New York Criminal Defense Blawg

On June 14, 2004, night club owner Neville Wells struck with his vehicle and and killed 37-year-old Judith Gubernikoff on Manhattan’s Lower East Side.  A grand jury charged him with one count of murder in the second degree and assault in the first degree (both under depraved indifference theories), and one count each of vehicular manslaughter in the second degree, vehicular assault in the second degree, and assault in the second degree.

The defendant “benched” the case and a trial was held without a jury before the Hon. Richard Carruthers beginning on May 3, 2005.  According to the trial transcript, Wells blew through a red light and hit the vehicle in which Ms. Gubernikoff and her father were riding.  Eyewitnesses stated that Wells was driving very fast at the time of the accident, completely disregarded the semaphore in the intersection, and was completely incoherent immediately after the accident.  In fact, Wells’ blood alcohol content at the time he was tested shortly after the accident was between .25% and .27%, which is more than three times the legal limit.

After trial, Wells was convicted of Murder in the Second Degree under a “depraved indifference” theory and sentenced by the judge to concurrent indeterminate prison terms of from seventeen years to life.  Wells appealed his conviction directly to the Supreme Court, Appellate Division, First Department, arguing that “that the evidence [was] insufficient to sustain conviction of murder in the second degree and assault in the second degree because it failed to establish that his conduct was so morally deficient and devoid of concern for life as to warrant exposing him to the same criminal liability that the law imposes for intentional conduct.”  See People v. Wells, 53 A.D. 3d 181 (1st Dep’t 2008).  Additionally, before his appeal was decided in the intermediate appellate court, New York’s highest court, the Court of Appeals, decided People v. Feingold, 7 N.Y.3d 288 (2006), which overturned People v. Register 60 N.Y.2d 270 (1983).  After Feingold, the standard for depraved indifference crimes to require courts to look at the mental state from a subjective point of view, finding guilty only where the particular defendant demonstrates “‘a willingness to act not because [he] intends harm, but because [he] simply doesn’t care whether grievous harm results or not  .  .  .  .   A defendant must possess an “utter disregard for the value of human life  .  .  .  embodied in conduct that is so wanton, so deficient in a moral sense of concern, and so blameworthy as to render the actor as culpable as one’ who intends the result of his acts.”  Wells v. Perez, 10 Civ. 1107 (S.D.N.Y. 2010) (Report and Recommendation of Francis IV, J.).

Wells’ conviction was upheld by the First Department, in a 2008 Opinion authored by Justice Tom.  In Wells, the Appellate Division ruled that since the crime took place and the trial was held in the Register era, New York’s standard of proof necessary to support a conviction of depraved indifference murder had been met.  The court set forth the standard it applied as follows:

Depraved indifference murder is committed when, “[u]nder circumstances evincing a depraved indifference to human life,” a person “recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person” (Penal Law §125.25[2]).  Similarly, assault in the first degree under a depraved indifference theory is committed when, “[u]nder circumstances evincing a depraved indifference to human life,” a person “recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to another person” (Penal Law §120.10[3]).  A person acts recklessly “when he is aware of and consciously disregards a substantial and unjustifiable risk” (Penal Law §15.05[3]).  The law in effect at the time of defendant’s trial did not evaluate depraved indifference under the subjective mens rea standard announced in Feingold, 7 N.Y.3d 288, 819 N.Y.S.2d 691, 852 N.E.2d 1163 [2006], supra, but instead referred to an objective standard reflected by the “factual setting in which the risk creating conduct must occur” (see Register, 60 N.Y.2d at 276, 469 N.Y.S.2d 599, 457 N.E.2d 704).  Prior to Feingold, our jurisprudence had not progressed to the point where recklessness had been abandoned in favor of the mens rea of depraved indifference to human life, and then only by a closely divided Court of Appeals, whose dissenters saw no reason to overrule Register (see id. at 300, 469 N.Y.S.2d 599, 457 N.E.2d 704 [Ciparick, J., dissenting], 301 [Kaye, Ch. J., dissenting], 305 [Graffeo, J., dissenting]).

.  .  .

Under Register, depraved indifference murder requires that a defendant’s act be imminently dangerous, present a very high risk of death to others and be committed under circumstances that evince a wanton indifference to human life or a depravity of mind (see Register, 60 N.Y.2d at 274, 469 N.Y.S.2d 599, 457 N.E.2d 704).  The requirement of depraved indifference refers neither to the mens rea nor to the actus reus; rather, it refers to “the factual setting in which the risk creating conduct must occur” (id. at 276, 469 N.Y.S.2d 599, 457 N.E.2d 704).

The court listed several factors which led to its conclusion that the Register standard had, in fact, been met in this case:

• Defendant chose to drive while heavily intoxicated;
• Defendant was traveling 50-60 mph on busy NYC streets;
• In addition to the speed, defendant drove “dangerously” as evidenced by his striking a parked car and nearly striking another before the fatal accident;
• Although “heavily intoxicated,” defendant still had the presence of mind to attempt to flee the scene; and
• Defendant had previously attended a class aimed at preventing drunk driving

Based on the application of these facts to the Register standard (“[t]he act of driving a vehicle while in a highly intoxicated state, at high speed, on city streets, ignoring traffic signals and failing to stop after striking a parked vehicle demonstrates reckless conduct that created a grave risk of death to others so as to constitute depraved indifference to human life”), the First Department upheld the conviction.

