Atticus vol 30 no 1 web 2

Winter 2018 | Volume 30 | Number 1

ATTICUS INSIDE

2018 NYSACDL Foundation

Annual Dinner

this

Award Recipients

ISSUE 3

Message from the President

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From the Editors

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Dispatches from 90 State

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From the Defense Table

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Amicus Report

by Richard Willstatter

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Court of Appeals June-October 2017

by Timothy P. Murphy

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27 38 40

Singas v. Engel: A Discovery Win for DWI

by Steven Epstein and Donna Aldea Voir Dire: When the Juror Lies

by Mark Hosken Book Review Cutting Edge CLE

New York State Association of Criminal Defense Lawyers

Publication of the New York State Association of Criminal Defense Lawyers

Seymour W. James, Jr., Esq.

Gerry Spence, Esq.

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Page 25

Lifetime Achievement Award

P. 19 P. 24

Thurgood S. Marshall Award for Outstanding Criminal Practitioner

Appellate Roundup Annual Dinner Honorees

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 2018 PRESIDENT Robert G. Wells, Syracuse

SECRETARY Mark Williams, Olean

Alice Fontier, Manhattan John Ingrassia, Newburgh 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 Grainne E. O’Neill, Brooklyn Russell A. Schindler, Kingston Tucker C. Stanclift, Glens Falls Donald Thompson, Rochester Claudia Trupp, Manhattan Susan J. Walsh, Manhattan

TREASURER Alan S. Lewis, Manhattan (To Be Appointed 1/26/18)

IMMEDIATE PAST PRESIDENT John S. Wallenstein, Garden City

DIRECTORS: Stephanie Batcheller, Albany (NYSDA Designee) Steven B. Epstein, Garden City Edgar De Leon, Manhattan Mitchell J. Dinnerstein, Manhattan Peter A. Dumas, Malone Renee Hill, Bronx

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

PRESIDENT-ELECT Lori Cohen, Manhattan FIRST VICE PRESIDENT Timothy Hoover, Buffalo VICE PRESIDENTS Michael T. Baker, Binghamton James W. Grable, Jr., Buffalo Jessica Horani, Manhattan Arnold J. Levine, Manhattan Kenneth Moynihan, Syracuse

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. O’Connell Richard D. Willstatter Benjamin Ostrer Aaron Mysliwiec Wayne C. Bodden Andrew Kossover John S. Wallenstein 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

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Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

Publication of the New York State Association of Criminal Defense Lawyers

Submit an Article to Atticus Members wishing to submit articles for inclusion in Atticus should submit them via email to atticus@nysacdl.org.

Questions regarding submission may be directed to: Jennifer Van Ort, Executive Director, NYSACDL 518-443-2000 jlvanort@nysacdl.org The editors reserve the right to modify any submission for style, grammar, space and accuracy.

Authors are requested to follow these guidelines: 1. Use footnotes rather than endnotes.

2. When a Case is mentioned in the text, its citation should be in the text as well.

3. Articles longer than 4 pages may be edited or serialized.

Find NYSACDL on Facebook, LinkedIn & Twitter

Message from the President

By John S. Wallenstein This is my final column as President of NYSACDL. I have no idea where the time went, but it’s been an interesting year.

Last January, when I began this term, I had just a general idea of what lay ahead. Running an organization of criminal defense lawyers requires long hours, patience, and a great team of people. I would be remiss if I didn’t take this opportunity to recognize the hard work and dedication of our Officers and Directors, who have spent countless hours furthering the interests of the criminal defense bar and our clients.

On the legislative front, we sent delegations to several lobbying days in Albany, where we spoke out on several important issues. We joined with many other defense and grass roots organizations in an effort to “Repeal the Blindfold Law”, the theme for our lobbying day to change the discovery statutes. Many of us spent the day talking with legislators and staff members, and our views were well received.

Earlier in the year, we met with legislators to discuss prosecutorial conduct, and pressed for legislation to create a Prosecutorial Conduct Commission.

Later in the year, we retained a new lobbying firm to replace Sandra Rivera. We have retained Ostroff Associates, a well respected firm based in Albany, and they have already set up meetings with legislators and their staffs on the issues we have prioritized.

Our CLE programs have been robust. Cross to Kill, Weapons for the Firefight, the Superstar Trial Program in Buffalo, and our Hudson Valley, Capital District, and Syracuse programs all drew packed houses, and excellent reviews from those who attended. Thanks are due to the CLE Chairs and the program chairs, and especially to Executive Director Jen van Ort, for all the hard work and heavy lifting that goes into putting together a successful CLE program. CLE is the lifeblood of NYSACDL, because we draw revenue and membership from each program. Since CLE is mandatory, get your credits “inhouse”; we offer discounts for members, of course, and when you get your nonmember colleagues to join NYSACDL at the programs, they benefit as well.

I am proud to note that our membership has increased dramatically; as this written, in the last week of December, we approach 900 members, and growing!

2018 promises to be a challenge for us all. The Federal government continues its assault on our liberty, seeking longer detention for more people than ever before, Continued on page 35

Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

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From the Editors’ Desk

EDITORS Jessica Horani, Editor in Chief John S. Wallenstein Alan S. Lewis

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 Editor, Jessica Horani.

Contact Jessica at jhorani@nycds.org

John S. Wallenstein, Jessica Horani, Alan S. Lewis It is the New Year but is it a new day in Criminal Defense in New York State?

The close of 2017 saw counties state wide beginning to address how they were going to implement the changes mandated in the Raise the Age legislation to ensure a fairer and more just approach to juvenile justice in the future.

This year we will see some of those changes take place in October when the age for prosecution of certain criminal offenses goes from 16 to 17 and then from 17 to 18 the following year. With the creation of new Youth Parts in every county for those young people who will still be tried as adults in certain felony cases, we will look to all of you, our members and readers, to keep us advised of how you see them being treated and whether the aims of the legislation are being met.

2017 also brought an end to a decades-old evidentiary rule prohibiting the introduction of photographic identifications in the prosecution’s case in chief in a somewhat controversial pair of laws passed as part of the State’s budget in July.

The legislation allows the introduction of evidence of photographic identification in the prosecutor’s case in chief, provided that a ‘blind’ or ‘blinded’ identification procedure was used. The second law required the video recording of custodial interrogation of defendants charged with one of 19 enumerated felonies. Once again, whether the legislative bargain that traded the restriction on photo ID evidence for these other safeguards will overall benefit our clients remains to be seen and you all are once again our eyes and ears as to how these matters play out in precincts and courtrooms statewide.

New York also took a step forward in addressing collateral consequences of a criminal conviction for certain individuals by expanding the State’s prior sealing statute to now allow for sealing of certain felony and misdemeanor criminal convictions in limited circumstances. Sometimes incorrectly referred to as an ‘expungement’ statute, the new statute under CPL 160.59(1) only permits sealing and for qualified applicants may require a hearing if the prosecutor objects to the sealing. The statute sets forth the criteria but at least ten years must have elapsed since the date of sentence or release from custody on the most recent criminal conviction.

In the spirit of progressive, empathetic and vigorous advocacy, we honor two defenders of exceptional stature at our annual dinner on January 25, 2018. We hope to see many of you in attendance as we recognize Seymour James, Attorneyin-Chief of the Legal Aid Society in New York City, and Gerry Spence, a legendary courtroom advocate and the founder of the Trial Lawyer’s College. Both James and Spence, whose achievements are detailed in this issue, have dedicated their lives to continuing the fight for justice for the underdog, James in his leadership of the Continued on page 35

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Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

Dispatches from 90 State Jennifer Van Ort Executive Director It’s the start of another year and I’m sitting at the NYSACDL office in Albany awaiting the stream of Governor Cuomo’s State of the State address. We learned this morning that this address will include sweeping new proposed legislation for criminal justice reform in New York State, including one of NYSACDL’s top priorities, Discovery Reform. After memos, press releases and lobby days, this is an exciting moment for New York State and all who work to ensure fairness in the criminal justice system. We know all to well the costs of New York’s antiquated discovery practices and the need for this crucial reform. I look forward to assisting NYSACDL leadership and members with the work in the month’s ahead to see this proposal come to fruition.

