Samuel Allen, Raymond Hardrick and Melvin Lemmons v. County Court, Ulster County and New York Woodbourne Correctional Facility, Woodbourne, New York

is the same sort of chill tional in nature. It Raymond privileges: ALLEN, for most

that forms basis Samuel Hardrick and Lemmons, Petitioners, or the of ideas com- Melvin expression chill on in the context of munication of information lawful, special, confidential relation- certain COURT, COUNTY ULSTER COUNTY However, will ships. a moment’s reflection and New York Woodbourne Correction- sufficient to elimi- privilege reveal that a Facility, Woodbourne, York, al Re- chill would have to be nate this incremental spondents. exceedingly All confidential com- broad. No. Docket 77-2059. munications, oral or written and whether made in the newsroom or else- whether United States of Appeals, Court where, It would have to covered. seems Second Circuit. really were privilege

to me that if such Argued Sept. function, necessary protect the editorial Decided Nov. long we would have about it before heard Supreme now. Like the Court Branz-

burg, “unwilling I would be to embark the on a

judiciary long journey and difficult

such an uncertain destination.” 408 U.S. at 2668. The S.Ct. no

has shown enthusiasm for the creation of privileges, particularly

new constitutional here,

where, are based on claims of

chilling depend imagina- effect that judges proof supplied

tions rather than parties. Compare Branzburg

Hayes, supra,

2646, with ex N.A.A.C.P. Alabama rel.

Patterson, (1958) (in support

L.Ed.2d its claim privilege against disclosure of the iden-

tity membership, of its rank-and-file made

NAACP an “uncontroverted show-

ing” exposure past had in the led to membership).

harassment of its Judge Haight’s

I would affirm order com-

pelling discovery.

Cohen, Gen., Atty. Asst. New City, York counsel), respondents. for D. Young, City (Gold- Michael New York Breitbart, berger, Feldman & New York counsel), City, petitioners. for TIMBERS, Before MANSFIELD Judges, DOOLING, District Circuit Judge.* MANSFIELD, Judge: Circuit in this principal The issue case is the constitutionality of a New York statute “presence which makes the in an automo- any bile ... firearm presumptive possession by evidence of its persons occupying such automobile at found, time such weapon ... except following under the circumstances: (a) if such ... weapon upon is found person occupants one of the therein. ”1. Judge Richard Owen of the ap- District of New York granted Southern pellees' application prisoners as state for habeas corpus ground writ of was unconstitu- in their trial tional firearm, possession felonious of a loaded 265.05(2) (McKinney’s Law N.Y.Penal 1967) (now 265.02(4) (McKinney’s found at § Supp.)). Because we 1976-77 conclude is unconstitutional on its Gen., New Atty. F. Asst. Shapiro, Eileen face, we affirm. Gen., Lefkowitz, (Louis Atty. City J. York York, On March Samuel A. Hir- automobile driven of New of the State Lemmons, Gen., Z. showitz, Atty. by appellee Lillian in which First Asst.

* person East- Court for the is found of one of the occu- United States District theOf York, by designa- therein; sitting pants (b) weapon, District of such instru- ern appliance tion. ment or is found an automobile being operated by duly which is hire 265.15(3) (McKinney’s Law § N.Y.Penal due, proper licensed driver lawful Supp.) provides: trade, pursuit of his then such automobile, presence in an other “3. The driver; apply (c) to the if the shall or omnibus, public a stolen one or a weapon pistol so is a found or revolver firearm, silencer, firearm, explosive defaced occupants, under du- one ress, knife, bomb, bombshell, gravity incendiary possession has in license to his valid stiletto, billy, knife, dirk, dagger, switchblade carry have and concealed same.” stick, knuckles, blackjack, sand- chuka metal only provision and between this difference slungshot presumptive bag, sandclub or appel- applicable during the one persons oc- of its ail evidence trial is addition of chuka sticks to the lees’ such cupying time automobile such weapons presumption ap- list of to which found, appliance weapon, instrument plies. following except circumstances: under appliance weapon, (a) instrument or if such

Alien, “Jane Doe”2 were automobile at and one the time Hardrick when such instru- found,” Police for stopped State ments were passengers, was but omitted any refer- Thruway. ence to “upon the New State the statute’s speeding person” exception. objection Lemmons was in stopped car was No When the omission seat, right Doe in the guilty Jane was voiced. After a the driver’s verdict had seat, returned, appellees Hardrick in the and Allen and moved front to set left the indictment, After Lemmons had car aside and to dismiss the back seat. renew- ing for reasons not rele- their had arrested claim that the presumption been was police here,3 inapplicable one of the officers re- a vant to them as matter of law and car, that, through the front arguing looked in addition presumption turned to side, (Doe’s) passenger’s applicable, window on were found it was unconstitu- part handgun protruding applied. saw from a tional as This motion was also on the floor of handbag resting ladies’ denied. right A next to the front door. search car Appellees’ convictions were affirmed by handbag revealed loaded .45 auto- Appellate Division, Department, Third .38 revolver.4 pistol Ap- matic and a loaded People Lemmons, 49 A.D.2d 370 N.Y. pellees Doe were indicted the State (1975), S.2d 243 of two the five judges York, jury of New tried before dissenting part, the New York County convicted of feloni- court and Ulster Appeals, Lemmons, of People weapons two possession of these vio- ous N.Y.2d 387 N.Y.S.2d 354 N.E.2d 836 265.05(2). of N.Y.Penal Law At lation § (1976), judges with two dissenting part. entirely on prosecution

