Ass Clown

"TTT,

Instead of constantly putting a hatchet to the firms and staffing agencies, why don't you focus instead on some of the psychoids, perverts, and malcontents that somehow get staffed on these projects and make life a living hell?

I am currently on a nice foreign language review gig that was generally going well up until today. Some ass clown (who was probably playing around on some illicit website) downloaded a virus onto the server and crashed the entire project's network system. How about before we hire someone we run their name through a sexual perversion watchlist? Not only did dozens of people lose out on an opportunity for hours today, but just wait until the client finds out about this. Just another wonderful day in the oh-so "distinguished" practice of law."

Court of Appeals Apparently Recognizes Inferential Objections

In the past the Court of Appeals has held "a party's failure to specify the basis for a general objection renders the argument unpreserved for [that] Court's review (see, People v Dien, 77 NY2d 885, 886; People v Tevaha, 84 NY2d 879; People v Ford, 69 NY2d 775, 776)." People v Tonge, 93 N.2d 838, 839 (1999). So one might think that where counsel failed to place any objection on the record the issue was not preserved for review as a matter of law.

But that is not what the Court held in People v Caban (2010 NY Slip Op 02674 [4/1/10]) in which the People moved before trial for the admission of evidence about an earlier driving incident,

and the trial court denied the motion insofar as it related to the People's case in chief. The parties interpreted this ruling differently: The prosecutor thought she was not barred from introducing, on her case in chief, proof that defendant's license was suspended, while defense counsel thought that the court's ruling excluded that evidence also. The conversation in which the parties disagreed was off the record, but was recited to the court on the record by the prosecutor, who asked the court for clarification; the court resolved the ambiguity in the People's favor.

The Court held that it

is true that the defense lawyers never said on the record "we object to this evidence," but they did not have to, because their objection was clear from the prosecutor's summary of their position. Because the trial judge was made aware, before he ruled on the issue, that the defense wanted him to rule otherwise, preservation was adequate. The Appellate Division's reversal was therefore based on a question of law that we may review.

Thus, the Court held, without citing any authority, that the District Attorney's summary of the dispute constitutes the required objection.

I expect this holding to be cited frequently by appellate counsel. And not just in cases in which, like Mr. Caban's the People are urging that the matter was preserved so that the Court of Appeals would have authority to reverse an Appellate Division's reversal (as the Court did in Mr. Caban's case).

The Price of Success

Everything has a cost. Nothing is ever truly free. I tell people beware of freebies. Beware of the free lunch or the easy anything. Things of "value" have a price. Of course, the word value is the kicker.

So what is it that we value? First and foremost, I think that those that are building a future for themselves value their name and reputation. I guess if you are not planning to venture forward to bigger and better things having a lifetime criminal conviction on your permanent record would not matter. For those that are dreaming of jobs, positions, professions, prospects, and opportunities their life file of pluses and minuses can impact their future choices and their options.

People ask me many of the same questions again and again. The BIG Question in DWI defense: What is the difference between a DWI and DWAI? The main difference, the crucial difference is that one makes you a criminal (a person with a criminal conviction) on their record and one does not. The money and other associated pains, as in the fines, state surcharges, DMV fees, classes, etc. are not that different between the DWs (the driving while...).

If you want to fight the charges. To contest the evidence. To challenge the government. All of that comes with a price. It takes time, money, and effort. In some cases, we need expert witnesses. We need experts to testify about your asthma, your reflux, your diabetes, your medications for allergies, and any other reason why your breath test result (your BAC) was what it was, and not because you were intoxicated. Defenses like these do not come cheap.

Wars are never easy or inexpensive, and trials are wars. The government has the power to charge and prosecute, and the resources to accomplish this. They often exercise this power without discretion. Those that are naive believe that their lifetime of good work, achievement, standing, and clean living will somehow negate the government's intent on pursuing prosecution of crimes.

