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.

11 September 2012

AD3: exact same sentence on remand, after top count dismissed, totally not vindictive

People v Grice, 2012 NY Slip Op 05848 [3d Dept 2012] [available here]

A court is not allowed to punish a defendant for exercising his or her rights. If a defendant decides to shut up and not talk to the police, the prosecutor is not allowed to argue that his silence is evidence of guilt. If a defendant rejects a plea deal and goes to trial, the court is not supposed to ratchet up the defendant's sentence more than the facts warrant after trial.

And if a defendant exercises his right to appeal, and wins on some issues and loses on others, the trial court is not allowed to treat the defendant more harshly on remand.

In People v Grice, the defendant was convicted after trial of first-degree robbery (#1) and sentenced by the trial judge (as a second felony offender) to 15 years in prison. The appellate court tossed the first-degree robbery conviction, reducing it to second-degree robbery (#2) and "remitted the matter to County Court for resentencing." (Grice at *1.)

The County Court promptly gave the defendant 15 years, the exact same sentence previously imposed when the defendant stood convicted of a much more serious crime. The defendant appealed again, this time arguing "that the resentence was motivated by vindictiveness for exercising his right to appeal." (Id. at *1.) In a one-sentence holding, the Third Department upheld the resentence, finding "no indication in the record that County Court acted vindictively in imposing the resentence, as opposed to relying on defendant's extensive criminal history." (Id.)

This begs the question: short of tricking the trial judge into saying, on the record, something along the lines of, "You try my patience with your endless legal wrangling, good sir . . . with all the vindictiveness I can muster, I sentence you to 15 years," how is a defendant supposed to make a record of vindictiveness? If every fact at resentencing is the same except the degree of crime for which the defendant stands convicted--same underlying facts of the crime, same criminal history, same attitude of remorse, etc.--then isn't the fact that the trial imposes the exact same sentence for a much less serious crime evidence of vindictiveness per se?

The Third Department says no. No it is not.

#1: The worst kind of robbery, typically involving relieving a person of his or her property at a gunpoint (or knifepoint, or whatever).
#2: The second-worst kind of robbery, usually not involving the use of a gun or other dangerous weapon.

10 September 2012

Lawyer gets around page limit by filing cartoon

Via the New York Times (and many others), comes the story of an attorney filing a 5-page cartoon in the Apple e-book litigation because the judge would not let him file a standard-length 25-page brief. (Article here, full cartoon brief here.) More amazing, the cartoon does an excellent job of covering the attorney's points, and doing so in a thoroughly understandable, funny way. If this catches on, I am completely on board with going back to art school to become a certified legal cartoonist.

07 September 2012

AD1 rejects existential causation in slip-and-fall case

Wood v City of New York, 2012 NY Slip Op 06100 [1st Dept 2012] [available here]

With a glut of law school graduates and not enough work to go around, these are hungry times for lawyers. How else to explain the lawsuit in Wood v City of New York? The plaintiff in Wood "tripped and fell on a crack in the sidewalk and hit his head on a muni-meter." (Wood at *1.) Nothing unusual so far; pretty standard slip-and-fall fair. Only the Wood case did not involve a lawsuit by the plaintiff against the owner of the property responsible for maintaining the cracked sidewalk. Instead, the plaintiff in Wood sued the owner of the next lot down, where some construction work was going on that narrowed the sidewalk in front of the adjacent lot. Note, however, that the plaintiff fell before reaching the narrowed area of the sidewalk.

The plaintiff's theory? In anticipation of the narrowed sidewalk, the plaintiff changed direction, and the owner of the adjacent property should answer in damages because "the narrowing of the sidewalk in front of the construction site directed him toward the cracked sidewalk." (Wood at *1.)

The trial court, being located in plaintiff-friendly New York County, refused to dismiss the complaint. The First Department reversed and tossed the plaintiff's case. Even if the adjacent landowner was negligent in allowing its construction activities to encroach on the sidewalk, it is not enough that an act of negligence is simply a link in the chain of causation. There is not butterfly effect in tort law. The negligence must be the proximate cause of the injury; that is, a fairly direct, substantial cause.

And as the First Department noted, "while the narrowed path may have furnished a setting encouraging plaintiff to step aside to avoid oncoming pedestrians, there were too many intervening facts to find that the construction shed proximately caused plaintiff's injury."

Even as I write this, the plaintiff's attorney is probably bringing a lawsuit against New York City, for not padding the parking meters.

06 September 2012

When keeping it real goes wrong

Killon v Parrotta, 2012 NY Slip Op 06095 [3d Dept 2012] [available here]

You can't start a fight, and then claim you were acting in self-defense and therefore not liable for the other guy's injuries. Case in point, from the Third Department, is Killon v Parrotta. The defendant in Parrotta allegedly beat the plaintiff with a baseball bat, and when sued for battery claimed that he only did so in self-defense.

Small problem: the defendant admitted that he was "upset and angry when he received two threatening phone calls from plaintiff shortly after midnight," hopped in his pick-up truck, drove to the plaintiff's house "with the intention of settling their ongoing dispute 'man to man,'" parked his truck in the plaintiff's driveway with the headlights "shining on plaintiff's front door," and got out to confront the plaintiff.

The plaintiff armed himself with a "maul handle," so the defendant retrieved a baseball bat from his truck. Undeterred, the defendant escalated things further by walking towards the house. The plaintiff "yelled to his chained dog to 'sic'(#1) defendant as he approached the house," but defendant (in his one half-way clever act that night) simply "skirted the limited range of the dog's chain and continued to advance on the porch with the bat in his hand as each man yelled taunts and challenges at the other." (Killon, *2.) The Third Department explains what happened next:

When defendant reached the porch steps and was almost face to face with plaintiff, more angry words were exchanged and defendant again challenged plaintiff to drop his weapon and come down from the porch for a fist fight. Instead, plaintiff remained on his porch, told defendant to get off his property and swung the maul handle. In response, defendant struck plaintiff with the bat.


A jury found that the defendant acted in self-defense. The Third Department reversed, first noting that the "defense of justification is not available to the initial aggressor," and concluding that "there is no dispute that defendant drove to plaintiff's home and then advanced on plaintiff's front porch with a bat in his hand demanding a fist fight." (Id. at 2-3.) On those facts, the Court concluded that "the jury's conclusion that defendant was not the first to threaten the immediate use of physical force is unreachable on any fair interpretation of the evidence." (Id..)

It is interesting to note that this was a civil case for damages. If the defendant had been convicted of assault for beating the plaintiff, there would have been no need for a trial; the result from the criminal case would have simply been carried over to the civil side, as the criminal courts hew to a much greater standard of proof and defendant would have been prevented from re-litigating the liability question in civil court. That means the defendant was not prosecuted at all, or if he was, that the jury in the criminal case bought the self-defense argument.

#1 It is unclear whether the correct spelling is "sic", or "sick," but I am guessing the Third Department just punted rather than going with "sic (sic)" for the quote from the record. One thing is clear: if you are going to sic or sick your dog on an intruder, make sure the mutt is unleashed.

05 September 2012

Fourth Department upholds pretextual, warrantless "parole" search

People v Taylor, 2012 NY Slip Op 05463 [4th Dept 2012] [available here]

With very few exceptions, the police need a warrant before entering and searching your home. It is a protection built into our system as a hedge against police power, a requirement that a neutral judge review the available evidence and determine that there is probable cause that the house will contain evidence of a crime (or a criminal) before signing off on the search.

In Taylor, the police stumbled on a handy way around the warrant requirement. The main suspect in a robbery was also on parole. According to the decision, "[a]t approximately 11:00 p.m. on the night of the robbery, the police officers contacted the parole officer whose duty it was to locate parolees, in order to obtain defendant's most recent address." The parole officer then informed the investigating officers that, as it happened, he was just on his way over to the suspect's house to have a little looksie-do and make sure the suspect was not violating his curfew. Also very conveniently, "it was the policy of the Division of Parole to have at least two officers present for any home visit made after 10:00 p.m.," and therefore "the parole officer asked the police officers if they would accompany him."

How fortunate! The Fourth Department took the serendipitous version of events at face value, concluded that the warrantless search of the suspect's home was lawful as related to "parole-related objectives," and upheld the trial court's refusal to suppress the handgun found in the apartment.

