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Winter 2020 | Volume 32 | Number 1


2020 NYSACDL Foundation

Annual Dinner


Award Recipients


Message from the President




Dispatches from 90 State


Message from Incoming President


Court of Appeals By Timothy Murphy, Esq.


Jury Instructions By Scott Lockwood, Esq.




Discovery Reform: Are You Ready? By Emma Greenwood, Esq. Suing the Screws: Legal Actions Against DOCCS By Eric Buckvar, Esq. Cutting Edge CLE

New York State Association of Criminal Defense Lawyers

Publication of the New York State Association of Criminal Defense Lawyers

The Honorable Terrence M. Barrington Daniels Connors, Esq. Thurgood Marshall Parker, Jr. Hon. William Brennan Award for Outstanding Jurist

Award for Outstanding Criminal Practitioner Page 27

Page 26

• Justice Through the Arts • Outstanding Criminal Justice Reformers

Page 28

atticus@nysacdl.org www.nysacdl.org

90 State Street, Suite 700 Albany, New York 12207

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

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.

NYSACDL Officers and Directors 2020 PRESIDENT Timothy W. Hoover, Buffalo

John Ingrassia, Newburgh

Jeanne E. Mettler

Scott Albany Murray Richman Yes, I want to Iseman, join the Defenders Circle at the level below*!

Lindsey Lewis, Manhattan (NACDL Designee) Gerard M. Damiani Greg Lubow, Tannersville Marvin E. Schechter Lake Placid$250 Kathryn M.$100 Kase □ Champion $1,000 □ Leader $500Allison M.□McGahay, Colleague □ Supporter □ Other $__________ FIRST VICE PRESIDENT Cheryl Meyers Buth, Buffalo Russell M. Gioiella Brian Melber, Buffalo Kenneth Moynihan, Syracuse James P. Harrington Karen A. Newirth, Manhattan Richard J. Barbuto VICE Method ofPRESIDENTS Payment:  Check made payable toGrainne NYSACDL Brooklyn Please charge my (circle one):Martin Visa MC AMEX Discover E. O’Neill, B. Adelman Steven B. Epstein, Garden City Jill Paperno, Rochester Joshua L. Dratel CVV Code: __________ Card Number: ______________________________________________ Expiration Date: _______________ James W. Grable, Jr., Buffalo Donald G. Rehkopf, Jr., Rochester Ray Kelly Lee, Brooklyn Name Yung-Mi on Card: _____________________________________________ Kevin M. Stadelmaier, BuffaloSignature: _______________________________________ Daniel N. Arshack Timothy P. Murphy, Buffalo Donald Thompson, Rochester Lisa Schreibersdorf Russell A. Schindler, Kingston Billing Address (If Different from Below): _________________________________________________________________________ Claudia Trupp, Manhattan Craig Schlanger SECRETARY Mark S. Williams, Olean George R. Goltzer DonorEdgar Information: De Leon, Manhattan Kevin D. O’Connell IMMEDIATE PAST PRESIDENT Richard D. Willstatter TREASURER Lori Cohen, Greenport Name: ______________________________________________ Firm/Office: ___________________________________________ Benjamin Ostrer Alan S. Lewis, Manhattan PAST PRESIDENTS Aaron Mysliwiec Address, City, State, Zip: ______________________________________________________________________________________ DIRECTORS: Lawrence S. Goldman Wayne C. Bodden Derek S. Andrews, Albany Paul J. Cambria, Jr. Andrew Kossover __________________________________________________________________________________________________________ Stephanie Batcheller, Albany (NYSDA Designee) Jack T. Litman John S. Wallenstein Laura A. Fiorenza, Syracuse Mark J. Mahoney Robert G. Wells Phone:Renee ________________________________ Email: __________________________________________________ Hill, Bronx David L. Lewis Lori Cohen Mariam Hinds, Bronx William I. Aronwald Return Completed Form to Executive Director Jennifer Van Ort/Registration Table or Mail To: EXECUTIVE DIRECTOR Jessica Horani, Manhattan Thomas F. Liotti Jennifer Ciulla Van Ort, Albany NYSACDL, State Street, Ste 700, Albany, NY 12207 Michael Hueston, Brooklyn Ira D. 90 London PRESIDENT-ELECT Alice Fontier, Manhattan

Thank you!

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

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


□ Leader


□ Colleague


□ Supporter


□ Other $__________

Method of Payment:  Check made payable to NYSACDL  Please charge my (circle one): Visa MC AMEX Discover Card Number: ______________________________________________ Expiration Date: _______________ CVV Code: __________ Name on Card: _____________________________________________ Signature: _______________________________________ Billing Address (If Different from Below): _________________________________________________________________________ Donor Information: Name: ______________________________________________ Firm/Office: ___________________________________________ Address, City, State, Zip: ______________________________________________________________________________________ __________________________________________________________________________________________________________ Phone: ________________________________

Email: __________________________________________________

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.


Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers

Publication of the New York State Association of Criminal Defense Lawyers

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

Find NYSACDL on Facebook, LinkedIn, Twitter & Instagram

Message from the President By Lori Cohen It has been quite a year for both NYSACDL and the criminal justice system. I began my tenure celebrating Women in Justice and will finish my term celebrating Criminal Justice Reform. These events recognize and celebrate the seismic changes in our small section of society. NYSACDL has been a leader on these changes, and will continue to support and advocate for change that makes the criminal justice system and profession open and accessible to all. At this year’s Annual Dinner, we are celebrating the historic changes in the bail system and discovery process. These changes make it less likely that anyone will remain in jail simply because they are poor. These changes make it less likely that anyone will be wrongfully convicted because important discovery was withheld. These changes make New York State a leader in insuring that the criminal justice system is as fair and equitable as possible. There were numerous people involved in procuring these changes – many who have spent far longer than I have working on this issue. It was my good fortune to be at the helm at this historic time. Once the NYS Legislature passed criminal justice reform, NYSACDL began the work of educating its members, and the wider criminal defense community, on the changes and the effects of these changes on the criminal justice system. NYSACDL has worked tirelessly to insure that attorneys statewide have had the opportunities to receive training and the tools necessary to implement these historic changes. We have conducted trainings in almost every county in NYS, some multiple times. We have conducted trainings for public defender offices, for private attorneys, for assigned counsel attorneys. NYSACDL will continue to be the statewide leader on these issues. Your support of our dinner last year enabled us to commence a summer stipend program. We are using your support to invest in the future. We awarded five summer stipends to law students engaged in criminal defense work for the summer. These students might not have been able to take their criminal defense internships, or may have had to work other jobs to support themselves while they did criminal defense internships. This investment in our future, and the future of our profession, is necessary to insure that young, committed, engaged law students find their way to our profession. We will continue this stipend program this coming year, and hope to expand it to include offering actual criminal defense internship opportunities with some of our members. I will be reaching out to some of you soon! Making use of our extraordiContinued on page 40

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers


From the Editors’ Desk John S. Wallenstein, Ben Ostrer, Russell Schindler 2020 ushers in a new era in criminal defense in New York, as everyone who has been paying even the slightest bit of attention knows. Bail reform is the hot topic as this is written, with the District Attorneys Association and most law enforcement organizations screaming about the apocalypse that is imminent because people (mostly poor and of color) will be given appearance tickets instead of spending time in jail for misdemeanors and some non-violent felonies. NYSACDL has been in the forefront of efforts to make certain that the public outcry does not result in a reversal of the gains, and we encourage all NYSACDL members to add their voices to our chorus. Even more significant than bail reform, discovery reform has arrived! New York has finally been lifted into the same class as those well known progressive states, Florida, North Carolina and Mississippi. Defense counsel will now receive, in a timely fashion, true discovery that will enable us to delve into our cases and provide knowledgeable advice to our clients. Predictably, the District Attorneys’ offices have already (it’s only been 3 weeks) found ways to circumvent the law and withhold the material we are clearly required to receive. We must be more vigilant and proactive than ever. Our listservs are buzzing with anecdotal evidence of discovery violations

from all around the state, and it is more important than ever that we stay informed. If you have an issue, stand firm. Contact the NYSACDL Strike Force if you are getting pushback from judges; the Strike Force stands ready to help. Finally, the Editors wish to thank those NYSACDL members who contribute to the magazine; we can edit and put things together, but we can’t write it! If you have something you believe is of general interest to the membership, contact one of the editors or Executive Director Jennifer VanOrt….we’d love to publish it, and you get CLE credit too! Let’s make 2020 the best year yet for NYSACDL!

Barket Epstein Kearon Aldea & LoTurco All of your Litigation Needs From the Hudson to the Hamptons In the five boroughs, Nassau and Suffolk Counties




The Hamptons


NASSAU COUNTY 666 Old Country Road, Suite 700 Garden City, New York 11530 516-745-1500

NEW YORK CITY The Empire State Building 350 Fifth Avenue, Suite 6400 New York, New York 10118 212-972-1710


SUFFOLK COUNTY 434 New York Avenue Huntington, New York 11743 631-549-9000


Dispatches from 90 State

John S. Wallenstein Ben Ostrer Russell Schindler

A publication of the New York State Association of Criminal Defense Lawyers ©2020 NYSACDL 90 State Street, Suite 700 Albany, New York 12207 Phone: 518-443-2000 Fax: 888-239-4665 www.nysacdl.org atticus@nysacdl.org

Jennifer Van Ort Executive Director It’s a snowy first Monday of 2020 here in Albany – a good time to reflect on the year behind us and the year to come. NYSACDL enjoyed many successes in 2019: membership highs; legislative victories; new CLE programs and partnerships; and new programs designed to help tomorrow’s criminal defense lawyer. We look forward to building on these successes in 2020 and continuing to be an effective voice for the criminal defense lawyer in New York State. NYSACDL’s membership grew to over 925 members in 2019 – the highest number in recent history. Through a variety of programs designed to meet the needs of current and future criminal defense lawyers, we were able to provide attractive and valuable membership pricing. These programs included group options for public defender offices, free memberships for law students interested in pursuing careers in criminal defense, and special offers to non-members who attended NYSACDL CLE programs. In 2020, we will continue to evaluate our membership programming, including what we offer our members as benefits. If you have any suggestions or comments, please let me know. Your input is important to our planning as we deal with constant changes in New York’s criminal justice system, technology updates, and more. NYSACDL’s Legislative Committee & Board of Directors were an important part of a team that worked tirelessly to see the landmark changes in New York’s Discovery, Bail and Speedy Trial laws that took effect on January 1st. This success depended on partnerships with other bar associations, not-for-profit and grassroots advocacy organizations, leaders from indigent defense organizations in New York, and private attorneys throughout New York State. In 2020, NYSACDL will continue to work with these partners to ensure that these important new laws remain intact, and to also address our legislative priorities for this coming session. In the Fall of 2019, NYSACDL’s CLE Committee took the opportunity to become a leader providing training on the upcoming law changes. Combined with special trainings throughout the fall, NYSACDL’s CLE programming was responsible for training over 950 New York State criminal defense lawyers in 2019. We partnered with public defender offices across the state to offer training on the new reforms, which could not have been done without dedicated faculty who dedicated time and travel, making sure everyone was prepared for January 1, 2020. Early planning for CLE programs in 2020 includes a continued look at the recently enacted law changes and how criminal defense lawyers can respond to newly faced challenges. We will continue our cornerstone programs: Cross to Kill & Weapons for the Firefight, as well as our popular trainings in Lake Placid, Syracuse, Binghamton & Buffalo, while also developing new programs designed to meet the needs of criminal defense lawyers throughout the state. Continued on page 40

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers


Read a good book lately?

Message from the Incoming President Timothy W. Hoover

Write a review of it, and submit to our Editor, John S. Wallenstein.

To say that 2019 was a busy and a successful one for the Association is an understatement. Years of hard work of so many of you resulted in great accomplishments in four of the areas that are our biggest strengths: advocating for positive legislative changes; amicus advocacy; attorney training; and, supporting our members. The 2019 reform legislation, the result of the hard work of so many grassroots organizations, legal groups, and citizens, is just one of those accomplishments.

Contact John at jswallensteinesq@ outlook.com

The Association is on solid footing. Membership is strong. We continue to think strategically about building a diverse and active board. And we continue to execute in areas that are important to our members in positive impacting their practices and the work they do every day. But we have plenty of work to do. Our training efforts continue. As we speak, efforts to roll back the historic 2019 reforms are underway, and we are in the arena, fighting to maintain the basic fairness that the 2019 reforms created. We will undertake, at the board level, a strategic planning process to identify a path for the Association going forward. As we look forward to 2020, we look forward to your input as part of the strategic planning process and how we can improve and strengthen the Association going forward. Any member can call or email me anytime with comments, thoughts or insight – thoover@hodgsonruss.com. We also hope that you will consider maintaining or increasing your active involvement in the work of the Association. We are always looking for new potential board members, and we have an array of committees that need the input and working involvement of members. You do not have to be on the Board to play an active role on a committee. You can help grow the organization by convincing your friends and attorneys that you see in court and practice with every day, to join NYSACDL. Our outgoing President, Lori Cohen of Manhattan, deserves our thanks and appreciation for her incredible work in 2020. The work of the Association was actionpacked in 2020, and Lori presided over it all with the highest level of engagement and strategic insight, and a lot of hard work, culminating in a year filled with great accomplishment. The Association is as strong as ever, and Lori has been an important part of that. Thanks Lori.


Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers


ourt of Appeals

Pertinent Criminal-Related Decisions By Timothy P. Murphy, Esq.

March through October 2019 March 21, 2019 People v. Pendell 33 NY3d 972 This is a unanimous memorandum, affirming the AD. The trial court properly admitted photos removed from defendant’s cell phone and computers. They were properly authenticated through the testimony of law enforcement and the complainant.

March 28, 2019 People v. Martin 33 NY3d 929 Timothy P. Murphy, Esq. is chief of appeals in the office of the Federal Defender, NDNY and a Vice-President of NYSACDL.

This is a 5 to 0 memorandum, with Judge Feinman not participating. The AD is affirmed. Pedigree questions during custodial interrogation are an exception to the Miranda rule. Pennsylvania v. Muniz, 496 US 582, 601-602 (1990); People v. Rodney, 85 NY2d 289, 293 (1995). The questioning here occurred during the exContinued on next page

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers


Appelate Report Continued from previous page ecution of a search warrant. Any lower court error in finding that these questions fall under the pedigree exception was harmless. People v. Crimmins, 36 NY2d 230, 237 (1975).

