People v. Cooper

• Decision Date: 27 September 1994
• Citation: 204 A.D.2d 24,618 N.Y.S.2d 257
• Parties: THE JUSTICES RECOGNIZING THEIR INABILITY TO RECONCILE THEIR VIEWS WITH RESPECT TO THE APPLICABILITY OF PEOPLE v. RYAN 82 N.Y.2d 235 , 605 N.Y.S.2d 235, 626 N.E.2d 51 , TO THE FACTS PRESENTED IN THE CASE, HEREBY RELEASE THEIR DECISION IN The PEOPLE of the State of New York, Respondent, v. Patricia COOPER, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 257

618 N.Y.S.2d 257

204 A.D.2d 24

THE JUSTICES RECOGNIZING THEIR INABILITY TO RECONCILE THEIR

VIEWS WITH RESPECT TO THE APPLICABILITY OF PEOPLE v. RYAN

82 N.Y.2d 235

, 605 N.Y.S.2d 235, 626 N.E.2d 51

, TO THE FACTS PRESENTED IN THE CASE, HEREBY RELEASE THEIR DECISION IN

The PEOPLE of the State of New York, Respondent, v. Patricia COOPER, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Sept. 27, 1994.

Before MURPHY, P.J., and CARRO, WALLACH, ASCH and TOM, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Angela M. Mazzarelli, J.), rendered September 9, 1992, convicting defendant, after jury trial, of criminal possession of a controlled substance in the fifth degree, and sentencing her, as a second felony offender, to 2 1/2 to 5 years' imprisonment, modified, on the law, to the extent of reducing the conviction to criminal possession of a controlled substance in the seventh degree, and remanding the matter for resentencing in accordance therewith. Sua sponte leave to appeal to the Court of Appeals is hereby granted by Justice Asch.

Defendant was arrested after an experienced police officer observed her under bright street lights, knotting a plastic bag containing telltale white powder. Before any interrogation she spontaneously exclaimed, "It's coke," for which she had just paid $40.

Defendant was charged and convicted on proof that she possessed 500 milligrams or more of "pure weight" cocaine in violation of Penal Law § 220.06(5). Weight was established by the People's expert witness. The chemistry lab, after testing, was left with 28 grains (1,814 mg) of a substance which was 62.3% pure cocaine. In other words, the total weight of pure cocaine was at least 1,130 mg, which is more than twice the weight threshold for fifth degree possession.

Entirely absent from the record of this trial in July 1992 is any proof that defendant knew she possessed 500 milligrams--or any particular weight, for that matter--of cocaine; all she knew was that she possessed forty dollars worth. In People v. Ryan, 82 N.Y.2d 497, 605 N.Y.S.2d 235, 626 N.E.2d 51, decided in December 1993, the Court of Appeals held that a defendant's knowledge of the weight of the drugs possessed is an essential element of any drug charge based, as this indictment is, upon a specific weight. We see little reason to doubt that Ryan must be retroactively applied to cases on direct appeal because the Ryan decision itself is based on construction of long-standing statutes and asserts that it is declarative of already existing law, adumbrated by earlier decisions (82 N.Y.2d at 504, 605 N.Y.S.2d 235, 626 N.E.2d 51). As succinctly stated in People v. Favor, 82 N.Y.2d 254, 263, 604 N.Y.S.2d 494, 624 N.E.2d 631, quoting Gurnee v. Aetna Life & Cas. Co., 55 N.Y.2d 184, 192, 448 N.Y.S.2d 145, 433 N.E.2d 128, cert. denied459 U.S. 837, 103 S.Ct. 83, 74 L.Ed.2d 79, " '[a] judicial decision construing the words of a statute [for the first time] does not constitute the creation of a new legal principle' ". And while the majority and the dissent in Favor differed as to the outcome dictated by the three-pronged analysis for retrospective application of a remedial change in the criminal law set out in People v. Pepper, 53 N.Y.2d 213, 440 N.Y.S.2d 889, 423 N.E.2d 366, cert. denied 454 U.S. 967, 1162, 102 S.Ct. 510, 1035, 70 L.Ed.2d 383, 71 L.Ed.2d 318, at least one consideration of Pepper is heavily implicated here: the purpose of the rule "change"--whether large or small--which in this context refers to the degree of impact upon the fact-finding process. Obviously, the application of Ryan's expanded mens rea requirement to narcotics prosecutions will have a profound effect, in most cases, on the proof submitted to the jury, and the scope of the jury's task in assessing that proof.

We are thus brought to the question of whether defendant has adequately preserved the Ryan issue for appellate review. It is undisputed that at the close of the People's case at trial, defense counsel made only a generalized pro forma motion to dismiss, asserting that "the People have failed to meet their burden on all the elements of the charge." When both sides had rested and the court was considering requests to charge, counsel sought a jury charge on the lesser included offense of seventh degree possession not on the ground of defendant's lack of knowledge of the contraband's actual weight, but simply because a reasonable view of the evidence (defendant had called an expert witness to challenge the conclusions of the police chemist and the latter's laboratory procedures) would permit a finding that defendant actually possessed less than 500 milligrams. The trial court granted his request, but obviously on a non-Ryan ground.

