
    The People of the State of New York, Appellant, v Elery Thomas, Also Known as Thomas Elery, Respondent.
    Argued March 20, 1980;
    decided June 5, 1980
    
      POINTS OF COUNSEL
    
      Mario Merola, District Attorney (Kenneth R. Larywon and Timothy J. McGinn of counsel), for appellant.
    I. Proof of appellant’s guilt of intentional murder was overwhelming. II. Defendant was not deprived of a fair trial by the trial court’s charge on intent. (People v Patterson, 39 NY2d 288, affd sub nom. Patterson v New York, 432 US 197; People v McLucas, 15 NY2d 167; People v Thomas, 71 AD2d 280; Cupp v Naughten, 414 US 141; Agnew v United States, 165 US 36; People v Reyes, 71 AD2d 1034; United States v Chiantese, 560 F2d 1244; People v Cavallerio, 71 AD2d 338; People v Fournier, 70 AD2d 491.)
    
      Erica Horwitz and William E. Hellerstein for respondent.
    The court below correctly held that appellant was deprived of due process when the court, instructing the jury on the critical issue of intent, charged that the law presumed that a person intended the natural and probable consequences of his act (US Const, 14th Amdt; NY Const, art I, § 6). (Sandstrom v Montana, 442 US 510; Matter of Winship, 397 US 358; Morissette v United States, 342 US 246; Mullaney v Wilbur, 421 US 684; Agnew v United States, 165 US 36; Chapman v California, 386 US 18; People v Ciaccio, 47 NY2d 431; People v Gruden, 42 NY2d 214; Bollenbach v United States, 326 US 607; People v Henderson, 41 NY2d 233.)
   OPINION OF THE COURT

Wachtler, J.

The defendant was convicted of murder for stabbing and killing a woman and her two children in their Bronx apartment. The Appellate Division reversed and ordered a new trial on the ground that the court’s charge on intent violated the Supreme Court’s recent decision in Sandstrom v Montana (442 US 510). The Appellate Division also held that the error was not harmless and was reviewable as a question of law although the defendant had not preserved the point by objecting to this portion of the charge at trial. The People have appealed.

On the afternoon of March 21, 1977 the defendant and a coworker, Dale Turner, went to the defendant’s apartment for lunch. Soon after their arrival, the defendant said he was going upstairs "to check on” Deborah Williams, who also resided in the building with her two daughters, aged three and five. When the defendant returned he was crying and he told Turner that "Deborah is dead”. Turner called the police. When the police arrived they found Deborah Williams dead in her apartment with a broken knife in her back. They also found, that her two daughters had been stabbed but were still alive. The children, however, later died at the hospital. The autopsy confirmed that each of the victims had died as the result of numerous stab wounds to the body and head — 25 wounds in the case of one of the children. In each instance the victims’ skull had also been fractured.

The defendant initially told the police that he and Deborah Williams were "just friends”. Other witnesses, however, later informed the police that the defendant was her lover, had proposed marriage and had keys to her apartment. The investigation also indicated that the defendant was a jealous lover who suspected that she was seeing other men and had said that he would kill her for doing so.

Approximately a week after the killing the police questioned the defendant again. This time, after being advised of his rights, the defendant confessed to the crimes and gave the police and prosecutor three statements. He admitted that he had gone to the Williams’ apartment at 1:00 a.m. on March 21 to talk to Deborah about her seeing another man. An argument followed, the defendant hit her and, when she turned her back, he stabbed her with a knife and broke the handle. He also punched and kicked her as she fell to the floor. When the children began to cry the defendant went into the next room and stabbed them with a pair of scissors. Returning to the living room he found their mother still alive. She asked why one of the girls was crying and he said that she wanted to come into the room. He then left and stabbed the girl several more times. He said that he remained in the apartment until approximately 4:00 a.m. Before leaving he went around and stabbed the victims again.

At the trial the defendant took the stand, denied his guilt and claimed that the police had tricked and coerced him into making the three confessions. He admitted being in the Williams’ apartment earlier that night but testified that he had left before the killings took place.

