Atticus - Spring/Summer 2021

Spring/Summer 2021 | Volume 33 | Number 2

ATTICUS INSIDE this

ISSUE 3

Message from the President

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From the Editor

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Dispatches from 90 State

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Legislative Update

By Kevin Stadlemaier, Esq.

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Amicus Curiae Update

By Timothy Murphy, Esq.

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Court of Appeals

By Timothy Murphy, Esq.

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The Trial Penalty

By Susan Walsh, Esq.

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Conflict Between Contempt and Zealous Advocacy

By Hon. Peter H. Mayer

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Cutting Edge CLE

New York State Association of Criminal Defense Lawyers

Publication of the New York State Association of Criminal Defense Lawyers

The Trial PENALTY

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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 2021 PRESIDENT: Alice Fontier, Manhattan

John Ingrassia, Newburgh

Jeanne E. Mettler

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

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

PRESIDENT-ELECT: Brian Melber, Buffalo

*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

$1,000

□ Leader

$500

□ Colleague

$250

□ Supporter

$100

□ 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.

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Atticus | Volume 33 Number 2 | Spring/Summer 2021 | 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 Alice Fontier I don’t need to remind anyone that we faced incredible challenges in 2020. However, I cannot think of a time that I have been prouder to be a member of NYSACDL. In the past year, this organization has risen to meet the many challenges that we have faced as a society and a legal profession. The protests following the death of George Floyd were the catalyst for some long overdue changes in our State – legislative changes that this organization had been at the forefront of championing for many years. It was the groundwork of people who drafted legislation, and advocated for it, that prepared the legislature with the knowledge to move forward with meaningful change, such as the repeal of §50(a).

Similarly, many members of NYSACDL have been actively engaged in implementing the Police Reform and Reinvention Executive Order in their respective jurisdictions.

NYSACDL has been advocating for implementation of the Marijuana Regulation and Taxation Act for several years. We made passage of the MRTA a legislative priority again this year, and were involved in last minute calls and meetings until passage of the act. The MRTA is a huge step forward in ending the racially biased war on drugs. The over policing of communities of color must come to an end, and this Act is one of the first changes to meaningfully address both present practices and prior harm.

Despite the economic realities caused by the on-going pandemic, the FY22 New York State budget also includes much needed funding for indigent defense. In addition to re-committing to statewide Hurrell-Haring implementation for criminal defense, for the first time the State has committed to providing resources to the Office of Indigent Legal Services to support parental defense in Family Court. Both of these funding sources were a priority for NYSACDL, and we are glad to see that the legislature was moved by our advocacy on these points.

In this coming year, we have an opportunity to solidify a fair and just Court of Appeals. There is currently one seat open, and two more are being vacated in the next several months. In an effort to make defense voices heard in the judicial selection process for the Court of Appeals we have created the Judicial Nominating Committee. Led by Alan Lewis, this committee will interview and rate all of the candidates for the three positions that will come open this year. NYSACDL is the only criminal defense organization participating in this process.

I was truly honored to have been sworn in as President of NYSACDL at the annual meeting in January. It was incredible to share the stage with Benjamin Crump - a Continued on page 39

Atticus | Volume 33 Number 2 | Spring/Summer 2021 | New York State Association of Criminal Defense Lawyers

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From the Editors’ Desk

EDITORS

John S. Wallenstein Ben Ostrer Russell Schindler

A publication of the New York State Association of Criminal Defense Lawyers ©2021 NYSACDL 90 State Street, Suite 700 Albany, New York 12207 Phone: 518-443-2000 Fax: 888-239-4665 www.nysacdl.org atticus@nysacdl.org

Read a good book lately?

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

John S. Wallenstein, Ben Ostrer, Russell Schindler

We promised you that we’d be back in print format, and here we are. This past year has been really [insert your own adjective here]. But, NYSACDL remains strong and vibrant, with more members than ever before, more frequent CLE programs, and a voice that’s clearly heard in Albany, if not always heeded. As always, our success is due to our members, guided by President Alice Fontier, Executive Director Jen Van Ort, and the officers and directors.

We’ve had some legislative success this session, and the Legislative Committee, headed up by Kevin Stadlemaier, continues to press our priorities with the Legislature and the Governor. Our CLE Committee, headed by Steve Epstein, has really gone above and beyond during the crisis, planning and presenting numerous virtual CLE programs. Our “Law @ Lunch” series has been so well received that it will continue post-pandemic, and the Committee has planned a two day CLE cleverly entitled “Cannabis in the Catskills”, to be held in early October at the Resorts World Casino Hotel in Kiamesha Lake (on the grounds of the late lamented Concord Hotel, for those who remember the glory days of the Catskills).

It will be a great opportunity to meet members from around the state, and garner some CLE credit as well.

As the courts open up again, and we get back to hearings and trials, we hope you’ll take the time to write us with stories of your victories and advances, so that Atticus can showcase our members skills. And, of course, we are always looking for authors; if you’ve got something to write about, do it; send it to the editors by emailing any of us or Jennifer, and we’ll publish the good stuff in the next issue.

Stay safe and healthy.

Ben, John & Russell

Contact John at jswallensteinesq@ outlook.com

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Atticus | Volume 33 Number 2 | Spring/Summer 2021 | New York State Association of Criminal Defense Lawyers

Dispatches from 90 State Jennifer Van Ort, Executive Director Talk about change! We have experienced a lot of it the past 15 months – and we are no where near done. While we are starting to open up and talk about meeting in-person, we know that we will still be affected by the changes we experienced, and those experiences will continue to influence how we plan for the days ahead. NYSACDL is starting to plan for some great in person events and I hope you will be able to join us!

“It is not the strongest of the species that survives, nor the most intelligent that survives. It is the one that is the most adaptable to change.”

– Charles Darwin

As you may have seen, we are planning our Cannabis in the Catskills event for Thursday, October 7 – Friday, October 8 at the Resorts World Catskills – Casino in Monticello. This two-day event will encompass lectures focused on the changes made by the Marijuana Regulation & Taxation Act (MRTA) recently passed in New York. We also hope to have a lot of fun! The event will include a cocktail hour where you can socialize with colleagues from across the state, and of course, access to all the amenities offered at the casino and on-site hotels.

While we are in Monticello, the NYSACDL Board of Directors and Past-Presidents will be meeting to discuss an important topic – NYSACDL’s Strategic Plan. As the Board reflected on the past several years of NYSACDL’s operations, and on how the COVID pandemic affected those operations, it became abundantly clear that it was time to enter a strategic planning process. Please look for opportunities to come for you to also participate in this process – your opinions and ideas are important to the future of NYSACDL! Following Cannabis in the Catskills, the CLE Committee is planning a “normal” slate of in-person programs in Binghamton, Buffalo and NYC – see more info on the CLE calendar in this issue! We are also thrilled to begin planning the next NYSACDL Foundation Annual Dinner in January 2022 – we hope to see you there!

Of course, while we are excited to see everyone in person and get back to our regular programing, I would be remiss if I did not acknowledge the those who won’t be able to join us. We will continue to remember the impact of COVID on all of our families and friends while we gather together in person.

What about NYSACDL’s great online programming that we created during COVID? It’s not going away! We are excited to have acquired a new OWL 3-in-1 camera, microphone, and speaker that will help us present our in-person programs to an online audience – look for announcements for what programs will have a remote option (here’s a hint – Cannabis in the Catskills will not!) In addition, we are looking forward to continuing our Law @ Lunch series with timely topics relevant to your practices. Please send us any ideas you may have for topics!

As always, thank you for your continued support of NYSACDL and all the work you do for your clients and colleagues. Stay safe!

Atticus | Volume 33 Number 2 | Spring/Summer 2021 | New York State Association of Criminal Defense Lawyers

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L

NYSACDL

egislative

Committee Update

By Kevin Stadlemaier Chair, Legislative Committee

The Covid-19 Pandemic has permeated every facet of the criminal legal system, substantially affecting court operations as well as advocacy efforts aimed at effecting meaningful changes. The NYSACDL’s Legislative Committee’s usual practices of in person visits with key legislative stakeholders, and walking the halls of the Assembly and Senate, was fundamentally transformed into socially distanced phone calls and zoom meetings. The challenges created were many and required the entire committee to amend how, where and when we focused our advocacy.

Despite the challenges, the victories were many, and there is significant hope on the horizon for even more positive developments as we move into the post-budget advocacy cycle.

Relevant to our core agenda, as has been our practice, the NYSACDL’s Legislative Committee met frequently during the summer to establish our agenda for the 2020-2021 Legislative Session. Among these priorities were: 1. Amendment of CPL 60.45 (Coercive Interrogation). The issues of false confessions has long been a major one in criminal defense circles. Currently, law enforcement are not prohibited from creating false impressions regarding evidence in hand, or making false promises to those interrogated, for the purpose of extracting confessions. We sought an amendment of these practices to prohibit law enforcement from misrepresenting evidence or circumstances with the hope that same

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Kevin Stadelmaier is Chief Attorney for the Legal Aid Society of Buffalo, and Chair of the NYSACDL Legislative Committee.

Atticus | Volume 33 Number 2 | Spring/Summer 2021 | New York State Association of Criminal Defense Lawyers

would lead to a significant reduction in false confessions.

2. Increase in 18-b rates. 18-b rates in NYS have been frozen since 2004 at $75/hour for felonies and $60/hour for misdemeanor cases together with limits of $4400/$2200, respectively. Obviously the cost of living and practicing in NY has outstripped these amounts. In order to continue to attract high quality attorneys for those requiring representation by panel attorneys, NYSACDL sought to advocate for a substantial increase in the rates, together with a yearly increase benchmarked to COLA adjustments.

3. Increase of the “Youthful Offender” age to 21. Increasing the age at which a young person could take advantage of record expungement of certain offenses was a key priority. Allowing those convicted of crimes at a young age to nevertheless lead productive lives, without the collateral consequences and stigma of a conviction, was seen by our committee as absolutely necessary.

4. Passage of a Legislative Fix to the “Prosecutorial Conduct Commission” Act. This Commission had been implemented by statute in 2018 in order to bring accountability to prosecutors who flouted ethical norms in pursuit of convictions. Unfortunately, the law was invalidated on separation of powers grounds shortly after its passage and our committee has worked diligently to implement a “fix” to make the commission viable once again.

5. Legalization of Marijuana and passage of the “Marijuana Taxation and Reform (MRTA)” Act. Continuing the path to legalization set in motion with the substantial decriminalization of marijuana in previous years, this expan-

sive bill sought not only to legalize adult use, but also provided for equitable distribution of taxation proceeds to disproportionately impacted communities and expungement of conviction records for those adversely affected by decades of fails drug enforcement policy.

Our Committee, along with members of the Chief Defenders Association of New York (CDANY) and the New York State Defender’s Association (NYSDA) held joint lobby days in January and February. The bulk of our committee participated and we were able to discuss with both lawmakers and their staff our core priorities as well as those of the other groups. While vastly different than our past lobby/advocacy days, the discussions proved extremely fruitful. While we faced some significant budgetary pressure on issues such as 18-b, all of the individuals we spoke to were optimistic that a good portion of our agenda was viable. As stated above, our victories both in the latter portions of 2020 and in the current legislative session have been plentiful.

In the 2020 post-budget cycle, and assisted in no small way by NYSACDL’s advocacy, we were successful in obtaining the repeal of Civil Rights Law 50-a.

Long regarded as among the most damaging statutes in the NY Code, 50-a had long shielded from public view evidence of police misconduct. Prior to repeal, without a court order, law enforcement agencies were not required to disclose records of their employees’ official misconduct. NYSACDL sought repeal of this legislation in order to allow “sunshine” on bad actors in the law enforcement community and bring a level of heretofore seen accountability.

In the aftermath of the murder of George Floyd, as well as the tidal wave

of support for more police accountability, the NYS Legislature and Governor Andrew Cuomo finally agreed to a repeal of this statute. Our committee had met several times with various legislators, including Senate Codes Chair Jamal Bailey, who ultimately led the final push toward repeal. Now, law enforcement agencies will no long be able to unjustifiably shield from public scrutiny the bad acts of their employees. Defense attorneys will be provided these materials which can be used in plea negotiation and cross examination.

Clearly, this development was, and will continue to be, a huge positive.

Another significant victory, with far reaching implications for our clients arose in late November and early December with the Assembly and Senate passage of Senate Transportation Committee Chairman Timothy Kennedy’s “Driver’s License Suspension Reform” Act. This legislation sought to make it more difficult for the NYS Department of Motor vehicles to suspend a client’s driver’s license for non-payment of traffic fines and fees. Thousands of our clients are arrested each year for driving on a license suspended solely because of unpaid fines. The vast majority of these clients are upstanding and hardworking individuals and many of them had no idea their license had even been suspended at the time of the arrest on damaging, misdemeanor charges. This new law sought to rectify this injustice while at the same time providing reasonable avenues toward the payment of these fines through payment plans.

Our committee both penned a letter in support and advised any all legislative staff we spoke to that we were very much in favor of its passage. Our advocacy was rewarded on New Year’s Eve with Governor Cuomo’s signature Continued on next page

Atticus | Volume 33 Number 2 | Spring/Summer 2021 | New York State Association of Criminal Defense Lawyers

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Legislative Update Continued from previous page on this landmark legislation which will both substantially curtail license suspensions and provide significant social justice to our clients.

Although much of the traditional budget cycle in NY was consumed with Executive branch matters having nothing to do with our criminal legal system reform agenda, the issue of marijuana legalization never left the forefront.

Given the confluence of budgetary woes created by Covid-19 and the social justice/police accountability reform agenda ushered in by the numerous negative citizen/police interactions of the past year, marijuana legalization found substantial purchase as we moved toward the budget submission deadline.

Assembly Leader Crystal People’s Stokes’ “Marijuana Reform and Taxation” act became the framework not only for legalization, but also for significant social justice reform for those adversely affected by criminalization of marijuana. Given its status as a core priority, our committee provided advocacy during lobbying calls and with letters of support on the issue. In year’s past, the major sticking point had not been with the concept of legalization but with the distribution of the resultant tax revenue.

It has been long argued by legalization proponents that the bulk of the funds gleaned from taxation of marijuana should go to those most adversely affected. It was an issue that had scuttled the talks three years running. However, given the financial motivations brought on by the Covid-19 pandemic, the time to strike was now.

Finally, after decades of failed drug enforcement policy, countless lives ruined, billions of dollars misspent, the scourge of marijuana criminalization came to an end with announcement of a tripartite

agreement on the Marijuana Reform and Taxation Act on March 30th, 2021.

Not only was adult use marijuana legalized, the statute provided two extraordinary reforms championed by criminal defense practitioners for years. First, the law provided expungement for virtually all possession level marijuana charges except for those charged with possessing the most significant amounts. The expungement will result in thousands of cleared criminal records paving the way toward a brighter future for a multitude of clients.