Six days later, however, the Court of Appeals, in People v. Jean-Baptiste, 11 N.Y.3d 539 (2008), retroactively applied Feingold to all cases pending on direct appeal “in which the defendant has adequately challenged the sufficiency of the proof as to his depraved indifference murder conviction.”  Id. at 542.

Defendant then petitioned the United States District Court for the Southern District of New York for a writ of habeas corpus.  Wells v. Perez, 10 Civ. 1107 (DLC) (JCF) (S.D.N.Y. 2010).  The case landed in front of the Honorable Denise L. Cote and Magistrate Judge James C. Francis IV.  In his petition, arguing that his state court conviction was obtained in violation of clearly established Federal law.

In a letter recommendation report to Judge Cole, Magistrate Judge Francis wrote that under recent New York law, “a defendant’s decision to drink, made hours in advance of a later accident, is insufficient to uphold a depraved indifference conviction.”  Later, Judge Francis wrote, “[t]herefore, the First Department’s holding in Wells, which upheld the petitioner’s convictions for depraved indifference crimes based on a finding of culpable mens rea at the moment he chose to begin drinking, is no longer good law.”  After a lengthy discussion of the various procedural issues that mark the case, Judge Francis noted that the First Department reached the wrong result on the merits, stating, in his letter to Judge Cote that “no rational trier of fact could have convicted the petitioner of second degree murder or first degree assault under depraved indifference theories based on the evidence at trial.”  Francis wrote that the evidence submitted that Wells had attended an alcohol rehabilitation training course was only relevant to his state of mind at the time he began drinking which under the properly applied Court of Appeals decisions, “is insufficient to support the conclusion that, prior to the acidence, he possessed a culpable state of mind tantamount to intent to harm.”  The fact of intoxication to an extreme degree actually negated his intent: “Mr. Wells’ level of intoxication  .  .  .  would have made it extremely difficult, if not impossible, for him to comprehend the nature and consequences of his actions such that he could be found to have evinced a conscious, callous disregard for those consequences; in any case, proof that Mr. Wells possessed such a culpable mindset was not presented at trial.”  Based on its analysis of these factors, among others, Judge Francis recommended that the petition be granted, but also held that a retrial of Wells would not violate double jeopardy standards.

If you have been charged with a serious offense, you need experienced counsel with knowledge of New York statutory and decisional law.

Criminal Possession of a Controlled Substance in the Third Degree: Possession with the Intent to Sell.  PL 220.16(1).

A common felony in New York is Criminal Possession of a Controlled Substance in the Third Degree, or Possession with the Intent to Sell (New York Penal Law Section 220.16[1]).  Interestingly, possessing a controlled substance with the intent to sell it is a Class B felony, which means that it is just as a serious as selling a small quantity of a controlled substance (see Criminal Sale of a Controlled Substance in the Third Degree, PL 220.39 [sentencing chart]).  There is no minimum weight or amount of drugs required under this crime.  Indeed, one can be found guilty of this crime even when he possesses a miniscule amount of drugs, so long as the prosecution can prove that the person intended to sell those drugs.

The intent element of this crime can be proven in several different ways.  For example, evidence of contemporaneous drug sales can be used to prove that the drugs recovered by the police were intended for sale.  Sometimes, undercover officers may observe individuals make several suspicious hand-to-hand exchanges on the sidewalk with apparent drug buyers.  If the police later arrest such a seller without apprehending any of the apparent buyers, they will be unable to charge the seller with any drug sales.  However, if the police discover drugs in the seller’s possession, they can charge the seller with the equally serious possession with the intent to sell.  See People v. Cox, 246 A.D.2d 362 (1st Dept. 1998) (noting that evidence of uncharged and contemporaneous drug sales were highly probative of the defendant’s intent to sell).

The intent element can also be inferred, in some cases, by the quantity of controlled substance recovered in the suspect’s possession.   Although there is no bright line rule or minimum amount, if the quantity in the person’s possession exceeds what might be considered a quantity fit for personal use, then a jury may be able to find that the person intended to sell it.  See People v. Alvino, 71 N.Y.2d 233, 245 (1987); People v. Patchen, 46 A.D.3d 1112, 1113 (3d Dept. 2007). But see People v. McCoy, 873 N.Y.S.2d 372 (3d Dept. 2009).

Of course, if a person possesses a very large quantity of a controlled substance, they may also be subject to other felony charges (see e.g. Criminal Possession of a Controlled Substance in the First Degree, Penal Law Section 220.21; Criminal Possession of a Controlled Substance in the Second Degree, Penal Law Section 220.18; Criminal Possession of a Controlled Substance in the Third Degree, Penal Law Section 220.16[8]; Criminal Possession of a Controlled Substance in the Fourth Degree, Penal Law Section 220.09; Criminal Possession of a Controlled Substance in the Fifth Degree, Penal Law Section 220.06).  Further explanations of these quantity-based charges are available here.

The intent element can also be proven by the packaging of the controlled substance or by other paraphernalia in the person’s possession.  For example, one’s guilt of this charge may be shown where the controlled substances are individually packaged in small amounts meant for distribution to multiple buyers, or where the person has a quantity of a controlled substance and numerous small empty bags or vials seemingly waiting to be filled for sale.  But see People v. Sanchez, 86 N.Y.2d 27, 35 (1995); People v. Martinez, 228 A.D.2d 185 (1st Dept. 1996) (no intent to sell where only a small amount of money and drugs and no sales-like packaging).

