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Fall 2016 | Volume 28 | Number 3


Publication of the New York State Association of Criminal Defense Lawyers



Message from the President


From the Editors


Dispatches from 90 State


From the Defense Table


Legislative Updates


Communicating with Your Jury — DWI Jury Selection as a Two-Way Street by Steven Epstein


Avoid a Mandatory Minimum by Mark D. Hosken


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


The Trumpet Still Calls by William E. McSweeney


Book Reviews

New York State Association of Criminal Defense Lawyers

NYSACDL on the 4th Amendment P. 40 Oscar Michelin reviews Baz Dreisinger’s ‘Incarceration Nations’ P. 4

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 Mark S. Williams, Olean

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 3 | Fall 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 Compassion is a spontaneous movement of wholeness. It is not a studied decision to help the poor, to be kind to the unfortunate. Compassion has a tremendous momentum that naturally, choicelessly moves us to worthy action. It has the force of intelligence, creativity, and the strength of love. Compassion cannot be cultivated; it derives neither from intellectual conviction nor from emotional reaction. It is simply there when the wholeness of life becomes a fact that is truly lived.” ~ Vimala Thakar, Indian social activist and spiritual teacher. I believe our criminal justice system is potentially the most compassionate in the world. Even when we encounter tough jurists or overzealous prosecutors, our system permits us to focus on the individual’s personal circumstances and attributes. Yes, there are times when current events reduce the likelihood of kindness being exercised in favor of our clients, but that doesn’t prevent us from inviting understanding and empathy from prosecutors, judges, or juries. Even in these tough times, are we able to have the criminal justice system regain compassion and respect for those who made a mistake and wronged us? This Association supports our members in many aspects of their daily advocacy including our collective exercise of compassion and our collective advocacy for others to do likewise. Of course, if those others do not believe in the General Purposes of the Penal Law being rehabilitation, but instead believe only in punishment, deterrence, and confinement, our efforts to invite compassion are futile.*

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And then there are those who so strongly subscribe to punishment, that they hold in contempt anyone who advocates on behalf of the “presumed guilty.” I am constantly impressed by the courage and honor of our members and colleagues, week-in and week-out, who protect clients from judges that would rather bully than preside, and from adversaries who want to win so badly that justice is no longer the objective. Current 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. This Association is Continued on page 44

Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers


EDITORS John S. Wallenstein Jessica Horani Alan S. Lewis Richard J. Barbuto, Acquisitions and Book Review Editor A publication of the New York State Association of Criminal Defense Lawyers ©2016 NYSACDL 90 State Street, Suite 700 Albany, New York 12207 Phone: 518-443-2000 Fax: 888-239-4665 www.nysacdl.org atticus@nysacdl.org

From the Editors’ Desk John S. Wallenstein, Jessica Horani, Dick Barbuto, Alan S. Lewis

Respect The Fourth Amendment On August 10, 2016, Deputy Attorney General Vanita Gupta, the Head of the U.S. Department of Justice Civil Rights Division, delivered remarks at a dramatic press conference following the completed investigation of the Baltimore Police Department. Standing beside Ms. Gupta were Baltimore Mayor Stephanie Rawlings-Blake and Police Commissioner Kevin Davis. Ms. Gupta announced that the DOJ investigation, which was launched fifteen months earlier – in the aftermath of Freddie Gray’s tragic death – concluded that the Baltimore Police Department engages in a pattern or practice of: • making unconstitutional stops, searches, and arrests; • using enforcement strategies that produce severe and unjustified disparities in the rates of stops, searches, and arrests of African Americans;

Read a good book lately? Write a review of it, and submit to our Book Review Editor, Dick Barbuto. Contact Dick at rbarbuto1@hotmail. com

• using excessive force; and • retaliating against people engaging in constitutionally-protected expression. Many members of this Association would agree that Ms. Gupta’s comments also apply to communities throughout New York State. Recent court decisions interpreting Fourth Amendment protections represent a sharp divergence from the individual liberties envisioned by the Framers of the Constitution and guaranteed in the Amendment’s language. The judicial system has legitimized the expansion of government intrusion by validating law enforcement errors at the expense of individual civil liberties. As a result, the tension between the need for effective law enforcement and individual liberties continues to mount. Absent a citizen’s voluntary consent and cooperation, all police activity involves violence or its threat. A “search” is by definition an unwanted, thus forced, invasion of a reasonable expectation of privacy. A “seizure” similarly is an unwanted interference with a person’s freedom of movement or his/her possessory interest in property. A tremor of fear, however fleeting and mild, runs through any driver stopped for a traffic violation, who worries that he or she may be subject to arrest or that saying or doing the wrong thing may anger the officer. The uniform, the holstered weapons, the command voice are all designed to make the threat of violence clear. When that threat becomes real, it can be degrading and humiliating. Continued on page 45


Atticus | Volume 28 Number 3 | Fall 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 Perhaps you are friends with me on Facebook where you saw my recent trip to Palm Beach and wondered “Just what is the Executive Director doing in Palm Beach? Are we paying her too much?” Not to worry, I was there from August 8-12 attending the annual meeting of my colleagues, Executive Directors from similar organizations around the country and the 2016 National Association of Criminal Defense Lawyers (NACDL) meeting. Please find a brief synopsis of both events below – I learned a great deal, met some new people, and caught up with others. It was great to see those of you from NYSACDL who also attended! (Note: if you are not friends with me on Facebook, I encourage you to find both me and and the NYSACDL Facebook page to stay abreast of the most recent news and events!) The first few days of the trip were spent with my colleagues from around the country. This time with others who understand the business we are in is invaluable to my work. The years of experience for those in attendance range from a few months to 37 years and all bring great knowledge to the table. The topics covered by the agenda ranged from innovative revenue streams to crisis management. I had the privilege to co-lead two discussions: Social Media Marketing; and Attracting Young Professional and Public Defender Members. (Concerning the latter, thank you to everyone who responded to my email inquiry about that topic; your responses were very helpful and I will continue to look to them for marketing ideas in the future.) The conversations around the pool, while more informal, often continued what was discussed during the day among smaller groups, centering on work-life balance and helping each other with small or large challenges we each may be facing. Later in the week, I attended portions of both the NACDL educational sessions as well as the State Criminal Justice Network (SCJN) meeting and networking. While the NACDL educational sessions are geared toward attorneys attending for credit, I take time to attend a few of the programs to hear speakers we may be interested in bringing to NYSACDL seminars. This year, I stopped in to the sessions led by attorneys Jerry Buting and Deja Vishny, concerning the Avery and Dassey cases respectively, made famous by the Netflix series “Making a Murderer.” Because of this, discussions are being had about bringing similar programs to upcoming NYSACDL seminars. The SCJN conference is an opportunity for criminal justice reform advocates to gather and learn about important national and local issues. NACDL’s SCJN staff provide many resources, including this yearly conference, for its affiliates who are participating in state issues and NYSACDL takes advantage of these resources as it is able. One interesting highlight of this year’s conference was a panel discussion with NYSACDL Life Member Gerald Lefcourt on the Black Panther Movement of yesterday and the Black Lives Matter Movement of today – comparing Continued on page 44

Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers


NYSACDL Legislative Priorities: Rein In the Prosecutors Discovery reform continues to be at the top of our list, as confirmed by Legislative Committee Chair Lisa Schreibersdorf in this issues’s Legislative Report. Lately, however, our attention has been also focused on prosecutorial misconduct. The recent opinion by the Appellate Division, Second Department in People v. Redd, which calls attention to the misconduct of a (now retired) Queens Assistant District Attorney is but the tip of the iceberg. Those of us who practice in the trial courts know that prosecutors regularly ignore or flout their Brady obligations. In fact, many of them do not understand what their true obligations are, repeating the misinformed mantra that Brady material is only that which establishes the defendant’s innocence. This institutional failure leads to injustice, and it is up to us, the defense bar, to remain vigilant to the problem and call it to the attention of the courts and legislature at every possible opportunity. The current situation in St. Lawrence County is yet another example of egregious prosecutorial misconduct. District Attorney Mary Rains is under severe scrutiny for her questionable conduct. The County Legislature took the unprecedented step of issuing a vote of no confidence; the County Judge recused himself from any case her office is involved in; even the District Attorneys Association of the State of New York (DAASNY) is calling for her to be investigated by the Grievance Committee. Her recent conduct includes withholding Brady material from the defense in a high profile murder case because, as she conceded to the press, it didn’t fit her theory of the case. Thereafter, following the defendant’s acquittal after trial, she publicly announced that she would not investigate further because the defendant was the real murderer. Despite the outrageous actions by District Attorney Rains, we should note that congratulations are due to NYSACDL Director Peter Dumas, former NYSACDL Director Earl Ward, and Norman Siegel on their hard work and welldeserved victory. Other examples of prosecutorial misconduct abound throughout the state, and yet the Grievance Committees rarely take action against prosecutors who violate ethical standards. For these reasons, and because the prosecutors speaking through their organization (DAASNY), continue to insist that they can police themselves, one of NYSACDL’s highest priorities in the coming year will be to support the creation of a statewide commission on prosecutorial misconduct. A bill to create such a commission failed in the last legislative session, but we will continue to urge its enactment. The members of NYSACDL need to be the front line in this fight. Our newly reconstituted Prosecutorial and Judicial Conduct Committee, chaired by Past President Marvin Schechter, invites members to document and report instances of prosecutorial misconduct to the Committee. The Committee will then review the circumstances and, if warranted, take appropriate action to discourage and prevent overreaching and overzealous prosecutorial conduct in the future. Conduct which often leads to injustice, and in the worse cases, wrongful convictions. A


Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers

From the Defense Table: Celebrating the Achievements of NYSACDL Members in the Courts Our membership has been busy in the varied courtrooms of our great state obtaining acquittals and lesser charges in felony jury trials, overturning convictions on appeal, and in one particularly poignant achievement, obtaining a $6.2 million civil judgment for a wrongfully convicted man whose ‘gentle and peaceful’ nature was noted by the Court after he spent six years incarcerated for a sex assault which DNA testing ultimately proved he did not commit. These achievements and the efforts that went into them deserve a rousing round of applause for both the individual win and the balance they help to provide in our system of justice. Each one of these cases was likely deemed a ‘loser’ at some point by someone. But for the efforts of dedicated counsel who took on the challenge despite the odds being ever not in their favor and the hardworking people who supported their efforts, these results could not have been achieved. Bravo to one and all.

Member Alan Gardner and co-counsel Neil Checkman obtained a full acquittal for their client, Diangelo Enrique, who had faced New York County homicide charges. Enriquez was accused of acting in concert with his co-defendant, Jairo Peralta, who fatally stabbed the victim in the stomach during a robbery. In addition to Peralta and Enriquez, two others were accused of participating in the deadly attack. The primary evidence against the defendants was provided by three witnesses; namely, a participant in the alleged crime, a jailhouse informant, and the OCME “high sensitivity” DNA criminalist, Diana Ho. The DNA evidence was potentially devastating. There was a mixture of DNA from at least three contributors on a 12” knife. The Forensic Statistical Tool program reported that it was 1.7 million times more likely to be Mr. Enriquez’ alleles mixed with two unrelated, unknown individuals than the DNA of three unrelated, unknown individuals. This seemingly damning

scientific evidence was attacked on cross by Gardner as well as through the testimony of defense expert, Professor Allen Jamieson. On cross Gardner was able to show that the mixture in question taken from the knife was in fact ‘degraded’. This was established after a careful review of the electropherogram data and became a key point in attacking the prosecution’s DNA evidence. The criminalist had to admit that the OCME’s FST program is not validated for use on degraded samples and the defense was able to successfully argue that where a sample is degraded, a statistic from the FST is not reliable. Irving Duarte, a participant in the crime who had previously pled guilty to attempted murder, testified that although he tried to stab the victim, that he acted in self-defense and that his knife hit that individual’s cell phone, bending the knife’s tip. The injuries to the decedent showed a v shaped defect to his L1 vertebrae which counsel argued was the result of the knife striking through to

the decedent’s spine and was the actual cause of the damage to the tip of the knife. Checkman and Gardner were able to argue that it was Duarte who likely dealt the fatal blow, not Peralta, the person with whom Enriquez had allegedly acted in concert. The defense focused on Mr. Enriquez’ mere presence at the scene as well as the culpability of the witness who testified against him. After some testimonial read back the jury returned with a full acquittal for Mr. Enriquez who, in a positive footnote, was able to resume his job at a cell phone store where he had been employed at the time of the incident in 2008. Member David E. Woodin of Catskill, NY successfully argued an appeal which overturned a rape conviction on behalf of Cory Banks in The People of the State of New York v. Banks, 137 AD3d 1458 [3d Dept 2016]. Following appeal the case ultimately resulted in a full acquittal after a jury trial on remand

Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers


where Banks was represented by trial counsel Glenn Kroll. Banks was indicted in Sullivan County on one count of rape in the first degree and one count of rape in the third degree stemming from an incident in which he was alleged to have forced a coworker to engage in sexual intercourse with him. Following plea negotiations, he pled guilty to one count of rape in the second degree in full satisfaction of the indictment and waived his right to appeal in exchange for a promised sentence of 5 years in prison. Prior to sentencing, Banks twice moved unsuccessfully to withdraw his plea, on the ground that it was not entered knowingly, voluntarily and intelligently. County court denied the motions and, after determining that he had failed to take responsibility at his probation interview for having engaged in nonconsensual sex with the victim, sentenced him as a second felony offender to an enhanced sentence of 7 years in prison followed by 15 years post-release supervision. On appeal, the Third Department first noted that, while county court was not required to engage in a factual recitation to establish the elements of the crime because defendant was pleading to a lesser crime as part of a plea bargain, it did so here, however its questions posed to defendant during the allocution appeared designed to elicit facts supporting the elements of rape in the third degree (a crime charged in the indictment, but to be dismissed as part of the plea bargain). Further, defendant’s responses to county court (that he had engaged in non-consensual sexual intercourse with the victim and that the intercourse was non-consensual because the victim had “indicated to him, by words or actions,


that she did not wish to engage in sexual intercourse with him”), were actually inconsistent with the crime to which he was pleading and, in fact, negated an element of that crime, namely that the victim be “incapable of consent by reason of being mentally disabled or mentally incapacitated.” Because county court failed to conduct any further inquiry prior to accepting the plea “to ensure that defendant understood the nature of the charge and that the plea was intelligently entered”, under the “unusual circumstances” presented the appellate division held itself “constrained” to find county court had erred in denying defendant the opportunity to withdraw his plea, as the record failed to demonstrate the plea was entered knowingly and intelligently. Accordingly, the plea was vacated and the matter remitted to Sullivan County Court for further proceedings On remand to county court, rejecting renewed plea offers Mr. Banks stood his ground in asserting his innocence and chose to stand trial on the original indictment for rape in the first degree and rape in the third degree in a jury trial that commenced May 20, 2016 before the same judge who had sentenced him previously. In summation, trial counsel Glenn Kroll of Bloomingburg argued that the accuser and other witnesses were not credible, and that the accuser’s account of how the alleged forcible rape occurred – with the 5-foot tall woman standing on top of a 2-foot high radiator – was physically impossible. “If it doesn’t reach, you must impeach”, Kroll told the jury of six men and six women. On June 1, after nine days of trial, the jury deliberated for 30 minutes before returning with a verdict of Not Guilty on both counts.

Member Raymond L. Loving won a full acquittal in New York County in The People of the State of New York v. Troy Bracknell, 5276/2014. Bracknell was charged with Assault 2 under PL 120.05 (12) which makes it a felony to cause physical injury to an individual who is older than sixty-four years of age, while the defendant is more than ten years younger than such person (Defendant was 27-28 at time of offense). Known as the ‘Elder Abuse’ statute the charges elevated what would normally be a misdemeanor assault to a felony given the age of the complainant. Loving’s client was also charged with Strangulation in the Second Degree (PL 121.12). With a prior violent felony conviction the client was facing 5 -7 years state prison. Prior to trial the People were recommending the maximum. Bracknell and the complaining witness, his grandmother, had lived together in a one-bedroom apartment on the Upper Westside for some time. The accusation was that on a morning in November of 2014 the defendant attacked his grandmother and choked her causing her to almost black out. A key piece of evidence was the grandmother’s 911 call immediately following what she described as the defendant’s full on assault. She testified that as defendant was assaulting and choking her she was able to fight him off with her phone which she had in her hand. She then called 911. However, in the 911 call she was completely calm, without emotion or heavy breathing. Loving argued that she had a motive to lie about the incident in order to get her grandson removed from the apartment and that her demeanor on the phone Continued on next page

Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers

From the Defense Table Continued from previous page was not consistent with someone who had just been assaulted in the manner described. The jury returned with verdicts of ‘Not Guilty’ on both charges and the client was able to walk out of the courtroom with his counsel. Member Don Thompson obtained a 6.2 million dollar judgment on behalf of his client in Peacock v. City of Rochester in a wrongful imprisonment case following a DNA exoneration 28 years in the making. Thompson worked together with the Innocence Project on the exoneration for Peacock who had been incarcerated for 6 years on a rape case before being released on parole. Given the age of the case the evidence had all been destroyed except for a pair of the victim’s underwear. With the advent of DNA testing they were able to obtain the remaining evidence and test it for DNA. The attorneys were able to obtain the cooperation of the mother of the victim’s boyfriend (who at the time of the allegations had engaged in consensual sex with the victim) who provided her DNA as they worked to analyze the possible contributors to the DNA found on the underwear. Peacock was ultimately ruled out as a contributor and the District Attorney joined in their motion to vacate the conviction based on the newly discovered evidence. Their client had never confessed to the crime charged although it was falsely reported in a police report that he had confessed. That along with victim misidentification had seemingly sealed his fate when he was convicted. Peacock was a quiet man who had suffered from bipolar disorder and paranoid schizophrenia following high school but was functioning when medicated.

In the civil suit both the city and the defense consented to have the Judge be the final arbiter on damages; a move which spoke to the defense counsel’s trust in and respect for the judiciary to make a fair ruling in this case. Although the result was celebrated the impact on the man at the center of it was not forgotten. Counsel recounted an instance following the exoneration when an intern at the law firm obtained Knicks tickets for their client who was a big basketball fan. The ‘gentle’ man as the Judge referred to him who had been through so much in his time of wrongful incarceration and accusations couldn’t bring himself to go out of town to use the tickets to see his team play. He was too intimidated to even venture out of Rochester. Past President Kevin D. O’Connell was honored for his work in public defense as the 2016 Dorsey Award recipient given by the American Bar Association’s Government and Public Sector Lawyers Division. The award is given annually to an outstanding public defender or legal aid lawyer and recognized O’Connell’s lifelong commitment to public defense as one of the founding members and legal director of the New York County Defender Services, the second largest criminal defense firm in Manhattan handing more than 20,000 cases per year. O’Connell was presented with the award at the General E. E. Anderson Awards Reception on August 5th in San Francisco where he was recognized for his compassionate, ethical, and holistic approach to indigent criminal defense. O’Connell continues to train newer

generations of attorneys in his office in those same traits and practices, ensuring excellence in public defense for many years to come. Member Jessica Horani celebrated two felony jury acquittals in a row in New York County in The People of the State of New York v. Joel Baez in May and The People of the State of New York v. Jonathan Richardson in August. Horani took over the Baez matter, a Robbery in the Second Degree indictment, from private counsel after a mistrial due to a hung jury. Baez was accused of forcibly taking a gold chain from an individual in a barber shop accompanied by other individuals, two of whom were alleged to be carrying knives. The entire incident was clearly recorded on surveillance video and Baez never denied taking the chain. The defense rested on a claim of right that Baez had on the chain following a pseudo pawn transaction between him and the complainant. Baez, the defense argued, was merely taking back what was his. The case involved significant oral argument regarding the claim of right defense and its applicability to a forcible taking charge. While the defense would not have been applicable in a case involving the forcible taking of currency; Horani successfully argued that case law supported the defense in a robbery case which involved a specific chattel, like a chain. The complainant denied any such transaction took place and claimed he had never used his gold chain as collateral.

Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers


During the testimony of the complainant he claimed to have purchased the chain which he valued at approximately $10,000.00 or more from a jewelry store in Harlem. The defense was able to locate the owner of that jewelry store and subpoenaed him to testify for the defense. His testimony called into question the complainant’s credibility as he denied having sold the chain to the complainant and discredited the complainant’s approximation of the value of the chain based on its size and the price of gold at the time the complainant was alleged to have purchased it. Although the People did not have to prove value; the credibility of the complainant and the worth of the chain to him was called into question through the testimony of the jeweler. Baez testified on his own behalf regarding the taking of the chain and his belief that the chain was his and that he had a right to take it back. After two days of deliberation and many notes from the jury the question was asked whether Baez’ belief as to the ownership of the chain mattered. The people and the defense litigated this before the court vigorously. Defense counsel argued that this specific question required the Court to give a ‘claim of right’ jury instruction, an instruction which ordinarily is not available in a robbery prosecution. After an afternoon of oral argument and proposed instructions, the Court ultimately conceded to the defense and gave what was essentially the ‘claim of right’ jury instruction. The jury returned the not guilty verdict on all counts shortly after receiving the instruction and finishing their lunch! Baez was released from custody and walked out of the courtroom with counsel and his family. In the People of the State of New York v. Jonathan Richardson Ms. Horani


received a full acquittal for her client in her first trial after leaving private practice and joining the office of New York County Defender Service. Richardson was charged with two counts of Assault in the First Degree among other charges for the alleged slashing of a fellow Halloween party goer which resulted in the complainant sustaining a laceration from his forehead down to his chin and which required dozens of stitches. Although the complainant did not directly identify Richardson as the assailant, the complainant’s girlfriend did. The defense attacked the alleged eyewitness identification as well as poor police work which resulted in arresting a man on the scene with no blood on him, no weapon, and no signs of having been in a physical struggle. Prior to their verdict one juror was unexpectedly absent and the defense consented to the substitution of that juror with an alternate and the entire jury was evacuated along with the rest of the courthouse after a fire in the basement of 100 Centre Street. When they returned the next day they were instructed to begin deliberations anew with the substituted juror. The jury deliberated for approximately half an hour before returning its verdict of not guilty on all counts. The take away; in jury trials as in life, anything can happen! Member Marshall Mintz was successful on appeal in People v. Lessane, 2016 N.Y. Slip Op. 05765 (2d Dept. 2016). The court reversed and ordered a new trial finding that Lessane was unduly prejudiced by – despite

repeated objections – being tried jointly with a co-defendant. On August 10, 2005, at approximately 5:00 p.m., a man holding a gun entered an illegal gambling club in Brooklyn and told the occupants to stand against the wall. At some point, two occupants of the club, including Steven Avant, began to struggle with the armed man. During the struggle, a second man entered the club and, upon being handed the gun by the first perpetrator, proceeded to shoot Avant twice in the chest. Avant later died from his gunshot wounds. Lessane was identified as the shooter. In postarrest statements – made when detectives told him he could go home if he admitted to being at the scene of the shooting – Lessane told police he went to the gambling club with three other people (Persons 1, 2, and 3) and then waited outside while Persons 1 and 2 went inside. When he heard gunshots Lessane went to see what had happened and saw Person 2 shoot the victim, at which point Lessane ran away. Approximately a week later, Person 2 gave a statement to police admitting he committed the robbery with Person 1 and an individual alleged to be Anthony Steele (who was not one of the persons named in Lessane’s statements).1 While Person 2 was not arrested, Steele eventually was. Lessane and Steele were charged with, among other crimes, murder in the second degree (two counts), attempted robbery in the first degree, and criminal possession of a weapon in the second degree. The People went to trial on the theory that Steele was the armed man who first entered the gambling club and after Steele began to struggle with the patrons, Lessane entered the club, got control of the gun, and shot Avant. Continued on next page

Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers

From the Defense Table Continued from previous page Prior to trial Lessane opposed consolidating the two cases because Steele was going to argue at trial that Lessane’s statements were true – proving that Steele was not involved. Lessane, on the other hand, was arguing that his statements were false and he was actually innocent of the crimes charged. Lessane also sought a mistrial numerous times in response to specific instances of conduct during the trial. All of those applications were denied. Following that joint trial, Steele was acquitted of all charges. Lessane was acquitted of one count of murder in the second degree (intentional murder) and criminal possession of a weapon in the second degree, and convicted of attempted robbery in the first degree and one count of murder in the second degree (felony murder).2 As the court explained, while motions for separate trials are addressed to the discretion of the trial court, “[c]ompromise of a defendant’s fundamental right to a fair trial free of undue prejudice as the quid pro quo for the mere expeditious disposition of criminal cases will not be tolerated” (People v. Lane, 56 NY2d 1, 8). “‘[S]everance is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the

trial court, that the conflict alone would lead the jury to infer defendant’s guilt’” (People v Cardwell, 78 NY2d at 997998, quoting People v Mahboubian, 74 NY2d at 184). Lessane, 2016 N.Y. Slip Op. 05765 at 2. The court noted an “irreconcilable conflict” between the defenses and the “aggressive adversarial stance” taken by Steele’s counsel who elicited damaging evidence against Lessane – which combined to “creat[e] the sort of compelling prejudice that could have been avoided by the grant of the requested total severance.” Id. at 3. In an issue of first impression, member Alan Lewis obtained a ruling that a federal bribery conviction does not make a defendant a second felony offender under New York law. In order for a foreign felony conviction to serve as the basis for adjudicating a defendant as a second or persistent felony offender, the elements of the foreign offense must include all that are “essential” to an analogous New York felony. In People v. Fekete, Ind. No.