Secondly, the law provides that law enforcement can no longer use the smell of burnt or unburnt marijuana as justification to effect constitutionally questionable searches, excerpt in situations where an officer suspects impairment by the driver of a vehicle. However, even that inquiry is narrowly tailored and does not permit wholesale searches of a vehicle or its occupants. No longer will law enforcement be able to target, stop, search and detain our clients simply because they smell marijuana. This will substantially limit questionable “stop and frisk” tactics, further limiting the ability of law enforcement to unjustifiably intrude on the lawful activities of our clients. These, among other provisions providing real financial support to those communities most disproportionately affected by previous enforcement schemes, is a substantial step forward for our agenda and NYSACDL was proud to have supported it.

Furthermore, an issue which was not part of our core list, but which we nevertheless supported was the passage of the HALT Solitary Confinement Bill.

The passage of this long fought for bill places significant limitation on the ability of corrections to place our incarcerated clients in solitary confinement.

All confinement has to be extensively justified and documented and time periods in solitary are strictly limited. This effectively ends the indefinite torture of our clients by forcing them to spend long periods alone without any meaningful human contact.

As has been our past practice, we also pivoted to focus objections on new legislation that we felt damaging to the ability of our members to properly defend their clients. One such instance was our opposition to a change in the definition of consent promulgated by Senate Bill S452, otherwise known colloquially as the “Rape Intox Bill.”

This bill seeks to redefine what consent means in the context of sexual interactions between intoxicated persons. It expands, to the point of vagueness, the definition of consent and results in impermissible burden shifting to the defense to prove their client had consent.

In our view, the law would fundamentally alter the concept of consent, skew forever the already settled definition of same in the law and result in far more convictions and sexual offender collateral consequences for our clients. As of this article, the bill is still pending in committee and we continue to lobby against its movement forward.

As we move into the post budget cycle, our committee will continue to focus on our core priorities, but also look to the future. Last week, NYSACDL and NACDL jointly released a comprehensive report on the damaging effects of the “Trial Penalty” in NY. This report, extensively researched and expertly written by NYSACDL’s Trial Penalty Task Force and its Chairperson Susan Walsh and contributed to by NACDL Executive Director Norman, pulls back the curtain on of the worst kept secrets in New York criminal jurisprudence; if Continued on page 10

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Atticus | Volume 33 Number 2 | Spring/Summer 2021 | New York State Association of Criminal Defense Lawyers

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NYSACDL

micus Curiae

Committee Update

By Timothy P. Murphy, Amicus Curiae Committee Chair

The amicus curiae committee has been busy participating in both state and federal appellate litigation.

In Farhane v. United States, NYSACDL has joined NACDL in its amicus efforts addressing before the U.S. Court of Appeals for the Second Circuit (201666) a potential application of the Padilla ineffective assistance of counsel principle to a naturalized NYC citizen who had pleaded guilty and was facing denaturalization and deportation. This habeas corpus appeal is pending.

Timothy P. Murphy, Esq. is an Assistant Federal Defender, WDNY, formerly chief appellate attorney for the Legal Aid Society of Buffalo, and a Vice-President of NYSACDL.

In People v. Duval, NYSACDL’s amicus authors, Dana Foster, Iris Greenquist and Ada Yue Wang, from the NYC firm, White & Case, addressed a number of multi-unit search warrant issues, including the sufficiency and particularity of the warrant and Franks-related issues. Unfortunately, this appeal was unanimously affirmed by the NYS Court of Appeals on February 11, 2021.

See, 2021 NY Slip Op. 00869.

On March 8, 2021,the U.S. Supreme Court in Thompson v. Clark (20-659), granted certiorari as NYSACDL joined Chicago based firm, Loevy & Loevy, in an amicus brief in support, addressing what the standard should be in § 1983 litigation for termination of the petitioner’s underlying criminal prosecution. Depending on whether the Court ultimately accepts the minority position of the 11th Circuit, this case could have a significant impact on defendants’ The Amicus Curiae Committee can be contacted if you have, or learn of, a matter in ability to bring civil actions against law which our participation is solicited. However, members are reminded to contact us as enforcement for misconduct. This case early as possible in the course of the case because it does take time to recruit an author, is pending. prepare, edit, print, copy and file a brief.

Continued on next page Atticus | Volume 33 Number 2 | Spring/Summer 2021 | New York State Association of Criminal Defense Lawyers

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Amicus Curiae

Legislative Update

Continued from previous page

Continued from page 8

NYSACDL, NYSDA, the Chief Defenders Association of NY, the Monroe County Public Defender’s Office and the Center for Appellate Litigation, filed a joint amicus brief before the NYS Court of Appeals in the combined 10-defendant appeal waiver decision, People v. Bisono, et al. This decision was a follow up to the Court’s splintered decision in People v. Thomas, 34 N.Y.3d 545 (2019), addressing the misrepresentation of fact in appeal waivers, particularly regarding the subsequent filing of notices of appeal. On December 15, 2020, the Court invalidated all 10 appeal waivers. See, 2020 NY Slip Op. 07484. Unfortunately, the Court declined to address the big picture raised by amici, that being the continued vitality of People v. Seaberg, 74 N.Y.2d 1 (1989).

NYSACDL joined the Families Against Mandatory Minimums in its amicus brief before the U.S. Court of Appeals for the Second Circuit in United States v. Scott (18-163). NACDL also authored an amicus brief. This was a rehearing en banc of United States v.

Scott , 954 F.3d 74 (2d Cir. 2020), addressing whether the SDNY was correct in its 2255 decision that first-degree manslaughter (P.L. § 125.20(1)) qualified categorically as a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), or as a “crime of violence” under the Career Offender Guideline, U.S.S.G. § 4B1.1(a). The

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government was unfortunately successful here before the entire Second Circuit panel, which on March 2, 2021, reversed, vacated and remanded. See, 2021 US App. Lexis 6014; 2021 WL 786632.

In November 2020, NYSACDL agreed to join the Center for Appellate Litigation as amicus in the NYS Court of Appeals case, People v. Shanks (201900246), addressing whether a denial of trial counsel can be appealed when, post-trial, the trial judge offered to free the detained defendant if he waived his right to appeal. This case is still pending.

NYSACDL joined NACDL as amicus in United States v. Weaver (18-1697), an en banc appeal before the Second Circuit, originating from a vehicle stop in the Northern District of New York.

The Court will be addressing the scope of when a search begins where a car passenger (the defendant) is ordered out of the vehicle. Oral argument is scheduled for April 20, 2021.

Finally, NYSACDL will be filing an amicus brief in the NYS Court of Appeals in Endarda-Caicedo v. DMV (202000133), where the Court will be addressing the use of breath test results in a DMV administrative hearing despite the VTL § 1194(2) two-hour refusal rule being violated during a DWI arrest.

This case is pending. A

you go to trial and lose, expect to see a worse outcome than if you had simply pled guilty.

This practice has undoubtedly led to thousands of false convictions and harsher than normal sentences. The report highlights the scourge that the trial penalty represents and further makes several outstanding recommendations to combat its effects. NYSACDL’s legislative committee has vowed to take up the mantle of these recommendations and our core priorities will likely revolve around efforts to mitigate the damage of the trial penalty and hopefully eliminate it altogether through targeted legislation surrounding appeal rights and sentencing reform. Work on this front has already begun with the support of several measures aimed at expanding appeal rights for convicted clients championed by Senate Codes Chair Jamal Bailey and other like-minded stakeholders. Those efforts will continue as we move into the post-budget cycle.

Rest assured that the NYSACD L&L Committee will continue to remain vigilant in defense of any attacks on the rights of our clients and continue to seek improvements to criminal defense advocacy despite continued barriers caused by the ongoing pandemic. A

Atticus | Volume 33 Number 2 | Spring/Summer 2021 | New York State Association of Criminal Defense Lawyers

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ourt of Appeals

Pertinent Criminal-Related Decisions September through December 2020

By Timothy P. Murphy, Esq.

September 1, 2020

People v. Hinshaw 35 NY3d 427

Timothy P. Murphy, Esq. is an Assistant Federal Defender, WDNY, formerly chief appellate attorney for the Legal Aid Society of Buffalo, and a Vice-President of NYSACDL.

This decision was authored by Judge Wilson, with Judge Stein concurring and Judge Garcia authoring a stronglyworded dissent. The Fourth Department’s 3 to 2 decision is reversed and the motion to suppress is granted. Mr. Hinshaw was pulled over in Buffalo after an experienced NYS Police trooper received a three-week-old DMV notice that defendant’s car had been reported as “an impounded vehicle” but that the notice should not be “treated as a stolen vehicle hit.” Further, the notice indi-

cated that “no further action should be taken based solely upon this impounded notice.” No moving VTL violations had been observed. The inspection sticker was not expired. Marijuana and a loaded gun were ultimately seized.

The majority held that “[b]ecause the state trooper lacked an objectively reasonable suspicion that a crime had occurred or probable cause to stop Mr. Hinshaw’s vehicle for a traffic infraction, we conclude the automobile stop was unlawful.” The majority reminds us that probable cause, regardless of law enforcement’s motivation, is needed to Continued on next page

Atticus | Volume 33 Number 2 | Spring/Summer 2021 | New York State Association of Criminal Defense Lawyers

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Appellate Report Continued from previous page stop a vehicle for a traffic infraction, People v. Robinson, 97 NY2d 341, 349350 (2001); People v. Bushey, 29 NY3d 158, 160 (2017) (where a DMV database report provided probable cause for a traffic stop), and reasonable suspicion is needed to stop a vehicle for a crime.

People v. Spencer, 84 NY2d 749, 752 (1995). Moreover, a vehicle stop may also be effectuated pursuant to “nonarbitrary, nondiscriminatory, uniform” highway traffic procedures. People v.

Sobotker, 43 NY2d 559, 563 (1978).

People v. De Bour, 40 NY2d 210, 216, 223 (1976), which applies to traffic stops, People v. Garcia, 20 NY3d 317, 324 (2012), affords greater protection than the federal standard to be free from “aggressive interference” during brief investigative stops by law enforcement. See also, Terry v. Ohio, 392 US 1, 16-22 (1968). Though the dissent does not believe that the majority arrives at its holding with any coherent precedent as a foundation, the rationale for the so-called Robinson / Spencer standards is made clear here: the probable cause requirement for pulling over a vehicle for a traffic violation reflects the government’s lesser interest in investigating such conduct, as opposed to a crime, which requires reasonable suspicion. In doing so, Judge Wilson emphasizes that the New York Constitution (article 1, § 12) affords more protections in this regard than its federal counterpart.

Judge Stein’s concurrence pointed out that the issue of whether probable cause is required to effect a traffic stop for a VTL violation was not properly before the Court. Judge Stein agreed, however, that the trooper lacked even reasonable suspicion to pull the vehicle over.

In his 35-page densely researched dissent, Judge Garcia points out that

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Robinson came on the heels of Whren v. United States, 517 US 806, 809811 (1996), wherein the High Court’s reference to probable cause and traffic stops has been uniformly interpreted by federal circuit courts, e.g., United States v. Stewart, 551 F3d 187, 192 (2d Cir. 2009), and state courts of last resort as being merely dictum. If you want to be really confused, just read the backand-fourth between the majority (at fn 7) and the dissent on what the true holding of People v. Ingle, 36 NY2d 413, 414-416, 420 (1975) is. According to

wrote a dissent. The Appellate Term is reversed. Criminal Court in NYC erroneously permitted the local accusatory instrument to be amended, relying on People v. Easton, 307 NY 336 (1954) and its interpretation of the former Code of Criminal Procedure in permitting such an amendment where the defendant is not prejudiced or surprised. The Appellate Term affirmed the common law rule from Easton, notwithstanding the subsequently enacted CPL 100.45 which addresses amendments of certain local court instruments.

In 2013, the lower court issued a two-year order of protection directing the defendant to stay away from his wife. In 2015, he was accused of committing 2nd degree criminal contempt in a misdemeanor complaint for violating the order. The correct date of the offense was January 25, 2015. The affirmation from the complaining witness incorrectly indicated the date of offense to be January 25, 2014. The accusatory instrument incorrectly alleged the crime occurred on October 25, 2015, meaning that the document facially failed to state facts showing a violation of the order.

The probable cause requirement for pulling over a vehicle for a traffic violation reflects the government’s lesser interest in investigating such conduct, as opposed to a crime, which requires reasonable suspicion. the dissent, the Ingle court held that a traffic stop only requires reasonable suspicion. No doubt that Ingle and Robinson have created “confusion among courts.” See, e.g., Barry Kamins, Is ‘Ingle’ on Life Support After ‘Robinson’ and ‘Whren’?, NYLJ, March 30, 2018 (cited by the dissent, pg. 17). Regardless, the majority gets to say what the state of New York law is in 2020. In doing so, the dissent describes the majority’s decision here as “[a]nnouncing a sea change in New York constitutional law…”

Raise your hand if you think this settles the question.

October 15, 2020

People v. Hardy 35 NY3d 466 This is a 4 to 3 decision, with Judge Wilson authoring the majority opinion.

Judge Garcia wrote a dissent, joined by the Chief Judge. Judge Rivera also

The defendant waived being prosecuted by an information. CPL 170.65(3). A misdemeanor complaint is subject to less stringent review than an information and is not subject to the protections of CPL 100.40(1). However, it is still required to state all elements of the crime and provide reasonable cause to believe the defendant committed the offense charged. CPL 100.40(4)(b).

A supporting deposition may cure an otherwise facially deficient information, to assure that non-hearsay allegations

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establish every element of the offense charged. CPL 100.15(3); 100.45(3).

Unlike indictments (and SCIs), local court complaints and informations, which are not vetted by a grand jury, are not subject to CPL 200.70(1) factual amendments for time, place or names.

CPL 100.45(2) and (3). Additional charges may be added, however, if supported by the original factual allegations sworn to by an affiant. Id. Nonfactual allegations, however, may be amended.

CPL 100.45(3).

The People at bar were permitted to orally amend the instrument, over the defendant’s objection.

This constituted a jurisdictional defect, not waived by the entry of a guilty plea.

further inquiry. The judgment and the First Department are affirmed.

Three co-defendants were tried together for a prison assault. A defense lawyer, in cross-examining the complainant (fellow inmate) at trial, utilized the N-word racial slur five times in furtherance of challenging the complainant’s credibility. After the fifth time, one of the jurors stood up and stated, “Please, I am not going to sit here… and [have] you say that again. Don’t say it again or I’m leaving… I find that very offensive.”

A juror’s oath is no less serious than mine.

However, were I to make good on my threat, my colleagues would ably and fairly decide the case without me; a juror’s threatened departure runs a risk of mistrial or a successful appeal overturning the verdict.

In dissent, Judge Garcia described the DA’s oral amendment as merely the correction of a non-jurisdictional typographical error, which, consistent with Easton, was forfeited by the entry of defendant’s guilty plea to the misdemeanor complaint. Judge Rivera opined that the defendant’s challenge was a non-waivable jurisdictional issue, but agreed with the conclusion of the Appellate Term.