People v. Alvarez 33 NY3d 286 This may be the worst decision of the year for indigent criminal appellants. This is a 5 to 2 decision, authored by Judge Stein. Judges Rivera and Wilson wrote separate dissents. The issue is whether defendant was deprived of ineffective assistance of appellate counsel. See People v. Stultz, 2 NY3d 277, 284285 (2004) (accepting the state [Baldi] standard for ineffective assistance of counsel [“IAC”], said to be more protective than the federal [Strickland] standard, but also expanding on it for appellate practice). Appellate advocacy must reflect “a competent grasp of the facts, the law and appellate procedure supported by appropriate authority and argument.” Stultz, 2 NY3d at 283-284. Counsel needs to timely file a brief that reflects a competent grasp of the facts, law and appellate procedure, supported by appropriate authority and argument. Id. at 285. But appellate attorneys are afforded wide latitude. The majority here somehow finds that defendant failed to establish IAC under the circumstances. The AD is affirmed; the coram nobis motion, filed some 20 years after the sentence, was properly denied below. The appellate attorney here took over three years to file the brief, missing deadlines along the way. He also failed to communicate with the client, except in an abrupt and cursory two-sentence letter after being told by the AD that the matter was going to be dismissed.


The brief itself was horrible and filled with typos and some sentences that were barely cohesive. Due Proces[s] was misspelled. Among other things, counsel took just six lines of the brief to address a 4,000 plus page transcript. Despite appellant serving a 66 and 2/3 to life sentence for a drug-related homicide and related drive-by shooting crimes, counsel did not argue that the sentence was unduly harsh and excessive. Four issues were presented in the brief, but not very well. Oral argument was skipped. Counsel also failed to file a criminal leave application with the Court of Appeals (but see People v. Grimes, 32 NY3d 302, 318-319 [2018] [finding this omission not to constitute IAC under the state constitution]; People v. Andrews, 23 NY3d 605, 615-616 [2014] [same result under the federal constitution]). And the client was neither shown the brief before it was filed, nor informed of the result of the appeal. Still, the majority concludes that “defendant’s direct appeal was not compromised” by the appellate attorney’s performance. Along the way, the majority continues its way too high standard of proof for coram nobis motions. See also People v. Arjune, 30 NY3d 347, 358-360 (2017). Here the court concludes that the defendant’s claim that his attorney did not communicate with him, other than once, was an unsupported allegation. But who else, except the attorney, could provide personal knowledge of such a fact? (Trying to extrapolate something not negative here: the majority did not explicitly rule out all IAC claims for failure to communicate with an appellate client; it just would not deem it IAC “on this record.” See also NY Rules of Prof. Cond., R. 1.4.) The court references People v. Turner,

5 NY3d 476, 480 (2005), where coram nobis relief was granted when appellate counsel failed to raise an IAC claim regarding a clear cut statute of limitations issue, as well as scenarios where appellant counsel effectively raised no argument at all (People v. Gonzalez, 47 NY2d 606, 611-61 [1979]) and affirmatively made disparaging comments regarding arguments the defendant requested be raised, thus precluding the client from raising issues in a pro se brief. People v. Vasquez, 70 NY2d 1, 4 (1987). So those were bad enough, but the one in this matter was not. The majority described the brief by counsel at bar this way: “[t]here is no question that the brief… was somewhat terse, could have been better drafted, and is not a model to be emulated. Nevertheless, the brief demonstrated appellate counsel’s grasp of the relevant facts and law.” Did I mention that counsel spent just six lines of the brief addressing the facts from a 4,000 page multidefendant three-month long homicide trial transcript — with no citations to the record? But he did raise four issues, which apparently passes the court’s “undemanding” standard for IAC. The defense brief was 20 pages; the DA’s brief was 175 (60 devoted just to the facts). “Undemanding” here has to be the understatement of the year. Judge Rivera was so mad in her dissent that she provided a link to the horrendous brief as part of the first footnote of her opinion. The majority opining that the sentencing issue had little chance of success misses the point of the Baldi / Stultz fairness-of-the-process standard, as opposed to the results-oriented federal Strickland standard. The majority is effectively saying that it is up to the judiciary to figure out the horribly argued issues in an appellate brief, just as long as the issues are listed by counsel. An

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers

appellate attorney should be “measured by the ability to advocate persuasively, and forcefully, if not successfully, for the client.” What ever happened to timely perfecting the appeal, discussing the issues with the client and submitting a brief that advocates for the client based on law and facts? “It goes to the essence of appellate advocacy – the ability to present a coherent argument intended to persuade through its rhetorical and analytic power.” The majority is sending “a message to the profession that there is seemingly little to no value attached to a lawyer’s skill in advocacy.” According to Judge Rivera, “[t]he brief [at bar] violates every rule about effective appellate advocacy taught to law students across the county.” Said the judge further: Practitioners, educators, and law students may assess whether this brief comports with our standard of effective legal assistance. To the organized bar, I ask: Is this an acceptable work product? Would any one of your members submit this on behalf of a client? According to Judge Rivera, the constitutional right of meaningful representation has been reduced to nothing more than a platitude; a substandard threshold for professionalism has been adopted. Indeed, “our judiciary has the obligation to maintain the high quality of legal practice in New York by rejecting inferior work.” Amen. Judge Rivera also pointed out that there is no statute of limitations for coram nobis motions (the matter at bar being some two decades old). The coram nobis doctrine is a creature of common law, not statute. It is meant to ameliorate constitutional wrongs. Judge Wilson wrote a poignant dissent,

addressing what has happened to the defendant during the last 25 years he has spent in prison. Though not addressed by the majority, this was a 19 year old defendant. He has been a model inmate, and is now married and afflicted with cancer. He is wheelchair bound. How could the attorney not raise harsh and excessive sentence in the brief? What was the strategic advantage in not raising this issue? As Judge Rivera also opined in her dissent, we should not be writing off and prejudging the entire future of young people who violate the law, even those who commit horrible crimes. The brain is not fully developed until one reaches his or her 20’s. The lack of impulse control and the greater susceptibility of children to outside influences means that retribution is less warranted with a younger defendant. Mr. Alvarez will qualify for parole when he is 87 years old. Judge Wilson, who calls the brief atrocious, analyzes Article VI of the State Constitution and the extraordinary power of the AD under CPL 470.15 to reduce a sentence as a matter of discretion in the interests of justice. This is a power “usually confined to the head of state.” The “peculiar, dramatic, and powerful authority” of the AD to ensure the fairness of criminal sentences is even outside the purview of the Court of Appeals to review. The high court is not even able to prescribe factors for the AD to consider in this regard. Judge Wilson recognizes that the facts outside of the record regarding appellant’s life were unknowable at the time of his sentence; but it shows the real possibility of transformation for a 19 year old. While it is not automatically IAC not to raise the harsh and excessive issue; at bar it qualifies. The defendant here had a “constitutional right to a law-

yer who will ask [the AD] for a measure of mercy.”

April 2, 2019 People v. Rodriguez 33 NY3d 956 This is a 5 to 2 memorandum, affirming the AD, with Judges Rivera and Wilson dissenting. The defendant breached a written cooperation agreement by refusing to testify regarding a burglary for which defendant had knowledge. Defendant confessed to his role in a murder and assault, and cooperated in those prosecutions involving other perpetrators. The agreement broadly referenced defendant being required to cooperate regarding any other investigation. County Court deemed the agreement breached. Defendant unsuccessfully moved to withdraw his guilty plea; the court did not abuse its discretion in denying the motion. Defendant’s sentence was enhanced from the term that would have been imposed had the cooperation agreement been kept to. In dissent, Judge Rivera observed that the burglary matter was not explicitly referenced in the cooperation agreement. Defendant neither understood nor intended the agreement to include the burglary matter, which he had even expressed fear about during the course of the proceedings. Traditional rules of contract construction should apply. The agreement did not require unlimited cooperation.

People v. Tapia 33 NY3d 257 This is a 4 to 3 decision, affirming the AD. The Chief authored the majority’s opinion, with Judge Wilson writing for Continued on page 22

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers


Appelate Report Continued from previous page the dissent, joined by Judges Rivera and Fahey. The police officer here honestly admits to not recalling the pre-arrest events leading up to an assault — and to not having his recollection refreshed by his grand jury testimony. The certified transcript of the grand jury testimony is moved into evidence under the past recollection recorded exception to the hearsay rule. The declarant officer testified at trial, thus, according to the majority, neutralizing any 6th Amendment Confrontation Clause issue. The opportunity for cross-examination of a live witness, regardless of how ineffective the examination ultimately is, is the point. The procedure of testing evidence through this method is what is guaranteed, not the actual reliability of it. The prior testimony was provided at a time when the witness had knowledge of the events. It was a true and accurate statement of facts given at that time. The trial jury was instructed that the grand jury testimony was not independent evidence itself, but rather just auxiliary to the live testimony provided at trial. Moreover, the memory of a witness is a proper subject of cross-examination. The past recollection recorded exception to the hearsay prohibition requires that: (1) the witness had first observed the matter recorded; (2) the recollection was fairly fresh at the time when it was recorded; (3) the witness was able to testify that the record is a correct representation of his or her knowledge and recollection at the time it was made; and (4) the witness had sufficient present recollection of the info recorded. This statement is only meant to be received as a supplement to the oral testimony presented to the trier of fact; its admissibility is left to the sound discretion of the trial court. People v. Taylor, 80 NY2d 1, 8 (1992). The court below did


not abuse its discretion.

May 2, 2019

Judge Wilson in dissent opined that the admission of the officer’s grand jury testimony violated CPL 670.10, which allows, only under specific and limited circumstances, the admission into evidence of prior testimony (taken when subject to cross-exam at a trial, felony hearing or CPL 660 examination) where the witness is unable to be present for trial. Only three scenarios apply: death, illness or incapacity. Otherwise, the state must have exercised due diligence where a witness cannot be found or returned to the jurisdiction. The majority considered the witness at bar unavailable because of his inability to remember.

People v. Hill 33 NY3d 990

As Judge Wilson observed, testimony is generally inadmissible unless both the witness and opposing counsel were in the room where it happened. See People v. Ayala, 75 NY2d 422, 429 (1990) (prior Wade hearing testimony inadmissible under CPL 670.10; limited prior cross-exam; not permitted under the statute); People v. Green, 78 NY2d 1029, 1331 (1991) (child-witness testified at grand jury to seeing a shooting, but could not recall it years later at trial; prior testimony improperly admitted under CPL 670.10; new trial ordered); but see People v. Geraci, 85 NY2d 359, 366 (1995) (unavailability of witness caused by defendant; grand jury testimony admissible). It is irrelevant whether the officer-witness’ testimony at bar qualified under the prior recollection recorded exception. The majority erroneously reads CPL 670.10 to mean that any prior testimony of a witness that is able to testify can be admitted. The jury being able to consider the memory loss of a witness is irrelevant here because the prior testimony was provided when his memory was fresh.

This is a 6 to 0 memorandum, reversing the AD. Judge Feinman did not participate. Suppression is granted in this NYC housing project matter. The initial inquiry for information from the defendant was a level 1 encounter under De Bour (40 NY2d 210, 223 [1976]). See also People v. Hollman, 79 NY2d 181, 191 (1992). The police intrusion that followed went beyond this level and the record did not establish that it was lawful.

People v. Brown (Boris) 33 NY3d 983 This is a 6 to 1 memorandum, modifying the AD decision. Judge Stein dissented. This depraved indifference murder case involves a Gomberg (38 NY2d 307, 311-314 [1975]) conflict of interest inquiry. Defendant’s attorney was retained to represent a witness to the present homicide on an unrelated charge. The People indicated that they were not likely to call this witness. The court appointed separate counsel to consult with defendant regarding the potential conflict. Defendant indicated he wanted to waive the conflict. He was ultimately convicted after trial and sentenced to 25 to life. Defendant moved to vacate his judgment, as he was purportedly not fully advised of the conflict. He was told that he would not be able to cross-examine the witness, but was not informed regarding the legal fees paid to his attorney by the witness. This information came from post-conviction counsel’s

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers

hearsay account of having spoken with the prior attorney. Conflicts, where counsel has divided and incompatible loyalties within the same matter and which preclude singlemindedness advocacy, are distinguished between actual and potential. Potential conflicts (and some actual ones) may be knowingly waived. A defendant has the heavy burden of establishing that a potential conflict actually operates on the defense. This is a mixed question of law and fact. CPL 440.30 requires that the court review the pleadings to determine if a hearing is warranted. See generally People v. Jones, 24 NY3d 623, 634 (2014). At such a hearing the defendant must prove every essential fact by a preponderance of the evidence. Supreme Court abused its discretion at bar in summarily denying the 440 motion. A CPL 440.30 hearing is ordered. The dissent believed that there were no questions of fact warranting a hearing. Without an affirmation from trial counsel, a summary denial was appropriate.

May 7, 2019 People v. Towns 33 NY3d 326 The court here was unanimous in result, with Judge Rivera authoring a concurrence. Judge Stein wrote for the majority. The AD is reversed. This Monroe County assault prosecution brings up issues of judicial neutrality. A new trial before a different judge was ordered at bar, as the trial court personally negotiated and entered into a cooperation agreement with a witness. The deal was that the witness would testify truthfully for the prosecution at trial and would

receive a sentencing commitment in return. The problem, as the majority notes in footnote 4, is this: disclosed sentencing commitments between the prosecution and a witness are fine, but a judge cannot take on the role of an advocate and procure a witness for trial (effectively inducing the testimony). The court recalled other cases where judges went too far in terms of not maintaining both actual and perceived neutrality: De Jesus, 42 NY2d 519, 523 (1977) (comments by judge towards defense counsel); Arnold, 98 NY2d 63, 68 (2002) (the court calling its own witness); and Novak, 30 NY3d 222, 226 (2017) (presiding over both a trial and an appeal in the same case). A fair trial in a fair tribunal is a basic requirement of due process, under both the state and federal constitutions. US Const., Amend. XIV; NY Const., art. I, §6. Judges can take “an active role in the resolution of the truth” — but not too active. Besides defending against the charges, a defendant should not have to also overcome a judge’s abdicating his or her responsibility to act in a neutral and detached manner. At bar, the defendant was deprived of a fair trial, as the judge created the specter of bias, effectively becoming an interested party. Prior to the defendant’s trial, in a quid quo pro exchange for truthful testimony (i.e., being consistent with a prior statement), one of the co-defendants was offered by the court a sentencing range of between 9 and 15 years. Defense counsel unsuccessfully moved to preclude this co-defendant’s testimony. Even the prosecution could not hide its discomfort on the record with this arrangement; it actually took the DA’s Office to push the trial court to allow defense counsel the opportunity to fully cross-examine the witness about the

arrangement. Though the AD explicitly criticized the trial court for its actions, it was not enough to reverse, as the jury did not learn all of the details (see 151 AD3d 1638, 1639 [4th Dep’t 2017]). But as the Court of Appeals concludes, consistent with the principles of Novak, the trial judge taking on dual roles created a facial appearance of impropriety which impermissibly conflicted with the notion of fundamental fairness. In concurrence, Judge Rivera opined that this was a case of actual bias, not just the appearance of it.

