Monday, November 28, 2005

Court of Appeals: "straight line" method used to determine distance from school for purposes of drug prosecution

People v Robbins, ___ NY3d ___, 2005 WL 3108205

See what happens when you take a few days off for the holiday? Not only do I still have a leftover Court of Appeals decision from the November 21, 2005 packet to blog about, but the Appeals handed down two more significant criminal decisions the next day, November 22. One of those two new decisions, People v Carvajal, is a true monster involving a coast-to-coast drug conspiracy and a thorny multi-state "constructive possession" issue. For tonight, I will post on the simpler of the two decisions, People v Robbins (available here).

First, some brief background. New York (like most states) punishes those who sell drugs on or near school grounds more harshly than other dealers. In order to fall under the reach of the enhanced statute, the drugs must be sold within 1000 feet of a school zone. The question arises: how do you measure the 1000 feet? As the crow flies, or as the junky walks? The Appeals resolved that question in People v Robbins. Simple answer: the distance is measured by the "straight-line" method, or as the crow flies. From the opinion:

[T]he intent of the statute was to circumscribe a fixed geographical area, without regard to whether that area might contain obstacles around which people might have to detour. [...] Defendant's contrary reading would introduce uncertainty and open the statute to a charge of vagueness. Plainly, guilt under the statute cannot depend on whether a particular building in a person's path to a school happens to be open to the public or locked at the time of a drug sale. At a minimum, '[r]equiring speculation about pedestrian routes would create uncertainty in a statute which was meant to establish clear lines of demarcation.'"

People v Robinson, 2005 WL 3108205.)

No surprise here: given the choice between an interpretation of the statute that was unworkable (using the so-called "pedestrian method" to measure the distance) and one that provides concrete guidance (the "straight line" method), the Court of Appeals chose the workable solution. I would add more, but I'm a little late on this one, and the Volokh and Crimlaw are all over it (here and here).

Monday, November 21, 2005

Court of Appeals: 'intent to commit a crime therein' element of burglary not satisfied solely by intent to violate an order of protection

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 ___ [2005].)

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." ( __.) 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.

Friday, November 18, 2005

Appellate prosecutor's assertion that stenographic record "may well" be wrong sufficient to raise factual dispute requiring remand for hearing?

People v Linnan, 2005 NY Slip Op 08380, 2005 WL 3017743 [available here]

In another decision dealing with jury selection error, the Fourth Department in People v Linnan remanded the case to the trial court to determine if a juror who had expressed doubt about her ability to be fair and impartial was sufficiently rehabilitated later in the voir dire process. The interesting thing about Linnan is not the underlying legal issue; as I've noted before, a trial court's refusal to strike a juror for cause who has made statements raising a doubt as to her ability to be fair and impartial and who gives less than unequivocal assurances about her ability to be fair and impartial is a frequent ground for reversal. Rather, Linnan is strange because it appears from the decision that the stenographic record from the lower court establishes that the the juror in question did not give any type of expurgatory oath, i.e. the juror made statements casting doubt on her ability to be fair and impartial and never subsequently gave unequivocal assurances of such an ability. From the Court's decision:

The transcript of voir dire establishes that, when defense counsel asked the prospective juror in question whether she could be 'objective' after viewing graphic photographs of the victim, she responded, 'Not being subjected to that, maybe. I'm not certain how I would respond.' Defense counsel then asked her, 'Are you saying [that] if you did look at the pictures, you can't say whether you would be fair and impartial after looking at them?' She responded, 'That's correct.' Seeking clarification, defense counsel asked, 'Based on the graphic nature, not necessarily on what [the People might prove or fail to prove]?" The prospective juror responded, 'Right.'

On its face, the record discloses no follow-up questioning of that prospective juror and, indeed, it appears from the record that defense counsel immediately turned his attention to another prospective juror who was not subsequently challenged for cause and who said she thought she could 'maintain [her] objectivity' even after viewing 'real graphic photographs'.

(People v Linnan, 2005 WL 3017743 [brackets in original].)

Case closed, right? The juror said she could not be fair and impartial, and the stenographic record reveals that juror never later said she could be fair and impartial in spite of her misgivings. Conviction reversed. Right?

