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Spring 2016 | Volume 28 | Number 2


Publication of the New York State Association of Criminal Defense Lawyers

The Legislative Issue


Message from the President


From the Editors


Dispatches from 90 State


30th Anniversary Dinner


From the Defense Table


Legislative Priorities by Lisa Schreibersdorf


Indigent Defense Report by Andre Allen Vitale


A Surprising Voir Dire by Greg Lubow


Calibration by Stephen Epstein


New York Appellate Roundup by Patrick Michael Megaro and Michael T. Baker


Annual Dinner Photos


Book Reviews

New York State Association of Criminal Defense Lawyers

P. 4 P. 21

NYSACDL Takes a Position on Reform Court Cases, 1st Quarter 2016

atticus@nysacdl.org www.nysacdl.org

90 State Street, Suite 700 Albany, New York 12207

Phone: 518-443-2000 Fax: 888-239-4665

NYSACDL Officers and Directors 2016 PRESIDENT Andrew Kossover, New Paltz

James W. Grable, Jr., Buffalo Timothy Hoover, Buffalo Mark Hosken, Rochester Robert N. Isseks, Middletown Yung-Mi Lee, Brooklyn Alan S. Lewis, Manhattan Greg D. Lubow, Tannersville Brian Melber, Buffalo Marshall A. Mintz, Manhattan Kenneth Moynihan, Syracuse Timothy P. Murphy, Buffalo Lisa Peebles, Syracuse Russell A. Schindler, Kingston Jay Schwitzman, Brooklyn Claudia Trupp, Manhattan

PRESIDENT-ELECT John S. Wallenstein, Garden City FIRST VICE PRESIDENT Robert G. Wells, Syracuse VICE PRESIDENTS Michael T. Baker, Binghamton Lori Cohen, Manhattan Alice Fontier, Manhattan Arnold J. Levine, Manhattan Donald G. Rehkopf, Jr., Rochester SECRETARY Jessica Horani, Manhattan TREASURER Susan J. Walsh, Manhattan DIRECTORS Bruce A. Barket, Garden City Vincent de Marte, White Plains Mitchell J. Dinnerstein, Manhattan Peter A. Dumas, Malone Marc Fernich, Manhattan

PAST PRESIDENTS Lawrence S. Goldman Paul J. Cambria, Jr. Jack T. Litman Mark J. Mahoney David L. Lewis William I. Aronwald Thomas F. Liotti Ira D. London

Jeanne E. Mettler Murray Richman Gerard M. Damiani Marvin E. Schechter Kathryn M. Kase Russell M. Gioiella James P. Harrington Richard J. Barbuto Martin B. Adelman Joshua L. Dratel Ray Kelly Daniel N. Arshack Lisa Schreibersdorf Craig Schlanger George R. Goltzer Kevin D. O’Connell Richard D. Willstatter Benjamin Ostrer Aaron Mysliwiec Wayne C. Bodden EXECUTIVE DIRECTOR Jennifer Ciulla Van Ort, Albany

Forensic psychological evaluations and expert witness testimony in criminal law Stephen Reich, Ph.D., J.D., Director, Psychologist and Lawyer 141 EAST 55TH STREET SUITE 2A NEW YORK, NY 10022 212.935.6133 www.forensicpsychologyexperts.com


Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers

Publication of the New York State Association of Criminal Defense Lawyers

Message from the President By Andrew Kossover

Don’t raise your voice, improve your argument. — Desmond Tutu

Find NYSACDL on Facebook, LinkedIn & Twitter

With humility and honor, I find myself writing this, my first column, as President of this distinguished statewide bar association. I first wish to thank immediate PastPresident Wayne Bodden for his dedicated service to NYSACDL this past year. We all understand that the demands of the office seize upon the time and energy one would otherwise be devoting to the practice of law. I also thank and welcome our new Association officers and Board of Directors. I am grateful to be working with some of the most dedicated, caring, and accomplished defense lawyers in New York State. As criminal defense practitioners, we all know how daunting it can be to keep abreast of the latest developments in criminal law. We are also bombarded by the media with stories of interest and concern. This Association has learned to deal with the chaos. In many ways, we thrive on it. We process and breakdown the chaos to provide our members with knowledgeable and useful information to improve the quality of our lawyering. I suspect this was part of our founders’ motivation to form this Association. They knew there would be strength in numbers; that the criminal defense bar to be empowered needed to organize. I wonder if they envisioned the strong voice we have cultivated over the years throughout New York State. I refer you to this issue’s Legislative Committee Report as an example of the influence this Association now wields. Of course, with that influence comes responsibility. We must always be mindful of maintaining our credibility and ethical considerations, just the same as we do when we advocate before a judge or jury. Discovery reform remains our primary legislative goal. No single other issue so affects the fairness of criminal proceedings. Earlier and broader discovery assures just results, informed plea dispositions, judicial economy, and avoidance of wrongful convictions. Unfortunately, our State legislature has declined to act on discovery reform. The District Attorneys Association of the State of New York has great influence in the State Legislature, especially the Republican controlled Senate. As referred to in this issue’s Legislative Committee Report, DAASNY continually objects to discovery reform primarily on the basis of witness protection, despite the fact that several bills specifically address this concern. Nevertheless, the Legislature neglects to act without inquiring into the accuracy of the distinction on which DAASNY’s objection is founded. Thus, it is for us to educate the members of the Legislature. We can do that Continued on page 40

Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers


EDITORS Benjamin Ostrer John S. Wallenstein Jessica Horani Richard J. Barbuto, Acquisitions and Book Review Editor A publication of the New York State Association of Criminal Defense Lawyers ©2015 NYSACDL 90 State Street, Suite 700 Albany, New York 12207 Phone: 518-443-2000 Fax: 888-239-4665 www.nysacdl.org atticus@nysacdl.org

Read a good book lately?

From the Editors’ Desk Ben Ostrer, John S. Wallenstein, Jessica Horani, Dick Barbuto New York legislative debate over minimum wage, paid family leave, and transportation funding are all worthy issues, but at this particular time in history, when criminal justice is being closely examined by state government, the media, and the public, an opportunity exists to improve the quality of criminal justice in New York. Discovery is the legal process before trial when both defense and prosecution share facts, are able to then conduct investigation, and prepare their arguments. Under current state (and federal) law, the prosecution has a duty to provide certain material to the defendant, whether it was requested or not. This can include police reports, transcripts, and other records that would be important to the defense. Unfortunately, under current law, it is not uncommon to receive these materials on the very eve of trial. Sometimes, this includes hundreds of pages of documentation, preventing the defense from conducting any meaningful analysis or investigation of the content, which the District Attorney has possessed since early in the proceedings. It has been 35 years since New York’s discovery statutes have been modernized. The statutes governing criminal defense discovery in New York are considered to be unduly limiting. Even New York County District Attorney, and recent past President of the District Attorneys Association of New York, Cyrus Vance, described New York as one of the “most restrictive states” when it comes to providing criminal discovery.

Write a review of it, and submit to our Book Review Editor, Dick Barbuto.

If trying a man with his liberty on the line, when he has no idea who might be coming into court and when his lawyer has no idea what any witness might say isn’t an “ambush,” what is it? It’s worth noting that parties to a car-crash lawsuit, where mere money is on the line, have a better opportunity, under the rules of civil discovery, to get opponents’ information pre-trial than has a defendant facing years in prison.

Contact Dick at rbarbuto1@hotmail. com

The New York State Bar Association’s Task Force on Criminal Discovery, comprised of prosecutors, judges, and defense lawyers, issued a Report, approved by the State Bar’s House of Delegates on January 30, 2015. The recommendations of that Report, essentially earlier and more meaningful disclosure, have been incorporated into proposed legislation: A6795. It is noteworthy that last session, New York State Senator Diane Savino sponsored S04089, a Bill similarly seeking to reform New York’s outdated discovery rules.

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Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers

Dispatches from 90 State Submit an Article to Atticus Members wishing to submit articles for inclusion in Atticus should submit them via email to atticus@nysacdl.org. Questions regarding submission may be directed to: Jennifer Van Ort, Executive Director, NYSACDL 518-443-2000 jlvanort@nysacdl.org The editors reserve the right to modify any submission for style, grammar, space and accuracy. Authors are requested to follow these guidelines: 1. Use footnotes rather than endnotes. 2. When a Case is mentioned in the text, its citation should be in the text as well. 3. Articles longer than 4 pages may be edited or serialized.

Jennifer Van Ort Executive Director In the last issue of Atticus, I presented you with some of NYSACDL’s goals for 2016, its 30th anniversary year. In this issue, I am pleased to update you on the positive progress we have made toward those goals. I encourage you to review the bullets below, and if you are so moved, I hope you will consider what you can do to help us reach our goals and create an even stronger, more effective NYSACDL. Membership – 2016 Goal: 915 Coming off of an 842 member year in 2015, NYSACDL has set an ambitious 2016 goal of 915 members; an 8.6% increase in honor of founding year, 1986. We are making progress toward that goal. As of March 28, membership stands at 676, about a 6.8% increase over this time last year. One of the ways the Board of Directors and I analyze NYSACDL’s current membership and goals is geographically. At each Board meeting, the Directors are presented with a detailed chart broken down by region and compared to percentage of New York State population. For your information, below is a simplified version of that chart showing current membership and 2016 goal for each region. As you find your region on the chart below, perhaps you can think of 1 or 2 colleagues that you know who can help us reach our goal? Please encourage them to visit www.nysacdl.org or contact me for more membership information. Region NY Metro Hudson Valley Finger Lakes Long Island Niagara Capital Region Central Catskills Adirondacks Thousand Islands Chautauqua-Alleghany Out of State Total:

Members as of 3/28/16

2016 Goal (Increase Needed)

360 71 60 51 33 30 28 16 7 2 2 16 676

410 (+50) 97 (+26) 94 (+34) 101 (+50) 60 (+27) 40 (+10) 38 (+10) 17 (+1) 20 (+13) 10 (+8) 12 (+10) 16 915 (+239)

CLE Attendance – 2016 Goal: Train Over 900 Attorneys One benchmark statewide criminal defense bar associations across the country use to effectively analyze Continued on page 40 Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers


30th Anniversary Dinner Kossover installed; Peters, Ricco, Shapiro Honored On January 28, more than 260 people gathered at the Grand Hyatt Hotel in midtown Manhattan to celebrate the 30th anniversary of NYSACDL. From the ice sculpture at the entrance to the cocktail hour (and a half ) to the last cup of coffee, the evening was a showcase of talent and legal acumen. The food and drink were plentiful, the venue was excellent, and it was a great evening to spend time with friends, old and new.

Ice sculpture marks 30th anniversary

2015 President Wayne C. Bodden of Brooklyn swore in 2016 President Andrew Kossover of New Paltz. President Kossover and his wife Vicki are principals of the Kossover Law Offices, and Andy is also Chief Public Defender of Ulster County. He spoke eloquently of the goals for the Association in 2016, including our legislative priorities (as noted elsewhere in this issue). The Hon. William J. Brennan Award for Outstanding Jurist was presented to Hon. Karen Peters, Presiding Justice of the Appellate Division, Third Department, by President Kossover, who had once been her law clerk. Justice Peters graciously accepted the award, and spoke passionately of the achievements of her court and her colleagues, several of whom attended the dinner to honor her. NYSACDL honored Manhattan solo practitioner Anthony L. Ricco, when President-elect John Wallenstein presented him with the Hon. Thurgood Marshall Award for Outstanding


Criminal Defense Practitioner, given annually to a criminal defense lawyer who personifies the ideals to which all strive. Tony spoke with his usual vigor, exhorting all of us to continue to fight the good fight, as he has done for over twenty five years. After a well-received dance performance by two former prisoners, who were trained by Susan Slotnick, Ms. Slotnick accepted the Justice Through the Arts Award from President Kossover. Ms. Slotnick was honored for her years of working with prisoners at various New York State correctional facilities, using dance to help in the rehabilitation process. Michael Shapiro, co-chair of the White Collar practice at Carter, Ledyard & Milburn, was honored with the Distinguished Service Award, presented to him by NYSACDL Director Alan Lewis. Michael is a former Vice-President of NYSACDL and the Chair of the Prosecutorial and Judicial Conduct Committee. As the evening drew to a close, Vice President Alice Fontier gave a moving tribute to the late Chief Judge Judith Kaye. NYSACDL appreciates the support of our sponsors, who helped to make the evening the great success it was. We look forward to seeing all of you at next year’s dinner, and at our many CLE programs throughout the year. A

Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers

From The Defense Table Member Matthew Galluzo obtained a full acquittal on January 25, 2016 in Brooklyn in a case involving mistaken identity of an alleged serial groper of children in Park Slope. The client was charged with sexual assault and child endangerment for allegedly grabbing the buttocks of three young girls in Park Slope, as well as with assaulting a police officer and ending her career on account of the injury. The trial lasted about two weeks and was held before Judge Jeong in Brooklyn Supreme Court. The defense utilized the services of expert identification witness Dr. Margaret Kovera from John Jay to educate the jury regarding mistaken eyewitness identification and the effect which showing the young girls photos of the client would have had on their subsequent line up identification of the client. The jury deliberated about a full day before acquitting on all charges. Mr. Galluzo was assisted during trial by his law partner, Zach Johnson.

