Theodore T. Jones, the defendant's champion: reviewing a sample of Judge Jones's criminal jurisprudence.

• Author: Winkler, Erika L.
• Position: New York

1. INTRODUCTION

   Theodore T. Jones is the most recently appointed Associate Judge of the New York State Court of Appeals. He was nominated for the post by Governor Elliot Spitzer and was unanimously confirmed by the New York State Senate Judiciary Committee and Senate in February 2007. (1) Jones replaced Judge Albert M. Rosenblatt on the Court upon Rosenblatt's retirement. (2)

   Jones was born in Brooklyn, New York to a school teacher and a railroad station master. (3) Armed with political science and history degrees from Hampton University, Judge Jones served in the United States Army in active duty in Vietnam before attending St. John's University School of Law, where he received his degree in 1972. (4) This accomplishment marked the beginning of a storied legal career. (5)

   Before joining New York's highest court, Jones served as a law secretary in the New York State Court of Claims. (6) More significantly, however, Jones served as justice of the state's supreme court for seventeen years--from 1990 until his Court of Appeals nomination. (7) Jones served as a state supreme court justice in the juvenile offender part and the court's civil term, before ultimately becoming the civil term's administrative judge. (8) Prior to entering public judicial service, Jones worked both in private practice and at the Legal Aid Society, where he focused on criminal defense work. (9)

   In his tenure of over three years on the Court, Judge Jones has authored numerous majority and dissenting opinions. As of this writing, (10) Jones has authored approximately forty majority opinions. Approximately ten of those majority opinions have been in criminal cases (11) and thirty have been in civil cases. Additionally, Judge Jones has authored thirteen dissenting opinions--nine in criminal cases (12) and four in civil cases.

   While some of the majority and dissenting opinions penned by Jones in both criminal and civil cases have been unopposed by another member of the Court, many have not. This article will specifically analyze and discuss those cases. (13) Part II.A of this article outlines Judge Jones's majority opinions in criminal cases where dissenting opinions were written by another member of the Court. Similarly, Part II.B discusses recent Court of Appeals criminal cases where Judge Jones dissented. Part III analyzes the points of difference between those majority and dissenting views and, in so doing, attempts to identify trends and conclusions regarding Judge Jones's criminal jurisprudence. Part IV provides a few closing thoughts.

2. JUDGE JONES'S MAJORITY AND DISSENTING CRIMINAL OPINIONS

   1. Majority Opinions in Which Another Member of the Court Dissented

      Thus far, during his time on the Court of Appeals, Judge Jones has written several majority opinions in criminal cases, and only three of them were not supported by a unanimous Court. (14) In People v. Bailey, Judge Pigott dissented from Jones's majority opinion on evidentiary issues, and in People v. Bauman, Judge Smith dissented from Jones's majority opinion on an issue relating to the sufficiency of pleadings.

      In People v. Bailey, the defendant was arrested by plain-clothed police officers who were looking out for pickpockets. (15) At the time of his arrest, the defendant was carrying counterfeit bills and allegedly told the officer that "[y]ou got me for the counterfeit money, but I didn't have my hand near [the woman's purse that the officers believed the defendant pick pocketed]." (16) Before trial, the defendant moved to suppress his statement, but that motion was denied. (17) Subsequently, the defendant was convicted of fourth degree attempted grand larceny and first degree possession of a forged instrument. (18) Upon his conviction, the defendant moved to set aside the forgery verdict, "arguing that the evidence was insufficient to prove that he had ... [the requisite] knowledge that [the instrument was] forged and with intent to defraud, deceive or injure another." (19)

      Judge Jones's majority opinion ultimately dismissed the forged instrument possession count because the evidence "was legally insufficient as to intent." (20) Jones's opinion began by outlining the legal sufficiency standard, stating that "[a] verdict is legally sufficient when, viewing the facts in a light most favorable to the People, there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt." (21)