trial the relied the The latter court held that the evidence statutory presumption to establish the de- bearing on applicability of the presumption fendants’ dominion or control over had warranted submission the question introducing guns,5 no evidence other than further, jury to the but to go declined not- appellees’ presence in the car in which the ing that the defendants had object failed to handbag containing guns was also to the omission of “upon the person” possession. to demonstrate exception from the jury charge. Although appellees majority At the close of state’s case opinion explicitly did not deal indictment, issue, arguing moved to dismiss the with the implicitly upheld the stat- apply them, did ute’s constitutionality, discussing legisla- guns history since the had been “found reasoning tive and the behind its person” meaning Jane Doe within the enactment. The defendants had contended exception presumption. before Appellate See Division and the Court 265.15(3), quoted Appeals N.Y.Penal Law in fn. 1. of § statute was unconstitu- Thereafter, applied, This motion was denied. in its tional as citing Leary v. United jurors the court instructions informed the statutory support and that argument of their

could “infer and draw a conclusion that “a regarded must be as ‘irra- prohibited weapon possessed by ‘arbitrary,’ such tional’ or and hence unconstitu- tional, occupied each of the defendants who unless it can said with substantial Doe, juvenile, appel- appellees 2. Ms. was tried acquit- but Jane Doe and the were all lees, years pro- five charges arising convicted and sentenced to on ted out this search. bation. Her case not before us. argued 5. The State on has occasion that over, pulled pro- 3. When the car was Lemmons large guns caliber of these was some evidence A duced his driver’s license. radio check indi- Doe, 16-year girl, that Jane old was not their mistakenly as it turned out —that he cated — accepted, owner. Even if the inference is fugitive was wanted warrant from Michi- course, nothing identity it reveals about the gan, and he was arrested that reason. person persons for whom Doe holding appellees them —be or some subsequent 4. A search of the trunk of the car in party parties. unknown third riding which were uncovered a heroin, pound machine and more than a applied fact is more stitutional an improper rul- assurance proven to flow from the fact ing than not issue law. of state Because of (Defend- it is made to defend.” upon which grounds disposition, of our we need deal App.Div., p. and brief before ants’ brief only with the first two contentions. Moreover, 20.) Appeals, p. before Court Fuchsberg maintained Wachtler and Judges DISCUSSION could not in dissent applicant An federal habeas in this case.6 40 constitutionally relief must first exhaust available State 97, 354 387 N.Y.S.2d N.Y.2d filing application. remedies before his N.E.2d Noia, 2254(b)-(c); Fay U.S.C. petition filed their thereafter Appellees 391, 434-35, corpus in the Southern writ of habeas for a However, (1963). “petitioners are re York, claiming that of New District quired ‘repetitious applications’ to file in was unconstitutional presumption York’s Swenson, Wilwording v. the state courts.” applied to their case and as its face both on 249, 409, 250, 407, 404 92 U.S. S.Ct. 30 charge as to jury to the the failure that Brown v. (1971) curiam); (per L.Ed.2d 418 “upon of the the applicability the possible Allen, 443, 3, n. 344 U.S. 448-49 73 S.Ct. a denial of constituted exception person” 397, (1953). 97 L.Ed. 469 “Once the federal writ, Judge Owen issued the process.7 due presented fairly claim has been to the state the holding that courts, requirement the exhaustion is satis applied.8 as unconstitutional Connor, 270, fied.” Picard v. 275, (1) argues that the the State appeal, On (1971). 92 S.Ct. 30 L.Ed.2d 438 constitutionality presumption’s the issue of required is petitioner pur Nor a habeas to before this court properly not on its face is sue available state remedies for collateral appellees’ alleged failure to because the he has his presented attack if federal claims regard this state remedies exhaust appeal. to the state courts on direct claim, (2) presumption the in that Malcolm, ex rel. Newsome v. States valid, (3) Judge that 492 facially event 1166, (2d 1974), 4 affd. that statute was uncon- F.2d 1169 & n. Cir. holding the Owen’s ons, not, Appeals necessarily upon person.. could would her 6. New York Court of The However, course, appellees’ simply ignore may grant constitutional since federal courts habe- thereby corpus an- prisoner only force them to undertake claim and as relief state to a “on the litigation. g., ground custody E. round of state court he other that is in violation the (8th Wyrick, 528 F.2d 480 Cir. Eaton v. Constitution laws or treaties of the United (“State definitively 1975) States,” courts need have 2254(a), 28 U.S.C. state court find- by a on merits of the issues raised sufficiency ruled the ing as to the of evidence—in this relief; corpus petitioner seeking federal habeas case the evidence on the issue of whether the rather, the it is sufficient that state courts weapons person rarely were on Doe’s — opportunity properly presented with the presents question cogniza- the kind of federal issues.”); see United rule the p. 1010, corpus. habeas See infra. ble on (2d 1964). Fay, 333 815 Cir. F.2d Moreover, majority opinion the of the New Appeals Court took the view that the find 7. Because we the unconstitu- placement weapon handbag in Doe’s the did tional, (1) ques- we not reach either need necessarily indicate that she “in sole forfeited their tion of whether weapon.” Ap- and exclusive based on the court’s failure to instruct claim regarding pellants point here to other circumstances —the exception by person” “on the large weapons, two calibers the tender failing object judge’s charge on to the trial (16 age years) protrusion of Doe and the basis, Wainwright Sykes, U.S. 433 see this bag support her for from an inference —as 97 S.Ct. by jury young that as “moll” she was (2) the merits. that, guns holding for others or Owen, being addition, Judge flagged police, they noting that stat- car down guns utory presumption operate bag does not when stuffed their into her order to avoid person” being weapon “upon caught weapons of another found with the on their adult exception suggested occupant, persons, would knowing that she be treated as circumstances, present apply youthful in the since offender. weap- handbag, including Doe’s contents of Newsome, sub nom. Lefkowitz (Emphasis added.) U.S. state courts.” (1975). 275, 277-78, 95 S.Ct. U.S. Applying this principle appellees have In this case consist case, we conclude that ques “ultimate argued, at their state trial ently both disposition” posed by tion appellees’ ar appeal, was uncon gument is unconstitu However, them.9 stitutional as tional on its face is not substantially differ appellants urge appellees’ contention ent presented by from that their claim in is unconstitution here that the state courts to the effect the stat represents al on its face “different” claim applied. ute is unconstitutional as The fun presented that was not state courts. question damental in either case is whether remedies, argument goes, empirical there exists a sufficient connec However, not exhausted. as were therefore fact,” “proved tion between the here the out in Picard v. pointed gun, car of a “pre and the Connor, determining whether a claim fact,” sumed its possession here occu proceedings substantially raised in habeas Compare Leary v. United pants of the car. previously presented as that same States, 6, 29-54, 89 S.Ct. 1532 state, the courts of a (1969) (facial constitutionality a pre “Obviously, there are instances which sumption), with Turner v. United question disposition’ ‘the ultimate & n. despite . will be the same varia- (1970) L.Ed.2d (constitutionality theory allega- legal tions in factual applied). While the inquiry may factual be urged support. tions in its ex- ready A more somewhat constrained in an ap “as challenge is a infra, ample predi- to confession adjudication, plied” p. see 1010 upon psychological physi- cated as well as certainly complain cannot that . . simply cal coercion. .We hold its courts have not op had “first that portunity” substance federal habeas to legislative rule facts corpus be presented claim must first to its underlying presumption.10 ing argument law The memos of submitted oral as to whether the issue had appellate However, to the New York trial and courts each corpus raised. because habeas following passages: contained the petitioners demonstrating bear the burden of “Second, applicable remedies, g., is that have exhausted state e. here, applied. Lewis, 29, then it is as v. (7th unconstitutional Baldwin 442 F.2d 35 Cir. Leary 6, 1971); Oklahoma, 1369, v. United “In 395 U.S. 89 v. Bond 546 F.2d 1377 1532, (1969), (10th 57 1976), S.Ct. preme 23 L.Ed.2d Su- Cir. we will assume that the issue held that must pressed apart appellees’ from the con- regarded ‘arbitrary,’ as ‘irrational’ and regarding presumption’s tentions constitu- unconstitutional, unless can hence it be said tionality applied. with substantial assurance that the equivalence 10. The substantial of the claims likely fact is more than to