October 20, 2020

People v. Batticks 35 NY3d 561 This 4 to 3 decision was authored by the Chief Judge, with Judge Wilson dissenting. Judges Fahey and Rivera joined the dissent. The appellant raised a Buford issue after a juror outburst occurred during the trial. The trial court did not abuse its discretion in only providing curative instructions without

The court immediately reprimanded the juror and admonished defense counsel.

Counsel then unsuccessfully moved for a mistrial, arguing that this juror was now grossly unqualified, as she was apparently unable to separate the facts from her distaste for the racial slur. No “probing and tactful” Buford inquiry was conducted. All defendants were convicted.

This decision presents another exploration of the balancing that a trial court must do under Buford in addressing potential juror misconduct, which trial courts often learn from second or thirdhand information. See, People v. Buford, 69 NY2d 290, 297-298 (1987); People v. Branch, 46 NY2d 645, 652 (1979).

A defendant of course has a fundamental and constitutional right to a trial by an impartial jury. See, NY Const. art. I, §§ 2, 6; US Const., amends. VI,

XIV. These rights are protected by CPL article 270. Once the jury is sworn, but before the rendition of a verdict, the trial court’s authority to discharge a juror is governed by CPL 270.35 and is “narrowly circumscribed.” To be removed, a sworn jury must be “grossly disqualified,” as opposed to a prospective juror challenged for cause who may be precluded where the individual merely possesses a state of mind which would prevent the rendering of an impartial verdict. See, CPL 270.25. The statute must be strictly followed; it is not up to a trial judge to set the requirements for one sitting as a juror. Finally, a juror just being “irritated” with one of the attorneys does not satisfy CPL article 270 in permitting discharge.

The trial court, which possessed a unique advantage in being able to assess the demeanor of the juror, did not abuse its broad discretion in its measured response, which did not include conducting a Buford inquiry here. All pertinent facts were already known by the court, providing a sound basis for its actions.

This is a “delicate” determination. Not every allegation of misconduct warrants what the majority describes as an “intrusive” inquiry under Buford. The court must investigate and, if necessary, correct the problem, while still being mindful not to taint the jury or encourage misconduct by giving it credence.

Indeed, “sometimes less is more.”

This case is thought-provoking for sure. The majority seemed to imply in footnote 2 that the blame for the juror’s “brief disruptive conduct” rested with defense counsel’s aggressive and controversial cross-examination. In dissent, however, Judge Wilson correctly pointed out that the trial judge stopped defense counsel from continuing a potentially successful cross-examination of a critical Continued on next page

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Appellate Report Continued from previous page prosecution witness. Apparently, the testifying cohort may have been “untruthfully painting himself as having undergone a transformation to a prison pacifist.” The majority’s presumption that defense counsel was merely trying to “goad” the witness by repeating a racial slur contravenes the Court’s consistent claim in IAC cases that it was not its prerogative to surmise the motives of defense counsel in pursuing a particular trial strategy.

The Buford inquiry that the majority calls “intrusive” Judge Wilson calls “vital” under the circumstances. Because there was no inquiry conducted, which could have been carried out in private, we never learn if the event in question tarnished the juror’s view of the case. As further observed by Judge Wilson: The majority is untroubled by the juror’s disruption of the trial and usurpation of the role of the lawyers and court.

If, during oral argument of this appeal, I had told either counsel that I would leave unless counsel ceased a line of argument, counsel would be entitled to my recusal. The Commission on Judicial Conduct might also have something to say about my behavior. A juror’s oath is no less serious than mine. However, were I to make good on my threat, my colleagues would ably and fairly decide the case without me; a juror’s threatened departure runs a risk of mistrial or a successful appeal overturning the verdict.

People v. Batticks, 35 NY3d 561, 570 (2020) (Wilson, J., dissenting). In Judge Wilson’s opinion, the juror’s reaction under the circumstances was “leagues out of bounds of conduct expected from jurors.”

Finally, as he often does, Judge Wilson’s

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dissent ventures into difficult areas with a disarming clarity and perspective. Here he examines the N-word by considering both the specific questions asked by trial counsel, as well as the meaning of the word in modern culture (in foot note 6). His honor’s thoughtful perspective on this challenging topic is a worth-while read.

October 22, 2020

People v. Goldman 35 NY3d 582 This is a 4-1-2 decision, with the Chief Judge authoring the majority opinion.

Judge Fahey wrote a concurrence and Judge Rivera authored a dissent, joined

by Judge Wilson. This successful DA’s appeal reversed the First Department’s reversal of the defendant’s manslaughter conviction. The defendant’s suppression motion should be denied. Here the Court addresses in great detail the Abe A. doctrine in the context of a Bronx gang-shooting defendant having his DNA taken through a buccal swab saliva method — via a so-called ex parte search warrant application. See, Matter of Abe A., 56 NY2d 288, 291, 295-296 (1982) (addressing the drawing of blood); see also, CPL 690.05(2), 690.10(4).

Here the prosecution sought the thenuncharged defendant’s DNA in order to match it up against DNA found on an armrest and door handle inside the vehicle which the shooter purportedly exited before fatally shooting a 16-yearold. The shooter’s ID could not be identified by the surveillance video. The driver of the vehicle involved cooperated and pointed the finger at Mr. Goldman.

The defendant was in custody on a separate matter. Still, the prosecution

put defense counsel on notice of the application, which the lower court found unnecessary. Defense counsel wasn’t provided even a redacted copy of the warrant application and was given only a limited opportunity to make an argument in opposition. The detective who applied for the warrant testified outside of defense counsel’s presence. Counsel made no argument regarding the safety, reliability or physical discomfort of the proposed method. The defendant was given a second opportunity to argue after charges were filed, but again failed to address these issues. See, former CPL 240.40(2)(b)(v); replaced by CPL 245.40(1).

Premised on Due Process, Fourth Amendment and NY Const., Art. I, § 12, reasonableness principles, the Abe A. bodily intrusion doctrine indicates that in the absence of an exigency (where the person may flee or the corporeal evidence is subject to destruction), the uncharged defendant must be afforded notice and an opportunity to be heard in opposition to the application prior to its execution. Moreover, a court order to obtain a blood sample of a suspect may issue provided the People establish (1) probable cause to believe the suspect has committed the crime, (2) a “clear indication” that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable. In addition, the issuing court must weigh the seriousness of the crime, the importance of the evidence to the investigation and the unavailability of less intrusive means of obtaining it, on the one hand, against concern for the suspect’s constitutional right to be free from bodily intrusion on the other. Only if

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this stringent standard is met, as we conclude it was here, may the intrusion be sustained.

Abe A., 56 NY2d at 291. See again, CPL 245.40(1) (“subject to constitutional limitations” after an accusatory instrument is filed, the prosecution may move for an order requiring the defendant to provide non-testimonial evidence after the probable cause, material/relevant and safe/reliable Abe A. requirements are met).

Though stopping short of saying that the Abe A. notice procedure was generally no longer necessary for buccal swab / saliva DNA cases, the majority did not believe that an adversarial hearing would have served any purpose considering that this method was a safe, brief and minimal intrusion — particularly when compared to the drawing of blood. Further, Abe A. does not mandate a discovery procedure in advance of the proceeding.

In her dissent, Judge Rivera observed that “[t]he right to speak out against government bodily intrusion – before that intrusion occurs – is manifest in a civilized society.” She also affirms the principle, most recently noted by the Court in Hinshaw (on 9/1/20) that the Court “has not hesitated to expand the rights of New York citizens beyond those required by the Federal Constitution.” As the same constitutional threats are in play, the Abe A. doctrine, including a “pre-intrusion, adversarial fact-finding hearing,” should apply to Mr. Goldman, who was in custody on a separate charge at the time of the search and seizure here. The collection of an individual’s DNA via buccal swab is not a trivial event, but is rather a search and seizure under the 4th Amendment, implicating the person’s interests in privacy

and human dignity. DNA contains a “treasure trove” of private information.

The People also moved into evidence a redacted music video uploaded to YouTube 11 days after the shooting, entitled “Mobbin’ Out,” which depicted the defendant rapping about (and glorifying) gang violence. This was introduced as evidence of defendant’s motive to commit the charged crime, including how the gang would commit violence through the same method as carried out at bar. The majority disagreed with the First Department which ruled that the prosecution failed to authenticate the video pursuant to People v. Price, 29 NY3d 472, 476, 480 (2017) (where an armed robbery defendant was shown in a photo, found on a social media profile page, holding money and a gun). The video at bar depicted defendant and two individuals, who were in the car used in the shooting, in similar attire from the time of the crime. The defendant did not deny it was him in the video. He appeared to be lip-synching words to a song. The People presented a cooperating cohort who corroborated the timing of the video and defendant’s intent to make it, as well as a detective who identified it as the same (redacted) video viewed on the internet. The jury was instructed not to consider this as propensity evidence.

Judge Fahey, though agreeing on the Abe A. issue, found the admission of the video to be harmless error, as it was not properly authenticated. In dissent, Judge Rivera found the authentication foundation for the video’s admission to be lacking as far as the item being a fair, reliable and accurate depiction. Among other things, the song rapped to was lip-synched by the defendant; there was no evidence that the video was genuine and unaltered. Judge Rivera, who

concurred in Price, observed that the traditional “fair and accurate representation” authentication test was applied there, which it failed. So too for the video at bar.

November 19, 2020

People v. Smith 35 NY3d 1117 Here is the entirety of this unanimous memorandum: “On review of submissions pursuant to section 500.11 of the Rules, order reversed and case remitted to Supreme Court, Bronx County, for a hearing on defendant’s CPL 330.30 motion. The motion court abused its discretion in denying defendant’s CPL 330.30 (2) motion without first conducting a hearing (see CPL 330.40 [2] [d]-[f ]; People v Maragh, 94 NY2d 569, 573-575 [2000]).”

People v. Pena 2020 NY Slip Op 06836 This successful People’s appeal is easily the most splintered and incoherent criminal decision of the year. A police officer stopped defendant’s vehicle because it had a non-functioning center break light. This evolved into a DWI charge. The issue was whether the arresting officer’s mistake of law regarding the significance of the unworking break light was objectively reasonable. If not, there was no probable cause to justify the stop. The city court granted the suppression motion, which was affirmed by the Appellate Term. The Court of Appeals, however, reversed.

From the brief opening memorandum: “Order insofar as appealed from reversed, defendant’s motion to suppress denied and case remitted to Criminal Court of the City of New York, Bronx Continued on next page

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Appellate Report Continued from previous page County... The courts below erred as a matter of law in granting defendant’s suppression motion.” Following the memo, which five judges joined, are four separate opinions: (1) a concurring “memorandum” by Judges Stein, Fahey and Garcia, (2) a concurrence authored

by Judge Feinman, joined by the Chief Judge, (3) a dissent by Judge Wilson, which Judge Rivera partly joins, and (4) a lone dissent by Judge Rivera.

The Fourth Amendment requires reasonableness, not perfection. Mistakes happen.

Where objectively reasonable, law enforcement’s conduct is generally deemed lawful. Hein v. North Carolina, 574 US 54, 61, 68 (2014); People v. Guthrie, 25 NY3d 130, 136, 140 (2015).

But did the officer here even make a mistake?

inspection does not necessarily justify a Fourth Amendment violation by the police.

Additional commentary: If you’re looking for guidance here, you’ll be disappointed. Here is the scorecard: two judges on the panel say 3 break lights must be working (the Feinman concurrence), two judges say 2 break lights must be working (the dissenters) and three judges don’t say at all (the memo concurrence). Good luck out there DNA via folks.

The collection of an individual’s buccal swab is not a trivial event, but is rather a search and seizure under the th 4 Amendment, implicating the person’s interests in privacy and human dignity.

DNA contains a “treasure trove” of private information.

VTL § 375(40)(b) requires that vehicles be “equipped with at least two stop lamps, one on each side” in the rear of the vehicle. VTL §§ 376(1)(a) and 375(19) generally require that break lights be in working order. The concurring memo concluded that the VTL provisions in question, when broadly read together, require that all lamps and signaling devices be in good working condition. The officer’s actions, even if mistaken, were objectively reasonable.

Probable cause justified the stop. The concurrence authored by Judge Feinman affirmatively opined that the officer did not make a mistake, as VTL § 376(1)(b) authorizes the DMV to enact regulations consistent with the federal Department of Transportation, which, along with numerous provisions of VTL §§ 375 and 376, require that all break lights be in working order.

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In dissent, both Judges Wilson and Rivera opine that the officer’s action was unreasonable; it was not a reasonably objective mistake in light of VTL § 375(40)(b). The more general VTL §§ 376(1)(a) does not change this. The dissent is quite critical of the memorandum concurrence by Judges Stein, Fahey and Garcia, as they do not take a clear position on the statutory legality of the officer’s actions. Thus, lower courts, law

enforcement, prosecutors, defendants and the public are not informed as to what is legal here. This creates a license for unlawful police conduct in the Fourth Amendment context, particularly in racially-motivated vehicle stops.

Reigning in the government’s discretion requires specificity. If the Court is not going to say whether it’s statutorily legal or not, it must, according to Judge Wilson, be “a mistake worth repeating.”

Judge Wilson strongly admonishes the Court’s evasion of its obligation as the “definitive statutory interpreter for the State of New York” to determine the constitutionality of law enforcement’s actions. If the statute is so vague, it should be struck as unconstitutional.

Moreover, consistent with her Guthrie dissent, Judge Rivera believes an officer’s mistake, even a so-called “reasonable” one, does not justify a Fourth Amendment violation. Finally, a nonworking middle break light that fails DMV

People v. Balkman 35 NY3d 556

In a unanimous decision authored by Judge Feinman, the Fourth Department is reversed, the suppression motion is granted and the indictment is dismissed. The police pulled over the vehicle where defendant was a front passenger based on a vague mobile data terminal “similarity hit,” which indicated that the owner of the vehicle had an outstanding city court warrant.

A gun was found under the defendant’s seat. But the People failed to establish the lawfulness (i.e., reasonable suspicion) for the stop. See generally, People v. Dolt, 61 NY2d 408, 415 (1984). Indeed, there was no testimony at the suppression hearing of the content of this so-called “similarity hit.” The defendant was neither the registered owner of the vehicle nor the subject of the outstanding warrant. The suppression could not independently evaluate the information to properly make a determination.

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November 23, 2020

People ex rel. Johnson v.

Superintendent, Adirondack CF, et al.

People ex rel. Ortiz v. Breslin, et al.

2020 NY Slip Op 06934

The DOCCS waiting list for this type of housing is 2 to 3 years.

After serving a majority of a 10-year determinate prison sentence, Mr. Ortiz was given a conditional release date to begin serving his 5-year PRS term.

He provided DOCCS a number of potential residences, including in NYC with his family, which were said to not be SARA-compliant. Alternatively, he

This is an important 82-page 5 to 2 decision, with Judge Fahey authoring the Imposing criminal sanctions against the majority opinion.

Judges Rivera and homeless for sleeping outdoors when no Wilson each wrote alternative shelter is available violates the separate dissents.

