Wednesday, October 9, 2013

Judge Victoria Graffeo’s Approach to Constitutional Criminal Procedure

By Chelsy Jones
Chelsy Jones, a May 2013 graduate of Albany Law School, is a Law Clerk for the West Firm, PLLC in Albany.  Chelsy is a magna cum laude graduate of Siena College with a degree in Political Science.  While in law school, she was a Senior Editor at the Center, a legal intern for the Domestic Violence Hybrid Prosecution Clinic, and a Research Assistant for the Albany Law School Clinic and Justice Center.  Chelsy also worked year round as a legal intern at the Schenectady County District Attorney's Office, and acted as the student ambassador for the Center for Excellence in Law Teaching and a member of the Teaching Enhancement Committee.
She wrote this essay for the State Constitutional Adjudication Seminar, Spring 2013.

            In the realm of criminal constitutional issues, a brief review of recent Court of Appeals opinions authored by Judge Victoria Graffeo reveals an interesting pattern of decisions against the rights of the accused and a strong reliance on state precedent rather than federal.
            In People v. Grice,[1] Graffeo authored an opinion dealing with the constitutional right to counsel and when said right attaches.  In Grice, the defendant argued that his indelible right to counsel attached at the moment his father told the police that he had an attorney.[2]  Judge Graffeo, however, disagreed, and held that actual appearance or communication by the attorney is required for attachment.[3]  She based her decision entirely on the New York Constitution and cited only New York cases in support of her position, relying heavily on precedent.[4]  Graffeo specifically addressed the evolution of New York’s right to counsel jurisprudence and the importance of pragmatic and simple tests to avoid irregularity and uncertainty. 
            Two years earlier, Judge Graffeo authored a precedent-setting decision dealing with search and seizure rights in New York in People v. McIntosh.[5]

            At issue in McIntosh was the admissibility of evidence that was seized on a bus when police officers boarded and searched the bus merely because it came from New York City.[6]  Graffeo applied the four levels of scrutiny test,  developed in the New York case of People v. DeBour[7] to evaluate police encounters, and ultimately held that the police did not have a legitimate reason for confronting the individuals on the bus.[8]  Again Graffeo relied solely on New York cases for precedent.  In fact, the U.S. Supreme Court treated the exact same issue very differently in Florida v. Bostick[9] when it approved bus sweeps without any legal justification whatsoever.          
In People v. Henriquez,[10] Graffeo authored an opinion involving the right to counsel, where the defendant refused to allow his assigned legal counsel to represent him and also declined to represent himself.[11]  Graffeo and the Court held that the defendant’s right to a fair trial was not violated under these circumstances, and the defendant knowingly and intelligently waived his right to counsel.[12]  Unlike the cases previously discussed, in this case Graffeo not only cited to New York cases, but also to the U.S. Constitution and several U.S. Supreme Court cases in support of her position.
            New York State constitutional protections against search and seizure, specifically suppression of a lineup identification, were at issue in People v. Jones.[13]  Graffeo authored the majority opinion holding that the exclusionary rule did “not require suppression of the identification evidence.”[14]  Based on the federal precedent laid out in Payton v. New York,[15] the defendant in Jones was unlawfully arrested because the officers had no warrant and no consent to enter the apartment to carry out the arrest.[16]  However, despite this violation, the Court held that the New York State Constitution did not require suppression of the evidence.[17]  Again, Graffeo relied primarily on New York cases for support of her position and only on the New York Constitution for authority.
            The most recent opinion authored by Judge Graffeo on a criminal constitutional issue is People v. Pealer.[18]  At issue in Pealer was whether records of breathalyzer machine calibration and maintenance could be offered at trial or if such documents were subject to the Confrontation Clause requirements laid out in Crawford v. Washington.[19]  Ultimately, the records were held non-testimonial in nature and thus were not subject to the Confrontation Clause.  Graffeo again focused on New York’s jurisprudential approach to Confrontation Clause issues and relied on New York case law to argue her approach.  Specifically, the factors announced in the New York case of People v. Brown[20] were applied to the facts in this case to determine the primary purpose of the documents.  After an extensive analysis under New York precedent, Graffeo does make mention of the U.S. Supreme Court’s stance on the issue and argues this decision is in line with federal precedent.[21] 
            It is fairly obvious after reading these cases that Judge Graffeo prefers to rely on state, rather than federal, precedent and authority.  In fact, Graffeo only uses federal precedent in her arguments when the U.S. Supreme Court’s views on the issue are aligned with hers.  In many cases, Graffeo’s opinion has decided against the rights of the accused, signaling her penchant for crime control over due process.

[1] People v. Grice, 100 N.Y.2d 318, 763 N.Y.S.2d 227 (2003).
[2] Id. at 319, 763 N.Y.S.2d at 228. 
[3] Id. at 324, 763 N.Y.S.2d at 232.
[4] See generally Grice, 100 N.Y.2d 318, 763 N.Y.S.2d 227.
[5] People v. McIntosh, 96 N.Y.2d 521, 730 N.Y.S.2d 265 (2001).
[6] Id. at 524, 730 N.Y.S.2d at 266. 
[7] People v. DeBour, 40 N.Y.2d 210, 386 N.Y.S.2d 375 (1976).
[8] McIntosh, 96 N.Y.2d at 527, 730 N.Y.S.2d at 269.
[9] Florida v. Bostick, 501 U.S. 429, 111 S. Ct. 2382 (1991).
[10] People v. Henriquez, 3 N.Y.3d 210, 785 N.Y.S.2d 384 (2004).
[11] Id. at 211, 785 N.Y.S.2d at 385.
[12] Id. at 217, 785 N.Y.S.2d at 388.
[13] People v. Jones, 2 N.Y.3d 235, 788 N.Y.S.2d 133 (2004).
[14] Id. at 237, 788 N.Y.S.2d at 134. 
[15] Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371 (1980).
[16] Jones, 2 N.Y.3d at 237, 788 N.Y.S.2d at 134.
[17] Id. at 244-45. 788 N.Y.S.2d at 140.
[18] People v. Pealer, 89 A.D.3d 1504, 933 N.Y.S.2d 473 (4th Dep’t 2011).
[19] Crawford v. Washington, 541 U.S. 36, 50-54 (2004). 
[20] People v. Brown, 13 N.Y.3d 332, 890 N.Y.S.2d 415 (2009). 
[21] Pealer, 89 A.D.3d at 1505, 933 N.Y.S.2d at 474.