flow from asserted before the state and federal courts in proven depend. fact it is to which made apparent by this case is contrast to those cases 36, . Id. at 89 S.Ct. 1532. . . in which this has court found that a new claim “Assuming is consti- presented corpus has been in a federal habeas face, (People Leon, tutional its v. De 32 See, proceeding. g., Fielding LeFevre, e. v. 548 944, 203, N.Y.2d (1973), 347 N.Y.S.2d 300 N.E.2d 734 (2d 1977) (a F.2d 1102 Cir. state court claim clearly ap- it is unconstitutional as excessively that sentence was harsh not the plied. can There be no ‘substantial assur- equivalent judge of a habeas claim that the trial ance’ that a defendant in a car more is right trial); Mayer had chilled Moeykens, exercise to v. person not to know is than what 855, (2d Cir.), 494 F.2d cert. occupants car. other . denied, 926, 94 conclusion, S.Ct. apparent “In it is that the stat- (1974) (claim police probable 229 that lacked utory presumption set in 265.15 out cannot cause for arrest different from claim apply merely occupants that to those who were insufficient); warrant was statutorily ex rel. this car. This so both and con- Zelker, (2d Cir.), Nelson stitutionally. v. 465 F.2d .” denied, though papers cert. We explicitly argue note even these do not S.Ct. (1972) (argument constitutionality joint L.Ed.2d 497 the facial trial of presumption, co-conspirators uncertain dur- constituted denial of due pre has Appeals the issue of the refused to conclusion that declare the Our sumption constitutionality has been “fair applied unconstitutional as to sumption’s wholly weapons, although courts” is situation in which presented to the state ly nature of the same car as equitable occupants, were in with consistent handbag (Doe), prerequisite person This of another it requirement. is in- exhaustion be construed as the conceivable should not court would to the writ reverse as to equivalent statutory of the formalities its field hold that the presump- functional tion, pleading. “The with common law sociated circumstances judicially less the occupants is a crafted favorable to doctrine those exhaustion here, facially a careful balance which reflects nevertheless instrument uncon- important Secondly, Smith, interests of federalism stitutional. Stubbs between (2d preserve 1976), the writ of habeas 533 F.2d 64 Cir. although the need to we remedy unnecessary imperative pass upon a ‘swift and found corpus as the mer- illegal petitioner’s restraint or confine its of a all cases of habeas constitutional ” challenge to very v. 30th Judicial Circuit ment.’ Braden before 1123, 1127, us, Court, require we declined to the petitioner (1973). “The exhaustion issue, exhaust state court remedies on that he merely though previously it, an accommodation even had not requirement raised designed give since the New York system Appeals federal Court of our had pass upon ‘opportunity already rejected peti- substance of the an initial State position previous cases, alleged prison legal violations of its tioner’s correct’ see People Russo, Wilwording v. 303 N.Y. rights.” Swen N.E.2d ers’ federal (1951); Leyva, son, People 408. 834 38 N.Y.2d supra, 404 U.S. has had an “initial 341 N.E.2d New York N.Y.S.2d 30 In this rationality given no rule on the had indication at the time of opportunity” to his petition in a car between federal it would reconsider the connection it; require previous holdings. 533 F.2d at 69.11 To require feder serve the interests of exhaustion these circumstances would not more corpus policy habeas would serve no but would undermine associated with feder- alism alism, remedy.” appellees’ but would frustrate efforts imperative “swift and as a to liberty promptly. recover their Moreover, readily apparent that an it reasons, in closely analogous review the For state collateral we also application for appellees exer- conclude that have not wholly futile forfeited case would be present all, the right argue New York Court to the facial unconstitution- of since the cise. First Brady process into a reach the merits of their on habeas claim of facial uncon- reformed claim). stitutionality any upon motion to vacate sen- might require tence which we them to file. Although enter- York trial court a New Such a motion to vacate sentence must also prior judgment a motion to vacate tain be denied if the trial court finds that “the ground was “obtained in violation of ground upon or issue raised the motion was right constitution the defendant under the of previously upon determined on the merits an States,” N.Y.Crim. the United appeal judgment. from the .” N.Y. 440.10(l)(h), such a motion must be § Proc.L. 440.10(2)(a). Crim.Proc.L. If to we were re- ap- adequate the finds that no denied if court quire proceedings, to further recourse state pellate ground for occurred relief review'of (as state trial court were to find would not “unjustifiable failure defendant’s because unlikely) Ap- the New York Court of upon appeal ground such or issue to raise peals implicitly disposed had of the issue 440:10(2)(c). actually perfected by him.” Id. § validity when facial it found the appellees’ present for not case reasons In applied, irony as unconstitutionality constitutional would be urging stat- the facial prisoners by apparent. hypothesis, State who utory implicit it was are that they by told had had been us that failed to and that constitutional claim raised rejected to a claim the state courts would be of the claim had been substance by in this context informed the state that their claim had al- cases. We believe earlier difficult, extremely ready appellees find it on the merits. would been determined impossible, persuade courts to to the state over, before the federal consider facial validity ality Wainwright Sykes, generally presumption here jeopardize courts. See would not L.Ed.2d presentation orderly of claims of constitu- pressed They persistently have (1977). courts; tional error to the New York trial position before equivalent substantially argued State has never that it was not York, and it courts in different three to the possibility alerted its statute for us conclude be unreasonable against could not be used further they pursue need that, although appropriate time to take during action their they already because remedies trial. “ulti the state courts confronted Having concluded question us,” disposition for before question mate constitutionality of the New York not sufficient to avoid a efforts were their sumption properly us, on its face is before Wainwright, relief. forfeiture of federal we turn to the merits. Supreme Court’s lat represents which equivalent The substantial of the New procedural word on forfeitures habe est cases, possession although severely limiting ap weap- by occupants of an Fay v. Noia “deliberate automobile plicability of based standard, is consistent with our de the car was bypass” first enact- 1936,12 Wainwright years issue. ed in some cision on this before a series of sought petitioner habeas relief Court cases redefined the consti- ground that a confession read into evidence tutional statutory pre- standards trial had been in sumptions at his state court obtained judged. are to be When the rights. However, of his Miranda acted, violation first the most current object to its admission at he had failed statement of law Morrison Cali- Supreme Court held that the fornia, the trial. The 78 L.Ed. “contempo with Florida’s comply failure a case in which the defendants objection” rule barred federal ha raneous charged were with violation of a statute claim, corpus of his Miranda review beas prohibiting alien agricultural showing pro “cause” for absent property and the Court considered the con- “prejudice” resulting default and cedural stitutionality of a California statute which explained it. that its new from shifted them the proving burden of their jus procedural forfeitures standard citizenship or eligibility for once the State rule because Florida’s “deserves tified had shown that possessed agricultural it, Fay gives both respect greater property. Justice opinion Cardozo’s ex- employed that it is a coordinate the fact plained that constitutionality of pre- system the federal within jurisdiction sumptions regulations of the burden of many which it serves in its interests for proof depended a variety of circumstanc- advantages right” chiefly the own es, of which were paramount: two — informing judge a trial of from flow burden, “For of transfer experience at a of constitutional error time possibility must teach that the evidence held to be it. 433 be taken to correct action can when inculpatory has at least a signifi- sinister at 2507. 97 S.Ct. U.S. . . cance or if this at times be Here, Wainwright lacking, neither rationale is im- must in any there be event a above, we plicated. disparity As indicated whatever manifest in convenience of may proof interest New York opportunity knowledge, as, federalism for opportunity instance, pass in a first to on the for where a general prohibition had of validity fully applicable every facial its is to one who is unable York Court bring vindicated when of to himself within the of range 90-91, with Appeals presented exception.” the claim that atU.S. 54 S.Ct. at as applied. it was unconstitutional More N.Y.Laws, ch. 390. States, v. United

