Prudent Counsel Will Continue to Challenge the Constitutionality of New York's Persistent Felony Offender Sentencing Statutes

Back in March, I wrote about the decision in Besser v Walsh, 601 F3d 163 [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 (PFO)sentencing statutes 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.”

Probably because I found it depressing, I never wrote about the en banc decision of the Second Circuit in Portalatin v Graham (624 F3d 69 [2d Cir 10/18/10]) which reversed that decision and held that in upholding the New York PFO sentencing statutes "the state courts did not engage in an unreasonable application of clearly established Supreme Court precedent in affirming the convictions."

Yet, in an indirect way, the decision of the New York Court of Appeals in People v Battles (_NY3d_, 2010 NY Slip Op 09160 [12/14/10]), in which that Court once again rejected a challenge to the constitutionality of New York's persistent Felony Offender sentencing laws, suggests that Portalatin is not necessarily the last word on this issue. The reason one see a glimmer of hope is that Chief Judge Lippman wrote a strong dissent in which he first pointed out that the Court in Portalatin did not "decide not whether the state court correctly interpreted the doctrine of federal law on which the claim is predicated, but rather whether the state court's interpretation was unreasonable in light of the holdings of the United States Supreme Court at the time." Then, Chief Judge Lippman wrote that there is no material difference between the California statute struck down by the United States Supreme Court in Cunningham v California (549 US 270 [2007]) "and our persistent felony offender sentencing statutes."

Chief Judge Lippman's dissent suggests that there is a chance that the Supreme Court would grant a petition for certiorari and then strike down New York's PFO sentencing statutes. I recognize that in writing that last sentence I sound like Lloyd in Dumber and Dumber when told by Mary his chances are one in a million (So you're telling me there's a chance... *YEAH!). But since there is a chance, however slight, prudent counsel will continue to raise constitutional challenge to the statutes. Otherwise, if these statutes are eventually overturned one's clients will not be able to directly challenge their unconstitutionally imposed life sentences.

Understand that when you raise such a challenge courts might respond like the court did in United States v Harris, 932 F2d 1529, 1537 (5th Cir. 1991):

Finally, the appellants raise the tired argument that the sentencing guidelines are unconstitutional since they permit the district court to resolve factual disputes without the benefit of a jury. This very contention has been raised before, and consistently rejected. See e.g., United States v. Byrd, 898 F.2d 450, 452-52 (5th Cir. 1990); United States v. Casto, 889 F2d 562, 569-70 (5th Cir. 1989), cert. denied, U.S. , 110 S. Ct. 1164, 1 (1990) [emphasis added]. Accordingly, we do likewise.

Of course, those "tired arguments" were eventually accepted by the Supreme Court in Apprendi v New Jersey (530 US 466 [2000]), Blakely v Washington (542 US 296 [2004]) and Cunningham v California (549 US 270 [2007]).

How do you spell "Pyrrhic victory"?

A new post. It's only been like a year and a half. Anyway, there's a new Appellate Division case you should read.

Matter of Carothers v GEICO Indem. Co., __ A.D. 3d, __, 2010 NY Slip Op 09256 (2d Dep't, 2010).

So Carothers did not get their bills into evidence because the sole witness at trial worked for a third-party billing company, and said billing company did not create the bills. Instead, the medical office would create the bills, the billing company would access them online, print them out, and mail them. The Appellate Division now affirms the holding of the Appellate Term that this is insufficient to establish the admissibility of the bills.

This is probably the correct outcome.

BUT...

The Appellate Division now holds (and this ain't dicta, this is essential to the holding) that "although a proper foundation can be established by a recipient of records who does not have personal knowledge of the maker's business practices and procedures, there must still be a showing that the recipient either incorporated the records into its own records or relied upon the records in its day-to-day operations." (Emphasis mine.)

Thus, where a third-party biller witness lacks personal knowledge of the medical provider's procedures, the biller can still get the bills into evidence so long as:
1) the information received from the medical office was incorporated in the billing company's records, OR
2) the information received from the medical office is used in the billing company's day-to-day operations.

