| People v Dandridge |
| 2007 NY Slip Op 08739 [45 AD3d 330] |
| November 13, 2007 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Sylvester Dandridge, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Patrick J. Hynes of counsel), forrespondent.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered February 8,1999, convicting defendant, after a jury trial, of five counts of offering a false instrument forfiling and one count of attempted grand larceny in the third degree, and sentencing him toconcurrent terms of six months on each count, affirmed.
After being permitted to represent himself, defendant indicated on two occasions in lateSeptember 1998 that he was trying to hire a particular attorney to represent him at trial. OnOctober 6, 1998, defendant asked for an adjournment to October 30 so that he could try andobtain the funds necessary to hire the attorney. Although the court granted the adjournment, itwarned defendant that the case would go forward on October 30 even if defendant did not havecounsel. Nonetheless, when a person in the audience on October 30 stated that the MoorishScience Temple, of which defendant was a member, would provide defendant with an attorneyand defendant stated that he would need between four and six weeks to obtain a lawyer, the courtgranted an adjournment to December 7. On that date, the court denied defendant's motion to berepresented by a lawyer whose license to practice law had been suspended and adjourned the caseto December 16. On that date, defendant said that an attorney named George Lewis had said hewould be appearing in court that day. When Mr. Lewis did not appear after a second call, thecourt adjourned the case to December 18 and directed defendant to inform his attorney that thetrial would start that day. In addition, the court expressly warned defendant that the adjournmentwas "the last adjournment for the defense." On December 18, however, defendant appeared withan attorney, Sabrina Shraff, who immediately requested an adjournment. The court denied thatrequest and jury selection commenced with defendant representing himself.
Under these circumstances, defendant's claim that the trial court abused its discretion byrefusing the request for an adjournment on December 18 is meritless (see People vArroyave, 49 NY2d 264, 271-272 [1980] [a defendant's request to substitute counsel madeon the eve of trial may be denied if the defendant has been accorded a reasonable opportunity toretain counsel of his own choosing before that time, and that when a defendant has been givensuch an opportunity, "it is incumbent upon the defendant to demonstrate that the requestedadjournment has been necessitated by [*2]forces beyond hiscontrol and is not simply a dilatory tactic"]). Here, defendant was given more than a reasonableopportunity to retain counsel of his choosing and fell far short of demonstrating that theDecember 18 request was not a dilatory tactic.
Neither prior to nor during the trial did defendant ever contest venue with respect to any ofthe counts of the indictment. Accordingly, defendant's appellate claim that with respect to threecounts the People failed to prove, pursuant to CPL 20.40 (2) (c), that his conduct had a particulareffect on New York County has been waived (see People v Greenberg, 89 NY2d 553,556 [1997] ["(f)ailure to request a jury charge on venue . . . amounts to waiver"];People v Lowen, 100 AD2d 518, 519 [1984], lv denied 62 NY2d 808 [1984][issue of venue "was waived by the failure to raise the point by pretrial motion"]). Similarlyunavailing is defendant's claim that the trial court failed to make appropriate inquiry of a swornjuror who had approached the court and indicated that she did not know if she could be fair andimpartial in light of something the juror did not want to speak about in open court. At no pointdid defendant object to the inquiry that the trial court did make or request additional inquiry.Accordingly, his appellate claim is not preserved for review (see People v Hicks, 6 NY3d 737, 739 [2005] [no question of lawregarding claimed inadequacy of trial court's inquiry of sworn juror preserved for review "(i)n theabsence of a protest to the scope or intensity of the court's inquiry"]), and we decline to review itin the interest of justice.
