The 2017-2018 term of the New York Court of Appeals in criminal law was different from others in recent years. First, the court decided only 58 cases, down from an average of 93 in the past five years. Second, 30 decisions—more than half—were decided by memorandum opinion; no judge signed his or her name to the decision. Third, the court was often divided. Judge Jenny Rivera dissented in 12 of the 58 cases, and Judge Rowan Wilson in 11, often together. In each case, they wrote on the side of the defendant. And Judge Michael Garcia dissented eight times on the side of the prosecution. There is much for a reviewer to discuss.

Cross-Racial Identification: 'Boone'

Perhaps the term's most significant case was People v. Boone, (30 N.Y.3d 521 [2017]. I co-authored an amicus brief for the defendant in Boone), involving “cross-racial identifications.” There, the court held that “in a case in which a witness's identification of the defendant is at issue, and the identifying witness and defendant appear to be of different races, a trial court is required to give, upon request, during the final instructions, a jury charge…instructing (1) that the jury should consider whether there is a difference in race between the defendant and the witness…and (2) that, if so, the jury should consider (a) that some people have greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race and (b) whether the difference in race affected the accuracy of the witness's identification.” The instruction is not necessary where “there is no risk of misidentification”—e.g., where the identification is merely confirmatory. But neither the absence of expert testimony on cross-racial identifications nor a defense counsel's decision not to cross‑examine the witness about the identification is grounds for failing to instruct.

Judge Garcia, joined by Judge Leslie Stein, concurred in the result, but wrote separately to assert “in no uncertain terms…that the decision to give a cross-racial identification charge [should] remain[] in the sound discretion of the trial court.” The majority's approach, they argued, “will function as it was apparently intended: a mandatory charge [that] may be harmful to jurors, and suggests a lack of confidence in our state's trial judges.”

Actual Innocence: 'Tiger'

Also especially noteworthy is People v. Tiger (2018 N.Y. Slip Op 04377), in which the court reversed the Second Department and held that “a claim of actual innocence [does not] lie[] under CPL §440.10(1)(h) to vacate a judgment of conviction obtained upon a defendant's guilty plea.” (Natascha Tiger, a nurse practitioner, had been a caregiver for a profoundly disabled 10-year-old girl, who suffered severe burns while in Tiger's care.) Writing for the majority, Chief Judge Janet DiFiore saw the issue as a straightforward one of statutory interpretation. By its terms, CPL §440.10 does not allow a court to cast aside “a voluntary and solemn admission of guilt…for a new factual determination of the evidence of guilt.” If the statute is to be broadened, the task is for the Legislature, not the courts.

Judge Wilson, joined by Judge Rivera, dissented, “disagree[ing] with the general thesis of the majority opinion” that “short of legislative or gubernatorial mercy,” Tiger, having pleaded guilty, has no forum in which to assert her actual innocence.

One hopes that Governor Andrew Cuomo will consider Tiger's case, for she may well be innocent.

Speedy Trial: 'Wiggins'

In People v. Wiggins (31 N.Y.3d 1 (2018)), the court wrestled with “the question 'how long is too long'” for speedy-trial purposes under the state constitution. In late May 2008, Reginald Wiggins, then 16 years old, and his co-defendant, Jamal Armstead, were arrested for murder in the shooting of a 15-year-old bystander at a party. Reginald Wiggins, it was believed, was the shooter. For much of the next three years, the People sought Jamal Armstead's cooperation, unsuccessfully. They then spent three more years attempting to convict Armstead, separately from Wiggins, in the hope that, if convicted, he would testify against Wiggins in return for a lenient sentence. Three trials ended in mistrials. Finally, in October 2014, six years after his arrest, Wiggins pleaded guilty to manslaughter and received a 12-year sentence. He had spent six years incarcerated.