Member Russell Schindler obtained a post indictment dismissal following the admission of prejudicial Ms. Curtis was charged with Criminal Possession of a Controlled Substance in the Third Degree, Criminal Possession of a Controlled Substance in the Fourth Degree (Oxycodone) and Criminal Use of Drug Paraphernalia arising out of the police execution of a search warrant at the motel room she allegedly shared with her boyfriend. In his presentation to the Grand Jury, the ADA introduced into evidence both the search warrant and the affidavit used to obtain the search warrant. The affidavit included hearsay from an informant establishing that the defendant resided at the motel room and included statements about prior uncharged drug sales at that location. As the Court found that the Grand Jury was clearly concerned about Ms. Curtis’ ties to the motel room and because the evidence of her alleged intent to sell the oxycodone was “hardly overwhelming”, the Court found that the admission of such significant and inadmissible hearsay, which went directly to the issues before the Grand Jury, created the possibility of prejudice, impaired the integrity of the proceedings and justified the extraordinary remedy of dismissal. The indictment was dismissed with leave to re-present. A

Then Mr. Underwood’s meaning became clear: Atticus had used every tool available to free men to save Tom Robinson, but in the secret courts of men’s hearts Atticus had no case. — Harper Lee, To Kill a Mockingbird

Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers






Priorities By Lisa Schreibersdorf

During the 2015 legislative session, lawmakers from the State Senate and Assembly introduced 14,000 bills, 718 of which passed.1 While we do not anticipate that passage rates will vary significantly this year, the Legislative Committee has been diligently monitoring a number of 2016 bills that have the potential to affect our clients and our practice as criminal defense lawyers. DISCOVERY NYSACDL’s number one legislative priority is to reform our extremely imbalanced and harmful discovery statutory scheme. New York State has some of the most restrictive discovery laws in the nation. This lack of information sharing results in injustice on a daily basis and is the single largest contributing factor to the lack of fairness in our criminal justice system. Wrongful convictions, extended pre-trial detention on cases where there is insufficient evidence, and frequent court appearances for those clients who are released or able to post bail, are a direct result of the discovery laws that do not require that the defense attorney receive all the information, reports, photos and evidence on the case in a timely and thorough matter. Our current discovery law, C.P.L. 240, passed by the state legislature in 1979, does 1 Matthew Hamilton, “New York tops list of states with most bills introduced,” Albany Times-Union, Aug. 18, 2015, available at http://blog.timesunion.com/capitol/archives/239954/new-york-tops-list-ofstates-with-most-bills-introduced/.


Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers

not require disclosure of critical evidence until a jury has been sworn, and seriously curtails what must be turned over even at that time. In NYS, a person charged with a crime may never see the police reports that were generated in the case, a shocking fact that shows how unbalanced and unfair this system is. The discovery laws in NY directly implicate the ability of people accused of crimes and their attorneys to investigate the allegations and defend themselves. This foments prosecutorial misconduct, making it easy for prosecutors to withhold information that might hurt their case. It is the direct cause of recent cases where people have been in jail for months or years only to find out there is no real case against the person. It is no surprise that this “trial by ambush” practice has led to dozens of well-documented wrongful convictions in New York, with new exonerations every year. The majority of states and urban centers across the country have passed open file discovery laws over the past 40 years. Broad discovery is provided to defendants in major cities across the country, including Los Angeles, Chicago and Boston. New Jersey enacted expedited and liberalized criminal discovery in 1973; Florida in 1968. Texas (2014) and North Carolina (2004) enacted open discovery statutes, and Ohio (2010) made its fairly broad discovery rules even broader. No state that has enacted more open discovery rules has later gone back to impose restrictive ones.2

Lisa Schreibersdorf is Co-Chair of the NYSACDL Legislative Committee, and a past president of NYSACDL. She is the Executive Director of Brooklyn Defender Services.

The solution to New York’s discovery issues is already available. The New York State Bar Association (NYSBA) brought together a diverse committee of judges, law professors and lawyers to examine the statute and propose changes. Their 2015 report3 provides a model for reform that should be adopted by the state legislature to bring New York’s discovery requirements in line with the rest of the nation. Prosecutors are currently opposing discovery reform. This is because they know that without information about the case, the defense cannot investigate the case or analyze the quality of the evidence. This allows the prosecutor to make plea offers that may not reflect the strength of the case and coerce our clients into accepting these deals. NYS prosecutors are claiming that there is a problem with witness tampering if they turn over the information. This is entirely untrue, based on the experience of all the other states in the country. There are adequate provisions in every discoveryreform bill to ensure that all crime victims and witnesses are safe and protected. NYSACDL stands ready to work with the prosecutors to iron out any concerns. S. 11 (Hassell-Thompson)/A. 5996 (Lentol) are the bills that NYSACDL currently supports. We are continuing to work with other statewide bar associations, legislators and community groups to push for modern, transparent and fair discovery laws.

2 New York State Bar Association, Report of the Task Force on Discovery (2015), pp.2-3. 3 New York State Bar Association, Report of the Task Force on Discovery (2015), available at https://www.nysba.org/WorkArea/DownloadAsset.aspx?id=54572.

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Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers


Legislative Priorities Continued from previous page YOUTHFUL OFFENDERS NYSACDL strongly supports raising the age of Youthful Offender (YO) status to the young person’s 22nd birthday. YO is granted at sentencing in the interest of justice and limits the sentencing range for Youthful Offenders. YO status is also meant to relieve eligible youth ages 1618 from the onus of having a criminal record. A young person’s record is automatically sealed upon granting of YO and the youth is protected from having to disclose the offense because a YO adjudication is not a criminal conviction. In addition, the YO adjudication does not subject the youth to many of the collateral consequences that can be so devastating in a young person’s life, such as loss of educational and employment opportunity and deportation. S. 1010 (Montgomery)/A. 5022 (O’Donnell) would raise the age of Youthful Offender status up to age 22, allowing college age young adults to access the sealing protections and broader judicial discretion to customize the appropriate result for a young person. This bill reflects modern neuroscience research that proves that a young person’s brain does not fully develop until their midtwenties. NYSACDL is also seeking an additional protection for young people in that the police, prosecutor and courts should not be able to release their names until such time as they are convicted if and only if they do not receive YO status. With the vast and immediate reach of the internet, too many young people ages 16 and up are already stigmatized due to arrests that never resulted in a negative outcome for them. SEALING There are several sealing bills in front of the legislature that would provide for the sealing of certain convictions


upon the passage of time and a person remaining crime free. The most comprehensive bill, S. 2344 (HassellThompson), a bill that NYSACDL helped draft, would allow for the sealing of most convictions if a person remains crime-free for a long period of time. Sealing helps people get a second chance by improving their chances of obtaining employment, housing and other essentials of life. RAISE THE AGE Raise the Age refers to increasing the age of juvenile jurisdiction in Family Court to a young person’s 18th birthday. NYSACDL supports comprehensive reform that would apply the Family Court Act to all youth under age 18 for all misdemeanor and felony charges, repeal the Juvenile Offender Law, and ensure that no youth are housed in adult jails and prisons. In addition, we support measures that would divert more low-risk youth from the justice system, increase constitutional protections for youth in family court, and, in order to address racial and ethnic disparities, require data collection regarding race and ethnicity at every major decision-making point in the system. Unfortunately, existing legislation in the Governor’s budget bill, the Assembly one-house bill, and separate bills introduced by Assemblymember Lentol and Senator Nozzolio, contain vast exclusions and fail to provide sufficient fixes to the Family Court Act to guarantee fairness in delinquency courts and protect young people’s constitutional rights. In the alternative, our members have proposed a series of smaller fixes that recognize that only five percent of youth charged in the adult system end up with adult criminal convictions. A much smaller, but very important, group are

sentenced to upstate prison sentences. A few changes would improve outcomes for youth in the adult criminal courts without a major and controversial overhaul. These fixes include (1) removing all adolescents from adult jails and prisons (2) raising the age of YO to 22 (3) ensuring sealing from the beginning of all cases involving youth (4) allowing for judicial diversion and (5) implementing family court-style adjustment for cases involving youth in adult court, along with funding resources and alternative-to-incarceration programs across New York State. These fixes would go a long way toward addressing most of the concerns brought forward by the Governor’s task force on raising the age. GRAVITY KNIVES True switchblade and gravity knives, banned in New York in the 1950s, have been extinct for some time, sold as antiques, if at all. However, artisans and construction workers across the state are regularly arrested for Criminal Possession Weapon-4th: Firearm/Weapon when police find in their possession folding and utility knives commonly sold on the internet and in other states by retailers such as Home Depot. Two bills currently before the legislature would clarify the law around these tools to ensure that workers are not detained and prosecuted for possession of common tools necessary to their work. A.4821 (Quart)/S.3675 (Savino) would require that the state prove intent to use the knife unlawfully against another, rejecting the strict liability standard currently incorporated in Penal Law § 265.01 (1). A9042 (Quart) / S6483 (Savino) would narrow the definitions of a switchblade knives and gravity knives to exclude ordinary folding knives that are commonly sold on-

Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers

line and in hardware stores. NYSACDL supports both bills. “ONE DAY TO PROTECT NEW YORKERS” CAMPAIGN Many of our members support an amendment to Penal Law 70.15 that would reduce the maximum penalty for A misdemeanors by one day, from 365 days to 364 days. This minor change would reduce the chance of deportation under federal immigration law. Though there is currently no bill number, our members are working with immigrant groups and a number of legislators to sponsor this critical legislation. SPEEDY TRIAL The U.S. Constitution provides criminal defendants with the right to a speedy trial. Yet the current iteration of New York’s “Speedy Trial” Law (C.P.L. §30.30) subverts justice and the Constitution by allowing the prosecutors to delay cases for months or years by merely stating that they are “ready for trial” when they may not actually be truly prepared to move forward with their case. Kalief ’s Law, S.5988A (Squadron)/A.8296A (Aubry), would amend C.P.L. § 30.30 to require prosecutors to prove readiness for trial by affirming that the People’s evidence is imminently available and requiring that a valid statement of trial readiness be accompanied or preceded by a certification of compliance with the current discovery requirements. Kalief ’s Law is named after a young man who spent years on Rikers Island because he could not afford bail only to have his case dismissed due to insufficient evidence; Kallief unfortunately committed suicide

shortly after his release due to the trauma of his long stay in jail. The changes in the speedy trial law seek to prevent this type of injustice. NYSACDL supports this bill. However, it bears noting that Discovery reform should go hand in hand with efforts to make pre-trial justice a reality in NYS.

are in wide use throughout the country, in Federal court and in many parts of NYS with great success. Conditions consist mostly of having the defendant report to an independent agency regularly , turning in a passport, electronic monitoring or other measures that help insure attendance at court proceedings.



S.6061 (Gianaris)/ A. 8551 (O’Donnell) would eliminate cash bail. Across the country, courts are striking down money bail as a violation of the Equal Protection clause of the U.S. Constitution. Notions of Justice are eroded by a process that creates a two-tiered criminal justice system with a fast lane for those with means and a quagmire for those without. The system of cash bail results in coerced pleas of guilty, taken merely to get out of jail, and then creates serious implications for our client for the rest of his or her life, most significantly in the area of employment. There is no evidence that money bail is more effective at securing a defendant’s appearance in court than unsecured bonds. S.6061/A.8551 would require that each county hire independent pretrial services agents to interview defendants and determine the suitability of releasing them while awaiting trial. The agents would then make recommendations to the court on whether to release the defendants on their own recognizance, release them subject to certain conditions, or remand them to a county correctional facility. Crucially, any conditions upon release would be non-monetary (i.e. not money bail) and bear much more directly on the issue of the person reporting to court when they are required to. Such other conditions

Public defenders from across the state attended a lobby day in March 2016 urging lawmakers to support S.6341A (DeFrancisco)/A.6202B (Fahy) which would require the State to reimburse counties for the costs of providing public defense services as mandated by law. After the U.S. Supreme Court’s 1963 ruling in Gideon v. Wainwright recognized a right to counsel for indigent defendants, New York State delegated to the counties what is essentially the state’s responsibility for providing public defense services. This continues to burden counties and local taxpayers and has created a severely underfunded and inconsistent public defense system throughout the state. In 2007, the New York Civil Liberties Union (NYCLU) filed the class action lawsuit Hurrell-Harring, et al. v. State of New York.4 In 2014, the NYCLU negotiated a settlement that would bring funding and reform to the five New York counties named in the lawsuit – Ontario, Onondaga, Schuyler, Suffolk and Washington. Unfortunately, all of the other counties in the state where people charged with crimes 4 Information about the case is available on the NYCLU website, http://www.nyclu.org/node/1538.

