People v. Marrero

BELLACOSA, J.

The defense of mistake of law (Penal Law § 15.20 [2] [a], [d]) is not available to a Federal corrections officer arrested in a Manhattan social club for possession of a loaded .38 caliber automatic pistol who claimed he mistakenly believed he was entitled, pursuant to the interplay of CPL 2.10, 1.20 and Penal Law § 265.20, to carry a handgun without a permit as a peace officer.

In a prior phase of this criminal proceeding, defendant's motion to dismiss the indictment upon which he now stands convicted was granted . . . ; then it was reversed and the indictment reinstated by a divided Appellate Division . . .; next, defendant allowed an appeal from that order, certified to the Court of Appeals, to lapse and be dismissed. . . . Thus, review of that aspect of the case is precluded. . . .

On the trial of the case, the court rejected the defendant's argument that his personal misunderstanding of the statutory definition of a peace officer is enough to excuse him from criminal liability under New York's mistake of law statute (Penal Law § 15.20). The court refused to charge the jury on this issue and defendant was convicted of criminal possession of a weapon in the third degree. We affirm the Appellate Division order upholding the conviction.

Defendant was a Federal corrections officer in Danbury, Connecticut, and asserted that status at the time of his arrest in 1977. He claimed at trial that there were various interpretations of fellow officers and teachers, as well as the peace officer statute itself, upon which he relied for his mistaken belief that he could carry a weapon with legal impunity.

The starting point for our analysis is the New York mistake statute as an outgrowth of the dogmatic common-law maxim that ignorance of the law is no excuse. The central issue is whether defendant's personal misreading or misunderstanding of a statute may excuse criminal conduct in the circumstances of this case.

The common-law rule on mistake of law was clearly articulated in Gardner v People. . . . In Gardner, the defendants misread a statute and mistakenly believed that their conduct was legal. The court insisted, however, that the "mistake of law" did not relieve the defendants of criminal liability. The statute at issue, relating to the removal of election officers, required that prior to removal, written notice must be given to the officer sought to be removed. The statute provided one exception to the notice requirement: "removal shall only be made after notice in writing unless made while the inspector is actually on duty on a day of registration, revision of registration, or election, and for improper conduct". . . . The defendants construed the statute to mean that an election officer could be removed without notice for improper conduct at any time. The court ruled that removal without notice could only occur for improper conduct on a day of registration, revision of registration or election.

In ruling that the defendant's misinterpretation of the statute was no defense, the court said: "The defendants made a mistake of law. Such mistakes do not excuse the commission of prohibited acts. 'The rule on the subject appears to be, that in acts mala in se, the intent governs, but in those mala prohibita, the only inquiry is, has the law been violated?'. . . . The act prohibited must be intentionally done. A mistake as to the fact of doing the act will excuse the party, but if the act is intentionally done, the statute declares it a misdemeanor, irrespective of the motive or intent. . . . The evidence offered [showed] that the defendants were of [the] opinion that the statute did not require notice to be given before removal. This opinion, if entertained in good faith, mitigated the character of the act, but was not a defence. . . ." ( Gardner v People. . . .). This is to be contrasted with People v Weiss . . . where, in a kidnapping case, the trial court precluded testimony that the defendants acted with the honest belief that seizing and confining the child was done with "authority of law". We held it was error to exclude such testimony since a good-faith belief in the legality of the conduct would negate an express and necessary element of the crime of kidnapping, i.e., intent, without authority of law, to confine or imprison another. Subject to the mistake statute, the instant case, of course, falls within the Gardner rationale because the weapons possession statute violated by this defendant imposes liability irrespective of one's intent.

The desirability of the Gardner-type outcome, which was to encourage the societal benefit of individuals' knowledge of and respect for the law, is underscored by Justice Holmes' statement: "It is no doubt true that there are many cases in which the criminal could not have known that he was breaking the law, but to admit the excuse at all would be to encourage ignorance where the law-maker has determined to make men know and obey, and justice to the individual is rightly outweighed by the larger interests on the other side of the scales" (Holmes, The Common Law . . . [1881]).

The revisors of New York's Penal Law intended no fundamental departure from this common-law rule in Penal Law § 15.20, which provides in pertinent part:

"§ 15.20. Effect of ignorance or mistake upon liability.

