JURY INSTRUCTIONS – Page 6 – New York Appellate Digest

Court’s Explanation of Lien Law Presumption (Where Money Held In Trust by Contractor and Allegedly Misused Can Be Deemed Larceny) Was Determined to Impermissibly Switch the Burden of Proof to the Defendant

In reversing a larceny conviction, the Second Department explained that allowing the jury to consider the Lien Law presumption (where use of funds held in trust for purposes other than those of the trust can constitute larceny) as mandatory, rather than permissive, shifted the burden of proof to the defendant:

Pursuant to Lien Law article 3-A, a contractor who receives funds under a contract for the improvement of real property must hold the funds as a trustee, and if the contractor applies trust funds for any purpose other than the purposes of the trust and fails to pay a trust claim within 31 days of the time it is due, he or she may be guilty of larceny (see Lien Law §§ 70, 71, 79-a[1][b]…). The trial court instructed the jury, in accordance with Lien Law § 79-a(3), that “[f]ailure of the trustee to keep books and records required by this section shall be presumptive evidence that the trustee has applied . . . trust funds . . . for purposes other than a purpose of the trust.” Like all statutory presumptions in New York, the presumption in Lien Law § 79-a(3) is permissive … . The trial court’s failure to instruct the jury that the presumption “was permissive, or to emphasize that, despite the presumption, the same burden of proof remained with the People, was bound to result in misleading the . . . jurors into believing that the presumption is conclusive and binding upon them'” …. Such a mandatory presumption is unconstitutional, as it relieves the People of their burden of proving every element of the crime and undermines the jury’s ” responsibility at trial, based on evidence adduced by the [People], to find the ultimate facts beyond a reasonable doubt'” .. . People v Cioffi, 2013 NY Slip Op 02588, 2012-00966, 2013-03689, Ind No 11-00174, 2nd Dept, 4-17-13

April 17, 2013

Criminal Law, Evidence

New Factual Claim Made for the First Time at Trial by Defendant Triggered “Inconsistent Statements” Jury Charge; Prior Injuries to Child Admissible under Molineux

In this case the defendant was convicted of manslaughter in the death of a three-year-old child. In his statement to the police, the defendant said the child fell while she was in the shower. At trial the defendant testified the child also fell on the stairs. The trial court gave an “inconsistent statements” charge to the jury, finding it would have been reasonable and logical for the defendant to have mentioned the fall on the stairs in his statement to police. In upholding the trial court, the Third Department wrote:

In its general instructions to the jury, County Court included a charge regarding a witness testifying to a fact that the witness omitted at a prior time when it would have been reasonable and logical to have stated the fact (see CJI2d[NY] Credibility of Witnesses [Inconsistent Statements]).Defendant contends that this constituted error. Defendant had given a detailed voluntary statement to police regarding the pertinent events surrounding the victim’s death. He did not include in that statement an account of the victim purportedly falling on the stairs while coming to eat lunch, but he testified regarding such event at trial. Since it would be reasonable to expect defendant to mention all potential injuries sustained by the victim while in his care that day, including this charge did not constitute reversible error.

In addition, the Third Department found no error in the trial court’s allowing evidence of prior injuries revealed by the autopsy and two injuries incurred by the child when she was in defendant’s care. This evidence of “similar uncharged crimes” was deemed admissible under Molineux to demonstrate “the absence of an accident” as the cause of the child’s injuries. People v Tinkler, 103766, 3rd Dept 4-11-13

April 11, 2013

Appeals, Criminal Law

Failure to Request Jury Charge on Venue Waived Appeal of the Issue

The Third Department determined the failure to request a jury charge on venue waived any related appellate issue:

Initially, to the extent that defendant contends that the People failed to prove by a preponderance of the evidence … that the underlying crimes occurred within the geographical jurisdiction of Franklin County, we note that “unlike territorial jurisdiction[,] which goes to the very essence of the State’s power to prosecute,” questions regarding geographical jurisdiction or venue are waivable … . Accordingly, inasmuch as defendant failed to request a jury charge on venue, she waived any challenge in this regard … . People v Beauvais, 104590, 3rd Dept 4-4-13

April 4, 2013

Criminal Law, Evidence

Destruction of Video that May Have Been Relevant to the Defense Required Adverse Inference Charge

The defendant was charged with (and convicted of) assaulting jail deputies. A video which may have captured at least some of the incidents was destroyed by “recording over” after 30 days, a jail policy. A request for any relevant electronic surveillance was made in the omnibus motion. The indictment included incidents in November, 2006, and January, 2007. By the time the omnibus motion was made, only the video of the January incident was still available (pursuant to the 30-day “record over” policy). The trial court agreed to give an adverse inference charge with respect to the January incident, but refused to give the adverse inference charge for the November incident. The appellate division determined the adverse inference charge needn’t have been given because there was no evidence the video evidence would have been exculpatory. In a full-fledged opinion by Judge Smith, the Court of Appeals reversed, finding the law of evidence required that the adverse inference charge be given:

We resolve this case, following the approach taken by the Maryland Court of Appeals in Cost v State (417 Md 360, 10 A3d 184 [2010]) by holding that, under the New York law of evidence, a permissive adverse inference charge should be given where a defendant, using reasonable diligence, has requested evidence reasonably likely to be material, and where that evidence has been destroyed by agents of the State. People v Handy, 35, CtApp 3-28-13

March 28, 2013

Attorneys, Criminal Law

Failure to Request Jury Charge for Lesser Included Offense Constituted Ineffective Assistance

In finding that defense counsel’s failure to request that the jury be charged with a lesser included offense constituted ineffective assistance, the Court of Appeals wrote:

In his closing argument, [defense] counsel asked the jury to acquit defendant of attempted murder, but virtually invited a conviction for first degree assault. After saying: “on that particular charge [attempted murder], I’m going to ask that you actually check off the box that says ‘not guilty,'” he added, as to the assault charges: “Make your decision . . . . I’m sure, whatever it is, it will be the right decision.” * *

Counsel’s belief that his client was without a defense to first degree assault was mistaken. The record affords a good-faith basis for an argument that the injuries the victim received did not result in serious and protracted, or serious and permanent, disfigurement … . We conclude that counsel’s error in overlooking that issue rendered his assistance to defendant ineffective …. People v Nesbitt, 28, CtApp 3-26-13

March 26, 2013

Appeals, Criminal Law, Evidence

Failure to Object to Curative Instruction Precludes Appeal

A curative instruction regarding admitted evidence was requested by the defendant and the court gave the requested instruction to the jury. The defendant did not object to the instruction and did not seek a mistrial. Therefore, the curative instruction “must be deemed to have corrected the error to the defendant’s satisfaction,” precluding appeal on that issue. People v Mendez, 47, KA 09-01194, 4th Dept. 3-15-13

March 15, 2013

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