People v. Brown (Darryl) 33 NY3d 316 This successful People’s appeal is a unanimous opinion authored by Judge Wilson, reversing the 3 to 2 reversal by the First Department. The trial court erroneously granted the defendant’s requested justification charge. The People bear the burden of disproving a justification charge beyond a reasonable doubt. The defendant shot his daughter’s boyfriend in the lobby of a Bronx apartment. The unarmed victim did not threaten deadly physical force; therefore, considering the evidence in a light most favorable to the defendant, there was no reasonable view of the evidence that defendant was justified in using deadly physical force against the victim. The defendant, being the first to use or threaten the imminent use of physical force in the encounter, was the initial aggressor because he displayed an operable firearm (which was in a position where the defendant was readily able to fire it). A defendant must reasonably believe that the other person is using or is about to use deadly physical force before the defendant may use deadly physical force himself. See P.L. §35.15 (2)(a); People v. Goetz, 68 N.Y.2d 96, 114-115 (1986). Continued on next page

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers


Appelate Report Continued from previous page A defendant is never justified in using deadly physical force if he (or she) is the initial aggressor. P.L. §35.15 (1)(b). A defendant cannot use deadly physical force in response to the threat of mere physical force. The “initial aggressor” rule barred defendant from claiming justification, as defendant did not withdraw from the encounter, communicate the withdrawal and then have the victim threaten deadly physical force. Both the sequence and the nature of the attacks must be analyzed. Verbal comments by the victim were insufficient to justify defendant’s behavior here. See also People v. Petty, 7 N.Y.3d 277, 280-281, 285-286 (2006). The trial court abused its discretion in giving the justification charge to the jury. The jury acquitting defendant of intentional murder (and convicting him of manslaughter) does not change this result.

People v. Vega 33 NY3d 1002 This a 6-0-1 memorandum affirming the AD. This second-degree assault case raises another justification charge issue. Judge Garcia authored a concurrence. The trial court instructed the jury on the justified use of non-deadly physical force in connection with the lesser included offense of assault in the third degree, which does not contain a dangerous instrument element. P.L. §120.00 (1). At the People’s request, the court also instructed the jury that if it found beyond a reasonable doubt that defendant used a dangerous instrument (P.L. §10.00 [13]; at bar, it was a belt with a metal buckle), then it should apply the legal rules regarding the justified use of deadly physical force. P.L. §35.15 (2). The majority opined that a non-deadly


physical force instruction could be proper even where a dangerous instrument was used. Every case is factsensitive; the facts must be viewed in a light most favorable to the defense in determining whether to give this instruction. No reasonable view of the evidence indicated that defendant used the belt in a manner that could cause death or serious physical injury. In his concurrence, Judge Garcia opines that second-degree assault with a dangerous instrument cannot be committed without using deadly physical force.

People v. Rkein 33 NY3d 1001 This is a unanimous memorandum, affirming the AD. This is another justification case. There was no reasonable view of the evidence to support the deadly physical force justification instruction (requested by the defense) in this assault prosecution. P.L. §35.15(2).

May 9, 2019 People v. Meyers 33 NY3d 1018 This is a 6-0-1 memorandum affirming the AD. Judge Garcia authored a concurrence. The court here revisits the 2018 Parker / Morrison chapter of the O’Rama (78 NY2d 270, 276 [1991]) / CPL 310.30 jurisprudence. A potential jury note was found in the clerk’s file by appellate counsel. The AD, seemingly in contravention to Parker (32 NY3d 49, 62 [2018]) and Morrison (32 NY3d 951, 952, 960962 [2018]), directed that Supreme Court conduct a reconstruction hearing because of the ambiguity of the record as to whether the document found by appellate counsel was actually a jury

note. The hearing at bar was supposedly not meant to address compliance with O’Rama, but rather just to determine whether the note was actually a request for information (which would then trigger the statute). The note, entitled “JURY NOTE,” was redundant with other info requested in another note. It was referenced with a time stamp after the verdict note was marked, but some 4 hours before the verdict was actually announced. Judge Garcia, who strongly dissented in both the Parker and Morrison cases last year, was dead on in his concurrence here, calling out the majority for not being consistent with the Parker rule, which prohibits reconstruction hearings. Judge Garcia disagrees with the result of Parker, et al., so the result here is fine with him. The hearing that was held answered questions that would not otherwise have been known if Parker had actually been complied with. But it violates the new prohibition. Said the court in Parker (32 NY3d at 62): “the sole remedy is reversal and a new trial.” Many jury notes are marked out of sequence and are redundant with other notes — like the one at issue at bar. Records on appeal are often ambiguous. In other words, reconstruction is prohibited under Parker to ascertain the existence, or nonexistence, of error. Judge Garcia provides here an overview of the evolution of the O’Rama jurisprudence that led to the Parker rule, including the mode of proceedings rule requiring the verbatim notice of the jury note (the core responsibility of O’Rama), as well as the response prong, which requires preservation. See, e.g., People v. Walston, 23 NY3d 986, 988, 991 (2014); People v. Nealon, 26 NY3d 152, 160-162 (2016); People v. Mack, 27 NY3d 534, Continued on page 31

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers

Confusion in the Courtroom:

How the DWI Jury Instructions Need to Be Recalibrated

By Scott Lockwood

The purpose of jury instructions is to clearly define the law, so that the jury, individuals drawn from various walks of life, not learned legal scholars, can comprehend the questions they are called upon to decide, thus reaching a just and proper verdict”.1 In addition to explaining the law to the jurors, the instructions are utilized to focus the jury on certain issues to assist them in their determination of the case.2 Indeed, the Criminal Procedure Law explicitly notes that in its charge, “[t]he court must also state the material legal principles applicable to the 1 Nardella v. Gerut, 20 Misc 3d 1129(A), 872 NYS 2d 692, 2005 NY Slip Op 52368(U) (Sup Ct, Bronx Co 2005); see People v. Lupo, 305 NY 448, 452 (1953) (“The very fact that the jury, after having been in consultation, have failed to comprehend the instructions given in the charge … is of itself sufficient to show the necessity of additional instructions … if the jury do not understand the instructions, or are ignorant or uncertain as to the law applicable to any part of the case, the charge is inadequate and fails of its purpose”); see also, People v. Malloy, 55 NY 2d 296, 302, 449 NYS 2d 168 (1982) (reaffirming the duty of the trial judge to adequately inform the jury of the applicable law). 2 People v. Thomas, 124 AD 3d 56, 60, 997 NYS 2d 53 (1st Dep’t 2014).

Continued on next page Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers


Jury Instructions Continued from previous page particular case, and, so far as practicable, explain the application of the law to the facts”.3 The Criminal Jury Instructions as they currently exist fail in these goals with respect to the charge of violating Section 1192(2) of the Vehicle and Traffic Law. As it currently reads, the CJI provides that “[i]n considering the accuracy of the results of any test given to determine the alcohol content of defendant’s blood you must consider … whether the device used was in good working order at the time the test was administered”.4 This instruction fails to take into account changes in the Department of Health rules relating to the calibration of breath testing devices and could lead to the anomalous result of a jury finding a device is “in good working order”, when that device has not been calibrated in accordance with New York Law. The law provides that, “[t]he department of health shall issue and file rules and regulations approving satisfactory techniques or methods of conducting chemical analyses of a person’s blood, urine, breath or saliva and to ascertain the qualifications and competence of individuals to conduct and supervise chemical analyses of a person’s blood, urine, breath or saliva”.5 This is an express delegation from the Legislature and “[t]he legislative intent was to give DOH definitive authority to approve tests for determining blood alcohol content for Vehicle and Traffic Law enforcement purposes”.6 This changed in 2011 in the State of New York when the Department of Health set forth a definition for “calibration” in Part 59 of the Department of Health Rules and Regulations. The changes implemented by the Department of Health were an attempt to strengthen New York’s forensic sciences following a scathing review of forensic science in the United States by the National Academy of Sciences. In 2005, Congress enacted the Science, State, Justice, Commerce, and Related Agencies Appropriations Act of 2006, P.L. No. 109-108, 119 Stat. 2290 (2005). Under the terms of the statute, Congress authorized the National Academy of Sciences to conduct a study of forensic science and directed the formation of a Forensic Science Committee to, among other things, study the range of forensic science technologies and make recommendations for the improvement and advancement of these technologies in solving crimes and protecting the public. Over more than two years, the committee reviewed volumes of research, received testimony from a broad spectrum 3 CPL 300.10(2). 4 CJI 2d Driving While Intoxicated Per Se. 5 VTL 1194(c). 6 People v. Hampe, 181 AD 2d 238, 241, 585 NYS 2d 861, 863 (3d Dep’t 1992).


Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers

of law enforcement, criminal justice, and medical experts, and then issued its longawaited evaluation of the various forensic science technologies currently in use in the American justice system.7 The report included a number of critical observations about the non-DNA forensic sciences, and noted that the present resource and staffing limitations among forensic laboratories make it difficult for the labs to, among other things, “avoid errors that could lead to imperfect justice”.8 In the context if blood alcohol analysis, the Report noted that “methods for measuring the level of blood alcohol in an individual … can do so only within a confidence interval of possible values”, and further stated: In addition to the inherent limitations of the measurement technique, a range of other factors may also be present and can affect the accuracy of laboratory analyses. Such factors may include deficiencies in the reference materials used in the analysis, equipment errors, environmental conditions that lie outside the range within which the method was validated, sample mix-ups and contamination, transcriptional errors, and more.9 In the wake of this Report, the New York State Department of Health amended the provisions of Part 59 relating to the chemical analysis of blood, urine, breath or saliva for alcoholic content, 10 NYCRR Part 59. The goal behind this amendment was to “reflect[] changes in nomenclature and technology, and provide[] clarification of provisions pertinent to alcohol determination of breath, blood and other body fluids”.10 As part of these changes, it was noted that, “[a] definition of calibration is added” to the existing framework of Part 59.11 Despite that fact that this change was made, the Criminal Jury Instructions has ignored the addition of the definition for calibration as part of the jury instructions.

Scott Lockwood, Esq., is a sole practitioner and litigator located on Long Island. A Life Member of NYSACDL, Scott is also a frequent lecturer for the Suffolk County Academy of Law and the Suffolk County Criminal Courts Bar Association on topics dealing with criminal law and trial practice.

Part 59 now provides that “Calibration means the activity of verifying that a value generated by the instrument is in acceptable agreement with the assigned value for a traceable and/or certified reference standard, including any adjustment to the instrument to bring it into acceptable agreement”.12 As can be seen, the law permits one of two options in calibrating a machine for breath analysis. The first may be done by “verifying that a value generated by the instrument is in acceptable agreement with the assigned value for a traceable … reference standard”. The second method is that calibration be done by “verifying that a value generated by the instrument is in acceptable agreement with the assigned value for a … certi7 Strengthening Forensic Science, Committee on Identifying the Needs of the Forensic Sciences Community, et al., Nat’l Research Council, Strengthening Forensic Science in the United States: A Path Forward, at 1-4. 8 Id., at 14. 9 Id., at 116-117. 10 NY Reg, Sept. 28, 2011, at 33, available at http://docs.dos.ny.gov/info/register/2011/sep28/pdfs/rules. pdf [accessed Feb 18, 2016]. 11 Id. 12 10 NYCRR 59.1(l).

Continued on next page Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers


Jury Instructions Continued from previous page fied reference standard”. Although undefined in the rules, “traceable” and “certified reference standards” are well defined within the scientific community. The accepted definition of traceability has been formulated by the National Institute of Standards and Technology (NIST). As set forth by NIST, traceability is “property of a measurement result whereby the result can be related to a reference through a documented unbroken chain of calibrations, each contributing to the measurement uncertainty’”.13 This definition also comports with the definition of traceability given by the International Organization for Standardization.14 A foundational requirement for the admission of breathalyzer test results in a driving while intoxicated case is “evidence from which the trier of fact could reasonably conclude, inter alia, that the testing device was in proper working order at the time the test was administered to the defendant”.15 In the context of such a determination, “[c]alibration records are essential to the defense to help it determine whether the machine was operating properly”16 Prior to the changes to Part 59, the term, “calibration” had no statutory or regulatory definition, leaving only case law to fill this legislative lacuna.17 Although the courts of this State, regularly referred to the fact that the machine must be regularly calibrated to assure that it was in proper working order, little was done to refine this definition or set the parameters for what “calibration” required.18 The changes made by the Department of Health brought necessary clarity and consistency to this area of law. The failure of the Criminal Jury Instructions to reflect the changes made by the Department of Health with respect to the calibration of breath testing devices undermines the changes made and wholly fails to follow the law on this subject and adds unnecessary confusion into the jury box. The Criminal Jury Instructions should be changed to conform with the law as it currently exists. A

13 NIST Policy on Traceability, Supplementary Materials for NIST Policy Review, available at http://www. nist.gov/traceability/suppl_matls_for_nist_policy_rev.cfm#faq_general1 [accessed Aug 24, 2019]. 14 ISO, 17025:2005 General requirements for the competence of testing and calibration laboratories, Section 5.6, Metrological Traceability. The ISO 17025 guidelines have been adopted by the State of New York through Article 49-B of the Executive Law, which provides “that all forensic laboratories must meet the following standards to receive NYS accreditation in disciplines other than forensic DNA testing: (1) the laboratory must be accredited by ASCLD/LAB; or (2) if the laboratory is performing only toxicology analysis, it must be accredited by either ASCLD/LAB or ABFT”, 9 NYCRR § 6190.3(a). ASCLD/LAB has adopted the ISO 17025:2005 guidelines, 9 NYCRR 6190(7). 15 People v Freeland, 68 NY 2d 699, 700, 506 NYS 2d 306, 307 (1986).  16 People v. Robinson, 53 AD 3d 63, 72, 860 NYS 2d 159, 166 (2d Dep’t 2008). 17 See People v. Meikrantz, 77 Misc 2d 892, 899, 351 NYS 2d 549, 559 (Co Ct, Broome Co 1974) (“The term ‘calibration’ refers to an adjustment of the breathalyzer machine as distinguished from a mere test of the machine”) see also, People v. Molina, 121 Misc 2d 483, 468 NYS 2d 551 (Crim Ct, Bronx Co 1983), overruled on other grounds, 128 Misc 2d 638, 494 NYS 2d 606 (App Term, 1st Dep’t 1985). 18 People v. Mertz, 68 NY 2d 136, 148, 506 NYS 2d 290 (1986) (“While the scientific reliability of breathalyzers in general is no longer open to question, there must still be either proper foundation testimony under CPLR 4518(a) or a proper CPLR 4518(c) certificate to establish that the particular instrument used to test a defendant’s BAC and the ampoules used with it had been tested within a reasonable period in relation to defendant’s test and found to be properly calibrated and in working order”).


Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers

Criminal Discovery Reform It Is Happening. Are You Ready? and You

By Emma Greenwood, Esq.