Other paraphernalia sometimes considered to be evidence of the intent to sell include large quantities of cash in small denominations, multiple cell phones, tin foil, razors, or a weapon such as a firearm.   See People v. Jones, 47 A.D.3d 961, 963 (3d Dept. 2008); People v. Hawkins, 45 A.D.3d 989 (3d Dept. 2007).

Finally, the intent element can always be proven with statements made by the suspect.  The possessor of the controlled substances might make an incriminating statement to an undercover officer, on a wiretapped telephone, or even to a prosecutor in an interview.  See e.g. People v. Henry, 73 A.D.3d 1391 (3d Dept. 2010).

If you find yourself charged with possession with intent to sell or are looking to appeal a conviction for such a charge, you should speak to an experienced criminal attorney about defending drug charges of PL 220.16, or appealing a conviction for a drug or narcotics offense.

On March 31, 2010, the Second Circuit Court of Appeals issued a landmark decision in which it held that a New York state sentencing law that gave trial judges the discretion to sentence repeat felony offenders to life sentences was unconstitutional.  See Besser v. Walsh, 2010 U.S. App. Lexis 6704 (2nd Cir. Mar. 31, 2010).  The decision is significant for many reasons, and it will be interesting to see how prosecutors and the New York state legislature responds.

Previously, a criminal defendant convicted of a felony was eligible for “discretionary persistent felony offender” sentencing if he had two prior felony convictions for which he had received sentences of one year (or more) in jail.  See Penal Law Section 70.10.  Then, if the court decided that the “history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision indicate that extended incarceration and life-time supervision will best serve the public interest,” the court could sentence the defendant to a sentence ranging from 15 years to life to 25 years to life.  Id.

Many defendants sentenced to life sentences as “discretionary persistent felony offenders” unsuccessfully challenged the constitutionality of the law in New York state appellate courts.  However, in 2004, the U.S. Supreme Court issued a decision – Blakely v. Washington, 542 U.S. 296 (2004) – that laid the groundwork for Besser.  In that case, the Supreme Court decided that a Washington state statute that permitted judges to enhance sentences where they found “aggravating factors” was unconstitutional, in that it violated the Sixth Amendment by allowing judges to sentence defendants based upon facts that were not expressly determined by juries.  The Second Circuit relied on this decision in Besser, explaining: “the Sixth Amendment right to a jury trial, applicable to the states as incorporated by the Fourteenth Amendment, prohibits the type of judicial fact-finding resulting in enhanced sentences under New York’s [discretionary predicate felony offender] statute.”  Besser v. Walsh, 2010 U.S. App. Lexis 6704, at *4 (2nd Cir. Mar. 31, 2010).

Although Besser is not technically binding upon New York state courts, the decision cannot be ignored for several reasons.  First and foremost, Besser is a straightforward application of the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004), which held that a Washington state sentencing statute very similar to New York’s discretionary persistent felony offender statute was unconstitutional for the reasons explained above.  See Besser, 2010 U.S. App. Lexis 6704, at *38-44, 52-59.  Thus, it is likely only a matter of time before either the U.S. Supreme Court or the New York Court of Appeals issues a decision on New York’s discretionary predicate felony offender sentencing statute in line with Blakely and Besser.[1] After all, as a practical matter, the New York Court of Appeals will have to soon recognize that the Second Circuit’s decision provides an almost foolproof avenue for relief for anyone sentenced in New York state court as a discretionary persistent felony offender: a writ of habeas corpus.  Indeed, given that the Besser panel unanimously decided to vacate the sentences of all four of the appellants sentenced post-Blakely to discretionary persistent felony offender life imprisonment, see Besser, at *62, New York state courts would have to expect defendants to prevail on federal habeas appeals if they were sentenced to life imprisonment under this law.

The New York Assembly can probably figure out a way to re-write their law to accomplish their original objectives.  Indeed, it would be easy for the legislature to restructure the sentencing laws to increase the penalties for repeat offenders without creating a constitutional problem.  The law could simply provide for wide sentencing ranges for people with three (or more) felony convictions, with a maximum life sentence.  But, in the meantime, defendants will no longer have to serve life sentences as “persistent felony offenders,” because the Federal courts will simply overturn those sentences.

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[1] But see People v. Rivera, 5 N.Y.3d 61 (2005) (upholding the constitutionality of New York’s discretionary persistent felony offender sentencing statute by concluding that it was distinguishable from the Washington state sentencing statute overturned in Blakely).  Notably, however, in Besser, the Second Circuit explicitly considered Rivera and flatly rejected its holding.  See Besser, supra, at *52-59.

Matthew Galluzzo, of Galluzzo & Johnson LLP and the newyorkcriminaldefenseblawg.com recently won an jury acquittal for the firm’s client who had been charged with possessing a switchblade knife.  The facts of the case were relatively straightforward.  One morning in October 2009 the defendant was about to board a New York City subway train carrying what he believed to be a perfectly legal knife on his waistband.  Police observed him with the knife attached to his belt in plain view, arrested him, and charged him with a variation of Criminal Possession of a Weapon in the Fourth Degree, Penal Law section 265.01.

