Atticus vol 29 no 1 web by NYSACDL

Winter 2017 | Volume 29 | Number 1

ATTICUS INSIDE

2015 NYSACDL Foundation 2017

Annual Dinner

this

Award Recipients

ISSUE 3

Message from the President

Message from the Incoming President

From the Editors

Dispatches from 90 State

From the Defense Table

Preserving State Constitutional Claims by Alan s. Lewis Supreme Court & Second Circuit Court Highlights by Molly Corbett

Jury Instructions for DWI by Steven Epstein

Book Reviews

Cutting Edge CLE

The Honorable

William M. Skretny

Hon. William Brennan Award for Outstanding Jurist Page 20

P. 18

New York State Association of Criminal Defense Lawyers

Publication of the New York State Association of Criminal Defense Lawyers

Justine Jonathan E. Luongo, Esq. Gradess, Esq. Thurgood S. Marshall Award for Outstanding Criminal Practitioner

Lifetime Achievement Page 22

Page 21

NYSACDL Annual Dinner Sponsors

atticus@nysacdl.org www.nysacdl.org

90 State Street, Suite 700 Albany, New York 12207

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

NYSACDL Officers and Directors 2017 PRESIDENT John S. Wallenstein, Garden City

James W. Grable, Jr., Buffalo Anthony M. La Pinta, Hauppauge Mark Hosken, Rochester Yung-Mi Lee, Brooklyn Alan S. Lewis, Manhattan Greg D. Lubow, Tannersville Elizabeth E. Macedonio, Manhattan (To Be Appointed January 27, 2017) Allison M. McGahay, Lake Placid Brian Melber, Buffalo Timothy P. Murphy, Buffalo Lisa Peebles, Syracuse Russell A. Schindler, Kingston Jay Schwitzman, Brooklyn Tucker C. Stanclift, Glens Falls Claudia Trupp, Manhattan Andre Allen Vitale, Rochester Susan J. Walsh, Manhattan

PRESIDENT-ELECT Robert G. Wells, Syracuse FIRST VICE PRESIDENT Lori Cohen, Manhattan VICE PRESIDENTS Arnold J. Levine, Manhattan Jessica Horani, Manhattan Timothy Hoover, Buffalo Alice Fontier, Manhattan Kenneth Moynihan, Syracuse SECRETARY Mark Williams, Olean TREASURER (To Be Appointed January 27, 2017) Robert N. Isseks, Middletown DIRECTORS Steven B. Epstein, Garden City (To Be Appointed January 27, 2017) Mitchell J. Dinnerstein, Manhattan Peter A. Dumas, Malone Marc Fernich, Manhattan

PAST PRESIDENTS Lawrence S. Goldman Paul J. Cambria, Jr. Jack T. Litman Mark J. Mahoney David L. Lewis William I. Aronwald Thomas F. Liotti

Ira D. London Jeanne E. Mettler Murray Richman Gerard M. Damiani Marvin E. Schechter Kathryn M. Kase Russell M. Gioiella James P. Harrington Richard J. Barbuto Martin B. Adelman Joshua L. Dratel Ray Kelly Daniel N. Arshack Lisa Schreibersdorf Craig Schlanger George R. Goltzer Kevin D. Oâ&#x20AC;&#x2122;Connell Richard D. Willstatter Benjamin Ostrer Aaron Mysliwiec Wayne C. Bodden Andrew Kossover EXECUTIVE DIRECTOR Jennifer Ciulla Van Ort, Albany

Forensic psychological evaluations and expert witness testimony in criminal law Stephen Reich, Ph.D., J.D., Director, Psychologist and Lawyer 141 EAST 55TH STREET SUITE 2A NEW YORK, NY 10022 212.935.6133 www.forensicpsychologyexperts.com

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

Publication of the New York State Association of Criminal Defense Lawyers

Message from the President By Andrew Kossover The Constitution and the Bill of Rights we designed to get the government off the backs of the people — all the people. Those great documents guarantee to us all the rights to personal and spiritual self-fulfillment. But that guarantee is not self-executing. As nightfall does not come all at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such a twilight that we all must be most aware of the change in the air — however slight — lest we become unwitting victims of the darkness. — Supreme Court Justice William O. Douglas So yes, we’ll need to keep a very close watch on the new administration – many of us will take it on as a second job. It is not enough to watch and nod in agreement with John Oliver, Samantha Bee, or Rachel Maddow. We need to remain seriously engaged. Lawyers are organizing throughout the country to protect the groups targeted by Donald Trump during his campaign. It requires honoring and heeding the above caution by Justice Douglas, a “Twilight Coalition,” if you will. We will continue to agitate for social justice. We will continue to defend constitutional freedoms. We will plan for the elections in 2018 and 2020. We will take to the streets at the first whiff of fascism. We won’t let Trump fatigue allow us to succumb to his suppression of truth and distortion of reality. As lawyers, just as in greater society at large, so, too, do we suffer frustration, anger, despair, or pain. But as those who have survived traumas know, we must never give in to negativity or forget the accomplishments of the past. In darkness, light must be cultivated.

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Trump’s inauguration is an opportunity to renew our dedication to illuminating our own corners of the world, wherever we have influence. Our collective devotion to protecting the rights of all individuals calls for courage and perseverance. We also must begin listening to those who voted for Trump. We should not shy away from honest conversations about what is important to us. We may discover that what we have in common is more powerful than our differences. This is my last Message as President of the Association. I will never forget the boundless generosity and support that I have received from every member Continued on page 9

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

Message from the President New York State Clemency Project Needs You! Pro Bono Representation of Applicants for Executive Clemency: Attorney Training https://nysacdl.site-ym.com/page/ Clemency NYSACDL & the NYSACDL Foundation are pleased to partner with the Governor’s Office and the Executive Clemency Bureau to assist with the review and preparation of applications for clemency. Over 400 applications for clemency have been pre-screened for eligibility by the Governor’s Office and now need volunteer attorneys to review them for possible further application preparation. The Executive Clemency Bureau is asking for NYSACDL’s experienced, qualified, dedicated members to take part in this review. Thank you to those who have already volunteered! We have begun assigning cases, but need more volunteers to reach our goal of 50 cases! Please consider volunteering for this important task! To qualify to prepare applications, members need to review the training materials available on NYSACDL’s web site. To view the brief training video, please visit the NYSACDL web site: https://nysacdl.site-ym. com/page/Clemency. We thank you for your interest in participating in the process.

By John S. Wallenstein 2017 President I am honored to have been chosen to lead NYSACDL in 2017, as we enter our fourth decade as the premier criminal bar association in New York State. As I prepare to take the baton from the hands of outgoing President Andy Kossover, I offer my sincere thanks to him for his leadership and friendship this past year, and I know that he will continue his active role in NYSACDL as co-chair of the Legislative Committee. I look forward to continuing to work with Andy, and with President-elect Rob Wells, First Vice-President Lori Cohen, and every other officer, director and member. Let me echo President Kossover’s words of praise for Executive Director Jennifer van Ort, who keeps us all on track. The days ahead will be challenging, to say the least. Our priorities in the coming year (and beyond) must be focused on justice. Many members of the public believe that anyone arrested must be guilty, undeserving of anything but extreme punishment; witness Donald Trump’s recent call for jailing, or stripping the citizenship from, anyone burning a flag, in spite of the obvious fact that this is protected speech under the First Amendment. Legislatures around the country continue to increase punishment and reduce programs for rehabilitation, ignoring the root causes of crime in their zeal for votes and power. Each day, we learn of ever more egregious conduct by prosecutors, emboldened by the knowledge that they act with impunity, if not always immunity. NYSACDL’s recently revamped Prosecutorial and Judicial Complaint Committee, which consists of seven leading attorneys, and two highly respected advisors in the field of legal ethics, has already begun investigations of serious prosecutorial misconduct, and filed complaints with Attorney Grievance Committees. The most obvious problem is the constant violation of the precepts of Brady v. Maryland, a case continuously misinterpreted, oftimes intentionally, by prosecutors intent on securing conviction at any cost. In 2016, in People v. Redd, the Appellate Division, Second Department, reversed a conviction for egregious prosecutorial misconduct. As this is written, the United States Supreme Court has granted certiorari in two consolidated cases involving applications of Brady. The New York State Legislature is considering bills to set up a commission to investigate and discipline prosecutors who overstep their ethical bounds, perhaps finally realizing that no one else will do so. Discovery reform remains a priority for us in the coming year. My friends and colleagues who practice civil law are amazed that they have more information in a lawsuit over a fender-bender than we get in homicide cases. Only when we are provided with the information we need will the playing field be truly level, and NYSACDL continues to press the legislature for a true discovery reform bill. Every member should be prepared to get the call that you are needed to be vocal and active in this arena, so that our clients will have a fighting chance at justice. Our veterans, who have given so much, are often given short shrift by the courts. Continued on page 9

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

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

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

From the Editors’ Desk John S. Wallenstein, Jessica Horani, Dick Barbuto, Alan S. Lewis As we go to press, the inauguration of President Trump is just two weeks away, and will be history by the time you read this. Our membership is diverse, politically as well as ethnically and geographically, and we have members who supported the new president and those who opposed his election. Regardless of which camp you fall into, we believe the new president should be given a chance to do the job. We say this with trepidation; his public statements do not bode well for our clients, and Senator Jeff Sessions, his choice for Attorney General, is clearly not defense friendly. Mr. Trump has made clear that his judicial appointments will be as conservative as he can find. One can only hope that they will be as principled as some of their predecessors; after all, Antonin Scalia authored Crawford and Booker. It is a long road from the trenches in which we toil daily to the lofty heights of SCOTUS. As we know, very few cases get that far. It is therefore incumbent upon us, the criminal defense bar, to continue the daily fight in the trial and appellate courts, vigorously advocating for the rights the Constitution and the laws give to our clients. Especially in an atmosphere of fear-mongering about immigrants, and a “twitter” president wont to shoot from the lip, we must be ever more vigilant. National politics aside, we are concerned about the state of affairs here at home in New York State. Literally at the last possible moment, when there was no time to fix the problems he perceived, Governor Cuomo vetoed the Indigent Defense Bill, which would have shifted the burden of assigned counsel to the state from the counties. The Governor’s reasoning, mostly concerned with the fiscal impact of the bill, was really specious; there was a way to address his concerns by tweaking eligibility, but by sitting on the bill for six months and waiting until literally the last day, he prevented the legislature from amending. He also vetoed, at the last minute, the gravity knife bill, which would have decriminalized the possession of knives that tradesmen and everyday citizens carry daily. NYSACDL supported both of these important pieces of legislation, and we will continue to provide our support as the bills are re-introduced in the new legislature. NYSACDL’s legislative priorities in this coming year will be concentrated on two primary issues: discovery reform (as always, until we get it!!) and prosecutorial misconduct. Our newly revamped Prosecutorial and Judicial Conduct Committee has already filed a grievance against an ADA for particularly egregious conduct (as the Appellate Division documented), and is considering other matters. Please Continued on page 33

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

Dispatches from 90 State Jennifer Van Ort Executive Director

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.