In the standard scenario of a third-party biller witness (or affiant, for that matter) who creates the bills based on information received from the medical office, the biller should now be able to get the bills into evidence even if the biller has no personal knowledge of the medical office's procedures, so long as at least one of the elements of Carothers is satisfied.

This just so happens to overrule every Appellate Term decision that held that a third-party biller cannot get the bills into evidence solely on the basis that the biller lacks personal knowledge of the procedures of the medical office. See, e.g.,, Raz Acupuncture, P.C. v Travelers Prop. Cas. Ins. Co., 26 Misc 3d 132(A) (App. Term, 2d Dep't, 2010).

Merry Christmas.

President Obama signs Animal Crush Video Prohibition Act into law

On December 9, President Barack Obama signed the Animal Crush Video Prohibition Act of 2010 into law. The new law prohibits the creation and distribution of  so called “crush videos” and establishes penalties, inclusive of up to seven years in prison.

In April 2010, the United States Supreme Court struck down the original so called “Crush Act” due to a finding that its language to be overbroad and unconstitutional. The Court’s ruling did leave allow the Act to be rewritten and more narrowly tailored. 

The new law has a narrower focus than the prior law, but still prohibits creating or distributing depictions of non-human animals being intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury. The law exempts videos of hunting, trapping and fishing.

Link to the Animal Crush Video Prohibition Act.

Jail time in Michigan dog burning case

Kristian Dennard Jackson & Decarlos Lashawn Young pled guilty on December 1, 2010 to animal killing/torturing and arson of real property in Wayne County Circuit Court, Detroit, Michigan. In August 2010, they set a young pit bull on fire after a failed attempt at hanging her to death.

Both defendants were habitual third offenders and they pled to that as well. Young is to serve 17 months to 8 years, and Jackson is to serve 13 months to 8 years in the Michigan Department of Corrections. Both defendants are currently scheduled to be formally sentenced on December 16, 2010 

Can a Defense Counsel Validly Concede Guilt to One or More Counts Over the Defendant’s Objection?

In People v Colville (2010 NY Slip Op 07185 [2nd Dept. Oct 5, 2010]) the Second Department, without reaching a decision on the issue, engaged in detailed review of the arguments as to whether the decision to submit a lesser included offense is a fundamental one that must be made by the defendant or is a strategic one that can be made by counsel. The Colville court noted that courts have split on this issue, which has not yet been addressed by the New York Court of Appeals. On this issue the Appellate Division, Fourth Department, in People v Taylor (2 AD3d 1306 [4th Dept 2003]) held that "defendant was not denied his right to make a “fundamental decision[ ]” (internal citation omitted) when the court considered a lesser included offense charge after discussing the issue with defense counsel and the prosecutor, without input from defendant.”

What about the related issue of whether defense counsel may validly concede guilt to one of more counts over the defendant’s objection? One might think that such a concession is effectively no different than a guilty plea, and the decision whether to plead guilty is fundamental one for the defendant and not counsel (Jones v Barnes, 463 U.S. 745 [1983]; People v White, 73 NY2d 468 [1989]). Under such reasoning it would seem clear that counsel cannot make such a concession over the objection of the defendant. That position was recently rejected by the Court in Washington v Poole (_F Supp_, 2010 WL 3910176 (WDNY 10/6/10), in denying a petition for a writ of habeas corpus in which Mr. Washington urged that he was denied effective assistance of counsel when his counsel, over Mr. Washington’s objection, conceded Washington was involved in the robbery but disputed whether the handguns used during the robbery were “loaded and operable” so as to make Washington guilty of robbery in the first degree. The Court explained that

