People v. Favor

CourtNew York Court of Appeals
Writing for the CourtTITONE; BELLACOSA; KAYE, C.J., and SIMONS, HANCOCK, SMITH and LEVINE, JJ., concur with TITONE; BELLACOSA; KAYE
Citation82 N.Y.2d 254,624 N.E.2d 631,604 N.Y.S.2d 494
Parties, 624 N.E.2d 631 The PEOPLE of the State of New York, Respondent, v. Donald FAVOR, Appellant. The PEOPLE of the State of New York, Respondent, v. Leroy SMITH, Jr., Appellant.
Decision Date19 October 1993

Page 494

604 N.Y.S.2d 494
82 N.Y.2d 254, 624 N.E.2d 631
The PEOPLE of the State of New York, Respondent,
v.
Donald FAVOR, Appellant.
The PEOPLE of the State of New York, Respondent,
v.
Leroy SMITH, Jr., Appellant.
Court of Appeals of New York.
Oct. 19, 1993.

Page 496

[82 N.Y.2d 256] [624 N.E.2d 633] Edward J. Nowak, Public Defender of Monroe County, Rochester (Drew R. DuBrin, of counsel), for appellant in the first above-entitled action.

Howard R. Relin, Dist. Atty. of Monroe County, Rochester (Wendy Evans Lehmann, of counsel), for respondent in the first above-entitled action.

Howard K. Broder, Rochester, for appellant in the second above-entitled action.

[82 N.Y.2d 257] Richard M. Healy, Dist. Atty. of Wayne County, Lyons (Valerie Friedlander, of counsel), for respondent in the second above-entitled action.

[82 N.Y.2d 258] Kevin M. Dillon, Dist. Atty. of Erie County, Buffalo, for New York State Dist. Attys. Ass'n, amicus curiae, in the first and second above-entitled actions.

OPINION OF THE COURT

TITONE, Judge.

In People v. Dokes, 79 N.Y.2d 656, 584 N.Y.S.2d 761, 595 N.E.2d 836, this Court held that a defendant has a right to be present during the Sandoval hearing preceding the trial 1 except when such presence would be "superfluous" (see, 79 N.Y.2d at 662, 584 N.Y.S.2d 761, 595 N.E.2d 836). We also held that a violation of this right ordinarily requires reversal even in the absence of a timely objection (id.). Our prior holdings, however, leave open at least one important question. Although we have decided several other cases under the Dokes rule (People v. Cruz, 81 N.Y.2d 738, 593 N.Y.S.2d 767, 609 N.E.2d 120; People v. Gebrosky, 80 N.Y.2d 995, 592 N.Y.S.2d 650, 607 N.E.2d 797; People [82 N.Y.2d 259] v. Beasley, 80 N.Y.2d 981, 592 N.Y.S.2d 644, 607 N.E.2d 791; People v. Rose, 80 N.Y.2d 802, 587 N.Y.S.2d 286, 599 N.E.2d 690; People v. Alexander, 80 N.Y.2d 801, 587 N.Y.S.2d 286, 599 N.E.2d 690), we have not previously been asked to consider the degree to which that rule should be applied retroactively and, thus, the retroactivity question remains unsettled (see, People v. Callahan, 80 N.Y.2d 273, 284, n., 590 N.Y.S.2d 46, 604 N.E.2d 108). These cases, both of which were tried before this Court handed down its decision in Dokes and both of which have been submitted with briefs raising retroactivity as an issue, present us with an opportunity to resolve that important question.

I.

People v. Favor

Prior to defendant Favor's trial, the court held an in camera conference to determine which prior convictions and bad acts the prosecutor would be permitted to raise on cross-examination if defendant elected to testify. Defendant was not present during this proceeding, although he was present in the courtroom when the trial court subsequently described the gist of the in camera discussion and set forth its Sandoval decision.

Following the trial, the jury returned a guilty verdict on the first two counts of the indictment. Defendant then pleaded guilty to the remaining counts with the understanding that the sentences imposed for these counts would run concurrently to the sentences to be imposed for the first two counts. On November 3, 1990, defendant was sentenced in accordance with this understanding.

Page 497

[624 N.E.2d 634] On appeal from the judgment of conviction, defendant Favor argued that reversal was required because he had been deprived of his right to be present during a material stage of the trial. In a decision that was handed down some 13 1/2 months before Dokes was decided, the Appellate Division declined to entertain defendant's argument, noting that the argument had not been "preserve[d]" by timely objection (172 A.D.2d 1052, 571 N.Y.S.2d 408). After the decision in Dokes was announced, defendant was granted leave to appeal by a Judge of this Court.

People v. Smith

Defendant was charged with participating in a robbery that resulted in the killing of a bartender. During a pretrial colloquy conducted on December 10, 1990 in open court and in defendant's presence, the prosecutor asked the court whether it wished to "address the [Sandoval] issues on the record." [82 N.Y.2d 260] When the court responded affirmatively, the prosecutor indicated that there were 14 prior incidents in issue and alluded to a prior "ruling" precluding the People from using all 14 for cross-examination. At that point, the transcript minutes indicate that "a brief discussion was held off the record between the court and counsel."