85/2015, the New York County District Attorney filed a “Statement of Predicate Felony Conviction”, alleging that the defendant’s previous federal bribery conviction under 18 U.S.C. § 201(b)(1) (A) would make the defendant a second felony offender, if he were convicted of a New York felony. The defense moved to controvert the Predicate Statement, arguing that the mens rea elements of federal and New York bribery are sufficiently different, such that some conduct that constitutes federal bribery would not be a felony in New York. Specifically, Lewis argued that it is possible for a defendant to intend to corruptly influence a public official (the federal mens rea requirement) without having an “agreement or understanding” that the public official’s conduct will be influenced (the New York mens rea requirement). Justice Mark Dwyer, sitting in Supreme Court, New York County, agreed, stating: “I agree with the defense that our mens rea is different from [the federal] mens rea even though it might make a difference in [only] one case in a hundred.” The decision, announced on the record, is unreported, but copies may be obtained by contacting Lewis directly. A

Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers





Committee Report

Legislative Updates Passed Both Chambers Both chambers of the legislature passed important reforms to New York’s criminal laws that will have a positive impact on people charged with crimes if signed by the Governor. NYSACDL supported many of these reforms and successfully marshalled our members to get their legislators onboard. The Assembly passed two additional bills that we should work to pass in the Senate next year. None of the bills that NYSACDL actively opposed this year passed a single chamber of the legislature. The following are bills that we support and passed both houses of the legislature: Gravity Knives – This legislation narrows the definitions of switchblade knives and gravity knives to exclude ordinary folding knives that are commonly sold on-line and in hardware stores and used by workers and artisans. Tens of thousands of working New Yorkers have been convicted for mere possession of their own tools in recent years and, if Governor Cuomo signs the bill into law, we are hopeful that this practice will end. [A.9042 (Quart) /S.6483 (Savino)] Public Defense Mandate Relief Act – This legislation requires the State to reimburse counties for the costs of providing public defense services as mandated by law. There will be a gradual seven-year phase in for the state to assume 100% of the cost from counties by 2023. In 2007, the New York Civil Liberties Union (NYCLU) filed the class action lawsuit Hurrell-Harring, et al. v. State of New York. In 2014, the NYCLU Continued on next page


Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers

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 suffer identical harms from underfunding were excluded from the settlement. If Governor Cuomo signs this bill into law and/or incorporates its provisions in the budget, statewide parity in indigent defense funding will finally be on the horizon. [S.6341A (DeFrancisco)/A.6202B (Fahy)] Off-Hours Arraignment Parts – This legislation authorizes the Chief Administrative Judge to establish a plan for the designation of off-hours arraignment parts in the local criminal courts of a county to be held on a rotating basis. Governor Cuomo has yet to act on it. [S.7209A (Bonacic)/A.10360 (Lentol)] Application for poor person relief on appeal – This legislation authorizes the trial court to hear an application for poor person relief at the time of sentencing in cases where the defendant is already represented by assigned counsel. Governor Cuomo has yet to act on it. [S.7246 (DeFrancisco)/A.9522 (Richardson)] DOCCS bills – These bills codify and clarify current New York State Department of Corrections and Community Supervision (DOCCS) policy and procedures as it relates to notification of next of kin upon the death of a person in the agency’s custody [S.5427A (Rivera) / A.7500A (Joyner)]; translation services for people appearing before the Parole Board [S.992 (Rivera) / A.5548 (Sepulveda)]; and disclosure of private medical information for people in the agency’s custody [S.6892 (Rivera) /

A.9406 (Blake)]. These bills will eliminate inconsistent application of existing policies and procedures across facilities, codify current best practices and give statutory authority and guidance to DOCCS employees. Governor Cuomo has not acted on them. Sibling contact for children in protective custody – This bill establishes a presumption that placement of siblings together is in the children’s best interests and provides that when siblings are placed in separate homes, bi-weekly visitation should be arranged, among other measures aimed at encouraging sibling relationships. It was signed into law by the Governor on August 18, 2016. [A.9759 (Buchwald)/S.6859 (Avella)]

Passed One Chamber The following are bills that we support and passed either the NYS Senate or Assembly: Speedy trial – Kalief ’s Law – This legislation 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. [S.5988A (Squadron)/A.8296A (Aubry)]. It passed the Assembly, failed to make it out of the codes committee in the Senate] Sealing of marijuana convictions – This legislation would create automatic and retroactive sealing for convictions of PL 221.10 (excluding convictions of 221.10(2)). It passed Assembly, but failed to make it out of the codes com-

mittee in the Senate. [A.10092 (PeoplesStokes)/S.8047 (Hassell-Thompson)]

Stalled in Committee – Supported The following are bills that we support, none of which passed in either chamber: Discovery reform – 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 pretrial 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 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

Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers

Continued on next page


Legislative Updates Continued from previous page 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.1 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 report2 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 discovery-reform 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.] Elimination of cash bail and creation of pretrial services – This legislation would require that each county hire independent pretrial services agents to interview defendants and make bail recommendations. Crucially, any conditions upon release would be nonmonetary (i.e. not money bail) and bear much more directly on the issue of the person reporting to court when they are required to. [S.6061 (Gianaris)/ A.8551 (O’Donnell)] Continued on next page

New York State Clemency Project Needs You! Pro Bono Representation of Applicants for Executive Clemency: Attorney Training


NYSACDL & the NYSACDL Foundation are pleased to partner with the Governor’s Office and the Executive Clemency Bureau to assist with the review and preparation of applications for clemency. Over 400 applications for clemency have been pre-screened for eligibility by the Governor’s Office and now need volunteer attorneys to review them for possible further application preparation. The Executive Clemency Bureau is asking for NYSACDL’s experienced, qualified, dedicated members to take part in this review. Thank you to those who have already volunteered! We have begun assigning cases, but need more volunteers to reach our goal of 50 cases! Please consider volunteering for this important task! To qualify to prepare applications, members need to review the training materials available on NYSACDL’s web site. To view the brief training video, please visit the NYSACDL web site: https://nysacdl.site-ym.com/page/Clemency. We thank you for your interest in participating in the process.


Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers

Gravity knives – This legislation would require that the state prove intent to use the knife unlawfully against another, rejecting the strict liability standard currently established in Penal Law § 265.01 (1). [A.4821 (Quart)/S.3675 (Savino)] Raise the age of youthful offender status – This legislation would increase the maximum age of a person to be deemed a youth for youthful offender status from nineteen to twenty-two. [S.1010 (Montgomery)/A.5022 (O’Donnell)] Education from the Inside Out – [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). Importantly, the SUNY trustees voted September 14 to ‘ban the box’ on applications to all of the state system’s universities—the largest such system in the country—thanks to many years of concerted advocacy. Sealing – This legislation would allow for the sealing of most convictions if a person remains crime-free for a long period of time. [S. 2344 (HassellThompson), no Assembly same-as] Solitary confinement – The Humane Alternatives to Long-Term (HALT) Solitary Confinement Act would limit solitary confinement to 15 days for all people and mandate more humane and effective alternatives to isolated confinement. [S. 2659 (Perkins)/ A.4401 (Aubry)]

Stalled in Committee – Opposed The following are bills that we oppose, none of which passed in either chamber: Identity theft and cybercrimes – This legislation would increase penalties for identity theft crimes and create new cybercrimes that mirror federal law. [S.4072 (Golden)/A.8149 (Lentol) and S.148 (Squadron)/A.5969 (Kavanagh)] Statement and Identification Integrity Acts – This legislation would require electronicrecording of interrogations. While we strongly support electronic recording, we cannot support the bill in its current iteration. This bill would permit in-court testimony of unreliable photo array identifications. Furthermore, the legislation does not go far enough to ensure that defendants’ statements are actually recorded and fails to include a legal remedy for failure to follow

the recording requirement. [S.5875A (Nozzolio) (no Assembly same as), the Senate version, passed the Senate in 2015. A.8175 was delivered to the Assembly but died there in 2016. The senate version is now stuck in the Codes committee again.] SOL in child sex abuse cases – These four bills would eliminate or extend the statute of limitations as it currently applies to various sex offenses in the Penal Law. [Child Victims Act, A.8567 (Markey)/S.6436 (Hoylman); the Child Sexual Abuse Reform Act, A.00363 (Pretlow); A.00704 (Miller)/S.3744 (Espaillat); and A.03177 (PeoplesStokes)/S.850 (Klein)]. A

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

NYSACDL Statement on the Passing of Brooklyn D.A. Ken Thompson


New York State Association of Criminal Defense Lawyers mourns the passing of Brooklyn District Attorney Ken Thompson. He implemented initiatives demonstrating an understanding that the role of a prosecutor is to seek justice, and not to simply obtain convictions. By declining to prosecute marijuana possession cases, creating a strong Conviction Review Unit to review questionable past convictions, and establishing the Public Integrity Bureau to investigate public corruption, he helped restore Brooklyn’s faith in the criminal justice system. Our thoughts and prayers are with his family in this time of great loss. We hope his legacy will live on in the Brooklyn District Attorney’s Office and his reforms will serve as a model for other District Attorneys throughout the country. he

Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers



ommunicating with Your Jury —

DWI Jury Selection as a Two-Way Street By Steven Epstein

The type of communication essential to the jury selection process is interpersonal communication: the process by which people exchange information, feelings, and meaning through verbal and non-verbal messages. Simply put, it is face-to-face communication. Communication is considered effective if it achieves the desired result, response, or reaction. We communicate with one another by sending and receiving both verbal and non-verbal messages. The process is not static. The process is not one directional. The process is interactive and for it to achieve its goal, feedback is essential. Feedback occurs when the receiver returns a message and allows the sender to measure how accurately the message has been received along with the receiver’s reaction. In essence, monitoring feedback allows the sender to improve the communication process.

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)


Feedback does not occur freely during a trial. It certainly would be unusual and not permitted for a juror during the examination of a witness to exclaim “you have to be kidding me” or something more subtle such as “I am sorry, but I do not understand what the witness just said,” yet no one would doubt that allowing such feedback would improve the communication process. Likewise, no one would dispute that as lawyers we should strive to be better communicators. In most of the trial, the jury (the receiver of our message) must remain verbally static and mute, leaving only non-verbal communication for the sender of the message to interpret. It is only during the jury selection process that we are given the opportunity to encourage the jury to utilize verbal feedback to improve communication. Therefore, “jury selection is the only moment in a trial when a lawyer effectively communicates with the jury.” Encouraging and measur-

Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers

ing feedback during the jury selection process can help us effectively communicate with jurors in a DWI case. This requires an examination of what topics the lawyer wishes to communicate with the jury about. Before commencing jury selection in a DWI case it is important to recognize that the emotional reactions to DWI are powerful and long lasting. It was not until I selected my first jury in a DWI case that I realized my role as counsel for a defendant charged with DWI was to overcome the presumption of guilt. You can feel the reaction in the courtroom from jurors when the judge tells the jury for the first time that this is a criminal trial and the defendant is charged with DWI. You can sense an immediate change in the atmosphere. This, after all, is a natural reaction when you consider that the jury consists of members of your community and your community is constantly exposed to messages such as “Stop DWI” and “Drink. Drive. Go to Jail.” This emotional programming conditions jurors to presume guilt, not innocence.

prosecutor have spoken to your potential jurors and have continued programming them for guilt. The next time you try a DWI case, count the number of times DWI, drunk driving or some other version of the phrase is used before you even address the jury. Some Judges may even say “this is a drunk driving case.” Each time these words are used they conjure up emotional reactions. You must allow the jurors to acknowledge that they are personally against drunk driving, as we all are. By allowing them to express those feelings you can

agree with that opinion. Invite the jurors to express the difference between the role of police in forming opinions of probable cause for an arrest and the role of a jury in determining proof beyond a reasonable doubt. Once again, if they cannot express that distinction you do not want them as a juror. There is only one presumption and that is innocence. The reality that jurors will start by presuming your client is guilty may aggravate you. It may fly in the face of all you were taught in law school, but jurors are programmed to think this by the barrage of public service announcements such as “drink, drive, go to jail.” The Judge will instruct the jury that the law requires them to presume innocence but such an instruction means nothing unless they can feel the emotional need to presume innocence in this case. Ask them why the presumption is so important. Perhaps more importantly ask them if the presumption is equally important when a person is accused of DWI. You may want to inquire of them whether, if they had to render a verdict now, what that verdict must be. Since no evidence was presented it must of course be not guilty. Does it matter that the charge is DWI?

The emotional reactions to DWI are powerful and long lasting… I realized my role as counsel for a defendant charged with DWI was to overcome the presumption of guilt.

