Defense Attorneys Are Ineffective When They Fail to Advise Clients of Clear Immigration Consequences of A Plea

As detailed at New York Criminal Law and Procedure the United States Supreme Court in a decision authored by Justice Stevens held that as a matter of federal constitutional law, attorneys have a professional duty to advise their clients of immigration consequences, at least when those consequences are clear. Even when federal law is not so clear, an attorney still has a duty to advise the client that deportation "may" result from a guilty plea. This, of course, is a very different holding and standard than the New York Court of Appeals had set forth in People v Ford (86 NY2d 397) in which the Court held that while it is ineffective assistance to affirmatively give bad advice on the immigration consequences, attorneys need not say anything.

New York's Persistent Felony Offender Sentencing Law Ruled Unconstitutional

A discussion of an important decision regarding the constitutionality of New York’s persistent felony statute requires focus on persistence. For years, Andrew C. Fine of the Appeals Bureau of the Legal Aid Society of New York had urged that the New York persistent felony statute unconstitutionally deprives a defendant of the right to have each fact which increased the penalty a defendant faced to be submitted to a jury and proved beyond a reasonable doubt. In part, Mr. Fine twice challenged the statute at the New York Court of Appeals (People v Rosen, 96 NY2d 329 [2001] and People v Daniels, 5 NY3d 738 [2005]), and at the Second Circuit (Brown v Greiner, 409 F3d 523 (2d Cir 2003]). He also kept advising defense attorneys at numerous CLE presentations and in written practices guides that, despite the holdings of the New York Court of Appeals rejecting these arguments, the issue was still unsettled and should still be raised so that eventually the clients would be eligible for relief when federal appellate courts finally decided the issue.

Mr. Fine’s persistence paid off. He was one of the winning attorneys in the consolidated decisions in Besser v Walsh, _F3d_ [2d Cir 3/31/10]) in which the United States Court of Appeals for the Second Circuit struck down New York's persistent felony offender law as unconstitutional, holding that “the New York courts’ upholding of the constitutionality of the New York state persistent felony offender statute after the United States Supreme Court’s decision in Blakely v Washington (542 US 296 [2004]), was an unreasonable application of clearly established Sixth and Fourteenth Amendment law.”

Trial Tips For Drug Cases with Undercover Officers

More tips from an experienced and successful attorney who wishes to be unnamed:

In an undercover cop case, it's helpful to know their procedures. With hand to hand sales, usually the undercover is dropped at or near a location by other members of the team. Sometimes they drive by and make a purchase from the car. They wear electronic recording devices called Kel Kits which are monitored by the back-up team. The undercover walks up to someone, makes a transaction, and then when the are out of earshot call out to the team "done deal". They have a code word to use during the transaction if they get in trouble. The team will then send in uniforms or perhaps other undercovers to grab the suspects. The undercover will drive by in an unmarked car with another officer (who will probably radio the uniforms that they're coming so the undercover's voice isn't recognized). The ID is done while moving - driving by, as the suspect(s) are on the sidewalk, perhaps with a grass median between the sidewalk and the street. Although the undercover team will claim there was nothing obstructing the view of the undercover officer, the uniforms or other undercovers will most likely pull up to the address where the buy took place (instead of down the street, giving notice to the suspects and an opportunity to run). A uniformed cop may testify to this. The undercovers won't. Although the
officers may have a description of the seller, they may grab everyone in the area whether or not they match the description, and put them in the show up.

Undercover officers have access at RPD to surveillance equipment, and do use it in a variety of circumstances (which they will claim don't apply in your hand to hand sale case). They have unmarked cars and vans outfitted to look like civilian vehicles, from which audio or video can be used to record what's going on. They have mini video recorders which look like buttons that they can wear on their clothing. These can be things you can use to argue that there was a lack of evidence in your case.

If the officer claims he was in danger, and that's why he didn't observe the discrepancies in clothing or appearance between what he called out and what your client looks like, consider whether the recording reflects a fearful tone, whether the code word was used (it wasn't or the team would have come in) and whether, since the officer knew his fellow officers would be responding and wouldn't want to endanger them, the undercover officer called out on the recording used to ensure the safety of officers (remember, that's the reason they use it - at least that's what they say to explain why details of descriptions aren't important) to other officers
about the particular menace or danger of this individual.

If yours is an ID case - they grabbed and identified the wrong guy when the back up team came in - consider the time between when the sale occurred and when the arrests happened. If the recording indicates a particular time that the detail commenced, the cop may claim that they paused the tape. Listen for any pauses, and be aware that they may come up with this. And listen for the DA's direct, "directing your attention to (date) at (time), what were you doing? Which time did the DA open and question on? Consider when the back up team was asked to be in the area.

Tips on Jury Selection For Defense Attorneys

These suggestions were passed on to me by an excellent, experienced attorney who wishes to remain anonymous:

1. In jury selection you will be engaging in several efforts at once -picking the jurors who are best for your case, educating the jury, developing your challenges for cause, figuring out who these people are, and letting the jury know you are way cooler than the DA. On challenges for cause, when you develop them the judge may swoop in and try to rehabilitate the juror by asking, "You will follow my instructions, won't you?" in some menacing fashion from on high, black robe billowing. If this happens during your voir dire, you can may still be able to ask the juror afterwards about his or her original concerns, and revive the challenge. If a juror says "I think I can be fair" or answers the judge's questions (or yours or the DA's) in an equivocal way that's not enough to avoid the challenge for cause. (People v Arnold [96 NY2d 358, 363]). Make sure that your challenge is on the record - in case the judge incorrectly denies the challenge.

If a judge tries to rehabilitate the jurors as a group with general questions after you're done, you should object or oppose this, and ask for the judge to do individual voir dire as to the individual issues. If the judge refuses to do that, you may have an issue to preserve. More on that below. You should also ask for an opportunity to question the jurors again if the judge rehabilitates them. Yes, t.This may irritate the judge, but that's not the goal. If the judge doesn't let you question after the judges' questions, in the next pass (if there is one) ask the jurors, if they have expressed a concern that presents a challenge for cause, to remember that concern if the judge asks them at the end of your questions whether they can follow his/her instructions.

If you have a challenge for cause issue you want to preserve for appeal (meaning that you believe that the court incorrectly denied a challenge),
YOU MUST EXHAUST YOUR PEREMPTORY CHALLENGES.
Be aware, this can be scary stuff. You have to use all your perempts, but you don't want to have lots of jurors left to select when you do this (unless it's a case you are unlikely to win and this is your best issue). You may wind up where the DA has challenges left and you don't. So you'll have to weigh how important preservation of this issue is against what your jury pool is looking like and your feelings
about the case.

2. Jury instructions: As you try more cases, you will learn about the different kinds of jury instructions you may request. It's worth taking a look at the CJI and scanning the charges of general applicability. (http://www.nycourts.gov/cji/index.htm). You can weave some of the language and issues into your cases.

Among the charges you should check out: (I'm not sure if these are the
exact titles in the CJI)
1. Credibility - this will almost always be read to the jury. It helps to know what the jury will be hearing
2. Expanded identification - one witness identification case - you should request this instruction in a one witness ID case.
3. Circumstantial evidence - moral certainty - read this one.
4. Drug trafficking expert - for when the cop testifies as an expert, this instruction reminds the jurors a cop is still just another witness who can be believed or not
5. Consciousness of guilt
6. Failure to promptly complain
7. Justification - regular and use of deadly physical force.
8. Missing witness

Many charges have legal requirements you must meet in order to get the charge. Sometimes judges mix them up. If you are basing your case on a charge, or part of your defense on a charge, such as missing witness, justification, failure to promptly complain, identification, make sure you read the case law about when you're entitled to that charge (or ask one of the more experienced attorneys to give you the cases or point you in the right direction). Please be aware, with respect to justification, that if the court concludes that you're not entitled to the charge based on the body of law on justification (and courts will reach this conclusion at
times) you won't get the charge. With missing witness, even if the judge doesn't give the charge, you can still argue it. Also with missing witness - careful what you wish for - you have to ask for it at an early enough point in the case that the DA can have the opportunity to bring the witness in. And they might. (For specific phrasing on the timing requirements, check the case law.)

Please also be aware that if you put on a case, the DA may seek a missing witness charge against you if there's a witness you didn't call, who was not cumulative, who would be expected to testify for you, and who was available.

Identity Information In DMV Records Not Suppressible As Fruit Of Illegal Stop

In People v Tolentino (2010 NY Slip Op 02643 [NY [3/30/10]) the Court of Appeals held that when a defendant alleges that he was subject to an illegal traffic stop, he is not entitled to suppression of DMV records DMV records obtained through the police stop and inquiry of the driver. The Court held that such records are not subject to the exclusionary rule when the only link between the police conduct and the evidence is that the police learned a defendant's name. Further, the Court held that DMV records are not subject to suppression since they are government records compiled independently of defendant's arrest. Consequently, the issue of whether the defendant was unlawfully stopped, and as a result of the stop the police determined that he was driving with a suspended license, need not be litigated at a pre-trial hearing. Judges Ciparick wrote a dissent, in which Chief Judge Lippman joined urging that the deterrent purpose of the exclusionary rule should be applicable to identity-related evidence.

