Atticus - Spring 2017 - The Legislative Issue by NYSACDL

Spring 2017 | Volume 29 | Number 2

ATTICUS INSIDE this

Publication of the New York State Association of Criminal Defense Lawyers

The Legislative Issue

ISSUE 3

Message from the President

From the Editors

Dispatches from 90 State

From the Defense Table

Legislative Committee Report by Lisa Schreibersdorf and Andy Kossover

Appellate Division Jan-Feb 2017 by Timothy P. Murphy

Court of Appeals by Timothy P. Murphy

Familial DNA Searching by Brad Maurer

It Takes a Team by Steven Epstein and Christopher Puckett

Book Review

Cutting Edge CLE

New York State Association of Criminal Defense Lawyers

w a l d l fo d n i l b e h t l a e p #re

Raise the Age …PASSED. Indigent Defense Funding …PASSED Now, on to Discovery Reform …

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

Anthony M. La Pinta, Hauppauge Yung-Mi Lee, Brooklyn Greg D. Lubow, Tannersville Elizabeth E. Macedonio, Manhattan Allison M. McGahay, Lake Placid Brian Melber, Buffalo Cheryl Meyers-Buth, 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 Alan S. Lewis, Manhattan DIRECTORS Mitchell J. Dinnerstein, Manhattan Peter A. Dumas, Malone Steven B. Epstein, Garden City Marc Fernich, Manhattan James W. Grable, Jr., Buffalo Mark Hosken, Rochester

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 2 | Spring 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 John S. Wallenstein

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.

This is a painful column to write. On April 3, our Treasurer, Bob Isseks, died suddenly and unexpectedly, leaving a void in so many places: first and foremost, in his family, to whom we extend our most sincere condolences; in our NYSACDL family, where Bob was an active and wholehearted participant on our Board; in his community of Middletown, where he was well known; and in the legal community, which will sorely miss his talent, dedication, and expertise. Please take the time to read the moving obituary, elsewhere in this issue, written by his longtime friend Past President Andy Kossover, and perhaps reflect on the vagaries of this life. Our Association also mourns the recent loss of Dennis Murphy. Dennis was for many years the Director of Training for the Legal Aid Society in New York City, and a friend and mentor to many. Take a look back at our listservs; before his move to the West Coast a few months ago, Dennis was always there, answering questions, providing advice and case cites, and most of all encouragement. The defense community is diminished by his loss. Winter seems to have finally given up the ghost. As this is written, (my third revision) I’m looking out my office window into bright sunshine, and the snow Mother Nature decided to drop on us in March is gone. Of course, I’m on Long Island, and while the 6 inches or so we got seems like a tremendous amount, I’m mindful that our colleagues in Syracuse, the Hudson Valley, Buffalo, and the rest of our great state think that we’ve just gotten a dusting in comparison to the snowfall there, where it’s measured in feet. All I can say to that is: come join me on the Long Island Expressway, and you’ll feel my pain!! As we look forward to spring, the legislature in Albany has finally finished wrangling over the budget. The Governor’s criminal justice program bills, detailed elsewhere in this issue, have become a part of the budget. NYSACDL has been lobbying actively for the passage of true criminal justice reform this session. We participated in Public Defense Lobby day, which saw public defenders and other organizations from around the state trudging around the Capitol and Legislative Office Building to meet with legislators and staffers in an effort to pass the Justice Equality Act, which would bring the promise and premise of the Hurrell-Haring settlement to all counties. At a press conference beginning the day (where I represented NYSACDL) a coalition of NYSACDL, the Chief Defenders Association, the Albany County Executive, the Albany chapter of the NAACP, and the Bishop of the Albany Diocese spoke to the press in effort to garner public support for the bill. Continued on page 39

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

From the Editors’ Desk John S. Wallenstein, Jessica Horani, Alan S. Lewis

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.

Spring has sprung and here in the criminal defense community we have witnessed an amazing rebirth and groundswell of progressive criminal justice legislation being introduced in New York in the past year and with considerable public support we have seen several measures passed; most notably Raise the Age and the Criminal Justice Act bill. This legislative issue of Atticus brings you a comprehensive review of some of the most important criminal justice measures which have been passed and those still on the table and will help inform all our members and hopefully encourage you to join us as we continue our involvement in the legislative process. As evidenced by the passage of the Criminal Justice Act bill, our time spent speaking with legislators at the recent Public Defense Lobby Day was time well spent as we relayed our concerns regarding the prospect of a non-independent indigent oversight committee and shared anecdotal reasons for the need for a strong publicly funded indigent defense in New York. Many of us also referred in our conversations to the issues raised in the recent documentary about Kalief Browder, which was produced in part by Jay-Z and aired on Spike TV, as further evidence of the need for not only a strong public defense system but also for bail and discovery reform. In future issues of Atticus you can expect to see coverage and reviews of more of these documentaries, television and film specials as they are bringing many of our criminal defense concerns to a wider public audience than we have previously seen. We will also bring you coverage of and now encourage you to participate in the Discovery Reform Lobby Day in Albany on May 16th. Discovery has been a consistent priority for our association and it appears that we may finally have the public and bipartisan support needed to effect real changes in discovery practices. We hope to finally obtain some real due process reform for our clients across the state. Our push for discovery reform coincides this year with Chief Judge Janet Difiore’s ‘Excellence Initiative’ which seeks to move indicted felony matters, particularly violent felony offenses, through the criminal justice system more quickly. As trial practitioners; we believe that discovery, early and meaningful discovery, must take precedence over mere expedience. It is our belief that with true discovery reform the system will benefit as a whole as more cases will be able to be resolved or go to trial in a both timely and just fashion. An article of note in this issue is Brad Maurer of New York County Defender Services’ article based on his testimony against a proposal of the DNA Subcommittee of the Commission on Forensic Sciences to authorize Familial DNA Searching. Maurer lays out in clear and persuasive terms the reasons for disallowing this Continued on page 34

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

EDITORS

Dispatches from 90 State

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

Jennifer Van Ort Executive Director Lobby Day: An organized day where participating members of your association convene and meet with lawmakers to promote your association’s policy objectives. There is no replacement for face-to-face interaction between association members and lawmakers. (www.muster.com) When I was in high school and thinking about colleges and careers, my father, after overhearing me on the phone organizing plans for some high school revelry, told me that I was going to wind up getting a job managing all the artists I was friends with. That really meant I was destined to help passionate, energetic people, such as NYSACDL’s Board of Directors and members, collaborate, meet, and advocate for their colleagues and their clients. Never was I more privileged to do so than at the recently successful Public Defense Lobby Day. Helping to organize a lobby day was a first for me, and it was an excellent and educational experience. I had the pleasure to join in on meetings and I always enjoy hearing members talk about the issues that are important to them, and ultimately, important to the defense of their clients, to those who need to hear them. The energy in the meeting room during lunch and as people regrouped after meetings was palatable. As we now know, our efforts that day and many others paid off – thank you to all of those who participated. Many of the attendees of the Public Defense Lobby Day enjoyed the process of meeting with their representatives to discuss these matters. Many of them commented on how energizing, and easy, it was to spend time with elected officials or staff in Albany. I believe many of them would consider joining us again. As it so happens, we have another excellent opportunity upcoming to participate in a similar event. On Tuesday, May 16, NYSACDL will be joining other organizations in a Discovery Reform Lobby Day; the first of its kind. The goal is to have a large group of attendees meet with as many representatives as possible to discuss the importance of New York State Discovery Reform. If you or a client have been personally affected by the lack of discovery in New York State, we encourage you to attend. Even if you have only seen how a lack of discovery is harmful to the defense of the accused in New York State, we encourage you to attend. Even if you only have part of the day to commit, we encourage you to attend. Do you see the theme? We encourage you to attend! Registration is available online at www.nysacdl.org. If you have any questions, please don’t hesitate to contact me. Participation in Discovery Reform Lobby Day is not limited to NYSACDL members. Please share with others who may feel strongly enough about this issue to join us in Albany for the day. In the materials presented to lawmakers during this day, the size of NYSACDL’s membership will be an important and prominent number. If a non-member is interested in attending, please encourage them to Continued on page 34

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

From the Defense Table: Celebrating the Achievements of NYSACDL Members in the Courts APPELLATE DIVISION, 2ND DEPARTMENT REVERSAL AND HEARING GRANTED John Ingrassia obtained a reversal from the Appellate Division, Second Department on behalf of his client, Natascha Tiger, a woman who pled guilty to endangering the welfare of a physically disabled person, a felony, after a ten year old disabled girl suffered what appeared to be third degree burns while in her care. Ms. Tiger pled guilty after making a statement to the police that the child was scalded while she was giving her a bath. During the plea allocution Ms. Tiger told the Court that she had checked the water and that it wasn’t hot but after consultation with her attorney at the time she stated that she must have made a mistake if the water was hot enough to cause the burns. Lawyers defending Ms. Tiger’s employer in a lawsuit based on the incident discovered that the child suffered from an autoimmune reaction known as toxic epidermal necrolysis. Ms. Tiger appealed her conviction stating that her lawyer failed to investigate after she told him she had learned that the child had Stevens Johnson Syndrome, an autoimmune reaction to certain medications.

the appeal and the Appellate Division on March 1, 2017 held that she was entitled to a hearing in order to attempt to establish her innocence. Ingrassia was quoted in the Times Herald-Record which covered the case, saying he was, “thankful that we won the first step and are on our way to get her completely vindicated.”

The People argued that Ms. Tiger’s plea barred her claim of innocence in

The People’s case alleged that the defendant, who was in a relation-

TOP COUNT SEX TRAFFICKING ACQUITTAL IN MANHATTAN Tara Whelan obtained an acquittal on all but one count of a multiple count Sex Trafficking indictment in New York County before Judge Thomas Farber on January 31st, 2017 along with lead counsel Damian Brown. Whelan and Brown’s client was charged with 2 counts of Sex Trafficking under Penal 230.34 (5) (a) and (e) - the first being trafficking by force or instilling fear of physical injury and the second being by means of a threat to expose the secret - and 3 counts of Criminal contempt in the 1st Degree based on 3 separate alleged attacks that took place out of state in alleged violation of an order of protection in effect in NY at that time.

ship with the complaining witness for a number of years, had forced her into prostitution during a six month period of time from August 2013 until January 2014. The People presented evidence of an argument that turned physical when the defendant allegedly forced the complainant out of her car and kicked her in the face with his boot leaving a bruise which was present when she reported the violence the next day. Prosecutors claimed that this act of violence was the start of the sex trafficking and the defense argument was that the complainant was engaging in prostitution of her own free will and that the defendant, if he did engage in physical arguments with her, was not using force to compel her into prostitution but rather was upset that she was a prostitute and wanted her to stop. There was a back story where the complainant came from a very religious Mormon family and that is where the allegation came in that the defendant threatened to expose a secret by claiming he threatened to ‘expose’ the complainant to her family. Again; the defense argued that the threats and eventual disclosure of what she was doing to her family by the defendant were for the purposes of getting her to stop engaging in prostitution rather than compelling her to continue. The defense relied heavily on an intense cross examination of the complainant by Whelan during which the facts of the long term relationship between her and

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

As lawyers, our first responsibility is, of the defendant were revealed. During the direct testimony of the complainant she testified to approximately a dozen instances of physical violence. Whelan was able to take a more no-nonsense approach when questioning the complainant about her own decision to engage in and to continue with prostitution and was able to ultimately discredit entirely the allegations that her client had forced the complainant into those acts despite the complainant’s testimony of violence within the relationship. Whelan and Brown were ultimately successful in acquitting their client completely on the sex trafficking charges and all but one of the criminal contempt charges based on one of those alleged acts of violence during a period when there was a valid order of protection in place. That count was supported in the People’s case by a police report, photos, and medical records whereas the others were not and the testimony of the complainant after the cross examination was not fully credited by the jurors as to the other allegations. FEDERAL SEX ASSAULT ACQUITTAL IN EDNY Member Matt Galluzzo obtained a full acquittal in the Eastern District on January 20, 2017 before Judge Pamela Chen in a press case where the client was alleged to have groped a fellow passenger onboard an international flight from Athens to New

York. The Government called three eyewitnesses to the alleged groping as well as the complainant herself in addition to a flight attendant and two law enforcement officers who testified about supposed inconsistent postflight statements made by the client. The defense adopted the strategy of conceding that the civilian witnesses on the plane were telling the truth about what they saw (even the complainant for the most part), but that the wrong conclusions were being drawn by the Government about the client’s intent and state of mind. Galluzzo argued that his client suffered from sleep apnea and had taken medication for the flight as well as drinking alcohol and didn’t realize he was inappropriately touching the female passenger while he was sleeping. The client testified in his own defense and his girlfriend who was on the same flight with him as well as character witnesses all testified in the defense case. Judge Chen previously denied the defense request to have a sleep apnea expert testify. A

course, to see that the legal profession provides adequate representation for all people in our society. I would suggest that there is no subject which is more important to the legal profession, that is more important to this nation, than... the realization of the ideal of equal justice under law for all. — Richard M. Nixon Address to National Legal Aid and Defender Assn. (October 1962)

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

NYSACDL

Legislative

Committee Report

By Lisa Schreibersdorf and Andy Kossover, Co-Chairs, Legislative Committee

DISCOVERY Discovery reform is NYSACDL’s highest legislative priority, as President Wallenstein recently re-emphasized at the Association’s annual dinner. NYSACDL is leading a coalition of bar associations and grassroots organizations working to “repeal and replace” New York’s current discovery law. In this context, the Legislative Committee is actively working on a campaign that begins on May 16th, at a lobby day with a coalition of organizations and individuals who support early and full discovery. Please go to our website and sign up—we need you!