Jury selection should be used as an opportunity to listen to jurors’ beliefs, concerns and emotional responses to the issues that are particular to DWI trials. We as lawyers are not ourselves programmed to listen, but in order to effectively encourage and measure feedback, listening is what we must aim to do. Counsel should strive to raise issues particular to DWI trials during jury selection and invite feedback from potential jurors. You must acknowledge the DWI scare. Before you have a chance to say a meaningful word, the Judge and the

then invite them to draw a distinction between their emotional reaction to the war against drunk driving and their role as a juror if selected in this trial. If they cannot express that distinction you do not want them as a juror. You and the police officers disagree. If jurors are programmed to presume guilt, they will start by thinking you are the bad guy. You must acknowledge that you do not oppose the war on DWI; after all you are part of their community as well. Since you have already discussed with them that this trial is not about the war on DWI, you must next get them talking about what the dispute is truly about, a difference of opinion. DWI is a crime of opinion. The police have the opinion your client was intoxicated and you dis-

Can they doubt a machine? It is important that during jury selection you address the prosecutor’s strongest evidence against your client. In many of your DWI trials the strongest evidence the prosecution has to offer is a breath or blood test demonstrating your client’s blood alcohol concentration. The jury will be instructed by the Judge that the device they used to test your client’s breath or blood is “a generally accepted instrument for determining blood Continued on next page

Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers


Jury Selection Continued from previous page alcohol content.” If they follow the law you are unlikely to get them to doubt the general reliability of the device. Since you cannot change the law, how you frame the question is important. First, remind them that there is only one presumption in a criminal trial and that is innocence. Therefore there is no presumption that the machine worked correctly when they tested your client. If there was we would not need juries. The same jury instruction we dread about the device being “generally accepted” further provides the jury “may” consider the results and that in doing so they “must” consider whether the device used was in good working order and whether the test was properly given. You must focus them on this case and this case alone and why the result is not reliable in this case. If you challenge the system you will lose. They are programmed to believe the system works and, even worse, the law instructs them that it does. You do not have to attack the entire system, just one case. In those situations that you find yourself trying a case where your client refused the breath test, acknowledge that your client made the choice not to take the test. Do not refer to it as a refusal. The police told your client that the law allows a choice to be made. Find out if the jury can move past that issue since your client is not charged with the crime of refusing a test (though the prosecutor can charge it as a separate infraction they rarely do). Although the defendant has no obligation to put on a case, the jury instructions suggest it is helpful for the defendant to have an innocent explanation for the refusal; find one and start talking about it in jury selection. For example, if your client asked, but was unable to speak to counsel, ask them how they feel about the right to counsel and when in their


lives they have wanted to speak to an attorney. Why is that important to them? Police witness testimony. The most common tool that is required in virtually every DWI case is the need to address the generalization that police testimony is credible. Ask the jury to talk about why generalizations are often wrong; equate treating police officers’ testimony as assumptively credible as a generalization. It is particularly important to get the potential jurors who have acknowledged a close relationship to those in law enforcement to discuss their feelings on this topic. There are many other topics that must be considered during jury selection in a DWI trial and they are driven by the facts of your particular case. That is why there is no cookie cutter version of DWI jury selection notes. These include specific issues in breath testing, standardized field sobriety testing, how to handle an accident, blood testing, and expert witness testimony, just to name a few. Regardless of the topic, jury selection is not the time for leading questions or cross examination. Strive to stimulate feedback from jurors on these key issues and then most importantly listen to their responses. Jury selection is the only moment in a trial when a lawyer effectively communicates with the jury. Don’t miss the opportunity. A

There is no presumption that the [breath test] machine worked correctly when they tested your client. If there was we would not need juries.

Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers

A Way to Avoid a Mandatory Minimum Without Joining ‘Team America’

By Mark D. Hosken, Supervisory AFPD


Mark D. Hosken is the Supervisory Assistant Federal Public Defender for the Western District of New York in the Rochester, NY office. Mark has served as an AFPD for over twenty years. He is also a member of the Board of Directors of NYSACDL.

  ongress enacted more than 140 federal laws that prohibit federal court judges from imposing a sentence below the mandatory minimum required by statute. The majority of these statutes target those individuals convicted of drug possession or drug distribution offenses, people found to possess firearms in furtherance of a drug crime or crime of violence, and others found guilty of child pornography offenses. There are three exceptions to the imposition of a mandatory minimum sentence. Two require government approval. These include a government motion based on a defendant’s cooperation and the use of the safety valve provision in drug cases. The third exception does not include any interaction with the government. It is found in United States Sentencing Guidelines § 5G1.3(b).

Continued on next page Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers


Minimum Mandatory Terms Continued from previous page Government Motion – this exception is applied in those prosecutions where a defendant decides to plead guilty and cooperate against other defendants or targets sought by the prosecution. The cooperating defendant usually enters into an agreement with the AUSA to provide substantial assistance. Assuming that cooperation is provided and found satisfactory by the prosecutor, the government will file a motion with the sentencing judge “stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense.” USSG § 5K1.1. Such motion often includes a recommendation as to how much of a departure below the mandatory minimum is appropriate. That application permits the sentencing court to depart from the guidelines. (What is “substantial assistance” and what are the appropriate factors for the length of reduction are found in USSG § 5K1.1.) Additional authority must be included in the government’s motion before a court may impose a term less than the minimum mandated term. The government’s motion for a reduction from the minimum term must cite to 18 USC § 3553(e). That statutory provision authorizes the sentencing court to apply the substantial assistance motion seeking reduction from the guidelines to the otherwise applicable mandatory minimum term as set by statute. Without this requisite motion pursuant to § 3553(e), the court may not impose a sentence below the minimum term notwithstanding the defendant’s substantial assistance. Not surprisingly, this prosecutorial empowerment encourages many defendants to join ‘Team America’. Safety Valve – this exception is limited to those defendants convicted of drug offenses. The intersection of USSG § 5C1.2 and 18 USC § 3553(f) provides


the sentencing judge with another opportunity to avoid imposition of the mandatory minimum term of imprisonment. The defendant must meet the following criteria to qualify for the reduction. First, the defendant cannot have more than one criminal history point under the guidelines. Second, the defendant cannot have used violence or credible threats of violence or possessed a firearm or other dangerous weapon in connection with the crime of conviction. Third, the crime of conviction cannot result in death or serious injury. Fourth, the defendant cannot be an organizer, leader, manager, or supervisor of others in the offense. Fifth, the defendant must truthfully provide the government with all information and evidence one has concerning the offense or same course of conduct. Such disclosure must occur before the sentencing hearing. Assuming all factors are met, the court may impose a sentence below the statutorily required minimum term. Again, this requires the defendant to interact with the prosecutor and/or the case agents and be debriefed at least as to what actions the individual participated in prior to his arrest. USSG § 5G1.3(b) – this exception directs the sentencing court to impose an adjustment or credit for any term of imprisonment already served on an undischarged term of imprisonment if the court determines the underlying term is relevant conduct under the USSG. This guideline section applies to those defendants serving another sentence at the time of their federal sentenc-

ing hearing. An illustrative example is found in the application notes to § 5G1.3(b). A defendant pleads guilty in federal court to selling 90 grams of cocaine. He is convicted and sentenced in state court for selling an additional 25 grams of cocaine. This additional amount is considered relevant conduct per USSG § 1B1.3. (Relevant conduct is defined as other conduct not necessarily prosecuted but part of the criminal acts or omissions that occurred during the commission of the offense of federal criminal conviction. Here, the

proper guideline range is calculated by the total drug quantity.) The defendant was sentenced in state court to a nine month jail sentence and served six of those nine months when he appears for federal sentencing. The federal sentencing guidelines recommend a sentence between twelve to eighteen months on the drug conviction. The sentencing judge decides that a term of thirteen months is the appropriate sentence. However, the federal judge must impose an adjustment of six months to the contemplated thirteen month term for a federal sentence of seven months to be served concurrently with the balance (three months) of the state sentence federal offense. Although this guideline section does not include a companion authorizing statute

Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers

such as substantial assistance or safety valve permitting imposition of a term below the mandatory minimum, it has been extended to reduce a mandatory minimum sentence. In United States v. Rivers, 329 F.3d 119 (2d Cir. 2003), the defendant made two sales of crack cocaine to undercover DEA agents. Shortly after these purchases but before indictment in federal court, Rivers was arrested for another drug transaction in New York State. He pleaded guilty in state court to selling less than 1 gram of

crack to another undercover officer. The state court imposed an indeterminate term of eighteen to fifty-four months. Thereafter, the defendant entered into a plea agreement with the federal government in which he admitted selling more than five grams of crack cocaine. That federal plea exposed Rivers to a mandatory minimum of five years with a maximum of forty years. The district court judge determined that sixty-four months was the appropriate federal sentence, and applied the adjustment found in USSG § 5G1.3(b) crediting the eighteen months Rivers already served in state custody. The federal judge imposed a sentence of forty-six months to be served concurrently with the unexpired state prison sentence. The government argued on appeal that

the defendant’s minimum sentence was set by statute. Thus, the sentencing court had no authority to adjust that sentence pursuant to USSG § 5G1.3(b). The government further argued that the only statutory exceptions were either substantial assistance or safety valve; neither of which were applicable to Rivers. The Second Circuit rejected the government’s claim that the sentencing court was not empowered to sentence below the mandatory minimum and affirmed the district court. The panel recognized the adjustment was applicable to a mandatory minimum sentence. The panel held, “[s]o long as the total period of incarceration, after the adjustment, is equal or greater than the statutory minimum, the statutory dictate has been observed and its purpose accomplished.” Id. at 122. Whether the calculation was called a credit under the federal sentencing guidelines or an adjustment, “this linguistic variance is a distinction without a difference.” Id. at 122. The panel found that Congress made its intent clear when certain mandatory minimum terms were not impacted by the requirements of concurrent sentencing such as in 18 USC § 924(c)(1). (That firearm provision specifically prohibits any term of imprisonment from being served concurrently with any other sentence.) Otherwise, the adjustments under USSG § 5G1.3(b) were necessarily derived from the concurrent sentencing scheme. Id. at 122-123 Recently, a district court judge in the Western District of New York applied

the Rivers’ rationale and granted an adjustment to a mandatory minimum sentence. The defendant was in primary state custody serving a state term of thirty months resulting from his guilty plea to Rape 3rd. The federal government determined that further punishment was warranted as the defendant videotaped the underlying sex act with the minor. The defendant was indicted and produced in federal court pursuant to a writ. The defendant decided to plead guilty to the federal offense (Production of Child Pornography). That conviction carried a mandated minimum term of at least fifteen years up to a maximum term of thirty years. Though the federal sentencing guidelines recommended a term between 151 months and 188 months, the mandatory minimum trumped the guidelines increasing that range from 180 to 188 months. Absent a government application for a reduction based on cooperation, the defendant could not receive less than 180 months or fifteen years. In that case, the defendant had served approximately twenty-two months of his thirty month state sentence before he appeared before the federal sentencing judge. Though the sentencing judge would impose a concurrent sentence, the federal law does not permit a relation back to the beginning of the twenty-two month state term. A federal concurrent sentence looks forward from the date of the imposition of that sentence. The defendant could not receive concurrent jail time credit towards his federal sentence for those twentytwo months already served in primary state custody. The goal was to provide authority to the sentencing judge that would permit the piercing of the mandatory minimum term. Continued on next page

Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers


Minimum Mandatory Terms Continued from previous page

The district court judge decided that 188 months was the appropriate sentence. That term was above the minimum sentence mandated for the conviction of Production of Child Pornography. Based on the Rivers’


principle, the judge applied a twentytwo month adjustment based on the previously served state time. The resulting sentence imposed by the court was 166 months to be served concurrently with the unexpired state term. The

sentencing court was authorized and required to adjust the term to reflect the state term served as set out in USSG § 5G1.3(b) and Rivers. Frequently, we represent individuals facing federal charges that carry mandatory minimum sentences. Those who decide to plead guilty have certain options. Some choose to avoid those minimums by securing reductions through cooperation with federal authorities. Some qualify as safety valve eligible. They may meet with the government and avoid similar minimums in drug prosecutions. Other defendants serving sentences may decide that they do not want to meet with the government nor join ‘Team America’. The application of USSG § 5G1.3(b) requires the sentencing judge to bypass the mandatory minimum term, credit the defendant with time served on the other sentence which qualifies as ‘relevant conduct’, and impose a concurrent sentence. A

Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers

2nd Quarter 2016

New York Appellate

Round-up 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 second quarter of 2016. COURT OF APPEALS People v. Ronald Rossboroug, No. 69 (6/2/2016) https://www.nycourts.gov/ctapps/Decisions/2016/Jun16/69opn16-Decision.pdf In this case, the Court of Appeals held that a defendant may waive his or her right to be present at sentencing. Here, Defendant was charged with separate forgery and larceny offenses in three different counties, and entered guilty pleas in each county with promises of concurrent sentences. Defense counsel informed the court that Defendant wanted to waive his personal appearance at sentencing. After apprising Defendant of his “absolute right to be here for the sentencing,� the court stated that if Defendant wished to appear at sentencing solely by his attorney, he Continued on next page Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers


Appellate Roundup Continued from previous page

could do so. The court cautioned, however, that should it disagree with the proposed sentence or if circumstances indicated that the negotiated plea agreement would not be honored, defendant would have to appear for sentencing. The court reiterated the terms of the plea agreement to Defendant, and, upon receiving assurances that Defendant understood the terms and “absolutely” wanted to waive his personal appearance at sentencing, granted Defendant’s application to waive his appearance. Defendant was sentenced in his absence to the promised sentence. On appeal, Defendant argued that CPL § 380.40 required his appearance at sentencing, and the imposition of sentence in his absence required reversal. The Court of Appeals disagreed, holding that Defendant had the Constitutional right to waive his appearance at sentencing when such waiver is knowing and voluntary. People v. Terrence Mack, No. 74 (6/7/2016) https://www.nycourts.gov/ctapps/Decisions/2016/Jun16/74opn16-Decision.pdf

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.