In Florida v Nixon, 543 US 175 (2004), the Supreme Court indicated that while defense counsel has an obligation to explain to the defendant a proposed strategy of conceding guilt at the guilt phase of a capital trial, counsel has no further obligation to obtain the defendant's express consent to this strategy. Id. at 189. In Nixon, during the guilt phase of a capital trial, the defense attorney conceded that his client had committed the murder. The strategy there was to establish credibility with the jury by conceding the murder, and then to seek leniency at the sentencing phase. However, the defendant was convicted of the murder and sentenced to death. The state appellate court in Nixon reversed the defendant's conviction and held that trial counsel's concession of guilt, without defendant's express consent, deprived the defendant of his right to the effective assistance of counsel guaranteed by the Sixth Amendment....The United States Supreme Court reversed. First, the Nixon court expressly rejected the proposition-also urged by petitioner here-that a concession of guilt is the functional equivalent of a guilty plea requiring the consent of the accused on the record. ...
Here, Washington has rested his ineffective assistance argument on counsel's failure to obtain his expression consent to the concession-of-guilt strategy, and has argued that prejudice must be presumed in these circumstances. The Supreme Court rejected this proposition in Nixon, holding that defendant must show both that the strategic decision to concede guilt was objectively unreasonable and that the defendant was actually prejudiced by the decision. See, e.g., Sondey v White, No. 05-71831, 2009 WL 4800413, at *24-25 (E.D.Mich. Dec.9, 2009) (“The lesson of Nixon, as reflected in cases decided both before and after that decision, is ‘that counsel's concession of a client's guilt does not automatically constitute deficient performance.’ Young v Catoe, 205 F3d 750, 759 (4th Cir.2000). More specifically, ‘conceding guilt to one count of a multi-count indictment to bolster the case for innocence on the remaining counts is a valid trial strategy which, by itself, does not rise to the level of deficient performance.’ United States v Holman, 314 F.3d 837, 840 (7th Cir.2002).”).

The court's reliance on the Supreme Court's decision in Nixon, a capital case, would be more persuasive if capital case jurisprudence always applies in the non-capital context. But that is not the case. For example, in Beck v Alabama (447 US 625, 638 [1980]) the Supreme Court held that although it would have been constitutional in a non-capital context, a state statute precluding consideration of an appropriate lesser included offense violated due process in a capital case.

Beating the Box or Breath Test Issues in a Nutshell

Winter in Ithaca, NY has finally arrived. Today it is 6 degrees with the windchill, yow! What's funny about that is by Ithaca Winter standards that is still fairly warm. I had a friend of mine visit one winter from Greece, and of course the day he came it was well below zero with the wind. He thought we were crazy to live here. He made it about 15 minutes outside before his breathing became labored and he started to look a bit pee kid.

Anyway, "THE" box, the definite article for sure. The box refers of course to the breathalyzer, aka the breath test, aka the Datamaster (the machine preference of City, Village, and Town Police), aka The Chemical test, aka The Alcotest (the machine preferred by NYS Troopers).

The Box provides a fast, easy, and cheap means to test the breath to indirectly compute a BAC (blood alcohol concentration). We can argue all day about: fast, cheap, easy, and indirect testing. The box is Not to be confused with the field breath test, called the alcosensor, done at roadside, and not admissible in NYS for a BAC result but merely to prove the consumption of alcohol.

There are Three main problem areas in Breath Testing:

1. problem with the person: medications, diseases of the lungs, ie. asthma, COPDs, allergies, diabetes, GERD (Gastro-Esophageal Reflux Disease), is it stomach contents, etc.

2. problem with the machine: out of calibration, simulator/reference solution has bad chemicals (out of date), broken parts, maintenance issues, temperature issues, etc.

3. problem with the operator: did not follow protocols, did not do proper observation prior to testing, used radio, phone, or beeper in room (Radio frequency Interference), did not check mouth for foreign substances, dentures, etc.

Is the BAC machine result reliable? Can the jury rely upon it?

Is the BAC machine result accurate? Is it a real number of the person's BAC?

Another potential issue:

TIMING: Is the machine BAC result (Post driving) a true measure of the BAC at the time of driving?

The idea of arguing that breath testing "in general" is bad, is inaccurate, and is unreliable is usually not the best approach. Juries want to have a "specific" reason or reasons why something like a breath test result in a specific case/situation is not to be trusted.

Beating the BOX then becomes a reality. Because in the end, the jurors should only follow and apply ONE presumption at trial, the POI (presumption of innocence). The government must prove their case, including the BAC result to the BRD standard (Beyond a Reasonable Doubt).

