Winter 2024, Volume 35, Number 1 by NYSACDL

Winter 2024 | Volume 35 | Number 1

ATTICUS 2024

Publication of the New York State Association of Criminal Defense Lawyers

Annual Dinner

NYSACDL Foundation

INSIDE

Award Recipients

this

ISSUE

Andrew Kossover, Esq. Lifetime Achievement Award

3 Message from the President 4 From the Editors' Desk

Justine Olderman, Esq. Gideon Champion of Justice Award

5 Message from 2023 NYSACDL President 6 The View From the Park 7 2023 Legislative Update 10 The New York Slave Conspiracy Trials

Richard Hoehler Justice Through the Arts Award

21 Not Guilty? Not so Fast! 24 Pretrial Motions and the 30.30 Clock

New York State Association of Criminal Defense Lawyers

atticus@nysacdl.org www.nysacdl.org

636 Plank Road, Ste. 215 Clifton Park, NY 12065

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

NYSACDL Officers and Directors 2024 Jamal Johnson, Manhattan Kendea Johnson, Manhattan Jessica Kulpit, Buffalo Leanne Lapp, Canandaigua Lindsey Lewis, Manhattan (NACDL Designee) Greg Lubow, Tannersville Nathanial Z. Marmur, Manhattan Noreen McCarthy, Keene Valley Michael McDermott, Albany Hilary Rogers, Plattsburgh Donald Thompson, Rochester Andre A. Vitale, Jersey City Sherry Levin Wallach, White Plains

PRESIDENT: Steven Epstein, Garden City PRESIDENT-ELECT: Jessica A. Horani, Manhattan FIRST VICE PRESIDENT: Kevin M. Stadelmaier, Buffalo VICE PRESIDENTS: John Ingrassia, Newburgh Seymour W. James Jr., Manhattan Alan S. Lewis, Manhattan Jill Paperno, Rochester Claudia Trupp, Cragsmoor

IMMEDIATE PAST PRESIDENT: Yung-Mi Lee, Brooklyn

SECRETARY: Grainne E. O'Neill, Brooklyn

PAST PRESIDENTS: Lawrence S. Goldman Paul J. Cambria, Jr. Jack T. Litman Mark J. Mahoney David L. Lewis William I. Aronwald Thomas F. Liotti Ira D. London Jeanne E. Mettler Murray Richman Gerard M. Damiani Marvin E. Schechter

TREASURER: Samuel Braverman, Manhattan* DIRECTORS Michael T. Baker, Binghamton Stephanie Batcheller, Albany (NYSDA Designee) Jacqueline E. Cistaro, Manhattan Ilona Coleman, Bronx Xavier R. Donaldson, Manhattan Drew Dubrin, Rochester Laura A. Fiorenza, Syracuse Randall Inniss, Suffern Danielle Jackson, Manhattan

Kathryn M. Kase Russell M. Gioiella James P. Harrington Richard J. Barbuto Martin B. Adelman Joshua L. Dratel Ray Kelly Daniel N. Arshack Lisa Schreibersdorf Craig Schlanger George R. Goltzer Kevin D. O’Connell Richard D. Willstatter Benjamin Ostrer Aaron Mysliwiec Wayne C. Bodden Andrew Kossover John S. Wallenstein Robert G. Wells Lori Cohen Timothy W. Hoover Alice Fontier Brian Melber Yung-Mi Lee EXECUTIVE DIRECTOR: Jennifer Ciulla Van Ort, Clifton Park *To be appointed at January 19, 2024 Board of Directors meeting.

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The Defenders Circle benets NYSACDL members, seminars, and programs. NYSACDL has experienced tremendous growth over the past several years in membership, seminar a�endance, 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 organiza�on in New York State. Yes, I want to join the Defenders Circle at the level below*! □ Champion

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Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

Ensure NYSACDL’s Con�nued Success with a Dona�on to The Defenders Circle!

Publication of the New York State Association of Criminal Defense Lawyers

Better Together Steven Epstein 2024 NYSACDL President I am honored to follow in the footsteps of prior leaders of this great Association who have paved the roads of justice we now walk on. We are living in a historically significant era for practicing criminal defense in New York State. Clean Slate, discovery reform, bail reform, a seat at the table for the appointments of Judges to the Court of Appeals, the repeal of Civil rights Law 50-a and so much more. We and our clients are afforded opportunities not enjoyed by those who came before us, those who worked tirelessly for the rights that protect our clients today. But rights are only half the equation in the pursuit of justice. Proportional to those rights are our responsibilities. Fifty years ago, President John F. Kennedy speaking at Vanderbilt University, said “this Nation was not founded solely on the principle of citizens' rights. Equally important…is the citizen's responsibility. For our privileges can be no greater than our obligations. The protection of our rights can endure no longer than the performance of our responsibilities. Each can be neglected only at the peril of the other.” We together, must remain vigilant to safeguard what has been achieved. This is our responsibility. This is our obligation. We carry that duty into the criminal courts in which we defend our clients. We carry it onto the steps of the legislature where we continue fighting for greater fairness for our clients. And we carry it into the court of public opinion, where our clients are so often and so brutally maligned. We together must do all of this and so much more. This will require great effort. We can accomplish this when we become better together. As this year unfolds, I will call on each of you to help. Together we will seek your ideas and listen to them. We will look to be more inclusive as we create pathways for our members to take active roles in our committees and our leadership. Opening these pathways will make us stronger and more diverse. Who is NYSACDL? We are both public defenders and lawyers in private practice. We may work in different counties, represent different types of clients, focus on different types of charges, and hail from different types of offices. But we have all devoted our professional lives to one simple ideal: we defend the accused. We draw strength from this common purpose and are unified by it. There is strength in numbers as well as the clarity of our unified message. Our Association is stronger the larger we are and the louder our voice becomes. It is my goal as President to increase membership and surpass 2000 members. To accomplish this goal, we must realize we will not get better because we get bigger, we will get bigger because we get better. Better at giving you more. Better at listening to you and identifying what it is you need and want from the Association. This will include the creation of a virtual suggestion box. Free presentations monthly for members on topics such as how to open a private practice and how to deal with the stress of being a public defender. We are building a better and more useful website. We will create an expert witness database. We will continue to provide regular updates on important legal issues through our “Lunch and the Law” and CLE programs. We will create more social opportunities to network with one another and enjoy what we do. We will take a group of fifty of our members to be sworn into practice before the United States Supreme Court on May 30 and enjoy a CLE lecture and reception the night before. We will build and strengthen our future through our young lawyers committee and create a mentorship program so we can be better together. We will of course continue to do all the other things we have done for years including lobbying, filing Amicus Curiae briefs, publishing Atticus, providing for exchanges through the mailing list, and so much more. I am honored to be trusted to lead our Association. It is humbling and exciting. I look forward to both the opportunity and the responsibility.

Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

From the Editors’ Desk John S. Wallenstein, Jessica A. Horani, Grainne O'Neill As the days grow shorter and most of us return home from Court and our offices when the sky is already dark, we know all too well that Winter is upon us. The months have become a scramble, to perhaps enjoy an hour of sunlight for a morning run before settling into work, to schedule trials around holidays and travel, and to make last ditch efforts to free clients from incarceration so that they, too, may return home to their loved ones. Time feels limited and our mood sometimes darkens along with the skies. It is at these moments in particular that we need the camaraderie and support of our colleagues and this association. What better time than the cold Winter months for a party? And what better party (we humbly submit) than our annual dinner in January? Debuting at Cipriani’s Wall Street this year, we are eager to welcome you all to a night of celebrating our organization and each other. We will also bid a very fond adieu to our leader for the past year, Yung-Mi Lee, whose work on behalf of discovery and bail reform alone has benefitted defense attorneys across New York State immensely. That she willingly took on the mantle of President and brought her guiding hand to this organization on top of all she has already done is a testament to her dedication for our clients and for the principles we as defense attorneys seek to uphold. We welcome our incoming president, Steven Epstein, who should be no stranger to any of you who have attended our CLEs or needed an expert in DUI cases. With the foundation he has already laid for a successful presidency we know he will hit the ground running and take NYSACDL to the next level in 2024. This issue of Atticus will get you thinking. Within these pages you will read about our awardees and the professional achievements that merit the laurels we bestow upon them. Don’t miss the fascinating article written by Russell Neufeld, where he turns a legal historian’s eye towards the (unknown to many) grossly unjust ‘slave conspiracy’ prosecutions in New York City in the 18th century, and argues forcefully in favor of a reckoning for the prosecutorial misconduct and the miscarriage of justice that occurred as a result. The 2023 legislative session was a disappointment for us in some respects, but Kevin Stadlemaier’s explanation will have you writing to your Assemblymembers and Senators, if not the Governor. And we have not neglected to further our legal education. Karloff Commissiong’s article about the use of acquitted conduct in Federal sentencing will give you some insight into that nefarious practice. Drew DuBrin’s excellent discussion of 30.30 should be clipped and used in your motions; it covers what you need to know to succeed. And although the logistics of putting this magazine together (there is only so much space, after all) precluded the printing of Tim Murphy’s usual Court of Appeals Roundup in this issue, we’ve linked to it in the online edition; Tim, as always, has succinctly analyzed the leading cases for your ready reference. All told, we hope you will enjoy and learn from this issue, and perhaps it will spur you to write! We encourage (in fact, we need) our members to provide the content so we can continue to put out a quality magazine for the benefit of all of our members. We wish you and your families a Happy and Healthy New Year, and look forward to seeing you at the Dinner. Jessica, John & Grainne

Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

Message from 2023 NYSACDL President Yung-Mi Lee, NYSACDL President 2023 What a year! I cannot say that this past year is “finally” coming to an end because it went by too quickly. Our Board of Directors, our various committees and you, our members, have been inspirational. I have proud moments not because of what I have accomplished but because of what we collectively accomplished. New York’s 2019 Discovery laws highlight the intersection of our many committees’ work, culminating with the Court of Appeals Discovery decision in People v. Bay. Our Legislative Committee had worked tirelessly – for years – for Discovery reform and, more recently, in staving off drastic “rollbacks”. Throughout all these fraught moments, our CLE Committee continued to ensure that attorneys throughout our state implemented the law as envisioned by advocates, impacted people and the legislature. Our Amicus Committee then took us over the finish line with an Amicus brief in Bay that was no less than excellent. Other key highlights include our Legislative Committee’s work in obtaining a critical increase in Assigned Counsel rates. Our CLE committee added new outstanding CLE seminars including Manhattan’s Defending a Murder Case and Ithaca’s Courtroom Skills & Client Relations. It was a great opportunity to meet and see so many lawyers attend these and other seminars when I travelled throughout the state.

EDITORS John S. Wallenstein Jessica A. Horani Grainne O'Neill A publication of the NewYork State Association of Criminal Defense Lawyers ©2024 NYSACDL 636 Plank Road, Ste. 215 Clifton Park, NY 12065 Phone: 518-443-2000 Fax: 888-239-4665 www.nysacdl.org atticus@nysacdl.org

We also have new committees. Our Diversity, Equity and Inclusion (DEI) Committee has met and will soon start working with the Board and our members to ensure that our principles and mission include the experiences and voices of our diverse organization and the people we represent. Our Motor Vehicles Committee submitted a lengthy and detailed set of comments in response to DMV’s proposed new point system. Finally, Chief Judge Wilson! Need I say more? We are already seeing a seismic shift in the tone and accessibility of our state’s highest court. Our Judicial Nominating Committee worked tirelessly with the other State bar associations in screening the many candidates who sought both or either the Chief Judge or the Associate Judge seats. Finally, finally, a big congratulations to our honorees, Justine Olderman, Andy Kossover and Richard Hoehler who have accomplished so much and done it all so admirably. This “goodbye” and parting words are only as president of NYSACDL. I will remain an active member and continue to contribute to the work of this amazing community. I look forward to our next steps.

Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

The View From the Park Jennifer Van Ort, Executive Director On June 10, 2013, I walked into a brand new office in Albany for the first time. I had never been an Executive Director before, and I especially had never been my own boss with no other employees. To say I was apprehensive would be an understatement! Now, 10 years later, I still have apprehensive days and days I still feel like a “newbie,” but thankfully, I had amazing people then and amazing people now who help me along the way. I thought I would take this opportunity to reflect on NYSACDL’s past 10 years and the growth and change its experienced. First, membership – the lifeblood of our organization. Very shortly after that day in June, I had my first Board of Directors meeting. At that time, we had 584 members. We ended 2013 with 758 members. As of early October, 2023, we have 1,366 members – a 57% increase from 10 years prior. This increase is owed in part to the Indigent Defense Committee creating a whole office membership to serve New York’s Public Defender, Legal Aid and Assigned Counsel Plan offices. This increase is also owed in part to the work of the entire Board and organization serving our members through good and bad times, including the landmark bail and discovery reforms in 2019, and the subsequent fights to rollback those reforms, as well as stepping up to be there for our members during the recent pandemic. Speaking of the Legislative Committee, when I started in 2013, this already robust committee had many wins under its belt. Throughout the past 10 years, this committee has continued to work steadfastly for all criminal defense lawyers, and their clients. They continue to work towards creating a more fair criminal justice system that serves all equally. NYSACDL is now being sought out for its opinions on matters, invited to testify at important public hearings, and comment in the press on criminal justice issues. Also working directly for you is the tireless CLE committee. Our flagship programs – Cross to Kill, Weapons for the Firefight, Superstar Trial Seminar, and others, continue to surpass expectations year to year. Even during COVID, these programs served our community, even if we were all home behind our screens. Continuing that trend during COVID, the committee and executive leadership stepped up to present over 60 programs throughout 2020 to keep you informed and connected while safely separated. Now that we are back in person, we have been pleased to bring our new programs, such as Cannabis in the Catskills and our upcoming Defending a Murder Case seminar, plus the return of our smaller, regional Central New York and Finger Lakes seminars. Please continue to watch our web site for all of the exciting things to come! Especially exciting is our 2nd in person Annual Dinner since the pandemic coming this January in a new location for us – the beautiful Cipriani 25 Broadway. With an outstanding lineup of awardees, this year’s dinner on January 18th is not to be missed! RSVP today! Reflecting back on people who have helped me throughout this ten-year journey, I would be remis not to mention Ben Ostrer, 2013 President. His guidance throughout my first months was invaluable. We continue to remember his name with the Ben Ostrer Memorial Scholarship Program for Criminal Defense Internships through the NYSACDL Foundation. This program was announced at last year’s dinner and, moving forward, part of the proceeds from each dinner will help fund this program. Your support is key in keeping Ben’s memory and legacy alive. One thing I have learned in 10 years is that an association always gets the President it needs, and the leaders I have had the benefit of working with have all left a lasting mark on NYSACDL. Thank you, again, to Ben, as well as: Aaron Mysliwiec, Wayne Bodden, Andy Kossover, John Wallenstein, Rob Wells, Lori Cohen, Tim Hoover, Alice Fontier, Brian Melber and Yung-Mi Lee for your unwavering support of NYSACDL and my work. Coming in 2024 will be Steve Epstein and I know he will do you and the Association proud. I cannot wait for another great year! I could say so much more about all the past 10 years have brought, but enough reflection. The time is always right to think about the next trip around the sun for ourselves and NYSACDL. Salute e Cent’Anni to the past 10 years and all that is to come!

Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

2023

Legislative Update By Kevin Stadlemaier

or those of us who were heartened at the historic election of Governor Hochul in November 2022, there was optimism that her election, together with a Democratic supermajority in both Houses, would herald an era of progressive reform within the criminal legal system. However, this year’s budget cycle disabused us of that notion early, and likely for all time.

Early in the process, it became clear in many conversations with Governor’s staff, and legislative leaders, that rollbacks of key criminal justice reforms was first and foremost on her agenda. While were able to fight off (gallantly in some instances) the most dangerous proposals flowing from the 2nd floor, some damaging changes were enacted. Despite these setbacks, we were successful in other respects, including the passage of a priority item that we had fought diligently for. As always, we entered into the budget cycle early, with regular Legislative Committee meetings beginning in August. Through internal meetings, as well as meeting with other groups including The Chief Defenders Association of New York (CDANY), our “priorities” list was finalized and distributed in January 2023.

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

Our 2023 list was as follows: • CRITICAL NEED for an increase in Rates paid to 18-b Counsel; • Stand Strong Against Further Bail and Discovery Rollbacks;

• Support for “End Predatory Court Fees Act” (S313); • End Coercive Police Interrogation with Amendment of CPL 60.45; • Support of “Communities Not Cages”; • Support of “Youth Justice and Opportunities Act”; • Support of “Treatment Not Jails” S1976 (Ramos)/ A1263 (Forrest); • Support of “Clean Slate” (S211/ A1029) As with any budget cycle, we were hopeful to be heard on all of these items as they represented areas of need for our defenders and their clients. However, as has happened since 2019, our agenda was dictated by the Governor’s early insistence on, again, rolling back the landmark 2019 bail law. As has always been our practice, NYSACDL personnel was on the ground in early February for our joint New York State Defenders Association (NYSDA) and NYSACDL Lobby Day. We took this opportunity to address our many priorities, including a raise in the 18-b assigned counsel rates; a priority that had become critical over the last several years. However, as has happened in previous cycles, we began to receive word even in early February that bail was once again on the chopping block. Right wing media fearmongering ads, cryptic comments by the Governor during press conferences, and communications from inside the Legislative chambers made clear that we would be one again fighting to maintain the landmark changes.

Continued on next page Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

Legislative Update Continued from previous page As February turned to March, we continued our group advocacy meetings and supplemented them with monthly meetings with Governor’s counsel to address the many and varied issues included in our priorities list. We were once again on site in Albany on March 22nd to continue our fight against bail rollbacks and call for public defender funding the form of 18-b rate increases and public defender discovery and retention funding increases. During that lobby day, a press conference was held, attended by both Assemblywoman Latrice Walker and Senator Brad Hoylman-Sigal. They heard firsthand the plight of our defenders relevant to funding and increases, as well as our pleas not to rollback bail or other hard fought progressive measures. Unfortunately, as we departed Albany that day, we were more convinced than ever that the fight to maintain bail was once again coming to the forefront. In addition, we began to hear rumblings that discovery was also once again on the agenda for a significant and damaging rollback. As we turned to the week of March 27th, with the budget deadline of April 1st looming, we were advised explicitly that an on-time budget was impossible without bail changes pushed by the Governor’s office. Once again fear, and not facts, drove the push, with the Governor’s office claiming that Judges were confused about the “least restrictive means” standard mandated when making bail decisions. Of course, removing this standard would make it vastly easier for Judges to incarcerate offenders charged with qualifying offenses. The Governor seemingly was responding to rash of bad headlines and media/law enforcement fearmongering; none of which was supported by data showing a rise in crime rates or recidivism. The Governor unbelievably admitted as much in a press conference shortly before the budget was finally passed; declaring that negative media portrayals in the

NY Post were responsible for her push to change bail. Ultimately, the Governor’s lust for bail changes caused a delay in the budget which pushed the entire cycle into May, the longest delay in over a decade. While our partners in the Assembly and Senate remained strongly opposed to any rollback, the Governor’s office was resolute in their insistence. As if rollbacks on bail weren’t enough, we were advised very late in the initial budget process that discovery changes were once again on the agenda. As you’ll recall, last year saw clarification of the time limits the defense had to make objections to “Certificates of Compliance,” with the “as soon as practicable” standard being instituted for such objections. That compromise came as a result of closed door meetings with defenders at the table.

could make objections to missing discovery. Failure to make a challenge would have foreclosed defenders for all time from challenging discovery; • A shifting of the burden to the defense to know what they did not have, and to make objections accordingly. Clearly, these changes were untenable. They would have immediately brought us back to the days of voluminous motion practice and extensive delays. We also heard, although were not able to confirm with direct language, that the DA’s ultimate goal was to de-couple CPL 30.30 from the discovery compliance process; effectively making any compliance mandates meaningless. We were forced to fight these changes vigorously; and fight we did.

Once the defender community became aware of this much larger and more organized campaign, headed by DAs In contrast, discovery rollbacks were not Bragg, Clark, and Eric Gonzalez (Brookincluded in either Senate, Assembly or lyn), we i swung into action. Led by a Governor’s initial budget. There were coalition of defenders from the Legal Aid further not included in the final “language” Society, Neighborhood Defense Services amendments thirty days before the end of Harlem, NYSACDL, CDANY and of the budget cycle. A clandestine memo NYSDA, defenders began meeting twice sent from Manhattan DA Alvin Bragg daily in late March. The sessions were and Bronx Darcel Clark was the only real attended by defenders from all across proof of a more dedicated effort to gut the state and were largely coordinated discovery reform. by Amanda Jack and Kalle Condliffe from the Legal Aid Society, as well as Despite the lack of traditional markers to our own Yung-Mi Lee. Daily updates denote a push for further modifications, were provided by Yung-Mi as well as we were advised in early March that the NYSACDL Legislative Committee Governor’s office had made rolling back discovery a priority and major platform of Member Eli Northrup. her “public safety” agenda. Furthermore, Statements and position papers were we were advised that meetings on the submitted. NYSACDL submitted several rollbacks were being held in secret with statements in opposition of the rollbacks. the explicit exclusion of defenders; a We coordinated two, well-attended process in direct contrast that which Legislative briefings on April 14th and produced compromises last session. April 19th, the latter of which saw Akeem Browder, the brother of Kalief Browder, The called for rollbacks would have seen give an impassioned plea in support of the the following devastating changes: reforms. Extensive social media interac• A designated time limit of 35 days after tion took place. More than one Op-Ed the filing of a COC where the defense was written. Interviews were given in

Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

both print and on television in support of maintaining the law as is. This group led the push to contact individual legislators and to rally support against any discovery rollback. Our efforts culminated in a petition signed by over 1,000 defenders from across the state on April 27th.

York, 160191/2022) the Legislature and Governor finally agreed with Assigned Counsel and Conflict Defender programs statewide that 18-b rate raises were critically needed.

the date of the to be sealed conviction. Exceptions were carved out for Class A felonies and sex offenses. This landmark legislation gives due credence to the notion that convictions for even minor offenses have long lasting, deleterious consequences for the affected. Clearing convictions for those truly working to turn their lives around will have substantial economic and societal benefits. NYSACDL has long supported the “Clean Slate” coalition and we were thrilled at the passage.

The final budget includes an across the board raise of 18-b rates to $158/hour for all cases in both criminal and family court. These rates represent a matching to the Late that evening, we received word that 2022 Criminal Justice Act (federal) rates our incredible efforts caused the Governor and is a 163% increase over the previous to backtrack so dramatically on the promisdemeanor rate and a 111% increase posed rollbacks that the DA’s themselves over the previous felony/family court could no longer support it. The language rate. Additionally, it includes a raise of The only dark cloud hanging over the paswas removed from the final budget bill the case cap to $10,000 with a retention sage is that the Governor, as of publication, and we celebrated a major victory. of the ability to voucher more under has yet to sign the legislation she apparUnfortunately, we were not so lucky on bail. “extraordinary circumstances.” This raise ently negotiated. We are not yet sure of was a major victory and will ensure that, When the language was finally released on the roadblock that is affecting immediate in the short term, assigned counsel and May 2nd, bail rollbacks had made it into passage. We remain hopeful the Governor the final budget and were passed late in the conflict defender programs will be able to keeps her widely report word and signs maintain their current panels, as well as evening on May 2nd. While the changes “Clean Slate” sometime this summer. recruit new defenders to join. are too dense to fully discuss here, the As we move towards the next legislative major rollback saw the removal of the “least However, it was not a complete victory. restrictive means” standard for all offenses, The State agreed to pick up 50% of the cost session, we are mindful of the continued work that needs to be accomplished. Our not just for qualifying offenses or violent for this year only and the new legislation committee will be hard at work next felonies. While the purpose of bail remains lacks a “cost of living” increase for future session advocating for positive change. to “assure a principal’s return to court,” the years. The remaining 50% this year, as well In addition to the above, we expect changes make clear that Courts do not as 100% of the increase next year, absent to continue work on other important need to consider other factors in deciding further legislation or litigation victory, will agenda items such as an end to coercive whether to incarcerate a person charged be foisted onto the Counties as a differeninterrogation, passage of “Communities with a qualifying offense pre-trial. This tially administered, unfunded mandate. Not Cages,” “Treatment Not Jails,” reform a substantial change, made for political We have always argued for 100% state of the Youthful Offender adjudication reasons, completely divorced from data. It responsibility for these costs as well as a structure, jury selection reforms, an end will ensure that our dangerous jails will see COLA. As such, we will continue to fight to predatory Court fees, additions to the more people, mostly from minority comfor these additions both in the halls of the DWAI Drugs statute, and a host of other munities, locked up pre-trial. We remain Legislature and in the courtrooms. items of importance to the communities deeply disappointed in the Governor for we serve, and the attorneys who work so rolling back this landmark law for the third Finally, as the budget cycle ground to a diligently to that end. time since its inception in 2019. much needed, and extremely late, concluOur outstanding committee of dedicated Although the loss on bail hurt, Defenders, sion, the Senate and Assembly rewarded defenders, together with our diligent in addition to holding back the tidal wave us with one last victory; the passage of “Clean Slate” on June 9th. In a reported Executive Director Jennifer Van Ort and on discovery rollbacks, did earn another terrific lobbyist, Jennifer Richardson, will key, hard fought victory. After nearly 20 negotiation with the Governor, the vast continue to fight for equity and justice years, the last several of which had seen majority of NYS criminal convictions in the criminal legal system. As always, intense advocacy as well as two recent for misdemeanors and felonies would be if you have suggestions or proposals for lawsuits (NY County Lawyers Assn et. Al. sealed so long as a subsequent conviction legislation which enhances these goals, v. State of New York et. Al and New York did not occur during the passage of three please let us know. State Bar Association v. The State of New (3) and eight (8) years, respectively, from

Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

The New York Slave Conspiracy Trials: A Deadly Hoax By Russell Neufeld Retired Criminal Defense Attorney and History Buff

New York State Commission on Prosecutorial Conduct Re: John Chambers and Joseph Murray To The Commission: This is a complaint about the legal lynchings that form the basis of the misconduct of former Manhattan prosecutors John Chambers and Joseph Murray, after whom both Chambers and Murray streets in Manhattan are named1. Chambers and Murray were two of the principal prosecutors in the 1741 trials in a fabricated slave conspiracy case, resulting in the greatest mass killing under color of law in New York history, prior to the 1971 Attica prison massacre. The 1741 prosecutions resulted in the burning at the stake of 13 Black men, the hanging of 17 Black men, the conviction and resulting sentence of “transportation”, (which meant their sale to Caribbean or other slave owners), of 84 Black men and women, the hanging of 2 white men and 2 white women, the pardon and banishment of 7 white men and the arrest and detention of 152 free and enslaved Black people. The executions were carried out on a small island in the Collect Pond, in an area that is directly behind the current criminal courts. These cases help to provide a context to understand the continuing history of racist prosecutions in New York during the following 282 years. This complaint is submitted in the hope it will be a starting point for the new Commission on Prosecutorial Conduct, as it begins its work examining more current racist misconduct such as Batson violation complaints of racial discrimination in jury selection or Brady violation complaints of exculpatory evidence withheld because prosecutors didn’t credit the source, as well as a myriad of other violations. 2 The complaint includes recommendations for posthumous pardons, reparations, street name changes and correcting the historical record. The 1741 convictions were obtained based on 80 coerced false confessions, made in fear of torture and death, and the testimony and statements of one teen aged, white indentured servant, Mary Burton and one white indentured servant, petty thief and jail house snitch, Arthur Price. The indentured servants said what was asked of them, not only to escape their own punishment but to obtain the promised pardons, freedom from their

remaining indenture and a substantial cash reward. 3 The socalled slave revolt conspiracy of 1741 never existed, though it certainly would have been more than justified if it had.

Background

In 1741 New York City had a population estimated at 10,538, living at the southern end of Manhattan. Of these, 8, 709 were white and 1,829 were Black and overwhelmingly enslaved. The enslaved human beings were owned by the wealthiest of the white population. The enslaved of New York constantly struggled to assert the humanity that slavery denied them. They fought to create spaces where they could live and love despite being held as chattel. New York’s slave code prohibited slaves from going about town except on their owner’s business, from frequenting taverns, from possessing their own money, among numerous other restrictions. But, since the strict police enforcement of such laws was

Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

not realistic, enforcement, beyond that of each slave owner, was lax. New York, at that time, had numerous taverns. Some catered to the wealthy and some to the less so. Among the latter was the tavern owned by John Hughson, located a bit south of Cortland Street and north of Trinity Church. For several years prior to 1741, a small number of Black people, those few who avoided the close control suffered by the overwhelming majority of the enslaved, could sit and drink at Hughson’s and a few other taverns. Hughson was also a fence; a buyer and seller of stolen goods. He catered to the poorer people of the city; a few Black slaves, British soldiers from England’s Irish colony, and boarders without permanent housing. He exploited the situation of his handful of enslaved patrons by offering a place to hang out and drink. And since they could not legally possess the money to pay him, he paid them for stolen items and then recouped the cash through their purchases. They were his captive customer base and a source of his stolen goods. His Black patrons would sit and drink and talk of freedom. They would rail at their captivity. But they were also very realistic. They were aware of the long history of slave revolts attempted and crushed, and of the impossible odds of staging such a justified but doomed adventure in a city with a large British garrison and being outnumbered five to one. They were also well aware that their involvement with Hughson’s criminal enterprise put them in a desirable and privileged position relative to the rest of the enslaved – a status they would not risk en-

dangering. Hughson ran the tavern and his fencing operation, with the help of his wife, Sarah, his daughter, also named Sarah and a sixteen-year- old indentured servant, Mary Burton. Burton greatly resented John Hughson for having her serve Black tavern customers. One of Hughson’s main patrons and source of stolen goods was an enslaved man, Caesar4, the property of a baker, John Varick. Caesar was a burglar. He sold many of his stolen items to Hughson. He used much of the cash derived from the burglaries to pay Hughson for the room and board of his white lover, Margaret (Peggy) Kerry and her child. On February

28, 1741, Caesar and another enslaved person, Prince, burgled cash and merchandise from a small shop. They stashed the proceeds at Hughson’s, initially with Peggy Kerry. An investigation led the authorities there. Under questioning, John

and Sarah Hughson denied any knowledge of the theft. But, under a promise of leniency, Mary Burton showed the sheriff one of the stolen coins which she said Caesar had given her. Burton was taken into custody. Caesar and Prince were arrested. Part of the loot was found at Hughson’s and he confessed. Peggy Kerry was also arrested. In 1741 the maximum punishment for theft or receiving stolen goods was death, but all involved, at that point, March 4, 1741, hoped for considerably lesser punishments. A year earlier, a series of events unfolded that resulted in five other enslaved people being ensnared in the 1741 slave conspiracy prosecutions. In addition to the colony’s great wealth by virtue of having stolen native lands and embracing the slave trade, New York’s merchants amassed incredible profits through the legalization of piracy, known as privateering. When European countries were at war, they authorized armed, private ships flying under their flag to seize merchant vessels flying an enemy’s colors and take the cargo, crew and vessel. In 1740 New Yorker John Lush, with his 20-gun sloop, captured several merchant ships flying the flag of England’s enemy, Spain. He brought the ships, the booty and the crews back to New York. He claimed that the 19 “mulatto and Negro” crew members were slaves. The men stated that they were free Spanish subjects – not slaves – and should be treated as prisoners of war. If credited, that would have required their release at the end of hostilities with Spain. Not caring about such legal niceties and being deeply committed to a racialist basis for enslaving human beings, Lush was permitted to sell the prisoners at the Wall Street slave market. Five were bought by local slave owners and would later be charged in the conspiracy. Continued on next page

Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

Conspiracy Trials Continued from previous page Another thread of the conspiracy prosecutions played out around the same time as the events at Hughson’s. The enslaved of New York fought to hold on to their families. Slavery had no respect for the Black family. Husbands and wives, children and parents were separated and sold as if they were a piece of lumber or a bolt of cloth. One enslaved New Yorker, Quack, was owned by John Roosevelt. His wife, Barbara, was owned by the acting governor of New York, George Clark. Clark lived in a mansion within the walls of Fort George, overlooking the harbor. Barbara was Clark’s cook. Some evenings when Quack had finished his day’s labors, Roosevelt allowed him to go to the fort, to be with his wife. Clark came to view Quack as a nuisance – a distraction from Barbara’s responsibilities as his slave. In early March of 1741, Clark banned Quack from the fort. Clark would no longer allow Quack to see his wife. Quack was furious. On March 18, he snuck inside the fort and set fire to Clark’s house; perhaps in the hope that when Clark relocated, he would no longer have the fort to keep Quack away from Barbara. The house burned down, along with many of the other wood structures within the fort’s stone walls. As most people rushed to try to douse the flames, at least one man saw the fire as an opportunity for enrichment. Arthur Price, a white indentured servant, believing that items that disappeared during the conflagration would be thought lost to the flames, was caught stealing some of Clark’s property and was promptly jailed. Possibly inspired, as Price was, by the hope of using fires as a cover for theft or, like Quack, as an expression of outrage at enslavement, ten more fires were set over the next three weeks. Most of them caused little damage. Among them was a fire set under a haystack, that failed to ignite, near the coach house and stables of attorney Joseph Murray. While the first fire was initially attributed to an accident, as more fires were set, it became

clear that they were intentional. One member of the Governor’s Council observed that he believed the fires were set “by a combination of villains…[seeking] to have the opportunity of making a prey of their neighbor’s goods, under pretense of assisting in removing them for security from the danger of the flames.”5

The Prosecution

Just as the enslaved were aware of the history of slave revolts, so were the slave owners. Revolts of the enslaved have been a recurring response to slavery throughout history. While some whites, like the Governor’s Council member, thought the fires were a cover for larceny, others saw a slave revolt. The cry went up among some whites that “the negroes are rising.” Immediate suspicion fell upon the Spanish slaves because they were the ones that repeatedly argued against the legality of their enslavement. Many whites started looking upon every Black person they encountered with suspicion. Just as Black motorists often try to flee white police officers who stop them, enslaved New Yorkers started running away from whites confronting them on the street. One person’s fleeing for his life is proof of guilt to the other.

larceny; to acquire a reward by providing false information. Price told the jailer that Burton had told him that she knew about plans for a slave revolt. The jailer told Justice Horsmanden who then questioned Burton. Beginning with a story of just the Hughsons, Peggy Kerry and three slaves, Caesar, Prince and Cuffee, the story grew in numbers and embellishments. As Quack and others of the enslaved were arrested for the fires, Burton identified each one as having been present at a conspiracy plot at Hughson’s. She told an utterly incredible story of a huge feast, hosted by Hughson over Christmas, attended by many enslaved people, in the midst of one of New York’s harshest Winters in memory, when the harbor was frozen solid and goods were scarce. She said she was forced to serve a large number of enslaved people – great potions of beef roasts, poultry and alcohol. They all swore an oath to join in a revolt. They signed a book. Caesar would be the general and Hughson would be the King of New York. They would burn the entire town, kill all the white men and marry all the white women.

As the telling and re-telling grew, it included the Spanish slaves conspiring with Spain and a secret agent of the Pope – a In the midst of this white panic of Jesuit priest – directing the entire conpointing the finger at Black enslaved spiracy. Having Hughson and a Catholic people, while others pointed at would priest as the brains of the uprising combe thieves of any skin color, Arthur Price ported with the slave owners’ conception and Mary Burton made a plan. The two of the people they held in bondage as white indentured servants jailed for their lacking the intellect to plan an uprisinvolvement in the larcenies, saw an oping. Attorney General Bradley stated, portunity to move the focus away from “It cannot be imagined that these silly their own criminal conduct, get out from unthinking creatures could of themselves under any charges, end their indentured have contrived and carried on so deep, so status and get the monetary reward being direful and destructive a scheme.”6 offered for information about the fires. The prosecution’s plan to gain convicThey concocted a story that connected tions was simple. The cases were handled the fire that actually was set by Quack to 7 the actual burglary and fencing of Caesar, by Daniel Horsmanden, a Justice of the Prince and the Hughson’s, to a complete- Supreme Court; then as now, New York’s highest trial court. Horsmanden was ly made up grand slave revolt conspiracy. both inquisitor and judge. He conducted This was actually an attempt at a new nearly all the interrogations, wrote down

Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

the confessions, took guilty pleas and Bradley told the jurors that as white men sat as judge of the trials. Price was placed they were all to be killed in the slave’s in cells with various of the suspects and plot. The jury returned a guilty verdict in would then report that they had cona few minutes and Horsmanden immefessed to him. Each defendant was told diately sentenced them to be “chained that the only way to avoid being hanged to the stake and burnt to death” – the or burned at the stake was to confess. sentence to be executed on the very next They were be told the name of the person day. At the stake, Quack and Cuffee whose confession had implicated them “confessed” at the last moment, if only in and the list of all the others already hope of trading the slow, excruciating, named. They were told that in order for hours long burning, beginning at their their confessions to be credited they feet and gradually roasting their whole would have to divulge new names of body, for the quicker death of hanging. co-conspirators. Each new accomplice As the numbers grew, New Yorkers named was then shown to Burton, who identified them as being at the conspiracy became increasingly skeptical of the existence of a larger conspiracy. Most white feast at Hughson’s. Those who didn’t people did not believe Mary Burton’s confess would be tried. Every person put on trial was convicted and most executed. ever changing and expanding story. Slave owners who knew the people they held The first ones hanged were left to rot in bondage could not have participated in public display to put fear in all the in any goings on at Hodgson’s protested remaining suspects. the innocence of “their slaves.” The slave The first of the conspiracy trials included owners were also upset at the prospect of prosecutors Attorney General Bradley losing their investments in human capital and Murray. The jury, like all New York that would result from a false conviction. juries at the time, was solely composed of Joseph Murray and John Chambers prospropertied white men. The first two deecuted the trial of the five Spanish slaves, fendants, Quack and Cuffee, like all the relying on Mary Burton’s testimony, the defendants, were unrepresented. Mary confessions of Quack and Cuffee as they Burton testified that they were both at the conspiracy meeting at Hughson’s. Ar- tried, at the last moment, to avoid being thur Price testified that Cuffee had made incinerated, and the testimony of four of the enslaved who had named the Spanish a jailhouse confession to him of his and Quack’s participation in the fires. Murray defendants in their coerced confessions. The defendants, all unrepresented by called two enslaved witnesses to testify. counsel, reaffirmed their ongoing claim Both, Sandy and Fortune, had made cothat they were not slaves, but Spanerced confessions and now would repeat ish subjects. If the judges, in this trial, them in court, in what Murray called “neHorsmanden and his colleague, Justice gro evidence”, which though not considFrederick Philipse, accepted the claim, ered formal testimony, did allow them to the prosecution would not be able to use give “evidence good against each other.” “negro testimony” against them. MurAn officer at the fort testified to seeing ray and Chambers would have been left Quack there on the morning before the with just Mary Burton. To avoid this, the fire. Quack’s and Cuffee’s owners testijudges decided not to decide the slavery fied that they believed their slaves were status issue. Instead, they added a second occupied with work or not out of their indictment, to be tried along with the sight at the times in question. Sandy’s owner testified that the 16-year-old slave original one, charging the defendants was not truthful. In his summation, A.G. with counseling and advising Quack to

burn the fort. That way, they could be convicted even if they were not slaves and “negro testimony” could be used against them if they were. The defendants put on a dozen witnesses in their defense. All their owners testified for them – four swearing that the defendants were with them at their country homes, out of the city, at the times in question and that several were incapacitated. Two white medical doctors testified that they had treated one of the Spanish slaves for frostbite before Christmas and that he was unable to walk for several months. The jury convicted them all within a half hour of deliberation and they were all sentenced to death – but only one of them, Juan de la Silva, viewed as their leader, was actually executed. The next group of “conspirators” fared no better. On July 15, seven enslaved Black people and one free Black man, a physician, “Doctor Harry” went on trial. John Chambers and Joseph Murray were two of the prosecutors. Mary Burton testified for the prosecution, as did an Irish soldier who had confessed after being named by Burton, and six of the enslaved who also had confessed – all testifying consistently with their sworn confessions. One of the enslaved defendants’, Fortune’s, owner testified on his behalf that Mary Burton, when presented with Fortune in a line up, failed to pick him out and stated, “I’ve never seen him at Hughson’s.”8 It didn’t matter. Several of the jurors had already been jurors in the previous trials. “Doctor Harry” was sentenced to be burned at the stake and the others hanged. On July 18, as the flames engulfed “Doctor Harry”, he yelled out, “I know nothing of the plot of my own knowledge. If I did, I’d discover to save my soul…. It signifies nothing to confess.”9 Both Justice Horsmanden and his fellow Supreme Court Justice, James Delancy, clearly saw the Pope’s hand behind the entire plot. Horsmanden suspected a Continued on next page

Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

Conspiracy Trials Continued from previous page teacher of Latin and Greek, John Ury, because he was a recent arrival in town and Latin was the language of the Roman Catholic Church. Being a Jesuit Priest was, by itself, a capital offense in New York. Horsmanden asked Mary Burton about the participation In the plot of Ury who he told her he suspected of being a Jesuit priest. Burton had previously testified before the grand jury: “I never saw any white person in company when they talked of burning the town, but my master, my mistress, and Peggy.” But when asked about Ury, she suddenly remembered his central role in the plot. He attended many conspiracy meetings, urged the enslaved to take the oath to join the plot, burn the city and kill the white people. He converted them to Roman Catholicism, conducted baptisms and promised to forgive all their sins; the latter being proof of his Jesuit priesthood, since Anglicans did not believe priests had that ability. Burton claimed he tried to persuade her to take the oath of allegiance to the conspiracy, but that she had refused. “I can forgive them their sins and yours too,” she testified he told her. Ury was charged both with the conspiracy and violating the 1700 New York law, “An Act Against Jesuits and Popish Priests” which carried a sentence of life imprisonment or death. Burton, when prompted, then also “remembered” several other whites being present; mainly Irish soldiers from the English garrison at Fort George. Though they all said they were Protestants, merely being Irish, made the judges and prosecutors suspicious. As Mary Burton named them and they were presented with her testimony, they, like the enslaved Blacks before them, embraced her story to save their lives. Hughson’s daughter, Sarah, had been sentenced to death and her parents were already executed. Her own

execution was delayed, specifically in the rather a minister, ordained by an English hope that seeing her parents killed might bishop, who had joined the dissident facloosen her tongue. Not surprisingly, she tion of the Church of England, known as now decided to confess and embrace “nonjurors.” The nonjurors were a splinter Burton’s story. Sarah said she’d seen Ury group of the Anglican church that began often with the negroes, plotting the in 1689 when a group of ecclesiastics burning of the city and the murder of the refused to take the oath of allegiance white people. “I’ve seen him several times to William and Mary, following the make a round ring with chalk on the floor overthrow of James II. Webb testified and make all the negroes then present that he’d said to Ury about the slaves, stand around it. And he used to stand “They’ve souls to be saved or lost as well in the middle of the ring, with a cross in as other people.” Ury replied, “They’re his hand, and there swore all the negroes not proper objects of salvation…. They’re of a slavish nature. It’s the nature of them to be slaves. Give them learning, do all the good you can, and put them above the condition of slaves, and in return, they’ll cut your throats.”12 So, though Ury was neither a Roman Catholic, nor a supporter to be concerned in the plot…. I saw Ury of slave rebellion, none of this mattered. baptize the negroes…and tell them he The jury convicted Ury in 15 minutes. He made them Christians and forgave them was sentenced to be hanged. their sins and all the sins they’d commit 10 about the plot.” The City’s jail was filled to overflowUry’s trial began on July 28. The prosecu- ing with its enslaved Black inhabitants, tors included attorney general Bradley, including five of Joseph Murray’s slaves John Chambers and Joseph Murray. and two belonging to John Chambers. Chambers presented the testimony of Justice Horsmanden said, “[I]t seemed Burton, the young Sarah Hughson and very probable that most of the Negros in the Irish soldier, William Kane. After the Town were corrupted.” But most white confessed cooperators testified, Murray New Yorkers did not believe Burton or introduced surprise evidence; a literHorsmanden. “Even before the fires died ally inflammatory letter from a British to embers, New Yorkers began to wonder colonial general in South Carolina. The whether the city had suffered ‘in the merletter stated that he had heard a rumor ciless Flames of an imaginary plot.’ More that England’s enemy, Spain, was sending than a few began ‘to think it all a Dream, Jesuit priests, under cover, to the colonies, or a Fiction.’ Some even ‘took the Liberty to burn the English magazines and towns. to arraign the Justice of the Proceedings,’ Although the general said that he could declaring ‘that there was no plot at all’”13 not credit or confirm the rumor, the “By the end of July New Yorkers were indamage was done. 11 Other prosecution sulting Mary Burton [now released from witnesses testified about Ury’s suspicious jail] on the street and crying ‘There was behaviors. Ury swore he was not part of no plot.’”14 Not only did most white New any conspiracy. Joseph Webb, a carpenYorkers not believe in the conspiracy, but ter, had enrolled his son in one of Ury’s even a Massachusetts jurist, Josiah Cotclasses. He befriended Ury and testified ton, published an anonymous open letter, that Ury was not a Catholic priest, but that read, in part:

“Freedom is a Must” Exonoree Wayne Gardine

Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

The design whereof [the letter] is to endeavor the putting an end to the bloodyTragedy that has been & I suppose still is acting amongst you in regard to the poor Negros and the Whites too. …5 Negros were executed in one day at the gallows, a favor indeed, for one next day was burnt at the stake, where he impeached several others…. Which with the former horrible executions among you upon this occasion puts me in mind of our own New England Witchcraft in the year 1692 Which if I don’t mistake New York justly reproached us for & mockt at our Credulity…. but finding that these 5 who were put to Death in July denied any Guilt, It makes me suspect that your present case, & ours are much the same, and that Negro and Spectre evidence will turn out alike. We had near 50 Confessors…. But I am humbly of Opinion that such confessions. unless some certain Overt Act appear to confirm the same are not worth a straw, for many times they are obtained by foul means, by force or torment,… by Discontent with their circumstances…. What other Fears have been performed to petrify your hearts against the poor blacks & some of your neighbors the whites, I cant tell. That the Whites should join with the Blacks, or that the Blacks (among whom there are no doubt some rational persons) should attempt the Destruction of a City when it is impossible they should escape the just & direfull Vengeance of the Countries round about, which would immediately & unavoidably pour in upon them & destroy them…. Possibly there have been some murmuring amongst the Negroes & a mad fellow or 2 has threatened & design’d Revenge, for the Cruelty & inhumanity they have met with, which is too rife in the English Plantations…And if that be all it is a pity there have been such severe animadversions.

And if nothing will put an end hereto till some of higher degree & better circumstances & Characters are accused (which finished our Salem Witchcraft) the sooner the better, lest all the poor People of the Government perish in the merciless flames of an imaginary plot.15 Many of the enslaved defendants began recanting their confessions; saying the other prisoners had told them that confessing and adding new names was the only way to save their own lives.16 “Cato advised me and Pedro to bring in many negroes, telling Pedro he’d be certainly burnt or hanged if he didn’t confess but if he brought in a good many, it save his life. I found it so myself. You must say you was to set your master’s house on fire. That’ll make the judges believe you.”17 There is no indication that the prosecutors disclosed the recantations to others facing charges or already convicted.

But it was too late for the executed. Thirteen Black men burned at the stake, Seventeen Black men hanged: Albany was burned at the stake; Ben was burned at the stake; Caesar (owned by Benjamin Peck) was burned at the stake; Caesar (owned by John Vaarck) was hanged; Cato (owned by Joseph Cowley) was hanged; Cato (owned by John Shurmur) was hanged; Cato (owned by John Provost) was hanged; Cook was burned at the stake; Cuffee (owned by Adolph Philipse) was burned at the stake; Cuffee (owned by Lewis Gomez) was burned at the stake; Curacoa Dick was burned at the stake; Fortune (owned by John Vanderspiegle) was hanged; Fortune (owned by William Walton) was hanged; Francis was burned at the stake; Frank was hanged; Galloway was hanged; Harry was hanged; Doctor Harry was burned at the stake; Juan de la Silva was hanged; Othello was hanged; Prince (owned by John Auboyneau) was hanged; Prince ( owned by Anthony Duane) was hanged; Quack (owned by John Roosevelt) was burned at the stake; Quack (owned by John Walter) was hanged; Quash was burned at the stake; Robin (owned by John Chambers) was burned at the stake; Tony was hanged; Venture was hanged; Will was burned at the stake; York was hanged; and one unnamed of the enslaved, owned by Benjamin Peck, committed suicide. 18

Well before this point, as they repeatedly used Mary Burton’s ever changing and ever-expanding testimony, the prosecutors knew or should have known – had to know – that they were suborning perjury and perpetrating a massive fraud. For the prosecutors to admit in the middle of all these trials, that their star witness was a liar would have meant admitting that the initial convictions were all accomplished through perjured testimony. This they could not or would not do. So, they conAmong the white people executed, John tinued with the capital trials of people they Hughson was hanged; Sarah Hughson had to know were innocent. As skepticism (the elder) was hanged; Peggy Kerry was grew, it was not just the common folk or a hanged; and John Ury was hanged. Massachusetts judge that disbelieved the existence of the plot. When the confessors Proposals to began to implicate some prominent white the Commission people, the investigation and prosecutions Prosecutors John Chambers and Joseph abruptly stopped. When the trials had Murray violated the New York Rules of ended and the sentences carried out, the Professional Conduct. Rule 8.4(g) bars New York’s Governor’s Council refused “unlawful discrimination”. Rule 3.3(a)(1) Horsmanden’s request that Burton be paid prohibits knowingly making a false stateher reward because they did not believe ment to a tribunal. Rule 8.4(d) provides her testimony. Continued on page 29

Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

Celebrate Wit h Us!

