Atticus - Winter 2019; Volume 31, Number 1

Winter 2019 | Volume 31 | Number 1

ATTICUS INSIDE this

Women For Justice 2019 NYSACDL Foundation

Annual Dinner

ISSUE 3

Message from the President

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Editorial

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Incoming President Message

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Letter to the Editor

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Dispatches from 90 State

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From the Defense Table

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Court of Appeals

By Timothy Murphy, Esq.

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Fundamental Principles of Breath Testing

By Steven Epstein, Esq.

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Bail Reform

By Mark Cohen, Esq.

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In Memoriam – Ken Strutin

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Cutting Edge CLE

New York State Association of Criminal Defense Lawyers

Publication of the New York State Association of Criminal Defense Lawyers

Award Recipients

The Honorable

Isabelle Kirshner, Esq.

Colleen McMahon Hon. William Brennan Award for Outstanding Jurist

Thurgood S. Marshall Award for Outstanding Criminal Practitioner

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Lori Cohen, Esq.

NYSACDL incoming president Page 5

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 2019 PRESIDENT Lori Cohen, Manhattan

Yung-Mi Lee, Brooklyn Elizabeth E. Macedonio, Manhattan Allison M. McGahay, Lake Placid Brian Melber, Buffalo Cheryl Meyers-Buth, Buffalo Timothy P. Murphy, Buffalo Grainne E. O’Neill, Brooklyn Jill Paperno, Rochester Donald G. Rehkopf, Jr. Russell A. Schindler, Kingston Tucker C. Stanclift, Glens Falls Donald Thompson, Rochester Karen Thompson, New York Claudia Trupp, Manhattan Mark S. Williams, Olean

PRESIDENT-ELECT Timothy Hoover, Buffalo FIRST VICE PRESIDENT Arnold J. Levine, Manhattan VICE PRESIDENTS Michael T. Baker, Binghamton James W. Grable, Jr., Buffalo Jessica Horani, Manhattan Kenneth Moynihan, Syracuse Susan J. Walsh, Manhattan SECRETARY Alice Fontier, Manhattan

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 John S. Wallenstein Robert G. Wells

IMMEDIATE PAST PRESIDENT Robert G. Wells, Syracuse

TREASURER Alan S. Lewis, Manhattan (To Be Appointed 1/17/19)

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

DIRECTORS: Stephanie Batcheller, Albany (NYSDA Designee) Edgar De Leon, Manhattan Peter A. Dumas, Malone Steven B. Epstein, Garden City Renee Hill, Bronx John Ingrassia, Newburgh Scott Iseman, Albany

EXECUTIVE DIRECTOR Jennifer Ciulla Van Ort, Albany

Ensure NYSACDL’s Continued Success with a Donation to The Defenders Circle!

The Defenders Circle benefits 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.

Yes, I want to join the Defenders Circle at the level below*! □ Champion

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Method of Payment:  Check made payable to NYSACDL  Please charge my (circle one): Visa MC AMEX Discover Card Number: ______________________________________________ Expiration Date: _______________ CVV Code: __________

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Return Completed Form to Executive Director Jennifer Van Ort/Registration Table or Mail To: NYSACDL, 90 State Street, Ste 700, Albany, NY 12207 Thank you!

*NYSACDL is a 501(c)6 organization. Donations $100 and over receive recognition online and in Atticus.

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Ensure| NYSACDL’s Continued Success with a Donation toAssociation The Defenders Circle!

Atticus Volume 31 Number 1 | Winter 2019 | New York State of Criminal Defense Lawyers

The Defenders Circle benefits 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

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 Robert G. Wells As this is written, the year 2018 is coming to a close, although you won’t read this until 2019. The lessons, challenges and accomplishments of 2018 remind each of us to remain steadfast in our jointly sworn purpose and goal of obtaining Justice for our clients. As individual criminal defense lawyers standing up for other human beings in the courtrooms across our state each and every day, we are acutely aware of what this demands of us.

Moreover, this past year’s events and occurrences have strengthened NYSACDL in its dedication as an organization laboring to achieve Justice. Our focus has included working within our laws as they exist, and by bringing about change in those laws in our trial courts, appellate courts, and even more directly through legislative change in Albany.

We have seen proposals for Criminal Justice Reform to our cash bail system, and for how the promise of a speedy trial will be more fairly and meaningfully implemented. 2018 has seen proposed changes to bring transparency and fundamental fairness to the discovery process, thus hopefully ensuring that people do not have to guess from behind a legal blindfold about the evidence in the case against them when being asked to make choices with dreadful consequences, such as being placed into the state penitentiary.

Dialogue and repeated meetings between NYSACDL (along with representatives of other organizations) and the lawmakers who can enact these changes has finally commenced and continues in earnest. The depth of analysis and examination of these issues by lawmakers is unprecedented. NYSACDL’s officers, legislative committee, and members have repeatedly travelled to Albany throughout the legislative session, meeting with legislators and their staffs, participating in efforts with many organizations, and conducting or participating in several press conferences to help illuminate these fundamental reforms. NYSACDL is a recognized and respected force for change in Albany.

The most concrete example of NYSACDL’s success this year is the passage into law by the legislature and the Governor of the statewide Prosecutorial Conduct Commission. Our members have never worked more diligently, nor more effectively, to create such a monumental law ensuring accountability of our state’s prosecutors.

There has never been such a law as this, and it is an achievement of which we can justly be proud. NYSACDL and its efforts were instrumental in making this real.

Your Legislative Committee has proven itself, in what amounts to in its truest sense Continued on page 10

Atticus | Volume 31 Number 1 | Winter 2019 | New York State Association of Criminal Defense Lawyers

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From the Editors’ Desk

EDITORS Jessica Horani, Editor in Chief John S. Wallenstein Ben Ostrer

A publication of the New York State Association of Criminal Defense Lawyers ©2019 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 Editor, Jessica Horani.

Contact Jessica at jhorani@nycds.org

John S. Wallenstein, Jessica Horani, Ben Ostrer The esteemed Ruth Bader Ginsburg, “The Notorious RBG”, to her millenial followers, famously flipped the script when describing the number of women she thought should be seated on the Supreme Court; “When I’m sometimes asked when will there be enough [women on the Supreme Court] and I say, ‘When there are nine,’ people are shocked. But there’d been nine men, and nobody’s ever raised a question about that.” In that spirit, NYSACDL welcomes our first female president in a decade, as Lori Cohen takes the helm. Cohen will be only the fourth woman to lead our organization, but the criminal defense world has many women doing noteworthy things and taking on leadership responsibilities and our new president is one of the best. She will represent our organization with strength, innovation, and clarity of purpose. Cohen is an accomplished defense attorney who is one of very few women assigned to the Manhattan 18-B Homicide Panel, as well as the SDNY CJA panel. Her participation as a mentor in the SDNY diversity mentoring program demonstrates her commitment to increasing true diversity among our ranks, and to training the next generation of defense lawyers. Her exemplary reputation for trial work and leadership within the community of defense lawyers in New York City is well known and it is a boon to this organization that our statewide membership will now benefit from her leadership.

At our annual dinner we will honor two more exemplary women: defense attorney Isabelle Kirschner, a partner at Clayman & Rosenberg, LLP, and the Honorable Colleen McMahon, Chief U.S. District Judge, SDNY. Both of these women should be recognized for the strides they have made in their field and the dedication and contribution each makes to the field of criminal justice. Our dinner will stand out this year, not only due to the individual merit of our honorees and the president we will install, but because all of them are women. This heightened visibility and recognition of women in our historically male dominated field makes our organization as a whole stronger. Women in criminal defense don’t all practice the same way, don’t all share the same courtroom style, and can’t all simply be pigeonholed as ‘female defenders’. They are criminal defense attorneys and the unique talents and individual experience each brings to defense of the accused enriches the nature of our work for everyone. I am so proud to be a Board Member of an organization that recognizes the importance of increasing the visibility of women in our field in this way.

As our new president looks to encourage membership among newer attorneys and law students, we are sharing an article on Intoxilyzer basics by long time contributor and NYSACDL Board member Steven Epstein. Epstein, one of our experts in Continued on page 47

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Atticus | Volume 31 Number 1 | Winter 2019 | New York State Association of Criminal Defense Lawyers

Message from the Incoming President

By Lori Cohen Lori Cohen has spent over thirty years defending those accused of crimes. During her career she has handled many notable cases, including one of the first cases aired on CourtTV, one of the first individuals charged with terrorism in New York State and the case that formed the basis of the documentary “Out in the Night.”

Lori graduated from the University of Buffalo, School of Law in 1986, winning the President’s Medal of Excellence, and started her career at the Legal Aid Society’s Criminal Defense Division. There, she learned the craft of representing those accused of crimes. In 1991, she opened one of the few women owned boutique litigation firms. Concentrating on criminal defense work, Lori tried over 175 cases to verdict. She is one of the few women certified to handle homicides by the New York County Assigned Counsel Plan, for the First Department of New York, going on to try over 20 homicides to verdict. She has won acquittals of murder charges in both federal and state courts.

Lori has lectured on various topics. She has taught Trial Advocacy at the Cardozo School of Law Intensive Trial Advocacy Program and has taught Criminal Justice and Constitutional Law at CUNY. Lori was appointed to the Central Screening Panel for the Assigned Counsel Plan for the First Department, has served on the Boards of LeGal and New York County Defenders Service. She has provided substantial pro bono presentation, including advocacy for activists arrested during protests.

As I embark on my year as President of the New York State Association of Criminal Defense Attorneys, I am excited to usher in some new initiatives and promote some of the great work that NYSACDL has done, but that goes unrecognized.

Rob Wells is to be congratulated on his successful stewardship of our organization over the past year. Presiding over a group of vociferous defense attorneys with strong personalities is not an easy task, but Rob managed it with aplomb. Congratulations Rob. One of the most frequent questions I am asked (aside from how can you defend those people) is why should I belong to NYSACDL, what can they do for me?

We must do a better job advising our members, and the defense bar in general, of our successes. NYSACDL, through lobbying and our fantastic Amicus Committee, have been involved in many of the criminal justice successes of the past several years. We have become one of the leading groups lobbying for criminal justice reform in New York State. NYSACDL led the effort to pass the Prosecutorial Conduct Commission, working directly with Senator DeFrancisco and others to hold prosecutors accountable for their actions. We are now leading the efforts on discovery reform, a long-term goal that seems even closer to realization. Our Amicus committee has written briefs on many topics that have led to momentous changes in our practice, including a recent win in the Court of Appeals regarding the right to a jury trial for B misdemeanors in New York City for people facing removal upon conviction.

While these benefits can sometimes feel removed from our daily practice, NYSACDL’s efforts in these areas have a long lasting impact on the practice of law in New York State. The value of these efforts should not and must not be underestimated.

In addition, NYSACDL is the leader in providing criminal defense information and knowledge to practitioners in NYS. We give numerous CLEs each year, across the state, on relevant and topical issues. Our speakers are always ranked highly by those in attendance and the information they impart is top notch. NYSACDL operates the infamous listserv – which can be a reliable source of information. We are striving to make the listserv experience more user friendly and less of a source of irritation.

Perhaps once of the most important benefits of NYSACDL membership is belonging to the larger criminal defense community. The work we all do on a daily basis is the very foundation of our democratic society. It can be difficult and sometimes Continued on page 39

Atticus | Volume 31 Number 1 | Winter 2019 | New York State Association of Criminal Defense Lawyers

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Letter to the Editors: November 13, 2018 Dear Editor; Recently, on September 17, 2018, I received the Summer 2018 Atticus. While it has not been my regular practice to write to or about articles appearing therein, I felt called up to comment in passing on “The Price of Justice Is love.”

Having attended the annual dinner and having served as a past President and one of the founders of our organization, I heard President Wells’ inauguration speech with interest, if not necessarily in complete agreement. Having read the speech in Atticus, I felt that there is somewhat a contrary view. let me preface my comments by stating that I have the greatest respect for President Robert Wells and have no doubt of his fine work as an attorney and as the primary officer of our organization. I just disagree with some of his comments.

Having practiced law some 54 years to date, exclusively in the area of criminal law, I can say I am not driven by love, and I do not see justice as a form of love. I have tried literally hundreds upon hundreds of jury trials, and I do not recall love as being a motivating or driving factor.

We must get away from this concept that we are doing “God’s” work or a reasonable facsimile. We are doing man’s work and only man’s work. It

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matters not if the client has committed the crime or not, either way we become his champion. Not for love, but to fight the system, to keep it honest. The brutal crushing system which grinds us all down, to make it more tolerable.

Do I love my client? Sometimes I can not stand my client, but I will stand by him and fight for him and as such, fight for myself and for the pure pleasure of fighting it self. It’s not about him; it’s about us, if you want the truth. Has no one read Albert Camus’ The Fall?

(French for le Chute”) President Wells writes, “We do not pursue Justice for the love of money.”

He may not, but it certainly takes the bumps out of the road. What is wrong with charging a reasonable fee or treating the practice of law as a business? lincoln had no trouble doing that, and frankly neither do I. I have often said and have a plaque on my office wall in the waiting room that says “Three things work for nothing, a mule, a tool and a fool.” This has been my mantra.

Have I done things Pro Bono- yes, but most times not intentionally so. Justice did not and does not put your children through school or get you the things you want in life. You are not an Ascetic; you are a person with desires and wants like any one else.

I am thankful for people like President Wells. They balance the world for people like me. Our clients are by and large people who have committed some bad acts, but I’ll fight like an SOB to protect their rights, but do I do it for love? Not a chance. You want love, get a dog. Do not expect love from a client.

Remember we do the “impossible for the ungrateful”. let me not go on, I think you get my point. I have worked in the vineyards of the law for more than half a century. I have known and worked with some of the best advocates of our time from Ted Wells, Bill Kunstler, Gerry Shargel, James La Rossa, Gerry Spence and Jay Goldberg. I have never heard any one of them say they were motivated by love. When I think of what justice is, I believe justice to be when I win.

Permit me to close by this piece of cynicism “Better to be a mouse in the mouth of a cat, than a lawyer at the mercy of his client.”

Respectfully submitted, Murray Richman

Atticus | Volume 31 Number 1 | Winter 2019 | New York State Association of Criminal Defense Lawyers

Dispatches from 90 State Jennifer Van Ort Executive Director Happy New Year! January is an exciting and busy time for all of us at NYSACDL. I sit here with to-do lists and reminders for the upcoming annual dinner and board meeting, while working on putting the final touches of this issue of Atticus and sending out membership renewal reminders to all our loyal and dedicated members. It is important in the hustle and bustle of the new year to take a moment out and reflect on all of the success of 2018 and the momentum and energy we have moving into 2019.

First, a look back. In 2018, NYSACDL once again had over 875 members across New York State. These members have a variety of backgrounds and clients, and we are thrilled to have every single one of them on our membership rolls. Our 2019 membership goal will be to retain that 875 membership number and add at least 50 to it, putting us at or over 925 – putting us in good shape to crest 1,000 in 2020 or shortly thereafter.

As you all know, 2018 saw NYSACDL actively participating in several legislative efforts. We were an active member of three lobby days along with the New York State Defenders Association and the Chief Defenders Association of New York. In 2019, we are doubling the number of planned days at the Capitol, so please watch for opportunities to participate coming in your email! We need you to be the voice for your clients and your colleagues!

"I don't know that there are any short cuts to doing a good job."

— Sandra Day O'Connor

Also, in 2018 NYSACDL trained over 610 criminal defense lawyers from across New York State during 12 different CLE seminars – including our first seminar with an overflow room at Cross to Kill in May! We are deep in the planning stages for the 2019 seminars and are looking to add some more exciting and diverse programs. Take advantage of these programs to stay up-to-date on the most important topics for our practice!

Continuing to look forward, I am thrilled to be working with our incoming President, Lori Cohen in 2019! Starting right off from the dinner in January, which promises to be another great evening, Lori’s focus on Women for Justice is a topic I am looking forward to exploring more in 2019. Our honorees reflect that theme and will set NYSACDL off on a great path for the year ahead.

The next day, we will welcome three new Board members to NYSACDL: Scott Iseman of O’Connell & Aronowitz in Albany; Jill Paperno from the Monroe County Public Defender’s Office in Rochester; and, Karen Thompson from the Innocence Project in New York. Thank you to 2018 President Robert Wells and the Board members rotating off the Board for their service and dedication to NYSACDL! And, as always, thank you for YOUR continued dedication to NYSACDL, your colleagues, and your clients. May the new year bring you many blessings! A

Atticus | Volume 31 Number 1 | Winter 2019 | New York State Association of Criminal Defense Lawyers

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From the Defense Table: Celebrating the Achievements of NYSACDL Members in the Courts CHILD FORCIBLE TOUCHING ACQUITTAL IN QUEENS Member Jacqueline Cistaro obtained an acquittal following a jury trial in Queens Criminal Court in March 2018 on charges of Forcible Touching and Endangering the Welfare of a Child. The People alleged that the client had inappropriately touched a 7-year-old neighbor. The families of the client and complainant lived in a multi-family residence where the families would frequently socialize in each other’s apartments. The client maintained his innocence, rejected the plea offer and elected to go to trial. During the trial, the People presented three witnesses: the complainant, complainant’s cousin, an outcry witness, and complainant’s grandfather and landlord of the multi-family residence. On crossexamination, the witnesses admitted that the complainant, as well as other children, had been in the apartment numerous times throughout the years and never alleged that an inappropriate incident had occurred by the Defendant. Further, the landlord/grandfather was a pastor of a local church and testified that he prayed for seven days over the allegations before reporting them to his daughter and the police.

The Defense presented two witnesses, including the client and client’s daughter, who was present in the apartment,

approximately 8 feet in distance in an adjoining room, during the alleged incident. Additionally, the defense entered photographs depicting the living room, where the complainant alleged the incident occurred, and the adjacent bedroom where the client’s daughter was studying with the door open. The jury deliberated over the lunch break and returned a verdict of not guilty on both counts. Ms. Cistaro’s client was vindicated and the case was dismissed and sealed.

UNDERCOVER BUY AND BUST WIN IN MANHATTAN Member Dan Scott successfully fought an undercover ‘buy and bust’ narcotics sale case at trial in Manhattan resulting in an acquittal for his client in September 2018. Mr. Scott’s client was a predicate who turned down a year pre-indictment and a two year offer post indictment. The case depended on the testimony of a rookie undercover who claimed that Mr. Scott’s client supplied a co-defendant (who previously pled) with the narcotics just prior to the hand to hand sale. The arresting officer also testified that he was able to observe the hand to hand as well; a claim that Mr. Scott argued was a lie given the officer’s location. The jury seemed skeptical of the police testimony absent video or forensic evidence especially

given that Mr. Scott’s client had no prerecorded buy money nor stash on him at the time of arrest which was almost immediately after the alleged sale. Mr. Scott’s client testified that he had never seen the co-defendant before, and that the money seized from him was from his paycheck as a messenger. The jury deliberated a little more than an hour before returning an acquittal on the sole count of Criminal Sale of a Controlled Substance in the Third Degree.

‘BILINGUAL’ STATEMENT SUPPRESSION Members Lance Cimino and Lourdes Rosario were granted suppression of their client’s statements by Judge Gordon J. Cuffy following a pre-trial hearing. Judge Cuffy ruled in favor of the defenders on their claim regarding their client’s invocation of the right to counsel. This claim arose when defense counsel discovered that the interview of their client, by police, was a convoluted mixture of English and Spanish and their client insisted they requested an attorney numerous times during the interrogation by police.

Mr. Cimino and Ms. Rosario had the two hour videotaped interrogation transcribed and the Spanish portions translated by a Spanish interpreter. This Continued on page 10

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Atticus | Volume 31 Number 1 | Winter 2019 | New York State Association of Criminal Defense Lawyers

Volunteers Needed!

