In New York, the direct penalty for possessing a very small amount of un-burned marijuana is slight. Unlawful Possession of Marijuana (UPM) is a violation, not a crime, and the maximum penalty for a first-time offense is $100.* However, given that a UPM charge is probably where most otherwise-law-abiding high school and college kids will intersect with the criminal justice system, there is one more important consequence to consider before pleading guilty, handing your Ben Franklin over to the friendly Town Court clerk, and going on your way.
A UPM conviction could result in a suspension of federal financial aid for college students. Under 20 USC 1091[r][1], any conviction for simple drug possession "during a period of enrollment" results in ineligibility for federal financial aid. The period of ineligibility is 1 year for a first offense, 2 years for a second offense, and indefinite ineligibility for a third offense.
Losing federal financial aid eligibility for getting caught with a joint is a bit draconian, but it is a very real consequence that a student facing a UPM charge needs to be aware of.
* Second offense is a higher fine, and a third offense carries potential jail time.
23 April 2011
13 April 2011
Give 'em the Boot
Webb v Salvation Army, 2011 NY Slip Op 02592 [available here]
This just in: we live in litigious times. Case in point: a customer sued the Salvation Army "seeking damages for injuries she sustained when she fell in defendant's parking lot after stepping on a small boot of a doll." The boot "measured 1.75 inches in both height and width."*
And here's the kicker: the trial court refused to grant the defendant store summary judgment (i.e. refused to toss out the plaintiff's case) . . . and the Fourth Department affirmed. Meaning that, at some point next fall, a jury in Buffalo will be treated to a full-blown trial about the perils of ill-laid doll accessories.
To be fair to the Fourth Department, it was bound by the defendant's concession that "the doll boot constituted a dangerous condition." And the Court did toss out plaintiff's cause of action based on inadequate lighting in the parking lot, holding that the plaintiff acknowledged "she was not looking down as she was walking and that she had walked only a 'little distance' after getting out of the vehicle before she fell."
The surviving issue for trial is whether "the doll boot had . . . been in the parking lot for a sufficient period of time to permit an employee to discover and remove it."
* The doll settled with plaintiff after completion of discovery and therefore was not a party to the appeal.
This just in: we live in litigious times. Case in point: a customer sued the Salvation Army "seeking damages for injuries she sustained when she fell in defendant's parking lot after stepping on a small boot of a doll." The boot "measured 1.75 inches in both height and width."*
And here's the kicker: the trial court refused to grant the defendant store summary judgment (i.e. refused to toss out the plaintiff's case) . . . and the Fourth Department affirmed. Meaning that, at some point next fall, a jury in Buffalo will be treated to a full-blown trial about the perils of ill-laid doll accessories.
To be fair to the Fourth Department, it was bound by the defendant's concession that "the doll boot constituted a dangerous condition." And the Court did toss out plaintiff's cause of action based on inadequate lighting in the parking lot, holding that the plaintiff acknowledged "she was not looking down as she was walking and that she had walked only a 'little distance' after getting out of the vehicle before she fell."
The surviving issue for trial is whether "the doll boot had . . . been in the parking lot for a sufficient period of time to permit an employee to discover and remove it."
* The doll settled with plaintiff after completion of discovery and therefore was not a party to the appeal.
11 April 2011
Fourth Department stats and case summaries
The Hiscock Legal Aid Society has a great, useful blog that breaks down each packet of decisions from the Fourth Department, with full stats and case summaries (here). If you have a criminal appeal pending, and want to be depressed, check out the reversal rate from the first quarter of 2011 (80% affirmed, about 5% reversed or dismissed).
07 March 2011
8 years
In answer to the post below and the poll to the left, the real-life Becky was sentenced as an adult after her assault conviction, and is currently serving an 8-year prison sentence. As the New York Times notes in an article up today (here), by the end of the year New York will probably be one of only two states in the nation that still allow 16-year-olds to be sentenced as adults. The article cites "studies that concluded that older adolescents differed significantly from adults in their capacity to make sound decisions, and benefited more from systems focused on treatment rather than on incarceration."
It is hard to know what the judge was thinking in Becky's case. The probation department, after reviewing all of the facts and interviewing both Becky and the victim, concluded that a probation sentence with youthful offender treatment was appropriate. But the probation folks don't wear black robes, and the department's recommendation was ignored in Becky's case.
I'm working on the appeal for "Becky," and will be arguing it later this year. Hopefully we'll have better luck with the judges down on East Avenue than we did at the Hall of Justice.
It is hard to know what the judge was thinking in Becky's case. The probation department, after reviewing all of the facts and interviewing both Becky and the victim, concluded that a probation sentence with youthful offender treatment was appropriate. But the probation folks don't wear black robes, and the department's recommendation was ignored in Becky's case.