Although defendant presented no defense and no evidence on his own behalf, the prosecutor,during the course of his summation, referred to the shifting theories defendant had advanced inthe so-called affidavits of facts he submitted with his W-4's and amended returns on thenontaxability of his wages as a New York City correction officer and told the jury that "if thedefendant believed any of these things, . . . even a mistaken belief as to the law, asJudge Wetzel will instruct you, would not be a defense for him." Defendant did not object to thiscontention by the prosecutor or to the portion of the trial court's charge to the jury in which thecourt instructed the jury that "a person is not relieved of criminal liability for conduct because heengages in that conduct under the mistaken belief that it does not as a matter of law constitute anoffense." Nonetheless, defendant now complains that the prosecutor's contention and the court'sinstruction were improper.
To convict him of the false instrument charges the People were required to prove defendant'sknowledge that the written instruments contained a false statement and defendant's intent todefraud the City and State; similarly, the attempted grand larceny charge required proof thatdefendant intended to deprive the State of its property. Defendant now argues for the first time onappeal that his good faith belief in the legality of his conduct negated these essential mens reaelements, and the prosecutor's contention and the court's instruction deprived him of a fair trialand of his right to present a defense.
However, having voiced no objection at trial, defendant has failed to preserve eithercomplaint for review (CPL 470.05 [2]; People v Balls, 69 NY2d 641 [1986]), and wedecline to review them in the interest of justice. Were we to review such claims, we would findthem to be without merit. "While defendant may disagree with existing tax laws, or with theirgenerally accepted interpretations, there was no evidence that he honestly misunderstood hisduties under those laws as they currently stand (see Cheek v United States, 498 US 192,202 n 8 [1991])" (People v Maseda,39 AD3d 226 [2007], lv denied 9 NY3d 847 [2007]). Thus, neither the common-lawrule on mistake of law nor the statutory exception in Penal Law § 15.20 (2) apply to thefacts of this case. The challenged comments were generally responsive to the pro se [*3]defendant's summation comment suggesting that he was beingprosecuted merely for "disagreeing" with the tax authorities and his explanations why hepurported to owe no taxes.
Finally, defendant challenges the sufficiency and weight of the evidence, essentially arguingthat his "openly, clearly and precisely express actions" are inconsistent with the mens reaelements of the false instrument and attempted grand larceny crimes. The sufficiency claim,however, has not been preserved for review by a timely argument specifically directed at thealleged insufficiency (see People v Gray, 86 NY2d 10, 19 [1995]). Moreover, defendant'schallenges to the sufficiency and weight of the evidence must be assessed in light of the elementsof the crimes as they were charged to the jury without exception (see People v Dekle, 56NY2d 835, 837 [1982]; People v Noble, 86 NY2d 814, 815 [1995]). When so assessed,defendant's challenges are without merit. Concur—Andrias, J.P., Marlow, Sweeny andMalone, JJ.
McGuire, J., concurs in a separate memorandum as follows: Although I agree with themajority in all other respects, I respectfully disagree with its discussion of defendant's contentionthat under the common-law exception to the general rule that a mistake of law is no defense, hisgood faith belief that he did not owe taxes negated the specific mens rea elements of the crimesfor which he was convicted.
Defendant advances two claims of error in this regard. First, he claims that the prosecutorerred in arguing on summation that if defendant believed the various theories he had advanced asto the nontaxability of his wages, "even a mistaken belief as to the law, as Judge Wetzel willinstruct you, would not be a defense for him." Second, he claims that Judge Wetzel erred whenhe instructed the jury that "a person is not relieved of criminal liability for conduct because heengages in that conduct under the mistaken belief that it does not as a matter of law constitute anoffense."
I agree with the majority that neither of these claims of error is preserved for review onaccount of defendant's failure to voice any, let alone a timely and specific, objection (seeCPL 470.05 [2]; People v Balls, 69 NY2d 641, 642 [1986]). I also agree that weshould not review them in the interest of justice (cf. People v Dekle, 56 NY2d 835, 837[1982]). I disagree with the majority, however, with regard to what it goes on to say. For thereasons stated below, I would say no more.