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NYSACDL

Annual Dinner 2024

January 18 Cipriani 25 Broadway

Join the NYSACDL Foundation and NYSACDL Officers and Directors in honoring our colleagues. Andrew Kossover, Esq. Lifetime Achievement Award Justine Olderman, Esq. Gideon Champion of Justice Award Richard Hoehler Justice Through the Arts Award

Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

Andrew Kossover, Esq. Lifetime Achievement Award Andrew Kossover, a partner in Kossover Law Offices (New Paltz), is a Past-President of the New York State Association of Criminal Defense Lawyers. He also served for many years as our Association’s Legislative Committee Chair with successful campaigns for Rockefeller Drug Law Reform and the new Article 245 Discovery Law among his proudest achievements. Mr. Kossover is also proud of his co-representation of former New Paltz Mayor Jason West, who was at the vanguard of the same-sex marriage movement by performing same-sex marriages prior to the landmark Supreme Court decision of Obergefell v. Hodges (2015). Mayor West was criminally charged for officiating the marriages, but all charges were ultimately dismissed by local jurists determining that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment; the same reasoning as the Hodges decision nine years later. Mr. Kossover recently completed his co-chairmanship of the New York State Bar Association’s Task Force on the Modernization of Criminal Practice. He is the Legislative Co-Chair of the State Bar’s Criminal Justice Section and Criminal Justice Chair of the State Bar’s new Cannabis Law Section. Mr. Kossover is the former Public Defender of Ulster County and is a Past-Chair of the State Bar’s Committee on Mandated Representation. Former Chief Judge Jonathan Lippman appointed Mr. Kossover to the Advisory Group for the New York State Justice Task Force on Wrongful Convictions on which, Andy still serves. Chief Judge Lippman, in appointing Mr. Kossover, referred to "Mr. Kossover's experience, insight, and expertise as valuable attributes that will assist the Task Force in achieving its important goals." Mr. Kossover is also a member of the adjunct faculty at the State University of New York at New Paltz where he has taught such courses as Criminal Law and Introduction to Law. He has lectured at Bard College and the United States Military Academy at West Point. From 2003 to 2013, he served as a member of the Committee on Character and Fitness for the Third Judicial District. Mr. Kossover is a former member of the Board of Directors of the New York State Defenders Association. Andy is also a Past-President of the Ulster County Bar Association.

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In 2015, Andy was awarded the Michele S. Maxian Award for Outstanding Public Defense Practitioner by the New York State Bar Association. The Award is named for the late Michele Maxian, a Legal Aid Society lawyer who spurred criminal justice reform in New York City. In 2020, Andy was honored to be named the recipient of the New York State Bar Association’s Denison Ray Criminal Defender Award named in memory of Denison Ray, a career legal activist who led legal services programs in New York and other states. The award is intended to recognize attorneys with institutional providers who exemplify the highest level of professionalism in providing skilled and zealous representation to indigent clients in criminal proceedings and inspire, mentor, and support colleagues. Andy attended SUNY Buffalo and Vermont Law School. Upon graduation, he immediately began the practice of law under the auspices of the Criminal Defense Division of the Legal Aid Society of New York (Kings County).

Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

Justine Olderman, Esq. Gideon Champion of Justice Award The New York State Association of Criminal Defense Lawyers is proud to honor Justine Olderman with the Gideon Champion of Justice Award. In her more than twenty years at The Bronx Defenders, she has embodied the spirit of this award. Justine has modeled client-centered, holistic advocacy in her years as a dedicated criminal defense attorney and has expanded the meaning of holistic defense through her leadership as the Executive Director. NYSACDL chose Justine for this award because of her dedication to reforming the system. Over the past several years she has built a powerful systemic reform department at the Bronx Defenders, that includes policy work, community organizing, impact litigation, and strategic communications. The department fights to address injustice across all holistic areas of practice. She has never been afraid to take on the necessary fights, even when closest to home. Justine was not content to let Bronx Defenders’ clients languish for years without trial because of the court congestion and delay, which was the norm in Bronx County. Instead, The Bronx Defenders filed a lawsuit against the Office of Court Administrators, risking the anger of the judges they appeared in front of daily, knowing that the outcome was worth the struggle. Similarly, Justine and The Bronx Defenders have spearheaded litigation against the City to challenge stop and frisk practices. They sought and received record settlements for the Mott Haven Collective after its members were subjected to rampant police violence during protests. And they have challenged the NYPD’s widespread violation of record sealing rules. Justine has been at the center of the fight for discovery and bail reform, the decriminalization of driving with a suspended license, and the legalization of marijuana. Under her guidance, members of The Bronx Defenders have played critical roles in drafting and passing these laws. The passage of Marihuana Regulation and Taxation Act was the end of the fight for most people, but for Justine and the Bronx Defenders it was only the beginning. They knew that without additional assistance, the licensing rules intended to support those impacted by marijuana prosecution would be useless, and so they did something about it. They created the Bronx Cannabis Hub and have successfully assisted in obtaining lawful licenses for impacted people. On behalf of the many people whom we all serve, and the continued fight to better the system that profoundly impacts our communities, NYSACDL names Justine Olderman as the Gideon Champion of Justice.

Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

Richard Hoehler Justice Through the Arts Award Richard Hoehler’s original theatre work (New Jersey/New York, Working Class, Human Resources, I of the Storm) have run Off Broadway, regionally, and abroad and he is the winner of the OOBR for Best Solo Performance. His full-length play, Fathers and Sons, was produced at the Lion Theatre on 42nd Street and his collection of 10-minute plays, Showdown, was recently presented at the Gerald W. Lynch Theatre. For thirty years, Hoehler has created theatre with at-risk teenagers, inmates, and the formerly incarcerated. Richard conducted creative writing workshops on Riker’s Island for over a decade and for the past fourteen years has led weekly theatre workshops at Otisville State Prison mounting eight productions on the inside during his tenure. In January of 2020, Hoehler founded Acting Out, a professional acting company for the formerly incarcerated in residence at HB Studio. Recent productions include This is This and Kid Stuff. Hoehler’s book, Acting Out: How a Prison Theatre Workshop Broke Free, will be published by Applause Books in the Fall of 2024. Other theatre work is published by Smith and Kraus and included in the Billy Rose Collection at Lincoln Center. Hoehler’s material has been optioned by Columbia Tri-Star Television and featured at the Midtown International Theatre Festival in Manhattan and Edinburgh Fringe Festival in Scotland. His newest solo work, E, was performed last year at the Hudson View Lounge and is scheduled for presentation by the Delaware Valley Arts Alliance in April of 2024.

Hoehler is an acting instructor at HB and an adjunct professor of Theatre and English at John Jay College and City College of New York.

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Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

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Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

Acquitted Conduct Sentencing

& The Constitution

Introduction

ell any person on the street a judge can sentence you based on acquitted charges at sentencing, and they might think you were a fool. But the joke would be on them. They wouldn’t realize the law makes a fool out of them and mockery of the Constitution. Justice Scalia wrote in a significant dissent:

By Karloff Commissiong Partner, Adams & Commissiong, Manhattan; NYSACDL member

The Sixth Amendment, together with the Fifth Amendment's Due Process Clause, ‘requires that each element of a crime’ be either admitted by the defendant, or ‘proved to the jury beyond a reasonable doubt.’ Any fact that increases the penalty to which a defendant is exposed constitutes an element of a crime…and ‘must be found by a jury, not a judge,’…It unavoidably follows that any fact necessary to prevent a sentence from being substantively unreasonable—thereby exposing the defendant to the longer sentence—is an element that must be either admitted by the defendant or found by the jury. It may not be found by a judge. See Jones v. United States, 574 U.S. 948 (2014). It’s time to end this travesty. Continued on next page

Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

Acquitted Conduct Continued from previous page

Use of Acquitted Conduct Erodes Bedrock Constitutional Principles For decades, federal courts have wrongly considered acquitted conduct at the time of sentencing. Courts have usurped the role of the jury, and disregarded their decisions, while applying the “preponderance of the evidence” standard to determine the range of a defendant’s conduct. This standard is a far lesser standard of proof than the “beyond a reasonable doubt” standard used at criminal trials. This is egregious and violates a defendant’s Sixth Amendment right to a trial by jury. As the Supreme Court recognized at one time: The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error...‘the preponderance test is susceptible to the misinterpretation that it calls on the trier of fact merely to perform an abstract weighing of the evidence In re Winship, 397 U.S. 358 (1970). Use of acquitted conduct at sentencing also violates the Double Jeopardy Clause of the Fifth Amendment, which protects defendants from a second prosecution for the same offense. See U.S. Const. Amend. V. It undermines basic principles of fairness, denying defendants their right to Due Process. The naïve might believe that the concepts of fair notice of the possible penalties after trial and due process are at the core of our criminal justice system. But the use of acquitted conduct at sentencing is a “green light” for judges to routinely violate the Constitution. In order for defense attorneys to truly win in federal court, they need to become some combination of Perry Mason and Ben Matlock, perfect in every way, obtaining

full acquittals on every count charged in an indictment. Anything less than perfect leaves clients to the whims, hunches and feelings of district court judges.

A Proposed Amendment to the Guidelines Barring Use of Acquitted Conduct – Does it Really Solve the Problem? District courts use §1B1.3 of the United States Sentencing Guidelines (Guidelines) as the vehicle to consider acquitted conduct at sentencing, although acquitted conduct is not specifically mentioned. The Supreme Court has provided judges with the necessary cover to engage in this practice, by holding that, “a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.” United States v. Watts, 519 U.S. 148 (1997). The United States Sentencing Commission has been considering an amendment to §1B1.3 that would purport to prevent federal judges from considering acquitted conduct in the calculation of a defendant’s Guidelines range. However, this gives the illusion that judges would no longer be able to consider acquitted conduct at sentencing. Under §1B1.3 a sentencing court may consider, all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all acts and omissions of others that were within the scope of the

jointly undertaken criminal activity, in furtherance of that criminal activity, and reasonably foreseeable in connection with that criminal activity; that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense… [and] all harm that resulted from the acts and omissions…and all harm that was the object of such acts and omissions See U.S.S.G. §1B1.3(a)(1)(A)-(B). The proposed amendment would state: acquitted conduct shall not be considered relevant conduct for purposes of determining the guideline range unless the conduct was admitted by the defendant during a guilty plea colloquy or was found by the trier of fact beyond a reasonable doubt to establish, in whole or in part, the instant offense of conviction. The new provision would define “acquitted conduct” as conduct underlying a charge of which the defendant has been acquitted by the trier of fact or upon a motion of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure or an analogous motion under the applicable law of a state, local, or tribal jurisdiction.1 The proposed amendment is a meaningless gesture, misleading the public into believing that this is a significant step in the right direction. But the Sentencing Guidelines are only advisory, and as a result, a district court judge is not bound by them at sentencing. Pursuant to 18 U.S.C. §3553(a), a district court judge can consider at sentencing, any information regarding the defendant’s history and background, as well as the nature and circumstances

Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

of the offense. See 18 U.S.C. §3553(a) (1). Short of a mandate from the Supreme Court to the contrary, judges will still be able to consider acquitted conduct, even if the Sentencing Commission adopts the proposed amendment.

Devastating Consequences of the Use of Acquitted Conduct An example of the destructive effects of this insidious practice is the case of Dayonta McClinton. Dayonta McClinton v. United States, 21-1557. The Supreme Court is deciding whether to hear arguments in his case, where acquitted conduct was used at his sentencing. McClinton and his co-conspirators, including Malik Perry robbed a CVS of cash and drugs. They subsequently drove to a nearby alley where McClinton and Perry began arguing over how to divide the proceeds of the robbery. As a result of that argument, McClinton shot and killed Mr. Perry. In connection with the robbery of the CVS, McClinton was charged with one count of conspiracy to commit a Hobbs Act Robbery in violation of 18 U.S.C. §1951(a) and one count of brandishing a firearm during that robbery, in violation of 18 U.S.C. §924(c)(1)(A)(ii). Prosecutors also charged McClinton in the killing of Perry, with an additional count of Hobbs Act Robbery (for stealing Perry’s cut of the robbery) as well as one count of causing Perry’s death through the use of a firearm during that robbery, in violation of 18 U.S.C. 924(j)(1). McClinton was convicted after a jury trial for the robbery and brandishing counts related to the CVS robbery but acquitted of the counts related to the robbery and murder of Perry. Probation calculated his initial, total Guidelines range at 141-155 months. McClinton’s base offense level on the Hobbs Act Robbery conviction was 23,

and defending the Constitution, has opresulting in a Guidelines range of 57-71 months, to run consecutive to the Guide- posed implementation of the proposed lines range on the brandishing conviction, amendments. During a hearing on the matter before the Sentencing Commis84 months. However, despite McClinsion, Jessica Aber, U.S. Attorney for the ton’s acquittal on the counts related to Eastern District of Virginia, testified, that, Perry’s killing, Probation considered “Curtailing courts' discretion to consider that conduct and increased his base conduct related to acquitted counts would offense level from 23 to 43, resulting in be a significant departure from longa Guidelines range of Life. McClinton’s standing sentencing practice, Supreme adjusted Guidelines range, accounting for the statutory maximum on the Hobbs Court precedent and the principles of our guidelines…[and] will result in sentences Act Robbery was 240 months, consecutive to the 84 months on the brandishing that fail to account for the full range of a conviction for a total Guidelines range of defendant's conduct.”2 324 months. Unfortunately for the public, the Justice Department believes that the jury is McClinton’s attorneys argued that the just an audience, as opposed to the vital, District Court would violate his Fifth and Sixth Amendment rights, if it adopt- constitutionally authorized participants they actually are. The Justice Departed Probation’s findings and considered ment has made sure that our garden of the acquitted counts related to Perry’s justice has been overrun by the weeds killing. However, the District Court of this Unconstitutional practice. The rejected those arguments and adopted Probation’s findings. In what has become Supreme Court must uproot these weeds and finally end this practice. a dangerously common occurrence in federal court, the District Court declared Conclusion that it did not matter whether McClinton was acquitted of the murder, and it Are we fools to believe that the Constitudid not even matter who actually fired tion is the bedrock of our society? That it the weapon. undergirds, fuels and inspires who we are and the kind of country we aspire to be. Applying U.S.S.G. §1B1.3(a)(1)(A)-(B), Are we fools to believe that the injustice the District Court declared that because of acquitted conduct sentencing is an McClinton participated with others in a idea that no wise man has the power to robbery in which someone died, his acts reason away? We’re not fools. As Justice and those of his co-conspirators during Scalia stated in Jones, “This has gone on that robbery constituted relevant conlong enough.” And it has. duct. McClinton was sentenced to 228 months imprisonment. According to the District Court, its decision to consider 1 Proposed Amendments to the Sentencing Guidethe acquitted counts did not conflict lines (Preliminary), United States Sentencing with the jury’s verdict. What a fool Commission, January 12, 2023. believes indeed! The Supreme Court has 2 Raymond, Nate. “U.S. Justice Department urges yet to decide whether to grant Certiorari. panel not to limit 'acquitted conduct' sentenc-

Executive Branch Support for an Unconstitutional Practice

ings”. Reuters. February 24, 2023.