At trial, Galluzzo conceded the facts of the arrest and that the defendant possessed the knife in question.  The defense employed was simple, yet effective: the knife was not a switchblade.

Penal Law section 265.01 reads as follows:

§ 265.01 Criminal possession of a weapon in the fourth degree.
    A  person  is  guilty of criminal possession of a weapon in the fourth
  degree when:
    (1) He or she possesses any firearm, electronic dart  gun,  electronic
  stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal
  knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles,
  metal  knuckles,  chuka  stick,  sand  bag,  sandclub,  wrist-brace type
  slingshot or slungshot, shirken or "Kung Fu star"

The definition of switchblade is contained in Penal Law section 265.00(4).

    4. "Switchblade knife" means any knife which has a blade  which  opens
  automatically  by  hand  pressure  applied  to a button, spring or other
  device in the handle of the knife.

Thus, in order to prove the defendant’s guilt of possessing a switchblade, the People had to prove that the knife recovered from the defendant was a “switchblade,” as set forth in the charging documents.  The defense challenged the prosecution’s characterization of the knife in question as a switchblade from the outset.  In his opening statement, Galluzzo asserted that “Every knife has two parts, a blade and a handle.  And this button or notch . . . is, in fact on the blade.  So when you’re opening this knife, you’ll see what you’re really pushing on is the blade and not he button on the handle.”

The arresting officer testified as to the details of the arrest, and reported to the jury that the defendant told him that he carried the knife for his protection, since he could not legally carry a gun.  The officer testified that the defendant acted in a cool, calm and collected manner in dealing with the officers, and that he “gently” handed the knife over when asked to do so.  The defense asked the arresting officer a series of questions about the location of the button on the knife, including the following:

Q: But the button is basically on the back of the blade itself so as the blade moves, the button is moving too?

A: Correct.

Later, when the arresting officer’s partner testified on cross-examination, the following colloquy took place:

Q: Now that little notch without opening it, that little notch on the knife that you are pushing, that’s made out of metal, right?

A: Yes.

Q: And it’s the same metal that the blade is made out of or appears to be, right?

A: Yes.

Q: And, in fact, that little notch is actually attached to the back of the blade, correct?

A: That’s correct.

Q: And that little notch because it’s attached to the blade swings to the other side of the knife when the knife pops open; right?

A: That’s correct.

Q: And then when you close the knife back up, that little notch that’s attached to the blade swings back through the handle of the knife back into the back where it is now, right?

A: That’s correct.

Later, in summation, Galluzzo highlighted the confusing nature of the statute in question:

“You know what, it seems almost absurd that we’re here.  Why can’t someone just tell us whether this things is a switchblade or not.  The legislature was supposed to tell us  But, unfortunately, once again, we have been failed by our State legislature because we’ve been given a statute that’s poorly written and does not make clear what is and what is not a switchblade.  As a result, people are getting arrested for possessing knives that they don’t realize are illegal, and you’re being brought here and forced to sit through a trial to sort this whole mess out.”

The defense went on to discuss the knife itself:

“You could see if you look up close at the knife that it’s all one piece of metal, that blade, and that blade has a sharp side and on the back it has this little notch sticking out.  So are you pushing a button or device in the handle?  No, you’re pushing the blade when you’re opening up the knife.”  Galluzzo also challenged the characterization of the mechanism on the knife as a ‘button’: “You could compare that where — to what you think is a classic switchblade you may have seen in old movies like West Side Story, Twelve Angry Men or Rebel Without a Cause  .  .  .  where it’s the switchblades that people have.  Maybe you’ve seen one in real life or maybe on TV, you would think of a long thin handle and right in the middle of that long thin handle, there is a button, a button you have to depress like on a computer keyboard, press that button in the middle of the handle and out pops the long, thin blade that’s about the same length as the handle itself . . . . That’s the kind of button that this statute is [] talking about.  This is not a button that you’re actually pushing.  What you’re actually pushing, again, is the blade itself.”

The jury presumably agreed with the defense’s interpretation of the statute, and returned a not guilty verdict.

Yesterday the Appellate Division, First Department decided In re: Tatiana N., N.Y.L.J. (1st Dep’t April 8, 2010).  The facts of the case were somewhat interesting:

“This juvenile delinquency proceeding arose from events that occurred at a movie theater on East 161st Street in the Bronx, in which a family was subjected to a moviegoer’s worst nightmare: a group of rowdy, uncontrolled teenagers sat near them and disrupted their enjoyment of the movie, and then, having ignored or mocked requests to behave properly and been ejected from the movie theater, lay in wait for the family outside the theater in order to surround, threaten and attack them when they emerged from the theater.

On November 24, 2007, appellant Tatiana N. and her co-respondent Terrence M., accompanied by a number of other youths, arrived at the theater at approximately 10 p.m. Complainants J.F. and R.W., along with J.F.’s 24-year-old daughter and her two-year-old son, were watching a movie that was about two-thirds under way. The youths sat near the family and began making crude remarks, using their cell phones, and being noisy and disruptive. J.F. and then R.W. asked them “to please keep the noise down.” Some unpleasant remarks were offered in response, which J.F. and R.W. initially disregarded, until, after a subsequent request to keep the noise down, the group responded by becoming aggressive and cursing, saying “[t]he [h]ell with you,” “[f]___ you,” and “[s]hut up.” R.W. then left his seat to go to the lobby to complain, brushing Terrence’s arm or cell phone in the process. The teenagers followed him out. J.F., concerned for R.W.’s safety, followed as well.

