Senate Bill S9110

                                 
BILL NUMBER: S9110

SPONSOR: GOUNARDES
 
TITLE OF BILL:

An act to amend the criminal procedure law and the judiciary law, in
relation to determination of appeals

 
PURPOSE OR GENERAL IDEA OF BILL:

To improve and reform New York's harmless error and preservation
doctrines for appellants

 
SUMMARY OF PROVISIONS:

Section one of this bill amends subdivision one of section 470.05 of the
Criminal Procedure Law to add a new paragraph (b) to provide that when a
party claims a harmful error in an appellate proceeding, the burden is
on the party claiming harmlessness to show that such error was harmless
beyond a reasonable doubt, aligning New York's statute with the federal
standard for constitutional errors created in Chapman v. California, 507
U.S. 619 (1967).
              

Section two of this bill adds two new subdivisions to section 470.15 of
Criminal Procedure Law to reform the standards for preservation of
errors by allowing appellate courts to review unpreserved errors where
the lack of preservation may be due to ineffective assistance of counsel
or where the error may have substantially contributed to a jury verdict.
This language expands upon the existing exceptions to the preservation
rule prescribed in CPL § 470.15(3) and (6), which allow judges to review
unpreserved errors if they deprived the defendant of a fair trial or if
a sentence is unduly harsh or severe.

Courts would also be required in this section to record the race,
ethnicity, national origin, age, and gender identity of appellants in
all cases where they deem errors to be harmless, not affecting the
substantial rights of the parties. This information would then be
included in the annual report that the Chief Administrative Judge
compiles on the Unified Court System (UCS) pursuant to paragraph (j) of
subdivision one of section 212 of Judiciary Law and published online in
an accessible format on the Office of Court Administration (OCA)'s
website.

Section four of this bill sets the effective date.

 
JUSTIFICATION:

This bill would reform New York's preservation and harmless error
doctrines to ensure that miscarriages of justice occurring in the crimi-
nal trial courts are rectified on appeal without appellate courts
resorting to procedural mechanisms to avoid curing injustices.

"Harmless error" refers to an error by a trial judge over the course of
a trial that an appellate court finds was not damaging enough to the
appealing party to justify reversing a judgment or warranting a new
trial. Implicit in this doctrine is the recognition that a defendant is
entitled to a fair trial but not a perfect trial.  "Preservation" occurs
when a party complains of a potential error at trial, so that the
appeals court will later examine it to determine whether it is harmful
or harmless. New York's rules for preservation are notoriously exacting,
far stricter than the standard for federal cases articulated in the
Federal Rules of Criminal Procedure (FRCP), Rule 52(b), which allow
federal courts of appeals to review any "plain error that affects
substantial rights even though it was not brought to the court's atten-
tion." In the New York court system, however, courts may only examine
unpreserved issues "(a)s a matter of discretion in the interest of
justice" (CPL § 470.15(3)(c)) if the "error or defect...deprived the
defendant of a fair trial" (CPL § 470.15(6)(a)). In practice, however,
courts rarely if ever exercise this "interest of justice" discretion,
declining to review any potential unpreserved errors unless they are
particularly egregious.

The extreme rigor with which New York courts have applied the preserva-
tion and harmful error doctrines has had an incredibly disparate impact
on criminal cases across racial and socioeconomic lines. This is
because, while in theory both sides of a criminal trial have equal
access to these appellate tools, in reality many indigent defendants in
criminal trials are assigned public defenders with overwhelming case-
loads and an inability to prepare for trial as thoroughly as white-shoe
law firms representing wealthier defendants.  The latter attorneys meti-
culously preserve issues for appellate review in a way that is simply
impossible for indigent defense attorneys such as legal aid service
providers or counsels assigned under 18-B of County Law.

For the relatively few indigent defendants who can afford trial and then
proceed to the appeals process, judges then tend to be far more exacting
in their determination of what kind of errors are harmful versus harm-
less in cases involving wealthy defendants. Some real-life examples of
appellate courts deeming errors harmless in blue-collar criminal cases
include a failure to instruct the jury that cross-racial identification
in eyewitness testimony is unreliable, or the exclusion of a defense
expert who would have testified to problems with a prosecutor's ballis-
tic evidence.

In stark contrast, in one case involving a bond trader who had committed
securities fraud to his clients, the defendant trader received an
entirely new trial after an appellate judge found the exclusion of an
investment expert who would have said that making false statements to
investors is a normal part of business harmful, despite the investors
themselves testifying that the defendant trader's misrepresentations
were significant and material. And while the Court of Appeals will
frequently reverse the harmful error designations of lower appellate
courts, they take only one to two percent of the cases that seek leave.

This bill aims to reform New York's preservation and harmless error
doctrines in recognition of their stark racial and socioeconomic impact.
It would change New York's standard for harmless errors in Criminal
Procedure Law § 470.05(1) that the court considers "technical" and "not
affect(ing) the substantial rights of the parties" with the federal
standard for constitutional errors created in Chapman v. California, 507
U.S. 619 (1967), which requires the party claiming harmlessness to prove
that the error was harmless beyond a reasonable doubt. It would also
allow more appellate courts to review errors on their merits, regardless
of whether or not they were preserved, to better capture the legisla-
ture's original intent of the "interest of justice" safety valve created
in CPL § 470.15(3)(c). Finally, it would add a measure of transparency
to the appellate court system by requiring courts to include demographic
data on cases where errors are deemed harmless in the annual report they
are already required to produce under Section 212 of Judiciary Law.

These reforms will ensure a more even distribution of justice in an
inherently unjust system while providing policymakers key insight into
the impact and use of one of the most critical yet overlooked tools
available to criminal defendants on trial.

 
PRIOR LEGISLATIVE HISTORY:

None

 
FISCAL IMPLICATIONS:

TBD

 
EFFECTIVE DATE:
This act shall take effect immediately and shall apply to all appeals
pending as of the effective date as well as all appeals filed on or
after such date.