Lisa Schreibersdorf is Co-Chair of the NYSACDL Legislative Committee, and a past president of NYSACDL. She is the Executive Director of Brooklyn Defender Services.

Andrew Kossover is Co-Chair of the NYSACDL Legislative Committee, and a past president of NYSACDL. He is Chief Public Defender, Ulster County, NY

New York’s discovery law is among the most restrictive in the nation, resulting in daily injustice. Wrongful convictions and extended pre-trial detention of people who have been charged without sufficient evidence are the most harmful direct consequences of a discovery regime that, for long periods of time or permanently, keeps crucial evidence

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

hidden from the defense. Our current discovery statute, C.P.L. 240, passed by the state legislature in 1979, does not require disclosure of the most critical evidence until a jury has been sworn, and seriously curtails what must be turned over – even at that time. In New York State, a person charged with a crime may never see the police reports that were generated in the case, a shocking fact that reveals the inherent lack of balance and fairness is our discovery system. Our state’s restrictive discovery laws impair the ability of those accused of crimes to fully investigate and defend against the allegations they face. This foments prosecutorial misconduct, inviting prosecutors to withhold information that might reduce the chance of conviction. In many recently documented examples, people have been jailed for months or years, only to learn that no evidence ever really existed against them. Sadly but not surprisingly, this state of affairs results regularly in welldocumented wrongful convictions. Over the past 40 years, most states – particularly those with large urban centers – have enacted open file discovery. Broad discovery has long been the norm in Los Angeles, Chicago and Boston. New Jersey enacted expedited and liberalized criminal discovery in 1973; Florida did so in 1968. Texas (2014) and North Carolina (2004) enacted open discovery statutes, and Ohio, in 2010, made its already broad discovery rules even more open. No state that has enacted more open discovery rules has later gone back to impose restrictive ones. The solution to New York’s discovery issues is no secret. The New York State Bar Association brought together a diverse committee of judges, law professors and lawyers to examine the statute

and propose changes. Their 2015 report is a model for reform that should be adopted by the state legislature to bring New York’s discovery rules in line with the rest of the nation. The current bill that most closely resembles the one proposed by the NYSBA is S.3334 (Bailey). Our state’s prosecutors have opposed discovery reform. They know that, without information about the case, the defense cannot investigate the case or analyze the quality of the evidence. This allows the prosecutor to make plea offers that may not reflect the weakness of the case and which therefore coerce our clients into accepting bad deals. Our state’s prosecutors cite “witness tampering” as their excuse for opposing discovery reform. But the experience of every other state that has liberalized discovery has been no identifiable increase in witness tampering. In any event, there are adequate provisions in every discovery-reform bill to ensure that all crime victims and witnesses are safe and protected. NYSACDL stands ready to work with the prosecutors to iron out any concerns. The Assembly passed a very narrow amendment to the existing discovery law earlier this year. A.3056 (Lentol) makes clear that prosecutors must disclose information that is merely potentially favorable to the defense. However, no analogous bill has yet been passed by the Senate. NYSACDL SUPPORTS this first step but recognizes that only comprehensive discovery reform will bring New York’s discovery laws in line with the rest of the country. INDIGENT DEFENSE FUNDING The legislature recently passed an indigent defense funding bill that is much less robust than the bill vetoed by

Governor Cuomo in December. Last year, NYSACDL supported the Justice Equality Act, or A.6202B (Fahy)/ S.6341A (DeFrancisco), which would have required the State to reimburse counties for the costs of providing legally mandated public defense services. Ever since the U.S. Supreme Court held in Gideon v. Wainwright that the Constitution provides indigent defendants with the right to the appointment of counsel, New York has delegated its responsibility to provide counsel to the individual counties. The result has been a consistent and often severe underfunding of public defense systems. In 2007, the New York Civil Liberties Union (NYCLU) filed the class action lawsuit Hurrell-Harring, et al. v. State of New York. In 2014 the NYCLU negotiated a settlement that would bring funding and reform to the five New York counties named in the lawsuit – Ontario, Onondaga, Schuyler, Suffolk and Washington. S.6341A/A.6202B would have gone further by mandating that the State reimburse the counties for the costs of indigent defense borne by all counties. That bill passed unanimously in the Assembly and Senate but Governor Cuomo vetoed it on New Year’s Eve, citing its costs. The legislation that passed this year would provide funding that ameliorates the effect of stingy per-case caps and would fund counsel at arraignment. Its cost is estimated at $250 million, to be phased in over six years. The rest of the costs of public defense programs, estimated at $400 million per year, will remain the responsibilities of individual counties. The Governor’s budget proposal compromised the Office of Indigent Legal Service’s (OILS) independence with political oversight by the Division of Budget (DOB), which threatened to take a cost-cutting Continued on next page

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

Legislative Report Continued from previous page

Legislative Committee: Andy Kossover, Co-Chair (New Paltz) Lisa Schreibersdorf, Co-Chair (Brooklyn)

Bruce Barket (Garden City) Wayne Bodden (Brooklyn) Anthony LaPinta Greg Lubow (Greene County) Aaron Mysliwiec (New York City) Alan Rosenthal (Syracuse)

If you have any specific issues you would like to bring to the legislative committee, contact the chair, Andy Kossover. If you have any relationships with your local politicians, or believe your local district attorney would support sealing or discovery reform, it would be helpful for the legislative committee to be aware of that as well. Feel free to contact any of the members above if you are interested in participating in legislative work. It is particularly helpful if you have an expertise that we can draw on in those final moments of the session when bills are being proposed and passed very quickly.

approach to essential improvements. However, due in part to the advocacy of NYSACDL members and other members of the defense community, the final bill maintained OILS’ independence. DOB control was removed, allowing it only the power it already has under Section 41 of the State Finance law, but language was added to clarify that DOB “approval shall not be unreasonably withheld.” Also, the final legislation states: “The state shall appropriate funds sufficient to provide for the reimbursement required by this section.” Thank you to all of the NYSACDL members who joined us on our public defense funding lobby day in February or who raised their voices in other ways this year and last to support passage of this important legislation. While the bill that passed is not everything that our clients deserve, it is a critical step forward in ensuring that all defendants are afforded in practice with the rights that Gideon required in principle. We will continue to work with OILS, the legislature and the Governor to improve our public defense system as the bill is implemented. RAISE THE AGE NYSACDL legislative committee members were active in meeting with legislators again this year about raising the age of criminal responsibility. Troublingly, the bill that eventually passed does not include many of the key protections that our members advocated for, including language that existed in both the Assembly proposal and the Governor’s bill (the Senate never introduced a Raise the Age proposal). Of greatest concern is that 16and 17-year-olds charged with violent felonies and A felonies will be subject to adult sentencing and imprisonment in Department of Correction and

Community Supervision (DOCCS) “adolescent offender” facilities. The Marshall Project noted that last year 3,445 juveniles fell into this category. This is in sharp contrast to the Assembly and Governor’s bill proposals, both of which, despite their flaws, would have ensured that 16- and 17-year-olds were sentenced as Juvenile Offenders and sent to Office of Child and Family Services (OCFS) facilities. As more young people will now have their cases heard in family court we urge additional reforms so that young people facing minor charges there are not subject to overly restrictive or punitive measures under the best interests standard in the Family Court Act. Also of concern to NYSACDL is that many youth facing serious charges, those with the greatest potential to benefit from raising the age, continue to be largely excluded from the reforms. Under the new bill, 16- and 17-yearolds charged with violations and misdemeanors will have their cases heard in Family Court. However, protections that would ensure that such youths not receive longer sentences than they would have received in adult court were not included in the bill. Further, the bill fails to provide for counsel at adjustment. The bill also does not raise the lower age of responsibility, meaning that children as young as seven will continue to be subject to arrest and prosecution in family court. The Governor’s Raise the Age Commission recommended raising the lower age to 12, except in homicide cases. Finally, victims will now be permitted to testify in court at disposition. Previously, the prosecutor was limited to submitting a written victim impact statement. The legislation creates youth parts in Superior Court to hear Juvenile Continued on page 35

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

January & February 2017

Appellate Division

Compiled by Claudia Trupp

The following is a list of significant cases decided by the Appellate Divisions during the January and February Terms. People v. Fagiolo, 2017 NY Slip op. 00603 (1st Dept.) (January 31, 2017) The evidence was insufficient to support a conviction for second-degree weapon possession. Defendant’s statements that she knew her boyfriend was carrying a gun and assumed he was going to shoot somebody was insufficient to support that she shared the boyfriend’s specific intent to use the firearm unlawfully against another.

Claudia Trupp, Esq. Center for Appellate Litigation

People v. Mercado, 2017 Slip Op. 01439 (1st Dept.) (February 23, 2017) The C.P.L. §440 court erroneously denied a hearing into defendant’s claims of ineffective assistance of counsel based on counsel’s failure to secure a Sandoval ruling, threatening to withdraw as counsel if the defendant elected to testify, and failing to consult an expert to evaluate the DNA evidence. The dissent observed that in light of the DNA evidence linking the defendant to the crime scene, there was no way counsel’s alleged failings could have prejudiced the defense.

Continued on next page Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

Appellate Division Continued from previous page People v. Davis, 2017 NY Slip Op. 01223 (2d Dept.) (February 22, 2017)

waived by guilty plea, required reversal of the conviction and reinstatement of the felony complaint.

In this second-degree criminal possession of a weapon trial, the judge conducted excessive and prejudicial questioning of trial witnesses. The judge elicited step-by-step details concerning the recovery of the gun, as well as extensively questioned a defense witness about his observations and whether he had made false statements to the police and grand jury relating to a prior robbery conviction. This improper interference warranted a new trial.

People v. James, 2017 NY Slip Op. 01409 (3rd Dept.) (February 23, 2017)

People v. Calderon, 2017 NY Slip Op. 00480 (2nd Dept.) ( January 25, 2017) The trial court’s Sandoval ruling, which allowed the prosecution to question the defendant about a prior knife-point robbery, deprived him of a fair trial in this case involving allegations of a knife-point rape. The prosecution should have been precluded from questioning defendant about the prior incident and the error was not harmless given that the defendant was the only potential source of information supporting the defense. The dissent believed there was no abuse of discretion in the trial court’s permitting questioning about the facts underlying the robbery conviction. People v. Thomas, 2017 Slip Op. 00497 (2nd Dept.) (January 25, 2017) A new trial was required due to the court’s failure to follow the protocols set forth in People v. O’Rama, 78 NY2d 270. The trial court failed to read into the record a note requesting clarification concerning the specific charges submitted for the jury’s consideration. The failure to provide counsel with meaningful notice of this substantive jury note warranted reversal even without any objection from counsel. People v. Janeele, 2017 NY Slip Op. 00188 (2nd Dept.) (January 11, 2017) Defendant improperly pleaded guilty, after waiving indictment, where he was being held for grand jury action on a criminal court complaint charging him with criminal possession of a controlled substance in the first degree— a class A felony. The waiver of indictment therefore violated the express provisions of C.P.L § 195.10. This claim, which was not

A new trial was warranted by the court’s refusal to grant a request for a circumstantial evidence charge. Here, there was no direct evidence identifying the defendant as the perpetrator. While the DNA match could provide strong evidence of the defendant’s presence at and potentially his participation in the crime, a person’s mere presence at the scene of a crime does not establish his identity as the perpetrator. As such, the defense was entitled to the requested charge. People v. Gaston, 2017 NY Slip Op. 01411 (3rd Dept.) (February 23, 2017) Reversal due to prosecution impermissibly being permitted to impeach its own witness with a prior written statement. In this drug possession case, the witness had testified that he did not recall defendant, did not recall visiting the apartment or whether the defendant kept heroin there. The prosecution then questioned the witness about a prior statement in which he described the defendant providing him with heroin and how they frequently prepared heroin for sale in the apartment. The court erred in allowing this questioning as the witness’s testimony did not call the defendant’s connection to the heroin into question so as to affirmatively damage the prosecution’s case. People v. Arnold, 2017 NY Slip Op. 00778 (4th Dept.) (February 3, 2017) The trial court improperly precluded the defense from introducing tape recorded calls of him speaking to a relative from jail. The defense claimed that the calls were relevant to his state of mind at the time of his confession and his claim that the police coerced him by promising he would be released if he confessed. The Appellate Division ruled that the tapes were properly admissible for a non hearsay purpose, to evidence defendant’s state of mind. As such, preclusion of the evidence impacted upon the ability to present a defense. Nonetheless the appellate court deemed any error harmless because evidence of guilt was overwhelming. A

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

C Appeals Lourt of

December 2016 through February 2017 Compiled by Timothy P. Murphy, Esq.