However, gued in Tot upon that to place defendants in 87 L.Ed. 1519 63 S.Ct. going of criminal cases burden for- after the enact years seven decided proper. ward with the evidence would be presumption here the New York of ment proves argument But the too much. If it statutory Court, nullifying a issue, sound, legislature might validly were of the effect that of an finding command that indict- evidence of presumptive shall a firearm ment, proof identity of or mere receipt in interstate transportation or its accused, create a presumption should per commerce, position shifted all the the existence of facts essential to presumptions: justifications missible guilt. not permissible. This is the Fifth clauses of process due “[T]he the defendants “Doubtless these set limits Amendments Fourteenth anyone better cases knew else Congress that of power they acquired the whether firearms or proof to make the of one group of facts evidence of fact or ammunition in interstate commerce. It on which the ultimate fact existence of therefore, would, be a convenience to the question The guilt predicated. rely upon the presump- Government whether, instance, Act trans in this tion cast on the defendants the bur- gresses those limits. coming den of forward with evidence to argue that seems to “The Government But, shown, as we have it is rebut it. alternative tests of there are two permissible thus shift the burden by stat- validity created fact, arbitrarily making one which has no a rational ute. The first is that there be offense, guilt relevance oc- proved between facts connection casting casion of defendant that of the second presumed; the fact exculpation. obligation argument ev- producing convenience of comparative only from convenience is admissible fact. We are of of the ultimate idence one, is a permissible where the inference independent are not opinion that these where the defendant has more convenient controlling and the first is tests but that proof, requiring and where access to corollary. Under our but a the second go proof him to will forward decisions, statutory cannot subject hardship.” him to con- unfairness if no rational there be be sustained 467-68, the fact and the 63 S.Ct. 1245. nection between U.S. inference presumed, ultimate fact Subsequent cases echo Tot and leave no other proof from the one presump- doubt that a state not erect a connection arbitrary of lack of because simply tion because evidence of a fact nec- experience. the two common between essary a criminal conviction is more available to a defendant than to the fact the defendant “Nor can States, prosecution. Leary v. information, means of has the better 32-34, 44-45, 89 S.Ct. alone, creation standing justify the Turner United (1969); every criminal presumption. such 408 n. equal has at least an case the defendant (1970); Barnes v. United L.Ed.2d 610 and in most a familiarity with the facts States, 837, 2357, 11, n. 93 412 U.S. 846 S.Ct. than familiarity with them the greater therefore, (1973).13 might, It be ar- 37 L.Ed.2d 380 prosecution. 136, 142-44, 279, Romano, repudiated Supreme 86 15 also 382 U.S. S.Ct. has the