New York State Clemency Project A partnership with New York State, the National Association of Criminal Defense Lawyers (NACDL), and Families Against Mandatory Minimums (FAMM) NYSACDL has committed to taking 200 cases in this project.

Can you help us reach this number?

The NACDL/FAMM State Clemency Project is seeking volunteer New York attorneys for state clemency work. The project, designed to help recruit, train, and provide resource support to pro bono attorneys who will assist state prisoners in submitting petitions to have their sentences commuted, has begun assigning cases in New York. The project has developed procedures to provide an initial packet of records for each applicant and to facilitate quick access to records and easy communication with applicants.

NACDL is also seeking experienced criminal defense attorneys to serve as Advisory Attorneys in the New York State Clemency Initiative, part of the NACDL/FAMM State Clemency Project. Advisory Attorneys will provide operational support to the project by giving legal advice and reviewing case documents. Many volunteer attorneys working on cases are not criminal practitioners, so the experience and perspectives of Advising Attorneys are invaluable.

To learn more, email Project Manager Steven Logan at slogan@nacdl.org.

The Only Sweeter Words in a Defense Lawyer’s Lexicon than Not Guilty may be....

You are going home.

Imagine saying those words to someone who has spent years in prison. Imagine giving the gift of freedom and a second chance to a prisoner who is rehabilitated and has demonstrated a readiness to return to the community. By representing a single clemency applicant, you can help reverse the misfortune of a generation. This is your chance to make that call to a deserving prisoner in New York.

Under Governor Cuomo’s initiative the crime of conviction is not a determinative factor. Rather, the primary focus will be on making the case for the change in the applicant’s life during his or her incarceration, including rehabilitation, and factors such as age, illness, disability, and any inequalities caused by further incarceration. Underlying mitigation and fundamental inequity in the original case may also be considered.

The New York State Clemency initiative supported by NYSACDL, in partnership with NACDL and others, is the opportunity of a defense lawyer’s career to help salvage the lives of defendants and families who have left behind by a guilty verdict or plea. This effort is about the clients and cases that keep us up at night; the tales of courtroom heartache we share with each other.

This is a unique opportunity for criminal defense lawyers to help undo the incalculable harm of harsh and irrational sentencing policies by giving deserving prisoners a chance to regain their freedom. The first application you draft is the hardest ... but it is a remarkable opportunity to let loose with creative advocacy for a human being, unconstrained or inhibited by courtroom barriers. Join me in demonstrating the compassion and commitment we know NYSACDL members and our New York criminal defense community brings to the profession.

NYSACDL has partnered with volunteer attorneys from several bar groups, but you — our membership of criminal defense practitioners — are uniquely positioned to assist in this effort. You bring expertise, experience, and excellence in criminal defense. And, through its collaboration with its partners,. NYSACDL will facilitate your work. The State Clemency Project will recruit, train, and provide resource support to all pro bono attorneys who will assist state prisoners to submit petitions to have their sentences commuted. Support includes training materials, webinars with Q&A sessions, resource consultants, model petitions, and reference materials.

As a past volunteer working under Obama’s clemency initiative, I can tell you that I have never had such a personally rewarding professional experience than the calls I made to people in jail who believed they were serving a life sentence and tell them: “You are going home.”

Take a case and take a second chance at changing a life.

Click https://stateclemency.org/training and sign up.

Susan J. Walsh, Vladeck Raskin & Clark, PC NYSACDL Board of Directors

Atticus | Volume 31 Number 1 | Winter 2019 | New York State Association of Criminal Defense Lawyers

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From the Defense Table Continued from page 9 showed that their client had requested counsel several times during the interrogation. Based on this evidence and their arguments, the court ruled that all statements made after the first request for counsel were suppressed.

appeal, the Court agreed and thereupon vacated the guilty plea, conviction, and sentence that had been entered following a denial of the client’s request to waive his personal appearance and proceed to trial through counsel.

TRAFFIC OFFENSE LITIGATION SUCCESS Member Zev Goldstein litigated wins for two separate clients in Vehicle and Traffic Law matters in People v. Bollu, an appellate decision from Steuben County, and People v. Velte, a trial level corum nobis motion in Dutchess County.

In Bollu, Goldstein successfully argued on appeal that his client, facing a violation of Vehicle and Traffic Law §1180(d), had a constitutional right to waive his personal appearance at a trial of the matter. On

In People v. Velte, Goldstein’s client pled to a violation of VTL § 1180(d) approximately fourteen years ago which resulted in him being subjected to a permanent lifetime license revocation following the new DMV regulations enacted in 2013. Goldstein’s motion argued for his client’s conviction to be vacated where he couldn’t have known at the time he pled guilty that he would be facing this lifetime license suspension as a result. In granting the corum nobis motion the Court made note of the severe collateral consequence of lifetime license revocation which could not have been considered at the time of the original plea and which in the Court’s eyes could turn a, “…working member of society to a public charge upon

society…” Where the client did not have a full understanding of the drastic effect of his plea of guilty fourteen years earlier, the Court vacated the client’s guilty plea and judgment of conviction and restored the matter to the calendar. Goldstein was then able to obtain a reduction of the charge to a parking ticket, which spared his client the onerous result of a lost license for life. A

From Outgoing President Continued from page 3 a quest, pursued on behalf of all people of this state. It constitutes an historic check against the abuses to which prosecutorial power has shown itself to be susceptible, thwarting fairness in our courts. There remain challenges to the commission, and NYSACDL will be there to work in support of this law and in support of the commission itself.

While cynics may claim that, to date, we have not brought these things into full fruition, our work is not done for nor guided by cynics. Our work is for Justice.

And, that work continues and will continue as long as the members of NYSACDL continue to draw breath in this world.

As we enter the new year of 2019, NYSACDL will continue its labors to make Justice achievable for all, entirely undeterred by cynics or naysayers. That is the strength of NYSACDL and that strength will steadily increase as our goal comes closer to being made manifest. A

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Atticus | Volume 31 Number 1 | Winter 2019 | New York State Association of Criminal Defense Lawyers

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ourt of Appeals

Pertinent Criminal-Related Decisions Compiled by Timothy P. Murphy, Esq.

February through October 2018 February 13, 2018 People v. Francis 30 NY3d 737

Timothy P. Murphy, Esq. is Chief Attorney, Appeals and Post Conviction Unit, Legal Aid Bureau of Buffalo, Inc., and a member of the Board of Directors of NYSACDL.

This is a unanimous decision authored by Judge Rivera, affirming the AD. A prior YO adjudication may be properly considered in determining a SORA risk assessment. A full discussion of the principles behind both the SORA and YO statutes (CPL art. 710 and Corr. Law art. 6-c respectively) is found here. Allowing the prior YO adjudication to be considered in the limited public safety context of having to accurately assess an offender’s risk level does not conflict with the goal of avoiding stigmatizing a youthful indiscretion, as the information regarding the prior YO matter is not revealed to the public, but only to the Board of Examiners of Sex Offenders (“Board”), which has a statutory right to have such access under CPL 720.35(2). Also, it is the offender’s present sex offense, not his prior YO matter, that he is being potentially stigmatized for. The Guidelines support the rationale that a prior YO is a reliable indicator and should be considered in assessing an offender’s likelihood of reoffending. Though a YO adjudication is not a judgment of conviction or any other offense (CPL 720.35[1]), it is still premised on the commission of a crime.

Continued on next page

Atticus | Volume 31 Number 1 | Winter 2019 | New York State Association of Criminal Defense Lawyers

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Court of Appeals Continued from previous page The Court unfortunately pays just lip service to the important reasons for the “raise the age” movement and the recognition in the scientific community that the development of a child’s brain is incomplete until he or she reaches adulthood - - and therefore any use of a prior YO adjudication would not in fact be a reliable indicator of whether a defendant would reoffend. The heedless and impulsive risk-taking of a child who has an underdeveloped sense of responsibility seems to fly in the face of the Board’s important duty in accurately assessing one’s risk of reoffending. The Court, however, falls back on a separation of powers angle here, as policy making belongs to the legislature, which has spoken through CPL 720.35(2).

Here, the 25 points under the criminal history category of defendant’s risk assessment instrument were properly assessed; he was correctly adjudicated as a level three offender.

February 15, 2018 People v. Reyes 31 NY3d 930 This is a 5-2 memorandum, with Judge Garcia authoring the dissent and Judge Feinman joining in. This is an unsuccessful prosecution appeal. The AD is affirmed. There was insufficient evidence of the “agreement” element in this second degree conspiracy prosecution (PL §105.15). Every conspiracy requires an intent that a crime be committed and an agreement to engage in (or cause that) a crime be performed.

Defendant was a gang member who was present at meetings where a former gang member became the object of a fire bomb plot on his home. The defendant was not present for the actual arson

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that occurred. There is no presumption of an agreement based merely on a defendant being present for a meeting regarding the planning of a crime.

Knowledge of the existence or goals of a conspiracy is insufficient to establish a conspiracy. See US v. Ceballos, 340 F3d 115, 124 (2d Cir. 2003). Of course, there is not a great deal of transparency in the making of an illegal agreement, unlike a public contract, where there is often correspondence and conspicuous dialogue. Because in the planning of a crime, there is usually clandestine and ambiguous activity, the court declined to define exact parameters for conspiracies in general.

The dissent believed that there was a concrete and unambiguous expression here of an intent to violate the law. The evidence at bar showed the structure of the gang, an earlier attack on the victim, that defendant was a member of the gang and that defendant was present at meetings where the attack was planned.

Defendant’s gang activity was insufficient alone to establish the conspiracy; but it was a relevant factor.

People v. Wiggins 31 NY3d 1 This is a great decision authored by Judge Fahey, reversing the judgment

and dismissing this murder indictment based on a constitutional speedy trial claim. The Chief authored the dissent, with Judges Garcia and Feinman joining in. Defendant spent six years and almost four months in the cesspool that is Rikers Island before taking a plea on a homicide alleged to have been committed when he was 16 years old.

During this time, the People attempted to get the co-defendant to cooperate and eventually tried him, resulting in several mistrials and a plea to attempted murder. Defendant was convicted of an assault during this time period (committed while incarcerated), and was also charged with a gang assault, which was ultimately dismissed. Defendant resolved the primary homicide case against him by pleading guilty to first degree manslaughter. He remained in custody the entire time.

The court analyzed the five factors set out in People v. Taranovich, 37 NY2d 442, 445 (1975), that is, the extent of the delay, the reason for the delay, the nature of the underlying charge, whether there was extended incarceration and whether the defense was impaired by the delay. See also Barker v. Wingo, 407 US 514, 530 (1972) (setting out the federal standard, considering the length of the delay, the reason for it, the defendant’s assertion of his/her speedy

Dissents speak to a future age.

— Justice Ruth Bader Ginsburg

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trial right and any prejudice to the defendant). No one factor is considered to be determinative.

The Court considered all five factors under the assumption that the People were acting in good faith throughout these proceedings. The entire court, including the dissent, agrees that a delay of five years between the crime and the plea is extraordinary. (The majority’s calculation was that the delay was over six years; the dissent opined [in footnote 2] that it was only five years because of procedural issues involving defendant’s motion to dismiss.) As for the reason for the delay, the AD erroneously applied CPL 30.30(3)(a) to this homicide prosecution and erroneously concluded that the People’s purported good faith could not be second guessed. The latter issue is important, as the People must gather enough evidence to establish one’s guilt beyond a reasonable doubt before filing charges, but are to be afforded less latitude once charges are filed. “[T]he People cannot justify this extraordinary delay through their good faith alone.

The People do not have unfettered discretion to indefinitely pursue evidence that would strengthen their case while the defendant’s trial is postponed.” The majority concluded that only factor number three, addressing the serious nature of the underlying charge, favored the People. The defendant having been incarcerated on other charges during this time period does not preclude the fourth factor from still favoring him in this analysis.

The fifth factor requires special attention here. The majority opines, in great contrast to the dissent, that determining whether prejudice has been caused to defendant is broader than merely whether the defendant’s case in court has

been negatively impacted. As specific impairment in presenting a defense is very difficult to prove in a speedy trial context, there is a presumption under these circumstances that prejudice occurred. Moreover, prejudice here by being under indictment also includes loss of employment, financial losses, curtailment of associations, public obloquy, anxiety and loss of liberty. This is a welcomed analysis by the Court of what it means to merely stand accused of a crime.

It may come as a bit of a surprise to some amici curiae on this case that the Court elected not to comment at all on the conditions of Rikers Island, as a significant amount of time was spent in the litigation of this claim pointing out that this was a teenager spending the prime of his youth in that infamously oppressive facility.

The dissent believed there was record support for there being good cause for the delay, though it was a close call.

Also, as mentioned above, it opined that the impairment of the defense in the fifth factor is restricted to specifically defending the case in court.

April 3, 2018 People v. Silburn 31 NY3d 144 This is a 5 to 2 decision, affirming the AD, with the Chief Judge authoring the majority opinion. Judges Rivera and Wilson wrote separate dissents. The majority unfortunately held that the defendant failed to unequivocally request that he be permitted to proceed pro se, as he also sought stand-by counsel. On an unrelated issue, the defense was obligated under CPL 250.10 to provide notice

to the People regarding the defendant’s intention to challenge the voluntariness of his statements to the police.

Beginning with the pro se request, a defendant has a fundamental right to represent himself pro se. Faretta v.

California, 433 US 806, 836 (1975).

However, under People v. McIntyre, 36 NY2d 10, 17 (1974), the trial court must go through a three-part test to determine whether: (1) the request is unequivocal and timely; (2) there has been a knowing, intelligent (and voluntary) waiver; and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues. If part (1) is satisfied, the court must conduct a “searching inquiry” to ensure that part (2) is complied with. Part (1) means a clear and unconditional presentation to the court.

Put another way, “unequivocal” means to demonstrate an actual fixed intention and desire to unambiguously proceed without professional assistance in his or her defense.

Prior to and during trial, the defendant sought to both represent himself and have stand-by counsel, i.e., “hybrid representation.” The trial court, seemingly implementing its own policy, told defendant that he did not have the right to “dual representation;” he had to choose to be either pro se or have an attorney.

The Court of Appeals held that standby counsel was not a constitutional right (following People v. Mirenda, 57 NY2d 261, 265 [1982]), but a rather a matter of the trial court’s discretion (which in this case was not abused). The majority characterized defendant’s request to proceed pro se as being “conditioned” upon receiving standby counsel. In sum, while the better practice would have been to clarify the situation, no further Continued on page 22

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f

undamental Principles of Breath Testing: An Imperfect Means to a Legitimate End

O

Steven Epstein, Esq. is admitted as an attorney in New York and Connecticut, as well as before the United States District Courts for the Eastern, Southern and Northern Districts of New York and the United States Supreme Court.

General Member, National College for DUI Defense (NCDD)

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n September 10, 1897, a London cabdriver named George Smith became the first person in recorded history to be arrested for driving while under the influence of alcohol (“DUI�). It was obvious to the bobbies that he was intoxicated. Also obvious was that his being intoxicated affected his ability to drive a car. Mr. Smith crashed his taxi cab into a building. Mr. Smith pled guilty and was sentenced to pay 25 schillings.1 The purpose of his prosecution was as 1 History of Drunk Driving, http://www.DrunkDrivingPrevention.com (last visited August 16, 2018).

Atticus | Volume 31 Number 1 | Winter 2019 | New York State Association of Criminal Defense Lawyers

valid as it was clear: to keep the streets safe from drivers whose abilities to operate a motor vehicle were impaired by alcohol.

What if Mr. Smith was not such a cooperative defendant? After all, Mr. Smith made it easy for the prosecution: he admitted to drinking, and his driving was clearly impaired. Not all DUI defendants are as easy to convict. In the early days of impaired driving investigations, prosecutors lacked any scientific way to prove someone was too intoxicated to drive. Criminal cases were thus based on what became known as common law driving while impaired by alcohol. The definition of what amounted to impaired driving varied from state to state—and still does. Most states’ definitions of impaired driving involve some form of proof that a defendant drove a vehicle while the alcohol he consumed impaired the abilities which are needed to operate a motor vehicle as a reasonable and prudent driver.

On December 5, 1933, the ratification of the 21st Amendment brought the end to prohibition and joy to many Americans thirsty for alcohol. It gave birth to a vibrant industry eager to quench the thirst of Americans.

Drunk driving became a fast-growing problem. The law enforcement community was challenged to search for a more objective and easier method to determine a driver’s level of impairment. Police needed an easier way to determine if someone was intoxicated and prosecutors needed an easier way to convict drunk drivers; what evolved was the use of blood alcohol levels as a litmus test.

It is an axiom of forensic science that the quantification of the amount of alcohol in a person’s blood can be relevant to determining what impact the consumption of alcohol has had on that person’s cognitive ability to operate a motor vehicle.2 This is because of the way alcohol is diffused into the blood and carried through the circulatory system including the brain. After a person consumes alcohol, the alcohol enters the stomach where absorption begins. After digestion, most alcohol absorption into the body happens in the small intestine through a form of diffusion. The alcohol enters the capillaries and is carried into the veins where it can then be distributed throughout the entire circulatory system.3 Once the ethyl alcohol reaches the brain it can impact cognitive functioning and a person’s ability to drive.

While analysis of a sample of blood can be forensically reliable for measuring a driver’s intoxication levels, it has its disadvantages. The sample collection is 2 Center for Disease Control and Prevention, Frequently Asked Questions, https://www.cdc.gov/alcohol/ faqs.htm (last visited August 26, 2018).

3 James C. Garriott, Garriott’s Medicolegal Aspects of Alcohol (5th Ed. 2008).

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Fundamental Principals of Breath Testing Continued from previous page invasive and drawing the sample can be difficult for law enforcement officers to administer. The analytical process is costly and time consuming, not affording law enforcement officers the ability to make determinations in the field.

Its usefulness is further complicated because its processes require additional laboratory analysis. So forensic scientists like Dr. Emil Bogen started to look for other ways to measure a person’s blood alcohol concentration.

Scientists looked for faster and simpler ways. But faster and simpler are not necessarily more reliable.

In 1927, Dr. Emil Bogen demonstrated that breath samples from a subject containing alcohol could give an indication of the subject’s corresponding blood alcohol concentration levels.4 This led to the development of devices which could analyze the amount of alcohol in a person’s breath to determine the amount of alcohol in that person’s blood. In 1938, the first breath testing device was put into use by law enforcement officers in the field when investigating drunk driving. This invention, called a “drunkometer,” was the creation of Professor Rolla Harger of Indiana University.

Drivers suspected of being drunk were asked to breathe into a rubber balloon, which was attached to a tube of purple solution of potassium permanganate in sulphuric acid. This is likely the reason for the term “chemical test” which is often used to describe a breath test. If there was alcohol in someone’s breath, the chemical solution changed color; the darker it got, the more alcohol the motorist had in his system. From the shade of the liquid, law enforcement officers could 4 History of Drunk Driving, http://www.DrunkDrivingPrevention.com. (last visited August 16, 2018).

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estimate the alcohol level in a person’s bloodstream.5 The scientific principle that is the foundation for testing a subject’s breath to measure the alcohol concentration in that same subject’s blood is Henry’s Law. Henry’s Law was formulated by William Henry in 1803, and provides that “at a constant temperature, the amount of a given gas that dissolves in a given type and volume of liquid is directly proportional to the partial pressure of that gas in equilibrium with that liquid.”6 A simpler definition perhaps is that the amount of a volatile substance in a liquid is directly proportional to the amount of that same volatile substance in the gas above that liquid, in a closed environment, so long as that liquid and gas are maintained at a constant temperature and a constant pressure.7 An example of Henry’s Law at work is in the ordinary bottle of soda.

