Decision of the Day

Defendant appeals from a judgment of the Supreme Court of Overpopulated County (Budweiser, J.) convicting him of the felony of failure to report a suspicious package on the subway and keeping it to himself, for which he has been designated a high risk sex offender and sentenced to a lifetime of supervision by the MTA.

We find unavailing defendant’s argument that the object under the subway seat bearing the inscription “Kentucky Fried Chicken Finger Lickin’ [sic] Good” was not a suspicious package. Clearly the determination of what constitutes a suspicious package cannot be defined with mathematical precision and is within the sound discretion of the trial court applying a flexible standard.  Defendant’s claim that a flexible standard is indistinguishable from Silly Putty is unpreserved and we decline to review it in the interest of justice.

We reject defendant’s utterly meritless contention 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.

We spit on defendant’s 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,  there is clearly a rational relationship.

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 repeatedly squawking about the People’s burden of proof.

This constitutes the Decision 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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