In this case, the Court of Appeals decided whether preservation by timely objection is required when counsel unquestionably had meaningful notice of a jury note, but the trial court fails to respond to the jury’s inquiry prior to accepting a verdict. The majority held that where counsel has meaningful notice of the content of a jury note and of the trial court’s response, or lack thereof, to that note, the court’s alleged violation of the meaningful response requirement does not constitute a mode of proceedings error, and counsel is required to preserve any claim of error for appellate review. People v. Scott Barden, No. 98 (6/14/2016) https://www.nycourts.gov/ctapps/Decisions/2016/Jun16/98opn16-Decision.pdf In this appeal, the Court of Appeals decided two CPL § 30.30 issues: (1) who is chargeable, for statutory speedy trial purposes, with each discrete time period within a pre-readiness adjournment when the People initially request an adjournment to a specific date, defense counsel is unavailable on that date and requests a later date, but the court is unavailable on the later date, resulting in an even longer adjournment, and (2) whether Defendant consented to the additional delay occasioned by the court’s calendar when, upon being advised by the court of its next available date, counsel responded, “[t]hat should be fine.”

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

Defendant was charged with Identity Theft in the First Degree, Criminal Possession of Stolen Property in the Fourth Degree, and Theft of Services. At several court appearances, the People stated that they were not ready for trial and requested adjournments. During some of those appearances, defense counsel asked for additional time beyond the dates requested by the People. Defendant subsequently moved to dismiss the Indictment based on, among other things, a violation of his statutory speedy trial rights. The trial court denied the motion without explanation, implicitly charging the People with only the time actually requested by them and Continued on page 30


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Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers


The Trumpet Still calls

By William E. McSweeney

Students of criminal law know the case: Gideon v. Wainwright,

372 U.S. 335 (1963). And persons of a certain age remember the case’s principal player, Abe Fortas, who won a unanimous decision in the United States Supreme Court holding that an indigent defendant charged with a crime had the right to counsel; those same persons remember the names of some of the case’s umpires – Justices Hugo Black, William Brennan, William O. Douglas, Earl Warren.

Students of journlism

remember the writer who memorialized the case, Anthony Lewis – a non-lawyer who, in his “Gideon’s Trumpet,” cogently surveyed the criminal law from its inception in our country unto his own time, and grippingly reported on the Gideon case and its aftermath.

Students of the Old Testament, finally, know the biblical Gideon (Judges VI, 34), who, via a call-and-response between himself and his people, employed trumpets as a means of assembling those people and, with them, thereafter defeated the Midianites.


Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers

The aftermath of Gideon saw the establishment of nationwide public-defender systems. But many of these systems remain underfunded; indigent defendants and their counsel form no constituency to whom a politician need answer.


he Old-Testament leader whose call to justice and a responding call were echoed millennia later by a compelling appellate lawyer and a receptive Supreme Court respectful of the Sixth Amendment—“In all criminal prosecutions, the accused shall enjoy the right …to have the Assistance of Counsel for his defense”; the Pulitzer-Prizewinning journalist who bore witness to the proceedings and, via his reporting, educated a larger society on its Constitutional protections. These, then, are heroic figures. We lawyers can be inspired by heroes, aspire to emulate them, take pride that we share the same profession, but most of us will never appear before the highest court in the land, never see our names entered as counsel in “United States Reports.”

All of us can, however, link with the anti-heroes, the everymen, whom we see every day in the Criminal Courts—the indigent defendants, their court-appointed attorneys. Which is why, to this court-appointed criminal-defense attorney, the most riveting part of “Gideon” is Gideon, Clarence Earl Gideon, the flesh-and-blood prisoner who intuitively knew that his conviction for burglary in the absence of defense counsel was wrong; which is why I most admire Gideon’s court-appointed attorney, W. Fred Turner, a nuts-and-bolts practitioner in Panama City, Florida, who Attorney William E. McSweeney lives in prided himself on knowing virtually all Sayville, NY. His written work has appeared of its citizens. in the Quinnipiac Law Review, The ABA Journal, The New York Law Journal, Turner successfully pressed this knowlAtticus, and The New York Times. edge—and its inherent value—upon His review of Kamel Daoud’s “The Gideon, who had previously sought a Meursault Investigation” was published change of venue for his re-trial. The secin the June 2016 number of the ond victory for Turner in the intramural Quinnipiac Law Review. attorney-v.-client scrimmage—that per-

petual “Who’s-The-Boss?” contest—was in his overcoming of Gideon’s wish to effectively serve as co-counsel. No small victory for Turner, considering that his client, the headstrong, single-minded Gideon, with pencil and lined paper, had—notwithstanding misspellings and rambling, unpunctuated, run-on sentences—submitted a successful writ for Certiorari to our highest court. Turner nonetheless demanded that Gideon should remain mute at counsel table until such time as he should be called as a witness. Gideon acquiesced. Before he had announced “ready for trial” in open court, then, Turner had manifested his advocacy skills. The crucial part of defense—the bond of trust as between lawyer and client—had now taken hold. Turner next traveled that road whose mile-markers are familiar to all trial lawyers. He prepped his client to the point of the latter’s exhaustion, insisting that Gideon speak with candor on everything, the good, the bad, the seemingly irrelevant; he reviewed the procedural history of the case, paying special attention to the original trial transcript; he visited the scene of the crime, the local pool hall, its denizens and its environs; he interviewed a cab driver who had taken Gideon home from the area of the occurrence; he ran a rap sheet on the principal prosecution witness, Henry Cook. As to this last, Turner’s conduct with regard to Cook could discomfort a trial attorney, especially one practicing in Bay County, Florida, given the unpredictability, the arbitrariness, of that county’s jurisprudence, as proven by Gideon’s first trial there. For, in point of fact, Turner had himself previously defended Cook, thus raising—though Continued on next page

Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers


Gideon Revisited Continued from previous page

such thing might be non-existent elsewhere—a “retroactive” conflict-of-interests issue. Turner had, moreover, helped Cook’s mother gather apples from her backyard orchard, where their conversation “incidentally” dealt with Cook’s whereabouts on the night of the crime and as well served to update Turner on Cook’s current doings. Though prosecutors can’t restrict their witnesses’ First-Amendment freedom to speak to whomever they choose, those same prosecutors typically advise such witnesses that their speaking to a defense lawyer may not be in their best interests. The Bay County prosecutors, however, had they known of Turner’s conversation with Cook’s mother—and stung as they were by the Supreme Court’s remand for a new trial, intent to vindicate themselves—might well have seen that conversation as being, on Turner’s part, but one remove from witness-tampering. The trial went forward. Turner was masterful. He displayed good crossexamination skills. Turner: “Why did (your drinking buddies in the early morning hours of the date in question) put you off two blocks from your home when they’d driven you sixty miles?” Cook: “I was going to hang around there till the poolroom opened up—seven o’clock.” Thus was raised the specter that Cook himself was the burglar of the pool hall,


or at the least, the question of reasonable doubt was raised as to Gideon’s culpability. Turner’s insistence on candor on Gideon’s part paid off. State’s Attorney William Harris: “Have you ever been convicted or pled guilty to a felony?” Gideon: “Yes, five times, including this one.” Though lawyers can argue that the foregoing question should have been asked during Turner’s direct exam— thus “giving” the other side what it can otherwise take—Gideon’s unequivocal answer nonetheless stood in contrast to Cook’s—and the prosecutor’s—maddening equivocation. When Cook was asked by Turner about a prior felony conviction, the courtroom degraded into a shambles, with prosecutor Harris—too clever by half—speciously attempting to parse a distinction between a plea and a conviction after trial; with Turner scornfully reminding Harris that, at law, no such distinction exists. As to a pre-trial plea or a post-trial finding of guilt, Turner let it be known that either one “…doesn’t change the spots on the leopard. He’s a convicted felon.” And all this occurred before the jury. A jury can disregard a person’s felony conviction, but they demand candor from witnesses. Turner prevailed. Gideon was acquitted. Turner would later ascend to a judgeship in Bay County, where he would serve from 1979 until his retirement in 1991. He died in 2003. Gideon would, after two years’ imprisonment during the pendency of his case, be reunited

A compelling appellate lawyer and a receptive Supreme Court respectful of the Sixth Amendment… These, then, are heroic figures. with his family. Having ascended to a law-abiding life, having further ascended, via the landmark case that bears his name, to a legal immortality, Gideon died in 1972. That same year the compass of protection for indigent defendants would widen. The Gideon case contemplated only felonies; Argersinger v. Hamlin, 407 U.S. 25, would encompass all cases that could result in incarceration. The aftermath of Gideon saw the establishment of nationwide public-defender systems. But many of these systems remain underfunded; indigent defendants and their counsel form no constituency to whom a politician need answer. Thus there exists a disparity of commitment as among the states when it comes to defending the indigent—the curse affixed to the glory of our federalism. When Abe Fortas corresponded with Gideon, the lawyer was impressed by both Gideon’s candor and his eloquence, notwithstanding the man’s roughness of syntax. One sentence, however, was perfectly cast, and it was the one the American Civil Liberties Union engraved on Gideon’s granite headstone: “Each era finds an improvement in law for the benefit of mankind.” Gideon’s trumpet still sounds. Will you answer its call? Will you assemble? A

Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers


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Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers


Appellate Roundup Continued from page 24 excluding additional time resulting from defense counsel’s other obligations and court congestion. Ultimately, the People did not announce their readiness until the day of trial, more than 16 months after commencement of the criminal action. The Court of Appeals held that the Defendant did not consent to additional delay attributable to court congestion, and because the People failed to announce readiness within the statutory time period, Defendant was entitled to dismissal. In doing so, the Court reiterated the rule that counsel’s mere failure to object to an adjournment, or indication that a date requested by the People is inconvenient, is not a request or a clear expression of consent for purposes of calculating excludable time under CPL § 30.30. Contrary to the People’s argument, counsel’s accommodation of the court’s schedule – merely by failing to express an objection to the alternate date proposed by the court after it indicated that the date suggested by counsel was not available cannot be considered consent to the extension of the adjournment. Continued on next page

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Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers

People v. Charles Smith, No. 109 (6/28/2016) People v. Tyrell Ingram, No. 110 (6/28/2016) People v. Isma McGhee, No. 111 (6/28/2016) https://www.nycourts.gov/ctapps/Decisions/2016/Jun16/109-110-111opn16Decision.pdf In these three consolidated appeals, the Court of Appeals looked at whether the trial courts abused their discretion in precluding any cross examination into allegations of a law enforcement officer’s prior misconduct made in an unrelated Federal lawsuit. Going through prior Supreme Court, Court of Appeals, and Appellate Division decisions on cross-examination and its importance to the truth-seeking process of a trial. The Court held that law enforcement witnesses should be treated in the same manner as any other prosecution witness for purposes of cross-examination. Further, the Court held there is no prohibition against cross-examining a witness about bad acts that have never been formally proven at a trial. Likewise, a police witness’s prior bad act that similarly has not been proven in a criminal prosecution or other court proceeding also can be proper fodder for cross-examination. Nor do allegations of police misconduct lose their relevance to a police witness’s credibility simply because the alleged bad acts are not regarded in all cases as criminal or immoral. Where a lawsuit has not resulted in an adverse finding against a police officer, as is the case with these three appeals, defendants should not be permitted to ask a witness if he or she has been sued, if the case was settled (unless there was an admission of wrongdoing) or if the criminal charges related to the plaintiffs in those actions were dismissed. However, subject to the trial court’s discretion, defendants should be permitted to ask questions based on the specific allegations of the lawsuit if the allegations are relevant to the credibility of the witness. People v. Angelo Tejeda, 2016 NY Slip Op 05541 (1st Dept. 7/14/2016) http://www.nycourts.gov/reporter/3dseries/2016/2016_05541.htm In this case of first impression, the First Department decided whether a defendant Continued on next page




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Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers


Appellate Roundup Continued from previous page whose case still is on direct appeal should be denied the benefit of the Court of Appeals’ ruling in People v Peque (22 NY3d 168 [2013], cert denied __ US __, 135 SCt 90 [2014]), which is rooted in federal constitutional law, because Defendant absconded from parole before his attorney perfected this appeal. The First Department held that Peque did apply, and remanded for further proceedings. In 2001, Defendant pled guilty to Criminal Sale of a Controlled Substance in the Third Degree, and was sentenced to an indeterminate prison sentence. While incarcerated, he was informed by Federal immigration authorities that he was subject to deportation as a result of the conviction, and was paroled for the purposes of deportation, but not actually deported, and instead placed under parole supervision. In 2007, he absconded from parole, and was arrested in 2014, whereupon his parole was revoked. He directly appealed, and the People argued that even though Peque was retroactive, an exception should apply where a defendant absconds. The First Department rejected this argument.