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Legislative Priorities Continued from previous page

suffer identical harms from underfunding were excluded from the settlement. S.6341A/A.6202B would mandate that the State reimburse the counties to cover the costs of indigent defense for all New York counties, not just the five counties represented in the HurrellHarring settlement, to meet the requirements of Gideon. NYSACDL strongly supports increased resources for indigent defense and will continue to advocate that all court-involved people in New York State have access to properlyresourced counsel, no matter where they live. SOLITARY CONFINEMENT S. 2659 (Perkins)/ A.4401 (Aubry), the Humane Alternatives to LongTerm (HALT) Solitary Confinement Act would mandate more humane and effective alternatives to isolated confinement. The bill requires that any person separated from general population for more than 15 consecutive days must be in a separate secure residential rehabilitation unit (RRU) – a rehabilitative & therapeutic unit providing programs, therapy, and support to address underlying needs and causes of behavior, with 6 hours per day of out-of-cell programming plus one hour of out-of-cell recreation. Under the bill, no person may be held in isolated confinement more than 15 consecutive days nor 20 days total in any 60 day period. The bill also bans special populations from isolated confinement: The department can never place in isolated confinement of people 21 or younger, the elderly, anyone with a physical, mental, or medical disability; or pregnant women and new mothers. NYSACDL supports this bill and others


that would improve conditions for those who are incarcerate. REENTRY REFORMS We strongly support two bills that would remove barriers to higher education facing students while they are in prison and once they come home. A. 3363 (Peoples-Stokes)/S. 969 (Montgomery) explicitly prohibits colleges from asking about or considering applicants’ past arrest or conviction during the application and admission decisionmaking process.  A. 2870 (Aubry)/S. 975 (Montgomery) repeals a ban on those who are incarcerated from receiving New York State student financial aid awards from the Tuition Assistance Program (TAP). STATEMENT AND IDENTIFICATION INTEGRITY ACT The “Statement and Identification Integrity Acts”(A.8175; S. 5875A) requires electronic recording of interrogations. While NYSACDL strongly supports electronic recording, we cannot support the bill in its current iteration. Most importantly, the bill would abolish an existing right that currently protects our clients from the introduction of photo array evidence at trial. This bill would permit in-court testimony of unreliable photo array identifications. Photo array identification evidence is unfair for our clients in three ways: it suggests to the jury that our clients have “mug shots” from prior arrests, it shifts the burden to the defendant to prove that his appearance at the time of the crime was different than it was in the photo, and it bolsters prejudicial incourt identifications.

Even if the bill did not permit testimony about photo array identifications, we are concerned that the legislation does not go far enough in ensuring that defendants’ statements are actually recorded. First, the electronic recording requirement would only apply to what police officers define as “custody” and apply to a limited range of offenses. Second, the recording requirements are too easily evaded by police. Simply failing to maintain working recording equipment, claiming that the accused refused to be videotaped or “charging” the defendant initially with one of the excluded charges could result in the failure to document the interrogation and statement. Third, the bill has no appreciable sanctions should law enforcement fail to comply; it fails to include a legal remedy, such as suppression, for failure to follow the recording requirement. Without a legal remedy, the law will be ineffective. For all of these reasons, NYSACDL opposes this bill at this time. A

Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers

Indigent Defense Report Indigent Defense is this Generation’s Civil Rights Movement

— Jonathan Rapping, Founder, President, Gideon’s Promise


e are in an exciting time in the practice of Indigent Defense. Across the nation, more understanding exists about the injustice caused by insufficient support of and funding for indigent defense. More attention is being given to the importance of increased funding for and staffing of public defense lawyers; reducing caseloads; and increasing training. As Chair of the Indigent Defense Committee of NYSACDL, I am pleased to announce our involvement in these reforms. Our work has already begun. As a member of NYSACDL since 1999, I have seen this organization become more inclusive and supportive of the members of the indigent defense community. Public Defenders have served as Board Members and Presidents this organization. The Indigent Defense Committee is comprised of a mix of leaders of Public Defender Offices, as well as young, rising stars. CLEs conducted by this organization have consistently included subjects geared towards the needs of public defense lawyers and have recruited presenters from our ranks. These efforts have resulted in an increase in the membership by public defense lawyers in NYSACDL, from both the private sector and institutional providers.

In early March, several members from this Committee joined public defense lawyers from around the State, in Albany to push for passage of the DeFrancisco/Fahey bill,which is designed to transfer funding of public defense from counties to the State government. This effort produced positive results. Members of the Legislature expressed appreciation at being better informed on the importance of this legislation to ensure stability to public defense services. In addition, 12 members of the Legislature expressed new support for the bill’s passage. The Indigent Defense Committee also joined the effort to support and promote the National Association for Public Defense’s (NAPD) creation of the first ever Public Defense Recognition Day on 18 March 2016, releasing a statement of support for all public defense lawyers, investigators, social workers and staff members who commit themselves to fighting for liberty and justice for indigent people charged with crimes. The Indigent Defense Committee looks forward to our continued work to support and promote indigent defense. We strive to work cooperatively with organizations like NACDL, NAPD, the Innocence Project, NYSDA, and the Chief Defenders of New York. We will

By Andre Allen Vitale work for passage of the DeFrancisco/ Fahey bill as well additional legislation to increase indigent defense reform, independence, support, and funding. I am encouraged by the efforts we have already undertaken and look forward to our efforts going forward. We plan to be voices in support of reform, and have a seat at the table. If you have any questions, please contact me at andrevitale7@gmail.com. A

Andre Allen Vitale is a Special Assistant Public Defender, Monroe County, and is on the faculty of Gideon’s Promise (Atlanta, GA) and the Louisiana Public Defender Training Institute. He is a committed advocate who volunteers significant time to improving the quality of indigent defense. He is the Chair of NYSACDL's Indigent Defense Committee

Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers


A Surprising Voir Dire Reaction to an AK-47 Question. By Greg Lubow


Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers


ry as we might, we never really know what a single juror or group of jurors is thinking until we interview them post verdict. 10 minute or 15 minute voir dires rarely allow us to delve into how an issue might affect a juror’s thinking. I recently had an unusual voir dire reaction to a single item of evidence – an AK-47. The intensity of the potential jurors’ responses surprised me, the prosecutor and the Judge. In January I represented an Albanian man lawfully in the United States charged with Criminal Possession of Stolen Property, a felony. Among the property that was stolen was a supposed WWII vintage operable AK-47 together with magazines (short banana style) and rather large bullets. There was no doubt that the property had been stolen in a burglary. The defendant was not implicated in the burglary. There was no indication that the rifle was used by the defendant and the defendant’s possession of the rifle itself was lawful except for the allegation that it was stolen. The issue in the case was whether or not the defendant knew the property was stolen. The reason the case could not be resolved by plea bargain before indictment was the DA’s insistence on a plea involving the weapon, which would have exposed the Defendant to deportation back to Kosovo, from which he and his family had fled 12 years earlier. The DA’s policy in Columbia County is that once an indictment has been returned, there is no charge reduction. The defendant can either plead guilty to the indictment or go to trial. Since the client maintains that he did not know any of the property was stolen, our decision to go to trial was easy. The Judge advised that he was allotting each side 15 minutes for voir dire of each 21 juror panel. I requested an hour, advising the Judge that there were a number of issues that were unusual in this case. One of those issues was the fact that one item possessed by the defendant was this supposed AK47. I told the Judge I needed to gauge the impact of the AK-47 upon the potential jurors. The Judge granted each side 30 minutes.

Greg Lubow is a Director of NYSACDL. He practices in Tannersville, and was formerly the Greene County Public Defender.

Although he had not planned to discuss the AK-47, since it was but one of the items stolen and purchased by the defendant from the burglars, the Assistant District Attorney sought to get ahead of the issue and brought it up during his voir dire. He first pointed out that one of the items stolen was a rifle and elicited from a number of jurors whether or not the fact that there was a rifle involved would affect their ability to hear the case. Continued on next page

Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers


Voir Dire Continued from previous page Columbia County, located on the east side of the Hudson River just south of Albany, is mostly rural farm country, with the City of Hudson being its largest population center. Historically Republican, it has over the last decade or so become more Democratic with an influx of New York City folks. Driving through the County, however, it is hard not to miss the many lawn signs demanding that the SAFE Act be repealed. It is not clear if the District Attorney would prosecute all alleged gun crimes involving the SAFE Act. One potential juror indicated that the involvement of any firearm would be upsetting and she would not be able to be a fair and impartial juror. She was later excused for cause. One man indicated that he was a gun person, had quite a few firearms and would have no problem with it. The rest of the panel was generally not significantly affected by the presence of a rifle in the stolen property. Then the ADA changed the description of the weapon from a rifle to a WWII vintage AK-47. This got everyone’s attention. While the man who owned quite a few rifles said he would have no problem with it, as did several other gun owners, nearly half of the panel expressed significant concern that the rifle was an AK-47. It gave them such a mental image of a terrorist that many said it would significantly affect their ability to fairly hear this case. One juror asked “why would this young man who came from Yugoslavia want an AK-47?” One juror opined that no one should possess an AK-47, legally or otherwise. Quite a few potential jurors agreed with that position. They saw no legal reason for this type of weapon to exist. The ADA and I each far exceeded the 30 minute time limit allotted on voir dire


exploring this issue, without complaint from the Judge. From this first panel, we lost 10 of 21 potential jurors on this issue alone. From the second panel we lost 18 potential jurors on this issue alone. The panels had been segregated so the second panel of jurors did not hear the AK-47 discussion before the first panel. There was no indication that the concerns of potential jurors over the AK-47 were simply ploys to avoid jury duty.

their consideration since the issue in the case, as explained from the beginning by both the ADA and me, was whether or not the defendant knew that the AK-47 along with the other items he purchased from two teenage boys were stolen. The AK-47, which turned out to be a late 1950’s Chinese knockoff was to be returned to its owner to be kept in the same home from which it had been stolen not once, but twice since it was in an unlocked gun cabinet in this often vacant second home of downstate residents. A

The issue involving the AK-47 caught the Judge, the prosecutor and me off guard. I knew I had to raise the issue, but had no idea that we would see such a strong reaction from so many jurors. Most of the jurors expressed, to some degree, the sentiment that no one in America should be allowed to have an AK-47. I had no doubt that most of those prospective jurors would have been fine jurors for this case, without the AK-47 issue. After a five day trial, the defendant was acquitted. In interviews with the 12 jurors following the verdict, they each indicated they were able to put all thoughts that may have arose regarding the AK-47 out of

Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers

Calibration... “I Do Not Think That Word Means What You Think it Means!” Those familiar with the romantic comedy “The Princess Bride,” may recall the following lines from the film:

Vizzini: He didn’t fall? Inconceivable. Inigo Montoya: You keep using that word. I do not think it means what you think it means. By Steve Epstein

Words are powerful. As attorneys, the more educated we are on the meaning of words relevant to our cases, the better prepared we become to litigate those cases. The word calibration does not mean what most people think it means. Correctly understanding calibration’s true meaning can be very helpful in attacking the reliability of breath tests in DWI cases.