The court analyzed Wiggins' speedy-trial claim using the Taranovich five-factor test. It considered the extent of the delay (an “extraordinary” six-years), the reason for the delay (principally the People's desire to secure Armstead's cooperation), the nature of the underlying charge (murder), whether there had been an extended period of pretrial incarceration (yes, but during a signification portion, Wiggins was under indictment for an October 2011 jailhouse assault, which resulted in a four-and-a-half year sentence in June 2013) and the prejudice to the defendant (no actual prejudice but “presumptive prejudice” from such extraordinary delay).

On this record, the court found that Wiggins' state constitutional speedy-trial rights were violated. Writing for the majority, Judge Eugene Fahey reminded that “[i]ncarceration should generally follow conviction, not precede it.” Chief Judge Janet DiFiore dissented, joined by Judge Garcia and Judge Paul Feinman. The chief judge noted that Wiggins had not filed a speedy-trial motion until April 2013, almost five years after his arrest.

Two points bear note. First, on its facts, Wiggins has much in common with the U.S. Supreme Court's seminal speedy-trial clause decision in Barker v. Wingo. In both, the bulk of the delay was due to the prosecutor's efforts to secure a co‑defendant's cooperation. In Barker, however, the defendant's failure to assert his speedy-trial rights for much of the extended period weighed heavily against him. As the Supreme Court saw it, Barker “did not want a speedy trial,” and it rejected his claim largely on that basis. Under our state constitution, as interpreted in Taranovich, a defendant's failure to assert his speedy trial rights is not a factor.

The second point is true both of Taranovich and Barker: multiple-part balancing tests that require a court to weigh factors as diverse as the extent of delay, the reasons for the delay and the prejudice to the defendant, often result in divided decisions. In Wiggins, the Appellate Division divided 3 to 2 in the People's favor, and the Court of Appeals, 4 to 3 in the defendant's favor. As Judge Frank Easterbrook has put it, “a list of factors without a rule of decision is just a chopped salad.”

Warrantless Arrests: 'Garvin'

In People v. Garvin (30 N.Y.3d 174 (2017)), a divided court declined to “overrule [its] prior decisions holding that a warrantless arrest of a suspect in the threshold of a residence is permissible under the Fourth Amendment, provided that the suspect has voluntarily answered the door and the police have not crossed the threshold.” (At issue in Garvin, as in most threshold-arrest cases, was the admissibility of statements that the defendant made after his arrest.)

Judge Rivera, joined by Judge Wilson, dissented, arguing that the police needed a warrant to enter the front door and proceed up the stairs that led to the defendant's second-floor apartment in a two-family dwelling. The majority found that the issue was unpreserved. Wilson, joined by Rivera, dissented on the ground that the state constitution should be interpreted to hold that “if the police plan to arrest someone who is at home, absent exigent circumstances, until they have an arrest warrant, they may not go to the person's door to arrest him or cause him to leave his home to arrest him outside it.” Such a ruling, Wilson opined, would prevent officers from undermining New York's indelible right to counsel rule, which attaches once the police obtain an arrest warrant. The majority found that this issue was also unpreserved.

The defendant in Garvin also asked the court to reconsider its prior holding that New York's persistent felony offender law is constitutional under Apprendi and its progeny. The majority declined to revisit the issue; it is the seventh time since 2001 that the court has rejected an Apprendi challenge to the law. Judge Fahey filed a lonely dissent. “Silence in the face of such injustice,” he wrote, “would amount to acquiescence,” and he was unwilling to acquiesce. Fahey's persistence is admirable, but the court is dug in on the issue.

Statutory Interpretation: 'Andujar'

Most terms have a challenging statutory interpretation case, and this term had two. In People v. Andujar (30 N.Y.3d 160 (2017)), the defendant, a tow truck operator, was charged with violating VTL §397. That provision states that “[a] person, not a police…or peace officer…who equips a motor vehicle with a radio receiving set capable of receiving signals on the frequencies allocated for police use…without having first secured a permit…is guilty of a misdemeanor.” Did the defendant violate the statute when he had such a scanner inside his left front jacket pocket while driving his truck? Writing for the majority, Judge Rivera answered “yes.” “Equips,” she found, means “to make ready” or “fit out”; none of the traditional dictionary definitions “implies any need for the object's physical attachment to the thing equipped.”

