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Summer 2017 | Volume 29 | 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


Amicus Curiae Report by Richard Wilstatter


Court of Appeals Mar-May 2017 by Timothy P. Murphy


Court of Appeals by Timothy P. Murphy


Immigration and Criminal Courts by Brittany Brown and Meagan Hu


Criminal Sealing Law by Alexander R. Klein


Book Review


Cutting Edge CLE

New York State Association of Criminal Defense Lawyers

ICE vs Criminal Defenders

P. 25 P. 33

Discovery Reform Lobby Day NYSACDL Defenders Circle

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 2017 PRESIDENT John S. Wallenstein, Garden City

Mark Hosken, Rochester Anthony M. La Pinta, Hauppauge Yung-Mi Lee, Brooklyn Greg D. Lubow, Tannersville Elizabeth E. Macedonio, Manhattan Allison M. McGahay, Lake Placid Brian Melber, Buffalo Cheryl Meyers-Buth, Buffalo Timothy P. Murphy, Buffalo Lisa Peebles, Syracuse Russell A. Schindler, Kingston Tucker C. Stanclift, Glens Falls Donald M. Thompson, Rochester Claudia Trupp, Manhattan Susan J. Walsh, Manhattan

PRESIDENT-ELECT Robert G. Wells, Syracuse FIRST VICE PRESIDENT Lori Cohen, Manhattan VICE PRESIDENTS Arnold J. Levine, Manhattan Jessica Horani, Manhattan Timothy Hoover, Buffalo Alice Fontier, Manhattan Kenneth Moynihan, Syracuse SECRETARY Mark Williams, Olean TREASURER Alan S. Lewis, Manhattan DIRECTORS Edgar De Leon, New York Mitchell J. Dinnerstein, Manhattan Peter A. Dumas, Malone Steven B. Epstein, Garden City Marc Fernich, Manhattan James W. Grable, Jr., Buffalo

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 Andrew Kossover 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 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers

Publication of the New York State Association of Criminal Defense Lawyers

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.

Find NYSACDL on Facebook, LinkedIn & Twitter

Message from the President By John S. Wallenstein Summer, that time of year when we are all supposed to relax, take time off, enjoy the long days and bright sunshine. So why am I sitting in my office, watching the sun reflect off the hood of my car in the parking lot, instead of flashing off the sand at Jones Beach? Because, like most of us, my clients need my attention. My days often begin in one jail or another, pass through a courtroom or two, and end in Lexis or a flash drive full of discovery material. Other people put on headphones and listen to music; for many of us, the material of choice is a wiretap recording. This Association does not take political positions. Our lobbying and legislative efforts are aimed at improving the criminal justice system and making the system fairer for our clients. We number republicans, democrats, independents, and others among our members, and while we are united in our dedication to criminal defense, we differ in our political opinions and support. More and more, though, it is only through our dedicated perseverance and efforts that our clients are protected from the overreaching of government. Nowhere is this more starkly emphasized than in the recent public pronouncements of the Attorney General and, incredibly, the President of the United States. The Attorney General has every right to set and announce policies of the Department of Justice, and to speak out publicly about them. However, DOJ has traditionally been independent of politics when criminal investigations and prosecutions are involved. Seemingly, that has changed with this administration. The Attorney General appeared in Central Islip at the Long Island EDNY federal courthouse, to announce that he intends to “eradicate” the MS-13 gang. Harsh words, but appropriate for the AG; law enforcement is his bailiwick. But then….at the end of July, President Trump traveled to Long Island for the sole purpose of injecting himself into the prosecutions of MS-13 members in the Eastern District. In his speech to a law enforcement audience (the public was not invited) the President called for increased police brutality, by encouraging officers to “rough up” suspects because “they just committed murder”, thereby demonstrating total disregard for, if not ignorance of, the Fifth Amendment and the presumption of innocence. His remarks were quickly repudiated by many police departments and officials, much to their credit. However, the damage was done, and not a single member of Congress called him on it. More importantly, these inappropriate remarks seem to resonate with many people who will ultimately be a part of the jury pool, not just for the pending MS-13 prosecutions, but for every criminal trial. Continued on page 35

Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers


From the Editors’ Desk

EDITORS Jessica Horani, Editor in Chief John S. Wallenstein Alan S. Lewis Richard J. Barbuto, Acquisitions and Book Review Editor A publication of the New York State Association of Criminal Defense Lawyers ©2017 NYSACDL 90 State Street, Suite 700 Albany, New York 12207 Phone: 518-443-2000 Fax: 888-239-4665 www.nysacdl.org atticus@nysacdl.org

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

John S. Wallenstein, Jessica Horani, Alan S. Lewis Summer has nearly come and gone in the blink of an eye as we bring you our latest installment of Atticus. The ‘slow’ summer months have been busier than ever; despite all we read about crime being down, District Attorneys looking to dismiss warrants, and police slowing the stream of so called quality of life offense summonses and arrests. Perhaps it is the breakneck speed with which the drama continues to unfold within our Federal government that makes the lazy days of summer seem less so. As guardians of the rights of the accused our work continues to take on more weight and meaning as the Federal government’s focus on immigration enforcement plays out in our criminal courthouses across the State. Beyond Padilla, our obligation as criminal defense attorneys representing clients vulnerable to deportation has come into sharp focus these past months. Stories continue to emerge of immigration agents arresting clients inside courthouses, oftentimes while they are there on minor offenses. An account of one such harrowing arrest and a guide to our members to help protect those clients’ rights can be found on page 23. On a positive note, we were heartened to see a strong turnout at the Discovery Reform Lobby Day in Albany on (May 16, 2017). Attended by leaders of this organization and others we made our voice heard that the time is now to repeal the so called blindfold law; perhaps, finally, the time is now that the legislature will listen. Just recently the New York Times published a piece highlighting the draconian discovery laws in New York and it is our hope that the general public will become as engaged as our membership in this fight to cure an ongoing injustice within the criminal justice system. As we push forward with Discovery Reform we are hard at work on the implementation of new reforms passed in the Raise the Age legislation this Spring. One new law passed as part of Raise the Age is the new criminal sealing statute under Criminal Procedure Law 160.59. The new law will provide for sealing of certain felony and misdemeanor convictions, regardless of age at the time of conviction, following a ten year period with no further convictions. An explanation of the new law and analysis of its merits to employers begins on page 30. As the new law goes into effect in October we urge our members to keep the eligibility guidelines in mind and review cases for clients who may be able to benefit from the new sealing provision. As always, the dedication and hard work of our members is celebrated within these pages in our From the Defense Table column starting on page 6. The art of the defense win is in its unwavering dedication to leave no stone unturned in the face of challenging odds. From a police officer’s loose words on social media to the use of several experts to challenge an alleged confession; our members show how their Continued on page 35


Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers

Dispatches from 90 State New York State Clemency Project Needs You! Pro Bono Representation of Applicants for Executive Clemency: Attorney Training https://nysacdl.site-ym.com/page/ Clemency 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.

Jennifer Van Ort Executive Director It is hard to believe that we are already enjoying the last slow days of summer and that NYSACDL will soon be embarking on another busy fall & winter. The past few months have been spent planning for this productive time and we are pleased with the progress. The NYSACDL Board of Directors continues to keep its members and your clients at the forefront of the planning process. Here is a snapshot of some of the activities from this past summer: Annual Board of Directors Retreat – Following the Upstate Criminal Defense Seminar in June, the NYSACDL Board of Directors once again met for an intensive retreat and planning session. In this session, CLE programs for the fall and beyond were discussed, including two new and different programs soon to be announced. The Board also discussed strengthening NYSACDL’s ongoing legislative efforts so the organization can continue to be the voice of criminal defense in New York. We looked at potential honorees for the upcoming annual dinner, and, as always, discussed new efforts to attract your colleagues to join NYSACDL – our members continue to be the backbone of our organization. I am pleased to report that, as of this writing, we are on track to reach our goal of 900 members by the end of 2017. Defenders Circle – One item to come out of the Board retreat was the creation of a new support program for NYSACDL, the Defenders Circle. This annual program gives members, and our greater community, the opportunity to show their support of the work NYSACDL does. Thank you to everyone who participated in the inaugural program – please see donor listing in this issue! New Office Space – In early July, we moved to a slightly larger space in the same office building (all contact information remains the same). This new space includes a second desk and phone line, making it easier to host the Board of Directors or members in Albany. I will also be exploring internships that NYSACDL can offer local students, now that they have some place to sit! National Defense Executives & NACDL Conferences – I am thankful that I could once again the National Defense Executives Association and National Association of Criminal Defense Lawyers (NACDL) State Criminal Justice Network conferences again this year. The conferences took place in San Francisco and always provide a valuable wealth of information and networking. For the first two days, I assisted in coordinating a meeting of my colleagues from other state criminal defense bar associations around the country. This meeting is always a refreshing way to look at the big picture of what our bar associations do. There is a valuable exchange of ideas and opportunities to discuss potential programs with others who understand the intricacies of our organizations. Continued on page 35

Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers


From the Defense Table: Celebrating the Achievements of NYSACDL Members in the Courts FELONY DRIVING WHILE IMPAIRED BY MARIJUANA ACQUITTAL IN QUEENS: A TEAM EFFORT, WITH HELP FROM SOCIAL MEDIA Board Member Steven Epstein obtained a not guilty verdict on a felony charge of operating a motor vehicle while ability impaired by drugs, specifically marijuana, in Queens County before Judge John Latella. The People were armed at trial with evidence of the Defendant’s refusal to take a blood test, but their case also focused on alleged traffic violations for failing to maintain lane, evidence of recent use of marijuana including marijuana crumbs on the Defendant’s lap and most troubling, the Defendant’s admission to smoking a blunt twenty minutes before the stop of his car. The acquittal was the result of a thorough cross examination of the arresting officer by Steven Epstein. Jordan Bistany, the arresting officer was assigned to Highway 3 in Queens and specialized in DWI and DUI Drug arrests. The cross minimized any evidence of impaired driving, challenged the officer’s opinion of impairment and took advantage of the lack of preservation of evidence as well as the failure to call a DRE (Drug Recognition Expert) at trial.


What distinguished this cross from others was that Epstein was able to attack Jordan Bistany’s credibility by using the officer’s social media posts against him. Though Epstein was armed with six Civilian Complaint Review Board accusations against Bistany and several civil rights law suits accusing Bistany of various allegations, it was the Facebook posts that did Bistany in. There were many useful posts on Bistany’s public Facebook page. Most of the posts called into question Bistany’s ability to exercise discretion in making arrests. For example, in one such post he stated he would pull over school teachers and give them tickets because of the teacher’s union’s support of Reverend Al Sharpton. In another he re-posted a video of a person driving his car into a crowd of innocent protesters in Ferguson, Missouri and wrote “my hero.” The acquittal is an example of how we as a defense community are stronger together than we are separately. Elysiave Fedorczyk, an attorney with the Legal Aid Society, Criminal defense Division in Queens found Bistany’s public Facebook page where he had posted several racist messages and pictures of crime scenes along with commentary and she along with fellow Legal Aid attorney, Joel Schmidt, shared them with the defense community. At the conclusion of the trial Judge Latella directed the People on the record to circulate the posts throughout Queens District Attor-

ney’s Office and to disclose them to any defense counsel on cases involving Officer Bistany. Although these posts are no longer available to the public on Bistany’s Facebook page, anyone with a case involving Officer Bistany can contact Steven Epstein who has offered to share the posts and the trial transcript. HEARSAY ‘DEATH THREATS’ LEAD TO A REVERSAL AND A NEW TRIAL Member Marshall A. Mintz obtained an appellate victory in the Second Circuit in United States v. Cummings, 858 F.3d 763 (2d Cir. 2017). According to the government, Cummings was the leader of a crack cocaine trafficking crew in the Bronx and murdered two members of a rival crew as part of a dispute over territory. He was convicted after a three-week trial on multiple counts of conspiracy, narcotics, murder, and firearm offenses. Prior to trial, the government moved in limine regarding the admissibility of threats Cummings allegedly made against a cooperating witness – Jim Volcy. The government stated Volcy would testify that Cummings said he would kill Volcy if he could because of Volcy’s cooperation. The government argued that showed consciousness of guilt and

Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers

was admissible under FRE 404(b), and any prejudice would be mitigated by a limiting instruction. Cummings opposed, saying the testimony should be excluded under FRE 403 because the risk of undue prejudice far outweighed any probative value but also requesting a limiting instruction if the testimony were allowed. The district court granted the government’s motion subject to an appropriate limiting instruction. During the trial, Volcy testified that Cummings never said anything to him directly. He was next asked if Cummings said anything indirectly, at which point a defense objection was overruled. Volcy was then allowed to testify that Cummings “said stuff to people around me,” calling him a rat bastard and saying he would shoot Volcy in the face. No request for a limiting instruction was made and none was given. On appeal, Cummings argued that the district court erred by admitting hearsay evidence of the death threat he allegedly made against Volcy. The Second Circuit agreed, finding that Cummings did not forfeit his claim by failing to object, the district court abused its discretion by allowing the testimony to be admitted, and the error was not harmless. The Court noted that FRE 103 says an objection must state the specific ground relied upon unless it is apparent from the context. So even though the defense did not specify the basis for its objection to the question of whether the statements were made “indirectly” to Volcy, it was still sufficient to identify the issue and give the district court a chance to correct it. Rejecting the government’s argument that there was no hearsay problem because the testimony was “clearly

understood to mean that Cummings made the threats to people in Volcy’s presence,’ the Court found that even viewing the evidence in the light most favorable to the government, such an inference was not supported by the plain language in the record. Because Volcy testified that things were said to people around him and not directly to him, the Court saw a double hearsay problem. Under FRE 805, hearsay within hearsay is admissible if each part of the combined statement falls within some exception to the rule. While any statement Cummings made to a third-party could be admitted as evidence of consciousness of guilt or as a party admission, any statement that third-party made to Volcy relaying the threat would only be probative if admitted for the truth of the matter asserted – that the third-party actually heard Cummings make the threat. Thus, it was hearsay not subject to any exception. The Court then explained that admission of death threat evidence is particularly “toxic” because of the potential prejudice that may result. In Cummings’s case, the error was not harmless for several reasons: the evidence was so similar to the charged offenses that the jury may have believed it should convict Cummings based on a belief that he was willing to murder Volcy; the lack of a limiting instruction created an undue risk that the jury would consider the testimony as evidence of murderous propensity and not consciousness of guilt; the government in summation argued that the death threat was “completely devastating proof of [Cummings’s] crimes,” which invited the jury to convict on an improper purpose; the testimony presented all of the dangers the pro-