The court instructed the jury that the defendant was charged with three counts of murder in the second degree, which requires proof of intent to kill (Penal Law, § 125.25, subd 1). At the defendant’s request the court also submitted the lesser included offense of manslaughter in the first degree, which requires proof of intent to inflict serious bodily injury (Penal Law, § 125.20, subd 1). The court informed the jury, in general terms, that the People had the burden of proving the defendant’s guilt beyond a reasonable doubt and that the burden never shifts to the defendant. With respect to the element of intent the court emphasized that this was a matter for the jury to decide, and that in resolving the issue they must consider "the facts and all the surrounding circumstances.” The court, however, also stated that "the law says that a person is presumed to intend the natural and probable consequences of his act” and "is presumed to intend that which he actually does.”

The defendant concededly did not object to this portion of the charge at trial. Nevertheless he claimed on appeal that the trial court’s reference to the "presumption” constituted reversible error. The Appellate Division agreed, relying on Sandstrom v Montana (442 US 510, supra) in which the Supreme Court held that charging on the "presumption” without qualification violates due process because the jury may reasonably conclude that the presumption is conclusive or that the burden of proof has shifted to the defendant on the element of intent (see, also, People v Getch, 50 NY2d 456, decided herewith). Here the Appellate Division (at p 283) held that the court’s charge effectively "absolved the People of the duty to prove an essential element of murder in the second degree, viz., intent to kill.” The Appellate Division also rejected the People’s contentions that the error was harmless and that it was not reviewable because the defendant had not preserved the point by objecting to the charge at trial. With respect to the preservation issue the Appellate Division (at p 285) stated: "[T]he Court of Appeals has noted 'no exception is necessary to preserve for appellate review a deprivation of a fundamental constitutional right’. (People v McLucas, 15 NY2d 170, 172; see, also, People v Patterson, 39 NY2d 288, affd 432 US 197.)” Accordingly, the Appellate Division reversed on the law.

As a general rule points which were not raised at trial may not be considered for the first time on appeal (CPL 470.05, subd 2; People v Robinson, 36 NY2d 224; People v Gurley, 42 NY2d 1086; People v Kibbe, 35 NY2d 407, 413-414, affd sub nom. Henderson v Kibbe, 431 US 145). There is, however, one very narrow exception as we noted in People v Patterson (supra). In that case we said that no objection is necessary to preserve a point of law for appellate review when the procedure followed at trial was at basic variance with the mandate of law prescribed by Constitution or statute (People v Patter son, supra, at pp 295-296; see, also, People v Michael, 48 NY2d 1). It is to be noted that in Patterson the defendant challenged the constitutionality of section 125.25 (subd 1, par [a]) of the Penal Law which places upon the defendant the burden of proving extreme emotional disturbance as an affirmative defense to murder. We held that this argument could be raised for the first time on appeal. It was noted (at p 296) that if “the burden of proof was improperly placed upon the defendant, defendant was deprived of a properly conducted trial.” We also recognized that the defendant’s failure to object was excusable because the statutory practice had previously been deemed valid and had only been called into question by an intervening Supreme Court decision.

In Patterson then the trial court had expressly and unequivocally instructed the jury, as the statute directed, that the burden of proof was on the defendant to prove the affirmative defense. In the case now before us, on the other hand, there is no contention that the court expressly shifted the burden of proof to the defendant or explicitly relieved the People of their burden of proving every element of the crimes charged. Rather it is urged that a portion of the court’s charge is capable of being so interpreted and having this effect although, as indicated, the court specifically instructed the jury that the burden was on the People throughout. A claim that the court erred by expressly shifting the burden of proof to the defendant or relieving the People of their obligation to prove the defendant’s guilt beyond a reasonable doubt presents a more basic defect, and is potentially more prejudicial, than a contention that a portion of the charge may be interpreted as having this effect. Thus when a court’s specific instructions on the burden of proof properly place the burden on the People, a claim that a portion of the charge could, in the particular case, be interpreted as having a contrary effect, does not come within the narrow exception to the rule that objections to the charge must be made at trial where the potential error can be corrected or avoided (People v Robinson, 36 NY2d 224, supra).