As you can tell from the two Presidents’ Messages in this issue of Atticus, as well as the other changes that were made, NYSACDL is currently experiencing its own “peaceful transition” as we enter 2017. I join those who thank outgoing President Andy Kossover for his steadfast dedication and leadership during 2016. I continue to be privileged to work with excellent Presidents during my tenure and look forward to continuing that with incoming President John Wallenstein in 2017. As both Andy and John mentioned elsewhere, NYSACDL remains ever vigilant during this time as the country experiences a much larger transition. Elsewhere in this issue, John gave you a preview of his priorities for 2017. You, our members, are a critical reason behind these priorities, but you are also a critical part of ensuring that NYSACDL succeeds at meeting these priorities. As a 2017 member, you already play an important role in NYSACDL’s mission (if you received a renewal reminder with this issue, please send your renewal in soon!), and there are many other ways, outlined below, that you can be a part of a productive 2017 for NYSACDL. Membership: As usual, my first pitch will be about membership. The more members NYSACDL has, the stronger its influence as a bar association. As a current member, you are NYSACDL’s best advocate. Throughout your day, you interact with other members of your profession – ask them if they are members; if they are, thank them! If they are not, tell them why you are a member and suggest they invest as well. Aren’t comfortable making a personal membership pitch? The words of current members are useful tools in membership marketing appeals – send me a brief testimonial about the value of being a member, and I may use it in an upcoming email or mailing! Watch for opportunities to easily submit your remarks to me coming soon! CLE Seminars: NYSACDL is continuing to expand its cutting-edge CLE programing throughout the state, with planned seminars in Lake Placid, Saratoga Springs, and Long Island added to the regular slate of 2017 events. Attending NYSACDL CLE seminars is a perfect way to stay on top of the latest developments in criminal defense. It’s your opportunity to not only hear from high quality peer faculty, but also to interact with your colleagues in an informal environment. I am generally at every CLE seminar, as well as at least one Board member, meaning seminars also give you a great opportunity to ensure that we know your needs and experiences. Cannot attend a seminar in a specific location? Share the information with colleagues who may benefit from attending! Participate: In his incoming President’s Message, John wrote about the revitalization or creation of several NYSACDL committees and invited you, as members, to Continued on page 33

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

From the Defense Table: Celebrating the Achievements of NYSACDL Members in the Courts The Editors regret the omission in our last issue of a trial acquittal by NYSACDL Director Russell Schindler in May 2016. Schindler’s client was charged with two counts of Criminal Sale of a Controlled Substance in the Third Degree and two counts of Criminal Possession of a Controlled Substance in the Third Degree arising out of two alleged heroin sales to an undercover State Trooper. The defense centered on the failure of the police to record the phone calls which set up the transactions, their failure to record the audio transmissions from the KEL unit during the actual transactions and their failure to make a video or photographic record of the transactions. They also noted that the police used pre-recorded buy money but did not recover any from the defendant because he wasn’t arrested until many weeks after the alleged transactions. The evidence was further questioned by pointing out the failure to test the drug packages for the Defendant’s DNA or fingerprints. The case boiled down to the police officer’s word that he purchased heroin from the defendant. Mr. Schindler’s client did not testify at trial. The jury deliberated for approximately an hour before agreeing that the officer’s word alone, without more evidence, did not rise to the level of proof beyond a

reasonable doubt and they acquitted on all charges. In a sad epitaph to the win, defense counsel received word over the summer that his former client had passed away. Member Eric Franz recently traveled to West Palm Beach, Florida and won an acquittal for his client who was charged with aggravated assault with a firearm and discharge of a weapon, despite the fact that the entire incident was captured on video surveillance. His client was facing a mandatory minimum of 20 years imprisonment. Despite the circumstances described below, it was no defense under Florida law that the weapon fired accidentally. Following a verbal dispute with a bar patron who threw a glass at the defendant (which missed striking him), the defendant, the manager of the bar, left the premises and returned with a firearm. Upon his return the defendant pointed his weapon at the patron who was now outside of the bar and then pursued the patron outside where a struggle ensued. During the struggle, the gun discharged and the patron suffered a gunshot graze wound to the head. In addition to the video surveil-

lance footage and the testimony of the complainant, Franz also had to combat the fact that his client had made numerous recorded statements to the police which were disputed by the evidence – including that the video surveillance system was inoperable, that he never left to retrieve his firearm, and that he never displayed the firearm while still inside the bar when the complainant was already outside. Franz’s attempt to have the case dismissed, following a “stand your ground” hearing in Florida, was unsuccessful, since there was no dispute that his client did not “stand his ground”. Video footage clearly showed that the defendant left and then returned, with firearm in hand and proceeded to point the firearm at the complainant, even though the complainant had already walked out of the bar. Franz proceeded to trial on the theory that the defendant was faced with a startling, horrifying event (having a glass hurled at his head by the complainant) and had to make a split second decision of whether he should seek safety for himself, or selflessly consider the safety of the remaining patrons who remained inside the bar – where no security personnel were employed. Franz told the jury that once the complainant threw the glass at his client that his client had every reason to be concerned about what actions the complainant might take next. He argued that his client was justified in his actions returning to the bar with a weapon in order Continued on next page

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

From the Defense Table Continued from previous page to remove the complainant from the premises and to protect his patrons and a female bartender (the ex-girlfriend of the complainant) from whatever the complainant might do next. With regard to the claim by the State that the complainant had retreated by leaving the bar – Franz countered that the complainant may have left, but he was not really “gone” – since he remained in the outside dining area of the bar.

the defendant and claimed that the defendant confessed to him. Moynihan’s client testified on his own behalf. The jury, disbelieving the evidence presented by the People, acquitted the client of all four counts and spent nearly half an hour speaking to the client after the trial concluded demonstrating to Moynihan that they too believed in his client’s actual innocence.

The case was fought in court for over two years, and despite being denied his motion to dismiss based on Florida’s “stand your ground” law, Franz was ultimately successful in convincing the Florida jury that his client’s actions were a justified use of deadly force.

Member Lance Cimino received a full acquittal on November 1, 2016 for his clients charged with welfare fraud in Onondaga County. The clients were a Ukrainian couple with two young children that qualified for Medicaid. The husband worked as a truck driver, the wife was a stay at home mother. Based on certain statements in their recertification paperwork which social services investigated and a misstatement on their income tax filings, the couple was indicted on charges of welfare fraud and offering a false instrument for filing. Careful investigation of the documents revealed that the 2011 recertification was correct and ultimately the false instrument charges were dismissed before trial, on the ADA’s motion.

November was a banner month…for member successes at least! NYSACDL Vice President Ken Moynihan obtained an acquittal in Lewis County on November 17, 2016 in a felony Sex Abuse jury trial. Moynihan’s client, a male in his mid-20s, was charged with four separate sexual encounters with a 14-15 year old girl over a year time frame. The defendant was the neighbor of the complainant and a close friend of the complainant’s father. There was no forensic evidence presented in the People’s case in chief. The People presented testimony of a teenaged friend of the complainant who claimed that the two girls took turns having sex with the defendant and both the friend and the complainant identified a tattoo on the defendant’s torso. The father of the complainant testified that he confronted

Although it was conceded that the couple no longer qualified for welfare, the trial question was whether any potential overpayment had occurred as the result of a fraudulent welfare act. Despite offers of misdemeanor pleas with probation for each, they went to trial. Cimino in his defense argued that the overpayment resulted from a change of employment at the end of

2011 that was reported in 2012, and the People asserted that the couple had an obligation to immediately report it. The wife testified that she called and was told to bring her tax return at the next recertification. There was no record of the phone call. Defense argued that not all calls were documented and that his clients had acted in good faith. He argued in summation that the disqualification was not the result of a fraudulent welfare act, but rather the reasonable actions of his clients who both testified. The jury returned verdicts of ‘not guilty’ for both clients in under an hour. Member Deron Castro concluded a month long murder trial in the Bronx with an acquittal on November 16, 2016 which hinged in part on a stunning development during cross of a key witness. Castro’s client was charged with Murder in the Second Degree for allegedly shooting the victim six times in the back in the courtyard of the McKinley houses in the afternoon of April 11, 2013. The People’s main witness was a woman who had known the defendant since he was in the 3rd grade as a friend of her son’s. She testified that she observed the defendant from her window on the second floor and recognized him by a purple and grey hoody which she described him to be wearing. The police recovered a purple and grey Adidas hoody from the defendant’s apartment. On cross, (and this is where a resemblance to the film ‘My Cousin Vinnie’ comes in), defense counsel was able to establish that the witness had problems Continued on next page

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

with her vision and was not wearing her glasses at the time of the incident. This came after the detective denied having any information that the eyewitness wore glasses or had difficulty seeing. Through the skillful efforts of defense investigator Elpidio deLeon, the witness who initially refused to speak to the defense eventually opened up and invited the investigator into her home and willingly spoke about herself and some of her mental health conditions.

much about her condition during his direct exam and it came back to haunt him when it seemed to appear to the jury that a woman in a vulnerable mental state was being manipulated by the state into being an eyewitness (one who couldn’t see that well and wasn’t wearing her glasses at the time of the incident). Castro’s client had been in custody for three years fighting the charges when he was finally able to walk out of the courtroom with his counsel after the jury found him not guilty.

2016. Trupp, an attorney for the Center for Appellate Litigation, appeared for defendant Durville Small who was granted a new trial in a murder case after Bronx Supreme Court Justice Darcel Clark, now Bronx County District Attorney, denied a defense challenge for cause of a prospective juror whose brother had been murdered and whose sister had been raped and disfigured. The majority found that the discussions during voir dire showed, “when viewed as a whole, that her state of mind was likely to preclude her from rendering an impartial verdict. Moreover, her expressions of bias during voir dire were not replaced by an unequivocal assurance of impartiality, despite further inquiry by the trial court and the defense counsel.”

Castro was able to cross examine the witness extensively but sensitively about her bi-polar disorder, her prescribed medications, and the side effects of those medications. At one point, after pressing her about the side effects, she simply described it as being “stuck on stupid.” This was looped into his cross repeatedly as the witness also admitted on cross that the prosecutor was putting pressure on her to testify in the case. The ADA chose not to disclose very

The winning streak concludes with an appellate win by NYSACDL Director Claudia Trupp in the First Department in People v. Small, 3606/09 as reported in the New York Law Journal on December 9,

President Kossover

President Wallenstein

Continued from page 3

Continued from page 4 Therefore, we have formed a new committee, Military and Veterans’ Affairs, to provide advice and assistance to our members who are representing active duty military personnel or veterans. I urge any member who has military experience and who wishes to assist to join the committee; the work can’t be done by one or two people.

with whom I have come in contact during my term. NYSACDL Presidents come and go. We receive our share of plaques and awards, but it is our Executive Director, Jennifer Van Ort, who keeps our Association organized, professional, and strong. Thank you to Jennifer, our wonderful and dedicated Board of Directors, and all our members. I also congratulate incoming President John Wallenstein. I know we will all have many more opportunities to work together and remain vigilant during the Twilight. A

Congratulations one and all. A

Our Cutting Edge CLE programs have been very successful, and we will continue to provide the information and guidance our membership needs to remain effective and efficient in the trenches of the criminal justice system. Please make every effort to attend the programs when you can. Finally, I urge all our members to participate in the crucial work we do. Join a committee, help your colleagues, help us help you. The Association is more than a listserv and this magazine; it is the collective wisdom and effort of all of us, for the common good. I look forward to working with you and for you all in the coming year. A

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

Preserving

State Constitutional Claims – a Bulwark Against Anticipated Impacts of the Trump Presidency By Alan S. Lewis As inauguration day fast approaches, stakeholders in the criminal justice system are anticipating the potential impact of the Trump administration. While the new President’s power to make appointments, issue executive orders and to propose legislation will initially have a greater and more obvious impact at the federal than state level, profound changes may not take long before striking at the local level as well. The federal government has long used the power of its purse to bludgeon the states into making various changes in local law, historical examples of which have included so-called “truth-in-sentencing” standards. Today, with so many states ailing financially, the pressure on states to succumb may be greater than it has ever been. If, for example, the new administration expresses its intolerance with state-level experimentation in the realm of marijuana legalization, some states will be reluctant to risk the new administration’s ire , thereby The first New York State Senate met in Kingston slowing down the reformation NY in September and October 1777, when the process. building was the home of Abraham Van Gaasbeek. It is the oldest public building in America.

