Decision of the Day (Kangaroo Co., Budweiser, J.)

Defendant appeals from a judgment of the Supreme Court of Kangaroo County (Budweiser, J.) convicting him after a jury trial of the felony of failure to report a suspicious package on the subway and keeping it to himself and sentencing him as a predatory sex offender to a lifetime of supervision by the MTA.

We find unavailing defendant’s argument that an object under the seat bearing the inscription “Kentucky Fried Chicken Finger Lickin’ [sic] Good” was not a suspcious package. Clearly the determination of what constitutes a suspicious package cannot be defined with mathmatical precision and is within the sound discretion of the omniscient trial court applying a flexible standard. It is difficult to see why the term “suspicious package” should be limited to packages explicitly labeled as such and we decline to so find.

Equally silly is defendant’s argument that the mere fact that the package contained only gnawed chicken bones and greasy napkins was sufficient to render it a non-suspicious package. The clear legislative intent was to criminalize the failure to report packages that appear suspicious, not packages that actually are suspicious, which would require looking inside them, creating the very danger to public safety that the statute is intended to protect against which.

We reject defendant’s stupid constitutional challenge to the statutory provision designating the failure to report a suspicious package on the subway as a sex offense. Defendant failed to show that he was not thinking about sex when he committed the instant offense. Given that the vast majority of sex offenses are committed by persons who have, at some point, thought about sex, we accordingly cannot say that the statute is irrational.

Finally, although the court’s instruction to the jury, “You better bring back a guilty verdict if you ever want to go home” might better have been left unsaid, we decline to find it prejudicial when viewed in the context of the entire charge which made it clear that lunch would be ordered even if a verdict was rendered well before lunchtime. In any event, the instruction at issue was arguably necessitated by defense counsel’s continual squawking about the People’s burden of proof.

This constitutes the decsion and order of the court.
I concur. I concur. I concur.

About Appellate Squawk

A satirical blog for criminal defense lawyers and their friends who won't give up without a squawk.
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