"2. A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless such mistaken belief is founded upon an official statement of the law contained in (a) a statute or other enactment . . . (d) an interpretation of the statute or law relating to the offense, officially made or issued by a public servant, agency, or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law."

This section was added to the Penal Law as part of the wholesale revision of the Penal Law in 1965. . . . When this provision was first proposed, commentators viewed the new language as codifying "the established common law maxim on mistake of law, while at the same time recognizing a defense when the erroneous belief is founded upon an 'official statement of the law'". . . .

The defendant claims as a first prong of his defense that he is entitled to raise the defense of mistake of law under section 15.20 (2) (a) because his mistaken belief that his conduct was legal was founded upon an official statement of the law contained in the statute itself. Defendant argues that his mistaken interpretation of the statute was reasonable in view of the alleged ambiguous wording of the peace officer exemption statute, and that his "reasonable" interpretation of an "official statement" is enough to satisfy the requirements of subdivision (2) (a). . . .

The prosecution further counters defendant's argument by asserting that one cannot claim the protection of mistake of law under section 15.20 (2) (a) simply by misconstruing the meaning of a statute but must instead establish that the statute relied on actually permitted the conduct in question and was only later found to be erroneous. To buttress that argument, the People analogize New York's official statement defense to the approach taken by the Model Penal Code (MPC). Section 2.04 of the MPC provides:

"Section 2.04. Ignorance or Mistake.

"(3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when (b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment" (emphasis added).

Although the drafters of the New York statute did not adopt the precise language of the Model Penal Code provision with the emphasized clause, it is evident and has long been believed that the Legislature intended the New York statute to be similarly construed. In fact, the legislative history of section 15.20 is replete with references to the influence of the Model Penal Code provision. . . . The proposition that New York adopted the MPC general approach finds additional support in the comments to section 2.04. . . . It is not without significance that no one for over 20 years of this statute's existence has made a point of arguing or noting or holding that the difference in wording has the broad and dramatically sweeping interpretation which is now proposed. Such a turnabout would surely not have been accidentally produced or allowed. New York's drafters may even have concluded that the extra clause in the MPC was mere surplusage in view of the clear exceptionability of the mistake authorization in the first instance. Moreover, adding specified conditions by judicial construction, as the dissenters would have to do to make the mistake exception applicable in circumstances such as these, would be the sheerest form of judicial legislation.

It was early recognized that the "official statement" mistake of law defense was a statutory protection against prosecution based on reliance of a statute that did in fact authorize certain conduct. "It seems obvious that society must rely on some statement of the law, and that conduct which is in fact 'authorized' should not be subsequently condemned. The threat of punishment under these circumstances can have no deterrent effect unless the actor doubts the validity of the official pronouncement -- a questioning of authority that is itself undesirable". . . . While providing a narrow escape hatch, the idea was simultaneously to encourage the public to read and rely on official statements of the law, not to have individuals conveniently and personally question the validity and interpretation of the law and act on that basis. If later the statute was invalidated, one who mistakenly acted in reliance on the authorizing statute would be relieved of criminal liability. That makes sense and is fair. To go further does not make sense and would create a legal chaos based on individual selectivity. . . .

Strong public policy reasons underlie the legislative mandate and intent which we perceive in rejecting defendant's construction of New York's mistake of law defense statute. If defendant's argument were accepted, the exception would swallow the rule. Mistakes about the law would be encouraged, rather than respect for and adherence to law. There would be an infinite number of mistake of law defenses which could be devised from a good-faith, perhaps reasonable but mistaken, interpretation of criminal statutes, many of which are concededly complex. Even more troublesome are the opportunities for wrongminded individuals to contrive in bad faith solely to get an exculpatory notion before the jury. These are not in terrorem arguments disrespectful of appropriate adjudicative procedures; rather, they are the realistic and practical consequences were the dissenters' views to prevail. Our holding comports with a statutory scheme which was not designed to allow false and diversionary stratagems to be provided for many more cases than the statutes contemplated. This would not serve the ends of justice but rather would serve game playing and evasion from properly imposed criminal responsibility.

Accordingly, the order of the Appellate Division should be affirmed.