As everyone in our community knows and applauds by now, January 1, 2020 has delivered, via C.P.L. Article 245, a long-awaited revolution affecting criminal discovery in New York. Among the changes is the removal of the existing “Blindfold Laws” inherent in C.P.L. Article 240, which will no doubt help bridge a divide that has plagued the criminal justice system in our state. The new statute includes a requirement for the Government to turn over to the defense, automatically, “all items and information that relate to the subject matter of the case.” Continued on next page

Discovery Reform Continued from previous page ARE YOU READY? Modifications of the volume and delivery methods of discovery production bring with them responsibility and challenges, even for the most experienced practitioners. Whether you are a sole practitioner or a lawyer in a small or large firm, these major changes require serious effort to understand and implement in your practice. What follows is a preliminary set of tips to think about and utilize as we all get ready for a new year and a new era of criminal discovery.

Make Room! Attain More Offline and Online Storage.

More discovery means more stuff. Receive discovery in a P.O. Box? Consider leasing a larger box. You may also need to make more space in your file cabinets and shelves. We are not 100% certain how the Government will adapt to the new requirements, or if there will be uniformity or not across the state in this regard, but electronic file sharing software will likely be utilized with more frequency than before. Along with having a sufficient and reliable way of receiving old-fashioned mail, you should be certain that your capability to receive electronic mail – letters and files via email or File Transfer Protocol (FTP) – and files in electronic format via disc, flash drive or hard drive, is established and secure. Know your email host’s capacity for sending and receiving large files. Presuming that you will be receiving more files electronically, consider purchasing an external hard drive so you may organize and store case files on that separate device instead of saving files in your email inbox where they may drown among all of your other emails. You may decide to store data in the cloud or build a network that you can access remotely. If you have a data storage system in the cloud or a network set up already, make sure its capacity is not close to maxing out. UPDATE YOUR COMPUTER(S) AND SOFTWARE. Whether you use a PC or a Mac, regularly updating your system is crucial. All computers in your office should have installed up-to-date antivirus and malware detection software. If you can afford it, purchase a computer devoted solely to discovery intake. If you use a network, scan any items you receive before putting them on your network. Consider having a professional come to your office to check your devices and/or network for viruses. Invest in basic upgrades like a new keyboard and mouse. Install an extra media player, like VLC Media Player (free) – not all multimedia (e.g. audio and video files) is compatible with Windows Media Player (but have that program installed and updated, too). If you don’t have speakers for your desktop, think about


Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers

purchasing a set, to be prepared for audio and video discovery. A set of headphones may be helpful, too. Make sure your printer works and that you have backup toner and ink cartridges. Other technical solutions may be pricier, but there are several other resources at low or no cost that can be integrated into your practice to increase and enhance productivity without breaking the bank. If your PC runs Windows 7, be aware that support, including security and software updates, will be discontinued for Windows 7 on January 14, 2020, which means a greater risk of viruses and malware. Avoid issues and upgrade now. LOOK AT DISCOVERY ASAP. DO NOT LET THINGS PILE UP! This may seem obvious, but as discovery begins to roll in do not let productions pile up on your desk or in your email’s inbox. That tiny flash/thumb drive? It may contain hours of surveillance video and tens of thousands of files. That email invitation to download discovery? It may be a large file or folder that takes a day or longer to download, not to mention hours to review. That disc? It may have been scratched in transit, requiring you to request a replacement. Read cover letters or emails that indicate what materials were produced (or ask the Government for one if you did not receive one), and make sure that you have received everything intended to be produced, as well any passwords required to access the materials. If you work with other lawyers, paralegals, admin assistants, etc., start discussing now how your team expects to receive, inventory, manage, secure and share discovery materials. More discovery also means more discussion about discovery with the opposition. A “meet-and-confer” with the Government at the onset of the matter, to discuss the nature, volume and technical mechanics of discovery, helps set expectations. And yes, there will be disputes about discovery. Disputes, especially those that may require Court intervention, are best addressed earlier than later. Emma M. Greenwood, Esq., of Greenwood Law Group, PLLC (GLG), an NYSACDL member with offices in New York, NY and Woodstock, NY, runs a practice that focuses almost exclusively on the intersection of law and technology. Ms. Greenwood is invited regularly to provide support, guidance and CLE programs across the country on local, state and national e-discovery topics, and she has taught a law school course on discovery in criminal proceedings at The College of Law at Syracuse University, in Syracuse, NY.

An important note about passwords: Best practices in the age of electronic discovery include efforts and obligations to protect data. Relatedly, we expect to see more protective orders covering portions of discovery, which may require additional means of securing data, limitations for sharing protected information, and consequences – serious ones – for disclosing protected materials, even inadvertently. When you receive material in electronic format it may be encrypted, requiring a password to access and “extract” the data from the device on which it is provided. Be prepared that, sometimes, decryption is a time-consuming process. Perhaps you will decide to extract all the materials onto an external hard drive or to your network, if you have one. That way you will not need to decrypt each time you want to access and review the materials provided. To the extent you can, plan ahead to manage and store incoming productions for all your cases and their passwords, securely and efficiently. Also, while this article’s focus is on receipt of discovery from the Government, the reform requires defense lawyers, too, to Continued on page 39

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers


How I Love

Lucy was born? We decided that instead of divorce lawyers profiting from our mistakes, we’d profit from them. — Lucille Ball


Atticus | Volume 31 Number 2 | Spring 2019 | New York State Association of Criminal Defense Lawyers

Thank you to the 2019 Defenders Circle! CHAMPIONS ($1000 Donation) Mark A. Foti James Grable Jr. Benjamin Ostrer COLLEAGUES ($250 Donation) George Goltzer Kevin D. O’Connell Jennifer L. Van Ort SUPPORTERS ($100 Donation) James A. Baker Paul M. Callahan Joseph R. DeMatteo Brian J. DeSesa Karen L. Dippold Michael G. Dowd Mario F. Gallucci David I. Goldstein Trevor W. Hannigan

James P. Harrington Daniel J. Henry Michael D. Horn John Ingrassia Robert P. Leighton Oscar Michelen Greg D. Lubow Christopher X. Maher Mark J. Mahoney Michael P. McDermott Kenneth Moynihan Steven K. Patterson Roland G. Riopelle Anastasios Sarikas Oliver S. Storch Vivian Storch Cannon Scott B. Tulman John S. Wallenstein Susan J. Walsh Richard D. Willstatter

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 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers


• NYSACDL at Work • New York State Clemency & The Trial Penalty Project Your Participation Needed! New York State Clemency Let Governor Cuomo Know that You Support Second Chances for the Deserving. Two Minutes of Your Time May Help Others Save Years of Theirs – Visit bit.ly/ClemencyJuly19 to help!

In 2017, NYSACDL announced its commitment to a major New York State clemency initiative, a program designed to help to recruit, train, and provide resource support to pro bono attorneys to assist state prisoners to submit petitions to have their sentences commuted. This projThe goal of the NACDL/FAMM ect is a partnership with the National Association of Criminal Defense Lawyers (NACDL) and Families Against Mandatory State Clemency Project is to seek Minimums (FAMM). commutations for long serving

More than 200 lawyers have volunteered to assist the project New York State prisoners who have and have already submitted nearly 100 petitions. But we need earned a second chance. Governor Cuomo to act. Working in partnership with NACDL and New Yorkers United for Justice, we are urging all concerned New Yorkers to express their support for this clemency initiative. Please join us in the effort by letting the Governor know that you support second chances for the deserving. This will only take a couple of minutes of your time, but it may help others save years of theirs. Please visit NACDL’s advocacy page at bit.ly/ClemencyJuly19 to e-mail Gov. Cuomo and ask him to exercise his clemency powers. Thank you!

The Trial Penalty Project! NYSACDL is involved in a statewide project to investigate, expose, and address the trial penalty throughout New York State. This project is in collaboration with the National Association of Criminal Defense Lawyers (NACDL) and conducted with a large volunteer task force and pro bono assistance from Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates. Our goal is to gather the necessary data and human stories that can propel a state-wide reform effort.

Defense lawyers are uniquely situated to fully identify the reasons why people surrender their fundamental constitutional right to a trial with startling regularity, and why they also waive other valuable rights.


The full project scope statement is available here: bit.ly/NYSACDLTrialPenalty You can help! Take the Criminal Defense Attorney Survey Now! https://www.surveymonkey.com/r/nytrialpenalty We urge you to think of your experiences, consider your clients’ decisions and take 15-25 minutes to take the survey and assist this effort. The more broadly we can collect data and the stories that prove the impact of the trial penalty the greater our impact will be. Thank you!

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers


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Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers

2020 NYSACDL Foundation Annual Dinner Thursday, January 30, 2020 Cocktail Reception at 6pm – Dinner & Ceremony at 7:30pm Grand Hyatt New York 109 E. 42nd Street, New York, NY

Hon. William Brennan Award for Outstanding Jurist

Hon. Barrington D. Parker, United States Circuit Judge, U.S. Court of Appeals for the Second Circuit Honoring Outstanding Criminal Justice Reformers

Hon. Andrew M. Cuomo, New York State Governor Senator Andrea Stewart-Cousins, Temporary President and Majority Leader, New York State Senate Assemblymember Carl E. Heastie, Speaker, New York State Assembly Senator Jamaal T. Bailey, New York State Senate Assemblymember Joseph R. Lentol, New York State Assembly Hon. Thurgood S. Marshall Award for Outstanding Criminal Practitioner

Terrence M. Connors, Esq., Connors LLP Justice Through the Arts

Articles: “Golf Saved My Life: Drawings from Prison” & “For Valentino Dixon, a Wrong Righted” Max Adler, Editor, Golf Digest; Valentino Dixon Installing 2020 NYSACDL President

Timothy W. Hoover, Esq.

Honoring 2019 NYSACDL President

Lori Cohen, Esq.

For more information www.nysacdl.org

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers


Recipient of the Hon. William Brennan Award for Outstanding Jurist


Barrington Daniels  Parker, Jr United States Circuit Judge, U.S. Court of Appeals for the Second Circuit Barrington Daniels Parker, Jr. is a Senior United States Circuit Judge in the Second Circuit Court of Appeals. He was initially appointed to serve as a District Judge for the Southern District of New York in 1994 and served at the White Plains Courthouse until his nomination by President George W. Bush for the Second Circuit. His appointment was approved unanimously by the United States Senate on October 11, 2001. While serving in the District Court, Judge Parker presided over many significant cases, including the criminal prosecutions of Albert Pirro (the former husband of then Westchester County District Attorney Jeanine Pirro) and John Gotti, Jr. He had an excellent temperament as a trial judge. Judge Parker was born and raised in Washington, D.C. His father, Barrington D. Parker, Sr., was a United States District Judge for the District of Columbia from 1969 to 1993. Judge Parker attended Yale for both undergraduate and law school. After law school, Judge Parker began his legal career clerking for Judge Aubrey E. Robinson, Jr. of the United States District Court for the District of Columbia. He joined the firm of Sullivan & Cromwell in New York City as an associate in 1970, where he specialized in general commercial litigation. In 1977, Judge Parker and three other partners founded the law firm of Parker, Auspitz, Neesemann, & Delehanty, P.C. which, in 1987, merged with Morrison & Foerster, an international law firm based out of San Francisco, California. In addition to serving as a Judge, he served on the board of trust-

ees for the Yale Corporation, and on the board of The Harlem School of the Arts, the NAACP Legal Defense and Education Fund, and the Central Park Conservancy. Judge Parker deserves our recognition for his fairness and evenhandedness in hearing criminal appeals. In United States v. Mahaffy, 693 F.3d 113 (2d Cir. 2012), Judge Parker chastised prosecutors’ decision not to disclose favorable evidence; those prosecutors improperly withheld Brady material and their excuse–that a prior trial team of “experienced” prosecutors had previously decided to withhold the information compounded the error. Writing for the Panel, Judge Parker reminded us that Brady violations obscure a trial’s truth-seeking function and, in so doing, place criminal defendants at an unfair disadvantage. In United States v. Al-Moayad, 545 F.3d 139 (2d Cir. 2008), a terrorism conviction was reversed because the trial court’s decision to admit unfairly prejudicial testimony evidence of an uncharged suicide bombing was arbitrary and its failure to give a limiting instruction was erroneous. Judge Parker aptly described the government’s proffered testimony as a blatant appeal to the jury’s emotions and prejudices. In addition, the Panel found the trial court’s admission of a witness’s own notes as prior consistent statements was improper as he created them after a significant motive to fabricate arose, namely the large amount of money he expected and was paid to furnish information to the FBI. In United States v. Newman, 773 F.3d 438 (2d Cir. 2014), writing for the Panel, Judge Parker reversed insider trading convictions, holding that the jury instructions were erroneous and the evidence legally insufficient. He wrote that in order to sustain Continued on page 31


Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers

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

Terrence M. Connors, Esq. Connors LLP

In his storied career defending clients in courtrooms across New York, Terrence M. Connors has won acquittals for his clients in federal and state court in a wide variety of white collar and non-white collar cases. Terry is the founding partner of Connors LLP, a Buffalo litigation boutique with statewide reach. Terry’s criminal defense work earned him the New York State Bar Association Criminal Justice Section’s Charles F. Crimi Memorial Award in 2015 for a career “that embodies the highest ideals of the Criminal Justice Section.” The New York State Bar Association awarded Terry the Attorney Professionalism Award in 2006. In 2010, the Bar Association of Erie County named Terry the Lawyer of the Year. Terry is a graduate of the University at Buffalo School of Law, and in 1994 he received the Distinguished Alumnus Award for the Private Practice of Law. In 2016 the law school awarded Terry the Edwin F. Jaeckle Award, which is the highest honor the School of Law and its Alumni Association can bestow. The jury deliberation room in the Law School Courtroom has been named the Terrence M. Connors Jury Deliberation Room in his honor. In 2013, the Buffalo Law Review recognized Terry for his outstanding achievements in the legal profession and his devotion to the School of Law. Terry also serves as Chair of the National Board of Advisors for the law school’s Advocacy Institute, and he has served on the Dean’s Advisory Council, which consults with the law school dean on curricular and other matters. Terry serves on the Committee on Admissions and Grievances for the United States Court of Appeals for the Second Circuit. He has served on the Eighth Judicial District’s Committee on

