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.
29 May 2012
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.
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
AD4: HGN AOK
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:
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.
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:
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.
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.
Subscribe to:
Posts (Atom)