DiscoverReady

DiscoverReady was one of the few chop shops in town offering project work last week, and I wouldn't be surprised if they were inundated with 10,000 resumes. All this for a job that is expected to last less than two weeks, where your cell phone is confiscated at the sweatshop door, and where you are lucky to scrape by with 40 hours per week. Welcome to the new reality. Recently, the ABA sponsored a presentation discussing how outfits like DiscoverReady are the wave of the future:

http://www.abajournal.com/news/article/majority_say_law_practice_is_undergoing_a_sweeping_evolution_survey_says

As we have been saying for years, welcome to the Wal-Martization of the so called profession of law, where obscene partner profits and rock bottom freelancing rates are the rule of the day.

As Kaye Scholer partner James Blank is quoted as saying in the study,“you just don’t need the bodies and man hours to get answers anymore. E-Discovery tools have eliminated the need to have junior associates review boxes of documents, which is why you are seeing thousands [of] junior associates laid off.”

E-Discovery tools, Mr. Blank? By tools, are you referring to cheap offshore human labor? While Mr. Blank and the offshore discovery vendors bask under the green shade of the money tree (DiscoverReady's emblem is the money tree, by the way), American law graduates suffer through the autumn of despair, with sky high student loan debt and a lack of jobs.

In Absentia SORA Hearing Error Absent Proof of Notice of Hearing

Due process applies to SORA hearings. Thus, in People v Distaffen (2010 NY Slip Op 02634 [4th Dept 3/26/2010]), "[t]he People candidly conceded "that County Court violated the due process rights of defendant when it held the SORA hearing in his absence without verifying that he had received the letter notifying him of the date of the hearing and his right to be present (citations omitted)." The Court therefore reversed the order and remit the matter to County Court for a new hearing and risk level determination in compliance with Correction Law § 168-n (3).

Jurors Who Would Favor The Testimony of Police Are Not Qualified To Serve

In People v Arnold (96 NY2d 358, 363) the Court of Appeals held that when a prospective juror makes a statement or statements that "cast serious doubt on [his or her] ability to render an impartial verdict" (People v Arnold, 96 NY2d 358, 363), that prospective juror must be excused for cause unless he or she provides an "unequivocal assurance that [he or she] can set aside any bias and render an impartial verdict based on the evidence" While no "particular expurgatory oath or talismanic' words [are required,] . . . jurors must clearly express that any prior experiences or opinions that reveal the potential for bias will not prevent them from reaching an impartial verdict" (Arnold, 96 NY2d at 362). In People v Lewis (2010 NY Slip Op 02624 [4th Dept 3/26/10])the Fourth Department applied Arnold in the context of the common situation in which prospective jurors state that they would tend to favor the testimony of police witnesses over that of other witnesses:

During voir dire, one of the prospective jurors stated that, as a result of her close association with police officers in the course of her work as a loss prevention officer, she would "probably take the word of a cop" over "the word of somebody else." When defense counsel asked that prospective juror whether she would "tend to give the——the cop the edge on who's telling the truth," she responded, "I would lean that way, yes." There is no question that those statements cast serious doubt on the prospective juror's ability to render an impartial verdict (citations omitted), and the prospective juror failed to provide "unequivocal assurance that [she could] set aside any bias and render an impartial verdict based on the evidence" (citation omitted). The prior collective acknowledgment by the jury panel that the panel members would decide the case solely on what they heard and saw in the courtroom and not based upon any relationships with law enforcement "was insufficient to constitute such an unequivocal declaration" (citations omitted).
With respect to the second prospective juror, the record reflects that she expressed uncertainty about her ability to be fair and impartial as a result of her close relationships with members of law enforcement. When defense counsel attempted to explore the prospective juror's apparent reservations, the court precluded any further inquiry on the matter. Although there is no question that a trial court "necessarily has broad discretion to control and restrict the scope of the voir dire examination" (People v Boulware, 29 NY2d 135, 140, rearg denied 29 NY2d 670, cert denied 405 US 995; see People v Habte, 35 AD3d 1199), we conclude under the circumstances of this case that the court erred in failing to permit defense counsel to conduct further questioning of the prospective juror to determine whether she could provide an "unequivocal assurance" of her ability to render a fair and impartial verdict, or to excuse the prospective juror for cause(citations omitted).

Importantly the reason that the Court was able to reverse was that the defendant had exhausted all of his peremptory challenges before the completion of jury selection.

Evidentiary Errors Lead To Reversal of Sex Crime Conviction

In a rape and sexual abuse trial the trial court refused to allow the defendant to cross-examine the complainant regarding a baseless similar complaint that she had previously made. On the other hand, without a Ventigmigla hearing, the court permitted the People to introduce evidence that the defendant had told the police that, "in the past[,] he had tried forcing sex from women." In People v Loftin (2010 NY Slip Op 02619 [4th Dept 3/26/10] the Appellate Division, Fourth Department held that both of these rulings were error, the impact of which required reversal:

We agree with defendant, however, that County Court erred in precluding him from cross-examining the victim with respect to the petit larceny charge. According to that charge, the victim had assaulted and robbed an ex-boyfriend but subsequently reported to the police that it was the ex-boyfriend who had assaulted her. Those allegations are similar to allegations made by defendant in the instant case, and thus defendant sought to cross-examine the victim concerning that charge "in good faith and with a reasonable basis in fact" (People v Jones, 24 AD3d 815, 816, lv denied 6 NY3d 777). Although the charge against the victim was adjourned in contemplation of dismissal prior to the commencement of defendant's trial, that does not constitute a dismissal on the merits, and it therefore does not "negate the elements of good faith and [basis in fact]" (id.). Under the circumstances of this case, "where the issue of the credibility of defendant vis-À-vis the prosecution witnesses [is] crucial,' " we cannot conclude that the court's error is harmless (People v Ayrhart, 101 AD2d 703, 704; see generally People v Crimmins, 36 NY2d 230, 237).

We further agree with defendant that the court erred in failing to conduct a Ventimiglia hearing with respect to his statements to police that, "in the past[,] he had tried forcing sex from women" and that "it was difficult to take sex if they didn't want to give it up." Although defendant failed to preserve his contention for our review inasmuch as he failed to object to the admission of testimony concerning those statements (see People v Powell, 303 AD2d 978, lv denied 100 NY2d 565, 1 NY3d 541), we nevertheless exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]; cf. People v Johnson, 233 AD2d 887, lv denied 89 NY2d 1095). The court was required to determine whether the probative value of those statements outweighed the potential for prejudice inasmuch as those statements were not admissions related to the instant charges but, rather, they constituted evidence of prior bad acts (see People v Robinson, 202 AD2d 1044, lv denied 83 NY2d 1006). . In light of the importance of the witnesses' credibility in this case, as noted above, we cannot conclude that the court's error is harmless (see generally Crimmins, 36 NY2d at 241-242; People v Moore, 59 AD3d 809, 811-813).

Appellate Division Orders Defendant Restored To Probation After Revocation by Lower Court

Although the lower court had not abused its discretion in revoking the sentence of probation based upon defendant's admitted violations thereof, the Fourth Department in People v Rapone (2010 NY Slip Op 02611 [4th Dept 3/26/2010])reversed that court's revocation of probation based on a probation violation and its imposition of a prison sentence, and ordered that the sentence of probation originally imposed be continued. The keys facts are as follows:

The original sentence imposed by the court required that he complete 1,000 hours of community service within two years of his release from jail. In November 2006, the community service program advised the court that it had no available placement for defendant based on his physical and mental limitations, and the court took no action at that time. In February 2008, however, a violation of probation petition was filed, alleging that defendant tested positive for cocaine and possessed a driver's license in violation of the terms and conditions of his probation. The petition did not mention defendant's failure to complete the required community service. Defendant admitted his commission of the two violations set forth in the petition, in exchange for a sentencing promise of imprisonment of 1 to 3 years, and the court ordered an updated presentence report. When defendant again appeared in court on June 8, 2008, the court granted his request for an adjournment of sentencing to enable him to begin to comply with the community service component of the sentence. The court indicated that, if defendant established that he was working toward the community service requirement, the violation of probation petition would be "closed" without any sentence of imprisonment.

At the adjourned sentencing date, defense counsel advised the court that the community service administrator had by then received medical authorization permitting defendant to work, and that there was a community service placement available for defendant. The individual responsible for implementing that placement, however, was out of the office for a week, and defendant therefore requested a second adjournment to enable him to establish that he was complying with the community service requirement. The court denied that request, revoked the sentence of probation, and imposed the aforementioned determinate term of imprisonment and period of postrelease supervision on the ground that defendant failed to comply with the community service requirement.