December 15, 2016 People v. Stewart 28 NY3d 1091 This is a unanimous memorandum, remitting the matter to Supreme Court for resentencing. There was no implied waiver for the inmate (defendant) being present at resentencing by the attorney’s appearance in court. CPL 380.40(1) mandates the defendant’s appearance at sentencing, as part of the defendant’s constitutional right to be present for all material stages of the proceedings. See People v. Ciaccio, 47 NY2d 431, 436 (1979). To waive the right to personal appearance, it must be explicit and on the record. See People v. Rossborough, 27 NY3d 485, 488 (2016). Continued on next page Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

Court of Appeals Continued from previous page

People v. Hernandez 28 NY3d 1056 This is unanimous memorandum, affirming the AD. The excited utterances of the three-year-old victim here were properly admitted. The factors to be considered for this issue include the nature of the startling event, the amount of time between the event, as well as the statements and the activities of the declarant in the interim. The thrust of the inquiry in considering the surrounding circumstances is whether, because of the stress that the declarant was under, the declarant lacked the reflective capacity essential for fabrication. See People v. Johnson, 1 NY3d 302, 306 (2003); People v. Edwards, 47 NY2d 493, 497 (1979). The statements at bar were made within a half hour of the startling event, while the child was still under the stress of the incident. The evidence was thus properly admitted.

People v. Pastor 28 NY3d 1089 This is a brief unanimous memorandum, affirming the AD. Not much to see here: there’s an unpreserved challenge to the validity of the plea, an unpreserved Peque (22 NY3d 168, 182183 [2013]) court immigration advise issue and another attorney immigration advise issue that is best pursued by a CPL 440 motion.

People v. Morales 28 NY3d 1087 This is a brief unanimous memorandum, remitting this DWI appeal to the Appellate Term, as it was erroneous under Harrison (27 NY3d 281, 284 [2016]) and Ventura (17 NY3d

675 [2011]) to dismiss a pending appeal where appellant was involuntarily deported.

December 20, 2016 People v. Morgan 28 NY3d 516 This is a unanimous decision authored by Judge Garcia, affirming the Appellate Division. The supplemental jury instruction given following the jury indicating it was deadlocked, before returning a non-unanimous verdict, was not unbalanced and coercive such that it deprived this murder defendant of a fair trial. First came the note indicating that the jury was deadlocked. Next came an instruction which appropriately cautioned against surrendering one’s honest view just to reach the end of the trial. Next came a “verdict,” which included not guilty of murder in the second degree and guilty of first degree manslaughter and CPW. A polling of the jurors revealed that two of them disagreed with at least one of the counts. Instead of granting the defendant’s mistrial motion, the court provided another instruction, omitting the cautions about not surrendering conscientious beliefs and the other deadlock instruction language. Despite further requests from defense counsel, the court refused to instruct the jury further. After a few more hours of deliberation, the jury returned the same verdicts as before, but this time the polling revealed it as unanimous. Under CPL 310.80, the trial judge must provide direction to jurors who answer in the negative when polled regarding their verdict. The court is prohibited from attempting to coerce or compel a particular verdict or singling

out a noncompliant juror — but a unanimous verdict may be encouraged. All of the circumstances must be considered in evaluating the propriety of the verdict. The court contrasted prior supplemental verdict scenarios where it was not appropriate (People v. Aponte, 2 NY3d 304, 305-307 [2004]) and those where it was acceptable (People v. Pagan, 45 NY2d 725, 726-727 [1978]). The supplemental instructions at bar were not coercive; among other things, the need to return a verdict was not overemphasized and the jury was not told that it would be subject to prolonged deliberations.

People v. Brown 28 NY3d 392 People v. Young People v. Canady This is a combined case, involving three defendants. The main issue is the validity of the prosecution’s off-the-record CPL 30.30 statement of readiness after not being ready on the record previously. The court held, among other things, that off-calendar statements of readiness are presumed accurate, but can be rebutted by the defendant by showing that the People were not in fact ready on the date of the declaration. If the People announce that they are not ready, after having filed an offthe-record statement of readiness, and defendant challenges that statement, the People must establish a valid reason for their change in readiness status. This is to ensure that a sufficient record is made for the court to determine whether the delay is excusable. It is the defendant’s burden then to demonstrate

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

that the prior prosecution statement of readiness was illusory. Judge Pigott authored the court’s decision, which is a follow up to the Sibblies (22 NY3d 1174 [2014]) decision, wherein the court was unable to muster a majority for any one opinion. The court decided in the present case to adopt former Judge Graffeo’s concurrence (id. at 1180) from Sibblies, which favors a presumption of accuracy in off-calendar readiness declarations, and reject the concurring opinion of former Chief Judge Lippman (id. at 11781179) from that case, which would require that the People demonstrate an exceptional fact or circumstance. A full discussion of the speedy trial statute is provided by the court, addressing the legislature’s intent in enacting CPL 30.30 to discourage prosecutorial inaction. In essence, a statement of readiness must not be illusory and the People bear the burden of ensuring that the record explains the cause of any adjournments. Defendant Brown’s case is reversed, Young is affirmed and Canady is reversed and remitted for a hearing to determine whether the People’s statement of readiness was illusory. Brown and Young were decided 7-0, with Judge Rivera concurring. Canady was 6-1, with Judge Rivera dissenting. In her dissent, Judge Rivera parted ways with the majority, in that she would adopt the former Chief ’s Sibblies concurrence, requiring that the People demonstrate extraordinary circumstances (see also CPL 30.30[3][b]). The dissent opined that the public’s confidence in the court system is damaged by illusory or fleeting declarations of readiness. Put another way, the legislative intent of the statute is not served by statements of readiness that are retreated from without a proffer of exceptional circumstances.

People v. Perkins 28 NY3d 432 A rare and favorable pre-trial ID procedure case, involving four victims of gunpoint robberies. This is a unanimous decision authored by Judge Abdus-Salaam, reversing the judgment of conviction based on 2 of the 4 lineups being unduly suggestive. The Second Department here, consistent with the Fourth Department, is reversed as there was no record support (in this mixed question of law and fact) for the finding that 2 of the 4 lineups were appropriate — despite only the defendant having the distinctive feature in the lineup of long dreadlocks which were plainly visible under his hat. (Hats were worn by all participants in the lineup.) The hearing court improperly distinguished two of the lineups as being acceptable because dreadlocks did not figure prominently in the description of the perpetrator by the victim-witnesses in those two matters. While recognizing its relevance as a factor in determining whether the lineup created a substantial likelihood that the defendant would be singled out for ID, the Court of Appeals rejected this bright line rule approach as unworkable under the particular circumstances. It is a case by case question. In this case, all four of the lineup procedures were unduly suggestive. Three of the ID’s are suppressed; one is remitted for an independent source hearing.

People v. Bryant 28 NY3d 1094 This is a unanimous memorandum regarding a People’s appeal. The AD is reversed and the judgment is reinstated. This is not a favorable decision for defendants. The decision noted that the

waiver of appeal was not addressed until after defendant allocated to the facts of the crime. The oral waiver was standard, with defendant’s understanding noted on the record. The written waiver of appeal at bar was mildly referenced on the record, with the court merely asking defendant if he had any questions about it. The Court of Appeals celebrated the language of the written waiver, which noted that the right to appeal is separate and distinct from other rights being forfeited by pleading guilty. In sum, the record demonstrated a knowing and intelligent waiver of the right to appeal.

People v. Clark 28 NY3d 556 This is a unanimous decision authored by Judge Rivera, affirming the AD. Appellant was not deprived of either his state or federal constitutional rights to meaningful and effective assistance of counsel. This was a shooting, which resulted in a murder of one victim and the assault of another. A misidentification defense was pursued. Judge Rivera provides here a review of both the distinctions between the state (Baldi / Benevento) and federal (Strickland) standards (again noting that the state should offer greater protection), as well as the tension between choices made by counsel versus those made by the client. Remember that the client decides on fundamental decisions like whether to plead guilty, waive a jury trial, testify or take an appeal. Here, counsel wanted to pursue an EED defense, while the defendant wanted a misidentification defense pursued. The dispute between attorney and client was played out on the record, with the client now complaining on appeal that counsel was ineffective for pursuContinued on next page

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

Court of Appeals Continued from previous page ing the client’s choice of defenses. The Court of Appeals rejected the claim, as counsel’s decision (though it coincided with defendant’s wishes) had potential to succeed, and was consistent with being a strategic decision of a reasonably competent attorney.

ments would be coming into evidence, cautionary instructions could have been provided.

Counsel was also not ineffective for not objecting to the courtroom being cleared during voir dire to ensure seating for prospective jurors.

This is a 6-1 decision, authored by Judge Pigott with Judge Rivera dissenting. The AD is affirmed, as the trial court properly denied defendant’s request for a misdemeanor LIO instruction of second-degree coercion (PL §135.60) relative to the charge of firstdegree coercion charge (PL §135.65[1]). CPL 300.50(1) is considered, with the court concluding that the second degree instruction was inapplicable because this case was not the unusual scenario where the defendant’s method of coercion (by threat of personal or property injury) “lacks the heinous quality the Legislature associated with such threats.” The dissent believed that the jury, and not the judge, should have made this call. Judge Rivera, in dissent, also credited defendant’s Apprendi-related argument, in this regard. Defendant’s point, rejected as unpreserved by the majority, was that the trial court (in place of the jury) should not have made the determination of whether the conduct was “heinous.”

December 22, 2016 People v. Miller 28 NY3d 355 This is a unanimous decision authored by Judge Pigott, ordering a new trial in this homicide prosecution. The trial court abused its discretion in wholly prohibiting voir dire on the issue of involuntary confessions, upon request by defense counsel. There were both oral and written statements made by the defendant regarding the shooting, which came into evidence at trial. CPL 270.15(1)(c) indicates that each party is to be given a fair opportunity to question prospective jurors as to any unexplored matter affecting their qualifications. But the court shall not permit irrelevant or repetitious questioning. The scope of voir dire is within the trial court’s broad discretion. The issue of the statements’ voluntariness here went to the heart of determining whether the jurors could be impartial and afford the defendant a fair trial. Not being able to question potential jurors as to their ability to follow the law on involuntary confessions deprived defendant of a fair trial. If the court was concerned that it was speculative as to whether the state-

People v. Finkelstein 28 NY3d 345

People v. Warrington 28 NY3d 1116 This People’s appeal is a 6-0 memorandum with the Chief Judge not participating. The AD is reversed, as the trial court did not err in not granting a particular defense challenge for cause. CPL 270.20(1)(b) indicates that a party may challenge a juror for cause if he or she has a state of mind that is likely to preclude him or her from rendering an impartial verdict based on the evidence.

Where a prospective juror makes a statement that raises serious doubt regarding his or her ability to be impartial, the juror must be excused unless the juror states unequivocally on the record that he or she can be fair and impartial. The worst the court would do here is replace one impartial juror with another one. See generally People v. Harris, 19 NY3d 679, 685 (2012); People v. Johnson, 94 NY2d 600, 606 (2000). At bar, viewing the prospective juror’s statements in their totality, the trial court did not abuse its discretion in denying the defense challenge for cause. Although the prospective juror initially expressed uncertainty about being able to acquit if the People failed to meet their burden, this prospective juror was rehabilitated through subsequent questions. A prospective juror must be allowed to purge a previous statement indicating unfairness.

People v. Bridgeforth 28 NY3d 567 This decision is authored by Judge Abdus-Salaam, with Judge Garcia writing a concurring decision, agreeing with the result. A new trial is ordered, as the court for the first time applies Batson to skin color as a cognizable group, as opposed to race. The Equal Protection Clause, found in Article 1, §11 of the state constitution, as well as §13 of the state Civil Rights Law, are relied upon by the court. The well known three-step Batson doctrine is discussed as well. Race and “color” are both explicitly delineated in both the constitutional provision and statute at issue. As the majority observed, persons with similar skin tones are often perceived to be of a certain race and discriminated against as a result; this is why skin color must be

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

distinguished from race in the Batson analysis. Judge Garcia, though agreeing with the result, addressed the applicability of the mootness doctrine under Hernandez v. New York, 500 US 352, 359 (1991) (and People v. Payne, 88 NY2d 172, 182 [1996]), which deems step one in three-step Batson process unnecessary where the prosecution provides a race (or skin color) neutral step two reason.

The court also briefly revisited the Concepcion (17 NY3d 192, 195 [2011]) / LaFontaine (92 NY2d 470, 474 [1998]) doctrine, cautioning again against the overly narrow construction of CPL 470.15(1) as applied to the AD’s review of the trial court’s evidentiary rulings. See also People v. Nicholson, 26 NY3d 813, 826 (2016) (softening the LaFontaine parameters somewhat).