13. The Court States, (1965); merely Turner v. United L.Ed.2d 210 because notion that 8, may supra, n. S.Ct. 642. make 396 U.S. at 407-08 90 an act it that act could criminalize Here, therefore, presumptive it does not matter whether of a criminal evidence offense. States, 472, supra, might presence made New York a car 319 U.S. at Tot v. United 63 States, 1241; Leary supra, a v. United with criminal. S.Ct. 395 1532; 34, 37, 89 United States U.S. at S.Ct. v. 1006 Tot, therefore, depend.” with

Beginning 36, 395 at U.S. 89 at S.Ct. emphasized that Court has of a constitutionality Applying standard, this the Court declared substantiality relation on the turns statutory a invalid presumption, 21 U.S.C. activating presump the fact between 176a, authorizing jury to infer from a fact) presumed (the proved and tion person’s possession marijuana Gainey, 380 U.S. United States fact. In knowledge defendant had of its unlawful 754, (1965), 63, 13 L.Ed.2d 658 85 S.Ct. importation into the United States.14 Romano, 136, 86 United States Leary’s reasoning judicial elucidates the 279, (1965), 210 Court S.Ct. inquiry that must be undertaken a- when much Tot applied without elaboration the presumption challenged test, as unconstitu required simply there be tional. The Court noted that “the congres “no rational connection between fact proved presumed,” ultimate fact sional determination favoring particular pres two federal statutes that “deemed” must, course, weigh heavi ence near still to be sufficient evidence of ly,” 36, 395 at U.S. at S.Ct. but it involving illegal distilling operations. crimes engaged lengthy independent discus requisite Gainey In Court found the sion documentary bearing evidence presence “rational connection” between marijuana sources of consumed in a still and the substantive of near broad country their impor relative —and “carrying fense of on the business of tance —and the likelihood that a possessor Romano, contrast, In distiller.” drug would be aware of origins, its Court noted that the crime of id. at impli The clear at was much narrower offense than that appellate cation was that courts Gainey, issue in concluded that simply accept on a legislative faith asser posses relation between near and proved tion that presumed facts are permit sion of a still was “too tenuous to related; rather, itself, satisfy it must guilt reasonable inference of infer —‘the facts developed judicial through notice if proof ence of the one from of the other is necessary, see Gonzalez, States, arbitrary’ . Tot v. United (2d F.2d 707 & 1971) n. 4 Cir. (en 63 S.Ct. 1241.” 382 U.S. banc), cert. denied sub nom. Ovalle v. Unit at S.Ct. at 282. States, ed U.S. 92 S.Ct. States, Leary supra, v. United (1971), L.Ed.2d 81 empir presumption’s clarify meaning Court undertook ical validity. connection standard. Af- the Tot rational Finally, in Turner v. United cases, reviewing ter the Court summa- teachings rized their as follows: Court analysis unveiled in Tot, Gainey, upshot “The and Roma- Leary to a variety statutory of similar pre- is, think, statutory that a criminal no we sumptions involving heroin and cocaine. regarded as presumption must be ‘irra- principle Leary The first was reiterated: ‘arbitrary,’ and hence unconsti- tional’ or A must be declared tutional, unconsti- it can be unless least said tutional “unless it can at least said with with substantial assurance likely than substantial assurance sumed fact is more flow it is from the fact on which made fact is more likely than not to flow from possibility 14. The also raised the that a issue failed to meet even the presumption satisfying stringent the “more less test. 395 U.S. at 36 n. might required satisfy not” also We test S.Ct. 1532. decline to reach this issue in proof reason; standard if criminal “reasonable doubt” this case for the same we hold that charged satisfy of the crime an essential element York’s does not use, depended upon presumption’s likely thereof than not” “more test. but declined to reach the issue because may fact,” only (e. 90 S.Ct. at a few in length g., 396 U.S. at inches a Derringer) Baretta or and concealed under 646.15 seat, glove compartment a in a beyond statutory pre New York Under the reach of but one of the car’s occu- in the case the at issue sumption pants, assures that presence its is known to fact) (the proved a in car gun a presence occupants may who be hitchhikers or other evidence” of its “presumptive constitutes casual passengers, they much less that have persons occupying the car by all possession any dominion or control over it.17 Although fact). Law 10.- N.Y.Penal (the presumed exceptions New York has created meaning term “Possess” 00(8) defines the three situations in which it possession or otherwise to physical “to especially pos- would be anomalous to infer over tangible or control dominion exercise gun session —where the is found this has and definition property,”16 person occupants, of one of the where the re involving firearms as cases restated weapon being is found in an automobile gun be “within imme quiring operated driver, for hire aby licensed accused, reach of control and diate the occupants where one of has a license to for unlawful use if he it is available where carry weapon re- —the Lemmons, People v. g.,E. desires.” so irrational mains in that class of cases in 505, 509-10, 387 N.Y.S.2d N.Y.2d which does apply. Turco, Lo (1976); People v. N.E.2d 836 affd., Indeed, strikingly this App.Div. N.Y.S.2d case is similar to (1939). Romano, supra, 21 N.E.2d 888 United in which 280 N.Y. the Court struck down a federal presump- by the standards established Applying deeming presence tion near a still sufficient Court, evidence to sustain a posses- conviction for unconstitutional on its be declared must sion, custody or control of that still. See with substantial unless it can said face 5601(a)(1), (b) (1970) (since U.S.C. § amend- possession an inference assurance that ed). Just as the Romano Court noted that gun a car’s defined) occu- (as thus presence a near still is not a wholly inno- not to flow from likely is more than pants circumstance, cent agree we would presence in the vehicle. We fail gun’s gun presence of a in a car cast may some any basis for such infer- find rational suspicion occupants. so, on all of its Even is ence, logic experience. There either in Romano said presence of nothing the simultaneous about tells only “Presence us that the defendant gun a an automobile occupants and likely played there and very part was a more makes the illicit scheme. . Presence they latter or that even control the former evidence in a tri- relevant admissible The ob- of its presence. know al possession charge; on a but absent (1) compass many within its viously sweeps showing some defendant’s function may they not know are rid- occupants who still, possession connection with (which may be out their ing gun permit too tenuous (2) many be aware of reasonable sight), who permitted guilt inference of inference of the gun but not —‘the Nothing gun, proof arbitrary. one the other about from access it. fact, Later, during jury 17. the trial of this in Barnes 837, 841-43, pursuant parallel charged presumptions n. occupants reviewed standards could infer that all four statutory presumptions governing and made had heroin and a machine car broadly applicable car, “common to so-called them see note found trunk permissible inferences supra, key law though even the trunk inferences” — specific judge charged trial without statu jury recovered from of them. The never tory authorization. acquitted all of the defendants these counts. charged jury with this this case was definition. 1008 v. tercepted