DISSENT: Hancock, Jr., J. (dissenting). The rule adopted by the majority prohibiting the defense of mistake of law under Penal Law § 15.20 (2) (a) in the circumstances here is directly contrary to the plain dictates of the statute and a rejection of the jurisprudential reforms and legislative policies underlying its enactment. For these reasons, as more fully explained herein, we cannot agree with this decision.

The basic difference which divides the court may be simply put. Suppose the case of a man who has committed an act which is criminal not because it is inherently wrong or immoral but solely because it violates a criminal statute. He has committed the act in complete good faith under the mistaken but entirely reasonable assumption that the act does not constitute an offense because it is permitted by the wording of the statute. Does the law require that this man be punished? The majority says that it does and holds that (1) Penal Law § 15.20 (2) (a) must be construed so that the man is precluded from offering a defense based on his mistake of law and (2) such construction is compelled by prevailing considerations of public policy and criminal jurisprudence. We take issue with the majority on both propositions.

There can be no question that under the view that the purpose of the criminal justice system is to punish blameworthiness or "choosing freely to do wrong", [Footnote 1] our supposed man who has acted innocently and without any intent to do wrong should not be punished. . . . Indeed, under some standards of morality he has done no wrong at all. . . Since he has not knowingly committed a wrong there can be no reason for society to exact retribution. Because the man is law-abiding and could not have acted but for his mistaken assumption as to the law, there is no need for punishment to deter him from further unlawful conduct. Traditionally, however, under the ancient rule of Anglo-American common law that ignorance or mistake of law is no excuse, our supposed man would be punished.

========== Footnote 1 ==========
"Historically, our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong" (Pound, Introduction to Sayre, Cases on Criminal Law [1927], quoted in Morissette v United States. . . .
========== End Footnote ==========

The maxim "ignorantia legis neminem excusat" finds its roots in Medieval law when the "actor's intent was irrelevant since the law punished the act itself" . . . and when, for example, the law recognized no difference between an intentional killing and one that was accidental. . . . Although the common law has gradually evolved from its origins in Anglo-Germanic tribal law (adding the element of intent [mens rea] and recognizing defenses based on the actor's mental state -- e.g., justification, insanity and intoxication) the dogmatic rule that ignorance or mistake of law is no excuse has remained unaltered. Various justifications have been offered for the rule, but all are frankly pragmatic and utilitarian -- preferring the interests of society . . . to the interest of the individual in being free from punishment except for intentionally engaging in conduct which he knows is criminal. . . .

Today there is widespread criticism of the common-law rule mandating categorical preclusion of the mistake of law defense. . . . The utilitarian arguments for retaining the rule have been drawn into serious question . . . but the fundamental objection is that it is simply wrong to punish someone who, in good-faith reliance on the wording of a statute, believed that what he was doing was lawful. It is contrary to "the notion that punishment should be conditioned on a showing of subjective moral blameworthiness" (White, op. cit., at 784). This basic objection to the maxim "ignorantia legis neminem excusat" may have had less force in ancient times when most crimes consisted of acts which by their very nature were recognized as evil (malum in se). . . . In modern times, however, with the profusion of legislation making otherwise lawful conduct criminal (malum prohibitum), the "common law fiction that every man is presumed to know the law has become indefensible in fact or logic". . . .

With this background we proceed to a discussion of our disagreement with the majority's construction of Penal Law § 15.20 (2) (a) and the policy and jurisprudential arguments made in support of that construction. . . .

It is difficult to imagine a case more squarely within the wording of Penal Law § 15.20 (2) (a) or one more fitted to what appears clearly to be the intended purpose of the statute than the one before us. For this reason it is helpful to discuss the statute and its apparent intended effect in the light of what defendant contends was his mistaken belief founded on an official statement of the law contained in a statute.

