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naraburns  nihil supernum  2yr ago (text post)   35776 thread views

Culture War Roundup for the week of April 3, 2023

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But there is no statutory support or judicial precedent for this.

Yes, there is. Article 30.10(4) of the NY criminal procedure code says:

In calculating the time limitation applicable to commencement of criminal action, the following periods shall not be included: (a) Any period following the commission of the offense during which (i) the defendant was continuously outside this state or (ii) the whereabouts of the defendant were continuously unknown and continuously unascertainable by the exercise of reasonable diligence.  However, in no event shall the period of limitation be extended by more than five years beyond the period otherwise applicable under subdivision two.

Moreover:

Of course, an individual can be absent from the state for weeks or months; return to New York for a time; and then leave for additional weeks or months. And such absences and returns may occur repeatedly over a period of years. The issue that naturally arises in limitations cases concerns which among intermittent periods of absence are those in which a defendant is considered to have been "continuously" outside the state.

The Court of Appeals addressed that issue in People v Knobel (94 NY2d 226 [1999]). The Court agreed with the People that "all periods of a day or more that a nonresident defendant is out-of-State should be totaled and toll the Statute of Limitations." (People v Knobel, 94 NY2d at 230; see also People v Chase, 299 AD2d 597, 598-599 [3d Dept 2002]; People v Ferrari, 155 Misc 2d 749, 754 [Ulster County Ct 1992].) That is true for every day that the defendant is absent for the "full" day. Thus, if defendant in this case was a nonresident and was absent from New York for more than 93 complete days between November 13, 2012, and February 14, 2018, the two challenged counts survive defendant's attack—even if at various other times in that period defendant was in New York.

People v. Cruciani, 63 Misc. 3d 226, 228 (2019).

Hmm. That is interesting and also sounds wildly unconstitutional as a matter of Equal Protection. However, even that case does not seem to be very good precedent given Trump's status as a putative resident of New York for the relevant period. Cruciani goes on to say:

Knobel establishes the tolling rule for nonresidents. This state's appellate courts have not yet had cause to define the tolling rule for residents. One might speculate. The general intent of the relevant limitations laws as to individuals who are outside the state is to account for absences that make it difficult to bring a New York criminal to justice. Those rules might well be different for residents who depart from New York for periods that do not, for practical purposes, prevent the authorities from locating them. For example, a state resident's departure for a brief vacation in South America might be thought irrelevant to the People's ability to arrest him. Even a student's sojourn to Notre Dame or Oxford for years, perhaps interrupted for occasional returns, might not be enough to make the student a "nonresident" and thus toll a limitations period. It may be that CPL 30.10 (4) (a) (i), dealing with continuous absences, will be thought to have no applicability to residents. The courts could conclude that absences from New York of residents of the state should instead be assessed solely under CPL 30.10 (4) (a) (ii). That provision tolls the running of a limitations statute only when "the whereabouts of the defendant were continuously unknown and continuously unascertainable by the exercise of reasonable diligence."

From Wikipedia:

The three-story penthouse at Trump Tower was Trump's primary residence from November 1983 until September 2019, when he designated Mar-a-Lago as his primary residence.

Trump's presidency is much more like a student's sojourn to Oxford for years, than it is like an alien committing a crime in a jurisdiction and then fleeing. I appreciate you bringing this case to my attention, but my reading is that it still falls short of the precedent the prosecutor needs here.

EDIT: See @zeke5123's responses to me below and above. I agree that the Weinstein case appears to be persuasive against Trump (though certainly not binding precedent!), so I appreciate having it pointed out. I think it is interesting that the Weinstein case appears to have also been substantially driven by politics rather than by the rule of law.

sounds wildly unconstitutional as a matter of Equal Protection

I don't understand why that would be an EP violation, under current jurisprudence. Moreover, many states have similar provisions, and have had them for decades, so any ostensible constitutional infirmity would almost have certainly have been litigated long ago.

Trump's presidency is much more like a student's sojourn to Oxford for years,

Maybe, but note that that is dictum. From a trial court. And described by that court as what one "might speculate." Perhaps other states' appellate courts have interpreted similar provisions in a manner that might shed light.

Note also that the law on its face does not distinguish between residents and nonresidents.

Edit: In People v. Weinstein, 207 AD 3d 33, 51-52 (NY: Appellate Div., 1st Dept. 2022) -- Note: Yes, that Weinstein -- the appellate court rejected that dictum, ruling, "While defendant does not dispute that he spent 264 days outside New York during the statutory period, he maintains that the toll does not apply to residents of New York and that it only applies to nonresidents. We disagree. The statute does not distinguish between residents and nonresidents, and had the legislature wanted to limit its reach to the latter it easily could have done so."

But, regardless, as you note, Trump left the state for sure no later than Sept of 2019. Hence, under the statute, the running of the statute of limitations was tolled as of that date, which was long before the 5-year statute ran.

Edit: The following cases have held that similar statutes do not violate either the EP Clause or Privileges and Immunities Clause or both

State v. Sher, 437 NW 2d 878 (Wis: Supreme Court 1989)

Commonwealth v. Lightman, 339 Pa. Super. 359, 489 A.2d 200 (1985)

Scherling v. Superior Court of Santa Clara County, 22 Cal. 3d 493 (1978).

State v. Cawley, 110 NM 705 (1990)

Commonwealth v. George, 430 Mass. 276 (1999)

People v. James, 326 Mich. App. 98 (2018)

State v. March, 395 SW 3d 738 (Tenn: Court of Criminal Appeals 2011)

From my above post, Harvey Weinstein was a NY resident and his whereabouts were well known yet he was found to be continuously outside of NY.

Seems to me this was beyond stupid in the Weinstein case (ie they knew where he was; it wasn’t that his travels outside of NY impacted the People in anyway). Same for Trump.

Yet the law seemingly is the law even if it strikes at the core of the purpose of the SOL.

It does seemingly treat similarly situated people differently based on where they live so would be interested in knowing the caselaw here. Indeed, Trump (or Weinstein) seem easier to find compared to some NY criminals who never leave the state. But because they left the state they are treated worse?

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