Valid Waiver of Right To Appeal Held Not To Encompass Denial of Youthful Offender Status Not Mentioned at Waiver

In People v Anderson ( 2011 NY Slip Op 09364 [4th Dept 12/23/11]), after holding the that there was a valid waiver of appeal, the Appellate Division, Fourth Department held that

We agree with defendant, however, that the waiver does not encompass his further contention concerning the denial of his request for youthful offender status. No mention of youthful offender status was made before defendant waived his right to appeal during the plea colloquy. Under those circumstances, we conclude that defendant did not knowingly waive his right to appeal with respect to Supreme Court's denial of the request by defendant for youthful offender status at sentencing (see generally People v McCarthy, 83 AD3d 1533, lv denied 17 NY3d 819; People v Fehr, 303 AD2d 1039, lv denied 100 NY2d 538; People v Hendricks, 270 AD2d 944).

The Court then rejected the defendant's contention that the court abused its discretion in denying his request for youthful offender status and declined to exercise our interest of justice jurisdiction to adjudicate him a youthful offender.

The Issuance of an Appearance Ticket Doesn't Not Justify a Search "Incident to Arrest"

A pre-requisite of a valid search incident to arrest, is an arrest. "If there is no arrest, however, there can be no search incident thereto (see People v Evans, 43 NY2d 160, 165-166; People v Erwin, 42 NY2d 1064, 1065)." People v Kalikow (2011 NY Slip Op 09452[4th Dept 12/23/11]). In, Kalikow, the Fourth Department held that where a police officer merely issued an appearance ticket to defendant for violating a municipal open container ordinance and had no intention of performing a custodial arrest, but defendant nevertheless was searched, the search cannot be justified as a search incident to a lawful arrest.

Bullcoming v New Mexico (131 SCt 2705) Applied By the Fourth Department

In recent years, the application of the right to confrontation in the context of laboratory or DNA test evidence has been the subject of much litigation at the United States Supreme Court

In Melendez-Diaz v Massachusetts (129 S.Ct. 2527 [2009]), the Supreme Court held that it violate the right of confrontation for a prosecutor to submit a chemical drug test report without the testimony of a person who performed the test subject to confrontation. Thus, the admission at trial of three sworn “certificates of analysis” or affidavits showing the results of the forensic analysis performed on samples of the seized white powder was reversible error where the analyst did not testify. The Court rejected the ideas that the right to confrontation only applied when the evidence accused someone of a crime or didn’t apply to scientific tests, noting that crime labs have provided unreliable evidence in the past, and said that confrontation would help find the truth.

Then, in Bullcoming v New Mexico (564 U.S. __,131 S.Ct. 2705 [2011]), the Court held that under the confrontation clause “the accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.”

However, in People v Pealer (2011 NY Slip Op 08397 [4th Dept 11/18/11] the Appellate Division Fourth Department held that these holdings do not apply to the calibration and simulator solution certificates used in verifying the accuracy of the breathalyzer test, on the ground that these documents were testimonial subject to the right to confrontation.

A month later, in People v Morrison (2011 NY Slip Op 09450 [12/23/11]) the Fourth Department had a second opportunity to consider the application of Bullcoming. The Court held

Defendant further contends that the admission in evidence of a certified DNA report prepared by an analyst who did not testify at trial and the testimony of an analyst who testified at trial regarding that report violated his rights under the Confrontation Clause of the US Constitution Sixth Amendment (see generally Crawford v Washington, 541 US 36, 50-54). We agree. "The Sixth Amendment to the United States Constitution guarantees a defendant the right to be confronted with the witnesses against him [or her]' " (People v Brown, 13 NY3d 332, 338). "This provision bars admission of testimonial statements of a witness who did not appear at trial unless he [or she] was unavailable to testify, and the defendant . . . had a prior opportunity for cross-examination' " (id., quoting Crawford, 541 US at 53-54). We must therefore determine whether the statements were "testimonial," because only testimonial statements are subject to the Confrontation Clause (see Davis v Washington, 547 US 813, 821).