If you want total security, go to prison. There you’re fed, clothed, given medical care and so on. The only thing lacking... is freedom. — Dwight D. Eisenhower

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From the Defense Table Continued from previous page hibition against hearsay is concerned with (insincerity, faulty perception, faulty memory, faulty narration); and, there was no clear need or important purpose for the evidence, which was “little more than gratuitous.” Finally, the Court stated that its role was not to decide a case based on speculation about how probable reconviction was, but whether it could conclude with fair assurance that the evidence did not substantially influence the jury. Because the court could not reach that conclusion, a new trial was required. BURGLARY ACQUITTAL IN NASSAU COUNTY Member Joseph A. Lo Piccolo had a Burglary 2 acquittal in March in Nassau County Supreme, Criminal Term. Lo Piccolo’s client was charged with Burglary in the Second Degree and related charges stemming from allegations that a house was broken into and a laptop and pocketbook with a credit card were taken from the kitchen counter. The pocketbook was later found inside the homeowner’s vehicle and within hours, a credit card from the wallet was used at an address in an attempt to open a Netflix account. The police traced that account to the defendant’s home through the IP address and without further investigation arrested him at probation. The police alleged that the defendant made oral admissions to the crime and the People presented a Miranda rights waiver card into evidence to support the detective’s statements. The rights card was signed by defen-


dant; but only after the portion which indicated the defendant’s 5th amendment rights were read to him. It was not signed after the portion which indicates that after the reading of the rights, the defendant wished to waive those rights and speak to the detectives. The un-signed area of the rights card and the question of whether the defendant had in fact made voluntary statements to the detective became a major focal point of jury deliberations and the ultimate verdict. The defense also stressed the failures of the police investigation, including failing to check local pawn shops for the stolen laptop, failure to get a search warrant for the defendant’s home to look for stolen property and even to get any information related to the underying gmail account linked to the Netflix account. All of the above led to a full acquittal of all charges for Lo Piccolo’s client who had been facing a daunting 5 to 15 years in prison if convicted. MOLINEAUX RULING LEADS TO SEX ABUSE REVERSAL BY COURT OF APPEALS Member Brian Shiffrin obtained a reversal in the Court of Appeals, the unanimous decision which was authored by the late Honorable Sheila AbdusSalaam, as well as an Appellate reversal in the Fourth Department On March 28, 2017, in People v Richard Leonard (29 N.Y.3d 1), the Court of Appeals reversed a sexual abuse

conviction on the ground that it was prejudicial error for the trial court, pursuant to a Molinuex ruling, to permit the complainant to testify that two years prior to the charged crime Mr. Leonard had committed a similar sexual touching of her. The Court first explained that “[t]he victim’s testimony here that defendant had previously sexually assaulted her by getting her drunk is propensity evidence, tending to show that defendant committed the charged crime because he had done it before. Contrary to the People’s argument and the lower courts’ decisions, this evidence was not necessary background information. . . .Here, however, the victim’s testimony as to the alleged prior sexual abuse was not necessary to show the nature of the relationship between her and defendant or to “sort out ambiguous but material facts”  Thus, the Court limited the scope of the background exception to Molineux. Then the Court held that “the evidence of the uncharged crime was not admissible to show intent. The intent here – sexual gratification – can be inferred from the act. “Evidence of prior criminal acts to prove intent will often be unnecessary, and therefore should be precluded even though marginally relevant, where intent may be easily inferred from the commission of the act itself ” (People v. Alvino, 71 N.Y.2d at 242). Such is the case here, where defendant’s alleged action of touching the victim’s vagina was plainly for sexual gratification and

Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers

not an “equivocal” act capable of being understood as “innocently or inadvertently committed” This holding is critical – as it means that the intent exception to Molineux is inapplicable for most sex crimes, in which intent is not in issue Then the Court held that “to the extent the evidence was admissible to show defendant’s motive in getting the victim drunk, the evidence was highly prejudicial, as it showed that defendant had allegedly engaged in the exact same behavior on a prior occasion with the same victim – classic propensity evidence. The prejudicial nature of the Molineux evidence far outweighed any probative value that may be attributed to it.” DISCREPANCIES IN DESCRIPTION LEAD TO APPELLATE REVERSAL On April 28, 2017, in People v Pablo Lopez (149 A.D.3d 1545), the Appellate Division, Fourth Department reversed a conviction for criminal possession of a weapon, on a finding that the stop of the vehicle Mr. Lopez was driving was unlawful, as lacking reasonable suspicion, where there were discrepancies between the description of the suspect and the man the police had seen entering the vehicle. The suspect was described as a Hispanic male with tattoos on his neck and arms, with unusual eyes, wearing dark clothing, and a Yankees cap. The person observed entering the car was a Hispanic male with tattoos on his neck and arms, but the police did not observe his eyes, and the man was wearing a white shirt and pajama bottoms. The Court held “[t] he inconsistencies between the suspect’s clothing as described by the complainant and the clothing worn by the man

who walked past the officer on North Goodman Street rendered the officer’s suspicion that the man was the suspect less than reasonable.” MIRANDA CHALLENGE AT TRIAL PROVES SUCCESSFUL WITH AID OF SEVERAL EXPERTS (AND ONE UNEXPECTED ONE!) Members Toni Messina and second seat Danielle Von Lehman obtained an acquittal in Manhattan following a three week trial before Judge Mark Dwyer in a Robbery and Burglary case where the client was facing mandatory persistent sentencing if convicted. The defense focused on Miranda voluntariness as the defendant was both detoxing from heroin and had a 67 IQ when he waived his rights. Counsel first had the client, who was in his mid-30’s, tested by a cognitive neurologist, Dr. Maria Burgio, who learned that he had suffered several physical traumas over the course of his life including a meningitis induced coma, a car accident which caused a concussion, and self-inflicted trauma to his head as a child. She concluded that he probably suffered organic damage to his frontal lobe as a result and the IQ tests showed he had trouble with frontal lobe reasoning. Dr. Burgio testified at both the pre-trial hearing and at trial to opine that client could not have “knowingly” waived his Miranda rights. She held up well under tough cross examination. Counsel additionally worked with Dr.

Nicholas Kardaras to deal with the “voluntary” prong of the Miranda waiver question. Kardaras runs a high-end drug clinic in East Hampton, L.I. and had extensive clinical experience with drug abuse both through his work and personally – he used to be an addict. He testified (again at hearings and trial) about the “craving” phase – the addict’s overwhelming need for his next hit and how that effects his ability to voluntarily do anything if he believed another “hit” was in store if he complied. Counsel argued that because their client was coming down from heroin when he was questioned, he was in the craving phase. Kardaras testified that at this point addicts would even throw their mothers off a bridge to get another fix. The prosecutor countered that, because client had been taken to Bellevue ER for a dosage of methadone before the confession, he must have been returned to base-line functioning. They also argued that because he looked ‘fine’ in the video of the interrogation and seemed to express his waiver and understanding of the waiver clearly; that he did waive his Miranda rights both knowingly and voluntarily. The defense also made use of an unexpected expert in the course of the trial, Dr. Lipi Roy, the DOC Health and Hospital doctor who ran the service programs for inmates with addictions on Rikers. The prosecutor moved to admit client’s medical records from Rikers to show the dosage of methadone he received upon admittance was the same as the dosage given at Bellevue prior to the confession. This, the prosecutor argued, showed that the dosage given was all that client needed to stabilize and would have left him in good shape to understand and voluntarily and knowingly waive his Miranda rights. Continued on page 39

Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers


Amicus Report NYSACDL

By Richard Wilstatter, Amicus Curiae Committee Chair

The NYSACDL Amicus Curiae Committee has been very busy this year appearing in a variety of cases. We file in those cases–usually appeals–in which there are issues of statewide or national importance and where we can bring the unique perspective of criminal defense lawyers to the courts.

Richard D. Willstatter is a criminal defense lawyer in Westchester County. He can be reached at willstatter@msn.com.

People v. Arjune is an appeal in the New York Court of Appeals on the issue of private counsel’s obligation to help a client he represented at trial learn what he must do to obtain appointed counsel on appeal. In Arjune’s case, his private trial lawyer filed a notice of appeal but did not inform him what he had to do to make an in forma pauperis application to the Appellate Division so his appeal was dismissed. New counsel filed a writ of error coram nobis which is headed to the Court of Appeals. Eamon Joyce of Sidley Austin will write our brief. The appellant is represented by Jenin Younes of Appellate Advocates. The decision below is reported at 138 AD3d 877, 28 NYS3d 329 (2d Dept. 2016).

The Amicus Curiae Committee can be contacted if you have, or learn of, a matter in which our participation is solicited. However, members are reminded to contact us as early as possible in the course of the case because it does take time to recruit an author, prepare, edit, print, copy and file a brief.

There are two cases joined for argument in the state court of appeals attacking the constitutionality of the discretionary persistent felony statute, People v. Garvin and People v. Wright. NYSACDL and NACDL have filed amicus briefs on this issue before in several postApprendi challenges. A new Supreme Court case, Hurst v. Florida, 136 S. Ct. 616 (2016), supports this challenge. The Court of Appeals recently rejected a related challenge to the discretionary persistent law in People v. Prindle, 2017 N.Y. Slip Op. 05267, 2017 WL 2799824 (June 29, 2016). Newly appointed Associate Judge Rowan Wilson’s opinion adhered to the Court’s prior rejections of Apprendi challenges. However, Prindle’s appeal was based on Alleyne v. United States, 133 S. Ct 2151 (2013) and not Hurst. Alleyne was the case that


Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers

overruled Harris v. United States, 536 U.S. 545 (2002) and held that increases in the minimum term of imprisonment, as well as the maximum term, requires a jury finding to pass muster under the Sixth Amendment. Tiffany Payne and Mark G. Matuschak or WilmerHale will prepare a joint amici curiae brief for this Association and the National Association of Criminal Defense Lawyers. There is another case in the New York Court of Appeals, People v. Brooks, where NYSACDL will write on whether there is a “domestic violence” hearsay exception permitting in this case eleven friends of the decedent to testify variously that the decedent had characterized the defendant as a marijuana user, lazy, a bum, etc. although they were living together as boyfriend and girlfriend. This is NYASCDL member Susan Wolfe’s appeal. University of South Carolina law professor Colin Miller will author our brief. Prof. Miller writes the EvidenceProf blog and is widely known for his participation in the Undisclosed podcast which presented a deep dive into the Adnan Sayed case originally featured on the Serial podcast. The First Department is alone among the appellate divisions in promulgating this eccentric hearsay exception and other departments disagree. It presents a People v. Molineaux, 168 NY 264 (1901) type of problem (similar to Fed R Evid 404(b)). The decision below is reported at People v. Brooks, 134 A.D.3d 574 (1st Dept. 2015).

NYSACDL and NACDL filed amicus briefs in the First and Second Departments of the Appellate Division challenging family court orders prohibiting counsel from sharing discovery with criminal defense counsel from the same office. Abigail Coster and Barry Bohrer of Schulte Roth & Zabel prepared our briefs. Our position prevailed in the First Department in the case captioned Matter of Sean M. (Yanny M.) 2017 N.Y. App. Div. LEXIS 5104 (1st Dept. June 27, 2017) which held that the decision to prevent the sharing of information “affected the rights of the mothers to consult with fully informed criminal defense counsel and the mothers were aggrieved by the limitations the court placed on their ability to share information with their respective counsel” in violation of the First and Sixth Amendments. The Second Department handed down its decision just two weeks laterand surprisingly, came out the other way from the First Department. See Matter of Kaden J.M. (Quianna J.), 2017 N.Y. App. Div. LEXIS 5534 (2d Dept. July 12, 2017). The Second Department deemed the appeal premature, effectively requiring defendants to first challenge the NonDisclosure Orders to the Family Court identifying particular records they want to share with their criminal attorneys. Remarkably, the Court found the contention that the NonDisclosure Orders “may impinge on [the] right to counsel in [] pending criminal proceeding[s]” to be “hypothetical.” We expect one or

both these cases may be argued in the Court of Appeals. NYSACDL joined an amicus brief with the New York County Lawyers Association, NYSDA, NACDL and the National Association for Public Defense in the matter of Grubbs v. Brown, 92 Civ. 2132, in the SDNY before Judge George B. Daniels opposing the NYPD’s installation of listening and videorecording devices in attorney client interview rooms, particularly in Staten Island. Hilary Harris Klein and others at Freshfields Bruckhaus Deringer US LLP prepared the brief. A hearing is scheduled before Judge Daniels on July 18, 2017. In the case of People v. Wiggins, NYSACDL’s own Amicus Curiae Committee member Timothy Murphy of the Legal Aid Bureau of Buffalo will author a brief in a case involving the state constitutional right to a speedy trial. The NYS Court of Appeals will address whether the State can detain a 16yearold at Rikers Island for six years without a trial. The appellant is represented by Ben A. Schatz of the Center for Appellate Litigation. Coincidentally, Ben Schatz authored our amicus brief in the Jesse Friedman case, Friedman v. Rice, in the State Court of Appeals on the meaning and statutory interpretation of the Freedom of Information Law. The Appellant’s case was featured in the documentary “Capturing Continued on next page

Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers


Amicus Report Continued from previous page

Legislative Committee: Andy Kossover, Co-Chair (New Paltz) Amy Marion, Co-Chair (Garden City) Bruce Barket (Garden City) Wayne Bodden (Brooklyn) Anthony LaPinta Greg Lubow (Greene County) Aaron Mysliwiec (New York City) Alan Rosenthal (Syracuse) Lisa Schreibersdorf (Brooklyn)

If you have any specific issues you would like to bring to the legislative committee, contact the chair, Andy Kossover. If you have any relationships with your local politicians, or believe your local district attorney would support sealing or discovery reform, it would be helpful for the legislative committee to be aware of that as well. Feel free to contact any of the members above if you are interested in participating in legislative work. It is particularly helpful if you have an expertise that we can draw on in those final moments of the session when bills are being proposed and passed very quickly.


the Friedmans.� The case was to be argued April 26, 2017 but removed from the calendar and will be rescheduled. Ron Kuby represents Mr. Friedman. The Appellate Division decision was reported at Matter of Friedman v. Rice, 134 A.D.3d 826 (2d Dept. 2015). NYSACDL joined an amicus brief in the People v. Otis Boone case in the NYS Court of Appeals which involved whether a trial judge must give a crossracial identification instruction upon request in a onewitness ID case. The case was argued in April but will be scheduled for reargument possibly because of the death of Judge Sheila AbdusSalaam and the appointment of Judge Wilson thereafter. Members are reminded to notify the Amicus Committee early on in the appellate process, long before their briefs are due if they would like the Committee to consider filing on an issue in a particular case. The Committee files brief on important issues and not principally to support a party or even his counsel. If a member or other counsel has a significant issue that could benefit from amicus briefing, by all means bring it to our attention sufficiently in advance of a due date to make it feasible for the Committee to consider the matter, recruit an author, and see that a worthy brief can be timely filed. A

Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers


ourt of Appeals Criminal-Related Decisions

Compiled by Timothy P. Murphy, Esq.