We recognize that at trial the defendant did not have the benefit of the Sandstrom decision which was announced after the trial was concluded. But Sandstrom did not alter the law of this State. For more than a century, the charge condemned in Sandstrom has been held by this court, to be erroneous as a matter of State law (Stokes v People, 53 NY 164, 179; People v Baker, 96 NY 340, 350; People v Downs, 123 NY 558, 564-568; People v Flack, 125 NY 324, 335; People v Weiss, 290 NY 160, 171). Thus the defendant’s failure to object cannot be excused on the ground that he was confronted at trial with a practice held or deemed to be valid which was only called into question by a Supreme Court decision announced while the case was on appeal.

We also recognize that charging the "presumption” without qualification, as the defendant contends was done here, must now be viewed as a violation of the Constitution as well as State law. But the rule requiring a defendant to preserve his points for appellate review applies generally to claims of error involving Federal constitutional rights (see People v Tutt, 38 NY2d 1011). The Supreme Court has recently indicated that when the defendant claims, for the first time on appeal, that the court’s charge erroneously shifted the burden of proof, the State courts are free to enforce "the normal and valid rule that failure to object to a jury instruction is a waiver of any claim of error” (Hankerson v North Carolina, 432 US 233, 244, n 8).

The Appellate Division may, as a matter of discretion, consider claims of error which were not properly preserved for review (CPL 470.15, subd 6, par [a]). In this case though the Appellate Division reversed on the law after concluding, erroneously, that the alleged error in the charge presented a reviewable question of law despite the lack of objection. Since the Appellate Division erred in reversing on the law, its order must be reversed (People v Cona, 49 NY 26, 33-34).

Accordingly, the order of the Appellate Division should be reversed and the case remitted to that court for review of the facts.

Fuchsberg, J.

(concurring in result). I too vote to reverse, but, doing so, would hold that (1) that the Appellate Division was correct in holding that the unobjected to error in the charge on the burden of proof on intent presented a reviewable question of law and (2), that, in the context of this case, the error was harmless.

I

Turning first to the reviewability issue, I respectfully suggest that it is unfortunate in the extreme that the court takes this occasion to cut back on the hard won exemptions by which we have softened the rigors of the preservation doctrine when applied to certain fundamental constitutional rights (see, e.g., People v Michael, 48 NY2d 1 [double jeopardy]; People v Ermo, 47 NY2d 863 [right to counsel]; People v Patterson, 39 NY2d 288, affd 432 US 197 [burden of proof]; People v McLucas, 15 NY2d 167 [comment on defendant’s failure to take stand]).

The majority opinion, recognizing that, in Patterson, the absence of a timely objection did not deter us from reviewing the contention that there had been an unconstitutional shift of the burden of proof, now seeks to distinguish that case from the present one by resort to the rationale that Patterson’s "failure to object was excusable because the statutory practice had previously been deemed valid and only been called into question by an intervening Supreme Court decision” (at p 472), while Sandstrom v Montana (442 US 510), the decision substantively governing the present case, did not enunciate any new rule of law. To support this thesis, it goes on to cite several opinions of this court disapproving a "natural and probable consequences” charge (e.g., Stokes v People, 53 NY 164, 179).

But our decisional law on that score is hardly so one-sided. However we may differ with it in the opinions we hand down today, the simple fact is that, as this court took the pains to point out in People v Lieberman (3 NY2d 649, 652-653), it is "well established, both here and in sister States, that a person is presumed to intend the natural consequences of his act (Darry v. People, 10 N. Y. 120; Ruloff v. People, 45 N. Y. 213; Foster v. People, 50 N. Y. 598; Lyons v. State, 30 Tex. Cr. Rep. 642; Reeves v. Territory, 10 Okla. 194; Brennan v. People, 15 Ill. 511; Stephens v. State, 42 Ohio State 150; Mitchell v. Commonwealth, 74 Va. 845; 1 Warren on Homicide, p. 233; Wharton on Homicide [3d ed.], § 418; 22 C. J. S., Criminal Law, § 87, p. 155).” An unmistakably apt illustration is Thomas v People (67 NY 218, 225), where in approving a charge that the manner in which a deadly weapon was used furnished "presumptive evidence of an intent * * * to take life”, the court observed, "This portion of the charge was simply upon the fact of killing and the intention to kill. The fact that the prisoner plunged this pointed knife into what he knew to be a vital part of the body must raise a presumption that he intended to take life. Its natural result would be to destroy life, and he must be presumed to have intended the natural consequences of his act just as if he had aimed at the heart of the deceased and fired a gun”. Moreover, such manner of charge was so well accepted that it has never previously been challenged on constitutional grounds in this State (see People v Gray, 71 AD2d 295, 297).