Similarly, if new federal judicial appointments are as “law-andorder” oriented as some of the President-elect’s comments suggest, the impact of those appointments will not be limited to federal court. After all, the considerably larger dockets of state versus federal courts means that far more people seek vindication of their federal rights in state court than federal court. State courts, while not bound by the decisions of lower federal courts on questions of federal constitutional law, are nevertheless heavily influenced by such decisions. If the new administration’s appointments to the lower federal courts result in more prosecution-friendly interpretations of constitutional questions, the state courts are all but certain to take their lead.

Alan S. Lewis is a NYSACDL Director and an Editor of Atticus. He is a partner at Carter Ledyard & Milburn LLP where he co-chairs the Internal Investigations and White-Collar Defense Practice Group.

So what is the local criminal defense practitioner to do now, other than adopt a “waitand-see” approach to what the new administration brings? One suggestion, which Continued on page 33

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

Supreme 2016

Court By Molly Corbett, Esq.

& Second Circuit

Highlights

he more recent decisions of the Supreme Court continue to focus on a concern over vagueness and the lack of definition in criminal statutory language. In addition, challenges to predicate offenses and the interplay between state and federal crimes have been capturing the interest of the court. It appears that the court has become concerned with undefined accusations of criminality and the excessiveness of certain governmental action in prosecuting and sentencing based upon either vague statutes or prior convictions which do not meet federal definitions. As of this writing, the Supreme Court has been without a ninth justice for nearly 11 months. While the Court appears to be operating in a somewhat normal way, the justices have divided equally in a number of cases since the passing of Justice Antonin Scalia, and have slowed in their grant of petitions and scheduling of oral arguments. The Court awaits the appointment of a ninth justice, as do we all.

Molly Corbett, Esq. is Research & Writing Attorney, Office of the Federal Defender, NDNY

DECIDED: HOBBS ACT: CONSPIRACY TO COMMIT EXTORTION Ocasio v. United States No. 14-361, Decided May 2, 2016 Ocasio was a former Baltimore Police officer who pled guilty to four offenses for his involvement in a scheme referring wrecked automobiles to a Baltimore auto repair Continued on next page

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

Supreme Court Highlights Continued from previous page shop in exchange for cash kickbacks. The Fourth Circuit affirmed a conspiracy conviction he challenged because the kickbacks were from one co-conspirator to another. The Supreme Court upheld the Circuit (5-3), holding that a defendant may be convicted of conspiring to violate the Hobbs Act with proof that he reached an agreement with the owner of the property in question to obtain that property under color of official right. BRIBERY: “OFFICIAL ACT” NARROWLY DEFINED McDonnell v. United States., No. 15-474, Decided June 27, 2016 The former Virginia Governor, and his wife, were convicted on bribery, honest services fraud and Hobbs Act extortion charges on the theory that his acceptance of otherwise-lawful gifts and loans were in exchange for five “official acts.” An “official act” is defined as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.” 18 U.S.C. §201(a)(3). The government alleged that McDonnell committed at least five “official acts,” which included arranging meetings and hosting events for the gift-giver/lender with state officials to discuss a product the lender wanted researched in the state university system. The defendants argued that the acts were simply routine political courtesies. The Court reversed the Circuit unanimously holding that the federal bribery statute, 18 U.S.C. § 201, making it a crime for a public official to “receive or accept anything of value” in exchange for being “influenced in the perfor-

mance of any official act” must involve a formal exercise of governmental power, and must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision to take an action on that question or matter, or agree to do so. Because jury instructions in the case were erroneous, the errors were not harmless beyond a reasonable doubt requiring the convictions be vacated. Writing the decision, Chief Justice Roberts also noted that “vague corruption laws” such as § 201 implicate serious constitutional concerns, militating “in favor of a narrow, cautious reading of these criminal statutes” requiring a “more bounded interpretation of ‘official act.’” HOBBS ACT: INTERSTATE COMMERCE ELEMENT Taylor v. United States No. 14-6166, Decided June 20, 2016 The defendant was a member of a gang that robbed drug dealers. He was charged with Hobbs Act robbery in federal court but argued that the government failed to prove the drugs were in interstate commerce and sought to introduce defense evidence that the objects of the robberies were not in interstate commerce. The district court denied the request and found that illicit drugs are inherently in interstate commerce. The Supreme Court affirmed (7-1) holding that the Hobbs Act criminalizes robberies and attempted robberies that affect any commerce “over which the U.S. has jurisdiction,” and the interstate commerce element is satisfied if the government shows that the defendant robbed or attempted to rob a drug dealer of drugs or drug proceeds. The Act makes it a crime for

a person to affect commerce, or to attempt to do so, by robbery and defines “commerce” broadly as interstate commerce “and all other commerce over which the United States has jurisdiction.” FELON IN POSSESSION OF FIREARMS Voisine v. United States No. 14-10154, Decided on June 27, 2016 Two defendants, Armstrong and Voisine, were convicted of misdemeanor assault crimes of domestic violence in violation of Maine state law. Both were later charged with possession of a firearm or ammunition in violation of 18 U.S.C. § 922(g)(9). They moved to dismiss the indictment and information for failing to charge a federal offense and challenging the constitutionality of § 922(g)(9). The misdemeanor assault on the basis of offensive physical contact, did not necessarily cause bodily injury, was not a “use of physical force,” and, therefore, not a “misdemeanor crime of domestic violence”. The Court held that determining whether a prior conviction qualifies as a “misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9), the phrase “use . . . of physical force” in §921(a)(33)(A) includes acts of force undertaken recklessly, “i.e., with conscious disregard of a substantial risk of harm.” A reckless domestic assault qualifies as a “misdemeanor crime of domestic violence” that prohibits firearms possession by convicted felons under 18 U.S.C. § 922(g)(9). The Court specifically excluded whether reckless behavior is encompassed by 18 U.S.C. § 16 where courts of appeals have usually read the same term in § 16 to reach only “violent force,” i.e., intentional force.

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

SORNA Nichols v. United States No. 15-5238, Decided April 4, 2016 A circuit split arose over the obligation to update federal sex offender registration after two men were prosecuted under SORNA having left the country and failed to up-date their registration. In a unanimous decision the Supreme Court held that SORNA, which makes it a federal crime for certain sex offenders to “knowingly fai[l] to register or update a registration,” and requires sex of-fenders who move to another state to, “no later than 3 business days after each change of name, residence, employment, or student status,” inform in person at least one jurisdiction “where the offender resides, . . . is an employee, and . . . is a student,” did not require a registered sex offender, to update his registration in the state of his former residence once he left the state and moved to another country. ACCA: RETROACTIVITY Welch v. United States No. 15-6418, Decided April 18, 2016 The defendant was sentenced to 15 years’ imprisonment under the ACCA, pre-Johnson. He appealed having entered a conditional plea reserving his right to challenge the use of the prior conviction. After the Supreme Court’s decision in Johnson found the ACCA’s residual clause unconstitutionally vague, Welsh filed a habeas petition challenging his sentence under ACCA, but the district court denied relief and Certificate of Appealability. The 11th Circuit also refused to grant a COA because the court had held that Johnson did not apply retroactively to collateral review. The Supreme Court re-versed (7-1), and held that Johnson is retroactively applicable on collateral review because it is a new

rule of substantive law under Teague v. Lane, 489 U.S. 288 (1989), rather than a procedural rule. The ruling in Johnson alters “the range of conduct or the class of per-sons that the law punishes.” It is not procedural because procedural rules “regulate only the manner of determining the defendant’s culpability,” and Johnson “had nothing to do with that.” The decision does not comment on whether the Johnson decision applies retroactively to the guidelines or any other statute. ACCA: CATEGORICAL APPROACH Mathis v. United States No. 15-6092, Decided June 26, 2016 Prior to Johnson, Mathis was found to have five violent felonies under the ACCA based upon five Iowa burglary convictions. Mathis argued that the statute was not divisible because it does not provide alternative elements, but rather alternative means of committing the crime. The lower court disagreed finding the statute divisible and used the modified categorical approach to find the prior convictions qualified. The Supreme Court reversed (5-3) holding that the sentencing court is prohibited from using the modified categorical approach when it is “clear” according to “authoritative sources of state law” that each of the alternative terms listed in the relevant statute (in this case, “building, structure, [or] land, water or air vehicle”) set forth alternative means and not elements. The Court explained that when a statute defines only one crime, with one set of elements, but which lists alternative means by which a defendant can satisfy those elements, and those means are broader than a qualifying offense, a sentencing court cannot explore the means to determine whether a defendant’s conduct qualifies as a prior

violent offense for purposes of AC-CA. Iowa’s burglary law was broader than generic burglary because “structures” and “vehicles” were alternative means of fulfilling a single element, and whether the defendant’s prior offense conduct involved burglarizing a structure was irrelevant and the prior convictions did not qualify under the ACCA. The Court suggested, that if state law fails to provide clear answers,” the sentencing judge can at that point “peek” at “the record of a prior conviction itself ” to see if the charging document, plea colloquies, plea agreements, or jury instructions reveal that the term is an element or means. IMMIGRATION—AGGRAVATED FELONY Luna Torres v. Lynch No. 14-1096, Decided May 19, 2016 The defendant had been convicted of attempted third degree arson, NY Penal Law §§ 110.00, 150.10. He was found inadmissible after removal proceedings be-cause the conviction qualified as an aggravated felony. The defendant challenged the finding that the arson qualified as a predicate aggravated felony because the offense lacked the required federal element of affecting interstate commerce. The Supreme Court affirmed the Court of Appeals denial of relief (53) finding the state offense counts as a §1101(a)(43) “aggravated felony” when it has every element of a listed federal crime except one requiring a connection to interstate or foreign commerce. RIGHT TO SPEEDY TRIAL Betterman v. Montana No. 14-1457, Decided May 19, 2016 After missing a court date on a state domestic assault charge, the defendant Continued on next page

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

Supreme Court Highlights Continued from previous page turned himself in and was sentenced to 5 years’ imprisonment. He was also charged and pled guilty to bail jumping but went unsentenced for over 14 months during which time he was kept at a local jail which foreclosed early release and prison programming. He eventually was sentenced to an additional 7-year sentence. On appeal, he argued the denial of speedy trial rights as to sentencing but the Montana court ruled that the speedy trial right did not extend to sentencing. The Supreme Court agreed holding that the Sixth Amendment’s speedy trial guarantee does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges. The Court

also noted the possibility of challenging the denial of speedy sentencing under the Due Process Clauses of the Fifth and Fourteenth Amendments. DUE PROCESS Williams v. Pennsylvania No. 15-5040, Decided June 9, 2016 The defendant requested the recusal of a judge who had previously been the prosecutor who had decided to seek the death penalty. The recusal was denied. The Supreme Court reversed the lower court (5-3) finding that under the Due Process Clause, an impermissible risk of actual bias exists when a judge had

significant, personal involvement earlier in a case over which he presided when he was the prosecutor making critical decisions regarding the defendant’s case. The Court applied the objective standard requiring recusal when the likelihood of bias on the part of the judge is too high to be constitutionally tolerable. The failure of the district judge to recuse himself was structural error not subject to harm-less error review. RIGHT TO COUNSEL Luis v. United States No. 14-419, Decided March 30, 2016 The defendant had been charged with

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

health care fraud and her assets were frozen in a contemporaneous civil proceeding. She sought access to the assets in order to secure private counsel which was denied. The Supreme Court vacated the lower court order (5-3) in a plurality decision. Four justices used a balancing approach to arrive at their decision. Justice Thomas agreed with the plurality that a pre-trial freezing of untainted assets violated the Sixth Amendment right to choice of counsel, but not the balancing test. His decision rested solely on the Sixth Amendment and common law.

conduct because “the oldest roots of Puerto Rico’s power to prosecute lie in federal soil.” Of note, the Court clarified that the dual sovereignty inquiry does not turn, as the term ‘sovereignty’ sometimes suggests, on the degree to which the second entity is autonomous from the first or sets its own political course, as has widely been believed. This case is raising new issues with successive prosecutions and the historic origins of the prosecuting authorities.

