People v. Getch

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: WACHTLER; COOKE
• Citation: People v. Getch, 50 N.Y.2d 456, 429 N.Y.S.2d 579, 407 N.E.2d 425 (N.Y. 1980)
• Decision Date: 05 June 1980
• Parties: , 407 N.E.2d 425 The PEOPLE of the State of New York, Respondent, v. Anthony GETCH, Appellant. The PEOPLE of the State of New York, Respondent, v. Albert MARR, Appellant.

Page 579

429 N.Y.S.2d 579

50 N.Y.2d 456, 407 N.E.2d 425

The PEOPLE of the State of New York, Respondent, v. Anthony GETCH, Appellant.

The PEOPLE of the State of New York, Respondent, v. Albert MARR, Appellant.

Court of Appeals of New York.

June 5, 1980.

Judith L. Turnock and William E. Hellerstein, New York City, for appellant in the first above-entitled action.

Eugene Gold, Dist. Atty. (Eugene H. Scher, Asst. Dist. Atty., of counsel), for respondent in the first above-entitled action.

Susan C. Thon and William E. Hellerstein, New York City, for appellant in the second above-entitled action.

Mario Merola, Dist. Atty. (Charles L. Bach, Jr., Alan D. Marrus, New York City, and Steven R. Kartagener, Brooklyn, of counsel), for respondent in the second above-entitled action.

OPINION OF THE COURT

WACHTLER, Judge.

The question in these cases is whether the court in charging the jury on intent unconstitutionally shifted the burden of proof from the prosecutor to the defendant. In each case the Appellate Division has upheld the conviction. The defendants appeal claiming that the Supreme Court's recent decision in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 requires reversal and a new trial.

In People v. Marr, the defendant, Albert Marr, and two others, Melvin Holley and one "Velvet", allegedly beat and robbed a 66-year-old man in a Bronx residential hotel in February, 1977. The defendant was indicted for robbery and burglary in the first degree and related offenses.

At the trial the complainant testified that about 4 o'clock in the morning the three men broke into his room and beat him while one of them took his wallet containing $6. The defendant admitted entering the complainant's room and striking him but claimed that he was merely attempting to break up a fight. According to the defendant he and Velvet had gone to the hotel to visit Holley who resided there. Defendant stated that after Velvet had left Holley's room to use the men's room, he heard an argument in the public hallway and saw the complainant and Velvet fighting outside the complainant's room. The defendant intervened as the fight continued into the complainant's room. In the process he struck both Velvet and the complainant, but only to break them apart and stop the fight. Thus he disclaimed any criminal intent and also denied taking the complainant's property.

In charging the jury on intent the court stated: "(T)he law says that a person is presumed to intend that which he actually does." At another point this was characterized as an "inference", but "to sum up the whole concept" the court stated, "A person intends (the) natural and reasonable and probable consequences of his acts." Defense counsel unsuccessfully objected to this portion of the charge. The defendant was convicted of burglary and robbery, both in the second degree (see Penal Law, §§ 140.25, 160.10).

On appeal the Appellate Division, First Department, modified by reducing the robbery conviction to robbery in the third degree (Penal Law, § 160.05) and otherwise affirmed. The defendant now claims that he is entitled to a new trial because the court's charge on intent improperly shifted the burden of proof. Although this issue was not presented to the Appellate Division it is subject to review in this court (see CPL 470.35, subd. 1).

In People v. Getch, the defendant, Anthony Getch, in September of 1976, fled from the police after committing several traffic infractions while he was driving a stolen car in Brooklyn. During the course of a high speed chase, the vehicle driven by the defendant collided with the police car injuring one of the officers. The defendant then ran from the car and was arrested by the other officer after a brief struggle. He was charged with various crimes, including criminal possession of stolen property in the second degree and assault in the second degree. Both of these crimes require proof that the defendant acted intentionally (see Penal Law, §§ 165.45, 120.05, subd. 3).

At the trial the arresting officer testified that the defendant smelled of alcohol, that his speech was slurred and, in the officer's opinion, the defendant was intoxicated. ¹ In summation defense counsel emphasized the proof of intoxication and asked the court to charge "on intoxication and how it negates the intent to commit crimes." The court granted this request. The court later gave a very comprehensive charge on intent, during which it made the following remarks despite defendant's objection: "Upon the question of intent, you may infer that a person intends that which is the natural and necessary and probable consequences of the act done by him. And unless the act was done under circumstances to preclude existence of such intent, you have a right to find from the results produced an intention to effect it."

The defendant was convicted on the possession and assault charges and was also found guilty of unauthorized use of a vehicle. On appeal he argued that the court's instructions on intent improperly shifted the burden of proof to him on that particular element. The Appellate Division, Second Department, affirmed. The court noted that it would have been better if the trial court had not charged the first part of the second sentence but, nevertheless, concluded that the charge, read as a whole, made "it abundantly clear that the burden of proof was not shifted to defendant but was borne by the prosecution, requiring proof beyond a reasonable doubt as to every element of each crime charged." On appeal to our court the defendant urges the charge was erroneous and that the convictions on the two counts involving intent should be reversed and a new trial ordered.

After the Appellate Divisions had ruled on these cases, the Supreme Court held in Sandstrom v. Montana, 442 U.S. 510, 515, 99 S.Ct. 2450, 2454 that it was unconstitutional for the court to instruct the jury that " '(t)he law presumes that a person intends the ordinary consequences of his voluntary acts' ", in a case where intent was an element of the crime charged. It was emphasized, however, that in that case the instruction had been given without qualification. The members of the jury "were not told that they had a choice, or that they might infer that conclusion; they were told only that the law presumed it" (Sandstrom v. Montana, supra, at p. 515, 99 S.Ct. at p. 2454). Under those circumstances, it was noted, the jury could reasonably interpret the instruction as (1) a conclusive presumption, i. e., "an irrebuttable direction by the court to find intent once convinced of the facts triggering the presumption" or (2) a burden shifting presumption, i. e., "a direction to find intent upon proof of the defendant's voluntary actions (and their 'ordinary' consequences), unless the defendant proved the contrary by some quantum of proof which may well have been considerably greater than 'some' evidence thus effectively shifting the burden of persuasion on the element of intent" (Sandstrom v. Montana, supra, at p. 517, 99 S.Ct. at p. 2456). The court concluded that either interpretation would deprive the defendant of his right to due process, which requires the prosecutor to prove every element of the crime charged beyond a reasonable doubt. It was observed, however, in the concurring opinion, that "if this charge had, in the words of the Court, 'merely described a permissive inference,' ante, at p. 514 (ante at p. 2454), it could not conceivably have run afoul of the constitutional decisions cited by the Court in its opinion" (Sandstrom v. Montana, supra, at p. 527, 99 S.Ct. at p. 2461).

There is no contention in these cases that Sandstrom is inapplicable to trials concluded prior to the date it was decided. We note, however, that the Supreme Court gives retroactive effect to its decisions where "the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function" (Ivan V. v. City of New...