New York State Court of Appeals

The majority held that no basis exists to penalize a defendant by not having the current law applied, and the inevitable consequence of the dissent’s analysis is that a defendant who absconds while his or her appeal is pending would lose the right to have an appellate court apply favorable case law which was issued after they absconded.

FIRST DEPARTMENT People v. Christopher Krieg, 2016 NY Slip Op 04134 (1st Dept. 5/31/2016) http://www.nycourts.gov/reporter/3dseries/2016/2016_04134.htm Defendant was convicted of Criminal Sale of a Controlled Substance in the First Degree and various other related drug charges, and sentenced to 20 years after a jury trial. The Defendant was a paraplegic with serious, bona fide medical conditions that made his physical attendance at the trial extremely physically distressing and painful. The trial court suggested that Defendant appear at trial by video conference from Riker’s Island, and made arrangements to effect this procedure. The trial court apparently believed that Article 182 of the Criminal Procedure Law (Alternate Method of Appearance) required the prosecutor’s consent. However, the People refused to consent based upon the District Attorney’s contention that Defendant’s Continued on next page


Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers

appearance on a video monitor would improperly allow defendant to “take action that would be prejudicial to the People’s case” such as “hold[ing] up a note to the jury” or “say[ing] something” before anyone could intervene. The trial court held this objection baseless, but seeing no other option, the trial court elicited a waiver from Defendant of his right to be present, and he was tried in his absence. The First Department reversed, holding that Defendant’s right to be present was violated. Under the facts of this case, his choices should not have been limited to appearing in person despite his medical problems, or waiving his appearance entirely, because his request to appear by videoconferencing should have been granted. The trial court erred in concluding that Article 182 restricted its authority to use video conferencing to permit the Defendant to exercise his right to be present at trial. Because a trial court possesses inherent powers pursuant to Judiciary Law § 2-b(3) and the Constitution in order to use alternate procedures in order to carry out its duties. The Appellate Division explicitly rejected the People’s argument that the courts are absolutely prohibited from employing their inherent powers to allow a consenting, medically disabled defendant from attending a hearing or trial via videoconferencing because CPL § 182.20 permits electronic appearance by a defendant “except at a hearing or trial.” People v. Matthew Melendez, 2016 NY Slip Op 04328 (1st Dept. 6/7/2016) http://www.nycourts.gov/reporter/3dseries/2016/2016_04328.htm Defendant was convicted after trial of Attempted Murder in the First Degree, Attempted Aggravated Assault Upon a Police Officer or Peace Officer, and Criminal Possession of a Weapon in the Second Degree, and sentenced to 20 years to Life in connection with an incident in which he was shot by police after an altercation. On appeal, he challenged the denial of suppression, arguing the police tricked him into making statements by implying that they were investigating possible criminal conduct on the part of the police, not Defendant. He further challenged the questioning by an Assistant District Attorney. The First Department rejected his claims, finding that the Defendant was not tricked and was properly advised that his statements could be used against him. In addition, any error in admitting the statements at trial was harmless as the statements themselves were exculpatory in nature. However, the Appellate Division reversed and remanded for a new trial after an Assistant District Attorney who investigated the case was permitted to testify, over repeated objection and a motion for a mistrial, as to various matters. The ADA testified as to when a police officer would be justified in using deadly force, whether certain conduct by the Defendant constituted a felony, and the makeup and function of the Grand Jury. Her testimony was tailored to the facts of this case, and was introduced upon a theory that the People anticipated that Defendant would raise a defense that the police lied before the Grand Jury in order to prevent themselves from being indicted. The First Department condemned this testimony, finding that comments regarding Grand Jury proceedings are prohibited, Continued on next page Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers


Appellate Roundup Continued from previous page

especially where the ADA’s testimony implied that the Grand Jury had found the police officers credible when it decided to indict. The Appellate Division held this testimony was irrelevant to the issues presented at trial, especially where the anticipated defense was never raised by the Defendant. Further, the Court found it was erroneous for the ADA to testify and thus instruct the jury on the law of justification, as the trial court improperly surrendered its nondelegable judicial responsibility to a prosecution witness. Finally, the First Department condemned two comments made by the prosecutor on summation, in which he referred to matters not in evidence. In one, he demonstrated muzzle flashes, when the police officer witness never made any such demonstration. In another comment, the prosecutor used a laser point to demonstrate how the shots fired by Defendant would have gone wide of their mark. This was also not in evidence. Defense counsel properly preserved this issue by a timely, specific objection. Judgment reversed and remanded for a new trial. People v. Ricardo Jimenez, 2016 NY Slip Op 05620 (1st Dept. 7/21/2016) http://www.nycourts.gov/reporter/3dser ies/2016/2016_05620.htm Defendant was convicted in 2007 for a murder that occurred in 1989. Defendant was initially arrested for the murder in 1989, but released from custody and the charges dismissed after an eyewitness stopped cooperating with police. Over 10 years later, an inmate in Federal prison serving a 30-year sentence began cooperating with authori-


ties, and identified Defendant as the shooter. He was rearrested in 2006, and tried and convicted of Murder in the Second Degree. The Federal informant, the original eyewitness, and a jailhouse lawyer who assisted Defendant in his case, testified against him. The jailhouse lawyer claimed Defendant confessed his involvement in the murder. On direct appeal, his conviction was upheld. Defendant filed a 440 motion, arguing actual innocence, prosecutorial misconduct in failing to disclose Brady material and presenting knowingly perjured testimony, and ineffective assistance of counsel. The trial court denied his motion without a hearing, and he appealed by permission. The First Department adopted the Second Department’s holding in People v Hamilton, 115 A.D.3d 12 (2d Dept. 2014) in recognizing a free-standing claim of actual innocence as a basis for a 440 motion, noting the District Attorney did not contest the applicability of that case. However, the First Department rejected Defendant’s actual innocence claim, finding that Defendant failed to clear the threshold set by the Hamilton court as necessary to gain a hearing on an actual innocence claim, because he did not present “a sufficient showing of possible merit to warrant a fuller exploration by the court.” His claims of actual innocence were based on statements made to a defense investigator by eyewitnesses of the shooting, but he did not attach affidavits of the witnesses. The Appellate Division held that the unsworn statements were insufficient to warrant a hearing on actual innocence. The First Department likewise rejected Defendant’s claim that the prosecutor

Continued on next page

Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers

To me, a lawyer is basically the person that knows the rules of the country. We’re all throwing the dice, playing the game, moving our pieces around the board, but if there is a problem the lawyer is the only person who has read the inside of the top of the box. — Jerry Seinfeld

knowingly elicited perjurious testimony, and his effective assistance of counsel claim. However, the First Department reversed and remanded for a hearing on Defendant’s Brady claim. This particular claim focused on information that the Federal witness received a benefit for testifying against Defendant. When disclosing him as a witness, the District Attorney volunteered only that that witness was serving a 30-year sentence in Federal prison for an unrelated murder and had asked her for a letter that “he can have put in his file stating that he testified for the Bronx District Attorney’s Office.” At trial, the prosecutor asked the witness, “What is your understanding of what if anything I can or will do for you in exchange for you testifying here today for us?” The witness replied, “Well, my understanding is that you’ll just tell the Federal prosecutors that I cooperated with ya’ll and that’s it.” He also confirmed that he was “a sentenced prisoner” with “18 years to go.” However, the prosecutor, instead of merely placing a letter in the witness’ “file,” wrote a letter to the U.S. Attorney a few months after Defendant’s conviction, detailing the witness’ cooperation and praising him for his assistance. The First Department held this was sufficient to warrant a hearing, as it could be concluded that there is a reasonable possibility that had the jury been aware of that fact, its verdict would have been different, thus requiring reversal of the conviction and a new trial.

SECOND DEPARTMENT People v. Greg Cantonini, 2016 NY Slip Op 04232 (2d. Dept. 6/1/2016) http://www.nycourts.gov/reporter/3dser

ies/2016/2016_04232.htm Defendant was convicted of Attempted Robbery in the Second Degree, Reckless Endangerment in the Second Degree, Criminal Possession of Stolen Property in the Third Degree, and Unauthorized Use of a Vehicle in the Third Degree. He appealed, arguing the evidence was insufficient and his CPL § 30.30 motion was wrongfully denied. The Second Department reversed and dismissed the Attempted Robbery in the Second Degree count, finding the evidence was legally insufficient to sustain the verdict. Here, the People presented evidence that in attempting to evade police officers who were trying to pull him over, the Defendant crashed his vehicle, exited the car, and approached a white Honda being driven by a young woman. Defendant put one hand on the door handle and put his fingers into the opening above the window, which was lowered slightly. He then retracted his hand, fled on foot, and was apprehended. Because the People failed to present evidence that he intended to either “exert permanent or virtually permanent control over the property” or to “dispose of [it] in such manner or under such circumstances as to render it unlikely that [the] owner [would] recover [it],” the People failed to prove a necessary element. The Appellate Division expressly rejected the People’s argument that the Defendant must present an affirmative evidence of an intent to only deprive the owner of the car temporarily. As to the remaining counts, the Second Department reversed, granted a new trial, and directed that the Queens County Supreme Court hold a hearing on Defendant’s CPL § 30.30 motion. The Appellate Division held that the Continued on next page

Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers


Appellate Roundup Continued from previous page

People failed to preserve for appellate review their argument that a 33-day adjournment was properly excluded. This adjournment resulted from Defendant’s arrest in Nassau County on other pending charges. The Second Department held the People failed to establish or raise an issue of fact their diligence in attempting to secure Defendant’s appearance in Queens. As to an additional period of delay resulting from Defendant’s incarceration in Nassau County, again the People failed to demonstrate diligent efforts. As a result, the convictions were reversed and remanded for a new determination of the speedy trial motion. People v. Josone Dennis, 2016 NY Slip Op 04235 (2d. Dept. 2016) http://www.nycourts.gov/reporter/3dser ies/2016/2016_04235.htm When Defendant pled guilty to Attempted Robbery in the Second Degree, the trial court failed to advise Defendant of the possibility of deportation as a consequence. The Second Department reversed and remanded to give Defendant the opportunity to move to withdraw his plea if he can establish that there is a “reasonable probability” that he would not have pleaded guilty had the court advised him of the possibility of deportation there is a “reasonable probability” that he would not have pleaded guilty had the court advised him of the possibility of deportation. People v. Joel McCray, 2016 NY Slip Op 04240 (2d. Dept. 6/1/2016) http://www.nycourts.gov/reporter/3dser ies/2016/2016_04240.htm Defendant was charged with acting in concert with another individual to forcibly steal property from the com-


plainant. The People alleged that the Defendant and an accomplice followed the complainant to her doorstep from a subway station and thereafter the accomplice forcibly took her purse from her, throwing her to the ground. Defendant and the other individual ran to a subway station, and were seen by an off-duty police officer walking his dog, who called police. The off-duty officer was picked up by two other uniformed police officers, and found Defendant and the other individual at a subway station. The other individual had the complainant’s property on him. Defendant did not possess any of the complainant’s property. However, during crossexamination, defense counsel elicited testimony from the complainant that the Defendant was the person who grabbed her face and pulled her to the ground during the robbery. Specifically, defense counsel asked the complainant to confirm that she did not know which individual grabbed her from behind, and the complainant responded that she was sure that it was the Defendant who put his hand on her face. No such testimony had been elicited on direct examination. When defense counsel indicated that he wanted to impeach the complainant with her Grand Jury testimony in which she allegedly said she did not know who had grabbed her, a sidebar was held, and the trial court reviewed the Grand Jury transcripts and concluded that no such testimony existed therein. Defendant was convicted of two counts of Robbery in the Second Degree, Criminal Possession of Stolen Property in the Fourth Degree, and

Continued on next page

Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers

Criminal Possession of Stolen Property in the Fifth Degree. The Second Department held that Defendant was deprived of the right to effective assistance of counsel, as his attorney affirmatively elicited harmful testimony and was obviously ill-prepared for the case, as indicated in his misunderstanding of the Grand Jury testimony. Because defense counsel was responsible for essentially proving the People’s case, the Appellate Division reversed and remanded for a new trial. People v. Carl Avinger, 2016 NY Slip Op 04426 (2d. Dept. 6/8/2016) http://www.nycourts.gov/reporter/3dser ies/2016/2016_04426.htm On January 2, 2012, a detective was assigned to investigate a burglary that had occurred earlier that day at a Queens pawn shop. An eyewitness told the detective that he had seen two people loading a file cabinet from the ship into a car, and provided the license plate number. The detective ran a license plate check, and determined the car was registered to a woman who lived in a house on 204th Street in Queens. The next day, the detective went to the home, knocked on the door, but no one answered. The detective walked through a neighbor’s yard to get access to the rear of the house, and saw a vehicle in the alley bearing the license plate parked next to a garage. Through the window, the detective saw boxes containing video game consoles. He entered the fenced back yard to get access to the garage, heard voices inside, and identified himself by calling out “police.” Defendant and the codefendant exited the garage and were placed under arrest. Police then recovered video games

that had been determined to have been stolen from a video game store that was burglarized that same morning. It was determined that Defendant lived at the home. Defendant was charged with Burglary in the Second Degree, and pled guilty after unsuccessfully moving to suppress. The Second Department reversed and granted suppression, finding that by entering Defendant’s fenced-in backyard and entering the curtilage of his home, the police violated Defendant’s Fourth Amendment rights, as this constituted a search without a warrant or a valid exception. As a result, the trial court should have suppressed the items recovered from the Defendant and the garage.