Speaking of lobby days, NYSACDL is once again working with its collegial criminal defense organizations to plan three important days in Albany during the 2018 legislative session. Please mark your calendar for January 30th, February 13th, and March 20th. These opportunities to meet with your lawmakers to discuss the issues of importance to the criminal defense bar should not be missed. Watch your email for more information to come soon.

After a successful membership year in 2017, where we reached and exceeded our membership goal off 900 criminal defense attorneys and allied professionals, NYSACDL’s impact at these lobby days and on criminal justice issues in general is stronger than it ever has been before. If you are a new or returning 2018 member – thank you for your continued support of our organization and the important work that we do. If you received a notice with this issue if Atticus that your membership has lapsed, I encourage you to take this opportunity to renew your membership for 2018. Your included voice is important and heard – we need you to continue our work through the year ahead.

I also want to take a moment to thank all those who attended NYSACDL CLE seminars this past fall. CLE opportunities are numerous and your continued presence at NYSACDL sponsored programs is crucial. We hope that you found the opportunities in New Paltz, Syracuse, New York City, and Buffalo interesting and educational. We are in the process of planning for the spring programs, which will again include another wonderful Cross to Kill program in March, a Central New York program, a return to Lake Placid and an Upstate Criminal Defense seminar in early summer. Through these regional programs, NYSACDL strives to make it easy for criminal defense lawyers around the state to access top-rated CLE programs focused on current needed topics. As always, if you have an idea for an interesting seminar program, please do not hesitate to contact me. ​ ORRECTION: Richard Willstatter’s C name was misspelled in the last issue of Atticus. We apologize for the error.

Over the next few weeks we will focus on NYSACDL’s annual leadership transition.

Allow me to take a moment to thank John Wallenstein for his dedicated and steadfast service to NYSACDL during 2017.

Continued on page 35

Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

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From the Defense Table: Celebrating the Achievements of NYSACDL Members in the Courts TEACHING THE LESSONS OF WRONGFUL CONVICTIONS Members Oscar Michelen and Martin Tankleff presented at Touro Law in October on Wrongful Convictions along with recent exoneree David McCallum.

Michelen also presented along with David McCallum and author Ken Klonsky at New York Law School. The presentation at New York Law School discussed wrongful convictions with the aid of recent exoneree McCallum whose case was handled by Michelen. Ken Klonsky wrote a book about the herculean group effort to exonerate McCallum titled, “Freeing David McCallum: the last miracle of Rubin ‘Hurricane’ Carter” which will be reviewed in our upcoming issue.

EASTERN DISTRICT FRAUD ACQUITTAL Member Thomas Kenniff obtained a full acquittal on in the Eastern District of New York before Judge Hall in November in a Mail and Wire Fraud case. The case was against a lawyer defendant who was indicted as part of the investigation into former Senator John Sampson. Kenniff tried the case as lead counsel, with Bruce Connolly and Anthony Colleluori of Raiser & Kenniff, PC as Co-counsels.

DWI SENTENCE APPELLATE WIN Member David Woodin helped a client make it home for the holidays with an Appellate win in the Third Department

(From left) Exoneree David McCallum, Member Oscar Michelen, and Member and Exoneree Martin Tankleff at Touro Law School

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in The People of the State of New York v.

Joshua B. Coon. The decision authored

by Judge Aarons vacated appellant’s prison sentence of 2-6 years in a DWI case. Appellant was sentenced and served a one year jail sentence followed by a three year period of conditional discharge. During the period of conditional discharge appellant violated the terms by operating a motor vehicle without the Ignition Interlock Device installed. Upon appellant’s admission of the violation his conditional discharge was revoked and he was sentenced to the additional term of 2-6 years imprisonment. The Appellate Division determined that where appellant already served the one year sentence imposed for his DWI conviction, the County Continued on page 10

Member Oscar Michelen (at podium) presenting at New York Law School with fellow panelists seated from left to right, Author Ken Klonsky, Exonerees David McCallum and Calvin Buari

Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

Volunteers Needed!

New York State Clemency Project A partnership with New York State, the National Association of Criminal Defense Lawyers (NACDL), and Families Against Mandatory Minimums (FAMM) NYSACDL has committed to taking 200 cases in this project.

Can you help us reach this number?

The NACDL/FAMM State Clemency Project is seeking volunteer New York attorneys for state clemency work. The project, designed to help recruit, train, and provide resource support to pro bono attorneys who will assist state prisoners in submitting petitions to have their sentences commuted, has begun assigning cases in New York. The project has developed procedures to provide an initial packet of records for each applicant and to facilitate quick access to records and easy communication with applicants.

NACDL is also seeking experienced criminal defense attorneys to serve as Advisory Attorneys in the New York State Clemency Initiative, part of the NACDL/FAMM State Clemency Project. Advisory Attorneys will provide operational support to the project by giving legal advice and reviewing case documents. Many volunteer attorneys working on cases are not criminal practitioners, so the experience and perspectives of Advising Attorneys are invaluable.

To learn more, email Project Manager Steven Logan at slogan@nacdl.org.

The Only Sweeter Words in a Defense Lawyer’s Lexicon than Not Guilty may be....

You are going home.

Imagine saying those words to someone who has spent years in prison. Imagine giving the gift of freedom and a second chance to a prisoner who is rehabilitated and has demonstrated a readiness to return to the community. By representing a single clemency applicant, you can help reverse the misfortune of a generation. This is your chance to make that call to a deserving prisoner in New York.

Under Governor Cuomo’s initiative the crime of conviction is not a determinative factor. Rather, the primary focus will be on making the case for the change in the applicant’s life during his or her incarceration, including rehabilitation, and factors such as age, illness, disability, and any inequalities caused by further incarceration. Underlying mitigation and fundamental inequity in the original case may also be considered.

The New York State Clemency initiative supported by NYSACDL, in partnership with NACDL and others, is the opportunity of a defense lawyer’s career to help salvage the lives of defendants and families who have left behind by a guilty verdict or plea. This effort is about the clients and cases that keep us up at night; the tales of courtroom heartache we share with each other.

This is a unique opportunity for criminal defense lawyers to help undo the incalculable harm of harsh and irrational sentencing policies by giving deserving prisoners a chance to regain their freedom. The first application you draft is the hardest ... but it is a remarkable opportunity to let loose with creative advocacy for a human being, unconstrained or inhibited by courtroom barriers. Join me in demonstrating the compassion and commitment we know NYSACDL members and our New York criminal defense community brings to the profession.

NYSACDL has partnered with volunteer attorneys from several bar groups, but you — our membership of criminal defense practitioners — are uniquely positioned to assist in this effort. You bring expertise, experience, and excellence in criminal defense. And, through its collaboration with its partners,. NYSACDL will facilitate your work. The State Clemency Project will recruit, train, and provide resource support to all pro bono attorneys who will assist state prisoners to submit petitions to have their sentences commuted. Support includes training materials, webinars with Q&A sessions, resource consultants, model petitions, and reference materials.

As a past volunteer working under Obama’s clemency initiative, I can tell you that I have never had such a personally rewarding professional experience than the calls I made to people in jail who believed they were serving a life sentence and tell them: “You are going home.”