Interestingly, the Court did reverse the trial court's ruling that the handgun was admissible in evidence at trial. The gun was inoperable, and was in no way connected to the fresh robbery. The trial court let the gun in anyway to "explain statements" made by the defendant, but the Fourth Department held that "the probative force of that evidence did not outweigh its potential for prejudice." (Taylor at *2.)

Yet, alas, still no joy for the defendant: the Fourth went on to hold that the error in admitting the gun was harmless, given the other evidence of defendant's guilt (including a positive identification by an "ex crack head who had a criminal history").

04 September 2012

AD3: school not liable for assault on unsupervised first grader

Geywits v Charlotte Valley Central School District, 2002 NY Slip Op 05992 [3d Dept 2012] [available here]

A school and its teachers cannot guarantee the safety of their students. But teachers do owe their students the same duty as parents, and "liability will be established where the school fails to supervise its students with the same degree of care as parent of ordinary prudence in comparable circumstances and such negligent supervision was the proximate cause of the plaintiff's foreseeable injuries." (Geywits at *4.)

Given that standard, consider the following facts*1:

A K-12 school allows its 6-year-old first-graders to walk from the cafeteria to their classrooms unattended. All of the school's students, from 5-year-old kindergarten students to 18-year-old high school seniors, share the same building, and high school students share the hallways with the much younger students. On the way back from the cafeteria, a couple of the six-year-old first-graders are dragged into a bathroom by a high school sophomore and sexually assaulted.

Is the school potentially liable? Did the teachers' decision to allow the 6-year-old students to walk from the cafeteria to their classrooms fall below the supervision one would expect of a reasonably on-the-ball parent?

A majority of the Third Department held that the school could not be liable under those facts, because the sophomore at issue "was a good student, had no significant or recent disciplinary history, and had no prior instances of sexually inappropriate or physical conduct." (Geywits at *3.) The intentional assault by a third-party, without actual or constructive notice to the school, is enough to break the causal connection and result in the dismissal of the plaintiff student's action against the school.

Justice Stein dissented. He would have held that while teachers "cannot reasonably be expected to guard against every sudden or spontaneous act that occurs between students on a daily basis," in this case a jury should have decided whether the school could have foreseen that its failure to supervise first-graders in transit from class to lunch could result in the children being assaulted or injured by older students.

This is an extremely close fact pattern, involving the application of relatively recent Court of Appeals case law regarding the extent of a school's duty of care to its students. It would not surprise me to see the Court of Appeals take up this case.

*1 The facts are stated in a light most favorably to the plaintiff. Obviously the school, and the sophomore, vigorously disputed that any sexual assault took place. Indeed, the lack of proof that any sexual assault occurred was an alternate ground for the majority's holding affirming the dismissal of plaintiff's claims.

23 August 2012

Empty plastic Tops bag enough to tie murder evidence together

People v Reed, 2012 NY Slip Op 05464 [4th Dept 2012] [available here]

The victim in Reed was "shot three times at close range in broad daylight on a public street in Rochester" in front of seven eyewitnesses. (P v Reed at *3.) One witness "testified that the shooter bent over the victim immediately after the shooting," but none of the eyewitnesses saw the shooter take anything from the victim.

The defendant in Reed was ultimately convicted of felony murder*1, but he was not the shooter; it was alleged he drove the Lincoln that the shooter got into after the shooting. At least some of the witnesses identified the defendant as the driver of a Lincoln that was seen leaving the scene.

The car was not found until the day after the shooting. As described in the dissent,

The interior of the Lincoln was, as defense counsel aptly noted on summation, "in a state of disarray" at that time, and in that vehicle the police discovered various grocery items, including "one or two packages of sausage biscuits," an empty Snapple bottle, and a number of lottery tickets. Police also took from the Lincoln a plastic Tops supermarket bag, the handles of which were knotted and the bottom of which appeared to have been "ripped out."

(P v Reed, at *3.)

The plastic bag turned out to be the key piece of evidence in the case. Why? Because the shooting vicitm's girlfriend told the police that, about 30 minutes before the shooting, she had put $40,000 in a plastic shopping bag, knotting it at the top before sending her boyfriend out to buy drugs. The bag found in the car was knotted, but other than that it was unremarkable; as described by the dissenters:

No fingerprints or bodily fluids were found on the bag, nor was any hair. Moreover, defense counsel noted on summation, without objection, that there are "thousands, tens of thousands of Tops bags in [Rochester]," some of which were even carried by jurors during the trial.

(P v Reed, at *3.)

The mere presence of the bag in the car was enough for the majority to conclude that the shooting victim had been robbed during the shooting, thus transforming a straight murder to felony murder, and putting the defendant on the hook for murder without having to prove that he actually shared the shooter's intent to kill the victim. According to the majority,

It has long been the law in New York that evidence that a defendant possessed a wrapper or container that had held property before it was stolen is sufficient to support a conviction for stealing that property. Consequently, "this evidence, although circumstantial, was nevertheless more than sufficient to lead a reasonable person to conclude that defendant" or one of his accomplices stole the cash from the victim. The evidence also establishes that the victim was shot and killed while that cash was being taken from him, thus providing legally sufficient evidence with respect to the remaining elements of the charges of which defendant was convicted.

(P v Reed, at *2.)

Justices Fahey and Martoche dissented, relying on the special care taken by fact-finders in purely circumstantial evidence cases. As noted by the dissenters, "[w]hen the evidence is circumstantial the jury should be instructed in substance that it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence." (P v Reed, at * 2.) The supermarket bag "is a common item," and it could not be said that the bag found in the car was the same one used by the victim to carry his drug money. Coupled with the fact that "none of the seven eyewitnesses to the shooting--many of whom also saw the assailant's departure from the area of the shooting--saw the taking of property from the victim . . . none of those witnesses saw anyone walk from the vicinity of the victim's body carrying anything other than a gun." (P v Reed, at *3.) No evidence of the robbery, hence no underlying felony to support the felony murder conviction, says the dissent.

It is probably good that the Fourth Department does not hear argument on cases during the summer. There were a lot of lengthy dissents this packet, and I imagine some of the panel conferences were getting pretty frosty. Maybe a nice break, some summer downtime, and the Justices will come back in the fall ready to get back to the normal business of affirming convictions unanimously.

*1 Basically, felony murder may be charged where somebody dies during the commission of a felony, whether or not the felons intended to kill anyone. Think security guard dropping dead during a bank robbery where the robbers were armed with realistic squirt guns.

21 August 2012

99 problems but an insufficient understanding of my rights under the Fourth Amendment to the United States Constitution aint one

Via friend and former colleague David Abbatoy (blog here), a law review article breaking down Jay-Z's "99 Problems," with commentary and cites to relevant federal case law. A sample from the article:

I ain’t trying to see no highway chase with jake . . . “Jake” is the cops,and Jay-Z’s narrator is making a prudential business decision here. Highspeed
chases are almost always bad for the perp. If you’re caught after a highspeed chase, you can be certain that the police will impound the car, run a dog over it, and search it thoroughly. So if you’re going to run, you’d better either get away or ditch your load mid-chase. But the latter is dicey, because your load will likely be found, and you’ll have no suppression remedy because you abandoned it before you were technically seized.

There is a lot more where that came from (full article here), highlighting some of the dicier areas of police-citizen encounters. Well worth a read.

(Video for "99 Problems" embedded below, so you can follow along with the article)

20 August 2012

What not to do when stopped by police after killing your business partner

People v Doll, 2012 NY Slip Op 05450 [4th Dept 2012] [available here]

Police responded to a report of a suspicious person and observed a man wearing blood-stained clothing and wielding a lug wrench. When the cop asked the blood-spattered man what he was doing, the man said "he was walking in order to lower his cholesterol because he had a doctor's appointment the next morning." OK. What about all that blood? "[D]efendant replied that it was cold out so he put on the coveralls that he wore when he butchered deer."

This all happened in Genesee County, so the Deer Hunter explanation actually might not have moved the needle much. But then the soon-to-be-defendant did something very peculiar: he asked the officer for a ride back to his van.

Why peculiar, you ask? Because the van, like the defendant, was covered in blood. From the decision:

Diehl (the police officer) drove to the location where defendant parked his van. Diehl observed blood in several places on both the inside and outside of the van, and on the ground next to the van. He also observed a pair of gloves, which appeared to be blood-soaked, on top of a car near the van.

When the defendant tried to explain that the blood was old, the officer pointed out that the blood appeared fresh and that the "defendant's sneakers were leaving bloody footprints in the snow." The police offered to let the defendant go if he could show them the dead deer or explain the source of blood.

