People v. Thomas

• Decision Date: 13 July 1978
• Citation: 95 Misc.2d 289,407 N.Y.S.2d 812
• Parties: The PEOPLE of the State of New York v. Russell THOMAS, Jose Ricio, Casper Mendosa and Luis Colon, Defendants.
• Court: New York City Court

Page 812

407 N.Y.S.2d 812

95 Misc.2d 289

The PEOPLE of the State of New York v. Russell THOMAS, Jose Ricio, Casper Mendosa and Luis Colon, Defendants.

Criminal Court of the City of New York, Bronx County.

July 13, 1978.

Mario Merola, Dist. Atty., Bronx County by Edward Rinaldi, Asst. Dist. Atty., for the People.

Howard Arthur Jaffe, New York City, for defendants, Jose Ricio, Casper Mendosa, Luis Colon.

Martin Erdmann, Legal Aid Society, New York City, for defendant, Russell Thomas; Sally Denzer, New York City, of counsel.

EVE M. PREMINGER, Judge:

These cases arise from challenges to a recent amendment to Penal Law § 165.15, concerning theft of services, which was passed to facilitate the conviction of persons tampering with utility meters. Tampering has proven to be extremely costly to utility companies and "almost impossible" to punish. (39 McKinney's Consolidated Laws of New York Annotated; Supplementary Practice Commentaries, pp. 25-26.) The new statute provides that proof that a meter has been tampered with "shall be presumptive evidence" that the person to whom the service is being furnished has created the "condition so existing". Thus, whenever a meter has been tampered with, the statute permits the trier of fact to conclude that the tampering was done by the person who received the metered service.

In each of these cases the People have stipulated that they have no evidence other than the fact that defendant is the subscriber to the metered services and that the meter has been tampered with. The People also concede that without the statutory presumption they would be unable to satisfy their burden of proof. In many instances the meters in question are located in the basement of multi-unit residential buildings, far removed from the apartments of the defendants and accessible to all who enter the building for whatever purpose.

The defendants contend that the statute is unconstitutional and move to dismiss all charges.

The precise legal effect of this, or any other presumption, is far from clear. As Professor Morgan has noted,

"Every writer of sufficient intelligence to appreciate the difficulties of the subject matter has approached the subject of presumptions with a sense of hopelessness and has left it with a feeling of despair" Morgan, Presumptions, 12 Wash.L.Rev. 255 at 255 (1937).

It is with understandable caution, then, that this court addresses itself to the constitutionality of this section of the Penal Law. Not only is the case law often unclear, and in disarray, but scholars in the field disagree on the scope and effect of presumptions in particular instances. There are at least four different meanings in the law of the term "presumption" (see Lafave and Scott, Criminal Law § 21 (1972)), and there may be as many as eight. Laughlin, In Support of the Thayer Theory of Presumptions, 52 Mich.L.Rev. 195, 196-209 (1953).

At one end of the spectrum are those presumptions which allow a jury to take an established fact as some evidence of a presumed fact. These presumptions are more correctly called "inferences". The disadvantages which may accrue to a party because of their introduction into a criminal case are usually, but not always, De minimis. At the other end of the spectrum are conclusive presumptions, which so disadvantage the party against whom they are introduced that they are equivalent to substantive rules of law in favor of the party introducing them.

The presumptions which lie somewhere in the middle of the spectrum are the most difficult. These presumptions may shift the burden of persuasion; that is, the burden of convincing the trier of fact that what is alleged is true, Ashford and Risinger, Presumptions, Assumptions and Due Process in Criminal Cases, 79 Yale L.Rev. 165 (1969), or merely shift the production burden, the burden of going forward with the evidence, People v. Langan, 303 N.Y. 474, 104 N.E.2d 861; St. Andrassy v. Mooney, 262 N.Y. 368, 186 N.E. 867; see, also, Richardson, Evidence § 58 (1973). In these situations, if the defendant fails to introduce evidence rebutting the basic fact the jury is required to draw a particular inference. Platt v. Elias, 186 N.Y. 374, 379, 79 N.E. 1, 2.