People v. Patterson 28 NY3d 544

People v. Flowers 28 NY3d 536

This is a unanimous decision, authored by Judge Stein with Judge Rivera concurring. The AD is affirmed, as the trial court properly permitted cell phone business records regarding subscriber information admitted into evidence for limited non-hearsay purposes. The history of CPLR 4518 business records hearsay exception was discussed here. The phone subscriber in question had no business duty to provide truthful information for the making of these records, thus the CPLR 4518 exception was inapplicable. Though defendant characterized this as hearsay within hearsay, the information in the records would corroborate defendant’s presence at the crime scene, as one of the perpetrators in this burglary / robbery received a phone call prior to the crime being committed. The records were not being introduced for the truth of the matter asserted, but rather were independently admissible to complete the narrative and to connect the address and date of birth in the records to defendant. The majority saw this information as another piece of the puzzle for the jury to consider. Judge Rivera, in her concurrence, believed that the evidence was only admissible for the sole purpose of completing the narrative.

This is a unanimous decision authored by Judge Garcia, affirming the AD. There was no ineffective assistance of counsel (under Turner) regarding defendant’s resentencing, nor was there a mode of proceedings error. There were improper comments made by the court at defendant’s initial sentencing regarding crimes that were dismissed for legal insufficiency, and the matter was remitted for resentencing. At resentencing, the court once again imposed a 20 to life sentence for attempted murder. Counsel’s decision not to object to the same sentence being imposed after appeal did not constitute ineffective assistance of counsel, as there is no presumption of vindictiveness where a defendant is resentenced to the same prison term after winning an appeal — that presumption only applies if the sentence is increased after winning an appeal. See People v. Young, 94 NY2d 171, 176 (1999). At resentencing, the court is entitled to perform a fresh sentencing calculation designed to achieve its overall sentencing goal. Actual vindictiveness was still a potential argument, but there was no record of this occurring, as the facts considered here were not “exclusive to” the dismissed offenses at issue. Reasonable factors were considered by the resentencing court.

February 9, 2017 People v. Guerin __ NY3d __ , 2017 NY Slip Op 01022 Not much to see here. This appeal is a 6 to 0 memorandum, with Judge Wilson not participating. The pro se appellant failed to preserve his claim that there were insufficient warning signs to support his trespass conviction of ECL §11-2113(1). See also ECL §11-2111(2) (requiring that property be posted with warning signs bearing name and address of property owner).

People v. Flanagan __ NY3d __ , 2017 NY Slip Op 01018 This appeal is another 6 to 0 decision, authored by the Chief Judge, with Judge Wilson not participating. The AD is affirmed. There was legally sufficient evidence for both conspiracy (PL §105.00) and official misconduct (PL §195.00). The case dealt with eleven thousand dollars of stolen electronic equipment from a high school, in Nassau County. The father of the young defendant was apparently connected with the higher ups of the county police department. The charges ultimately went away after both malfeasance and nonfeasance by the police, thus constituting official misconduct. Among other things, leads were not followed, surveillance video was not sought, witness statements were not taken and evidentiary protocols were not followed. This was a text book case of flagrant and intentional abuse of authority by those empowered to enforce the law (i.e., the county police department). Continued on next page

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

Court of Appeals The preservation of evidence under PL §450.10, among other things, was not complied with as well. This statute was enacted to maintain the integrity of evidence for the prosecution, as well as afford defendants the opportunity to review evidence before it is returned to the complainant. Finally, an interesting hearsay exception issue of first impression arose. Relying in large part on federal case law, the court held that where a conspirator joins an ongoing conspiracy, prior statements by a co-conspirator in furtherance of the conspiracy are admissible against the conspirator. Moreover, statements made after a conspirator’s active involvement in the continuing conspiracy ceases are also admissible unless the conspirator has unequivocally communicated his withdrawal from the conspiracy to the co-conspirators.

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Continued from previous page

People v. Then __ NY3d __ , 2017 NY Slip Op 01021

This appeal is another 6 to 0 memorandum, with Judge Wilson not participating. Defendant was wheelchair bound and in orange jail pants for half a day of jury selection. The jury could not see the clothing under the defense table and defendant was not denied a fair trial. Defendant wore a suit for the remainder of the trial. The AD is affirmed. But the court does remind us here again that requiring a defendant to appear in a convict’s attire, a continuing visual communication to the jury, is to deny the defendant the right to appear “with the dignity and self-respect of a free and innocent” person. See People v. Roman, 35 NY2d 978, 979 (1975); Estelle v. Williams, 425 US 501, 502 (1976).

February 14, 2017 People v. Pena __ NY3d __ , 2017 NY Slip Op 01142 This appeal is a 6 to 0 decision, with Judge Wilson not participating. Judge Abdus-Salaam authored the decision for the court, which affirmed the AD. Here, an off-duty police officer was convicted of rape. Defendant failed to preserve his challenge to the sentencing being cruel and unusual punishment under the Eighth Amendment, which was raised for the first time before the AD. His challenge under the NY Constitution version of this clause (in Art. I, §5) was raised for the first time before the Court of Appeals. Unlike an attack on the fundamental statutory authority of a sentencing court (see People v. Fuller, 57 NY2d 152, 156 [1982]; People v. Morse, 62 NY2d 205, 214, fn 2 [1984]), the narrow exception to the preservation rule where the illegality of the sentence is readily discernible from the record is inapplicable.

People v. Fisher __ NY3d __ , 2017 NY Slip Op 01143 This appeal is a 6 to 0 decision, authored by Judge Rivera, with Judge Wilson not participating. The AD is affirmed. Defendant’s motion to withdraw his guilty plea (under CPL 220.60[3]) to hindering prosecution in the second degree (PL §205.60) was properly denied, despite his codefendant having been subsequently acquitted at trial of all felony counts. Defendant admitted during his plea allocution to assisting the co-defendant

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

in a fatal shooting. Interestingly, there was Rosario (not Brady) material disclosed to the co-defendant during trial, and not previously known to defendant, that apparently helped lead to the codefendant’s acquittal. This information, however, did not refer to defendant’s actions and had no material impact on his decision to enter a guilty plea, which forfeited his innocence claim. Analogous to conspiracy, criminal facilitation and accomplice liability, defendant’s criminal culpability here was not dependent on the assisted person’s legal status (i.e., his arrest or conviction). Moreover, the co-defendant’s acquittal does not necessarily equate to his innocence.

People v. Vining __ NY3d __ , 2017 NY Slip Op 01144 This appeal is a 4 to 2 decision, authored by Judge Abdus-Salaam, with Judge Rivera and the Chief Judge dissenting. Judge Wilson did not participate. This a follow up to the People v. Johnson, 27 NY3d 199, 206 (2016), dealing with recorded inmate calls at Rikers Island. The Department of Correction in Johnson was found not have been acting as an agent of law enforcement for Sixth Amendment purposes. Here, the defendant was in custody on DV charges for assaultive behavior against his ex-girlfriend. The complainant accused defendant of crimes during a call made by defendant. In response, the defendant was evasive / equivocal and did not make any admissions. This response was deemed an “adoptive admission,” as he acknowledged and assented to something already uttered. Under the circumstances, a reasonable person who fully heard and understood

these accusations would have lodged a prompt protest if they had not been true. See generally People v. Campney, 94 NY2d 307, 311 (1999); People v. Conyers, 52 NY2d 454, 458-459 (1981). While recognizing that a party’s silence or evasiveness may have minimal probative significance, this hearsay exception applied. The majority noted that defendant was calling the victim in violation of an order of protection, attempting to manipulate the complainant. No one induced the defendant to make the call. His evasive answers had to be seen in that context. Further, the jury was provided limiting instructions submitted by the defense, as well as the full evidentiary picture regarding the complainant’s highly questionable credibility. The trial court was also properly within its discretion in denying the defense request to redact reference during the phone call to the potential sentence at bar, as it was intertwined with the purpose for the call being made. The trial court as “gatekeeper” language from Johnson (supra at 208) was noted here. In a thoughtful dissent authored by Judge Rivera, who authored Johnson, she notes that not only was defendant warned by defense counsel, jail wall signs and the jail handbook that phone calls were being recorded, but he had also been Mirandized by that point. In other words, the prosecution was using pre-trial “silence” (according to the dissent) from a defendant who had been repeatedly warned not to speak. See also generally People v. Williams, 25 NY3d 185, 191 (2015) (noting the limited probative value of a defendant’s silence). How could this custodial expression be fairly treated as a so-called adoptive admission? According to the defense, under the circumstances, defendant’s silence was not a verbalized response

acknowledging the accusations or suggesting an adoption of the alleged wrongdoing.

February 16, 2017 People v. Lin __ NY3d __ , 2017 NY Slip Op 01253 This People’s appeal is a 6 to 0 decision, authored by Judge Stein, with Judge Wilson not participating. The Appellate Term is reversed and the charges reinstated. The defendant was not deprived of his constitutional right to confront the witnesses against him by the admission into evidence of a DWI-related printout regarding defendant’s .25 blood alcohol reading on the Intoxilyzer 5000 machine. (The related 13-step checklist was not moved into evidence.) The officer who testified at trial did not administer the breath test in question; that officer had retired and moved out of state. However, similar to People v. Brown, 13 NY3d 332, 337 (2009) (dealing with DNA documents), the witness in Lin, who testified, had personally witnessed the test and had expertize in the administration of the test in general. This is in contrast to the scenario from People v. John, 27 NY3d 294, 308, 313 (2016), where the People’s witness who testified regarding DNA-related documents did not personally observe the testing procedure in question, thus violating the Confrontation Clause, as well as Crawford and its progeny. See also Bullcoming v. New Mexico, 564 US 647, 655, 661 (2011) (DWI documents inadmissible, where the witness “neither observed nor reviewed” the analysis of defendant’s blood). The Confrontation Clause is concerned with testimonial statements made by declarants who are Continued on next page

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

Court of Appeals Continued from previous page unavailable for cross-examination. The primary analyst of the documented test does not have to be in court. Following John (supra at 313), rather, the court noted that “at least one analyst with the requisite personal knowledge must testify.”

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People v. Maldonado __ NY3d __ , 2017 NY Slip Op 01254 This is a bit strange. This 6 to 0 memorandum (with Judge Wilson again not participating) reverses, without any substantive explanation, a white collar judgment of conviction on ineffective assistance of counsel grounds based on “counsel’s overall performance” — citing to the Baldi and Berroa decisions. A reading of the AD decision below (at 119 AD3d 610 [2d Dep’t 2014]) does not provide any further information on this issue. The briefs filed in this matter reveal, however, that defense counsel failed to raise (either with the jury or in his motion for a trial order of dismissal) the lack of reliance by the property owner on defendant’s false representations regarding the grand larceny charge.

People v. Staton __ NY3d __ , 2017 NY Slip Op 01257 This is a unanimous memorandum. There is support in the record for the AD’s finding that the photo array was not unduly suggestive. There was further no demonstration that that the defense attorney did not have a strategic or legitimate explanation for being silent at sentencing. See generally People v. Wright, 25 NY3d 769, 779 (2015). A

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The answer to injustice is not to silence the critic but to end the injustice.

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Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

Robert Isseks July 15, 1951 – April 3, 2017

YSACDL Treasurer, and prominent civil rights attorney, Robert Isseks, a native son of Middletown, Orange County, New York, died unexpectedly on April 3, 2017. Bob collapsed during one of his daily scenic walks through his Middletown neighborhood. He was 65. Bob was a 1969 graduate of Middletown High School and a 1973 graduate of Syracuse University. He earned his Masters degree in Philosophy from Colgate and earned his law degree from Fordham University in 1978. Bob’s work included representation in post-conviction cases. In two separate cases – one in the State Court of Appeals, the other in the federal Second Circuit Court of Appeals – Isseks and his long-time law partner, Alex Smith, successfully argued that governmentmandated participation in Alcoholics Anonymous and 12-step programs violates the principle of separation of church and state. Isseks also prevailed before the Second Circuit in Boria v. Keane, 99 F3d 492 (1996), when the court decided that a defender who failed to advise his client about the wisdom of rejecting a plea offer had provided ineffective assistance. In Graziano v. Pataki, a divided panel for the U.S. Court of Appeals for the Second Circuit ruled against Isseks’ stance that some violent felons were denied parole through an unwritten and unconstitutional mandate from former Gov. George Pataki. The Second Circuit ruled in 2012 that such a blanket policy “does not constitute egregious official conduct” or constitutes a constitutional violation. Smith shares that Isseks, a few days before his death, told him that one of his biggest regrets was not seeking to appeal the Graziano ruling to the U.S. Supreme Court. “Here it was, five, six years later, and he was still troubled by that,” Smith said. “He was completely dedicated to his cases and, most of all, to the people affected by those issues.”