Take a case and take a second chance at changing a life.

Click https://stateclemency.org/training and sign up.

Susan J. Walsh, Vladeck Raskin & Clark, PC NYSACDL Board of Directors

Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

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Amicus Report NYSACDL

By Richard Willstatter, Amicus Curiae Committee Chair

The Amicus Committee had some wins and some losses in the last few months.

Richard D. Willstatter is a criminal defense lawyer in Westchester County. He can be reached at willstatter@msn.com.

The Amicus Curiae Committee can be contacted if you have, or learn of, a matter in which our participation is solicited.

However, members are reminded to contact us as early as possible in the course of the case because it does take time to recruit an author, prepare, edit, print, copy and file a brief.

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Criminal defense lawyers know that eyewitness identification cases frequently result in convictions of innocent defendants. Now, upon request, trial courts must give a cross-racial identification charge in eyewitness identification cases. On December 14, 2017, in People v. Otis Boone, the Court of Appeals held that, in cross-racial eyewitness identification cases, trial court must generally give a jury instruction that juries should take into account that a witness’s identification is suspect where the witness and the perpetrator are of different races. The Court held that “in a case in which a witness’s identification of the defendant is at issue, and the identifying witness and defendant appear to be of different races, a trial court is required to give, upon request, during final instructions, a jury charge on the cross-race effect, instructing (1) that the jury should consider whether there is a difference in race between the defendant and the witness who identified the defendant, and (2) that, if so, the jury should consider (a) that some people have greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race and (b) whether the difference in race affected the accuracy of the witness’s identification.” NYSACDL joined a brief amici curiae filed

by Brooklyn Defender Services and the National Association of Criminal Defense Lawyers that was prepared by Mark J. Stein, Uzezi Abugo and Veronica R. JordanDavis at Simpson Thatcher with assistance from NACDL’s Joel B. Rudin and BDS’s Lisa Schreibersdorf and Susannah Karlsson.

NYSACDL also prevailed in the Jesse Friedman case, Friedman v. Rice, in the State

Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

Court of Appeals on the meaning and statutory interpretation of the Freedom of Information Law. The Appellant’s case was featured in the documentary “Capturing the Friedmans.” The Nassau County DA withheld information concerning its re-investigation of the Friedman matter. The Second Department employed a blanket rule of confidentiality to prohibit FOIL disclosure.

But the Court of Appeals reversed, holding that, under FOIL, sources and information may be withheld only upon a specific showing of an express promise of confidentiality to the source, or a finding that, under the circumstances of the particular case, the confidentiality of the source or information can be reasonably inferred. In essence, the Second Department’s interpretation of the FOIL statute was wrong. The Court of Appeals adopted the Supreme Court’s view of confidentiality as applied to the federal Freedom of Information Act, where the determination of whether a source is confidential is determined under a “particularized approach”, which may include consideration of “the character of the crime” and “the source’s relation to the crime.” These confidentiality determinations are fact specific but at least a DA’s Office cannot use a FOIL exemption to hide evidence in every criminal case. Ben A. Schatz of the Center for Appellate Litigation represented NACDL and NYSACDL. Mr. Friedman is represented by NYSACDL member Ron Kuby.

NYSACDL, joined by the Chief Defenders Association of New York and NACDL, filed a brief in the case of People v. Arjune in the New York Court of Appeals. The issue was private counsel’s obligation to help a client he represented at trial learn what he must do to obtain appointed counsel on appeal. In Arjune’s case, his private trial lawyer filed a notice of appeal but did not inform him what he had to do to make an in forma pauperis application to the Appellate Division so his appeal was dismissed. New counsel filed a writ of error coram nobis which is headed to the Court of Appeals. Eamon Joyce of Sidley Austin prepared our brief. In a disheartening opinion by Judge Leslie Stein, the Court found that Arjune failed to meet his “heavy burden” to show his counsel was ineffective on his coram nobis application to the Appellate Division. The majority found that Mr. Arjune failed to meet his burden of demonstrating that he was unaware of his appellate rights, how to seek poor person relief, or how to otherwise perfect the appeal, or that counsel failed to comply with the relevant court rules.

In essence, the Court decided that petitioners need “non-hearsay” proof beyond the defendant’s own affidavit which it views as “self-serving.” Judge Rivera’s spirited dissent quoted extensively from our amicus brief. We expect Mr. Arjune to petition the Supreme Court for a writ of certiorari and hope it is granted.

The constitutionality of New York’s discretionary persistent felony statute was raised in two appeals in the State Court of Appeals, People v. Garvin and People v. Wright. NYSACDL and NACDL filed several amicus briefs on this issue in years past. Unfortunately, the Court of Appeals once again rejected the appellant’s Apprendi-based attack on the statute. In the Garvin case, Judge Fahey dissented, stating that he would reverse the Court’s own precedents. He wrote that “Exposing defendants to criminal penalties more severe than could be imposed based upon the jury verdict and prior convictions alone, without a jury making the factual determinations necessary for the enhancement in punishment, is abhorrent not only to the Federal Constitution but also to basic justice.” The Wright decision reversed for other reasons so the Court did not reach the Apprendi argument there. Tiffany Payne and Mark G. Matuschak or WilmerHale prepared a joint amici curiae brief for this Association and the National Association of Criminal Defense Lawyers. We hope that Mr. Garvin’s counsel will pursue this challenge in the Supreme Court or in federal habeas proceedings.

As you may know from previous Committee reports, we will be filing an amicus brief in the New York Court of Appeals case of People v. Brooks on whether there is a “domestic violence” hearsay exception permitting, e.g., friends of the decedent to testify variContinued on next page

Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

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Amicus Report Continued from previous page

Legislative Committee: Andy Kossover, Co-Chair (New Paltz) Amy Marion, Co-Chair (Garden City) Lori Cohen Greg Lubow (Greene County) Kenneth Moynihan Marvin Schechter John Wallenstein Robert Wells Mark Williams

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.

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ously that the decedent had characterized the defendant as a marijuana user, lazy, a bum, etc. although they were living together as boyfriend and girlfriend. University of South Carolina law professor Colin Miller will author our brief. We expect NYSACDL’s brief to be filed soon.

In the case of People v. Wiggins, NYSACDL’s own Amicus Curiae Committee member Timothy Murphy of the Legal Aid Bureau of Buffalo and Benjamin L. Nelson of that office have authored our amicus brief in a case involving the state constitutional right to a speedy trial. The Court of Appeals will address whether the State can detain a 16-year-old at Rikers Island for six years without a trial. Our motion to appear as amicus curiae was granted. The case will

be argued on January 9, 2018.

This Association joined a brief amici curiae filed by NACDL in the Second Circuit Court of Appeals in the case of Simons v. City of New York, 17-1281.

The brief was written by Joel B. Rudin who is a Vice Chair of the NACDL Amicus Committee. The district court dismissed a 1983 civil rights claim of a woman who was illegally seized and held incommunicado by use of an unlawful office subpoena. The district judge found that no civil rights claim could be advanced because this illegal practice is widespread. We argue to the contrary. Our brief is joined by the American Civil Liberties Union Foundation, and the New York Civil Liberties Union Foundation. Oral argument is expected in the coming months. A

From the Defense Table Continued from page 6 Court was not authorized to impose an additional term of imprisonment based on a violation of the conditional discharge terms.

CLEMENCY FOR PRISONERS Board Member Susan Walsh obtained clemency for at least six incarcerated petitioners in her pro bono work together with the NACDL supported State Clemency Project.