Even these presumptions pose less difficulty than those, the instant presumption among them, which have been classified as "permissive presumptions". In response to growing recognition that instructing a jury to find against a defendant on any element of an offense raises insurmountable constitutional objections, the instant presumption and others like it have been classified as "permissive". Permissive presumptions "authorize" the jury, but do not require it, to find the presumed fact from the basic fact. People v. Leyva, 38 N.Y.2d 160, 379 N.Y.S.2d 30, 341 N.E.2d 546; People v. McCaleb, 25 N.Y.2d 394, 306 N.Y.S.2d 889, 255 N.E.2d 136; People v. McLaughlin, Sup.1978, 402 N.Y.S.2d 137. Thus, assuming in the instant case that defendant introduced no evidence at trial, the jury would be told of the statutory presumption and that it could find the existence of the presumed fact from proof of the basic fact if it chose to do so. See, Note, Constitutionality of Rebuttal Statutory Presumptions, 55 Col.L.Rev. 527, 528 (1955). Should the jury request any clarification or illumination from the court as to how and why it should make this choice, this court would be hard-pressed to provide any.

Leaving this difficulty aside for the moment, what tests have been established to determine the validity of a criminal statutory presumption once it is classified as permissive? The Supreme Court has provided some guidelines, beginning with the requirement that there be a rational connection between the proven fact and the presumed fact. Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519; United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658; United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210. This rational connection test has been further refined to require that it be "more likely than not" that the presumed fact will exist if the established fact exists. Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57.

Although the Supreme Court stated in Tot that the "rational connection" standard was sufficiently stringent to prevent the impermissible shifting of the burden of proof to a criminal defendant (319 U.S. at 469, 63 S.Ct. 1241), a quarter of a century later in Leary, supra, the Court was not so sure. In holding that the presumption in question failed to meet the "rational connection" or "more likely than not" test, the Court noted the possibility that the "more likely than not" test was only a minimum test, and that a criminal presumption was not constitutional unless it satisfied a higher standard. Such a standard would require not only that the presumed fact bear a rational connection to the basic fact, but that the presumed fact flow logically from the basic fact, beyond a reasonable doubt. As it found the statute in question deficient even under the more lenient test, the Court specifically left open the question:

"Whether a criminal presumption which passes muster when so judged (by the more likely than not test) must also satisfy the criminal 'reasonable doubt' standard if proof of the crime charged or an essential element thereof depends on its use." Leary v. United States, 395 U.S. at 36, note 64, 89 S.Ct. at 1548.

Although the Supreme Court again discussed this question in Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610, and in Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380, both cases involving common law presumptions embodied in the judge's charge, the issue of whether anything less than a reasonable doubt standard is constitutionally permissible remained unsettled. The lower Federal Courts have similarly failed to resolve the matter. See, United States v. Moore, 2 Cir., 571 F.2d 76, 87 at note 8; U. S. v. Adams, D.C., 293 F.Supp. 776. See, also, Note, The Unconstitutionality of Statutory Criminal Presumptions, 22 Stan.L.Rev. 341 (1970), where it is argued that the "more likely than not" test can never adequately protect the defendant's right to have all elements of the prosecutor's case proved beyond a reasonable doubt.

In New York the courts have subjected criminal presumptions to somewhat sharper scrutiny and have strengthened the "more likely than not" test beyond the federal case law. A presumed fact must flow from the proven fact with "a reasonably high degree of probability," People v. McCaleb, 25 N.Y.2d 394, 306 N.Y.S.2d 889, 255 N.E.2d 136; People v. Leyva, supra, People v. Caban, 90 Misc.2d 43, 393 N.Y.S.2d 303. These cases do not address the reasonable doubt issue, but they do reveal a recognition by the courts of New York of the danger of casual acceptance of presumptions in the criminal law.

Several courts have recently considered the constitutional validity of the instant presumption, and its counterparts in other jurisdictions, but none of these have ruled on the reasonable doubt standard. See People v. McLaughlin, supra; People v. Casteneda, 92 Misc.2d 687, 400 N.Y.S.2d 702; State v. Curtis, 148 N.J.Super. 235, 372 A.2d 612; MacMillan v. State of Florida, Fla., 358 So.2d 547 (opinion filed April 27, 1978). With the exception of the Supreme Court of Florida in MacMillan, supra, each court has upheld the validity of the instant presumption. See also Eff-Ess, Inc. v. New York Edison Co., 237 App.Div. 315, 261 N.Y.S. 126, where the Appellate Division rejected a challenge to the predecessor statute. It was "more likely than not", held the respective courts, that the person who tampered with the meter was the person who received the utility service, even in the absence of other proof. Whether it could be so presumed beyond a reasonable doubt was not considered. In MacMillan, supra, the Supreme Court of Florida disagreed:

"Sub judice, we need not consider whether the...