Well, not quite. In their brief, the People "assert[ed] that the exchange attributed by the transcript to the prospective juror not challenged for cause 'may well have' involved the prospective juror challenged for cause, and that the prospective juror challenged for cause may thereby have rehabilitated herself as an impartial juror." (Id.) If the People had any kind of proof or could point to any ambiguity from the trial record to support that bald assertion, the Court did not mention it in the decision. So what we are left with is a transcript that is clear that the juror in question never gave the required unequivocal assurances, and a prosecutor who asserts in an appellate brief that maybe the stenographic record is wrong. That can't possibly be enough to raise a legitimate "factual dispute" that would require a remand for a hearing instead of a straight reversal, can it? Ummm . . . from the Court's decision:

Given the factual dispute concerning which prospective juror engaged in the subsequent exchange with defense counsel, we are unable to determine whether the prospective juror challenged for cause, despite having 'cast serious doubt on [her] ability to render a fair verdict under the proper legal standards', thereafter gave the requisite unequivocal assurances that her prior state of mind would not influence her verdict and that she could be fair and impartial. We therefore hold the case, reserve decision and remit the matter to County Court for a reconstruction hearing to determine which prospective juror made the expurgatory statements.

(Id. at __.)

So even if the record is relatively clear, a "factual dispute" can apparently be created by a prosecutor's conclusory assertions contained in a legal brief that the record might not really say what it appears to say.

Thursday, November 17, 2005

Court of Appeals: one big mistake can ineffective assistance of counsel make

People v Turner, ___ NY3d ____ [available here]

Reversals based on ineffective assistance of trial counsel are exceedingly rare, and require an extraordinary showing of incompetence on the part of trial counsel. Ordinarily, the totality of the circumstances control--if on the whole, trial counsel did not stink up the joint too bad, mistakes made along the way will be overlooked and not constitute ineffective assistance. (See People v Benevento, 91 NY2d 708, 712 [1998] [Constitution "guarantees the accused a fair trial, not necessarily a perfect one"].) So it was a bit of a surprise to read the opening paragraph of a decision handed down today by the Court of Appeals:

Very rarely, a single lapse by otherwise competent counsel compels the conclusion that a defendant was deprived of his constitutional right to effective legal representation. This is such a rare case, in which both defendant's trial and appellate lawyers failed to perceive that a statute of limitations defense would have prevented their client's manslaughter conviction.

(Turner, ___ NY3d at ___ [emphasis added].)

What makes the Turner decision so remarkable is that this is a reversal based on ineffective assistance of counsel, once removed--the Court held "appellate counsel was ineffective for failing to argue that trial counsel was ineffective." (Id.) From the Court's decision:

A reasonable defense lawyer at the time of defendant's trial might have doubted that the statute of limitations argument was a clear winner--but no reasonable defense lawyer could have found it so weak as to be not worth raising. Yet defendant's trial counsel did not raise it. Trial counsel's error should have been apparent to any reasonable appellate counsel, and should have prompted that counsel to make an ineffective assistance argument.

Really, there are two important parts of the Turner decision. First, the idea that one glaring error in an otherwise competent defense can give rise to a valid ineffective assistance argument is a welcome loosening of New York's caselaw in this area. Second, the Court also holds that a single error by appellate counsel--failing to recognize and raise an ineffective assistance argument--can itself constitute ineffective assistance of appellate counsel; this is likewise breaking somewhat new ground in the ineffective assistance area. Both of these parts of Turner put some teeth back into the ineffective assistance caselaw, and could potentially give future defendants one more bite at the apple (i.e. reversal might be possible even where 1) trial counsel fails to recognize a major substantive error at trial, and 2) appellate counsel fails to recognize that trial counsel's failure gives rise to a meritorious appellate issue).

Only time will tell if Turner actually has an impact on the number of "ineffective assistance" reversals. Indeed, the decision takes great pains to point out, again and again, what a "rare" factual scenario Turner presents, and in the course of the decision points out the fairly egregrious mistakes defense counsel can make in isolation and fail to crest the high threshold for "ineffective assistance" relief:

[W]e reaffirm today, that such errors as overlooking a useful piece of evidence, or failing to take maximum advantage of a Rosario violation, do not in themselves render counsel constitutionally ineffective where his or her overall performance is adequate.