As a volunteer lawyer with the project, Walsh drafted petitions for state prisoners seeking clemency pursu-

ant to Governor Cuomo’s initiative.

The petitions highlight the evidence of rehabilitation of the prisoner as well as other factors such as their age, illness, disability, and so on. The State Clemency Project is open to all New York attorneys and we urge our membership to consider partnering with the NACDL and volunteering to prepare a petition on behalf of a client as well. Support for volunteer lawyers from the NACDL/ FAMM State Clemency Project will include training materials, webinars with Q&A sessions, resource consultants, and reference materials. Additional information for interested members may be found here https://stateclemency.org/ training/. A

Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

C

ourt of Appeals Criminal-Related Decisions

Compiled by Timothy P. Murphy, Esq.

June – October 2017 June 1, 2017 People v. Sivertson

Timothy P. Murphy, Esq. Chief Attorney Appeals and Post-Conviction Unit The Legal Aid Bureau of Buffalo, Inc. 290 Main Street, Suite 350 Buffalo, New York 14202 Office: (716) 853-9555 ext. 679 Fax: (716) 853-3219 tmurphy@legalaidbuffalo.org

29 NY3d 1006

This is 4 to 2 memorandum affirming the AD, with Judge Rivera authoring a fifteen page dissent, joined in by Judge Stein. The facts are only described in the dissenting opinion. The case involved a nighttime robbery of a convenience store, with one of the two present employees observing the masked perpetrator display a knife. The perpetrator runs from the store between two buildings across the street.

About 40 minutes after the crime, the police storm an apartment across the street from the store without a warrant under the auspices of exigent circumstances. 15 to 20 officers surrounded defendant’s tiny apartment, wherein he was viewed through a window watching television. He ignored the officers’ calls to open the door, but no one was in danger, no evidence was being destroyed and defendant did not attempt to escape. The majority refused to address the substantive Fourth Amendment issue, as this constituted a mixed question of law and fact; there was purportedly record support for the suppression court’s decision. The AD is thus affirmed.

The dissent passionately opined that there was no record support for what is supposed to be a narrowly drawn exception to the warrant rule. Good general language on the Fourth Amendment is provided by the dissent, including the home being Continued on next page

Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

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Court of Appeals Continued from previous page one’s castle, the burden being on the People to establish an exception to the warrant rule and that warrantless entries into the home are presumptively unreasonable. See generally People v. McBride, 14 NY3d 440, 445 (2014) (requiring an “urgent need” for the officers’ warrantless actions); People v. Levan, 62 NY2d 139, 146 (1984) (noting that the police may not create by their own conduct “an appearance of exigency”); Brigham City v. Stuart, 547 US 398, 404 (2006) (requiring that warrantless entries by the police be objectively justified).

June 6, 2017 People v. Viruet 29 NY3d 527 This is 4 to 2 decision, authored by Judge Garcia, with Judge Wilson authoring a dissent, joined in by Judge Stein. The AD is affirmed. The trial court committed harmless error in not providing an adverse inference instruction to the jury regarding lost surveillance footage from the front of the Queens nightclub where the fatal shooting in question occurred. The police had received this evidence just hours after the crime, but then lost it. A bouncer, who had observed the video, testified that it captured the actual shooting. Defendant had timely requested that this evidence be turned over. An adverse inference charge was then sought since the evidence was lost.

The trial court denied the request, as the video apparently did not identify the shooter. People v. Handey, 20 NY3d 663, 665 (2013), is on point. Where a defendant, acting with due diligence, demands evidence that is “reasonably likely to be of material importance,” and the evidence is destroyed by the state, she is entitled to an adverse infer-

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ence charge. This is not discretionary on the part of the trial court. The court held that law enforcement must preserve the evidence whether or not the People intended to use the evidence at trial, or whether or not it was created by a third party. Once the police come into possession of the evidence, they have an obligation to preserve it. See People v.

Kelly, 62 NY2d 516, 520 (1984); CPL 240.20 (1).

At bar, however, this non-constitutional error was harmless, as the evidence of defendant’s guilt was overwhelming and there was no “significant probability” that that appellant would have been acquitted had it not been for the error.

See People v. Byer, 21 NY3d 887, 889 (2013), quoting People v. Crimmins, 36 NY2d 230, 242 (1975). Here, there were eyewitnesses to the shooting, defendant confessed and had made threats twenty minutes before the crime. The dissent disagreed that the evidence was overwhelming, noting, among other things, that the two eyewitnesses only viewed the shooter quickly and offered inconsistent accounts with the events leading up to the crime. Judge Wilson’s thoughtful conclusion was that “[g]iven the standard of proof beyond a reasonable doubt, the totality of the evidence in this case would support a verdict of either guilt or innocence.”

June 8, 2017 People v. Honghirun 29 NY3d 284 This is a unanimous 6-0 decision, authored by Judge Stein. This was a child sex abuse case, where the complainant waited until she was 17 years of age to allege that defendant abused her when she was 5 and 10 years old.

The AD is affirmed; defendant’s claim of ineffective assistance of counsel is rejected. There was no lack of strategy or legitimate explanation for counsel’s failure to object to the admission of the complainant’s prior complaints to her school counselor and a detective about the allegations, as the statements were admissible in completing the narrative and they allowed the jury to learn of inconsistent statements made by the complainant. The court provides another comparison of the state and federal ineffective assistance of counsel standards, reminding again that the state standard is meant to provide defendants with greater protection that its federal counterpart. See People v. Gross, 26 NY3d 689, 693 (2016); People v. Benevento, 91 NY2d 708, 712 (1998); Strickland v.

Washington, 466 US 668, 689 (1984).

Under both standards, there is a presumption that counsel acted pursuant

Let me tell you, you can paint pictures and get people indicted for just about anything.

— Al D’Amato

Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

to a sound trial strategy. At bar, counsel pursued a defense that the complainant was a troubled teenager that simply fabricated the allegations. The jury was instructed that the complainant making a prompt disclosure, or failing to do so, could be considered in evaluating the complainant’s credibility.

relevant to the very act in question. The trial court did the appropriate weighing of the prejudicial versus probative worth of the evidence, which was relevant to defendant’s larcenous intent to deprive others of the funds (see PL §155.05 [1] [defining “deprive” in terms of the property in question]).

People v. Frumusa 29 NY3d 364

People v. Bethune 29 NY3d 539

This is a unanimous 6-0 decision, authored by Judge Fahey. The 3 to 2 AD decision is affirmed. The trial court did not abuse its discretion in this white collar prosecution, despite permitting the admission of a civil contempt order, which effectively provided the jury a judicial confirmation of defendant’s theft (i.e., that defendant’s business “willfully and deliberately failed to obey” the terms of an earlier order by “convert[ing]” almost $250,000 and then refusing to pay back the money).

For some reason, no limiting jury instructions were requested. The theft in question involved proceeds of a hotel business, which were said to be illegally transferred in secret to defendant’s account. In a related civil proceeding, defendant’s business was ordered to turn over funds; the trial testimony confirmed, however, that this did not happen.

This is a unanimous 6-0 decision, authored by Judge Wilson, with dueling concurring opinions authored by Judges Fahey and Garcia. The Chief Judge joined in Judge Garcia’s concurrence.