March-May 2017 March 23, 2017 People v. Castillo 29 NY3d 935 People v. Degraffenreid

Timothy P. Murphy, Esq. Chief Attorney Appeals and Post-Conviction Unit The Legal Aid Bureau of Buffalo, Inc. 290 Main Street, Suite 350 Buffalo, New York 14202 Office: (716) 853-9555 ext. 679 Fax:  (716) 853-3219 tmurphy@legalaidbuffalo.org

This is a brief and unanimous memorandum, affirming the AD for both co-defendants. Defense counsel’s failure to object to the causation jury instruction did not constitute ineffective assistance of counsel for the burden of proof was not shifted. There was no mode of proceedings error either. See generally People v. Patterson, 39 NY2d 288, 295 (1976). The instructions, viewed in their totality, did not improperly shift the burden of proof to the defense.

People v. Slocum 29 NY3d 954 This People’s appeal is a unanimous memorandum, affirming the AD, which reversed defendant’s conviction. Judge Wilson took no part. The issue of whether the request for counsel was unequivocal is a mixed question of law and fact. See People Continued on next page

Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers


Court of Appeals Continued from previous page v. Porter, 9 NY3d 966, 967 (2007). The appeal is dismissed, as reversal of the AD was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” under CPL 450.90 (2)(a). Accordingly, the Court of Appeals had no jurisdiction to address the People’s argument that the AD conflated the issues of whether the request for counsel was unequivocal with whether a letter from counsel constituted entry into the proceeding.

People v. Peguero-Sanchez 29 NY3d 965 This is a unanimous memorandum, affirming the AD. The court rejected defendant’s unpreserved Molineux argument regarding uncharged drug sales referenced in the People’s summation. The trial court also properly admitted defendant’s text messages, which the People used to rebut defendant’s version of the events surrounding his arrest.

People v. Freeman 29 NY3d 926 This is a unanimous memorandum, reversing AD. Law enforcement’s entry into defendant’s residence was not based on a voluntary consent by defendant. See People v. Gonzalez, 39 NY2d 122, 127 (1976). The court relied on the reasoning of the dissent in the AD (141 AD3d 1164, 1166-1170 [4th Dep’t 2016] [Whalen, P.J. and Troutman, J, dissenting]), which observed that the police coerced defendant into permitting their entrance into his residence only after handcuffing him and placing him in the back of a locked patrol vehicle. Recalling that courts are required to indulge every reasonable presumption against a waiver of defendant’s


constitutional rights, and considering the Gonzalez factors (id. at 128-130), i.e., whether defendant was: (1) in custody or under arrest, (2) handcuffed, (3) evasive or cooperative, (4) advised of his right to refuse consent, and (5) experienced in dealing with the police, the dissenters of the AD concluded that the People failed to sustain their burden of establishing that the purported consent was knowing, intelligent and voluntary. Interesting to note that the purported written consent was signed by defendant while he was still handcuffed behind his back. The drugs were not viewed from a lawful vantage point; thus, the plain view exception was inapplicable.

March 28, 2017 People v. Whitehead 29 NY3d 956 This is a unanimous memorandum, affirming the AD. There was legally sufficient evidence of possessing a controlled substance, despite the drugs not being admitted into evidence at trial. Direct evidence in the form of contraband or other physical evidence is not the only adequate proof. See People v. Samuels, 99 NY2d 20, 24 (2002). Here, the People presented intercepted drug-

related phone conversations, corroborative witnesses and evidence of visual surveillance. Moreover, the prosecution’s comments during its opening statement did not misstate the law regarding the definition of “sell” under PL §220.00 (1).

People v. Smith 29 NY3d 91 This is an attempted first-degree robbery case, authored by Judge Fahey, considering what is meant by the term, “displays what appears to be a … firearm” under PL §160.15(4). This provision includes the affirmative defense that the firearm was not a loaded weapon; which would reduce defendant’s culpability to second-degree robbery. Under the statute’s rebuttable presumption, enacted in 1969, it is the defendant’s burden to show that the object in question was not what it appeared to be (i.e., a firearm). Prior to its enactment, a defendant’s gun was required to have been openly displayed during the robbery. The pointing-finger under the shirt scenario is at issue here. Defendant walked into a check cashing store in Queens, demanded money and threatened to shoot the teller (who was behind bulletproof glass) with what appeared to be

The irony we often fail to appreciate is that the more justice people enjoy, the fewer crimes they commit. Crime is the natural offspring of an unjust society.

—Gerry Spence

Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers

a gun under the defendant’s sweatshirt. Defendant made no movements of his concealed hand. Citing People v, Lopez, 73 NY 2d 214 (1989), the trial court refused to dismiss the attempted robbery in the first degree charge, ruling that it is a jury question whether “a reasonable person could perceive there is the presence of a gun” Defendant did not request the affirmative defense to robbery in the first degree or robbery in the second degree as a lesser included offense. People v. Lopez, 73 NY2d 214 (1989) does indeed control the result. Threatening words alone are insufficient, but a hand secreted in clothing could be used to display what appears to be a firearm. In other words, the precise nature of the object displayed is not dispositive. See also People v. Baskerville, 60 NY2d 374, 381 (1983) (arm wrapped in towel, arm raised and pointed at victim, with threats to victim’s life made; deemed legally sufficient); People v. Lockwood, 52 NY2d 790, 792 (1980) (toothbrush displayed in manner appearing to be a pistol, deemed legally sufficient). As the court observed in Lopez, robbery in the first degree may be proven where a defendant consciously displays something that could reasonably be perceived as a firearm, with the intent of forcibly taking property. The object in question may be hidden or obscured and need not closely resemble a firearm or bear a distinctive shape. The jury at bar could reasonably infer that the object under defendant’s sweatshirt was a gun; defendant had said he had a gun. The AD is affirmed. Judge Abdus-Salaam provides a very quick concurrence, noting that the defense has not asked the court to overrule Lopez.

There is a thoughtful dissent authored here by the newest member of the court, Judge Wilson. Unlike the majority, Judge Wilson raised a question regarding the timing of when defendant’s hand was placed under his sweatshirt. If it was done in front of the complainant, for instance, it could not have the same impact as if the hand had been secreted during the entire exchange. Here, no object was actually displayed; rather, defendant’s hand was concealed.

People v. Jackson 29 NY3d 18 This decision was authored by Judge Rivera, with Judge Fahey writing a concurrence, joined by Judge Abdus-Salaam. The AD is affirmed. Defendant was convicted of several sex crimes carried out against two female acquaintances. The Sandoval (34 NY2d 371 [1974]) issue was unpreserved. The Court addresses what is required to preserve this issue under CPL 470.05(2). Here, defendant did not object on the basis he argues on appeal, either before or after the Sandoval compromise regarding his prior juvenile delinquent adjudication. Thus, the trial court had no opportunity to confront and resolve the issue in question; to potentially avoid the need for an appeal. If a defendant specifically and timely objects to a point raised in a Sandoval proffer, and that argument is ruled upon in the People’s favor, it is preserved. The issue would also be preserved if in response to a party’s protest, the trial court expressly decides an issue based on grounds cited by the People; therein, it unnecessary to object after the court’s ruling. See People v. Finch, 23 NY2d 408, 416 (2014). There was also no violation of defendant’s right to be present for sidebar conferences during jury selection under People v.

Antommarchi (80 NY2d 247, 250 [1992]); the right was waived. In his concurrence, Judge Fahey opines that the Sandoval issue was preserved, as the general protest resulted in an express decision by the court. The court’s error was, according to the concurrence, harmless.

People v. Leonard (2 cases) 29 NY3d 1 It’s nice to see a favorable Molineux decision once in a while. This is a unanimous decision, reversing defendant’s judgment of conviction. Judge Abdus-Salaam authored the opinion, which granted a new trial on defendant’s direct appeal and affirmed (as academic) his CPL 440 motion regarding ineffective assistance of counsel issues. The defendant was alleged to have sexually assaulted the under aged victim, who was asleep on a couch and intoxicated at the time. A very similar 2005 incident regarding the complainant and defendant was improperly admitted into evidence regarding the present (2007) allegations. The complainant did not recall the 2007 rape, but recalled the 2005 incident. The Court does an overview of the Molineux / Ventimiglia doctrine, which requires a balancing of probative versus prejudice before the non-exhaustive list of five exceptions (intent, motive, knowledge, common plan / scheme or identity) is considered. The highly prejudicial nature of the uncharged acts at bar “far outweighed” any probative value; this was propensity evidence. There was no need to provide this evidence as background information or to flesh out the narrative of the events either. Finally, no limiting jury instructions were provided. A new trial was ordered. Continued on next page

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Court of Appeals Continued from previous page

March 30, 2017 People v. Brahney 29 NY3d 10 This unanimous decision was authored by Judge Stein. The AD is affirmed. Consecutive sentences under PL §70.25(2) was authorized for defendant’s murder and burglary convictions. Defendant’s fatal stabbing of his exgirlfriend (by 38 stab or slash wounds) after dragging her down the stairs of the victim’s apartment, which defendant burglarized, was not all part of a singular act. Though a single transaction that constitutes one of the offenses and a material element (a necessary component) of the other offense cannot generally result in consecutive sentencing, the sentencing court had before it “separate and distinct acts.” See People v. Laureano, 87 NY2d 640, 643 (1996); People v. Salcedo, 92 NY2d 1019, 1022 (1998). Because the actus reus element for the murder and first-degree burglary charges here overlap (i.e., because of the aggravating burglary factor of causing physical injury), the identification of separate and distinct acts was required to justify consecutive sentencing. The People met their burden in establishing the legality of the sentencing.

People v. Valentin 29 NY3d 57 This successful People’s appeal reversed the AD. This is a 4 to 3 decision, authored by Judge Abdus-Salaam. Judge Stein dissented with Judges Rivera and Wilson joining in. There was no reversible error in the trial court instructing the jury with the “initial aggressor” exception (in use of deadly physical force) within its justification charge.


The purpose of the instruction is to aid the jury in understanding justifiable use of force; i.e., that a party is not required to wait until he or she is struck or wounded if it is reasonable to believe that deadly physical force is about to be used against the person. This shooting case resulted in a first degree manslaughter conviction. The victim had a mop handle and the defendant had a gun. Guess who won? The exchange between the two parties of mop handle-swinging and shooting took mere seconds. The instructions, viewed as a whole, did not likely confuse the jury regarding the correct rules to be applied in arriving at a decision. There was a reasonable view of the evidence that either the defendant or the victim was the initial aggressor. The dissent believed that no reasonable view of the evidence supported this instruction or the proposition that defendant was the initial aggressor in the conflict in question (wherein the parties exchanged attacks simultaneously).

People v. Sparks 29 NY3d 932 Another unanimous memorandum, affirming the AD. No justification defense charge was required in this assault prosecution. Viewing the evidence in a light most favorable to the defense, there was no reasonable view of the evidence that a reasonable person in the 19 year old defendant’s position would believe that the 50 year old victim threatened defendant with unlawful physical force, which would have justified defendant’s conduct. P.L. §35.15(1) and People v. Wesley, 76 NY2d 555, 559 (1990) (addressing subjective and objective elements of justification defense), are considered. See also generally People v. Cox, 92 NY2d 1002, 1004 (1998). A

verbal exchange between the parties here led to the defendant punching the victim and subsequently making comments indicating that he wanted to further hurt the victim. Instead of walking away as he was free to do, defendant then hit the victim in the face with a milk crate, causing a broken nose and cheekbone. He was convicted of second degree assault.

People v. Cook (Appeal #30) 29 NY3d 114 Judge Garcia authored this unanimous decision, affirming the AD. This People’s appeal is rejected. Only one county is permitted to render a SORA risk level determination based on a single set of current offenses. Here defendant had sex offense convictions, involving four young children, in the Counties of both Richmond and Queens. The Sex Offender Board assessed defendant for all of the offenses in question with 125 points (level 3) in a single risk assessment instrument (“RAI”). The DA’s Office litigated the SORA issue in Richmond County. When the Queens County DA attempted to do the same, the defendant unsuccessfully moved to dismiss, as it was duplicative. The Second Department reversed. The second of the SORA adjudications (in Queens) violated res judicata principles. While each sentencing court is required under Correction Law §168 to address SORA when it is applicable, the purposes of SORA in protecting against recidivism are accomplished in a single proceeding. The AD is thus affirmed, and DA’s Offices are told by the court to coordinate their SORA efforts in the future.

Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers

People v. Cook (Appeal #31) 29 NY3d 121 This is the companion appeal to Appeal #30, described above. Judge Stein authored this 5 to 2 decision, with Judge Garcia writing the dissent (joined by Judge Fahey). The AD affirmed, but the Court of Appeals reversed, reducing defendant’s presumptive risk level from 3 to 2. Factor #7 on the RAI is at issue regarding whether the defendant directed the crime at a stranger or promoted or established his relationship with any of his four young victims for the primary purpose of victimization. Factor # 7 also applies where the relationship arose in the context of a professional or avocational relationship (like a scout leader or bus driver) and the criminal actions were an abuse of that relationship. At bar, the children ranged from ages five through twelve. The SORA court found 20 points to be appropriate under factor #7, in that the defendant “groomed” his victims and changed his relationship with them to enable sexual abuse. Without these points, defendant would fall into the presumptive level 2 category. The Court provides an overview of the SORA statutory scheme under Correction Law §168, including its purpose in protecting the public from recidivism, with the hearing court not bound by the sex offender board’s risk level recommendation. The majority held that a pre-existing private relationship cannot qualify under Factor #7. The People did not establish their burden by clear and convincing evidence. Here, defendant knew his victims through long term relationships he had with childhood friends. There was a significant lapse of time before the abusive conduct began, including the defendant doing activities with the victims’ families. The Court concluded that the People’s arguments

conflated the “grooming” of victims and “promoting” of relationships. Grooming, in and of itself, is insufficient for this factor; it is the nature of the relationship in which the grooming takes place that is essential. Also, merely abusing trust in a non-professional relationship is not enough. Without these restrictions, the vast majority of sex offenders, who usually demonstrate some form of abuse of trust, would be covered by this “blanket assessment” without concern for the risk level accurately reflecting the offender’s danger to the community. In dissent, Judge Garcia opined that factor #7 covers a broad range of conduct, establishing pre-existing relationships as well. Child molesters are a significant concern under SORA because of the substantial harm caused if they reoffend. Here, according to Judge Garcia, defendant’s confession establishes that he promoted the relationships in question in order to victimize these children.

April 4, 2017 People v. Williams 29 NY3d 84 The Chief authored this unanimous decision, affirming the AD in this burglary and assault prosecution. The trial court did not abuse its discretion in permitting the People to utilize in summation annotated images of trial exhibits (moved into evidence) in a PowerPoint display. Defense counsel objected, as the annotations implied that the victim’s brother identified either the defendant or his vehicle. The jury, which was instructed before summation that the comments by attorneys are not evidence, was not misled. Following the summation, defense counsel unsuccessfully moved for a mistrial. Attorneys

must only make arguments in summation that are fairly inferable from the four corners of the evidence. Irrelevant and inflammatory comments that tend to prejudice the jury are prohibited. People v. Ashwal, 39 NY2d 105, 109110 (1976). There is nothing inherently problematic with utilizing a PowerPoint presentation as a visual aid in summation, as long as the presentation accurately reflects the evidence admitted at trial. Jury instructions remedied any misrepresented evidence here. Further, the jurors were free to examine the pristine original exhibits if they chose to. Defendant was thus not deprived of a fair trial.

People v. Anderson 29 NY3d 69 Judge Abdus-Salaam authored this 5 to 2 decision, which affirmed the AD. Judge Rivera wrote the dissent, joined by Judge Fahey. This Brooklyn homicide prosecution involved another PowerPoint summation presentation approved of by the court. There was no ineffective assistance of counsel by the failure to object to more than one of the PowerPoint slides. Again citing Ashwal, the court finds the prosecution’s presentation to be a relevant and fair commentary on the evidence. The majority judged the PowerPoint as it would an oral argument, requiring there to be a clear distinction between argument and evidence. Trial exhibits need not be presented in an unaltered, pristine form; captions and markings are permitted for purposes of presentation and the making of fair inferences from the evidence. The superimposed text here (i.e., “Two Gun Shot Wounds to back” and superimposed circles around items) was clearly not part of the trial (photo) exhibits and could not confuse Continued on next page

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Court of Appeals the jury. The added markings did not misrepresent the evidence. The jury was instructed that summations were not evidence, and the PowerPoint slides were not supplied to the jury during deliberations. The slides and the accompanying oral argument constituted fair comment by the prosecution. Judge Rivera, in dissent, reminds us of the significant emotional impact that visual presentations have on juries, making the analogy to mere oral argument comments inapplicable. Some useful secondary sources are cited here in support. As the People have the last opportunity to present to the jury, it is a huge advantage. One of the exhibits used by the ADA was defendant’s arrest photo surrounded by boxes containing facts, providing the image of defendant’s head appearing to be in a target. The image was bolstering and prejudicial, creating the risk of unreasonable inferences. Medical records were also misrepresented in the People’s summation regarding the number of gunshots. Limiting instructions were insufficient at bar. Counsel, according to the dissent, was ineffective for not objecting. See People v. Fisher, 18 NY3d 964, 967 (2012); People v. Wright, 25 NY3d 769, 780 (2015).



ions as a judge, authored a 43 page dissent analyzing, among other things, our state’s version of the Fourth Amendment (article I, §6) in historical terms. The AD is affirmed. The majority concluded that it did not have jurisdiction to address the Fourth Amendment issues in question, as appellant’s unsuccessful motion to quash the warrant at bar was not “appealable” as an interlocutory appeal. Appellant’s standing is not addressed by the majority.

The Matter of 381 Search Warrants Directed to Facebook,Inc. v. New York County District Attorney’s Office 2017 NY Slip Op 02586

The Manhattan DA’s Office was investigating social security disability fraud and sought records from Facebook (“FB”). Supreme Court issued 381 search warrants directed at FB. Based upon a finding of probable cause, the warrants sought subscriber information and content from user accounts, including profile information, contact and financial account info, photos, videos, historical login info and public and private messages. FB was prohibited from informing its subscribers about the warrants. FB unsuccessfully moved to quash the warrants, as they were overbroad and lacked particularity. The nondisclosure requirement was also challenged without success. Supreme Court found FB to lack standing. FB appealed to the AD and sought a stay. When the stay was denied, FB complied with the warrants. A number of the targeted FB users were indicted, and ultimately pleaded guilty. The AD dismissed the appeal, as there is no statutory authority for an interlocutory appeal in a criminal proceeding. FB unsuccessfully sought to have the AD treat the warrants like civil subpoenas.

Judge Stein wrote for the majority here in one of the more interesting jurisdictional decisions in recent memory. Judge Rivera wrote a concurrence and Judge Wilson, in one of his first opin-

In general, a civil subpoena is subject to a motion to quash; this is an appealable final order. However, a criminal search warrant is subject to the criminal rules of procedure created by statute, i.e.,




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Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers

under C.P.L. articles 450, 470 and 690. The right to appeal is born of specific statutory authority and no interlocutory criminal appeals are authorized. Under the separation of powers doctrine, this must be respected by the judiciary. So if you don’t like the search warrant utilized in your prosecution, you have to wait until you are sentenced before complaining to the AD. Moreover, no civil appeal is authorized from an order entered in a criminal proceeding, which is what occurred here. However, civil subpoena motions to quash are appealable as final orders in a special proceeding, even if related to a previously commenced criminal investigation. The federal statute in question permits a motion to quash a warrant regarding an already existing proceeding, not the commencement of a new and separate one. At issue here was Title II of the Stored Communications Act (“SCA”), 18 USC §2701 et seq., which was enacted with a balancing of privacy interests involving computer based content with legitimate law enforcement needs for information and the collection of evidence. Businesses are compelled to retrieve voluminous information and potentially suffer negative consequences to its reputation, as well as financially. Customers and third parties’ information are subject to being utilized by law enforcement in ways they had not expected. Under the statute, law enforcement may obtain information by a warrant, an administrative subpoena or a court order. The particular method sought is likely dependent on the type of service provider involved, the age of the communications at issue and whether content is being sought. If the information is 180 days old or less, then it has to be a warrant. Any of the three methods may be

utilized if no content is being sought. A motion to quash an SCA warrant may be filed where the records sought are unusually voluminous in nature or compliance would cause an undue burden on the company. FB argued that the “warrants” in question were more analogous to subpoenas than traditional warrants where law enforcement enters, searches and seizes evidence – rather than relying, as they did here, on the company to compile and turn over digital data under its control. The majority reasons that the service provider is simply better equipped to access records (which may be in multiple locations) and carry out such a search, which was conducted here so as to protect Fourth Amendment interests efficiently while minimizing intrusion into the business in question. The SCA warrants at bar provided protection for priority stored communications, and were not “civil by nature.” Federal courts have recognized that while warrants for electronic data are often served like subpoenas, they were intended by Congress to be treated like warrants because of the potentially significant Fourth Amendment implications involved. In sum, neither the Court of Appeals nor the AD had jurisdiction to entertain FB’s appeal. Accordingly, the court affirmed the AD’s dismissal of the appeal, which addressed both the motion to quash the warrant and FB’s motion to compel the disclosure of the affidavit submitted in support of the warrant. In her concurrence, Judge Rivera agreed with the majority that the matter is not appealable, but only because FB did not assert its grounds under the proper subsection (18 USC §2703[d]). Sub-

stantively, Judge Rivera generally agreed with Judge Wilson’s dissent in general regarding FB’s authority under the SCA to appeal its motion to quash denial. The privacy intrusions in question are even broader than our founders imagined when enacting the Fourth Amendment. In his dissent, Judge Wilson provides a well thought out analysis of our state version of the Fourth Amendment, which “reflects the American consensus that the general warrants… popular among British officials in colonial government… had no place in a nascent republic that so deeply abhorred arbitrary power.” Judge Wilson considered the 1938 state constitutional convention (this is topical, as it will be on the ballot again this November) when NY Const., Article I, §12 was adopted and approved. In it, there are explicit protections (in its second paragraph) against “unreasonable interception of telephone and telegraph communications.” So in our state constitution, we have the identical language of the Fourth Amendment plus explicit language addressing electronic communications. The delegates to the 1938 convention envisioned analogous concerns in telephone interceptions and what were known as party lines, as we are now facing on social media – that a third parties’ communications and information (incidental to the targeted parties) with be subject to law enforcement’s examination. Judge Wilson noted, among other things, Justice Brandeis’ dissent from Olmstead v. United States, 277 US 438, 475-576 (1928), wherein it was observed that “[t]he evil incident to invasion of the privacy of the telephone is far greater than that involved in tempering with the mails” because of the non-targeted third party who is also on the line. The Continued on next page

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Court of Appeals Continued from previous page dissent observed how broad the instant warrants were; they would include high school student users, photos, videos, user histories, private messages, doctor and attorney communications, previous e-mail addresses, deleted names and hidden posted messages. In sum, the dissent concluded that the motion to quash was indeed appealable, and that FB obtained standing through the SCA. The determination of appealability of warrants and subpoenas should not be done merely by reading the title of the document; rather, the circumstances under which they are issued should control. Here, the SCA warrants operate more like subpoenas than traditional search warrants, in that the data was produced for law enforcement from a neutral depository and was preserved so that a motion to quash could be filed. The denial of a motion to quash was a final decision in a separate proceeding, not an interlocutory criminal appeal, as the majority opines. Further, to hold otherwise is to allow state law to frustrate a federal right to appeal. Thought the majority sees them as viable alternatives, FOIL applications, Article 78 petitions and §1983 civil rights litigation would not address FB’s concerns.

May 2, 2017 People v. Smalling 2017 NY Slip Op 03442 This is a unanimous 6-0 memorandum, reversing the AD and ordering a new trial. The trial court, after agreeing during the charge conference not to charge the jury with constructive possession, charged it any way. This prejudiced the defendant. Under these unique circumstances, the error was not harmless.


People v. Valentin 2017 NY Slip Op 03444 This is a unanimous 6-0 decision, authored by the Chief Judge, affirming the AD. The underlying crime stemmed from a buy and bust heroin operation in Manhattan in 2010. The defendant, accused of a drug sale, presented an agency defense through cross-examination of the People’s witnesses without presenting defense witnesses. In general, a drug “sale” under Penal Law article 220 is not just the mere passing of drugs from one person to another. The agency defense addresses the principal that a person may be just an extension of the buyer; and not a “player” in the drug trade who is out to make a profit from the sale. Mere delivery of drugs does not involve the same culpability as an actual sale. Apparently, defendant was not found in possession of prerecorded money, and was seen walking and talking with the other main individual in the criminal transaction for 40 minutes, which was consistent with the two being just friends. An agency defense jury instruction was given. The People in response were permitted to present defendant’s 1997 drug sale conviction pursuant to the intent exception under the Molineux doctrine; limiting instructions were provided regarding this evidence. The prior conviction was relevant and the trial court, in performing the proper weighing process, did not abuse its discretion in admitting this evidence where the agency defense was raised.

People v. McMillan 2017 NY Slip Op 03446 This unanimous 6-0 decision was authored by Judge Stein. The court here affirms the parolee search standard

set out in People v. Huntley, 43 NY2d 175, 180-182 (1977). Though a parolee retains Fourth Amendment protections, he or she has a reduced expectation of privacy. A parole officer’s warrantless search must be rationally and reasonably related to the performance of his or her duties. Whether the search is conducted by a parole or police officer, the fact that defendant is a parolee is always relevant. The suppression motion here was properly denied. The detective here received a parole warrant for defendant’s arrest and provided defendant’s girlfriend with contact information in the event she saw him. The defendant’s girlfriend called the police to report that defendant was traveling in his vehicle with his son and a firearm. Defendant was arrested inside an apartment at a location where his vehicle was located. Inside the vehicle was a firearm. The information received by law enforcement created an individualized suspicion from a tip made by a known individual. The vehicle search was lawful and reasonable.

