People v Lewis, ___ NY3d ___ [available here]
The Court of Appeals handed down two criminal decisions today, and each is interesting both for the majority holdings and for the lengthy dissents. For today, I'll deal with People v Lewis, which involved the interplay between the crimes of burglary (entering a dwelling with the intent to commit a crime therein) and criminal contempt (violating the terms of a valid order of protection). The background facts of Lewis are more than a little sad, but also completely typical:
Defendant was arrested three times in 2001 following incidents at complainant's apartment. In January 2001, he was arrested for damaging her property, and the Criminal Court of the City of New York issued an order of protection requiring him to stay away from her and from her home until April 25, 2004. Nevertheless, she allowed defendant to move into her apartment, in February 2001, after he lost his job.
In the early hours of July 24, 2001, defendant and complainant got into an argument at her apartment and defendant struck her over the head with a plate. She was taken to the hospital and received six stitches. Defendant was again arrested. On July 30, 2001, Criminal Court issued another order of protection. Again, she allowed defendant back into her apartment a few days after he got out of jail.
(People v Lewis, __ NY3d ___ .)
After another falling out where defendant was ordered out of the victim's apartment, the defendant broke into the apartment. The Court picks up the narrative thread:
In the early hours of August 20, 2001, complainant returned to her apartment and found defendant there. She told him to get out and, when he refused and began swearing at her, she went downstairs to call the police from a pay phone. Defendant kicked her and continued to swear at her as she went down the steps. [...] Police arrested defendant a third time. With respect to the last incident, defendant was charged with burglary in the second degree and criminal contempt in the second degree.
(Id. at __.)
Defense counsel asked that the jury be charged that "the 'intent to commit a crime therein' element of burglary could be satisfied only if it were proven that, at the time of entry, defendant intended to commit some crime in addition to unlawful entry." (Id.at __.) The trial court refused to give the charge.
During deliberations, the jurors sent out a note asking "about the relevance of defendant's criminal contempt to the 'intent to commit a crime therein' element of burglary." (Id. at __.) Defense counsel suggested the trial court tell the jury "'if it is your general question as to whether . . . the crime constitut[ing] contempt can be the basis for a burglary charge, the answer is yes.'" (Id at __.) The trial court gave the charge as requested by defense counsel, and the jury "quickly reached a verdict finding defendant guilty of second-degree burglary." (Id at __.)
Defendant raised two arguments before the Appeals: 1) that the trial court should not have instructed the jury that the crime of "criminal contempt" could be the sole crime defendant intended to commit upon entry for purposes of establishing burglary in the second degree, and 2) the evidence was legally insufficient to support the burglary in the second degree conviction. In answering the second argument, the Court noted "[u]nlawful entry cannot itself be used as the sole predicate crime in the 'intent to commit a crime therein' element of burglary. If that were not the case, every violation of a do-not-enter provision of an order of protection would become a burglary the instant defendant knowingly entered upon the banned premises." (Id.)
Good for defendant so far--if the "criminal contempt" cannot be the "sole predicate crime" for purposes of establishing the "intent to commit a crime therein" element of burglary, then the trial court's supplemental charge to the jury instructing them in a manner exactly inapposite to the Court's holding (i.e. that the criminal contempt could be the only crime defendant intending to commit when he entered the complainant's apartment) was reversible error. Not quite, says the majority: true enough, the charge was an erroneous statement of law--but it was a mis-statement that defense counsel articulated and suggested the trial court use. Therefore, any issue the defendant may have had about the propriety of the charge was waived. (Id. ("defense counsel's formulation of the supplementary instruction went far beyond mere failure to protest and constitutes a forfeiture. Indeed, the court fully adopted the defendant's language. He cannot now be hear to complain [...].")
Judge R.S. Smith dissented, and would have reversed based on the supplemental jury charge. In Judge Smith's view, "Defendant asked for a correct instruction to the effect that the People must show more than unlawful entry. The trial court refused the instruction, and later, in response to a question, told the jury the exact opposite. I do not believe defendant forfeited appellate review of this error, and I therefore dissent." (Id. at __.) From the dissent:
A waiver or forfeiture may occur when a defendant requests or endorses a ruling of which he later complains. The reason for this rule is that a defendant should not be able to obtain a reversal based on an error for which he was responsible. But defendant did not lead the trial court into error here--the court had already stated unequivocally its mistaken understanding of the law, and the defendant's attempt to talk the court out of it had already failed. Thus the governing rule here is the one the majority states, but does not apply: 'an attorney need not repeatedly protest a court's clear ruling.'
Of course it would have been a good idea for defendant's counsel, in his comment on how to respond to the jury note, to err on the side of caution by restating the position he had already argued. [...] But if he had taken this more prudent course, defense counsel would only have been reciting what everyone in the courtroom knew and the record made clear already. I cannot join the majority in holding that he forfeited his client's right by failing to perform this ritual.
(Id at __.)
The substantive holding of Lewis is a good one--a defendant cannot be convicted for burglary in the second degree if the only crime he intended to commit by entering a building is violating an order of protection not to go in that building. But the procedural holding of the majority--that review of the "jury charge" issue was waived because, after requesting the proper charge and being denied, defense counsel tried to make the best of a bad ruling and suggested language for the court to use in giving the erroneous charge--is a continuation of the trend of requiring strict and exacting preservation of issues for appellate review. The dissent may not think that such "rituals" are necessary--but given the majority's holding in Lewis, it is clear that the ritual must be followed if defense counsel wants to be sure of preserving an issue for review.