Against this backdrop, I suggest that it is disingenuous to fault counsel for not anticipating the Sandstrom declarations. In short, there is no less reason to review in this case than there was in Patterson.

II

Now, as to my view that the errors in the charge on intent, concededly one not likely to be chosen as the model for a pattern jury instruction, could not have affected the outcome of the trial and therefor was harmless as a matter of law.

I start with the caveat, not stated here for the first time, that one should not always assume that "from the remote fastness of an appellate court, the pulsebeat of the courtroom can be perceived with sufficient reliability to predict whether, when there has been such error, the result would have been affected. Put another way, an appellate court is too different from a lay jury to permit one to substitute for the other” (People v Crimmins, 38 NY2d 407, 425 [dissenting opn]). That said, it is still true that, since Judges, however they try for perfection, are not immune from trial errors, and since not every error renders a trial unfair, the law’s responsibility may be deemed acquitted when the trial it has provided, though imperfect, is fair (People v Glass, 43 NY2d 283, 286). Moreover, because errors of all degrees may occur at any stage of a trial, their harmfulness cannot be made to depend on such an unswerving absolute as their locus in the constellation of trial events. An error in a charge, taken, as here, in the factual and legal trial context in which it occurs, may or may not be inconsequential; so too, a departure from the rules of evidence may or may not be devastating. In the end, each charge must stand on its own circumstances. (See, generally, Principles for Application of the Harmless Error Standard, 41 U of Chicago L Rev 616.)

Withal, while certain errors, such as denial of the right to counsel, can never be deemed harmless (People v Felder, 47 NY2d 287, 295), others, including ones of Federal constitutional magnitude, are subject to harmless error analysis (People v Almestica, 42 NY2d 222, 226; People v Crimmins, 36 NY2d 230). Specifically, in a string of cases, both this court (e.g., People v Sangamino, 258 NY 85, 88-89; People v Wagner, 248 NY 553; People v Dunbar Contr. Co., 215 NY 416, 424-425 [Cardozo, J.] [also involving an alleged error in charging as to a presumption]; see, also, People v Buchalter, 289 NY 181, 224-230 [Lehman, Ch. J., concurring]) and the United States Supreme Court (Hamling v United States, 418 US 87, 107; cf. Harrington v California, 395 US 250) have held that erroneous jury charges fall within this category.

For, in weighing such an error, we must "form a picture of the whole trial [and] * * * endeavor to see that picture as the jurors saw it” (People v Buchalter, 289 NY 181, 224, supra). Put another way, while there is "no yardstick to measure error and differentiate between the technical and the substantial, an underlying and controlling principle is at hand. If study of the case on appeal persuades the court that the minds of the jurors were clearly ■ directed to the true issue involved, that they were not misled or confused to defendant’s detriment, then the [harmless error] mandate * * * should be followed — even though the appellate judges may disagree with the verdict at which the jury arrived” (People v Mleczko, 298 NY 153, 162).