May 4, 2017 People v. Stone 2017 NY Slip Op 03559 This is a unanimous 6-0 decision, authored by Judge Rivera. The AD is affirmed. Defendant was convicted of stabbing his wife’s lover as the two of them attempted to hail a taxi. Defendant’s estranged wife identified defendant at first to the police, but then recanted to the DA’s Office and refused to show up for trial. A detective testified that he talked to the wife, and then conducted a computer check on the person indicated as the suspect (the defendant). Defense counsel objected and Continued on page 33

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By Brittany Brown and Meagan Hu

n the early spring of 2017, Jessica Pago1 was led out of Manhattan criminal court in handcuffs by immigration officers. What was meant to be a noneventful day in misdemeanor court – Jessica expected to resolve her case with a conditional discharge sentence – turned into a frantic, panicked, and traumatizing scene for both her and those who witnessed the ensuing chaos. When Jessica’s attorney was alerted to the presence of Immigration and Customs Enforcement (ICE) officers in court that day, she asked the judge to consider setting bail so that her client could avoid going directly into ICE’s custody after her case was over. This is because, thanks to New York City’s Detainer Discretion Law that was passed in 2014, the Department of Corrections will generally only honor ICE requests to hold a person if ICE first obtains a judicial warrant, and if the person in question

[A] troubling convergence between state criminal law and federal civil law is becoming an all-too-common phenomenon in our state court systems. was convicted of a violent felony in the past five years. This law has protected many noncitizens from being taken directly into ICE custody from New York City jails. In the half hour that the judge took to consider this request, the atmosphere in the courtroom was tense and fraught. Jessica was shaking and crying. The court sergeant mercifully let her use her cell phone in the courtroom to say goodbye to one of her brothers. Her attorneys tried to calm her while also trying to explain what was about to happen to her. And all the while, the courtroom was packed with 1 The client’s name has been changed for this article in order to protect her privacy.

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Immigration Continued from previous page other people waiting for their own cases Less acknowledged, but equally to be called, witnesses to the unfolding panic, confusion, and tears. Ultimately, important in this fight against the judge concluded that she was unable our nation’s worst nativist imto set bail and Jessica was sentenced. pulses is the role that criminal Everyone readied themselves to exit the courtroom. The moment that Jessica defense attorneys play. and her attorneys entered the vestibule, ICE officers began to apprehend her. As the arrest was about to happen, a court officer told the attorneys to leave the vestibule and would not let them witness Jessica’s arrest. This troubling convergence between state criminal law and federal civil law is becoming an all-too-common phenomenon in our state court systems. Since January 20, 2017, immigration lawyers have felt a renewed sense of urgency and purpose as they work to defend against these and other assaults on the rights of noncitizens issuing from the Trump Administration. Less acknowledged, but equally important in this fight against our nation’s worst nativist impulses is the role that criminal defense attorneys play, often as the first line of defense for noncitizens living in the United States. This article will provide an overview of how the immigration landscape has changed under the Trump Administration and explain how criminal defense attorneys can best prepare themselves to protect noncitizen clients. The Trump Administration wasted no time in implementing its aggressive immigration enforcement agenda. Just five days after assuming office, President Trump signed Executive Order 13768, “Enhancing Public Safety in the Interior of the United States,” which vastly expanded the categories of people subject to removal enforcement. Under the Obama Administration, the Department of Homeland Security (DHS) prioritized the deportation of people with criminal records, reasoning that since DHS has the resources to deport only a portion of the approximately 11 million undocumented people living in the United States, it would focus its enforcement efforts on only those with criminal records. Trump’s executive order, by contrast, no longer exempts any class or category of removable noncitizen from being detained and deported. It also calls for the hiring of 10,000 new immigration officers to enforce this new directive, and for increased state and local cooperation with ICE “to the maximum extent permitted by law.” Since this Executive Order went into effect, there has been a marked increase in ICE removal enforcement efforts throughout the country. While DHS Secretary John Kelly described these enforcement efforts as “routine, daily” operations targeting “public safety threats,” the reality of who is being targeted belies this claim. ICE officers are now arresting any removable noncitizen who crosses their paths, even if the individual does not have a criminal record. Moreover, these arrests are being conducted indiscriminately and without regard to humanitarian factors like rehabilitation, family ties, or length of time spent in the country. According to figures released by DHS, in the first three months of 2017, immigration arrests increased by 38 percent compared with the same period last year. Here in New York City, as of April 2017, the NYPD had already received 182 requests from ICE to


Brittany S. Brown received her JD from the Benjamin N. Cardozo School of Law in 2013. As a Cardozo Immigration Justice Clinic Fellow at Brooklyn Defender Services, she was part of the initial team of NYIFUP (New York Immigrant Family Unity Project) lawyers defending immigrant detainees in removal proceedings. For the past two years, she has been a “Padilla” attorney at New York County Defender Services where she advocates on behalf of non-citizen clients who have come into contact with the criminal justice system.

Meagan Hu received her JD from American University Washington College of Law. After law school, she was an Attorney Advisor at the U.S. Department of Justice, Executive Office for Immigration Review. She currently works as a Padilla attorney at New York County Defender Services alongside Brittany Brown, where she advocates on behalf of non-citizen clients who have come in contact with the criminal justice system.

Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers

The criminal justice system is in many ways ground zero for immigration enforcement activity. Whenever someone is arrested, local law enforcement agencies share fingerprint information with several national databases, to which DHS has access.

hold noncitizens in NYPD custody beyond the date of their scheduled release so that ICE could pick them up, whereas the NYPD only received 72 such requests in all of 2016.

The impact of this increased ICE enforcement activity is severe and detrimental. Advocates have already observed that the widespread fear, anxiety, and misinformation of these aggressive enforcement efforts dissuades immigrants and their families from reporting crimes or otherwise engaging with the criminal justice system. It also leads to their avoidance of schools, hospitals, and other civic institutions out of fear that involvement will lead to entanglement with immigration authorities. Far from the Executive Order’s stated goal of enhancing public safety, we may start to observe in the coming months that these federal policies have the opposite effect of making us all far less safe. The criminal justice system is in many ways ground zero for immigration enforcement activity. Whenever someone is arrested, local law enforcement agencies share fingerprint information with several national databases, to which DHS has access. In this way, a mere arrest can alert DHS to the existence and location of a potentially deportable noncitizen. From there, DHS can access publicly available information on WebCrims to find out the date and location of a client’s next court date.

Protestors block the bus and transport gate of the U.S. Immigration and Customs Enforcement building during the May Day rally in San Francisco, California, May 1, 2017. (Photo: John G. Mabanglo/EPA /Newscom)

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Immigration Continued from previous page Criminal defense attorneys therefore play a crucial role, as a noncitizen’s arrest is often the first time they’ve ever met with an attorney, and most noncitizens are unaware of the complexities of immigration law, from the types of criminal convictions that can render them deportable, to the types of benefits for which they may be eligible. The first arraignment, or post-arraignment, meeting with a client is an excellent opening to gather information about the criminal case, as well as biographical information that will be important for analyzing a client’s immigration situation. It is an especially important information-gathering opportunity for attorneys working in jurisdictions that do not have the protection of a detainer law so that attorneys can take immigration into consideration in devising a custody strategy. By developing certain interview strategies, defense attorneys can expedite the immigration analysis. See sidebar on page 29 for a suggested list of questions. It is crucial to keep in mind that noncitizen clients are often not identifiable by sight or even through conversation. It is not uncommon for a person to have been brought to the United States as a child and give no outward indication of not being native born. For this reason, it is critical to ask every single client, “Where were you born?” and explain that any contact with the criminal justice system is potentially dangerous for a noncitizen, regardless of status. Since immigration law is a notoriously complex area of the law, close collaboration with a criminal-immigration specialist is a necessity. A thorough criminal-immigration specialist’s primary responsibility is to advise about the potential immigration consequences of a guilty plea or trial outcomes. Time

permitting, a thorough screening may also allow the criminal-immigration specialist to inform the noncitizen client of eligibility for certain immigration benefits, including possible defenses in a deportation trial and any lawful statuses for which the client might qualify. Even though the consulting immigration attorney likely cannot take on full representation in immigration matters, the client will at least learn whether it is in their interest to hire a private immigration attorney.

Understanding the potential immigration consequences can also be used in negotiations with district attorneys. Prosecutors often need a reason to make a certain offer, and knowledge that a person could be spared deportation, or at least have a chance at fighting deportation, can be the basis on which a particular plea or sentence is crafted. It is also important to keep in mind that a case which seems hopeless at the outset because deportation appears unavoidable may be salvageable with Continued on page 26


Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers

Discovery Reform Lobby Day Support Bill A7292! On May 16, 2017, more than one hundred and fifty people from across the state descended on Albany for the first-ever Discovery Reform lobby day. NYSACDL was well represented, as President John Wallenstein, President-elect Rob Wells, Past President Andy Kossover, Vice President Ken Moynihan, Secretary Mark Williams and other Board members joined with the Chief Defenders Association of New York and grassroots advocacy groups Discovery for Justice, VocalNY and Katal Center for Health, Equity and Justice, along with people from around the state, to speak with legislators and their staffs to persuade them to support the repeal of the “Blindfold Law”. The effort is aimed at repealing CPL Article 240 in its present form, which as we all know forces us to work blind, without any true discovery; hence the moniker “Blindfold Law”. Together, defense attorneys and community members met with more than 100 elected officials to advocate for the repeal of the Blindfold Law and the passage of Assembly Bill A7292, which is modeled after the recommendations in the New York State Bar Association Report of the Task Force on Criminal Discovery (2015).

information about a charged offense or potential defense, regardless of whether the prosecutor considers the content exculpatory or intends to have the witness testify at trial. This modest non-partisan reform will go a long way towards bringing New York’s criminal discovery laws in line with the rest of the country, and will help to level the tilted playing field. NYSACDL will continue to advocate for passage of comprehensive discovery reform and repeal of the Blindfold Law. We are currently working to secure a Senate bill sponsor to help us bring the discovery reform bill over the finish line in the next legislative session. You can help; contact your own legislators and demand their support for A7292!

The bill, introduced by Assembly Codes Committee Chair Joseph Lentol (D, Brooklyn), incorporates best practices from across the country related to criminal discovery, and takes into account concerns from prosecutors and judges. The bill creates a calibrated, two-stage discovery time frame that gives prosecutors 90 days from indictment to obtain and turn over to the defense police reports, witness statements, and other discovery materials. It requires disclosure of written or recorded statements by all persons who the prosecutor knows have relevant

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Immigration Continued from page 24

In situations where a client’s best option is to plead to an offense that will render them deportable, it is often the best practice to file a direct notice of appeal. In some cases, the fact that a conviction is on appeal can prevent an immediate ICE arrest. It can also lead to the client’s release from immigration detention and the termination of their deportation case. In most cases, filing Yoko Ono, John Lennon and their immigration attorney, Michael Wildes (right), leave a direct notice of appeal and, where the Immigration and Naturalization Service in New York City on March 16, 1972. appropriate, the in forma pauperis motion, is the best course of action for a noncitizen client, but this practice should be discussed with the client and the consulting immigration attorney. Finally, defense attorneys can take certain steps to protect immigrant clients when ICE is present in the courtroom, such as advising clients to arrive early and to wait inside the courtroom instead of the hallway. If a client is arrested, clients should be advised to exercise their right to remain silent and not to sign anything. If the attorney has an opportunity to speak with ICE, ICE should be informed that the client is aware of their rights and should not be questioned without a lawyer present. If possible, defenders can also go on the record to detail ICE’s actions in court and request that the client be taken into state custody so that the criminal case is not impeded by the client being taken to a DHS detention facility. For more helpful tips, see the Immigrant Defense Project’s “Practical Tips for Defenders on ICE at Courts,” available at their website: www.immigrantdefenseproject.org. Immigration law, and specifically criminal-immigration law, is its own specialty. Criminal defense attorneys are not expected to be experts in both fields. But as the Supreme Court made clear in Padilla v. Kentucky, defense attorneys have a


Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers


creative problem solving. Perhaps there is a way to tweak the sentence or to advocate for an alternate penal subsection which would make a difference for the client’s immigration future. Similarly, a carefully crafted plea allocution could mean the difference in a person’s eligibility for permanent residency. For these reasons, it is always worth consulting with an immigration attorney when you are representing a noncitizen. For example, while a noncitizen is likely to become deportable if he pleads guilty to unlawful possession of marijuana, he may avoid becoming deportable if he specifies at the plea allocution that the amount of marijuana involved “less than 30 grams.” Sometimes pleading to a different subsection, such as one with a reckless mens rea, or a sentence of 364 days rather than one year, can preserve a client’s right to defend against deportation. And even if a client is already a prime target for ICE arrest, an immigration attorney can at the very least thoroughly advise a defendant on their rights if they encounter ICE officers, as well as what the client can expect from the immigration court system.

duty to make sure that their clients are informed of any immigration consequences that may result from a criminal case. 559 U.S. 356 (2010). Fortunately, the number of practitioners specializing in the “crim-imm” field is growing. Even if an office does not employ an immigration attorney, there are organizations and consultants readily available, and it is in every defender’s best interest to establish a relationship with a knowledgeable immigration attorney. The American Immigration Lawyers Association has a tool for locating local attorneys: http://www.ailalawyer.org/. Additionally, New York’s Office of Indigent Legal Services has set up Regional Immigration Assistance Centers to provide criminal-immigration law assistance to defenders throughout the state. To find the Regional Immigration Assistance Center closest to you, please consult their website: https://www.ils.ny.gov/content/regional-immigrationassistance-centers.

protect every client from deportation. But in Jessica Pago’s case, her defender’s actions in court that day and detailed understanding of her client’s circumstances meant the difference between Jessica spending weeks or months in immigration detention, and her release from ICE custody later that day. In the midst of the chaos in court, Jessica’s attorney explained to the arresting ICE officers that Jessica was being treated for serious mental health issues and would likely suffer a psychotic break if detained. Although she was still arrested, her defender was able to quickly retrieve a psychiatrist’s letter from the file and give it to Jessica to take with her. Thanks to this letter, she was released from ICE custody later that day after her psychiatrist was called and the contents of the letter were confirmed. Jessica is not out of the woods yet, as she is now in the process of fighting her deportation case. But she at least does not have to suffer the trauma of being separated from her family while she fights her case from immigration detention, thanks to her public defender’s quick thinking in court that day. A

Even the most diligent defense attorney will not be able to

Best Practices Questions to Ask When Interviewing a Noncitizen Client Where were you born? (Get in the habit of asking all clients this question, even if you think they are a U.S. citizen.) When did you first come to the United States? How did you enter the U.S.? (i.e. crossed the border, arrived with a visa) Have you ever had any interactions with ICE (the immigration police)? If you have left the U.S. since first entering, when was your most recent entry? Have you ever filed an application with immigration? What application and when was it filed? Do you have an immigration attorney?