Steven Epstein, Esq. is admitted as an attorney in New York and Connecticut, as well as before the United States District Courts for the Eastern, Southern and Northern Districts of New York and the United States Supreme Court. General Member, National College for DUI Defense (NCDD)

The Court of Appeals addressed the need to calibrate breath testing devices in People v. Todd, 38 N.Y.2d 755 (1975). In Todd, the court ruled the People failed to establish the admissibility of a breath testing device since it had not been calibrated within six months prior to the breath test. Since then, courts have been interpreting Todd to require a bright line rule requiring breath testing devices be calibrated minimally every six months. That ended thirty-five years later with the Court’s decision in People v. Boscic, 15 N.Y.3d 494 (2010). In Boscic, 15 N.Y.3d at 494, the Court of Appeals declared that there is no requirement that breath testing devices be calibrated every six months. Instead, it held that the People must lay a foundation demonstrating that the particular device used was Continued on next page

Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers


in proper working order when the test was administered. Two of the procedures used to assess the proper working order of a breath test device are calibrations and certifications. Each is different and often confused with the other. During the administration of a breath test, a reference standard of a known concentration of ethyl alcohol (drinking alcohol) is introduced into the breath testing device. This is done in order to determine whether the device is measuring appropriately within a defined margin of tolerance. This is a certification and is sometimes referred to as a calibration check, which is not that same as a calibration. This process of arriving at a certification is called verification. A calibration is not the same as verification or certification. “Intoximeters,” the manufacturer of the “Alcho-Sensor” and other alcohol testing devices used by law enforcement officers, points out on its website that a calibration is the process of “setting an instrument’s sensitivity to properly report the known value of a standard.” All calibrations should then be followed by an accuracy check to ensure that the adjustment is correct. A “Calibration Check” is not a Calibration.1 The key language here is the setting of the instrument’s sensitivity, in essence teaching the device how to respond to future tests. The International Vocabulary of Metrology defines the term Calibration as an “operation that, under specified conditions, in a first step, establishes a relation between the quantity values with measurement uncertainties provided by measurement standards and corresponding indications with associated measurement uncertainties and, in a second step, uses this information to establish a relation for obtaining a measurement


result from an indication.” 2 In simpler language, calibration is the process of presenting a known sample to a machine, and instructing the machine to reset itself so that if the identical stimulus is observed in the future, the machine will report the measurement that is communicated as part of the calibration.3 In essence, a calibration teaches the device how to perform an analysis in the future whereas a certification simply tests to see if the device is measuring correctly within an accepted margin of tolerance at one measuring point. The Court in Boscic did not address the regulatory mandates of the New York Department of Health. New York Vehicle and Traffic Law (“VTL”) §1195(1) provides that upon the trial of any DWI case evidence of the amount of alcohol or drugs in the defendant’s blood is admissible if it is the result of a test administered pursuant to the provisions of §1194. VTL §1194 in turn assigns to the Department of Health the responsibility to approve satisfactory techniques or methods of conducting chemical analyses of a person’s blood, urine, breath or saliva. The Department of Health has determined that breath testing instruments must be calibrated “at a frequency as recommended by the device manufacturer but not less than once a year.”4 That regulation was not in effect at

Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers

the time of the test in Boscic and the Court went to great lengths to point that out. It noted that “these regulations [Department of Health] will, for arrests occurring after the effective date of the regulations, provide courts with information regarding recommended calibration intervals, not to exceed one year, when assessing the adequacy of foundation requirements for the admissibility of breath-alcohol test results.” Boscic, 15 N.Y.3d at 500. The time has come to accept the Boscic Court’s open invitation to litigate this issue. The Department of Health defines the term calibration at 10 NYCRR §59.1 as follows: Calibration means the activity of verifying that a value generated by the instrument is in acceptable agreement with the assigned value for a traceable and/ or certified reference standard, including any adjustment to the instrument to bring it into acceptable agreement. This definition is inconsistent with the meaning of calibration as is understood in the scientific community and discussed above. This definition includes by reference any adjustments to the instrument which are made to bring the device into acceptable agreement. However, this process of adjusting or altering the performance of an instrument to ensure that the values it indicates are correct within specified margins of tolerance is an adjustment - defined as the operation of bringing a measuring instrument into a state of performance suitable for its use. An adjustment is not a calibration. Until such time as the Department of Health revisits this definition, we as litigators are bound by it. But it is this

adjustment as required by the Department of Health that incorporates the essence of a true calibration, i.e. teaching it to act differently in the future. This is what differentiates calibrations from certifications. Many law enforcement efforts fall far short of what is required for a true calibration and instead often rely on factory calibrations which took place years prior. For example, the New York City Police Department utilizes a report which is titled “Record of Intoxilyzer 5000EN calibration.” This is simply a report of certification not calibration. The report indicates that five reference standards of the same concentration of ethyl alcohol are introduced into the breath testing device and no adjustments are made to the device. This is not a calibration under any definition of the term. What should lawyers do when faced with these circumstances? Initially it is important to make a record of the issue and preserve your objection to the introduction of the result of the breath test. Should that fail then the defense attorney should be prepared to cross examine the prosecutor’s witness who administered the breath test in order to confront the witness with literature from the field concerning what a true calibration means as well as through use of the Department of Health Regulations themselves. Since the definition refers to an adjustment, inquire when the last time such an adjustment was made and bring out that calibrations are required at a minimum yearly. Counsel should also consider calling an expert witness to testify and challenge the records of maintenance for the breath testing device which often are sparse and insufficient to establish what is Continued on next page

Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers


Calibration Continued from previous page

required by law. Pay close attention to the New York Criminal Jury Instructions which requires that the trier of fact consider “whether the device used was in good working order at the time the test was administered and whether the test was properly given.”5 Without proper calibration a measuring device cannot be trusted. Over time there is a tendency for results and accuracy to drift. To be confident in the results being measured there is an ongoing need to service and maintain the calibration of equipment throughout its lifetime for reliable, accurate and repeatable measurements. As attorneys we should be prepared to understand what terms such as calibration and


certification truly mean. We can then carefully examine the testing device used on our client and its maintenance records. Only then can we be prepared to challenge the machine’s trustworthiness. A

1 “Calibration Tutorial Overview, Intoximters, http://www.intox.com/t-calibrationtutorial.aspx, March 27, 2016. 2 “International Vocabulary of Metrology – Basic and General Concepts and Associated Terms” (VIM 3rd edition) 3 Thomas Workman, “The Science of Breath Testing for Ethanol” 7 UMass L.Rev. 1 (2012) 4 10 NYCRR 59.4[c] [eff. Apr. 23, 2010, as amended July 22, 2010]). 5 CJI2d(NY) Vehicle and Traffic Law§1192(2)

Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers

1st Quarter 2016

New York Appellate

Roundup This digest was created by NYSACDL members Patrick Michael Megaro, Esq., and Michael T. Baker, Esq.

The following cases are the highlights of all New York state reported appellate decisions for the first quarter of 2016. COURT OF APPEALS People v. Freddie Thompson, No. 16, (2/11/2016) https://www.nycourts.gov/ctapps/Decisions/2016/Feb16/16opn16-Decision.pdf The Court of Appeals took up the following question: whether the date of the original sentence, rather than the date of resentence, determines whether the prior conviction comes within the 10-year look-back period for the purposes of enhancing a sentence as a Second Violent Felony Offender. The Court concluded that a revocation of probation under Penal Law § 60.01 is not an “annulment” of a sentence, and therefore, the original date of the sentence controls. Even where the Continued on next page Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers


Appellate Roundup Continued from previous page

Appellate Division modifies a judgment that leaves it partially adverse to the appellant, the Court of Appeals still has jurisdiction. People v. Lawrence Watson, No. 19 (2/11/2016) https://www.nycourts.gov/ctapps/Decisions/2016/Feb16/19opn16-Decision.pdf The Court of Appeals took up the following question: whether a trial court may exercise its discretion in relieving an attorney who belongs to a large public defense organization where another attorney from the organization represented another individual that created a potential conflict of interest. The Court held that while knowledge of the organization’s current and former clients is not typically imputed to each attorney at the organization, the trial court has the authority to relieve counsel over the defendant’s objection and appoint conflict-free counsel to represent him. The Court held that the presumption in favor of permitting a client to be represented by counsel of his choice may be overcome by demonstration of an actual conflict or a “serious potential for conflict.” The Court held here that the difficulties in representing Defendant while simultaneously pursuing his defense and either calling the other individual as a witness or cross-examining him presented too great a danger for a conflict to arise. Accordingly, the Court of Appeals reversed the Appellate Division.

Patrick Michael Megaro is a transplanted New Yorker, practicing in Orlando Florida, with a multijurisdictional practice in criminal trials and appeals. he is a regular contributor to Atticus.

People v. Anthony Jones, No. 2 (2/18/2016) https://www.nycourts.gov/ctapps/Decisions/2016/Feb16/2opn16-Decision.pdf In this case, the Court of Appeals held that a sentencing court has no authority to defer payment of a mandatory surcharge imposed pursuant to Penal Law § 60.35. Rather, the only way a defendant can obtain relief from a surcharge is to move pursuant to CPL § 420.40. People v. Gordon Gross, No. 13 (2/18/2016) https://www.nycourts.gov/ctapps/Decisions/2016/Feb16/13opn16-Decision.pdf

NYSACDL Vice-President Michael T. Baker is the Chief Assistant Public Defender in Broome County.

The dissent opined that the prosecutor’s argument on summation invited the jury to misuse the testimony concerning prior consistent statements, particularly in light of

Continued on page 26


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Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers


2016 Annual Dinner

Immediate Past-President Wayne Bodden

President Kossover sworn in by Past-President Wayne Bodden President-Elect Wallenstein presents the Thurgood Marshall Award to Anthony Ricco

Marshall honoree Anthony Ricco Richard Levitt, Joel Rudin, Henry Steinglass

Past-President Dan Arshack and CLE Chair Bruce Barket

Paul Lieberman with President Kossover


Executive Director Jennifer Van Ort and President Kossover

Past-President Larry Goldman

Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers

2016 Annual Dinner

1st Vice President Rob Wells and Cecilia Wells

President Kossover presents the Brennan Award to Hon. Karen Peters Susan Slotnik and her dance crew with President Kossover

Vice President Alice Fontier Michael Shapiro accepting the Distinguished Service Award

Dance performance

President-elect John Wallenstein and Tamra Stecker

Left to right: Lindsey Rappaport, Jackie Rappaport, and Vicki Kossover

Newly installed President Andy Kossover with family and friends

Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers


Appellate Roundup Continued from page 22 the fact that there were no other witnesses other than the complainant and a lack of corroborating medical evidence. In the dissent’s opinion, the lack of an objection and request for a curative instruction constituted ineffectiveness. The dissent also took issue with the wholesale evisceration of the hearsay rule that allows prior inconsistent statements to provide “narrative” or “investigative purpose” and argued that there are no appreciable limits on “narrative” testimony. The dissent reasoned that there was no investigatory purpose to admitting the testimony of 5 other witnesses who testified that the complainant had reported the abuse to them other than bolstering the credibility of the witness, which the prosecutor clearly argued to the jury on summation. People v. Marcus D. Hogan, No. 18 (2/18/2016) https://www.nycourts.gov/ctapps/Decisions/2016/Feb16/18opn16-Decision.pdf Here, the Court of Appeals held that the statutory right of a defendant to testify before the Grand Jury is not fundamental, and that counsel’s refusal to timely facilitate a defendant’s appearance before the Grand Jury is not per se ineffective assistance, as the decision is a strategic decision that relies upon the expert judgment of counsel. In this case, defense counsel did not consult with the Defendant prior to telling the District Attorney that his client was not going to testify in the Grand Jury. The Court of Appeals reiterated prior holdings which stated that there is no Constitutional right to testify before the Grand Jury, because it “involves weighing the possibility of a dismissal, which, in counsel’s judgment may be remote, against the potential disadvantages of providing the prosecution with discovery and impeachment material, making damaging admissions, and prematurely narrowing the scope of possible defenses - quintessential matters of strategy.”

I busted a mirror and got seven years bad luck, but my lawyer thinks he can get me five. — Stephen Wright

People v. Christopher A. Nicholson, No. 17 (2/18/2016) https://www.nycourts.gov/ctapps/Decisions/2016/Feb16/17opn16-Decision.pdf The Court of Appeals reaffirmed the rule that an Appellate Division may not “hypothesize the basis for a judge’s determination where a record is wholly devoid of reason, or that an appellate court may comb through the entirety of a record solely to cobble together some theory for the trial court’s conclusion.” People v. Jin Cheng Lin, No. 14 (2/18/2106) https://www.nycourts.gov/ctapps/Decisions/2016/Feb16/14opn16-Decision.pdf The Court of Appeals held that pre-arraignment delay for “ongoing investigation” is impermissible, as the law requires that a person subjected to a warrantless arrest be arraigned without unnecessary delay. Where the intent of delaying an arraignment is to overbear the will of an individual, and the result is success, pre-arraignment delay is not tolerated. The Court held this was one factor to consider in the voluntariness of the Defendant’s statement, but ultimately concluded that the statement was not involuntary. Additionally, the Court of Appeals held that the Defendant’s handwritten notes during his interrogation were inadmissible hearsay, as they did not qualify as a prompt complaint of abuse.


Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers

Finally, with respect to the repugnant verdict claim, the Court of Appeals held that defense counsel’s generalized objection that that the jury “had some misunderstandings about the law and how it’s applying the facts to the law” did not preserve any specific challenge to the verdict. Accordingly, the Court affirmed. People v. Oscar Sanders, No. 22 (2/23/2016) https://www.nycourts.gov/ctapps/Decisions/2016/Feb16/22opn16-Decision.pdf When the Defendant walked in to the Jamaica Hospital Emergency Room in Queens with a gunshot wound, hospital officials contacted police as required by Penal Law § 265.25. Before police arrived, Defendant’s clothing was removed by hospital staff. The staff placed his clothes in a clear plastic bag in the room, and dressed him in a hospital gown while treating him. When police responded, Defendant told them he was shot in a nearby park. Police then inspected the Defendant’s clothing, seized it, determined that Defendant accidentally shot himself with a gun he carried in his waistband, arrested him and charged with possession of a gun. No gun was ever recovered. He unsuccessfully moved to suppress the clothing. The Second Department affirmed his conviction, holding that because his clothing was openly visible, the police had probable cause to seize the clothing as they believed it was evidence of a crime in which the Defendant was a victim (not a suspect). The Court of Appeals reversed, placing emphasis on the absence of evidence adduced at the hearing that showed the police knew where the entry and exit wounds were on the Defendant’s body, and whether they correlated to the condition of the clothing. Because there was no probable cause to believe that Defendant’s clothes were the instrumentality of the crime, suppression should have been granted. Maria De Lourdes Torres v. Police Officer Jones, et al. No. 21 (2/23/2016) https://www.nycourts.gov/ctapps/Decisions/2016/Feb16/21opn16-Decision.pdf In a false arrest action under federal and state law, evidence that the defendant police officers arrested the plaintiff without probable cause, after inventing a patently false confession, may establish the officers’ liability for detaining the plaintiff without any lawful privilege. Evidence that the officers forwarded the false confession to prosecutors can satisfy the commencement element of a malicious prosecution Continued on next page




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Appellate Roundup Continued from previous page cause of action, and the proof of the absence of probable cause for the prosecution and the police’s transmission of the fabricated evidence can overcome the presumption of probable cause arising from a grand jury’s indictment of the plaintiff. The same proof can support an inference that the police acted with actual malice in commencing the prosecution.