. . .'Tot an automobile and found a re 467, 141, 463, 63 124.” 382 U.S. at volver under the driver’s seat. court, The at 282. in the applying standards, relevant was compelled to release defendants for token, presence in case By the same this failure to sufficiently posses establish be relevant and admissible evidence would sion. (People ex rel. De Warden, Feo v. possession charge. in a on a trial firearm 836, 136 Misc. 241 63.) N.Y.S. The court showing, some additional its But absent remarked, however, that the case too to possession connection with tenuous other similar situations ‘establishes guilt. a inference of the permit reasonable urgent need for legislation making the Although cognizant of we are the sensi- a presence of forbidden firearm in an case, this that tive nature of our function in automobile or other vehicle presumptive reviewing of a validity of the constitutional possession evidence of its by all the occu statute, and of the deference ordinari- pants thereof. Such an amendment legislative ly judgments regarding due to require occupants the of an auto proven the connection between mobile explain presence to the facts, 1006, supra, we p. sumed see find firearm and enable the court fix justify efforts to this statute to be State’s criminal responsibility its possession.’ Although merit. the State without asserts (136 836, 63.) Misc. 1936, N.Y.S. In test, Leary that this meets the Legislature took heed of sugges this only background for this statute to tion and enacted section 1898-a of the which we have been referred indicates former Penal Law providing per that all passed prosecution it was to facilitate of in an sons automobile at the a weap time forcing occupants crime car alleged ison found in the presumed vehicle are regarding forward evidence to come be in illegal possession of weapon. any possession empirical and not because of (L.1936, 390.)” ch. 40 N.Y.2d at association between fact N.Y.S.2d 354 N.E.2d example, fact. For the New But notion that a may be opinion in case Appeals’ York Court of created remarked, simply because defendants superior access to relevant evidence issue, we “To resolve the first look in was abandoned Tot and has never been history underlying the statute. opinion revived. York Court’s rules, developed a Under traditional in possession does assert that of gun a age, criminal a possession motorless of occupancy containing car closely are weapon was not established unless linked; on contrary, opinion Terra, not People dispelled, be but rather on that reliance forced Appellant’s (1951), defendants to meet app. inferences 332, 576 that could 102 N.E.2d N.Y. 303 rationally not be 96 drawn from 72 the facts dismissed, S.Ct. proved. Supreme which the in (1952), 698 L.Ed. lack of a substantial dismissed Court that, For these reasons we hold because it which a some- case in question federal cannot be said with substantial assurance the presumption making similar what presumed that the (possession gun fact — gun pre- a machine a room of presence by occupants automobile) of an is more possession by of its evidence sumptive likely than not to proven flow from the fact upheld by room —had occupants car) (presence the New is mis- Appeals, York Court presumption making “pre- York the latter that the Su- from the fact Apart placed. sumptive evidence” of former is uncon- predated Terra disposition Court’s preme its face. stitutional on Turner, Romano, and Leary, Gainey, For several reasons we consider inad- Terra, distinguishable.19 clearly case decision, limit our visable to as did the who “persons court defined York the New court, holding to a district statuto- as encom- very narrowly, a room” occupy ry presumption issue is unconstitutional reside “who either only individuals passing applied to the facts of this case. At first operation and conduct it in the use in it or an approach appeal blush such has some 303 N.Y. venture.” other a business appear because it would to enable us to the class 578. With 335, 102 N.E.2d possible avoid exacerbation of federal-state could whom person arising out of relations our nullification of a circumscribed, court the Terra so apply by focusing statute attention narrow- people that such rationally conclude could facts, Note, ly specific on a set of The First know than not more be would Doctrine, Overbreadth Amendment 83 joint enjoy sole or and in a room what (1970), requir- Harv.L.Rev. contrast, By its contents. possession ing only that we determine whether occupying” “persons the term particular conduct before us is immune and pas- indiscriminately to casual extends car whether the statute could lawfully not long-term asso- with no others sengers and hypothetical applied to other circumstances. Thus, similarity be- it. with ciation empirical Where the connection between in Terra involved tween facts turns on the verbal than us is more before the one clearly of one or two or absence real. which were left identifiable circumstances assertion, contrary to State’s Finally, e. legislature, g., unmentioned that drug possessed no difference amount of a type it makes Tot, Gainey, defendant, States, Roma- v. United is rebuttable. see Turner us before 398, 415-18, rebut- no, all involved S.Ct. Leary, and Turner U.S. limit we have not hesitated to The evil of presumptions.