These are precisely the considerations that, however labeled, in my view are implicit in the companion cases of People v Marr and People v Getch (50 NY2d 456). In contrast to Patterson and Mullaney v Wilbur (421 US 684), where the trial courts expressly and unequivocally and uncompromisingly instructed the juries that the defendants bore the burden of proof on particular issues, our close analysis of what I regard as the comparatively more ambivalent Marr and Getch charges bespeaks a concern with the totality of the circumstances. In this respect, our decisions reflect Sandstrom’s description of similar instructions as creating a "risk” or "possibility” of prejudice, as opposed to a conclusion that such an undesirable result necessarily followed (442 US 510, 514-515, 519). My indorsement of a harmless error approach also finds support in such sources as State v Hock (54 NJ 526, cert den 399 US 930), a decision of the Supreme Court of New Jersey that closely parallels the instant case. It was there held that a charge that the presence of a revolver in an automobile was "presumptive evidence” of possession by an occupant, though unconstitutionally shifting the burden of proof of that element, was not "such grievously prejudicial error” as to compel reversal. The Hock court’s examination of all the circumstances, including the strength of the State’s proof and the effect of the defendant’s own testimony, corroborates the propriety of a harmless error analysis here. (See, also, Hamling v United States, 418 US 87, 108 [erroneous instruction that jury could consider national community standard in obscenity case]; United States v Mikelberg, 517 F2d 246, 253-254, cert den 424 US 909 [element of crime erroneously deemed established as a matter of law rather than submitted to jury as one of fact].)

These principles in mind, any fair resumé of the facts makes clear that, for all practical purposes, the existence of intent here was undisputed and indisputable. When one gets right down to it, all the contest was about was the veracity of defendant’s alibi claim and the voluntariness of his confessions. The objective and undeniable physical facts demonstrate beyond question that, if a directed verdict were ever permissible in a criminal prosecution, it would have been justified in this case on the element of intent.

The People’s proof revealed that shortly before the crimes were uncovered Thomas told an acquaintance, Dale Turner, that he was going to "check on” Deborah Williams, who resided in the same tenement house as did Thomas. When defendant later returned to state that he had found Deborah dead, Turner called the police, who discovered Deborah in her blood-splattered apartment, a knife imbedded in her back. There was no sign of forced entry. In an adjoining room, still alive, were her mortally wounded daughters, three-year-old Karen and five-year-old Michele.

The uncontradicted medical testimony was that Karen alone had suffered 25 stab wounds plus multiple skull fractures. Michele had been stabbed nine times and her skull broken in five places. All these stab wounds were apparently caused by a pair of scissors. The mother sustained two skull fractures and 11 stab wounds. The knife with which the latter were inflicted had been driven through her back with sufficient force for it to protrude through her chest. In all, the stab wounds alone numbered 45.

Thomas at first told the police that he and Deborah were "just friends”. During the course of the investigation, however, a different picture developed. Conversations with others revealed that defendant was in love with Deborah, had proposed to her, possessed her photograph and a set of keys to her apartment, and had, at least on occasion, shared her bed. Moreover, he had appeared extremely jealous and, three weeks before her death, had threatened to kill her when he learned she had entertained an old friend. Confronted with these revelations, the defendant, who the record shows was given Miranda warnings, made three confessions in which he admitted that, on the night of her death, he had visited Deborah’s apartment, where, in the course of a quarrel over her relationship with another man, he first struck her manually and then stabbed her in the back and, when she attempted to rise, repeatedly punched and kicked her. In the statements he further recounted how, upon hearing the children crying in their bedroom, he decided to silence them and, finding himself unable to extricate the knife because its handle had broken off while it was being plunged into their mother’s back, he used scissors to despatch them. Explicit too was his blow-by-blow detailing of how he repeatedly turned from victim to victim to use the scissors, his feet and his fists until the carnage was complete.

The defense at trial consisted, in the main, of an alibi and a claim that the confessions were the product of threats of physical harm by the police. The alibi, unsupported by any testimony but that of defendant, was premised on protestations of his fondness for Deborah and her children, on denials that he had ever objected to her sharing her affections with others and on his insistence that, though he had visited her on the fateful evening, he was elsewhere at the hour the People claimed the attacks had taken place. The confessions, of course, were material on motive and the identity of the killer. However, no more than the self-standing, unimpeached and unrebutted physical aftermath of the crimes — caused by the administration of not merely one or two or three, or even 10, but literally dozens of blows and stabbings — was needed to establish beyond debate that, whoever the perpetrator, he could not have lacked the intent to kill.