In college, Bob developed an interest in social activism and never looked back. But Bob had a whimsical side as well. When he was at Syracuse, he attended, with friends, a concert with The Band at the forerunner to the Carrier Dome. In its excitement, part of the crowd removed the plywood covering the ice rink near where Bob was sitting, and Bob started skating on the ice to the music…in sneakers. Bob found the best in others; he cherished family, friends, meaningful conversation over a good microbeer, and during the last several years, embraced with great love his role as grandfather. He was a great lawyer and a strong and gentle presence in his community. He was always available to his colleagues for advice on civil rights matters. His ever-present smile and kind thoughtfulness will be missed by many members of our Association. Bob was a voracious reader and supported the local Thrall Library. He believed there is no such thing as too much knowledge. As Middletown Mayor and friend, Joe DeStefano, said, “The way he died was a shocker, but the way he lived was tremendous.” Bob is survived by his devoted wife, Judith and his loving children, Abraham “Abe” Isseks and Sophie Rose Isseks, and his cherished grandchildren, Patrick “Paddy” Naughton and Kenneth Peterson. The NYSACDL Board of Directors thanks Bob’s wife, Judy, for sharing his wonderful spirt and knowledgeable talents with us. Memorial contributions in Bob’s name may be made to Thrall Library, 11 Depot Street, Middletown, N.Y. 10940.

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

The Perils of

Familial DNA Searching

On March 27, 2017, the DNA Subcommittee of the New York State Commission on Forensic Science voted unanimously to recommend the approval of familial DNA searching in New York. This followed a February 10 special joint session of the DNA Subcommittee and the Commission, at which representatives from a number of institutions spoke against the authorization of this controversial investigative tactic. The proposal made by law enforcement and approved by the DNA Subcommittee is deeply troubling for the communities we as public defenders serve. As any observer of the criminal justice system knows, the people who are accused, charged, and convicted in criminal cases are largely poor and of color. It is on behalf of those communities that this essay has been written. By Brad Maurer

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

do not devote any space below to discussion of the science behind familial searching. The conversation about familial searching in New York should be nowhere near that stage, because New York must first grapple with the more fundamental issues this controversial subject raises.

Brad Maurer is a staff attorney at New York County Defender Services

The first of these issues centers on why law enforcement wants to be able to use familial searching in the first place. Prosecutors and police departments say it will help solve crimes, by generating more leads. How? The answer is quite simple: familial searching is a way for law enforcement to gain access to more people’s DNA. The more DNA profiles they have, the more profiles they can compare against crime scene evidence. Obviously, the best way to achieve this particular goal is to have a universal database with everyone’s DNA profile in it. New York, and society at large, has rejected this. Right now, New York law says the government is only allowed to put into the database the DNA profiles of persons convicted of certain criminal offenses. The law doesn’t say the government can collect and use DNA from convicted offenders’ relatives. Thus, familial searching is law enforcement’s way of essentially bringing into the database DNA profiles law enforcement is not permitted to take and use under current law. (Why law enforcement wants to include this particular group – relatives of convicted offenders – is an issue addressed further below.) The second fundamental issue is how law enforcement will carry out familial searching in New York. Familial searching by definition starts with a completely innocent person: a person previously convicted of a different crime whose DNA Continued on page 31

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

2017 NYSACDL Foundation Annual Dinner & Award Ceremony

n Thursday evening, January 26, 250 members and supporters of NYSACDL gathered at the Grand Hyatt in Manhattan for our annual Installation and Awards Dinner. The evening began with a cocktail hour-and-a-half, giving ample time to socialize and schmooze with friends and colleagues. It was, as always, a great opportunity to talk with colleagues from around the state, who we don’t get to see regularly. We came from Manhattan and Brooklyn, Buffalo and Rochester, Syracuse and the Hudson Valley, to honor our outgoing President, install the incoming President, and recognize those in our profession who have honored us by their dedication to fairness in the criminal justice process. Come on in!

After cocktails, we moved on into the Grand Ballroom for the main event, the dinner and annual awards ceremony. The program began with remarks from 2016 President Andrew Kossover of New Paltz, noting all that was achieved by NYSACDL during his tenure. President Kossover then administered the oath to John S. Wallenstein of Garden City, who was installed as NYSACDL’s 2017 President. President Wallenstein’s first official act was to recognize President Kossover for his service, and to present an engraved plaque to our 29th president. Wallenstein then offered his aims for NYSACDL for the upcoming year, including the creation of new committees, and noted that our priorities continue to focus on revamping New York’s outdated and outmoded discovery rules, as well as taking on prosecutorial misconduct.

President Wallenstein with his wife Tamra Stecker, Jack Lee, Lloyd Stabiner, Steve Spector, Steve Lowenhar, Neil Cahn and Bill Dimin

After dinner was served, the awards program began. In recognition of his years of service on the federal bench, and his demonstrated commitment to fairness and justice, NYSACDL proudly bestowed the Hon. William J. Brennan Award for Outstanding Jurist on the Honorable William B. Skretny, United States District Judge for the Western District of New York. Judge Skretny was introduced by NYSACDL Director James W. Grable of Connors LLP in Buffalo, who clerked for Judge Skretny “back in the day”. Judge Skretny, whose entire family was present for the occasion, accepted our award graciously, and his inspiring remarks are reprinted elsewhere in this issue. Past Presidents Kevin O'Connell, Richard Willstatter and Ben Ostrer, with Carolyn Wilson

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

2017 NYSACDL Foundation Annual Dinner & Award Ceremony

Henry Steinglass & Mike Shapiro

Board members Stephanie Batcheller and Mark Hoskens President Wallenstein and VP Arnold Levine

1st VP Lori Cohen & Tina Luongo

Sam Braverman, Russell Neufeld, & Past president George Goltzer

Following Judge Skretny, President Kossover presented the Hon. Thurgood Marshall Award for Outstanding Criminal Practitioner to Justine “Tina” Luongo, attorney-in-charge of the Criminal Defense Division of the Legal Aid Society. Tina reminded us of the need to be ever more vigilant in the coming years, and of our commitment to the defense of those who can least defend themselves. As the evening drew to a close, President Wallenstein presented a Lifetime Achievement Award to Jonathan E. Gradess, who retires this year after decades as the Executive Director of the New York State Defenders Association. Jonathan forcefully reminded us of the commitment we have all made to criminal justice, and of the need to continue the fight in the legislature and in the courts, including the court of public opinion.

VP Alice Fontier & Eexecutive Director Jen Van Ort

As always, the Annual Dinner was a time of serious contemplation and light-hearted banter, a renewal of old friendships and the start of new ones, but most of all a celebration of NYSACDL’s membership and our commitment to justice for all. We hope to see all of you there next year! A more pictures on next page

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

2017 NYSACDL Foundation Annual Dinner & Award Ceremony

Judge Berry and Judge Skretny, two Brennan honorees

Jim Grable presents the Brennan Award to Judge Skretny

Kossover installs Wallenstein as president

President Wallenstein, Jim Grable and Judge Skretny

President Wallenstein's remarks

Judge Skretny addresses the crowd

President Kossover presenting the Marshall Award to Tina Luongo Judge and Mrs. Srkretny Jonathan Gradess

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

It Takes a Team By Steven Epstein and Christopher Puckett

There is an African proverb that states, â&#x20AC;&#x153;It takes a village to raise a child.â&#x20AC;? Similarly, even the most skilled attorney

requires an entire defense team to successfully defend a vehicular assault or homicide case. That team must get to work as soon as possible after the accident has occurred, and the defense team should minimally include an investigator, an expert in accident reconstruction, and a forensic toxicologist.

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

INVESTIGATOR An investigator should get to work immediately upon the lawyer’s retention on a vehicular assault or homicide case. The work that requires immediate attention includes taking statements from any witnesses, and locating any evidence that may be destroyed over time, such as surveillance camera recordings. While counsel can look to satellite imagery such as Google Earth to help locate these cameras, there is no substitute to personally observing the location where the accident occurred. Pay close attention to commercial establishments such as gas stations and banks, which often have surveillance equipment. These devices usually will record over themselves, however, so be sure to get out there quickly with a subpoena in hand. Other items that need to be preserved early in an investigation include toll footage from any bridge or tunnel lanes your client may have traveled through shortly before the accident. These, as well as red-light cameras, can be quite helpful in showing that your client’s ability to drive was not impaired. Indeed, they can be used to establish average speeds for your client’s driving simply by measuring time and distance travelled. Be sure to also get your client’s credit card statements, cell phone records, invoices from restaurants or bars, and any other evidence the prosecutor is likely to get from their own investigation. ACCIDENT RECONSTRUCTION Motor vehicle accidents can be brutal, violent, and devastating events. Despite the forceful nature of these incidents, however, the evidence that remains can be fragile and short-lived. Since road conditions may change and evidence may be lost, it is important to get an expert in accident reconstruction retained and out to the scene as quickly as possible. Reconstructing the events

that led up to the collision is far more challenging once physical evidence is removed, degraded, or destroyed. Properly collected and analyzed forensic evidence can be critical to a case and is much more difficult to dispute as compared to eyewitness accounts. A detailed examination and analysis of the collision scene is an important first step in the reconstruction process. Following a crash, it is common for law enforcement to close the roadway to protect and process the scene. Once the investigation is complete and the roadway is re-opened, the integrity of the collision scene becomes compromised. Tire marks, fluid stains, gouge marks, vehicle debris, and other physical evidence will degrade rapidly. Even paint marks made by law enforcement will disappear over time. The location of physical evidence must be photographed, measured, documented, and preserved. Digital video should also be utilized to document the approachdirection for all involved traffic units. Physical dimensions of the roadway, condition of the pavement, friction value of the roadway surface, and environmental conditions are other factors requiring consideration. For these reasons, it is imperative to have a reconstruction expert examine the collision scene as closely as possible to the date of the crash. This will allow your expert to walk the scene of the accident and inspect tire marks, yaw marks, gouge marks or other physical evidence that ordinarily can only be viewed by examining the government’s photographs they choose to take in the manner they choose to take them. Another important step in the reconstruction process is a detailed examination and analysis of the collisionvehicle(s) themselves. An analysis of

Christopher Puckett, Esq. is the Director of the Special Investigations Unit (SIU) at DIGITS, LLC. He has investigated motor vehicle accidents as a member of the New York State Police and as a private consultant for over 26 years. He currently consults with law firms and insurance companies on cases involving all types of personal injury. He is also an adjunct at Hilbert College in the Forensic Science and Criminal Justice departments.

Steven Epstein, Esq. is a member of the Board of Directors of NYSACDL and the Membership Chair. He is a general member of the National College for DUI Defense and a frequent lecturer and author on the subject of DUI defense.

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Continued on next page

It Takes a Team Continued from previous page vehicle damage can provide crucial information regarding preimpact movement, post-impact displacement, vehicle speeds, angle of impact, causation of the accident and other critical factors. Once removed from the collision scene, vehicles are taken to tow yards or police impounds. Vehicles stored at outdoor impound lots are immediately exposed to the elements. Important biological evidence—i.e. blood, tissue, and fibers—contained on the interior and exterior of these unprotected vehicles begins to degrade and in some cases is completely obliterated. Quick action is often required to avoid the total degradation and potential loss of valuable evidence.

Be sure to make an early request that the information be preserved and include it in your formal demands for discovery made pursuant to CPL §240.20.

FORENSIC TOXICOLOGIST During the investigation of a vehicular assault or homicide a sample of your client’s blood, breath, urine or saliva will be requested or compelled and tested to determine the presence and Since road conditions may change quantity of alcohol or drugs. A forensic toxicologist is essential and evidence may be lost, it is not only to help you evaluate the important to get an expert in accident quality of the forensic testing and its results, but such an expert can reconstruction retained and out to the also be useful to help you draft scene as quickly as possible. discovery demands early on in your case. Criminal Procedure Law §240.20 mandates the prosTherefore, all new vehicles must make Another critical and often overlooked ecution disclose many documents with their data accessible by commercially piece of a thorough reconstruction is which the defense attorney may not be available crash data retrieval (CDR) the event data recorder, or “EDR.” You familiar. A forensic toxicologist can be equipment. Bosch CDR hardware and need to make a demand for preservation software is used by law enforcement and valuable for that part of the investigaof this data immediately, because the the private sector to access and interpret tion. owners of the other vehicles involved, this unbiased data from most vehicles. such as trucking companies, may seek to In certain collisions, an EDR can record The stakes are high for our clients get their vehicles released and returned charged with a vehicular assault up to eight seconds of pre-crash data. to them and the data destroyed. In addi- Some of the stored data can include: or homicide. The retention of an tion to controlling the vehicle’s suppleinvestigator, an accident reconstruction vehicle speed, throttle position, brakmental restraint system, the airbag con- ing, seatbelt usage, steering, and other expert, and a forensic toxicologist will trol module (ACM) contains an EDR. help to determine the strengths of valuable information. Once collected, The National Highway Traffic Safety your client’s case. Waiting to see if the the data must be analyzed as part of a Administration (NHTSA) requires that case will go trial is not an option. By thorough investigation. As vital as this all manufacturers make their EDR data is, it is not intended to replace the need then evidence will be lost or destroyed. publicly available. In an August 2006 A team must be assembled and get for a forensic analysis of a collision. ruling (49 CFR Part 563), NHTSA set to work as soon as possible after the a time table for all vehicle manufacturA thorough forensic analysis of data col- accident has occurred to give your client ers to comply with the new EDR stanthe best defense. A lected during a collision scene examidards. The compliance date was origination, information obtained during nally set for all vehicles manufactured vehicle examinations, and EDR data after September 1, 2010. NHTSA has can allow a collision reconstruction since updated its ruling a second time expert to offer opinions regarding causa(49 CFR Part 563 Update) to give vetion and provide valuable guidance to hicle manufacturers until September 1, attorneys throughout the legal process. 2014 to comply with the original ruling.