New York State Court of Appeals

FIRST DEPARTMENT People v. Robert Colasuonno, 2016 NY Slip Op 00021 (1st Dept. 1/5/2016) http://www.nycourts.gov/reporter/3dseries/2016/2016_00021.htm Defendant was charged with Attempted Second Degree Murder and First Degree Assault for stabbing his cousin. Justification was the central issue at trial. Defendant was acquitted of the murder and assault charges, but convicted of Attempted First Degree Assault as a lesser-included offense. In instructing the jury, the court did charge the jury to separately analyze justification for each charge. Nevertheless, the verdict sheet directed the jury to consider each charge in the alternative - upon an acquittal of each greater offense. , Neither the verdict sheet nor the court’s explanation of its contents referred to justification. The court also charged the jury that they had to consider lack of justification as an element for each offense. The charge as a whole never adequately conveyed that, if the jury found that defendant was not guilty of attempted murder on the basis of justification, it was not to consider any lesser counts based on the same conduct. Thus, reversal was warranted. Interestingly, the Appellate Division reached this issue in the interest of justice, because trial counsel abandoned the very argument successfully raised on appeal.


Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers

People v. Eugene Kindell, 2016 NY Slip Op 00027 (1st Dept. 1/7/2016) http:// www.nycourts.gov/reporter/3dseries/2016/2016_00027.htm In this unusual appeal, the First Department found ineffective assistance from the face of the record. Because trial counsel did not move to reopen the suppression hearing in light of new evidence that came to light at trial, the majority opinion held that this failure constituted ineffective assistance as “defense counsel had everything to gain and nothing to lose by moving to reopen the suppression hearing,” and this “decision not to make such a motion was a decision not to contest the admissibility of critical evidence against his client.” People v. Jesus Rodriguez, 2016 NY Slip Op 00423 (1st Dept. 1/21/2016) http://www.nycourts.gov/reporter/3dseries/2016/2016_00423.htm In this appeal from a denial of a speedy trial motion under Criminal Procedure Law § 30.30, The First Department held that two of the People’s certificates of readiness were illusory under the principles discussed in People v. Sibblies, 22 N.Y.3d 1174 (2014), which was decided after the Defendant’s conviction. The first was where the People filed a certificate of readiness 5 days after his arraignment, but answered not ready at the next court date. Nothing in the record explained their change in status from ready to not ready and the People failed to give an explanation for the change of circumstances. The second certificate of readiness was filed about 1 week after the People answered not ready for trial because the ADA was on trial on another case. On the next court date, the People again answered not ready for the same reason. Again, nothing in the record indicated that the People were actually ready on the date they filed the statement of readiness, rendering the statement illusory. As a result, the entire time period was properly charged to the People. People v. Richard Ortiz, 2016 NY Slip Op 00593 (1st Dept. 1/28/2016) http://www.nycourts.gov/reporter/3dseries/2016/2016_00593.htm The First Department held that evidence that the complainant sent a text message to friends detailing the alleged sexual assault 2-3 months after the incident took place this was clearly erroneous, because it was not made at the first suitable opportunity. The Court noted that while significant delay does not necessarily preclude outcry evidence when the complainant is a child, when the complainant is a teenager or older, “the concept of promptness necessarily suggests an immediacy not ordinarily present when months go by.” The Court further held that the People failed to establish other facts and circumstances to justify the delay, such as being under the defendant’s control, threats, or being among strangers or others to whom the complainant could not confide. Because the First Department concluded that the text message would not have been admissible to rebut a theory of recent fabrication, the erroneous admission was not harmless, particularly in light of the lack of overwhelming evidence, and the “significant probability that the prior consistent statement affected the verdict by bolstering the veracity of the victim.” The Court reversed and remanded for a new trial. Continued on next page Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers


Appellate Roundup Continued from previous page

People v. Russell McGee, 2016 NY Slip Op 01387 (1st Dept. 2/25/2016) http://www.nycourts.gov/reporter/3dseries/2016/2016_01387.htm Defendant moved to suppress physical evidence (an alleged stolen cell phone discarded during Defendant’s flight) and an identification that occurred when the arrested Defendant and the victim simultaneously arrived at the precinct and the victim saw and identified the Defendant. The trial court denied the motion without a hearing. The First Department reversed as to the Wade hearing only, finding that the court failed to follow the requirements of CPL 710.60(6) in setting forth its findings of fact and conclusions of law for determining the motion, and held that an issue of fact existed as to whether the identification was police-arranged. The case was remitted for a Wade hearing.

SECOND DEPARTMENT People v. Nicholas DeJesus, 2016 NY Slip Op 00376 (2d. Dept. 1/20/2106) http://www.nycourts.gov/reporter/3dseries/2016/2016_00376.htm At the Defendant’s first trial, which apparently ended in a hung jury, the defendant’s wife testified as a defense witness. She was not called as a witness in the second trial, which resulted in conviction. The Second Department held that the decision not to call her at the second trial did not increase the importance of his credibility. The court even went so far as to hold that “contrary to the defendant’s assertion, he was not the only witness available to testify for the defense” So AVAILABILITY became the central inquiry, not whether the defendant was, in fact, the only witness for the defense. This is an important distinction to note. People v. Eric P., 2016 NY Slip Op 00386 (2d. Dept. 1/20/2106) http://www.nycourts.gov/reporter/3dseries/2016/2016_00386.htm Here, the Appellate Division reversed for a new determination of Youthful Offender treatment. The trial court did not place on the record any reason for not adjudicating the defendant a Youthful Offender, and there was nothing in the record to indicate that it independently considered Youthful Offender treatment instead of denying such treatment because it was not part of the plea agreement. Citing

Ordinary human laws are the means — however imperfect — by which we express our understanding of the enduring moral law. — Russell Kirk, The Roots of American Order


Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers

Court of Appeals case law, the Second Department held that CPL 720.20 requires a Youthful Offender determination in every case where the defendant is eligible, even when he fails to request or waives it as part of a plea agreement. People v. Ishmel Owens, 2016 NY Slip Op 00993 (2d. Dept. 2/10/2016) http://www.nycourts.gov/reporter/3dseries/2016/2016_00993.htm During voir dire, a juror who had already been chosen and sworn expressed concerns that she might know someone who knew the Defendant. In the presence of all parties, the court conducted an inquiry, which revealed that the juror had discussed with a co-worker about kids “doing stupid things,” and found out that the co-worker had a cousin, who had a nephew, who was the Defendant. With the consent of all counsel, the judge spoke alone to the juror in camera, and she said “I don’t know if I can be fair.” When pressed by the court, she said she was unsure because her co-worker, who she saw every day, actually knew the Defendant. Returning to the courtroom, the court announced that it had already decided to remove the juror because she would be a distraction. Trial counsel objected, arguing that the Defendant had a right to be heard prior to discharging a sworn juror. The Second Department reversed, holding that the Defendant’s right to be heard was not waived by virtue of his consent to allow the court to speak to the juror alone in camera. The Second Department further held that the court’s very limited questioning of the juror resulted in an improvident exercise of discretion, particular where the court made little effort to ascertain whether the juror could deliberate fairly and render an impartial verdict. The Appellate Division held that when making such a determination with respect to a sworn juror, the court may not speculate on the partiality of the juror based on equivocal responses; rather, the court must be convinced to a reasonable certainly that the juror’s knowledge would prevent them from rendering an impartial verdict. Because the record did not contain any indicia of that level of certainty, the Second Department reversed and remanded for a new trial.

THIRD DEPARTMENT People v. Forrest F. Gallo, (3d. Dept. 1/7/2016) http://decisions.courts.state.ny.us/ad3/Decisions/2016/106914.pdf The Third Department rejected the People’s argument that the prior denial was binding and constituted law of the case, finding that the grounds for each of the motions was brought under different statutes. The Third Department ruled that even though there is no general requirement that the Grand Jury be charged with every potential defense suggested by the evidence, the evidence presented here reasonably supported the agency defense. The Court relied on testimony that it was the buyer who initiated the sale, and that the evidence suggested that the DefenContinued on next page Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers


Appellate Roundup Continued from previous page

dant was selling marihuana as a favor to the buyer’s stepbrother, his friend. The Court further relief on the fact that the Defendant had no history of prior drug sales, and that the evidence that Defendant profited from the transaction was tenuous at best. Therefore, failure to instruct the Grand Jury on agency rendered the proceedings defective. People v. El Kahliem Myrick (3d. Dept. 1/14/2016) http://decisions.courts.state.ny.us/ad3/Decisions/2016/106360.pdf The Third Department ruled that testimony of the detective who identified Defendant from the store surveillance video was reversible error, particularly where the County Court hard ruled previously that if the People intended to introduce the store surveillance video into evidence, they could not offer testimony identifying the Defendant as one of the people in that video. At trial, however, the County Court overruled the Defendant’s objection when that very testimony was admitted. The Third Department held that the detective’s lay opinion evidence was erroneously received because there was no evidence that the Defendant had changed his appearance prior to trial, and that the jury was unable to determine whether the Defendant was, in fact, the person depicted in the store video. The Third Department reversed for a new trial as a result, but only on two counts of the Indictment. People v. Maurice Magee, (3d Dept. 1/21/2016) http://decisions.courts.state.ny.us/ad3/Decisions/2016/106597.pdf The Court held that “there is usually no issue of motive in a drug sale case, as the seller’s motivation is nearly always financial gain” and the admission of the evidence had no “relevant impact other than to show defendant’s criminal propensity.” As a result of the erroneous Molineaux ruling, the Court reversed. People v. Andrew Jones (3d. Dept. 2/18/2016) http://decisions.courts.state.ny.us/ad3/Decisions/2016/106477.pdf At trial, the prosecution “sought to exercise peremptory challenges to exclude four of the five nonwhite individuals comprising the second panel of prospective trial jurors. Indeed, as defense counsel noted, ‘The only [nonwhite juror] who was not excluded [from this panel] was the daughter-in-law of the former Chief of Police of the Albany Police Department.’” Upon defense counsel’s Batson challenge, The Prosecutor provided a race-neutral reason for the second, third and fourth prospective jurors but refused to provide on for the first one claiming, “I shouldn’t be made to give a reason for the first one.” Defense counsel argued that the fact that the prospective juror in question “was the first person of color [to be] excluded [was] . . . merely fortuitous”. The trial court rejected defense counsel’s argument and allowed all four prospective jurors to be stricken. The Court found that the Prosecution’s argument that it shouldn’t have to provide a reason as to the first prospective juror to be “simply wrong” . . . because ‘[t]he exclusion of any [nonwhite prospective jurors] solely because of their race is constitu-


Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers

tionally forbidden.” Thus, “a defendant asserting a Batson challenge need not show a pattern of discrimination.” The Court held that when the burden “shifted to the People to provide race-neutral explanations for all four — not just three — of the nonwhite prospective jurors against whom the People asserted peremptory challenges.” Judgment reversed and new trial ordered on the Batson claim.