8th Amendment This decision combined appellants/ petitioners Johnson (out of the 3rd sought to live in a NYC homeless shelDepartment) and Ortiz (out of the 2nd), ter. He ended up spending over 2 years both of whom unsuccessfully appealed in custody past his release date. Eventuthe denial of their habeas corpus petially Mr. Ortiz asked if he could just be tions to the AD. The Court of Appeals, homeless. after converting these proceedings to declaratory judgment cases, affirmed After serving 8 years of a 2-to-life indeboth matters. terminate prison sentence, Mr. Johnson had been approved for parole, meaning Put on your acronym hats. Both petithat the parole board believed there tioners were indigent and homeless level was a “reasonable probability” that he 3 sex offenders under the Sex Offender would remain at liberty without violatRegistration Act (“SORA”). They chaling the law. Exec. Law § 259-i(2)(c)(A). lenged the constitutionality of the NYS However, he ended up also spending Department of Corrections and Comover 2 years in custody past his open munity Supervision (“DOCCS”) “temparole date. Johnson asked to live with porarily” confining them as petitioners his brother out of state and then, when sought shelter in NYC under its Depart- that was rejected, sought placement in a ment of Homeless Services (“DHS”) NYC homeless shelter. system while on post-release-supervision (“PRS”). As the Sexual Assault Reform While they were prevented from Act (“SARA”), codified in Executive accessing the DHS system, the peLaw § 259-c(14) (as amended in 2005), titioners were confined by DOCCS prohibits level 3 offenders from residing in so-called residential treatment within 1000 feet of a school, see also, facilities (“RTFs”), which are, in fact, Penal Law § 220.00(14)(b) (defining correctional facilities “consisting of “school grounds”), the defendants could a community based residence.” See, not just reside anywhere they wanted.

Correction Law § 2(6). Penal Law §

70.45(3) indicates that “notwithstanding any other provision of law,” the parole board may impose as a condition of PRS that for a period “not exceeding six months immediately following release from the underlying term of imprisonment” the defendants be transferred to (and participate in the programs of ) an RTF. The majority rejects petitioner Ortiz’s interpretation of RTFs as having to be “home-like” institutions. Indeed, these are “correctional” facilities, as demonstrated by petitioner Ortiz being placed in the general inmate population of the facilities wherein he was housed.

The case presents the frightening concept of individuals being effectively imprisoned for being too poor to secure shelter. See, Martin v. City of Boise, 920 F3d 584, 616 (9th Cir. 2019) (recognizing that imposing criminal sanctions against the homeless for sleeping outdoors when no alternative shelter is available violates the 8th Amendment). NYC has the most comprehensive shelter system in the nation, with the DHS serving more than 57,000 each night. For almost 40 years, all homeless people in NYC share a legal right to shelter pursuant to a consent decree issued in Supreme Court. See, Callahan v. Carey, Index No. 42582/79 (Sup. Ct., NY Co. Aug. 1981); see also, NY Const., art. XVII. Our state’s highest court has recognized this consent order as enforceable in court with the same force as a binding contract. See, Callahan v.

Carey, 12 NY3d 496, 502 (2009). The consent order includes monitoring, quality of life standards and a shelter application regime. It remains binding on NYC today. As recognized by the majority (and the dissent), however, it is notoriously difficult for the homeless to find housing in NYC, particularly Continued on next page

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Appellate Report Continued from previous page for sex offenders required to comply with SARA. The petitioners raised substantive due process claims relative to their continued confinement under the circumstances. Mr. Ortiz also raised an 8th Amendment claim, as he was being punished for being indigent. Neither litigant preserved procedural due process claims. See generally, Mathews v. Eldridge, 424 US 319, 335 (1976).

However, despite both petitioners raising their claims under both the state and federal constitutions, the majority concluded in foot note 7 that as the litigants did not contend it was “necessary” to develop a state constitutional jurisprudence in the absence of a federal one, and also failed to argue for a “different analytical framework” for their state claims, only the federal claims were considered. This made little sense to Judge Rivera, who noted in foot note 3 of her dissent that the petitioners only needed to cite to the state constitution in order for it to be properly raised.

Moreover, neither of the petitioners’ habeas claims were moot because of their release from custody subsequent to the lawsuits being filed, as they presented substantial novel issues that are likely to be repeated and to evade appellate review.

Substantive due process provides heightened protection against governmental interference with certain fundamental rights. Though the state may not infringe on a fundamental liberty interest unless it is narrowly tailored to serve a compelling state interest, the majority concluded that a mere rational basis review was warranted here. This passes muster if the action is just rationally related to “any conceivable” legitimate state interest. A reviewing court may even “hypothesize” as to the legislature’s

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motivation. Though a state-created legitimate expectation of early release from prison creates a liberty interest deserving of constitutional protection, there is no constitutional right to parole. At stake here in the petitioners’ temporary confinement was a limited form of liberty; its deprivation was not worthy of strict scrutiny. Not that it’s any consolation to the petitioners here, but the majority ended its opinion with a call for legislative action to address these long standing problems.

Judge Rivera argues in dissent that a “heightened” or “intermediate” scrutiny, falling somewhere between “rational basis” and “strict scrutiny,” be applied.

Such a probing scrutiny, which is used in 1st and 2nd Amendment contexts, would at least require a balancing of the parties’ interests instead of just affirming that the legislative action was minimally logical, reasonable or sensible. The state’s action here did not even satisfy this deferential standard.

The vast majority of child sex crime victims know their assailant. Furthermore, neither of the petitioners had a history of abusing children. And as the majority acknowledges in footnote 12, between 2005 and 2014, there were no reported sex crimes committed against children on or near school grounds where a stranger lived in a homeless shelter less than 1000 feet from the school. Moreover, the petitioners’ liberty interests in not being illegally incarcerated past a reasonably expected and codified release date were fundamental and constitutionally protected.

On the other hand, the state’s interests were to promote reentry, protect the public and to reduce its administrative burdens. The irrationality of the regulatory scheme is revealed, in part, by the DOCCS’ internal violation of its

own rules by transporting sex offenders subject to SARA (who have made it off of the waiting list) to Bellevue Men’s Shelter in Manhattan, which just happens to be within a 1000 feet of a school. DOCCS has gone back and forth on whether NYC homeless shelters should be exempt from SARA. Since 2014, the answer is no. At least as applied to these petitioners and their particular family-related housing requests, this regulatory scheme does not promote the stated purpose of facilitating former inmates’ successful reentry into society. Judge Rivera notes the importance of affordable housing and how NYC’s status as a “right to shelter” jurisdiction bolsters petitioners’ legitimate expectation of release. Affordable housing, of course, continues to be critical during the pandemic-created rent crisis in NYC. Judge Wilson in his dissent favored a strict scrutiny standard. The Constitution does not sanction a sentence beyond that imposed by the sentencing court. DOCCS also prevents otherwise eligible offenders, all of whom have a legal right to shelter in NYC, from applying for DHS shelter because of the expected difficulty in finding SARAcompliant housing. In other words, DOCCS has expansively interpreted SARA, which is a trespass statute, as permitting pre-clearance approval.

While Judge Wilson recognizes the virtual impossibility of locating SARAcompliant housing in NYC, “[s]tate agencies may not imprison people based on the belief that legal rights will not be vindicated.” This is akin to “an unwinnable game of real-estate Battleship.”

This dynamic is also premised on an insidious agreement between DHS and DOCCS. As DHS is legally obligated to afford shelter, DOCCS is shielding DHS from appearing to fail in this re-

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gard: if an application for shelter is not made, DHS can’t be accused of failing to secure housing for a homeless person.

Among other things, this back room control of access to shelter constitutes a knowing violation of the still-binding 1981 Callahan consent decree. As a result, individuals are illegally kept in custody.

The Negron and McCurdy decisions, summarized below and also decided on 11/23/20, further discuss this statutory scheme. Don’t look so excited.

People ex rel. Negron v.

Superintendent, Woodbourne CF 2020 NY Slip Op 06935 This is a 5 to 2 decision, with Judge Garcia authoring the majority opinion. Judge Fahey wrote for the dissent, joined by the Chief Judge. The petitioner lost his habeas petition in Supreme Court, which was reversed by the Third Department. The Court of Appeals affirmed.

The petitioner was convicted in 1994 of first-degree sexual abuse and was ultimately adjudicated as a level 3 offender under SORA. He was then convicted in 2005 of burglary and sentenced to 12 to life. He was granted parole in 2016 and subjected to SARA, Exec. Law § 259-c(14), which, pursuant to People v.

Diack, 24 NY3d 674, 682 (2015), prohibits level 3 sex offenders from residing within 1000 feet of a school. See also, Penal Law § 220.00(14)(b) The parole board’s interpretation of the statutory scheme precluded petitioner from finding SARA-compliant housing. He was thus confined in a residential treatment facility (“RTF”) as a result and filed a habeas corpus petition.

As the majority concludes, the plain text of the mandatory school grounds restriction under Exec. Law § 259c(14) only applies to the enumerated offenses in the statute. These are the offenses “defined in article one hundred thirty, one hundred thirty-five or two hundred sixty-three of the penal law or section 255.25, 255.26 or 255.27 of the penal law.” Parolees like petitioner, who are not convicted of one of those crimes, are not subject to this restriction. The majority rejected the respondent’s argument that any individual adjudicated as a level 3 offender qualifies, as such a designation is indicative of the person’s present risk for recidivism.

Consistent with Judge Rivera’s dissent in Johnson / Ortiz (above), the majority recognizes in footnote 7 the difficulty that indigent sex offenders have in securing affordable housing. Again, the pandemic has only made these issues worse. In dissent, however, Judge Fahey criticizes the ambiguity of the statute and looks to the legislative history which the judge believes shows an intent to address recidivism and protect the public, thus encompassing all level 3 offenders.

People ex rel. McCurdy v.

Warden, Westchester Co. CF 2020 NY Slip Op 06933 This is the third (and thankfully last) of the sex offender school grounds mandate cases decided on 11/23/20. This is a 4 to 3 decision authored by Judge Stein. Judge Fahey dissented, with Judges Wilson and Rivera joining. The Supreme Court converted petitioner’s habeas petition to an Article 78 petition and granted him relief. The Second Department, however, reversed and the Court of Appeals affirmed.

The petitioner was convicted of attempted 1st degree sexual abuse and was sentenced to three years in prison to be followed by five years of PRS. He was also adjudicated as a level 3 sex offender. Subject to the Exec. Law § 259-c(14) school grounds mandate, the indigent Mr. McCurdy of course was unable to find SARA-compliant housing.

Penal Law § 70.45(3) permits the parole board to impose as a condition of PRS a transfer to (or confinement in) a residential treatment facility (“RTF”), along with participation in RTF programs, up to 6 months following release from imprisonment. Corr.

Law § 73(10) authorizes DOCCS to use an RTF for persons on community supervision, which includes PRS. The issue in McCurdy was whether § 73(10) authorizes DOCCS to provide temporary housing in an RTF to sex offenders subject to the mandatory “1000 feet of a school” condition of SARA (Exec.

Law § 259-c[14]) after the 6-month period under PL § 70.45(3) has expired and until the defendant finds SARA-compliant housing. The majority concluded that it does.

Because there was no available SARAcompliant housing, the petitioner was in and out of correctional facilities (RTFs) after being purportedly “released” to PRS. He filed a habeas petition, arguing he was never actually released to PRS and, even if he was, PL § 70.45(3) prohibits DOCCS from confining him beyond the first 6 months after being “released” from custody. Mr. McCurdy sought the limited remedy of just being placed on the waiting list for a SARA-compliant homeless shelter. The Supreme Court ordered DOCCS to at least place petitioner on its waiting list, recognizing the PL § 70.45(3) six-month limitaContinued on next page

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Appellate Report Continued from previous page tion. The appellate courts, however, disagreed.

The 6-month provision does not limit DOCCS in this regard. Correction Law § 73(10) specifically refers to RTFs as a “residence” for individuals under PRS, as opposed to PL § 70.45(3), which requires the individual’s participation in RTF programs. But there is no conflict between the two statutes. As observed in the Johnson decision, also decided by the Court on 11/23/20, compliance with the restrictions of Exec. Law § 259-c(14) is a condition of PRS release.

The purpose of PL § 70.45(3), enacted in 1998 as part of Jenna’s Law, was to protect the public.

As the dissent points out, PL § 70.45(3) controls, as it is more specific and was enacted subsequent to the 1970 Corr. Law § 73(10). Relying on § 73(10) to keep petitioner in custody beyond 6 months effectively makes PL § 70.45(3) meaningless. Section 70.45(3) also includes the phrase, “notwithstanding any other provision of law,” just before its 6-month clause, meaning that it supersedes other inconsistent NYS law. Furthermore, Corr.

Law § 73(10) does not authorize indefinite detention. The 2011 amendments to § 73(10) were meant in part to help facilitate the merging of agency authority between parole and corrections into a new entity (DOCCS), which may now contract with correctional facilities to serve as RTFs. This does not substantively change the 6-month issue analysis. The majority rewrites § 70.45(3) by effectively excising this clause.

November 24, 2020

People v. Edwards 36 NY3d 946 This is a 6 to 1 memorandum, affirming the AD, with Judge Wilson in

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dissent. Here the intoxicated defendant was charged with depraved indifference 1st degree assault, PL § 120.10(3), after fleeing the police in a vehicle traveling, at one point, 119 mph. Data retrieved from the car revealed he was going 60 mph at the time he swerved and crashed into a concrete wall in a grocery store parking lot. His two passengers were severely injured. The evidence was legally sufficient.

People v. Lendof-Gonzalez 2020 NY Slip Op 06940

This unsuccessful People’s appeal is an interesting 4 to 3 decision authored

by Judge Feinman. Judge Rivera wrote the dissent, joined by Judges Fahey and Garcia. The 4th Department, which reversed defendant’s convictions, is affirmed. The question is whether there was legally sufficient evidence for the jury to convict defendant of two attempt-counts for both The intoxicated defendant was charged with murder in the first and second degrees, depraved indifference 1st degree assault, including the murderPL § 120.10(3), after fleeing the police in a for-hire provision, PL § 125.27(1)(a)(vi).

vehicle traveling, at one point, 119 mph.

Judge Wilson points out in dissent that criminal culpability under the statute requires more than just being dangerous and reckless. Viewing the evidence most favorably to the prosecution, depraved indifference was not established. “Reflecting wickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts, depraved indifference is embodied in conduct that is ‘so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy’ as to render the actor as culpable as one whose conscious objective is to kill.” People v.

Russell, 91 NY2d 280, 287 (1998). Examples of depraved indifference include torturing a person for months, opening a lion’s cage, poisoning a well and dropping stones onto traffic from an over pass. (And don’t forget the scenarios of driving on a sidewalk and shooting into a crowded movie theater.) While a horrible event, the case at bar was, according to the dissent, just a turn gone wrong at the end of a police chase.