Character and Fitness for Applicants for Admission to the Bar. For eight straight years, Terry was ranked number one by Super Lawyers ® Upstate New York. In 2019, City & State Magazine named Terry to its Law Power 50 list of New York’s most influential lawyers, noting his “involvement in the most significant legal battles in Western New York.” Terry is listed in The Best Lawyers in America in seven separate categories: Criminal Law white collar and non-white collar, Bet the Company Litigation, Personal Injury, Commercial Litigation, Legal Malpractice, and Medical Malpractice. In addition, in 2013 he was Best Lawyers – White Collar Defense – Lawyer of the Year. Terry’s skills advocating for his clients in the courtroom earned him membership as a Fellow of the American College of Trial Lawyers. Membership in that organization is by invitation only and limited to one percent of the lawyers in each state. He also is a Fellow of the International Academy of Trial Lawyers. Membership in that organization is also by invitation and limited to a total of 500 trial lawyers in the United States. In addition to his considerable criminal defense skills, Terry excels in several other practice areas. He has been selected as a top 100 Trial Lawyer by the National Trial Lawyers and he is a member of the Multi-Million Dollar Advocates Forum – Top Trial Lawyers in America. He has achieved many of the highest verdicts recorded in Western New York history, including a record-setting $58.6 million jury verdict. After the airplane crash of Continental Flight 3407 outside of Buffalo, Terry was Continued on page 30

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers


Justice Through the Arts

Max  Adler

Valentino  Dixon

Editor, Golf Digest;

“For Valentino Dixon, a Wrong Righted”

“Golf Saved My Life: Drawings from Prison”

For its journalistic efforts in securing the freedom of an innocent man, Golf Digest is the recipient of NYSACDL’s 2020 Justice Through The Arts Award, to be accepted by Golf Digest Editor Max Adler, and by Valentino Dixon. Valentino Dixon was convicted of Murder in the Second Degree, Attempted Murder in the Second Degree, Criminal Possession of a Weapon in the Second Degree and Assault in the Third Degree, following a jury trial before the Erie County Court and sentenced in August 1992 to 38⅓ years to life. His convictions were affirmed on appeal, and the Governor took no action on his application for pardon or commutation of sentence. On August 10, 1991, there was a shooting at 1:29 a.m. at the intersection of East Delavan and Bailey Avenues in Buffalo, near Louie’s Red Hots. It was a busy summer night at a popular intersection and as many as 100 people were in the immediate area. Just before the shooting, brothers Torriano and Aaron Jackson had Mario Jarmon on the ground kicking and punching him. When a spectator, Michael Bland, exclaimed “watch out he’s got a gun,” people scattered in all different directions as nearly 30 shots rang out. Torriano Jackson was fatally shot and Aaron Jackson, John Sullivan and Mario Jarmon were wounded. Officers recovered 27 spent .9 mm shell casings, one spent .22 casing, a .22 caliber handgun,


one spent .32 casing and a .32 caliber revolver, but no .9 mm gun. Witnesses told police that Jarmon was shot by Torriano Jackson who was armed with a handgun. Several hours after the shooting, following an anonymous call to police where the caller claimed that the shooting was over a girl who dated Valentino Dixon and one of the Jacksons (which later proved to be false), police stopped a car driven by Valentino Dixon who was out on bail, arrested him, and charged as the lone gunman in the shooting. There was no forensic evidence connecting Mr. Dixon to the crime and he had no apparent motive. Just after the shooting three men gave sworn statements indicating that Valentino Dixon was not involved in the shooting, instead identifying Lamarr Scott as the shooter. Then, three days after the shooting and Mr. Dixon’s arrest, Lamarr Scott called a Buffalo television news reporter and said he wanted to the confess to the crime, then confessed on camera, describing how he was involved in the shooting and Valentino Dixon was not. Mr. Scott was then interviewed by Buffalo Police, offered to take a polygraph test then told “we got who we want, get the hell out of here.” Scott then told four civilians that he, not Valentino Dixon, was the shooter, each of whom gave sworn statements. Witnesses described the shooter as six feet tall and about 170 pounds or “heavy set.” Lamarr Scott was six feet tall and heavy set or well-built; Mr. Dixon was five feet, seven inches tall and 130 pounds. When called before the grand jury, Lamarr Scott was threatened with perjury if he persisted in his claims that he was the shooter. He recanted his confession and testified before the grand jury that Mr. Dixon was the shooter. Mario Jarmon and

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers

Leonard Brown were also called as witnesses before the same grand jury, but refused to recant their original statements and testified that Scott, not Dixon, fatally shot Torriano Jackson. The prosecutor then charged both men with perjury based on their grand jury testimony and later characterized the perjury charges against them as “a brilliant stroke of tactical genius.” At trial, the prosecutor argued that Dixon was the lone shooter and fired all of the shots, from a .9mm automatic weapon, striking all four victims, which was demonstrably false; officers recovered two handguns at the scene: a .22 caliber revolver and a .32 caliber revolver, as well as spent .22, .32, and .9mm shell casings. Both of the recovered handguns had been fired, as had the .9mm weapon that was not recovered.

gation was followed up on and updated by another independent investigation of Mr. Dixon’s case in 2017 by The Golf Channel. During its investigation, The Golf Channel interviewed not only Lamarr Scott, but also trial prosecutor Christopher Belling, who claimed that he was unaware of any of the witnesses that had come forward in support of Mr. Dixon’s innocence. In the same interview, Prosecutor Belling admitted that with respect to his prosecution of Mr. Dixon, “I could have made a mistake, I’m only human.” At Dixon’s sentencing, defense counsel stressed the lack of any physical evidence and, in particular, the absence of any gunshot residue testing results, arguing that

Although Valentino Dixon was convicted of all counts of the indictment, the verdict was questioned from the moment it was returned. When the jury foreman was interviewed by Buffalo News reporter Anthony Cardinale, he told Cardinale that “the whole thing just bothered me . . . the prosecutor’s witnesses weren’t credible at all, kind of shady.” He also indicated that the jury’s initial vote was 9 to 3 to acquit, even after defense counsel failed to call the witnesses that he had promised would prove Mr. Dixon’s innocence, testimony that the jury was anxious to hear and was expecting to hear.

[t]he Court will note that the trial proof was absent of any scientific tests which could have been performed on him to in fact we believe pointed toward his innocence, a number of scientific tests which could have been performed on his clothes which, by the way, was seized, no analysis was ever made of them, analysis designed to determine whether a firearm had been recently operated by the defendant, that type of scientific test which exists and is common was not performed on my client at that time.

After Dixon’s conviction, Tamara Frida, a college sophomore at the time of the crime, admitted that she was sitting in a car near the intersection of East Delavan and Bailey at the time of the shooting, witnessed the shooting, and asserted that Lamarr Scott, not Valentino Dixon, was the shooter.

Nothing indicating that the People conducted any gunshot residue testing on defendant’s clothing or obtained results from such testing was ever provided to the defense and the prosecutor never controverted defense counsel’s arguments to the jury concerning the lack of any physical evidence.

In all, nine eyewitnesses to the shooting gave statements that Dixon was not the shooter, while still other witnesses, including some of the prosecution’s trial witnesses, gave physical descriptions of the shooter inconsistent with Valentino Dixon but consistent with Lamarr Scott.

Twenty six years later, the prosecutor revealed that Dixon’s clothing was tested for the presence of gunshot residue after his arrest and that those tests were negative for the presence of gunshot residue. He offered these revelations while being interviewed by Georgetown University students for a documentary film about Mr. Dixon’s case.

Mr. Scott noted in his second written statement that after he was not arrested in this case, he went on to shoot another man during a robbery rendering him a paraplegic. For 26 years, Lamarr Scott consistently insisted that he is responsible for the crimes Valentino Dixon was convicted of, including while incarcerated for an unrelated shooting, and perjured himself when he testified before Dixon’s grand jury. In all, he gave three written statements and three video statements describing re-enacting how he fatally shot Torriano Jackson. In 2012, Golf Digest independently investigated Mr. Dixon’s case and the evidence leading to his conviction. This investi-

In September 2018, after 27 years, through his perseverance, the efforts of his counsel, including NYSACDL Board Member Donald Thompson of Rochester, the Georgetown University students, and many others, Mr. Dixon was finally exonerated and released from custody. While many had a hand in that incredible day, Don Thompson credits the Golf Digest examination of the case and articles with sparking broader interest in the story as well as the further defense and ultimately prosecution investigation that led to Mr. Dixon’s exoneration. Continued on page 30

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers


Honoring Outstanding Criminal Justice Reformers Hon. Andrew M. Cuomo, New York State Governor Senator Andrea Stewart-Cousins, Temporary President and Majority Leader, New York State Senate Assemblymember Carl E. Heastie, Speaker, New York State Assembly Senator Jamaal T. Bailey, New York State Senate Assemblymember Joseph R. Lentol, New York State Assembly

In April of 2020, the Governor and the New York State Legislature passed landmark and historic criminal justice reform, including bail, discovery, and speedy trial reform, which ensures that all New Yorkers will have a fair, balanced criminal justice system—one that will end the scourge of wrongful prosecutions and convictions and take a crucial step towards addressing the deep racial inequity present in the criminal justice system. No longer will the most vulnerable in our population be left to languish pre-trial in local jails watching as their lives crumble and their homes, children and livelihood disappear. No longer will district attorneys be allowed to withhold critically important evidence until the late stages of criminal proceedings, forcing our clients to make life altering decisions without fully knowing the evidence against them. Criminal Justice is not only about convicting the guilty but protecting the innocent and achieving true due process.


New York State Governor Andrew M. Cuomo, Senator Andrea Stewart-Cousins, New York State Senate Temporary President and Majority Leader, Assemblymember Carl E. Heastie, New York State Assembly Speaker, Senator Jamaal T. Bailey and Assemblymember Joseph R. Lentol were all critical parts of seeing these changes come to fruition. We honor them, and their respective staff, for their vision and dedication as true criminal justice reformers. These momentous reforms will end “trial by ambush” and provide for a more meaningful and functional process of justice in the State of New York. New York State is now, and should always remain, the leader in criminal justice reform. NYSACDL was proud to play an important role in advocating for bail, speedy trial and discovery reform and will continue to work to insure that all those charged with a crime face a fair criminal justice system.

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers


Adler & Dixon

Court of Appeals

Continued from page 26

Continued from page 28

Continued from previous page

a conviction for insider trading, the Government must prove beyond a reasonable doubt that the tippee knew that an insider disclosed confidential information and that he did so in exchange for a personal benefit. Judge Parker pointed out that mens rea, which requires that the defendant know the facts that make his conduct illegal, is a necessary element in every crime, and is particularly important in insider trading cases.

Golf Digest articles:

537, 539, 542 (2016). The legislature should act to correct the absurd result created by the majority: at this point, only partial and incomplete notice scenarios appear to be controlled now by the strict Parker prohibition.

Judge Parker’s dissent in United States v. Gupta, 650 F.3d 863 (2d Cir. 2011) in which he opined that the exclusion of the public from jury selection warranted reversal was ultimately vindicated after en banc rehearing resulted in an amended opinion panel decision reversing the judgment. United States v. Gupta, 699 F.3d 682 (2d Cir. 2011). Judge Parker unflinchingly reversed a conviction when a district judge entered the jury room to meet jurors who had asked to speak with him, United States v. Mehta, 919 F.3d 175 (2d Cir. 2019), found the government had failed to prove the so-called cannibal cop had an illegal agreement or specific intent to kidnap anyone, United States v. Valle, 807 F.3d 508 (2d Cir. 2015), found extremely long sentences for possession of child pornography to be unreasonable, United States v. Jenkins, 854 F.3d 181 (2d Cir. 2017) and United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), and found a police search for a firearm to be a Fourth Amendment violation in the absence of a warrant or exigent circumstances in United States v. Simmons, 661 F.3d 151 (2d Cir. 2011). In these and other cases, Judge Parker has not hesitated to preserve, protect and defend the constitutional and statutory rights of criminal defendants. He has provided us and our clients with a lifetime of invaluable service.

“Valentino’s Redemption,” https://www.golfdigest.com/story/valentino-dixon-golf-digest “For Valentino Dixon, a wrong righted,” https://www.golfdigest.com/story/ for-valentino-dixon-a-wrong-rightedmurder-charge-vacated-by-court-afterserving-27-years-in-prison “Golf Saved My Life: Drawings From Prison,” https://www.golfdigest.com/story/golfsaved-my-life-valentino-dixon

Terrence M. Connors, Esq. Continued from page 27 selected as liaison counsel in the litigation involving the wrongful death of 49 individuals. Terry is a graduate of Canisius College, where he was elected to Who’s Who in American Colleges and Universities and named a Captain of the Varsity Basketball Team. As a standout high school basketball player in Queens, Terry went head-to-head on the court with Lew Alcindor, who became more famously known as Kareem Abdul-Jabbar during his Hall of Fame NBA career. Terry is a member of the Canisius College DiGamma Honor Society, and he was the Guest of Honor at the 1995 DiGamma Reception. He has served two terms as a member of the Board of Regents of the College, and in 2004 was recognized as a Distinguished Alumnus. Terry is a life member of New York State Association of Criminal Defense Lawyers. He has served the Association by presenting at NYSACDL CLE programs, and by mentoring up-andcoming criminal defense attorneys in federal and state court.

June 6, 2019 People v. Esposito 33 NY3d 1016 This successful DA’s appeal is a unanimous memorandum, reversing the Appellate Term. The factual allegations in the accusatory instrument were sufficient to support the inference that defendant was the operator of the vehicle in the accident. The instrument should not have been dismissed.

People v. Smith 33 NY3d 454 This is a unanimous reversal of the AD, authored by Judge Feinman. A woman is shot in front of her boyfriend in Rochester. He is not called as a witness, despite being on the People’s list of potential witnesses. The defendant unsuccessfully sought a missing witness charge. People v. Gonzalez, 68 NY2d 424, 427-428 (1986); People v. Vasquez, 76 NY2d 722, 724 (1990); People v. Savinon, 100 NY2d 192, 196197 (2003). The trial court erroneously shifted to the defense the burden of establishing that the proposed testimony in question would not have been cumulative. That was the People’s responsibility; and their argument in this regard was conclusory. The defendant will often not possess sufficient info to address the cumulative issue. A proponent of a missing witness charge, which permits a negative jury instruction inference for Continued on next page

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers


Court of Appeals Continued from previous page failing to present the testimony of a witness one would expect to testify in the party’s favor, must show the witness to be available, in the opponent’s control and in possession of material info. The trial court abused its discretion here. A new trial was ordered.

People v. Gregory 33 NY3d 1017 This unanimous memorandum affirmed the AD. The defendant’s request to represent himself pro se was properly denied, as he engaged in conduct that would have prevented the fair and orderly disposition of the issues. People v. McIntyre, 36 NY2d 10, 17 (1974) (addressing factor number three). The De Bour (40 NY2d 210, 223 [1976]) issue was a mixed question of law and fact; here there was record support for the lower court’s determination.

June 11, 2019 People v. Giuca 33 NY3d 462 This is a 5 to 1 decision, authored by the Chief Judge, with Judge Fahey not participating and Judge Rivera dissenting. The People are successful here on appeal in this felony-murder prosecution. The Second Department’s reversal is reversed. There was no Brady violation by the prosecution failing to turn over numerous details regarding a purported plea agreement with a prosecution witness. There was no reasonable possibility that the verdict would have been different (where the court’s confidence in the result would have been undermined) had the information regarding a jailhouse informant been turned over.