When the group reached the lobby, an argument ensued in front of a theater security guard. After about three minutes R.W. and J.F. were permitted to return to the movie; the teenagers were not. A few minutes after they had returned to their seats, however, one of the theater staff asked them to return to the lobby. The group of teens was still there, cursing and threatening to “kick your ass,” and the guard informed R.W. that Terrence had alleged that R.W. punched him in the face. R.W. denied the charge, and he and J.F. were again permitted to return to the theater. During this interchange, Terrence looked at R.W. and pointed his left hand at R.W. in the shape of a gun.

At the end of the movie, J.F. called for a cab to pick the family up outside the theater, but they had to cross the theater parking lot to meet it. They exited the building and had begun walking across the parking lot, J.F. taking the lead in an effort to look out for the rest, when the group was surrounded from behind by the teenagers, including Terrence and Tatiana, threatening and taunting them with such remarks as “Oh, what[,] you be tough now,” and “I’m going to kick your ass.” J.F. gave his daughter his cell phone, telling her to call the police.

R.W. turned and headed back to the theater to seek assistance from theater security staff, and several of the teenagers, including Terrence and Tatiana, followed and attacked him, with Terrence and another teenager hitting him from behind. J.F. ran toward R.W. to assist him, and the group then focused on J.F., trying to hit him. When R.W. returned, he tried to help J.F., and both men testified that they saw Terrence swinging at J.F. with a knife in his hand. According to J.F., Terrence had also tried to punch him, but he was able to block the blow and kick Terrence in the chest. J.F. testified that he sustained injury to the area around his ribs in the process of jerking around to avoid the attack.

The teenagers regrouped, and Tatiana turned to threaten J.F.’s daughter, who was holding her two-year-old son. Tatiana taunted, “I’m going to kick your ass, come on let’s fight,” and told the young woman to “put the kid in the car” so they could fight. R.W. stepped in between the two women, and Tatiana swung at R.W. and pulled his hair, her fist grazing his forehead but not causing any injury. When J.F., in turn, warned Tatiana not to hit the others, Tatiana chest-bumped him.

J.F. kept yelling that the police were on the way, and eventually the teens headed east on 161st Street. The police arrived shortly thereafter.”

All of the judges agreed that these facts made out attempted assault, menacing and related charges with respect to Tatiana’s conduct toward J.F.  The primary question on appeal, however, was whether Tatiana could be held liable as an accessory to Terrence’s second-degree Assault (assault with a deadly weapon) charge.  Tatiana argued that her level of participation in Terrence’s knife assault did not rise to the level necessary to support that she acted in concert with Terence to achieve the knife assault.  As put by the majority (Saxe, J.):  ”We disagree with regard to whether the evidence supports those findings against Tatiana that are based on her accessorial liability for Terrence’s use of a knife: assault in the second degree, attempted assault in the second degree, menacing in the second degree, criminal possession of a weapon, and reckless endangerment. Our colleague would vacate those findings, apparently on the ground that Tatiana neither possessed nor exercised control over the knife used by Terrence, nor importuned its use. In our view, the factual issue of whether Tatiana was aware that Terrence possessed the knife and intended that it be used during the group’s attack was correctly resolved here.”

After discussing general principles of accessorial liability, the Court stated that “Where an individual continues to participate in a criminal activity after a companion pulls out a previously concealed weapon, the factfinder may rationally conclude that the individual shared the requisite intent for the crime (see id.). Indeed, even the mere act of blocking a victim’s path of retreat has been found to support a finding of accessorial liability (see e.g. People v. Linen, 307 AD2d 855, 855-856 [2003], lv denied 1 NY3d 575 [2003]). Had Tatiana merely helped surround the family during Terrence’s attack, a finding of accessorial liability would have been proper. But she did much more than that. While Terrence attacked J.F. with a knife, Tatiana was present, shouting threats and throwing her own punches, and she continued to participate in the attack on the family long past the moment when Terrence began using the knife. Tatiana’s taking part in chasing, surrounding, threatening and attacking the entire party of victims, and more particularly chest-bumping J.F. in the course of threatening his daughter after Terrence had attacked with the knife, justifies the conclusion that she and Terrence were working together to menace and attack J.F. and his family, which involved the use of Terrence’s knife, and that she shared in Terrence’s intent to use the knife as part of the attack (see e.g. Matter of Tiffany D., 29 AD3d 693 [2006]).”