DOUBLE JEOPARDY

Birchfield v. North Dakota, No. 141468; Bernard v. Minnesota, No. 14-1470; Beylund v. Levi, No. 14-1507 Decided June 23, 2016

Puerto Rico v. Sanchez Valle No. 15-108, Decided June 9, 2016 The Supreme Court held that the Double Jeopardy Clause bars Puerto Rico and the United States from successively prosecuting a single person for the same conduct under equivalent criminal laws. Under the Dual-Sovereignty Doctrine, a person may be subject to successive prosecutions because a single act gives rise to distinct offenses when it violates the laws of separate sovereigns. In this case, the courts were asked to decide if Puerto Rico and the United States may successively prosecute a single defendant for the same criminal con-duct because they were different sovereigns. The Supreme Court asked a narrow, historically focused question to determine whether two prosecuting authorities were different sovereigns for double jeopardy purposes. Specifically, whether the prosecutorial powers of the two jurisdictions have independent origins or whether those powers derive from the same ultimate source. The Court held that in this case, Puerto Rico and the United States may not successively prosecute a defendant for the same criminal

TESTS FOR DRUNK DRIVING – ILLEGAL SEARCH AND SEIZURE

The Supreme Court consolidated the cases of three separate defendants who were challenging different methods for testing a person for drunk driving and the repercussions for refusing the tests. The Court held (5-3) for all three defendants that the Fourth Amendment permitted warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests but decided the cases in three different ways. The Court reversed and remanded the North Dakota decision for Birchfield, affirmed the Minnesota conviction of Bernard, but vacated and remanded the other North Dakota case for Beylund. The balancing test for the reasonableness of the breath test allowed for the action of the officers and the finding that was not an unreasonable search. The same test was inapplicable to the blood tests because of the intrusive nature of the blood tests and the fact that blood could yield more information than just the BAC.

PRESERVING ERROR— SUFFICIENCY OF EVIDENCE AND STATUTE OF LIMITATIONS Musacchio v. United States No. 14-1095, Decided January 25, 2016 The government failed to object to a jury instruction that erroneously added an element that it had to prove. The defendant also failed to present a statute of limitations defense until his appeal. On appeal, the defendant sought to have his sufficiency-of-evidence challenge judged according to the elements in the instruction. The Court unanimously decided that both parties’ failures to timely raise their challenges only counted against the defendant. Ruling in favor of the government on both points, the Court held that the sufficiency of the evidence should be assessed against the elements of the charged crime, not the instruction that erroneously added an element and that a statute of limitations defense not raised before the trial court may not be raised for the first time on appeal because it can never be a plain error. Where the government had not been put to the question of proving the timeliness of the prosecution, the court cannot determine whether there was any error, let alone plain error. INCORRECT GUIDELINES RANGE Molina-Martinez v. United States No. 14-8913, Decided April 20, 2016 An error in sentencing which applied a Guidelines range higher than the applicable one went unnoticed. On appeal, the issue was raised and the 5th Circuit refused to correct the error because the appellant could not establish a reasonable probability that but for the error he would have received a different Continued on next page

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

Court Highlights Continued from previous page sentence. The Fifth Circuit reasoned that where a court’s initial sentencing decision fell within what would have been the correct Guidelines range, the defendant, on appeal, had to identify “additional evidence” to show that use of the incorrect Guidelines range had affected his sentence. Other-wise no prejudice results from the error. The Supreme Court reversed, unanimously holding that “courts reviewing sentencing errors cannot apply a categorical rule requiring additional evidence in cases,[ ] where the district court applied an incorrect range but nevertheless sentenced the defendant within the correct range.” The application of an incorrect Guidelines range alone can “show an effect on [a defendant’s] substantial rights.” STATUTORY CONSTRUCTION RULE OF LAST ANTECEDENT Lockhart v. United States No. 14-8358, Decided March 1, 2016 The defendant challenged the statutory construction of the aggravated sentencing factor after he was convicted of possessing child pornography in violation of 18 U.S.C. §2252(a)(4) and subjected to a 10-year mandatory minimum sentence and an increased maximum sentence because of “a prior conviction . . . under the laws of any State [NY] relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” §2252(b)(2). The question was whether the phrase “involving a minor or ward” modified all items in the list of predicate crimes (“aggravated sexual abuse,” “sexual abuse,” and “abusive sexual conduct”) or only the “abusive sexual conduct” immediately preceding the reference to the minor or ward. Resolving a conflict between the

2nd and 8th Circuits, the Court (6-2) held that the limiting phrase “involving a minor or ward” applies only to the phrase “abusive sexual con-duct,” and not the two earlier forms of abuse in the list.

ARGUED & PENDING DECISION Pena-Rodriguez v. Colorado No. 15-606, Argued October 11, 2016 Question Presented: Whether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury. Manrique v. United States No. 15-7250, Argued October 11, 2016 Question Presented: Whether a notice of appeal from a sentencing judgment deferring restitution is effective to challenge the validity of a later-issued restitution award. Beckles v. United States No. 15-8544, Argument November 28, 2016 Questions Presented: 1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”);

2) Whether Johnson’s constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and, 3) Whether mere possession of a sawedoff shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson. Moore v. Texas No. 15-797, Argument November 29, 2016 Question Presented: Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed. CERTIORARI GRANTED Packingham v. North Carolina No. 15-1194, Cert. Granted October 28, 2016 Question Presented: Whether, under the Court’s First Amendment precedents, a law that makes it a felony for any person on the state’s registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and NYTimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!” Continued on page 26

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

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Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

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Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

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Presenting The Hon. William Brennan Award for Outstanding Jurist Hon. William M. Skretny, United States District Judge, Western District of New York Hon. Thurgood S. Marshall Award for Outstanding Criminal Practitioner Justine Luongo, The Legal Aid Society of New York Lifetime Achievement Award Jonathan E. Gradess, Executive Director, New York State Defenders Association

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Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

Recipient of the Hon. William Brennan Award for Outstanding Jurist

THE HONORABLE

William M. Skretny United States District Judge, Western District of New York States Attorney for the Western District of New York, rising to the position of First Assistant in 1975. Judge Skretny headed the United States Attorney Advocacy Institute in Washington beginning in 1979. In 1980, he was appointed a special prosecutor in the Department of Justice, where he investigated media leaks in the ABSCAM and BRILAB political corruption investigations.

William M. Skretny was nominated to the federal bench by President George Herbert Walker Bush on June 12, 1990. He was confirmed unanimously by the United States Senate on August 3, 1990, and he received his commission to the United States District Court for the Western District of New York on August 7, 1990. Judge Skretny is a graduate of Canisius College, and he received his law degree from Howard University School of Law. He received his LL.M. from Northwestern University School of Law, where he was a Ford Foundation Fellow. Judge Skretny began his legal career in Chicago as an Assistant United States Attorney in the Northern District of Illinois. He returned to his home town in 1973 to become an Assistant United

Following his work in Washington, Judge Skretny returned to Western New York to continue his legal career in private practice. He became a partner in the law firm Duke, Holzman, Yaeger, and Radlin. Judge Skretny returned to public service in 1983 when he became First Deputy District Attorney for the Erie County District Attorney’s office. Judge Skretny began his federal judicial service in 1990, filling the seat vacated by the Honorable John T. Curtin. In 1996, drawing on his experiences presiding over cases in the Western District of New York, he lectured judges and prosecutors in Krakow, as Poland made the transition to a democratic constitutional republic. During his more than a quarter century of service, he has presided over some of the most memorable and significant cases in Western New York.

Judge Skretny served as Chief Judge in the Western District of New York from 2010 through 2015. He championed the construction of the Robert H. Jackson courthouse in Buffalo, and its construction was completed during his tenure as Chief Judge. The courthouse’s most prominent feature is the United States Constitution etched in the glass façade of the building. Judge Skretny insisted that even building’s very design serve as a reminder of importance of the constitutional principles safeguarded in federal courtrooms, and his selection of the glass façade and input into the shape and profile of the building help it serve as a reminder of the importance of dignity and transparency in the federal judicial system. The courthouse now helps serve the fifth busiest docket in the United States. Judge Skretny lives in downtown Buffalo with his wife Carol a short distance from the courthouse he helped bring to the city. In his spare time, he enjoys traveling to visit his three children, Brian, Brooke, and Nina; his sons-inlaw, Neal and Michael; and especially his granddaughters, Nora and Kellan. NYSACDL is pleased to be able to honor Judge William Skretny with the Hon. William Brennan Award for Outstanding Jurist at the 2017 NYSACDL Foundation Dinner.

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

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

Justine Luongo, Esq. The Legal Aid Society of New York

Justine M. Luongo, known as Tina to all, began her legal career as a public defender in September 2002 in the New York County trial office of the Criminal Defense Practice of The Legal Aid Society of New York. In 2007, she was promoted to Supervising Attorney in the same office where she continued to directly represent clients, as well as train and manage her team of attorneys, paralegals and investigators. During that time, she served as a member of an interdisciplinary task force at Legal Aid that worked closely with Davis, Polk, LLP to develop the analysis that ultimately lead to the groundbreaking case cap legislation for New York City. In May 2011, Tina was hired as the

Deputy Attorney-in-Charge of the Criminal Defense Practice, where she assisted in the supervision of the daily operation of the practice’s over 1200 dedicated staff representing over 230,000 indigent New Yorkers. In addition, she was responsible for the practice’s many specialty teams such as the DNA Unit, the Exploitation Intervention Project, the Adolescent Intervention and Diversion Unit and worked with staff and outside technology consultants to create the innovative Digital Forensic Unit. While much of her time was spent working on ways to create best practices within the Society, she also was responsible for networking the criminal practice with local and national associations. One key focus of her tenure as the Society’s chief defender has been to fight for law and policy reform to stop the discriminatory policing of black and brown people and push for transparency and accountability between the New York City Police Department and the public. Within the Society, she is dedicated to increasing the diversity of the public defense workforce and is integrally involved in The Legal Aid Society’s diversity initiative which partners management and staff to improve staff diversity and provide cultural competency training both internally at the Society and to external stakeholders in the criminal justice system. She has been an active voice in the movement to fos-

ter best practices in public defense and continues to be involved in the dialogue about how public defenders can create systemic change, as well as be zealous advocates for their clients. Tina was the Chair of the American Bar Association Task Force on Comprehensive Criminal Representation that analyzed best practices to address the complex, life altering consequences that clients face when they are charged with or convicted of crimes. She is a member of the ABA Criminal Justice Council, a member of the Board of Directors of the Chief Defender Association of New York, a member of the NYSBA Committee to Insure Quality Mandated Representation and a Steering Committee Member National Association for Public Defense. She has also served as an Adjunct Professor in New York Law School’s Criminal Defense Clinic. She graduated Brooklyn Law School in 2002 where she co-chaired LEGALS and was a member of the Moot Court Trial Team. Tina is married to Kim Forte, Supervising Attorney of Legal Aid’s LGBT Law and Policy Initiative and they have toddler twins, Kyle Rose and Luca Ray.