Citing its authority to "substitute our own discretion for that of a trial court [that] has not abused its discretion in the imposition of a sentence" (People v Suitte, 90 AD2d 80, 86; see People v Edwards, 37 AD3d 289, 290, lv denied 9 NY3d 843)" the Court found that

Here, after defendant tested positive for cocaine, he successfully completed a substance abuse treatment program and all subsequent drug tests were negative. Defendant also attempted to implement the community service requirement, including providing the requisite medical documentation to the community service administrator, and it is undisputed on the record before us that the delay in the implementation of defendant's community service placement was not attributable to defendant.

SORA Can't Be Imposed Eleven Years after Expiration of Sentence

In People v Gregory (2010 NY Slip Op 02608 [4th Dept 3/26/10]) the Fourth Department has held that the imposition of SORA registation requirements 11 years after the expiration of the defendant's sentence was impproper. Although the Court rejected defendant's contention that the six-year statute of limitations in CPLR 213 applies to this SORA classification proceeding, it concluded

that vacatur of defendant's risk level determination is appropriate. Although Correction Law § 168-l (8) expressly provides that a failure by the court "to render a determination within the time period specified in [article 6-C] shall not affect the obligation of the sex offender to register," we conclude that the 11-year delay is " so outrageously arbitrary as to constitute [a] gross abuse of governmental authority' " (People v Wilkes, 53 AD3d 1073, 1074, lv denied 11 NY3d 710; cf. People v Sgroi, 22 Misc 3d 902, 905-[*2]906).

Another Assault At LabaToilet?

Sounds like a great place to work:

"I quit labaton several weeks ago after I too was assaulted in front of several witnesses in the eating area and no one confronted/reported the asshole who hit me to anyone, including me because we were all afraid of losing our jobs, just as happened to other people recently. Keep in mind that I am a woman and my attacker is a male foreign educated attorney."

The DWI Success Formula

As I am about to impart on my 3rd TLC this year, that's not TLC as in tender loving care but Trial Lawyer College regional seminar. This one is outside of Seattle, WA. Nothing like the Ithaca to New Jersey puddle jump hop, and then onto a real plane in Newark.

I like to learn and grow. It's been said, "that if you're green you're growing, and if you're ripe you rot. Success at anything leaves clues. I go to a restaurant in Lenox, PA called Bingham's. Just a small hole in the wall with deer heads on the wall. They make great pies, and the best turkey club this side of NYC. Their secret... fresh turkey, crisp quality bacon, and homemade bread. That is a success recipe for an incredible club.

There are successful formulas for just about anything. I believe the formula for greater success in DWI defense practice is to keep looking at the case from different perspectives. Reading through the police report over and over (one perspective), talking to my client (another perspective), visiting the scene (what can it tell me), re-enacting the night, and then seeing the case as a story made up of many smaller stories.

What doubts (honest and reasonable) can be raised concerning the government's evidence?

Are their conflicts in proof? Do the times of the events jive? Do things fit together or do they seem askew?

Sometimes justice and fairness are merely a feeling. Can I make the jurors sense the injustice in my case? Has the government (law enforcement) betrayed my client's trust by not following proper procedures? Have my client's constitutional rights been violated at any juncture?

Superficial reading of reports or quick black and white answers do not cut it in the world of criminal defense. I live and practice my art in degrees and subtle shades of gray. Success is in immersion. Being inside my case gives me greater "insight" to defend the charges being brought against my client.

More on Melendez Diaz

Recently I wrote about how the Supreme Court decisions in Melendez-Diaz(129 S.Ct. 2527 [June 25, 2009]) and Briscoe v Virginia (559 US ___ [1/25/10]) appeared to undermine and contracidt hte holdings of the New York Court of Appeals in People v Rawlins and People v Meekins (10 N.Y.3d 136 [2/19/2008]). Donald Rehkopf, Esq (of the Firm of Brenna, Brenna, and Boyce) provides some useful information for those seeking to challenge those holdings:

Just read your post from late January, RE: Melendez-Diaz, etc., on the NYCD blog - there's another reason to attack Meekins [and now Brown]. The CoA in Rawlins / Meekins relied upon 3 opinions from other states:

1) State v. Crager, [Ohio];
2) Commonwealth v. Verde; [Mass.]; and
3) People v. Geier, [Calif].

Funny things happen, and Brown never addressed them.

1) Crager was pending cert. at SCOTUS when Melendez-Diaz was decided, SCOTUS GVR'd it back to the Ohio Supreme Court, who then, in light of M-D, reversed its original decision in Crager, and ordered a new trial;

2) Melendez-Diaz was affirmed in the State Court's based upon Commonwealth v. Verde, which held that drug analysis reports were "non-testimonial." By reversing M-D, SCOTUS impliedly overruled Verde; and

3) Subsequent to M-D, California Courts have held that Geier is no longer "good law." See, e.g., People v. Dungo, 98 Cal.Rptr.3d 702, 711 n. 11 (Cal.App. 2009), concluding that Melendez-Diaz, abrogated Geier.

So, the legal "foundation" in Meekins [and now, Brown], simply no longer exists.

Finally, if there was any question that the CoA's jurisprudence is wrong, it seems that the Court [and no doubt counsel] overlooked the seminal NY case, which Justice Scalia cited in M-D, People v. Bromwich, 200 NY 386, 93 N.E. 933 (1911) [rejecting “certificates” in lieu of live witnesses for confrontation], cited at 129 S.Ct. at 2539.

Don will be speaking on these constitutional confrontation clause issues at NYSACDL's April CLE in Syracuse.

Showups Identifications Are Disfavored

In People v Blunt (2010 NY Slip Op 02191 [4th Dept 3/23/10]), the Fourth Department suppressed the results of a showup identification where the testimony "established that the incident occurred at approximately 7:25 a.m. and that the showup was conducted at approximately 9:30 p.m., several miles away from the scene of the incident and after defendant had been placed under arrest and drugs were found on his possession." The Court explained that

It is well settled that showup identifications are generally disfavored because they are inherently suggestive by nature, but they nevertheless are not "presumptively infirm" (People v Duuvon, 77 NY2d 541, 543; see People v Ortiz, 90 NY2d 533, 537). Showup identifications must be conducted "prompt[ly]" following the defendant's arrest and they must occur "at or near the crime scene" (Duuvon, 77 NY2d at 544). In determining whether the showup identification is conducted in adequate temporal and geographic proximity to the crime, courts must consider the specific facts and circumstances of each case.

As Defendant Contends In His Pro Se Supplemental Brief . . .

The most difficult and important part of an appellate attorney's job is identifying possible issues. An appellate record is like a puzzle that the attorney must solve to discover what issues are present and worth raising. An issue not raised is not likely to result in reversal. That should be enough incentive to scour the record for possibly meritorious issues. If not, the possibility that the court may reverse a conviction on an issue which you failed to find or declined to raise, but was raised by a client in a supplemental brief, should provide motivation. People v Layou [2010 NY Slip Op 02192 4th Dept 3/23/10] is a reminder of that possibility:

As defendant contends in his pro se supplemental brief, suppression was warranted because the police lacked reasonable suspicion to justify the initial seizure of his vehicle. Here, a police officer effectively seized defendant's vehicle when he pulled into the parking lot behind defendant's vehicle in such a manner as to prevent defendant from driving away (citations omitted). Defendant's presence in a vehicle at 3:40 a.m. in a parking lot located in the general vicinity of a burglary that the police were investigating did not provide the police with reasonable suspicion that defendant had committed, was committing, or was about to commit a crime (see People v May, 81 NY2d 725, 727-728). It is well settled that "innocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand" (People v De Bour, 40 NY2d 210, 216). In this case, the arresting officer did not observe any conduct indicative of criminal activity at the time he seized the vehicle, the complainant who had reported the burglary did not mention that the burglars fled in a vehicle, and the officer had no other information tending to connect defendant or the occupant of his vehicle with the reported burglary (citations omitted). Thus, even if there had been a sufficient chain of custody, we nevertheless conclude that the judgment must be reversed . . . inasmuch as the police acted without the requisite reasonable suspicion to justify the initial seizure of defendant's vehicle.