The prosecutors do not care about any of that. Their focus is always on: can they make out their case against you? Can they make the charges stick? In theory, they are supposed to seek justice but in truth they seek convictions.

New York State DWIs are not commonly (rarely) reduced to non-criminal dispositions. Those with BACs of 0.12 or higher should brace for a bumpy ride. In 2010, refusal (without a breath test) cases are being prosecuted just as seriously.

I am committed to the challenge of DWI defense. I have a wife and four kids and they all pay the price of my learning. Getting to and attending conferences thousands of miles away comes with a large price. Many long weekends spent in airports, planes, hotels, and conference centers takes it's toll on marriage and family life. I believe learning can never and should never end.

This year, I have already been to three Gerry Spence Trial Lawyer College conferences (one in January in California, another in Texas, and another in Washington state). I am about to jump on a plane in the morning for the annual Texas Criminal Defense Lawyers DWI seminar in New Orleans, Louisiana. It is called "Mastering Scientific Evidence" and we will be working with the breath machines. These are not sit in the room and take notes types of get togethers. We have mock DWI trials, we have hands on work with the Datamaster breathalyzers, and we practice skills building exercises. Defending DWI cases demands hard work, diligent focus, and persistent effort to be successful. I invest in success so that when my clients place their trust and faith in me as their attorney it stands on current education and experience.

New York and the Second Circuit Courts of Appeal Differ On The Test For Determining Ineffective Assistance of Appellate Counsel

What is the standard for determining whether appellate counsel provided effective assistance?

In 2009, the New York Court of Appeals in People v Borrell (2009 NY Slip Op 03589, 12 NY3d 365[2009] held that the test if not whether appellate counsel failed to raise a potentially winning and potentially dispositive issue, but whether the failure of appellate counsel to raise such an issue deprived defendant of the advocacy to which he was constitutionally entitled. The Court explained that “[t]o be meaningful, appellate representation need not be perfect, and representation may be meaningful even where appellate lawyers have failed to brief potentially meritorious issues.” (One wonders if clients think that appellate counsel who failed to raise a meritorious issue was effective).

By contrast, in Ramchair v Conway (-- F3d --, 2010 WL 1253893 [2d Cir 2/2/10] the United States Court of Appeals for the Second Circuit repeated its prior holdings that that “to establish ineffective assistance of appellate counsel, [the movant] must show that ‘counsel’s representation fell below an objective standard of reasonableness,’ and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different” (Forbes v 16 United States, 574 F3d 101, 106 [2d Cir. 2009] [per curiam])and that an appellant “may establish constitutionally inadequate performance if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker” (Mayo v Henderson, 13 F3d 528, 533 [2d Cir 1994]).

Applying this far less stringent test, the Court in Ramchair v Conway held that a New York appellant had been denied his right to effective appellate counsel when his counsel failed to raise a meritorious issue, but had raised two weaker issues, instead. Previously, the New York Court of Appeals had affirmed a rejection of that claim (People v Ramchair, 8 NY3d 313, 316 [2007]) reasoning that appellate counsel's brief to the Appellate Division had been “comprehensive,” and the arguments raised therein “strong” (Id.). The New York Court of Appeals concluded that “appellate counsel might have determined as a matter of reasonable appellate strategy that there was a greater likelihood of success pursuing the right to present a defense argument, rather than focusing on the mistrial application" (Id., 8 N.Y.3d at 317). By contrast, the Second Circuit found that raising issues that had minimal support in the law, while failing to raise the issue which a reasonable appellate court would have granted, deprived Mr. Ramchair of his right to effective assistance of appellate counsel and that the New York Court of Appeals' conclusion to the contrary was unreasonable.

Of course, pursuant to the Supremacy Clause of the United States Constitution (US Const Article VI, Clause 2) New York may not afford criminal appellants a lesser degree of protection of the right to effective assistance of appellate counsel than provided under the United States Constitution. But what is the correct standard? Ultimately, only the United States Supreme Court can answer that.