The defendant was an inmate in the Niagara County jail. He decided to engage a fellow inmate (“inmate #2”) in a plan to kill his wife and mother-in-law. He began by sending a note to inmate #2, who gave the impression he was going to implement the dastardly plan, but instead provided the note to the sheriff ’s department. Inmate #2 then, as an agent of law enforcement, just played along as the defendant: (1) provided an address, (2) indicated exactly when the crime would occur, (3) provided a map to find the would-be victims, (4) provided the location of keys to the house where the would-be-victims were located, (5) provided specific details and instructions for the plan, including having drugs placed on a table to give the appearance of a suicide and placing the victims’ fingerprints around the house, (6) provided a fake suicide note, and (7) offered to give inmate #2 a house in exchange for the murders being committed. Inmate #2 was ultimately released from custody and recorded a conversation during a Continued on page 35

Atticus | Volume 33 Number 2 | Spring/Summer 2021 | New York State Association of Criminal Defense Lawyers

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The Trial Penalty The Collective Voice of the Defense Bar Must Be Heard

By Susan J. Walsh

Close to

four hundred criminal defense lawyers from forty New York counties spoke up on behalf of their clients, their colleagues and the Constitution last year to bring about The New York State Trial Penalty: The Constitutional Right to Trial Under Attack. Your thoughtful contributions from experience, data, heartache and injustice concerning the truth of the trial penalty in response to an initial survey outreach and follow-up interviews by pro-bono volunteers is the foundation for actual and impactful reform. Your participation is demonstrative evidence of the relevance of the voice of the organized bar. It is proof that when we collaborate and combine our voices with action for the collective good, no profession is a more persuasive advocate for reform than the one that includes those who sit in the first chair in the well of the courtroom. And, especially when we combine and speak with one voice, we can move change.

Last February, seventeen members of the Trial Penalty Task Force, with the support of three NYSACDL presidents and the assistance of our national affiliate NACDL, plus the brain and brawn of a talented team of volunteer lawyers from Skadden, Arps produced a ninety page report detailing the role of the trial penalty. The report explains why our state faces a mass incarceration crisis; why bad actors in law enforcement so often act with impunity; and why manipulation of mandatory minimums in the charging process has all but eviscerated the right to trial in New York.

The threat of a retaliatory sentence that multiplies the pre-trial offer exponentially after trial has packed our prisons with clients who fear the dreaded trial penalty

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and who grab a plea to avoid it. The near zero risk of cross-examination under oath facilitates law enforcement corner-cutting and far worse. Blanket and frequent overcharging designed to tie a Judge’s hands with a mandatory minimum sentence upon conviction, regardless of the defendant’s circumstances, forces the waiver not only of trials, but of motions to suppress and the right to appeal. As the Foreword to the report (authored by former Chief Judge Jonathan Lippman) puts bluntly, “this trial penalty has fundamentally transformed the criminal legal system into a plea system in which trials are nearly extinct.” You know this. And, thanks to your collective voice and participation, so will the rest of New York. On February 6, 2021 the Board of Directors of NYSACDL unanimously adopted the report, drafted and inspired by public defenders, assigned counsel, private practitioners, academics and leaders of the criminal defense bar, as the position of the Association.

The pages of the Report provide detailed true accounts of the trial penalty that defense lawyers know all too well, but about which the public and the legislature must be educated. Examples shared by you of the human toll the penalty extracts, and the compounding social and civic cost for eviscerating the Sixth Amendment Right to a trial, breathes life into the data that demonstrates the penalty is prevalent in New York.

• The first offender father of two, sole financial support to three generations, foregoes trial and accepts a split sentence on weekends not because he is guilty, but because the risk of a mandatory minimum jail term that will financially devastate his family is too great.

• The opportunistic snatch of a messenger bag from a passenger seat by a recidivist in declining health results in an offer of 1 ½ - 3 years pre-trial, who is then hammered with 15 - life as a discretionary persistent felon after trial.

• An armed robber, likely the victim of mistaken identification, is offered 10 years while the jury is deliberating and receives forty years at sentencing after they convict.

• A young man charged with attempted murder offered 17, 15 and finally 12 years pre-trial is then acquitted of the attempted murder charge, and sentenced to 34 ½ years after conviction at trial for assault and weapons possession: 2 ½ years longer than the 32 years the ADA urged.

• A person who declines an E felony plea offer to 60 days in jail and felony probation pre-indictment, and is acquitted of all but a misdemeanor assault, receives the very same sentence after trial on the misdemeanor conviction, before it is overturned and dismissed on appeal.

SUSAN J. WALSH is the Chair of the NYSACDL Trial Penalty Task Force, and a member of the NYSACDL Board of Directors. She is a partner at Vladeck, Raskin & Clark, P.C., concentrating her practice in criminal defense and plaintiff’s employment law.

• A first time teenage offender at liberty on bail for three years pre-trial, after having voluntarily surrendered, for the shooting death of his mother’s abusive paramour on a self-defense theory is offered 9 years pre-trial and sentenced to 25 – life after conviction.

These are the real stories you told and the real penalties you know. These stories reflect those excruciating conversations no trial lawyer wants to have, but every trial lawyer must have with a client – to spare them years of their life in custody. These Continued on next page

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The Trial Penalty Continued from previous page are the stories that have yielded our shameful statistic: 96 percent of all felony convictions and 99 percent of all misdemeanor convictions in New York State are the result of guilty pleas.

These penalties, and especially the threat of these penalties, are why a disengaging public forfeits government oversight and law enforcement accountability as jury trials disappear. These penalties are part of why an engaged public takes to the streets when bad actors are never ferreted out of a system that shields them with “Do Not Call” witness lists and hides them from the crucible of cross-examination through the threat of the trial penalty against those who exercise their rights.

These are the reasons your collective participation in bar association work is valuable, necessary and important. These are the reasons we join. Results like this report are the reason we belong.

I hope you will read the report and urge your communities, your representatives and our legislature to embrace our 15 recommendations for reform. Continue to raise our collective voice to eliminate the Trial Penalty and restore trials to our courthouses and justice to the criminal legal system. The word is out.

New Study Criticizes Courts For “Penalizing” Those Who Refuse To Plead Guilty, by George Joseph, WNYC, March 25, 2021 Defendants Who Refuse Plea Deals Often Get Tougher Sentences. Will The Next Manhattan DA End That?, by George Joseph, Gothamist, March 26, 2021 Plea Bargaining ‘Weakens Integrity’ of Judicial Process: Report, by TCR Staff, The Crime Report, March 26, 2021 “The New York State Trial Penalty: The Constitutional Right to Trial Under Attack,” Sentencing Law & Policy Blog, March 26, 2021 New York Playbook PM, by Anna Gronewold and David Giambusso, New York Politico Playbook, March 26, 2021 City & State First Read Tonight, by Annie McDonough, City & State, March 26, 2021 ‘Coercive’ Prosecution Drives Trial Penalty, Defense Attys Say, by Marco Poggio, Law360, March 30, 2021 The Marshall Project Opening Statement, by Andrew Cohen, March 31, 2021 Scathing Report Faults Rockland DA In 2012 Gas Explosion Case, by Lanning Taliaferro, Patch, April 1, 2021 Study Finds Right to Trial Under Attack; Defense Lawyers Seek Way to End ‘Trial Penalty’ in NY State, by Ned Meiners, Davis Vanguard, April 3, 2021 Opinion: How the trial penalty drives injustice, by Susan J. Walsh and Norman L. Reimer, New York Daily News, April 6, 2021

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NYSACDL TRIAL PENALTY REPORT FOREWORD

By Honorable Jonathan Lippman (Ret.) Chief Judge of New York Of Counsel, Latham & Watkins Both the United States Constitution and the New York State Constitution guarantee those accused of a crime the right to a trial at which the state must prove guilt beyond a reasonable doubt.

But in the modern criminal legal system, trials have become a scarcity. Recent data shows that in New York State 99 percent of misdemeanor charges and 94 percent of felony charges are resolved by a guilty plea. New York is by no means an aberration. Across the country criminal trials are vanishing at an alarming rate. A principal cause of this phenomenon is the simple fact that in virtually every jurisdiction people plead guilty to avoid significantly greater punishment, having nothing to do with their guilt or innocence. If they contest the charge against them, litigate the legality of evidence that will be offered, or insist upon a trial, they will receive a much harsher sentence. This trial penalty has fundamentally transformed the criminal legal system into a plea system in which trials are nearly extinct.

This development is neither congruent with the principles upon which the nation was founded nor is it conducive to a healthy justice system. Nowhere is the right to a jury trial more sacred than in New York State. Decades before the revolution, the importance of the jury trial was forever woven into the fabric of American ideals in the trial of John Peter Zenger. Zenger’s vindication by a jury on a charge of seditious libel in 1735 has been characterized as the spark that ignited the fire of the American revolution. An American founder

Gouvernor Morris later wrote, “The trial of Zenger in 1735 was the germ of American Freedom, the morning star of liberty that subsequently revolutionized America.”1 The Framers of the United State Constitution considered the right to a jury trial as important as the right to vote. John Adams wrote that “[r] epresentative government and trial by jury are the heart and lungs of liberty.

Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds.”2 This bold statement reflected the consensus view of the Framers that trials not only afford a protection for the accused, but they protect everyone in society by promoting transparency and citizen participation when the government invokes the awesome power to prosecute.

The current plea system, which has overtaken the criminal process, is anything but transparent and rarely involves public trials. The ever-increasing size and scope of the criminal legal system has been accompanied by laws, policies, and practices that have shifted the historic authority of judges to fashion appropriate sentences to prosecutors who wield extraordinary power to determine the magnitude of criminal sentences through their unfettered charging power. Mandatory minimums sentences, sentencing enhancements, and charge selection provide the prosecutor with the leverage to extract guilty pleas under the threat of vastly increased punishment upon those who assert their rights. This leverage is available from the first appearance, when the threat that a person will be unable to afford bail can be used to induce an early guilty plea, throughout the entire process, where, at each step of the way,

waivers of various rights are the price of a reduced sentence. In this way, guilty pleas operate to foreclose litigation that may expose unlawful government action or police misconduct.

Of course, sheer volume also places enormous pressure upon judges and defense counsel, as well as prosecutors, to process cases as quickly as possible.

Judges’ rightful concern that every case be heard and a woeful underfunding of the defense function have transformed many courts into guilty plea conveyor belts. While there is no doubt some value in promoting efficiency and early case disposition, it is a great concern when that objective overtakes the larger purposes of the justice system. When punishment is significantly enhanced merely because an individual asserts fundamental rights, it makes a mockery of the notion of proportional, individualized justice.

This report issued by the New York State Association of Criminal Defense Lawyers appropriately shines a light on the nature and breadth of the trial penalty in New York State. All stakeholders and policy makers should take note of the defense bar’s concerns and consider seriously the principles and proposed reforms. The data and the compelling stories recounted in this report should provoke informed debate over the nature and extent of the trial penalty and prompt a reconsideration of whether the palpable erosion of the right to trial is an acceptable feature of the modern criminal legal system.

Quoted in “John Peter Zenger” by Livingston Rutherford (NY 1941].

1

The Revolutionary Writings of John Adams 55 (C. Bradley Thompson ed., 2000).

2

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EXECUTIVE SUMMARY Over the past three decades, the number of criminal trials in New York State has steadily declined, and guilty pleas have become the principal mechanism of convictions. The decline in trials and rise in guilty pleas severely weakens the integrity of the justice system. Trials and pretrial motion practice provide a critical check on law enforcement overreach and abuse and assures public transparency in the administration of justice. Guilty pleas not only allow prosecutors to avoid proving their case before a jury of the defendant’s peers, but also to avoid legal and constitutional challenges to law enforcement methods of investigation.

Defendants who plead guilty generally are required to waive appellate review, foreclosing another avenue of legal challenge to their convictions and sentences.

The decline in trials and rise in guilty pleas severely weakens the integrity of the justice system. Trials and pretrial motion practice provide a critical check on law enforcement overreach and abuse and assures public transparency in the administration of justice.

This report from the Trial Penalty Task Force of the New York State Association of Criminal Defense Lawyers (NYSACDL) explores a key reason for the decline in trials: the trial penalty. Criminal defendants face a trial penalty when they receive a sentence after trial that is substantially greater than the plea offer they received before trial. Faced with the prospect of a longer, and perhaps substantially longer sentence, defendants are understandably reluctant to take their case to trial. Furthermore, plea offers often are made in a manner that discourages pretrial motion practice, and even encourages defendants to waive their right to be indicted by a grand jury and to receive discovery.

To understand this troubling phenomenon, NYSACDL developed and launched a survey of New York State criminal justice practitioners. More than three hundred criminal defense attorneys from across New York State responded, sharing their personal experiences and observations of the impact of the trial penalty and stories of clients who experienced it firsthand.

NYSACDL conducted a statistical analysis of criminal convictions in New York State assembling a sample of 79 cases from Manhattan criminal defense organizations with plea and conviction information to investigate whether there was a trial penalty in New York State and the impact of any such penalty.

Key Findings ◆

New York State has a trial penalty: 94% of practitioners agreed that the trial penalty plays a role in criminal practice in their county.

◆

The trial penalty manifests in numerous ways: While longer sentences are part of the trial penalty, they are not the only part. To obtain favorable pleas, defendants are also forced to waive various appellate rights and the ability to challenge the government’s case through motion practice.

◆

Numerous factors drive the trial penalty: The trial penalty is driven by a broad range of different factors.

Prosecutorial practices such as aggressive charging, judicial pressure to plead guilty, and the prospect of severe criminal penalties, sentencing enhancements and mandatory minimums should a defendant proceed to trial are significant contributors. Defense counsels’ excessive caseloads also contribute to the pressure on defendants take pleas and forgo exercising their statutory and constitutional rights.

◆

Data confirms the existence of a trial penalty: Data analysis supported practitioners’ insights. In 66% of cases, defendants in the sample experienced a trial penalty. The data also shows increased plea offers are associated with increased eventual sentences. For example, a plea offer of five years was associated, after conviction at trial, with a sentence of 7.5 years and a 20 year offer would be associated with a 28 year sentence.

Throughout, the report also highlights stories of the trial penalty in action. In one drastic example, a defendant was offered a plea to 10 years just five minutes before the jury convicted him. Once convicted, his sentence was 40 years.

Continued on next page

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Based on these findings, the Task Force developed a set of 10 principles and 15 policy recommendations to mitigate the effect of the trial penalty and restore the criminal trial’s central role in the justice system. Three key elements of these principles and recommendations are: 1. Reducing defendants’ exposure to severe and disproportionate sentences: Eliminate mandatory minimums; reduce the kinds of conduct subject to criminal penalty; and provide second-look statues, compassionate release legislation, and an expanded clemency process that ensures that sentences remain proportionate while offering safety valves for older and sicker defendants or those with other extraordinary circumstances.

2. Protecting defendants who exercise their rights: Prevent judges and prosecutors from penalizing defendants with longer sentences solely based on their decision to go to trial or challenge the government’s case through pretrial motion practice; and prohibit conditioning pleas on the waiver of constitutional or statutory rights and ensure that criminal defense organizations have the resources to provide a zealous defense.

