip: Confrontation Blog.)

Friday, October 07, 2005

This term's Arnold reversal

People v Mateo, 2005 NY Slip Op 07170

What would a term of the Fourth Department be without an Arnold-based reversal for error during jury selection? This packet the honor goes to People v Mateo (2005 WL 2404586, 2005 NY Slip Op 07170 [decision available here]) where "County Court erred in denying [defendant's] challenge for cause to a prospective juror who gave equivocal answers during voir dire and thus failed to establish her ability to be impartial." (Mateo, 2005 WL 2404586, *1.) The facts, from the decision:

When asked whether the fact that her husband was a correction officer and her son a police officer would impair her ability to be fair, she replied that she 'would hope not,' and she acknowledged that there was a possibility that she would tend to credit the testimony of correction officers over that of other witnesses. In addition, she stated that it would be 'difficult' for her to be fair and the only 'thing [she] could say [she'd] try to be fair.' Moreover, the prospective juror was twice asked whether she would feel comfortable being judged by someone with her mindset before she gave an affirmative response to that question.

(Id. [brackets in original].)

Given those facts, the Fourth reversed: "[t]he statements of the prospective juror 'raise[d] a serious doubt regarding [her] ability to be impartial,' which mandated that she be excused unless she 'state[d] unequivocally on the record that . . . she [could] be fair and impartial', and she did not do so." (Id. [brackets in original] [citations omitted].)

The Court of Appeals decision in Arnold (followed by the Fourth Department in Mateo) is a criminal appellate lawyer's best friend. The rule of Arnold is simple: "Prospective jurors who make statements that cause serious doubt on their ability to render an impartial verdict, and who have given less-than-equivocal assurances of impartiality, must be excused." (People v Arnold, 96 NY2d 358, 363 [2001] [decision available here].) If a juror falls short of giving unequivocal assurances--saying "I think so" or "I hope so" when asked if he or she can be impartial, for example--the challenge for cause must be granted, or reversal is required, without resort to any kind of harmless error analysis. Most trial judges are aware of Arnold by now, so the era of numerous Arnold reversals may well come to an end in the near future. But for now, jury selection/Arnold issues remain the only reliably successful issues for New York criminal defendants.

Of course, an Arnold issue must be preserved by defense counsel exhausting all peremptory challenges. (See e.g., People v Jones, 11 AD3d 902, 903 [4th Dept 2004].)

Wednesday, October 05, 2005

Another "depraved" decision

People v Baker, 2005 NY Slip Op 07226

In another decision dealing with the border between "intentional" and "depraved indifference" murder in the wake of Gonzalez and Payne, the Fourth Department affirmed defendant's "depraved indifference" murder conviction in People v Baker, finding that there was a reasonable view of the evidence to conclude that defendant recklessly caused the victim's death by shooting him in the chest. (See People v Baker, 2005 WL 2404847, 2005 NY Slip Op 07226 [decision available here].)

The facts, as summarized in the Court's opinion:

The record establishes that defendant approached the two victims and shot the first victim in the chest, which eventually caused the death of that victim, and defendant then shot the second victim. The first victim ran after being shot, but defendant did not follow him. Instead, defendant approached the second victim, stood over him, and continued to shoot him from inches away, pulling the trigger of his weapon while aiming it at the second victim even after there was no remaining ammunition.


Given those facts, the Court held that "a rational jury could have had a reasonable doubt with respect to whether defendant's acts were 'specifically designed to cause the death of the [first] victim.'" (Id.) I'll buy that--it seems from the facts that the second victim was the real target of defendant's aggression, and the first victim was shot so defendant could get to the second victim. But acknowledging that defendant may not have intended to kill the first victim does not necessarily establish that defendant acted "recklessly" in shooting the first victim--indeed, from the facts of the decision it seems as if defendant intentionally shot the first victim in order to get to the second victim. In that case, manslaughter in the first degree would seem to be a proper conviction--defendant intended to cause the first victim serious physical injury by shooting him in the chest, and the victim ultimately died--but is the reckless mens rea required for "depraved indifference" murder established?

The Fourth Department obviously thought so in Baker, although in another decision from this packet dealing with the same issue, the Court found legally insufficient facts to support a defendant's "depraved indifference" murder conviction where defendant stabbed his victim once in the chest. (See People v Lawhorn, 2005 WL 2403844, 2005 NY Slip Op 07058 [available here].) See my previous posts on Lawhorn here and here. Perhaps the fact that there was more than one victim in Baker and only one victim in Lawhorn was a factor in the Fourth Department's distinction between the two cases. (See Lawhorn [stressing that a "'one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder'" [citations omitted].) But certainly some tension exists between the Lawhorn and Baker decisions (i.e. one shot in the chest can support finding of "reckless" killing [Baker] but one stab wound in chest cannot support "reckless" killing [Lawhorn]). Perhaps that is why Justice Pine wrote a separate concurring opinion in Baker that would have affirmed the depraved indifference conviction on the much more narrow preservation ground. (See Baker, 2005 NY Slip Op 07226.) The implication of Justice Pine's concurrence is that she would not have found the evidence legally sufficient to support the depraved indifference count (presumably reasoning that, if a single stab wound to the chest was sufficient to rule out a depraved indifference murder conviction under Lawhorn, a single gunshot to the chest should likewise render Baker's depraved indifference murder conviction infirm), but would not have reached the issue because it was not preserved for review.