Nora Anderson Is Aquitted Of All Charges And Takes Her Seat As Manhattan Surrogate

Nora Anderson, elected as Manhattan Surrogate to replace Judge Renee Roth butunable to take her seat on Jan. 1, 2009 because she was indicted for election finance fraud, has been found innocent and now will take her seat. This will remove Temporary Surrogate Judge Troy Webber, who, working with the Attorney General's office and the Public Administrator, locked me in her courtroom on April 1, 2009 in order to threaten me with contempt of court if I wrote anything about her denial of my Constitutional rights as she put me on trial without a jury.

Here is the complaint I filed in Federal court:

RICO in the New York State Unified Court System: How the Courts Steal Your Property, Your Children, and Try To Destroy Your Life...And How You Can Stop Them


After the trial ended on September 14, 2009, I received the "missing" hospital records of my mom's emergency care at Lenox Hill Hospital when she was physically attacked by my twin sister on July 25, 1997. In these records, my mom told the hospital staff that her daughter Julia Danger had hurt her. This attack caused my mom to change her Will, on November 22, 1997, leaving her apartment to me. The fact was covered up by the Surrogate Court for twelve years, in order that the property left to me in my mom's Will could be taken by the Court.

As of April 1, 2010, Judge Webber has never made a decision on the Probate of the Will of my mom, Julia Elizabeth Taschereau.

Surrogate Acquitted in Election Law Case
The New York Law Journal by Daniel Wise - April 2, 2010

Manhattan Surrogate Nora S. Anderson and a co-defendant, Seth Rubenstein, were acquitted yesterday in a verdict that could blow a hole in the contribution limits under the state's campaign finance law. After deliberating for about eight hours over two days, the jury found that the prosecution had failed to prove beyond a reasonable doubt that the judge and Mr. Rubenstein had lied in campaign filings about $250,000 pumped into her 2008 primary campaign for Manhattan surrogate. Surrogate Anderson sobbed with relief as the verdicts were announced. Prosecutors had contended that Mr. Rubenstein was the source of the $250,000 and that, as a candidate, Surrogate Anderson had falsely reported the funds as coming from her. The defense contended the funds were a gift and a loan and that the candidate was free to use them as she chose. The verdict frees Surrogate Anderson to assume her seat, possibly as early as Monday. She has been suspended with pay since Jan. 1, 2009. David Bookstaver, a spokesperson for the court system, said "we will assure an orderly transition in the coming days." Bronx Supreme Court Justice Troy K. Webber (See Profile) has been serving as the interim Manhattan surrogate.

The prosecution presented undisputed facts to back up a strong case that the source of the $250,000 had been masked by Mr. Rubenstein and Surrogate Anderson: In the month before the 2008 Democratic primary, Mr. Rubenstein twice transferred funds into the candidate's personal accounts: $100,000 on Aug. 12 and $150,000 on Aug. 25. On Aug. 19, Surrogate Anderson donated $100,000 to her campaign and on Aug. 26, she loaned her campaign $170,000, $20,000 of which prosecutors acknowledge was her own. Manhattan Assistant District Attorney Daniel G. Cort argued that the money came at a critical time for the cash-strapped campaign with vendors refusing to carry out vital tasks without an up-front payment. With Mr. Rubenstein having the needed funds but unable to make them available without exceeding campaign contribution limits, and Ms. Anderson lacking the assets needed to reinvigorate her campaign, Mr. Cort contended that it would take an "Olympic leap of mental gymnastics" to find a legitimate purpose for funneling Mr. Rubenstein's funds through Ms. Anderson. The acquittal on those facts essentially eliminates the limits on the amount of money individuals may make to candidates, several election law experts said. In the 2008 Manhattan primary, the limit was $33,122. Amounts loaned to a campaign are treated as contributions if not repaid by primary day, which in 2008 was Sept. 9. Henry T. Berger, an election law expert, said the verdict "effectively means there are no campaign limits. Anyone who wants to can evade the limits by making a gift to the candidate, as long as they pay the gift tax and don't require that the money be spent in the campaign." Another expert, Lawrence A. Mandelker, of Kantor, Davidoff, Wolfe, Mandelker, Twomey & Gallanty, said the verdict creates a hole in the disclosure law which "the Legislature will have to address." He added that the prosecution's case had been made more difficult after Acting Justice Michael G. Obus (See Profile), who presided over the trial, had dismissed eight of 10 counts in the indictment. All of the counts alleging direct violations of the election law were dismissed, and only the two false filing counts were allowed to go forward because the filing took place in Manhattan while the underlying acts occurred at Surrogate Anderson's headquarters, which were located in Mr. Rubenstein's office in Brooklyn.