The informant supposedly heard a number of admissions from defendant while they were in custody together. The informant had some fifteen prior convictions, mostly for larceny. The defense believed that the People violated Brady by not revealing before trial that the informant was not violated during his time in drug treatment court, despite failing to comply with required conditions on numerous occasions. The trial prosecutor actually became personally involved in the drug court matter, yet did not correct erroneous trial testimony from the informant on this subject. The informant denied that he was provided a favorable plea deal. Defense counsel was able to attack his credibility in summation, but not regarding the unrevealed info. According to the majority, the defense had “ample impeachment evidence” already in its possession. A CPL 440 hearing was conducted, wherein the defendant was required to prove every material fact in his motion by a preponderance of the evidence. Though there was a lot of smoke, the CPL 440 court ruled that there was no favorable agreement established. The AD, without analyzing the materiality requirement, disagreed, concluding that a tacit agreement existed. The Brady rule is a matter of fundamental fairness and professional responsibility. Even negligent nondisclosure may deny a defendant due process where either exculpatory or impeachment evidence is suppressed by the prosecution or its agents. Giglio v. United States, 405 US 150, 153-155 (1972); People v. Vilardi, 76 NY2d 67, 73 (1990); People v. Garrett, 23 NY3d 878, 884885 (2014). Promises of leniency given to a witness in exchange for favorable testimony against an accused must be disclosed. People v. Steadman, 82 NY2d 1, 7 (1993). This standard is not depen-

dent on the DA’s view of what information is credible; nondisclosure of material Brady evidence is not excusable. The case at bar, however, is different from People v. Cwikla, 46 NY2d 434, 441 (1979), where there were objective circumstances that reasonably substantiated the expectation of the witness of receiving a benefit. A subjective hope for favorable treatment cannot unilaterally form the basis of a tacit agreement for Brady purposes. Information just being “possibly useful” is not enough. According to the majority, the undisclosed info was cumulative to what the defense already knew. The majority acknowledges, however, that the ADA did fail to correct the informant’s mischaracterization during his testimony regarding his progress in drug treatment. Still, the Court says it’s not a Brady violation. Judge Rivera in dissent points out that the majority is acknowledging that the prosecution withheld info about the relationship between this informant and the DA’s Office. This was a high publicity homicide prosecution. A number of high-level players in the DA’s Office became personally involved in the informant’s other matter. The DA’s Office failed to correct the informant’s misleading testimony. The jury never got to hear about the extent of the prosecution’s involvement in the informant’s other case. The defense attorney only had generic credibility info with which to attack the informant. In accepting this, the majority underestimates the power of cross-examination in the hands of a skilled defense lawyer. Indeed, where a specific Brady request is made and “[w]here a prosecutor elicits or fails to correct [knowingly false or mistaken material testimony of a prosecution witness], reversal and new trial are necessary unless there is no reasonable possibility that the error contributed to the

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers

conviction.” People v. Colon, 13 NY3d 343, 349 (2009). Expansive disclosure by the prosecution should be the norm. Turner v. United States,__ U.S. __ , 137 S.Ct. 1885, 1893 (2017). At bar, the prosecution misled the trial court, the jury and the defense. It should have been reversed. More commentary: Despite referencing the helpful language from the recent Turner decision from the Supreme Court, there was no mention in the dissent of the November 7, 2017 statewide administrative order requiring criminal courts to order that prosecutors, as of January 1, 2018, disclose Brady material at least thirty days before trial or face potential trial court sanctions. This order was inspired by a 2016 report of the Uniform Court System’s Justice Task Force.

June 13, 2019 People v. Mendoza 33 NY3d 414 This a unanimous decision, authored by the Chief Judge, affirming the AD. Defense counsel had his hands full on this one. Defendant was caught on a surveillance video stealing doggie diapers and (human) pants from packages received in the mail at an apartment building. During the crime he can also be seen eating a sandwich. He was charged with burglary. Counsel decided to pursue a jury nullification defense. So in his opening statement and summation, counsel effectively conceded defendant’s commission of the elements of the crime as he pointed

out the overzealousness of prosecuting such a ridiculous set of facts. To quote counsel, though there was no “great mystery” to this case, this was not the “crime of the century.” See also generally, McCoy v. Louisiana, __ U.S. __ , 138 S. Ct. 1500, 1510-1511 (2018) (finding reversible error where counsel conceded guilt during guilt phase of capital trial, an action taken against his client’s specific wishes). Officially, jury nullification is not a legally sanctioned function of the jury. However, the US Supreme Court long ago recognized that juries apply the facts to the law as they “upon their conscience” believe them to me. Sparf v. US, 156 US 51, 102 (1895). While the jury is officially not authorized to refuse to render a verdict which the facts Continued on next page

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers


Court of Appeals Continued from previous page necessarily require, jury nullification is “an inevitable consequence of the jury system.” People v. Mussenden, 308 NY 558, 563 (1955). The court here rejected defendant’s CPL 440 ineffective assistance of counsel argument (under People v. Baldi, 54 NY2d 137, 147 [1981]), as there were enough non-bad things that counsel did at trial, including his thorough crossexam and cogent opening statement and summation. Commentary: This is a dicey topic for appellate courts, as jury nullification is a long-recognized and unreviewable vehicle for granting mercy to an accused. It does appear that defense counsel at bar was in a no-win situation in light of the overwhelming evidence of his client’s guilt.

People v. Lopez-Mendoza 33 NY3d 565 This is a 6 to 1 decision, authored by Judge Wilson, with Judge Rivera writing for the dissent. The defendant’s ineffective assistance of counsel claim was rejected. The AD is affirmed. A young couple checks into a hotel and then goes out partying. They returned after 2:30 a.m. and were too drunk to enter their room without the assistance of a hotel employee (the defendant). The woman wakes up to a person on top of her having sex with her. She screams and the perpetrator runs away. The defendant asserts that the sex was consensual. Defendant testified in the grand jury, claiming that the encounter occurred shortly after he entered the room with the couple. Unbeknownst to the defendant at the time of his grand jury testimony, there were numerous surveillance videos establishing that his story made no sense. Unfortunately, defense


counsel followed the defendant’s lead in his opening statement and promised the jury that defendant would testify at trial (which he didn’t). When the People sought to introduce parts of the surveillance video during the trial, it seemed as if counsel had never even reviewed the video, which was received by the defense a month before trial. The court opined that there was an insufficient record to establish that counsel failed to investigate. The defendant failed to establish the absence of strategic or legitimate explanations for counsel’s actions. In dissent, Judge Rivera argued that there must some basis to a defense attorney’s so-called strategy. It must be reasonable and legitimate under the circumstances. Counsel’s failure to investigate buried his client; he pursed a defense with no strategic value that was proven false by the surveillance video.

June 25, 2019 People v. Malloy 33 NY3d 1078 This is a unanimous memorandum, affirming the AD. Defendant’s Batson argument was rejected. Great deference on appeal is afforded to a trial judge’s resolution of this issue. According to the prosecutor, the prospective juror was dismissive and rude. The defendant’s consecutive sentences for weapon possession and murder were proper, as the weapon was possessed several minutes before the victim was approached.

People v. Ulett 33 NY3d 512

Brady issue, and it’s a good one. The defendant was convicted of murder following a shooting outside an apartment building. There were three main eye-witnesses, but no forensic evidence connecting defendant to the crime. One witness said defendant was present and the other two claimed to have seen him commit the actual shooting. One of the witnesses who saw the shooting had a bad criminal history and credibility problems. He claimed to have been alone with the victim before and after the shooting. In summation, defense counsel criticized the prosecution for failing to have the surveillance video from the lobby near the location of the crime. The prosecution responded in its summation that there was no video. In fact, there was. Years after the trial, a FOIL request revealed that the ADA had a video in her file that showed that one of the eye witnesses was lying regarding the details of the shooting. The video also revealed two other individuals in the vicinity of the crime, not previously known. Brady v. Maryland, 373 US 83, 87 (1963), prohibits the People from suppressing favorable evidence from the accused that is material to either guilt or punishment. People v. Vilardi, 76 N.Y.2d 67, 73 (1990). This a matter of due process. Granting a new trial because of a Brady violation is not for the purpose of punishing the prosecution. This, the ADA’s good or bad faith in not turning over the info is irrelevant. Exculpatory and impeachment info are encompassed under the rule. The prosecution is responsible for the items in the possession of its agents. Info that may lead to admissible evidence is also encompassed by the Brady doctrine. Terrific decision.

This is a unanimous reversal of the AD, authored by Judge Garcia. This is a

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers

June 27, 2019 People v. McIntosh 33 NY3d 1064 This is a brief unanimous memorandum, affirming the AD. Any error in the trial court denying the defense request for a lesser included offense instruction of criminally negligent homicide and 2nd degree manslaughter (as lesser offenses of murder in the second degree) was harmless. The AD properly dismissed a 1st degree manslaughter count as a lesser inclusory count under CPL 300.40(3)(b). The jury elected to convict on the highest available count.

People v. Hill 33 NY3d 1076 This is a 4 to 3 memorandum, affirming the AD. Judge Fahey authored the dissent, joined by Judges Rivera and Wilson. The AD did not violate People v. LaFontaine (92 NY2d 470 [1998]); see also, People v. Nicholson, 26 NY3d 813, 826 (2016). This is a Fourth Amendment issue addressing whether the illegal search of the defendant’s clothing tainted the subsequent searches of his vehicle and apartment. The AD reached an issue not addressed by Supreme Court, but affirmed the judgment. The dissent says the AD exceeded its jurisdiction by determining an issue not resolved against the defendant below. See, CPL 470.15(1); see also, People v. Concepcion, 17 NY3d 192, 195 (2011); People v. Garrett, 23 NY3d 878, 885, n2 (2014). CPL 470.15 is a legislative restriction on the AD’s power to review issues. CPL 470.35(1) further grants the Court of Appeals no broader power than the AD has. The LaFontaine doctrine may not be a desirable policy,

but it is the law. Accordingly, the Court of Appeals was prohibited from affirming the AD; the matter should have been remitted.

People v. Almonte 33 NY3d 1083 This is a 4 to 2 memorandum, with the Chief Judge not participating. Judges Rivera and Wilson wrote separate dissents. The AD is affirmed. There were two issues here; including lesserincluded-offense (“LIO”) instructions and the excited utterance exception to the hearsay rule. Defendant failed to show that a reasonable view of the evidence supported a finding that he committed third degree assault, but not the greater offense of second-degree assault. The trial court’s admission of a 911 call made by the victim as an excited utterance, even if error, was harmless. A spontaneous declaration or excited utterance is made contemporaneously or immediately after a startling event, asserting circumstances of that occasion as observed by the declarant. People v. Cummings, 31 NY3d 204, 209 (2018); People v. Edwards, 47 NY2d 493, 496-497 (1979). In dissent, Judge Rivera addressed the CPL 300.50(1) LIO issue first. This evaluation requires that the court review the evidence in a light most favorable to the defense. This is so because “[a]t its core, the standard reflects the jury’s authority to make findings of fact and power to dispense mercy.” See also, People v. Mendoza, __ N.Y.3d __ (decided on 6/13/19, see summary above; where the court analyzed the mercy-dispensing authority of the jury in the context of jury nullification). The jury acquitted defendant of robbery in the first

degree (PL §160.15 [3]), which would have required a finding that a dangerous instrument was possessed and either used or threatened to be used. According to Judge Rivera, there was a reasonable view of the evidence, when viewed most favorable to the defendant, that the victim suffered injuries through other means than the use of a gun. The victim was beaten and could have hit his head on the stairs or railing during the attack. The medical testimony could not identify the weapon that caused the victim’s injuries. Regarding the excited utterance issue, the dissent observed that such statements are admissible under this hearsay exception when they are impulsive and unreflective responses of the declarant to the startling event, thus showing a high degree of trustworthiness. The unsettling event must be strong enough to render the declarant’s normal reflective processes inoperative. People v. Vasquez, 88 NY2d 561, 574 (1996). This was not the case at bar, as the declarant omitted identifying the assailants, whom he knew. The declaration also occurred several minutes after the incident and the declarant did not provide his mother this info before making the 911 call. The issue of abolishing excited utterance as a hearsay exception, an idea presented by Judge Rivera in her concurrence in Cummings, 31 NY3d at 213-214, was not preserved for appellate review.

September 5, 2019 People v. Monforte 33 NY3d 1124 This is a unanimous memorandum, reversing the AD and vacating the SCI guilty plea, which was entered under Continued on next page

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers


Court of Appeals Continued from previous page CPL 195.10 (1) and art. 1, § 6 of the state constitution. This is a jurisdictional issue that did not require preservation. People v. Zanghi, 79 NY2d 815, 817 (1991). The defendant pleaded guilty to first-degree manslaughter under PL § 125.20 (2). A defendant may not waive his or her right to an indictment where the felony complaint charges a class “A” felony. Here, defendant was charged with second-degree murder. The CPL, the constitution and People v. Trueluck, 88 NY2d 546, 551 (1996), all require reversal.

October 17, 2019 People v. He 2019 NY Slip Op 07477 This is a unanimous memorandum, reversing the AD and ordering a new trial. The People violated their “broad obligation” under Brady v. Maryland, 373 US 83, 87 (1963) by failing to provide the defense with meaningful access to two favorable witnesses in this assault prosecution. If true, these statements would have contradicted the People’s theory of the case. The court recognized that the defense had a right to an “adequate means for defense counsel to investigate witnesses’ statements.” This was not a situation where a protective order regarding the witnesses was warranted. See, CPL 240.50 (1). Great language from the court here. Access to the witnesses could have allowed the defendant to “develop additional facts, which in turn could have aided him in establishing additional or alternative theories to support his defense.”