FOURTH DEPARTMENT People v. Eric Porter, KA 11-00289 (4th Dept. 2/5/2016) http://www.nycourts.gov/courts/ad4/clerk/decisions/2016/02-05-16/PDF/1394. pdf

A lawyer caught in the toils of a murder case is like a man newly fallen in love: his involvement is total. — Robert Traver

The Fourth Department reversed, granted suppression of Defendant’s statements made to police after a traffic stop regarding the presence of a rifle in the car, and remanded for a new trial. The Court found that once the initial lawful traffic stop concluded with the arrest of the driver, there was no justification to detain Defendant further, as the police did not claim any specific basis to believe that Defendant posed a danger. Rather, they characterized Defendant as cooperative. The Fourth Department further held that the refusal to suppress was not harmless error, as the only evidence linking Defendant to the rifle was his two statements to police, which established knowing possession. Finally, the Fourth Department held that various instances of prosecutorial misconduct deprived Defendant of a fair trial. These included cross-examination of the driver concerning an out-of-court conversation between them, and asked the driver if she went to the prosecutor’s office and admitted that the Defendant tried to get her to take the blame for the rifle, which the witness denied twice. The prosecutor then asked her after the second denial “[b]ut you were the one who was convicted of Scheme to Defraud, correct?” This improperly injected the prosecutor’s personal opinion and made him an unsworn witness before the jury. Further, the Fourth Department condemned the prosecutor’s summation, referring to the defense as “all this nonsense” and accused the defense of “twisting things” and employing tricks, and made comparisons between the case and the JFK assassination. The prosecutor also gave their personal opinion that the defense witnesses lied, and denigrated a defense witness for appearing with a lawyer, arguing that the jury had no idea of telling whether the testimony was the witness’ words or the lawyer’s words. Further, the prosecutor suggested that an acquittal would require a finding that a conspiracy by law enforcement existed. The case was reversed and remanded for a new trial. People v. Joseph A. Stefanovich, KA 14-00852 (4th Dept. 2/11/2016) http://www.nycourts.gov/courts/ad4/clerk/decisions/2016/02-11-16/PDF/0050. pdf The Fourth Department held that on the face of the record, Defendant received ineffective assistance of counsel when he “partook an inexplicably prejudicial course.” The defense strategy was flawed for several reasons: the defense was based Continued on next page

Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers


Appellate Roundup Continued from previous page

on the premise that police focused their investigation on Defendant merely because he was a sex offender; in reality, they focused their investigation on him because of the DNA match between the CODIS databank and the rape kit. Additionally, Defendant’s DNA was not in CODIS because he was a registered sex offender, it was in the database because he was a convicted felon. The Fourth Department held that conveying to the jury that the Defendant was a registered sex offender was so egregious as to compromise his right effective assistance of counsel. The Fourth Department focused on the favorable Sandoval ruling, the court’s willingness to redact the prejudicial portions of the recording until the defense stated he did not object, and that counsel’s belief that the jury would find out Defendant’s status one way or the other was incorrect, as no such DNA documents referring to Defendant’s status were ever admitted into evidence. Even though the Fourth Department found the proof of Defendant’s guilt overwhelming, it nonetheless reversed and remanded for a new trial. People v. Darren Hightower, KA 1300154 (4th Dept. 2/11/2016) http://www.nycourts.gov/courts/ ad4/clerk/decisions/2016/02-11-16/ PDF/0115.pdf Defendant’s vehicle was stopped for excessively tinted windows, and he admitted to police that he had no driver’s license and no identification on him. The officer asked the visibly nervous Defendant to exit the vehicle, asked him where he was going, and then began “invasive questioning” as to whether Defendant had any weapons or drugs. Defendant told the officer “you’re harassing me” and began to walk


away, prompting the officer to pursue him and hit him with a Taser just after Defendant discarded bags containing cocaine. The Fourth Department reversed the denial of suppression, holding that the Defendant’s flight alone was insufficient to justify pursuit because an individual has right to be left alone and to refuse to respond to police questions. The

Court held that the Level 2 common law right of inquiry was unsupported by a founded suspicion, as was the Level 3 forcible stop. The Court found that the disposal of the cocaine during the pursuit was caused by the unlawful pursuit. As a result, the Court reversed and remanded for entry of dismissal. A

Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers

Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers


Book Review Reading Law: the Interpretation of Legal Texts by Antonin Scalia and Bryan Garner (West Publishing, 2012)

Reviewed by Ira Pesserilo

In contemporary times, only one Supreme Court Justice can truly be called a giant of jurisprudence – Antonin Scalia. His opinions in Crawford v. Washington, 541 U.S. 36 (2004), and Heller v. District of Columbia 554 U.S. 570 (2008) are regarded by some as seminal works of jurisprudence. So, when Justice Scalia and Bryan Garner co–authored Reading Law; the Interpretation of Legal Texts I viewed it as an opportunity to get an advanced education in interpreting the law from one of the great legal minds of our age. Justice Scalia began with his fundamental rule of legal interpretation; look to the words themselves, in the time and context they were written, to discern the true meaning of the law. Do not look beyond the words themselves for any so-called “intent.” Justice Scalia shows how the interpretive rules work for Constitutional adjudication, statutory and regulatory adjudication. Indeed, to demonstrate the logic of his rules of interpretation he even interprets the simple sign that appears outside bars and restaurants in vacation resorts; “No Shirt, No Shoes, No Service.” It is Justice Scalia’s primary argument that Statutory and Constitutional interpretation is essentially different from Common Law adjudication; the Common Law is a system of Judge – made laws, subject to evolution by the same judiciary that first formed and defined its concepts. Yet, all legal documents – deeds, contracts, administrative regulations, statutes, and the Constitution itself – must be interpreted as the drafters meant them to be interpreted. Thus, the proper method of Constitutional adjudication is never to seek to fathom the intent of the authors of any law by anything other than the words the drafters themselves used.

Ira Pesserilo does both trial and appellate practice. He began criminal practice in Los Angles in 1991 with the Public Defender’s office, and then in private practice. In 1996, he returned home to New York; currently he practices in Syracuse and Cortland NY.


Attempting to glean some purpose out of the law not found in the words themselves leads to “purposivism” which Scalia views as an illegitimate method of judicial interpretation. “Purposivism” is the means judicial activists use to attempt to write the law from what it is, to what courts want it to be. Scalia views this as a totally inappropriate exercise of judicial power.

Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers

Thus, Scalia totally rejects the concept of the “Living Constitution” as judicial legislation. He gives, as two examples of the illegitimacy of the “Living Constitution” concept; the constitutional right to have an abortion and the constitutional right to engage in homosexual activities. Both were felonies, when the Constitution was enacted, and also when the 14th Amendment was added to the Constitution. He finds it preposterous that the Constitution could be interpreted to grant Constitutionally protected status to such conduct, based upon the Constitution as written. Moreover, Scalia asks how the death penalty can be viewed as “cruel and unusual punishment under the 8th Amendment when the only penalty allowed for a felony when the Constitution was enacted was the death penalty? In interpreting the law, Scalia rejects the use of legislative history, or floor debates, to find the law’s true meaning. Most legislative history consists of committee reports, which were drafted by staff members, and are never read, let alone amended or voted on, by the members of Congress. Moreover, there are 100 members of the Senate, and 435 members of the House of Representatives, all with separate agendas. Floor debates are equally useless in discerning the intent of any law; each member of Congress is on his or her own respective agenda; additionally, the President has to consent to legislation by signing the bill. Justice Scalia then asks the rhetorical question, whose agenda governed, the agenda of the members of the Senate, the House, or the President? Thus, he argues that to use anything

other than the language of the law results in illegitimate interpretation, and usurpation of the legislative function. Furthermore, it is anti-democratic for an unelected chamber of life- tenured individuals to usurp the role of the elected members of the legislature. Yet, Justice Scalia certainly does not call for wooden, inflexible interpretation of the law either. On the contrary, he firmly advocates interpreting the words of the law as they were meant when the law was enacted, not what they have come to mean at a later time. As a case in point, if one were to call certain architecture “Awful, Artificial, and Amusing” that would be viewed as derogatory by today’s definition of the words; Yet, those were the very words Queen Victoria used to describe a Cathedral designed by Christopher Wren, and she meant it as high praise, under the meanings of “Awful, Artificial, and Amusing” that existed at the time she spoke the words. Perhaps there is no better example of the need to interpret language as it meant when the law in question first came into being than Justice Scalia’s majority opinion regarding 27 words of the Constitution; “A Well Regulated Militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” Scalia briefly expounds upon his opinion in Heller (id.) an opinion so amazingly written that many believe it deserves to be called literature. The book goes on to list, and explain in detail, 47 canons of constructionism,

and 13 false notions of legal interpretation. These sections comprise the bulk of the book, making Reading Law; the Interpretation of Legal Texts in essence, a book about legal grammar, with real cases used to illustrate each of his 47 canons, and 13 false notions. While reading grammar books is one of the unhappy experiences of adolescence that most of us banish from our memories when we recall our youth, his writings on legal grammar, the very heart of his book, gives the reader an advanced legal education in interpretation, and also provides to the lawyer a treatise on theoretical jurisprudence. Indeed, while few lawyers get to argue a case before the U.S. Supreme Court, most lawyers can expect to need prepare legal arguments regarding statutory or administrative interpretation. Here, Reading Law; the Interpretation of Legal Texts is an indispensable guide in legal interpretation at every level. This is not the kind of book you’ll want to take with you to an airport, to while away the time, or to relax with on vacation. This book requires a real effort by the reader to comprehend its tenets of interpretation, and it also rigorously tests the reader’s proficiency in English. Yet, this book will, in return, give the reader an outstanding education in jurisprudence from one of the true giants of the law. In this regard, Reading Law; the Interpretation of Legal Texts is a must-read for all lawyers. And once completed, notwithstanding the book’s attractive cover, Reading Law; the Interpretation of Legal Texts should be placed on every lawyer’s book-shelf, and not merely displayed on the coffee table. A

Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers


Book Review Lockdown On Rikers by Mary E. Buser (St. Martin’s Press, 2014)

Reviewed by Jessica A. Horani

NYSACDL Secretary Jessica A. Horani is in private criminal defense practice in New York City, and is an editor of Atticus magazine.


In June of 2015 a young man took his own life using an air conditioner cord in his mother’s home in the Bronx. His death made national headlines when President Barack Obama cited the death in a Washington Post op-ed which called for reforms to the practice of solitary confinement in jails across America. The young man, Kalief Browder, entered Rikers Island as a 16 year old charged in a burglary which was ultimately dismissed. He spent several years locked up and much of that time in solitary confinement until his release in 2013. His struggle to regain his life and his sanity after his time on Rikers tragically ended in suicide. In September 2015 Mary E. Buser’s account of her work in the Mental Health Department of Rikers Island was published which opened the world of Rikers and its attendant horrors and human tragedy for all to see who wished to look. Although Ms. Buser had long since left the Island when Kalief first arrived as a scared young man, her account of the draconian nature of the facility and the brutal treatment of inmates, particularly the most weakened and vulnerable among them, seems to have largely remained

the status quo in light of Kalief ’s and so many others’ experiences. Mary E. Buser worked on Rikers Island in a mental health capacity; first as a social work intern and eventually as an Assistant Chief of the Mental Health Department from 1995 to 2000. Her gripping book, Lockdown on Rikers takes readers over the bridge to the island that houses a majority of the pre-trial detainees of the City’s criminal courts as well as those sentenced to jail, but not prison, sentences. Rikers sits so close to LaGuardia Airport that planes routinely take off and land just overhead while seagulls glide and dip through the air above the surrounding water. On the ground it is another world altogether; one that Buser brings to life in glaring and heartbreaking detail. Lockdown on Rikers is a fast read; although not an easy one. The trauma it highlights among inmates of this infamous correctional facility, the futility of a Mental Health practice for its most vulnerable residents, and the agony of solitary confinement give the reader access to a human crisis which some would rather remain ignorant. For

Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers

many of the readership of this publication, criminal defense lawyers practicing in NYC, the lingo and the practices of Rikers will not come as a surprise or shock. However, Buser’s empathetic writing from a social work and mental health professional perspective provides even more insight beyond the counsel visiting rooms and corroborates much of what we hear from clients themselves. Buser’s narrative follows her career; first as a young and idealistic social work intern sent to work on Rikers Island as part of her graduate studies and then later to a staff position in the Mental Health Center and eventually as an Assistant Chief at Otis Bantum Correctional Center. OBCC, as it is known, is a men’s facility on Rikers which also houses the Central Punitive Segregation Unit, the same solitary confinement facility where Kalief Browder spent nearly two years before his release. Buser’s retelling follows not only the arc of her career but takes us deeper and deeper into the harsh realities of confinement at Rikers Island. As a student intern she describes her start, working at Rose M. Singer Center, the one facility for women on the island. Although the initial introduction to Rikers is an adjustment, her work with the women and in the jail nursery still provides some sense of hope and a glimpse of what life might hold for some of these women. There are those who successfully kick drug habits, return to their families and loved ones, and continue with mental health treatment. Although she shares stories of disappointments and lost women among those she counsels, there are also small victories. One of those is a young women’s group she starts which sees its young attendees learning to broach their disputes verbally in a group setting and creates a reduction in fights and violence among them.