The question of ownership was harder to prove under the filing counts, Mr. Mandelker said, than under the dismissed charges, which make any gift or loan "in connection with an election" a crime. The two defense lawyers—Gustave H. Newman for Surrogate Anderson and Frederick P. Hafetz for Mr. Rubenstein—during trial hammered away at reasonable doubt stressing inconsistencies and ambiguities in both the state Election Law and the prosecution's expert witness, William J. McCann, the lawyer at the Board of Elections in charge of enforcing the state campaign finance laws. Yesterday morning the jury asked for a read back of Mr. McCann's testimony which took close to an hour and a half. About an hour of the read-back dealt with Mr. McCann's cross-examination by Mr. Hafetz. Roughly 20 minutes after the read-back was completed, the jury informed Justice Obus that it had a verdict. Read Mr. McCann's direct testimony and testimony on cross examination. Messrs. Newman and Hafetz during the trial cited numerous ambiguities in the election law and the way it is administered. Mr. Hafetz delivered a particularly harsh attack on Mr. McCann, calling him "pompous," the "professor of presumptions" and "a walking definition of reasonable doubt." In one instance cited by the two defense lawyers, Mr. McCann testified that the handbook prepared by the board to assist candidates in filling out disclosure forms was "wrong" when it stated that gifts from a candidate were not considered contributions. In another, they pointed out that Mr. McCann had categorized Ms. Anderson as the agent of her campaign committee. That categorization, Mr. Hafetz told the jury, was essential to "bootstrap" Mr. Rubenstein's gift to the candidate into a contribution to the committee. The problem, Mr. Hafetz related, was that there was no mention of a candidate being a committee's agent in the 2007 version of the handbook, which was the only one available to the Anderson campaign.

Expected to Take Bench

Richard Godosky, who represented Surrogate Anderson in opposing her suspension while she fought the criminal charges, said "I assume she will take the bench on Monday and Justice Webber will return to the Bronx." Gary Spencer, a spokesman for the Court of Appeals, said Wednesday that Surrogate Anderson's suspension would dissolve by its own terms upon acquittal. The surrogate won a three-way Democratic primary race in 2008, defeating Manhattan Justice Milton A. Tingling (See Profile) and John J. Reddy Jr., counsel to the Manhattan public administrator. She then coasted to victory without opposition in the general election. The Court of Appeals suspended her three days before she was scheduled to take office. If convicted, Surrogate Anderson, 57, and Mr. Rubenstein, 82, could have been sentenced to prison for a maximum term of 1 1/3-to-4 years. Surrogate Anderson was also represented by Richard A. Greenberg. Daniel Wise can be reached at dwise@alm.com.