table applied” holding, up an “as has Court ourselves Supreme that sumptions validity of such a statute where holding the they could not been that down has struck very unlikely person joint validity any to allow a expressing opinion Without on Here, accompany gun— possession him. Leyva, following we note the distinctions First, wholly Ley- innocent —is not so incrimina- while and this one: between that case ting indicating would decline to allow those not report that one va court had before it a custody Finally, actually having it to ride with legislature may it. the New significant Judge Fuchsberg, Leary. required by who wrote See found the connection Leyva, majority opinion dissented from 38 N.Y.2d at 379 N.Y.S.2d Here, court’s decision in this case. the New York noth- we have been shown N.E.2d ing suggesting made Second, Leyva judgment. opinion express court on whether Terra such no 19. We anyone report’s adopted suggestion in view of these viable remains quantities drugs transporting large cases. met, see, g., dence, e. United joint inference of the condition Gonzalez, (2d Cir.) part occupants 442 F.2d 698 depends many variables, denied, banc) including sub nom. Ovalle v. (en cert. number of occu- car, pants of the the nature of the relation- ships them, between their (over (1971) kilogram ownership past of co automobile, use of the their familiarity empirical relationship caine). But when it, the size of the size, vehicle and the turns, presumed facts proved and between location and visibility of the gun. The variety on a as in the weight given to be to evidence of one or unpredict largely and on the circumstances many factors, more of moreover, relevant occur, they in which able combinations turn credibility on the extended to applied” approach “as resembles more a proof. might While we agree with the sufficiency of the evidence holding as district court in this statutory case that the likely than not” determina than the “more presumption is unconstitutional as applied by Leary.20 particu required tion Such petitioners, the three in view of the analysis applicability of the larized guns (one evidence that concealed and would involve us in the nature presumption partially exposed) one were in Doe’s hand- quality required up of the evidence bag resting on the floor between her and under state law—an hold a conviction issue door, the right front we would not want to normally we eschew on consideration hypothesize as to which pivotal was the petitions. g., Terry E. v. Hender of habeas circumstance —the location and ownership son, (2d 1972); Cir. F.2d bag, of the position of the bag, the Martin, United ex rel. Griffin States partial exposure of guns one of the or the (2d 1969); F.2d Cir. occupants. number of the The fruitlessness Dros, Mintzer v. ex rel. 403 F.2d 42 approach, of this which bears all the ear- denied, (2d 1967), cert. Cir. marks of a review of evidence for sufficien- (1968).21 20 L.Ed.2d 305 cy, readily apparent. In effect the validi- these considerations in mind we With be- ty of presumption upheld only would be inappropriate it would be for lieve that us in would, instances where the evidence in- whether a more nar- in effect to determine dependent statute, support an infer- presumption, New York limit- rowly drawn ence possession. For this reason there class of ed to a more restricted cases point would be no attempt to save the by legislature, the state delineated part by adding and, so, might upheld whether conditions which neither the New leg- fall present case would inside or outside of islature nor the New York Court of Appeals confined area. Absent direct more evi- have chosen supply. Tavoularis, termining In United States v. 515 F.2d 1070 supports whether that evidence (2d 1975), example, findings Cir. this court con- Louisiana, of a state court.” Garner v. permissibility sidered of an inference that treasury the defendants knew that bills had (1961). adopt If we were to the solution to posses- been stolen from a bank based on their suggested by Timbers, Judge this case how- sion of those bills. The court’s discussion of ever, every prisoner to whom this Leary precedents and the other relevant effectively had been challenge could positioned portion opinion dealing in that sufficiency by of the evidence in his case sufficiency with the of the evidence in the case. claiming that that evidence was insufficient F.2d at 1074-77. support against the use of the him. Rather than allow the wholesale conver- respect, Judge 21. With due Timbers" character- process ques- sion of state law issues into due istically thoughtful opinion tends to underesti- tions, we have chosen to follow the mate the nature of our reliance these deci- Tot, holdings Leary, Court’s Romano and broadly, they princi- sions. Viewed reflect the Gainey validity deciding of New York’s ple that federal courts “are bound a State’s its face. statute on These cases establish that interpretation of its own statute and will not adjudication mode is not limited to situ- judgment substitute federal [the court’s] which First ations in Amendment values are necessary that of the State’s when it becomes implicated. analyze purpose for the the evidence de- that New we hold York’s Accordingly unmentioned the legislature requisite empirical lacks the we have not hesitated to limit ourselves to proved presumed between connection applied’ an ‘as holding, upholding the validi- of cases to which the in the class facts ty of such a statute where the condition is ” result, applicable. As a made met. . . . But the majority then ad- trial when the were denied fair vances what strikes me as the novel propo- they rely on charged that could jury was sition that empirical “when the relationship finding possession. between facts turns the writs of habeas cor- . a variety The issuance of circumstances and court is affirmed. by the district pus on the . . . combinations in which occur, applied’ the ‘as approach resem- TIMBERS, Judge, concurring: Circuit holding bles more a sufficiency as to the judgment of the district agree I the evidence than the ‘more than not’ affirmed. But I would should court ” determination . . Since ma- N.Y.Penal Law ground that affirm jority correctly notes that we pass- eschew 265.15(3) (McKinney Supp.) ing on the sufficiency of evidence in habeas applied. That is the as unconstitutional corpus proceedings, I should thought holding. I would Judge Owen’s ground that we would avoid such an approach to as to whether the stat- the issue reach adjudication. constitutional on its face. ute is unconstitutional With deference I suggest majori- ground that that it is common take it I ty’s reliance on this Circuit’s refusal to con- scrutinize the con normally a court should sufficiency sider the of evidence in habeas applied in only a statute stitutionality of proceedings is misplaced. We have avoided Oklahoma, v. it. Broadrick the case before consideration of regarding claims the suffi- (1973); United States ciency of uphold evidence to a state court (1960); Raines, Ashwan v. conviction because are “essentially (1936) (Bran A, 297 v. TV der question^] of state law and [do] deis, J., concurring). It is the unusual not rise to federal constitutional dimen- case, very where the existence of a such as Terry Henderson, sions.” 462 F.2d activity protected by chill statute (2 1972); 1131 Cir. see also United States ex Amendment, principles that other First Martin, rel. Griffin v. 409 F.2d considerations of re the normal override (2 1969). Cir. This reluctance stems from a Note, The First Amendment See straint. desire to avoid intrusion into matters Doctrine, prop- 83 Harv.L.Rev. Overbreadth erly province of the state courts. Fur- from the normal (1970). (“[Djeparture thermore, it has the virtue of judging constitutionality prudently method avoiding unnecessary justification find in the fa constitutional show- must statutes rights expression very downs. In the instant these vored status con- scheme.”) in the constitutional stay pre- association siderations should our hand from an analysis concomitant cipitously striking The difficulties the New pre- down particular case should not of the facts sumption wholesale —the most extreme reach a unnecessarily holding us impel form of exacerbation of federal-state rela- constitutionality of a respect Note, tions. The First See Amendment on its face. statute Doctrine, supra, Overbreadth 83 Harv.L. Rev. at 849-52. “[wjhere majority acknowledges Finally, protected activity would be no between the empirical connection presump- impaired allowing here our turns on the facts so constitu- operate tion to where it do clearly presence or absence of one or two tionally.1 Any left future abuse which were identifiable circumstances would be situations Terra, pages People In its discussion ruling supra, majority valid. without acknowledge appears in some issue sumption may be remedied when and if it

