23 January 2013

SAFE Act Common Ground (Mark's Law)

Despite the controversy, there are many provisions of the SAFE Act that make sense no matter what side of the "gun control" divide you fall. Given the rancor prevalent in the discussions of this law, maybe it's time to join hands, hum a few bars of "Imagine," and pause for a minute to discuss the parts of the SAFE Act that everybody can agree on, starting with:


The crime of Murder in the First Degree is a leftover of New York's now-defunct death penalty scheme. When New York brought the death penalty back on the books in the Patacki administration, the Murder 1st statute was written to separate "normal" intentional murders from the class of aggravated murders that would trigger the application of the death penalty. Included in the "death eligible" category were murders with multiple victims, contract killings, murders committed during the course of certain felonies, and the murder of police officers.

After the death penalty was ruled unconstitutional, the Murder 1st scheme was (for the most part) kept in the penal law, with the top penalty for Murder 1st now life without the possibility of parole instead of death, the unconstitutional death sentencing scheme pruned away by the Court of Appeals.*2

In 2005, the legislature created the crime of "aggravated murder," and again the defining characteristic was it punished cop-killers more severely than plain vanilla murderers. In fact, the operative language is identical to the Murder 1st statute, except that the "life without parole" sentence is mandatory (as opposed to optional at the discretion of the judge for Murder 1st convictions). It was largely a symbolic law, passed to give the impression that the legislature was getting tough on crime, without actually adding anything much of substance to the penal law.

After the Christmas Eve shootings in Webster--where a gunmen started a fire and then set up an ambush for the first responders, killing two volunteer firefighters and wounding two others before killing himself*2--the SAFE Act takes the extremely reasonable step of adding firefighters and other first responders to the class of murder victims that may trigger a prosecution for aggravated murder, with the enhanced mandatory punishment upon conviction to life without the possibility of parole.

As a symbolic measure, I think this provision is reasonable, and probably should have been in the law from the beginning. The rationale for enhanced deterrence against killing police officers--whether you agree with it or not--applies with at least as much force to first responders like fire fighters and EMTs. If we are going to protect cops, we should have the same protections in place for folks who put themselves into harm's way without the benefit of a side-arm.

Will the new provision of the SAFE Act actually protect firefighters and other first responders in any meaningful way? No; probably not. First, the shooter in the Webster shootings would have been facing Murder 1st charges if he had not killed himself, based on the fact that he killed more than one person during the same criminal transaction. Any judge hearing his case would have undoubtedly sentenced him to life without parole, though technically not required to do so--the same enhanced sentence for aggravated murder that the SAFE Act adds to the book.

And even if, in some decidedly non-judge-like cheek turning, the judge had merely sentenced him to 25-years to life, the parole board would have made sure he died in prison. The Webster shooter, had he lived and been brought to trial and convicted, would have spent the rest of his life in prison, under the old law or the new. It is hard to imagine a scenario where any person convicted of killing a responding firefighter would receive anything other than the equivalent of a true life sentence, under the old law or the new.

But, this is how it works: something unspeakably awful happens, and the laws are changed because . . . well, you have to do something, right? The alternative is to accept that our system of laws is powerless to prevent tragedy.

*1 The law is named after Mike Chiapperini, one of the volunteer firefighters killed by the Webster gunman. The other victim was 19-year-old Tomasz Kaczowka.

*2 The maximum penalty for straight intentional murder (Murder in the 2d degree) is 25 years to life. This sentence technically leaves the option of parole on the table, but practically speaking, for an intentional murder conviction, parole is almost never granted and life really does mean life.