Before Resolving a Case Make sure your client is fully informed of consequences of any decisions they are making. Decisions include taking a plea vs. going to trial, how they will allocute, and what the sentence will be. Consequences include not only whether a plea makes someone deportable, but also foreign travel, eligibility for future defense in immigration court, eligibility for future benefits and immigration status.

Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers


Our New Criminal Sealing Law Is a Win For Behavioral Economics By Alexander R. Klein, Esq.

We live in an era of labeling. Grocery stores highlight when their food is “Non-GMO,” shampoo bottles differentiate the “Volumizing” from the “Clarifying” from the “Everyday,” restaurants boast menu options that are “Gluten-Free,” and shoe companies offer “Walking Shoes” in addition to “Running Shoes,” which of course are not “Aerobic Shoes,” “Tennis Shoes,” “Basketball Shoes,” or “Cross Trainers.” These labels make for stressful days at the mall. But they also sprout from a principle of classical economics: that as rational actors, we make better decisions when we get as much information as possible.


Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers


hat happens when this basic assumption of rationality is wrong? What happens when labels draw too much attention? If it turned out that tennis shoes worked better for playing hoops than basketball shoes, for example, would Air Jordans fetch the same premium? If genetically modified food were just as healthy as non-GMO, would “Non-GMO” labels be alarmist?1

What if people with a short criminal record were just as good at their jobs as people who had never been arrested: would labels about their criminal background make for better—or worse—hiring decisions? In April 2017, New York State answered this question with a new pair of laws that, together, allow some people to apply for jobs without having their candidacies tarnished by criminal records. While these criminal histories add to the body of information otherwise available about job candidates, the state legislature recognized that such data can cause more harm than good—that they induce alarmism rather sobriety, fear rather than diligence. The mechanics of the law are straightforward. On one hand, under new CPL § 160.59, anyone with up to two convictions on their record can apply to have those convictions sealed, as long as only one of the convictions is a felony. Generally, the sealing process is available for any class of crimes other than certain sex or violent crimes, requires the passage of ten years from sentencing or incarceration, must include certain documentary evidence submitted by the defendant to the Court, and must be initiated by a motion on notice to the District Attorney’s Office.2 There cannot be any intervening convictions during and since the ten year period and having another open case pending would also make one ineligible for sealing. If and when courts grant these applications, “all official records and papers relating to the arrests, prosecutions, and convictions…on file with the division of criminal justice services or any court shall be sealed....”3 The new law does not, however, provide for expungement of the conviction as for example in New Jersey and Pennsylvania. In those states a person may petition for expungement of certain criminal dispositions and, if granted, the court will issue an order which clears the record completely; as though the arrest and disposition had not occurred. Alexander R. Klein is an associate in Barket Marion Epstein & Kearon, LLP, where he practices commercial litigation and white collar crime.

While the new sealing statute is not an expungement statute, amended Executive Law § 296 takes the legislation a step further towards leveling the playing field for job applicants. Unless specifically required or permitted by another statute, the amended law makes it an “unlawful discriminatory practice ... for any person [or entity] ... to make any inquiry about ... any arrest or criminal accusation of such in1 See, e.g., Cass Sunstein, On Mandatory Labeling, with Special Reference to Genetically Modified Foods, 165 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 1043 (2017). 2 See CPL §160.59(2-3). 3 See CPL §160.59(8). See also CPL §160.59(9) (making exceptions for certain agencies, including law enforcement; firearm licensors; employers of police or peace officers; and a division of the FBI that responds to queries on background checks for gun purchases).

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Criminal Sealing Continued from previous page dividual ... sealed pursuant to section ... 160.59....”4 So if Jane Doe got good grades in school, has strong work experience and a series of glowing reference letters, she is more likely now to get the new job she is qualified for rather than being turned down because of a mistake she made when she was 19. It is important to note that although potential employers cannot directly inquire about a sealed arrest or conviction, it is still possible that they may obtain information about such arrest or conviction via the internet, news accounts, or court reported decisions.

When we know that certain data will trigger a misguided heuristic, less information – about plane crashes, prior stock performance, others’ smoking habits, or decade-old crimes – can actually improve decision-making.

This law is a victory for behavioral economics. The uncomfortable point it makes—that more information is occasionally worse—is, after all, in the soil of what modern behavioral economists are emphasizing. In brief, people usually benefit from an additional strand of information, but sometimes they can be trusted to overvalue it to their own detriment. As Christine Jolls, Cass Sunstein, and Richard Thaler explained in A Behavioral Approach to Law and Economics,5 human rationality is imperfect. Our judgments in real life show “systemic departures” from how models suggest we should act. Our actual decisions “often violate the axioms of expected utility theory.” Or as others have stated more succinctly, we are “Predictably Irrational.”6 Rather than modeling human behavior on assumed rationality, economics and the law do better when they acknowledge where rationality breaks down.7 To simplify complex choices, for example, humans resort to rules-of-thumb—heuristics—that cause predictable errors. We measure risks by what makes headlines, so we fear planes more than cars.8 We predict the future based upon the past, so we buy stocks that have already skyrocketed.9 And we conform to other people’s choices, so we buy cigarettes when we see our favorite movie stars lighting up.10 Facing complicated decisions, we all want to make optimal choices. But when we know that certain data will trigger a misguided heuristic; less information—about plane crashes, prior stock performance, others’ smoking habits, or decade-old crimes—can actually improve decision-making. 4 See Executive Law §296(16) (excepting certain applications, like for firearms or jobs with law enforcement). 5 50 STANFORD LAW REVIEW 1471, 1477 (1998). 6 See Dan Ariely, Predictably Irrational: The Hidden Forces that Shape our Decisions (2010). 7 See, e.g., Russel B. Korobkin, Law and Behavioral Science: Removing the Rationality Assumption from Law and Economics, 88 CALIFORNIA LAW REVIEW 1051, 1074 (2010) (“legal scholars seeking to understand the incentive effects of law in order to propose efficacious legal policy should not be limited to rational choice theory”). 8 See, e.g., Cass Sunstein, Moral Heuristics (2004), at 3, available at: http://web.mit.edu/14.160/www/ papers/Sunstein%20on%20moral%20heuristics.pdf. See also Christopher Ingraham, The Safest—and Deadliest—Ways to Travel, THE WASHINGTON POST, WONKBLOG (May 14, 2015) (showing that from 2000 to 2009, for each 1 billion passenger miles, there were 0.07 deaths in planes versus 7.28 deaths in cars—meaning, car deaths were one hundred times more likely). 9 See, e.g., Breaking Down Finance, Representativeness Heuristic, available at: http://breakingdownfinance. com/finance-topics/behavioral-finance/representativeness-heuristic. 10 See, e.g., James D. Sargent, M.D., Smoking in Movies: Impact on Adolescent Smoking (2005), available at: http://tobacco.cleartheair.org.hk/wp-content/uploads/2012/08/SargentJames-SmokingMovies.pdf.


Every time I’ve done something that doesn’t feel right, it’s ended up not being right. —Mario M. Cuomo

Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers

As crude examples, consider how many people have achieved success despite having made mistakes in their youth. Barack Obama and George W. Bush both allegedly experimented with cocaine as youngsters.

Grounded in these principles of behavioral economics, New York’s new sealing law will benefit both employees and employers. Jane Doe will benefit by getting the job she wants, and Company XYZ will benefit by hiring a talented professional whom it otherwise would have spurned. This win-win stems from three basic platforms.

First, it is ensured by the law’s flexible methodology. The new sealing legislation does not permit sealing for everyone. It does not take a classic one-size-fits-all approach typical of government intervention. Instead it simply redirects questions about criminality and rehabilitation into more specialized hands: judges rather than HR reps. By text, the legislation requires courts to consider a wide array of factors before sealing a criminal record. Some factors are directly pertinent to hiring, like how sealing will affect the defendant’s “rehabilitation and ... reintegration into society,” the impact sealing will have “on public safety,” and “measures that the defendant has taken toward rehabilitation”; and others are more general, like the “amount of time that has elapsed since the defendant’s last conviction,” “statements made by the victim,” and the “circumstances and seriousness of the offense” for the matter in question or for any other convictions.11 Defense attorneys and judges consider factors like these every day. They form the backbone of most sentencing decisions. Yet many HR representatives have no experience with criminal law at all. By letting criminalrecord lifespans be determined by the justice system rather than the employment system, then, New York’s new rules promote a more appropriate division of labor.

Second, decade-old criminal records have little bearing on whether an employee will excel in a new company. As crude examples, consider how many people have achieved success despite having made mistakes in their youth. Barack Obama and George W. Bush both allegedly experimented with cocaine as youngsters,12 something they could have been prosecuted for if they had been caught.13 They eventually became the leaders of the free world. Further into the past, in his 30s Ted Kennedy famously pled guilty to leaving the scene of an accident causing bodily injury, a case where his victim was found deceased.14 He remained in Congress and went on to become the Lion of the Senate. Then even longer ago, a group of men executed a conspiracy to commit treason against the English Crown. After their rebellion proved successful, they became Founding Fathers of a country called the United States of America. Third, letting employers label people with old criminal records was over-aggressive even in theory. If companies wanted to hire people based on their morality, or 11 See, CPL § 160.59(7). 12 Raf Sanchez, A Brief History of Presidential Drug Taking, THE TELEGRAPH (Oct. 31, 2014), available at: http://www.telegraph.co.uk/news/worldnews/barackobama/11191599/A-brief-history-of-presidentialdrug-taking.html (quoting Obama as stating that, in his youth, “pot had helped, and booze; maybe a little blow when you could afford it”; and stating that Bush “has not denied that he used cocaine and gave up alcohol after a drunken blowout for his fortieth birthday”). 13 See, e.g., Penal Law § 220.03. 14 Ted Kennedy Car Accident in Chappaquiddick, NEWSWEEK (Aug. 3, 1969).

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Criminal Sealing Continued from previous page on their ability to follow rules, the natural question would In the end, criminal convictions are like plane be whether they have ever broken the law, not whether they have ever been caught doing so. The job applicant who launcrashes. They are often one-time freak events dered money is not more employable than the one who drove that have no bearing on dangerousness. Yet drunk—even if the launderer got away with it and the driver got arrested. By focusing only upon who gets arrested, employ- they receive headline attention and thus induce ers make hiring decisions often based on decisions by police people to make sub-optimal decisions rather than decisions by job-applicants. In doing so, they penalize job applicants who receive more police scrutiny as a discriminatory matter of course—like racial minorities. Making it harder to label people with criminal histories will make it harder for these offensive hiring practices to proliferate. In the end, criminal convictions are like plane crashes. They are often one-time freak events that have no bearing on future dangerousness. Yet they receive headline attention and thus induce people to make sub-optimal decisions—like staying in more dangerous cars or passing over more talented job applicants. Therefore, yes, more information is usually good and sunlight is often the best disinfectant. But when we know in advance that people will stare directly into the sun for too long, the law is occasionally warranted in stepping in with sunglasses. New York’s new sealing law is not a global solution to problems in the criminal justice system. But it is a small step in the right direction. A

The answer to injustice is not to silence the critic but to end the injustice.


—Paul Robeson

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Court of Appeals Continued from page 20 sought a mistrial, as the jury was not informed that the wife had recanted. The testimony was ordered by the court as struck from the jury’s consideration. The mistrial motion was denied, but the jury was further instructed that the wife was unavailable to testify. As it is assumed that the jury followed the trial court’s instructions (People v. Baker, 14 NY3d 266, 274 [2010]), any prejudice to defendant by the testimony in question was eliminated by the curative instructions. The Court of Appeals, though affirming again the state and federal constitutional rights to confront one’s accusers (NY Const., Art. I, §6; US Const., Amend. VI), found any constitutionally infirm inference from the detective’s testimony to be harmless, as the jury also knew that the detective had spoken to the victim as well, who did, in fact, identify defendant as the assailant. The court further rejected defendant’s arguments that: (1) the detective’s testimony transformed the case from a one to a two ID witness case; and (2) the wife’s testimony was analogous to a Bruton issue where a non-testifying co-defendant’s incriminating statement could not be crossexamined. Unlike the Bruton scenario, the wife here had not been implicated in the crime and had not been in allegiance with defendant.

People v. Bushey 2017 NY Slip Op 03556 Not a good Fourth Amendment decision for defendants. This is 6-0 unanimous decision, authored by the Chief Judge. Here the Court of Appeals affirms County Court’s reversal of Buffalo City Court’s suppression order. The defendant was pulled over in the early morning hours on the date in

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Anne J. D’Elia Brian J. DeSesa Karen L. Dippold Michael G. Dowd Steven B. Epstein Peter M. Frankel Mario F. Gallucci David I. Goldstein James P. Harrington Daniel J. Henry, Jr. Jessica A. Horani John Ingrassia Mark J. Mahoney Michael P. McDermott Oscar Michelen Kenneth Moynihan Marcos A. Pagan, III Steven K. Patterson Roland G. Riopelle Anastasios Sarikas Jay Schwitzman Richard Cary Spivack Oliver S. Storch Vivian Storch Cannon Scott B. Tulman John S. Wallenstein Harvey Weinberg Richard D. Willstatter James W. Winslow

The Defenders Circle is a donation program that benefits New York State Association of Criminal Defense Lawyers (NYSACDL) members, seminars, and programs. NYSACDL has experienced tremendous growth over the past several years in membership, seminar attendance, advocacy efforts and more. Defenders Circle members play a crucial role in ensuring that NYSACDL maintains its success and strength as the leading criminal defense organization in New York State. Donations* starting at $100 are included in the Defenders Circle. Among other benefits, Defenders Circle members will be showcased on the NYSACDL web site and in the quarterly Atticus publication. For more information on the Defenders Circle, including ways to donate, please visit https://nysacdl.site-ym.com/page/DC. *NYSACDL is a 501(c)6 organization. Donations are not considered tax deductible.