When the recorded part of the proceeding resumed, in defendant's presence, the prosecutor announced that the court "has advised that [the People] would not be allowed to use the combined 14 matters but would [be] limit[ed]" to the use of four specific prior incidents occurring in 1987, 1988 and 1989. The court then invited defense counsel to comment, and counsel responded by arguing that the People should be precluded from using one of the identified four because he had not received timely notice of the People's intention to use it. Use of the other three, defense counsel argued, should be forbidden to the extent that they involved larcenies, since "unlawful taking" was also one of the elements before the jury in the upcoming trial for robbery. After hearing further argument from the prosecutor, the trial court ruled in the People's favor with respect to all four of the remaining incidents.

Defendant was ultimately tried and convicted of several of the charged crimes. On his appeal from the judgment of conviction, the Appellate Division held that defendant's exclusion from the bench conference at which the Sandoval issues were discussed did not require reversal because the outcome of that conference--the preclusion of 10 of the 14 prior incidents--was not prejudicial to defendant and, with respect to the remaining four, a full de novo hearing had been held in defendant Smith's presence. This appeal, taken by permission of a Judge of this Court, ensued.

II.

Traditional common-law methodology contemplates that cases on direct appeal will generally be decided in accordance with the law as it exists at the time the appellate decision is made (see, Vandenbark v. Owens-Ill. Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327; United States v. Schooner Peggy, 1 Cranch [5 U.S.] 103, 110, 2 L.Ed. 49; Gurnee v. Aetna Life & Cas. Co., 55 N.Y.2d 184, 448 N.Y.S.2d 145, 433 N.E.2d 128; Gager v. White, 53 N.Y.2d 475, 442 N.Y.S.2d 463, 425 N.E.2d 851, cert. denied sub nom. Guertin Co. v. Cachat, 454 U.S. 1086, 102 S.Ct. 644, 70 L.Ed.2d 621; People v. Pepper, 53 N.Y.2d 213, 219, 440 N.Y.S.2d 889, 423 N.E.2d 366; see also, Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649). This principle follows quite naturally from [82 N.Y.2d 261] the bedrock assumptions that "our government is one of laws, and not of men" and that, consequently, judicial decisions reveal or elucidate, rather than create, the law (see generally, Linkletter v. Walker, 381 U.S. 618, 622-623, 85 S.Ct. 1731, 1733-1734, 14 L.Ed.2d 601; People v. Pepper, supra, 53 N.Y.2d at 220, 440 N.Y.S.2d 889, 423 N.E.2d 366; see also, Desist v. United States, 394 U.S. 244, 258-259, 89 S.Ct. 1030, 1038-1039, 22 L.Ed.2d 248 [Harlan, J., dissenting]. Taken to their logical conclusion, these assumptions lead to the tenet that recently announced rules of law, including those that overrule prior decisions, [624 N.E.2d 635] are "not 'new law but an application of what is, and theretofore had been, the true law' "

Page 498

(Linkletter v. Walker, supra, 381 U.S. at 623, 85 S.Ct. at 1734, quoting Shulman, Retroactive Legislation, 13 Encyclopaedia of Social Sciences, at 355, 356 [1934]. Accordingly, under this view, retroactive application of current rules is always required, since it would be unthinkable to apply anything less than the "true" law to an actual controversy.

In contrast to this view, some courts and scholars have recognized that "judges do in fact do something more than discover law" (Linkletter v. Walker, supra, at 623, 85 S.Ct. at 1734) and that unwavering insistence on retroactivity is "out of tune with actuality largely because judicial repeal ofttime d[oes] 'work hardship to those who [had] trusted to its existence' " (id., at 624, 85 S.Ct. at 1735, quoting Cardozo, Address to the N.Y. Bar Ass'n, 55 Rep.N.Y.St.Bar Ass'n 263, 296-297). Recognizing the pragmatic wisdom of these observations, the courts have been willing to temper what would otherwise be "an absolute rule of retroaction" and, "in appropriate cases," to limit their new rules of law to prospective application (Linkletter v. Walker, supra, at 628-629, 85 S.Ct. at 1737-1738; see, e.g., James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246; Great N. Ry. v. Sunburst Co., 287 U.S. 358, 364, 53 S.Ct. 145, 148, 77 L.Ed. 360; People v. Mitchell, 80 N.Y.2d 519, 591 N.Y.S.2d 990, 606 N.E.2d 1381).