20 January 2013

Handguns and non-assault weapons

There are many changes to the existing gun control scheme in the SAFE Act that deal with non-assault weapons, but the one that has been generating the most controversy is the so-called seven-bullet limit on clips and magazines.*1 Like the new assault weapon provisions, the legislature imposed the new requirements largely by amending existing limits. In this case, the definition of "Large capacity ammunition feeding device" does the heavy lifting. Before the SAFE Act, clips and magazines were limited to a ten-bullet capacity. The new law keeps that capacity limit for clips and magazines obtained prior to the effective date of the SAFE Act, but limits the amount of bullets that can actually be contained in the clip/magazine at any one time to seven. Clips and magazines obtained after the effective date of the SAFE Act must have a capacity of seven bullets or less.

So, gun owners with existing 10-round clips/magazines can keep them and not run afoul of the new law, so long as the clips are never loaded with more than 7 bullets.*2 Any clip/magazine obtained after the effective date of the law is limited to 7 bullet capacity. Possession of a "large capacity ammunition feeding device"--i.e a clip obtained post-Safe Act with more than 7 bullet capacity, or a 10-round capacity grandfathered in actually containing more than seven bullets, is a class A misdemeanor.*3

The other big non-assault weapon change is that simple possession of an unlicensed "firearm" is now a felony (upgraded from a misdemeanor under the old law). It is also a felony to knowingly fail to register a previously licensed "firearm" under the new SAFE Act. The definition of a "firearm" has not changed, and includes "any pistol or revolver " and a shotgun or rifle with a barrel less than 16" in length.

As noted, the licensing requirements have changed, and I'll wade into that mess in due time. Next, though, I'll highlight the non-controversial provisions of the SAFE Act; that is, changes that I can't imagine any constituency taking issue with.

UP NEXT: can't we all just get along?

*1 Or as my friend Matt noted after the law was passed: in New York, you get one bullet for each deadly sin, and that's it.

*2 This is the kind of clunky, silly distinction that you get when you ram through comprehensive gun control reform on the double-quick.

*3 There is no limit on the number of 7-round clips that a person can carry at one time, at least so far as I can tell. If you want to carry 100 rounds, you'll have to carry 15 clips instead of 10.

17 January 2013

NY's gun control Franken-law, explained (Part One)

As you all probably know by now, Governor Andy is coming for your guns and the great state of New York, as we know and love it, is about to unravel. Or, New York is leading the way to bringing a measure of sanity to the unwashed redneck masses. It's gotta be one or the other, based on what I gather from my Facebook feed.*1

But what does the recently enacted SAFE Act actually do? To find out, I took the drastic step of, you know, reading the actual law. All 36 pages of it. And if you are thinking this is some unified legislative proposal, cut from whole cloth to (choose one) 1) strip New Yorkers of their sacred right to bear arms or 2) lead us to the promised land where no child is ever injured by a firearm, think again. The SAFE Act is a collection of amendments, a smattering of tweaks that covers the waterfront, from the penal law to the surrogate's court practice act.

There are so many amendments, in fact, that I am breaking down the break-down into sections. In the first, I'll answer the question that seems to be first and fore-most in the minds of my highly scientific sample of Facebook friends:

So are they coming for my guns, or what?

The answer: it depends on how bad-ass your guns are. We'll take it category by category over the next few days, starting with . . .


First, some context. If you only read the news coverage of the SAFE Act, you would think that New York just enacted a brand new "assaults weapon" ban. And you'd be wrong. The old law included a ban on "assault" weapons, penalizing the possession of any weapon that met the definition of an "assault weapon" as a felony. The SAFE Act leaves the ban on the books, but tightens up the definition of an "assault weapon."

Under the old law, a weapon qualified as an assault weapon if is a was semi-auto, capable of accepting a detachable magazine, and had any two of the following characteristics: a folding or telescopic stock; a pistol grip; a thumbhole stock; a second handgrip for non-trigger hand; a bayonet mount; a flash suppressor, muzzle break, muzzle compensator, or threaded barrel to accommodate flash suppressor / silencer; or a grenade launcher.*2

Yes, I know what you're thinking, and yes: under the old law, you could have an Ak-47 with attached grenade launcher, so long as it had none of the other verboten characteristics. Maybe a little pointless given grenades are illegal to possess under both the old law and new, but I can think of worse ways to launch a potato.