Removal of a Prospective Juror for Living in an Almost Exclusively Non-White Neighborhood is a Race Neutral Reason for a Peremptory Challenge

People v Black (_ NY3d_, 2010 NY Slip Op 08766 [11/3010]) is one of the four cases with Batson issues that the Court considered in People v Hecker. The Court, in part, determined whether the trial court was correct in finding that the District Attorney had put forth a race neutral reason for using a peremptory challenge to remove prospective juror Gordon. The People's reasons for striking Gordon were twofold: she was unemployed and lived in East New York, the neighborhood adjacent to the crime scene.

The trial court determined that these reasons advanced by the People were race neutral and invited defense counsel to argue why it should find these reasons to be pretextual. First, defense counsel noted that East New York is the largest "identifiable neighborhood" in Brooklyn and nothing about Gordon's answers in voir dire suggested that she lived near the vicinity of the crime scene. Next, defense counsel asserted that the unemployment status of Gordon should not be held against them in evaluating their qualifications to serve as jurors.

The Court of Appeals agreed that these were acceptable race neutral reasons, explaining that

A party, for example, might not want a prospective juror who lives in a particular neighborhood or who works in a certain field to sit on the jury because that party believes — for reasons unrelated to the facts of the case — that such individual may have a more sympathetic attitude or view toward the opposing party.

This might not seem all that unusual a holding unless one considers a critical fact not mentioned in the decision: East New York is a large neighborhood in Brooklyn (more than 170,000 residents) that is virtually entirely non-white. According to the 2000 census only about two percent of the residents of East New York are white (see). (For a detailed description of East New York's demographics, see Thabitt, How East New York Became a Ghetto.

Thus, there is a real danger that excusing a juror for living in East New York, in a case in which the crime did not occur in East New York, is functionally no different than excusing a juror for being non-white. The Court’s decision utterly fails to discuss how to determine whether the removal of an African American juror for living in an entirely non-white neighborhood was a race neutral reason for exercising a peremptory challenge or simply a race-proxy means for removing a non-white juror.

The need for guidance is particularly great for trial in Brooklyn, a borough comprised of highly segregated neighborhoods, in which two thirds of African Americans live in neighborhoods in which they comprise at least 65% of the population (see). If a prospective juror's neighborhood is always accepted as a race neutral reason for a peremptory challenge, an attorney in Brooklyn can easily remove most African American jurors by stating that the reason for the challenges is the (predominantly African American) neighborhood in which they reside.

In the Batson context, Justice Marshall, long ago recognized the danger that neighborhood might be a proxy for race (Lynn v Alabama, 493 US 945, 947 [1989] [Marshall, J., dissenting from denial of certiorari] [“In a small community with racially identifiable neighborhoods, an individual's address closely corresponds to his or her race”].

Similarly, the Ninth Circuit Court of Appeals, in a case in which the prosecutor exercised a peremptory challenge of a black prospective juror because the neighborhood of her residence would tend to cause her to believe that “police in Compton . . . pick on black people ”, held that “the prosecutor's invocation of residence rested on a stereotypical racial reason”and that “[r]esidence...often acts as an ethnic badge. As study after study has showed, residence, especially in urban centers, can be the most accurate predictor of race” (United States v Bishop, 959 F2d 820, 827-828 [9th Cir 1992]).

Subsequently, however, in Boyde v Brown, (404 F3d 1159, 1171 [9th Cir 2005]) either sharply limited or overruled this holding:

It may be unpersuasive for a prosecutor to use residence without attempting to tie it to the facts of the case. A trial court could consider that lack of explanation when it decides, in Batson's third step, whether to credit the prosecutor's explanation or find that residence was a pretext for what was really a race-based challenge.... (“It is not until the third step that the persuasiveness of the justification becomes relevant.”). To the extent Bishop suggests that the race-neutrality of an explanation depends on its persuasiveness, it has been effectively overruled by Purkett [ v Elem, 514 US 765, 768 (1995)].