THIRD DEPARTMENT People v Rupnarine – http://decisions.courts.state.ny.us/ad3/Decisions/2016/106580.pdf Defendant convicted after trial of robbery in the second degree, unlawful imprisonment in the first degree, menacing in the second degree and criminal mischief in the fourth degree. His primary contention on appeal was that he was deprived of a fair trial based on the prosecutor’s comments at closing. Although not preserved at trial, the Court reversed the Judgment of conviction in the interest of justice. A “recurring and substantial theme in the prosecutor’s summation was defendant’s inability to provide an innocent explanation for his conduct following the incident giving rise to the charges against him or for the presence of incriminating evidence at the crime scene.” The Court noted that during deliberations the jury “sent

Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers

Continued on next page


Appellate Roundup Continued from previous page

a note requesting that Supreme Court read back the prosecutor’s summation, but only that portion of the summation ‘that refer[red] to innocent explanations and lack of innocent explanations’”. Although the trial court did not acquiesce to the Jury’s request, more importantly, the “lack of a further instruction reminding the jury of the People’s burden of proof in response to the jury’s request only compounded the error of the prosecutor’s comments.” People v Watkins http://decisions.courts.state.ny.us/ad3/ Decisions/2016/106997.pdf Defendant convicted of burglary in the second degree and grand larceny in the fourth degree by plea. The Court agreed with the Defendant that his “plea was not knowing, voluntary and intelligent given that County Court failed to set forth the terms of the plea agreement before accepting defendant’s plea.” Specifically, while County Court set for the sentencing range upon a plea and if the Court wished to go beyond that based on the PSI the Defendant could withdraw his plea, it did not set forth the period of PRS associated with the plea. Thus, “[g] iven that County Court failed to inform defendant of the direct consequences of his conviction as to a particular crime and as to any postrelease supervision, defendant’s plea was not knowing, voluntary and intelligent.” People v Tucker http://decisions.courts.state.ny.us/ad3/ Decisions/2016/107450.pdf Defendant convicted after trial of assault in the second degree under subdivision 3 (causing injury with intent to prevent

and officer from performing a lawful duty). It is alleged that the Defendant was detained by the police, not as a suspect in any crime, but “to gain [her] full attention and to actually have [defendant and the male] separated” and so that he could “figure out what’s happening here”. The defendant began to “pull away” from the officer who sustained an injury to his knee and a laceration to his face. Although not properly preserved the Court exercised its interest of justice exception to address the issue of whether the officer was performing a “lawful duty” at the time. The Court found that while the defendant was non-responsive and uncooperative with the police it did not give rise to “the requisite reasonable suspicion of criminality necessary to forcibly detain defendant” and thus the “evidence was legally insufficient to establish that Smith was injured while undertaking a lawful duty.” Judgment reversed and Indictment dismissed in the interest of justice.

FOURTH DEPARTMENT People v. Kevin Reeves, KA 13-00392 (4th Dept. 6/10/2016) https://www.nycourts.gov/courts/ ad4/clerk/Decisions/2016/06-10-16/ PDF/0170.pdf An undercover officer arranged to purchase cocaine from Defendant. Five minutes before the meeting, the officer viewed a photograph of Defendant. After the sale, the undercover officer again viewed the same photograph, and wrote the word “UNKNOWN” on a case report in the entry requiring the suspect’s name. Defendant was arrested more than 1 year later for the alleged sale by a police officer from a different agency who was not involved in the subject sale. On the arrest report, the officer

noted “NONE” under the identification procedure entry. No post-arrest identification procedure was employed. In his pre-trial discovery demand, Defendant demanded “[a]ny photograph . . . purporting to contain the likeness of a human being shown to [prospective] witnesses.” The People’s response stated “None known to exist.” The single photograph allegedly used by the undercover officer to identify Defendant was never produced. Defendant moved to suppress the People’s identification testimony and, in the alternative, requested a hearing to determine the admissibility of any such evidence. The trial court summarily denied suppression and Defendant’s request for a Wade hearing on the ground that the identification procedure was “confirmatory.” Defendant was convicted after trial of Criminal Sale of a Controlled Substance in the Third Degree, Penal Law § 220.39(1), and Criminal Possession of a Controlled Substance in the Third Degree, Penal Law § 220.16(1). The Fourth Department reversed and remanded for a Wade hearing, finding that the identification procedure in this case did not provide the “assurance that an innocent person [has not been] detained by reason of a mistaken arrest.” Unlike the typical “buy and bust” scenario, there was no confirmatory identification, and the lapse of time was of particular concern to the Appellate Division. People v. Robert Haigler, KA 14-00408 (4th Dept. 6/10/2016) https://www.nycourts.gov/courts/ ad4/clerk/Decisions/2016/06-10-16/ PDF/0531.pdf Continued on next page


Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers

Images from Fall 2016 Seminars

Attendees at the Hudson Valley 2016 Seminar —The College Terrace, SUNY New Paltz

Ulster County Sheriff's Deputy Joseph Stock Begins a Breath Testing Dem

NYSACDL President Andy Kossover welcomes attendees

NYSACDL First Vice President Robert Wells with Central New York Seminar speakers Gary Muldoon and Marvin Schechter

Ulster County Sheriff's Deputy Joseph Stock Conducts a Breath Testing Demonstration on a Volunteer

NYSACDL Vice President Arnold Levine speaks on CSAAS and CSAS

NYSACDL First Vice President Robert Wells Discussing Cross Examination

Appellate Roundup Continued from previous page Defendant was initially charged in a single-count indictment with Promoting Prison Contraband in the First Degree, Penal Law § 205.25(2). Upon his motion, the trial court reviewed the Grand Jury presentation, and found the evidence was insufficient to sustain the charge, but was sufficient to support the lesser-included offense of Promoting Prison Contraband in the Second Degree, Penal Law § 205.20(2), a misdemeanor. Defendant then pled guilty to the misdemeanor charge of Promoting Prison

Contraband in the Second Degree, Penal Law § 205.20(2). He appealed, arguing there was no valid accusatory instrument in existence at the time of his plea. The Fourth Department agreed, and reversed and dismissed. The Appellate Division noted that CPL § 210.20(6) provides that when a court decides to reduce a count contained in an indictment to a misdemeanor on the ground that it is not supported by legally sufficient evidence, the People can do one

of the following: (1) accept the court’s order and file a prosecutor’s information containing the reduced charge; (2) re-present the higher count to a Grand Jury; or (3) appeal the court’s order. Here, the People did none of the foregoing, rendering the court without jurisdiction to accept a guilty plea. Because a valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution, the conviction was reversed and the case dismissed. A

Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers


Book Review Incarceration Nations: A Journey to Justice in Prisons Around the World By Baz Dreisinger (Other Press, 2016)

Reviewed by Oscar Michelen

The odds are high if you are reading Atticus that you have been inside a prison. Yet I don’t know any lawyers who relish having to go into a prison or detention center. Even the short amount of time we spend there can be emotionally draining and suffocating. How often, however, do we think about what happens to our clients once we leave? Do we ever really spend much time contemplating what can be done to make their situations better, safer or even more productive? Have we ever spent any time thinking whether their incarceration is actually accomplishing anything for themselves and for society? Incarceration Nations by Professor Baz Dreisinger of John Jay College of Criminal Justice challenges all of us to do so going forward. The book is engaging and thought-provoking as it follows the author as she visits prison systems in nine countries: Rwanda, South Africa, Uganda, Jamaica, Thailand, Brazil, Australia, Singapore and Norway. The countries are all attempting progressive solutions and programs that she wanted to look at first hand to see if perhaps they could be adopted here in the United States. After all, as her book points out, the US is responsible for exporting our vision of correctional institutions across the world: creating dark places of mass incarceration; dehumanizing super-maxes; and maddening uses of solitary confinement.

Oscar Michelen is a partner in the law firm of Cuomo LLC, a litigation boutique with offices in Manhattan and Mineola. He resides on Long Island with his wife and three sons.


The main premise of the book is to call into question the role and purpose of prisons in general and to see if we can learn something from other nations that have had success with other approaches to crime and punishment. The book is hardly what one expects when they think they are going to be reading a comparative analysis of prisons. To be sure, Dreisinger skillfully sprinkles statistics throughout the work, but the stats are usually used to describe the particular forces driving that country’s incarcerated population – for example, how in Thailand 21,000 out of the 25, 231 women in jail are there on drug charges and how the vast majority of them were couriers or agents for their husbands or boyfriends; or how 75% of Uganda’s entire prison population is under age 30. But the book goes

Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers

beyond the dry numbers and instead delves into the lives and living conditions of the incarcerated to make sure we understand exactly what it means to be in prison and to witness the toll it takes on all involved, including the prison staff. Personal anecdotes about the success and failures of the various programs as reflected through the eyes of the inmates that are going through them take the reader through the full range of human emotion – you regularly find yourself on the verge of tears of joy and misery. Readers of Atticus know too well how class, poverty, race, and circumstance affect our clients and often result in unduly harsh sentences. Through Dreisinger’s book, you will not be surprised to see the same demons appearing in all of the jails in countries she visits. Yet she also finds that, unlike our system, these countries are looking for ways to reduce prison time and to make the time spent in custody as meaningful and worthwhile as possible. Some examples: In Rwanda, there is almost no violence in its prison because it is run by a prisoner-government with regular elections. The prisoners also get regular work-leave and are allowed to keep 10% of their pay. But its most striking reform is including the victims of the notorious genocide that took place there. Most of the inmates are genocidaires, serving sentences for their roles in the horrific mass killings of innocent people. The Prison Visiting Program brings students into the prison to dialogue with the genocidaires even though all of the students lost family

in the genocide. “Forgiveness” is their mantra and the healing occurs on both sides of the conversation. In Norway, the most progressive of the visited nations, the head of the prison is a Governor, not a Warden. Bastoy, the facility visited by the author, is called an open prison because its cells have no bars and prisoners have much freedom to move around during the day. The incarcerated men work in farms that produce a fair amount of the food the inmates eat. Staff play cards with the jailed, all of whom know each other by first name. There are phone booths for unlimited phone calls to home; visiting rooms stocked with condoms and lubricants; and a quality health care unit. The Governor of Bastoy reveals the simple premise: “Treat people like dirt and they behave like dirt. Treat people like human beings and they behave like human beings.” A simple premise for sure, but one that in the United States would be seen as weakness because our policies are driven by promoting fear and being “tough on crime.” Yet, as the book points out, the US recidivism rate is over 60% (the highest in the world) while Norway’s is around 20% (the lowest in the world). Professor Dreisinger’s writing is forceful and polished, which is not surprising considering that in addition to her teaching job at John Jay, she reports about travel; the Caribbean; and world music for various outlets like the New York Times, Forbes and NPR. But this book germinated from the true calling of her life – founding and operating John Jay’s Prison-to-College Pipeline.

This remarkable program brings education to the incarcerated at Otisville, a New York State prison, and then guarantees them admission to John Jay College upon their release. So Dreisinger has seen what NY State prisons can do and what they fail to do firsthand and she knows we can do better. Throughout the book, she incorporates the stories, successes and failures of her own formerly incarcerated students and compares them to the men and women of the country she is visiting. Many of the narratives rang too true and familiar for me, as I think they will for any New York criminal defense practitioner. While improving prisons is the main theme of the book, Dreisinger is also searching for the answers to the most difficult questions in criminal justice: What do we hope to gain by lengthy incarceration? How do we define “Justice” and is Justice accomplished by our current sentencing structure and method of punishment? It is in this search that the book is its most thought-provoking, challenging some of the basic premises of the US criminal justice system. All of us who work in the system in whatever role would do well to read this engaging book and take steps to move the discussion forward towards a more civilized and successful prison program. A

Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers


Brief Examinations The Sasha McCandless and Aroostine Higgins series by Melissa F Miller

Reviewed by Dick Barbuto

Melissa F. Miller writes both the Sasha McCandless and Aroostine Higgins mystery series. She also writes in other genres but for our purposes I will talk about the McCandless and Higgins books. I have read all nine in the McCandless series and have enjoyed them all. I suggest in reading them that you start with number one. After that, there is no need to follow them in order. Likewise, in the Higgins series it makes sense to start with number one. McCandless is a civil lawyer who once in a while gets involved in a criminal case. Because Miller is a lawyer herself she gets the law correct. If you are a stickler for detail and accuracy you’ll appreciate this. One of the really nice things about the McCandless series is that Miller keeps introducing new characters and then will bring them back in a subsequent book. In fact, the Higgins character was born of the McCandless series. She also keeps the series fresh by taking on very different problems. In one book you will see her tackling a corrupt nursing home while in another, we find her in the world of human trafficking. Throughout the books she is assisted by her boyfriend, later her husband, who is a government agent. He must be attached to a super secret agency because the reader is never told what he does.