In these early pages as Buser talks about the women she comes to know as an intern social worker we see her focus on the background plight of the people who find themselves confined on Rikers. She recognizes the difficulties in her patients’ lives and how widespread the epidemic of drug addiction and untreated mental illness is among those caught up in the criminal justice system. At the time when Buser worked on Rikers, the Rockefeller drug laws were still in effect and although there is some relief in knowing that many of the harshest drug sentences are no longer enacted today, the island remains a microcosm of many of the untreated ills of our most vulnerable members of society. It is when Buser advances to working in the men’s facilities and ultimately as Assistant Chief of OBCC that she has to make gut wrenching decisions regarding inmates in solitary confinement and whether they are in mental health distress and at risk of suicide or simply trying to get out from under this seemingly cruel and unusual punishment. As one reads accounts of desperate inmates who bash their heads against the stone walls of their confines, the distinction between those who are genuinely suicidal and those just looking to get out of solitary seems to blur and become less relevant. As Buser notes with one inmate in solitary who is found inside his cell spreading his own excrement on his naked body, “…a line’s been crossed. This could be calculated, but even so, if you’re willing to go to this length, then as far as I’m concerned, you win.” The cost to these men’s psyches as they spend days, weeks, months, even aggregates of years in solitary cells on Rikers is one of the horrors which Buser confronts again and again. She is not easy on the officers and administration who

run Rikers, often pointing out the abuse and violence she observed directed towards inmates, especially the mentally ill. And it is the mentally ill whose ability to follow barked orders or control their behavior is necessarily limited by virtue of their illnesses. The cost cutting nature of administrators also is not spared as a transition from one hospital provider to another brings crisis after crisis to a facility where mental health treatment is reduced to putting BandAids on hatchet wounds. The desire for economy and efficiency steamrolls over effective and humane treatment and it is not hard to see what led an already vulnerable young man like Kalief Browder to succumb to suicide after his release from Rikers. Attorneys may quibble with judgments of patients regarding their defense counsel, however,the book is not meant to be a comprehensive account of what goes on in the courtroom of New York City. Lockdown on Rikers is an eye opening account of what happens at the infamous island jail. To be sure, some reforms have been put in place since Buser’s employment ended but they have not done enough to stem the violence, abuse and other ills which have caused some to call for its complete closure. In February 2016 it was announced that Former State Chief Judge Jonathan Lippman would head a commission to take a comprehensive look at the city’s criminal justice system with an eye towards reducing the jail population, potentially even allowing for the closure of Rikers. Along with all the recent media reports and stories of people like Kalief Browder, Mary Buser’s book should be required reading for all those interested in seeing the commissions’ stated goals through. A

Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers


From 90 State Continued from page 5 training programs is reaching a total attendance close to current membership numbers. Consequently, if NYSACDL has a 2016 membership goal of 915, its CLE attendance goal for 2016 must be over 900. We are on the way to achieving that goal with our first 3 programs planned for the year: April 9: Central New York Spring 2016, Syracuse, NY – Attendance Goal: 75 April 15: Cross to Kill 2016, New York, NY – Attendance Goal: 145 April 29: Federal Practice CLE Seminar, New York, NY – Attendance Goal: 80 If these three programs reach attendance goals, NYSACDL will be 1/3 of its way toward the 2016 training goal. As a reminder, the Cross to Kill program has sold out the past two years – if you are planning on attending, register soon! More information on these programs is available in this issue.

In addition, NYSACDL’s wide array of online seminar videos attract more and more views every week. So far, we have trained over 15 attorneys online in 2016. This resource is great for attorneys close to registration dates and needing additional credits, including ethics. As a reminder, please put your birthdate in your online member profile – you will soon see a special birthday gift good toward videos from NYSACDL available to members only! Legislative – Grassroots Campaigns By the time you receive this issue, you will probably have already seen information about NYSACDL’s new advocacy web page. This new tool will help the Legislative Committee provide you with both information on the issues they are working on and opportunities to easily and effectively participate in the advocacy efforts surrounding those issues. Similar to other online advocacy pages you may have used, this new facet of NYSACDL’s legislative efforts will allow you to directly contact your representa-

Continued from page 3

Lastly, these times present a challenge to defenders of the Constitution. We have learned that headlines of violent acts, the reality of mass shootings and terrorism result in attempts to roll back our civil rights. NYSACDL is dedicated to defending our freedoms in these scary times. NYSACDL will continue to work to prevent terror from infecting our constitutionally protected values.


A growing and engaged membership, strong training programs, and effective advocacy efforts are the backbone of NYSACDL’s success. A successful NYSACDL leads to better opportunities and a more meaningful membership for you. As a current member, you are in integral part of NYSACDL’s success, simply through adding your name to our membership rolls each year. I hope that you will be inclined to take that participation to the next level by: Recommend membership to colleagues. Register yourself for and Share with others information about CLE seminars. Participate in calls to Communicate about legislative initiatives. As always, thank you for your commitment to vigorously defending your clients and supporting the rights of criminal defendants throughout our state. A

Message from the President with the credible and ethical voices of our Association and its members.

tives and encourage them to reflect on NYSACDL’s positions on topics. We hope you will take advantage of the ease of this tool to participate in these communication efforts, as well as share with your friends and family via email and social media to encourage them to advocate for the issues important to you.

The breath and depth of our membership serves as a tribute to the camaraderie members share, the forum provided for exchanging ideas and best practices, and the importance of our cause. Thank you for your membership in NYSACDL and thank you for supporting our public policy efforts. Justice & Compassion, Andy Kossover

Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers

Cutting Edge CLE NYSACDL is noted for our innovative, interesting and informative CLE programs, which we present at various locations around the state each year. Seminar Registration Available at www.nysacdl.org Questions? Call the NYSACDL office at (518) 443-2000 or email jlvanort@nysacdl.org


Spring 2016 Seminar Calendar Federal Practice in 2016 and Beyond Friday, April 29, 2016 New York Law School, 185 W Broadway, New York, NY 10013 Premium Lead Sponsor – T&M Protection Resources Faculty & Topics: Examining Cell Phone Evidence and Other Technology Discovery Issues – Richard Willstater, Esq.; Louis Cinquanto, EnCE Issues for Jury Instructions in Federal Court – Marc Fernich, Esq.; Maurice Sercarz, Esq.; Susan C. Wolfe, Esq.

Panel Presentation: Sentencing and Mitigation Advocacy – Judge Vincent L. Briccetti; Thomas E. Mixon, Deputy Chief U.S. Probation Officer; Michael Shapiro, Esq.; Rachelle D. Veasley, LMSW; Moderated by John S. Wallenstein, Esq.

NYSACDL Editorial Continued from page 4 The proposed legislation would allow New York to join the “national mainstream…and result in a far more fair and reliable, yet fully workable, system. It would permit adequate case investigations, allow prompt and properly informed decisions on guilty pleas, lead to more orderly trials, and would minimize the risk of wrongful convictions. It would also provide the tools needed for courts, prosecutors, and defense lawyers to protect the witnesses upon whom the system depends and to whom it must afford security” (NYSBA Report of the Task Force on Criminal Discovery). Compare New York to Texas, where last May, Gov. Rick Perry signed the Michael Morton Act, which expanded the state’s discovery law to an “open file” policy, following a prosecutorial mis-

conduct case in which a Texas D.A. was sent to prison. The Bill was named after a man the D.A. had wrongfully convicted of beating his wife to death in 1987 and who was released in 2011, after being exonerated by DNA evidence. “Texas is a law-and-order state, and with that tradition comes a responsibility to make our judicial process as transparent and open as possible,” Perry said in a statement released upon signing, writing that it “helps serve that cause, making our system fairer and helping prevent wrongful convictions and penalties harsher than what is warranted by the facts.” Efforts to fix criminal justice discovery in New York have won support not only from progressives, but also from conser-

vatives. Former prosecutors, who have become judges, add to this emerging consensus. The New York State Association of Criminal Defense Lawyers is at a loss as to why anyone would not support discovery rules aimed at ascertaining the truth. We commend the Task Force on Criminal Discovery on their efforts to inject more justice into our criminal justice system. We encourage the Governor and the members of the State Senate and Assembly to make discovery reform the proud legacy of the 2016 legislative session. We believe there is no more single important piece of criminal justice legislation which would further the interests of fairness and justice in New York’s criminal justice system. A

Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers


NYSACDL Membership

The Largest Criminal Defense Bar Association in New York State



Andrew Kossover, New Paltz

Daniel Arshack Wayne C. Bodden Peter E. Brill David J. Cohen Lori Cohen Anthony J. Colleluori Terrence M. Connors Anthony Cueto Gerard M. Damiani Telesforo Del Valle, Jr. Joshua L. Dratel Russell M. Gioiella Lawrence S. Goldman Trevor W. Hannigan E. Stewart Jones Kathryn M. Kase Ray Kelly Lee Kindlon Terence L. Kindlon Seth Kretzer Gerald B. Lefcourt David L. Lewis

PRESIDENT-ELECT John S. Wallenstein, Garden City

FIRST VICE PRESIDENT Robert G. Wells, Syracuse

VICE PRESIDENTS Michael T. Baker, Binghamton Lori Cohen, Manhattan Alice Fontier, Manhattan Arnold J. Levine, Manhattan Donald G. Rehkopf, Jr., Rochester

SECRETARY Jessica Horani, Manhattan

TREASURER Susan J. Walsh, Manhattan

EXECUTIVE DIRECTOR Jennifer Ciulla Van Ort, Albany

Thomas F. Liotti Florian Miedel Aaron Mysliwiec Brian Joseph Neary Thomas J. O’Hern Paul D. Petrus Frank Policelli Murray Richman Todd J.W. Wisner

PRESIDENT’S CLUB MEMBERS F. Stanton Ackerman George Goltzer Kevin D. O’Connell Benjamin Ostrer Richard D. Willstatter

SUSTAINING MEMBERS James A. Baker Daniel E. Bertolino Vivian Storch Cannon Joseph R. DeMatteo Brian DeSesa

Karen L. Dippold Michael Dowd Mario Gallucci David I. Goldstein James P. Harrington Daniel J. Henry, Jr. Jessica Horani John Ingrassia Mark Mahoney Michael P. McDermott Oscar Michelen Kenneth Moynihan Marcos A. Pagan III Steven K. Patterson Roland G. Riopelle Joel B. Rudin Anastasios Sarikas Jay Schwitzman Oliver S. Storch Scott B. Tulman John S. Wallenstein Susan Walsh Harvey Weinberg James W. Winslow





Reetuparna (Reena) Dutta Alan S. Hoffman Benjamin L. Nelson

April McKenzie

Christine L. Mertens



Megan W. Benett Andrew Bernstein Lance Clarke Christine Delince Jay Goldberg Lawrence P. LaBrew Christian Bryan Lassiter Jeffrey Litchtman Elizabeth Macedonio Gary Maitland Todd Neuhaus Paula J. Notari Richard Rosenberg Ira Lee Sorkin

Stephen Lance Cimino H. Dana VanHee

Robin Bauer Debra Cassidy Clare Degnan Dina Denlea Matthew Feinberg David A. Garcia Gary Kropkowski Ada Medina Daniel Mentzer Karen R. Needleman Andrea C. Rendo Lynette Spaulding Annmarie Stepancic Christina Swatzell Jorge Varela David Weisfuse

ESSEX COUNTY Allison M. McGahay

KINGS COUNTY Erin Nagy Ezra Spilke


MONROE COUNTY Joseph D. Waldorf

NASSAU COUNTY Martin Cohen Alan Nelson



ROCKLAND COUNTY Rosalyn B. Akalonu


SUFFOLK COUNTY Omar Almanzar-Paramio


Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers

Join the Committee

NYSACDL standing committees are chaired by members in good standing who are appointed by the President. Committee membership is a rewarding opportunity for members to network with colleagues throughout the state and to explore various issues in depth. Members are invited to join committees to further the important work of our association. If you are interested in joining a standing committee (listed below), please contact the committee chair or the Executive Director’s office: jlvanort@nysacdl.org, 518-443-2000, for more information. AMICUS CURIAE COMMITTEE Chairs: Marc Fernich (maf@fernichlaw.com), Brendan White (brendan@whiwhi.com) Members: Timothy Murphy, Richard Willstatter

Members: Bruce Barket, Wayne Bodden, Jonathan Fishbein, Greg Lubow, Aaron Mysliwiec, Kevin O’Connell, Alan Rosenthal, Joshua Saunders, Andre Vitale, Nikki Zeichner

MEMBERSHIP ANNUAL DINNER COMMITTEE Chair: Andrew Kossover (ak@kossoverlaw.com) Members: Wayne Bodden, Lori Cohen, Danielle Eaddy, John Wallenstein

CONTINUING LEGAL EDUCATION COMMITTEE Chairs: Bruce Barket (bbarket@barketmarion.com), James Grable (jwg@connors-vilardo.com), Timothy Hoover (THoover@ phillipslytle.com), Arnold Levine (NYCcrimlaw@aol.com), Andre Vitale (AVitale@monroecounty.gov) Members: Michael Baker, Wayne Bodden, Danielle Eaddy, Andrew Kossover, Brian Melber, Benjamin Ostrer, Lisa Peebles, Michael Shapiro, John Wallenstein, Robert Wells

INDIGENT DEFENSE COMMITTEE Chair: Andre Vitale (AVitale@monroecounty.gov) Members: Joshua Saunders, Susan Walsh

FINANCE AND PLANNING COMMITTEE Chair: Lori Cohen (locohen@aol.com) Members: Wayne Bodden, Andrew Kossover, David Goldstein Aaron Mysliwiec, Michael Shapiro

LAWYERS STRIKE FORCE ASSISTANCE COMMITTEE Chair: Wayne Bodden (wcb40@aol.com) Members: Marc Fernich, Timothy Hoover, Richard Willstatter