Defendant responded by asking for an attorney.

The police continued to interrogate the defendant. They also searched for a victim, checking the defendant's ex-wife and the area where the defendant was stopped. More than four hours later, the police checked the home of defendant's business partner. The partner's dead body was in the driveway of the home.

After the body was found, the defendant's girlfriend and a friend went to the police station where defendant was being held. The friend asked repeatedly to speak with the defendant, and eventually a sheriff's investigator allowed her to do so. However, the investigator stressed that he was not asking the friend to talk to the defendant, and that he (the investigator) would remain in the room the entire time. From the decision:

During the ensuing conversation, defendant told his friend that the situation did not involved an animal, that he had been "present" but did not do anything, that it was an open and shut case, that he was going to be in jail somewhere, and that he guessed that he would get what he deserved. Defendant's friend specifically asked defendant to tell her that there was not a dead body, and defendant replied, "I can't do that." [The sheriff investigator] stayed in the room during the conversation, standing a few feet from defendant and his friend, within defendant's view.

Remember, this all happened after defendant asked for an attorney.*1

The defendant moved to suppress his statements, both to the responding officers before the body was found, and the later statements to his friend at the police station. The Fourth Department, in a majority decision by J. Nancy Smith, affirmed the trial court's decision refusing to suppress the statements.

As to the statements defendant made after he asked for an attorney but before the body was found, the Court held that "inasmuch as the evidence at the suppression hearing established that an objective need to rescue a member of the public existed and that the deputies were doing everything possible to aid that person or persons, the emergency exception applied notwithstanding the deputies' additional intent to obtain incriminating evidence."

The statements made by the defendant to his friend, although made after the body was found and therefore after the "emergency" was resolved, did not violate defendant's right to counsel because the friend was not acting as an agent of the police. The defendant was entitled to a "competent advocate in confronting the power of the State," but that right did not extend to "encounters with private citizens absent collusion of the State." (Doll, citing People v Velasquez, 68 NY2d 533.)

The Court also invoked the emergency doctrine to excuse the "temporary" detention of defendant while the police searched for a body.

Justices Centra and Fahey dissented. The dissenters noted that defendant was first handcuffed and detained at about 845p.m., and then interrogated for at least the next four hours, without Miranda warnings and in spite of his request for an attorney. The dissenters would not have applied the emergency exception, because unlike every other case to invoke the emergency exception, "the police in this case were not aware that there was even a victim who needed police assistance." The defendant claimed the blood was from butchering deer, "certainly a reasonable explanation"*2 according to the dissent.

In the dissent's opinion, to "allow the police to disregard a person's invocation of the right to counsel based on the mere fact that the person has blood on his or her clothing is an unwarranted expansion of the emergency exception."

The dissent is no doubt correct that the majority's opinion extends the emergency doctrine into new and unsettling territory. It is easy to understand on the facts of Doll: blood covered defendant offers ridiculous reason for being out and about, and leads the officers to his blood-spattered van (with bonus blood-soaked gloves nearby). It is hardly surprising that the police held onto the defendant and questioned him until a body was found, and that both the trial court and the Appellate Division ratified the conduct by refusing to suppress the statements.

But the Doll case does not exist in a vacuum, and now there is authority for the police to seize and interrogate a suspect, for hours and hours, without Miranda and in spite of a request for an attorney, based on blood-stained clothing (or what looks like blood stained clothing), if the police do not like the explanation for the blood. That is a pretty breathtaking expansion of police authority.

*1 An attorney may have been able to point out, "Dude, the sheriff investigator is standing right there. For the love of God, shut up."
*2 Again, at least in Genesee County.

17 August 2012

Appellate court tosses lawsuit challenging NY gay marriage law

New Yorkers for Constitutional Freedoms v New York State Senate, 2012 NY Slip Op 05455 [4th Dept 2012] [available here]

I'm late on this, but I spend so much time giving the Fourth Department a hard time, that I would be remiss if I did not give credit where credit is due. In a unanimous decision, the Fourth Department tossed out a lawsuit brought by a religious lobbying group seeking to nullify New York's recently enacted gay marriage law on extremely technical grounds.

First, however: I call BS on the plaintiff, "New Yorkers for Constitutional Freedoms." Specifically, on that choice of a name. Guys and Gals of NYCF: you are a religious group advocating a very narrow agenda. Embrace it. For crying out loud, your mission statement (here) says, "As a Christian Ministry, NYCF exists to influence legislation and legislators for the Lord Jesus Christ." Cut the America The Beautiful crap. Scrap the Eagle and Flag logo. At most, you unequivocally like one amendment in the Bill of Rights.*1 I mean, when you say this:

We believe the Bible to be the inspired Word of God. If God says something is right, then it is right; and if God says something is wrong, then it is wrong. This includes marriage as a union of a man and a woman. It also includes a basic understanding of the 10 Commandments as our basis for moral convictions.

. . . your agenda, by definition, has nothing to do with the Constitution. Some less misleading re-branding is in order.

Anyway, on to the decision.*2 Last year, New York's legislature passed the Marriage Equality Act, permitting same-sex couples to get married in New York. NYCF filed a lawsuit in Livingston County, and asked the County Court judge assigned to the case to declare that the New York Senate violated the Open Meetings Law in enacting MEA "and that marriages performed thereunder are not valid." What is the Open Meetings Law (OML)? Glad you asked. Under the OML, "every meeting of a public body shall be open to the general public," with certain exceptions. As explained by the Court, the "purpose of the [OML] is to prevent public bodies from debating and deciding in private matters that they are required to debate and decide in public, i.e. deliberations and decisions that go into the making of public policy."

Wait, you might be thinking; did the Senate pass the MEA in a closed session? No. No they did not. So where did NYCF find its violation of the open meetings law? Well, stay with me.

At the time MEA was passed, the Republicans had the majority of the members in the Senate (32 members out of 62). Remember how a meeting of a "public body" must be open to the public? The statute defines "public body" as "any entity, for which a quorum is required in order to conduct public business [...]." Ergo, "Inasmuch as the Republican Conference was the majority conference of the State Senate . . . a meeting of that conference constituted a quorum of the State Senate."

So, if all the Republicans in the Senate got together at once, the meeting would have to be open to the public, right? Well, no. The statute carves out an exception to the open meetings law for "the deliberations of political committees, conferences and caucuses . . . who are members or adherents of the same political party."

Right. So, what was NYCF's problem again? Oh yeah. NYCF claimed that the MEA was enacted in violation of the open meetings law because all of the Senate Republicans met with New York City Mayor Michael Bloomberg (a registered Independent), and later all of the Senate Republicans met with Governor Andrew Cuomo (a registered Communist*3). Because not all attendees at those meetings were of the same political party--Cuomo and Bloomberg, respectively, were not Republicans--and since the MEA was discussed at those meetings, the exception to the open meetings law for purely political party-based meetings did not apply. The meetings should have been open to the public, and therefore all of the gay married couples in New York should be de-certified.

Only, not so fast.*4 The OML exception for purely political committee meetings applies "without regard to . . . whether such political committees, conferences and caucuses invite staff or guests to participate in their deliberations."*5 NYCF argued in its lawsuit that "the definition of 'guests' in the exemption must be limited to people of the same political party as those of the political party seeking the exemption."

The Fourth Department found no support for such a narrow reading, and noted the practical difficulties that would ensue if the Court were to adopt it. Under NYCF's reading, for example, "it would be impossible for a Democrat member of a Governor's office, such as a budget director, to speak to a majority Republican caucus."

In any event, a violation of the open meetings law does not automatically invalidate the statute. A court must first find that there is "good cause" to throw out the statute and invalidate actions taken in reliance on the statute. The Fourth Department rightly noted that the two meetings in question were a small part of the debate leading up to the enactment of MEA, and "given [the plaintiff's] failure to link the alleged OML violations to the enactment of the MEA, which was approved at a regular session of the Senate that was open to the public, we conclude that plaintiffs failed to show good cause why we should exercise our discretion to nullify the MEA."

See you at the Court of Appeals!

* That would be the 2nd amendment (because if there is one thing JC was crazy about, it was his assault rifles). No, NYCF does not get to claim the 1st amendment. I'm sure NYCF are cool with the establishment clause, but I am guessing they are not going to be joining the ACLU as amicus on any free speech issues.