Whether defendant or the People are correct on the merits is an unresolved and significantissue of law. The two cases the People cite in support of their position that the common-lawexception applies only to negative a specific intent that is premised on knowledge of the law,People v Marrero (69 NY2d 382 [1987]) and People v Weiss (276 NY 384[1938]), do not so hold. Nor do the People claim that either case so holds. Indeed, as defendantstresses, language in Marrero actually supports his position that the common-lawexception applies to negative a specific intent regardless of whether that mens rea is premised onknowledge of the law. Thus, as the Court stated, "[w]e conclude that the better and correctlyconstrued view is that the defense [of mistake of law] should not be recognized, except wherespecific intent is an element of the offense or where the misrelied-upon law has later beenproperly adjudicated as wrong" (69 NY2d at 391).
Although my own research hardly has been exhaustive, I am not aware of any authority [*4]that squarely supports the People's position other than the authoritythey cite, Justice Donnino (see Donnino, Practice Commentary, McKinney's Cons Lawsof NY, Book 39, Penal Law art 15, at 75-76 ["where a crime requires a specific intent premisedon knowledge of the law, a mistaken, good-faith belief that the conduct was authorized by lawmay be properly considered to negate the requisite culpable mental state"]).
This unresolved question of law raises constitutional issues. As the Supreme Court stated ina similar context, one also involving the prosecution of an individual for not paying incometaxes, "it is not contrary to common sense, let alone impossible, for a defendant to be ignorant ofhis duty based on an irrational belief that he has no duty, and forbidding the jury to considerevidence that might negate willfulness would raise a serious question under the SixthAmendment's jury trial provision" (Cheek v United States, 498 US 192, 203 [1991];see also People v Chesler, 50 NY2d 203 [1980]).
Particularly given the constitutional dimension to defendant's contention regarding the scopeof the common-law exception, it would not be appropriate to reach the merits unnecessarily. "Weare bound by principles of judicial restraint not to decide constitutional questions unless theirdisposition is necessary to the appeal" (Matter of Clara C. v William L., 96 NY2d 244,250 [2001] [internal quotation marks omitted]).
For some unstated reason, the majority determines not to reject defendant's claims solely onpreservation grounds. Instead the majority goes on to state that if it were to review the claims "wewould find them to be without merit." Despite the phrase "without merit," I do not understand themajority to have decided the core issue of law underlying both claims: whether the common-lawexception applies to negative a specific intent regardless of whether that mens rea is premised onknowledge of the laws. Rather, I understand the majority to have decided only that it need notreach that issue of law because of a factual conclusion it makes about the evidence.
Thus, by way of explanation of its statement that "we would find them to be without merit,"the majority immediately goes on to assert that there "was no evidence that [defendant] honestlymisunderstood his duties under [the applicable tax] laws," and that for this reason neither thecommon-law nor the statutory exception "apply to the facts of this case" (emphasisadded). Nor does the next sentence—addressing only the prosecutor's summationcomments and not the court's instruction to the jury—state or suggest anything about thescope of the common-law exception with regard to specific intent crimes. Moreover, of course, itwould be wholly gratuitous of the majority to purport to resolve the novel and substantialquestion of law defendant presses if it believed that in any event the evidence shows thatdefendant did not have a mistaken belief that his conduct was lawful. That the majority does notpurport to resolve this question also seems evident from the absence of any discussion ofPeople v Marrero (69 NY2d 382 [1987]) or any other authority bearing thereon. A noveland substantial question of law would not be resolved in an off-hand and conclusory fashion.Still, it is unfortunate that the majority does not unequivocally state that it leaves the issue foranother day.
Finally, I disagree with the majority's assertion that there is "no evidence" that defendant hada good faith belief in the legality of his conduct. Notably, the People do not make any suchassertion in their brief. That reflects no want of advocacy. To the contrary, there was ampleevidence—including various letters sent by defendant explaining his income tax filings orhis legal position and the open or brazen character of his actions—from which a rationaljuror might [*5]conclude that defendant had such a good faithbelief. That is not to say that the evidence on this score was persuasive. But the majority is wrongto assert there was no such evidence.