October 22, 2019 People v. Neulander 2019 NY Slip Op 07521


This is a unanimous affirmance of a reversal by the AD in this unsuccessful People’s appeal. Judge Wilson authored the opinion. Here there was undisputed juror misconduct. The AD correctly concluded that the trial court abused its discretion in denying defense counsel’s CPL 330.30 (2) post-conviction motion. Throughout this murder trial, one of the jurors sent and received hundreds of text messages about the case. The juror not only accessed social media websites, but also provided a false affidavit regarding her misconduct, thus misleading the prosecution and the trial court. The juror also deleted certain text messages and her internet browsing history. The juror’s extreme dishonesty and deception affected a “substantial right” of the defendant, as “[n]othing is more basic to the criminal process than the right to an impartial jury.” People v. Branch, 46 NY2d 645, 652 (1979). Through her blatant disregard of the court’s instructions, the concealing of her misconduct, along with the extensive scope of this behavior, the juror violated her oath to be a fair and objective arbiter of the facts. Such misconduct causes irredeemable injury to the jury system and the public’s confidence in it. Some Noteworthy 2019 Second Circuit Criminal Decisions: 1

United States v. Ojudan 915 F3d 875 As part of determining whether defendant violated terms of his supervised 1 Special thanks here to Herbert L. Greenman, Esq., of Lipsitz Green Scime Cambria, LLP, in Buffalo for his insightful case law presentation in Batavia, NY on November 1, 2019.

release (“SR”), the Southern District held a suppression hearing even though it was not required to. Defendant was on SR following his guilty plea to bank fraud. A police officer testified regarding the stop of a NY registered vehicle in Summit, New Jersey. The vehicle double parked and an individual entered a bank, looking disheveled. His appearance was consistent with that of a drug user. The police suspected he was involved in bank fraud and drug trafficking. When the vehicle drove off after the person exited the bank, it was pulled over. There were three men in the car. The driver and passengers were asked how they ended up in that NJ town and how they knew each other. Their responses were suspicious. The driver ultimately acknowledged that one of the passengers offered him $100 to drive him to the bank to cash a check. The driver also gave consent to search and a crack pipe was found in one of the passengers’ possession. Defendant was the other passenger. Defendant was alleged to have violated his SR by (1) committing forgery in violation of New Jersey law, (2) committing theft by deception in violation of New Jersey law, (3) leaving the judicial jurisdiction of his supervision without permission, and (4) associating with a known felon.  The Court held that there was reasonable suspicion to conduct this investigatory stop. There were specific and articulable facts, when taken together with rational inferences from those facts, reasonably warranted the intrusion. Probable cause was not required. The action by the police was reasonable. However, the matter was remanded, as

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers

incriminating statements by a passenger against defendant were not properly analyzed by District Court under hearsay exception FRE 804 (b)(3)(A) as a statement against the declarant’s penal interest. Though the Confrontation Clause is not applicable in SR revocation hearings, FRCrP 32.1 (b)(2)(C) was also not complied with, as defendant was not given the opportunity to question the declarant, who was an adverse witness.

Doe v. United States 915 F3d 905 The defendant was given erroneous advice regarding the immigration consequences of his guilty plea. Counsel affirmatively advised defendant that considering his cooperation, his nonviolent fraud crime should not result in deportation. In fact, the defendant was subject to a conclusive presumption of deportability because the loss amount (above $10,000) made the crime an aggravated felony. Both the government and defense counsel agreed at the District Court level that the defendant had been misled on this crucial issue and that counsel was objectively ineffective. See, Strickland v. Washington, 466 U.S. 668, 687-688 (1984); United States v. Couto, 311 F3d 179, 188 (2d Cir. 2002); Padilla v. Kentucky, 559 US 356, 369 (2010). On appeal, however, the government opposed the ineffective assistance of counsel argument. The Court concluded that everyone was aware of the possibility of mandatory deportation. But for the ineffective assistance, the defendant would have either negotiated a different plea deal, gone to trial or pursued an available defense. Chief Judge Katzmann, who authored the decision, was not happy with the government for hypocritically switching positions on appeal, observing that

the assistant US attorney works in the Department of Justice, not the Department of Prosecution. The judgment was reversed and the case was remanded, with instructions to the District Court to grant defendant’s writ of error coram nobis.

United States v. Arrington 941 F3d 24 A conflict of interest arose prior to the commencement of trial in this multidefendant RICO / murder prosecution, wherein defense counsel was not able to use information that he learned through his representation of a co-defendant. A defendant has the constitutional right to the effective assistance of conflict-free counsel. Cardoza v. Rock, 731 F3d 169, 183 (2d Cir. 2013). When a defendant’s right to choose an attorney conflicts with the right to an attorney of undivided loyalty, the choice must be left to the client. The trial court has an independent duty to ensure that defendants receive a fair trial under the Sixth Amendment. Wheat v. US, 486 US 153, 161 (1988). Where an attorney suffers from a waivable, actual or potential conflict, the trial court must conduct a hearing to determine whether the defendant will knowingly and intelligently waive his or her right to conflict-free representation. Independent counsel will be assigned. United States v. Curcio, 680 F2d 881, 888-890 (2d Cir. 1981). Here, defense counsel informed the court that after reviewing discovery materials, it was apparent that he was representing a potential witness in a separate matter. A Curcio hearing was conducted. The attorney was allowed to withdraw as counsel to the witness and defendant Arrington waived any

conflict. Also mentioned was defense counsel’s prior representation of a present co-defendant. This was a much more substantive problem, as counsel had ethical obligations to both the present and the former clients. The co-defendant moved to have defense counsel removed, as he was concerned that counsel could draw from the prior representation of him during cross-examination in the present trial. The prior representation, which was in a state court matter, involved an overt act relevant to the present RICO prosecution. The co-defendant refused to waive this conflict. A second Curcio hearing was conducted and the defendant (again) purportedly waived any conflict. Outside of the defendant’s presence, however, the trial court and counsel discussed a strategic solution to the conflict of interest issue: severance of the trials, which counsel previously moved for based on a Bruton issue. Counsel even offered to try the case first, thus not getting the benefit of others’ testimony for investigation and impeachment purposes. Though the trial court never addressed the strategic issue regarding severance with the defendant, severance was nonetheless ordered. The Second Circuit found that although the conflict was waivable, the defendant’s waiver was neither knowing nor intelligent. Before executing a waiver, the defendant must be advised of the conflict’s strategic consequences. The trial court did not advise the defendant regarding the strategic disadvantages arising from the conflict, including that the case may be severed and his case tried first. The defendant was not in court when the other attorney moved to disqualify defense counsel and the discussion about severance was conducted. The court did not Continued on next page

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers


Court of Appeals Continued from previous page directly engage with defendant on this issue; the defendant thus did not fully appreciate the predicament, nor did he make an informed choice. The Second Circuit reversed the conviction and ordered a new trial.

United States v. Eaglin 913 F3d 88 The defendant was banned from accessing the internet without prior court approval and was totally banned from viewing or possessing adult pornography. These conditions stemmed from crimes committed against two teenage girls fifteen years ago. As the court observed: “To be sustained, a virtually categorical prohibition on a defendant’s use of any device to access the Internet—a technology around which our society now unmistakably turns—must be carefully explained and robustly supported by a district court. As the Supreme Court recently reiterated, “cell phones and the services they provide are ‘such a pervasive and insistent part of daily life’ that carrying one is indispensable to participation in modern society.” Carpenter v. US, 138 S.Ct. 2206, 2210 (2018); quoting Riley v. California, 573 US 373, 134 S.Ct. 2473, 2482 (2014); see also, Packingham v. North Carolina, 137 S.Ct. 1730, 1735-1736 (2017). Although Internet access through smart phones and other devices undeniably offers the potential for wrongdoing, to consign an individual to a life virtually without access to the Internet is to exile that individual from society. The record here inadequately supports the District Court’s decision to take that drastic step.” Here the Second Circuit concluded that the conditions were unreasonable as they were not reasonably necessary to


achieve the goals of sentencing in light of defendant’s criminal history and the circumstances of the crime. 18 USC § 3583 (d); 18 USC § 3553 (a). The matter was thus remanded for resentencing.

United States v. Black 918 F3d 243 The Sixth Amendment guarantees the accused the right to a speedy trial; this is a right that has been deemed fundamental to our system of justice since its inception. This right is meant to prevent oppressive pre-trial detention, minimize anxiety and concern of the accused, and limit the possibility that the defense will be impaired. Barker v. Wingo, 407 US 514, 532 (1972). The three defendants waiting five years and eight months for trial was extraordinary and constituted a presumptively prejudicial delay. A significant amount of the delay was attributable to the government. Further, the defendants regularly asserted their speedy trial rights. For over two years of this time, the government dangled the possibility of the death penalty in front of the defendants. The Second Circuit reiterated the affirmative obligation that the court and the government have in bringing defendants to trial promptly. At bar, the government failed to carry its burden in proving the delay was justified. It was the third time in two years that the court has found that defendants in the Western District of New York had their speedy trial rights violated. The District Court’s order of dismissal is affirmed.

United States v. Boles 914 F3d 95 A District Court may “impose special

conditions of supervised release to the extent that they are reasonably related to (i) the nature and circumstances of the offense and the history and characteristics of the defendant, and (ii) the purposes of sentencing, including the need to afford adequate deterrence, to protect the public from further crimes of the defendant, and to provide the defendant with needed training or treatment.” United States v. Johnson, 446 F.3d 272, 277 (2d Cir. 2006). The Second Circuit here addressed a number of supervised release terms, including having to notify another person that defendant posed a risk. This condition was vague and afforded the probation officer too much discretion, as it is the District Court’s prerogative to impose sentence. The “notice” condition was vacated and the matter was remanded for the District Court to clarify the scope of the condition.

United States v. Lyle 919 F3d 716 Here is a frightening proposition. While a proffer agreement made during plea discussions with the government that do not result in a guilty plea is ordinarily inadmissible, the protections under FRE 410 (a)(4) may be knowingly and voluntarily waived. During his opening statement, defense counsel disputed the idea that the defendant was a drug dealer. The proffer agreement allowed for a waiver where the statements would rebut any evidence or arguments offered on behalf of the defendant. A defense argument does not trigger a FRE 410 waiver if it “simply challenge[s] the sufficiency of government proof on [the] elements.” (internal citations omitted). Unfortunately, the court here found that

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers

Discovery Reform Continued from page 19 share information with the Government in advance of trial. Learn how to create passwords on files and be prepared to send discovery materials securely to members of your team or to the opposition. Protecting data is a shared responsibility. KNOW WHAT YOU KNOW. GET HELP WITH WHAT YOU DO NOT. There is no shame in asking for assistance. In fact, doing so may be a criminal defense practitioner’s duty, especially for technical questions. Ask an expert to help you identify and address technical challenges. Have you been trying to open a video for half an hour? You may not be doing anything wrong; you may not have been provided with the proprietary software required to access and/or view it. Video and audio may often be converted to standardized formats. You may not always receive these files in the only or most accessible format. Received boxes of paper discovery? Consider scanning the contents to help you review them. Vendors exist that have the time and equipment to help you accomplish this quickly. Retrieving electronic copies of hard copy files may in fact be cost efficient and save you time. For example, certain electronic files can be enhanced with the utilization of OCR software (optical charac-

ter recognition), which may make text searchable and more easily reviewable. Adobe Acrobat Pro is a program at the top of my software recommendation list. This program, which includes OCR software among many other features, will cost you a few hundred dollars per license but provides a speedy and substantial return of investment. With Adobe Acrobat Pro, you can split large PDFs into smaller ones, add notes to PDFs, create search tools, and much more. For files that include handwriting, blurry text or text that is otherwise not detected by this software, providing electronic versions of hard copy discovery to paralegals or others on your team will, in most circumstances, still ease organization and review processes. There is no shortage of litigation support services out there. However, know that most providers are more familiar with and have services geared to the civil

litigator, not the criminal defense lawyer. It is important to rely on guidance from professionals that understand YOUR needs as a criminal defense attorney. Attend Continuing Legal Education (CLE) Programs and Events. CLEs around the state of New York are already being provided by NYSACDL and other legal organizations to help our community understand the new laws and what to expect. Also, it is the end of the year – time for legal association annual dinners and holiday parties! Take advantage of these opportunities and connections. While the novelty of the reform may wear off soon into 2020, continuing discussion on issues related to discovery reform and its impact on our colleagues, our clients, and our profession, will remain crucial. Here’s to 2020, with healthy doses of celebration, anticipation and preparation! A

A FEW TOOLS FOR THE TOOLBOX (PC AND MAC): VLC Multimedia Viewer (https://www.videolan.org/vlc/index.html) *Free Norton Antivirus (https://us.norton.com) *$ Malwarebytes (https://www.malwarebytes.com) *Free or $ Adobe Acrobat Pro (https://acrobat.adobe.com/us/en/acrobat.html) *$$ But worth every penny Microsoft Office (https://www.office.com) *$$

Court of Appeals Continued from previous page defendant’s comments in his opening statement were factual assertions that triggered the waiver. The Second Circuit concluded that

“Lyle’s proffer statements fairly rebut his counsel’s opening argument that Lyle was not a dealer. The proffer statements at issue included that (1) Lyle repeatedly distributed “small packages” of meth-

amphetamine; (2) Lyle accompanied another person to obtain and deliver methamphetamine; and (3) Lyle knew the location of the methamphetamine supplier.” The judgment was affirmed. A

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers


Outgoing President

Executive Director

Continued from page 3

Continued from page 5

nary members and matching you with some amazing students could be the opportunity of a lifetime.

An important new program of the NYSACDL Foundation was also launched in 2019 – the Law Student Internship Stipend Program. This program awarded five $1,000 scholarships to a diverse first cohort of law students with criminal defense internships in New York. This program was made possible by the success of the 2019 NYSACDL Foundation Annual Dinner and we once again thank all those sponsors and attendees who made that success possible.

So, I leave the organization in capable hands. Tim Hoover has been an amazing advisor to me during my term and I have great expectations for him as your President. I would be remiss if I did not thank Jennifer Van Ort, our Executive Director – she makes it all look easy and smooth. She is a fantastic asset to our organization – and if you see her, tell her you appreciate all she does. I certainly do.


In 2020, we hope to expand this internship program and will once again look to the proceeds of the NYSACDL

Annual Dinner to assist in that effort. Information about the 2020 dinner is available in this issue of Atticus. I hope you can join us and support this expanding program and all the programs of NYSACDL and the NYSACDL Foundation! As I said before, please reach out to me with any comments or suggestions you may have for our programs and services. You, our members, are the lifeblood of our organization and we could not do all we do without your continued dedication to NYSACDL. Thank you and I wish you success and happiness in 2020!

