People v. Cunningham

• Decision Date: 13 May 1980
• Parties: The PEOPLE of the State of New York, Respondent, v. Raymond CUNNINGHAM, Petitioner.
• Court: New York Supreme Court

Page 183

428 N.Y.S.2d 183

104 Misc.2d 298

The PEOPLE of the State of New York, Respondent, v. Raymond CUNNINGHAM, Petitioner.

Supreme Court, Trial Term, Bronx County, Part 19.

May 13, 1980.

Raymond Cunningham, pro se.

Mario Merola, Dist. Atty., Bronx County by Allen H. Saperstein, Asst. Dist. Atty., for respondent.

WILLIAM KAPELMAN, Justice:

Petitioner moves pursuant to Criminal Procedure Law § 440.10(1)(h) to vacate judgment on the ground that it was obtained in violation of his state and federal constitutional rights. Specifically, he claims that the trial court's instruction to the jury as to the element of intent was erroneous because a similar jury instruction was recently held unconstitutional by the Supreme Court of the United States in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). The issue before this Court is whether petitioner can collaterally attack the judgment on such grounds where the claimed constitutional error was apparent on the face of the record and was not challenged by petitioner at trial or on direct appeal. This Court has not found any reported decision in New York involving a post-conviction collateral attack on a judgment based on the recent case of Sandstrom v. Montana, supra, which addresses this procedural issue (see People v. Reese, 100 Misc.2d 951, 421 N.Y.S.2d 327 (Sup.Ct. Kings Co.1979), where the court ruled on the merits).

On October 30, 1973, the Grand Jury of Bronx County charged petitioner with the crimes of Murder and Possession of a Weapon as a Misdemeanor. Trial commenced on February 28, 1975, and the Court instructed the jury on the law on March 11, 1975. As part of the Court's extensive instructions concerning the element of intent, the Court charged:

the law says a person is presumed to intend the natural and probable consequences of his act.

the law says that a person is presumed to intend that which he actually does.

Petitioner took no exceptions to the Court's instructions to the jury. On March 11, 1975, the jury found petitioner guilty of both counts of the indictment and on April 30, 1975, the Court sentenced petitioner to an indeterminate term of imprisonment with a maximum term of life and a minimum period of fifteen years. On direct appeal to the Appellate Division, First Department, petitioner did not raise the issue of the Court's instructions to the jury concerning the element of intent. On November 15, 1977, the Appellate Division, First Department, affirmed the judgment without opinion (59 A.D.2d 1066, 399 N.Y.S.2d 553 (1st Dept. 1977)). Petitioner's application for leave to appeal to the Court of Appeals was denied by Judge Jones on February 21, 1978 (43 N.Y.2d 960, 404 N.Y.S.2d 1027, 375 N.E.2d 404 (1978)).

On June 18, 1979, the Supreme Court of the United States held that in a case in which intent is an element of the crime charged, a jury instruction that "the law presumes that a person intends the (ordinary) consequences of his (voluntary) acts" violates the requirement of the Fourteenth Amendment that the State prove every element of the crime beyond a reasonable doubt (Sandstrom v. Montana, supra, 442 U.S. at 522, 99 S.Ct. at 2458, 61 L.Ed.2d at 51). The Court reasoned that the specific words of the instruction to the jury did not create a permissive inference because the jury was not given the choice of accepting or rejecting the proposition. Moreover, the instruction did not create a rebuttable presumption. Rather, the jury could have believed that the instruction was a mandatory, conclusive presumption. Thus, the instruction had the effect of relieving the State of the burden of proof as to every fact necessary to establish the crime and invaded the fact-finding function of the jury (Sandstrom v. Montana, supra, 442 U.S. at 514-15, 522-23, 99 S.Ct. at 2454-2455, 2458-2459, 61 L.Ed.2d at 45-47, 49-50).

Appellate courts in New York have applied Sandstrom in direct appeals and have reversed judgments (see People v. Jones, App.Div., 425 N.Y.S.2d 376 (2d Dept. 1980); People v. Egan, 72 A.D.2d 239, 424 N.Y.S.2d 546 (4th Dept. 1980); People v. Thomas, 71 A.D.2d 280, 422 N.Y.S.2d 394 (1st Dept. 1979): trial courts used word "presumed"), have affirmed judgments (see People v. Collazo, App.Div., 425 N.Y.S.2d 380 (2d Dept. 1980); People v. Thomas, App.Div., 424 N.Y.S.2d 496 (2d Dept. 1980); People v. Blum, 72 A.D.2d 691, 421 N.Y.S.2d 359 (1st Dept. 1979); People v. Reyes, 71 A.D.2d 1034, 420 N.Y.S.2d 398 (2d Dept. 1979); People v. Parker, 71 A.D.2d 986, 420 N.Y.S.2d 379 (1st Dept. 1979, Bloom, J., concurring); People v. Fournier, 70 A.D.2d 491, 421 N.Y.S.2d 368 (2d Dept. 1979): trial courts used words "presumed", "rebuttable presumption", or "must infer", but errors deemed harmless in light of remainder of court's instructions to jury and overwhelming evidence of guilt), and have found no error (see People v. Davis, 72 A.D.2d 749, 421 N.Y.S.2d 264 (2d Dept. 1979); People v. Gonzalez, 72 A.D.2d 508, 421 N.Y.S.2d 3 (1st Dept. 1979): trial courts used words "may infer"; see also People v. Albino, App.Div., 425 N.Y.S.2d 172 (2d Dept. 1980); People v. Gray, 71 A.D.2d 295, 423 N.Y.S.2d 66 (4th Dept. 1979): trial courts used word "presumed", but no error in light of remainder of court's instructions to jury).