So Turner leaves the bar for ineffective claims fairly high--trial and appellate counsel still have to completely miss a "clear cut and potentially dispositive" issue. (Turner, __ NY3d at ___.) However, any decision that could potentially put some bite back into the "ineffective assistance" caselaw is a welcome and unexpected development.

Wednesday, November 16, 2005

Fourth Department receptive to "rolling start" argument for Miranda violation?

People v Caballero, 2005 WL 3018031, 2005 NY Slip Op 08393

A suspect in a sexual abuse investigation was taken into custody and transported to police headquarters, where he was deposited in an "interview" room to await questioning. Two police investigators started talking with the suspect at 12:20 p.m. Miranda warnings were not given until 12:55 p.m. One of the interrogators later explained at the suppression hearing that the point of the pre-Miranda "general conversation" was "just to let [the suspect] get comfortable with me and comfortable with [the other investigator], . . . so he knew that both of us were decent-type guys, low key. You know what I mean? Just general easy conversation." (People v Caballero, Appellant's Brief at 10.) After Miranda warnings, the suspect gave a written statement implicating himself, and was convicted after trial of the alleged counts of sex abuse.

On appeal (People v Caballero, 2005 WL 3018031 [available here]), it was argued that the 35 minutes ofpre-Miranda conversation amounted to interrogation, and should have been preceded by Miranda warnings. As appellant explained, "the type of 'rolling start' employed by the Investigators, in which Mr. Caballero was softened up for further questioning with pre-Miranda tactics designed to get Mr. Caballero to let his guard down and speak freely with the investigators, was a 'technique of persuasion' amounting to interrogation." (Id. [citing Rhode Island v Innis, 446 US 291,299 [1980].)

While the Fourth Department did not reverse on this issue, its decision in Caballero is notable for what is does not say--the Court disposed of the issue outlined above by holding "[d]efendant failed to preserve for our review his contention that his pre-Miranda conversation with the police constituted custodial interrogation by failing to raise that specific contention in his motion papers or at the hearing. We decline to exercise our review that contention as a matter of discretion in the interest of justice." (People v Caballero, 2005 WL 301803].) That's it. Conspicuously absent is the next sentence that often follows the Court's observation that an issue is not preserved, i.e. "If we were to reach this issue, we would find it without merit," or some such language. The absence of that next sentence in Caballero suggests that, if the issue is properly preserved, the Court may very well find that the type of "rolling start" to interrogation employed by the investigators in Caballero is interrogation and must be preceded by Miranda warnings. Indeed, the Justices seemed legitimately interested in the issue at oral argument and seemed troubled by the idea that police officers can engage in "rapport building" for an extensive amount of time prior to giving Miranda warnings and then shift to questions about a specific crime.

This issue is potentially a good one for defendants if for no other reason that the tactic at issue--police making "general easy conversation" with a suspect before giving Miranda warnings--is so common. Assuming the appropriate facts are present (i.e. police chatting up a suspect prior to Miranda warnings), criminal defense trial attorneys would do well to add this argument to their suppression motion papers.

Tuesday, November 15, 2005

"Drugs in a room" presumption not triggered where drugs found at bottom of stairs leading to apartment

People v Edwards, 2005 NY Slip Op 08571, 2005 WL 3022096

Under Penal Law section 220.25, "the presence of a controlled substance 'in open view in a room, other than a public place,' is presumptive evidence of knowing possession thereof by any person in 'close proximity to such controlled substance at the time such controlled substance was found.'" (People v Edwards, 2005 NY Slip Op 08571, 2005 WL 3022096 [available here].) Essentially, if there are many people in an apartment, and there is a big pile of cocaine on the table in plain view, and the cops bust in, everyone in the room is presumed to have possessed the cocaine. The question confronted in Edwards deals with the scope of the "drugs in a room" presumption; the facts are briefly stated in the Court's opinion:

Here, the police executed a search warrant in an upstairs apartment where defendant was found. After using a battering ram to access the locked door from the porch to the stairway leading to the apartment, the police observed a baggie containing a white rock-like substance on the first step of the stairway. [...] The police entered the apartment through an open door at the top of the stairway and found defendant and three children in the rear of the apartment.