occurs, willing in which event I would be Judge

do so on basis of Mansfield’s

thoughtful analysis constitutionality majority as set forth above in the

issue

opinion. INTERNATIONAL,

WESTERN UNION

INC., Communications, Inc., RCA Global Inc.,

and ITT World Communications

Petitioners,

FEDERAL COM- COMMUNICATIONS

MISSION, America, United States Telephone Telegraph

and American

Company, Respondents, Telephone Telegraph

American Com-

pany and TRT Telecommunications

Corporation, Intervenors.

Nos. 564 to Dockets

77-4184 and 77-4191. Appeals,

United States Court of

Second Circuit.

Argued Dec.

Decided Dec. notes weapon was ‘within the con- immediate precluded analysis “traditional accused, find- trol and reach and where ing any of occupants several is available for unlawful use if he so automobile sufficiently (People Persce, close desires’. N.Y. weapon possession as in 878.) to be actual 97 N.E. Difficulties it.” arose (emphasis added). short, Id. weapon when In nothing found secreted under seat, glove the Lemmons compartment decision or others upholding the trunk of an occupied automobile. demonstrates analysis precluded finding Traditional state courts or have ever at- occupants tempted justify of several auto- this firearm presumption was sufficiently weap- Leary mobile requires. close People See also v. Rus- so, on as to be in actual of it. For 278 App.Div. 603, affd., 103 N.Y.S.2d example, in- police one 1930 303 N.Y. 834 (1951).18 N.E.2d People Leyva, knowing possession by N.Y. N.Y.2d all the car’s occu- pants, 220.25; S.2d 341 N.E.2d 546 the New York Leyva N.Y.Penal L. § see also Appeals uphold parallel pre- Superintendent, did F.Supp. (E.D.N.Y. 1977), sumption, opinion made the a car and its was somewhat more sensitive presumptive a controlled Leary substance evidence than Lemmons to the nature test.

Case Details

Case Name: Samuel Allen, Raymond Hardrick and Melvin Lemmons v. County Court, Ulster County and New York Woodbourne Correctional Facility, Woodbourne, New York

Court Name: Court of Appeals for the Second Circuit

Date Published: Nov 29, 1977

Citation: 568 F.2d 998

Docket Number: 158, Docket 77-2059

Court Abbreviation: 2d Cir.