Adverse Inference From Failure To Record Interrogation

As previously noted the Fourth Department ended 2009 by holding that since there is not a constitutional duty for police to record interrogations a defendant is not entitled to an adverse inference charge regarding the failure to record. Yet, both the United States Supreme Court and the New York Court of Appeals have long recognized that a party's failure to produce evidence which would elucidate the transaction in issue, when that party has it peculiarly within his power to produce such evidence, supports an instruction that the jury can draw an adverse inference that the testimony, if produced, would have been unfavorable to the party who failed to produce it. (People v Gonzalez, 68 NY2d 424, 427 [1986]; Gordon v People, 33 NY 501 [1865]; Graves v United States, 150 US 118, 121 [1893]).Importantly, this rule applies even where a party is not required to produce any evidence or that type of evidence. Thus, even though a defendant has no obligation to produce any evidence, once a defendant presents some evidence, his failure to call other witnesses under his control who have information material to the case may be the basis for an adverse inference charge against the defendant. (People v Paylor, 70 NY2d 146 [1987]; People v Rodriguez, 38 NY2d 95, CJI2d[NY], A Party's Failure to Call a Witness).

Despite this, in People v Holloway (2010 NY Slip Op 02302 [4th Dept 3/19/10]) the Court again held that a trial court properly denied defendant's request for an adverse inference charge because "[T]his Court has repeatedly determined[, however,] that the failure to record a defendant's interrogation electronically does not constitute a denial of due process" (citations omitted), and thus an adverse inference charge was not warranted (see People v Hammons, 68 AD3d 1800; People v Mastin, 261 AD2d 892, 894-895, lv denied 93 NY2d 1022)."

This decision was rendered six weeks after Freddie Peacock became the 250th person exonerated by DNA evidence after conviction, when his 1976 rape conviction was vacated in Monroe County. On his appeal the Appellate Division had agreed with Mr. Peacock's contention that the trial court erroneously permitted two witnesses to bolster the identification testimony of the complainant (People v Peacock,70 AD2d 781 [4th Dept 1979]), but held that "in light of the strong evidence of guilt, including defendant's confession, we find the error to be harmless." Twenty one years later it was finally proved that this confession was false. Thus, reliance on an unrecorded false confession led to the affirmance of a wrongful conviction. Yet the court refuses to even require judges, upon request to instruct jurors that in deciding whether the People have proved voluntariness of a confession beyond a reasonable doubt they can draw an adverse inference from the failure to record.

A Judge Who Doesn't Know The Law Can't Exercise Discretion

In People v Bernell (2010 NY Slip Op 02346 [4th Dept 3/23/10]) the Fourth Department vacated a consecutive sentences when the sentencing court mistakenly believed that it could not impose concurrent sentences:

At sentencing, defendant requested that the sentence run concurrently with the indeterminate sentence he was serving at that time. In denying the request, County Court stated that it was "not authorized by law to make that concurrent. It must be consecutive . . . ." In fact, however, the court had the discretion to impose concurrent sentences... " The failure of the court to apprehend the extent of its discretion deprived defendant of the right to be sentenced as provided by law' " (People v Schafer, 19 AD3d 1133). We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing.

Police Without Warrant Can't Just Enter House And Arrest Occupant

In People v Forbes (2010 NY Slip Op 02349 [4th Dept 3/19/10] the Appellate Division, Fourth Department found that there was a violation of the well settled requirement that "police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home" (Kirk v Louisiana, 536 US 635, 638; see Payton v New York, 445 US 573, 589-590):

Where, as here, the People contend that a suspect gave his or her consent to the police to enter the suspect's home, "the burden of proof rests heavily upon the People to establish the voluntariness of that waiver of a constitutional right" (People v Whitehurst, 25 NY2d 389, 391). We agree with defendant that the People failed to meet that burden in this case. The record of the suppression hearing establishes that two Rochester police officers went to defendant's last known address for the purpose of taking defendant into custody for questioning. Upon arriving there, the officers asked defendant for identification and then immediately entered his home when he turned to procure his identification papers. Consequently, we conclude that defendant did not voluntarily consent to the officers' entry into his home (see People v Richardson, 229 AD2d 316, appeal dismissed 89 NY2d 933; see generally People v Gonzalez, 39 NY2d 122, 128). We note in addition that the People did not contend at the suppression hearing that exigent circumstances existed to justify the entry or that the tangible property was not the fruit of the unlawful entry, nor indeed do they raise those contentions on appeal. We thus agree with defendant that the court erred in denying that part of his omnibus motion seeking to suppress tangible property.

Golden Gate School of Law - Your One-way Ticket To The Trailer Park

Someone posted this earlier today in the comments section, and I wanted to highlight it. Crappy law school (that should be padlocked) + stay on the couch spouse + student loans + two kids ='s eviction, misery, and a horrible life.

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/03/22/BUUO1CI40P.DTL

Health Care Reform

On the floor of the House, Rep. Sheila Jackson Lee told a story of a 32-year-old lawyer who went to an emergency room three times but was sent away with antibiotics, and eventually died. He probably had crappy agency health insurance.

Rights For The Poor and Public Defenders

LAWYER AND DEFENDANT Kimberly Hurell-Harring was represented by Patrick E. Barber, left, in a case that could change the system

March 19, 2010
The Right to Counsel: Woman Becomes a Test Case
By WILLIAM GLABERSON, NY TIMES

FORT EDWARD, N.Y.

SHE was poor and in trouble. He was the public defender appointed to represent her.

She was Kimberly Hurell-Harring, a nobody in the courts, a nursing home worker and a mother of two who had done something stupid. He was Patrick E. Barber, a lawyer with a silver stubble of a beard, paid by the county and state to help make the criminal justice system as fair to the poor as it is to the rich.

At his urging, she pleaded guilty and went to jail for a felony that turned out not to be a felony at all. “It seemed like he was on the D.A.’s side,” she said later.

He said recently that he had done what he could: “They had her dead to rights.”

Usually, such a minor case would go unnoticed; a little test of the constitutional right to a lawyer, results unknown. Instead it has made Mr. Barber an emblem of the problems of the state’s ramshackle system of providing lawyers for indigent defendants. On Tuesday, New York’s highest court is to consider a class-action suit, filed by civil liberties lawyers in Ms. Hurell-Harring’s name, that seeks broad changes in the state’s frayed network of public defenders, who are routinely unmonitored and often overwhelmed. Her case, now being pored over by some of the state’s leading lawyers and judges, offers a window into the everyday corners of the legal system, where no one is usually watching.

It began two and a half years ago, in October 2007, in the Washington County Court here, not far from the Vermont border. In an area of the state where prisons are an industry, Ms. Hurell-Harring pleaded guilty to trying to sneak her inmate husband three-quarters of an ounce of marijuana in a condom she had hidden in her vagina.

From the courtroom benches, the few spectators saw a frightened woman who had never been in trouble before and a public defender who was not fighting for her. “She was sitting there looking stunned and confused,” said Daniel J. Freeman, a recent Yale Law School graduate who had been sent to observe by the New York Civil Liberties Union. “I didn’t see him interacting much with her.”

The story of this one defendant and her public defender, assembled through interviews and court records, is about a woman who was barely making it before the legal system helped shove her off track.

And it is also about a small-town lawyer and part-time public servant sinking in personal and professional quicksand that few people knew about when he showed up to represent Kimberly Hurell-Harring. Least of all her.

The Client

She was 31 in the fall of 2007, a spirited woman with a big smile and 13 gold hoops in one ear. Pregnant at 14, she could have become lost. But she had earned her high school diploma and done something with the nursing assistant’s certificate she carried proudly in her wallet.

She worked nights, sometimes two jobs, changing bedpans and offering solace. When Amos D. Harring was arrested for assault, she stuck by him. The police said he had shot someone.

She arrived in Washington County on Sept. 29 on the journey thousands of women make every year to the state’s far reaches, where their men are locked away. She came twice a month or even more often, sometimes alone, sometimes with her two girls, ages 16 and 4.

This time, the three of them had driven together, 240 miles across the state from Rochester, where they had always lived. There was to be a family visit the next day at the hulking maximum-security prison, Great Meadow Correctional Facility, where Mr. Harring, who was 30, was doing eight years.

But that morning, she left the girls at the Budget Inn and went by herself to see him. When she got to the turreted wall that makes Great Meadow look like some 1940s-movie prison, two investigators hustled her off. They had recordings of the couple’s phone conversations. They knew about the marijuana in the condom, a tactic that was more of a prison cliché than an investigative challenge.

Three-quarters of an ounce was not much. But any marijuana is contraband.

She was terrified as the investigators laid out their case, and confessed. “I am very, very, very sorry that I did this,” she wrote, acknowledging, too, that it was not the first time. Her husband said later that it had all been his idea. “I have threatened and forced her to bring drugs into the facility,” he wrote in a notarized statement a few days after her arrest.

There was a frantic call to an aunt in Rochester to pick up the girls. A local judge set bail at $10,000, an impossible sum. Then she landed in Alpha Pod, the spartan women’s dormitory at the county jail, where 22 women slept on metal bunks in a concrete-block room.

She worried. About her girls. About her mother, a stroke victim. About her future. She knew a felony conviction meant any nursing home job would be gone, along with her rent-subsidized apartment and a lot of other things.