Justice Andrias dissented primarily on the ground that there was insufficient evidence to support the inference that Tatiana had knowledge that Terrence was going to use or actually did use a knife in the assault:  ”There is no evidence whatsoever that appellant possessed or exercised control over the knife, gave the knife to Terrence, or knew that Terrence possessed the knife and intended to use it during the attack. Neither the complainant nor his partner knew where Terrence got the knife and neither saw appellant with a knife at any point.  Nor can it be determined whether appellant ever saw the knife in Terrence’s hand during the course of the attack and supported its continued use thereafter. The complainant testified that he could not see very clearly, and neither he nor his partner was able to describe the knife in detail. The complainant’s partner only saw Terrence “flash[]” a knife, but did not see Terrence swing the knife. While the teenagers may have taunted that they would “kick your ass” at various moments during the encounter, there was no testimony that appellant or any other of the teenagers ever importuned the use of a knife.  The complainant also testified that appellant was standing to the side of Terrence at the point when the teenagers surrounded him. The complainant’s partner testified that he did not see appellant hit the complainant and that the complainant was hit when he was surrounded by Terrence and “other guys.” Thus, it cannot be determined on the record before us when appellant separated from Terrence and the other teenagers to confront the complainant’s daughter, who was standing a number of yards away, or whether appellant was still with the group of teenagers confronting the complainant when Terrence allegedly flashed or swung the knife.  Accordingly, the foregoing counts requiring that appellant share Terrence’s specific intent to possess, display or use a dangerous instrument should have been dismissed (compare People v. McLean, 307 AD2d 586 [2003], lv denied 100 NY2d 643 [2003]).”

A mechanism in the law will allow for Tatiana’s lawyers to seek leave through Justice Andrias, and we suspect that this question may ultimately be decided by the Court of Appeals in Albany.

On Tuesday, February 16, the Appellate Division, First Department, reversed the 2008 conviction of Freddy Rodriguez.  Rodriguez had been convicted in Bronx County Supreme Court of manslaughter, vehicular manslaughter, and two counts each of assault in the second degree, vehicular assault in the second degree, and DWI.  The full text of the decision is available here.

The prosecution presented evidence that the defendant got into a parked delivery truck without permission and, while intoxicated, caused it to roll downhill through an intersection and strike three persons (killing one child and seriously injuring two other people).  The defendant testified that he observed the parked truck suddenly start rolling downhill, and that he jumped into the moving vehicle in a heroic, but ultimately unsuccessful, attempt to prevent it from causing harm.

The majority (by 3-2 vote) overturned the conviction because the trial judge declined to charge the jury on the defense of justification, provided in Penal Law Section 35.05:

“[C]onduct which would otherwise constitute an offense is justifiable and not criminal when: 2. Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue… Whenever evidence relating to the defense of justification under this subdivision is offered for the defendant, the court shall rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a defense.”

It is unsurprising that defendant was convicted, as the credible evidence against him seemed overwhelming.  The defendant’s blood was taken after his arrest, and the subsequent chemical tests on the blood revealed that he likely had a blood alcohol content (BAC) of approximately .13 and .17% at the time of the accident.  For context, it is a crime to drive a motor vehicle in New York state with a BAC of .08% or higher.  Also, a key prosecution witness, Carlos Montilla, testified that he observed defendant – whom he had known for over ten years – get out of the truck after the crash and state that he was “joking around” and “had taken the truck to play a trick on the owner”.  He also testified that he observed the defendant drinking beer on the corner earlier in the day.  In response, the defendant testified that he had not been drinking alcohol and that he did not know Carlos Montilla.

Clearly, the defendant’s testimony, from here, sounds more than a little far-fetched.  Indeed, Judge McGuire, writing for the dissent, opined that “defendant’s claim… was preposterous, particularly because the evidence that defendant was intoxicated also was overwhelming and unrefuted.”  Thus, the failure to charge on this defense was harmless in the dissent’s view.  The dissent also agreed with the trial prosecutor’s argument that according to the defendant, the defendant did not, in fact, commit a crime, and this particular justification charge under Penal Law Section 35.05 only applies to criminal conduct done justified by emergency circumstances.  In response, the majority argued that the jury could have concluded that the defendant had been lying about his intoxication, but truthful about jumping into the moving vehicle and trying to prevent the accident.

The decision seems to suggest that to be safe, a trial judge will need to charge the jury on justification anytime there is any possibility that the jury could conclude that the defendant had committed a crime in order to prevent an injury, regardless of whether the credible evidence reasonably supported that conclusion or whether it was even the defendant’s theory of the case.

Mr. Rodriguez’s sentence of 6 to 15 years was vacated and the case was remanded for a new trial.  However, the Bronx District Attorney’s Office will almost certainly seek leave to appeal to the Court of Appeals, New York’s highest state court.

In People v. Ortiz, 2010 NY Slip Op 00387, the First Department overturned a man’s burglary conviction on account of numerous prejudicial trial errors.  First, the court noted that prosecuting attorney improperly impeached the defendant by implying that his initial plea of not guilty to certain past convictions followed by a subsequent guilty plea implied that he was dishonest.  Of course, most, if not all criminal defendants will initially enter a plea of not guilty, even if they fully intend to take responsibility for their actions, so as to allow both sides to come together with all of the relevant information necessary to make a decision on plea negotiations or decide on going to trial.  Thus, the prosecutor’s use of the defendant’s not guilty plea was unfair and unfounded.  As put by the court: “This questioning not only tended to draw an improper inference of dishonesty, but also violated the court’s Sandoval ruling, which only permitted elicitation of the existence of defendant’s prior convictions.”

Next, the prosecutor introduced a mugshot photograph of the defendant’s girlfriend and asked the defendant about her own criminal record.  The Court chastised the government for this guilt-by-association tactic: “This evidence had no purpose but to suggest that defendant was associated with a disreputable person (see People v Cheatham, 158 AD2d 934, 935 [1990]).”  Id.