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

Lifetime Achievement Award

Jonathan E. Gradess, Esq.

Executive Director, New York State Defenders Association

Jonathan E. Gradess is Executive Director of the New York State Defenders Association (NYSDA), a not-for-profit organization dedicated to improving the quality and scope of public legal representation in New York. The Association operates the nation’s first state-funded Public Defense Backup Center, which serves New York’s more than 6000 public defense attorneys, providing training, legal research, consultation, and technical assistance. In addition, NYSDA has a duty to review, assess, and analyze the public defense system in the state; identify problem areas; and propose solutions in the form of specific recommendations to the Governor, the Legislature, the Judiciary, and other appropriate instrumentalities. Mr. Gradess is also Executive Director of the New York State Defenders Justice Fund.

Defender Association 2016 Reginald Heber Smith Award; the New York Nonprofit Media’s Cause Awards 2016 Overall Sector Support; the Capital Punishment Committee of the City of New York Bar Association 2016 Norman J. Redlich Award for Capital Defense Distinguished Service; the New York State Association of Criminal Defense Lawyers Gideon Award; and the New York State Bar Association Criminal Justice Section Award for Outstanding Contribution to the Delivery of Defense Services. Mr. Gradess serves on the Restorative Justice Commission of the Roman Catholic Diocese of Albany and the Board of Directors of Equal Justice USA and New Yorkers for Alternatives to the Death Penalty.

Mr. Gradess began his career as a paralegal, thereafter graduating cum laude in 1973 from Hofstra Law School’s charter class. He has worked as a criminal defense lawyer, a private investigator, and a law school professor. Mr. Gradess is the recipient of the Capital Region Chapter of the New York Civil Liberties Union 2016 Carol S. Knox Award; National Legal Aid and

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

Jury Instructions:

An Essential Tool to Conflict Resolution in a DWI Case

have a sign in my kitchen that reads, â&#x20AC;&#x153;When I had my first child I became a parent, when I had my second child I became a referee.â&#x20AC;? There is humor in this because of its truth. As parents, we do not relish the opportunity to resolve the disputes between our children. While there are some who are drawn to conflict, most of us seek to avoid it. Worse than having to resolve our own conflicts is being drawn into the conflicts of others. Few of us relish the opportunity to resolve disputes amongst our friends or relatives.

Steven Epstein, Esq. is admitted as an attorney in New York and Connecticut, as well as before the United States District Courts for the Eastern, Southern and Northern Districts of New York and the United States Supreme Court. General Member, National College for DUI Defense (NCDD) Continued on next page Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

Jury Instructions for DWI Continued from page 23 If we are not drawn to resolve conflicts for others we cannot expect jurors to celebrate the chance to do so. The essence of a jury trial is nothing more than conflict resolution. It is the process by which our society resolves civil and criminal disputes. We ask people from our communities who have no knowledge of the parties, their dispute, or an interest in the outcome of the case, to be the finders of fact, the very place where the heart of conflict often lies. Presented with conflict, we seek to resolve it using whatever tools we possess to do so.

DWI trial. However, there are an alarming number of cases in which law enforcement officers arrest motorists who are seated in their cars “sleeping it off.” In these cases, it is important to carefully review the portion of the Court’s charge that defines what it means to operate a vehicle, which is added when operation is at issue:

Often operation is not an issue in a DWI trial. However, there are an alarming number of cases in which law enforcement officers arrest motorists who are seated in their cars “sleeping it off.”

With that perspective, we turn to the tools jurors are given to resolve the conflict before them. Jurors possess their own life experiences and bring these into the deliberations, but these are often not shared between the jurors and only add to the conflict. Each juror brings their own way of seeing the evidence based on their own background and life experiences.

What each juror does share, however, is the oath they took to follow the Judge’s instructions on the law. The Judge has told them that as jurors they get to decide the facts of the case. The Judge will tell them what the law is and that they MUST follow the law. The Judge gives the jury the law in the same manner that Moses is said to have descended Mount Sinai with the Ten Commandments and proclaimed the law for his people to follow. There is no dispute in the law and that is why jurors are drawn to it when resolving conflict. This is not to say that the jury instructions dictate how all trials are resolved.

Emotional responses in some cases can be so strong that the law is of no concern to the jury. In other cases, the facts themselves offer little conflict. But most trials involve factual conflict and emotions which are grounded into the argument of both parties. Most trials can be won or lost by either side, and in those cases, the jury is often drawn to the jury instructions which provide a tool to resolve the conflict. A firm understanding of the jury instructions is always a prerequisite to the creation and design of successful trial strategy. It is especially important in a DWI case, where the instructions on the law in three different portions of the Court’s charge can make or break your case: the definition of “operation”; the relevance of the results of a blood alcohol test; and the guidance the Court offers to evaluate if a person is in an “intoxicated” condition. Often operation is not an issue in a

A person also OPERATES a motor vehicle when such person is sitting behind the wheel of a motor vehicle for the purpose of placing the vehicle in motion, and when the motor vehicle is moving, or even if it is not moving, the engine is running.

The key word here is “and.” Being seated in the car with the engine running alone is not enough. The law requires that the motorist be seated in the car “for the purpose of placing the vehicle in motion.” The pattern jury instruction cites to important cases which should be considered. People v Alamo, 34 NY2d 453, 458 (1974); People v Marriott, 37 AD2d 868 (3d Dept. 1971); People v O’Connor, 159 Misc 2d 1072, 1074-1075 (Suffolk Dist. Ct. 1994); see also People v Prescott, 95 NY2d 655, 662 (2001). Unless the government plans to punish motorists for their dreams, defending motorists accused of drunk driving when they are merely seated in their cars asleep are good trial cases, but critical to the success of the trial is being sure the law is read correctly and understood by the jurors. I would suggest in such cases consenting to giving the jury a written copy of the jury charge and pointing out the grammatic structure of the sentence as well as the importance of the word “and.”

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

In any prosecution under Vehicle and Traffic Law §1192(2), the most critical dispute is whether the chemical test correctly measured the defendant’s blood alcohol content. Counsel representing clients charged with this offense should avoid arguing that the device used to test the defendant is itself not reliable, as the jury charge reads as follows: The device used to measure blood alcohol content… is a generally accepted instrument for determining blood alcohol content. Thus, the People are not required to offer expert scientific testimony to establish the validity of the principles upon which the device is based. Instead counsel should address this point head on and concede that the issue is not whether the device is generally reliable, but instead whether it was correctly used in the case at trial. In that regard, other parts of the charge are important and offer guidance to attorneys structing their attack of the chemical test evidence through cross examination or the presentation of expert witnesses for the defendant. For example: In considering the accuracy of the results of any test given to determine the alcohol content of defendant’s blood you must consider: the qualifications and reliability of the person who gave the test; the lapse of time between the operation of the motor vehicle and the giving of the test; whether the device used was in good working order at the time the test was administered; and whether the test was properly given (emphasis supplied). In a prosecution under Vehicle and Traffic Law §1192(3), regardless of whether there is or is not a chemical test, the court will instruct the jury on the defi-

nition of intoxication: A person is in an INTOXICATED condition when such person has consumed alcohol to the extent that he or she is incapable, to a substantial extent, of employing the physical and mental abilities which he or she is expected to possess in order to operate a vehicle as a reasonable and prudent driver. Thus, critical to the analysis is the way in which the defendant operated his vehicle and careful consideration should be given to marshalling positive proof of the defendant’s driving skills and minimizing evidence of poor operation. In addition, the court will instruct the jury that: To determine whether the defendant was intoxicated you may consider all the surrounding facts and circumstances, including, for example: • the defendant’s physical condition and appearance, balance and coordination, and manner of speech; • the presence or absence of an odor of alcohol; • the manner in which the defendant operated the motor vehicle;

it appears to marshal the evidence in a manner that favors the prosecution. Most officers in DWI arrests report a litany of observations that includes the above listed factors, yet many important factors listed by the National Highway Traffic and Safety Administration’s handbook on detection of impaired drivers lists many other factors omitted by the court, many of which are not elicited by the government in the presentation of its case to a jury, such as the production of license and registration, turning with a wide radius, drifting, etc. James Harrington, an English Philosopher from the 17th century remarked that “the Law is but words and paper without the hands of swords of men.” As lawyers, our weapon is not a sword nor our hands, but our courtroom advocacy which should start by working backwards and carefully considering the legal instructions the jury will be given at the end of the case. It is, after all, the final word the jury will be left with and in many ways those last impressions are often the most persuasive. Carefully structuring your theory of case and incorporating the instructions into your defense from the beginning will give you an opportunity to make that last impression be the one that counts for your client. A

• opinion testimony regarding the defendant’s sobriety; • the circumstances of any accident; and • the results of any test of the content of alcohol in the defendant’s blood. This part of the charge, if carefully considered by a jury can be of concern to defendants charged with DWI because

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

Court Highlights Continued from page 16 Lynch v. Dimaya No. 15-1498, Cert. Granted September 29, 2016 Question Presented: Whether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague. Dean v. United States No. 15-9260, Cert. Granted October 28, 2016 Question Presented: Whether the Supreme Court’s decision in Pepper v. United States overruled United States v. Hatcher and related opinions from the U.S. Court of Appeals for the 8th Circuit to the extent that those opinions limit the district court’s discretion to consider the mandatory consecutive sentence under 18 U.S.C. § 924(c) in determining the appropriate sentence for the felony serving as the basis for the Section 924(c) conviction.

Second Circuit Highlights A summary of some of the Second Circuit’s most significant published decisions in favor of the defense.

