People v. Wise

• Decision Date: 25 April 1980
• Citation: 427 N.Y.S.2d 691,104 Misc.2d 77
• Parties: PEOPLE of the State of New York v. Gregory WISE.
• Court: New York Supreme Court

Page 691

427 N.Y.S.2d 691

104 Misc.2d 77

PEOPLE of the State of New York v. Gregory WISE.

Supreme Court, Criminal Term, Kings County, Complex C.

April 25, 1980.

Joel A. Brenner, East Northport, for defendant.

Eugene Gold, Dist. Atty., by Julian Kalkstein, Brooklyn, for the People.

JOSEPH SLAVIN, Justice.

The defendant moves under Criminal Procedure Law, section 440.10(1)(g)(h), (2a), (4) for an order setting aside the defendant's conviction and either dismissing the indictment or granting defendant a new trial. The defendant was previously convicted of felony murder in this court under Indictment # 730/73 and on February 27, 1975 was sentenced to an indeterminate term of imprisonment by Hon. Hyman Barshay. He is currently serving that sentence. On appeal to the Appellate Division, Second Department, defendant's conviction was initially set aside and he was granted a new trial (People v. Wise, 60 A.D.2d 921, 401 N.Y.S.2d 577 (2d Dept.1978)). On a further appeal to the Court of Appeals, the conviction was reinstated (People v. Wise, 46 N.Y.2d 321, 413 N.Y.S.2d 334, 385 N.E.2d 1262 (1978)).

The defendant contends that his state and federal constitutional rights were violated and he was deprived of a fair trial, in that (a) testimony was admitted as to a statement allegedly made by him, which statement was obtained during a period of illegal custodial interrogation, and (b) the burden of proof was shifted to him when the jury was improperly instructed that "a person is presumed to intend the natural consequences of his act." The first of these contentions was decided adversely to the defendant in the Court of Appeals (People v. Wise, supra ) but defendant contends he is entitled to relief because there has been a retroactively effective change in the law controlling such issues (CPL 440.10(2a)). (Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1978).) The second of these contentions was not raised on appeal but defendant again claims there has been a retroactively effective change in the law under Sandstrom v. Montana (442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979)).

The People contend that Dunaway should not be applied retroactively and that this court is bound by the Court of Appeals' decision in People v. Wise, supra. Additionally, as to defendant's second point, the People state that defendant's due process claims may not be raised by motion to vacate judgment (CPL 440.10(2)(c)), but should the court determine to reach the merits of defendant's claim under Sandstrom, the judgment should not be set aside because the charge was proper under the law.

Where a major purpose of a new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in the past (Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388, the doctrine has quite often been applied retroactively. However, in United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), the Supreme Court discussed the standards for determining whether the exclusionary rule should be applied retroactively. The court said "It would seem to follow a fortiori from the Linkletter and Fuller holdings (Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 holding that Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 is not to be applied retroactively) that the 'imperative of judicial integrity' is also not offended if law enforcement officials reasonably believed in good faith that their conduct was in accordance with the law even if decisions subsequent to the search or seizure have held that conduct of the type engaged in by the law enforcement official is not permitted by the Constitution." The court went on "If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment." Peltier, supra. In the present case the police officers properly believed the law at the time to be that of People v. Morales (42 N.Y.2d 129, 397 N.Y.S.2d 587, 366 N.E.2d 248 (1977)). The Court of Appeals in the instant case (People v. Wise, supra ) found the police conduct in taking defendant into custody fell within the proscribed limits of Morales "so long as the police are solicitous of an individual's rights, and carefully delimit the scope of intrusion, a custodial detention predicated upon reasonable suspicion can hardly be termed 'unreasonable' " (People v. Morales, supra ). Dunaway reversed the holding of Morales, finding the custodial interrogation with less than probable cause (except in certain circumstances) is unconstitutional.

In the case of Stovall v. Denno (388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199), the Supreme Court put forth the criteria guiding the resolution of the question of retroactivity. They are (a) the purpose to be served by the new standards; (b) the extent of the reliance by law-enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards. In Stovall, the court held that the rule requiring an attorney to be present at all stages of confrontation was not retroactive.

In each of the three areas in which a decision was applied retroactively, the principle went to the fairness of the trial (i. e., right of appeal, right to counsel, voluntariness). Here, the fairness of the trial is not under attack.

Defendant contends that Dunaway has been held retroactive by implication in New York. This is incorrect. As a general rule the courts decide cases according to the law as it exists on the date of the then decision (People v. Reynolds, 25 N.Y.2d 489, 307 N.Y.S.2d 201, 255 N.E.2d 548 (1969)). Defendant is not entitled to the benefit of Dunaway for at the time of the court's decision in the normal appellate process, Dunaway was not the law (People v. English, 16 N.Y.2d 719, 262 N.Y.S.2d 104, 209...