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

Familial DNA Search Continued from page 23 profile does not match the new crime scene evidence. If that person’s DNA profile is nonetheless close enough to matching, the prosecutor and police will initiate an investigation into this person’s family – law enforcement will put together a family tree. The particular people law enforcement wants to investigate from each family tree are by definition not in the DNA database. They have not been convicted of a DNA-eligible offense, so under the law they have relinquished zero privacy interest in their genetic information, and they have done absolutely nothing to invite police suspicion.

The more DNA profiles they have, the more profiles they can compare against crime scene evidence. Obviously, the best way to achieve this particular goal is to have a universal database with everyone’s DNA profile in it. New York, and society at large, has rejected this.

And what does it mean for the police to “investigate” these family members? The police need a DNA sample from them, so they can compare those samples against the evidence in the new crime. There are two ways to collect the relatives’ samples: (1) the police can openly confront the family members as law enforcement seeking a DNA sample, with the intimidation and coercion that encounters with police often bring; or (2) they can secretly track those relatives to obtain a sample without their consent, perhaps from a discarded soda can. In its written submission supporting adoption of familial searching, the NYPD offered no details regarding how they would obtain samples, only that they would do so “lawfully” and “responsibly.” The central message is essentially, “Just trust us.” Once law enforcement has the relatives’ DNA samples, what law enforcement wants to be able to do is use those profiles for searches in both the state database and the local database kept by the Office of the Chief Medical Examiner. At present, the OCME’s practice is to compare samples obtained from criminal defendants against unsolved local crime scene samples in perpetuity. Is this what would happen to these relatives’ samples obtained under familial searching? Again, the NYPD and District Attorney’s Offices who submitted written support for familial searching provide no answers to these important questions. Of course, the NYPD and DA’s offices are surely aware of the fact that the OCME database is essentially unregulated – and as their written submissions to the Commission made clear, they would prefer as little oversight as possible in the implementation of familial searching. Again they say, “Just trust us.” Curiously, the NYPD’s written submission supporting familial searching stated that a database search using an offender’s relative’s profile “may lead to an arrest or exoneration of the relative.” Of course, the word “exonerate” implies a preexisting accusation or burden – in this case, the heavy burden of criminal accusation, which the police themselves placed on the person’s head. That burden of accusation can be enormous, impacting a person’s profession, personal relationships, and sense of self. Third fundamental question: who will be most affected by this unprecedented expansion of genetic surveillance? These investigations of convicted offenders’ family members, whom law enforcement has no reason to suspect other than what amounts to a hunch, will put a hugely disproportionate burden on poor communities of color. The criminal justice system has created a massive racial disparity in the Continued on next page Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

Familial DNA Search Continued from previous page

The NYPD offered no details regarding how they would obtain samples, only that they would do so “lawfully” and “responsibly.” The central message is essentially, “Just trust us.”

way poor New Yorkers of color are policed and prosecuted, so logically their overrepresentation in the DNA database is very likely to be equally dramatic. Thus, the families largely falling under investigation from familial searching would be from those same poor communities of color, already disproportionately affected by the criminal justice system as it is.

This kind of hunch policing in poor communities of color used to go by the name “Stop & Frisk.” Eventually declared unconstitutional, Stop & Frisk had a devastating impact on poor communities of color and their relationships with law enforcement. Now, instead of what’s in your pockets, law enforcement wants to know what’s in your DNA – all because a relative of yours, known to be innocent of this crime, has a DNA profile which happens to be close enough to a match for police to knock on your door, stop you in the street, or snatch your discarded items out of the trash. Prosecutors and police will say, “That’s not how we’re going to do it. This will be nothing like Stop & Frisk.” But nothing in the District Attorney’s Offices’ or NYPD’s public comments about familial searching offer any reassurance whatsoever. This leads us back to the issue mentioned above, the issue of why law enforcement wants to bring convicted offender’s relatives into the DNA database in the first place. The NYPD’s written submission to the Commission cites a statistic that “48% of all prison inmates surveyed reported having a close relative who had also been imprisoned.” Members of the community who submitted their own comments and/or spoke at the February 10 special joint session latched onto this statistic as a rationale for supporting familial searching. In this context, citing that statistic essentially translates as follows: we should assume that our unsolved crimes were committed by relatives of convicted offenders, because those relatives – again, largely poor and of color – are more likely to have been in prison themselves. Nevermind the studies showing that black and Hispanic people are arrested and convicted at rates entirely disproportionate to their relative share of actual crime. Let’s break this down further. In other words, law enforcement arrests and convicts a certain group more than another for crimes both groups commit, and then later law enforcement wants to turn around and say the first group is more likely to commit crimes, in order to justify investigating them disproportionately through familial searches. This logic is not only circular, but also goes against core ideals of our society, ideals like the presumption of innocence and freedom from unwarranted government intrusion. These poor communities of color, sure to be heavily burdened by still more law enforcement intrusion into their lives – this time, intrusion into the extremely personal domains of their genetic information and family relationships – deserve the chance to have their own voices heard before any action is taken with respect to familial searching. In a state where Stop & Frisk, Eric Garner, and Black Lives Matter protests are the recent backdrop, if prosecutors and police truly wished to take seriously their oft-stated commitment to ensure that all communities are policed and prosecuted in a manner that respects their dignity and hears their voices, law

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

enforcement should stop and listen to those voices. None of those voices have been solicited or heard in the debate surrounding this familial searching proposal. Those voices were not heard at the February 10 joint session, and they certainly were not heard in the DNA Subcommittee’s private deliberations leading up to their unanimous vote in favor of familial searching.

The families largely falling under investigation from familial searching would be from those same poor communities of color, already disproportionately affected by the criminal justice system as it is.

Perhaps after listening to those voices, law enforcement would come to recognize that familial searching is the opposite of respecting the dignity of communities of color. Creating a mechanism for treating the law-abiding relatives of convicted offenders as suspects whose innocence must be proved to law enforcement via “exonerating” DNA collection is the opposite of respecting dignity. But throughout this debate, law enforcement has shown no concern for the implications of familial searching for poor communities of color.

However, in its written submission to the Commission, the Queens DA’s Office made a point of reassuring other groups that “innocent, law-abiding members of the public who have provided elimination samples of their DNA in cases like burglaries and car thefts have no cause for concern because such profiles are not entered into or searched in the DNA databank.” This is a stark admission by the Queens DA’s Office that comparing those DNA profiles against crime scene samples would be a massive intrusion and would greatly upset those people. How can proponents of familial searching not recognize that relatives of convicted offenders share this same “cause for concern”? Yet proponents of familial searching would have the relatives of convicted offenders believe that there is no “cause for concern” in the first place, because familial searching is as much about safeguarding the innocent as it is catching the guilty. Of course, if this was actually true, those innocent, law-abiding people being reassured by the Queens DA should be first in line to have their innocence, and the innocence of their relatives, safeguarded by familial searching. Instead, the proponents of familial searching want to separate those innocent, lawabiding people from another group of innocent, law-abiding people: those with a relative in the convicted offender database. If law enforcement gets its way, the innocent, law-abiding relatives of convicted offenders will have their “innocence safeguarded” by the following: (1) Police investigation into their family relationships; (2) Secret tracking and/or direct police confrontation to obtain their DNA – in other words, increased police presence in their community designed specifically to treat them as criminal suspects; (3) comparison of their DNA against a crime scene sample by labs which are, put charitably, not immune from error or even fraud (look to Massachusetts for yet another in a long line of crime-lab scandals, which have rocked various parts of New York as well); and Continued on next page Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

Familial DNA Search

From the Editors' Desk

Continued from previous page

Continued from page 4

(4) permanent retention of their DNA (possibly both the physical sample and profile) by those same labs for comparison against local unsolved crimes in perpetuity (where the local NYC lab’s own internal studies have shown problems with contamination and transfer, thus risking false accusation in a future case). This is not a recipe for safeguarding innocence. This is not a recipe for respecting dignity. This is a recipe for exacerbating the toxic racial disparities already infecting the criminal justice system, further eroding already difficult relationships between communities of color and the law enforcement sworn to protect them, not suspect them.

practice which would grant law enforcement unprecedented access to target entire families, including members who haven’t committed any crimes. The publication of Atticus is a team effort and it begins with you, our members, sharing your considerable talents with us as seen in these pages in articles such as Steve Epstein’s informative guide to tackling the ever formidable vehicular homicide case with insight from his investigator, and Dick Barbuto’s review

of “Sacco and Vanzetti: The Men, the Murders and the Judgment of Mankind” a 2007 book by Bruce Watson which Barbuto relates to our contemporary issues regarding immigration and travel restrictions. If you like what you read; or if you don’t (!) we encourage you become involved, submit articles, send us the news of your recent successes and help us keep the pages of Atticus a resource for all of you. A

From 90 State Continued from page 5

The information revealed and exploited by familial searching is some of the most intensely personal in existence. This is not like fingerprinting or license plates. When did a license plate ever reveal that a person was adopted, or scientifically confirm an unknown biological relationship or a serious health issue? More to the point: when did a non-matching fingerprint ever bring a family member under suspicion for a serious crime? This is not even like prior expansions of the DNA database, where the legislature chose to include more crimes as DNA-eligible. This is an effort to enact a massive and harmful change in the way law enforcement views and relates to already marginalized communities. New York should remain in the company of the vast majority of U.S. states, which have not authorized familial searching. The best path, in fact, would be to join those that have expressly forbid it. A

join NYSACDL to be an official part of the number shown to the New York State Senate and Assembly! So, where is that number right now? As of today, early April, NYSACDL has 728 members. We are on track to hit an April 29th goal of 741 members. These new short-term goals help the Board and me ensure that we are on track to hit our overall goal of a 6% increase in membership for 2017. By the next printing of Atticus, we hope to have over 760 members. Can you help us get there? Remember, as we advocate in Albany for the issues important to the criminal defense bar, you are also the best advocate for NYSACDL. Encourage colleagues to join and participate in the member resources we have available, as well as the opportunity to make their voice heard. I hope to see you at an upcoming CLE seminar or the May 16th Lobby Day. Please be sure to introduce yourself! As always, thank you for your steadfast commitment to your profession and your clients. I hope you have a safe and enjoyable spring! A

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

Legislative Committee Report Continued from page 10 Offender (JO) cases, “adolescent offender” cases, or cases involving 16- and 17-year-olds charged with felonies. Judges will be specially trained in adolescent brain development and best practices for adolescents. The JO statute governing 13-, 14- and 15-year olds charged in the most serious cases remains the same. 16- and 17-yearolds charged with felonies that are not violent felonies or A felonies shall be removed to family court unless the DA files a motion to prevent removal based on extraordinary circumstances that justify retaining the case in the Youth Part of Superior Court. Adolescent offenders charged with violent crimes will have their cases heard in the Youth Part, where existing Superior Court procedures will remain in place. Adolescent offenders will face adult sentencing upon conviction and will be incarcerated in an adolescent offender facility operated by DOCCS with programming provided by OCFS. The legislation also creates CPL 160.59, a process for sealing of up to two convictions (one non-violent felony and one misdemeanor or two misdemeanors) after 10 years (from conviction or release from custody, whichever is later) without a subsequent conviction. Records sealed pursuant to CPL 160.59 will still be visible to the courts and law enforcement agencies in the case of subsequent arrest or conviction. CPL 160.59 applies to all ages, not just people who were convicted as teenagers. The sealing provision goes into effect 180 days after signed into law, or October of 2017. Raise the age legislation will go into effect for 16 year-olds on October 1, 2018 and for 17 year-olds on October 1, 2019.

YOUTHFUL OFFENDERS The final bill did not raise the age of youthful offender status (YO) as the budget proposals would have done. NYSACDL strongly SUPPORTS raising the age of Youthful Offender (YO) status to the young person’s 22nd birthday. A.4743 (O’Donnell)/ S.4129A (Montgomery) would raise the age of Youthful Offender status up to age 22, allowing college-age young people access to the sealing protections and broader judicial discretion to customize the outcome. NYSACDL is also seeking an additional protection for young people in that the police, prosecutor and courts should not be able to release their names until such time as they are convicted only if they do not receive YO status. With the vast and immediate reach of the internet, too many young people ages 16 and up are already stigmatized due to arrests that never resulted in a negative outcome for them. Even though the final raise the age legislation did not include raising the age of YO, we will continue to fight for this reform on behalf of our adolescent clients. WRONGFUL CONVICTIONS The version of the so-called wrongful conviction bill that NYSACDL vigorously opposed was signed into law in April. Previous versions of the bill were called the Statement and Identification Integrity Act. The bill will require electronic recording of interrogations in a small number of cases and provides no sanctions for law enforcement’s failure to comply. Furthermore, the bill permits in-court testimony of unreliable photo array identifications and does not require best practices in identification procedures, only suggests that they be used, and provides no remedy for failing to follow these guidelines. The bill will go into effect on October 18, 2018.