In this factual framework, the defect in the charge to Elery Thomas’ jury must be found harmless. All the more is this so since the prejudice that might be thought to emanate from its erroneous presumption language is effectively diluted, if not minimized, by the trial court’s further instructions: "Intent is a mental operation that can be proved usually only by facts and circumstances surrounding the acts and events leading up to and following them. * * * The intent mentioned in the law is determined from the facts and all the surrounding circumstances. * * * The whole question of the intent of a witness, its effect on the testimony is for you, the jury, to decide. * * * It is incumbent upon the People before they demand a finding of guilt that they tear away [defendant’s] cloak of innocence by proof of [his] guilt beyond a reasonable doubt. This is a burden which remains upon the People throughout the trial and it never shifts to the defendant. * * * The first element that you must find beyond a reasonable doubt is that the defendant formed the intent to cause the death and, in that, you have a right to consider * * * the nature and the alleged means used, to wit: a knife * * * and also a scissors * * * and all of the other surrounding circumstances, number of wounds, et cetera.” The result was that the likelihood that defendant would suffer prejudice from the ill-chosen phrasing was small indeed. Quite plainly, the issue at trial was the identity of the perpetrator, in comparison to which the question of intent receded far into the background. And, in the context of the quantity of the acts by which the crimes were committed and the quality of the People’s proof, it is almost inconceivable that the residual error confused the jury.

In sum, considered on their merits, the facts which here spelled out an unmistakable intent to kill or, at the very least, a depraved indifference to human life (Penal Law, § 125.25, subds 1, 2) were too overwhelming to avoid the conclusion that the charge’s imperfection was harmless beyond a reasonable doubt (see Chapman v California, 386 US 18; People v Crimmins, 36 NY2d 230, 237-238, supra).

It is for these reasons that, though I concur in the reversal of the order of the Appellate Division, I cannot accept the majority’s rationale for doing so.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Meyer concur with Judge Wachtler; Judge Fuchsberg concurs in result in a separate opinion.

Order reversed and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein. 
      
       The cases cited in the concurring opinion do not, in fact, hold to the contrary. People v Lieberman (3 NY2d 649) did not involve a claim of error in the charge, but a contention that the evidence was legally insufficient to support a conviction. In such a case, of course, an appellate court should "presume” that the defendant intended the natural consequences of his acts because the court must view the evidence most favorably to the prosecution by drawing any inferences which a jury would be permitted to draw at trial (People v Benzinger, 36 NY2d 29, 32). In Thomas v People (67 NY 218, 225) the trial court’s reference to the defendant’s acts as "presumptive evidence” of intent, was held not to be reversible error since the court had "not charged that the evidence was conclusive” and had, indeed, informed the jury that it did not necessarily establish intent, "you might find the contrary”, it is simply "evidence from which such a conclusion might be drawn, according as the jury shall find from all the circumstances in the ease” (emphasis added). That decision obviously does not constitute an indorsement of a Sandstrom charge (see People v Getch, 50 NY2d 456, decided herewith). In fact none of the cases from this court cited in the concurring opinion hold that it is proper for the court to charge the jury, without qualification, that the law presumes that one intends the natural consequences of his acts, as the court had charged in Sandstrom. On the contrary, as noted above, when confronted with that precise issue we have repeatedly held for more than a century that it is not proper to give that instruction in this State. It has been recognized that this rule is well settled in New York (Richardson, Evidence [10th ed], § 90).
     
      
       In law, the term "presumption”, though sometimes carelessly employed as a synonym for "inference”, is a most consequential evidentiary concept. In the absence of sufficient rebuttal evidence, a true presumption requires the trier of fact to find that the "presumed fact” exists. It is, of course, to be distinguished from a so-called "conclusive” or "irrebuttable” presumption, which in reality is a substantive rule of law. (See, generally, People v Leyva, 38 NY2d 160, 168 et seq.; 9 Wigmore, Evidence [3d ed], §§ 2490-2492; Richardson, Evidence [10th ed — Prince]#-§§ 55-57.)
     