Moreover, other VTL sections use the words “fastened,” “mounted,” “affixed” or “attached,” which, unlike “equip,” require physical connection. And the purpose of the law—to prevent lawbreakers from obtaining “police radio information”—would be frustrated if physical attachment were required. For those reasons, Rivera concluded that it was “irrelevant whether the device is mounted, lying on the seat, or in a defendant's pocket so long as it is readily accessible for immediate use in the vehicle.”

Judge Stein dissented. She found enough ambiguity in the statutory language to invoke the rule of lenity and adopt an interpretation in the defendant's favor.

Identity Theft: 'Roberts'

The second statutory interpretation case is People v. Roberts (2018 N.Y. Slip Op 03172). Kerri Roberts attempted to purchase merchandise worth more than $1,000 from a sporting goods store, using an American Express card imprinted with the fictitious name “Craig E. Jonathan” and a driver's license in the same name but featuring Roberts' photograph. The account number on the card was issued to a real person, a Buffalo woman, who had not given Roberts permission to use it. Roberts, no doubt, committed several crimes, including attempted grand larceny, but did he commit “identity theft”?

The identity theft statute, enacted in 2002, makes it an E felony to “knowingly and with intent to defraud assume[] the identity of another person by presenting [oneself] as that other person, or by acting as that other person or by using personal identifying information of another person,” and thereby obtain goods, money or services that exceed $500 or commit or attempt to commit a felony. Writing for the majority, Judge Rivera concluded that Roberts was guilty of identity theft. He had used personal identifying information of another—credit card information of the Buffalo woman—and thereby attempted to commit a felony. The People were not required to prove, as a separate element of the crime, that Roberts had assumed the identity of the Buffalo woman. Rivera contrasted the Massachusetts identity theft provision, which requires proof that the defendant “pose[] as another person and use[] such person's personal identifying information to obtain or attempt to obtain…anything of value.”

Judge Wilson dissented in a lively opinion, which began with a quote from Othello (“he that filches from me my good name…makes me poor indeed”) and included numerous examples of what he saw as the absurd results that follow from the majority's interpretation. Under the majority's interpretation, he wrote, “parents who enroll their children in a better public school by listing a grandparent's address as their own” have violated the statute. Wilson's dissent gives one pause. Roberts did not assume the identity of a real person, yet he is guilty of identity theft.

Police Officer Conduct: 'Perez'

People v. Perez (31 N.Y.3d 964 (2018)) is worth comment, less for the majority's opinion, than for Judge Rivera's dissent. Police conducting a vertical patrol in a New York City Housing Authority building with a “history of narcotics and trespass activity” observed Rafael Perez get off the elevator on the first floor of the building. When he saw them, he immediately retreated into the elevator and pushed buttons to go up, ignoring their request to hold the door. The police found Perez on the ninth floor and asked him if he lived in the building. Rather than answer their questions, he turned away and faced the wall. An officer noticed a large bulge in Perez's right arm, which Perez “held stiffly and straight down from his body in an unnatural position.” When Perez refused to say if he had a weapon, the officer touched Perez's wrist, felt a metal object, lifted Perez's sleeve and saw a blade. A two-foot-long machete was recovered from his shirt. Minutes later the officers learned of a recent robbery in the area involving a machete-wielding suspect. Perez was arrested for, and convicted of, the crime.

Was the officers' conduct reasonable? In a memorandum opinion, the majority concluded that the issue presented a mixed question of law and fact, and because there was record support for the lower courts' determination of reasonableness, it was beyond further review. Judge Rivera, joined by Judge Wilson, dissented, believing that there was “no justification for the officer's use of physical force.” Rivera's dissent is noteworthy for its last sentence: “I believe that [the decision in this case is further proof] the court is charting a dangerous course, one that has the potential to render judicial review meaningless, imperil individual liberty, and diminish civil rights.” Those words seem hyperbolic. Many would view the officers' actions in Perez as worthy of commendation, not condemnation.