The AD is affirmed. The trial court did not abuse its discretion in correcting the record, without conducting a reconstruction hearing, in response to the People’s motion to resettle the trial transcript. The trial court is the final arbiter of the record. The parties, however, are entitled to a record showing the facts as they actually happened; they should not be prejudiced by a stenographer’s error. The court may conduct a hearing, but may also, as the court did here, rely on the court reporter’s certification of an amended transcript and the parties’ affidavits. The dispute here involved supplemental jury instructions in a homicide prosecution, wherein, according to the initial transcript, the jury was told that murder was an “unintentional” crime. According to an affirmation, the steno told the People that this was a typographical error. In concurrence, Judge Fahey opined that in many cases where the parties are not in agreement as to the facts, a reconstruction hearing would be the best practice. This would avoid any appearance of impropriety for the court. Judge Garcia countered that a reconstruction hearing may expend unnecessary resources and would be un-

Molineux evidence is presumptively inadmissible unless it is relevant to a material issue and the court determines that the probative value outweighs the risk of undue prejudice. But this was not a Molineux issue, as the contempt order was not related to a separate bad act; rather it involved the indicted accusations at issue. It did not show defendant’s propensity to commit the present accusations; rather, it was factually

necessary if conducted for every dispute involving the record.

June 22, 2017 People v. Lofton 29 NY3d 1097 This is a unanimous memorandum reversing the AD, with newly confirmed Judge Feinman not participating. The judgment is reversed and the matter is remitted for re-sentencing pursuant to People v. Middlebrooks, 25 NY3d 516, 525 (2016), as the sentencing court failed to make an on-the-record determination as to whether defendant was eligible for a YO adjudication, considering the CPL 720.10(3) factors.

People v. Spencer 29 NY3d 302 This is a unanimous decision with Judge Feinman not participating. A new trial is ordered. On the fourth day of jury deliberations in this homicide case, wherein the victim was stabbed 38 times, a juror alerted the court that she was unable to continue and could not render an impartial verdict. The court and the juror had an extensive exchange, with the trial court unsuccessfully attempting to persuade the juror to hang in there and do her best. Over and over the juror unequivocally confirms to the court that she was unable to separate her emotions from this case and could not render an impartial verdict anymore.

(The Court of Appeals reminds us here that jurors are not expected to be devoid of emotions, but they must have both the capacity and the will to decide each case solely upon the evidence and the law as instructed by the court.)

The juror here remained on the panel.

Continued on next page

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Court of Appeals Continued from previous page Defense counsel unsuccessfully moved for a mistrial, as the alternate jurors had already been dismissed. Defendant was convicted of manslaughter.

The constitutional right to an impartial jury is safeguarded, in part, under CPL Article 270. The Court of Appeals distinguishes here between the CPL 270.20 (1)(b) “likely to preclude” her from rendering an impartial verdict standard for prospective jurors and the CPL 270.35(1) “grossly disqualified” standard for sitting jurors, as set out in People v. Buford, 69 NY2d 290, 298 (1987). The scenario involving a prospective juror requires an unequivocal statement of fairness and impartiality.

The latter situation, involving a sitting juror, is a more difficult standard to meet, requiring that it become “obvious” that a particular juror possesses a state of mind that would prevent her from rendering an impartial verdict.

Under Buford, a “probing and tactful” inquiry is required. Buford, 69 NY2d at 299. The court is careful to warn, however, that the jury’s deliberations and thought processes regarding the case must not be invaded.

guilty here to attempted murder relating to a stabbing. Defendant sought the victim’s and victim’s family’s statement submitted with the probation report. The sentencing court denied the request. There was no requirement that the sentencing court make a record of its reasons for denying YO status under CPL 720.20 (unlike CPL 720.10 [3] [addressing presumptive ineligibility; a record is made for DCJS purposes]). It is within the court’s discretion as to how it makes a record of its YO denial. The matter is remitted (for the second time), however, for re-sentencing, as CPL 390.50 (2)(a) and due process required the sentencing court to reveal the nature of certain confidential information submitted by the probation department that the court was depending on and the court’s reason for its non-disclosure to the defense. Once again, the court is recognizing that sentencing is a critical stage in the proceedings, requiring that due process be satisfied, in terms of accurate and reliable information being utilized and an opportunity for the defense to respond. See generally People v. Outley, 80 NY2d 702, 712 (1993).

At bar, the juror made it plain a number of times that she could not continue on, consistent with her oath, as a fair and impartial member of the panel. In other words, she could not decide the case solely on the evidence. The trial court thus erred in letting the juror remain. A new trial is now in order.

June 27, 2017

People v. Minemier 29 NY3d 414 This is a 5 to 0 decision, with Judges Fahey and Feinman not participating. Judge Stein authored the decision, remitting the matter to County Court.

The YO eligible defendant pleaded

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People v. Price 29 NY3d 472 This is a 4-0-2 decision, with Judge Stein authoring the majority, and Judge Rivera authoring a concurrence (surprisingly joined by Judge Garcia). A new trial is ordered and the AD is reversed.

This armed robbery appeal presents the interesting issue of the admissibility of a photograph purported to be defendant holding a handgun and money, printed out from a website (“BlackPlanet.com”).

The People failed to properly authenticate the photo. There was no testimony

connecting defendant to the website, other than the site having a user name containing his last name. There was no testimony indicating that defendant was known to use the profile page account or that the account was traced to electronic devices owned by defendant.

There was no testimony that defendant’s pedigree info matched the website profile page info. There was no testimony indicating whether others could access the site or whether it was password protected. There was further no testimony as to who took the photo, where it was taken or under what circumstances.

There was no testimony as to whether the photo had been altered or was a genuine depiction. Still, the victim testified that the gun in the photo looked similar to the gun used in the crime, yet the witness had no prior familiarity with firearms.

Authenticity (or accuracy) in general is fact-specific to the nature of the proposed evidence and is a condition precedent to the admission of evidence; it is established by proof that the offered evidence is genuine and has not been tampered with. Mere ID by one familiar with the item may suffice when the evidence is unique or distinct.

Sometimes chain of custody testimony may demonstrate authenticity in certain circumstances. The majority rejects the two-part test followed in other jurisdictions (and championed by the concurrence), which would essentially require that the photo accurately depicts the website and that the photo is attributable to, and controlled by, the defendant. Traditionally, a photo must be shown to fairly and accurately represent the subject matter depicted. This was not done at bar. The trial court’s error was not harmless.

Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

The concurrence criticizes the majority’s decision (noted in footnote 3) not to take this opportunity to officially adopt a website / social media photograph authenticity standard, as social media postings are becoming an important source of evidence (while still being uniquely susceptible to altercation).

June 29, 2017 People v. Ramsaran 29 NY3d 1070 This is a 6 to 0 memorandum, with Judge Feinman not participating. The People successfully appealed here, reversing the AD. There was no People v. Wright (25 NY3d 769 [2015]) error at bar; defendant was not deprived of effective assistance of counsel by his attorney not objecting to the prosecutor’s comments in summation regarding DNA evidence detected on defendant’s sweatshirt.

People v. Smart 29 NY3d 1098 This is a 6 to 0 memorandum, with Judge Feinman not participating. There was record support for the suppression court’s finding that the pre-trial lineup identification procedure was not unduly suggestive. The issue was therefore beyond the Court’s review.

People v. Prindle 29 NY3d 463 This is a 5 to 0 decision, authored by Judge Wilson, with Judges Fahey and Feinman not participating. The AD is affirmed. New York’s persistent felony offender (“PFO”) statute (Penal Law §70.10) is found again here to be in

compliance with due process and the Sixth Amendment right to a jury trial — even in light of Alleyne v. US, 133 SCt 2151 (2013), which remanded in an application of the Apprendi rule to an increased mandatory minimum term.

In other words, both ends of the sentence are protected. The PFO statute, however, does not impact the mandatory minimum sentence. Under Apprendi, every element of a crime must be proven beyond a reasonable doubt, including any fact increasing a sentence, except for an admitted one or the fact of being convicted of a prior felony. The Supreme Court and the Court of Appeals have both recognized the Apprendi rule for a number of years. See, e.g., People v.