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Court of Appeals Continued from previous page question without driving erratically or committing a moving VTL violation. Instead, an observing officer in a parked vehicle, decided, without cause, to run a DMV check on defendant’s vehicle. The defendant’s license and registration had been suspended because of unpaid parking tickets. The officer pulled the defendant’s vehicle over, developed probable cause based on personal observations and arrested defendant for DWI. Following the lead of lower court, federal appellate and other states’ jurisprudence, the court concluded that law enforcement’s computer record search here was not a “search” for Fourth Amendment purposes. The Katz reasonable expectation of privacy standard was discussed. There is no such expectation in a publically displayed license plate on a vehicle, nor in the DMV database associated with a license plate number. Identifying the owner of a vehicle is an important public safety objective of DMV’s registration process. Law enforcement is authorized to conduct DMV database searches. The court also notes, though it seems unnecessary, that information provided to the DMV that ends up in its database is provided by drivers voluntarily. This is of no moment, as a lot of information that is voluntarily provided to both public and private entities may end up in privately kept business records (like in medical records for instance). It is the retention of potentially sensitive information not immediately accessible to the public, gathered in one location, that makes particular records private – not whether the information was voluntarily turned over to the record keeper. Factually, in contrast to People v. Ingle, 36 NY2d 413, 414 (1975), the police here had probable cause to pull over the defendant’s vehicle after the database


was searched, and before the stop occurred. The stop was not arbitrary. The mere potential threat of official misconduct in conducting a DMV search is not enough to characterize it as a search.

May 9, 2017 Matters of Acevedo, Carney and Matsen v. NYS Department of Motor Vehicles, et al. (3 cases decided together) 2017 NY Slip Op 03690 All three of these civil appeals (out of the Third Department) were affirmed 5 to 0 in a decision authored by Judge Garcia. Petitioners were recidivist drunk drivers subject to license revocation under the 2012 DMV regulations (15 NYCRR §136.5[b]). It’s worse than the tax code. VTL §1193(2) requires permanent license revocation for certain recidivist offenders; i.e., those with 3 alcoholrelated convictions in 4 years or 4 such convictions in 8 years. Permanent revocation renders an offender ineligible for relicensing, absent a waiver. But such revocation “shall be waived” after either 5 or 8 years, subject to certain conditions being met, on a case by case discretionary review by the DMV commissioner – based on the public safety and welfare. The regulations in question provide the DMV discretion to permanently revoke a driver’s license where a driver has 5 or more alcohol-related convictions in his or her life (15 NYCRR §136.5[b][1]) or 3 or 4 such convictions in the last 25 years with one so called “serious” driving offense (including, but not limited to, a fatal accident) (§136.5 [b][2]). If the offender has 3 or 4 such convictions

in the last 25 years with no so called “serious” driving offenses, the DMV shall deny the application for at least 5 years (§136.5 [b][3]). The petitioners’ re-licensing applications were denied, so they appealed. Four main issues were skillfully presented here, though not successful: (1) statutory conflict with the regulations, (2) separation of powers, (3) arbitrary and capricious nature of regulations, and (4) the improper retroactivity and ex post facto nature of the regulations. With regards to the separation of powers argument, an agency like the DMV is a creature of the legislature with powers expressly conferred by statute, as well as those required by necessary implication. Regulations must be consistent with the authorizing statute. Further, the duly elected legislature may not cede its fundamental policy making responsibility to the agency. Here, the DMV has properly been given broad authority in determining whether to grant or deny relicensing applications. Consideration of the factors set out in Boreali v. Axelrod (71 NY2d 1 [1987]), including the DMV’s expertise and technical competence in highway safety and license administration, led the court to conclude that the separation of powers doctrine had not been violated. Moreover, there was a rational basis for these regulations and ex post facto principals do not apply to these civil regulations. A

Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers

From the President

From the Editors' Desk

Continued from page 3

Continued from page 4

Criminal cases, no matter how heinous the crime or despicable the criminal, should be tried in the courts, not the press. We must do our utmost to counter the brash and irresponsible pronouncements of politicians. Our dedication to equal justice puts us in the forefront, and we must speak out loudly and often about the injustices we see daily.

dogged determination can turn the tide and secure an acquittal or reversal for their clients.

In between visits to beaches, mountains, and other fun places, the officers and directors have been working on our issues. Discovery is in the forefront, thanks in part to some favorable publicity, and the legislative committee is pressing for discovery reform as our top legislative priority. We are in the process of hiring a new lobbyist, and are hopeful that this session will bring a measure of success to our efforts to reform discovery and to rein in prosecutorial misconduct. Still, it’s long hard battle, and every member will be called on to assist in this fight… be ready for that call! And now, back to work…hope everyone has had an enjoyable summer and found time to relax. A

On a personal note from all of us at Atticus we are saddened to report the untimely passing of our Book Review Editor and former association president, Richard ‘Dick’ Barbuto this month. We will miss his friendship, his quick wit, and his unwavering mentorship of oth-

ers in support of this magazine and our association as a whole. Our work will not be the same without him.

Jessica A. Horani, Editor-in-Chief

From 90 State Continued from page 5 The State Criminal Justice Network conference followed the next two days. These meetings again provide a big picture view of the criminal justice issues being faced around the country, and the programs that have been explored as solutions. This meeting also provides the opportunity to network with key leaders across the country, members of NACDL Board and Staff, and potential sponsors for NYSACDL programming. Legislative Representation Interviews – Recently, members of the NYSACDL Executive Committee and Legislative Committee undertook the process of interviewing firms to continue NYSACDL outstanding representation in Albany. We look forward to announcing new legislative representation in September. This timing allows for planning before the beginning of the 2018 legislative session, where NYSACDL will once again tackle the important issues facing our members and clients. CLE Seminar Planning – Currently, I am working closely with the CLE Committee Chair and coordinators for each of the upcoming fall and winter CLE seminars. The full slate of CLE dates is available in this issue of Atticus. Please save the date and watch your email for information on all of the upcoming events! As you can see, the relaxing, slow days of summer have also been productive days for NYSACDL. As always, thank you for your continued support of NYSACDL! A

Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers


Book Review Lincoln in the Bardo By George Saunders (Random House, New York. 2017. 343 pp., with index. ISBN #9780812995343)

Churchill and Orwell: The Fight for Freedom By Thomas E. Ricks (Penguin Press. New York. 2017. 340 pp., with photographs and index. ISBN #9781594206139)

Will We Ever See Their Like? Reviewed by William E . McSweeney


ightweight clothing is in order for the summer, but lightweight reading isn’t mandatory. In this regard, I’m reminded of humorist S.J. Perelman’s choice of beach literature: Alban Butler’s four-volume “Lives Of The Saints.” Of course, the irreverent Perelman didn’t read the volumes – with their door-stop weight – he used them as a head-rest! Two new books – both of medium weight – shouldn’t be misused as headrests. Indeed, neither rests the head; both activate the brain, both incite a brooding over them long after they’ve been read. As regards their principals, to this reader the triumvirate is complete: Churchill, Orwell, Lincoln--my three gods.

The reviewer has been published in our pages and in those of the Quinnipiac Law Review, The ABA Journal, The New York Law Journal, and The New York Times. His review of Adam Hochschild’s “SPAIN IN OUR HEARTS: Americans in the Spanish Civil War” is to be published in the Fall 2017 number of The Quinnipiac Law Review.


To treat each of these subjects in inverse order: George Saunders’ “Lincoln in the Bardo” depicts the death of Willie Lincoln and its aftermath. The book interweaves the factual with the fanciful. To welcome in the New Year of 1862, parents Abraham and Mary throw a party; their son Willie, typhoid- ridden, lies in bed upstairs, within earshot of the ballroom fete. Willie dies not long

Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers

thereafter, and the contemporary press excoriates the Lincolns for their alleged fatal neglect. Thus the factual, the historical record. George Saunders deals with those days immediately succeeding Willie’s death. In an imaginative flight, Saunders presents a grieving, guilt-ridden Lincoln repeatedly entering the “bardo” – a Tibetan word that refers to Buddhism’s concept of a transitional state, one occurring after death and before re- birth, roughly analogous to the Catholic purgatory. Saunders’ transitional state is populated mainly by grotesqueries – calling to mind artist Hieronymus Bosch’s “The Garden of Earthly Delights” and its commingling of tortured, twisted human figures; its presence of fantastical animals; its lifeless frozen waterways. Saunders’ bardo for the most part is inhabited by those who had committed shameful acts while on earth, some now in varying stages of remorse, many in denial – the most serious denial being the non-acceptance of their death. Among them it is only the innocent Willie who is the realist. It is Willie--with his assertiveness, with his repeated cries to his father of “I’m dead, I’m dead!” – who finally liberates

Lincoln from his self-indulgent, profitless mourning. Thus liberated, Lincoln finally leaves Willie’s vault behind him. The effect of this period of remonstrance and ultimate acceptance of the loss of his beloved son is that death has now come home to Lincoln. A daily war casualty list would no longer be an abstraction; he would no longer read one with the same dispassion he had previously exhibited. Guided by the words of abolitionist Frederick Douglass – a “lenient war would be a lengthy war and therefore the worst kind of war” – Lincoln comes to understand that he must bring an end to the great engagement as ruthlessly and quickly as possible. Paradoxically, he must kill in order to stop the killing. (A century later General George Patton’s words would, in the obverse, echo those of Douglass: “The fast war is the humane war.”) To read Saunders’ brilliant – albeit bizarre--book is arrive at one’s own understanding: purgatory isn’t something suffered by the dead – what had the innocent ten-year-old that was Willie done to be denied immediate and everlasting rest? – purgatory is instead something imposed by the living upon

themselves. Loved ones are gone, they’re dead. We must grasp this. If, however, they lived worthy lives, they’re remembered fondly; in essence, then, they are eternal.


emembered fondly by author Thomas Ricks are Winston Churchill and George Orwell. In his excellent dual biography “CHURCHILL AND ORWELL: The Fight For Freedom,” Ricks reminds us that Churchill’s most memorable wartime speech was brilliant in its lack of bluff, of bluster. Indeed, to the close reader, it actually implies withdrawal, if not retreat, yet the words hold an indomitable defiance: “We shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender.” With this speech, Churchill made clear that England was not to be another Singapore, wherein English troops surContinued on next page

Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers


Book Reviews Continued from previous page rendered to a smaller Japanese Army. In time, the United States would enter the war, thus augmenting England’s forces; the Soviet Union would open the Eastern Front, thus diverting the Luftwaffe from its theretofore relentless bombing of England. Joined in battle by equally determined allies, England would ultimately see victory. But this victory wasn’t assured when Churchill gave his “never surrender” speech. At the time he gave it, he was essentially alone. Author Ricks persuasively argues that that time was Churchill’s greatest; the year was 1940. George Orwell’s greatest year was “1984,” published in 1949. He had been a Republican combatant in Spain during its civil war of 1936-’39, and had witnessed both the perfidy of the Stalinists, with their crushing of all dissent, and the intolerance of the Fascists, who would prevail and run Spain as a police state for the next 36 years. He came to see that totalitarianism – of left or right – offered no hope for individual freedom. In Orwell’s dystopian novel, dissidents vanish; history is nullified; liberty is extinguished; lovers, under torture, betray each other; evidence – objective truth--adduced by your eyes and ears is to be rejected; truth is what Big Brother says is the truth. Orwell was greatly influenced by John Stuart Mill’s “On Liberty,” which dealt with “the nature and limits of the power which can be legitimately exercised by society over the individual.” The essence of liberty, Mill argued, was in the province of the individual, “the inward domain of consciousness…liberty of


conscience…liberty of thought and feeling.” Orwell’s Winston Smith, in his forbidden diary, put it simply: “Freedom is the freedom to say that two plus two make four. If that is granted, all else follows.” “1984” enjoyed an immediate success, most especially in Europe. Readers in Soviet-dominated Czechoslovakia, East Germany, and Hungary suffered the shock of recognition. Who can say what influence Orwell’s novel had on their impulse toward freedom? The book would go on to be a lateral best-seller, year after year being read world-wide, to the point where its editions now number in the millions. Orwell died within a year of the novel’s publication; fame and wealth would come too late to be optimally enjoyed. The irony wouldn’t have been lost on Orwell, the ironist. Yet, he sought neither fame nor wealth. He sought truth and wished to convey it. He proved this when he quit the British Broadcasting Corporation. The war-time BBC quite naturally broadcasted propaganda favorable to England’s cause; to Orwell, no matter the “cause,” there was no such thing as “good” propaganda. He was thereafter hired as a columnist by his friend and “The Observer” publisher David Astor. His columns were carried under the rubric “As I Please,” and all of them manifested the spirit of the farseeing Orwell – an amalgam of eclecticism, independence, and honesty. Lincoln In The Bardo and CHURCHILL AND ORWELL: Two wonderful books. You may wish to enhance your summer by reading either or both. A

Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers

From the Defense Table Continued from page 9 In rebuttal, counsel called the ER nurse from Bellevue who administered the 10 mm and then Dr. Roy to say that both in ER rooms and at Rikers intake, 10 mm is just the minimum they give to anyone who presents with withdrawal symptoms. The amount has nothing to do with what would bring the patient back to “baseline.” Medical personnel always err on the side of caution because over-administration of methadone can cause death. Dr. Roy explained the policy at Rikers and Judge Dwyer unexpectedly allowed the defense to qualify her as an expert (the first time for her) in drug abuse to talk about the use of methadone, the physical symptoms of withdrawal, etc. The People put on Dr. Stuart Kirshner (their go-to expert on psychiatric issues) who had conducted a video interview of

client and concluded that he was malingering by pretending to be of lower intelligence than the Doctor believed him to be. Dr. Kirshner argued that, “Of course, everyone understands Miranda. It’s part of the national c1ulture, like hotdogs and baseball.” Kirschner further attacked the defense arguments regarding their client’s borderline IQ of 70 by presenting his opinion that the client’s “adaptive functioning” was very high, “He’d managed to sell drugs, didn’t he? That shows he knows how to get along when it serves his purposes.” According to the jury post acquittal, all but one agreed that counsel’s client did not voluntarily waive his Miranda rights. Many of the jurors also agreed with the defense arguments that due to the client’s intoxication he was incapable of forming the intent for the crime.