The contents of the bottle are kept in a closed environment at a constant pressure. Because of this pressure, the carbon dioxide (the gas that makes the beverage carbonated) is soluble in the liquid you enjoy drinking because of the bubbles. When you open the bottle, you release the pressure and the carbon dioxide becomes less soluble and is released into the environment. Over time, the carbon dioxide would release completely, and you would be left with flat soda.

In 1938, the first breath testing device was put into use by law enforcement officers in the field when investigating drunk driving. This invention [was] called a “drunkometer”

5 Breathalyzers in history, https://www.drinkdriving.org/drink_driving_information_breathalysers_early.php (last visited August 26, 2018).

6 G Garriott’s Medicolegal Aspects of Alcohol, supra at 260.

7 Id.

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Applying Henry’s Law, since ethyl alcohol is a volatile substance, the amount of ethyl alcohol in a liquid solution in a closed environment, kept at a constant temperature, will reach a point of equilibrium where there will be a fixed correlation between the amount of ethyl alcohol in that liquid and the amount of ethyl alcohol in the head space gas above that liquid. An example of Henry’s Law at work is a wet bath simulator, often used as a reference standard in breath testing. The simulator contains a known concentration of ethyl alcohol, obtained from a traceable source. That solution is kept in a sealed environment and at a constant temperature (34-Degrees Celsius – which will be discussed later in more detail). Since ethyl alcohol is volatile, it will exist both in the liquid and the gas in the sealed container. By measuring the ethyl alcohol in the gas above the liquid, a breath testing device can measure the amount of that same ethyl alcohol found in the liquid.

The theory behind breath testing for alcohol is that by analyzing the amount of ethyl alcohol found in the breath (gas) we can quantify the amount of ethyl alcohol in the blood (liquid). To make that quantification the breath testing device must know the proportional relationship between the amount of ethyl alcohol in blood as compared to breath once equilibrium is obtained. This relationship between the concentration of ethyl alcohol found in the blood compared to the breath is referred to as the partition ratio, which for breath testing is assumed to be 2100:1 for all

The ability to measure breath alcohol concentration quickly and inexpensively helped usher in “per se” statutes, which made it a crime to drive with levels of ethanol in the blood or breath exceeding statutory limits … exactly the tool prosecutors looked for—a tool to make getting convictions easier.

individuals, but it varies from person to person and is not constant. This theory as applied to breath testing has its faults which will be discussed below.

The ability to measure breath alcohol concentration quickly and inexpensively helped usher in “per se” statutes, which made it a crime to drive with levels of ethanol in the blood or breath exceeding statutory limits. These “per se” statutes became exactly the tool prosecutors looked for—a tool to make getting convictions easier. The question of whether a person’s physical and mental ability to operate a car is substantially impaired is far more amorphous, and harder to prove than whether a person has a breath or blood alcohol concentration above a proscribed limit.

The need for simplicity in prosecutions has caused the casting of too wide a net.

The scientific premises on which breath testing for blood alcohol quantification is based have been over-extended and taken us far from the original purposes of drunk driving laws which were to make our streets safe from drivers whose ability to operate a motor vehicle is impaired by alcohol.

The reliance on quantifying blood alcohol concentration by analyzing a person’s breath sample has been generally accepted in our courts, but that acceptance has not been shared by many members of the scientific community including forensic toxicologists. The Society of Forensic Toxicologists (SOFT) is composed of practicing forensic toxicologists for promoting and developing forensic toxicology.8 SOFT sponsors technical publications to improve the forensic toxicologists’ skills and 8 Society of Forensic Toxicologists, Inc., http:// www.soft-tox.org/ (last visited August 26, 2008).

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Fundamental Principals of Breath Testing Continued from previous page knowledge. One such publication is the Forensic Toxicology Laboratory Guidelines. Although the guidelines review methodology of blood and urine testing for alcohol, SOFT did not consider breath testing as a method to quantify blood alcohol levels.9 Why do you suppose that decision was made? Perhaps it was not found to be reliable enough for forensic measurements. I challenge you to find any accredited lab that uses the type of breath testing devices now used by law enforcement officers in their precincts. Regardless of whether the law enforcement community elects to use a breathtesting device, it still must do so in a manner that makes the test forensically reliable.

The reliability of any forensic test, such as a breath test, is dependent on, among other things, the manner the device is calibrated. The term calibration is often confused with certification. A device is certified when it is presented with a known analyte10 and is then used to quantify that analyte; if the amount of the analyte is within a degree of uncertainty, also called tolerance, then the device is considered certified.11 A simulator is a device used to introduce a known amount of ethyl alcohol from a traceable source into a breath testing machine. If the machine reports the 9 Forensic Toxicology Laboratory Guidelines, 6.4.2 (2006), Society of Forensic Toxicologists, http://www.soft-tox.org/files/Guidelines_2006_Final.pdf.

10 An analyte is a substance whose chemical constituents are being identified and measured, e.g. ethyl alcohol.

11 Thomas E. Workman, Jr., The Science Behind Breath Testing for Ethanol,7 U Mass L. Rev. 136 (2014).

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quantification of the ethyl alcohol to be the same as the known concentration in the simulator solution, plus or minus the margin of tolerance, then the machine is certified. The amount of tolerance allowed will vary from state to state and may be wider than the amount of tolerance allowed by the manufacturer of the device.

A calibration is completely different.

A calibration is the process of presenting known quantities of an analyte into the machine and then adjusting the machine so that it can properly quantify that same analyte in future tests. A calibration teaches a machine how to respond for future uses.12 Often police departments only employ single point certification and then call it a calibration. No matter what you call a duck, it is still a duck. The problem with such an operating procedure is that a calibration requires at least three points of measurement to create linearity across a spectrum of possible results.13. The use of a single point certification will only ensure a measuring device can correctly identify and quantify an analyte at a fixed point, e.g.,.10 blood alcohol concentration. Predicting reliability of 12 Id. 13 Forensic Toxicology Laboratory Guidelines, supra, at 6.4.2.

a measuring device over a range of possible responses would require calibration at multiple points, thus allowing for the graphing of a straight line. The lowest and the highest quantifications of the three samples establishes the range at which the device has been calibrated to quantify results.

Another concern about the reliability of breath testing is associated with the failure to report the uncertainty of its results.

Although breath tests can reliably detect the presence of alcohol in the human body, it is less clear to what degree of certainty breath testing can measure the amount of alcohol in the blood.

After all, if technicians analyzing blood specimens in a laboratory environment using gas chromatography are required to report their results to a margin of uncertainty, how can police officers using breath testing devices report their results to a specific number without reporting its margin of uncertainty? Uncertainty calculations are rarely if ever done in the field of breath testing.

There are many reasons for margins of uncertainty in breath testing. One of them is fluctuations in body temperature. The requirements of Henry’s Law—a closed system with constant pressure and constant temperature— simply do not apply in the lungs. Fluctuations in body temperature can have a severe impact on the reported blood alcohol concentration. For every 1-degree Celsius increase in body temperature above that assumed by the device, there will be a corresponding drop of 6.5% in blood to breath partition ratio, resulting

Atticus | Volume 31 Number 1 | Winter 2019 | New York State Association of Criminal Defense Lawyers

in an increase in reported blood alcohol concentrations of 6.5%.14 Now consider that the average body temperature for humans is 37-degrees and the breath testing devices are certified with a simulator solution maintained at 34-degrees Celsius. This alone can falsely elevate reported blood alcohol concentrations by over 20 percent.15 Another factor impacting variability in breath testing results is that the bloodto-breath partition ratio is not one size fits all. It varies from person to person.

There are variables in blood-to-breath partition ratios and the breath testing device assumes a ratio of 2100:1. If the true partition ratio of a blood sample is different from the assumed sample an error will occur in the measurement.16 The lower the true blood-to-breath ratio, the more the reported level will be falsely elevated. Studies have shown that this can result in over-estimating blood alcohol concentrations by 20-25% in 20% of the population.17 To give you some idea of how much a lower bloodto-breath ratio can have on a subject’s test, take the example of a person with an assumed blood to breath ratio of 2100:1 and a result of .10 blood alcohol concentration. If that same person had a true partition ratio of 900:1, the person’s true blood alcohol concentration would be .04.

To counter these attacks, some states have amended per se statutes to penalize driving with breath alcohol levels 14 Michael P. Hlastala, Physiological Laws of Alcohol Breath Testing, available at http://www. duistopped.us/physiology-bac-media/11.pdf.

15 Id. 16 Id. 17 Jan Semenoff, Blood to Breath Ratios in Alcohol Testing, 1 Counter-Point Journal (2016). See also T.A.A Alobaidi, D.W. Hill, and J.P. Payne, Significance of Variation in Blood-Breath Partition Coefficient of Alcohol, Brit. Med. J. (1976).

instead of blood. This has taken us far from the original goals of drunk driving laws, which were to prevent drivers from getting behind the wheel while impaired. That is because breathalcohol concentration may not always reflect the concentration of alcohol in blood, and in turn may not correlate to impairment, since it is only when alcohol reaches the brain that the effects associated with intoxication become observable.

None of this discussion of the fundamentals of breath testing is meant to imply that such testing is presumptively unreliable. Quite the opposite is true.

Many breath testing devices have been reviewed and placed on the United States Department of Transportation’s Federal Conforming Products List for Evidential Breath Testing Devices.18 Breath testing devices are admitted into evidence in courts throughout the nation. But if breath testing is to be used, it is critical that police departments conduct their breath testing in compliance with a quality assurance program to safeguard the testing process and validate its results. This quality assurance program must consider, among other things: the test subject; the analysis process; the manner a test result is reported and recorded; and inspection and maintenance of the devices used for breath testing.19 Particularly important to the quality assurance program are a pretest deprivation-observation period of at least 15 minutes and an analysis of at least duplicate breath specimens.

Despite this, in many states there is still

only one breath sample being tested and the quality of the pre-test deprivationobservation is low. Even the way the result is recorded, i.e., without a reported margin of uncertainty, takes the testing beyond the scientific foundation on which it is built. This is especially important considering the tremendous impact even a .01 difference in blood alcohol concentration can make. It not only can affect whether charges will be brought, but also what level charges and whether a certain plea bargain will be offered to a defendant.

These and other scientific premises on which breath testing for blood alcohol quantification is based have been overextended, and it is important for stake holders in the field of breath testing, such as attorneys and judges, to be mindful that there is some level of uncertainty in the measurement; that the scientific principles upon which breath testing is based call for a quality assurance process that must be implemented and followed; and that interested parties understand that breath testing is nothing more than an imperfect means to a legitimate end. A

18 Highway Safety Programs; Conforming Products List of Evidential Breath Alcohol Measurement Devices, 82 Fed. Reg. 50940 (November 2, 2017), available at https://www.gpo.gov/fdsys/pkg/FR2017-11-02/pdf/2017-23869.pdf 19 Kurt Dubowski, Quality assurance in breathalcohol analysis, 18 J. of Analytical Toxicology 306 (1994).

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INSIGHT: Congress Should Amend 18 USC § 3143 “Judges need more discretion in making bail determinations. Herein, some observations on needed reform to the federal bail statutes.”

By Mark I. Cohen

W Reproduced with permission.

Published August 31, 2018.

Copyright © 2018 by The Bureau of National Affairs, Inc. (800-372-1033) www.bna.com

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ith the enactment of the Mandatory Detention for Offenders Convicted of Serious Crimes Act, the 101st Congressional session (1989-1990) amended the Bail Reform Act to require the detention, pending sentence or appeal, of any person found guilty of a crime of violence, an offense for which the maximum sentence is life imprisonment or death, or a drug offense for which a maximum term of imprisonment of 10 years or more is prescribed, unless there is a substantial likelihood of acquittal or a new trial or the government is not recommending imprisonment and the person is not likely to flee or pose a danger to the community. Pub. L. 101- 647. Since the U.S. Supreme Court’s decisions in United States v. Booker, 543 U.S. 220 (2005), and its progeny, U.S. district court judges have had greater flexibility when sentencing persons convicted of federal criminal offenses. Judges are no longer required to impose a sentence within the range set forth in the U.S. Sentencing Guidelines (USSG). Instead, those ranges are now considered recommendations which must be considered when imposing sentence. Judicial sentencing discretion is still strictly curtailed, however, by U.S. Code (USC) statutes which impose mandatory terms of incarceration in certain circumstances.

Atticus | Volume 31 Number 1 | Winter 2019 | New York State Association of Criminal Defense Lawyers

This article addresses one exceptionally unjust result of the USC statutory framework: the intersection of 18 USC § 3553(a) and 18 USC § 3143(a)(2) requires that defendants convicted of narcotics and violent offenses must be incarcerated between conviction and sentencing, even if they had been deemed suitable to be at liberty while the prosecution was pending and even if they might not be sentenced to a term of incarceration. In this article, I will discuss how this result is created, describe two hypothetical examples of how it may occur, and provide a simple solution to this curtailed judicial discretion, which restores to sentencing district court judges the power and discretion to release some currently ineligible defendants awaiting imposition of sentence but only if there are indicia that the public and the integrity of the criminal justice system would be protected.

SECTION 3143 18 USC § 3143(a)(2) delineates the eligibility of a post-conviction/pre-sentence defendant to remain at liberty, either on bail or recognizance, pending sentencing.

Specifically,18 USC § 3143(a)(2) provides that: The judicial officer shall order that a person who has been found guilty of an offense in a case described in subparagraph (A), (B), or (C) of subsection (f ) (1) of § 3142 and is awaiting imposition or execution of sentence be detained unless– (A)(i) the judicial officer finds there is a substantial likelihood that a motion for acquittal or new trial will be granted; or (ii) an attorney for the Government has recommended that no sentence of imprisonment be imposed on the person; and (B) the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community.

Mark Cohen, a former assistant district attorney, is a New York-based criminal defense attorney. He now handles criminal and corporate investigations and criminal litigation in federal and state courts in New York. Cohen also represents clients in administrative litigation proceedings against a variety of U.S., state, and local agencies. He can be reached at mcohen@ cfrlaw.net or through his website at markicohenattorneynyc. com.

This statute operates in a particularly restrictive manner once a guilty plea is accepted by a U.S. district court judge or a guilty verdict is returned by a trial jury in cases involving certain narcotics offenses (21 USC § § 841(a) and (b)(1)(A), (b) (1)(B) and (b)(1)(C)) and crimes of violence (18 USC § 16). While mandatory detention is arguably appropriate in a majority of these cases, some offenders are found to have only limited participation in an offense and are therefore eligible for non-custodial sentences. As a result, they are in the unfortunate, and perhaps prejudicial, position of being incarcerated for the time between conviction and sentence, no matter how compliant they have been with the conditions of the terms of their release pending prosecution and no matter how likely it is that they will not be sentenced to a term of incarceration. This anomaly became more evident to criminal defense practitioners after the ruling in Booker, supra, in which the Supreme Court held that the mandatory application of the USSG was unconstitutional.

Before the decisions rendered in Booker, 18 USC § 3553(b)(1) required a court to sentence defendants within the delineated USSG ranges of various types of sentences, unless a rare downward or upward departure was available and appropriate. United States v. Crosby, 397 F. 3rd 103, 111 (2d Cir. 2005). In Gall v. United States, 552 U.S. 38, 49-50 (2007), the U.S. Supreme Court held that after correctly calculating the applicable range, a ‘‘district judge should then consider all of the § 3553(a) factors to determine whether they support the sentence requested Continued on page 48

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Court of Appeals Continued from previous page inquiry was required by the trial court, as part (1) of the McIntyre test was not satisfied.

In dissent, Judge Wilson opines that the defendant was deprived of the right to a fair opportunity to defend against the accusations by presenting his case in his own way. The right to represent your self is one of the most cherished ideals of our culture. If the accused has not agreed to have an attorney, it is no longer his or her defense anymore. At bar, the defendant unequivocally sought two things: to be pro se and to have stand-by counsel. The pro se request was not conditional. Like a customer in a fast food restaurant ordering a burger and fries, it would make no sense for the waitress to require the customer to only have a burger. There was some sniping between members of the Court on this point. In footnote 2, the majority describes Judge Wilson’s fast-food analogy as “both inapt and inappropriate,” in that it “trivializes” the constitutional rights of defendants.

Judge Wilson, in the dissent’s footnote 1, responds by asking who here is really trivializing the situation. The ironic part of all of this, notes the dissent, is that the majority frees up trial courts from engaging in any particular catechism on the topic “at the price of imposing one on defendants.” In other words, only the uneducated and untrained litigant is required to get the terminology just right. Citing out-of-state case law, Judge Wilson observes, “[t]o allow the uninformed to unwittingly waive their right of self-representation merely by requesting standby counsel ‘is to imprison a man in his privileges and call it the Constitution.’” The dissent also does a nice overview of what true exercise of discretion is, as opposed to simply imposing a court policy, as was appar-

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ently done here. Finally, Judge Rivera’s dissent emphasized the importance of appointing standby counsel when it is requested.

With regards to the CPL 250.10 issue, defendant sought to introduce the testimony of a psychiatrist who evaluated him and opined that he was bipolar with psychiatric features. This, according to the defense, rendered his Miranda waiver involuntary. No notice under the statute was given to the prosecution in this regard. The trial court precluded the testimony.

Under CPL 250.10 (1), the term “psychiatric evidence” means: (a) Evidence of mental disease or defect to be offered by the defendant in connection with the affirmative defense of lack of criminal responsibility by reason of mental disease or defect. (b) Evidence of mental disease or defect to be offered by the defendant in connection with the affirmative defense of extreme emotional disturbance … (c) Evidence of mental disease or defect to be offered by the defendant in connection with any other defense not specified in the preceding paragraphs.

The majority held that challenging the voluntariness of a confession under CPL 710.70 is encompassed by the CPL 250.10 (1)(c) “any other defense” clause. The defendant sought too narrow an interpretation of the provision, i.e., only a complete defense such as a mens rea defense. But an involuntary statement may be a complete defense as well. The purpose behind CPL 250.10 was to eliminate surprise to the prosecution and avoid judicial delays in litigating these often complex issues. Proper

notification, adversarial examination and preclusion, where appropriate, was the plan. The amendments to the law in the 1980’s made its scope broader.

Only good cause (under CPL 250.10 [2]) may excuse a violation of the notice provision.

Here, though the People knew early on of defendant’s mental illness, they were still entitled to notice. Though inapplicable at bar, the prosecution will often have to deal with privileged medical records to obtain the information they need to confront a defendant’s psychiatric evidence. The defense at bar knew of this information long before trial, but still failed to put the DA on notice.

In dissent, Judge Wilson believed the preclusion of defendant’s psychiatric evidence constituted harmless error.

The majority expanded CPL 250.10 (1)(c) from merely applying to defenses regarding elements of the crime to defense attacks on the weight that evidence may be given by a jury. Like the pro se argument, Judge Wilson sees this issue in the big picture context of the constitutional right to present a defense. The CPL 250.10 (1)(c) “defense” reference means just that - - a defense.

Any other interpretation of CPL 250.10 (1) would make sections (a) and (b) unnecessary. Avoiding unnecessary adjournments and providing the DA an opportunity to obtain evidence are the purposes behind the statute. Subsection (1)(c) should not be applied to issues not typically raised at trial, and not generally fatal to the People’s case. Here, the proposed evidence in question was a police form, not a privileged medical record. Its lack of probative value to the material issues makes its preclusion harmless under the circumstances.

