Thursday, January 05, 2006

Upcoming Court of Appeals arguments

The Court of Appeals has many interesting criminal cases on its January calendar (you can read the case summaries for all of the January arguments here. Only one--People v DaCosta comes out of the Fourth Department. The defendant in DaCosta was convicted of manslaughter in the second degree for recklessly causing the death of a Buffalo city police officer. Essentially, the officer was killed while pursuing defendant in a footchase across a busy expressway--according to the summary, the officer "chased after DaCosta, who was running alongside the six-lane Kensington Expressway. DaCosta crossed the expressway, vaulting over a six-foot chain link fence in the median. Officer McClellan followed him safely across the three outbound lanes of the expressway, but when the officer tried to get over the median fence, he fell into the inbound lanes and was struck and killed by a morning commuter." The Fourth Department affirmed the conviction, finding that DaCosta's conduct was reckless and "set in motion and legally caused the death of the officer." The issue for the Court of Appeals is whether DaCosta's conviction for reckless manslaughter was supported by legally sufficient evidence. DeCosta argues that the so-called "triggering cause" of the officer's death--i.e. jumping off of an unstable six-foot high fence--was neither foreseen nor foreseeable. The People argue that the ultimate harm--i.e. the office getting hit by a car--was a completely forseeable outcome of DaCosta's flight and his choice "of a dangerous route believing or hoping that it was likely to either stop or slow the pursuit."

I think DaCosta has a tough argument to make here--it sounds like this is a case primarily about proximate cause. There does not seem to be any question that DaCosta engaged in the necessary risk creation--he knew he was being chased by police, and he deliberately ran across a busy expressway in order to avoid capture. That conduct almost certainly creates a substantial risk of death to those officers chasing him, and DaCosta disregarded that risk by continuing to flee thru traffic. The real question is whether that recklessness was the legal cause of the officer's death. It has admittedly been awhile since 1L torts class, but my understanding is that the precise manner of death does not have to be foreseen--it is enough that the outcome itself is foreseeable. In this case, the risk created by DaCosta's conduct is that an officer would get hit by a car and die, and that is precisely what happened. There is no disconnect between the risk created and the outcome. Add to that the procedural hole DaCosta starts in--since he is making a legal sufficiency argument, the evidence will be viewed in a light most favorable to the People--and DaCosta would seem to have an uphill battle ahead of him. That said, it will be interesting to see how the Court comes out on this one.

The other case being argued before the Appeals in January that caught my interest is People v Burns. The question in Burns is whether a validly executed waiver of right to appeal precludes an appellant from arguing that his sentence was harsh and excessive before the Appellate Division. The appellants are arguing that "the waiver does not divest the Appellate Division of its constitutional power to reduce a 'rare' or 'extraordinary' or 'grossly excessive' sentence in the interest of justice." Not a terribly sexy issue, but it is one of enormous practical significance for everyday appellate practitioners (especially assigned counsel). Often, the only viable issue on a plea appeal is that a sentence is harsh and excessive, and as it stands the Appellate Divisions are refusing to entertain a harsh and excessive argument if defendant executed a valid waiver of right to appeal.