In Brown (13 NY3d at 336), the report in question contained machine-generated raw data, graphs and charts of a male specimen's DNA characteristics that were isolated from a rape kit. The Court of Appeals held that the report was not testimonial inasmuch as there were "no conclusions, interpretations, or comparisons apparent in the report" (id. at 340; see People v Thompson, 70 AD3d 866, 866-867, lv denied 15 NY3d 757). The forensic biologist who conducted the actual analysis that linked the defendant's DNA profile to the profile in the victim's rape kit was in fact called by the People as a witness in Brown (id. at 340). That was not the case here, where the analyst who performed the tests and concluded that the DNA mixture profile from the vaginal swab sample was consistent with DNA from the victim mixed with DNA from defendant was never called to testify. Contrary to the People's contention, the analyst who was called to testify, i.e., the supervisor of the other analyst, did not perform her own independent review and analysis of the DNA data. Rather, her testimony makes clear that she had nothing to do with the analysis performed by the uncalled witness, and that her only involvement was simply reading the report after it was completed to ensure that the uncalled witness followed proper procedure. The People could not substitute her testimony for that of the actual analyst who performed the tests in order to avoid a violation of the Confrontation Clause (see Bullcoming v New Mexico, ___ US ___, ___, 131 S Ct 2705, 2709-2710).

The Court then determined that this error was harmless, since the defendant had confessed.

Whether the holding of People v Brown (13 NY3d 332) was correct will likely be decided by the Supreme Court in Williams v. Illinois, 131 S Ct ___ (cert. granted June 28, 2011), which has been argued and is pending decision.

A Prospective Juror with Implied Bias Is Unqualified Even If She Gives An Unequivocal Assurance She Can Be Fair and Impartial

The Court of Appeals has repeatedly held that a prospective juror with actual bias, such as an opinion that the defendant is guilty, is qualified to serve on a jury as long as gives an unequivocal assurance she can be fair and impartial (People v Nicholas, 98 NY2d 749, 751 [2002]; People v Arnold, 96 NY2d 358, 362 [2001]; People v Johnson, 94 NY2d 600, 614 [2000]).

The rule is different with respect to a prospective juror who is said to have an “implied bias” based on a preexisting relationship with a potential witness that “is likely to preclude her from rendering an impartial verdict. ” Unlike actual bias, implied bias, requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect her ability to be fair and impartial (see e.g. People v Branch, 46 NY2d 645, 650 [1979]; People v Rentz, 67 NY2d 829, 831 [1986]). And such bias, whether acknowledged by the declarant or not, cannot be cured with an expurgatory oath.

In People v Furey, __NY3d__, 2011 NY Slip Op 09000 (12/15/11) , the Court of Appeals again applied this rule and reversed a conviction where a challenge for cause was denied with respect to a prospective juror with implied bias. In Furey, after noting that not all relationships qualify for this implied bias rule and that the “frequency of contact and nature of the parties' relationship are to be considered in determining whether disqualification is necessary” the Court held that it was an abuse of discretion to deny a challenge for cause where the prospective juror’s husband was a police captain who has assigned the detective who investigated the case and

she knew eight of the witnesses (seven police officers and an assistant district attorney) who were to testify at trial — more than half of the People's potential witnesses — and had frequent professional and social relationships with at least two of the police officers. Although [the prospective juror] offered unequivocal assurances of impartiality, those declarations were ineffective in a case like this because there was a considerable risk that she could unwittingly give undue credence to the witnesses she knew and her service would give rise to the perception that defendant did not receive a fair trial.

Legally Never Place The Cart Before the Horse or Why Patience is a Virtue?

I deal with people. People are impatient as a general rule. They want everything to be done at once. Simultaneously they want everything rectified, fixed, certified, and finalized. The problem is life, the courts, and the NYS DMV don't work that way.

There is an order, often a procedure or procedures, and a process. What might of happened in a brief moment may take months to correct. A simple violation compounded by time, and perhaps further infractions (offenses) may take a bit of effort to unravel.