BAIL REFORM Governor Cuomo listed bail reform, especially the amendment of the bail statute to include dangerousness as a basis for detention, as one of his criminal justice priorities for 2017. At the time of this publication, no specific bill language has been released, though we expect a bill after the budget negotiations conclude. NYSACDL is OPPOSED to any proposal to incorporate dangerousness as a consideration in the bail statute. NYSACDL is also OPPOSED to the use of “risk assessment” instruments that purport to predict future behavior. Instead, NYSACDL SUPPORTS A.5033 (O’Donnell)/S.3579 (Gianaris) which would require that each county hire independent pretrial services agents to interview defendants and determine the suitability of releasing them while awaiting trial. The agents would then make recommendations to the court on whether to release the defendants on their own recognizance, release them subject to certain conditions, or remand them to a county correctional facility. Crucially, any conditions upon release would be non-monetary (i.e. not money bail) and bear much more directly on the issue of the person reporting to court when they are required to. Such other conditions are in wide use throughout the country, in Federal court and in many parts of New York State with great success. Conditions consist mostly of having the defendant report to an independent agency regularly, turning in a passport, electronic monitoring or other measures that help insure attendance at court proceedings. GRAVITY KNIVES Last year, NYSACDL members collectively raised their voices in support Continued on next page

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

Legislative Committee Report Continued from previous page of A.9042A (Quart)/ S.643A (Savino). The bill narrowed the definitions of switchblade knives and gravity knives to exclude ordinary folding knives that are commonly sold on-line and in hardware stores to workers and artisans. Thanks to the support of many of our members who wrote and called their elected representatives the bill was passed by both the Senate and Assembly last June with near unanimous support. Governor Cuomo vetoed the bill on December 31, 2016, citing the staunch opposition to the legislation from law enforcement. The Governor wrote in his veto letter that he proposed amendments to the Legislature that would have allowed crafts and tradespeople to possess the covered knives without penalty and create an affirmative defense for those who possess a gravity knife with no intent to use it, but that legislators rejected those amendments. NYSACDL strongly opposes the Governor’s proposed amendments. The knife licensing proposal would put the onus on workers to apply and possibly pay for permits for common tools that they purchase at stores like Home Depot. This would create an unnecessary bureaucracy to monitor possession of folding knives that are sold throughout New York and the country and that have never been shown to be uniquely dangerous. People without the permits would still be subject to searches and arrests by the police. An affirmative work defense would place an obligation on New Yorkers to prove their innocence, rather than maintain a burden on prosecutors to establish criminal wrongdoing. It also ignores that arrests alone, not just convictions, can have devastating consequences. Even in cases where charges are ultimately dismissed, New Yorkers endure the humiliation

of detention, miss days of work, suffer suspensions, and refrain from applying for work because of pending cases. NYSACDL strongly SUPPORTS A.5667A/S.4769, a bill that achieves the same objective of last year’s bill while address some of the Governor’s concerns in his veto message. The new bill clarifies that the Legislature’s intent is not to ban all pocket knives, but to ban switchblades and gravity knives, two very clearly defined kinds of weapons with very specific characteristic mechanisms. SEALING People with a criminal record can receive a second chance by sealing their prior record, improving their chances of obtaining employment, housing and other essentials of life. There are several sealing bills in front of the New York legislature that would provide for the sealing of certain convictions upon the passage of time and a person remaining crime free. The most comprehensive bill, S.4027 (Bailey), a bill that NYSACDL helped draft, would allow for the sealing of most convictions if a person remains crime-free for anywhere from six months from the date of conviction of a non-criminal offense up to twenty years for a person convicted of more than one violent felony arising from separate incidences. Earlier this session the Assembly passed a marijuana sealing bill and included the bill in the Assembly One-House Budget proposal. A.2142 (PeopleStokes)/S.3809 (Bailey) would retroactively seal the criminal records of people arrested for simple possession of marijuana in public view. Over the last twenty years, more than 800,000 New Yorkers have been arrested for simple possession of marijuana.

NYSACDL SUPPORTS both S.4027 and A.2142/ S.3809. SPEEDY TRIAL The U.S. Constitution provides criminal defendants with the right to a speedy trial. Yet the current iteration of New York’s “Speedy Trial” Law (C.P.L. §30.30) subverts justice and the Constitution by allowing prosecutors to delay cases for months or years by merely stating that they are “ready for trial” when they may not actually be truly prepared to move forward with their case. A.3055A (Aubry)/ S.1998A (Squadron), would amend C.P.L. § 30.30 with the goal of limiting the ability of the prosecutor to claim “not ready” and then claim “ready” shortly thereafter off-calendar and not have the intervening time count against them for 30.30 purposes. Known as “Kalief ’s Law” the bill is named for Kalief Browder, the New York City teenager accused of stealing a backpack who spent three years on Riker’s Island until his case was finally dismissed. Kalief tragically took his own life after his release and his story garnered widespread media coverage and public outrage. The bill explicitly authorizes the court to inquire, on the record, whether the prosecution is actually ready for trial when the prosecution claims readiness. The bill also clarifies that prosecutors may not claim readiness unless a proper accusatory instrument has been filed and all evidentiary disclosures have been made. Most importantly, in computing the time within which the people must be ready for trial, no time attributable to court congestion shall be excluded. This is a modest reform but one that will shorten case processing times without harm to defendants, saving money. It also incentivizes courts and prosecutors

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

to prioritize cases and not rely on court congestion to force pleas. NYSACDL supported this bill last year, where it passed the Assembly. The bill passed the Assembly again in 2017 and was incorporated into the Assembly One House Budget Bill. NYSACDL SUPPORTS this bill. However, it bears noting that discovery reform must go hand in hand with efforts to make pretrial justice a reality in New York State. Simply put, cases cannot resolve quickly if defendants and their attorneys do not have access to the evidence in the case. SOLITARY CONFINEMENT A.3080 (Aubry)/S.3824 (Perkins), the Humane Alternatives to Long-Term (HALT) Solitary Confinement Act would mandate more humane and effective alternatives to isolated confinement. The bill requires that any person separated from general population for more than 15 consecutive days must be in a separate secure residential rehabilitation unit (RRU) – a rehabilitative & therapeutic unit providing programs, therapy, and support to address underlying needs and causes of behavior, with 6 hours per day of out-of-cell programming plus one hour of out-of-cell recreation. Under the bill, no person may be held in isolated confinement more than 15 consecutive days nor 20 days total in any 60 day period. The bill also bans special populations from isolated confinement: The department can never place in isolated confinement people 21 or younger, the elderly, anyone with a physical, mental, or medical disability; or pregnant women and new mothers. NYSACDL STRONGLY SUPPORTS the HALT Solitary Confinement Act. Two less comprehensive solitary confinement bills passed the Assembly in February, A.1905 (O’Donnell)/S.5241

(Lanza) and A.1610 (Rozic)/ S.4795 (Lanza). By prohibiting solitary confinement for some of those who are particularly vulnerable to its harm, including people under 21, people with mental illness and people with mental or physical disabilities, A.1905/S.5241 would be a critical step in the right direction. A.1610/ S.4795 would ban segregated confinement of pregnant inmates, inmates who have given birth within the past eight weeks, and inmate mothers living with infants in prison nursery programs. NYSACDL SUPPORTS both bills and others that would improve conditions for those who are incarcerated. GRAND JURY REFORM Transparency in criminal investigations of public employees, pursuant to their actions as public employees, is badly needed in New York State. However, A.4877A (Heastie)/S.5424 (Bailey), as currently written, would open up thousands of criminal defendants to public scrutiny solely because they have been accused of a crime. The bill would allow criminal court judges to disclose sealed grand jury materials to the public if the jury dismisses all charges or directs the district attorney to dismiss all charges. Given the current climate, where the mere accusation of criminal activities (not only a conviction) can result in dire consequences to employment, housing and even immigration status, despite some protections under the law, it is essential that grand jury activities remain sealed for all cases except a very narrowly defined class of cases involving public employees. We believe that, in the case of private citizens, the grand jury proceeding should remain secret and the record should remain sealed upon a vote of a no true bill. For these reasons NYSACDL OPPOSES A.4877A/S.5424.

CHARITABLE BAIL ORGANIZATIONS Under existing New York State law, charitable bail organizations (CBOs) are able to deposit money as bail in the amount of two thousand dollars or less for a defendant charged with one or more misdemeanors, provided, however, that such organization may not execute as surety a bond for any defendant. The current law also limits the CBO to operating in only one county, with a carve-out for CBOs located in New York City to operate within all five boroughs. The proposed legislation, A.4880 (Blake)/S.4776 (Rivera), would raise the current cap on amount of bail paid from $2000 to $5000 and would permit CBOs to post bail on cases with a top charge of a violation, or a felony, in addition to currently allowable misdemeanors. Advocates estimate that this would increase the capacity of CBOs to bail out thousands more people every year in New York City alone. The bill passed the Assembly in February 2017 but remains in committee in the Senate. “ONE DAY TO PROTECT NEW YORKERS” Many of our members support an amendment to Penal Law 70.15 that would reduce the maximum penalty for A misdemeanors by one day, from 365 days to 364 days. This minor change would reduce the chance of deportation under federal immigration law for thousands of immigrant New Yorkers. A.4881 (Crespo)/S.4292 (Alcantara) passed the Assembly in February as part of the New York State Liberty Act, a package of bills that collectively would establish policies consistent with federal law and the state and federal constitutions for certain interactions between immigrant communities and state and local agencies. NYSACDL SUPPORTS A.4881/S.4292.

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

Continued on next page

Legislative Committee Report Continued from previous page REENTRY REFORMS We strongly SUPPORT two bills that would remove barriers to higher education facing students while they are in prison and once they come home. A.1792 (Peoples-Stokes)/S.3740 (Montgomery) explicitly prohibits colleges from asking about or considering applicants’ past arrest or conviction during the application and admission decisionmaking process. A.3995 (Aubry)/S.3735 (Montgomery) repeals a ban on those who are incarcerated from receiving New York State student financial aid awards from the Tuition Assistance Program (TAP). CYBERCRIMES AND IDENTITY THEFT Governor Cuomo included a cybercrime and identity theft bill in his FY18 Executive Budget that would increase penalties for high levels of fraud activity. NYSACDL OPPOSES the Governor’s proposal and other similar bills, including, e.g., S.3654 (Squadron), S.1563 (Avella) and A.5496 (Lentol)/ S.2406 (Golden). These bills will fail to protect New Yorkers from cybercrime and/or identity theft because none of them change the way that these crimes are investigated and prosecuted at the

local level. The vast majority of people charged with identity theft and fraud under existing state law are poor people accused of low-level activity, such as possession of a stolen credit card. While this legislation appears to target high-level fraud activity by increasing penalties, especially at the top-end of the scale, instead this legislation will serve to allow prosecutors to overcharge low-level defendants, subjecting them to increased mandatory minimum sentences that do not reflect their actual complicity in cybercrime. This legislation will not change the fact that local law enforcement departments generally do not have the resources to investigate high-level fraud. The cybercrime bills are unnecessary, in large part because the Federal Bureau of Investigation and federal courts are already adept at investigating and prosecuting complex hacking crimes and fraud schemes, pursuant to the Computer Fraud and Abuse Act of 1986. There is no need to pass duplicative state laws that will only increase the likelihood of incarceratory sentences for low-level offenders, filling our jails and prisons with even more non-violent offenders.

RACIAL PROFILING A.4879 (Bichotte) aims to resolve the problem of racial profiling by establishing policies and procedures to collect data on racial and ethnic profiling, statutorily prohibiting racial profiling, and by establishing a statewide public data-base containing the collected data. All of these steps will help to address and limit existing practices of racebased policing in communities across the state. Racial profiling has obvious implications for civil rights, such as the right to privacy and to be free to move through your daily life absent unwarranted government intrusion. It is also an essential barrier to repairing the frayed relationships between the police and the communities they are sworn to serve. Defense attorneys will be better able to effectively challenge constitutional violations that harm our clients if we are able to study and analyze policing trends related to racial and ethnic profiling. In other jurisdictions, such data collection has served as the basis of successful challenges to policing practices that have led to systemic overhaul and reform. NYSACDL SUPPORTS A.4879. A

“The United States of America versus Anthony Spilotro. Now what kind of odds are those?”

— Anthony Spilotro

( Alleged mob and enforcer for the Chicago Outfit in Las Vegas, Nevada, during the 1970s and 1980s; His body was found 23rd June 1986 by an Indiana farmer who thought a deer had been killed out of season and buried on his farm.