LEGISLATIVE COMMITTEE Chairs: Andrew Kossover (ak@kossoverlaw.com), Lisa Schreibersdorf (lschreib@bds.org)

Chairs: Greg Lubow (gdlubow@gmail.com), Aaron Mysliwiec (am@fmamlaw.com), Robert Wells (dfndr@hotmail.com) Members: Bruce Barket, Vincent de Marte, Mitch Dinnerstein, Peter Dumas, David Goldstein, James Grable, Timothy Hoover, Andre Vitale

PROSECUTORIAL AND JUDICIAL COMPLAINT COMMITTEE Chair: Michael Shapiro (MShapiro@clm.com) Members: Daniel Arshack, Danielle Eaddy, Alice Fontier, Lawrence Goldman, Florian Miedel, Thomas O’Hearn, Benjamin Ostrer, Donald Rehkopf

PUBLICATIONS COMMITTEE Chairs: Benjamin Ostrer (ostrerben@aol.com), John Wallenstein (jswallensteinesq@aol.com) Members: Richard Barbuto, Jessica Horani, Lisa Peebles, Claudia Trupp

PUBLIC STATEMENTS COMMITTEE Chair: Wayne Bodden (wcb40@aol.com) Members: Alice Fontier, Lawrence Goldman, Timothy Hoover, Jessica Horani, Susan Walsh, Richard Willstatter

WHITE COLLAR CRIME COMMITTEE Chairs: Joshua Dratel (jdratel@joshuadratel.com), Aaron Mysliwiec (am@fmamlaw.com) Members: Robert Caliendo, James Grable, Timothy Hoover, Arnold Levine, Brian Melber, Kenneth Moynihan, Michael Shapiro, Robert Wells, Richard Willstatter

Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers



New York State Association of Criminal Defense Lawyers

Membership Application Please print or type

Name: ______________________________________________________ Firm Name:__________________________________________________ Address:____________________________________________________ City/State/Zip: ____________________ County: _____________________ Phone:__________________________ Fax:________________________ Email:_______________________________________________________ Website:_____________________________________________________ Bar Admission State:_______________ Year Admitted:________________

Please circle membership type *All memberships include $15 donation to the NYSACDL Foundation, Inc. o Please check here to remove.

Lifetime Member President’s Club Sustaining Member Regular Member

Income over $50,000 or In practice over 5 years

$2500 $515 $315 $219

Our Mission NYSACDL is dedicated to protecting the rights of criminal defendants through a strong, unified, and well-trained criminal defense bar. Our guiding principle is that vigorous defense is the strongest bulwark against error and injustice in the criminal justice system. In an era when the United States has the highest incarceration rate in the world, we expand on the question most often posed to our members and ask “how can we defend those people most effectively?” NYSACDL’s goals are to: n Serve as a leader and partner in advancing humane criminal justice policy and legislation. n Promote the rights of criminal defendants through the adoption of policy positions, targeted concerted action, and the submission of amicus briefs on issues of significance to the fair administration of criminal justice and the protection of civil liberties. n Advocate for individual and systemic accountability in the criminal justice system, with a particular emphasis on instances of judicial and prosecutorial misconduct. n Develop a broad, inclusive and vibrant membership of private criminal defense practitioners and public defenders throughout New York State.

Regular Member


Full-time Public Defender Allied Professional Member

$142 $193

n Provide a forum for our members to exchange ideas and information, with a particular emphasis on mentoring those who are new to the profession.

Retired Attorney $91 Law Student/Recent Law School Alumni (less than one year since completion) $66 School: __________________________

n Provide quality continuing legal education to our members through live programs, a comprehensive and easily-accessible briefs and motions bank, e-alerts and website updates with new developments, and articles in our quarterly publication, Atticus.

Income under $50,000 or In practice less than 5 years

Non-lawyers who assist in the defense of criminal cases (consultants, investigators, etc.)

Graduation date: __________________

Membership dues can be paid by check or charged to American Express, MasterCard, or Visa. Please charge to my credit card.

n Defend our members in professional emergencies and honor their achievements through articles on our website and in Atticus, and awards at our annual dinner

Credit card #: ____________________________________________ Exp. date: _______________________________________________ Signature of applicant: _____________________________________ Date:______________________________ CVV code_____________


Please make your check payable to NYSACDL and send it to: NYSACDL Office, 90 State Street, Suite 700, Albany, New York 12207 Fax: 888-239-4665

Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers

NYSACDL Member Benefits MEMBER BIOGRAPHICAL INFORMATION IN OUR MEMBER PROFILE – Members can now include brief biographical information (positions held, bar admissions, schools attended, honors or publications) in our online searchable Membership Directory. This directory is available to the general public and is referenced by those seeking counsel and assistance throughout the state.

LEGISLATIVE ADVOCACY – NYSACDL’s Legislative Committee, working with a retained lobbyist, develops and pursues positions on legislative issues relating to the criminal justice system thereby providing a respected voice of the defense bar in Albany. Members have an avenue to become involved and stay informed. Our members were involved in the recent reforms of the Rockefeller Drug Laws.

NYSACDL LISTSERV – NYSACDL offers both a Federal and State Practice Listserv which provide members with invaluable forums in which to pose questions, seek information, exchange ideas and share resources with members statewide.

AMICUS BRIEFS – NYSACDL provides amicus assistance on issues of particular import.

CLE SEMINARS – NYSACDL is an Approved Provider accredited by the New York State CLE board. We sponsor numerous CLE seminars during the year throughout the state at reduced rates for members. Practical nuts and bolts topics alongside cutting edge issues make our CLE programs invaluable to new members as well as those with years of trial experience. Our speakers are among the most respected and experienced criminal defense attorneys and leading experts in the country. NCDC SCHOLARSHIP PROGRAM – NYSACDL members in good standing are eligible to apply for the Twelve Angry Men scholarship to the annual National Criminal Defense College in Macon, Georgia.

COMMITTEE MEMBERSHIP – NYSACDL committees are active in areas throughout the state and work on issues vital to strengthening the criminal defense community. Membership on a committee provides an excellent opportunity to pursue specific interests, serve the criminal defense bar and to network with lawyers throughout the state. MENTORING AND STRIKE FORCE ASSISTANCE – NYSACDL members provide mentoring and assistance for other members. If a question or need arises, a member will be there to give assistance. NYSACDL members are ready to step in to help other members who are subpoenaed, threatened with contempt, or otherwise under attack for the vigorous representation of the accused.

Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers


NYSACDL Online Video CLE Seminars Earn CLE credit quickly and conveniently from the comfort of your office or home with NYSACDL’s online video CLE seminars. These video reproductions of some of our most popular recent CLE seminars are sure to fulfill your educational needs for a great price!

Available for purchase at www.NYSACDL.org • Individual Presentations • Series Packages

$25/Credit Hour $50-$150

Topic Areas Available Include: Alcohol & Drug Related Cases Featured Faculty Include Marc Fernich, Esq John Ingrassia, Esq. Arnold Levine, Esq. Aaron Mysliwiec, Esq. Hon. Patricia Nunez Karen Smolar, Esq. Lisa Schreibersdorf, Esq.

Susan Necheles, Esq. Peter Quijano, Esq. Roland Riopelle, Esq John Rosen, Esq. Russell Schindler, Esq. Gerald Shargel, Esq. Wesley Serra, Esq Bobbi Sternheim, Esq. Donald M. Thompson, Esq.

Sentencing & Appeals


Featured Faculty Include Donna Aldea, Esq. Hon. Mark R. Dwyer Eunice Lee, Esq. Claudia Trupp, Esq. Patricia Wrath, Esq.

Direct & Cross Examination Including Expert Witnesses Featured Faculty Include Samuel Adam, Jr., Esq. James Benjamin, Esq. Benjamin Brafman, Esq. Terrence Connors, Esq. Richard Convertino, Esq. Peter Gerstenzang, Esq. Jay Goldberg, Esq. George R. Goltzer, Esq. Susan Kellman, Esq. Ray Kelly, Esq.


Featured Faculty Include Donald G. Rehkopf, Jr., Esq. Michael Ross, Esq. Yvonne Shivers, Esq.

Federal Practice

Featured Faculty Include Marc Agnifilo, Esq. Helen Cantwell, Esq. Amy Millard, Esq. Richard Willstatter, Esq.

Forensic & Scientific Evidence Featured Faculty Include John Cunha, Esq. Alan Gardner, Esq. Jessica Goldthwaite, Esq. Shilpy Goswami, Esq. Jerry Grant Professor Maria Hartwig Allison Lewis, Esq. Mark Loudon-Brown, Esq. Amy B. Marion, Esq. Professor Erin Murphy, Esq. Benjamin Ostrer, Esq. Marvin Schechter, Esq. Mark L. Taff, MD Richard Torres, Esq.

Media Related Cases Featured Faculty Include Daniel Arshack, Esq. Bruce Barket, Esq.

Registration date coming soon? NYSACDL Video Seminars provide a quick, easy & inexpensive way to complete your credits for BOTH New York & New Jersey. NYSACDL Members Receive One Free Hour of Video CLE Per Calendar Year – Take Advantage of Yours Today!

Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers




An Open Letter to the Criminal Defense Bar Perhaps one of the single most gut-wrenching moments defense lawyers experience is when, standing alongside a client, we hear a judge pronounce an inordinately lengthy sentence and apologetically proclaim that “my hands are tied.” This is the tyranny of mandatory minimums and, for decades, it was the reality of the mandatory federal sentencing guidelines. Now we have a chance to undo some of that cruelty. I ask you to join in this noble and necessary cause. In January 2014, Deputy Attorney General James Cole announced a new clemency initiative that provides an opportunity for many nonviolent federal offenders to have their sentences commuted, and asked the profession to assist qualified inmates. Clemency Project 2014 (CP 2014) was created to answer that call. It is a working group composed of lawyers and advocates, including the Federal and Community Defenders, the American Civil Liberties Union, Families Against Mandatory Minimums, the American Bar Association, and NACDL, as well as individuals active within those organizations. CP 2014 members collaborate to recruit and train attorneys on how to screen for prisoners who meet the stated criteria and provide pro bono representation for prisoners who meet the criteria. CP 2014 is now fully operational, and this is an opportunity for all lawyers to help. The Project has developed a comprehensive training program that can be viewed at your convenience. The program provides everything a lawyer needs to know to evaluate an inmate’s eligibility, and offers comprehensive guidance on what must be included in a clemency petition. Lawyers who currently serve on federal Criminal Justice Act panels are not required to complete the training, but they will find the section on how to determine if an inmate’s sentence would be lower if imposed today — the core requirement of the clemency initiative — quite valuable. Additionally, CP 2014 provides input and resource support for all volunteers. As of early March, more than 30,000 federal prisoners have submitted applications for clemency consideration. More than 5,000 applications are currently under review, and more than 1,500 attorneys have volunteered to take on pro bono cases via CP 2014. But, with so many applicants, more volunteers are needed. Time is also a factor because we cannot be assured that the initiative will continue under the next administration. This is an historic opportunity for the criminal defense bar to rise up. We simply must make sure that we find every single prisoner who may qualify and present the strongest possible petition on every prisoner’s behalf. I ask for your help. Please volunteer now.

Cynthia W. Roseberry

Project Manager, Clemency Project 2014

CYNTHIA ROSEBERRY has been a criminal defense lawyer for 17 years and a proud member of NACDL for most of that time. She served as executive director of the Federal Defenders of the Middle District of Georgia, Inc., a position she held for five years. In June 2014, when she was asked by the organizations participating in Clemency Project 2014 to serve as project manager, Cynthia left that position for an opportunity to help obtain freedom for countless nonviolent offenders who have languished in jail serving horrifically severe sentences. It is in the capacity of project manager that she writes this letter seeking your assistance.

For more information and to


CLEMENCY PROJECT 2014 please visit www.clemencyproject2014.org Atticus | Volume 28 Number 2 | Spring 2016 | New York State Association of Criminal Defense Lawyers


Publication of the New York State Association of Criminal Defense Lawyers

90 State Street, Suite 700 Albany, New York 12207

Phone: 518-443-2000 Fax: 888-239-4665

atticus@nysacdl.org www.nysacdl.org

“Miss Jean Louise, stand up. Your father’s passin’.” Townsfolk stand and pay their respects to Atticus Finch after the jury conviction of Tom Robinson in one of the most poignant scenes of Harper Lee’s great American classic To Kill a Mockingbird.

Original painting, © 2004 by the artist Trevor Goring • limited edition prints available, www.imagesofjustice.com


Profile for NYSACDL

Atticus vol 28 no 2 web - The Legislative Issue  

In This Issue -Legislative Priorities - Lisa Schreibersdorf -Indigent Defense Report - Andre Allen Vitale -A Surprising Voir Dire - Greg Lub...

Atticus vol 28 no 2 web - The Legislative Issue  

In This Issue -Legislative Priorities - Lisa Schreibersdorf -Indigent Defense Report - Andre Allen Vitale -A Surprising Voir Dire - Greg Lub...

Profile for nysacdl

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