Here's the New York Times Story:

Manhattan Surrogate’s Court Judge Is Acquitted
The New York Times by JOHN ELIGON - April 1, 2010
LINK

A jury decided on Thursday that a judge in Surrogate’s Court in Manhattan, along with her mentor and former boss, did not break the law by making transactions that ended with a $250,000 contribution to the judge’s campaign. Judge Nora S. Anderson, 57, was acquitted of two felony counts of intentionally filing false campaign reports. Her former boss, Seth Rubenstein, a lawyer in Brooklyn, was acquitted of the same charges. The verdict means that Judge Anderson, who was suspended as soon as she took office on Jan. 1, 2009, because of the charges, will be permitted to take her seat, said Gary Spencer, the spokesman for the New York Court of Appeals, the state’s highest court. The actions at issue in the case were never in dispute. During Judge Anderson’s 2008 race for Surrogate’s Court, which handles wills, estates and adoption matters, Mr. Rubenstein twice gave money to her — $100,000 on one occasion and $150,000 on another — and she directed that money to her campaign war chest. Prosecutors said that Judge Anderson lied on financial disclosure reports filed with the city that listed her as the source of the money. Mr. Rubenstein, 82, funneled the money this way to avoid exceeding the individual donor limit of $33,122.50, the prosecution said. Defense lawyers conceded that Mr. Rubenstein gave Judge Anderson the money as a gift with the hope that she would use it for her campaign. But once he had given it to her, they said, it was hers to spend as she pleased, so the statements on the disclosure reports were true. The jurors said little as they left the courtroom. “There were certain things that were unclear” about the case, said the foreman, John Wilson. He declined to offer details, adding only that “there was enough reasonable doubt among the minds of the jurors.” Some experts said Thursday that the verdict underlined the need for Albany to reform campaign finance laws. “This just eviscerates campaign contribution limits,” said Henry T. Berger, an election lawyer. “Anybody can give as much as they want to the candidate they want simply by giving it to the candidate, and not the campaign, as long as they pay the gift taxes on it.”

Judge Anderson sobbed as the verdict was read. As she left the courthouse, she was all smiles. “I’m very happy,” she said, declining to comment further. “Feels terrific,” said her husband, Tony Levell. “It was an arduous ordeal for her.” But Judge Anderson is not in the clear yet. Before the case went to trial, Justice Michael J. Obus, who presided over the case in State Supreme Court in Manhattan, threw out several of the prosecution’s charges, saying that they were out of the Manhattan district attorney’s jurisdiction because the transactions between Ms. Anderson and Mr. Rubenstein occurred in Brooklyn, where his office is. Now, the Brooklyn district attorney’s office plans to investigate the charges, said Jerry Schmetterer, a spokesman for the office. The state’s Commission on Judicial Conduct also has the authority to bring ethics sanctions against Judge Anderson. Robert H. Tembeckjian, the commission’s administrator, said he could not comment on whether the commission would pursue a case. “The law is clear that people are allowed to give gifts” to candidates for office, said Jerry H. Goldfeder, an election lawyer who was a consultant for the defense on the case. “That’s what the law is. Is it good policy? That’s a different issue.”

Laurence D. Laufer, another election lawyer who advised the defense, said the trial had exposed three ambiguities in the state’s campaign finance law. “When does a personal gift become a contribution? When should that be disclosed? Who should make the disclosure?” he said. “The bottom line is it’s time for the Legislature to get serious and seriously consider an overhaul that provides clarity and simplicity about what is required under campaign finance.” Although this case exposed a loophole in campaign finance law, it is not as large as people might think, said Lawrence A. Mandelker, an election lawyer who also was a defense consultant. There may still be a case to be made over whether the transactions in Judge Anderson’s case were illegal contributions. A provision of campaign finance law defines a contribution as a gift or loan made in connection with an election, Mr. Mandelker said. But the jury did not have to consider that because the related charges were among those that Justice Obus had dismissed. Instead, the central question for jurors was to whom the money belonged once Mr. Rubenstein had given it to Judge Anderson. “The jury would view the actions of these defendants as innocent,” Mr. Mandelker said, “not done with the intent to defraud, but with the intent to legally structure the transactions in a way that would not violate the law.”

December 11, 2008
Judge-Elect Is Indicted Over Donations to Her Surrogate’s Court Race
By JOHN ELIGON

The Democratic primary was nearing and Nora S. Anderson, a candidate for judge in Manhattan Surrogate’s Court, was running low on campaign money. She had campaign materials to print and mail, and staff members to pay, prosecutors said.