Atticus | Volume 31 Number 1 | Winter 2019 | New York State Association of Criminal Defense Lawyers

April 26, 2018 People v. Britton 31 NY3d 1019 This is a quick 6 to 1 memorandum (about a paragraph in length), with Judge Rivera authoring a twelve-page dissent. The AD is affirmed. The Court held here that conduct for which a defendant is acquitted of (based on the criminal BRD standard) may be utilized in determining a SORA risk assessment (based on the civil clear and convincing evidence [“CCE”] standard). Here, the defendant properly received 25 points under factor number 2 of the risk assessment instrument.

In dissent, Judge Rivera set out the facts in detail. The jury here acquitted defendant of 1st degree rape and two counts of 1st degree criminal sexual acts, both felonies, regarding conduct involving defendant’s eleven year old niece. They convicted him, however, of the misdemeanor, 2nd degree sexual abuse. There were no eyewitnesses or physical evidence, and the complainant’s testimony was inconsistent regarding the charges. The CCE standard is an exacting one; it is the highest civil evidentiary burden in our law, requiring a high degree of reliability.

The SORA court, according to the dissent, erred in utilizing the complainant’s grand jury and trial testimony here. While reliable hearsay is admissible in a SORA proceeding, there was no credible evidence supporting the lower court’s CCE finding. While facts previously established at trial or elicited at the time of a guilty plea are deemed established by CCE, unreliable evidence cannot serve as a basis for a risk assessment. The acquittal here should be understood as a reflection

of the jury rejecting the complainant’s version of the events.

This is the second SORA case in a row that appears to be expanding the broad net of information deemed admissible in SORA litigation. See People v. Francis, 30 N.Y.3d 737, 746-751 (decided February 13, 2018) (the Court holding, with Judge Rivera writing the decision, that a YO adjudication may be utilized in determining a risk assessment, a conclusion that seems to run counter to the scientific data supporting the theory that the brain is not fully developed until a person reaches his or her 20’s, thus making a youth’s conduct not a reliable indicator of potential recidivism).

May 1, 2018 People v. Gates 31 NY3d 1028 This is a 6 to 1 memorandum, with Judge Garcia dissenting. The People lost this appeal. The AD is affirmed and the evidence in this car stop case is suppressed. As there is record support for the lower court’s determination, it is beyond the Court of Appeals’ review.

The dissent’s questioning of the continued validity of the De Bour paradigm is not properly before the Court.

Don’t ever let it be said that I don’t let both sides speak. In dissent, Judge Garcia rallies against the De Bour doctrine, particularly in this scenario, where De Bour and traffic stops converge. See generally People v. Garcia (no relation), 20 NY2d 317 (2012). Judge Garcia observes that it has been over forty years since People v. De Bour, 40 NY2d 210 (1976), and it is time to take a big picture look at the situation. The judge likes the simpler federal way of

doing things. There aren’t four levels of intrusion with all of their messy subtleties; instead you have a “single, familiar standard” of asking whether the officer’s conduct was reasonable under the circumstances. Levels one and two under De Bour are too closely related. This hyper-technical scrutinizing of an officer’s every move is inconsistent with the constant on-the-spot law enforcement assessments that a police officer must make every day. These are fluid situations. The De Bour progeny has been confusing and law enforcement needs more discretion in detecting problems early on in a citizen encounter. In sum, “the analytical framework of De Bour serves, in many ways, to undermine the goals of clarity, public safety, and judicial economy.” This is even truer in the traffic stop scenario, as there is the risk of injury from passing cars, the suspect has more potential access to weapons and the vehicle itself is readily mobile. For sure, the roadside encounter is fundamentally different and more dangerous than the run-of-the-mill street encounter.

At bar, the officer observed a sagging trunk, indicating something heavy being contained therein. Defendant was acting nervous and there were nylon bags observed in the back seat. Defendant also refused to make eye contact. Defendant was ultimately charged with transporting untaxed cigarettes. The Appellate Division, however, found that a level two inquiry occurred without a founded suspicion of criminality existing.

Commentary: Judge Garcia ends his opinion by reminding us that in order to combat terrorism, we tell our citizenry that if they see something they should say something. As Judge Garcia observes, the De Bour approach, which scrutinizes the preliminary stages of a Continued on next page

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Court of Appeals Continued from previous page police investigation with the threat of suppression hanging over the officer’s head as he or she attempts to quickly interpret a fluid situation, flies in the face of how we approach terrorism.

Exactly. We should not be attempting, as we interpret our state constitution, to make detecting terrorism our guide.

The criminal justice system is meant to be a vehicle for protecting citizens from overreaching governmental authority exercised in the name of crime control, not for acting on hunches when a guy on a subway seat carrying a knapsack just doesn’t seem right to us.

May 3, 2018 People v. Odum 31 NY3d 344 This unsuccessful People’s appeal is a 4 to 3 decision, affirming the appellate term, which affirmed the trial court’s DWI-related suppression order. Judge Stein authored the majority’s opinion, with Judge Wilson concurring. The Chief Judge authored the dissent, which was joined in by Judges Fahey and Garcia. Here, defendant’s blood alcohol results were suppressed, as the two hour rule under VTL §1194 (2) was violated.

The breathalyzer was not administered in accordance with the statute and defendant’s consent was not voluntary.

More than two hours after his arrest, the police asked defendant if he would take a breathalyzer. He said no and was then given refusal warnings, which included the inaccurate statement that if he refused to submit to the test, it would be introduced at trial against him (this was wrong because more than two hours had passed). Defendant then submitted to the test, which showed him to have a blood alcohol level above the legal limit (.09%).

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VTL §1194 (2)(a)(1) indicates that every operator of a motor vehicle is deemed to have consented to providing a blood test if the police have reasonable grounds for arrest and the test is given within two hours of the arrest. If you refuse, your license is suspended and the refusal (if within the two-hour limit) is admissible at trial. This rule was enacted in 1973. There is no constitutional right not to submit to a chemical test after having operated a motor vehicle. But a defendant can voluntary and expressly consent to submit to a chemical test after the two-hour period has passed. See People v. Atkins, 85 NY2d 1007, 1008 (1995). The police either need to secure the test within two hours, obtain a court order or secure a voluntary consent.

Here, the consent was not voluntary as it was a consequence of inaccurate refusal warnings.

Judge Wilson says in his concurrence that the first part of the refusal warning was not coercive regarding the defendant’s license being suspended or revoked.

In dissent, the Chief Judge noted the 2012 DMV policy that allowed for the suspension or revocation of a license after the two-hour limit had passed. The majority’s decision encourages refusals, which contravenes the statutory purpose. Here, according to the dissent, the consent was voluntary, as the two hour rule has no applicability outside of the deemed consent scenario; it does not apply to a refusal fact pattern.

People v. Aleynikov 31 NY3d 383 This is a unanimous decision authored

by Judge Fahey, who is turning into quite the philosopher (see May 8th

chimpanzee decision below), beginning this opinion, which addresses the legal sufficiency of unlawful use of scientific material, this way: “Ideas begin in the mind. By its nature, an idea, be it a symphony or computer source code, begins as intangible property…” More on this later.

PL §165.07 was at issue. Goldman Sachs (“GS”) is a major investment banking and financial services company.

Defendant was a computer programmer for GS, who worked with the company’s high-frequency trading software that performed market data calculations and traded securities at a rapid pace.

GS operated in a very competitive industry. Defendant had access to the entire computer system, including the system’s source code (“SC”), which was located inside the software repository.

The company prohibited employees from removing the SC from their computer network; access to the company’s network from the outside was restricted.

Simply put, if a competitor, especially a start-up competitor, got its hands on the company’s SC, it would hurt business.

Defendant changed jobs in 2009, and joined another company, a start-up firm that planned to develop its trading infrastructure from scratch. Defendant was to be the architect of this new system and guess where he got all his ideas from? On his last day on the job at GS, defendant uploaded a large quantity of SC data to a website, using his personal e-mail account. Defendant uploaded the SC to a German server. He also deleted files and backdated computer script to make it appear that transactions occurred two years before. He also downloaded the SC to his home computer.

Though he tried to cover his tracks on his office computer before he left, GS

Atticus | Volume 31 Number 1 | Winter 2019 | New York State Association of Criminal Defense Lawyers

figured it out what happened.

518.443.2000

Defendant was convicted after trial in federal court under 18 USC §2314, the National Stolen Property Act (“NSPA”).

In 2012, the Court of Appeals for the Second Circuit reversed, holding that the SC itself was “intangible property” at the time of the theft and was therefore not a “good” under the NSPA. So then the state prosecutor took a shot, charging defendant with two counts of unlawful use of scientific material (“UUSM”) under PL §165.07 and one count of unlawful duplication of computer related material in the 1st degree under PL §156.30(1). The jury only convicted on one of the UUSM counts.

The People appealed and the First Department reversed and reinstated the charge. The NYS Court of Appeals affirmed.

Unlike the federal NSPA statute, the question under New York’s UUSM statute is whether there was a tangible “reproduction” of the SC when defendant uploaded the SC to the hard drive of the German server, not whether the SC itself was tangible. The copied SC on the computer server occupied physical space and was physically present; the server’s hard drive was a physical medium. See also People v. Kent, 19 NY3d 290, 301-302 (2012) (finding that images of child pornography downloaded and permanently placed on a computer hard drive was tangible and could be accessed later). This 21st century technology evidence was legally sufficient under the 1967 UUSM statute, which prohibits the copying of scientific material, while leaving behind the original.

The Court also analyzed what “appropriate” means under PL §§165.07 and 155.00 (4), as the SC was only copied and GS was still able to use it after the

crime occurred. The UUSM and larceny statutes work in tandem here, as the legislature sought to criminalize misappropriations that were not traditional larcenous takings. Though defendant did not intend to permanently deprive GS of the SC, he did intend to exercise control over the SC permanently.

Appropriation may involve depriving another of rights or benefits of a piece of property, and does not require depriving anther of the property (as would occur if a thief takes physical possession of one’s property).

People v. Roberts 31 NY3d 406 People v. Rush This opinion was authored by Judge Rivera. Both judgments of conviction were affirmed, with Judge Wilson concurring in Rush but dissenting in Roberts. At issue is whether there was legally sufficient evidence for the defendants’ convictions for identity theft in the first and second degrees under P.L. §§ 190.79 and 190.80 (enacted in 2002). The “assumes the identity of another” language of the statute was at issue. Defendant Roberts attempted to use someone else’s credit card number with a fictitious name to purchase merchandise in a sporting goods store.

He had a fraudulent driver’s license with a name matching the credit card, with defendant’s photo included. The name used on the card and license were fictitious. The Court says that pretending to be a fake person is sufficient under the statute. Defendant Rush stole the ID of her victim and deposited false and stolen checks in a bank account in the name of this innocent third person. She ultimately withdrew funds from this account, but did not give the impression that she was that person. This qualified Continued on next page

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Court of Appeals Continued from previous page under the statute as well.

The law was made to address the often significant financial harm caused to people when their personal information is surreptitiously stolen, i.e., one’s name, signature, address, phone number, SS number, bank or credit card account number. The majority believed that the “assumes the identity of another” clause was an explanation of three potential methods of identity theft which came next in the statute; it was the “operational text that sets forth the actus reus of identity theft.” It defines the essence, says the majority, of identity theft.

(Moreover, it is not a separate element; there was no conjunctive “and” between this phrase and the three methods subsequently described.)

The Court also rejected defendant Rush’s courtroom closure argument (i.e., the constitutional right to a public trial [see generally People v. Martin, 16 NY3d 607, 611 [2011]), as it was unclear that defendant’s family was in fact kept from entering the court room.

It also appeared that defense counsel failed to object to the voir dire continuing despite the issue being known to the defense.

Judge Wilson, in dissenting in the Roberts decision, opines, rather convincingly, that the majority’s interpretation renders the “assumes the identity of another” clause as meaningless. In interpreting a criminal statute, appellate courts should assume that the Legislature had a purpose in using each phrase.

Judge Wilson compares this provision of the identity theft statute with analogous ones in statutes prohibiting arson (PL §150.10), gambling (PL §225.10) and menacing (PL §120.14). The judge further raises hypotheticals involving a child lying to a vendor about her own

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birthday in order to get a free ice cream cone; wouldn’t that be assuming the ID of others who actually had that birthday? Indeed, “many ordinary people misstate some bit of [personal identification info] with the intent to deceive and thereby obtain something of value.” The majority’s interpretation “criminalizes a good deal of commonplace, innocent behavior.” What defendant Roberts did, in using an innocent party’s credit card information, was a larcenous crime; but he simply did not assume another’s identity and thus, did not violate this specific statute. And finally, as usual, Judge Wilson gets off the best line of the decision: I have no difficulty accepting the import the legislature intended (cf. majority op. at 16 n 7). What is “unacceptable to the dissent” is the majority’s theft of the legislature’s identity, by striking the words “assumes the identity of ” from the statute.

May 8, 2018 People v. Wallace 31 NY3d 503 This decision was authored by Judge Feinman. The entire court agreed to affirm the AD, with Judge Stein concurring. The court, for the first time, interpreted what the “place of business” exception to the criminal possession of a weapon statute (P.L. §265.03[3]) means. The statute itself provides no definition. If the exception (“if such possession takes place in such person’s home or place of business”) applies, the charge is a misdemeanor instead of a felony. The defendant at bar was a “swing” manager at McDonalds who accidentally shot himself in the leg while off duty and sitting in the lobby of the restau-

rant. Some general rules of statutory construction (i.e., give all terms meaning, consider the context and do not interpret in such a way that reaches an absurd result) are addressed.

The court held that a place of business is not the same thing as a place of employment. Rather, it refers to the merchant, storekeeper or principal owner.

The Court observed that P.L. §400.00 permits a license to be issued in order to possess a gun in one’s place of business by a merchant or storekeeper. The “merchant or storekeeper” language was in the 1913 version of the weapon possession law. Though the 1964 version of the law, which is still in place, did not include the “merchant or storekeeper” language in its place of business exception, the Court was still comfortable in its narrow interpretation of the statute.

Employees cannot just arm themselves at work; but a licensed owner can, as he or she would purportedly have a greater interest in protection of their premises and the safety and security of the establishment where goods and services are sold.

In her concurrence, Judge Stein described in more detail what the place of business of exception should mean. It applies for the individual who has a significant proprietary or possessory interest - - beyond that of a mere employee.

Commentary: First of all, the Court travels in this decision as far as it can from the actual text of the statute, looking at the licensing statute, going to the trouble of enforcing the text of the legislative history (discussing gun safety concerns) and prohibiting interpretation of the previous version of the statute in a way that would make any of that statute’s language unnecessary. The Court, without implying anything close Continued on page 35

Atticus | Volume 31 Number 1 | Winter 2019 | New York State Association of Criminal Defense Lawyers

2019 NYSACDL FOUNDATION ANNUAL DINNER Women for Justice

Thursday, January 17, 2019 Cocktail Reception: 6pm ~ Dinner & Ceremony: 7:30pm Grand Hyatt New York 109 East 42nd Street at Grand Central Terminal New York, NY 10017

Hon. William Brennan Award for Outstanding Jurist

Hon. Colleen McMahon, Chief U.S. District Judge Southern District of New York Hon. Thurgood S. Marshall Award for Outstanding Criminal Practitioner

Isabelle Kirshner, Esq., Partner Clayman & Rosenberg LLP Justice Through the Arts

“The Last Defense”

Installing 2019 NYSACDL President

Lori Cohen, Esq.

Honoring 2018 NYSACDL President

Robert G. Wells, Esq.

For more information: www.nysacdl.org

Atticus | Volume 31 Number 1 | Winter 2019 | New York State Association of Criminal Defense Lawyers

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NYSACDL FOUNDATION

2019

Women For Justice

Annual Dinner Sponsors

Cocktail Hour Sponsor

Silver Sponsors Patel & Shellow LLP Green & Willstatter Serpe Ryan LLP

Premiere Sponsors

Platinum Sponsors

Honor Women of Justice Sponsor

in honor of Carolyn Wilson

Gold Sponsors Law Offices of Lori Cohen, Esq.

Bronze Sponsors Lisa H. Bebchick, Esq., Ropes & Gray LLP Brooklyn Defender Services Carter Ledyard & Milburn LLP Fasulo Braverman & Di Maggio, LLP Harris, St. Laurent & Chaudhry LLP Kossover Law Offices, LLP Gerald B. Lefcourt, P.C. The Family of Isabelle Kirshner Levine Lee LLP The New York Criminal Bar Association New York State Defenders Association Marjorie J. Peerce, Esq., Ballard Spahr LLP Marvin E. Schechter, Esq Law Offices of John S. Wallenstein

Table Sponsors Brooklyn Defender Services Isabelle Kirshner, Esq. The Rockland Crew

As of January 3, 2019

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Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers

Thank you to the 2018-2019 Defenders Circle!

CHAMPIONS ($1000 Donation) Zachary Margulis-Ohnuma Kevin D. O’Connell Benjamin Ostrer Joel B. Rudin COLLEAGUES ($250 Donation) Lori Cohen George Goltzer Gerald Lefcourt Jennifer L. Van Ort SUPPORTERS ($100 Donation) James A. Baker Paul M. Callahan Richard Cary Spivack Scott Clippinger Joseph R. DeMatteo Brian J. DeSesa Karen L. Dippold Michael G. Dowd Steven B. Epstein Peter M. Frankel Mario F. Gallucci David I. Goldstein

Clifford Gordon Trevor W. Hannigan James P. Harrington Daniel J. Henry, Jr. Michael D. Horn John Ingrassia Robert P. Leighton Greg D. Lubow Christopher X. Maher Mark J. Mahoney Michael P. McDermott Oscar Michelen Kenneth Moynihan Marcos A. Pagan, III Steven K. Patterson Verena C. Powell Roland G. Riopelle Anastasios Sarikas 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.

Atticus | Volume 31 Number 1 | Winter 2019 | New York State Association of Criminal Defense Lawyers

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Recipient of the Hon. William Brennan Award for Outstanding Jurist

THE HONORABLE

Colleen McMahon

Chief U.S. District Judge, Southern District of New York

Colleen McMahon was born in 1951 in Columbus, Ohio.

She is a graduate of The Ohio State University (B.A., summa cum laude, 1973) and Harvard Law School (J.D., cum laude, 1976).

Chief Judge McMahon spent most of the next two decades at the law firm of Paul Weiss Rifkind Wharton and Garrison, in 1984, she became the first woman litigator to be elected to partnership in the firm. She interrupted her time at Paul Weiss for ten months to serve in another capacity that was near and dear to her as Speechwriter and Special Assistant to The Hon. Donald McHenry, Permanent Representative of the United States to the United Nations.

In 1993, at the behest of one of her mentors, New York Chief Judge Judith Kaye, she chaired The

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Jury Project, a successful effort to reform every aspect of jury service in the New York State Courts; she was assisted in this endeavor by a young Paul Weiss associate named Robert Kaplan. Shortly thereafter, in June 1995, she was confirmed as a Judge of the New York Court of Claims, in which capacity she served as an Acting Justice of the New York State Supreme Court for three years.

In October 1998, she was confirmed as a judge of the United States District Court for the Southern District of New York. She became the court’s Chief Judge on June 1, 2016.

She is presently serving a three year term as the district court representative from the Second Circuit on the Judicial Conference of the United States; in September of this year, she was elected Chair of the Conference’s District Court Caucus.

Chief Judge McMahon is married to Frank Sica.

They have a daughter Katie, two sons, Patrick and Brian, and a wonderful daughter in law, Anne Barreca.

Atticus | Volume 31 Number 1 | Winter 2019 | New York State Association of Criminal Defense Lawyers

Recipient of the Thurgood S. Marshall Award for Outstanding Criminal Practitioner

Isabelle Kirshner, Esq. Partner, Clayman & Rosenberg LLP

Isabelle A. Kirshner is one of New York’s premier criminal defense trial attorneys.

