People v. Gray

Citation71 A.D.2d 295,423 N.Y.S.2d 66
PartiesPEOPLE of the State of New York, Respondent, v. Johnny GRAY, Appellant.
Decision Date14 December 1979
CourtNew York Supreme Court Appellate Division

Nathaniel A. Barrell, Buffalo (Anna Marks, Buffalo, of counsel), for appellant.

Edward C. Cosgrove, Dist. Atty., Buffalo (Michael Hudson, Buffalo, of counsel), for the People.

Before DILLON, P. J., and CARDAMONE, SIMONS, CALLAHAN and MOULE, JJ.

CALLAHAN, Justice.

Defendant appeals from a judgment entered January 9, 1979 following a jury verdict convicting him of Unlawful Imprisonment in the Second Degree (Penal Law, § 135.05), Reckless Endangerment in the Second Degree (Penal Law, § 120.20), and Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03).

Defendant contends (1) that the trial court erred in instructing the jury that "Possession by any person of a weapon designed or made primarily for use as a weapon, is presumptive evidence of intent to use the weapon unlawfully against another."; (2) that the trial court erred in charging the jury that "It is the fundamental rule of evidence that a person is presumed to intend the logical and natural consequences of his acts." Each of these instructions, defendant maintains, deprived him of his right to due process of law under the Fourteenth Amendment, relying upon the Supreme Court's recent decision in Sandstrom v. Montana, --- U.S. ----, 99 S.Ct. 2450, 61 L.Ed.2d 39, decided June 18, 1979, some six months after defendant's conviction. In Sandstrom, the United States Supreme Court, passing on the propriety of an instruction in a Montana trial charging "deliberate homicide", held that in a case in which intent is an element of the crime charged, the jury instruction that "the law presumes that a person intends the ordinary consequences of his voluntary acts" violates the Fourteenth Amendment's requirement that the State prove every element of a criminal offense beyond a reasonable doubt. On this appeal defendant argues that while the Penal Law (§ 265.15, subd. 4) creates a presumption, this presumption unconstitutionally shifts the burden of proof to him to establish his innocence and according to Sandstrom requires reversal.

At the threshold we are confronted with two procedural issues. The first is whether the defendant has preserved a question of law for our review inasmuch as he failed to object to either of the two instructions he now claims to be erroneous. The People submit that inasmuch as no timely objection was made to the charge, the issue has not been properly preserved for review on appeal (CPL 470.05, subd. 2). Although no objection was taken, this Court is not without power to reverse in the interest of justice (CPL 470.15; People v. Patterson, 39 N.Y.2d 288, 383 N.Y.S.2d 573, 347 N.E.2d 898, affd. 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281; People v. Robinson, 36 N.Y.2d 224, 367 N.Y.S.2d 208, 326 N.E.2d 784; People v. Branch, 54 A.D.2d 90, 387 N.Y.S.2d 581). No exception is necessary to preserve for appellate review a deprivation of a fundamental constitutional right (People v. McLucas, 15 N.Y.2d 167, 172, 256 N.Y.S.2d 799, 802, 204 N.E.2d 846, 848). Where, as in the instant case, a decision of the United States Supreme Court calls into question the constitutionality of a jury instruction, defendant's failure to object to such instruction at the time of trial does not deprive him of his right to do so on appeal (People v. Patterson, supra).

Secondly, we must consider whether Sandstrom should be applied retroactively. The jury was charged by the court in the instant case on October 27, 1978, some seven and one half months before Sandstrom. At that time, the court's instruction that possession of a weapon is presumptive evidence of intent to use the weapon unlawfully against another was in accordance with the Penal Law (§ 265.15, subd. 4) which had not been constitutionally challenged. The court's further charge on intent to the effect that "a person is presumed to intend the logical and natural consequences of his acts" was an instruction the propriety of which has long been established in this State (see People v. Lieberman, 3 N.Y.2d 649, 652, 171 N.Y.S.2d 73, 76, 148 N.E.2d 293, 294) and likewise had never been constitutionally challenged. As to whether defendant may assert a Sandstrom claim even though his conviction predates that decision, we hold that he may. Sandstrom was based in part on the Supreme Court's earlier holding in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, a decision subsequently given retroactive effect (Ivan V. v. City of New York, 407 U.S. 203, 92 S.Ct. 1951, 32 L.Ed.2d 659). Accordingly, Sandstrom, like its progenitor Winship, should be given retroactive effect to pending cases (see People v. Patterson, supra, 39 N.Y.2d at 296, 383 N.Y.S.2d at 578, 347 N.E.2d at 903).

Other than one case wherein the Second Department in a brief memorandum found from the facts and charge therein that the error in a similar charge was harmless (People v. Reyes, App.Div., 420 N.Y.S.2d 398 (1979), our courts have not yet addressed this issue. Since the Montana Appellate Court had not considered whether the error was harmless, the Supreme Court declined to consider that issue without precluding its consideration on remand. It did, however, make note "(t)hat in any event an unconstitutional jury instruction on an element of the crime can never constitute harmless error, see generally Brotherhood of Carpenters v. United States, 330 U.S. (395), at 408-409, 67 S.Ct. (775), at 782 (91 L.Ed. 973); Ballenbach v. United States, 326 U.S. (607), at 614, 615, 66 S.Ct. (402) at 405-406 (90 L.Ed. 350) (Sandstrom v. Montana, supra, 99 S.Ct. at 2461).

We turn therefore to the merits of defendant's claim that the trial court's instruction violated his constitutional right to due process of law. Defendant maintains that based upon the rationale of Sandstrom, the instructions herein may have been interpreted by the jury as establishing a conclusive presumption or as shifting the burden of persuasion to the defendant in violation of his due process rights. While any such diminution of the prosecution's burden of proof is necessarily prejudicial and would require reversal, this cannot be found from the totality of the charge in this case.

In its charge, the court...

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