Toward the end of August, Ms. Anderson got just what she needed. Two payments totaling a quarter of a million dollars were deposited into her campaign account, and in disclosure reports filed with the state, Ms. Anderson, a lawyer, said she had made a loan and a donation to herself.

But the money did not come from her own funds, prosecutors said on Wednesday. The actual source, prosecutors said, was Seth Rubenstein, a lawyer who was Ms. Anderson’s boss, friend and campaign adviser.

Ms. Anderson and Mr. Rubenstein conspired to conceal the money trail, prosecutors said, to avoid exceeding the individual donor limit of $33,122.50. State law allowed Ms. Anderson to contribute as much of her own money to her campaign as she wished.

“They took fairly elaborate steps to evade the law,” said Robert M. Morgenthau, the Manhattan district attorney (pictured at right)



Ms. Anderson, 56, went on to beat Justice Milton Tingling of State Supreme Court and a lawyer, John Reddy, in the primary and was unopposed in the general election last month. She was in court Wednesday, but as a defendant, not a judge.

Ms. Anderson and Mr. Rubenstein were indicted in State Supreme Court in Manhattan on felony charges of filing false documents and falsifying business records. If convicted, each faces up to four years in prison.

They also face misdemeanor counts of knowingly and willfully violating contribution limits, punishable by up to a year in jail.

“Here you have $250,000 coming from Rubenstein made to appear like it was coming from Anderson,” Mr. Morgenthau said at a press conference. “That’s the crux of the case.”

Gus Newman, Ms. Anderson’s lawyer, said his client was innocent and still deserved her seat on the bench. An indictment does not require her to step down, prosecutors said.

“Before these charges she had a totally unblemished reputation,” Mr. Newman added. “When all the facts come out in the courtroom, it’ll be clear that Nora’s reputation will be restored and that she’s totally innocent of any wrongdoing.”

Ms. Anderson and Mr. Rubenstein pleaded not guilty before Justice Bruce Allen. Both were ushered into the courtroom in handcuffs. Ms. Anderson wore black stilettos, a dark blue pinstriped suit, a Burberry coat and a pearl necklace. Mr. Rubenstein wore his thinning gray hair pulled back in a ponytail and a dark suit with a red tie.

Both ignored reporters’ questions as they left the courthouse.

The New York Court of Appeals, the state’s highest court, is expected to decide whether to suspend Ms. Anderson before the end of the year, said David Bookstaver, a spokesman for the Office of Court Administration.

The court may discuss a suspension now but cannot take action until Jan. 1, when Ms. Anderson’s term officially begins. A felony conviction would most likely result in her removal from the bench by the Court of Appeals.

If Ms. Anderson resigns, it will be up to Gov. David A. Paterson to appoint someone to take her place until the general election in November, Mr. Bookstaver said. If she were to take the bench but is then suspended, the state’s chief administrative judge, Ann Pfau, would appoint a temporary replacement, Mr. Bookstaver said.

Surrogates’ courts are no strangers to scandal. In 2005, Michael H. Feinberg, a surrogate in Brooklyn, was removed after the State Commission on Judicial Conduct found that he had awarded $8.6 million in legal fees to a friend without verifying that the friend had done the work. Judges in surrogate’s courts, as the handlers of wills, estates and guardianships, have the power to appoint lawyers to lucrative cases.

The Manhattan district attorney’s office began investigating Ms. Anderson after receiving a tip over the summer, said Daniel J. Castleman, the chief assistant in the office.

As part of the investigation, prosecutors also examined a $225,000 loan that Mr. Rubenstein gave Ms. Anderson in April. The loan could have been considered a contribution that exceeded limits because it was not repaid by the primary, Mr. Castleman said. But Ms. Anderson repaid that loan with her own money shortly after the primary, he said, and the office did not file charges in relation to that.