Rosen, 96 NY2d 329 (2001); People v.

Rivera, 5 NY3d 61 (2005). Stare Decisis is thus a factor in the Court’s decision here.

There are two steps in determining whether a defendant qualifies for PFO status: first, whether the defendant has two prior felony convictions, and second, whether such a designation is warranted, considering the history and character of the defendant and the nature and circumstances of the conduct.

The defendant unsuccessfully attempts to analytically divide the second step into two parts, but it is essentially just a requirement for a sentencing court to exercise its discretion in performing its traditional function (with the People shouldering the burden to show that the defendant deserves a higher sentence).

The AD’s role in reviewing sentences for proportionality is another layer of protection. Finally, Judge Wilson directs sentencing courts to the PFO statutory construction set out in Portalatin v. Graham, 624 F3d 69 (2d Cir. 2010).

September 5, 2017 People v. Every 29 NY3d 1103 Not much here. This is a unanimous memorandum affirming the AD. The defense failed to demonstrate the absence of strategic or legitimate explanations for counsel’s alleged failures in support of its ineffective assistance claim.

September 12, 2017 People v. Lee 29 NY3d 1119 This is a unanimous memorandum affirming the AD. The inventory search here was in accordance with established procedure and resulted in a meaningful inventory list. The primary objectives of the search were to preserve property located in the vehicle and to protect the police from a claim of lost property. While the procedures here were not a “model,” they were sufficient to meet the “constitutional minimum.”

The determinations of the lower court regarding the credibility of the officers, and whether an inventory search was a ruse to look for contraband, was a mixed question of law and fact. There was record support for the lower court’s conclusions, making the issues beyond further review by the Court of Appeals.

October 12, 2017 People v. Wright NY Slip Op 07159

2017

This is a unanimous memorandum reversing the AD and ordering a new trial. The trial court erred in denying a defense challenge for cause. CPL Continued on next page

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Court of Appeals 270.20(1)(b) is addressed, with the court noting that a prospective juror may be challenged for cause where the juror evinces a state of mind that is likely to preclude him or her from rendering an impartial verdict based upon the evidence adduced at trial. The prospective juror’s statements here raised serious doubts regarding her ability to be unbiased. No further inquiry to obtain unequivocal assurances that she could be fair and impartial was made.

People v. Campbell 2017 NY Slip Op 07158 This is a unanimous memorandum, affirming the AD. Defendant has failed to demonstrate the absence of strategic or other legitimate explanations for counsel’s alleged failure. The present ineffective assistance of counsel claims need to be “bottomed on an evidentiary exploration” by collateral or post-conviction proceeding under CPL 440.10.

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October 17, 2017 People v. Simmons NY Slip Op 07211

2017

This is a unanimous memorandum, affirming the AD. The determination of whether there was reasonable suspicion of criminality, justifying the officer’s demand that defendant show his hands, was a mixed question of law and fact.

The determinations below included the experience of the officers, the high crime area, reports of gunshots nearby and the defendant clutching his waistband. There was record support for these DeBourrelated findings, making them beyond the Court of Appeals’ review.

October 19, 2017 People v. Bautista NY Slip Op 07297

2017

This is another brief unanimous memorandum, affirming the AD. Defendant’s claim of being denied a fair trial by prosecutorial misconduct in summation was rejected. Further, there was no Brady violation regarding non-exculpatory notes taken during interviews with unindicted coconspirators.

People v. Austin NY Slip Op 07300

2017

This is a 6 to 1 decision, authored by the Chief Judge, a follow up to the Chief ’s 2016 John (27 NY3d 294) decision, wherein the court granted a new trial where the People introduced DNA evidence through lab personnel who did not have personal knowledge of the testing procedures being testified to.

The admissibility of DNA results under Crawford v. Washington, 541 US 36, 53-54 (2004), Melendez-Diaz v. Massachusetts, 557 US 305 (2009), and the Confrontation Clause is at issue again.

The Court of Appeals here reverses the judgment and orders a new trial.

The case involved the investigation of three 2009 commercial burglaries and several related offenses. DNA from several crime scenes was placed into the Combined DNA Index System (“CODIS”); the defendant’s DNA profile came up as a match. The People elected, however, not to introduce the cold hit from the CODIS system.

Instead, to make things easier for them (i.e., to avoid having to bring in a witness from out of town), the prosecution secured in 2012 an order to secure DNA from defendant via buccal swab.

Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

Yet the People still failed to utilize a witness that had personal knowledge of the testing procedures; the witness “neither performed, nor was present for, any of the testing” on the 2009 DNA samples.

The post-indictment compilation of this DNA-related testimony was created for the primary purpose of identifying defendant as the perpetrator. Testimony regarding this evidence was inadmissible; it was “nothing more than a parroting of hearsay statements.” The defendant should have been given the opportunity to cross-examine the analyst who either performed, witnessed or supervised the generation of the numerical DNA profile. This is in contrast to People v. Brown, 13 NY3d 332, 340 (2009), where a cold hit of the defendant’s DNA profile was secured prior to the defendant becoming a suspect.

Finally, Judge Garcia wrote a concurring opinion, criticizing the John majority’s reliance on Williams v. Illinois, 567 US 50 (2012). As John is on point, however, Judge Garcia was forced to agree with the instant result.

People v. Carr NY Slip Op 07299

2017

This is another brief unanimous memorandum, affirming the AD. The People were not required under the circumstances to seek court permission under CPL 190.75(3) before presenting additional charges to a second grand jury.

October 24, 2017 People v. Novak NY Slip Op 07384

2017

This is a unanimous decision authored by new associate Judge Feinman. Imag-

ine being convicted of DWAI after a bench trial in city court. You appeal to County Court; you look up at the appellate judge and he looks exactly like the trial judge. Apparently here the city court judge got a new job since the trial.

The Court of Appeals reversed the judgment here, as the appellate judge (also the trial judge on this matter) should have recused himself. This was a due process violation to have the same judge preside over both the bench trial and act as the sole judge on appeal. The court distinguished the present matter with the scenarios of a judge presiding over both a suppression hearting and a bench trial, and presiding over a sentencing and a CPL 440 motion. In the two latter situations, there is at least a potential for independent appellate review. Here, there was no opportunity for “independent scrutiny by a new decision-maker.”

Terrific language here on the “fundamental right” to appeal. See People v.

Harrison, 27 NY3d 281, 286 (2016).

The Court also speaks of our state’s “constitutional and statutory design intended to afford each [defendant] at least one appellate review of the facts.”

Maintaining the integrity of the appellate review process is of “fundamental, constitutional importance.” This “constitutional right to a fair appellate procedure” (People v. Perez, 23 NY3d 89, 99 [2014]) must ensure due process of law, as recognized by both the NY and federal constitutions. People v. Andrews, 23 NY3d 605, 610 (2014); Evitts v.

Lucey, 469 US 387, 393 (1985).

There is a due process right to have an impartial jurist. Not only must judges be actually neutral, but they must appear so as well. See 22 NYCRR 100.2.

The public’s confidence in the justice system is undermined otherwise. At bar,

there was an unconstitutional potential for bias and a “clear abrogation” the state guarantee of “one level of independent factual review as of right.” This “appearance of impropriety” conflicted with the notion of “fundamental fairness.”

People v. Garvin NY Slip Op 07382

2017

This is a 75-page 4 to 3 decision (5 to 2 on the 4th Amendment issue), affirming the AD, and authored by Judge Stein.

Judge Fahey dissented regarding the legality of the persistent felony offender (‘PFO”) statute, and Judges Rivera and Wilson dissented on a wide array of 4th Amendment issues. Once again, the dissent is a more interesting read than the majority.