Esquivel-Quintana v. Lynch No. 16-54, Cert. Granted October 28, 2016 Question Presented: Whether a conviction under one of the seven state statutes criminalizing consensual sexual intercourse between a 21-year-old and someone almost 18 constitutes an “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43) (A) of the Immigration and Nationality Act – and therefore constitutes grounds for mandatory removal. SEARCH AND SEIZURE United States v. Allen, 813 F.3d 76 (2d Cir. 2016) (Lynch, Sack, JJ.) (concurrence by Lohier, J.) Two days after an assault, officers went to the defend-ant’s apartment with a “pre-formed plan . . . to arrest [him] for the alleged assault and process him . . . at the Springfield police station.” The officers did not seek an arrest warrant. The defendant answered his door when the police knocked and spoke to them for five or six minutes, remaining inside his threshold. The officers ultimately informed the defendant that he was under arrest. The defendant asked if he could put on his shoes and tell his twelve-year-

old daughter that he was leaving. The officers said he could, but only if they accompanied him. The officers followed the defendant into his apartment. Once there, they asked the defendant if he had anything in his pockets. He had seven bags of marijuana. The officers also saw drug paraphernalia in the apartment. Based on these observations, the officers obtained a search warrant for the apartment and discovered a hand gun and more drug paraphernalia. The defendant was ultimately charged with being a felon in possession of a firearm. He moved to suppress the firearm. The district court denied the defendant’s suppression motion. The district court found that because the officers did not cross the threshold when they arrested the defendant, they were not required to have a war-rant or exigent circumstances. The defendant entered a conditional guilty plea, reserving his right to appeal the suppression issue. On appeal, the Second Circuit examined a line of cases stemming from the United States Supreme Court’s decision in Payton v. New York, 445 U.S. 573 (1980). In Payton, the Supreme Court held that officers violate the Fourth Amendment when, in the absence of exigent circumstances or consent, they physically enter protected premises to effect a warrantless search or arrest. The Fifth, Seventh, and Eleventh Circuits have held that there is no Payton violation unless the police physically cross the threshold and enter the home. The Sixth, Ninth, and Tenth Circuits have held that, in some situations, officers may violate Payton without physically entering the home. The Second Circuit held that “when officers approach the door of a residence, announce their presence, and place the occupant under

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

arrest when he or she, remaining inside the premises, opens the door in response to the police request, the arrest occurs inside the home, and therefore requires a warrant.” Here, that is precisely what occurred, and the officers did not have a warrant. Accordingly, the Second Circuit vacated the conviction, reversed the denial of the suppression motion, and remanded for further proceedings. United States v. Hussain, F.3d , 2016 WL 4536516 (2d Cir. Aug. 31, 2016) (Lohier, Calabresi, Lynch, JJ.) Officers observed a car run a stop sign. The officers activated their lights and sirens. The car proceeded for five to ten seconds, about half a block, and then pulled over to an open spot along the curb. As the car stopped, one officer observed the driver’s arm move up and down in the middle console area. The officer approached the car and observed the driver with a smart phone in his right hand, up to the side of his head. The officer asked the driver to put the phone down, and then to produce his license and registration. The driver did not respond to either request immediately. When the driver “started fumbling around the center console and then . . . reached for the glove compartment,” the officer feared for his safety. He ordered the driver out of the car. The driver complied immediately. The officer asked whether he had any weapons and the driver stated that he had a knife in his pocket. The officer frisked the driver and found a legal pocketknife with a two or three-inch blade in the driver’s pocket. The officer then directed the driver to move to the rear of the car. As all of this was happening, the other officer approached the passenger side of the vehicle. As he was approaching, he saw the driver move his hand to the center console and pick up a smart phone.

The officer observed that the passenger’s hands were in plain view and that the passenger’s shoulder was protruding into the console area of the car. The officer considered this an “unnatural” position designed to obstruct the officer’s view of the car’s interior. The officer did not communicate this observation to the other officer. When the officer heard the driver’s side officer say “knife,” he asked the passenger to get out of the car. The passenger complied. The officer frisked him and found nothing. He then escorted the passenger to the rear of the car. After both occupants of the car were standing near the trunk, the driver’s side officer returned to the driver’s door, searched the car, and found a loaded gun under the front passenger seat. The driver was ultimately charged with, inter alia, carrying a firearm. He moved to suppress the evidence discovered in the search of his car. The district court denied the motion under the officer safety exception to the warrant requirement set forth in Michigan v. Long, 463 U.S. 1032 (1983). The defendant was found guilty after a jury trial and appealed. The Second Circuit reversed and remanded. The Court of Appeals noted that, under Michigan v. Long, a police officer may conduct a warrantless search of the areas of the passenger compartment of a vehicle in which a weapon could be placed or hidden only if the officer possesses a reasonable belief based on specific and articulable facts that a suspect (1) is dangerous; and (2) may gain immediate control of weapons. The Second Circuit found that the facts before the district court did not support a finding that the officers had a reasonable and articulable suspicion of danger justifying the search of the car. The Court of Appeals strongly suggested that race played an

impermissible role in the search, noting that “stops fitting the same fact pattern (but say, different passengers of another race, gender, or ethnicity) would, we think, rarely if ever lead the police to suspect the passengers posed an immediate danger and justify a protective search of the passenger compartment.” SENTENCING United States v. Moreno, 821 F.3d 223 (2d Cir. 2016) (Lynch, Calabresi, Pooler, JJ.) The defendant pleaded guilty in Connecticut state court to one count of attempted assault in the second degree. Some, but not all, subsections of that statute qualify as aggravated felonies, subjecting certain individuals to enhanced sentences for subsequent federal crimes. Neither the plea colloquy nor the judgment of conviction identified which subsection applied to the defendant. During the plea colloquy, the prosecutor offered a version of the defendant’s underlying conduct. The defend-ant neither admitted nor denied that version of events. Years later, he pleaded guilty in federal court to one count of illegal reentry. At sentencing, the district court applied an eight-level specific offense characteristic in-crease under Guideline § 2L1.2(b)(1) (C) after determining that the defendant’s prior state conviction qualified as an aggravated felony. The defendant appealed, arguing that the district court incorrectly applied the Guideline. The Second Circuit applied the modified categorical approach because the Connecticut attempted assault statute is divisible, defining several distinct offenses. Under the modified categorical approach, courts may consider a Continued on page 32

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

Book Review Trials of the Century: A Decade-by-Decade Look at Ten of America’s Most Sensational Crimes by Mark J. Phillips and Aryn Z. Phillips (Prometheus Books, 2016).

Reviewed by Dick Barbuto

very good read which provides the reader with an understanding of the media›s role in influencing the outcome of high profile trials, the trials themselves and the cultural forces at work at the times of the individual cases. Indeed, when I first began the book I thought it would be a much shorter review, a brief examination if you will. As I progressed through the book I felt it deserved a more thorough treatment so it was turned into a complete review. The book could very easily have been titled “The Media Coverage of the Trials of the Century.” This is not a criticism but rather an observation. If polls are to be believed, there appears to be very little public confidence in the media. As an aside, the public’s confidence in the media may be lower than its confidence in lawyers. Starting with the murder of famed architect Stanford White in 1906 and ending with the O.J. Simpson trial, the authors recount compelling tales spanning more than a century. The most noteworthy cases are here—including the Lindbergh baby kidnapping, the Sam Sheppard murder trial («The Fugitive»), the «Helter Skelter” rampage of Charles Manson and his followers as well as other high profile American trials. It is not necessary to pick apart each of the trials in the book. It starts with the murder of Stanford White by Harry Kendall Thaw and that seems to be a logical place to start.

The reviewer of this book, Dick Barbuto, is a past president of NYSACDL. He has practiced criminal law in multiple jurisdictions, both state and federal.

White was an architect who worked in New York City at the end of the 19th and into the 20th century. It was a period of time known as the “Gilded Age.” When Mark Twain (along with fellow author Charles Dudley Warner) penned the phrase “Gilded Age,” he meant that the period was glittering on the surface but corrupt underneath. It was a time when great fortunes were amassed and conspicuous consumption was the way of the upper classes in America. Evelyn Nesbitt was a beautiful woman who graced the stage as a bit player in a

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

Broadway play although she was only 16 years old. White took a liking to her and they had an affair. No one seemed to notice or care about the age of Nesbitt. Eventually, she took up with, and married, Thaw after White expressed a lack of interest in her. On June 25, 1906, Harry Kendall Thaw, the millionaire of Pittsburgh and his (now) beautiful wife, Evelyn Nesbitt, attended a performance at the Roof Gardens Theater of Madison Square Garden. White was also in attendance and Thaw calmly approached his table, pulled out a revolver fired three shots into the head of White killing him instantly. Thaw explained “he ruined my wife and then deserted the girl.” The relationship of Thaw, White and Nesbit was complicated and I will not spoil it for the reader. Suffice to say, it was a fascinating time. With this killing began a lengthy trial. Not only was a major murder trial started, but a public addiction for murder driven trials involving sex, celebrity, money, and publicity was born. Throughout the book, the authors concentrate on sensational trials that in large part were made so by the media coverage. In some cases headlines about the trial were published as front-page news over major stories about World War II. That is just one example about how media outlets fed the public’s

thirst for sensationalism. The authors successfully show how newspapers tried to outdo each other with headlines and stories. The OJ Simpson case was also covered and could have been the last chapter. Fortunately, the authors wrote an epilogue concerning the Casey Anthony trial. It is clear that the authors wanted to include a trial at a time when social media had come into vogue and the treatment of that type of media coverage is a worthwhile chapter. The authors point out that not much has changed from the time of the Stanford White killing until the time of the Casey Anthony trial. While there may be differences in the number of newspapers that are being published today and the advent of television and social media, it is still clear that the press feels the need not only to report news but to report it in a sensational fashion. A quip that we often hear, “if it bleeds it leads” tells us quite a bit about how news outlets view their function. And a banner crawling across the TV screen proclaiming “Breaking News” regarding a story that is hours (and sometimes days old) is not really accurate now, is it?

rate. While the chapters are heavily footnoted the reader should not be put off by that. It is, after all, a history book and one that is a fun read. Mark J. Phillips holds law degrees from UCLA and New York University. He has been practicing law for thirty-five years with the Law Offices of Goldfarb, Sturman & Averbach in Encino, and taught for twenty-nine years at the University of West Los Angeles College of Law. Aryn Z. Phillips holds degrees from Emory University and the Harvard TH Chan School of Public Health, and is currently pursuing a Ph.D. in Public Health at the University of California at Berkeley. She has a special interest in the behavioral sciences.

The authors have written a very worthwhile book. The writing is crisp, the descriptions bring the reader into the story and the research is first

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

Brief Examinations The Twelve Dogs of Christmas, An Andy Carpenter Mystery by David Rosenfelt (Minotaur Books, 2106)

Reviewed by Dick Barbuto

Martha Boyer rescues dogs. Her nickname, which everyone uses, is Pups. At any given time she has 12 to 30 dogs residing in her immaculate home. Of course, the home is not zoned for any type of commercial purpose and a new neighbor complains to the zoning board. It’s Christmas time. The board sends out the usual cease and desist order and Pups gives a not uncharacteristic response telling the board where they may place their order. As a result a hearing is held and Carpenter, an attorney, wins the hearing. That evening, the person who complained, is found dead. Did I mention that 18 months previously Pups’ husband was gunned down in what was thought to be a drive-by-shooting. The gun that was used in the shooting of her husband was also the weapon used to execute, who else, but the person who complained about the dogs. Pups is arrested and put in jail pending trial and it is discovered that she has terminal cancer. And so begins the mystery part of the book. This is book 15 in the Andy Carpenter series. Carpenter never loses a criminal case and he is apparently rolling in money. Right away, the reader will note this is a work of fiction. Nonetheless, it is a fun read. Carpenter makes fun of everybody and everything and apparently this is a trademark of all the books in the series. He is also surrounded by various rather colorful people who add to the humor.

The reviewer of this book, Dick Barbuto, is a past president of NYSACDL. He has practiced criminal law in multiple jurisdictions, both state and federal.