She kept saying, to anyone who would listen, that she wanted a misdemeanor deal. She knew she had made a mistake, but, though she had not a day of legal training, it did not seem like a felony to her.

Some of the other women in Alpha Pod were hard cases, drug abusers and repeat petty criminals who warned her about public defenders. It is an article of jailhouse faith that poor people get what they pay for in lawyers: Nothing.

She said one of the women, named Becky, gave her a specific caution about Mr. Barber: “You got to be careful.”

The Lawyer

Everybody around Fort Edward knew Pat Barber, a fixture at the courthouse and a stepfather of two whose family owned a local tavern. He had been here all his life except for college in western New York and law school at Syracuse.

So there was not much in the way of vetting when he put in a cost-conscious bid to become Washington County’s chief public defender, a part-time position he added to his private practice of trial work, debt collections, wills and divorces. It was quickly settled. Beginning in 2006, he would get $50,000 a year and some rent for the office he had shared with a law partner who had recently died. “We have to have a good reason not to take the low bid,” said John A. Rymph, the chairman of the County Board of Supervisors.

There were plenty of good reasons, according to court records released last month. Mr. Barber, 49 at the time, had been reprimanded twice — in 2002 and 2005 — by the Committee on Professional Standards, the state group that disciplines lawyers, for neglecting cases. He had been struggling with depression for years. “On some occasions he had to leave the courtroom because of panic attacks,” a report from his psychiatrist said. “He had daily drinks to cope.”

But the people reviewing the bids in Washington County knew none of that. The reprimands were confidential, though officials at the professional standards committee say they could have been released to a potential employer if Mr. Barber had signed a waiver. If, that is, anyone in Washington County had known to ask him to sign one.

Told recently about Mr. Barber’s history, Roger Wickes, the county attorney, said, “I would have assumed the board would have been concerned had they known about it.”

By the time Ms. Hurell-Harring made her trip across the state, Mr. Barber’s troubles were piling up.

He had put $304,895.46 in checks for an auto-accident settlement into the file and never mailed them to his client, court records say. He kept telling another client he was finishing up some work related to her divorce. “I misled her as far as the progress of what was going on,” he testified later.

In a third private-practice case, a man appealed his rape conviction, claiming that Mr. Barber had failed to do basic things at the trial like question some important witnesses. In time, a divided appeals court ruled that “no legitimate trial strategy existed.”

The week in October that he went to court for Ms. Hurell-Harring, Mr. Barber was being pursued on yet another file full of trouble. At the request of county officials, John R. Winn, a local lawyer, had been asking questions about two estates Mr. Barber was supposed to be handling that had been so neglected that two properties had been sold for unpaid taxes.

Mr. Winn started calling Mr. Barber, and eventually he turned over a carton with all his records on the two estates — dividend checks, tax bills and bank statements, all in their original envelopes. “I looked, and I said, ‘He’s never opened anything,’ ” Mr. Winn said. One of the women had died six years earlier.

In a long interview this month, Mr. Barber blamed his depression. “You just develop this nausea fear of a file and you would do anything to stay away from it,” he said.

He argued that his problems had not affected his public work. But his psychiatrist, Dr. Koock E. Jung, said in another disciplinary case against him, in 2009, that his symptoms included “breaking out sweating, dizziness and shortness of breath, which affected his law practice seriously, especially his public defender’s job.”

The Case

At the county jail, Ms. Hurell-Harring was growing frantic as she waited nearly a month for her sentencing. She called Mr. Barber’s office every few days. Usually the secretary said he was busy. When they did talk, she said, Mr. Barber told her she had no options.

On Nov. 8, 2007, the civil liberties union filed its class-action suit in Albany, mentioning Ms. Hurell-Harring’s contraband charge. A lawyer read it at the New York State Defenders Association, an organization that provides training and expertise to defense lawyers.

The lawyer, Alfred A. O’Connor, had been working for years on the very issue in her case: whether that small amount of marijuana should be defined as dangerous prison contraband, which could make her smuggling effort a felony, or whether it was ordinary contraband, a misdemeanor that might mean no jail time at all and none of the consequences that come with felony convictions.

Mr. O’Connor started calling Mr. Barber, too. “Good news,” he recalls saying when they spoke on Nov. 15, the day before Ms. Hurell-Harring’s sentencing. He told Mr. Barber that the state’s highest court was considering the contraband question. Defense lawyers had already laid out the very argument that could mean freedom for his client.

But Mr. Barber did not ask for a copy of the briefs. “There wasn’t any enthusiasm,” Mr. O’Connor said. Asked about this in the recent interview, Mr. Barber said had not wanted to bring up anything that could make prosecutors ask for a longer sentence.

The next day in court, Judge Kelly S. McKeighan noted that Ms. Hurell-Harring had admitted to the felony charge: promoting prison contraband in the first degree. Mr. Barber agreed, never mentioning that it might not be a felony at all.

“I just want to go home to my kids and my mother,” Ms. Hurell-Harring told the judge. Instead, she went back to jail, serving four months before she was released for good behavior. She left Washington County on Jan. 28, 2008, a convicted felon facing five years of probation.

The Aftermath

At home on Rochester’s northwest side, things were rough. Her $12-an-hour job was gone. She and the girls moved into her mother’s run-down house and survived on food stamps. The older one, Shaniqua, took a while to pick up where they left off.

“I promised her I would never leave her again,” Ms. Hurell-Harring said.

In New York City, the civil liberties lawyers had asked Roberta A. Kaplan, a partner at one of the country’s leading corporate firms, Paul, Weiss, Rifkind, Wharton & Garrison, to see what could be done for Ms. Hurell-Harring.

Working without a fee, Ms. Kaplan and her team of lawyers did the kind of work lawyers there do for big companies like Citigroup and Time Warner and well-known people like Gov. David A. Paterson. They studied Mr. Barber’s work. They started filing appeals on Ms. Hurell-Harring’s behalf. One of them, Andrew J. Ehrlich, wondered: “How many other Kimberlys are there out there?” How many other Pat Barbers?

In June 2008, the State Court of Appeals ruled in the case Mr. O’Connor had worked on: that, indeed, a small amount of marijuana does not usually amount to dangerous prison contraband like a gun or a razor blade.

Pointing to that ruling, the Paul, Weiss lawyers persuaded a state appeals court in October 2009 to overturn Ms. Hurell-Harring’s conviction. “The act of which defendant is accused,” the court said, “does not constitute a crime.”

In Rochester, Ms. Hurell-Harring talked to her husband on the phone for the first time in two years. This month, she went back to work at a nursing home, for $9.70 an hour. “I finally can try to get my life back,” she said a few weeks ago.

In Washington County, court officials last spring noticed something odd in a judge’s order in a paternity case Mr. Barber had handled in 2007. It seemed to be signed by a Family Court judge, but the court had no such document in its files.

In June, a suicidal Mr. Barber was briefly hospitalized. In September, he resigned as public defender. Five months later, he was arrested and charged with a felony: forging the court order. He was released without bail.

In February, he was disbarred. An appeals court said he had created fake documents to “deceive his clients into believing that he had undertaken the tasks for which he had been retained.”

This month, still awaiting his own day in court on a felony charge, Mr. Barber sat at his law office desk sorting through a bunch of files. Inside, there was no heat. Outside, there was a “for sale” sign.

“Obviously, I did some stupid things,” he said. “I even hurt a couple of people, which I am very regretful for.”

But he defended some of his work, including the case of Kimberly Hurell-Harring.

He was asked what he remembered of her in those weeks in 2007 when their paths crossed. “Honestly,” he said, “a lot of crying.”

Alain Delaquérière and Toby Lyles contributed research.

SORA and out-of-state convictions

Some times a state just wants to put up a giant "Keep Out" sign for sex offenders from other parts of the country. Anyone who has seen quotes from the debates knows that this was a clearly expressed desire of some supporters of the statute.

Other times they are more sophisticated. Correction Law 168-g (1) made the Sex Offender Registration Act applicable to anyone in prison, on probation or on parole as of January 21, 1996. Correction Law 168-k(1) requires registration for sex offenders who move to New York State and whose prior convictions require registration under 168-a(2)(d) (elements test or requiring registration in the other jurisdiction or listed Federal crimes) or 168-A(3)(b) (essential elements of sexually violent offenses). CL 168-k(1) is not limited as to date, so that two people who commit the same crimes, one in NY one in another state, are treated differently.

This, to my mind, violates equal protection, and amounts to a barrier against sex offenders moving to this state. Granted, it's a limited, and perhaps unintended barrier, but it is one nonetheless. A New Yorker whose rape sentence expired January 20, 1996 is not required to register. A Californian whose rape sentence expired January 20, 1976 does have to register ("Keep Out!"). If you are assigned to an out-of-state sex offender case, I recommend challenging the proof that the defendant actually is required to register if the offense is pre-1/21/96 and the proof does not show that the sentence continued past the effective date of the statute.