Compounding this, People's memories are at times "selective," and they have chosen (consciously or unconsciously) to forget about some past mistakes. Whether in the form of unpaid fines, unanswered mail, or unattended hearings... All these "uns" can add up and believe me when I tell you that the DMV clerks, the Court clerks, and the state of New York is not going to forget about you.

So each and every legal problem or issue goes through a process. Step by step we must first:

#1 What the issues are? 

What is outstanding? What is needed? Who wants something? What do they want or require? This requires investigation and discovery (uncovering your past perhaps).

#2 What are the options? 

There may be choices. There may be different ways to accomplish the same result.

#3 How fast or soon or quickly can I have a resolution? 

Closure has great value and fast closure is priceless. I recognize this. Sometimes cheap is dear. Paying the least expensive lawyer may get the job done BUT When? I know lawyers with hundreds of open files. Do you want to join their list? Be my guest. I have taken over cases/situations that had lingered for years (like open sores). Brag that you found a lawyer for $99, and then watch what happens, nothing! At those fees your case may be out sourced to India or China, only kidding but you get my point.

Lawrence Newman
Doctor of Chiropractic
Attorney at Law

504 North Aurora Street
Ithaca, NY 14850

607-229-5184
newman.lawrence@gmail.com

IthacaDwi.com

What Does a Lawyer Mean When They Say They Are "Challenging" the Evidence?

I recently sent a client an email letting them know that I was challenging the evidence in their DWI case. I had filed motions challenging the stop, the arrest, the police testing, their obtaining of statements, etc. They quickly replied, "what did I mean I was "challenging" the evidence?"

Simply put, Challenge = Confrontation. Confronting the government and their employees (the police, the district attorney) is often a part of what lawyers do. Confrontation arrives in TWO Major forms:

FORM #1

Filing Motions stating that the police procedures or methods followed were UN-constitutional. In other words in violation of your rights. Your right to be FREE from unreasonable invasions of your privacy, FREE from unreasonable searches, FREE from unreasonable seizures, FREE from using statements against you without first giving you Miranda warnings. These rights are all within the federal constitution, and have been adapted (interpreted to varying degrees) by the states.

Filing Motions stating that the District Attorney is acting against the laws of the state of New York and the Constitution. Maybe they are not providing discovery (police reports, evidence against you, breath test documents), maybe they are taking too long in their prosecution, or maybe they are violating a specific rule of law.

FORM #2

Requesting hearings to confront witnesses and evidence in the case. Hearings to contest (confront) the officer, deputy, or trooper who STOPPED the car without cause or reason. Hearings to contest an unlawful arrest. One made without probable cause. Hearings to see if certain evidence will come in (be able to be used) in the case against you. If evidence is obtained in violation of your rights it may not be used. ie. a breath test done with expired chemicals is disallowed and invalid. Hearings in NYS may have names based upon prior cases, like a Dunaway Hearing, Wade Hearing, etc.

BUT BUT BUT without challenge, without a motion, without a hearing, without someone saying and stating HOLD ON A MINUTE THERE! It (evidence) will come in and will be used against YOU.

In New York State criminal cases all motions, including requests for hearings, etc. must be all filed together in one large OMNIBUS MOTION within 45 days of the initial appearance/arraignment. There are other motions (like motions in limine) that can be filed but this is the biggie.

KEY TAKE-AWAY:   Remember if You DO NOT exercise your rights (and fairly quickly) you will lose your rights.

Kinda like muscles, without use and daily exercise, they shrivel, shrink, get weak, and small. Your rights function much the same way.

Lawrence Newman, D.C., Esq.
Doctor of Chiropractic
Attorney at Law

504 North Aurora Street
Ithaca, NY 14850
607-229-5184
newman.lawrence@gmail.com

IthacaDWI.com

New Year's Day at Ithaca Starbucks and Patterns

Ithaca has two Starbucks, one up by Cornell University in Collegetown, and one in the basin (what we like to call by the Commons) at Tioga Street and Seneca Street (in the Hilton Hotel). I guess you could stretch, and say that there is a third Starbucks location "in" the Barnes & Noble on Route 13 but in my mind they are not a "real" Starbucks. Kinda like the airport Starbucks, their coffee seems watered down or maybe they are serving Pike Place (I don't like Pike).