In Perez, Rivera questioned DeBour's four-level framework, suggesting that three levels may not be enough to properly evaluate the constitutionality of police encounters. In People v. Gates, in dissent, Judge Garcia argued that four levels is one too many.

Depraved Indifference Assault?: 'Feingold'

In a series of decisions culminating in People v. Feingold in 2006, the court held that one‑on‑one attacks in which the defendant had an intent to kill and succeeded could not be charged as depraved indifference murder. Did the same rule apply to depraved indifference assault? In People v. Wilson (2018 N.Y. Slip Op 04380), the court answered “no.” Depraved indifference assault, Judge Garcia wrote, “differs from depraved indifference murder insofar as guilt of intent to cause serious physical injury does not necessarily negate guilt of depraved indifference to human life.” A defendant can intend one result—serious physical injury—while recklessly creating a grave risk that a more serious result—death—would ensue from his actions.

Theodore Wilson, who repeatedly assaulted his girlfriend, relegating her to an assisted living facility, was surely guilty of the crime.

Right to Self-Representation: 'Silburn'

People v. Silburn (31 N.Y.3d 144 (2018)) presented the question whether the defendant was denied his right to self-representation. The record showed that two weeks before trial, the defendant asked if he could proceed pro se “but having limitation [sic] with my counsel.” In response, the court told him that his choice was binary: “You choose to represent yourself, you sit there by yourself. You want a lawyer, you want a lawyer. All right?” That question was never answered. Later, during voir dire, defense counsel informed the court that the defendant wanted to question prospective jurors and witnesses in addition to the questions posed by counsel. Again the court said “no”: the defendant could proceed with counsel or without, but could not have dual representation. When the defendant said he wanted to ask questions that his attorney failed to ask, the court, once more, would not have it.

In an opinion by Chief Judge DiFiore, the majority held that the defendant had not made “an unequivocal request to represent himself alone, without counsel,” and therefore the trial court “did not err in failing to conduct a further inquiry.” Judge Wilson, joined by Judge Rivera, dissented. As they saw it, the request was unequivocal. Wilson gave this analogy:

CUSTOMER: Sir, excuse me, sir.

CASHIER: Yes?

CUSTOMER: I would like to order a Big Burger.

CASHIER: In other words, you want two all-beef patties, special sauce, lettuce, cheese, pickles, onions on a sesame seed bun?

CUSTOMER: Not just that, but I would also like fries with it–

CASHIER: No, we don't do that. You either have a Big Burger, or you have fries. We don't serve combinations. You choose a Big Burger, you sit there without fries. You want fries, you have fries only. All right? Next customer.

Wilson then asked these questions: “Would the cashier be justified in assuming the customer no longer desired a Big Burger and delivering an order of fries only? Should the customer go hungry for using a correlative conjunction?”

Wilson's analogy provoked DiFiore to add a footnote to her majority opinion. It said this: “The fast food analogy offered in Judge Wilson's dissent, joined by Judge Rivera, is both inapt and inappropriate. Whatever its intended effect, the use of such a rhetorical device trivializes the constitutional rights of defendant implicated on this appeal.” To which Wilson responded in his own footnote: “to 'trivialize' something is to ascribe little worth or importance to it; who here has done so?”

A Lexis search indicates that Wilson's dissent is the first time the words “all-beef patties” have appeared in a Court of Appeals opinion. (“All-beef frankfurters” appears in a 1966 opinion.) More notably, the exchange between the majority and the dissent is more strident than usual for a typically collegial court.