*2 OK, one more nit to pick from the NYCF website. Under "Accomplishments," the group lists "making child pornography illegal." There must be some divine intervention if NYCF was able to "make illegal" something THAT HAS NEVER BEEN LEGAL EVER ANYWHERE. My head hurts. Let's keep going.

*3 I'm kidding! He's clearly a socialist.

*4 Don't look at me. I told you at the top this was technical.

*5 The statute is silent as to whether the guest must partake of the host's salt and bread for the "guest right" to attach.

16 August 2012

"Cutting open pills on the counter" is not a crime

In re Marquardt v Marquardt, 2012 NY Slip Op 05457 [4th Dept 2012] [available here]

There's a different feeling on the third floor of the Hall of Justice. When the bell dings and the scratched, dented doors of the elevator rattle open, the charge in the air around the suite of offices and courtrooms that make up Family Court is palpable. It is the static generated by the close proximity of lots and lots of people who really, really do not like each other. Only close family members can generate that kind of hate; it is a special kind of animosity that most of us cannot muster for strangers. It is the toxic venom reserved for those once loved and now despised.

The Fourth Department decision Marquardt v Marquardt provides a glimpse into that world. First, some background. Any person can file a petition in Family Court and seek a protective order against a family member. But, the petition must allege conduct that qualifies as a "family offense," i.e. a list of crimes that crop up most often in the domestic context. Harassment, assault, disorderly conduct; that type of thing.

The husband in Marquardt filed a petition seeking a protective order against his wife. The crime that he alleges his wife committed against him? Hubby claimed that "respondent (the wife) committed a family offense by engaging in acts that would constitute either first or second degree harassment 'by cutting open [her] pills on the counter, knowing that the [husband] has allergies' to medications." The Family Court concluded that the "pill cutting" satisfied the elements for criminal harassment: that the wife "engaged in conduct that was intended to harass, annoy or alarm petitioner, that petitioner was alarmed or seriously annoyed by the conduct, and that the conduct served no legitimate purpose."

The Fourth Department reversed, noting that the wife needed to open the medicine "to eat it with pudding based on her inability to swallow pills," and therefore it could not be said that "the conduct served no legitimate purpose." The Fourth Department went on to note that the husband did not even testify that he was allergic to the medicine used by his wife, "or to introduce any expert evidence in support of his testimony that the medication was a 'poison, a toxic poison that causes death.'"

To be fair to the Family Court here, the judge was probably just erring on the side of putting a protective order in place to act as a buffer between the parties. The Family Court judge noted in its decision "that 'ninety percent of the testimony' at the hearing was 'utter nonsense' and warned the parties that it would 'not waste another entire day listening to what [it] consider[ed] to be inane blather.'"

Welcome to Family Court: 90% utter nonsense, now with inane blather!

03 August 2012

AD4: 95 minutes = "close temporal proximity"

People v Lewis, 2012 NY Slip Op 05449 [available here]

A "show up" identification procedure is basically just what it sounds like. After a crime is committed, and usually while the victim is still at the scene of the crime, a police officer "shows up" with a suspect. The suspect is usually handcuffed and seated in the back of a police car. The suspect is taken out of the police car and displayed for the crime victim. If it is dark, the suspect is typically lit up with one of the flood lights that the police have on their cruisers. The victim is asked if he or she recognizes the suspect, and in the overwhelming majority of cases, makes a positive identification.

At least on paper, the courts look at "show up" identifications with suspicion, and for good reason. It is hard to imagine a more suggestive way to display a suspect to a crime victim. The police are basically telling the witness: "we found this guy, we obviously think he's involved or he would not be handcuffed and locked in the back of my police car, so why don't you tell us he's the guy and we can all go home. And oh, in case you're confused, he's the guy standing in the spotlight."

In practice, show-ups happen a lot, and courts almost never keep out identification evidence or testimony based on the fact that the police deliberately choose to use the most suggestive and least reliable identification procedure at their disposal. Case in point is People v Lewis, a decision from the Fourth Department's last packet. After reciting the usual tough talk--the Court acknowledges that "showup identification procedures are generally disfavored"--the Court upholds the procedure anyway.

The Court notes the general standard: that "such procedures are permitted 'where [they are] reasonable under the circumstances—that is, when conducted in close geographic and temporal proximity to the crime—and the procedure used was not unduly suggestive.'" So far, so good. But the defendant in Lewis was held by the police for an hour and a half before the police conducted the showup. Certainly this type of extended detention would invalidate the procedure? Not so, says the Fourth Department. Without discussion, the Court holds "the showup identification procedure was reasonable because it was conducted at the scene of the crime, within 95 minutes of the commission of the crime and in the course of a 'continuous, ongoing investigation.'"

The Court of Appeals case the Fourth Department cites in support of its holding upheld a showup identification where the suspect was held for under an hour, and even that holding was a significant departure from the previous 15-minute outer threshold. People v Brisco, 99 NY2d 596 [2003].)

The Fourth Department's decision is still more troubling because, as the Court admits, the police had probable cause to arrest the defendant even without the result of the showup identification procedure. That means the police were free to transport the defendant to the police station and arrange a lineup--a much more reliable identification procedure that is far less likely to result in the identification of an innocent person. Instead, the police employed the most suggestive identification procedure at their disposal, and in doing so dramatically increased the possibility of a mistaken identification.

And by increasing the "temporal proximity" threshold to 95 minutes--beyond the previous high-water mark set by the Court of Appeals--the Fourth Department continues to water-down the protections afforded defendants who are subject to show-up identifications.

03 July 2012

Representing actual people

There is a lengthy article up at the Livingston County News (here) about one of my recent cases. I'm not going to go into a full blow-by-blow here, but here's the case in a nutshell(*1):

My clients asked the Geneseo village planning board for a permit to use their home as multi-family rental housing, a use allowed by the zoning code. The village board refused to grant the permit, for what I will charitably call reasons of dubious merit. We went to court to make the board issue the permit, and eventually won.

Suffice to say that I am very glad that I was able to help my clients. There are few things more frustrating than navigating a municipal bureaucracy, and in this case there was an overlay of anti-student rental backlash that made the sledding that much tougher.

I'd like to say that the success here was down to some brilliant insight, or a clever legal trick. But in truth, the village planning board should have given my clients the permit from the outset; the law was clear, and my clients were in the right. My job was to make the planning board do what it should have done in the first place; no more, and no less. And yet the work, and outcome, was enormously satisfying.

This case brought to mind a commencement speech given by a Harvard Law prof Lawrence Lessig to a fresh batch of law school graduates (full text here). His premise: being a lawyer is more fun, and more fulfilling, when you represent actual people, and don't simply chase money working for BigLaw and rich corporate interests. From the speech:

Think also about those who 40 years from now will look up to you and ask you: What did you do then? Think of your kids and their families. Think of the work they will see. Think of the rewards they will recognize.

They won't respect you for your money, or for your fame, or even for your incredible good looks. They will love you, no doubt, regardless. But they will only respect you for what you did, for who you became, for how you left the world. For how you made the law, "People Law," better.

Leave it better, lawyers, than we lawyers who have educated you have given it to you. Leave it in a place that your mother and your daughter, your father and your son, can respect. Not corrupt, but true. Not just rich, but just.

For what the hell is being a lawyer for?

I've practiced both ways. I spent a few well-paid years doing scut-monkey, bottom-run document review for big corporate clients fighting with other big corporate clients over mind-boggling gobs of money. And I've practiced at the other extreme, as an assistant public defender paid peanuts to defend individual clients with no money and few friends in the legal system.

For me, there is no contest. The Harvard prof has it right. What the hell is being a lawyer for, if not for standing by individual clients and forcing the system to bend toward justice?


14 June 2012

Fourth Department upholds confession produced by continuous 49-hour interrogation

People v Guilford, 2012 NY Slip Op 04475 [4th Dept 2012] [available here]

Syracuse police detectives took James Guilford into custody at about 11:30pm on March 20, 2007, on suspicion of murdering his ex-girlfriend. He was then interrogated non-stop by a rotating team of detectives for the next 49 hours, with no sleep and little food, at the end of which he told a detective, "I'll give everybody what they want" in exchange for a plea deal and an attorney. As described by the dissenters,

The interrogation occurred inside a locked room that was 10 feet by 10 feet. Except for bathroom breaks, during which defendant was accompanied by a detective, defendant spent the entire 49 1/2-hour period in the interrogation room. As the suppression court noted in its findings of fact, the only food consumed by defendant during his continuous interrogation was a single sandwhich, which he consumed early in the evening on March 21. That was approximately 20 hours after he was taken into custody and 40 hours before he confessed on the morning of March 23, a point that bears emphasis. From early Saturday evening to Monday morning when he confessed, defendant ate not a morsel of food.

