Judge Smith, left, wrote the majority opinion in ‘People v. Finch.’ Judges Abdus-Salaam, center, and Read wrote separate dissents. ()
ALBANY – A deeply divided state Court of Appeals on Tuesday embraced a relaxed standard on preserving issues for appellate review, stressing that justice, not strict adherence to procedural rules, is an overarching concern.
The 4-3 court said in People v. Finch, 28, that a defendant preserved an issue for appellate review by asserting it at an arraignment and was not required to bring up the matter at later stages in the prosecution or at the close of proof.
Judge Robert Smith (See Profile), writing for the court, suggested that form should not trump substance, and expressed concern that an overly stringent application of preservation rules “would raise the disturbing possibility that factually innocent defendants will suffer punishment for no good reason.”
But the ruling split the court, which took nearly four months to decide rather than the more typical five weeks, and resulted in two separate written dissents. One, by Judge Sheila Abdus-Salaam (See Profile), said the result “is patently inconsistent with precedent and common sense.” Another, by Judge Susan Phillips Read (See Profile), characterized the majority’s reasoning as “downright bizarre” and “result-oriented.”
People v. Finch arose from Onondaga County where the defendant, Nature Finch, was arrested three times for trespassing at a Syracuse housing complex. On each occasion, Finch was the invited guest of his girlfriend, the mother of his infant son.
The property manager had initially told Finch to stay off the property except when he was with his girlfriend and child, and police who patrolled the complex had warned him that he would be arrested if he trespassed or violated the “no loitering” policy of the Parkside Commons complex.
After the first arrest for trespassing, the property manager revoked the visiting privileges she had given Finch and advised police that he was no longer welcome at Parkside Commons. But Finch continued to enter the property on his girlfriend’s invitation and was arrested twice more.
Records show that after a police officer told Finch he was under arrest for trespassing a third time, the defendant disputed their right to arrest him and resisted attempts to be placed in handcuffs. Finch was convicted before Syracuse City Judge Stephen Dougherty of two counts of third-degree trespass, plus a count of resisting arrest, and was sentenced to a year in jail.
Onondaga County Judge Anthony Aloi reversed the trespassing convictions on the grounds that Finch was the invited guest of a tenant. However, Aloi upheld the resisting arrest conviction. Judge Eugene Pigott Jr. (See Profile) granted leave to the Court of Appeals.
On appeal, the core issue was whether police, who knew Finch was an invited guest, had probable cause to arrest him for trespassing and, if not, whether the arrest for resisting arrest was valid. But before reaching the merits, the Court of Appeals had to deal with a preservation issue that consumed nearly all of the 49-page decision.
According to court papers, Finch challenged the sufficiency of the evidence at an arraignment on the second of the three trespassing charges, arguing that he since he was a guest he could not be a trespasser. However, he did not re-assert that challenge at trial, raising a question of whether the issue was preserved for consideration by the Court of Appeals.
In the majority opinion, Smith said that generally “a lawyer is not required, in order to preserve a point, to repeat an argument that the court has definitively rejected.”
Smith said the issue distilled to “whether a sufficiency argument specifically made and rejected before trial must be repeated at trial,” a question the majority concluded had not been directly addressed in either of two precedents addressing the need to preserve insufficiency allegations with a trial motion to dismiss the case (see People v. Gray, 86 NY2d 10, 1995, and People v. Hines, 97 NY2d 56, 2001).
The majority said that in cases, such as this one, where the “lack of a specific motion has caused no prejudice to the people and no interference with the swift and orderly course of justice,” a flexible reading of precedents on preservation is warranted.
“[W]hile the rule of Gray is generally a sound one, an overbroad application of it would raise the disturbing possibility that factually innocent defendants will suffer criminal punishment for no good reason,” Smith wrote in an opinion shared by Chief Judge Jonathan Lippman (See Profile) and judges Pigott and Jenny Rivera (See Profile). “Thus in this case, it seems highly likely not merely that the people failed to prove defendant guilty of criminal trespass and resisting arrest, but that he was actually innocent of those crimes.”
Smith said that if the dissenting opinion had prevailed on the preservation issue, the court would have “in all likelihood” upheld the conviction of an innocent man.
“The dissent responds by saying, essentially, that procedural rules do sometimes require us to uphold convictions of people who may be innocent, and that the task of avoiding such injustices must sometimes be left to the Appellate Division, which has interest-of-justice jurisdiction,” Smith wrote. “True enough; but procedural rules should be so designed as to keep unjust results to a minimum.”
‘Odd’ and ‘Bizarre’
In a 33-page dissent that was more than twice as long as the majority opinion, Abdus-Salaam castigated her colleagues for what she viewed as a legally and logically flawed opinion. She noted that the only time Finch attacked the sufficiency of the trespass charge was after his second arrest, and, critically, before the third arrest which also included the resisting arrest count.
“[T]he majority seems to believe that defendant specifically argued that his future arrest would be unlawful, and that he would be blameless for resisting it, weeks before it happened,” she wrote. “Is the majority seriously suggesting that trespass arrestees are blessed with such precognition? Sadly, the majority displays nothing remotely similar to the foresight it attributes to defendant, for its resolution of this case is so patently inconsistent with precedent and common sense that it can only be viewed as the odd outcome of an even odder case.”
Abdus-Salaam was joined in dissent by Read and Judge Victoria Graffeo (See Profile). Read wrote separately, noting the court’s long history of requiring claims of insufficiency to be preserved by as motion to dismiss at the close of evidence.
“As Judge Abdus-Salaam’s dissent illustrates, the way in which the majority purports to honor that principle here is downright bizarre,” she said. “As a consequence, those who follow our criminal jurisprudence closely will no doubt conclude that the majority was willing to abandon preservation to reach the merits.”
Read said she is “optimistic that today’s adventure in result-oriented decison-making will be looked upon in retrospect as an aberration, not a harbinger.”
Philip Rothschild, interim supervising attorney at the Hiscock Legal Aid Society in Syracuse, represented Finch on appeal. Finch had been represented at trial by 18-b lawyer Elizabeth Schenck, a solo practitioner in Syracuse.
Rothschild said the future implications and applications of the decision are unclear.
“I think the underlying aspect of the resisting arrest and probable cause is clearly the correct one,” Rothschild said. “But we have yet to see what the implications are vis-à-vis preservation. There seems to be a change, but I don’t know yet if it is a sea change or a minor correction. It may take a while for it all to shake out.”
Onondaga County Assistant District Attorney Joseph Centra represented the prosecution. Like Rothschild, he said he was surprised by the court’s emphasis on the preservation issue. Both attorneys expected the court to focus on whether the officer had probable cause to arrest the defendant.
“After reviewing the decision, obviously I agree with the dissent,” Centra said. “It looks like they really focused on the preservation issue. I thought they would focus on the merits, the probable cause for arrest. We agree with the dissent and believe the officer had more than enough probable cause for the arrest. Obviously, the majority saw otherwise.”