The majority ruled that there was no 4th Amendment (Payton) violation where the police approached this robbery defendant’s home without a warrant, but with the intention of arresting him. Law enforcement did, in fact, arrest him in the “threshold” or doorway of his home (a two-family residence) after he voluntarily answered his door, which was located the second floor of the building. Another person had let the police into the building. Under the circumstances, defendant surrendered the enhanced constitutional protection of his home. The police did not enter appellant’s apartment, and were in possession of defendant’s fingerprint on a demand note used in one of the robberies under investigation. Defendant was transported to the station where he was Mirandized. He then confessed.

The majority pays some lip service to the basic principle of warrantless entries into the home to make a felony arrest

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Court of Appeals Continued from previous page being presumptively unreasonable.

Without exigent circumstances, the threshold into the home may not be crossed. One of the carefully delineated exceptions to the warrant rule is, of course, consent. But a defendant may not be threatened with a 4th Amendment violation in order to get him to exit his residence. Still, the Supreme Court has recognized that a police officer, like an ordinary citizen, may knock on the door of the residence. Florida v.

Jardines, 569 US 1, 8 (2013). An officer’s subjective intent is irrelevant. (The dissent points out, however, that an ordinary citizen cannot approach a residence intending to carry out an arrest.)

When a defendant voluntarily exits his residence, even when lured outside by a ruse, an arrest may be executed. The majority rejects the dissent’s proposed rule to apply Payton’s protections to the threshold of the residence and to consider law enforcement’s subjective intent in approaching a residence in order to make an arrest.

The issue at bar was a mixed question of law and fact; the majority concluded that there was record support for the AD’s finding that defendant was arrested in his doorway after voluntarily emerging from his residence. Because there was no Payton violation, the subsequent statements made by defendant were not suppressible under People v. Harris, 77 NY2d 434, 437 (1991), which the majority declined to overrule or expand.

Judge Fahey’s extensive dissent on the PFO statute in light of Apprendi (530 US 466 [2000]) and Blakely (542 US 296 [2004]) is interesting in light of the Court of Appeals’ very recent decision in Prindle (29 NY3d 463 [2017), wherein the court unanimously affirmed again the statute’s constitution-

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ality. (Prindle was a 5-0 decision, with Judges Fahey and Feinman not participating.) In Judge Fahey’s view, the second condition under CPL 400.20 (1)(b) requires the making of a finding of facts (CPL 400.20 [9]), not the mere traditional exercise of judicial discretion, that has the effect of increasing the prescribed range of penalties to which defendant is exposed. This requires proof before a jury beyond a reasonable doubt (Apprendi, supra at 489-490), not before a judge by a preponderance of the evidence (CPL 400.20 [5]). Judge Fahey further challenges the validity of the Rosen (96 NY2d 329 [2001]) and Rivera (5 NY3d 61 [2005]) decisions in this regard. In sum, the two prior felonies required under PL §70.10 (1) is a condition, but not the sole condition for a PFO adjudication.

Back to the 4th Amendment: Judge Rivera authors a very interesting dissent, analyzing both the impact of a two-family home in this scenario, as well as the officer’s approach of the home without a warrant. The officer’s visit to defendant’s home for the sole purpose of making a warrantless arrest undermined defendant’s indelible right to counsel. The defendant’s apartment was on the second floor of a two-family home. The officer had to pass through a common area of the building, including a vestibule and stairway, which defendant had privacy interests in. “The concept of the house as a home would be meaningless if it could be so easily compartmentalized into publically unprotected spheres.”

People that live in a two-family house do not effectively forfeit their privacy to all areas except for the space which is not commonly shared by the residents.

Rather, the purpose of the front door to a home is to ensure the privacy and security of those living behind it. The common area between the front door

and defendant’s living area was a necessary and inherent consequence of these particular living arrangements. There was no evidence that the vestibule and staircase were generally open to the public. A two-family home resident should have the same constitutional guarantees as one living in a one-family residence. One’s socio-economic status should not dictate the scope of his or her 4th Amendment rights.

Judge Rivera also agrees in her dissent with Judge Wilson regarding the legality of the officer approaching a residence where the sole reason is to make a warrantless arrest. The intersection between the indelible state right to counsel and a warrantless arrest is addressed here. As with Judge Wilson’s dissent, we find the familiar language from Harris, 77 NY2d at 439, People v. Bing, 76 NY2d 331, 339 (1990) and People v. PJ Video, 68 NY2d 296, 304 (1986), touting the more expansive constitutional protections found in our state constitution (based in part on due process and selfincrimination concerns) than its federal counterpart. As the police may not create an exigency justifying a warrantless entry into a home (King v. Kentucky, 563 US 452, 470 [2011]; see also People v. Levan, 62 NY2d 139, 146 [1984]), robust judicial oversight is needed here.

The Supreme Court in King opined that an officer could do at least as much as a private citizen in knocking on a door. 563 US at 469-470. But if the officer’s sole purpose in being there is to carry out a warrantless arrest, like at bar, that changes things.

Judge’s Wilson’s dissent further breaks down the intertwining of the indelible right to counsel and warrantless arrests, and challenges the meaning of a home’s “threshold” under Payton. (Does it Continued on page 20

Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

Sept-Nov 2017

New York Appellate

Roundup

Compiled by Claudia Trupp, Esq.

First Department People v. Craig Whitefield, 2017 NY Slip Op 06618 decided September 26, 2017 In this murder case reversal was ordered due to the trial courts failure to grant a defense challenge for cause to a prospective juror, a police officer who stated that he believed the testimony of police officers would be accurate unless they were relaying inaccurate information provided by others. He stated he “supposed” it was possible for police officers to lie or exaggerate. While the trial court ruled these answers reflected the prospective juror’s ability to be fair, the Appellate Division found reversible error as “the panelist clearly showed a predisposition to believe police officers testify truthfully”.

People v. Pedro Flores, 2017 NY Slip Op 06629 decided September 26, 2017

Claudia Trupp, Esq. is an attorney for the Center for Appellate Litigation

Defendant’s manslaughter plea was vacated as a result of the prosecution’s failure to establish that he made a knowing and intent waiver of his Miranda rights. In a videotaped statement made to the prosecutor, hours after his original statements to a detective, the defendant told the prosecutor that he could not afford a lawyer before writing “yes” on the form reflecting he understood he had a right to counsel. While Continued on page 32

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Court of Appeals Continued from page 18 mean “only the narrow space between the doorjambs”?) Judge Wilson is further critical of pre-planned warrantless arrests in the doorway of a residence — effectively (according to the majority) taking a step into the dangerous waters of what an officer’s subjective intent might be. This case showed, according to Judge Wilson, how many unanswered questions remain from Payton, which was supposed to provide law enforcement with a bright line rule for its behavior. The federal circuits being split on their interpretation of Payton under these circumstances is used as cause for Judge Wilson to remind us of the court’s prior willingness to interpret our state constitution (Article I, Section 12 [like Section 6]) broader than its federal counterpart in the 4th Amendment.

(The majority’s criticism of the dissent’s partial reliance on federal jurisprudence, as it is not binding on the court, appears to miss the point of NY’s constitution purportedly being broader in its protection of constitutional rights than its federal counterpart.) The bright line rule proposed

by Judge Wilson: first obtain a warrant if you intend on going to a residence to make an arrest, as ruses perpetrated by

law enforcement to motivate one’s exit from his or her home simply undermine the public’s trust in law enforcement.