On those facts, the Fourth Department (reasonably enough) found the "drugs in a room" presumption inapplicable: "on these facts, the controlled substance was not 'in open view in a room' and that, in any event, defendant not in 'close proximity to such controlled substance at the time such controlled substance was found.'" (Id.) The Court went further, and found the error in charging the jury on the "drugs in a room" presumption could not be harmless because "there is no way to discern whether the jury's verdict 'was predicated on the illegally charged presumption or on a finding of constructive possession irrespective of the presumption.'" (Id.)

It warms my heart when an appeals court gets it right on facts like this; not unlike the recent Court of Appeals case in People v Gomez that held a suspect's consent to search his car did not imply consent to destroy the car with a crowbar (post here), the result in Edwards comports with logic and common sense, so much so that one wonders how the trial court got it wrong in the first place.

Monday, November 14, 2005

Pretrial denial of right to counsel still subject to harmless error analysis

People v Lott, 2005 NY Slip Op 08490, 2005 WL 3020529

On the heels of People v Wardlaw, the Fourth Department this term reasserted the holding that the denial of a defendant's right to counsel at suppression is subject to constitutional harmless error analysis. You can read my previous posts on Wardlaw here, here and here. In a nutshell: in Wardlaw, the Fourth Department held (for the first time in New York) that the denial of a defendant's right to counsel could be subject to harmless error analysis if the deprivation occurred at a pretrial stage. The Court of Appeals had previously given some hints of tracking in that direction, but had never gone as far as the Fourth did in Wardlaw. The Court of Appeals has granted leave to hear Wardlaw, so we will see soon enough if the Appeals agree with Wardlaw, but in the meantime the Fourth Department, by this term's decision in People v Lott shows no sign of retreating.

Mr. Lott ended up luckier than Mr. Wardlaw--the Court in Lott held, after applying the harmless error analysis, that the deprivation of Mr. Lott's right to counsel was not harmless because the defendant (while unrepresented) filed a notice of alibi that was at odds with the proof at trial. This was enough for the Court to conclude the deprivation of Mr. Lott's right to counsel was not harmless: "the defense was impaired to a significant extent by the pretrial denial of the right to counsel, particularly as a result of defendant's service of the pro se notice of alibi. We thus conclude that there is a reasonable possibility that the error contributed to defendant's conviction." (People v Lott, 2005 WL 3020529.)

The Lott decision illustrates why the Fourth Department's rule in Wardlaw is such a potentially damaging one--it comes dangerously close to establishing a counter-intuitive standard, i.e. if the defendant is overwhelmingly guilty, the trial court may deny that defendant an attorney at any pretrial stage and have the error be excused as harmless. But are not the most palpably guilty those who most need an attorney? There is a reason that some fundamental rights have been traditionally pushed beyond the reach of the harmless error doctrine. But as long as Wardlaw stands, the right to counsel (at least at a pretrial stage) will not be protected.

Thursday, November 10, 2005

Decision Day: October, 2005 Term

There are some interesting decisions in the Fourth Department's October, 2005 packet. I am still sifting through the opinions, and will post on the more interesting ones over the next few days. But for tonight, rest assured that the trend of reversals based on error during jury selection continues this term with People v Harris (KA 03-00404,[available here). In Harris, a prospective juror "indicated that her assessment of defendant's guilt would be influenced by the number of complainants, thus raising an issue concerning her ability to be fair and impartial." (Id.) At that point, it was "necessary to obtain her unequivocal assurance that her prior state of mind would not influence the verdict and that she would render an impartial verdict based solely on the evidence." (Id.) The prospective juror never gave such an assurance, and therefore the Court held "the denial of defendant's challenge for cause thus constitutes reversible error inasmuch as defendant had exhausted all of his peremptory challenges before the completion of jury selection." (Id.)

Another interesting wrinkle from Harris--the Court also reversed "based on the court's improper curtailment of defense counsel's questioning of prospective jurors with respect to their ability to follow the court's instructions on the limited use of Molineux evidence." (Id.) This is surprising, only because, as the Court notes, a trial court enjoys "broad discretion in controlling and restricting the scope of voir dire," and appellate courts usually do not second-guess an exercise of discretion. (Id.) That the Fourth Department saw fit in this case to set an outer boundary on a trial judge's discretion during voir dire is a welcome development.