She has won acquittals for her clients in both state and federal court. Isabelle has more than thirty-five years of experience defending individuals on a wide range of criminal matters.

Isabelle has tried cases involving a wide range of criminal charges, including one of the largest criminal tax shelter cases ever brought by the U.S. Department of Justice. Among her successes are an acquittal of murder and racketeering charges in a multi-defendant case in federal court, acquittal of all charges in a conspiracy case in which she successfully asserted an entrapment defense on behalf of her client and an acquittal of all charges in a federal Hobbs Act and conspiracy case. Of note is her

recent successful representation the former Attorney General of the State of New York.

Isabelle graduated from the Benjamin N. Cardozo School of Law in 1981 and served as an Assistant District Attorney in the Manhattan District Attorney’s Office from 1982 to 1986. She then entered the private sector as a criminal defense attorney, and joined Clayman & Rosenberg LLP, in 2005.

Isabelle has been appointed to the Criminal Justice Act Committee and the Criminal Justice Advocacy Board for the United States District Court for the Southern District of New York. She served as a member of District Attorney Cyrus Vance’s transition committee and is a member of the National Association of Criminal Defense Attorneys, the New York Council of Defense Attorneys, the New York State Criminal Bar Association and the New York City Criminal Bar Association and a Fellow of the American College of Trial Lawyers.

Atticus | Volume 31 Number 1 | Winter 2019 | New York State Association of Criminal Defense Lawyers

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Justice Through the Arts Award

“The Last Defense” series

Executive produced by Viola Davis, Julius Tennon and Andrew Wang for JuVee Productions; Christine Connor and Lee Beckett for XCON Productions; Vanessa Potkin, Aida Leisenring and Morgan Hertzan for Lincoln Square Productions.

B

Epstein & Kearon Partner Aida Leisenring and The Innocence Project Director of Post Conviction Litigation, Vanessa Potkin, teamed up with academy award-winning actress Viola Davis, Julius Tennon, and Andrew Wang of JuVee Productions for the new documentary series, “The Last Defense,” which premiered in front of a national audience on ABC this summer.

The seven-episode docu-series, executed by a team of mostly women, including XCON’s Christine Connor and Lee Beckett, Gemma Jordan, and Jeremiah Crowell, explored and exposed flaws in the American Justice System through emotional, in-depth examinations of potentially innocent people on death-row.

Leisenring and Potkin were inspired by a National Academy of Sciences study that estimates that 4.1 percent of people on death-row are actually innocent.

With approximately 2,817 people on death-row, that means that 115 innocent people could be executed.

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arket,

Atticus | Volume 31 Number 1 | Winter 2019 | New York State Association of Criminal Defense Lawyers

The first four episodes of “The Last Defense” featured Darlie Routier, who was convicted of the homicide of her two sons and has been on Texas’s death-row for 20 years.

Despite the fact that Routier had stab wounds to her neck and arms requiring surgery, and no history of mental Aida Leisenring Vanessa Potkin illness, or viable motive, the state prevailed on the theory that she staged the crime scene and that all angles, delving beyond the details of the crime and court proceedings to take her wounds were self-inflicted. Howa deep look into the personal stories of ever, nationally-recognized experts inthe subjects, seeking to trace the path terviewed in the series challenged these that led them to their place on Death allegations. Meanwhile, the last three Row. According to the New York Times, episodes told the story of Julius Jones, “The Last Defense” “offers a powerful a star college athlete from Oklahoma, argument that people can be convicted who was convicted in a racially-charged as much by emotion and prejudice as by trial consisting of dubious informant testimony—the leading cause of wrong- evidence….” It has “a clarity of moral purpose. Whether or not you find its ful convictions in capital cases. His arguments in these specific cases exoncodefendant, who only served 15 years of a 30-year sentence, fit the description erating, it makes a disturbing argument about the potential for error in capital of the perpetrator. Jones did not. “The Last Defense” looked at both cases from cases.”

“Vanessa Potkin and I wanted to educate the masses about the complexities of criminal prosecutions and what type of evidence contributes to wrongful convictions,” says Leisenring. “We know through the exonerations cases that many types of evidence that are used in courts today, and to send people to death row, are unreliable,” adds Potkin.

When “The Last Defense” aired, millions were captivated and disturbed by the unjust trials of Routier and Jones.

Rallies were held on their behalves, and politicians took note and began advocating for their causes. It is a profound honor to be recognized by the most prestigious defender association, the New York State Association of Criminal Defense Lawyers. The producers at “The Last Defense,” along with Routier and Jones, are humbled by tonight’s award.

We educated, privileged lawyers have a professional and moral duty to represent the underrepresented in our society, to ensure that justice exists for all, both legal and economic justice.

— Justice Sonia Sotomayor Atticus | Volume 31 Number 1 | Winter 2019 | New York State Association of Criminal Defense Lawyers

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In Memoriam ~ Ken Strutin Prolific author and legal commentator Ken Strutin died on Nov. 30, 2018. His death is a devastating loss not only to his family and those who knew him personally, but also to those who knew him though his legal writing.

NYSACDL Board of Directors member Greg D. Lubow described Ken’s acumen, ability, and awareness of the need to improve the law, in practice and substance: When I post a question to the NYSACDL listserv I always wonder who’s fancy it might attract. When I would receive the occasional response from Ken I would feel proud. Proud, and humbled, that I had posted a question worthy of his time and attention. Something that had broader meaning beyond the case I was working on. It does not need saying that his ‘take’ on issues was spot on. What I truly liked was that he was not content with the way the law was, especially since it usually maintained an unacceptable status quo. Ken was always looking to push the envelope – to make the law and its application by courts ‘better’ for the people whose lives it affects.

Ken began his legal career at legal aid offices in Nassau and then Orange counties, then moved from direct representation of public defense clients to a more pedagogical realm. Much of his career was dedicated to educating lawyers about new litigation strategies using the World Wide Web. He wrote the “Technology Today” column for the New York Law Journal; an obituary for him appeared in that publication on Dec. 4, 2018. Ken amassed information about particular topics and shared it with others in a variety of platforms. His work appeared on LLRX – the free web journal on law, technology, and research for Librarians, Lawyers, Researchers, Academics, and Journalists – reflecting his Master of Library Science degree. At the New York State Defenders Association (NYSDA), where he was the Director of Legal Information Services, Ken worked behind the scenes gathering information to assist the legal staff and the public defense lawyers they serve. He also published one of the first books of its kind, The Insider’s Guide to Criminal Justice Resources on the Internet in 2002.

Throughout, Ken remained dedicated to the right to counsel, arguing forcefully in print for its expansion beyond current constitutional limits. While he wrote extensively about issues that could sound dry, like access to digital data, forensic science, and artificial intelligence, his deep concern for people harmed by the criminal justice system regularly shone through. Years of corresponding with and providing information to incarcerated persons seeking legal assistance fueled his concern. Denying counsel to people in prison condemned them “to practice subsistence lawyering for the duration of their incarceration,” he wrote. He deemed the right to counsel to post-conviction proceedings “an overlooked basic human need.”

Among the many left in sorrow by Ken’s death are those behind bars who have lost an inimitable champion. A

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Atticus | Volume 31 Number 1 | Winter 2019 | New York State Association of Criminal Defense Lawyers

Court of Appeals Continued from page 26 to the rule of lenity (see generally People v. Golb, 23 NY3d 455, 468 [2014]), which would require any ambiguity in the law’s interpretation to fall in defendant’s favor, had no intention of reaching a result against gun control.

Secondly, it seems strange that the Court is so comfortable recognizing gun rights for the owner of the store who is likely not the one physically at the store with his hands up, forking over money to an armed robber. The financially secure owner might be either hiding in the back under a table or at home with family having dinner — but he or she is legally armed as the minimum wage earning store clerk is facing the barrel of a felon’s gun.

Matter of Nonhuman Rights Project Inc. on Behalf of Tommy v. Lavery Matter of Nonhuman Rights Project Inc. on Behalf of Kiko v. Presti 31 NY3d 1054

This is a denial of a civil leave application, wherein the Court issued no majority opinion. Judges Stein and Feinman did not participate. But Judge Fahey wrote a concurring opinion that is worth reading. This is the case of two captive chimpanzees seeking habeas corpus relief under CPLR Article 70. You heard that right. Their goal (or rather the goal of their attorneys) was not be released, but rather to be transferred to a better facility.

Judge Fahey, in a thought provoking piece, wonders aloud whether a nonhuman being may be entitled to habeas relief, or must it just be treated as property. Does a chimp qualify as a “person”

who has the rights and legal duties of a human being, with the ability and capacity to be held accountable for its actions? Before you answer that, does an infant or comatose adult lose their rights because they cannot bear the duties that the rest of us can? (Note that corporations and governmental entities are not humans, but are treated as “persons” under Penal Law §10.00 [7].) Judge Fahey suggests that whether or not a chimp has the same rights as humans, it still must (eventually) be answered whether habeas relief may be afforded to it. As we ponder these questions, we should be mindful that chimps have advanced cognitive abilities. They can make tools to catch insects; recognize themselves in mirrors, photos and TV images; imitate others; exhibit compassion and depression when a community member dies and display a sense a humor.

Relevant to imprisoned human habeas cases, Judge Fahey notes that habeas relief is not confined to outright release; it can indeed be also used to seek a transfer to an institution separate and different from the facility in which a prisoner is presently housed.

Here’s how Professor Fahey closes this opinion: The issue of whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and farreaching. It speaks to our relationship with all the life around us.

Ultimately, we will not be able to ignore it. While it may be arguable that a chimpanzee is not a “person,” there is no doubt that it is not merely a thing.

People v. Cummings 31 NY3d 204 Judge Wilson authored this reversal, with Judge Rivera concurring. The trial court erred in admitting a 911 call, despite inadmissible hearsay comments being audible in the background of the call. These statements did not qualify as excited utterances, as the declarant did not observe the events commented about. A witness called 911 to provide part of the license plate number of the vehicle which carried the shooter of two individuals on the street. Twenty seconds into the call, someone in the background is twice heard saying it was “Twanek” (which is defendant’s first name). The vehicle in question was ultimately pulled over. Only the driver was caught. The passenger (believed to be the defendant) took off; defendant’s fingerprint, however, was found on the car door. No weapon was recovered; no ID was made by the witnesses at the scene.

A surveillance video in the area did not corroborate the background statements of the 911 call.

A spontaneous declaration or excited utterance made contemporaneously or immediately after a startling event, which asserts circumstances of that occasion as observed by the declarant, is an exception to the prohibition on hearsay. People v. Edwards, 47 NY2d 493, 496-497 (1979). It is the impulsive and unreflecting responses of the declarant to the startling event (after having made direct observations), that creates a high degree of trustworthiness. Though this issue presents a mixed question of law and fact, there was no record support for the trial court’s ruling. The declarant must have an adequate opportunity to observe the event and must be in close enough proximity to it. The declaraContinued on next page

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Court of Appeals Continued from previous page tion must also occur soon after the event. Here, the declarant was unidentified and made conclusory statements providing no basis from which personal knowledge can reasonably be inferred.

There was no corroboration that the declarant was physically present for the event.

The Court also addressed the law of the case doctrine, finding that the second trial court judge in the case was not bound by the first judge’s hearsay ruling.

This doctrine expresses the general practice of courts to refuse to reopen what has been decided, normally applying to courts of coordinate jurisdiction. It directs a court’s discretion but does not restrict its authority. See generally People v. Evans, 94 NY2d 499, 504 (2000).

Absent prejudice to the defendant, a judge may revisit his or her own evidentiary rulings. Here, the second judge on the case did not err in reversing the hearsay ruling of the previous judge; the trial court had independent discretion to revisit this ruling.

Judge Rivera in her concurrence questions the validity of the excited utterance exception in general, as legal scholarship and jurists have addressed many instances of falsehoods being made immediately after an event which is described. Spontaneous lies in emotional situations are common. Judge Rivera wants more confrontation of witnesses under these scenarios. This hearsay exception should be abandoned.

June 12, 2018 People v. Henry 31 NY3d 364 This successful People’s appeal resulted in a unanimous opinion authored by Judge Wilson. There were three prosecutions of this defendant at issue, a drug

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charge, a robbery and a murder. The trial court suppressed statements taken as a result of non-custodial interrogation regarding the robbery charge, as defendant was not represented on that matter.

The AD decided to also reverse the statements related to the murder charge as well, as the robbery facts were purportedly related to the murder allegations. The Court of Appeals reversed the AD, which misapplied People v. Cohen, 90 NY2d 632, 638-640 (1997).

Under Cohen, in order to protect the right to counsel on a represented charge, a defendant who is represented on crime A, and is not in custody, may be interrogated regarding an uncharged crime B in which he or she is unrepresented - - unless the two matters are so closely related that there is a serious risk that admissions on one would constitute an admission on the other. (If in custody and represented on crime A, the police are prohibited from interrogating defendant on crime B, regardless of whether the two crimes are related. See People v.

Burdo, 91 NY2d 146, 149-151 [1997].)

At bar, an armed robbery occurred involving two masked perpetrators robbing occupants of a tattoo polar. Two days later, a 19-year old was killed by a single masked gunman while the victim was sitting in a parked car outside a gas station convenience store. The same vehicle was reported to have been used by the perpetrators in both incidents. Five days after the murder, defendant was pulled over for running some stop signs.

He was driving what appeared to have been the same vehicle, and was charged with marijuana possession. Defendant was assigned counsel and released on bail. A Blackberry cellphone was recovered during an inventory of the vehicle; defendant denied ownership of it. The phone was subsequently determined to

have been stolen in the armed robbery, which occurred the previous week.

Three days later, the defendant is driving a different car and is pulled over for speeding. He is arrested for possession of stolen property regarding the Blackberry cellphone and Mirandized.

During questioning, he admits to being the driver on the robbery and the murder cases. He is indicted for both crimes. Again, the trial court suppressed the robbery statements because of its relationship to the charged marijuana case, in which defendant had counsel.

Defendant was acquitted by a jury of the robbery and convicted for the murder.

The AD erroneously suppressed the murder-related statements, as the appellate court improperly compared the murder and robbery charges, instead of comparing the murder to the marijuana charge (whose only unifying factual connection was the car used in both incidents). In other words, questioning about the murder would not have implicated defendant on the marijuana charge. The AD misapplied CPL 470.15 (which permits appellate courts to consider only adverse rulings) to mean that it had to suppress the murder charge because the lower court found it factually related to the robbery charge.

The AD was wrong, as the lower court’s determination regarding the murder charge was adverse to the defendant.

June 14, 2018 People v. Thibodeau Op 04378

2018 NY Slip

This is a 4 to 3 memorandum, with Judge Rivera authoring the dissent, which was joined in by Judges Wilson and Feinman. The Court of Appeals

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affirmed the AD, which affirmed the denial of a CPL 440 motion, following a fact-finding hearing involving a homicide mystery.

under a reverse-Molineux theory either.

See People v. DiPippo, 27 NY3d 127, 138-139 (2016) (addressing third party culpability admissibility).

The 18-year-old victim here went missing on Easter morning in 1994, disappearing from her job as a convenience store clerk. Defendant was convicted of kidnapping; his brother was also a suspect. Defendant was alleged to have made admissions while in prison. The victim’s body has never been found.

In dissent, Judge Rivera points out that there was not overwhelming evidence of defendant’s guilt; indeed, there was no physical or forensic evidence connecting defendant to the crime. There was no ID evidence placing defendant at the scene. The defendant did not

nesses; not surprisingly, all three denied their guilt at the hearing. Evidence linked the three declarants to each other and to the abduction, and supports the reliability of the info indicating that the body was taken to Canada. Conflicting evidence does not render it inadmissible; accordingly, direct evidence is not required for third party culpability evidence to be admitted. DiPippo, 27 NY3d at 136. Judge Rivera believed that the third party culpability evidence at bar was sufficiently corroborated, and was therefore admissible.

The issue of whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching.

In his CPL 440 motion, the defendant raised issues of newly discovered evidence, prosecutorial misconduct and Brady.

This included the admissions of three individuals, all of whom denied culpability at the hearing. Newly discovered evidence under CPL 440.10 (1)(g) must be admissible. Here, however, the potential third party culpability statements did not qualify under the declaration against penal interest hearsay exception. Under People v. Settles, 46 NY2d 154, 167 (1978), the declarant must be unavailable, aware that the statement was against his or her penal interest and have competent knowledge of the facts. Most importantly, there must be independent circumstances to attest to the statement’s trustworthiness and reliability. Though declarations that are exculpatory are subject to a more lenient standard, it is this last component requiring independent corroboration that was purportedly lacking at bar, as there was no independent evidence that these three individuals were near the crime scene at the relevant time.

According to the majority, the link between these individuals and the crime was speculative. The admissions were conflicting. They did not qualify

confess. His brother bought cigarettes at the victim’s store around the time of the crime, and was initially charged with this crime (and eventually acquitted).

The van otherwise thought to have been used to transport the victim contained no forensic evidence connecting the victim. The van’s tire marks did not match the ones found outside of the store.

Defendant, who had an alibi defense, simply wants an opportunity to present the new evidence (regarding the three who made admissions) to a new jury.

The sheer volume of independent third party confessions provide additional corroboration of each one. Chambers v. Mississippi, 410 US 284, 300-301 (1973) (see also FN 7 of this dissent).

The three that confessed indicated that the victim was killed because she was a snitch. They described beating her and disposing of her body in Canada. The admissions were made to several wit-

Finally, Judge Rivera challenges the unavailability component of the declaration against penal interest doctrine, making this the second hearsay exception questioned recently by the judge. See also People v. Cummings, 31 NY3d 204, 213-216 (May 8, 2018) (Rivera, J, concurring) (challenging the validity of the excited utterance hearsay exception in general).

People v. Tiger 2018 NY Slip Op 04377 This successful People’s appeal, reversing the AD, is not a good decision for defendants in general. This is a 5 to 2 opinion authored by the Chief, with Judge Wilson authoring the dissent, joined in by Judge Rivera. Judge Garcia joined in with the majority and authored a separate concurrence. The AD had reversed a summary CPL 440 denial and ordered a hearing on both of defendant’s legal theories: actual innocence and ineffective assistance of counsel (“IAC”). Both were brought under CPL 440.10 (1)(h), which addresses constitutional violations in general. The People only appealed the actual innoContinued on next page

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Court of Appeals Continued from previous page

Legislative Committee: Andy Kossover, Chair (New Paltz) Lori Cohen Greg Lubow Amy Marion Kenneth Moynihan Marvin Schechter Robert Wells Mark Williams

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.

cence claim, meaning that the hearing would go on regarding the IAC issue, regardless of the high court’s decision.

The defendant was the caregiver for a severely disabled 10 year old girl, who required others to bath her. She was unable to speak and was not mobile.

After bathing the child, the defendant noticed red and peeling marks on the child’s legs; she reported it right away.

Medical personnel at first believed that it was a reaction to medication that the child had been taking. But then the burn unit got involved and opined that these marks were from scalding water.

Defendant made incriminating statements to the effect that the water may have been too hot. Defendant ended up pleading guilty to a reckless mens rea crime (endangering the welfare of a physically disabled person; PL 260.25), as her attorney advised that hiring an expert regarding the medical reaction issue would be expensive; further, she would be facing an extensive prison sentence if convicted after trial. Defendant was sentenced to probation.

The complainant’s family sued defendant for damages in civil court. The jury found that defendant’s conduct was not a substantial factor in the child’s injuries being caused. Defendant argued in her post-conviction motion that counsel was ineffective for failure to investigate and that she was actually innocent.