In addition, as the suppression court further stated in its findings of fact, there is no evidence that defendant slept during his 49 1/2 hours in the interrogation room. [...] The suppression court set forth in its findings of fact that defendant had an "opportunity to sleep" in th holding cell, but there was no evidence adduced at the hearing that defendant actually slept or that the conditions in the holding cell were such that it was even possible for defendant to sleep. Thus, it appears that defendant may have been awake for 50 hours immediately preceding his confession. That does not take into account the fact that defendant was picked up by the police at 10:30 p.m. on March 20 and probably had been awake for quite some time on that day.

(People v Guilford, 2012 NY Slip Op 04475 (Lindley and Martoche, JJ, dissenting.)

After talking with a lawyer and being held in a holding cell for 8 hours, defendant confessed to killing his ex-girlfriend. A majority of the Fourth Department upheld the confession, holding that the 8 hours in the holding cell and the chance to speak with an attorney was enough to cure the illegal marathon interrogation. In so holding, the Court attributed almost super-human powers to the attorney appointed to represent the defendant, and in whose presence the final confession was taken. From the majority's decision:

In particular, we note that, once an attorney was appointed for defendant and defendant had the opportunity to consult with the attorney before again speaking with the detectives, in the presence on an attorney, it cannot be said that the statements were involuntary or the "product of compulsion."

(Id. at __.)

As a criminal defense attorney, I can assure you that it is sometimes impossible to convince even well-fed, fully rested clients not to do stupid things (like confessing to murder), never-mind attempting to reason with a client who just endured almost 50 hours of quasi-torture. The investigators in this case spent an entire weekend breaking the defendant down, depriving him of food and sleep, and in the end convinced defendant to "give everybody what they want" in exchange for an attorney and a few years off his sentence. It is naive and a bit disingenuous to think that an hour or two talking to a defense attorney would be enough to repair the psychological fracture that was the intended and inescapable result of draconian police conduct. As the dissenters note, "the presence of defense counsel did nothing to improve defendant's cognitive functioning, which necessarily was adversely affected by the prolonged lack of food and sleep." (Id. at __.)

Justice Scudder filed a separate concurrence, and would have found that the presence of the attorney alone was enough to validate the confession, even without the 8 hour break in the holding cell from almost 50 straight hours of Geneva-convention-violating interrogation. I can only assume this was done to lend a patine of reasonableness to the majority's holding.

01 June 2012

The Corasanti verdict backlash

I usually do not keep up with the news out of Buffalo, but I found myself driving to court last night in a loaner car, without my usual array of podcasts and audiobooks to pass the miles, and had to resort to the radio. Buffalo's main news station, WBEN, was dominated by the verdict in the trial of Dr. James Corasanti. This case has not received much play in Rochester, so here's a quick recap for those (like me) who have not been following the case (the Buffalo News has an entire section dedicated to the trial here, and a (arguably slanted) summary of the trial testimony here):

Dr. Corasanti had dinner and drinks at his Country Club, played a few holes of golf, had a few more drinks, and then got into his BMW and drove home. It was about 11pm when he left the Country Club. Alix Rice. an 18-year old skateboarder, was on her way home from working at a local pizza place. She was on her long-board, skating on the side of the road. Dr. Corasanti hit Alix with his car and killed her, drove home, called his attorney, and about an hour and a half later turned himself in to the police. Dr. Corsanti was charged with second-degree manslaughter (recklessly causing death), leaving the scene of a fatal accident, and driving while intoxicated.

The trial ended Wednesday with the jury's verdict: not guilty on manslaughter and leaving the scene charges, guilty of misdemeanor driving while intoxicated.

Given the optics at play in this case--rich doctor returning from a night of drinking at the Country Club, a quirky teen cut down before her prime, the doctor leaving the teen on the side of the road to die and immediately lawyering up--the backlash to the verdict was inevitable and expected. Two views seem to dominate: the jurors were gullible idiots, and the judge should whack Dr. Corsanti with the maximum possible 1-year sentence on the DWI. This column in the Buffalo News is typical of the type of overwrought rhetoric that has followed the verdict.

The jury foreman was interviewed (here), and it appears that the jury did exactly what it was supposed to do: set aside the overwhelming emotion of the case, view the facts in an objective light, and hold the prosecutor to its very high (and very appropriate) standard of proof in a criminal case. From the interview:

"We did our very best," Nixon said. "We took the law and tried to apply it to this case. It was a very emotional case. We tried to keep emotion out of it as best we possibly could.
We tried to our best to weigh the evidence and the testimony."

Most of the callers to WBEN were of the opinion that the system was broken; that lay jurors should be replaced with trained professionals; and that the defense should not be allowed to "confuse" the jury with "hired-gun" experts. It begs the question: what exactly do these people expect out of a criminal justice system? That the prosecutor's evidence and theories go unchallenged? That the defense be prohibited from calling its own witnesses, its own experts? How many of us would be content with such a system if we were the ones standing in Dr. Corsanti's shoes?

Based on the summaries of the proof I have seen, the defense had a solid argument against the manslaughter charge: that even if Corsanti was drunk, there was no evidence that he was driving erratically, and given the fact that Alix was skateboarding, apparently in a crouched position, on the side of a dark highway at 11pm at night, and there was little or no evidence to establish if she was in the lane of travel at the time of impact, there was no way for the jury to determine whether Dr. Corsanti did anything to cause the accident, or whether it would have happened to any motorist who happened to be driving on that road, at that particular time.

As to the defense's "hired gun" experts, they were called to rebut the testimony of the prosecution's own "expert," a police investigator "trained" in accident reconstruction, who opined that Dr. Corsanti was traveling at up to 52mph in a 35mph zone at the time of impact. His opinion was based on the damage to the vehicle and the position of the body--hardly the stuff of hard science. The "expert" also testified that Alix was visible at the time of impact, and Dr. Corsanti "could have or should have" seen her in time to avoid the accident--again, not exactly the type of opinion that hews closely to the scientific method.

In the face of such junk science and rank speculation, the defense was obligated to call its own experts to challenge the prosecution's version of the incident, and to de-mystify and discredit the prosecution's "accident reconstruction" expert. To do less would be malpractice. To suggest that the defense did something wrong in calling its own experts, or that the defense experts misled or bamboozled the jury into an unjust result, at once betrays a dermis-deep understanding of the adversarial system and a child-like faith in the strength of the prosecutor's proof.

Equally disturbing are the open calls to the judge to sentence Dr. Corasanti to the maximum one-year sentence on the DWI to, in the words of one particularly facile columnist, "inject into the case a measure of justice." (Here.) The point here should be too obvious to mention: you can't punish somebody for criminal conduct if they have not been found guilty. Under any definition of justice or fairness, hitting Dr. Corsanti with a maximum sentence on the DWI because he should pay for killing Alix--when the jury acquitted him of that crime--would be simply substituting the judge's opinion on what the outcome should have been for the jury's verdict.

29 May 2012

How not to do a drive-by

People v Johnson, 2012 NY Slip Op 02965 [4th Dept 2012]

I'm no expert, but I think the drive-by shooting (as opposed to a regular, on-foot shooting) has three distinct advantages: there is a bit of intimidation involved, what with the high speed and the surprise; being in a car allows the shooter to get away from the scene quickly, and; the car provides some cover for the shooter, making identification more difficult and providing some cover from any return fire.* The defendant and his compatriot in Johnson managed to do a drive-by that accomplished none of those goals, and it was down to their choice of a vehicle: a moped. As explained by the Court, "just prior to the shooting defendant was driving a moped on which the defendant was a passenger. Immediately before the codefendant fired a shot or shot toward a vehicle, defendant stopped the moped." Probably best not to use a vehicle that you actually need to stop in order to fire your weapon. You just end up looking like these guys:

On the plus side, the moped allowed the defendant to "swerve" and "maneuver" around some police cars before being caught. The defendant--the driver of the moped--argued on appeal that the evidence was insufficient to support his conviction for possessing the weapon fired by his co-defendant. The Fourth Department held that it could be inferred from the evidence that "defendant was aware that the codefendant had a loaded firearm, and that he aided the codefendant in that possession inasmuch as he stopped the moped in order for the codefendant to be able to line up his target and fire." Ergo, accomplice liability. * It is possible I have given this too much thought.