Finally, the prosecutor made improper remarks on summation, including an assertion that the defendant “was waiting for the jury to ‘give him his razor back and let him walk out the door.’”  Id.

Thus, it is not surprising that the New York Law Journal quoted a Bronx District Attorney spokesman as stating that “we’ve already used this case as a ‘how not to’ example.”

The Court of Appeals last week decided the case of People v. Roland Ramos. In a memorandum opinion, the Court ruled that the prosecutor failed to lay the proper foundation under Civil Practice Law and Procedure 4518 to support the admission of several sets of business records.  As the Court stated in a seminal case in this area, People v. Kennedy, 68 N.Y.2d 569, (1986), “[t]he essence of the business records exception to the hearsay rule is that records systematically made for the conduct of a business as a business are inherently trustworthy because they are routine reflections of day-to-day operations and because the entrant’s obligation is to have them truthful and accurate for purposes of the conduct of the enterprise. . .”  Attorneys must use those certain magic words in laying the foundation for the admission of business records and establish the following four factual predicates:

i) that the record be made in the regular course of business,

ii) that it be the regular course of such business to make the record,

iii) that the record be made at or about the time of the event being recorded, and

iv) that each participant in the chain producing the record, from the initial declarant to the final entrant, must be acting within the course of regular business conduct or the declaration must meet the test of some other hearsay exception.

Ramos reinforces the notion that this is a so-called “mandetory catechism” attorneys must employ or risk reversal.

Criminal Procedure Law section 190.75[3] prevents a prosecutor from resubmitting a charge dismissed by grand jury absent leave of court.  In People v. Davis, N.Y.L.J., Jan. 6, 2010, at p.34, the prosecution presented evidence to a grand jury (“GJ1″) concerning an incident in which the defendant and a co-defendant allegedly slashed the complainant’s face with a razor.  Because the defendant had not been apprehended at the time of the presentation, the case was introduced to GJ1 as being against only the co-defendant.  The alleged victim testified in the GJ1 as to all operative facts of the case and called both defendant and co-defendant, both of whom were known to the alleged victim, by name.  After eliciting testimony from the alleged victim, the prosecution held the case open and did not vote it out in GJ1.  The defendant was arrested 3 days later.  Seven days after its initial presentation of evidence to GJ1, the prosecution withdrew the matter from its consideration.  GJ1′s term expired, and the prosecution then re-presented the case to a second grand jury (“GJ2″), which voted an indictment of both defendant and co-defendant.  The defendant was later convicted of two counts of first-degree assault and one count of second-degree assault.  The defendant appealed the conviction, citing the prosecution’s violation of CPL 190.75.  That provision makes clear that if the first grand jury actually dismisses a charge against a defendant, the prosecution is required to seek leave of court before representation.  However, where the prosecution has presented substantially all of the evidence to the first grand jury and then withdraws the case from consideration, the law may deem such presentation and withdrawal to be tantamount to a dismissal, and trigger the leave-seeking requirement even absent actual dismissal.

The Davis court found that the first presentation did, in fact, trigger the affirmative obligation to seek leave and reversed the defendant’s conviction.  In its ruling, the Court announced that a lower court must consider when whether a given presentation has reached the point of no return, i.e. when “a withdrawal must be treated as a dismissal.”  The overarching consideration being “the extent to which the presentation had progressed, i.e. whether sufficient evidence had been presented for the prosecutor to ask for a vote.”  Davis, supra, at p.34, col. 5.  If the first grand jury has heard evidence that would be legally sufficient to sustain a charge against a defendant, then the withdrawal thereafter operates as a dismissal and implicates CPL 190.75.  The fact that the GJ1 had heard sufficient evidence of criminality, linking the defendant to the commission of the charged crime, and legally sufficient as to each and every element of the charged offenses, meant that the line had been crossed, and leave was necessary to represent.  Because the prosecution did not seek such leave, the indictment needed to be dismissed, and the defendant’s conviction reversed.  The policy implicated here is that to prevent “the prosecutor [from using] the device of withdrawing the case in order to get another opportunity to persuade a different, and perhaps more amenable, grand jury that it should indict.”  Id. at col. 6.  The court did note, however, that such reversal would not be mandated by CPL 190.75, where a given presentation of evidence was “so limited that the grand jury has no ability to consider the charge.”  Id. at col. 5.

Judge Catterson authored a lengthy dissent, taking the position that the prosecution’s “decision that they have presented all of the evidence they deem necessary to secure an indictment against a specific defendant or defendants” should be controlling as to when a withdrawal of the presentation should be deemed tantamount to a dismissal.  Davis, supra, at p.35 col. 2 (Catterson, J. dissenting).  It may very well be that the Court of Appeals will ultimately decide the issue, if Judge Catterson decides to grant leave.

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Do you need the advice of an experienced criminal appellate attorney?  Call the former Manhattan District Attorney’s Office Appellate Prosecutors at the Law Offices of Galluzzo & Johnson LLP, (212) 918-4661.