Criminal Procedure Law § 440.10 codifies the common law writ of error coram nobis, a remedy designed to inform the court of facts not reflected in the record and unknown at the time of the judgment which as a matter of law would undermine the basis of the judgment (People v. Crimmins, 38 N.Y.2d 407, 418, 381 N.Y.S.2d 1, 343 N.E.2d 719 (1975); People v. Caminito, 3 N.Y.2d 596, 601, 170 N.Y.S.2d 799, 148 N.E.2d 139 (1958)). Because this former remedy focused on matters outside the record, the courts always held that the writ could not be invoked where the claimed error of law was apparent on the face of the record (People v. Shapiro, 3 N.Y.2d 203, 206, 165 N.Y.S.2d 14, 144 N.E.2d 12 (1957); People v. Sullivan, 3 N.Y.2d 196, 197, 165 N.Y.S.2d 6, 144 N.E.2d 6 (1957); People v. Kenneth A., 36 A.D.2d 859, 860, 321 N.Y.S.2d 747 (2d Dept. 1971); People v. Speilman, 26 A.D.2d 574, 575, 271 N.Y.S.2d 441 (2d Dept. 1966); People v. Bye, 95 Misc.2d 1031, 1034, 408 N.Y.S.2d 740 (Cr.Ct. Bronx Co.1978)). This rule was established because it was recognized that errors appearing in the record are easily reviewable on direct appeal, and as long as the defendant had an opportunity to appeal from the judgment, he had an adequate remedy. Thus, it was settled that the writ could not be used as a vehicle for an additional appeal or as a substitute for a direct appeal (People v. Brown, 13 N.Y.2d 201, 204, 206, 245 N.Y.S.2d 577, 195 N.E.2d 293 (1963); People v. Howard, 12 N.Y.2d 65, 66-68, 236 N.Y.S.2d 39, 187 N.E.2d 113 (1962); People v. Shapiro, supra, 3 N.Y.2d at 206, 165 N.Y.S.2d 14, 144 N.E.2d 12; People v. Barker, 71 A.D.2d 902, 903, 419 N.Y.S.2d 617 (2d Dept. 1979); People v. Kenneth A., supra, 36 A.D.2d at 860, 321 N.Y.S.2d 747; People v. Bye, supra, 95 Misc.2d at 1035, 408 N.Y.S.2d 740).

In essence, therefore, the writ of error coram nobis was viewed as an emergency measure to afford a defendant a remedy when no avenue of judicial relief is, or ever was, available to him (People v. Brown, supra, 13 N.Y.2d at 204, 245 N.Y.S.2d 577, 195 N.E.2d 293; People v. Howard, supra, 12 N.Y.2d at 66, 236 N.Y.S.2d 39, 187 N.E.2d 113; People v. Sullivan, supra, 3 N.Y.2d at 200, 165 N.Y.S.2d 6, 144 N.E. 6; People v. Siena, 19 A.D.2d 524, 240 N.Y.S.2d 565 (1st Dept. 1963)). A collateral attack on a judgment was allowed only when a direct appeal was foreclosed because the issue was not presented by the record and was therefore unappealable. To permit a defendant to raise appealable issues after the determination of a direct appeal by bringing a writ of error coram nobis was always considered an impermissible enlargement of this extraordinary remedy and an improper alteration of its historic function of supplying a remedy when no other form of relief was ever available (People v. Bennett, 30 N.Y.2d 283, 288, 332 N.Y.S.2d 867, 283 N.E.2d 747 (1972); People v. Kenneth A., supra, 36 A.D.2d at 860, 321 N.Y.S.2d 747; People v. Bye, supra, 95 Misc.2d at 1035, 1036, 408 N.Y.S.2d 740). Thus, if a defendant failed to pursue direct appellate procedures for review of appealable claims, he could not collaterally attack the judgment even where the asserted error was of constitutional magnitude (People v. Howard, supra, 12 N.Y.2d at 67-68, 236 N.Y.S.2d 39, 187 N.E.2d 113; People v. Caminito, supra, 3 N.Y.2d at 601, 170 N.Y.S.2d 799, 148 N.E.2d 139; People v. Bye, supra, 95 Misc.2d at 1035-1036, 408 N.Y.S.2d 740). These principles were applied in cases where, as here, the claimed constitutional violations concerned the court's instructions to the jury (see, e. g., People v. Speilman, supra ; People v. Diel, 13 A.D.2d 840, 216 N.Y.S.2d 139 (2d Dept. 1961); People v. Kimmel, 13 A.D.2d 549, 213 N.Y.S.2d 496 (2d Dept. 1961)).

Criminal Procedure Law § 440.10(2)(c), the codification of the common law principles set forth above, states:

Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when: * * *

Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him;

It is apparent from the language of this statute that the Legislature intended that the policies and rules governing the former writ of error coram nobis as established by case law should apply to motions to vacate judgment under the Criminal Procedure Law. This...