This argument was rejected in People v McGarghan, 13 Misc3d 811 (NY SCt 2007), on the grounds that the provision did not violate equal protection. That court held that a Vermonter who committed a crime in Vermont before the effective date of the statute is treated the same as a New Yorker who committed the same crime in Vermont before the effective date of the statute. Umm, yeah, that's the test, if we're playing that than which none more Jesuitical can be conceived. By the way, a New Yorker who committed the crime in Alaska while underwater and humming the theme from The Last Remake of Beau Geste is treated the same as a Vermonter who committed the crime while skydiving and humming the theme from Sherlock Holmes Smarter Brother, that's not the issue.

This decision, which also holds (as several Departments have, but the Court of Appeals has not) that the determination by the Board that someone is a sex offender cannot be challenged at SORA, but must be challenged via Article 78. This theory holds that - while the question of what level someone should be classified as cannot be decided administratively because that would violate due process - whether a person is a sex offender at all can be. Got it. The Court of Appeals has addressed whether someone is registerable both via Article 78 and direct appeal (North v Board, 8 NY3d 735 [2007]; People v Kennedy, 7 NY3d 87 [2006]). Thus my belief that such a proceeding is permitted, but not required. I am confident that treating identical crimes, one committed by someone who is already here, one by someone who proposes to move to New York, are treated differently is the basis of my claim that equal protection, and a citizen's right to move about the country, are violated by New York's SORA statute.

The Standardized DWI Arrest

As winter gives way to spring in lovely Ithaca I am reminded of the beauty of nature. The birds are coming back, the croci (crocuses) are beginning to emerge, and I hope we have seen the last snow of winter. It has been a mild 2010. Our friends in the big cities (Philly and NYC) got hit this year. We had hardly anything (relatively).

The wonderful thing that nature reminds me every year is that people like flowers or snowflakes are unique. Your fingerprints, DNA, and combination of traits is unlike any other the world will ever see. Yet we (as a society) like to "standardize" everything. So what gets mass produced, marketed, and sold is the average. What is played again and again is the popular song. Popular doesn't mean good, it means what the common majority likes.

So Larry, what the hell does this have to do with DWI defense? Excellent question!

Law enforcement and the government builds their case evidence (proof) using:

1. Standardized administration procedures (in both the SFSTs and Breath test)

2. Standardized clues

3. Standardized testing criteria

A DWI arrest is usually based upon the officer giving you tests at roadside. His observations, and your performance will support his decision to arrest. He feels he has probable cause (based upon his proof) to make an arrest for driving while intoxicated.

The SFSTs (Standardized Field Sobriety Tests) are:

1. A series of three evaluations that have to be administered in a standardized manner by law enforcement. They are the walk and turn, one leg stand, and HGN (horizontal gaze nystagmus).

2. They have been created/chosen/selected and established by Government Authority (National Highway Traffic Safety Administration) as a RULE.

3. This RULE is for measuring the loss of mental and physical faculties (impaired function).

But are they accurate? In other words, do they conform exactly to truth or a standard?

And are they precise? Do they strictly conform to a set pattern, standard, or convention?

The first problem with any testing following a car stop is the officer has NO BASELINE.

He or she doesn't know YOUR normal. He doesn't know your physical and/or mental limitations. This is where standardized tests don't account for YOUR unique characteristics. YOUR past knee, back, shoulder, hip, neck problems. YOUR inner ear infection, cold, or flu.

A second problem with testing is that it is usually done outside. The conditions are usually not ideal. Weather is one issue. How many winter DWI cases with snow, ice, and freezing wind as our backdrop? How many motorists are without coats, jackets, or proper (appropriate) attire for being outside at 1:00AM in Ithaca, NY in December? What of the road conditions? What area were you forced to use to perform these balance, coordination, and mental exercises in the dark and in the middle of the night?

A third problem with testing is that the officer does not always follow procedures or he complies haphazardly. Standardized testing must be done in a set way and by following very specific protocols (rules/guidelines). Often officers will refuse to acknowledge they even "measured" anything. They prefer the word "estimated" or "scored" because those terms have less precise connotations. Did the officer leave "all" his emergency lights on when giving the tests? Did he communicate what he wanted from you clearly?

A fourth problem with testing is footwear. In the summer and spring the issue is usually flip flops. In the winter it is usually boots. High heels are always an issue when it comes to having to walk on imaginary lines, and balance/stand on one leg.

The breath test also has protocols and guidelines. It also needs to be "administered" properly. Sometimes law enforcement doesn't follow all the rules. Adherence to the rulebook is not always forefront in their minds. Not being being strict in compliance can lead to inaccurate results.

And inaccurate results can lead to wrongful DWI convictions.

Wilmer Cutler

Just when things were quieting down in crazy document review land, this nonsense pops up. Apparently, Michael Layman (staff attorney 007) solved the espionage crime of the century over at Wilmer Cutler when he caught an international super spy downloading sensitive corporate documents on to his custom made Inspector Gadget flash drive. Actually, the "spy" was nothing more than a dingbat contract attorney who was downloading his resume, most likely because he was bored out of his mind shuffling through millions of pages of irrelevant corporate dreck, and was doing everything in his power to get out of a toxic and degrading work environment where low level staffer douchebags try to score brownie points with superiors by cracking fanciful imagined international spy rings.

http://legaltimes.typepad.com/blt/2010/03/temporary-lawyer-sues-wilmer-for-defamation-.html

SeeThroughNY.net and Updated Legislative Spending

That nice big castle thing you see above is our New York State legislature. When you get elected to represent people and you walk into that structure, something happens to your head; ethics and values which you grew up with disappear. Suddenly a nice thick, new carpet for your office seems necessary. The latest computer/fax/printer with the biggest monitor...got to have it. Doesn't matter if people are going hungry in your district, they'll never know that you are spending thousands of dollars in public money on that extra comfy leather chair for your new desk.

Or will they? Thanks, SeeThroughNY.net!!!!

Luv,

Betsy Combier
Editor, New York Court Corruption

Updated Legislative Spending Posted On Internet
March 17, 2010
LINK

CONTACT: Lise Bang-Jensen
(518) 434-3100

Office expenditures of individual state Senators and Assembly members for the six months ending September 30, 2009, the latest period for which data are available, have been posted in a searchable format on the Empire Center’s government transparency website, SeeThroughNY.net.

The data show that Senate Democrats, who took control of the majority in January 2009, spent $12,994,058 on their member office operations from April through September last year. This was an increase of $4.2 million, or 48 percent, over the same period in 2008. Senate Republicans, now in the minority, spent $9,927,046 -- a decrease of $6 million, or 38 percent. Other highlights:

* Senate Democrats spent an average of $393,759 per member office. This represents an increase of $101,411 or 35 percent from the $292,349 per member from the same period in 2008, when they were in the minority.

* Senate Republicans averaged $320,227 per member office. This represents a decrease of $178,600, or 36 percent from the $498,827 in average member expenditures when they were in the majority. However, it was 9.5 percent more per member than Democrats received when they were in the minority a year earlier.

* Democratic members of the Assembly majority averaged $193,712 per member in spending, and increase of .06 percent, while Republican minority spending was $139,980 per member, a 5 percent decrease.


Assemblyman Richard Gottfried (D-Manhattan) (at right) spent $440,764 on staff, rent, travel, telephone service, office supplies and other expenditures during the 6-month period, making him the highest spender among the 150 members of his house. The Assembly’s next highest

spenders were: Dov Hikind (D-Brooklyn-pictured at right), $381,710; Catherine Nolan (D-Queens), $354,043; Vito Lopez (D-Brooklyn), $346,389; and Robin Schimminger (D-Erie County), $332,115. The sixth highest was Sheldon Silver (D-Manhattan) at $311,971 for his expenditures as an Assembly member. That does not include his expenditures as Assembly Speaker.

In the 62-member Senate, the top spender was Jeffrey Klein (D-Bronx/Westchester), who serves as the Deputy Majority Leader. He spent $758,070 on office operations, excluding his leadership expenses. The Senate’s next highest spenders were: Carl Kruger (D-Brooklyn-pictured below), $705,741; Eric Schneiderman (D-Manhattan/Bronx), $607,200; John Sampson (D-Brooklyn), $570,976; and Shirley Huntley (D-Jamaica), $500,325.
Senator Carl Kruger
The posted data, which can be downloaded on a spreadsheet, covers the period of April 1, 2009 through September 30, 2009. A copy of the expenditure rankings for the six-month period is here. Not included in the expenditure reports are member items, or pork barrel projects, which also can be viewed on the “Expenditures” section of SeeThroughNY.net.