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

President’s Desk Continued from page 3

Can any of you seriously say the Bill of Rights could get through Congress today? It wouldn’t even get out of committee. — F. Lee Bailey

It would seem that our efforts have paid off; the budget provides for indigent defense funding statewide, with oversight by the Office of Indigent Legal Services, and Raise the Age seems to be on the road to becoming reality. This is an oversimplification, but elsewhere in this issue, you will find the details. Our legislative priority this year must be to press for true discovery reform. As we all know, unless the legislature makes a serious effort to amend the Criminal Procedure Law to require that prosecutors turn over useful and complete discovery material, they will continue to play “hide the ball” and there will be more wrongful convictions. The legislature must be made to see that the present system is much more costly, not only in human terms where the cost is incalculable, but in pure fiscal terms as well. Every wrongful conviction costs the government millions of taxpayer dollars; this alone should get their attention. This effort dovetails with our increased pressure for a Prosecutorial Conduct Commission, akin to the Judicial Conduct Commission already in place. While our Prosecutorial and Judicial Conduct Committee has taken on several matters, and meets regularly, our written complaints to the various Grievance Committees have thus far been turned aside, making the creation of a statutory commission to rein in prosecutors even more important. We have met with legislators who support such a bill, and will continue to press the Assembly and Senate on this front.

NYSACDL has been active in other areas, of course. Our Cutting Edge CLE programs are scheduled all over the state, and we expect to have several short programs up and running by late Spring. Our showcase Federal Practice, Cross to Kill, and Syracuse programs are filling up fast. This year, for the first time, we will run a regional CLE in the heart of the Adirondacks, in Lake Placid. We encourage all of our members to take advantage of the expertise we present at these programs. CLE is not just for the credits we need; it’s imperative that we keep up with developments in the law, so we can serve our clients well. NYSACDL provides you with the opportunity; take advantage, please! I want to thank the many dedicated members of our Board of Directors, who give freely of their time to plan and carry out our programs, put this magazine together, and generally run NYSACDL. I also extend an invitation to the members of the Association: volunteer! Serve on a committee where your interests are reflected. If you have expertise, share it. Call the CLE chairs or regional coordinators, whose contact information you can find in this magazine and on our website, and offer to be a presenter. Sharing information is critical to all of us! In this day and age, when government seems to be less “of the people, by the people, and for the people” it is more critical than ever that we stand together, to continue to fight for the rights of all. See you in Court! — John S. Wallenstein

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

Book Review Sacco and Vanzetti: The Men, the Murders and the Judgment of Mankind by Bruce Watson (Penguin Books, 2007)

Reviewed by Dick Barbuto

iven the issues of “travel restrictions“ and immigration that surround America today, I thought it might be useful to review a book about the Sacco and Vanzetti affair, which took place almost 100 years ago. I call this episode an affair because it was much more than just a trial. Indeed, the affair took place during the years 1920 through 1927. The trial itself was probably the most notorious trial that the world has ever seen. The trial and its aftermath resulted in protests across America, South America and Europe. The events took place at a time when the labor union known as the Industrial Workers of the World (IWW), whose members were often referred to as “wobblies,” was in its heyday. The membership was made up of various labor unions and among them were the Communist labor union, the socialist labor union and those who call themselves anarchists. Although there were distinctions made in the ideology of the various groups, Americans tended to think of them all as communists or “Reds.” Thus, uprisings of the various groups came to make up what was sometimes known as the “red scare.” The guilt or innocence of Nicola Sacco and Bartolomeo Vanzetti has been debated for a century and even today there are great questions as to whether or not the two men were guilty of murder or even that only Sacco was a murderer. The reader needs to look at a number of different issues that took place during the trial and after. These issues are not intended to be a comprehensive list but rather to be illustrative.

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.

The conduct of the chief defense attorney can only be described as calamitous. He seemed to think that the best way to try the case was to bait and otherwise annoy the judge. The prosecutor was allowed to ask almost any question he felt was relevant and the form of the question was often designed to confuse many of the witnesses who, after all, used English as a second language.

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

The selection of the jury also raised questions of the fairness of the process. The judge repeatedly scolded potential jurors for not doing their duty by not serving. Indeed, when the court ran out of jurors, constables were sent out to round up jurors off the street. As it was constables who were doing the rounding up, it is not much of a stretch to believe that the people rounded up were prosecution oriented. The judge himself on at least three occasions made remarks that illustrated his strong bias toward the defendants. The judge, Webster Thayer, sometimes made his derogatory remarks at a golf club that he favored and although many people heard the remarks, none was found in any newspaper or in the trial record. As part of the posttrial proceedings, the Supreme Judicial Court, the highest court in Massachusetts, granted a hearing to the defendants to determine whether or not Judge Thayer had shown bias in the trial. The court then assigned Thayer, the same Judge that presided over the trial. Not surprisingly he found in favor of himself.

Perhaps the most contentious part of the trial came with respect to ballistics issues. But we should keep in mind that ballistics testing was not the science that it appears to be today. So confusing was the ballistics testing, at one point the court didnâ&#x20AC;&#x2122;t even know if they were testing the right gun. The posttrial advocacy consisted, for the most part, of dueling affidavits. The defense submitted affidavits to the court and oftentimes they were written by the same persons with entirely opposite conclusions. It was a mess.

fair to both sides and leaves the reader with many questions. Whether or not Nicola Sacco and Bartolomeo Vanzetti were murderers is left to the reader. The one thing that is very clear is that the two men deserved a new trial.

The crime was committed on April 15, 1920. Sacco and Vanzetti were put to death via the electric chair on August 23, 1927. During that time there were worldwide demonstrations and protests against the convictions and putting the two men to death. To give the reader some sense of the breadth of the protests, the author lists multiple countries and cities where protests were held. Watson has written a very good book. It is also very well researched. The book is

Atticus | Volume 29 Number 2 | Spring 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 Alan S. Lewis, Manhattan

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 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 APRIL 13, 2017) ALBANY COUNTY Kellan Potts BRONX COUNTY Peter Coleman Natalie Corvington Anne Dean Courtney Dixon Lenora Easter Robyn Goldberg Craig Levine Andrew Multer Thomas Peterson

Marc Ramirez Linsey Ruhl Jeremiah Rygus Lauren Teichner DELAWARE COUNTY Daniel O’Leary ERIE COUNTY Elisabeth Rossow KINGS COUNTY Abraham J. Hassen Migir Ilganayev

NEW YORK COUNTY Hanna Antonsson Susan Costigan John J. Kenney Ben Klein Lee A. Koch Jae Lee Jeffrey Lichtman Daniel A. McGuinness Larrisa Rouse-Estill Carla Sanderson

Matthew F. Schwartz Zachary S. Taylor

STEUBEN COUNTY Christopher Matthew Tunney

ONONDAGA COUNTY Michael Affleck Timothy Roulan

SUFFOLK COUNTY Jason Russo

PENNSYLVANIA Kirstie Raffan

ULSTER COUNTY Eric W. Naiburg Bryan E. Rounds

QUEENS COUNTY Anthony M. Battisti SARATOGA COUNTY Kurt Mausert

Atticus | Volume 29 Number 2 | Spring 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 Director’s office: jlvanort@nysacdl.org, 518-443-2000, for more information. AMICUS CURIAE COMMITTEE Chair: Richard Wilstatter Members: Marc Fernich, Timothy Murphy, Claudia Trupp

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

LEGISLATIVE COMMITTEE Chairs: Andrew Kossover (ak@kossoverlaw.com); Lisa Schreisbersdorf (lschreib@bds.org) Members: Bruce Barket, Wayne Bodden, Anthony La Pinta, Greg Lubow, Aaron Mysliwiec, Alan Rosenthal

MEMBERSHIP COMMITTEE CONTINUING LEGAL EDUCATION COMMITTEE Chair: Michael Baker (MBaker@co.broome.ny.us) Regional Coordinators: Buffalo: Brian Melber, Timothy Murphy Rochester: Donald Rehkopf, Jr., Andre Vitale Syracuse: Kenneth Moynihan, Craig Schlanger Capital Region/Saratoga: Allison McGahay, Tucker Stanclift Hudson Valley: Andrew Kossover, Benjamin Ostrer Long Island: Steven Epstein, Steven Kunken New York City: Yung-Mi Lee, Arnold Levine, Richard Willstatter

FEDERAL PRACTICE COMMITTEE Chair: Mark Hosken (Mark_Hosken@fd.org) Members: Mitchell Dinnerstein, Timothy Hoover, Anthony La Pinta, Arnold Levine, Elizabeth Macedonio, Kenneth Moynihan, Lisa Peebles, Robert Wells, Richard Willstatter

FINANCE AND PLANNING COMMITTEE Chairs:Robert Isseks (isseks@isseksandsmith.com); Alan S. Lewis (lewis@clm.com) Members: Lori Cohen, Andrew Kossover, John Wallenstein, Susan Walsh, Robert Wells

INDIGENT DEFENSE COMMITTEE Chair: Andre Vitale (avitale@monroecounty.gov) Members: Stephanie Batcheller, Alice Fontier, Mark Hosken, Timothy Murphy, Kevin O’Connell, Lisa Peebles, Mark Williams

JUSTICE COURTS COMMITTEE Chair: Greg Lubow (gdlubow@gmail.com) Members: Craig Schlanger, Peter Dumas, Mark Williams

Chair: Steven B. Epstein (sepstein@barketmarion.com) Members: Peter Dumas, James Grable, Jr., Steven Kunken, Amy Marion, Allison McGahay, Brian Melber, Michael Shapiro

MILITARY/VETERANS AFFAIRS COMMITTEE Chair: Donald Rehkopf, Jr. (drehkopfjr@brennalaw.com) Members: Kenneth Moynihan, Andre Vitale, Mark Williams

PROSECUTORIAL AND JUDICIAL COMPLAINT COMMITTEE Chair: Marvin Schechter (marvin@schelaw.com) Members: Dan Arshack, Clare J. Degnan, Jane Fisher-Bryialsen, Russell Schindler, Don Thompson, Robert G. Wells (NYSACDL President-Elect), Richard Willstatter; Bennett Gershmann (Advisory Member), Ellen Yaroshefsky (Advisory Member)

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

PUBLIC STATEMENTS COMMITTEE Chair: John Wallenstein (JSWallensteinEsq@outlook.com) Members: Lori Cohen, Lawrence Goldman, Jessica Horani, Andrew Kossover, Robert Wells, Richard Willstatter

WHITE COLLAR CRIME COMMITTEE Chairs: Michael Shapiro (MShapiro@clm.com) Members: Joshua Dratel, Moe Fodeman, James Grable, Jr., Timothy Hoover, Alan Lewis, Brian Melber, Florian Miedel, Aaron Mysliwiec

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

Atticus | Volume 29 Number 2 | Spring 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 2 | Spring 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 2 | Spring 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

On March 18, 2017 Syracuse University College of Law was host to the Central New York Spring Seminar put on by NYSACDL. Dozens of St. Patricks day survivors from several counties made it out to a seminar offering a wide range of topics, including the defendant taking the stand, immigration consequences, medicaid fraud, prosecutorial misconduct, and Sandoval/Molineaux. We would like to thank the presenters, the participants, and our friends at SUCL for such a wonderful facility. On April 7, 8 and 9, 2017 NYSACDL lent its support and participation of some of its officers to the first Onondaga Trial Skills Program. Together with OCBA-ACP, ILS, and NYSDA we provided intensive trial training to defense counsel in Onondaga County. Three full days of hard work and resulted in a beneficial experience for all participants and coaches alike. We hope to assist in future intensive trainings with great team.

CLE

Spring CLE:

Upstate Criminal Defense Seminar

Friday, June 9, 2017

4.5 Skills Credits The Gideon Putnam, Saratoga Springs, NY 12:15-4:45pm (Registration & Included Lunch begin at 11:30am)

Faculty & Topics: Federal Implications of State Practice – Mark D. Hosken, Esq., Rochester, Supervisory Assistant Federal Public Defender, Federal Public Defender's Office for the Western District of New York Defending Youth: Juvenile Defense in the Raise the Age Era – Jessica A. Horani, Esq., New York, Juvenile Defense Unit & Special Litigation Unit, New York County Defender Services Breath and Blood Testing: Science Made Simple – Steven B. Epstein, Esq., Garden City, Founding Partner, BarketMarion Pricing: NYSACDL Member: $90 Non-Member: $125 (Add NYSACDL 6-Month Membership Dues: $34 BEST DEAL FOR NONMEMBERS! Membership good until 12/31/17. Regular 6-month Dues: $104) Public Defender: $75 (Groups of 5+: $65) (Add NYSACDL Public Defender/ New/Part-Time Attorney 6-Month Membership Dues: $20 Total Payment $95 BEST DEAL FOR NON-MEMBERS! *Membership Good Until 12/31/17. Regular 6-month Dues: $65) Visit http://nysacdl.site-ym.com/event/ssprings17 for registration information.

Find NYSACDL on Facebook, LinkedIn & Twitter

This transitional program is approved for new lawyers. NYSACDL is accredited by the New York State Continuing Legal Education Board and by the New Jersey Board on Continuing Legal Education as an approved provider. NYSACDL provides tuition assistance to attorneys showing hardship.

Atticus | Volume 29 Number 2 | Spring 2017 | New York State Association of Criminal Defense Lawyers

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

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

$25/Credit Hour $50-$150

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

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

Sentencing & Appeals

Ethics

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

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

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

Federal Practice

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

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

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

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

Atticus | Volume 29 Number 2 | Spring 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

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“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.

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