The Justice Department, an agency tasked with seeking justice, protecting the public

Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

common misbelief among prosecutors, defense attorneys, and trial judges is that the period during which a pre-trial motion is pending does not count in computing the time within which the prosecution must be ready for trial pursuant to New York’s statutory speedy trial statute– 1 Criminal Procedure Law § 30.30. Pre-trial motions, they think, will “stop” the 30.30 clock for any delay, no matter what type it is or whether the delay has any relevance to the motion at issue. The goal of this article is to explain why such thinking does not comport with the language of the statute.

Pretrial Motions

30.30 Clock

and the

To begin, CPL 30.30 (4) (a) – the excludable time provision for pretrial motions – only entitles the prosecution to exclude a particular type of delay. Unlike a number of other excludable time provisions, Subdivision 4 (a) does not exclude periods in general. Instead, 4 (a) only excludes delay to the extent that it resulted from the pre-trial motion. What many practitioners fail to recognize, however, is that different types of delay in the prosecution’s trial readiness may occur at the same time. For example, during the pendency of a pre-trial motion, the prosecution will need time to respond to the motion and, at the same time, may need to provide the defense with discovery. Given its statutory language, Subdivision 4 (a) only allows the prosecution to exclude from the 30.30 calculation the delay that is attributable to the pre-trial motion. The other delay, the prosecution’s failure to provide discovery, does not result from the pre-trial motion and, therefore, may not be excluded pursuant to 4 (a). The other delay remains chargeable to the prosecution; and the 30.30 clock “keeps on ticking” even though a pre-trial motion is pending during that period.

By Drew R. DuBrin

Drew R. DuBrin Special Assistant Public Defender (Appeals), Monroe County Public Defender's Office, NYSACDL Board of Directors

The basics CPL 30.30 requires the prosecution to establish its readiness for trial within statutorily specified periods2. If it fails to do so, the defendant will be entitled to dismissal of the accusatory instrument under Subdivision 1 or release from custody under Subdivision 2, depending on the statutorily imposed deadline not met.3

Excludable time Some “periods” or “periods of delay” do not count in computing the time within which the prosecution must be ready for trial under CPL 30.30. What is to be excluded is largely determined by 30.30’s excludable time provisions, found under Subdivision 4. Also to be excluded are periods during which the defendant has “waived” 30.30 rights either by executing an unambiguous 30.30 waiver or by requesting, or consenting to, an adjournment during the period.4 Further, an Executive Order issued during a state of an emergency may result in excludable time.5

Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

Subdivision 4 (a)

In People v Collins,14 the Court of Appeals yet again construed the “resulting CPL 30.30 (4) (a) provides that “[i]n from” language – this time to hold that computing the time within which the the prosecution could not exclude under people must be ready for trial . . .” to The defendant in Sturgis had left the Subdivision 4 (a) the period of delay durbe excluded is “a reasonable period of jurisdiction during the period prior to her ing which the case was “adjourned” for delay resulting from other proceedings indictment and was “absent” throughout transferring to an Individual Assignment concerning the defendant, including . . . the pre-indictment period within the Systems (IAS) Part of the Supreme Court. pre-trial motions” (emphasis added). Of meaning of CPL 30.30 (4) (c). The pros- The prosecution sought exclusion of that note, the provision specifically identifies ecution argued that its delay in readiness – period theorizing that such a transfer was what type of delay is to be excluded: the its delay in indicting the defendant – was an “antecedent to the defendant making “period of delay” that “results from” other excludable pursuant to 4 (c) because the pretrial motions and that the delay was proceedings concerning the defendant, defendant was “absent” during the period. thus excludable under CPL 30.30 (4) (a).” including pre-trial motions. Other exThe Court of Appeals rejected the arguThe Court of Appeals rejected the theory cludable time provisions – namely 4 (b), ment because the type of delay at issue holding that the type of delay at issue 4 (c), and 4 (e) – similarly identify the – in filing an indictment – had not been (the adjournment for the IAS part transtype of delay to be excluded: the “period caused by the defendant’s absence. It fer) was not “attributable to” (i.e., did not of delay resulting from” a particular act explained: “To be excludable under CPL result from) pre-trial motions: or event. 30.30, (subd 4, par [c]) there must be “As to the People’s argument that Other excludable time provisions describe more than mere absence or unavailability. the adjournment was excludable as Explicitly under the statute, delay must what is to be excluded quite differently. a delay ‘resulting from ... pre-trial result therefrom. Defendant’s absence... They refer to a “period,” not a “period of motions’ (CPL 30.30 [4] [a]), the redid not result in a delay, attributable to delay.” And they do not use the phrase cord is entirely devoid of any suggesher, since the finding of the indictment “resulting from.” Those provisions identify tion that the adjournment was made was in no way impeded or prevented by the delay to be excluded as “the period 10 for the purpose of defense motions the absence.” during which” or “the reasonable period or even for the purpose of setting up when” an act or event occurs or “the peSturgis’s interpretation of 4 (c)’s “delay 6 a motion schedule. To accept the riod prior to” an act or event occurring. resulting from” sparked amendment to 4 People’s argument that the adjourn(c) to eliminate the requirement that the What is meant by 4 (a)’s phrase “delay ment was an excludable motiondefendant’s absence cause the delay where resulting from”? Rules of statutory related delay because transfer to an a bench warrant is issued.11 Notably, the construction tell us that the phrase must IAS Part was a condition precedent legislature did not make a similar amendbe given effect – and cannot be written to any defense motion which might ment to 4 (a) and left intact its requireoff as superfluous – especially in light later be made falls outside of a fair ment that the delay to be excluded “result of the legislature’s use of the phrase in reading of the statutory language.”15 from” another proceeding concerning some of the excludable time provisions the defendant. The Court further explained that 4 (a)’s but not others.7 Moreover, because the phrase “delay resulting from . . . pre-trial phrase has a plain and ordinary meanNine years later, in People v Anderson,12 motions” “generally refers to delays ating – “to be caused by” or “attributable to” the Court of Appeals again gave the 8 tributable to responding to and deciding – it must be given that meaning. Sure “resulting from” language effect and motions actually made . . . .16 enough, this is how appellate courts have construed it as commonly understood. construed the phrase. The Court stated that the excludable time In People v Santana,17 the Court of Appeals again recognized the 4 (a)’s provisions that include the “resulting Consider the seminal case of People v 9 requirement that the delay sought be Sturgis. In Sturgis, the Court of Appeals from” language – (4) (a), (b), (c), and (e) – allow for the exclusion of delay excluded “result from” the other proceedwas called upon to interpret the 4 (c) only to the extent that the delay “directly ing concerning the defendant. There, the excludable time provision, which allows ‘results from’ the action taken by the Court explained that where there are for the exclusion of “the period of delay competency proceedings involving the deresulting from the absence . . . of the defen- defendant” – whether it is the filing of a pre-trial motion (4 [a]), the requesting of, fendant, “[i]t is the delay resulting from dant” (emphasis added). Applying statuor consenting to, an adjournment (4 [b]), defendant’s determined condition and tory construction principles, the Court of 13 status as an incapacitated person and, as or the failing to appear (4 [c], [e]). Appeals determined that the legislature such, his unfitness to proceed to trial that intended for the phrase “resulting from” to mean something – that it cannot be ignored – and construed the phrase as it is commonly understood.

Continued on next page Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

30.30 Clock Continued from previous page is exempted from the time limitation.”18 The Appellate Division has similarly given 4 (a)’s “resulting from” language its plain and ordinary meaning. In People v Roscoe,19 the Fourth Department rejected the prosecution’s contention that the defendant’s Wade motion made excludable its delay in providing Grand Jury minutes to the court for inspection. The Fourth Department explained that the Wade motion had not “impair [ed] the People’s readiness,” i.e., caused the delay in furnishing the court with the minutes.20 Thus, the Fourth Department held that 4 (a) did not entitle the People to exclude such delay.21 Giving effect to the “delay resulting from” language finds further support in lawmakers’ selective use of the phrase. The legislature did not use such language in Subdivisions (4) (f ), (h), (i), and (j). Instead, these subdivisions entitle the prosecution to exclude: • 4 (f ) - “the period during which the defendant is without counsel through no fault of the court”; • 4 (h) - “the period during which an action has been adjourned in contemplation of dismissal”; • 4 (i) - “the period prior to the defendant’s actual appearance for the arraignment in a situation in which the defendant has been directed to appear by the district attorney pursuant to [CPL 120.20 (3)] or [CPL 210.10 (3)]”; and

It could have used language it adopted in [Subdivisions (4) (f ), (h), (i), and (j)].”22 That is to say, the legislature could have used alternative language and could have described the delay to be excluded as the “period during which” pre-trial motions are pending or under consideration. That the legislature did not use this alternative language is evidence that it intended for the provisions using the phrase “resulting from” to be construed differently from those that do not, with the phrase “resulting from” being given effect.23 In the same way, the Subdivision 4 (a) excludable time provision differs from the common law principle of waiver, which permits exclusion of delay regardless of whether the delay resulted from an act of the defendant. Where the defense has requested, or consented to, an adjournment for purposes of filing motions, the defense will be deemed to have “waived” the delay over the adjourned period, irrespective of whether the adjournment or the pre-trial motions caused any delay over that period.24 Keep in mind, the mere filing of a pre-trial motion is not tantamount to a request for or the consent to an adjournment – i.e., a postponement of a proceeding.25

Delays in complying with discovery compliance or filing a proper certificate of compliance

What does this mean for delay in complying with discovery obligations pursuant to CPL 245.20 or in filing a proper certificate of compliance pursuant to CPL 245.50? It has been expressly recognized that such delay does not “result from” the • 4 (j) - “the period during which a filing of an omnibus motion, such that family offense is before a family court.” the delay could be excluded pursuant to Subdivision 4 (a). As the court in People If the legislature wanted to make the v Otero26 explained: “Many of the CPL period during which pre-trial motions 30.30 exclusions . . . deal with delays that were pending excludable irrespective of have no impact on the People’s ability to whether any delay during that period was provide discovery. For example, delays caused by the motions, it “had only say so.

relating to defense motion practice (CPL 30.30 [4] [a]) . . . have no bearing on the People’s ability to gather information and provide it to the defense.”27 On the other hand, a prosecution’s pretrial motion for a CPL 245.70 discovery protective order may result in delay in providing CPL 245.20 discovery such that the delay is excludable pursuant to 4 (a). In People v Torres,28 the First Department held that the proseuction’s motion for a discovery protective order renders the ensuing delay in providing discovery excludable from the 30.30 calculation pursuant to (4) (a). In so holding, the First Department construed 4 (a)’s “resulting from” language just as lawmakers intended – to require a causal link between the pre-trial motion and the type of delay at issue. The motion for a protective order gave the prosecution reason to postpone providing discovery and filing a certificate of compliance with discovery obligations until the court decided the motion. The motion for a protective order, thus, “resulted” in the delay in providing the discovery and in filing a certificate of compliance, and the delay was excludable under 4 (a).