FREE ESTATE PLANNING CONFERENCE at Kings Bay Y, Brooklyn NY on June 16, 2011, at 6pm

The Law Offices of Inna Fershteyn will host TRUST and ESTATE SEMINAR:

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DWI "Just the facts, ma'am"

I listen to stories about drinking and driving almost every day. I need to know all the details. In my day we had a TV show called Dragnet. The show had a cop named, Joe Friday who loved to say, "All we want are the facts ma'am." I too want the facts but more importantly I want my client's version of the night. I want to understand his perceptions and viewpoint.

This allows me to piece together the timelines, the potential witnesses, behavior patterns, and the amount of alcohol consumed. Ultimately I want to have a more clear picture of the prosecution's case against my client. I also have a software program that allows me to input my client's age, sex, height, weight, and drinking information to arrive at a pretty accurate BAC (Blood Alcohol Concentration) at the time of driving. Of course it is only a BAC range, and highly dependent upon my client giving me reliable information.

One of the first things that is difficult to estimate is the potency of the drinks. What type of beer or wine was drank? What was it's alcohol concentration? How big were the cocktails or the glasses they came in? Sometimes "one" drink has really 3 or 4 shots of 80 proof liquor. Beer can be 3-5 % and wine can go up to 14 %. Bacardi 151 is 75 % alcohol!

I recently had a client who swore he only had 3. Yeah, as in 3 Long Island Iced Teas! Do you know how much alcohol is in one LI Iced tea? In a good one, there is probably at least 4 shots.

So my client had 12 drinks before he began drinking Lite beer later in the evening. I would imagine smoking a few hits off his buddy's joint didn't help matters.

Remember that proof is twice the percent of alcohol.

5 ounces of wine 24 proof 24 ÷ 2 = 12 (% alcohol) 12 ÷ 100 = 0.12 0.12 x 5 oz = 0.6 ounces ethanol

12 ounces of beer 10 proof 10 ÷ 2 = 5 (% alcohol) 5 ÷ 100 = 0.05 0.05 x 12 oz = 0.6 ounces ethanol

1 1/2 shot 80 proof 80 ÷ 2 = 40 (% alcohol) 40 ÷ 100 = 0.4 0.4 x 1.5 oz = 0.6 ounces ethanol

One drink = .6 ounces of ethanol and usually one drink will cause someone (the average person) to go up .02 to .03 BAC per drink. If you had 4 drinks in a one hour period then your BAC would be .08 to .12. Alcohol dissipates (is expelled, eliminated) at around .015 to .02 per hour. In theory you can drink one drink per hour and clear the alcohol from your body at that rate (in other words remain alcohol free), after the alcohol clears.

So you are at a bar and have two drinks over two hours, you leave the bar, your BAC should be less than .04?

But we do not know the size of the drinks, or your metabolism, how much you weigh, or what you ate? All these factors affect your elimination rate.

Breath tests are not always reliable, accurate, or valid. Often they are not administered properly. People come in all different shapes and sizes. Getting a real BAC is a beginning, and getting the facts of the case from my client takes us one step closer to defeating a DWI.

Defending Marijuana Possession Charges

As part of my practice of the defense of DWI and other traffic related matters I often have to deal with other drug offenses. It is all too common that a bong, pipe, and/or other paraphernalia (vaporizers, spoons, hammers, chillums, bubblers, sidecars, sherlocks, raydiators, tubes, bats, headies) are found inside the car. All the police have to do is scrape together enough resin/residue, and another criminal charge is added to the fray.

Over the course of my years of practicing in the Fingerlakes I have defended many college students from SUNY Cortland, SUNY Binghamton, Cornell University, Ithaca College, Keuka College, etc. Marijuana use seems to go with college like cereal goes with milk. Some people think that New York State has decriminalized marijuana, sometimes it is only charged as a violation, but even in relatively small quantities it can be charged as a misdemeanor or even as a felony (if sold to minors).

There were 92,800 arrests for Marijuana in New York during 2007. Males aged 15 to 24 made up 56% of those arrested, and 70% of those males were white.

NOTE: After any lawful arrest in an automobile in NYS the entire car is subject to search top to bottom, inside and out. So much for your 4th amendment rights in New York State.

Outside, in a public park or on the street we have a different story. Police will sometimes make a false statement ie. lie to get an arrest. I know, as unbelieveable as that may sound Virginia, it happens. Law enforcement will tell college kids that they "have to" make a search. That if they want to avoid an arrest they should empty their pockets, and to show them what they have or else? Legally they could only pat you down for weapons, but to go into your pockets requires permission or probable cause, but once the marijuana is exposed to public view we have a full blown misdemeanor.

Here is a ranking of the New York State Pot Laws from least severe to more severe (in terms of penalties and consequences):

1. UPM under Penal Law 221.05: Unlawful Possession of Marijuana is not a crime it is merely a violation BUT since marijuana is a controlled substance under Federal Law a plea of guilty will make you ineligible for Federal Financial Aid (thank you President Clinton) for one year. Side note: Marijuana is not considered a controlled substance under New York State Law but we are discussing Federal Student Loans, Federal Work Study Monies, Federal Grants, and the Federal Hope College Credit.

UPM is possession of less than 25 grams of marijuana. In the majority of these cases (with first time offenders) your attorney can move for an ACD (adjournment in contemplation of dismissal) or a straight dismissal of the charge. The judge will set the term of staying out of trouble (no new criminal charges) FOR EITHER 6 MONTHS OR ONE YEAR. It is in his discretion. Also in his discretion is whether there is a substance abuse evaluation. Some judges also require community service.

The next level up of Marijuana offense is:

2. CPM under Penal Law 221.10: Criminal Possession of Marijuana in the 5th degree. This where the marijuana is either open to public view, burning, or where the amount is over 25 grams but less than 2 ounces. CPM is a crime. It is class B misdemeanor.

The next level up of Marijuana offense is:

3. CPM under Penal Law 221.15: Criminal Possession of Marijuana in the 4th degree. This is where you have more than 2 ounces but less than 8 ounces. Now that's what the District Attorney will say is real weight, and they are thinking at this point you are dealing drugs and not just possessing them for personal use. CPM in the 4th is a class A misdemeanor.

4. Penal Law 221.35 is for the Sale of Marijuana. All that is necessary is less than 2 grams or one joint/blunt. It is a Class B misdemeanor. Sale is a very loose term under the statute. Sale also includes gifting or an exchange of anything, as no "consideration" is needed under the statute to consider it a sale.

5. Penal Law 221.40 is for the Sale of Marijuana. Less than one ounce. It is a Class A misdemeanor.

The next two levels are where we move from misdemeanor level offenses (less than a year in jail) to felony level offenses (more than one year in jail). Misdemeanor offenses can be handled by City, Town, or Village Courts. Felony charges are only handled at the County Court level.

* Beware that Sale of More than ONE OUNCE moves the offense to Class E FELONY Status in New York State (punishable by up to 3 years in State Prison).

* Beware of New York State Penal Law 221.50. Sale of Marijuana to a minor (a person less than 18 years old). It is a Class D Felony Status. Which is punishable by a term of 4 to 7 years in State Prison, that's not county jail.

I would like to end off with the GOOD NEWS about number 1 through 5 above:

That Penal Law 221.05 UPM (Unlawful Possession of Marijuana), Penal Law 221.10 CPM (Criminal Possession of Marijuana) in the 5th degree, Penal Law 221.15 CPM (Criminal Possession of Marijuana) in the 4th degree, Penal Law 221.35 Sale of Marijuana, and Penal Law 221.40 Sale of Marijuana are all covered under the First Time Offender ACD statute.

New York Criminal Procedure Law Section 170.56.

Captioned as "Adjournment in contemplation of dismissal in cases in involving marijuana."

If a person qualifies under the statute a motion can be made by his attorney, and then his marijuana charges may be dismissed in the future, and all his official records and papers relating to his arrest and prosecution, whether on file with the Court, the police, or the New York State Division of criminal justice services will be sealed and not made available to the public or private agencies.

Upon the granting of such an order by the Court, the arrest and prosecution can be considered and deemed a nullity (as if they never happened) and the person shall be restored to his or her pre-arrest status.

If of course someone has has other prior charges (relating to marijuana and/or other drugs) then his attorney can potentially negotiate to some other non-criminal disposition, such as disorderly conduct. This is a violation and all the records of the arrest and prosecution would be sealed at the local level.

Dine Group Drops the "F-Bomb" On Contract Attorneys

The Dine Group is still up to their old tricks of fishing for rate information from attorneys and trying to lowball the competition. A friend also recently told me that she overheard one of the business managers of the company scream: "Fuck them! They are under contract for $25 and easily replaceable. We'll ghost them if necessary." I guess some of the foolish attorneys who signed on for that assignment spoke up after the fact only to be blacklisted. Blacklisted for $25/ hr? Really? So Sad!