I'm working on the appeal for "Becky," and will be arguing it later this year. Hopefully we'll have better luck with the judges down on East Avenue than we did at the Hall of Justice.
03 March 2011
Guess that sentence
Consider the following facts, and pay attention: there is a quiz (of sorts) at the end. It is about 8:30pm on a Saturday night. A 16-year old girl--we'll call her Becky--is at an all-ages event at a downtown Rochester night club. No alcohol, no drugs, just a bunch of local high school kids listening to DJs and dancing. Becky is with one of her friends. Let's call the friend Kate. For the first half-hour or so the night is uneventful. Becky and Kate dance and have a good time.
Then, Kate sees a girl from her school--we'll call this other girl Jane. Kate has issues with Jane. Just a few weeks ago, Kate was suspended for fighting with Jane in school.
Kate and Jane start talking trash to each other. Jane advances toward Kate, and then, well, all hell breaks loose. Piecing the exact sequence of events together after the fact is all but impossible; Becky's friends say one thing, Jane's friends say another. But everyone agrees that when the dust settles, Jane is bleeding from her right eye. Jane is taken to the hospital, and later that night loses her sight in that eye. She never gets it back.
According to Jane, Becky hit her in the face with a stiletto heel. Jane's eye injury is consistent with a thin heel penetrating the space between the eye and the orbital bone, right near the bridge of the nose. Jane's optic nerve was crushed, causing the loss of vision.
Becky is arrested and charged with felony assault. A jury hears from Jane and her friends, and ultimately believes Jane's version of events. Becky is convicted of felony assault.
Now the question: what is a fair punishment for Becky? She has no criminal record. She has never been arrested and has no history of violence. She was 16 years old at the time of the fight. She was out of jail while the trial was pending, and did all the right things: continued her education, went to counseling. On the other hand, Jane is blind in one eye, and Becky has been convicted of causing her injury.
So you are the judge: what sentence do you impose?
You could adjudicate Becky a youthful offender. If you do that, Becky will not have a felony on her record. The YO sentence can be anything from probation to 1 1/3 to 4 years in prison.
Or, you can sentence Becky as an adult. The felony will stay on her record. The minimum prison sentence is 5 years; the max is 25.
You can vote in the poll over to the left. The fact pattern is based on a real case. I'll reveal the sentence the real-life Becky is currently serving next week.
01 March 2011
SCOTUS: Dying victim's ID of shooter not testimonial; Scalia goes appropriately crazy in dissent
Michigan v Bryant, __ US ___, 09-150 [available here]
In a 6-2 decision, the Supreme Court yesterday held that a dying shooting victim's identification of his shooter, in response to direct police questioning, is not "testimonial" under Crawford and its progeny, and therefore the officer's testimony about the identification did not violate the Confrontation Clause. The majority (in a decision written by Justice Sotomayor) holds that the primary purpose of the officer's questioning was not to elicit testimony or develop evidence that could be used to prosecute the shooter, but rather to meet an ongoing emergency, i.e. to apprehend the shooter and to protect the public from a gun-toting fugitive.
Justice Scalia--proud poppa of Crawford and chief architect of the recent Confrontation Clause jurisprudence-- calls shenanigans in a blistering dissent. He calls the majority's interpretation of the facts "so transparently false that professing to believe it demeans this institution . . . In its vain attempt to make the incredible plausible, today's opinion distorts our Confrontation Clause jurisprudence and leaves it in shambles."
The New York times has an article up about the decision here.
In a 6-2 decision, the Supreme Court yesterday held that a dying shooting victim's identification of his shooter, in response to direct police questioning, is not "testimonial" under Crawford and its progeny, and therefore the officer's testimony about the identification did not violate the Confrontation Clause. The majority (in a decision written by Justice Sotomayor) holds that the primary purpose of the officer's questioning was not to elicit testimony or develop evidence that could be used to prosecute the shooter, but rather to meet an ongoing emergency, i.e. to apprehend the shooter and to protect the public from a gun-toting fugitive.
Justice Scalia--proud poppa of Crawford and chief architect of the recent Confrontation Clause jurisprudence-- calls shenanigans in a blistering dissent. He calls the majority's interpretation of the facts "so transparently false that professing to believe it demeans this institution . . . In its vain attempt to make the incredible plausible, today's opinion distorts our Confrontation Clause jurisprudence and leaves it in shambles."
The New York times has an article up about the decision here.
25 February 2011
CA Decision Dump: groping, insurance fraud, and gun scuffles
A quick download of the latest batch of decisions from the Court of Appeals before we take this thing into the weekend:
People v Boothe, 2011 NY Slip Op 01365 [available here]
In a decision by Judge Pigott, the Court holds that ripping off Medicaid is not punishable as a "fraudulent insurance act" under the Penal Law because "the Legislature plainly failed to criminalize the conduct at issue." It probably should be a crime, but the Legislature screwed up when it drafted the legislation that attempted to include Medicaid fraud in the crime of insurance fraud. The Court was simply not willing to re-write the law to fix what is pretty clearly a legislative oversight.