3. Using data to drive reform: Do not evaluate judges or condition judicial assignments on pretrial disposition quotas, hearing and trial volumes, or other disposition rates; and collect data on plea offers and sentencing dispositions to explore more about how the trial penalty operates in New York State.

Plea offers often are made in a manner that discourages pretrial motion practice, and even encourages defendants to waive their right to be indicted by a grand jury and to receive discovery.

Principles and Recommendations Principles 1. The trial penalty — the substantial difference between the sentence offered prior to trial versus the sentence a defendant receives after a trial — undermines the integrity of the criminal justice system.

2. No one should be punished for exercising her or his rights, including seeking pretrial release and discovery, investigating a case, challenging law enforcement conduct, and filing or litigating pretrial statutory and constitutional motions.

3. The decline of criminal trials erodes the oversight function of the jury thereby muting the voice of lay people in the criminal justice system and also undercuts the role of appellate courts in supervising the work of trial courts.

4. The decline of criminal trials — and attendant waivers of the right to appeal and the right to challenge unconstitutional police action — undermines the oversight ability of courts and juries to ensure law enforcement accountability.

5. The decline of criminal trials tends to encourage longer sentences thereby contributing to mass incarceration, including mass incarceration of people of color and the poor.

6. Trials protect the presumption of innocence and encourage the government to charge cases based on sufficient, legally obtained evidence to satisfy the reasonable doubt standard.

7. The decline of criminal trials impacts the quality of prosecutorial decision-making, defense advocacy and judicial supervision.

8. The trial penalty creates a coercive effect which profoundly undermines the integrity of the plea bargaining process.

9. Mandatory minimum sentences undermine the integrity of plea bargaining by creating a coercive effect and undermine the integrity of the sentencing process by eliminating case-by-case individualized evaluation.

10. Neither prosecutors nor judges should be permitted to use mandatory minimum sentences to retaliate against a defendant for the decision to go to trial or challenge evidence.

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Policy Recommendations 1. Mandatory minimum sentencing statutes should be repealed or subject to a judicial safety valve in cases where the court determines the individual circumstances justify a sentence below the mandatory minimum.

2. A judicial second-look statute should be enacted to enable a court to review lengthy sentences after substantial service thereof to ensure that the sentences are proportionate over time.1 3. Prosecutors should be prohibited from conditioning plea offers on a waiver of statutory or constitutional rights necessary for a defendant to make an informed decision on whether to plead guilty. These rights include a defendant’s right to seek pretrial release or discovery, the right to investigate their case, or litigate pretrial motions.

4. NYCPL § 220.10(5) should be repealed because it limits the ability to resolve a case by pleading guilty to a lesser charge.

5. The Code of Judicial Conduct should include an express prohibition against retaliatory or vindictive sentences for a defendant who has rejected a pretrial plea offer and proceeded to trial.

6. Procedures should be adopted to ensure that defendants are not punished with substantially longer sentences for exercising their right to trial or related constitutional rights. Posttrial sentences should not disproportionately increase the pretrial plea offer solely because the defendant has elected to proceed to trial.

7. Judicial or prosecutorial policies which prohibit pretrial plea dispositions on trial-ready cases should be prohibited.

8. It should be unethical for a prosecutor to seek a higher sentence compared to the pretrial offer based on the defendant litigating his or her statutory or constitutional rights, including the right to trial.

9. Judicial pretrial disposition quotas should not be used as a metric by which judicial or systemic performance is evaluated. Judicial performance should not be assessed by reference to disposition rates nor should any judicial assignment determination hinge on the percentage of cases in a judge’s docket in which evidentiary hearings or trials are conducted.

10. NYCPL § 710.70 should be amended to read “shall” instead of “may” to effectuate the legislative intent to preserve issues in suppression motions for appeal even after a guilty plea and preserve appellate review of pretrial decisions on motions.

In one drastic example, a defendant was offered a plea to 10 years just five minutes before the jury convicted him. Once convicted, his sentence was 40 years.

11. Courts, prosecutors, and public defenders should collect information on plea offers and trial outcomes. Agencies involved in criminal cases should collect data on at least (1) the best plea offered; (2) the final plea offered; and, if applicable, (3) any final sentence. Together, these three data points would give more insight into how the trial penalty operates in New York.

12. Compassionate release legislation should be enacted to provide an avenue to seek a judicial order granting early release based upon advanced age, illness, or extraordinary circumstances.

13. The clemency process should be reformed to expand eligibility by reducing the requisite period of time that must be served and to provide for opportunities for commutation based upon the recommendation of an independent panel comprised of various system stakeholders, as well as public health and community representatives. There should be no bar to people who plead guilty from seeking relief under a freestanding claim of actual innocence pursuant to NYCPL § 440.10(1)(h).

14. The judicial, prosecutorial, and defense functions should be funded at a level sufficient to ensure that the disposition of cases is driven solely by the interests of the defendant, the public, and justice and not by a need to triage limited resources.

15. Criminalization of disfavored social or personal behavior should be discouraged to relieve the burden on criminal court dockets.

Continued on next page

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ACKNOWLEDGEMENTS This report is the final product of a remarkable collaboration of defense organizations, community groups, individual attorneys and other justice system practitioners who gave generously of their time, insight, and energy.

First and foremost, NYSACDL thanks the Trial Penalty Task Force Members who lent their extraordinary experience to this project: Mike Baker, Christopher Boyle, Rebecca Brown, Lori Cohen, Elizabeth Fischer, Timothy Hoover, William Leahy, Christopher Madiou, Grainne O’Neill, Jill Paperno, Nate Pysno, Martha Rayner, Norman L. Reimer, Tim Rountree, Donald Salzman, and Jocelyn Strauber. The Task Force, in turn, is grateful to NYSACDL Past Presidents Tim Hoover and Lori Cohen for their enthusiastic support of this project and their participation on the Task Force, as well as NYSACDL Executive Director Jennifer L. Van Ort. NYSACDL sincerely thanks the team of attorneys at Skadden, Arps, Slate, Meagher & Flom LLP, who devoted countless hours to researching and drafting this report. The Skadden team of attorneys, led by Esther Bloustein, Elisa Klein, Jocelyn Strauber, and Donald Salzman, also included Pamela Amaechi, Anthony Balzano, Joseph Ben-Maimon, Dewey Bennett, Rahul Bhasin, Samuel Bieler, Chloe Bootstaylor, Stephanie Cannuli, Caitlyn Cheleden, Ella Cohen, Carson Denny, Warren Feldman, Shelli Gimelstein, Keema Givens, Kent Hiebel, Kindall Jackson, Adam Kochman, Elizabeth Kraus, Zachary Leibowitz, Seth LeMaster, Brendan Lum, Sonya Mitchell, Aaron Murphy, Mackenzie Newman, Alexander Patrick, Morgan Petkovich, Christina Phan, Scott Rabinowitz, Kendra Rosario, Kara Roseen, Matthew Rosenthal, Mary Ross, Ryan Rott, Martin Rowe, Joshua Schoch, Julia Timerman, Peter Varlan, and Sahng-Ah Yoo. NYSACDL also wishes to extend its thanks to the New York Legal Aid Society (LAS), Neighborhood Defender Services (NDS), and New York County Defender Services (NYCDS) for their help collecting and analyzing the data used in this report. In particular, NYSACDL wishes to thank LAS’s Tim Rountree, NDS’s Elizabeth Fischer, and NYCDS’s Chris Boyle, Willem Van Der Mei, and Celia Joyce for their assistance in the data collection and analysis process.

This report would not have been possible without the generous participation of the many lawyers and their clients who contributed their experiences with the trial penalty in New York State. NYSACDL is grateful to everyone who was willing to share their stories and respond to its survey.

Finally, NYSACDL wishes to thank the National Association of Criminal Defense Lawyers (NACDL) for inspiration and support in making this project a reality.

It epitomizes the quintessential example of productive collaboration between the national organization and a state affiliate. Numerous members of the NACDL team contributed to this project at various phases, including NACDL’s Director of Economic Crime and Procedural Justice Nate Pysno, who served on the task force, and NACDL Executive Director Norman L. Reimer, who has been a tireless advocate to rein in the trial penalty, served on the Task Force, and supported this project at every stage.

Susan J. Walsh Chair, Trial Penalty Task Force

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The Conflict Between Contempt and Zealous Advocacy

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n September 16-18, 2020, during the course of a hearing held pursuant to CPL 330.30, defense counsel Steven Politi was held in contempt by the Honorable Fernando Camacho while representing his client, Thomas Murphy. Mr. Murphy had been previously convicted in a high profile emotionally charged case involving the vehicular death of a 12 year-old boy scout.

Review of the transcript of both the trial and the hearing is demonstrative of the classic conflict between the Judge’s obligation to control the Courtroom and the lawyer’s obligation to zealously represent his or her client’s interests. There is no question that an emotional tug of war existed between the parties as well as the Court during the trial. This contentiousness was particularly palpable between the Court and defense counsel.

The record demonstrates the genesis of this acrimony between defense counsel and the Court commenced upon Mr. Politi’s entrance into the case as counsel for defendant in August of 2019, some 11 months after the date of the tragic accident that claimed the life of one young boy and seriously injured another. Shortly after arrest and up to the day of the arraignment, the previous lawyer retained by Mr. Murphy had the defendant apologize publicly for his conduct, by his reading of a letter wherein Mr. Murphy “accepted responsibility” for the accident that led to the death of this 12 year-old boy. The statements contained in the letter were placed in the public sphere without the consent of the defendant. This, in turn, gave rise to the erroneous inference that Mr. Murphy was planning to plead guilty, a fact extensively covered by the press.

Peter H. Mayer is retired from the bench where he served as a Justice of the Supreme Court. Prior to ascending the bench Mr. Mayer specialized in defending criminal cases on the Federal and state level in Suffolk County and throughout the country.

He served in the Suffolk County District Attorney’s Office for over 10 years as a trial assistant, as Bureau Chief of the Major Crime Bureau as well as serving as an Assistant in the Suffolk County Attorney’s Office defending civil rights cases. He is also a member of the Colorado state bar.

He is presently in private practice primarily specializing in the defense of criminal and civil cases. He also serves as an advisor to the Assigned Counsel Program of Suffolk County.

Competent trial counsel knows that statements such as these before discovery, independent investigation and relevant motion practice constitutes ineffective assistance. Indeed, courts have a degree of responsibility to ensure that the representation of a criminal defendant is at least minimally effective. Not only is this an exercise in appropriate judicial responsibility but has the additional salutary benefit of enhancing the possibility that any conviction will withstand appeal.

Counsel Politi made it clear upon entry in the case that full investigation, review, and analysis of the extensive discovery in the case had to take place before consideration of any guilty plea. Thus, there would be no expeditious guilty plea that the Court and significant numbers of victim supporters had clearly been anticipating.

The adversarial relationship between counsel and the Court noticeably increased immediately after these communications. The victim supporters made it clear to the Court and the public through media coverage of the case that Justice was being denied by the tactics of the lawyer and the inability of the “system” to deal with what they interpreted as a profound lack of respect for the victim’s family and their supporters.

Subsequent to the conviction after trial, the defendant sought relief pursuant to CPL 330.30. The motion was predicated on a series of post-verdict interviews of jurors conducted by defense investigators who alleged that inappropriate comContinued on next page

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Contempt Continued from previous page munications had occurred about the evidence between the jurors during the trial as well as deliberations. Notably, one juror alleged in a statement that he felt the Court was biased against the defense counsel and recited a series of allegations that, if believed, would suggest that such was indeed the case. The defense then sought the Court’s recusal as being the target of such an accusation and the fact finder on that very issue would be inappropriate. This application was denied but clearly increased the tension between the Court and Mr. Politi. This was evidenced by a demonstrable increase in the number of rulings by the Court precluding defense counsel from making his record for appellate review.

I was on the Supreme Court Bench for 12 years. Those of us who have held this privileged position know there are lawyers whose litigation style and personality gets under our skin. That clearly occurred in the instant matter.

It is axiomatic that negative feelings between the lawyer and the Judge can increase dramatically throughout any proceeding, particularly one as emotionally charged as this. I know because I’ve experienced it. Notwithstanding having presided over trials with lawyers whose behavior is offensive, in the 12 years I served I never held anyone in summary contempt for conduct in my presence despite being tempted to do so. Jurists sometimes threaten contempt, but very few have used it.

It is truly an extreme and last resort.

The Jurist in these situations needs to have the maturity and legal self- confidence to know how to handle the lawyer, recognizing your own internal anger but never letting it interfere with the fairness due the defendant and the rights he or she is seeking to defend. A

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Judge is duty bound to separate negative thoughts about the lawyer, which he or she is going to have from time to time, from the overwhelming importance of not only maintaining control in the Courtroom, but also respecting counsel’s ethical obligation to zealously advocate his client’s position.

This did not occur here. The hearing pursuant to CPL 330.30 was ordered for the purpose of making a determination whether and to what extent there was juror misconduct. The subpoenaing and questioning of jurors under these circumstances clearly exacerbated the hostility that remained from the trial.

The recusal motion further enhanced these tensions, thus making matters worse.

All who have the privilege of representing those whose liberty is at stake in a criminal case are required to zealously advance the interests of only one side, our client’s. The ABA Model Rules illuminates this: “A lawyer should pursue a matter on behalf of a client despite opposition, obstruction, or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”

In short, the role of the advocate is to try to properly achieve the best result for the client, which is not necessarily a fair or just one. The case at bar is a perfect illustration of this as reasonable people could agree that the legal position sought by Mr. Politi, should it be successful, would not necessar-

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ily comport with justice. The Judge is the referee who has the responsibility to conduct the proceeding completely impartially, with a scrupulous regard for the constitutional and statutory safeguards that promote respect for the rule of law. These principles were clearly lost on the Judge in this particular case. The totality of the record reveals that the neutral arbiter here was not so neutral.

His contempt finding was a judicial overreach and proximately related to his inability to control his anger towards counsel.

Make no mistake, Mr. Politi’s intensity can be taxing on the jurist. Personal intensity, however, can never be used as a basis for a finding of contempt committed in the presence of the Court pursuant to the Judiciary Law. Counsel in this matter was the subject of this severe sanction for doing nothing more than fulfilling his ethical responsibility. Whether he did it in a way that the Court thought was distasteful is beside the point as competent and experienced Jurists know how to handle these situations. The Judge’s primary concern must always be the defendant’s ability to properly pursue issues brought in good faith.

In this matter, the Court exercised its power under Judiciary Law 750(1) (a) which allows courts to impose a contempt sanction for acts, statements, or events done in the immediate view and presence of the court. The Appellate Divisions, First and Second Department, have promulgated rules regulating the summary contempt power.

Largely reflective of case law, the rules essentially provide that summary contempt shall only be imposed in exceptionally necessitous circumstances. The offending conduct must actually disrupt

or threaten to disrupt the proceedings.

Alternative remedies must be insufficient. ( See 22 NYCRR 701.2, Exercise of Summary Contempt Power).