If you are looking for a book that is rich in legal principles and drama, this is not it. If you are looking for a fun read where the defense lawyer wins all his cases, this is the book for you. I am not going to tell you how the book turns out but it shouldn’t be too hard to figure out on your own.

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

In Memoriam Paul D. MacAulay Words. As criminal defense lawyers we live by words – spoken words in court or written words in pleadings. Sometimes however, finding the right words is an arduous task. Long-time NYSACDL member Paul MacAulay died suddenly on December 6, 2016. He was a friend and colleague of 30 plus years and we’d had lunch together the preceding Friday at NYSACDL’s “Super Star” CLE in Buffalo. Paul frequently donated his time and experience on the NYSACDL listserve. Not surprising because he was someone always willing to pitch-in or offer a few words of encouragement. Paul both believed in and practiced

his conviction that everyone had dignity, from appellate court judges to triple predicate clients. For his clients, he fought to protect their dignity by being a tireless advocate. Anyone who knew Paul quickly realized he was the embodiment of Atticus Finch. As Harper Lee’s fictional character said, “No matter what anybody says to you, don’t you let ‘em get your goat.” Paul never did. My comments do not do justice to Paul as a friend, lawyer or human being. But, I need not worry because in a rare commentary, the Editorial Board of the Rochester Democrat & Chronicle, authored the following words that describe the essence of Paul. — Donald G. Rehkopf, Jr., Vice President

A true believer in justice for all Editorial Board, Rochester Democrat & Chronicle, December 15, 2016. And justice for all. How many times have we recited these four words at the end of the Pledge of Allegiance without giving much thought to what they mean? But, fortunately, there are people among us for whom this phrase is a guiding force. Paul D. MacAulay was one of them. You might not recognize his name, for he was rarely, if ever, in the headlines. He did not want to be, according to several people who knew him. That wasn’t his style. But, MacAulay, who died unexpectedly last week at the age of 69, was a local criminal defense lawyer who quietly spent decades representing — as stated in his obituary — “the most powerless and downtrodden in our community.” As a public defender and a private attorney, MacAulay dedicated much of his career to making sure that justice did not depend on one’s own ability to pay for it.

Over the years, MacAulay not only represented many poor defendants himself, he also volunteered in a variety of capacities to focus on improving equality in our criminal justice system — one of Unite Rochester’s leading objectives. In 2015, Monroe County and the Monroe County Bar Association’s Assigned Counsel Program handled nearly 3,600 homicide, felony and misdemeanor cases involving indigent clients in courts throughout the county. The defendants were charged with the full gamut of offenses: arson, assault, burglary, drug and weapon possession, DWI, gang assaults, robbery, prostitution, stalking, grand larceny, murder. The one thing every single defendant had in common, however, was the guarantee of counsel, deemed by the U.S. Supreme Court as essential to a fair trial. These cases are often very difficult to defend. The circumstances, to be frank, sometimes lead to high emotions and conflict between attorneys, clients and their family members. Some of the crimes they

are accused of committing are horrendous. Long hours preparing for court can be met with little or no gratitude. But a number of close colleagues told our Editorial Board that they never saw MacAulay lose his cool, his patience, or his unwavering belief that everyone is entitled to qualified legal representation. He was the first to raise his hand for the tough cases. He was a role model for young attorneys in the public defenders office and beyond. It is fitting that those wishing to honor his memory are being directed by MacAulay’s family to donate to Campaign for Justice, care of the Volunteer Legal Services Project, another initiative striving to provide high quality legal services to poor people in Monroe County. We can all recite the words, “justice for all.” MacAulay brought those words to life. A Reprinted with permission from the Editorial Board of the Rochester Democrat & Chronicle.

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

Court Highlights Continued from page 27 narrowly circumscribed universe of documents that includes the charging document, the terms of a plea agreement, or the transcript of a colloquy be-tween a judge and the defendant in which the factual basis for the plea is confirmed by the defendant. Any factual admissions in those documents must have been adopted or confirmed by the defendant. In this case, the Court of Appeals found that because the defendant pleaded guilty in state court “prior to [the] prosecutor’s allegations about the offense conduct, and d[id] not confirm those allegations in any manner, the defendant cannot be said to have assented to, or adopted, those allegations.” Absent the defendant’s assent or adoption, the prosecutor’s account could not be used to establish which particular portion of the divisible Connecticut statute that the defendant violated. Thus, the district court erred in applying the eight-level enhancement. The Court of Appeals remanded for resentencing. United States v. Thompson, 808 F.3d 190 (2d Cir. 2015) (per curiam: Chin, Katzmann, Pooler, JJ.) The defendant testified at a suppression hearing that his consent to law enforcement to search his apartment was not voluntary because the officers threatened to arrest his sister and girlfriend unless he consented. Specifically, he testified that the officers “got on the phone, they threatened me with -- they said if they search the house and they found anything, they was going to take my sister and my girlfriend at the time to jail.” The officer testified that he said “Just so you know, we’re waiting for a search warrant and of course if anything illicit is found here, anyone in the apart-

ment is subject to arrest.” In its order denying the defendant’s suppression motion, the district court stated that it did not find the defendant’s testimony credible. A jury convicted the defendant of one count of conspiracy to distribute and to possess with intent to distribute cocaine, cocaine base, and oxycodone. The presentence report (“PSR”) recommended a two-level enhancement for obstruction of justice because the district court “expressly characterized” the defendant’s suppression hearing testimony “as equivocal, inconsistent, and contradictory” and “concluded that his conflicting testimony on this central issue could not be credited.” The defendant objected to the enhancement in his sentencing memorandum, contending that he “made [the disputed] statements believing that they were true; they were not meant to be willfully false or misleading.” The defendant objected again to the enhancement at the sentencing hearing. The district court did not address the enhancement or the defendant’s objections, but adopted the PSR’s Guidelines calculations. The defendant appealed. The Second Circuit remanded for resentencing. The Court of Appeals noted that be-fore applying the obstruction enhancement based on perjury, the sentencing court must find by a preponderance of the evidence that the defendant (1) willfully; (2) materially; (3) committed perjury, which is (a) the intentional; (b) giving of false testimony; (c) as to a material matter. The Second Circuit disagreed with the government’s argument that a district court judge can satisfy this standard simply by adopting a PSR’s conclusory statement that the defendant committed perjury. Rather, the Second Circuit stated, a district court may only rely on the PSR if the PSR “sets forth

reasonably detailed findings in support of its conclusions.” These findings must include findings that the defendant had the willful intent to provide false testimony, rather than simply being confused, making a mistake, or having a faulty memory. United States v. Young, 811 F.3d 592 (2d Cir. 2016) (Cabranes, Lohier, Parker, JJ.) The defendant pleaded guilty to three firearms violations. When interviewed by Probation for the presentence report, the defendant stated that he never sold guns to known drug dealers, had no reason to think that the guns he distributed would be used in connection with felony offenses, and had never dealt in firearms before 2012. The probation officer did not believe him. The district court conducted a hearing to determine whether the defendant had lied to the probation officer. A firearms dealer testified about conversations he had with the defendant indicating that the defendant dealt in firearms before 2012 and sold to known drug dealers. The drug dealer that the firearms dealer mentioned also testified. He testified that the defendant had never sold guns to him but that he had observed the defendant sell three guns to another drug dealer. The defendant took the stand and testified that he had never sold guns to anyone he knew to be a drug dealer and that he had not engaged in trafficking before 2012. Following the hearing, the district court judge made factual findings on the record. He credited the testimony of the arms dealer and the drug dealer. He concluded that the defendant had lied to the probation officer. Accordingly, he imposed sentencing enhancements under Guideline § 2K2.1(b)(6)(B) (transferring a firearm Continued on next page

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

Court Highlights

From 90 State

Continued from previous page

Continued from page 6

with reason to believe it would be used in connection with another felony) and Guideline § 3C1.1 (obstruction of justice). The district court also imposed a sentence enhancement under Guideline § 2K2.1(b)(5) (trafficking in firearms). The district court sentenced the defendant to fifteen years.

participate where you are interested and able. I echo John’s words and encourage you to review the committee listing at the end of this issue – see something you are interested in? Please let John or I know and we will discuss it with you! Not ready to take on committee participation now? Watch for opportunities to participate in legislative initiatives by sending an email, a tweet or even speaking directly with your representatives. Social Media: Speaking of social media, if you are active on Facebook and/or Twitter, be sure to follow NYSACDL’s pages for information about upcoming events, NYSACDL activities, and important regional, state and national news. Beyond just following, liking, and

The defendant appealed. The Second Circuit remanded for resentencing. The Court of Appeals held that, pursuant to Guidelines Application Note 13(D) to Guideline § 2K2.1, imposing enhancements under both Guideline § 2K2.1(b) (5) and (6)(b) is impermissible doublecounting where the defendant transfers a firearm not in connection with another felony offense, but with knowledge, intent, or reason to believe that it would be later used in connection with another felony defense. The Court of Appeals further held that the district court erred by imposing the obstruction of justice enhancement without entering a finding that the defendant acted with the intent to obstruct justice. A

From the Editors Continued from page 5 contact the committee chair if you have relevant material or information; the legislature is considering establishing a statewide commission, akin to the Judicial Conduct Commission, to deal with the ever-increasing problem, and NYSACDL stands firmly behind the effort. A

commenting on posts; sharing items, especially those concerning legislative initiatives, is important to generate a following and show the importance of the issue to representatives. Thank you for considering the above opportunities carefully. I look forward to working with you and hearing from you throughout 2017. Particularly, I hope to see you at the upcoming Annual Dinner or one of our CLE seminars in 2017 – please introduce yourself! As always, thank you for your steadfast commitment to your profession and your clients. Wishing you many blessings in the new year! A

Preserving State Constitutional Claims Continued from page 10 need not wait for inauguration day, is grounded in the ways that many provisions of the New York State Constitution have historically been interpreted as more protective of individual rights than identically worded provisions of the federal constitution. As just one example, the Court of Appeals has held that New York’s Constitution is more protective of the right to counsel than the federal Constitution. See People v. Caban, 5 N.Y.3d 143, 155-56 (2005). Given that the State Constitution may often confer greater rights than the federal constitution, it is incumbent on New York defense lawyers who perceive judicial unfairness to object explicitly on both federal and state constitutional grounds – in additional to evidentiary, statutory or other grounds. Should a Trump-nominee dominated Supreme Court narrow the scope of a particular federal constitutional right, the New York Court of Appeals might not follow suit when it comes time

for it to interpret the analogous provision of the State Constitution. However, the subset of those New York defendants eligible to benefit from the more protective state standard would be limited to those whose lawyers had the foresight to ground their advocacy explicitly in both constitutions. Time will tell whether the fears of many members of our defense community will be realized. We do not know whether budding attempts to reform excessive federal sentencing practices will gather steam or die a quick death in 2017. We do not know the extent to which the federal government will pressure local criminal prosecutors to report undocumented immigrants to federal immigration authorities. We do know, however, that the New York State constitution is our own, and that we are influential participants in the process of how it is interpreted and enforced. A

Atticus | Volume 29 Number 1 | Winter 2017 | 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 PRESIDENT