In People v. Kilpatrick, 143 A.D.2d 1, 3, 531 N.Y.S.2d 262, this Court was presented with an analogous situation, where we held (citations omitted):

Where, as here, the evidence adduced at trial is legally insufficient to establish the defendant's guilt of the offense of which he was convicted, the Appellate Division, pursuant to CPL 470.15(4)(b), may reverse or modify the judgment, on the law, whether or not the defendant expressly or impliedly requested or protested the trial court's ruling on the issue in accordance with CPL 470.05. Consequently, the People's claim that this issue has not been preserved for our review is without merit.

We also reject the People's contention that, because the evidence was sufficient to establish defendant's guilt of first degree robbery under a theory not charged in the indictment, we should not disturb the conviction. The accused's right "to be tried and convicted of only those crimes and upon only those theories charged in the indictment is fundamental and nonwaivable."

Since the Kilpatrick decision in 1988, we have adhered to the preservation analysis therein, despite several invitations from the People to reconsider (see, e.g., People v. Blacknall, 185 A.D.2d 108, 586 N.Y.S.2d 110, lv. denied 80 N.Y.2d 1025, 592 N.Y.S.2d 674, 607 N.E.2d 821; People v. Atkins, 173 A.D.2d 424, 570 N.Y.S.2d 9; People v. Abdullah, 164 A.D.2d 260, 562 N.Y.S.2d 470; People v. Rodriquez, 164 A.D.2d 832, 559 N.Y.S.2d 725; People v. Watson, 163 A.D.2d 253, 254, 558 N.Y.S.2d 537). We recognize that the Second Department has taken a contrary view (People v. Canute, 190 A.D.2d 745, 593 N.Y.S.2d 539, lv. denied 81 N.Y.2d 968, 598 N.Y.S.2d 769, 615 N.E.2d 226; People v. Lyons, 154 A.D.2d 715, 546 N.Y.S.2d 691; People v. Bailey, 146 A.D.2d 788, 537 N.Y.S.2d 548, lv. denied 74 N.Y.2d 844, 546 N.Y.S.2d 1009, 546 N.E.2d 192; see also, People v. Okehoffurum, 201 A.D.2d 508, 607 N.Y.S.2d 695). We also note that at the Ryan trial, defense counsel's motion to dismiss made explicit reference to the lack of proof as to defendant's knowledge of the weight of the proscribed hallucinogenic substance (psilocybin) which could be scientifically processed and extracted from the 2 lb. shipment of mushrooms. If Ryan standards apply, defendant's level of guilt turned upon her knowledge of how much could be extracted from 1/16 of an ounce of an aggregate substance in order to reach a statutory threshold of 500 milligrams of pure cocaine.

The Court of Appeals has never ruled upon our construction of CPL 470.15(4)(b) that insufficiency of evidence does not require specific exception to preserve an objection on the law; when the Legislature desires to achieve such a result, it specifically sets forth the preservation requirement (cf., the reference to CPL 470.05[2] in CPL 470.15[4][a]. However, the People urge that the Court of Appeals has sent a signal of rejection in People v. Cona, 49 N.Y.2d 26, 424 N.Y.S.2d 146, 399 N.E.2d 1167 and People v. Velasquez, 76 N.Y.2d 905, 561 N.Y.S.2d 911, 563 N.E.2d 282. Both of these cases involved a defendant's failure to preserve for appeal the trial court's omission of a proper instruction to the jury regarding accomplice evidence. Those cases, involving a statutory rule of evidence on the treatment of testimony of a particularly suspect class of witnesses, are inapposite. The issue here comes down to whether a defendant can stand convicted in this State of a felony-grade crime where there is legally insufficient or no proof of an essential statutory element of the crime charged. To answer that question affirmatively is, in our view, a constitutional denial of due process. The People have a fundamental burden of establishing upon sufficient proof every element of the offense charged (Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560).

As a matter of due process, insufficiency of proof as a matter of law cannot be waived (see, Thompson v. Louisville, 362 U.S. 199, 206, 80 S.Ct. 624, 629, 4 L.Ed.2d 654). On a properly created record, the facts speak for themselves, and no party can claim surprise for another's failure to discern and raise an issue of insufficiency. On the other hand, a point of law, involving legal strategy, must be preserved precisely because raising it for the first time after trial would place the adversary party at a distinct disadvantage. Compare, for example, People v. Dekle, 56 N.Y.2d 835, 452 N.Y.S.2d 568, 438 N.E.2d 101, a robbery conviction, where the defendant removed a radio from a store without paying for it and was charged with threatening security guards with a knife outside in the street. On appeal, the defendant sought for the first time to present the claim that the theft constituted "larceny" and not "robbery" since the force used was not "immediately after the taking" (Penal Law § 160.00[1] but was during his flight from a completed larceny. The trial court had charged that " 'Immediately' means straight away, promptly, has its ordinary meaning--no more and no less. No specific time is required for immediately." (Supra, at 836, 452 N.Y.S.2d 568, 438 N.E.2d 101.) Because the defendant had not taken exception to that...