For what it's worth, I think the facts of Baker could support both a conviction for manslaughter in the first degree and depraved indifference murder--defendant could have intended to cause serious physical injury to the victim (thus satisfying the mens rea requirement for manslaughter 1st) and simultaneously been aware of and ignored that by shooting the victim he was creating a substantial and unjustified risk of death (thus satisfying the mens rea requirement for depraved indifference murder). In fact, I had an argument with my co-workers on this point for the better part of two hours this morning. I will post at length soon why I think I am right. But for now, the arguably inconsistent results from the Fourth Department in Lawhorn and Baker illustrate how the Appellate Divisions are struggling to set the boundaries between "depraved indifference" and "intentional" murder after Gonzalez and Payne.

Monday, October 03, 2005

Intentionally reckless reduction?

Another interesting wrinkle from the Lawhorn decision (see original post here): the Fourth Department overturned defendant's conviction for "depraved indifference" murder in the second degree because the evidence that defendant stabbed the victim in the chest was not consistent with a less-than-intentional mental state; the facts supported intentional murder or nothing. Fine so far. But the Court in Lawhorn not only reversed the "depraved indifference" conviction--it reduced the conviction to "reckless" manslaughter in the second degree. This begs the question--why is the evidence that "Defendant . . . intentionally stabbed the victim once in the chest" not sufficient to support the less-than-intentional mental state for depraved indifference murder, but is sufficient to establish the "reckless" mental state for manslaughter in the second degree? (See Penal Law 125.15[1] ["A person is guilty of manslaughter in the second degree when . . . [h]e recklessly causes the death of another person."].) Aren't both crimes ("depraved" murder 2nd and "reckless" manslaughter 2nd) based on "reckless", non-intentional conduct? And if so, how can the evidence that defendant intentionally stabbed his victim in the chest support one conviction ("reckless" manslaughter 2nd) and not the other ("depraved" murder 2nd)? "Ordinarily, a defendant cannot be guilty of both the intentional and reckless homicide of the same individual because a defendant cannot intend to cause a person's death and at the same time consciously disregard a risk that he or she will succeed in doing so." (People v Atkinson, 799 NYS2d 125 [2d Dept 2005] [decision available here].)

It would seem to make more sense in the Lawhorn case to reduce the "depraved" murder 2nd conviction to manslaughter in the first degree, because manslaughter in the first degree is based on intentional conduct that causes death. (See Penal Law 125.20[1] ["A person is guilty of manslaughter in the first degree when . . . with intent to cause serious physical injury to another person, he causes the death of such person or of a third person."].) But by the Lawhorn Court's own reasoning, the same deficiencies that rendered the trial proof insufficient to support the jury's "depraved" murder 2nd conviction should also doom the manslaughter 2nd conviction. That it doesn't is puzzling.

This is an issue ripe for the Court of Appeals, and leave is pending from the Second Department's decision in Atkinson.

Sunday, October 02, 2005

Decision Day: September 2005 Term

The Fourth Department handed down its decisions for the September, 2005 term this past Friday. I was out of town, and hence a couple of days late in posting. Not a great term for criminal decisions, with only one real reversal of any substance--People v Lawhorn (decision available here), where the Fourth Department reversed defendant's depraved indifference murder conviction. Following the recent Court of Appeals decisions in People v Gonzalez (1 NY3d 464 [decision available here]) and People v Payne (3 NY3d 266 [decision available here]), the Court in Lawhorn held that, where defendant had stabbed the victim once in the chest, the "case falls within the 'overwhelming majority' of cases in which depraved indifference murder should not have been charged. 'Absent the type of circumstances in, for example, Sanchez (where others were endangered), a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder.'" (Lawhorn, 2005 WL 2403844, 2005 NY Slip Op 07058 [citations omitted].) The Lawhorn case continues the process of clarifying the border between "depraved indifference" and "intentional" murder, and is important because the facts did not involve gratuitous overkill from which an intent to kill is obvious. (See e.g. Gonzalez, 1 NY3d at 465 (standing over prone victim and firing 8 shots into head and back); Payne, 3 NY3d at 269 [shotgun blast at point-blank range to chest].) A useful decision to have at the ready if arguing the legal insufficiency of a depraved indifference murder conviction involving less spectacular overkills than the facts of Gonzalez and Payne.

Of course, it helps if trial counsel makes a detailed trial order of dismissal and renews it at the end of the defense case. The Fourth Department gives no quarter on this preservation requirement, and three decisions from this term found legal sufficiency issues unpreserved based on defense counsel's failure to renew the motion at the close of all evidence. (See People v Diefenbacher, 2005 WL 2403850, 2005 NY Slip Op 07061 [decision available here]; People v Carter, 2005 WL 2403855, 2005 NY Slip Op 07063 [decision available here]; People v Cox, 2005 WL 2404430, 2005 NY Slip Op 07141 [decision available here].)

I'll post on the other interesting decisions from the September term over the next few days.