People v Alonzo, 2011 NY Slip Op 01363 [available here]
"[W]here the evidence before a grand jury shows a single, uninterrupted attack in which the attacker gropes several parts of a victim's body, the attacker may be charged with only one count of sexual abuse." So says a unanimous Court, in an opinion by Judge Smith. To hold otherwise "would offer a temptation to abuse: Where there were 10 swings of a fist, a prosecutor might obtain 10 convictions growing out of a single incident--and could even seek 10 consecutive sentences."
People v Smith, 2011 NY Slip Op 01364 [available here]
A majority of the Court affirms defendant's conviction for assault in the first degree, rejecting defendant's argument that he was denied his right to present a defense when the trial court prevented his attorney from arguing to the jury during summation that the shooting occurred when the defendant and the alleged victim were wrestling over the gun, and that it was the victim who first produced the gun. According to the majority, "the jury heard no evidence from which it would be reasonable to conclude that the gun was first displayed by the victim." Any error in precluding argument that the shooting occurred while the defendant and victim were scuffling over the gun was harmless.
Judge Jones wrote a long dissent. Defense counsel should be given wide latitude to argue on behalf of his or her client during closing argument, and if the evidence or any favorable inference supports the argument, it should be allowed. In the case at hand, according to Judge Jones, the evidence "lent itself to several interpretations" and the trial court's ruling deprived the jury "of an opportunity to accept or reject the theory defense counsel sought to advance--an argument that could have sharpened and clarified the issues for resolution by the jury."
Fieldston Property Owners Association, Inc. v Hermitage Insurance Company, Inc., 2011 NY Slip Op 01361 [available here]
In an appeal in declaratory judgment action to determine the rights of two insurers--Hermitage and Federal--regarding their respective responsibility for the cost of defending a mutual insured, the Court holds that "Hermitage had the primary duty to defend" the mutual insured "to the exclusion of any duty owed by Federal." Luckily for me, my friend and former colleague Kevin Merriman has a full dissection of the opinion up at National Insurance Law Forum (here).
People v Boothe, 2011 NY Slip Op 01365 [available here]
In a decision by Judge Pigott, the Court holds that ripping off Medicaid is not punishable as a "fraudulent insurance act" under the Penal Law because "the Legislature plainly failed to criminalize the conduct at issue." It probably should be a crime, but the Legislature screwed up when it drafted the legislation that attempted to include Medicaid fraud in the crime of insurance fraud. The Court was simply not willing to re-write the law to fix what is pretty clearly a legislative oversight.
People v Alonzo, 2011 NY Slip Op 01363 [available here]
"[W]here the evidence before a grand jury shows a single, uninterrupted attack in which the attacker gropes several parts of a victim's body, the attacker may be charged with only one count of sexual abuse." So says a unanimous Court, in an opinion by Judge Smith. To hold otherwise "would offer a temptation to abuse: Where there were 10 swings of a fist, a prosecutor might obtain 10 convictions growing out of a single incident--and could even seek 10 consecutive sentences."
People v Smith, 2011 NY Slip Op 01364 [available here]
A majority of the Court affirms defendant's conviction for assault in the first degree, rejecting defendant's argument that he was denied his right to present a defense when the trial court prevented his attorney from arguing to the jury during summation that the shooting occurred when the defendant and the alleged victim were wrestling over the gun, and that it was the victim who first produced the gun. According to the majority, "the jury heard no evidence from which it would be reasonable to conclude that the gun was first displayed by the victim." Any error in precluding argument that the shooting occurred while the defendant and victim were scuffling over the gun was harmless.
Judge Jones wrote a long dissent. Defense counsel should be given wide latitude to argue on behalf of his or her client during closing argument, and if the evidence or any favorable inference supports the argument, it should be allowed. In the case at hand, according to Judge Jones, the evidence "lent itself to several interpretations" and the trial court's ruling deprived the jury "of an opportunity to accept or reject the theory defense counsel sought to advance--an argument that could have sharpened and clarified the issues for resolution by the jury."
Fieldston Property Owners Association, Inc. v Hermitage Insurance Company, Inc., 2011 NY Slip Op 01361 [available here]
In an appeal in declaratory judgment action to determine the rights of two insurers--Hermitage and Federal--regarding their respective responsibility for the cost of defending a mutual insured, the Court holds that "Hermitage had the primary duty to defend" the mutual insured "to the exclusion of any duty owed by Federal." Luckily for me, my friend and former colleague Kevin Merriman has a full dissection of the opinion up at National Insurance Law Forum (here).
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