24 May 2012

CA: Temporary internet cache files not "possessed"

People v Kent, 2012 NY Slip Op 03572 [available here]

First, a welcome to any new readers who found me by my "Up & Coming Attorney" profile in the Daily Record. Next, an apology and a warning: my first post as an U&C'er discusses a case involving child pornography. Feel free to skip it and start with something silly. I won't be offended.

If you are still reading, chances are it is your job to defend people accused of possessing child pornography. The vast majority of prosecutions involve images and videos obtained over the internet and stored on a computer. To put it mildly, the law has not done a good job of keeping up with the pace of technology. The current statute criminalizing possession of child pornography was written, for the most part, in 1977. The definition of "possession" reflects the nature of the crime in the late 1970s, and was established if a defendant "knowingly has in his possession or control" an item constituting child pornography. When the realm of material was limited to magazines, photographs, and video tapes, this definition was perfectly serviceable and was not difficult to apply.

Enter the internet. What constitutes "possession" of child pornography when the material is accessed and viewed over the internet?

The Kent case started, like these cases often do, when Mr. Kent's computer went kaput and required repair by his employer's IT department. In the course of fixing the computer, the IT guys discovered a folder containing image files of "scantily clad, prepubescent girls in provocative poses." Creepy, but not illegal. Enough to warrant a call to your friendly neighborhood police department? Absolutely. The defendant's employer consented to a full scan of the computer's hard drive, and, well, you can guess how that turned out.

Among other things, the scan revealed child pornography images in the web browser's cache folder. As explained by the Court, a "cache contains images or portions of a Web page that are automatically stored when that page is visited and displayed on the computer screen; if the user visits the Web page again at a later date, the images are recalled from the cache rather than being pulled from the Internet, allowing the page to load more quickly." There was no evidence that "defendant was aware either of the cache function of his computer or that any of these files were stored in the cache." Mr. Kent was indicted for possessing child pornography based on the cache files, convicted after trial, and his conviction was upheld by the Third Department. That court held the cache files were proof that defendant "knowingly accessed the Web page and displayed it on his computer screen . . . establishing his dominion and control over the images."

The Court of Appeals, in a majority opinion by Judge Ciparick, disagreed and held "some affirmative act is required (printing, saving, downloading, etc.) to show that defendant in fact exercised dominion and control over the images that were on his screen. To hold otherwise, would extend the reach of article 263 to conduct--viewing--that our Legislature has not deemed criminal."

This decision will likely trigger an overdue overhaul of New York's child pornography laws. The comparable federal laws criminalize not only possession, but also accessing child pornography with the intent to view it.

But lest you think that Mr. Kent's victory was complete, he was also convicted for possessing child pornography files that he deleted from his hard drive prior to turning it over to the IT department for repair. The police forensic scan found the files in the un-allocated part of Mr. Kent's hard drive, where "deleted" files go in little bits and pieces. A computer's allocated space contains those files that have not been deleted. The Court held that, if a child pornography file is in the un-allocated space, it is reasonable to infer that, at one point, the defendant downloaded and stored that file on his computer before attempting to delete it, and that downloading the file was a sufficient affirmative act to establish possession.

27 April 2012

Happy Friday (celebrating the right to remain silent)

With apologies to my police officer friends, family members, and clients, a funny, informative, persuasive lecture with one message: you should never, under any circumstances, talk to the police.

25 April 2012


People v Julius, 2012 NY Slip Op 02198 [4th Dept 2012] [available here]

The Fourth Department has fallen in line with the Second and Third Departments, holding that a trial court may allow a police officer to testify "regarding a horizontal gaze nystagmus field sobriety test (HGN test)without conducting a Frye hearing." What is the HGN test? Take it away, Youtube:

The Court notes that "HGN tests have been found to be accepted within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test's acceptability." The proper foundation for the testimony must still be laid by the officer, including his qualifications and training to administer the test and "the techniques he employed."

The Julius decision makes it more difficult for DWI defendants in Rochester and the surrounding counties in the Fourth Department to challenge the admissibility of HGN tests. The main attack point shifts from the nature and reliability of the HGN test itself, to whether the officer was adequately trained and followed the proper steps in administering the test.

Of course, be careful what you say while performing the roadside tests, as demonstrated by the motorist in the clip below:

12 April 2012

Redefining ineffective assistance of counsel

People v Fisher, 2012 NY Slip Op 02416 [2012]

A defendant in a criminal case has the right to a lawyer. And not just a potted plant in a suit; an effective lawyer. A defendant's rights would mean little without a competent attorney on board to make sure that the rights guaranteed by the United States and New York Constitutions are not violated.

In the context of an ineffective assistance of counsel claim, the bar is set pretty low for defense attorneys. Courts reviewing a lawyer's performance chalk up all manner of mistake to trial strategy, or acknowledge mistakes but find enough moments of competent representation to disregard the bad moments.

But there are signs that, at least in New York, the standard is changing. The latest, clearest marker of that trend is People v Fisher, handed down last week by the Court of Appeals. The defendant in Fisher faced some pretty awful accusations that he sexually molested two of his nieces. But there were plenty of problems with the prosecution's case at trial. The mother of the alleged victims had a pretty strong financial motive to fabricate the allegations, and one of the main witnesses against Fisher was a jail-house snitch, a convicted murderer who bartered his testimony against Fisher in exchange for a favorable recommendation from the prosecutor to the parole board.

The prosecutor in Fisher gave a fairly typical closing argument in a child sex abuse case. She argued that the child had gone down a "long road" to testify at the trial, that the child had repeated her story multiple times to all sorts of people, and the story was consistent each time. One problem: there was no actual evidence before the jury that the child had made prior consistent statements, and any such evidence would have been inadmissible bolstering. The prosecutor went on to minimize the benefit the DA's office conferred on the snitch for testifying, an argument that the Court of Appeals found "less than frank" and "materially misleading." The prosecutor closed with the by-now standard line: "the day that the voice of the child is not evidence is the day that those doors [the doors to the courtroom] should be locked forever." The Court of Appeals noted that "it was not permissible for the prosecutor, an officer of the court, to admonish the jury that their acceptance of the testimony of the child witnesses was essential to the administration of justice."

What is amazing about this decision is that the Court of Appeals did not reverse the defendant's conviction based on the prosecutor's misconduct during closing argument. Indeed, the Court was without any authority to reverse on that ground, because defense counsel at trial let the prosecutor's closing argument flow by without objection. And that is precisely why the Court of Appeals did reverse the conviction. The Court held "defense counsel's failure to object to any, let alone all, of the prosecutor's egregiously improper departures during summation, particularly in the highly charged, potentially outcome determinative context in which they occurred, deprived defendant of the right to effective assistance of counsel."

This a doubly surprising result: appellate courts almost never reverse based on a prosecutor's misconduct, and a reversal for ineffective assistance of counsel is rarer still. The precedent is comprehensively laid out in Judge Smith's blistering dissent. To have a reversal, from the highest court in New York, based on ineffective assistance of counsel for failing to object to prosecutorial misconduct, is sort of mind-blowing.

The Fisher decision will change the way the Monroe County District Attorney's office prosecutes child sex abuse cases. They basically have to throw out their script and start over and try to obtain a conviction the old-fashioned way: by relying on the facts and evidence of the case, and not improper emotional pleas to the jury. Beyond that, Fisher should change the way defense lawyers practice. A lot of lawyers are taught, as a matter of strategy and courtesy, to let closing argument pass without objection unless the prosecutor does something truly outrageous. That conduct is now, according to the highest court in the state, the mark of an incompetent lawyer.

Beyond the context of closing argument, the Fisher decision could provide defendants another avenue for review on appeal. All too often, the intermediate appellate courts will refuse to reach issues that are not properly preserved for appeal by trial defense counsel. The Fisher decision gives appellate counsel the ability to argue, essentially, in the alternative: issue A should result in reversal, but if the Court finds issue A un-preserved, reversal is still required because trial defense counsel's failure to preserve the issue deprived defendant of effective assistance of counsel.

Kudos to Jan Somes, a friend and member of the excellent appeals bureau of the Monroe County Public Defender's Office, on the brief for Mr. Fisher before the high court.

30 March 2012

Happy Friday (ignoring the right to remain silent)

Sadly, this guy was arrested and charged with intentional murder for the un-counseled statements made at 1:36.