While the Supreme Court has steered away from the Linkletter position, at least for criminal appeals that have not yet become final (Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, supra; cf., Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334; see also, Graham v. Collins, 506 U.S. ----, 113 S.Ct. 892, 122 L.Ed.2d 260) 2 we have recently reaffirmed the principle of prospective application of decisional[82 N.Y.2d 262] law by holding that a new rule of State law need not automatically be applied to all cases currently in the direct appellate pipeline (People v. Mitchell, supra, 80 N.Y.2d at 526-528, 591 N.Y.S.2d 990, 606 N.E.2d 1381; see, American Trucking Assns. v. Smith, 496 U.S. 167, 177, 110 S.Ct. 2323, 2330, 110 L.Ed.2d 148 ["state courts generally have the authority to determine the retroactivity of their own decisions"]. Accordingly, when confronted with a direct appeal that implicates a newly announced State rule of law, an appellate court must consider the threshold question of retroactivity, weighing three basic factors--"(1) the purpose to be...

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191 practice notes
  • Town of N. Elba v. Grimditch, 520007
    • United States
    • New York Supreme Court Appellate Division
    • July 2, 2015
    ...to depart from the rule that “cases should be decided on the basis of the law as it exists at the time of decision” (People v. Favor, 82 N.Y.2d 254, 263, 604 N.Y.S.2d 494, 624 N.E.2d 631 [1993] ; accord Windsearch, Inc. v. Delafrange, 90 A.D.3d 1223, 1224, 934 N.Y.S.2d 576 [2011] ). To the ......
  • People v. Gonzalez
    • United States
    • United States State Supreme Court (New York)
    • February 10, 1995
    ...of reliance on the old rule, and (3) the effect on the administration of justice of retroactive application of the law. People v. Favor, 82 N.Y.2d 254, 604 N.Y.S.2d 494, 624 N.E.2d 631 (1993); People v. Mitchell, 80 N.Y.2d 519, 591 N.Y.S.2d 990, 606 N.E.2d 1381 (1992); People v. Pepper, 53 ......
  • Gersten v. 56 7th Ave. Llc
    • United States
    • New York Supreme Court Appellate Division
    • August 18, 2011
    ...presented any basis here for disturbing the presumption that the Roberts holding be accorded retroactive effect ( see People v. Favor, 82 N.Y.2d 254, 262–263, 604 N.Y.S.2d 494, 624 N.E.2d 631 [1993] ). On the contrary, as in Gurnee, the ruling in Roberts was clearly foreshadowed in view of ......
  • Dugan ex rel. All Other Persons Similarly Situated v. London Terrace Gardens, L.P.
    • United States
    • United States State Supreme Court (New York)
    • September 9, 2013
    ...632 N.Y.S.2d 56 (1st Dep't 1995). See People v. Hill, 85 N.Y.2d 256, 262–63, 624 N.Y.S.2d 79, 648 N.E.2d 455 (1995); People v. Favor, 82 N.Y.2d 254, 262–63, 604 N.Y.S.2d 494, 624 N.E.2d 631 (1993); Americorp Sec. v. Sager, 239 A.D.2d 115, 117–18, 656 N.Y.S.2d 762 (1st Dep't 1997); Matter of......
  • Request a trial to view additional results
191 cases
  • Town of N. Elba v. Grimditch, 520007
    • United States
    • New York Supreme Court Appellate Division
    • July 2, 2015
    ...to depart from the rule that “cases should be decided on the basis of the law as it exists at the time of decision” (People v. Favor, 82 N.Y.2d 254, 263, 604 N.Y.S.2d 494, 624 N.E.2d 631 [1993] ; accord Windsearch, Inc. v. Delafrange, 90 A.D.3d 1223, 1224, 934 N.Y.S.2d 576 [2011] ). To the ......
  • People v. Gonzalez
    • United States
    • United States State Supreme Court (New York)
    • February 10, 1995
    ...of reliance on the old rule, and (3) the effect on the administration of justice of retroactive application of the law. People v. Favor, 82 N.Y.2d 254, 604 N.Y.S.2d 494, 624 N.E.2d 631 (1993); People v. Mitchell, 80 N.Y.2d 519, 591 N.Y.S.2d 990, 606 N.E.2d 1381 (1992); People v. Pepper, 53 ......
  • Gersten v. 56 7th Ave. Llc
    • United States
    • New York Supreme Court Appellate Division
    • August 18, 2011
    ...presented any basis here for disturbing the presumption that the Roberts holding be accorded retroactive effect ( see People v. Favor, 82 N.Y.2d 254, 262–263, 604 N.Y.S.2d 494, 624 N.E.2d 631 [1993] ). On the contrary, as in Gurnee, the ruling in Roberts was clearly foreshadowed in view of ......
  • Dugan ex rel. All Other Persons Similarly Situated v. London Terrace Gardens, L.P.
    • United States
    • United States State Supreme Court (New York)
    • September 9, 2013
    ...632 N.Y.S.2d 56 (1st Dep't 1995). See People v. Hill, 85 N.Y.2d 256, 262–63, 624 N.Y.S.2d 79, 648 N.E.2d 455 (1995); People v. Favor, 82 N.Y.2d 254, 262–63, 604 N.Y.S.2d 494, 624 N.E.2d 631 (1993); Americorp Sec. v. Sager, 239 A.D.2d 115, 117–18, 656 N.Y.S.2d 762 (1st Dep't 1997); Matter of......
  • Request a trial to view additional results

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