My wife and I have a Sunday morning routine (older people have these routines). We take a walk up the hill and then down, get some fresh air (cold in the winter), and then relax with some coffee at Starbucks.
This morning I viewed the change of the numbers up at IC (Ithaca College) to 2012, unfortunately I can't make it past 10:00pm to see them change in the night.

Ithaca College Towers with "1 2"

Ithaca is a small place, and not a day goes by that I don't run into people I know. One of the local pastors is David Grimm. He is usually preparing (or honing) his sermon at Starbucks on Sunday. This Sunday was no exception. His church is only blocks from my office at Buffalo and Aurora. Pastor Grimm has a way of disarming you with his gentle smile. He puts alot of work and thought into his Sunday church service. Laptop in hand every Sunday, focused on task. Today it's on Fracking. A hot Ithaca topic.

 Pastor David Grimm

http://unitarian.ithaca.ny.us/

This is from the Church website. There seven tenets/principles. Not much to argue with here although if you give me some time I can probably come up with some challenges.

Unitarian Universalist Principles

There are seven principles which Unitarian Universalist congregations affirm and promote:

• The inherent worth and dignity of every person;
• Justice, equity and compassion in human relations;
• Acceptance of one another and encouragement to spiritual growth in our congregations;
• A free and responsible search for truth and meaning;
• The right of conscience and the use of the democratic process within our congregations and in society at large;
• The goal of world community with peace, liberty, and justice for all;
• Respect for the interdependent web of all existence of which we are a part.

THE MAGIC OF NUMBERS

I love the magic of numbers, and the number Seven is no exception, maybe there is a reason it's used by so many, including the Unitarian Church:

the seven seas

the seven ages of man

phone numbers

seven deadly sins

seven continents

ph of 7 (balanced) for pure water

seven days in a week

musical scale of seven notes

most space missions have seven astronauts

7 up

7 eleven

RX-7

Jack Daniel's No. 7

Seagram's 7 Crown

007

Boeing 707

747

seven colors in a rainbow, ROYGBIV

Popular, lucky, or just a great power number.

THE POWER OF PATTERNS

Just like numbers have power I believe that there is also a power of patterns.

Any legal case must be broken down, evaluated, and investigated into it's parts. Like a good story with a beginning, middle, and an end. Every case has a rhythm and a pattern (s).

A trucking or car accident case (personal injury case) will likely have 3 main parts:
1. potential pre-existing injuries and/or medical conditions,
2. current/existing injuries,
3. the predictable future of those injuries.

These follow the body's pattern of inflammation and then repair.

The accident itself will have three parts:
1. pre-accident behavior (drinking, smoking, texting, lack of sleep or rest),
2. accident behavior (negligent/distracted driving, failure to inspect, repair, or maintain),
3. post-accident behavior/evidence (statements, black boxes, vehicle damage, positions, equipment defects, etc.).

In any case we look for consistency or an inconsistency.
Are there things that do not match or add up?
Do things that normally are together wind up apart?

I remember a legal seminar on insurance fraud that still sticks in my head where they started to use computers to evaluate medical bills. They went though this doctor's database of patients and billing. the spreadsheets revealed some ridiculous patterns.

Why did everyone in the car accident (age 8 to age 60) receive the same treatment?
Why did they all have the same or similar diagnosis?
Why did they all have the same date of release?

This made no sense in the real world of variables. Yes they were all in the same accident, but would a six year old need the exact same therapy as a sixty year old? Fraud at it's finest.

I look for patterns in police reports. Why do some police officers write the same or similar things?Are these reports "canned"? Are they using "Skeleton frames" over and over to bolster probable cause?

Some people are looking for the right Answers. I believe that it is far more important to first ask the RIGHT QUESTIONS. They may be a pattern or two that needs exploring.

Lawrence Newman, J.D., D.C.
Doctor of Chiropractic
Attorney at Law

504 North Aurora Street
Ithaca, NY 14850

607-229-5184
IthacaInjuryLawyer.com