It is true that the Appellate Division 2nd Dept. upheld the contempt finding against Mr. Politi in a tersely worded four paragraph opinion.(Matter of Politi v Camacho 07687-2020) The factual underpinnings of the cases cited in the opinion are completely distinct from that which occurred here. Indeed, the Court cited In Re Rotwein v. Goodman at 291 N.Y. 116 ( Court of Appeals, 1943)in support of sustaining the contempt finding. That case involved a situation where the lawyer asked the Judge to recuse based on his alleged cozy relationship with finance companies that precluded him from sitting on non jury cases where the defendant was a finance company. These were arguably insulting and insolent statements by counsel, alleging the Court was being corrupted by his relationship with finance companies. These facts fall far short of any allegations in support of recusal made by Mr. Politi.

Notwithstanding the presence of more aggravating circumstances in Rotwein, the Court of Appeals stated: “A statement which might impair respect for the judge can hardly constitute disorderly, contemptuous, or insolent behavior within the meaning of the statute, if it is made by the attorney in good faith to protect the interests of the client, and in the honest belief that it is relevant, and without reckless disregard of the truth or intent to impair the respect due to the Court …”

Respectfully, in this matter, the Appellate Division got it wrong.

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Contempt Continued from previous page All criminal trial lawyers must take the instant matter seriously. Lawyers who fight for justice day in and day out in our courts need to recognize that what happened here threatens the lawyer’s ethical responsibility to zealously advocate his or her client’s interests. Those of you who stand up for those accused of crimes, whether rich, poor, black, white, Christian, Jewish, or Muslim are indulging in an overwhelmingly valuable and noble cause. Contempt findings such as this can only serve to chill the zealousness required by all trial counsel.

This time, it was Steve Politi and next time, it could be you. I encourage all to stand in solidarity with Mr. Politi for fulfilling his ethical obligation to his client, an obligation for which he is paying a judicially imposed inappropriate price.

Lawyers are human but so are judges.

Judges, however, are vested with immense power in the administration of justice. All lawyers who battle every day on behalf of those accused of crimes must make sure that no lawyer is put in jeopardy by the simple act of doing his or her job. A

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Appellate Report Continued from page 20 jail visit with defendant.

enough. Just planning a crime is not enough. Abandonment or renunciation is unnecessary.

Criminal law does not punish bad thoughts. So what does it mean to “attempt” the commission of a crime? PL § Judge Rivera wrote the dissent. The 110.00 indicates a defendant must, with majority’s decision will insulate murintent to commit the crime, engage ders for hire where a government agent in conduct tending to effect its comis involved. Here there was a singular mission. Moreover, the conduct must purpose for the inevitable commiscome dangerously close, very near or in sion of this crime. It was dangerously dangerous proximity to completion. See, close to completion, but for inmate People v. Mahboubian, 74 NY2d 174, #2’s cooperation. The defendant even 191 (1989) (rejecting the “substantial step” The defendant’s conduct need not be the fistandard in favor of nal act necessary. Rather, the act must be so “close proximity”).

The defendant’s near to being accomplished that in all reaconduct need not be sonable probability the crime will have been the final act necessary.

Rather, the act must committed but for a timely interference. be so near to being accomplished that in all reasonable probability the crime will called inmate #2 to confirm the crime have been committed but for a timely was done. Impossibility of achieving interference. the crime is not a defense. As far as the defendant knew, inmate #2 was capable The facts here were insufficient as a and intended to implement the plan. matter of law. The defendant was not The defendant took all necessary steps charged with conspiracy. See generally, he could; if the circumstances were as People v. Washington, 8 NY3d 565, 567 he believed them, the killings would (2007) (finding sufficient evidence have occurred. The defendant placed all for similar murder for hire conspiracy of the power in completing the crime in from prison). There is no question as the hands of inmate #2. A conspiracyto defendant’s intent or the legal suffilike overt act is not required to estabciency for a criminal solicitation charge lish an attempted crime. The present under PL § 110.10. The majority, standard for attempt, born from the however, did not believe the defen1967 revision of the Penal Law, focuses dant’s acts brought the crime dangeron the defendant’s state of mind. What ously close to completion. Indeed, more could an inmate do to accomplish numerous contingencies remained this crime? unfulfilled, as: (1) no money was actually given to inmate #2, including More commentary: Court-watchers payment for the planted drugs, (2) no might find the lineup for the opinions weapon was provided, (3) it was never in Lendof-Gonzalez to be interesting, established that the would-be-victims with the Chief Judge and Judge Feinactually lived at the address provided, man in the majority favoring the deand (4) the offer of a house was just a fense, and Judge Rivera writing for the promise. Bad thoughts alone are not dissent, favoring the prosecution.

December 15, 2020

10 combined appeals: People v. Bisono / Baker / Magee / Miller / Daniels / Hardin / Ogando / Biaselli / Torres / Rodriguez 2020 NY Slip Op 07484 The Court of Appeals invalidated all ten of the appeal waivers presented, which included both upstate and NYC prosecutions. For nine out of the ten cases, the Court issued a brief memorandum unanimously revering the ADs. These appeals involved combination oral and written waivers, most of which challenged the propriety of sentences. In the Daniels appeal, Judges Garcia and Stein both dissented in separate opinions.

These appeals were a follow up to People v. Thomas / Lang / Green, 34 NY3d 545 (2019), where the Court invalidated two of the three appeal waivers which falsely indicated that no notice of appeal could be filed and that appellate counsel could not be assigned. The Court reminds us that a waiver of appeal is not an absolute bar to the taking of a first-tier appeal. In each appeal here, the rights encompassed by the appeal waivers were mischaracterized during oral colloquies and (or) written forms executed by the defendants. In the Orleans and Queens County appeals, the waivers also improperly included collateral relief. Moreover, several of the defendants had mental health issues.

As Judge Garcia observed in dissent, “Thomas worked a sea change in our approach to appeal waivers…” Indeed, no less than 90 appellate decisions, applying an expansive view of already broad language, invalidated appeal waivers in 2020 pursuant to Thomas, a Continued on next page

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Appellate Report Continued from page 21 decision that devalued individualized assessment when reviewing the voluntariness of a waiver. It created a check list without guidance. The impact of Thomas has been to undo plea bargains, undermine finality of judgments and enlarge appellate caseloads. While the majority points out in a footnote that defendant Daniels had a “serious mental health condition,” the facts of his appeal closely resembled People v.

Ramos, 7 NY3d 737 (2006), where the Court upheld the validity of an appeal waiver that included a single affirmative misstatement in court that was rectified by a written appeal waiver form.

Daniels thus expanded the scope of Thomas. Judge Garcia believes that only the lower courts’ full adoption of the catechism in the Model Colloquy of the Unified Court System Criminal Jury Instructions, as addressed in Thomas, 34 NY3d at 567, n 7, will stop the carnage from Thomas.

More commentary: The NYS Association of Criminal Defense Lawyers, the NYS Defenders Association, the NYS Chief Defenders, along with a number of other defense offices, submitted an amicus curiae brief, arguing for the overruling of People v. Seaberg, 74 NY2d 1, 11 (1989), the seminal decision that authorized appeal waivers in our state.

Not one word in the decision on this critical issue.

December 17, 2020

People v. Williams 2020 NY Slip Op 07664 Four judges voted to affirm the defendant’s conviction, with Judge Stein writing for the majority and Judges Rivera and Wilson filing separate dissents.

The Chief Judge did not participate.

The jury convicted the defendant of

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criminal possession of a weapon while acquitting him of attempted murder and assault. The trial court correctly denied the defendant’s request for a jury instruction regarding temporary and lawful possession of a firearm. The AD is affirmed.

The defendant was accused of shooting an acquaintance (victim #1) and a bystander in an apartment building lobby. The defendant and victim #1 had a history of violent confrontations.

The defendant knew victim #1 believed the defendant had previously shot him.

The defendant saw a gun in victim #1’s possession and retreated into the building. He went to a friend’s apartment therein and asked him to call the police.

When the friend refused, the defendant secured a firearm, went to the lobby area and started shooting.

A particular jury instruction must be given where, viewing the evidence in a light most favorable to the defense, a reasonable view of the evidence supports it. See, CPL 300.10. The defendant requested a temporary and lawful possession jury instruction, consistent with his justification defense. The Court, however, distinguished “possession,” as opposed to “use,” being part of self-defense. For the instruction to apply, there must be a “legal excuse” for the possession, as well as facts showing that once obtained, the weapon was not used in a dangerous manner. A weapon is possessed under such circumstances only long enough to dispose of it safely.

Examples of this would be where a gun is accidentally found shortly before its possession and the possessor intends to turn it over to the authorities, or where a would-be-assailant is disarmed without an intent by the possessor to use the weapon unlawfully. But the defendant’s initial possession of the firearm here

was neither innocent nor excusable.

The threat the defendant faced was not imminent; there was no evidence, for instance, that victim #1 followed the defendant or that the defendant knew of victim #1’s whereabouts at the pertinent time. Defendant was merely arming himself in anticipation of a potential confrontation.

The concurring judges agreed that defendant was entitled to a justification charge on the use, not the possession, of the weapon. Judge Rivera would have found the temporary and lawful possession request was appropriate but for the subsequent dangerous use of the gun (as the defendant fired indiscriminately into the lobby). Judge Wilson opines that the subsequent dangerous use requirement should only apply where it negates an inference of innocent use of the weapon, like where a wouldbe-assailant is disarmed but the gun is not timely turned over to authorities.

Self-defense is an imminent situation, as opposed to having a weapon merely in anticipation of a future need. The limitations on this defense reflect our state’s strong gun control policy.

People v. J.L. 2020 NY Slip Op 07663 This is a 4 to 3 decision, with Judge Rivera writing for the majority. The Chief Judge authored the dissent, joined by Judges Feinman and Garcia. The trial court erroneously denied the defendant’s request for a jury instruction on voluntary possession regarding a criminal possession of a weapon (“CPW”) charge. The AD is reversed and a new trial is ordered.

The 17-year-old defendant was a guest in an apartment. He was shot by an assailant located outside the apartment

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while defendant sat in the kitchen. The kitchen window was covered with bullet holes. After the shooting, the defendant testified to going into a bedroom to obtain towels for the bleeding. Inside a dresser drawer was a gun laying on top of an envelope addressed to defendant (at a different residence). One officer testified to seeing blood on the gun.

The defendant’s DNA, along with that of at least one other unknown person, was on the gun. A DNA expert testified, however, that defendant’s DNA could have been transferred onto the weapon.

There were no fingerprints recovered from the gun.

As averred above, a requested jury instruction must be given where, viewing the evidence in a light most favorable to the defense, a reasonable view of the evidence supports it. See, CPL 300.10. The instruction is warranted under the circumstances even if there is contrary proof submitted as well. Only where there is no reasonable view of the evidence should the requested instruction be denied. Otherwise a new trial is to be afforded. Voluntary possession means having sufficient time to terminate the possession. See, CJI 2d (NY) Voluntary Possession § 15.00(2). Here, the frantic teenage defendant may have had a fleeting awareness of the gun with little opportunity to legally dispose it.

Just having control and access to the room where the gun is located does not preclude granting the instruction. It is not necessary to concede possession to qualify for a voluntary possession charge.

If there is evidence pointing in two directions, the charge is to be given if one of those directions supports the charge.

The trial court denied the request, finding it too confusing. The instructions ultimately provided gave the impression that if the defendant controlled the

room where the weapon was located, he had constructive possession of the gun, regardless of the temporal issue.

The defendant was acquitted regarding two other guns found in the apartment, but convicted of CPW regarding the gun recovered in the bedroom. The trial court’s denial constituted reversible error. The dissent’s focus on the inconsistency of the evidence, effectively viewing it in the DA’s favor, is misplaced.

The dissent was having none of this.

The trial court’s instructions on possession were sufficient. No reasonable view of the evidence supported the granting of this requested instruction. If the defendant’s impeached trial testimony was to be believed, there was no possession at all. Despite law enforcement’s testimony to the contrary, a criminologist testified there was in fact no blood on the gun. Defendant had control over the drawer where the weapon was found for six hours. An involuntary possession of the weapon was not the defense theory at trial, which included a number of inconsistent statements made by the defendant.

December 22, 2020

People v. Walley 2020 NY Slip Op 07691 This successful People’s appeal is a unanimous memorandum reversing the AD. The superior court information is not jurisdictionally defective because of the approximate time of incident being omitted, as it is not an element of criminal possession of a weapon. See, People v. Lang, 34 NY3d 545, 567 (2019). The defendant was on notice of the crime charged. The matter is remitted.

People v. Del Rosario 2020 NY Slip Op 07688 This is another memorandum affirming the AD. All concur except the Chief Judge who did not participate. The defendant’s SORA-related argument on appeal is not moot because of the defendant being subsequently deported. On the merits, the upward departure based on the defendant raping the victim in order to take revenge upon another person, a risk factor “not adequately captured” by the Guidelines, was not an abuse of discretion.

People v. Robinson 36 NY3d 945 Nothing to see here. Appeal submitted pursuant to Court Rule 500.11. The issues presented on appeal have become moot and the appeal is dismissed.

AND A FEW NOTEWORTHY RECENT SECOND CIRCUIT CRIMINAL-RELATED DECISIONS…

United States v. Brooker (Zullo) 976 F3d 228 (Sept. 25, 2020) Judge Calabresi authored the Court’s unanimous decision, joined by Judges Winter and Chin. The defendant pleaded guilty in 2010 to conspiring to traffic marijuana and cocaine in the District of Vermont, and received an aggregate prison sentence of 126 months.

His recent motion for compassionate release (“CR”) was denied.

Section 603(b)(1) of the First Step Act, enacted on December 21, 2018, authorizes, on motion by the defendant, a District Court to reduce a term of Continued on next page

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Appellate Report Continued from page 21 imprisonment, after considering the factors set forth in 18 U.S.C. § 3553(a) to the extent they are applicable, if it finds “extraordinary and compelling reasons” warrant such a reduction. Under 18 U.S.C. § 3582(c)(1)(A), a defendant ordinarily must exhaust administrative remedies with the Bureau of Prisons (“BOP”), or wait 30 days after submitting a request for CR to the warden, whichever comes first. Id. The original CR statute was enacted in 1984 as part of a congressional overhaul of federal sentencing. The 2018 law expanded and expedited the process, following decades of the BOP neglecting CR applications from often very deserving inmates. This was brought to the forefront in a 2013 Inspector General report, which noted that many inmates died awaiting action on their CR applications. The 2018 First Step Act requires that inmates take a shot with the BOP, but then are permitted to file a CR motion directly in District Court. Not surprisingly, thousands of CR motions have been filed by federal inmates during the pandemic.

18 U.S.C. § 3582(c)(1)(A) also requires that any sentencing reduction be “consistent with applicable policy statements issued by the Sentencing Commission.” Id. However, U.S.S.G. §1B1.13 (including commentary note 1(D)) still makes BOP the gatekeeper of CR motions and was never updated following the 2018 law coming into effect.