Preservation Cases

In People v. Bailey (2018 N.Y. Slip Op 04383)—a case in which the court concluded that the defendant had failed to preserve his claim that the trial judge erred in not questioning a juror about his ability to be fair—Judge Wilson “returned to [his] favorite burger joint,” again in dissent. He wrote this: if a customer tells “the cashier that the chicken nuggets in his happy lunch are rancid and should be removed” and then complains that “they have poisoned the entire happy lunch,” the customer has sought removal of the nuggets, not just a broader remedy (take back the whole meal).

Reading a Judge Wilson opinion, even if one disagrees with it, is often a happy meal.

Finally, People v. Morrison (2018 N.Y. Slip Op 04777), a 4-to-3 decision, deserves attention. In 2006, the defendant allegedly raped a 90-year-old Alzheimer patient in her nursing home. The victim reported the rape to staff; a DNA test confirmed that presence of the defendant's semen in her vagina; and the defendant confessed, in graphic detail, to the crime. All of this evidence was presented to the jury. On the second day of deliberations shortly before 5 p.m., the jury sent out a note that stated: “We have arrived at a decision on [Counts] 2 and 3, but we have a lot of work to do on #1.” The note was marked as a court exhibit in the presence of counsel. The court then brought the jury back into the courtroom and stated: “we as a group would like you to keep working.” With that, the case was adjourned to the next day, when the jury found the defendant guilty on all counts. He was sentenced to 25 years' imprisonment, and his conviction was affirmed on appeal.

Eight years later, the defendant petitioned for a writ of corum nobis, raising for the first time an O'Rama claim—i.e., that the court had failed to advise defense counsel of the contents of the jury note. That claim proved successful. In a memorandum opinion, the Court of Appeals held that when “the record fails to show that defense counsel was apprised of the specific substantive content of the note—as in this case—preservation is not required.” The “mode of proceeding error” required a new trial. There may not be one, since the victim is now dead.

Chief Judge DiFiore, joined by Judges Garcia and Feinman, dissented, contending that there was “significant ambiguity in the record” as to whether the jury note had been read to counsel, and therefore a reconstruction hearing was warranted. Garcia filed a separate dissent, arguing, at length, that O'Rama's automatic reversal rule should be overturned.

Morrison gives new meaning to the term legal technicality. One can only hope, wistfully, that the Legislature will address the preservation issue.

Other Cases

The court also handed down these rulings: that in determining if a defendant is a predicate felon based on an out-of-state conviction, the sentencing judge may examine “any foreign statute or case law” to ascertain whether the conviction is equivalent to a New York felony; that due process is violated when the sole judge deciding a defendant's appeal as a right is the same judge who presided over the defendant's bench trial; that the Board of Examiners of Sex Offenders may consider an offender's youthful offender adjudication in assessing his risk level; and that a sentencing judge may impose a ten-year term of probation on a youthful offender convicted of a sex offense.

And these: that the so-called “place of business” exception applies only to merchant[s], storeowner[s], and principal operator[s] of like establishment[s],” and does not apply to an employee who possesses an unlicensed firearm at work; that the excited utterance exception to the hearsay rule requires evidence from which the fact-finder can reasonably infer that the statement was based on the declarant's personal observation; and that a defendant can waive the right to indictment by grand jury if he signs a waiver form in open court in the presence of his counsel, even if the judge does not allocute him on the significance of the grand jury right (although allocution is the better practice).

And these: that it violates a misdemeanor defendant's Sixth Amendment rights to deny his counsel the opportunity to present a summation, at least if the defendant is then sentenced to jail; that a defendant must serve CPL §250.10 notice if he intends to offer psychiatric evidence challenging the voluntariness of his confession; and that a defendant who, without permission, uploads proprietary source code to a computer makes a tangible reproduction of secret scientific material within the meaning of Penal Law §165.07. The last case involved a former Goldman Sachs employee and garnered considerable press attention.

The box score: By my count, the court decided 58 criminal cases, of which 36 (62 percent) were affirmances; the People prevailed in 39 of the 58 cases (67 percent).

Paul Shechtman is a partner at Bracewell in New York and teaches evidence and criminal procedure at Columbia Law School.