In a narrow reading of CPL 440.10, the court, while recognizing that the system must protect the innocent, held that a post-plea actual innocence claim may only be brought under the legislature’s specific directive under CPL 440.10 (g1), which requires that newly discovered DNA evidence in a post-plea scenario establish a “significant probability” of

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“actual innocence.” (The case at bar was not a newly discovered evidence scenario, as the complainant’s biopsy report was known to the defense from the beginning; further, defendant told her attorney that she did not actually believe that the bath water was hot.)

No free standing “actual innocence claim may be brought under CPL 440.10 (1)(h), which addresses post-plea and post-trial constitutional violations in general. As noted in FN 9, this decision did not address post-trial actual innocence claims, a legal theory that is now accepted in all four judicial departments.

See People v. Hamilton, 115 AD3d 12, 20-27 (2d Dep’t 2014). In support of its narrow reading of Article 440, the majority described at great lengths the importance of finality of judgments in criminal cases in light of the “solemn” act of pleading guilty in court and the importance of preserving judicial resources.

A valid, constitutional and voluntary guilty plea is inconsistent with an actual innocence claim. The case at bar was an IAC case, not a newly discovered evidence / actual innocence case.

(There is also some language from the majority here about the “exceptional nature of DNA evidence as a scientific tool to conclusively determine the identity of an assailant.” See also People v. Wright, 25 N.Y.3d 769, 783 [2015] [observing that “[w]hen DNA evidence is introduced against an accused at trial, the prosecutor’s case can take on an aura of invincibility”].)

Judge Garcia’s concurrence requires some extra commentary. He floats the idea that a coram nobis motion, a long time safety net for litigants, would also be an inappropriate vehicle for a defendant making an actual innocence claim, as the Court of Appeals in recent years

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From Incoming President Continued from page 5 has only applied the coram nobis principle to scenarios where defense counsel missed both the CPL 460.10 notice of appeal and CPL 460.30 extension motion deadlines. See People v. Syville, 15 NY3d 391, 397 (2010); People v. Andrews, 23 NY3d 605, 610-611 (2014). While a coram nobis motion is only appropriate under rare and extraordinary circumstances, as Judge Wilson correctly observes in his dissent, the majority does not adopt Judge Garcia’s view. To be clear, it is not the law of our state at this time that a coram nobis motion is inapplicable for a post-plea free-standing actual innocence claim.

Judge Garcia also repeats the statement we see in other cases regarding the right to appeal from a criminal conviction being purely statutory (under CPL Article 450). This position is contravened by our state constitution, as noted below in the Juarez decision summary, decided on 6/27/18.

In dissent, Judge Wilson pointed out that defendant Tiger “is neither the first nor the last innocent person to plead guilty.” Guilty pleas occur in the vast majority of criminal cases. People plead guilty for a multitude of reasons, not the least of which is to avoid a harsher prison sentence. Like confessions, there are various reasons for people falsely stating that they committed a crime, including coercion, youth and mental illness. See also People v. Thibodeau, 2018 N.Y. LEXIS 1504, at *7 (also decided 6/14/18), FN 2 (noting that some 200 persons falsely confessed to the 1932 kidnapping of the Lindberg baby). Some 45% of exonerations noted by the National Registry of Exonerations were guilty plea cases. Indeed, “[t]he most hallowed principle of our criminal justice system [is] protecting the innocent.” United States v. Watson, 792 F3d 1174, 1183 (9th Cir. 2015).

Most exonerations don’t even involve DNA issues. It was the dissent’s position that the majority decided these issues prematurely, as a fact-finding hearing that will cover the same issues, in essence, was yet to be conducted. “The majority’s attempt to close the door prematurely, with little information as to what lies on the other side, is particularly disturbing.”

People v. Wilson 2018 NY Slip Op 04380 This decision was authored by Judge Garcia, with Judges Rivera and Wilson each writing separate concurrences. The AD is affirmed. There was legally sufficient evidence to support defendant’s conviction for depraved indifference assault (“DIA”) in the first degree under PL §120.10(3). The victim (defendant’s girlfriend) was assaulted over a twomonth time period, having received multiple broken bones, a brain injury and life-long cognitive impairments.

The mens rea element here required that the People show: (1) recklessness (see PL §15.05[3]) creating a grave risk of death, and (2) a depraved indifference to human life, meaning wanton cruelty, brutality or callousness, combined with an utter indifference to whether the victim lives or dies. DIA can be a continuing crime. The evidence here sufficed, as this was a brutal attack that included the defendant having no regret; instead, he isolated the victim and obstructed those who sought to check on her. A rational juror could conclude that defendant was indifferent as to whether the victim lived or died, and engaged in reckless conduct creating a grave risk of death – notwithstanding the fact that he may also have intended to inflict harm on any given occasion. There was no inconsistency with defendant acting with different

overwhelming. The ability to put a question on the listserv when you are on trial, or to call a colleague in another county when you need a referral is invaluable. We are stronger together.

This year I expect to spend time working on making our organization more law student friendly. We are starting a young attorney committee and expect to be working with counselors and deans from law schools across the state to help law students integrate into our criminal defense community.

I am excited to succeed Rob and put my own imprimatur on NYSACDL. As the first woman president in over a decade, I hope to have the organization and Board of Directors more closely reflect the members we serve. It is a new world out there, and I will insure that NYSACDL will not be left behind. A

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Court of Appeals Continued from previous page mental states regarding two different potential or intended results. A DIA charge is not subject to the same restrictions as depraved indifference murder prosecutions are with regard to one-onone intentional crimes (see e.g., People v.

Feingold, 7 NY3d 288, 294 [2006]), as a manifest intent to kill necessarily negates a reckless indifference to the victim’s life.

The first-degree assault intent to cause serious physical injury does not.

In concurrence, though concluding that the evidence at bar was legally sufficient, Judge Rivera opined that, contrary to the majority’s opinion, DIA’s are rare and are analogous to depraved indifference murder prosecutions. The concerns in a DIA prosecution are every bit as concerning, if not more so, including having the jury confused and misperceive a DIA charge as a lesser one compared with intentional assault. In his concurrence, Judge Wilson notes that the defendant acted with separate mental states regarding different occasions, not different outcomes. He also agreed with Judge Rivera that DIA prosecutions are likely to be rare.

June 27, 2018 Matter of the People v.

Juarez; Robles (nonparty respondent)

2018 NY Slip Op 04684

This memorandum addresses a successful People’s appeal from the AD’s reversal of a denial of a motion to quash a news reporter’s subpoena. This was a 4 to 3 decision, with Judges Rivera and Fahey writing separate dissenting opinions, and Judge Wilson joining in both dissents. There’s a number of big picture issues that are addressed here.

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At bar, a New York Times reporter in 2013 interviewed a homicide defendant who recanted his recent confession to the police regarding the gruesome sexual assault and murder of a fouryear-old girl. The DA’s Office wanted the reporter’s notes. The reporter attempted to use New York’s 1970 Shield Law under Civil Rights Law §79-h [c], which protects reporters from being held in contempt for refusing to comply with subpoenas for their notes and unpublished materials obtained in the course of newsgathering.

First, the holding of the court: a nonparty litigant who loses a motion to quash a subpoena does not have a right to appeal if the order denying the motion is issued after an accusatory instrument is filed in the related criminal case. There are no interlocutory criminal appeals under CPL Article 450.

See also Matter of 381 Search Warrants Directed to Facebook, Inc., 29 NY3d 231, 242 (2017). The non-party litigant would have to be held in contempt for non-compliance and appeal that order under the CPLR. The CPL addresses criminal actions and proceedings (CPL 1.10 [1][a]). A criminal action commences with the filing of an accusatory instrument (CPL 1.20 [16]). A criminal proceeding is part of a criminal action or is related to a criminal action or involves a criminal investigation (CPL 1.20 [18]).

At bar, the motion to quash was denied after the accusatory instrument was filed; therefore it is criminal in nature and no right to an appeal exists. The nonparty here has a compelling policy argument, but that is for the legislature to address, not the courts.

Judge Rivera in dissent reminds that our state has a special place in its heart

(i.e., the constitution) in protecting the freedom of the press under Article I, § 8, which was enacted before the federal constitution’s First Amendment was incorporated into the states. Our state protections in this regard have historically been interpreted as granting broader protections that its federal counterpart. Here, the news reporter will have no other recourse for appellate review. The People’s supposed need for the reporter’s notes was not critical or necessary, as they already possessed a video-taped confession. Our state has historically protected the sensitive role of gathering and disseminating news of public events, as well as the right to appeal motions to quash subpoenas in criminal investigations as final civil orders. The dividing line of determining whether a proceeding is civil or criminal in nature should not be the filing of an accusatory instrument, as the CPL also applies to investigations conducted prior to the official commencement of a criminal action. See again CPL 1.10 (1) (a); CPL 1.20 (18) (addressing criminal “proceedings”).

Judge Fahey’s dissent trumpets the importance of the freedom of the press under our state constitution, which was violated at bar. The CPL cannot impede what Article I, § 8, of the constitution has required since 1821. (Before you get too excited, Judge Fahey’s FN 1 prevents criminal defendants from using the language in his opinion, as those litigants already have a statutory right to appeal.) Moreover, New York’s Shield Law has been amended several times since its enactment to broaden the protections of news reporters.

For the appellate practitioners: While the court again states that the right to a criminal appeal is a statutory creation (under CPL Article 450), it also (again)

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recognizes (in FN 1) that indeed the right to appeal is fundamentally based on Article VI, § 4(k) of the NY Constitution. Therein the right to appeal to the appellate divisions from a judgment or final order may not be limited or conditioned by law. That part of the state constitution also recognizes all of the appellate divisions’ authority that existed in 1962 when that provision went into effect. See also generally People v. Pollenz, 67 NY2d 264, 270 (1986); see also discussion in Judge Rivera’s dissent at bar (section II [C] therein).

People v. Myers 2018 NY Slip Op 04685 This is a 5 to 2 decision, with Judge Wilson authoring the majority and Judge Rivera writing for the dissent, in which Judge Feinman joined. The AD is affirmed. The lower court properly followed the procedures under CPL Article 195 and NY Constitution, Article I, § 6, in accepting the defendant’s waiver of his right to waive an indictment and be prosecuted by superior court information (“SCI”). Defendant complains, among other things, that there was no colloquy on the record regarding the significance of the right being waived, a jurisdictional issue that may be considered at the appellate level for the first time. See People v. Boston, 75 NY2d 585, 589, n (1990). While it is the “better practice” for courts to elicit a defendant’s understanding of the significance of the right being waived, it is not required. Rather, as mandated by the state constitution, the waiver must instead merely be in writing, in open court and executed in the presence of counsel. Those things were done at bar. Unlike a jury trial waiver (under NY Const., Art. I, § 2), the indictment waiver requires under the constitution

the “approval of a judge.” The SCI process naturally facilitates a judge’s observations of the procedure in court, as well as the opportunity for the defendant to consult with his or her attorney, who is required to be present during the exchange. Complying with the constitutional requirements establishes a prima facie validity to the proceedings that, absent record evidence to the contrary, are conclusive to the waiver’s legality.

In dissent, Judge Rivera correctly points out that the constitutional and statutory requirements here did not place a ceiling on the court’s requirements for assuring a knowing, intelligent and voluntary waiver of such a fundamental right.

The written document involved in this procedure was intended only to constitute one aspect of ensuring that these indictment waivers are knowing and intelligent. See Governor’s Memorandum, introducing the constitutional amendment, 1973 NY Leg. Ann., at 6. Asking defendants on the record whether they acted with such an understanding is the traditional method of confirming a waiver’s validity. It is not merely a “better practice.” It is a critical component of the court’s obligations in accepting a waiver of this importance. Otherwise, the burden is placed on the defendant to come forward with evidence of involuntariness, etc. In the context of accepting guilty pleas, for example, the record must affirmatively demonstrate that the defendant understood the consequences of his or her decision. The common sense way of doing this is to ask the defendant on the record about the topic.

The drafters of our state constitution had no reason to spell out any further details of the courts’ responsibilities because of the existing case law in place at the time of the 1974 amendment’s enactment that required that defendants be informed by courts on the record

of the important consequences of their decisions. See, e.g., People v. Beasley, 25 NY2d 483, 488 (1969); Boykin v. Alabama, 395 US 238, 243-244 (1969).

Indeed, it has long been the case that courts must “indulge every reasonable presumption against waiver of fundamental constitutional rights.” Johnson v. Zerbst, 304 US 458, 464-465 (1938).

Article I, § 6 of the NY Constitution did not supersede these principles. On this point, while the 1938 jury trial waiver provision (Art. I, § 2) did not explicitly require a colloquy on the record, such has been since mandated through case law. At bar, the allocution with defendant was insufficient to ascertain whether the indictment waiver was knowing, intelligent and voluntary.

June 28, 2018 People v. Morrison 2018 NY Slip Op 04777 This is a 4 to 3 memorandum, with the Chief and Judge Garcia filing separate dissents. Judge Feinman joins in with the dissenters. This is an unsuccessful People’s appeal; the AD’s reversal (following the grant of a coram nobis motion) is affirmed. This is another chapter in the continuing saga of People v. O’Rama (78 NY2d 270, 277 [1991]) and jury notes (see also Parker decision below, also decided on 6/28/18).

The trial court’s failure to provide counsel with meaningful notice of a substantive jury note (i.e., being provided the actual specific content of the note) is a mode of proceedings error, requiring reversal. See People v. Mack, 27 NY3d 534, 538 (2016). The defense just knowing of the existence of the note, as well of the general parameters of its inquiry, is not enough. No objection to this error is Continued on next page

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Court of Appeals Continued from previous page necessary. A new trial must be ordered; a reconstruction hearing is not a sufficient form of relief. In the absence of record proof that that the trial court complied with its affirmative obligations under CPL 310.30, the appellate court will not assume that the error was remedied off the record. People v. Walston, 23 NY3d 986, 990 (2014); People v. Silva, 24 NY3d 294, 300 (2014). Here, the jury’s note indicated that they had reached verdicts on two counts, but was struggling with another count. They sought instruction on whether to continue deliberating or return the next morning.

In dissent, the Chief opines that where there is sufficient ambiguity, there should not be a per se reversal. A reconstruction hearing is warranted instead.

In his dissent, Judge Garcia starts off by noting that this “[d]efendant confessed to forcibly raping a 90-year-old Alzheimer’s patient, and his confession was corroborated by DNA evidence.”

The record here indicated that defense counsel was aware of the note and of the fact that the trial court did not intend to read it into the record. Yet no objection was lodged. Instead, counsel remained silent, knowing that the client had nothing to lose: wait to hear the verdict and hope for an acquittal; if it’s a conviction, it is an automatic reversal.

This enables, according to the dissent, gamesmanship and discourages preservation. Litigants are encouraged here to manipulate the system by remaining silent while error is committed, only to complain of it later. See Walston, 23 NY3d at 992 (Smith, J., concurring).

Judge Garcia thus advocates in no uncertain terms for the Court to revisit its mode of proceedings rule, which is not followed in most jurisdictions (see FN 5), where counsel knows of the existence of the jury note and has an opportunity to object. The judge characterizes

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mode of proceedings relief as “a blunt tool that carries drastic and harsh consequences” (see FN 3). A reconstruction hearing, precluded nw by the majority in the O’Rama context, would be the proper remedy in such a scenario. The policy behind enforcing the preservation rule here was also discussed, including avoiding the “unmanageable morass of collateral proceedings.” The mode of proceedings doctrine should only be applied to a very narrow class of cases.

More commentary: Judge Garcia makes reference to the fact that neither O’Rama nor CPL 310.30 specifically requires a verbatim account of the note and reversal as a remedy for failing to provide significant notice, which, along with the right to respond, makes up the two core O’Rama prongs. As a reconstruction hearing does not specifically violate the exact terms of the principal interest being protected, Judge Garcia’s suggestion, consistent with the Chief ’s opinion, does not actually chip away at the underlying right itself, only with the protection of that right. Be careful here.

This is analogous to the weakening of Miranda in the 1980’s under the public safety doctrine. See Quarles v. New York, 467 US 649, 655, FN5 and 657658 (1984). The court in Quarles wasn’t chipping away at the Fifth Amendment itself, only at the protections surrounding the constitutional right. But it’s those protections that we need to protect. Once those are gone, the enemy may be too close to fight off.

People v. Parker 2018 NY Slip Op 04776 People v. Nonni These two defendants were tried together. This was another 4 to 3 deci-

sion, reversing the AD and ordering a new trial. Judge Rivera authored the majority opinion, with the Chief and Judge Garcia writing separate dissents, joined in by Judge Feinman. This decision should be read in conjunction with the Morrison decision, also decided on 6/28/18, which also affirmed the O’Rama principle that a trial court failing to read into the record the verbatim contents of a significant jury note is a mode of proceedings error, requiring reversal. Meaningful notice of the note requires strict compliance.

The trial court here was faced with three jury notes. The court intended to address the last two notes after a lunch break, but then a verdict was announced. The verdict was ultimately accepted by the court without complying with the O’Rama notice requirement on the last two notes - - with the consent of both parties. Crucially, as in Morrison (above), the majority explicitly rejects in FN 4 the dissent’s offer of affording, like in a Sandoval scenario, just a remittal and reconstruction hearing in place of a full reversal and new trial as a remedy.

In dissent, the Chief believes that a reconstruction hearing would have been more appropriate instead of a new trial, particularly since the record supported the notion that the parties actually saw the content of these notes, with no prejudice to defendants. The Chief here makes an analogous argument to Judge Garcia’s dissent in Morrison (above), in that O’Rama itself did not require such a drastic per se reversal remedy for non-compliance (again, see commentary above). Instead, O’Rama referred to a harmless error analysis, consistent with federal case law addressing jury notes (see FN 1 of present Parker decision).

Atticus | Volume 31 Number 1 | Winter 2019 | New York State Association of Criminal Defense Lawyers

The court also rejected a DeBour argument, as a mixed question of law and fact; as there was record support for the suppression court’s denial, it was beyond the high court’s review. The O’Rama issue was actually not addressed by the AD, which affirmed by a 3 to 2 vote, with the court just focusing on the DeBour issue. The police had reasonable suspicion to pursue, forcibly stop and detain the two defendants, who were seen exiting (one actively fleeing and the other briskly walking from) the location of a reported burglary in progress.

September 13, 2018 People v. Sanchez 32 NY3d 1021 This is a 5 to 2 memorandum, affirming the AD. The People sufficiently disproved in this homicide case the defendant’s justification defense beyond a reasonable doubt. Prior First Department case law containing erroneous weight of the evidence standard language is not to be followed. The correct standard, from People v. Delamota, 18 NY3d 107, 116-117 (2011), People v Danielson, 9 NY3d 342, 348 (2007), People v. Romero, 7 NY3d 633, 643-644 (2006) and People v.

Bleakley, 69 NY2d 490, 495 (1987), requires a determination as to whether an acquittal would not have been unreasonable based on all of the credible evidence. If not, the appellate court must weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony.

Judges Wilson and Rivera dissented, concluding that the matter should be remitted to the AD in order to apply the correct standard (to afford the ap-

pellant the appellate review for which he is entitled). This review includes an appellate court independently assessing all of the proof and substituting its own credibility determination in place of the jury.

People v. Xochimitl 32 NY3d 1026 This is a 5 to 0 to 2 memorandum affirming the AD. Judges Rivera and Wilson filed separate concurrences related to their respective dissents in People v.

Garvin, 30 NY3d 174, 205-221 (2017) (cert. denied, 10/1/18). The question of whether the police received voluntary consent to enter the apartment was a mixed question of law and fact; here there was support in the record for the lower court’s findings. The legality of the police entering a home with the intent of effecting a warrantless arrest was not raised below.