The focus of Wednesday’s charges was two large deposits made to Ms. Anderson’s campaign account in August.

The first, for $100,000, was posted to her campaign account on Aug. 20, one day after Ms. Anderson deposited a check from Mr. Rubenstein for the same amount into her personal bank account, prosecutors said.

The second payment, for $150,000, was wired into Ms. Anderson’s campaign account on Aug. 26, the same day Mr. Rubenstein transferred that exact amount of money into Ms. Anderson’s personal brokerage account.

Mr. Rubenstein’s lawyer, Frederick P. Hafetz, said his client did not commit a crime.

“Mr. Rubenstein acted totally within the election law,” Mr. Hafetz said. “We are confident he will be vindicated at trial.”

Mr. Reddy, one of the defeated candidates, said, “I take no joy in any of this,” but declined to comment further.

Ms. Anderson, working as a lawyer for Mr. Rubenstein’s firm, has handled only Surrogate’s Court cases for the past decade, said her lawyer, Mr. Newman.


Nora S. Anderson leaving court after her indictment on campaign finance charges. She was elected a surrogate last month.

Even as she was being investigated, Ms. Anderson was preparing to take the bench.

She took the oath of office during a private ceremony last week, according to Janet Mishkin, the principal law clerk for Kristin Booth Glen, one of the two judges currently serving in Manhattan Surrogate’s Court.

It is customary for judges to hold private swearing-in ceremonies before they take the bench. But the oath does not become official until Jan. 1, after it is filed with the city clerk’s office.

If she were to take the bench, Ms. Anderson would replace Renee R. Roth and serve alongside Judge Glen, who administered the oath.

Mick Meenan contributed reporting.

Timing Is (Nearly) Everything - If You Want A Missing Witness Charge

A reminder: In 1986 the Court of Appeals held that a party seeking a missing witness instruction has the burden of making the request "as soon as practicable" (People v Gonzalez, 68 NY2d 424, 428 [1986]). So , if an attorney doesn't not make a reuesst for such a chargeas early as practicable a coourt may proeprly deny the request,e ven if the requirements of the charge are otherwise met.

In People v Carr (2010 NY Slip Op 02677 [NY 4/1/10]) the Court explained that

Whether such a request is timely is a question to be decided by the trial court in its discretion, taking into account both when the requesting party knew or should have known that a basis for a missing witness charge existed, and any prejudice that may have been suffered by the other party as a result of the delay.

In Carr, where the defendant knew at the outset of the trial that the People did not intend to call three of the victim's relatives who were present at the time of the alleged crime, the Court held that the trial did not abuse its discretion in holding that defendant's request for a missing witness charge, made more than a week after the People provided their witness list, and after the People had rested their case in chief, came too late.

Strip Searching Everyone At a Search Warrant Execution

Today in People v Mothersell (2010 NY Slip Op 02677 [NY [4/1/10]) the Court of Appeals struck down the use of a search warrant which permitted the search of "all persons present" to justify 'visual' body cavity searches (I think this means the search was limited to visible body cavities) of persons at the scene of the search warrants execution who were not arrested and were searched solely based on the search warrant. It did not hold that "all persons present" search warrants are always invalid, but it did hold that the SW must demonstrate probable cause to search each person authorized for a search. The ruling would require substantial factual allegations regarding a location before permitting the conclusion that everyone there must be involved in drug activity.

Outside of such intrusive searches based on such limited justification, the language of the decision may be particularly useful as it ignored the "pages of boilerplate allegations" and instead focused on the "few relevant particulars", which in this case was was a couple of drug purchases from the apartment in question.

The court also rejected as insufficient to meet the "substantially probable" threshold an allegation that it is "not uncommon" that those present at an apartment where drugs are sold "could reasonably be expected to conceal cocaine". Finally, the court reaffirmed that substantial proof is required to justify a body cavity search, even the ones you can see.