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers

Scenes from Fall 2019 CLE programs

More pictures on page 43 Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers


Suing the Screws: Legal Actions against DOCCS By Eric Buckvar, Esq. A criminal defense attorney does more than handle a case—he or she represents a client. Even after the legal obligation of handling a criminal matter is over, clients may contact a criminal defense attorney with legal issues and problems, one of which is dealing with injuries suffered while in state custody. Unlike the garden variety personal injury case, such cases have unique issues, challenges, time requirements and venues. Such cases can be broken down into two separate categories—cases alleging intentional acts by state actors in violation of 42 U.S.C. §1983, and cases involving ordinary intelligence. The 11th Amendment to the Constitution prohibits citizens of any state, or any foreign state, from bringing a legal action against a state in federal court. As the state has sovereign immunity, actions may only be brought to the extent that it has waived that immunity. On other hand, Federal law 42 U.S.C §1983 permits actions against persons who deprive another person of their constitutional rights under color of law. An action for injuries to a prisoner under 42 U.S.C. §1983 may not be filed against a state or a state agency, such as a Bureau of Corrections, but must be filed against a corrections department employee. Curtis v. Everette, 189 F.2d 516 (3d.Cir., 1973). Oftentimes, such a suit is brought against the head of a cor-


rections department. A state corrections officer who assaults a prisoner is clearly in violation of the statute, and yet New York State Corrections Law §24(1) prohibits a direct action against a Department of Correctional Services employee (apparently because of the legislature’s belief that too many frivolous lawsuits were being filed against corrections employees. See, McKinney’s New York State Corrections Law §24(1), Practice Commentary). The second part of Corrections Law §24 requires “(a)ny claim for damages arising out of any act done or the failure to perform any act within the scope of employment and in the discharge of the duties of any officer or employee of the department shall be brought and maintained in the court of claims as a claim against the state”. A fair assumption, therefore, would be that a 1983 action would be permitted to be filed in the New York State Court of Claims, which has exclusive jurisdiction for actions against the State of New York–but that assumption would be wrong, because only the state, and no other entity or any person, may be sued in the Court of Claims. Many have mistakenly filed cases under 42 U.S.C. §1983 in the Court of Claims, but such cases have been dismissed, e.g. DeMaille v. State of New York, 166 A.D.3d 1405 (3d Dept., 2018). So, if New York State law prohibits

direct actions against DOC employees, and a State cannot be sued under 42 U.S.C. §1983, does that mean that a New York State inmate can never file such an action? Can state actors violate individuals’ constitutional rights with impunity? No. Actions may be filed in federal court for violation of a federal statute, regardless of a state law like New York State Corrections Law §24. Moreover, the U.S. Supreme Court has held that a state must provide a forum for such cases to be heard, even though the New York State Corrections Law says otherwise. Heywood v. Drown 129 S.Ct. 2108 (2009), reversing the New York State Court of Appeals decision at 9 N.Y.3d 481 (2007). This means that an action can be filed in the New York State Supreme Court, which has a venue statue more favorable than the federal statue. Under the New York venue statute, the action can be filed in the county of the occurrence, or where any party resides. For the purposes of venue, a prisoner resides in the last county in which they lived before incarceration, or in the county where they are incarcerated. See, Farrell v. Lautob Realty Corp., 204 A.D.2d 597. Many state prisoners are from New York City counties that are considered to be friendlier to Plaintiffs that the upstate, rural counties where most state correctional facilities are located. An action, therefore, could be filed in the Bronx Supreme Court if the client last

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers

resided in the Bronx. While such an action might be removed to federal court because it is under federal question jurisdiction (28 U.S.C. §1331, 28 U.S.C. §1441 (c)), the State Attorney General’s Office would have to move within 30 days of receiving the complaint under 28 U.S.C. §1446—and Federal judges are known to adhere strictly to time guidelines. Moreover, the Commission on Corrections often investigates state prison conditions and deaths in custody. A complaint lodged with the commission might bring about a helpful investigation, and the paperwork obtained from the Commissions on Corrections is often invaluable.

As to attorney’s fees for 42 U.S.C. §1983 actions, 42 U.S.C. §1988(b) provides that a plaintiff ’s attorney may be awarded attorney’s fees for a successful prosecution of a civil rights action. Some cases brought to establish a violation of a client’s civil rights may have minimal damages despite a clear act of state wrongdoing–rather than allowing such wrongdoing to go unremedied, a practitioner may bring an action anyway, in the hope of being awarded attorney’s fees, so that, sometimes, the attorney’s recovery may exceed the client’s. However, in such a situation, it would be best to have a retainer that contemplates such a situation. A

Eric Buckvar was a Senior Trial Attorney and Appellate Attorney with the Brooklyn District Attorney’s Office from 1987 to 1994. His practice initially included criminal defense, but now consists solely of plaintiff’s personal injury cases. He has handled several cases against the Department of Correctional Services, including an action arising out of injuries to an inmate who fell in a football game due to an uneven field and an action where an inmate participating in the shock incarceration program died of exhaustion.

Of course I’ve got lawyers. They are like nuclear weapons, I’ve got em ‘cause everyone else has. But as soon as you use them they screw everything up. — Danny DeVito

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers



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

NYSACDL CLE Upcoming Dates Partner CLE: MAN vs. MACHINE VII – Defending the DWI Case

NYSACDL Regional Criminal Defense Seminar: Lake Placid 2020

February 12


Brooklyn Law School Brooklyn, NY

Lake Placid, NY

NYSACDL Regional Criminal Defense Seminar: Syracuse 2020



Cross to Kill 2020 New York, NY

Syracuse, NY

Scorpion is honored to be the 2020 CLE Series Sponsor for NYSACDL! As the only NACDL approved agency and the only agency with an entire team specializing in criminal defense – we want to know we are here for you. Scorpion is a digital marketing company that specializes in the growth of law firms. Over the span of nearly two decades, Scorpion has helped thousands of law firms build their online exposure, attract more of the types of clients they want, and increase their marketing return on investment. We look forward to seeing you at NYSACDL CLE programs in 2020!


Atticus | Volume 31 Number 2 | Spring 2019 | New York State Association of Criminal Defense Lawyers

Scenes from Fall 2019 CLE programs

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers



Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers

Join the Committee

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


Chair: Richard Willstatter (willstatter@msn.com) Members: Steven Epstein; Mark Fernich; Alan Lewis; Timothy Murphy; Claudia Trupp

Chair: Donald Rehkopf (usmilitarylaw@gmail.com) Members: Kenneth Moynihan; Andre Vitale, Mark Williams



Chairs: Lori Cohen (locohen@aol.com); Timothy Hoover (thoover@hodgsonruss.com) Members: Edgar De Leon; James Grable; Renee Hill; Andrew Kossover; Arnold Levine; Brian Melber

Chair: Arnold Levine (nyccrimlaw@aol.com) Members: John Buza, Edgar De Leon, Peter Dumas, Renee Hill, John Ingrassia, Brian Melber


Co-Chairs: Ben Ostrer (ostrerben@aol.com), John Wallenstein (JSWallensteinesq@outlook.com) Members: Cheryl Meyers Buth, Alan Lewis, Timothy Murphy, Harlan Protass, Russell Schindler

Chair: Steven Epstein (sepstein@barketepstein.com) Members: John Ingrassia, Andrew Kossover, Yung-Mi Lee, Arnold Levine; Allison McGahay; Brian Melber; Kenneth Moynihan; Timothy Murphy; Ben Ostrer; Jill Paperno; Donald Rehkopf; Tucker Stanclift; Andre Vitale; Rob Wells; Richard Willstatter

FEDERAL PRACTICE COMMITTEE Chair: John Wallenstein (JSWallensteinesq@outlook.com) Members: James Grable, Timothy Hoover; Arnold Levine; Elizabeth Macedonio; Brian Melber; Kenneth Moynihan; Donald Thompson; Richard Willstatter

FINANCE COMMITTEE Chair: Alan Lewis, Chair (Lewis@clm.com) Members: Lori Cohen; Edgar De Leon; Andrew Kossover

INDIGENT DEFENSE COMMITTEE Chair: Michael Baker (mbaker@co.broome.ny.us) Members: Stephanie Batcheller, Alice Fontier, Jessica Horani, Mark Hosken, Arnold Levine, Greg Lubow, Jill Paperno, Craig Schlanger, Donald Thompson, Karen Thompson, Mark Williams


PUBLIC STATEMENTS COMMITTEE Chair: Lori Cohen (locohen@aol.com) Members: Timothy Hoover, Jessica Horani, Andrew Kossover, Arnold Levine, Susan Walsh, Richard Willstatter

TRIAL PENALTY TASK FORCE Co-Chairs: Susan Walsh (SWalsh@Vladeck.com); Arnold Levine (nyccrimlaw@aol.com)

WHITE COLLAR CRIME COMMITTEE Chair: Scott Iseman (siseman@oalaw.com) Members: Joshua Dratel, James Grable, Timothy Hoover, Alan Lewis, Brian Melber

YOUNG LAWYERS COMMITTEE Co-Chairs: Lori Cohen (locohen@aol.com); Lindsay Lewis (llewis@joshuadratel.com)

JUSTICE COURTS COMMITTEE Chair: Greg Lubow (gdlubow@gmail.com) Members: John Ingrassia, Tucker Stanclift

LAWYERS STRIKE FORCE COMMITTEE Chair: Lori Cohen (locohen@aol.com) Members: Timothy Hoover, Marc Fernich, Jill Paperno, Richard Willstatter

LEGISLATIVE COMMITTEE Chair: Kevin Stadelmaier (kstadelmaier@legalaidbuffalo.org) Members: Derek Andrews, Lori Cohen, Alice Fontier, Jessica Horani, Scott Iseman, Andy Kossover, Yung-Mi Lee, Alan Lewis, Greg Lubow, Amy Marion, Kenneth Moynihan

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers


NYSACDL Membership

The Largest Criminal Defense Bar Association in New York State


PRESIDENT-ELECT Alice Fontier, Manhattan

FIRST VICE PRESIDENT Brian Melber, Buffalo

VICE PRESIDENTS Steven B. Epstein, Garden City James W. Grable, Jr., Buffalo Yung-Mi Lee, Brooklyn Timothy P. Murphy, Buffalo Russell A. Schindler, Kingston

SECRETARY Edgar De Leon, 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 Joseph R. DeMatteo Brian J. DeSesa Karen L. Dippold Michael G. Dowd Mario F. Gallucci David I. Goldstein Trevor W. Hannigan James P. Harrington Daniel J. Henry, Jr. Michael D. Horn

John Ingrassia Isabelle A. Kirshner Robert P. Leighton Greg D. Lubow Christopher X. Maher Mark J. Mahoney Michael P. McDermott Oscar Michelen Kenneth Moynihan Steven K. Patterson Roland G. Riopelle Anastasios Sarikas Oliver S. Storch Vivian Storch Cannon Scott B. Tulman John S. Wallenstein Susan J. Walsh Richard D. Willstatter James W. Winslow

NYSACDL WELCOMES OUR NEW MEMBERS (AS OF JANUARY 6, 2020) ALBANY Laura R. Kesler BRONX Jeffrey Bloom Cesar Gonzalez, Jr. BROOME Mark L. Rappaport

Florian Bruno Laura Conboy Barry J. Donohue Gianna Florentino Jevonne Knox Brittany Penberthy Hayley Ross

CALIFORNIA Brian M. Blades Molly Reynolds

KINGS Rebecca Carey Michael Chessa Jason H. Krinsky

CLINTON Megan Gokey Hillary Rogers

MONROE James Nobles James Riotto

DUTCHESS Charis Moore Margaret M. Walker

NASSAU Camille Russell

ERIE Mark Arcara James Quinn Auricchio


NEW YORK Eric Buckvar Emma J. Cole Xavier R. Donaldson

Mehdi Essmidi Ammara Farooq Karen Anne Newirth Steven Questore Benjamin Silverman Rhidaya Trivedi NIAGARA Lawrence G. Stuart ONEIDA Robert Menard ONONDAGA Laurie Rolnick ONTARIO Carrie W. Bleakley Ashley Westbrook ORANGE Kate Bellingham Jean M. Hernon Doug Taub Evan D. Zucker

QUEENS Anna Demidchik Ami Kim Raymond Kobus Lisa Saltzman Eylan Schulman Steven Sternberg ROCKLAND Brian Berkowitz Keith Braunfotel Nicole Digiacomo STEUBEN Karen Madsen SUFFOLK Joseph H. King Michael Anthony Schillinger TEXAS Temani Adams TIOGA Thomas R. Cline

ULSTER Mikael Cohn Jeremiah Flaherty WAYNE John Gilsenan WESTCHESTER Jared Altman Michael Borrelli Eve Bunting-Smith Kevin Faga Carly Gresham Andres J. Bermudez Hallstrom Michael Litman Robert Schechter Ian P. Spier Ron Stokes Lawrence R. Sykes David Walensky YATES Dianne Lovejoy Leslie Roff

Atticus | Volume 31 Number 2 | Spring 2019 | New York State Association of Criminal Defense Lawyers

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

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

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

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

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

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

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers



New York State Association of Criminal Defense Lawyers

Membership Application Please print or type

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

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

Lifetime Member 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 $575. $345. $245.

New or Part-Time Attorney Member


Full-time Public Defender Allied Professional Member

$160. $220.

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

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

Retired Attorney $105. Recent Law School Alumni (less than one year since completion) $80. School: ________________________ Graduation date: ________ Law Student Free Membership dues can be paid by check or charged to American Express, MasterCard, Visa, or Discover Please charge to my credit card.

Our Mission NYSACDL is dedicated to protecting the rights of criminal defendants through a strong, unified, and well-trained criminal defense bar. Our guiding principle is that vigorous defense is the strongest bulwark against error and injustice in the criminal justice system. In an era when the United States has the highest incarceration rate in the world, we expand on the question most often posed to our members and ask “how can we defend those people most effectively?” NYSACDL’s goals are to: n Serve as a leader and partner in advancing humane criminal justice policy and legislation. n Promote the rights of criminal defendants through the adoption of policy positions, targeted concerted action, and the submission of amicus briefs on issues of significance to the fair administration of criminal justice and the protection of civil liberties. n Advocate for individual and systemic accountability in the criminal justice system, with a particular emphasis on instances of judicial and prosecutorial misconduct. n Develop a broad, inclusive and vibrant membership of private criminal defense practitioners and public defenders throughout New York State. n Provide a forum for our members to exchange ideas and information, with a particular emphasis on mentoring those who are new to the profession. n Provide quality continuing legal education to our members through live programs, a comprehensive and easily-accessible briefs and motions bank, e-alerts and website updates with new developments, and articles in our quarterly publication, Atticus. n Defend our members in professional emergencies and honor their achievements through articles on our website and in Atticus, and awards at our annual dinner

Credit card #: Exp. date:

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

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


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

Atticus | Volume 32 Number 1 | Winter 2020 | New York State Association of Criminal Defense Lawyers

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

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

$25/Credit Hour $50-$150

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

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

Sentencing & Appeals


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

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

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

Federal Practice

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

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

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

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

Atticus | Volume 31 Number 2 | Spring 2019 | New York State Association of Criminal Defense Lawyers


Publication of the New York State Association of Criminal Defense Lawyers

90 State Street, Suite 700 Albany, New York 12207

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

atticus@nysacdl.org www.nysacdl.org

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

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


Profile for NYSACDL

NYSACDL "Atticus" - Vol 32, Number 1  

In This Issue: - Court of Appeals: By Timothy Murphy, Esq. - Jury Instructions: By Scott Lockwood, Esq. - Discovery Reform: Are You Ready?:...

NYSACDL "Atticus" - Vol 32, Number 1  

In This Issue: - Court of Appeals: By Timothy Murphy, Esq. - Jury Instructions: By Scott Lockwood, Esq. - Discovery Reform: Are You Ready?:...

Profile for nysacdl