01 November 2012
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?
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?
(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:
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.
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#1
(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.
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.
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.
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.
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