Most of the courts which have examined this issue have found a Sandstrom error to be not harmless when intent was an essential element. See Dietz v Solem, 640 F.2d 126 (CA 8, 1981); Burton v Bergman, 649 F.2d 428 (CA 6, 1981), vacated on other grounds 456 U.S. 953; 102 S Ct 2026; 72 L Ed 2d 478 (1982); State v Mincey, 130 Ariz. 389; 636 P.2d 637 (1981); People v Getch, 50 N.Y.2d 456; 429 N.Y.S.2d 579; 407 N.E.2d 425 (1980). Courts which have found the error to be harmless have done it on the basis that, despite the materiality of intent, it was never disputed, see, e.g., Holloway v McElroy, 632 F.2d 605 (CA 5, 1980), cert den 451 U.S. 1028; 101 S Ct 3019; 69 L Ed 2d 398 (1981); Drinkwater v Gagnon, 521 F. Supp. 1309 (ED Wis, 1981), or that there were indications that the jury did not follow the erroneous presumption, see Pigee v Israel, 503 F. Supp. 1170 (ED Wis, 1980), aff'd on other grounds 670 F.2d 690 (1982).
See also United States v. Robinson, 545 F.2d 301, 305-06 (2d Cir. 1976) ("the `natural and probable consequences' charge . . . is a burden-shifting charge which has the potential for misleading the jury with respect to the requirement that the government must prove every element of an offense beyond a reasonable doubt." 545 F.2d at 306); United States v. Bertolotti, 529 F.2d 149, 159 (2d Cir. 1975); People v. Getch, 50 N.Y.2d 456, 464 n. 2, 429 N.Y.S.2d 579, 583 n. 2, 407 N.E.2d 425, 429 n. 2 (1980). In People v. Getch, supra, 50 N.Y.2d at 464, 429 N.Y.S.2d at 583, 407 N.E.2d at 429, the New York Court of Appeals held, on federal constitutional grounds, that the Supreme Court's holding in Sandstrom was applicable to all cases still in the New York appellate process as of the date of that decision (June 5, 1980).
New York law does, and did at the time of both Rivera's and Arroyo's trials, authorize the trier of fact in a criminal trial to use a constitutionally proper permissive inference such as the Court has just described in order to find that the defendant acted with the requisite criminal intent. People v. Getch, 50 N.Y.2d 456, 465-66, 429 N.Y. So.2d 579, 583-84, 407 N.E.2d 425, 429 (1980). However, the trier of fact in a criminal trial is not, under New York law, and was not at the time of either Rivera's or Arroyo's trial, authorized to find the defendant's intent by using a constitutionally impermissible mandatory presumption such as the Court described above.
We note that the New York Court of Appeals agrees, since it recently held that, under a proper construction of Sandstrom, these instructions are not defective. See People v. Getch, 50 N.Y.2d 456, 465-66, 429 N.Y.S.2d 579, 407 N.E.2d 425 (1980). In short, while we do not suggest that the State judge's charge was a model to be followed in the future, we find no constitutional error in the instructions given in the present case before and during discussion of the murder charge.
Both Smalls and McGee contend that the trial court committed reversible error when it charged the jury that the "law says that a person is presumed to intend the natural consequences of his act", and later, further charged that "a person is presumed to intend that which he actually does". We agree that this charge was error ( Sandstrom v Montana, 442 U.S. 510; People v Getch, 50 N.Y.2d 456). We conclude, however, that a reversal of McGee's conviction is not mandated, because the error was harmless beyond a reasonable doubt as to him.
Consequently, if in fact the charge could have had such an effect on the jurors, the error would be prejudicial. See State v. Sandstrom, Mont., 603 P.2d 244, 245 (1979); People v. Getch, 50 N.Y.2d 456, 465, 407 N.E.2d 425, 429, 429 N.Y.S.2d 579, 583 (1980); State v. Savage, 94 Wn.2d 569, 577, 618 P.2d 82, 88 (1980). II
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 U.S. 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 N.Y.2d 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."
There is a presumptive inference that a person intends that which is the natural and probable consequences of his acts. People v. Getch, 50 N.Y.2d 456, 465 (1980); People v. Meacham, 84 A.D.3d 1713, 1714 (4th Dep't 2011). The requisite intent may be inferred from the circumstances, including the actions of the accused, and may be proven by direct or circumstantial evidence.
The New York State Court of Appeals held, on federal constitutional grounds, that Sandstrom was applicable to all cases still in the appellate process as of the date it was decided. People v. Getch, 50 N.Y.2d 456, 462, 464, 407 N.E.2d 425, 428, 429 N.Y.S.2d 579, 583 (1980). 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. 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.
Over defendant's objection, the court charged the jury that a "person is presumed to intend the natural and probable consequences of his act and, accordingly, if the consequences are natural and probable, he will not be heard to say that he did not intend them." We agree with defendant that the charge was erroneous (see Sandstrom v Montana, 442 U.S. 510, supra; People v Smalls, 55 N.Y.2d 407; People v Getch, 50 N.Y.2d 456; People v Thomas, 50 N.Y.2d 467). We find the error insufficient to require reversal of defendant's conviction, moreover, because intent was not a contested issue in this trial (see Connecticut v Johnson, 460 US ___, 103 S Ct 969; People v Smalls, supra, p 417; McGuinn v Crist, 657 F.2d 1107, cert den 445 U.S. 990; cf. People v Marr, 50 N.Y.2d 456; People v Egan, 72 A.D.2d 239). The principal issue was the identity of the perpetrator.