The reviewer of this book, Dick Barbuto, is a past president of NYSACDL. He has practiced criminal law in multiple jurisdictions, both state and federal.


Aroostine Higgins is a new assistant United States Attorney. As you might imagine the Higgins books deal more with criminal law. The reader should also know that Higgins is Native American. That part of her background plays a large part in all of the books where she is the protagonist. From time to time Higgins takes us into recent history and she is quite knowledgeable about living on a reservation, casinos etc. After reading all three books in this series, I asked Miller if she was Native American; she is not but writes as though she is.

Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers

Miller’s books are well written and entertaining. She has a very good sense of plot and character development. Indeed, in the McCandless series, Sasha starts off as a single woman, has a boyfriend that she eventually marries and now has two children. Miller never misses a beat in Sasha’s progression through life. I happen to like the McCandless series better but I recommend the Higgins series as well. Try them. I don’t think you’ll be disappointed. USA TODAY bestselling author Melissa F. Miller always wanted to be a writer.She majored in English literature, then, after working as an editor, enrolled in law school. She practiced law for fifteen years, including stints clerking for a federal judge, working for major international law firms, and running a small law firm with her lawyer husband. Now, powered by coffee, she writes and homeschools her children. When she’s not writing, and sometimes when she is, Melissa travels the country in an RV with her family. A

Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers


Message from the President Continued from page 3 dedicated to defending our freedoms in these scary times. Freedom is a constant struggle and people who fight for it are heroes, not because they are without flaws, but because they see injustice and find the courage to act. Belonging to an organization like the New York State Association of Criminal Defense Lawyers provides strength and support to each individual member in their unwavering commitment to the belief that everyone deserves quality legal representation. Zealous advocacy is a more comfortable fit for all of us because we know from membership in organizations like NYSACDL, there are other like-minded attorneys who have our back if the going gets tough. Sometimes, in our strongest moments, we find ourselves advocating for a result outside the parameters of a law that we believe not to be unjust. Sometimes, in the courtroom you can feel the power of moral purpose becoming greater than the law, often at the cost of incurring the wrath of the presiding judge. Is justice absolute or is it situational and outcome driven so that we should, at

the proper time, improvise to take account of special circumstances? As Michael J. Sandel, a professor of government at Harvard University, writes in his book, Justice – What’s the Right Thing to Do?, “justice is inescapably judgmental…a politics emptied of substantive moral engagement makes for an impoverished civic life. It is also an open invitation to narrow, intolerant moralisms. Fundamentalists rush in where liberals fear to tread.” The challenges currently facing our Association include how to address the frequency of prosecutorial misconduct which, depending on the conduct, can change the outcome of a case and a person’s life. It is no surprise that the District Attorneys Association of the State of New York opposes the creation of a prosecutorial conduct commission. Perhaps even more telling is that DAASNY also deeply opposes one of our highest priorities: discovery reform. Our Association is embarking on new commitments and initiatives to address prosecutorial and judicial misconduct

and to educate the legislature about the critical need for discovery reform. We have learned that even in the face of adversity from members of the legislature, the bench or your adversary, standing up for what we believe to be just will ultimately be vindicated by history. We will continue to fight for the principles of our Constitution. Every now and then, we actually are instrumental in accomplishing true justice, including, with all due respect to Vimala Thakar, converting a non-believer to embrace compassion. And that is really quite a thrill. A

* Penal Law Section 1.05 General Purposes: (6) To insure the public safety by preventing the commission of Offenses through the deterrent influence of the sentences authorized, the rehabilitation of those convicted, the promotion of their successful and productive reentry and reintegration into society,and their confinement when required in the interests of public protection (emphasis definitely intended).

From 90 State Continued from page 5 and contrasting the two. Each year, I return from these meetings revitalized and ready to tackle the ambitious goals NYSACDL has set (see update below on some of those goals) and the new projects we are hoping to undertake. I thank the NYSACDL Board of Directors for supporting my attendance of these meetings. Next year, the conferences will be taking place in


San Francisco – I hope you will let me know if you are attending so that we can connect! You are a critical part to helping NYSACDL achieve its 2016 goals! Please continue to: Recommend membership to colleagues. Beginning October 1st, all memberships will expire 12/31/2017 – the

remainder of 2016 will be included for free! Register for and Share with others information about CLE seminars. As always, thank you for your commitment to vigorously defending your clients and supporting the rights of criminal defendants throughout our state. A

Atticus | Volume 28 Number 3 | Fall 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

Fall 2016 Seminar

Superstar Trial Seminar 2016 6.5 Skills Credits; 1.5 Ethics Credits Friday, December 2, 2016 – 8:45am-5:00pm (Lunch Included) U.S. District Court for the Western District of New York, Buffalo Featured Faculty & Topics Elizabeth E. Macedonio, Esq. (New York, NY) – Strategies for Handling and Winning High-Profile Cases Mark J. Mahoney, Esq. (Buffalo, NY) – The Right to Present a Defense John Paolucci, Esq. (Brewster, NY) – The Science of Blood Splatter Determinations

John F. Speranza, Esq. (Rochester, NY) – Pre-Charge Advocacy Michael S. Ross, Esq. (New York, NY) – Recurring Ethical Issues for Criminal Defense Attorneys John S. Wallenstein, Esq. (Garden City, NY) – Bail & Pre-Trial Release

Thank you to our sponsors! Premium Lead Sponsors Dopkins & Company, LLP LexisNexis

Lead Sponsor Corporate Screening and Investigative Group LLC Breakfast Sponsor BigHand

NYSACDL Editorial Continued from page 4 The courts have been insufficiently protective of individual liberties. Preserving the integrity of the Fourth Amendment and respecting the Framers’ intent requires a change in the way courts analyze issues of probable cause. Too often, judges presiding over suppression hearings know the individual’s constitutional rights may have been violated, but do not hold the People to their burden of proof of clear and convincing evidence. Even though the same jurists routinely instruct jurors that an officer’s testimony is to be given no more weight than that of any other witness, as soon as an officer testifies to a minimum degree of probable cause or reasonable suspicion, the issues are too often resolved in favor

of law enforcement rather than holding the People to their burden. If the record contains irreconcilable, but credible testimony on behalf of both the police and individual, the court doesn’t have to call the police witness(es) “liars” to find for the individual. The court should simply find that the People have failed to meet their burden of proof of clear and convincing evidence. It shouldn’t be left up to mayors, community activists, police chiefs and commissioners, and the Department of Justice, to instill a new culture to ease the tensions between police and citizens in this country. New community policing policies and training may be part

of the answer, but the judiciary must also fulfill its responsibility to rigorously enforce the probable cause requirement. The Fourth Amendment was constructed to protect us from unreasonable interference with our freedom. Renewed enforcement of Fourth Amendment protections is an achievable goal. We defense lawyers nobly think of ourselves as the “last bastion” of defenders of the rights of the citizenry. In this context, it is our courts who are truly the last bastion. Our judges should be strictly interpreting constitutionally protected values and resolving such issues, short of true clear and convincing evidence to the contrary, in favor of the individual. A

Atticus | Volume 28 Number 3 | Fall 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

NYSACDL WELCOMES OUR NEW MEMBERS (AS OF 0CTOBER 18, 2016) ALBANY COUNTY Dylan S. Gallagher Joseph M. Gerstenzang

BRONX COUNTY John Adelman Linda Evertz Emily Galvan Benjamin Gold Ruth Hamilton Mia Jackson-Rosenthal Molly Kenney Cristina Laramee Sungso Lee Melissa Lee Marne Lenox Scott Levy Sarah Lustbader Robyn Mar Michelle Nam Renagh O'Leary Defne Ozgediz Terri Rosenblatt


Kristina Saleh Amalea Smirniotoplous Angharad Vaughn Daniel Zeidman

CATTARAUGUS COUNTY Darryl R. Bloom Linda J. Lovell John C. Luzier Kimberly E. Payne Timothy J. Ross Benjamin J. Smith



ERIE COUNTY Robert N. Convissar Jacob Drum

KINGS COUNTY William Jativa

Justine Luongo Michael Mandel Andrea Nieves

Roberto Antonio Reveron Wylie Stecklow


Carrie Wood

Brian Shiffrin


NASSAU COUNTY Hannah O'Driscoll

NEW YORK COUNTY Peter Barta Mark Bulliet Carol Childers Harlan Greenberg Andrew Horne Elizabeth M. Johnson Gary Koos Matthew McDonough Valerie K. Mitchell Avraham C. Moskowitz Timothy Parlatore


ONONDAGA COUNTY Todd A. Berger Jeffrey Domachowski Melissa T. Sieling Eileen Dorsey Walsh

QUEENS COUNTY Wendell Cruz Michael Joseph Doyle Danielle Muscatello Miguel A. Rodriguez


SCHENECTADY COUNTY Tracey Chance Frances Friedberg



John Nabinger

Kenneth Puig Kenyon Trachte Kevin Walsh



David Garcia Richard Portale

Catherine Hannan

Lane Bubka



Atticus | Volume 28 Number 3 | Fall 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: Robert Isseks, Alan Lewis, Timothy Murphy, Russell Schindler, Richard Willstatter

Chairs: Greg Lubow (gdlubow@gmail.com), Robert Wells (dfndr@hotmail.com) Members: Michael Baker, Bruce Barket, Vincent de Marte, Mitchell Dinnerstein, Peter Dumas, James Grable, Timothy Hoover, Andre Vitale, Mark Williams

ANNUAL DINNER COMMITTEE Chair: John Wallenstein (jswallensteinesq@outlook.com) Members: Lori Cohen, Andrew Kossover, Andre Vitale, Robert Wells

CONTINUING LEGAL EDUCATION COMMITTEE Chairs: Bruce Barket (bbarket@barketmarion.com), James Grable (jwg@connorsllp.com), Timothy Hoover (THoover@ hodgsonruss.com), Arnold Levine (nyccrimlaw@aol.com), Andre Vitale (avitale@monroecounty.gov) Members: Michael Baker, Wayne Bodden, Andrew Kossover, Brian Melber, Benjamin Ostrer, Lisa Peebles, Michael Shapiro, John Wallenstein, Robert Wells

INDIGENT DEFENSE COMMITTEE Chair: Andre Vitale (avitale@monroecounty.gov) Members: Andrew Kossover, Susan Walsh

FINANCE AND PLANNING COMMITTEE Chair: Susan Walsh (swalsh@vladeck.com) Members: Wayne Bodden, Lori Cohen, Andrew Kossover, Aaron Mysliwiec

LAWYERS STRIKE FORCE ASSISTANCE COMMITTEE Chair: Andrew Kossover (ak@kossoverlaw.com) Members: Marc Fernich, Timothy Hoover, Richard Willstatter

PROSECUTORIAL AND JUDICIAL COMPLAINT COMMITTEE Chair: Marvin Schechter (marvin@schelaw.com) Members: Daniel Arshack, Jane Fisher-Byrialsen, Bennett Gershman, Andrew Kossover, Russell A. Schindler, Donald M. Thompson, John S. Wallenstein, Richard D. Willstatter, Ellen Yaroshefsky

PUBLICATIONS COMMITTEE Chair: John Wallenstein (jswallensteinesq@outlook.com) Members: Richard Barbuto, Jessica Horani, Alan Lewis, Benjamin Ostrer, Lisa Peebles, Claudia Trupp

PUBLIC STATEMENTS COMMITTEE Chair: Andrew Kossover (ak@kossoverlaw.com) Members: Wayne Bodden, 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, Richard Willstatter, Robert Wells

LEGISLATIVE COMMITTEE Chair: Lisa Schreisbersdorf (lschreib@bds.org) Members: Bruce Barket, Wayne Bodden, Andrew Kossover, Greg Lubow, Aaron Mysliwiec, Kevin O’Connell, Alan Rosenthal, Andre Vitale, Mark Williams

Atticus | Volume 28 Number 3 | Fall 2016 | New York State Association of Criminal Defense Lawyers



New York State Association of Criminal Defense Lawyers

Membership Application Please print or type

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

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

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Full-time Public Defender Allied Professional Member

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

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Graduation date: __________________

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

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. 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. 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. 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_____________ Billing Address:____________________________________________


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 3 | Fall 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 3 | Fall 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.

Federal Practice

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.

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 3 | Fall 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 3 | Fall 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


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