LIFE MEMBERS

John S. Wallenstein, Garden City

Daniel Arshack Wayne C. Bodden Peter E. Brill David J. Cohen Lori Cohen Anthony J. Colleluori Terrence M. Connors Anthony Cueto Gerard M. Damiani Telesforo Del Valle, Jr. Joshua L. Dratel Russell M. Gioiella Lawrence S. Goldman Trevor W. Hannigan Renee Hill E. Stewart Jones Kathryn M. Kase Ray Kelly Lee Kindlon Terence L. Kindlon Seth Kretzer Gerald B. Lefcourt David L. Lewis

PRESIDENT-ELECT Robert G. Wells, Syracuse

FIRST VICE PRESIDENT Lori Cohen, Manhattan

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

SECRETARY Mark Williams, Olean

TREASURER Robert N. Isseks, Middletown

EXECUTIVE DIRECTOR Jennifer Ciulla Van Ort, Albany

Thomas F. Liotti Florian Miedel Aaron Mysliwiec Brian Joseph Neary Thomas J. O’Hern Paul D. Petrus Frank Policelli Murray Richman Stacey Richman Todd J.W. Wisner

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

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

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

NYSACDL WELCOMES OUR NEW MEMBERS (AS OF DECEMBER 29, 2016) ALBANY COUNTY

ESSEX COUNTY

Kevin Luibrand

Noreen McCarthy

BRONX COUNTY

KINGS COUNTY

Samuel Braverman

Amos Cohen Edward Daniels Kathryn Lissy Jessica Nitsche Hemangi Pai Danielle Regis Marissa Sherman Joseph Sieger

BROOME COUNTY Andrew Newmark Kevin Riddell

CORTLAND COUNTY Fawn A. Scrano

DUTCHESS COUNTY Richard Croughan Chelsy Jones

MICHIGAN

ERIE COUNTY

NEW YORK COUNTY

David Addelman Michael Scott Deal Patrick E. Fitzsimmons Marianne Mariano J. A. Tony Olivo

Richard Convertino

Russ Kofman Paul Layton Robin Nichinsky Michael Pollok Andrew L. Weinstein

ONEIDA COUNTY Evan Esswein

QUEENS COUNTY Edward J. Muccini Ali Najmi Steven Zissou

ULSTER COUNTY Gerard M. Carey, Jr. Lawrence Trank

Daniel L. Bibb Joseph Carbonaro Gary L. Cutler Matthew De La Torre Peter M. Frankel

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

Join the Committee

NYSACDL standing committees are chaired by members in good standing who are appointed by the President. Committee membership is a rewarding opportunity for members to network with colleagues throughout the state and to explore various issues in depth. Members are invited to join committees to further the important work of our association. If you are interested in joining a standing committee (listed below), please contact the committee chair or the Executive Directorâ&#x20AC;&#x2122;s office: jlvanort@nysacdl.org, 518-443-2000, for more information. AMICUS CURIAE COMMITTEE

MEMBERSHIP COMMITTEE

Chairs: Marc Fernich (maf@fernichlaw.com), Brendan White (brendan@whiwhi.com) Members: Robert Isseks, Timothy Murphy, Russell Schindler, Richard Willstatter

Chairs: James Grable, Jr. (jwg@connorsllp.com), Robert Wells (dfndr@hotmail.com) Members: Michael Baker, Bruce Barket, Mitchell Dinnerstein, Peter Dumas, James Grable, Timothy Hoover, Aaron Mysliwiec, Andre Vitale

ANNUAL DINNER COMMITTEE Chair: Robert Wells (dfndr@hotmail.com) Members: Lori Cohen, Timothy Hoover, Andre Vitale, John Wallenstein

MILITARY/VETERANS AFFAIRS COMMITTEE

CONTINUING LEGAL EDUCATION COMMITTEE

PROSECUTORIAL AND JUDICIAL COMPLAINT COMMITTEE

Chair: Michael Baker (MBaker@co.broome.ny.us) Members: James Grable, Jr., Andrew Kossover, Stephen Kunken, Yung-Mi Lee, Arnold Levine, Greg Lubow, Allison McGahay, Brian Melber, Kenneth Moynihan, Timothy Murphy, Donald Rehkopf, Jr., Andre Vitale, Robert Wells

INDIGENT DEFENSE COMMITTEE Chair: Andre Vitale (avitale@monroecounty.gov) Members: Michael Baker, Andrew Kossover, Susan Walsh, Mark Williams

FINANCE AND PLANNING COMMITTEE Chair:Robert Isseks (isseks@isseksandsmith.com) Members: Wayne Bodden, Lori Cohen, Timothy Hoover, Andrew Kossover, Brian Melber, Aaron Mysliwiec, John Wallenstein, Robert Wells

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

LEGISLATIVE COMMITTEE Chairs: Andrew Kossover (ak@kossoverlaw.com); Lisa Schreibersdorf (lschreib@bds.org) Members: Bruce Barket, Wayne Bodden, Greg Lubow, Aaron Mysliwiec, Kevin O'Connell, Alan Rosenthal, Andre Vitale, Mark Williams

Chair: Donald Rehkopf, Jr. (drehkopfjr@brennalaw.com) Members: Mark Williams

Chair: Marvin Schechter (marvin@schelaw.com) Members: Daniel Arshack, Jane Fisher-Byrialsen, Bennett Gershman, Andrew Kossover, Russell A. Schindler, Donald M. Thompson, John S. Wallenstein, Richard D. Willstatter, Ellen Yaroshefsky

PUBLICATIONS COMMITTEE Chairs: Jessica Horani (jhorani@nycds.org), Alan Lewis (lewis@clm.com) Members: Richard Barbuto, Benjamin Ostrer, Lisa Peebles, Claudia Trupp, John Wallenstein

PUBLIC STATEMENTS COMMITTEE Chair: John Wallenstein (JSWallensteinEsq@outlook.com) Members: Alice Fontier, Lawrence Goldman, Timothy Hoover, Jessica Horani, Andrew Kossover, Susan Walsh, Richard Willstatter

WHITE COLLAR CRIME COMMITTEE Chairs: Brian Melber (bmm@personiusmelber.com), Michael Shapiro (MShapiro@clm.com) Members: Robert Caliendo, Joshua Dratel, James Grable, Timothy Hoover, Arnold Levine, Kenneth Moynihan, Aaron Mysliwiec, Richard Willstatter, Robert Wells

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

NYSACDL

New York State Association of Criminal Defense Lawyers

Membership Application Please print or type

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

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

Lifetime Member President’s Club Sustaining Member Regular Member

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

$2500 $515 $315 $223

Regular Member

$145

Full-time Public Defender Allied Professional Member

$145 $197

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

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

Retired Attorney $93 Law Student/Recent Law School Alumni (less than one year since completion) $67 School: __________________________

Graduation date: __________________

Membership dues can be paid by check or charged to American Express, MasterCard, or Visa. Please charge to my credit card.

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

Credit card #: ____________________________________________ Exp. date: _______________________________________________ Signature of applicant: _____________________________________ Date:______________________________ CVV code_____________ Billing Address:____________________________________________

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

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

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

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

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

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

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

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

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

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

December 2, 2016 dawned crisp and sunny in Buffalo, New York, putting smiles on the faces of the 70+ attendees at the U.S. Courthouse, WDNY, who arrived bright and early for the 2016 Superstar Trial Seminar. Although the weather quickly turned gray, windy and cold (Buffalo in December…who knew?), coffee, bagels and fruit helped ward off the chill, as we gathered to hear six experienced practitioners speak on a variety of topics. The morning began with NYSACDL member Michael Ross, one of New York’s leading experts on professional responsibility and professional discipline, discussing the Rules of Professional Responsibility as applied to the criminal defense bar. Michael gave us some excellent advice about the drafting of retainer agreements, and protecting the confidences of our clients while still providing effective assistance of counsel. Michael was followed by John Paolucci, an expert on blood spatter and crime scene analysis. John is a retired NYPD Detective sergeant who commanded a crime scene unit, and is now a sought after private investigator. His interesting and truly informative discussion, highlighted by an excellent powerpoint, was mesmerizing at times. The morning session concluded with NYSACDL member Elizabeth Macedonio, who in 2015 won acquittal for reputed mob boss Vincent Asaro in the

CLE

1979 Lufthansa robbery case, (think “Goodfellas”) discussing the defense of high profile cases. Elizabeth’s presentation was very well received, as she discussed the necessity for building a defense team and maintaining relations with the client, among other things. After lunch, the attendees were treated to NYSACDL Past President Mark Mahoney on “The Right to Present a Defense”, which just happens to be the title of Mark’s monograph, an amazing resource which should be in every trial bag. Mark discussed the evolution of the right, from the Constitution on down to local statutes and court decisions, and gave us tremendous insight for helping our clients present their side of the story to the court and jury. Mark was followed by NYSACDL President-elect John Wallenstein, who spoke about bail and pretrial release in both state and federal courts. John provided the statutory bases for your bail applications, and gave us some great insight

into countering the prosecutorial proclivity for seeking remand for just about every defendant. He discussed release on conditions in federal cases, and some creative bond conditions that can be applied, if you have the right case! The afternoon concluded with John Speranza, one of the deans of the Rochester criminal bar, who provided us with some great ideas for heading off the Government before charges are filed. John has had a long and successful career, with many high profile cases, and he regaled us with the stories of his successes, each of which held a great lesson for our future use. NYSACDL thanks the presenters for providing a full day of useful, challenging information for our arsenal. Thanks are also due to NYSACDL Directors Brian Melber and Tim Murphy, who coordinated the program, arranged for the venue and kept things moving. We’re already looking forward to the 2017 Superstar program!

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

Save the Dates for Spring CLEs March 2017 Panel Discussion on Trauma with Elsie Chandler, Dr. Alexandra Cox, and Art Cody (L to R), Weapons for the Firefight 2016

NYSACDL President-Elect John Wallenstein talks about Bail & Pre-Trial Release, Superstar Trial Seminar 2016

Central New York Spring Criminal Defense Seminar 2017 Syracuse Law School, Syracuse Mark Mahoney provides his thoughts on the Right to Present a Defense, Superstar Trial Seminar 2016

March 31

Cross to Kill 2017 New York Law School, New York

April 2017 NYSACDL Secretary Jessica Horani introduces speakers at Weapons for the Firefight 2016

Adirondack Criminal Defense Seminar 2017 Lake Placid, New York NYSACDL Board of Directors member Robert Isseks tackles the civil side of a criminal case, Weapons for the Firefight 2016

April 28 Elizabeth Macedonio works with volunteer witness Arnold Levine, NYSACDL Vice-President, during a presentation on high-profile cases, Superstar Trial Seminar 2016

Important Topics for Federal Practice 2017 New York Law School, New York

June 9

Upstate Criminal Defense Seminar 2017 Gideon Putnam, Saratoga Springs John Speranza discussing PreCharge Advocacy, Superstar Trial Seminar 2016

Members of the Legal Aid Society in New York Cityâ&#x20AC;&#x2122;s DNA Unit present basics and beyond at Weapons for the Firefight 2016

Robert Dean of The Center for Appellate Litigation presents on jury issues

John Paolucci presents on the science behind blood spatter analysis, Superstar Trial Seminar 2016

Details & Registration Available at www.nysacd.org

Attendees at the annual Weapons for the Firefight 2016, New York Law School

Atticus | Volume 29 Number 1 | Winter 2017 | New York State Association of Criminal Defense Lawyers

Publication of the New York State Association of Criminal Defense Lawyers

90 State Street, Suite 700 Albany, New York 12207

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

atticus@nysacdl.org www.nysacdl.org

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

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