Following the acquittal defense counsel walked their client out of the courtroom after he had spent the last four years in jail. His mother was waiting for him in the hallway as well as several jurors who were there to greet him, hug him, and offer words of advice for the future. Defense counsel put in extensive work into challenging the charges and the Miranda waiver, but they also credit their sympathetic client. When he appeared on the video interview with Dr. Kirshner, their client cried, said he was sorry to his mom, and said his favorite movie (when asked by Kirshner) was “the one where Ralphie gets the BB-gun and is afraid about shooting his eye out.” He didn’t remember the name. How can you hate a guy – even this big, burly, troubled man – when his favorite movie is “A Christmas Story.” A

Senator Sam Ervin: “Compelled”. Does not the word “compelled” imply coercion or compulsion? Thurgood Marshall: It implies coercion or compulsion, the degree not to be determined. Senator Ervin: And not voluntary action?
 Marshall: Voluntary can follow compulsion.
 Senator Ervin: It can also precede it, can it not ? Marshall:Yes, sir. I tried a case in Oklahoma where the man voluntarily confessed after he was beaten up for 6 days. He voluntarily confessed. — Senate Hearings re: nomination of Thurgood Marshall to the Supreme Court; (July 14, 1967)* * SHOWDOWN by Wil Haygood (Vintage Press 2015)

Atticus | Volume 29 Number 3 | Summer 2017 | 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


Save the Dates for NYSACDL Fall CLE! Lead Sponsor

Hudson Valley Criminal Defense Seminar

Weapons for the Firefight

Friday, October 20, 2017

Friday, December 1, 2017

Hampton Inn New Paltz New Paltz, NY

New York Law School New York, New York

Faculty & Topics Include: Representing the Addicted Client – Panel Presentation Moderated by Michael Baker, Esq. Defending the Veteran Client in Criminal Court – Art Cody, Esq. What Every Lawyer Needs to Know About DNA – Benjamin Ostrer, Esq. Central New York Criminal Defense Seminar

Saturday, November 18, 2017 Lead Sponsor

Syracuse University College of Law Syracuse, New York Faculty & Topics Include: Objections & Preserving the Record: Trial Skills & More – Robert G. Wells, Esq. & Philip Rothschild, Esq. Courtroom Demonstrative Aids: Powerpoint & More – Jill Paperno, Esq. Important DWI Topics for 2017 – John Ingrassia, Esq.


Superstar Trial Seminar Friday, December 8, 2017 U.S. District Court for the Western District of New York Buffalo, New York Visit http://nysacdl.site-ym.com/events/ event_list.asp for registration information. These programs are approved for new lawyers. NYSACDL is accredited by the New York State Continuing Legal Education Board and by the New Jersey Board on Continuing Legal Education as an approved provider. NYSACDL provides tuition assistance to attorneys showing hardship.

Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers

Important immigration topics with Joanne Macri and James Milstein –Adirondack Criminal Defense Seminar

NYSACDL Vice-President Arnold Levine and David Cohen present “Cross of the CSAAS Expert” which included a demonstration. –Cross to Kill 2017

Kenneth Montgomery gave tips on Controlling the Unpredictable Witness at Cross to Kill 2017

Dr. Nancy Franklin and Molly Gallivan of Brooklyn Defender Services discuss using an ID Expert to Shape Cross-Examination at Cross to Kill 2017

NYSACDL Board member Tucker Stanclift using volunteers to lead a cross-examination demonstration. –Adirondack Criminal Defense Seminar 2017

Over 150 people attended NYSACDL’s Cross to Kill 2017 seminar at New York Law School

Don Rehkopf leading an ethics presentation on Prosecutorial Misconduct –Adirondack Criminal Defense Seminar

NYSACDL President-Elect presents “Cross-Examination: If Anything Can Go Wrong, IT WILL!” at Cross to Kill 2017

NYSACDL members at May’s free Ethics CLE sponsored by the NYSACDL Foundation and the Center for Appellate Litigation. Thank you to CAL and Board member Claudia Trupp for their work on this program

NYSACDL Vice-President Timothy Hoover discusses thinking differently and creatively in defending a federal case –Important Topics for Federal Practice 2017

Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers


NYSACDL Membership

The Largest Criminal Defense Bar Association in New York State



John S. Wallenstein, Garden City

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 Renee Hill E. Stewart Jones Kathryn M. Kase Ray Kelly Lee Kindlon Terence L. Kindlon Seth Kretzer Gerald B. Lefcourt David L. Lewis

PRESIDENT-ELECT Robert G. Wells, Syracuse

FIRST VICE PRESIDENT Lori Cohen, Manhattan

VICE PRESIDENTS Arnold J. Levine, Manhattan Jessica Horani, Manhattan Timothy Hoover, Buffalo Alice Fontier, Manhattan Kenneth Moynihan, Syracuse

SECRETARY Mark Williams, Olean

TREASURER Alan S. Lewis, 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 Stacey Richman Todd J.W. Wisner

PRESIDENT’S CLUB MEMBERS George Goltzer Kevin D. O'Connell Benjamin Ostrer Joel B. Rudin

SUSTAINING MEMBERS James A. Baker Joseph R. DeMatteo Anne J. D’Elia Brian J. DeSesa Karen L. Dippold Michael G. Dowd

Peter M. Frankel Mario F. Gallucci David I. Goldstein James P. Harrington Daniel J. Henry, Jr. Jessica A. Horani John Ingrassia Mark J. Mahoney Michael P. McDermott Oscar Michelen Kenneth Moynihan Marcos A. Pagan, III Steven K. Patterson Roland G. Riopelle Anastasios Sarikas Jay Schwitzman Richard Cary Spivack Oliver S. Storch Vivian Storch Cannon Scott B. Tulman John S. Wallenstein Harvey Weinberg Richard D. Willstatter James W. Winslow

NYSACDL WELCOMES OUR NEW MEMBERS (AS OF AUGUST 2, 2017) ALBANY COUNTY Ingrid A. Effman Nicholas L. Zapp CALIFORNIA Nicholas Tziavaras CLINTON COUNTY Mark Anderson Rebecca L. Fox Patrick J. McFarlin Tina J. Soloski FRANKLIN COUNTY Claire E. Knittel


KINGS COUNTY Lee Bergstein Ezra Levy Hannah McCrea Catherine Gonzalez Pena


MADISON COUNTY BreAnna Leigh Avery

NEW YORK COUNTY Andrea Babinec Karloff Commissiong Rick Jones Evan Krutoy Vimal Shah Amanda Shoffel




ONONDAGA COUNTY Kathleen M. Dougherty Laura A. Fiorenza David B. Savlov

SUFFOLK COUNTY James McCarthy Glenn Obedin



WASHINGTON COUNTY Elizabeth Franklin-Best

Atticus | Volume 29 Number 3 | Summer 2017 | 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 Chair: Richard Wilstatter Members: Marc Fernich, Timothy Murphy, Claudia Trupp

ANNUAL DINNER COMMITTEE Chair: Robert Wells (dfndr@hotmail.com) Members: Lori Cohen, Timothy Hoover, Andy Kossover, Arnold Levine, John Wallenstein

LEGISLATIVE COMMITTEE Chairs: Andrew Kossover (ak@kossoverlaw.com); Amy Marion (amarion@barketmarion.com) Members: Bruce Barket, Wayne Bodden, Anthony La Pinta, Greg Lubow, Aaron Mysliwiec, Alan Rosenthal, Lisa Schreisbersdorf

MEMBERSHIP COMMITTEE CONTINUING LEGAL EDUCATION COMMITTEE Chair: Arnold Levine (Nyccrimlaw@aol.com) Regional Coordinators: Buffalo: Brian Melber, Timothy Murphy Rochester: Donald Rehkopf, Jr., Andre Vitale Syracuse: Kenneth Moynihan, Craig Schlanger Capital Region/Saratoga: Allison McGahay, Tucker Stanclift Hudson Valley: Andrew Kossover, Benjamin Ostrer Long Island: Steven Epstein, Steven Kunken New York City: Yung-Mi Lee, Arnold Levine, Richard Willstatter

FEDERAL PRACTICE COMMITTEE Chair: Mark Hosken (Mark_Hosken@fd.org) Members: Mitchell Dinnerstein, Timothy Hoover, Anthony La Pinta, Arnold Levine, Elizabeth Macedonio, Kenneth Moynihan, Lisa Peebles, Robert Wells, Richard Willstatter

FINANCE AND PLANNING COMMITTEE Chair: Alan S. Lewis (lewis@clm.com) Members: Lori Cohen, Andrew Kossover, John Wallenstein, Susan Walsh, Robert Wells

INDIGENT DEFENSE COMMITTEE Chair: Michael Baker (mbaker@co.broome.ny.us) Members: Stephanie Batcheller, Alice Fontier, Mark Hosken, Timothy Murphy, Kevin O’Connell, Lisa Peebles, Mark Williams

JUSTICE COURTS COMMITTEE Chair: Greg Lubow (gdlubow@gmail.com) Members: Craig Schlanger, Peter Dumas, Mark Williams

Chair: Steven B. Epstein (sepstein@barketmarion.com) Members: Peter Dumas, James Grable, Jr., Steven Kunken, Amy Marion, Allison McGahay, Brian Melber, Michael Shapiro

MILITARY/VETERANS AFFAIRS COMMITTEE Chair: Donald Rehkopf, Jr. (drehkopfjr@brennalaw.com) Members: Kenneth Moynihan, Andre Vitale, Mark Williams

PROSECUTORIAL AND JUDICIAL COMPLAINT COMMITTEE Chair: Marvin Schechter (marvin@schelaw.com) Members: Dan Arshack, Clare J. Degnan, Jane Fisher-Bryialsen, Russell Schindler, Don Thompson, Robert G. Wells (NYSACDL President-Elect), Richard Willstatter; Bennett Gershmann (Advisory Member), Ellen Yaroshefsky (Advisory Member)

PUBLICATIONS COMMITTEE Chairs: Jessica Horani (jhorani@nycds.org) Members: Richard Barbuto, Alan Lewis, Eric Nelson, Benjamin Ostrer, Claudia Trupp, John Wallenstein

PUBLIC STATEMENTS COMMITTEE Chair: John Wallenstein (JSWallensteinEsq@outlook.com) Members: Lori Cohen, Lawrence Goldman, Jessica Horani, Andrew Kossover, Robert Wells, Richard Willstatter

WHITE COLLAR CRIME COMMITTEE Chairs: Michael Shapiro (MShapiro@clm.com) Members: Joshua Dratel, Moe Fodeman, James Grable, Jr., Timothy Hoover, Alan Lewis, Brian Melber, Florian Miedel, Aaron Mysliwiec

LAWYERS STRIKE FORCE ASSISTANCE COMMITTEE Chair: John Wallenstein (JSWallensteinEsq@outlook.com) Members: Marc Fernich, Timothy Hoover, Richard Willstatter

Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers



New York State Association of Criminal Defense Lawyers

Membership Application Please print or type

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

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

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

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

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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

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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 29 Number 3 | Summer 2017 | 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 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers


In Memoriam Dick Barbuto 1949-2017


YSACDL mourns the passing of Past-President Richard “Dick� Barbuto, who left us far too soon at age 68, on August 14, 2017, at Northeast Georgia Medical Center, surrounded by his family. Dick had lived in Georgia for the past six years, and although diabetes had taken his sight, he kept his unique sense of humor and his positive attitude towards life. He occupied his time writing the Low Vision Laughter blog, heading up a writing group, administering the Criminal Lawyers Group on Facebook, and serving NYSACDL still, as Book Review and Acquisitions Editor of this magazine. Dick was born in Weymouth, Massachusetts, and as a native of that state, can be forgiven for being a Red Sox fan. He began his New York legal career as an Assistant District Attorney in Queens County, and later moved on to the office of the Special Prosecutor for Nursing Homes. He was in private practice as a criminal defense lawyer for many years, based in Nassau County, where he served as President of the Nassau County Criminal Bar Association. Dick Barbuto

Dick was a talented trial lawyer, and handled many appeals as well, especially as his sight failed. He served as mentor to many young lawyers, and was always available to answer a question or offer some sage advice. Always fast with a quip or a joke, he found humor in many situations, and used it to his advantage. His continued work for NYSACDL, especially his dedication to Atticus, will be sorely missed. NYSACDL offers its deepest condolences to his wife and family.


Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers

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Atticus | Volume 29 Number 3 | Summer 2017 | 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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Atticus Summer 2017 - Vol 29 No 3  

In This Issue: Immigration and Criminal Courts - Brittany Brown & Meagan Hu; Criminal Sealing Law - Alexander R. Klein; Amicus Curiae Report...

Atticus Summer 2017 - Vol 29 No 3  

In This Issue: Immigration and Criminal Courts - Brittany Brown & Meagan Hu; Criminal Sealing Law - Alexander R. Klein; Amicus Curiae Report...

Profile for nysacdl