Among the constitutional protections afforded to Americans by the bill of rights is the Fourth Amendment prohibition against unreasonable searches and seizures.  Of course, under the fourth amendment, police officers are not permitted to arrest or search a person without a warrant or probable cause.  There are, however, a number of exceptions to this general rule, one of which is the use of properly conducted sobriety checkpoint to stop motorists who otherwise do not exhibit any suspicious behavior. Although “a roadblock or checkpoint stop is a seizure within the meaning of the Fourth Amendment,” People v. Scott, 63 NY2d 518, 524 [1984], individualized suspicion is not required to stop an automobile passing through a checkpoint which is “carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.”  Brown v. Texas, 443 US 47, 51 [1979]).

In 1990, the US Supreme Court decided the case of Michigan Dept. of State Police v. Sitz 496 US 444 (1990), which examined the constitutionality of a police checkpoint that operated for 75 minutes, stopped 126 vehicles and only arrested one motorist for drunken driving. The court in that case established a balancing test, derived in part from Brown v. Texas, to analyze the constitutionality of such checkpoints: the court considered (1) the state’s interest in preventing drunken driving; (2) the extent to which the program could be reasonably said to advance that interest, and (3) the degree of intrusion on motorists. Due to the fact that states have a significant interest in preventing drunk driving to promote public safety, sobriety checkpoints are generally held to be constitutional so long as they are conducted according to a reasonable, predetermined plan of stopping vehicles (eg stopping every vehicle; every other vehicle; every 5th, etc). A checkpoint is not constitutionally permissible if it leaves discretion in the hands of individual officers to pick and choose which cars are stopped in the absence of some other indication of probable cause that the driver is drunk.

In a recent New York case, People v. Castimer (2008NY074229; decided November 10, 2009; Published in the New York Law Journal 11/16/2009), Manhattan police officers had set up a sobriety checkpoint on East 61st Street between First and Second Avenues, near the approach to the Queensboro Bridge on Saturday, October 4, 2008. “The checkpoint, meant to detect and deter intoxicated drivers, was mounted as part of Operation Cold Sober, an initiative of the Chief of Patrol of the New York City Police Department. In order to create the checkpoint, police parked patrol cars and arranged orange traffic cones along the roadway, ultimately causing all traffic to narrow into a single lane. Approaching vehicles were alerted to the existence of the roadblock by flares and flashing turret lights.” (Castimer)

Before the commencement of the checkpoint, a sergeant had met with his officers “to establish the protocol for that day’s checkpoint. During the operation of the checkpoint, every car was to be stopped, with the exception of livery vehicles and taxicabs. A uniformed officer was assigned to flag down each approaching passenger car. After a brief conversation in which the motorist was informed of the reason for the checkpoint, those drivers suspected of being intoxicated or impaired were to be directed into a “chute”—a makeshift traffic lane set up at the side of the road in order for the police to safely conduct further investigation.” (Castimer)

The defendant in this case, as he drove through the checkpoint, was stopped by a police officer. When the officer approached the defendant’s vehicle to inspect his driver’s license, the officer smelled alcohol and directed the defendant to the “chute.” A breathalizer test later confirmed that the defendant was intoxicated. The defendant also admitted to the officers he had been drinking.

The defendant did not dispute his intoxication in this case; his argument was, rather, that he was unlawfully seized because the checkpoint was unconstitutional. Castimer’s argument was based on the fact that the sergeant “testified that when traffic became heavy enough to back up onto First Avenue, his officers were authorized to let cars through without stopping them, in order to avoid a jam.” (Castimer) It was the defense’s contention that “in allowing for traffic-based deviations from the protocol to stop every passenger car, the otherwise-uniform plan here was transformed into an arbitrary and unconstitutional one.” (Castimer)

The court, however, found several flaws in the defense’s argument in this case. Specifically, the court found, as a preliminary matter, that, under this checkpoint plan, when traffic became heavy, the officers were not authorized “to conduct arbitrary stops of whatever cars they might capriciously choose to target.” Instead, under the plan, “when necessary to avoid gridlock, the police were empowered either to allow all cars through until traffic cleared, or to stop, say, every second, or third, or fourth, car, rather than every one. Neither option violated the constitutional requirement that the procedure ‘afford little discretion to operating personnel’ (Scott, 63 NY2d at 526)” (Castimer).   Second, there was no evidence that suggested that on the morning the defendant was stopped, traffic conditions ever actually required the police to deviate from their lawful plan to stop every car. Finally, the court attacked the defendant’s argument based on the principle that “‘Fourth Amendment rights are personal’ (People v. Wesley, 73 NY2d 351, 359 [1989]) and, ‘like some other constitutional rights, may not be vicariously asserted’ (Alderman v. United States, 394 US 165, 174 [1969] [citations omitted]; accord People v. Rodriguez, 69 NY2d 159, 163 [1987]). That is to say, the defendant cannot assert a defense based on the possible fourth amendment violations of other motorists. So long as the defendant’s own fourth amendment rights were protected throughout his stop, the arrest was constitutional and cannot be struck down on the basis of a potential violations of another motorist’s rights at a different point in time.

So long as drunk driving remains a significant safety concern, sobriety checkpoints like that in Castimer may become commonplace. Drivers and practitioners in the field should therefore beware of the holding in Castimer, as courts are likely to continue to rule in favor of police departments – and against individuals’ fourth amendment rights – when it comes to the constitutionality of such checkpoints.

If you have been arrested for a DWI, or other criminal offense, be sure to seek the advice of experienced defense counsel.

-Catherine Shearn, Law Intern