I wonder if Jen and I read the same article. It does give a number of cases the authors claim are similar enough:
In fact, the New York Court of Appeals, the state’s highest court, considered this issue in People v. Taveras—and found that only intent is required. In Taveras, the defendant challenged his sentence under § 175.10, along with a number of other offenses, including a charged object offense. While considering sentencing matters, the court held, “Read as a whole, it is clear that falsifying business records in the second degree is elevated to a first-degree offense on the basis of an enhanced intent requirement … not any additional actus reus element.”
In 2015, the First Department of the New York Supreme Court’s Appellate Division—whose rulings are binding on Justice Merchan—applied Taveras in a case structurally similar to Trump’s. (Trial courts in New York are, confusingly, referred to as “Supreme Courts”; the Appellate Division constitutes the intermediate appeals courts, while the Court of Appeals is the court of last resort.) People v. Thompson concerned a defendant convicted of § 175.10—along with “offering a false instrument for filing in the first degree”—for “ma[king] a false entry on a form regarding his purported disposal of a firearm … with the intent to commit or conceal his unlawful possession of the firearm.” The First Department upheld the conviction even though Thompson was not charged with the object offense of unlawful possession.
As in the Trump case, in Thompson, the Manhattan district attorney charged § 175.10 without charging the underlying object offense. Here, the appeals court found that the district attorney was not required to prove that the object offense had been committed. “The People were not required to establish that [the] defendant committed, or was convicted of, the crime he intended to conceal,” the First Department ruled, pointing to Taveras. That seems pretty definitive. And indeed, Justice Merchan cites Thompson in his ruling on Trump’s motion to dismiss, stating that the statute “does not require that the ‘other crime’ actually be committed. Rather, all that is required is that the defendant … act[] with a conscious aim and objective to commit another crime.”
A series of additional cases from New York’s Fourth Department provides further support for this read of the statute. These cases aren’t precedential for Merchan, but they’re still a helpful guide for how New York courts have previously interpreted the statute. In People v. McCumiskey, People v. Houghtaling, People v. Crane, and People v. Holley, a jury convicted a defendant under § 175.10 but deadlocked or acquitted on the charged object offense. And in each of those cases, the appellate court upheld the conviction. In McCumiskey, for example, the Fourth Department held, “The jury could therefore convict defendant of falsifying business records if the jury concluded that defendant had the intent to commit or conceal another crime, even if he was not convicted of the other crime.” Justice Merchan cites McCumiskey alongside Thompson in his ruling on Trump’s motion to dismiss.
Aside from that the NYT pointed to a SCOTUS case on the federal level. The somewhat obscure (not much of a Wikipedia summary) Schad v. Arizona
. I'm not surprised that few have attempted to summarize that case, because SCOTUS essentially decided that no single test can decide whether things are or aren't 'combinable' alternatives for aggravating factors. They start by presenting a different case Gipson and do a long takedown against it (even though it wasn't the case at hand!)
The defendant in Gipson was charged with violating 18 U.S.C. § 2313, which prohibited knowingly "receiv[ing], conceal[ing], stor[ing], barter[ing], sell[ing] or dispos[ing] of" any stolen vehicle or aircraft moving in interstate commerce, and was convicted after the trial judge charged the jury that it need not agree on which of the enumerated acts the defendant had committed. The Fifth Circuit reversed, reasoning that the defendant's right to "jury consensus as to [his] course of action" was violated by the joinder in a single count of "two distinct conceptual groupings," receiving, concealing, and storing forming the first grouping (referred to by the court as "housing"), and bartering, selling, and disposing ("marketing") constituting the second. Id., at 456-459. [...]
SCOTUS then says that in their view the appeals court was wrong in that case (but funnily enough that case was itself not appealed to SCOTUS, so the precedential value of what SCOTUS said there about it is somewhat unclear):
This approach rests on the erroneous assumption that any statutory alternatives are ipso facto independent elements defining independent crimes under state law, and therefore subject to the axiomatic principle that the prosecution must prove independently every element of the crime.
To finally get to this (about the controversy that they were asked to decide):
The issue presented here is similar, for under Arizona law neither premeditation nor the commission of a felony is formally an independent element of first-degree murder; they are treated as mere means of satisfying a mens rea element of high culpability.
[...] Whether or not everyone would agree that the mental state that precipitates death in the course of robbery is the moral equivalent of premeditation, it is clear that such equivalence could reasonably be found, which is enough to rule out the argument that this moral disparity bars treating them as alternative means to satisfy the mental element of a single offense.
So, essentially SCOTUS decided that a jury did not need unanimity in deciding the aggravating factors, in detail. Some jurors may think it's one, and some another, as long as all of them agreed that there was one aggravating factor from the those listed by the law.
In these cases, as in litigation generally, different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.
Arguably, this is not exactly the same thing as not being able to decide which "object offense" was committed as the aggravating factor, but I can see why the NYT would mention this case.
Now going back to the Lawfare article, it seems the judge did in fact narrow down some of the alternatives that the jury was allowed to consider as "object offense", box B in the diagram.
So, as long as all jurors agreed Trump intended to commit one of those, they could use that as aggravating factor, even if different jurors preferred a different box among the "B" alternatives.
Richardson (1999) does mention Schad (1991) a few times. The most relevant bit probably being:
this Court has indicated that the Constitution itself limits a State's power to define crimes in ways that would permit juries to convict while disagreeing about means, at least where that definition risks serious unfairness and lacks support in history or tradition. Schad v. Arizona 501 U.S., at 632-633 (plurality opinion); id., at 651 (SCALIA, J., concurring) ("We would not permit . . . an indictment charging that the defendant assaulted either X on Tuesday or Y on Wednesday . . ."). We have no reason to believe that Congress intended to come close to, or to test, those constitutional limits when it wrote this [CCE] statute.
And (right above that) they discuss what seems to be their main issue taking any alternative in a CCE case:
The CCE statute's breadth also argues against treating each individual violation as a means, for that breadth aggravates the dangers of unfairness that doing so would risk. Cf. Schad v. Arizona, supra, at 645 (plurality opinion). The statute's word "violations" covers many different kinds of behavior of varying degrees of seriousness. The two chapters of the Federal Criminal Code setting forth drug crimes contain approximately 90 numbered sections, many of which proscribe various acts that may be alleged as "violations" for purposes of the series requirement in the statute.
I.e. SCOTUS thought in Richardson that 90 alternatives is too many. They also reasoned that
in making CCE a separate crime, rather than a sentencing provision, Congress sought increased procedural protections for defendants.
(Also, Scalia as well as Souter and Rehnquist agreed with both decisions, albeit Scalia wrote his own concurring opinion in the former. Three justices had changed on the SCOTUS bench in the meantime, but among those who did not, O'Connor and Kennedy agreed with Schad but disagreed with Richardson. Only Stevens had the opposite trajectory.)