Different delays occurring at the same time During any given time frame, there can be more than one reason why the prosecution is not ready for trial. In other words, there may be different types of delay occurring at the same time. For instance, there may be the delay in responding to an omnibus motion, the delay in filing a valid accusatory instrument, or the delay in providing discovery. Some delay may result from a pre-trial motion and be excludable pursuant to 4 (a), while other delay, occurring at the same time, may be entirely independent of the pre-trial motion and thus not be excludable under 4 (a). Where there are multiple types

Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

of delays occurring at the same time, the prosecution can avoid being charged with the period pursuant to 4 (a) only if all the delays are excludable pursuant to 4 (a). If any delay is independent of the pre-trial motion, the period will remain chargeable to the prosecution.

the prosecution’s control – such as the delay in responding to the motion – the exclusion of which is consistent with the objectives of 30.30.32 But to have a pre-trial motion completely stop the 30.30 clock and to relieve the prosecution of continuing to get ready for trial to the extent it can would only encourage prosecutorial inertia in contravention of 30.30’s objectives33 – whether it is by sitting on discovery, not replacing a defective accusatory, or putting the investigation on hold.

valid accusatory did not “result from” the filing of the suppression motion. Thus, only the delay in responding to the motion to suppress is excludable from the calculation pursuant to (4) (a). The period of delay in filing a valid accusatory instrument remains because it is independent of the pre-trial motion and is thus chargeable to the prosecution, even though the delay in responding to the motion, occurring at the same time, must be excluded.

People v Roscoe29 is a good case in point. There, the Fourth Department held that the period during which there was unreasonable delay in providing Grand Jury minutes to the court for inspection was Scenario 3 chargeable to the prosecution because On May 1, 2022, the defendant was such delay did not result from the defen- Consider the following fact patterns: charged with an invalid accusatory instrudant’s Wade motion and was therefore Scenario 1 ment but, through no fault of the court, not excludable pursuant to (4) (a). The A defendant moved to suppress on May 1, failed to retain counsel. 90 days passed, court so held, even though, over the same 2022. The prosecution did not respond the accusatory remained invalid, and the period, there was other, excludable delay to the motion until May 10, 2022 and defendant had not yet engaged counsel. associated with the defendant’s Wade mo- were consequently unready for trial durtion, i.e. the delay in responding to the ing that period. The prosecution is perIn this scenario, the prosecution is defendant’s Wade motion. The Third De- mitted to exclude that delay – the delay permitted to exclude the entire 90 day partment had a similar holding in People in responding to the motion to suppress time frame. Pursuant to CPL 30.30 (4) 30 v Johnson. There, the Third Depart– as reasonable delay “resulting from” the (f ), the prosecution is entitled to exclude ment held that a delay in trial readiness defendant’s “pre-trial motion” pursuant “the period during which the defendant is due to the prosecution’s failure to provide to (4) (a). Because the only delay ocwithout counsel through no fault of the the court with Grand Jury minutes curring between May 1st and May 10th is court.” Under the plain language of the was chargeable to the prosecution even excludable, there is no delay chargeable provision, the prosecution can exclude though, over the same period, there were to the prosecution during that period. the period during which the defendant is other pre-trial motions pending, resultwithout an attorney, whether or not the ing in another type of delay that was exScenario 2 prosecution’s delay in readiness during cludable (the delay in responding to the A defendant is charged on April 1, 2022 by the period resulted from the defendant’s other motions). The Third Department way of a defective accusatory instrument. lack of representation. explained its reasoning: “Regardless of On May 1, 2022, the defendant moved whether other motions are under consid- to suppress evidence while the charging The analysis eration by the court, the court’s inability instrument continued to be defective. On A pre-trial motion does not stop the to determine the threshold motion to June 1, 2022, the prosecution responded 30.30 clock for every type of delay. Indismiss creates a direct impediment to to the motion to suppress, while the acstead, it merely entitles the prosecution the commencement of the trial”31 cusatory instrument was still defective. to exclude certain delay, depending on whether the pre-trial motion is somehow There is good policy behind the legislaThis scenario presents two types of delay responsible for the delay. Where a preture’s decision to limit the 4 (a) exclusion in trial readiness occurring at the same trial motion causes delay over a period to the particular delay resulting from the time – the delay in responding to the pre-trial motion and not have it extend motion to suppress and the delay in filing but over the same period there is other delay that is wholly independent of the to all types of delay occurring during the a valid accusatory instrument. But only pre-trial motion, the prosecution may pendency of the of the motion, irrespecone type of delay – the period of delay in under 4 (a) exclude only the delay that tive of whether it resulted from the responding to the motion to suppress – the pre-trial motion caused. Any delay pre-trial motion. No doubt, a pre-trial “resulted from” the defendant’s “pre-trial that does not result from the pre-trial motion causes some delay that is beyond motion.” The period of delay in filing a

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30.30 Clock Continued from previous page motion is not excludable under 4 (a) and will remain chargeable to the prosecution unless it can be excluded under another excludable time provision, principles of waiver, or an Executive Order. How do we determine if a “period of delay” is excludable under 4 (a)? Step one: Identify the type of delay at issue. Determine how the prosecution is not ready for trial. Has the prosecution not yet responded to the pre-trial motion? Has the prosecution not filed a valid certificate of compliance with discovery obligations? Is there no valid accusatory instrument? Has the prosecution failed to locate a key witness or obtain lab test results? Step two: Identify the pre-trial motion at issue. Is it an omnibus motion? Is it a motion challenging the validity of a certificate of compliance? Is it a motion of the prosecution seeking a discovery protective order? Step three: Determine whether the pre-trial motion in any way caused the delay at issue. For instance, if the delay at issue is the delay in providing discovery, and the motion at issue is a suppression motion, then determine if the suppression motion impaired the prosecution’s ability to comply with its discovery obligations or gave it reason to postpone complying. If it is determined that the type of delay at issue is independent of the pre-trial motion, then such period of delay is not excludable pursuant to 4 (a).

See The Pop History Dig, “… Keeps on Ticking,” available at: https://pophistorydig.com/topics/keeps-onticking-1950s-1990s

CPL 30.30 (1), (2) Id. 4 People v Waldron, 6 NY3d 463 (2006); People v 2

Meierdierks, 68 NY2d 613, 614-615 (1986); People v Kopciowski, 68 NY2d 615, 617 (1986); People v Worley, 66 NY2d 523 (1985) 5 People v Hill, 209 AD3d 1262 (4th Dept 2022) 6 CPL 30.30 (4) (d), (f ), (h), (i), (j) 7 Statutes Law § 231; (Fox v Town of Geneva Zoning Bd. of Appeals, 176 AD3d 1576, 1578 (4th Dept 2019) 8 See People v Holz, 35 NY3d 55, 59 (2020); People v Sturgis, 38 NY2d 625 (1976); see also People v Parris, 79 NY2d 69 (1992) 9 38 NY2d 625 10 38 NY2d at 628; see also People v Callender, 101 Misc 2d 958, 960 (Crim Ct 1979) (“TheSturgis case therefore stands for the proposition that, in order for time to be excludableas resulting from the defendant’s conduct, such conduct must have contributed to the failure of the People to answer that they were ready for trial”) 11 People v Bolden, 174 AD2d 111, 114 (2d Dept 1992) (explaining that Sturgis strictly construed the “resulting from” language, prompting a legislative change only with respect to Subdivision 4 [c], to eliminate the “resulting from” requirement where a bench warrant has been issued for an escaped or absconding defendant) 12 66 NY2d 529 (1985) 13 66 NY2d at 536 14 82 NY2d 177 (1993) 15 Collins, 82 NY2d at 181 (emphasis added) 16 Id. (emphasis added) 17 People v Santana, 80 NY2d 92 (1992) 18 80 NY2 at 102 19 210 AD2d 1003 (4th Dept 1994) 20 210 AD2d at 1004 21 Id.; see also People v Rodriguez, 214 AD2d 1010 (4th Dept 1995) 22 People v Miller, 18 NY3d 704, 709 (2012) 23 Fox, 176 AD3d at 1578 24 People v Worley, 66 NY2d at 523, 525, 527, 528; see also Kopciowski, 68 NY2d at 617 (“Where adjournments are allowed at defendant’s request, those periods of delay are expressly waived in calculating the People’s trial readiness, without the need for the People to trace their lack of readiness to defendant’s actions” [emphasis added]) 25 ADJOURN Definition & Meaning - Black&#39;s Law Dictionary (thelawdictionary.org); see also People v Barden, 27 NY3d 550, 554 (2016), People v Smith, 82 NY2d 676 (1993), People v Cortes, 80 NY2d 201 (1992), and People v Liotta, 79 NY2d 841, 843 (1992) (holding that an adjournment will waive 30.30 rights only if the record shows that the defendant has unambiguously requested, or consented to, the adjournment on the record; such a request or consent to an adjournment may not be inferred from the mere fact that the adjournment was in the defendant’s interest) 26 70 Misc 3d 526 (NY City Ct 2020) 27 Id. at 530 28 205 AD3d 524 (1st Dept 2022) 29 210 AD2d 1003 30 42 AD3d 753 (3d Dept 2007) 31 42 AD3d at 754 32 See People v McKenna, 76 NY2d 59, 63 (1990) (“statute was intended only to address delays occasioned by prosecutorial inaction”) 33 People v Price, 14 NY3d 61, 64 (2010)

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.

Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

Conspiracy Trials Continued from page 15 that “a lawyer shall not engage in conduct that is prejudicial to the administration of justice or engage in any other conduct that adversely reflects on the lawyer’s fitness as a lawyer.” Disciplinary Rule 7-102 prohibits an attorney from using perjured testimony or false evidence. Disciplinary Rule 7-103(b) requires a prosecutor to timely disclose evidence (such as a recantation) that tends to negate the guilt of the accused.19 The Commission on Prosecutorial Conduct should recommend to the First Department Grievance Committee that John Chambers and Joseph Murray be posthumously disbarred. It should recommend to the Governor of New York that all those convicted of participating in the conspiracy be posthumously pardoned.20 It should recommend to the New York Attorney General, whose colonial predecessor oversaw the 1741 prosecutions,21 that the descendants of all those convicted be located and that discussions and negotiations occur with them to establish just reparations including compensation following pardon under New York’s Unjust Convictions and Imprisonment Act (Court of Claims Act Section 8-b)22; and that the legislature and governor enact those recommendations that go beyond financial compensation, including criminal law reform. It should be recommended to the New York City Council that Chambers Street and Murray Street either be renamed to convey the memory of Chambers’ and Murray’s victims and/or a series of historical signs be posted at frequent intervals along both streets to explain who these men were and what they did. It should be recommended to the Historical Society of the New York Courts that they include John Chambers role in the 1741 legal lynchings in their biographic entry for him, of which there is currently no mention.23

It is hoped that this complaint will not be dismissed as merely a terrible story from a bygone era. The present is always the result of the past. If we fail to admit, confront and rectify the past tragedies of our history, we will be unable to understand the context and roots of the problems we seek to address today. That will result in a continuing failure to achieve humane change. Just as slavery transitioned into Jim Crow in the South, it morphed into Jim Crow sub silentio in the North – a system whose tentacles continue to reach deep into all our institutions, not the least of which are the criminal legal ones. This complaint focuses on Chambers and Murray because they were honored with two of New York City streets being named for them; honors that should not be allowed to continue. However, this focus in no way implies that posthumous disbarment should not also be applied to other bad actors such as the attorney general and the presiding judge. Though the misconduct occurred 282 years ago, New York has no statute of limitations on attorney grievances. 2 This complaint is made by Russell Neufeld, a retired New York attorney. The views expressed here are solely his own. 3 The historical facts of the events in this complaint, but not the analysis, are based primarily on two books: A Rumor of Revolt, by Thomas J. Davis, The Free Press, New York, 1985; and New York Burning by Jill Laporte, Vintage Books, New York, 2005. Both authors, unfortunately, are swayed by the contents of obviously false confessions contained in the self-aggrandizing, self-justifying publication by the presiding judge, Daniel Horsmanden in 1744, A Journal of the Proceedings in The Detection of the Conspiracy Formed By Some White People, in Conjunction with Negro and other Slaves For Burning the City of New York in America, And Murdering the Inhabitants. See, Gudjohsson, The Psychology of Interrogations and Confessions, John Wiley & Sons, Chichester, 2003. 4 Slave owners took a perverse pleasure in denying, disregarding and disrespecting the actual birth names of their slaves, given by their parents, and giving them slave names. These were frequently drawn from ancient nobility, much as one might name a dog “Duke”. So among those prosecuted, in addition to John Varick’s slave Caesar, were Joseph Murray’s slave Caesar and four other Caesars. The defendants included four Catos and four Princes. They were differentiated by being referred to by their owners’ names, as in “Murray’s Caesar.” Others of the enslaved who were born and kidnapped from Africa were called by Anglicized versions of their African names, such as “Quack.” 5 Rumor of Revolt, pgs. 17 – 18.

