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.