New York Law Review

Tag: ex post facto

  • People v. Weinberg, 83 N.Y.2d 262 (1994): Retroactive Application of Tax Law & Ex Post Facto

    People v. Weinberg, 83 N.Y.2d 262 (1994)

    A statute is not applied retroactively when it applies to future transactions, even if those transactions are founded upon antecedent events; enhanced penalties for repeat offenses do not violate ex post facto laws when applied to offenses committed after the law’s enactment, even if prior offenses occurred before.

    Summary

    Weinberg was convicted of failure to file tax returns and repeated failure to file, a felony under Tax Law § 1802, based on failures in 1983, 1984, and 1985. He argued the felony charge was an improper retroactive application of the law and violated ex post facto principles. The New York Court of Appeals affirmed his conviction, holding that the law wasn’t retroactive because the last failure to file (1985) occurred after the law’s enactment. The court also ruled that the enhanced penalty for repeated offenses didn’t violate ex post facto principles because it was a stiffened penalty for the latest crime, not additional punishment for earlier non-filings.

    Facts

    Defendant failed to file New York State personal income tax returns for 1983, 1984, and 1985. In 1985, New York enacted the Omnibus Tax Equity and Enforcement Act, which included Tax Law § 1802, making repeated failure to file a felony. Weinberg filed the delinquent returns in August 1987, after being indicted. He was then convicted of misdemeanor counts for each year and a felony count for repeated failure to file.

    Procedural History

    The trial court convicted Weinberg on all counts. The Appellate Division affirmed the conviction. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the application of Tax Law § 1802 to Weinberg’s failure to file tax returns, based in part on failures occurring before the statute’s effective date, constitutes an improper retroactive application of the statute.

    2. Whether applying Tax Law § 1802 to Weinberg constitutes an unconstitutional ex post facto law.

    3. Whether the trial court erred in giving supplemental instructions to the jury regarding the timeliness element of the offenses.

    4. Whether the trial court erred in preventing defense counsel from presenting the concept of jury nullification during summation.

    Holding

    1. No, because Tax Law § 1802 was applied to the 1985 failure to file, which occurred after the statute’s effective date.

    2. No, because Weinberg committed the repeated failure to file offense after section 1802’s effective date; the law didn’t punish acts innocent when performed or enhance punishment for a crime after its commission.

    3. No, because the trial court has a duty to respond meaningfully to the jury’s inquiry, and the supplemental instruction was a correction to assure the jury was not deliberating under a misapprehension of the law.

    4. No, because encouraging jury nullification would contravene the trial court’s authority to instruct the jury that they must follow and properly apply the law.

    Court’s Reasoning

    The Court reasoned that Tax Law § 1802 was not applied retroactively because the defendant “committed” the offense when he failed to file his 1985 tax return by April 15, 1986, after the law’s effective date. The court noted that “[a] statute is not retroactive * * * when made to apply to future transactions, merely because such transactions relate to and are founded upon antecedent events”. The court also pointed to a companion bill providing for a tax amnesty period, indicating the legislature intended § 1802 to take effect relatively soon after its enactment.

    Regarding the ex post facto argument, the Court relied on People v. Morse, stating that the conviction under § 1802 “‘is not to be viewed as either a new jeopardy or additional penalty for the earlier [nonfilings]. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one’”. The Court emphasized that the defendant had fair warning that failing to file in 1985 would result in criminal liability under § 1802.

    On the jury instruction issue, the Court cited CPL 310.30, noting the trial court must give requested information or instruction it deems proper. The timeliness instruction was deemed a meaningful response to the jury’s request for a recapitulation of all elements, especially given the defendant’s ultimate failure to file timely returns.

    Finally, the Court cited People v. Goetz, stating that while a jury can acquit despite finding the prosecution has proven its case, this “‘mercy-dispensing power’ * * * is not a legally sanctioned function of the jury and should not be encouraged by the court”.

  • People v. Whalen, 369 N.Y.S.2d 393 (1975): Admissibility of Prior Identification When Witness Cannot Make In-Court Identification

    People v. Whalen, 369 N.Y.S.2d 393 (1975)

    When a witness cannot make an in-court identification but has previously identified the defendant, another witness can testify to the prior identification to establish the defendant’s identity, and such testimony is admissible as evidence in chief.

    Summary

    This case addresses the admissibility of testimony regarding a prior out-of-court identification when the witness is unable to make an in-court identification. Mrs. Wesey, a robbery victim, identified Whalen shortly after the crime but couldn’t identify him at trial due to a change in his appearance. Detective Ohlhausen testified about Mrs. Wesey’s prior identification. The New York Court of Appeals held that Detective Ohlhausen’s testimony was admissible under CPL 60.25, even though the trial occurred after the statute’s effective date, finding no ex post facto violation. The court reasoned that CPL 60.25 allows a third party to establish the prior identification when the original witness cannot make an in-court identification.

    Facts

    On March 12, 1971, Mrs. Starsy Wesey was robbed at her store, the Great Neck Garden Center. The robbers, including Whalen, were apprehended and brought back to the store shortly after the robbery. Mrs. Wesey positively identified Whalen and his accomplice to Detective Joseph Ohlhausen. Before the trial, Whalen altered his appearance by cutting his hair.

    Procedural History

    Whalen was indicted and tried in December 1971. At trial, Mrs. Wesey could not identify Whalen due to his changed appearance but testified to her prior identification. Detective Ohlhausen then testified that Whalen was one of the persons Mrs. Wesey had previously identified. Whalen appealed, arguing that Detective Ohlhausen’s testimony was inadmissible. The Appellate Division affirmed the trial court’s decision, and Whalen appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether CPL 60.25 permits a witness other than the person who made the initial identification to testify that the defendant was the person identified.

    2. Whether the application of CPL 60.25 to Whalen’s trial, which occurred after the statute’s effective date but for an indictment prior to that date, violates the constitutional prohibition against ex post facto laws.

    Holding

    1. Yes, because CPL 60.25 specifically authorizes the admission of testimony by another person to establish that the defendant is the person whom the witness previously identified when the witness is unable to make an in-court identification.

    2. No, because a statute authorizing the use of evidence not previously admissible is not an ex post facto law; CPL 60.25 involves a procedural change in the manner of proof, not a change in the elements of the crime or the amount of evidence required for conviction.

    Court’s Reasoning

    The court reasoned that CPL 60.25 allows for testimony from another witness to establish the defendant’s identity when the original identifying witness cannot make an in-court identification. The court rejected Whalen’s argument that the other witness’s role is limited to establishing the “sameness” of the defendant without mentioning the identification itself, stating, “Testimony that defendant is the person whom the witness previously identified is the necessary logical link between the defendant and the person identified.”

    The court further held that applying CPL 60.25 to Whalen’s trial did not violate the ex post facto clause. The court cited Calder v. Bull, stating that statutes which change the rules of evidence, requiring a lesser amount of evidence, are ex post facto. Procedural changes however are not. The court noted the statute does not criminalize conduct that was legal before the statute’s enactment, nor does it increase the punishment for the crime. CPL 60.25 is a procedural rule that changes the manner of proof, and therefore its application is permissible.

    The court emphasized the importance of allowing such testimony to ensure accurate fact-finding and prevent defendants from benefiting from changes in appearance. As the court highlighted, CPL 60.25 allows a third party to testify as to the facts of the out-of-court identification and is admissible as evidence in chief.

    The court specifically noted that the testimony is not hearsay, as the third party is testifying to the fact that the out-of-court statement was made and not to prove the truth of that statement.