The New York DWI is a Two Headed Monster

In New York State if someone does (as in takes) the breath test, more accurately known as the "chemical" test back at the station then they will be charged with two counts of DWI.

1. DWI Common Law VTL 1192 (3): The government must prove (beyond a reasonable doubt) that you (the operator) were incapable (to a substantial extent) of operating the automobile both mentally and physically as a reasonably prudent driver. This usually is through the stop officer's (the arresting officer) testimony concerning your driving, behavior, appearance, testing, odor, etc. In other words, his "subjective" opinion.

2. DWI Per Se VTL 1192 (2) A BAC (Blood Alcohol Concentration) of .08 or higher or Aggravated DWI Per Se VTL 1192 (2) (a) A BAC of .18 or higher. The government needs to prove (beyond a reasonable doubt) that the breath test was given within 2 hours of your arrest, was properly administered, by a currently licensed BTO (Breath Test Operator), using properly mixed chemicals, with a calibrated and maintained breath machine. This of course is an indirect measurement of blood alcohol via a breath measurement.

The two most common machines are the Datamaster DMT (used by town, village, and city police depts.) and the Draeger Alcotest (used primarily by the N.Y. State Police). These machines are accepted by the Courts as approved for BAC testing.

There are various ways to attack both the DWI counts but remember that if you took the test it will need to be dealt with and can not be overlooked by your attorney. The per se count becomes the primary target because it is a number that the prosecution will mention again and again.

I believe that a shotgun approach to arguing that all breath testing is inaccurate and unreliable (fraught with error) will usually fall on deaf ears. A focused and detailed strategy is the most effective way to defeat each count.

Depending upon the specific facts of each DWI case arguments can be waged against:

1. Whether the procedures and protocol of breath testing were adhered to?

2. Whether the machines were calibrated in a timely manner?

3. Whether the machine in question had any recent repairs or issues?

4. Whether the chemicals were properly mixed and/or expired (out of date)?

So records need to be examined carefully and potentially subpoenas must be issued against the police to get ALL the machine records. To get police records your attorney is going to need to get Judicial Subpoenas (issued and approved through a Judge). With a lot of work often the ugly truth comes out, and the breath test's validity becomes an issue of doubt.

In recent cases, I found that the State Police had written in the wrong chemical expiration date. The chemicals were expired days before my client's breath test. After I filed my motions the Judge was compelled to throw out the test, and the prosecution's case along with it. In another case the machine had frequent break downs, and parts replaced concerning the same issue, the machine would not accept a breath sample. My client was charged with a refusal because the police said she wasn't trying (blowing) hard enough. That case was also thrown out after I subpoenaed all the machine records, and brought to light the machine's problems.

Nothing of any value is easy, cheap, or speedy. That first case went to multiple hearings and motions. My client was relieved when the nightmare was over but during the process had many uneasy days and nights. To me the DWI is a two headed monster with one head uglier than the other.

Ten Simple Rules

The below are general rules, often subject to obscure exceptions, and if unusual factors warrant, even very good general advice is best ignored (hence the name). Still, there are things which are not news, but worth a reminder.

1 - In your opening statement don't take on a burden, don't offer or promise to prove things.

2 - You are entitled to know the precise contents of jury notes, so long as they bear on substantive matters about evidence, law and the like, rather than scheduling or purely personal matters.

3 - The word "objection" doesn't preserve anything, you must specify your basis for the objection. There is an important exception: the word "objection", when spoken by a prosecutor, preserves every argument if the judge sustains.

4 - In a joint trial, if the codefendant's attorney objects, the issue is not preserved unless you formally join in the objection. And no, you can't announce at the start of trial that you each join in the other's objections. You have to repeat your agreement, even if that means doing so dozens of times. It's stupid, but it's the law. The Court of Appeals says so.

5 - [wherein I offered to to review any Public Defender SORA Risk Assessment]

6 - I think the best way to evaluate whether hearsay is offered for the truth of the matter asserted is to assume it's a lie, and ask whether we want to hear it anyway. If someone told the defendant "Joe just stabbed your spouse/pet/favorite curling player" and the defendant is accused of then attacking Joe, we want to know because the statement is potentially motive, even if it's a lie. If Joe were the accused, how would a similar statement be relevant at trial unless it were true?

7 - The pattern Question - "Officer, did you talk to the complainant?" Answer - "yes." Question - "and then what did you do?" Answer - "I arrested the defendant" is called inferential bolstering. It informs the jury indirectly that the complainant made the same statements as those made at trial, and thereby improperly bolsters their credibility. People v. Trowbridge says so.

8 - The identification of the defendant from a photo array does not come in at trial (CPL 60.25 & 60.30).

9 - Bigamy is not a continuing offense, and the statute of limitations runs from the invalid marriage. Yes, I've had this come up.

10 - When you are done arguing points in SORA, ask for a downward departure. It doesn't cost anything, and unlike the DA, you don't have to serve advance notice of your intent to request a departure from the point score. It lets you get in whatever beneficial things there are to say about your client, and if your client appeals it helps me a great deal if it turns out that your arguments on the points were, um, not so thoroughly compelling as to command assent.

Defeating A DWI

I love to surf, the internet that is. Just yesterday I punched in the above terms "defeating a dwi" and what pops up number one but an article by me. At first I was excited, a google number one, then my expression changed as I saw that my name was left off, and admin was put on as the author.

This was a website for a chemical that eliminates odor from your breath. It was being marketed to drinkers who wish to avoid detection as in if you are ever stopped for a traffic infraction just a quick spray and the cops will go away. As I delved further I found more articles sans name. My anger at this internet piracy grew. The articles mentioned the death of my father the day after my 17th birthday, the name of one of my friends, and other personal information. Everything was there except credit to moi! I'm just a little Upstate New York DWI defense lawyer but I do have feelings. Ithaca inspires me to write and share so it is with joy that I create but give a guy credit.

Their site and my articles sans my name and info.

www.sobriety-checkpoint.net

http://www.sobriety-checkpoint.net/category/dwi-sobriety-checkpoints/

http://www.sobriety-checkpoint.net/tag/case/

My original articles:

http://www.articlesbase.com/criminal-articles/defeating-the-new-york-dwi-refusal-case-1330173.html

http://www.articlesbase.com/criminal-articles/the-power-of-words-in-dwi-case-1335602.html

http://www.articlesbase.com/criminal-articles/what-do-sex-and-intoxication-have-in-common-1330200.html

http://www.articlesbase.com/criminal-articles/defeating-a-new-york-dwi-by-beginning-with-the-end-in-mind-1335399.html

So on that note I wish to highlight the power of "honesty" in defeating a DWI. Some may think me mad in advocating for truthfulness and openness with a criminal case but I have found that not trying to cover up your fears is a better philosophy and strategy for long term success.

Jurors are not stupid. They have the same doubts and concerns as the lawyer looking at the case. If you do not allay their questions openly they will most assuredly be discussing them back in the Jury room.

We as DWI defense lawyers can not look to sweep dirt under rugs and pray that it is never discovered. Everything can be seen from different perspectives. The key with good advocacy is to put yourself in everyone's shoes. Put yourself in the shoes of the juror, put yourself in the shoes of the cop, put yourself in the shoes of the prosecutor, and put your self in the shoes of the judge. Now the case can be seen as a total whole and not a bunch of random pieces or events.

The facts of any DWI case are nothing without context. Someone has to have a viewpoint of that fact.

This is from an actual case. Fact, a driver was pulled over for having headlights that were too bright. The officer in his report made no mention of investigating or asking about the headlights. The motorist only traffic violation was the headlights but no detail or documentation of this fact, just a single ticket plus of course the DWI investigation and subsequent criminal charges.

I demanded a suppression hearing on the stop (was there reasonable suspicion), and the arrest (was there probable cause). My plan of attack was a whole line of questioning, first on the importance of the report and it's detail, then on the fact that my client showed him the dashboard, demonstrated the lights on and lights off controls. The "stop officer" had one goal for this stop (investigate the bright lights) and this sole purpose was never addressed by his investigation/inquiry.

All the DWI criminal charges were dropped. This was with a .15BAC. The outcome was a DWAI (traffic violation) pre-trial. My thoughts for this case were always that jurors would want to know, the judge would want to know THE BIG WHY? If you say the stop was for x why are you not checking x, asking about x, and investigating x?

I was able to listen to my client and get "the story" of this DWI case. His story included the lights where the officer's did not.

btw that Company in California that "borrowed" my content without giving me credit:

Pure One International

3400 West Warner Ave., Unit A

Santa Ana, CA 92704

714-641-1430

fax 714-641-1432

Bytes for All (Website creation/hosting) from someplace overseas.

I really do believe what comes around goes around so God bless them and may they reap the fruits of the seeds they sow.

Lawrence Newman, Esquire

607-229-5184

Ithaca, NY