      Judge Jones agreed that there was "no dispute that defendant's inculpatory statement proved that he knew the bills were counterfeit," but emphasized that "knowledge alone [was] not sufficient" for a possession of forged instrument conviction, and that "[k]nowledge and intent [were] two separate elements that must each be proven beyond a reasonable doubt." (22) Jones rejected the argument that the defendant's intent could be inferred from his "presence in a shopping district [at the time of his arrest,] his possession of counterfeit bills, and his larcenous intent" and emphasized that "the intent to commit a crime must be specific to the crime charged." (23) Jones's refusal to infer the defendant's intent was further supported by his argument that the legislature specifically provided for the "presumption or inference of intent by mere possession" in other criminal statutes, including those relating to credit and debit card forgery, welfare fraud, promotion of obscene articles, but did not do so in the statute on possession of a forged instrument. (24) Each of those other statutes, as pointed out by Judge Jones, specifically provided that the defendant is "presumed to possess the [item] with knowledge that they are forged and with the intent to defraud, deceive or injure another." (25) The legislature's failure to include such language in the forged instrument statute indicated to Jones that no such inference or presumption was appropriate in the case at hand. (26)

      Jones's refusal to infer the defendant's intent to possess a forged instrument was directly at odds with Pigott's dissenting position that "the specific intent required for possession of a forged instrument ... [could have been] inferred from defendant's actions and the surrounding circumstances" in this case and that "a general intent to defraud suffice[d]." (27) The fact that the defendant was "in a busy shopping district[,] ... was carrying counterfeit bills in his pants pocket ... and was engaging in larcenous behavior" was the "relevant evidence," along with the defendant's statement, to prove that the defendant had the requisite intent. (28) Therefore, the dissent concluded that "the evidence was legally sufficient to permit the [possession] charge to be submitted to the jury." (29)

      The defendants in People v. Bauman, in addition to being charged with intentional assault, were charged with depraved indifference assault for allegedly hitting the victim with an object, burning the victim, and providing poor nutrition, living conditions, and medical treatment for the victim. (30) The issue presented to the Court was "whether an indictment charging depraved indifference assault ... which allege[d eleven] acts over an eight-month period under one count violate[d New York's criminal procedure laws]." (31) A defendant is guilty of first degree depraved indifference assault when, "[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to another person." (32) In addition, "[e]ach count of an indictment may charge one offense only." (33)

      Judge Jones's majority opinion began by emphasizing that Court of Appeals's case law has interpreted this statute to require that "acts which separately and individually make out distinct crimes must be charged in separate and distinct counts" and that statutory compliance is imperative because failure to comply may neither provide the requisite notice to the defendant, protect adequately against double jeopardy risks, nor "ensure[] the reliability of the unanimous verdict." (34)

      Judge Jones ultimately affirmed the lower court's dismissal of the indictment and found that the depraved indifference assault count was substantially similar to the assault count, "ma[king] it virtually impossible to determine the particular act of [assault] ... as to which [a] jury [could] reach[] a unanimous verdict." (35) Jones rejected the dissent's argument that the specific language in the indictment resolved all concerns about the unanimity of the jury verdict. That language charged that the defendants allegedly did certain acts "and/or" other acts because the "jury could ... easily find that defendants committed only one of the alleged acts," each individually which would "not be sufficient to establish a course of conduct" for depraved indifference assault, and it would be unknown which act caused the defendants conviction. (36)

      Judge Pigott's dissent, joined by Judge Smith, argued that the indictment did not pose a problem as to the reliability of the verdict "because it is defendants' course of conduct ... upon which the jury must unanimously agree before defendants may be convicted of depraved indifference assault." (37) Therefore, "some or all of th[e] acts" in the indictment count at issue "could lead a jury to conclude that defendants' conduct created a grave risk of death, resulting in serious physical injury to the victim," as required under the Penal Law for a conviction. (38)

   2. Criminal Dissents

      Judge Jones has penned nine dissents in criminal cases. These dissents have addressed a myriad of different issues including, among others, the sufficiency of evidence, statutory interpretation, plea sufficiency, judge trial waivers, Brady violations, constitutional confrontation rights, and improper evidence.

      1. People v. Ford

         In People v. Ford, a majority of the Court...