Accordingly, §1B1.13 does not apply to CR motions filed by inmates directly in District Court. Brooker, 976 F.3d at 235-236; see also, United States v. Roney, 833 Fed. Appx. 855, 2020 U.S. App. Lexis 34890, at *3, 2020 WL 6387844 (2d Cir. Nov. 2, 2020). Indeed, “[t] he only statutory limit on what a court may consider to be extraordinary and

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compelling is that “[r]ehabilitation ... alone shall not be considered an extraordinary and compelling reason.” 28 U.S.C. § 994(t).” Brooker, 976 F.3d at 237-238 (emphasis added in Brooker).

District Courts are free to consider a “full slate” of reasons and are only restricted by the rehabilitation clause of 28 U.S.C. § 994(t). Id. The matter was remanded to the District Court to reconsider the defendant’s CR motion.

United States v. Weiskopf 2021 U.S. App. Lexis 2060, 2021 WL 243645 (Jan. 26, 2021) Judges Walker, Katzman and Park all concur in this summary order. The defendant pleaded guilty to one count of possessing child pornography under 18 U.S.C. § 2252A(a)(5)(B) and (b)(2).

He appeals the propriety of his supervised release condition which prohibited his unsupervised contact with children under the age of 18. This condition excluded his biological or adoptive children, unless approved by the probation officer or court. The defendant was denied permission at sentencing to include his two grandchildren under this exclusion.

Prohibitions on contact with family members implicate a fundamental liberty interest protected by due process.

United States v. Myers, 426 F.3d 117, 125-126 (2d Cir. 2005). Moreover, special conditions of supervised release must be reasonably related to the statutory purpose of supervision and must involve no greater deprivation of liberty than is reasonably necessary to implement the statutory purposes of sentencing. These conditions must also be consistent with pertinent Sentencing

Commission policy statements. See, 18 U.S.C. §§ 3583(d); 3553(a). In addition, the sentencing court must conduct an individualized assessment of the defendant.

Here, the District Court failed to conduct an individualized assessment into the necessity of including the defendant’s grandchildren within this supervised release condition. See, United States v. Bleau, 930 F3d 35, 43 (2d Cir. 2019). The defendant was not alleged to have posed a danger to children in general, or to have ever physically harmed children in the past. The judgment is thus vacated and the matter is remanded so the District Court can make an individualized assessment.

Uniformed Fire Officers Ass’n, et al. v. De Blasio 2021 U.S. App. Lexis 4266, 2021 WL 561505 (Feb. 16, 2021) Judges Kearse, Leval and Lohier all joined in this summary order. This police (and fire department) union appeal arises from the recent repeal of N.Y. Civil Right Law § 50-a, which for many years shielded law enforcement disciplinary records from public disclosure.

After the statute was repealed, New York City decided to proactively publish certain types of disciplinary records and other records consistent with its obligations under New York’s FOIL statue.

See, N.Y. Pub. Off. Law, §§ 84-90.

The police and fire unions unsuccessfully sought injunctive relief in District Court pending the litigation of certain arbitration claims. The Second Circuit affirmed.

The District Court did not abuse its discretion in denying the unions injunctive relief. The NYPD cannot bargain

Atticus | Volume 33 Number 2 | Spring/Summer 2021 | New York State Association of Criminal Defense Lawyers

away its FOIL disclosure obligations through a collective bargaining agreement. The lower court found no irreparable harm in terms of the officers potentially having fewer future employment possibilities. Other states have similar laws permitting such disclosure.

The District Court was also unimpressed with the purported heightened danger these disclosures might cause to police officers, or in the potential stigma these disclosures might create.

The police are not a protected class, so the Equal Protection jurisprudence was no help to them. The public has a legitimate interest in the disciplinary records of police officers. The union contracts did not incorporate the § 50-a statute as it existed at the time the agreements were entered. It was further not arbitrary to disclose this information without making an individualized review. New York City is complying with the FOIL exemptions, including those addressing invasion of privacy.

See, e.g., N.Y. Pub. Off. Law § 87(2) (b), (f ). Though the disclosure of this information is permanent, the victims should not have to bear the cost of delay in litigating their claims.

Finally, the unions successfully obtained a preliminary injunction in District Court with regards to disclosure of certain technical violations. Such violations may be redacted in FOIL disclosures.

The Second Circuit affirmed this ruling as well.

United States v. Rosario 2021 U.S. App. Lexis 5196, Dkts.

18-1994, 19-2399 (Feb. 23, 2021) Judges Sack, Chin and Lohier all joined in this per curium decision. The defendant had been charged with various firearm, heroin distribution and witness

tampering counts. The jury only convicted him of obstruction of justice relative to the destruction of evidence. He received a prison term of 210 months.

He appeals from a District Court of Connecticut judgment imposing a two-level enhancement for obstruction of justice relating to his purportedly untruthful trial testimony. See, U.S.S.G. §3C1.1.

U.S.S.G. §3C1.1, commentary note 7, permits application of this enhancement where there is significant further obstruction. Moreover, the Supreme Court in United States v. Dunnigan, 507 U.S. 87 (1993), gave the green light to applying U.S.S.G. §3C1.1 to perjured testimony. However, consistent with other forms of obstruction-related conduct, e.g., United States v. Young, 811 F.3d 592, 604 (2d Cir. 2016); United States v. Brown, 321 F.3d 347,

351-352 (2d Cir. 2003); United States v. Woodard, 239 F.3d 159, 161-162 (2d Cir. 2001), the District Court must make a finding of fact relative to whether the defendant acted willfully in his or her purportedly obstructive conduct, including all the elements of perjury. Dunnigan, 507 U.S. at 95-97; United States v. Catano-Alzate, 62 F.3d 41, 42 (2d Cir. 1995). This is critical, as the defendant’s right to testify on his or her own behalf at trial is implicated. As the Rosario court reminds us all again, “District courts must take these instructions seriously.”

As the District Court failed to make the proper findings of fact, the matter is remanded for further proceedings so the Court may make the appropriate findings pursuant to U.S.S.G. §3C1.1. A

President Continued from page 3 brilliant litigator and social justice leader. The story that was told about the creation of the George Floyd Memorial mural was moving and motivating. Honoring Judge Analisa Torres was both personally and professionally rewarding to me, as I have looked up to her and been motivated by her example for many years. But more than anything, hearing from the NYSACDL honorees, Steve Epstein, Richard Willstatter, and Tim Hoover, was most meaningful because it is their dedication, hard work, and leadership that has made NYSACDL an organization that I am incredibly proud to be a part of, and now to lead. I am hopeful that in the year to come this organization will continue to rise to meet the challenges before us, and to seize on opportunities to create change.

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CLE

NYSACDL is noted for our innovative, interesting and informative CLE programs, which we present at various locations around the state each year.

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Atticus | Volume 33 Number 2 | Spring/Summer 2021 | New York State Association of Criminal Defense Lawyers

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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!

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Atticus | Volume 33 Number 2 | Spring/Summer 2021 | 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

LAWYERS STRIKE FORCE COMMITTEE

ANNUAL DINNER COMMITTEE

LEGISLATIVE COMMITTEE

CLE COMMITTEE

MILITARY/VETERANS AFFAIRS COMMITTEE

Chair: Timothy Murphy (Timothy_Murphy@fd.org) Members: Steven Epstein, Mark Fernich, Alan Lewis, Claudia Trupp, Richard Willstatter Chairs: Alice Fontier (afontier@ndsny.org), Timothy Hoover (thoover@hodgsonruss.com) Members: Lori Cohen, Edgar De Leon, James Grable, Renee Hill, Andrew Kossover, Brian Melber Chair: Steven Epstein (sepstein@barketepstein.com) Members: Michael Baker, Laura Fiorenza, Timothy W. Hoover, Andy Kossover, Yung-Mi Lee, Allison McGahay, Brian Melber, Peter Mitchell, Kenneth Moynihan, Timothy Murphy, John S. Wallenstein, Richard Willstatter, Robert Wells

FEDERAL PRACTICE / WHITE COLLAR CRIME COMMITTEE

Co-Chairs: Samuel Braverman (sbraverman@fbdmlaw.com), Scott Iseman (siseman@oalaw.com) Members: Joshua Dratel, James Grable, Timothy Hoover, Alan Lewis, Elizabeth Macedonio, Brian Melber, Kenneth Moynihan, Donald Thompson, Richard Willstatter

FINANCE COMMITTEE

Chair: Alan Lewis (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

Chair: Timothy Hoover (thoover@hodgsonruss.com) Members: Marc Fernich, Alice Fontier, Jill Paperno, Richard Willstatter

Chair: Kevin Stadelmaier (kstadelmaier@legalaidbuffalo.org) Members: Derek Andrews, Jason Bassett, Lori Cohen, Alice Fontier, Timothy Hoover, Jessica Horani, Andy Kossover, Yung-Mi Lee, Greg Lubow, Amy Marion, Kenneth Moynihan Chair: Donald Rehkopf (usmilitarylaw@gmail.com) Members: Kenneth Moynihan, Andre Vitale, Mark Williams

MEMBERSHIP COMMITTEE

Chair: Edgar De Leon (edl@thedeleonfirmpllc.com) Members: Steven Epstein, Timothy W. Hoover, Lindsay Lewis, Greg Lubow, Karen Newirth

PUBLICATIONS COMMITTEE

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

TRIAL PENALTY TASK FORCE

Co-Chairs: Susan Walsh (SWalsh@Vladeck.com), Arnold Levine (nyccrimlaw@aol.com)

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

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NYSACDL Membership

The Largest Criminal Defense Bar Association in New York State

PROMOTING EXCELLENCE IN CRIMINAL DEFENSE • OUR MEMBERSHIP IS OUR GREATEST STRENGTH PRESIDENT:

Alice Fontier, Manhattan

PRESIDENT-ELECT: Brian Melber, Buffalo

FIRST VICE PRESIDENT: Yung-Mi Lee, Brooklyn

VICE PRESIDENTS:

Michael T. Baker, Binghamton Steven B. Epstein, Garden City Jessica A. Horani, Manhattan 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: (As of JJune 10, 2021) Daniel Arshack

Michael T. Baker Wayne C. Bodden Peter E. Brill David J. Cohen Lori Cohen Anthony J. Colleluori Terrence M. Connors Anthony Cueto Gerard M. Damiani Edgar De Leon Telesforo Del Valle Joshua L. Dratel Steven B. Epstein Mark Andrew Foti Russell M. Gioiella Lawrence S. Goldman James Grable Renee Hill Timothy W. Hoover John Ingrassia E. Stewart Jones Kathryn M. Kase Ray Kelly Terence L. Kindlon Lee Kindlon Seth Herschel Kretzer Gerald Lefcourt David L. Lewis

Thomas F. Liotti Scott Lockwood Greg D. Lubow Zachary Margulis-Ohnuma Brian Melber Florian Miedel Cory Morris Aaron J. Mysliwiec Brian Joseph Neary Thomas J. O’Hern Benjamin Ostrer Paul D. Petrus Frank Policelli Murray Richman Stacey Richman Joel B. Rudin John S. Wallenstein Robert G. Wells Richard D. Willstatter Todd J.W. Wisner

PRESIDENT’S CLUB George Goltzer

Andrea Carapella Rendo Joseph R. DeMatteo Karen L. Dippold Michael G. Dowd Mario F. Gallucci David I. Goldstein James P. Harrington Daniel J. Henry Michael D. Horn Isabelle A. Kirshner Bruce Klein Robert P. Leighton Oscar Michelen Mark J. Mahoney Kenneth Moynihan Steven K. Patterson Michael Gerard Postiglione Owolabi Salis Anastasios Sarikas Dennis B. Schlenker Scott B. Tulman Susan J. Walsh James W. Winslow

SUSTAINING MEMBERS James A. Baker Frederick Brewington Paul M. Callahan

NYSACDL WELCOMES OUR NEW MEMBERS (AS OF JJUNE 10, 2021) BRONX

Lizzie Bright Sarah N. Casteel Mark T. Formichelli Gina Papera-Ewing Falon Rainer

CALIFORNIA

Matthew Wallin

CATTARAGUS Dillon Lauricella

DELAWARE

Joseph A. Ermeti

DUTCHESS

Richard Filiberto

ERIE

Lori A. Hoffman David Kubiak Alicia Lilley Danielle H. Maichle Emily G. Orlando

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ESSEX

Brandon Boutelle Jessica Moody

KINGS

Rebeka Z. Penberg Victor M. Sanchez-Lloveras Campolieto Nicole Schill Rufus Urion

NASSAU

John Barrera Frederick Brewington Matin Emouna

NEW YORK

Alvaro Almanza Gilbert S. Bayonne Jahnavi Bhaskar Rachel Black Eli Blackhouse Anjuli Branz Felice Conte Devin Conway

Matt Daloisio Elizabeth Fischer Brian Francese Lisa Freedman Sekeena Gavagan Abraham George Gregory Gomez Naima Gregory Clara Hammond Oakley Kristin Heavey Danielle Jackson Javionte Johnson Olivia Kaufmann Will Kendall Henna Khan Brent Low Erin Malone Ed McGowan Jane Merrill Alexander Moulter Quincy Myers Esere Onaodowan Meghna Phillip

Stephen Preziosi Avinash Samarth Susy Sarfaty Mitchell E. Schwartz Kyle Sheahen Adam Shlahet Wilfredo Sta. Ana Heather Johnsen Stepanek Eulalia Sullivan Jeremy Tinsley Tiffany Wang Michael Woodruff

ORANGE

Dennis B. McCormick Michael Meth

Findayawah Gbollie Benjamin Mejia Candace C. Pond Bailey M. Waltman

SOUTH CAROLINA

Dominique N. Tauffner

SUFFOLK Adam Uris

WAYNE

Dina S. Alawneh

WYOMING

Daniel Killelea

OREGON

John E. Gutbezahl

PENNSYLVANIA James Lee

QUEENS

Jenny Cheung

Atticus | Volume 33 Number 2 | Spring/Summer 2021 | 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.

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.

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.

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.

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

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.

LEGISLATIVE ADVOCACY – NYSACDL’s Legislative Committee, working with

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NYSACDL

New York State Association of Criminal Defense Lawyers

Membership Application Please print or type

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

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

Lifetime Member

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

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

$2,525. $316.25 $575. $345. $245.

New or Part-Time Attorney Member

$160.

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

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

Atticus | Volume 33 Number 2 | Spring/Summer 2021 | New York State Association of Criminal Defense Lawyers

Atticus | Volume 33 Number 2 | Spring/Summer 2021 | New York State Association of Criminal Defense Lawyers

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Publication of the New York State Association of Criminal Defense Lawyers

90 State Street, Suite 700 Albany, New York 12207

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

atticus@nysacdl.org www.nysacdl.org

“Miss Jean Louise, stand up. Your father’s passin’.”

Townsfolk stand and pay their respects to Atticus Finch after the jury conviction of Tom Robinson in one of the most poignant scenes of Harper Lee’s great American classic To Kill a Mockingbird.

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

U.S. STANDARD POSTAGE PAID ALBANY, NY PERMIT #918