Both Judges Rivera and Wilson continue their well-reasoned argument from Garvin in their concurrences, arguing that the police should not be entering homes for the sole purpose of effecting a warrantless arrest which leads to an involuntary consent (and is not justified by another warrant exception). Such conduct is intended to avoid the warrant requirement and leads to a violation of the defendant’s indelible right to counsel under our state constitution. At bar, no less than seven police officers, some with bullet proof vests, arrived at the residence at 6 am. The elderly mother of the Spanish-speaking defendant (who was a homicide suspect with significant immigration issues) apparently stepped away from the doorway without speaking, she may have gestured for them to enter; this was interpreted as consent.

Though at least one Spanish-speaking officer was present, he had no interaction with the mother. One officer believed the mother only spoke Spanish; the other was not sure. A family member who was present testified that the police never asked for consent. As asked by Judge Wilson, “Do we really believe that the Fourth Amendment’s drafters, fresh from experiences with British colonial rule, intended that taking a step or two back when confronted by a warrantless, armed police presence at your doorstep would vitiate that Amendment’s guarantees? (More particularly, should we interpret New York’s constitution that way?)” Judge Wilson also observed that there may have been cultural differences between the parties wherein the elderly woman’s step back might be misinterpreted as voluntary consent to the officers’ wishes. Indeed, when the police enter a home without a warrant, we are asking too much of everyone involved to attempt to recreate the scene. Just get a warrant. It serves the high function of interposing a magistrate between the police and the citizenry - - so that an objective mind might weigh the need to invade one’s privacy to enforce the law. See McDonald v. United States, 335 US 451, 455-456 (1948) (for pertinent quote from the court).

October 11, 2018 People v. Drelich 32 NY3d 1032 This unanimous memorandum reversed the Appellate Term in this successful People’s appeal. The accusatory instrument was not jurisdictionally defective for the charge of patronizing a prostitute in the third degree pursuant to PL §130.00 (10). Giving the Continued on next page

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Court of Appeals Continued from previous page allegation a fair and “not overly restrictive or technical reading” (People v.

Casey, 95 NY2d 354, 360 [2000]) and drawing reasonable inferences therefrom, the allegations herein established the reasonable cause standard. See CPL 100.40(4)(b). Apparently Mr. Drelich was said to have requested “manual stimulation” from a woman on a street corner for a specific amount of money at 2:25 am. The evidentiary defense that defendant was actually seeking to pay for nonsexual activity in the middle of the night on a street corner could be presented to a jury (likely one with a sense of humor), but these allegations were sufficient to survive the motion to dismiss stage.

October 16, 2018 People v. Crespo 2018 NY Slip Op 06849 This has not been a good year for defendants’ requests to represent themselves pro se. See People v. SIlburn, 31 NY3d 144 (2018) (finding defendant’s request to represent self pro se was not unequivocal). Here the People won a 4 to 3 decision, with the Chief authoring the majority opinion, as she did in Silburn.

Judge Rivera authored the dissent and was joined by Judges Wilson and Fahey.

The majority here struts out the flowery language about how fundamental the right to represent one’s self is. See People v. McIntyre, 36 NY2d 10, 14 (1974) (observing that it embodies “the right of an individual to determine his [or her] own destiny”); Faretta v. Califormia, 422 US 806 (1975). But that right is not absolute.

At bar, it was asserted too late. For four decades, defendants were permit-

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ted under McIntyre to request going pro se prior to opening statements.

The Crespo court, however, now says that the request must be made before jury selection, as it otherwise is being made after the commencement of trial.

McIntyre’s three-prong analysis for trial courts dealing with a pro se request is that it must be: (1) unequivocal / timely and (2) knowing / intelligent and (3) defendant may not engage in conduct which would prevent the fair and orderly exposition of the issues.

Silburn crushed defendant’s dreams regarding the first part of the first prong; Crespo now stamps out the second part of the first prong. If the first prong is not complied with, then the trial court’s decision in the matter is reviewed under an abuse of discretion standard.

At bar, the defendant was on trial for attempted murder. He was so unhappy with his defense attorney that he gave the trial court an ultimatum: assign me a new attorney or I am not showing up for my own trial. Defense counsel attempted to be relieved as counsel.

Eleven jurors were picked in defendant’s absence. Defendant then appeared and requested to continue pro se. The court said it was too late. Defendant threatened to disrupt the proceedings if he was forced to be present, so the court excluded him from the proceedings.

The remainder of the trial was conducted in defendant’s absence. The AD reversed the conviction. The Court of Appeals reversed the AD. So the request was untimely here because it was made after jury trial commenced. The majority opines in footnote 1 that the 1974 McIntyre decision cites (at 36 NY2d at 18) to the then newly enacted CPL 1.20 (11) (indicating that a jury trial commences

with jury selection) when discussing the definition of “trial” as a signal that the definition of the commencement of a trial had changed since defendant McIntyre’s 1971 trial. At that time, the former Code of Criminal Procedure applied. See CCP §388 (1) (indicating that the trial commenced with opening statements). The Court further notes that the Second Circuit also requires that a pro se request be made prior to jury selection. United States v. Stevens, 83 F3d 60, 66, 67 (2d Cir. 1996).

Judge Rivera offers another scathing dissent, noting that the majority utilizes People v. Antommarchi, 80 NY2d 247, 250 (1992), which recognized a defendant’s right to be present for jury selection, a material stage of the proceedings, against defendant Crespo here. To say that jury selection is material and therefore a part of the trial for McIntyre purposes, turns caselaw meant to protect defendants’ rights on its head.

If a proceeding is so important as to require a defendant’s presence, why is the defendant not entitled to make a decision of this importance during the proceeding? Defendant Crespo had made his dissatisfaction with his defense attorney known to the trial court some six months before trial. Making jury selection the official commencement of trial does not create certainty, as there will still be factual issues as to when the procedures actually began. There is no basis for concluding that New York trial courts have had chronic trouble with pro se litigants disrupting proceedings. In fact, most cases are pled out.

Stare decisis, which promotes efficiency, stability and the concept of the Court as an institution, should have ended the majority’s analysis.

Atticus | Volume 31 Number 1 | Winter 2019 | New York State Association of Criminal Defense Lawyers

October 23, 2018 People v. Baisley 32 NY3d 1020 This unanimous memorandum affirmed the Appellate Term. Supreme Court had constitutional authority (NY Const., Art. VI, §7) to issue a support order in the context of a matrimonial proceeding. The parties mistakenly believed that the underlying order was issued by Family Court. The defendant’s claim that Family Court has exclusive jurisdiction over criminal charges based on violations of its own support order is of no moment.

People v. Grimes 2018 NY Slip Op 07038 I apologize for the length of this summary, but this is a bad one. While Arjune was likely the worst decision for defendants in 2017, Grimes might take the trophy home for this year. In 2014, the Court in People v. Andrews, 23 NY3d 605, 614, held in part that it did constitute ineffective assistance of counsel or a violation of due process under the 6th and 14th amendments to the federal constitution where counsel fails to file with the Court of Appeals a criminal leave application (“CLA”) within 30 days of service of the AD decision or a CPL 460.30 extension motion within a year after the CLA was due. In Grimes, the Court holds that the state constitution (art. I, §6) is not violated by these omissions either. The AD is affirmed and appellant’s motion for a writ of error coram nobis (“CN”) was properly denied. The Chief writes here for the 5-2 majority. Judge Wilson authored the dissent, joined in by Judge Rivera. Rhetorical sharp elbows are thrown around in both opinions.

At bar, defense counsel was obligated under First Department Rule 606.5 (analogous to the other three judicial departments) to file a CLA with the Court of Appeals, but failed to do so despite assuring his client that he would. The CN motion in question relied upon People v. Syville, 15 NY3d 391, 398 (2010), wherein the Court held that CN relief was appropriate, in that the federal constitutional rights to due process and the effective assistance of counsel were violated where a notice of appeal was not timely filed to effectuate a first-tier appeal as of right with the AD, and no CPL 460.30 motion (a codified form of CN relief enacted in 1977) was filed. According to appellate counsel, the defendant could not have reasonably discovered the attorney’s omission within the one-year CPL 460.30 time period. Again, Andrews rejected this argument for discretional second-tier appeals to the state’s highest court.

The CN doctrine was expanded with the enactment of CPL to become a legal avenue where none other are available; not just the correction of fundamental or constitutional errors occurring at the trial level. Although most of the common law CN-type of relief was abrogated when the CPL was enacted, CPL 440 did not expressly abolish the common law writ of CN or necessarily embrace all of its prior or unanticipated functions. People v. Bachert, 69 NY2d 593, 599 (1987). Accordingly, CN relief was available in Syville for a socalled “Montgomery claim” (which was largely superseded by CPL 460.30) where a defendant loses the fundamental right to appeal through no fault of his (or her) own. Andrews, 23 NY2d at 610611; People v. Montgomery, 24 NY2d 130, 132 (1969).

The majority held that, unlike the fundamental right to appeal a criminal judgment to the AD, there is no such right to appeal a non-capital criminal judgment to the Court of Appeals, which provides second-tier discretional review. Accordingly, there is no constitutional right to counsel in filing a CLA and the failure to file a CLA therefore does not constitute ineffective assistance. Though the right to counsel under art. I, §6 of our state constitution has long been interpreted more expansively than its federal counterpart, there is no such state constitutional right during post-conviction proceedings. However, once a state has granted defendants the right to a first-tier appeal, whether by statute or constitution, the process must be meaningful. In other words, due process under the 14th Amendment mandates that counsel be provided. But no such right, according to the majority, exists for second-tier review. Unfortunately, the majority does not find that the state constitution provides greater protections for the right to counsel than the federal constitution in this context, as the Court of Appeals has mirrored federal case law in analyzing due process protections for appellate review. Moreover, it was the legislature’s prerogative to enact a one-year time limit for an extension motion in CPL 460.30.

The majority explained that there are different questions considered by the AD, as opposed to the Court of Appeals. While the former deals with individual errors, the high court concerns itself with the bigger picture - - i.e., legal principles of major significance to the jurisprudence of our state, matters of significant public interest and judgments conflicting with US Supreme Court case law. For some reason, the majority attempts to use this reasoning Continued on next page

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Court of Appeals Continued from previous page to support the concept of indigent litigants having less protection by a competent attorney. Context is discussed. New York’s right to counsel case law regarding self incrimination and involuntariness of statements, for instance, is not, according to the majority, implicated in this second-tier review. (This latter point is really lost on me. Why would these issues be any less important before Court of Appeals than they were before the AD?) Finally, the majority mentions the miscarriage of justice exception (McQuiggen v. Perkins, 569 US 383, 392 [2013]) for the implicated procedural default in federal habeas litigation that would result from a CLA not being filed. Good luck to Mr. Grimes in federal court.

As Judge Wilson correctly observes in his dissent, the true question in this case was not whether every CLA applicant has the constitutional right to counsel.

They already have that right through the rules of each AD, which require an assigned appellate attorney to file a CLA with the Court of Appeals if requested to do so by his or her assigned client. Approximately 98% of CLA’s are filed by attorneys. The real question is whether the already assigned attorney should be held to the state effective assistance of counsel standard (which is, in fact, “broader and more powerful” than the federal one) when handling an application authorized by statute (CPL 460.10) to seek access for the indigent before the state’s highest court.

Though the majority opines that trial-level case law regarding effective assistance of counsel is not relevant, in fact the Court of Appeals has required that appellate attorneys meet the same standard as trial counsel. People v.

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Stultz, 2 NY3d 277, 279 (2004). The majority’s implications that the briefing in the AD and the often-thorough record on appeal make counsel’s assistance in the CLA less important is a difficult pill to swallow in light of the complexity and difficulty in preparing a decent CLA. Further, as the AD and the Court of Appeals may be looking at different issues (i.e., error correction versus big picture), an attorney’s assistance becomes even more important. The majority’s fear of every post-conviction litigant needing an assigned attorney is without basis. Finally, our state’s high court has had no hesitation in rejecting CN claims in the CPL 460.30 context: recall Andrews (2014), Perez (2014) and Rosario (2015).

More commentary: In People v. Arjune, 30 NY3d 347, 356 (2017) (cert. denied, 10/1/18), the Court held that it did not constitute ineffective assistance of counsel for trial counsel not to file a motion for poor person status with the AD. Now with the Andrews / Grimes line of cases and the Court only granting 1.1% of CLA’s in 2017 (a fifteenyear low), it seems safe to predict that indigent criminal defendants in our state will likely be finding it harder and harder to secure a place at the appellate table. After all, if our state’s highest court will not hold advocates for the indigent accountable when they fail to properly seek access for their clients to the appellate courts, why would anyone expect such access to do anything but decrease?

be the ones applying to the court?

Further, the majority’s constant reference to review by the Court of Appeals as merely second-tier seems to imply a lesser importance to the singular work that the Court performs. To quote Judge Wilson: Yes, we accept only a small fraction of cases for review, but slim odds are not a reason to deny an indigent defendant the right to effective counsel once the State has required appellate counsel to prepare a CLA. Finally, Judge Wilson makes sure we all are paying attention to the CN issue in general, as he points out the majority’s concession that CN relief may still be had despite a statutorily imposed jurisdictional time limit being challenged (see again Montgomery, Syville and People v. Tiger, -- NY3d -- , 2018 NY Slip Op 04377 [2018] [Wilson, J., dissenting] [observing that Judge Garcia’s concurring remarks regarding the limits of CN relief were not adopted by the majority]). A

Moreover, as Judge Wilson questioned in dissent, why are our standards going down the further up the judiciary food chain we go? Why would weightier and more significant issues having statewide importance not trigger greater protections by competent counsel who would

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Editorial Continued from page 4 DUI defense, has written an excellent primer on the subject that is helpful for new counsel and a refresher for more experienced practitioners. In the spirit of encouraging our next generation of defenders to join us in our organization I hope you will consider passing the magazine along to some of them and ask them what they would like to see reflected in these pages going forward.

This piece is bittersweet for me to write, as this will be my final issue as Editor. New professional responsibilities mean I have to step down from my work with Atticus. I got my start with Atticus through the late Past-President Dick Barbuto, who recruited me to write a book review for the magazine

many years ago and then shepherded me along the way until his untimely death last year. I also owe a debt of gratitude to fellow editor John Wallenstein who knows only too well the pressures of getting this magazine out to print. Our executive director, Jennifer Van Ort, and our designer, Rose Tannenbaum, both have been life savers in this process as well, and I know they will continue to do an incredible job assisting the new team of editors. The importance of this magazine for our membership and our visibility within the defense community as well as upstate among our legislators cannot be overstated. Putting out this magazine is a daunting task requiring teamwork and hard work, and I encourage any interested member who is able

to commit to working on the magazine and continuing this tradition to reach out and get involved.

Wishing us all a 2019 filled with hard fought acquittals, appellate wins, and the smaller successes on behalf of our clients; as well as more representation of the incredible diversity among our ranks.

—JESSICA HORANI

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Bail Reform Continued from page 21 by a party’’ and ‘‘[i]f he decides that an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.’’ Gall at pp. 49-50. Since Booker, Crosby, Gall, et al., a sentencing court is required to consider the nature and circumstances of the offense and the history and characteristics of the defendant; the need for the sentence imposed to reflect the seriousness of the offense, promote respect for the law, provide just punishment for the offense, afford adequate deterrence to criminal conduct, protect the public from further crimes of the defendant, provide the defendant with needed training or treatment; the kinds of sentences available; the sentencing ranges established by the USSG for the crime(s) of conviction; pertinent policy statements of the USSG Commission; the need to avoid unwarranted sentencing disparities; and the need to provide restitution to victims (18 USC § 3553 (a) and (b)).

ers to receive a USSG sentence below the mandatory term of incarceration, if credited by the government. Since Booker, Crosby and Gall, eligible offenders enjoy an additional benefit that permits them to seek a nonincarceratory sentence

Sentencing judges are permitted to allow an individual awaiting sentence to remain at liberty on bail or on their own recognizance while pending sentencing only if the crime of conviction is not delineated in 18 USC § 3142(f)(1)(A-C) and if the defendant is not a flight risk or a danger to the community. Setting aside those circumstances relating to a motion for an acquittal or a new trial because convictions after trial represent a very small minority of cases, the requirement of a recommendation from the government is problematic for defendants in many jurisdictions.

Judges are no longer required to impose a sentence within the range set forth in the U.S. Sentencing Guidelines (USSG). … Judicial sentencing discretion is still strictly curtailed, however, by U.S. Code (USC) statutes.

For more than a decade, federal courts have considered all of the 18 USC § 3553(a) factors, including the USSG, in order to arrive at a sentence. See Crosby, 397 F. 3rd at 113; USSG § § 1B1.1(c).

Before Booker, Crosby and Gall, in highquantity narcotics cases charged under a statute which included a mandatory minimum term of imprisonment, certain Criminal History Category I offenders were entitled to apply for relief from a sentence at or above the mandatory minimum by making a proffer to the government. This form of relief, known as a ‘‘safety valve,’’ enables certain offend-

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variance for low-level participation in trafficking crimes. Similarly, in certain violent offense cases, though no safety valve consideration exists, e.g. 18 USC § 1951, Hobbs Act Robbery, a defendant whose role in the offense was limited, minor or minimal can receive a variance from a USSG range of incarceration to a non-incarceratory sentence.

PRE-SENTENCING PROBLEMS CREATED BY THE BAIL STATUTE In the vast majority of cases, 18 USC § 3143(2) empowers only the government to prevent the mandatory detention of a person convicted of a crime delineated in 18 USC § 3142(f)(1)(A-C) while that person is awaiting sentencing. Such a person may remain at liberty only if ‘‘there is a substantial likelihood that a motion for an acquittal or new trial will be granted’’ or ‘‘an attorney for the Government has recommended that no sentence of imprisonment be imposed on the person’’ and if the presiding judge determines ‘‘by clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community.’’

In the U.S. Attorney’s Office for the Southern District of New York, for example, local defense practitioners know that office policy prohibits prosecutors from making specific sentencing recommendations. Typically, the government will make only a general recommendation that the court impose a sentence within the USSG range or, at best, not object to a variance therefrom or concede that a variance would be appropriate. Thus, at least by custom and practice, defendants in this jurisdiction (and many others) cannot avoid mandatory presentence detention, sometimes for months, while the pre-sentencing process proceeds toward the sentencing date.

Consider the following hypothetical illustrations of individuals convicted by guilty pleas to a narcotics conspiracy and a Hobbs Act Robbery conspiracy, respectively.

NARCOTICS CONSPIRACY Ms. X is a 50-year-old naturalized U.S. citizen. She has lived at the same residence in New York City for more than

Atticus | Volume 31 Number 1 | Winter 2019 | New York State Association of Criminal Defense Lawyers

20 years and has been employed and filing tax returns for the same length of time. She is also a single mother of three teenaged children, whom she solely supports. She has no prior criminal record.