Sadly, under the SAFE Act, a weapon qualifies as an "assault weapon" if it includes just one of the listed characteristics. Meaning that, yes, for those people who currently legally own a semi-automatic rifle with just a pistol grip, or a measly threaded barrel, or just one of any of the other characteristics, then yeah: it is now a felony to possess that gun in New York.


*1 If you want your political vitriol, I'm afraid you will need to go elsewhere. I'm sticking to the facts of the new law, and the potential criminal implications for gun owners in New York.

*2 There are similar lists for semi-auto handguns and semi-auto shotguns. These are not even the coolest lists of banned weapons in the Penal Law. That would be Penal Law 265.01[1], that makes it a misdemeanor to possess an "electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot*3 or slungshot, shirken or 'Kung Fu star." This is clearly why New York is currently experiencing such an extreme shortage of trained ninjas.

*3 I totally had a "wrist-brace type slingshot" when I was a kid. I still count the fact that my brother and I made it to adulthood with all eyes accounted for and functioning as an act of largely undeserved divine intervention.

17 September 2012

Sex offender's ex-girlfriend not allowed to testify about sex life at confinement hearing

Matter of New York v Domeneck, 2012 NY Slip Op 06101 [1st Dept 2012] [available here]

If you are convicted of certain sex crimes in New York, the government can continue to detain you at a "secure treatment facility," even after the expiration of your sentence for the underlying offense, if it is determine after a hearing that you are "a dangerous sex offender required confinement." (Domeneck, * 1.) The hearing is crucial; it is the only check on the government's ability to deprive a citizen of his or her liberty, potentially indefinitely.

In Demoneck the defendant called a former girlfriend at his dispositional hearing to testify "that, during their relationship, he exercised self-control over his sexual desires." (Id. at *1.) The hearing judge refused to let her testify, holding that her testimony was not relevant to the question of whether the defendant "suffered from a 'mental abnormality'" making him more likely to re-offend in the future. The appellate court agreed, finding that evidence that the defendant "may not have sexually abused one former girlfriend . . . does not tend to disprove that his behavior manifested a pattern of sexually abusing non-consenting women." (Id. at *1.)

The hearing court held that defendant was a "dangerous sex offender," and ordered him held in a secure confinement facility after the expiration of his sentence. Unless something changes, that is likely where he will stay. The evidence issue on appeal was a pretty close call, relevance-wise. But in a hearing with such high stakes for the defendant, why wouldn't the courts err on the side of letting the evidence in, and let the hearing officer credit it or not as he or she sees fit?

13 September 2012

Being a prosecutor means (almost) never having to bring your file

People v Perkins, 2012 NY Slip Op 22254 [Kings County 2012] [available here]

At about 5am on July 26, 2010, the defendant in Perkins was arrested and charged with DWI, fleeing a police officer, reckless driving, and resisting arrest (as misdemeanors), as well has a handful of tickets for various traffic violations, including driving while under the influence of alcohol. She was arraigned the next day.

In March 2012, the judge assigned to defendant's case tossed all of the misdemeanor charges based on the prosecutor's failure to be ready for trial within "90 days of commencement of the criminal action," as required by New York's speedy trial laws. As of that time, the judge found that the total delay attributable to the prosecution was 120 days. Yet the judge refused to dismiss the traffic tickets, as well.

Why? Because of a loophole in New York's speedy trial laws. The statute gives the prosecutor a proportionally longer leash to declare readiness for trial, based on the severity of the offense. Felonies must be ready within six months, misdemeanors within ninety days, and violation-level offenses within thirty days. The statute is silent, however, as to the speedy trial time for traffic tickets. One would think that courts would require readiness within 30 days or less for speeding tickets, given that traffic tickets are even less serious than violation-level offenses, and in keeping with the obvious policy of the speedy trial statutory framework.