Defendant's mistaken belief that, as a Federal corrections officer, he could legally carry a loaded weapon without a license was based on the express exemption from criminal liability under Penal Law § 265.02 accorded in Penal Law § 265.20 (a) (1) (a) to "peace officers" as defined in the Criminal Procedure Law and on his reading of the statutory definition for "peace officer" in CPL 2.10 (25) as meaning a correction officer "of any penal correctional institution" (emphasis added), including an institution not operated by New York State. Thus, he concluded erroneously that, as a corrections officer in a Federal prison, he was a "peace officer" and, as such, exempt by the express terms of Penal Law § 265.20 (a) (1) (a). This mistaken belief, based in good faith on the statute defining "peace officer" ( CPL 2.10 [25]), is, defendant contends, the precise sort of "mistaken belief founded upon an official statement of the law contained in a statute or other enactment" which gives rise to a mistake of law defense under Penal Law § 15.20 (2) (a). He points out, of course, that when he acted in reliance on his belief he had no way of foreseeing that a court would eventually resolve the question of the statute's meaning against him and rule that his belief had been mistaken, as three of the five-member panel at the Appellate Division ultimately did in the first appeal. . . .

The majority, however, has accepted the People's argument that to have a defense under Penal Law § 15.20 (2) (a) "a defendant must show that the statute permitted his conduct, not merely that he believed it did" (respondent's brief, at 26 [emphasis added]). Here, of course, defendant cannot show that the statute permitted his conduct. To the contrary, the question has now been decided by the Appellate Division and it is settled that defendant was not exempt under Penal Law § 265.20 (a) (1) (a). Therefore, the argument goes, defendant can have no mistake of law defense. While conceding that reliance on a statutory provision which is later found to be invalid would constitute a mistake of law defense . . ., the People's flat position is that "one's mistaken reading of a statute, no matter how reasonable or well intentioned, is not a defense". . . .

Nothing in the statutory language suggests the interpretation urged by the People and adopted by the majority: that Penal Law § 15.20 (2) (a) is available to a defendant not when he has mistakenly read a statute but only when he has correctly read and relied on a statute which is later invalidated. . . . Such a construction contravenes the general rule that penal statutes should be construed against the State and in favor of the accused . . . and the Legislature's specific directive that the revised Penal Law should not be strictly construed but "must be construed according to the fair import of [its] terms to promote justice and effect the objects of the law" (Penal Law § 5.00). . . .

The majority construes the statute, however, so as to rule out any defense based on mistake of law. In so doing, it defeats the only possible purpose for the statute's enactment and resurrects the very rule which the Legislature rejected in enacting Penal Law § 15.20 (2) (a) as part of its modernization and reform of the Penal Law. It is fundamental that a construction of a statute which does not further the statute's object, spirit and purpose must be rejected. . . .

Although expressing its evident conviction that the statute should be treated as an "exceptional exculpatory concept . . . intended to be a very narrow escape valve" (majority opn, at 387), the majority cites no language in the statute or in the legislative history supporting its views or the construction of Penal Law § 15.20 (2) (a) which seems so contrary to the statute's plain language and evident purpose. Despite the assertion that such construction reflects "appropriate precedential awareness" . . ., the majority cites no precedential authority.

Instead, the majority bases its decision on an analogous provision in the Model Penal Code and concludes that despite its totally different wording and meaning Penal Law § 15.20 (2) (a) should be read as if it were Model Penal Code § 2.04 (3) (b) (i). But New York in revising the Penal Law did not adopt the Model Penal Code. As in New Jersey, which generally adopted the Model Penal Code but added one section which is substantially more liberal, [Footnote 10] New York followed parts of the Model Penal Code provisions and rejected others. In People v Goetz . . . we said that the Legislature's rejection of the verbatim provisions of the Model Penal Code was crucial in determining its intent in drafting the statute. The significance of the alterations here can be no different. . . .

========== Footnote 10 ==========
In addition to permitting defenses based on ignorance of the law and reasonable reliance on official statements afterward determined to be invalid or erroneous, the New Jersey statute provides a defense, under the following broad provision, when: "(3) The actor otherwise diligently pursues all means available to ascertain the meaning and application of the offense to his conduct and honestly and in good faith concludes his conduct is not an offense in circumstances in which a law-abiding and prudent person would also so conclude" (NJ Stat Ann § 2C:2-4 [c] [3]).
========== End Footnote ==========

Thus, the precise phrase in the Model Penal Code limiting the defense under section 2.04 (3) (b) (i) to reliance on a statute "afterward determined to be invalid or erroneous" which, if present, would support the majority's narrow construction of the New York statute, is omitted from Penal Law § 15.20 (2) (a). How the Legislature can be assumed to have enacted the very language which it has specifically rejected is not explained. . . .