21 March 2012

Cops may not use Taser to obtain DNA sample

People v Smith, 2012 NY Slip Op 01896 (4th Dept 2012) (available here)

Prosecutors in Niagara received a hit from the state DNA database that indicated Ryan Smith's DNA matched DNA collected from the scene of some home invasion robberies in Niagara Falls, New York. The prosecutor asked the Court to order Smith to provide a DNA sample to confirm the hit from the state database, and provided Smith notice of the application and an opportunity to be heard in opposition. Smith did not respond to the motion, the Court granted the order, and Smith gave a DNA sample as required by the Court.

Then the cops sent the DNA sample "to the incorrect lab" and the sample was compromised.

So the prosecutor went back to Court (hat in hand, presumably, if the ADAs in Niagara County still wear hats these days), and asked the Court to sign another Order forcing Smith to give another DNA sample. This time, Smith was not provided any notice of the application, and was given no opportunity to be heard in opposition. The judge signed the Order anyway.

New order in hand, the police caught up to Smith on the street in Buffalo. Two officers put Smith into the back of a police cruiser and took him back to the police station. Once at the station, "defendant was placed in a secure room, where he was handcuffed, seated on the floor, and surrounded by three patrol officers and two detectives." When asked to open his mouth so the police could swab his cheek for DNA, Smith refused.

Although the decision from the Fourth Department does not mention it, Smith did a little more than refuse. His exact words were, "You are gonna have to Taser me if you want my DNA." (Hat Tip: Simple Justice, by way of New York Criminal Defense.) To which the cops responded: why didn't we think of that? The officers tased Smith until he opened his mouth and gave the sample.

The trial court refused to suppress the DNA evidence, finding both that it was 1) completely kosher that the second Order compelling Mr. Smith to submit his DNA was obtained without any notice to Smith, and 2) that the police did not use excessive force to obtain the sample.

The Fourth Department, in a thoughtful and strong opinion from Justice Erin Peradotto, disagreed on both scores. On the notice issue, the Court had little trouble holding "it does not elevate form over substance with respect to defendant's due process rights to require the People to provide notice to an uncharged suspect each and every time they seek authorization to invade the individual's body in search of evidence of guilt." Or, waiving your right to object to the invasion of your body for evidence collection one time does not open the door to invasive police conduct in perpetuity.

The Court went on to hold that the use of the taser was "objectively unreasonably under the circumstances," noting:

the record reflects that defendant refused to open his mouth for, at most, 10 to 15 minutes before the police used the taser to force him to do so. Defendant was picked up by the police at approximatley 6:00 p.m., and was tased at 6:18 p.m. During the intervening time, the police drove defendant to the police station, consulted with their superiors, and decided to utilize the taser. We cannot agree with the suppression court that, after 10 to 15 minutes of asking a suspect to comply with a court-order baccal swab of which the suspect had no prior knowledge, it is reasonable for the police to tase a nonviolent, handcuffed, and secured defendant in order to force the suspect into submission.

Congrats to Mark Funk, on the brief for Mr. Smith at the Fourth Department. Mark actually attached a CD of the video of the tasing to his brief (hat tip, again, the Mr. Shiffrin at New York Criminal Defense), and Justice Peradotto noted in the decision that the Court reviewed the video and used it to rebut the People's argument that, you know, getting shocked with a taser isn't so bad in the grand scheme of things.

20 March 2012

Party host not responsible for guest's drunken crash

Martino v Stolzman, 2012 NY Slip Op 01145 [available here]

Under New York's Dram Shop Act, a bar or restaurant is responsible for injuries and mayhem caused by a drunk person if the bar or restaurant continued to serve the drunk person after the person became visibly intoxicated.* A question I get a lot is whether the Dram Shop Act also applies to social hosts who serve alcohol to their private guests.

The short answer is, no. Not unless the party host actually sells the alcohol to his or her guests, or engages in some other illegal activity (like buying and supplying alcohol to under-age drinkers).

This issue came up again recently in Martino v Stolzman, a Court of Appeals decision by way of the Fourth Department. The defendants in Martino hosted a New Year's Eve party at their home. One of their guests became intoxicated,and in the process of backing out of the defendants' driveway, collided with an oncoming vehicle driven by plaintiff.

The plaintiff sued the hosts of the party, arguing a violation of the Dram Shop Act (for serving alcohol to a visibly intoxicated person) and common law negligence (for failing to control the actions of a visibly intoxicated person on their property and for failing to help the intoxicated person back safely out of the driveway).

The Court of Appeals agreed with the Fourth Department that there was no violation of the Dram Shop Act, because there was no evidence that the party hosts were selling liquor. The Court of Appeals further held that the plaintiff could not prove ordinary negligence. While acknowledging that landowners have a duty to "control the conduct of third persons on their premises when they have the opportunity to do so," the accident occurred on a public road, and the defendants "were no longer in a position to control [the drunk guy] when he entered his vehicle and drove away." (Martino, 2012 NY Slip Op 01145.)

The plaintiffs further argued that the homeowners should have stopped the drunk person from leaving their property in the first place. The Court of Appeals would not go that far, holding "requiring social hosts to prevent intoxicated guests from leaving their property would inappropriately expand the concept of duty." (Id.) The Court was likewise reluctant to fault the homeowners for failing to stand at the mouth of their driveway and direct the drunk guest past an alleged view obstruction. Any view obstruction was open and obvious, and a landowner is under no duty to warn of a hazard that is plain for all to see.

So, to recap: a social host may serve a guest alcohol, and is under no duty to prevent a guest from leaving the party. If the party guest is involved in an accident, the party host is not liable for damages. The responsibility for responsible drinking rests with the drinker.

* This is a bit of an oversimplification, but will do for our purposes. Also, you will not be surprised to learn that bars still sell alcohol to drunk people. It is sort of the business model.

29 February 2012

If there is no hot pursuit, police must obtain warrant before they cuff 'em and stuff 'em*

People v Hunter, 2012 NY Slip Op 01298 [4th Dept 2012] [available here]

Back in 2006, Shawn Hunter was convicted of felony drug possession based on a undercover buy-and-bust operation in the city of Rochester. An undercover officer "purchased narcotics from defendant in front of a small apartment building," and then radioed a description of the defendant to his fellow officers. Mr. Hunter ran into the apartment building "where the pursuing officers lost sight of him." The officers set up a perimeter around the building, and "were unable to find defendant upon a search of all but one of the apartments in the building."

Instead of watching the apartment, maintaining the perimeter, and sending an officer to the courthouse for a warrant, the officers kicked in the door to Mr. Hunter's apartment and arrested him. Unfortunately for Mr. Hunter, "the buy money was recovered from defendant after he was placed in custody."

Mr. Hunter moved to suppress the buy money, arguing that the officers needed a warrant before entering his apartment.* The People argued (and the trial court agreed) that the warrantless entry was justified under the "hot pursuit" exception to the warrant requirement, or failing that, that exigent circumstances justified the intrusion.

On appeal, the Fourth Department held that, while it was true that a defendant could not thwart an arrest set in motion on the street simply by successfully fleeing to a private residence, the pursuit must actually be "hot" for the exception to apply. Since there "was no immediate or continuous pursuit of [defendant] from the scene of the crime," the "hot pursuit" exception did not apply.

Likewise, the Fourth Department found that the entry could not be justified under the "exigent circumstances" exception. That exception allows the police to proceed without a warrant if the suspect presents a grave risk of harm to others, or where the suspect will likely escape if not apprehended immediately. Mr. Hunter was suspected (strongly) of selling drugs, but nothing about the crime gave the police any reason to believe that he was armed, or violent. Once the perimeter was established, there was almost no chance he could flee. The buy-and-bust happened on a "weekday afternoon," and it would have been an easy thing to obtain a warrant from a judge before entering the building. Given those facts, there was simply no emergency situation to justify foregoing the warrant and busting the door in.

The upshot of all this is that, after more than six years (all of it spent in prison, presumably), Mr. Hunter's case is sent back to County Court for further proceedings, this time with the buy money suppressed.

* Youtube failed me. This is the best I could do.
** A "warrantless intrusion" into a private residence is "presumptively unreasonable and unconstitutional unless it [is] justified by one of the 'carefully delineated' exceptions to the Fourth Amendment Warrant Clause." I guess it did not stop the police in this case from entering every other apartment in the building before narrowing the search down to defendant's apartment, but hey. Omelettes and eggs, you know?