But, no. There is a constitutional right to a speedy trial that does not depend on the speedy trial statute, but Courts do not automatically dismiss traffic tickets where the prosecutor does not announce readiness in 30 days. The approach is strictly ad hoc, and largely in the discretion of each individual judge.

In July of this year, the defendant tried again, asking a different judge to dismiss the traffic tickets because, incredibly, the prosecution was still not ready for trial. In the almost two years since she was arrested, the defendant appeared 25 times (!!) in court, traveling from North Carolina to New York each time, and on the last ten occasions since the misdemeanors were dismissed the People "answered not ready for trial" when the case was called for trial.

The excuses offered by the People for failing to be ready for trial?

some of the time periods charged to the People are attributable to: the People not having their file in court; the Assistant District Attorney being on trial in another matter; the Assistant District Attorney being unavailable while in training; and on two occasions for reassignment of the case to a new Assistant District Attorney

(Perkins, *2.)

On top of everything, the defendant's driver's license was suspended pending prosecution for the DWAI--a period of two years and counting--even though the longest suspension she was facing after conviction would be 90 days.

The new judge, to his credit, finally had enough, and dismissed the rest of the traffic tickets on speedy trial grounds, holding:

In deciding defendant's constitutional claim, this court is aware of the need to foster both respect for, as well as public confidence in, our legal system. To do so, it is important that our courts interpret the law in a manner which is just, non-arbitrary and balanced. A prosecution in which all misdemeanor charges have been dismissed for failure to bring the case to trial in a timely manner, while less, non-criminal offenses remain pending, potentially without limitation, does not foster these important objectives.
(Id. * 3.)

The legislature could easily fix this problem by modifying CPL 30.30 to include an express time limit for declaring readiness on traffic tickets.

#1 I am, of course, positive that the judge would have granted the defense an adjournment if the attorney forgot his file, or had to be at a CLE, or simply did not show up.

12 September 2012

AD3: Harassment plea does not bar assault prosecution

People v Derouchie, 2012 NY Slip Op 06092 [available here]

As he was leaving Family Court (#1), the defendant in Derouchie "verbally accosted his estranged wife's friend" while swinging his cane at her. When nearby police officers intervened, he "punched an officer in the face, fracturing the orbital bone below the officer's left eye." (Derouchie at *1.) For his trouble, defendant earned two new charges: second-degree harassment for yelling/cane menacing at his ex-wife's friend, and felony assault for breaking the cop's face. The crimes were charged in separate accusatory instruments in the local town court. The assault was later waived to the grand jury, and defendant was indicted on that charge.

The harassment, being a minor violation-level offense, stayed in the local town court. And that's when the defendant's lawyer got creative. He had his client plead guilty to the harassment in town court, and then moved to dismiss the indictment charging felony assault in County Court. His argument? After a defendant has been charged with a crime and it is disposed of--either by a guilty plea, or a verdict after trial--Section 40.40(2) of the Criminal Procedure Law prohibits, on double-jeopardy grounds, the prosecution for a subsequent offense if the subsequent offense arose out of the same transaction as the earlier offense, and the People could have charged the subsequent crime when they charged the earlier crime but did not. This prevents prosecutors from getting more than one bite at the apple.

The attorney in Derouchie argued that, at the time his client pleaded guilty to the harassment, the felony assault was no longer pending in the town court, the People were barred from charging him with felony assault in a different court. A neat trick, and one that sometimes works. And it worked on the trial court.

The Third Department, alas, was not impressed, and reversed. The "defendant was initially charged with both offenses on the same day and in the same court," and therefore section 40.40(2) was not triggered. The felony assault was charged in the Town Court, and the fact that a grand jury indicted the felony and thus removed it from the Town Court's jurisdiction does not change that fact. That the assault was not technically pending in Town Court at the time of the defendant's plea to harassment does not change the analysis.

Still, a nice try, and some slick lawyering.

(#1) Of course it was Family Court.