Rumor of Revolt, p. 160. Daniel Horsmanden became a lawyer in London, but was refused admission to the London bar. He moved to Virginia, where he was also refused admission. Moving to New York, he was finally admitted to practice, but couldn’t make a living at it; so he ingratiated himself to the ruling Court party and got himself appointed to a judgeship. He was eventually made Chief Justice of the New York Supreme Court; a post he held until the Revolution. 8 Rumor of Revolt, p. 187. 9 Rumor of Revolt, p. 191. 10 Rumor of Revolt, pgs. 195 – 196 11 New York Burning, pgs. 176, 195. 12 Rumor of Revolt, p. 198. 13 New York Burning, p. xviii. 14 New York Burning, p. 202. 15 The entire letter is on pages 203-205 of New York Burning. 16 Rumor of Revolt, pgs 178 – 179. 17 Rumor of Revolt, p. 158. 18 A full listing of all the dispositions is in New York Burning, Appendix B. 19 While the cited violations are contained in the modern Code of Professional Conduct, much of the 1741 misconduct was criminalized at that time. A prosecutor’s subordination of perjury was a serious crime, punishable by fine, imprisonment, “never more to be capable of bearing testimony” and the “penalty of perpetual infamy.” Subornation in a capital case, such as here, resulted in even more serious penalties. Blackstone, Commentaries on the Laws of England, vol. 4, pgs. 136-138, 196-197, University of Chicago Press, Chicago, 1979. To the extent that the misconduct reflects more modern restrictions, they are civil, not criminal and not normally violative of ex post facto constraints. Such heinous forms of behavior have, also, long be held as exceptions to ex post facto prohibitions. See, the Nuremburg International Military Tribunal, 1946-7, which prosecuted Nazi leaders under the newly created, Crimes Against Humanity. 20 All those convicted in the Salem witchcraft trials, both those executed and those not, were posthumously pardoned by the governors and legislatures of the State of Massachusetts. The final pardon, of Elizabeth Johnson, was granted in 2023, 329 years after she was sentenced to death. 21 The first New York State Constitution of 1777 explicitly continued the colonial laws, courts and legal system, making attorney general Bradley a direct predecessor of the present attorney general. 22 The Act was specifically held to grant compensation to those who had made false confessions. Warney v. State of New York, 16 NY3d 428 (2011). 223 The current entry for Chambers focuses on his time as a judge and his role defending John Peter Zenger in the case that laid the basis for the First Amendment freedom of the press. Chambers was appointed by the Court to represent Zenger after the judges had dismissed his retained counsel in retaliation for challenging the Court’s jurisdiction. He was replaced by new, retained counsel before he ever actually defended Zenger. 6

Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

CLE MIKE BAKER & ANDRE VITALE, CO-CHAIRS, CLE COMMITTEE

NYSACDL is noted for our innovative, interesting and informative CLE programs, which we present at various locations around the state each year. Seminar Registration & information (as of 12/27/23 - subject to change) www.nysacdl.org Questions? Call the NYSACDL office at (518) 443-2000 or email jlvanort@nysacdl.org

2024 Seminars

Law @ Lunch 2024: People V. Bay Zoom webinar with Drew DuBrin, Esq. Thursday, January 25

2024 Trial Academy - Opening Zoom webinars with Xavier Donaldson, Esq. Monday, April 22 & Monday, May 6

2024 Regional Seminars: Capital Region Friday, March 8, Albany, NY

Defending a Murder Case II Friday, May 17, Buffalo, NY

Law @ Lunch 2024: Clean Slate and other Sealing Statutes Zoom webinar with Paul Keefe, Esq. Thursday, February 8

2024 Trial Academy: Cross Examination Zoom Webinar With Rob Wells, Esq. Monday, May 20 & Monday, June 3

2024 Trial Academy - Evidence & Objections Zoom webinar with Adam Shlahet, Esq. and Steve Epstein, Esq. Monday, March 11

Constitution and the Courts Friday, May 31 – For attendees of NYSACDL Supreme Court Large Bar Admission Washington, D.C.

Cross to Kill 2024 Thursday, March 14, 2024, New York, NY 2024 Trial Academy - Jury Selection Zoom webinars with Rob Wells, Esq. Monday, March 25 & Monday, April 8 2024 Regional Seminars: Southern Tier Friday, April 19, Binghamton, NY

An Update on Criminal Defense Practice in New York “Something Old, Something New, Something Borrowed and Something Blue” Saturday, June 8 & Sunday, June 9 Hartwick College, Oneonta, NY 2024 Trial Academy: Closing Statements Zoom webinars with Xavier Donaldson, Esq. Monday, June 24 & Monday, July 8 Racial Justice Seminar Friday, September 27 New York, NY 2024 Regional Seminars: Central New York & 2024 Mock Trial Competition Finals Friday, October 18 & Saturday, October 19, Syracuse, NY Superstar Trial Seminar 2024 Friday, November 1, Buffalo, NY Weapons for the Firefight 2024 Friday, December 6, New York, NY

Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

Join the C ommittee

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

Chair: Stephen Preziosi Vice Chair: Claudia Trupp Members: Alan Lewis, Timothy Murphy, Donald Rehkopf, Claudia Trupp, Richard Willstatter

ANNUAL DINNER COMMITTEE

LEGISLATIVE COMMITTEE

Chair: Kevin Stadelmaier Vice Chair: Yung-Mi Lee Members: Steve Epstein, Alice Fontier, Andrew Kossover, Leanne Lapp, Greg Lubow, Amy Marion, Brian Melber, Eli Northrup, Jill Paperno, Sherry Levin Wallach

Chair: Jessica Horani Vice Chair: Kevin Stadelmaier Members: Steve Epstein, Alice Fontier, Renee Hill, Andy Kossover, Yung-Mi Lee, Lindsay Lewis, Brian Melber, Claudia Trupp

MEMBERSHIP COMMITTEE

BY-LAWS AND GOVERNANCE COMMITTEE

MENTAL HEALTH & DISABILITIES

Chair: Brian Melber Members: Yung-Mi Lee, Alan Lewis, Timothy Murphy

CONTINUING LEGAL EDUCATION COMMITTEE Chairs: Michael Baker, Andre Vitale Vice Chair: Renate Lunn Members: Samuel Braverman, Lori Cohen, Steven Epstein, John Ingrassia, Andy Kossover, Jessica Kulpit, Yung-Mi Lee, Peter Mitchell, Jill Paperno, Adam Shlahet, Kevin Stadelmaier, John S. Wallenstein, Rob Wells

DIVERSITY, EQUITY & INCLUSION

Chair: Danielle Jackson Vice Chair: Stephanie Batcheller Members: Nathaniel Barone, Xavier Donaldson, Joshua Epstein, Akane Fujiwara, Randall Inniss, Seymour James

FEDERAL PRACTICE / WHITE COLLAR CRIME COMMITTEE

Chair: Samuel Braverma Vice Chair: Grainne O’Neill Members: Lance Clarke, Alan Lewis, Donald Thompson, John Wallenstein, Richard Willstatter

FINANCE COMMITTEE Chair: Samuel Braverman

JUDICIAL SCREENING COMMITTEEE

Chair: Alan S. Lewis Vice Chair: Jill Paperno Members: Derek Andrews, Samuel Braverman, Xavier Donaldson, Alice Fontier, Jamal Johnson, Greg Lubow, Nathaniel Marmur, Timothy Murphy, Donald Thompson, Claudia Truppp

JUSTICE COURTS COMMITTEE Chair: Greg Lubow Vice Chair: Laura Fiorenza Member: John Ingrassia

LAWYERS STRIKE FORCE ASSISTANCE COMMITTEE

Chair: Ilona Coleman Vice Chair: Jill Paperno Member: Jessica Horani

Chair: TBD Vice Chair: Elizabeth Kelley

MILITARY & VETERANS’ AFFAIRS COMMITTEE Chair: Donald Rehkopf, Jr.

MOTOR VEHICLE ISSUES COMMITTEE

Chair: Randall Inniss Vice Chair: Jonathan Cohn Members: Derek Andrews, Steven Epstein, Greg Lubow, Andrew Kossover, Kevin Stadelmaier

NEW BOARD MEMBER ORIENTATION COMMITTEE Chair: Steve Epstein Vice Chair: Jill Paperno

PROSECUTORIAL AND JUDICIAL COMPLAINT COMMITTEE

Chair: Noreen McCarthy Vice Chair: Fred Sosinsky Members: Steven Epstein; Findayawah Gbollie; Chandra Gomes; Alexandra Katz; Russell T. Neufeld; Donald G. Rehkopf, Jr.; Marvin Schechter; Adam Shlahet Advisory Members: Bennett Gershman, Ellen Yaroshefsky

PUBLICATIONS COMMITTEE

Chair: John Wallenstein Vice Chair: Grainne O’Neill Members: Cheryl Meyers Buth, Jessica Horani, Timothy Murphy

STRATEGIC PLANNING COMMITTEE

Chair: Brian Melber Members: Steven Epstein, Yung-Mi Lee, Jill Paperno, Kevin Stadelmaier

WOMEN IN CRIMINAL DEFENSE COMMITTEE Chair: Lindsay Lewis Vice Chair: Hilary Rogers

YOUNG LAWYERS COMMITTEE Chair: Jamal Johnson Member: Alexis Epstein

Chair: Steve Epstein Vice Chair: Jessica Horani Members: Samuel Braverman, Jill Paperno, Donald Rehkopf, Richard Willstatter

Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

NYSACDL Membership

The Largest Criminal Defense Bar Association in New York State

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

John Ingrassia, Newburgh Seymour W. James Jr., Manhattan Alan S. Lewis, Manhattan Jill Paperno, Rochester Claudia Trupp, Cragsmoor

Randall Inniss, Suffern Danielle Jackson, Manhattan Jamal Johnson, Manhattan Kendea Johnson, Manhattan Jessica Kulpit, Buffalo Leanne Lapp, Canandaigua Lindsey Lewis, Manhattan (NACDL Designee) Greg Lubow, Tannersville Nathanial Z. Marmur, Manhattan Noreen McCarthy, Keene Valley Michael McDermott, Albany Hilary Rogers, Plattsburgh Donald Thompson, Rochester Andre A. Vitale, Jersey City Sherry Levin Wallach, White Plains

SECRETARY:

EXECUTIVE DIRECTOR:

PRESIDENT:

Steven Epstein, Garden City

PRESIDENT-ELECT:

Jessica A. Horani, Manhattan

FIRST VICE PRESIDENT: Kevin M. Stadelmaier, Buffalo

VICE PRESIDENTS:

Grainne E. O'Neill, Brooklyn

Jennifer Ciulla Van Ort, Clifton Park

TREASURER:

Samuel Braverman, Manhattan*

DIRECTORS

Michael T. Baker, Binghamton Stephanie Batcheller, Albany (NYSDA Designee) Jacqueline E. Cistaro, Manhattan Ilona Coleman, Bronx Xavier R. Donaldson, Manhattan Drew Dubrin, Rochester Laura A. Fiorenza, Syracuse

LIFE MEMBERS: (As of 10/10/2023) Daniel Arshack Wayne C. Bodden Peter E. Brill David J. Cohen Lori Cohen Terrence M. Connors Anthony Cueto Gerard M. Damiani

Edgar De Leon Telesforo Del Valle Joshua L. Dratel Steven B. Epstein Mark A. 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 H. Kretzer Gerald Lefcourt David L. Lewis Thomas F. Liotti Scott Lockwood Greg D. Lubow Christopher X. Maher Zachary Margulis-Ohnuma Brian Melber Florian Miedel Cory Morris Aaron J. Mysliwiec Brian J. Neary

Thomas J. O'Hern Paul D. Petrus Frank Policelli Murray Richman Stacey Richman Joel B. Rudin Lisa Schreibersdorf John S. Wallenstein Robert G. Wells Richard D. Willstatter Todd J.W. Wisner

PRESIDENT’S CLUB: (As of 10/10/2023) George Goltzer

SUSTAINING MEMBERS: (As of 10/10/2023) Joseph R. DeMatteo Karen L. Dippold Michael G. Dowd Mario F. Gallucci Phillip Hamilton James P. Harrington Daniel J. Henry Michael D. Horn Isabelle A. Kirshner Robert P. Leighton Mark J. Mahoney Susan J. Walsh

Atticus | Volume 35 Number 1 | Winter 2024 | 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.

lobbyist, develops and pursues positions on legislative issues relating to the criminal justice system thereby providing a respected voice of the defense bar in Albany. Members have an avenue to become involved and stay informed. Our members were involved in the recent reforms of the Rockefeller Drug Laws.

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

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.

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.

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

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.

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. LEGISLATIVE ADVOCACY – NYSACDL’s Legislative Committee, working with a retained

ATTICUS apologizes profusely... this issue, we just ran out of space in the print edition... but that can’t happen online! Tim Murphy’s always excellent column providing details and insight into decisions of the New York State Court of Appeals and the Second Circuit Court of Appeals is online at nysacdl.org/page/Atticus.

Find NYSACDL on Facebook, LinkedIn, X and Instagram.

The Editors apologize to our readers, and especially to Tim Murphy. We promise he’ll be back in print next issue!

Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

To join NYSACDL, mail the form below or join online at www.nysacdl.org. NYSACDL 636 Plank Road, Suite 215 Clifton Park, NY 12065 518/443-2000 jlvanort@nysacdl.org

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Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

“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

Atticus | Volume 35 Number 1 | Winter 2024 | New York State Association of Criminal Defense Lawyers

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