23 February 2012

91-year old on fixed income loses his house because he can't read

Matter of City of Rochester (Duvall), 2012 NY Slip Op 01315 [4th Dept 2012]

When 91-year old Michael Duvall failed to pay his city taxes, the City of Rochester decided to foreclose on the house Mr. Duvall had lived in since 1964 and sell the house at auction. The amount of taxes owed was a "very small percentage" of the market value of the house.

The City was required to give notice to Mr. Duvall of its intent to take his home. The City sent the required notice by regular mail to Mr. Duvall's address.

One problem: Mr. Duvall is illiterate. One other problem: the City knew that Mr. Duvall was illiterate, and therefore would not be able to read the notices that the City sent.*

Mr. Duvall did not respond to the notice of foreclosure, and the house was sold. To the City.

Unaware that his house had been sold out from under him, Mr. Duvall continued to live at the residence until a process server showed up at his door with a notice to quit.** Mr. Duvall had the process server read the notice to him, and for the first time learned that his house had been sold based on unpaid taxes. Mr. Duvall had his attorney contact the City and offer to pay the back taxes to stay in the home, but was told it was too late to undo the foreclosure.

Mr. Duvall appealed to the Fourth Department, arguing that because the City knew Mr. Duvall was illiterate, simply sending a notice to his home by regular mail was not reasonably likely to give him notice of the impending loss of his house, and therefore violated his due process rights. The Fourth Department upheld the foreclosure, finding that it "was reasonable for [the City] to believe that petitioner had someone read his mail to him" and that requiring a municipality to "provide notice other than by ordinary mail to persons it knows to be illiterate, or who it knows cannot read English, would place an unreasonable burden on the municipality."

Justices Fahey and Sconiers dissented, noting that the City could not have possibly believed that a simple letter would be enough to inform the "elderly, illiterate petitioner that his house was in foreclosure," and that the lower court should have exercised its wide discretion and allowed Mr. Duvall to stay in his house. The dissenters concluded, "it is not our responsibility to prescribe the form of notice to be provided to petitioner, [but] we are confident that there were reasonable steps respondent could have taken to inform petitioner of his tax delinquency."***

* This whole situation could have been avoided if the City of Rochester would just use Howlers for all official notices.
**A notice to get out, basically.
***I think we all know what "reasonable steps" the Justices would recommend. See asterick 1, supra.

21 February 2012

Why people hate lawyers (OM NOM NOM)*

Matter of Manufacturers & Traders Trust Co., 2012 NY Slip Op 01297 [4th Dept 2012] [available here]

If the principal beneficiary** of a trust dies, the trustee will petition the Surrogates Court to wind up the trust and distribute whatever money is left to the remainder beneficiaries*** of the trust. In this case, one of the remainder beneficiaries (apparently) was unable, by reason of age or incapacity, to advocate for himself. So the Surrogates Court appointed a law guardian (or guardian ad litem if you want to be all fancy and Latin about it) to make sure the interests of the remainder beneficiary were well represented before the Court.

At the end of the day, the remainder beneficiary was awarded $3,179. Not too shabby. The Law Guardian then asked the Court to pay his legal fee for services rendered to secure his client the $3,000 pay day. The fee? A cool $12,000, or almost four times what his client received as a result of his efforts.

The Fourth Department vacated the attorney's fees award, noting that a law guardian is only entitled to a "reasonable fee," and the reasonableness of the fee must be determined by the time spent on the matter, the complexity of the issues involved, and "the results obtained." The Law Guardian's application for fees simply alleged that he spent "42 hours on the matter," without specifying his hourly rate or otherwise justifying his fee.

Only a lawyer would think a $12,000 fee was reasonable when the client walks away with $3,000.****

*The sound the Cookie Monster makes when demolishing cookies. Used here to denote unchecked avarice in a context not involving baked goods and puppets.
** The principal beneficiary is the person the trust is set up to benefit. This person usually draws an income from the trust while he or she is alive.
*** There is typically money left in trust when the principal beneficiary dies. The person who set up the trust in the first place usually designates a person or persons (or a cat shelter, or whatever) to receive what is left when the trust ceases to fulfill its purpose and is dissolved.
**** I know, a bad result does not necessarily reflect on the effort expended. But. Come on.

10 February 2012

Why people hate lawyers (I'm suing the Internets!)

Paul Schimmel & Port Salem Pharmacy Corp. v YouTube, Inc. & YouTube, LLC, 2012 NY Slip Op 50133[U] [NY Sup Ct Nassau County 2012] [available here]

The anonymity conferred by the internet can bring out the worst in people, providing cover for sharp-tongued trolls to slander and defame at will. So what do you do if an anonymous video is posted on Youtube that unfairly slanders you and your business? Do you contact Youtube and ask that the video be removed? (Not a bad start.) Do you subpoena Youtube and get the information for the person that posted the offending video? (Maybe.)

Or do you do you find an attorney willing to sue Youtube for $5,000,000?

Paul Schimmel, a pharmacist, chose the latter course. The video in question was titled "CHEATING PHARMACIST," and identified "Plaintiff, Paul Schimmel, and [...] PORT SALEM PHARMACY CORP., in large print thereby implying that both Plaintiffs are 'cheaters' and therefore are dishonest, disreputable and should not be trusted." (Paul Schimmel & Port Salem Pharmacy Corp. v YouTube, Inc. & YouTube, LLC, 2012 NY Slip Op 50133[U].) Sadly, the video has been taken down from Youtube. But it must have been bad, as the plaintiffs alleged they "lost business and suffered damages of not less than $5,000,000" as a result of the video.

The video in question was posted in October, 2008. The statute of limitations for defamation (at least in New York) is one year. The plaintiff sued Youtube on December 15, 2010.

Perhaps realizing that, you know, you can't really sue Youtube for defamation based on the contents of a video hosted on Youtube, Plaintiffs never actually served Youtube with the lawsuit*, and eventually asked the Court "to voluntarily discontinue the action" against Youtube. Instead, the Court dismissed the lawsuit outright, noting (quite sensibly) that you cannot discontinue that which was never properly commenced in the first place.

The plaintiffs also asked the Court for permission to "amend the caption to add Defendants, JOHN DOE and JANE DOE," presumably to act as placeholder names while plaintiffs tracked down the person or persons responsible for posting the "Cheating Pharmacists" video in the first place. The Court (again quite reasonably) held that an amendment is not appropriate where the plaintiffs made no effort to identify the person who posted the video before suing Youtube, and that in any event any action sounding in defamation, against any person or entity, would be time-barred under the applicable statute of limitations.

It is understandable that the pharmacist was pissed off, and wanted to sue Youtube, the Internets, John and Jane Doe, and anybody else who had anything to do with the "Cheating Pharmacist" video. What I don't understand is how the pharmacist actually found an attorney willing to file the lawsuit in the first place.

* In New York, a lawsuit is commenced by filing the summons and complaint with the County Clerk, and then serving a copy on the person or entity you are suing. Both steps must be completed to properly commence an action.

08 February 2012

More fine print (the Man wins one)

Creditone, LLC v Feldman, 2012 NY Slip Op 50136[U] [NY Sup Ct NY County 2012][available here]

Following my prior post on small print in consumer credit contracts, comes a decision out of New York County, dealing with the same CPLR section but coming to a different conclusion. The defendant in Creditone obtained and used a business credit card, ran up about $20,000 in charges, and then failed to pay the bill. The credit card company sued, and asked the Court for summary judgment.

At issue was whether the defendant was personally liable for the credit card debt, or whether the credit card company was limited to suing the (now defunct) corporation. There was no dispute that the defendant applied for credit in the name of the business, but the credit card agreement itself expressly stated that, in addition to the business, the "person who applied for the account" was also personally liable for charges made on the card.

The defendant argued that the language in the contract was not admissible against her, because (you guessed it) the type was smaller than the 8-point font required by CPLR 4544. While acknowledging the CPLR provision requiring the text of consumer credit contracts to be at least 8-point type size, the trial court noted that "it is the burden of the party objecting to the credit card agreement to prove that the credit card agreement violates the type-size requirements of CPLR 4544," and the defendant "failed to satisfy her burden on this defense as she has not provide a copy of said Agreement, with the alleged defective font size, or specify the size of the font used in the Agreement."

Compare to the facts of Glick (here), where at least the Court had a copy of the agreement at issue and could eye-ball that the font was too small.