Mr. Y is a family friend from Ms. X’s native country. Unbeknownst to Ms. X, Mr. Y has recently established a thriving narcotics trafficking business by sending narcotics from his location overseas to the United States. Mr. Y contacted Ms. X after obtaining her telephone number from a mutual acquaintance. Although he was initially merely social, over the course of the next year, Mr. Y applied significant pressure on Ms. X to become involved in his narcotics trafficking activities, which she resisted. Finally, she relented and agreed to participate in a single narcotics transaction. Mr. Y notified Ms. X that he was sending an unknown individual, Mr. Z, to meet with and leave narcotics with Ms. X. She was not informed of the type of drug or the quantity she would receive, she had no pecuniary interest in the transaction, she had no idea how much compensation she would earn for accepting the package and delivering it to Mr. Y, and she had no understanding of the size or scope of Mr. Y’s narcotics business overseas or in the United States. Ms. X’s activity was limited to a series of telephone calls with unknown individuals at the explicit direction of Mr. Y over the course of a couple of days to arrange receipt of the narcotics package from Mr. Z. The scope of her agreement was to accept the package, which she knew only would contain an unknown quantity of narcotics of an unknown type, from Mr. Z and to deliver it to Mr. Y. Federal agents arrested Ms. X when she accepted the package from Mr. Z. The package was revealed to contain just under a kilogram of heroin although

Ms. X did not know the quantity and type until she was so advised by law enforcement officials. She immediately confessed to her involvement in the crime in a post-arrest, post-Miranda statement. Ms. X was presented for arraignment on a complaint before a U.S. magistrate judge in the Southern District of New York. She was charged with a narcotics offense for which, if convicted, she would receive a mandatory minimum sentence of five years incarceration (21 USC § § 841(a), 841(b) (1)(B)) and was released from custody on a personal recognizance bond the same day. For many months after her release on bail, Ms. X was supervised by the U.S. Pre-Trial Services Agency (PreTrial Services). She was in full compliance with all of the conditions set by the court and the Pre-Trial Services officer who supervised her pre-conviction bail status.

Pursuant to 18 USC § 3553(f )(1-5) and USSG § 5C1.2(a)(1-5), Ms. X applied for and attended a ‘‘safety valve’’ proffer session with her attorney, the prosecutor, and the federal agent who arrested her in order to seek relief from the mandatory five-year minimum term of incarceration. During the proffer, Ms. X fully accepted responsibility for her conduct and demonstrated true remorse.

The prosecution notified the defense of its intention to credit Ms. X’s safety valve proffer and recommend to the sentencing court that she be sentenced without regard to the statutory fiveyear minimum term of incarceration.

Moreover, during plea negotiations, the prosecutor agreed to designate Ms. X a ‘‘minimal participant’’ pursuant to USSG § 3B1.2(a), the lowest level participant in the case. The calculation of her Offense Level pursuant to the USSG was driven by the quantity of the

heroin in the package (between 700-999 grams), over which she had no control (USSG § 2D1.1(6)). Her Offense Level was reduced because of her minimal participation (USSG § 3B1.2(a)), safety valve eligibility (USSG § 2D1.1(17)), and acceptance of responsibility (USSG § 3E1.1). The combination of Ms. X’s adjusted Offense Level and the fact that she had no other criminal history resulted in a USSG recommendation of 30-37 months of incarceration.

Based upon Ms. X’s personal history and characteristics and her minimal role in the offense, she appears to be a good candidate for a non-incarceratory sentence. However, despite the equities in her favor and her strict compliance with the requirements of Pre-Trial Services, 18 USC § 3143(a)(2) and § 3142(f )(1) (A-C) require Ms. X to be incarcerated upon the district court judge’s acceptance of her guilty plea pursuant to Fed. R. Crim. P. 11(b). Because Ms. X has accepted responsibility for her commission of the offense, thereby demonstrating remorse for her conduct, preserving government and judicial resources and earning a reduction of her USSG Offense Level, she cannot, of course, make a motion for acquittal or a new trial.

18 USC § 3143(a)(2)(A)(i). Similarly, if her case were pending in a jurisdiction such as the Southern District of New York, the government’s office policy would prohibit the prosecutor from making a recommendation, at any time, to the judge that she not receive a sentence of imprisonment. 18 USC § 3143(a)(2)(A)(ii). Therefore, no matter how clear and convincing the judicial officer may find that she is ‘‘not likely to flee or pose a danger to any other person of the community,’’ (18 USC § 3143(a)(2)(B)) and no matter how likely the possibility that she will receive a sentence of imprisonment, she must Continued on next page

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Bail Reform Continued from previous page

be jailed until her sentencing hearing, leaving her three children to be cared for by family members and hoping that she will be have a job to return to in order to support them when she is released from custody.

HOBBS ACT ROBBERY In 2009, co-conspirators B and C planned to intercept an individual inside the lobby of an apartment building and rob him, at gunpoint, of narcotics trafficking proceeds. The defendant, Mr. A, did not participate in planning the robbery. He did not know of its object until after the plan was made and never knew the intended victim. Mr. A joined the conspiracy to act as an unarmed lookout while sitting in his motor vehicle outside the planned robbery location. He was unaware of the amount of compensation he would receive for his assistance.

On the day of the robbery, after receiving instructions from his co-conspirators, Mr. A drove alone to the location and parked across the street from the building. He did not meet them at the location. During the robbery, Mr. A remained alone in his vehicle, unarmed and in cellphone contact with B and C. He was unable to see the events occurring inside the building and merely watched the building entrance to warn his coconspirators of potential police activity nearby. His compensation for his participation in the robbery was $2,000.00 of the $30,000.00 stolen by his coconspirators. Mr. A was not arrested and charged with the offense until nearly five years after the robbery occurred. He had lived a law-abiding life in the area under his true name for the entire post-robbery period.

Mr. A had no prior or subsequent crimi-

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nal record. He was a naturalized U.S. citizen in his late 20’s at the time of his arrest. He is the father of four children, one of whom suffers from a mental disability. At the time of his arrest, and for a number of years prior, he was supporting his family with full-time, lawful employment. The magistrate judge presiding over his initial appearance released Mr. A on a bond despite the violent nature of the crime. During the course of his supervision by Pre-Trial Services, Mr. A was in compliance with his release conditions and continued to work to support his family.

Mr. A pleaded guilty to a violation of 18 USC § 1951, Hobbs Act Robbery. His USSG Offense Level (USSG § 2B3.1(a)) was adjusted upward as a result of factors over which he had no control: his co-conspirator’s use of a firearm (USSG § 2B3.1(b)(2)(C)) and the amount of money stolen (USSG § 2B3.1(b)(7)(B)). After receiving a reduction for his acceptance of responsibility (USSG § 3E1.1(a) and (b)), and considering his criminal history, the USSG recommended a range of imprisonment of 46-57 months.

Mr. A demonstrated an admirable level of acceptance of responsibility and contrition for his participation in the crime. By all accounts, in the nearly five years since the robbery, he had matured and moved on. He had resisted further illegal conduct, remaining arrest-free.

When he was interviewed by the U.S. Probation Department during its presentence investigation, he demonstrated remorse and regret for his participation in the single robbery.

Based upon Mr. A’s personal history and characteristics, the limited nature of his

participation as an aider and abettor in the crime and his years of selfrehabilitation, the defense would likely request a nonincarceratory sentence. Pursuant to 18 USC § 3143(a)(2), despite the equities in Mr. A’s case, he would be in the same position as Ms. X in the previous example. The law requires that he be remanded into custody until his sentencing date. He must leave his common-law wife with the entire burden to care for their four children, without his emotional and financial support, for the time between his guilty plea and sentencing hearing, even if he is ultimately not sentenced to a term of incarceration.

POTENTIAL REMEDIES Why not allow judicial officers the discretion to permit a low-level participant guilty of an offense described in 18 USC § 3142(f)(1)(A-C) to be released on bail or recognizance upon a finding that a defendant is not a flight risk or a danger to others or to the community? As with the same decision to be made at other stages of the prosecution, and to the extent that the statute may imply that the government has greater knowledge of the facts and circumstances of the case than the defendant, the government would have the opportunity to make any relevant arguments before the court against continued release, including that the guilty plea or conviction after trial represents a changed circumstance in favor of incarcerating the defendant pending sentence.

Defense counsel would presumably focus on the defendant’s personal background, including work and education history and his/her role in the offense as well as the defendant’s behavior while on bail or recognizance pending prosecution and compliance with the terms of Pre-Trial Services supervision.

Atticus | Volume 31 Number 1 | Winter 2019 | New York State Association of Criminal Defense Lawyers

District court judges have enjoyed greater sentencing discretion since Booker and its progeny. Judges are no longer strictly controlled by mandatory sentencing guidelines which are often driven by factors outside the control of low-level offenders (e.g. quantity or type of narcotics, presence of a weapon or amount of money stolen in the commission of a robbery). Judicial officers are empowered to rule that imprisonment is not necessary under the circumstances of a particular case. Therefore, it is illogical that they are obligated to incarcerate a defendant for the period of time between conviction and sentence who was released on bail or recognizance for the duration of the prosecution and who will not receive a sentence of imprisonment.

Experience in the Southern District of New York demonstrates that a procedural loophole exists that enables some offenders implicated by 18 USC § § 3142(f )(1)(A-C) to remain at liberty until sentencing. Defendants whose cases are assigned to a district judge whose practice is to refer guilty pleas to a magistrate judge have been permitted to remain at liberty until their sentencing date. 28 USC § 636(b)(3) permits a magistrate judge delegated by a district judge in a felony prosecution to administer—but not accept—a Fed. R. Crim. P. 11 guilty plea allocution, provided that a defendant consents to this delegation. (See U.S. v. Williams, 23 F.3d 629 (2nd Cir. 1994) and Article III of the U.S. Constitution). Thus, the time between a magistrate judge’s hearing of the guilty plea and the time of the district judge’s acceptance of it operates as an unofficial reprieve for those whose cases would otherwise fall within the mandatory detention dictates

of 18 USC § 3143(a)(2). To the extent that defense counsel can use that time to perform the work that is typically conducted between conviction and sentence, i.e. preparation of a sentencing memorandum, work with the Department of Probation toward completion of its investigation and preparation of its report, this will minimize the number of occurrences of low-level defendants’ mandatory incarceration pursuant to 18 USC § 3143(a)(2).

Unfortunately, those defendants whose cases have been assigned to district judges who hear and immediately accept their own guilty pleas are destined to be incarcerated immediately despite their eligibility for no sentence of imprisonment, and even the likelihood that such a sentence will be imposed. Some practitioners have become adept at working to steer their client’s cases toward guilty plea hearings by magistrate judges when the assigned district judge has no strict policy of hearing his/her own guilty pleas.

Another possible unofficial reprieve from presentence incarceration from post-conviction/presentence incarceration might be to request that a district court judge not immediately accept the client’s guilty plea, thereby avoiding an immediate conviction (see Fed. R. Crim. P. 11(b)(3)) and the mandatory detention provision. This would require district judges to engage in the unseemly task of circumventing 18 USC § 3143(a)(2). One final possibility is to hope that the U.S. Attorney’s Office would start to make sentencing recommendations in this limited number of cases.

In the hypothetical cases of Ms. X

and Mr. A, absent the employment of a ‘‘loophole,’’ both would have been required to argue for non-incarceratory sentences while in custody. Experienced defense attorneys believe it is arguably more of a challenge to convince a district court judge to sentence someone returned to custody to a period of timeserved than to do the same for a similarly-situated defendant who has avoided mandatory pre-sentence detention to receive a nonincarceratory sentence.

Based upon the sentencing judge’s discretion found in 18 USC § 3553(a), equity dictates that the sentencing judge should enjoy the same discretion to act when determining someone’s postconviction bail status as their ultimate sentence, regardless of whether they have committed a 18 USC § 3142(f )(1) (A-C) offense.

CONCLUSION I urge Congressional action to ameliorate this anomaly in the statutory scheme at the intersection of 18 USC § 3553(a) and 18 USC § 3143(a)(2) that has become more evident during the post-Booker sentencing era.

In my view, the solution is simple in both its principle and its implementation. Power and discretion should be restored to the district court judges who can hear the arguments of the government and the defense as to the particular defendant they will shortly sentence and make an informed and specific decision regarding whether that individual, under the specific circumstances which exist, should either be freed or remain free pending sentence. The amendment of 18 USC § 3143(a)(2)(A)(ii) to change the final word ‘‘and’’ to ‘‘or’’ and the amendment of 18 USC § 3143(a) (2)(B) to simply use the same language Continued on next page

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CLE

NYSACDL Fall CLE Calendar

Scenes from Fall 2018 CLE programs

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Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers

NYSACDL Spring CLE – Upcoming Dates Adirondack Criminal Defense Seminar, Lake Placid 2019

Friday, April 12, 2019 Conference Center at Lake Placid Lead Sponsor Central New York Criminal Defense Seminar Spring 2019

Date TBD

Cross to Kill 2019

Friday, May 20, 2019 New York Law School New York, New York

Bail Reform Continued from previous page to create a new subsection 18 USC § 3143(a)(2)(A)(iii) would accomplish this goal. The new statute would require judicial officers to detain defendants pending sentence unless ‘‘there is a substantial likelihood that a motion for acquittal or new trial will be granted’’ or the Government ‘‘has recommended that no sentence of imprisonment be imposed on the person’’ or there is ‘‘clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community.’’

In the limited number of cases in which defendants have committed admitted serious crimes under unambiguously mitigating circumstances, I submit that their freedom between guilty plea and sentence should not be forced to rely upon upon the happenstance of the procedures of the district judge to whom their prosecution is assigned or the policies of the U.S. Attorney’s Office in the jurisdiction of which they committed the crime. Instead, as with all other stages of the proceeding, and more consistently with the principles of the criminal justice system, every defendant’s liberty should depend upon an assessment of the risk that the defendant will inflict harm on the public or will not return to court.

Stated more simply, every defendant’s liberty must depend upon due process. A

Atticus | Volume 31 Number 1 | Winter 2019 | New York State Association of Criminal Defense Lawyers

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Atticus | Volume 31 Number 1 | Winter 2019 | 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

LEGISLATIVE COMMITTEE

Chair: Richard Willstatter (willstatter@msn.com) Members: Marc Fernich, Timothy Murphy, Claudia Trupp

Chair: Andrew Kossover (ak@kossoverlaw.com) Members: Lori Cohen, Greg Lubow, Amy Marion, Kenneth Moynihan, Marvin Schechter, Robert Wells, Mark Williams

ANNUAL DINNER COMMITTEE Chair: Lori Cohen (locohen@aol.com) Members: Timothy Hoover, Jessica Horani, Andy Kossover, Arnold Levine, John Wallenstein, Susan Walsh, Robert Wells

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: John S. Wallenstein (jswallensteinesq@outlook.com) 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, Jacqueline Cistaro, 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

MEMBERSHIP COMMITTEE Chair: Steven B. Epstein (sepstein@barketmarion.com) Members: Peter Dumas, James Grable, Jr., Steven Kunken, Alan S. Lewis, 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, Bill Beck, Lori Cohen (NYSACDL President-Elect), Clare J. Degnan, Jane Fisher-Bryialsen, Russell Schindler, Don Thompson, Richard Willstatter; Bennett Gershmann (Advisory Member), Ellen Yaroshefsky (Advisory Member)

PUBLICATIONS COMMITTEE Chairs: Jessica Horani (jhorani@nycds.org) Members: 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: Lee Bergstein, 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

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NYSACDL Membership

The Largest Criminal Defense Bar Association in New York State

PROMOTING EXCELLENCE IN CRIMINAL DEFENSE • OUR MEMBERSHIP IS OUR GREATEST STRENGTH PRESIDENT Lori Cohen, Manhattan

PRESIDENT-ELECT Timothy Hoover, Buffalo

FIRST VICE PRESIDENT Arnold J. Levine, Manhattan

VICE PRESIDENTS Michael T. Baker, Binghamton James W. Grable, Jr., Buffalo Jessica Horani, Manhattan Kenneth Moynihan, Syracuse Susan J. Walsh, Manhattan

SECRETARY Alice Fontier, Manhattan

TREASURER Alan S. Lewis, Manhattan

EXECUTIVE DIRECTOR Jennifer Ciulla Van Ort, Albany

LIFE MEMBERS Daniel Arshack Wayne C. Bodden Peter E. Brill

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 Renee Hill E. Stewart Jones, Jr. Kathryn M. Kase Ray Kelly Lee Kindlon Terence L. Kindlon Seth H. Kretzer Gerald B. Lefcourt David L. Lewis Thomas F. Liotti Scott Lockwood Zachary Margulis-Ohnuma Florian Miedel Aaron J. Mysliwiec Brian Joseph Neary Thomas J. O’Hern

Benjamin Ostrer Paul D. Petrus Frank Policelli Murray Richman Stacey Richman Joel B. Rudin Todd J.W. Wisner

PRESIDENT’S CLUB MEMBERS George Goltzer Kevin D. O’Connell

SUSTAINING MEMBERS James A. Baker Paul M. Callahan Richard Cary Spivack Joseph R. DeMatteo Brian J. DeSesa Karen L. Dippold Michael G. Dowd Peter M. Frankel Mario F. Gallucci David I. Goldstein Trevor W. Hannigan James P. Harrington

Daniel J. Henry, Jr. Michael D. Horn John Ingrassia Robert P. Leighton Greg D. Lubow Christopher X. Maher Mark J. Mahoney Michael P. McDermott Oscar Michelen Kenneth Moynihan Marcos A. Pagan, III Steven K. Patterson Verena C. Powell Roland G. Riopelle Anastasios Sarikas 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 JANUARY 3, 2019) ALBANY COUNTY Scott Iseman BRONX COUNTY Danielle Follett Figueroa

ERIE COUNTY Justin Ginter Jessica Kulpit Robert D. Steinhaus

CATTARAUGUS COUNTY Dana Fogle Stephanie Hale

FRANKLIN COUNTY Alexander Nichols Kevin F. Nichols

CORTLAND COUNTY Elizabeth Marris

FULTON COUNTY Kristin Bluvas

DUTCHESS COUNTY Marisa Nicole Finkelberg David L. Steinberg

KINGS COUNTY Simone Berman-Rossi

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MADISON COUNTY Lawrence Brown Jeffrey Parry

MONROE COUNTY Christopher Paul McClary

ROCKLAND COUNTY Zev Goldstein

NEW YORK COUNTY David Gray Kathleen Hardy Lynne T. Henderson Peter Katz Marni Rae Robin Karen Thompson

SARATOGA COUNTY Eileen Bryant Christian DeFrancqueville

ONONDAGA COUNTY Lucien A. Elliott Dennis John Nave, Jr. Richard P. Plochocki Emil M. Rossi

SUFFOLK COUNTY Joel R. Salinger ULSTER COUNTY Enrico Purita WASHINGTON COUNTY Alyson S. Clark WESTCHESTER COUNTY Robert F. Docherty

Atticus | Volume 30 Number 2 | Summer 2018 | 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.

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NYSACDL

New York State Association of Criminal Defense Lawyers

Membership Application Please print or type

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

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

Lifetime Member

Quarterly pymts over 2 years President’s Club Sustaining Member Regular Member

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

$2,525. $316.25 $565. $340. $240.

New or Part-Time Attorney Member

$155.

Full-time Public Defender Allied Professional Member

$155. $215.

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

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

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.

Retired Attorney $100.

Law Student/Recent Law School Alumni (less than one year since completion) $758.

School: ________________________ Graduation date: ________

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.

Membership dues can be paid by check or charged to American Express, MasterCard, Visa, or Discover

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

Please charge to my credit card.

Credit card #: Exp. date:

Please make your check payable to NYSACDL and send it to:

Signature of applicant: Date:______________________________ CVV code_____________ Billing Address:____________________________________________

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NYSACDL Office, 90 State Street, Suite 700, Albany, New York 12207 Fax: 888-239-4665

Atticus | Volume 31 Number 1 | Winter 2019 | New York State Association of Criminal Defense Lawyers

NYSACDL Online Video CLE Seminars Earn CLE credit quickly and conveniently from the comfort of your office or home with NYSACDL’s online video CLE seminars.

These video reproductions of some of our most popular recent CLE seminars are sure to fulfill your educational needs for a great price!

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

$25/Credit Hour $50-$150

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

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

Sentencing & Appeals

Ethics

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

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

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

Federal Practice

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

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

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

Registration date coming soon? NYSACDL Video Seminars provide a quick, easy & inexpensive way to complete your credits for BOTH New York & New Jersey.

NYSACDL Members Receive One Free Hour of Video CLE Per Calendar Year – Take Advantage of Yours Today!

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers

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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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