People v. Andujar NY Slip Op 07383

2017

This is 6 to 1 decision, affirming the Appellate Term, which reversed the local court’s granting of defendant’s motion to dismiss the accusatory instrument.

Judge Rivera authored the majority and Judge Stein authored the dissent. At issue here is VTL §397, which prohibits a non-police officer from equipping a motor vehicle with a police scanner. The center of the attention here is the word, “equips,” and whether the scanner must be physically attached to the vehicle or whether it may be a freestanding device.

The law was meant to target the tow truck driver who receives inside law enforcement info and learns of a car accident (and benefits financially by getting to the scene before his competitors), as well as the lookout or the getaway driver after a robbery, who hear of the soon-to-arrive police being en route.

The defendant at bar fits under the first scenario. The scanner was found in his left jacket pocket, unattached to the vehicle. “[E]quips” is not defined under the statute, so the Court analyzed the statutory text, legislative history, dictionary definitions at the time of the law’s enactment (in 1933) and other parts of the VTL. The dictionary speaks of equipping as to furnish for service or to make ready; to provide something with a particular feature or ability. Being physically attached is not mentioned.

Other VTL references to equipping vehicles with devices often use a secondary term — like requiring that equipping with a mirror be “affixed” or a bus being equipped with a fire extinguisher be “mounted.” Other VTL items that vehicles are required to be equipped with that are not described with a secondary term do not need to be physically attached to the vehicle in order to be capable (generally) of being used: i.e., wipers, snow tires and trunks. In other words, being physically attached is just one way of being “equipped.”

In her thoughtful dissent, Judge Stein focused in on the vehicle being the object of the verb, “equips.” The legislature decided to not merely prohibit the “possession” of a police scanner. In other words, vehicles are generally equipped with items, while people possess them. A

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Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

SINGAS V. ENGEL A Discovery Win for DWI

By Steven Epstein and Donna Aldea

I

n an era where we as defense counsel are lobbying Albany for discovery reform, we must be vigilant to enforce the law as it is currently written to the best of our abilities. While CPL §240.20 entitles the defense to a limited amount of discovery in criminal cases generally, it affords defendants substantial discovery in cases charging driving under the influence of alcohol or drugs prosecuted under the Vehicle and Traffic Law.1 The Appellate Division, Second Department’s recent decision In Singas v.

Engel, 63 N.Y.S. 3d 695 (2nd Dept.

2017) demonstrates that litigating discovery issues can force the government to disclose documents in discovery that it otherwise would not be inclined to do. This case of first impression could require New York prosecutors to turn over millions of additional pages of discovery in DWI cases throughout the

1 CPL 240.20(1)(k) provides that in any prosecution alleging a violation of the Vehicle and Traffic Law, the People must disclose “any written report or document ... concerning .. a scientific test or experiment, including the most recent record of inspection, or calibration or repair of machines or instruments utilized to perform such scientific tests or experiments ..., which tests or examinations were made by or at the request or direction of a public servant engaged in law enforcement activity ... or which the people intend to introduce at trial.”

Continued on next page Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

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Singas V. Engel Continued from previous page State.2 Forcing the government to turn over these records can reveal challenges to the reliability of the instruments used to test a defendant’s breath and at a minimum will make the government accountable for the quality of its lab practices.

etc. — none of which were disclosed. In response to motions to compel, prosecutors would claim that this additional data was not in their possession, as it had not been disclosed by the State Police or other agency that had certified the simulator solution.

The case is a significant decision, as it is the first appellate decision in the state holding that New York’s discovery statute, section 240.20 of the Criminal Procedure Law, includes gas chromatography data and other records produced during the certification of the reference standard used during breath testing of a person suspected of driving while intoxicated. A trial judge is therefore authorized both to order the prosecution to produce such discovery, and to make diligent efforts to obtain it even if it is not within its possession.

Clarifying a split that had developed in the trial courts, this decision now makes clear that all of the records produced during the testing of the reference standard are included under the statute, and that a trial court may order a prosecutor to disclose them and, if they are not in the District Attorney’s possession, to make a diligent, good faith effort to obtain them.

In the ordinary course of discovery prosecutors throughout the state have simply provided the defense in a DWI case with a single page certification attesting to the reliability of the reference standard.3 However, the process used to certify the reference standard is typically gas chromatography, which produces voluminous documents during the testing — including calibration curves, negative controls, positive controls,

Steven Epstein is trial counsel on this matter, and Donna Aldea briefed and argued the appeal. Both are Partners at Barket Marion Epstein & Kearon, LLP.

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2 When citing to the Singas v. Engel decision, be sure to point out that the Appellate Division is a single statewide court divided into departments for administrative convenience, and therefore, the doctrine of stare decisis requires trial courts in any Department to follow precedents set by the Appellate Division of another department until the Court of Appeals or that particular Appellate Division pronounces a contrary rule. Mountainview Coach Lines, Inc. v. Storms, 102 A.D2d 663 (2d Dept. 1984).

3 The use of a reference standard is required pursuant to Department of Health Regulations in every instance that a breath test is administered. 10 N.Y.C.R.R. 59.5.

To enforce this right to discovery, it is incumbent on defense counsel to demand all records produced during the certification of the reference standard, including all chromatograms produced during the testing of the reference standard. Upon the prosecutor’s failure to produce such records, counsel should file motions to compel such discovery, citing to this case, and seeking sanctions against the People for failure to obtain and disclose the reports. Such sanctions can range from preclusion of evidence to an adverse inference charge which itself can be very useful at trial.

The continued call for discovery reform is a noble pursuit. While we wait for our legislature to hear our cry for a fairer process we should all be sure to make full use of what the law currently provides. Singas v. Engel is a step in the right direction in doing so.

Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

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Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

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Recipient of the Lifetime Achievement Award

Seymour W. James, Jr., Esq. Attorney-in-Chief, The Legal Aid Society

Seymour W. James, Jr., is the Attorneyin-Chief of The Legal Aid Society in New York City. Mr. James is responsible for the overall operation of the Society’s Civil, Criminal and Juvenile Rights practices.

A native of Brooklyn, who was raised in Queens, New York, Mr. James graduated from Stuyvesant High School, obtained an undergraduate degree in economics from Brown University and earned his law degree from Boston University School of Law. Mr. James has devoted his entire legal career to defending and advocating for the rights of marginalized and vulner-

able New Yorkers and fighting to ensure they receive equal justice. He joined The Legal Aid Society in 1974 as a staff attorney in the Criminal Defense Division Brooklyn office and has served in various supervisory capacities in the Criminal Practice including Supervising Attorney in Bronx County, Deputy Attorney-in-Charge in Kings County and Queens County, Attorney-inCharge of the Queens County Office, and Attorney-in-Charge of the Criminal Practice. Under his leadership the Criminal Practice developed a nationally recognized training program, enhanced supervision, created a DNA Unit, and expanded the use of social workers and investigators. Mr. James was the first attorney of color to head a borough trial office in the Criminal Practice as well as the first attorney of color appointed as the Attorney-inCharge of the Criminal Practice.

Mr. James is a Past President of the New York State Bar Association. As President he highlighted the need for discovery reform and appointed a task force which made detailed recommendations for improvement. He currently serves on the Executive Committee of the State Bar’s Criminal Justice Section and on the State Bar’s Committee on Leadership Development. Mr. James has held leadership positions in other bar associations. He serves as a member of

the American Bar Association House of Delegates and previously served on the ABA’s Standing Committee on the Federal Judiciary and Standing Committee on Legal Aid and Indigent Defendants.

He is also a former President of the Queens County Bar Association and was the first attorney of color to hold that position.

Mr. James’s dedication to public service extends beyond his employment and his bar association activities. He serves on the New York State Council on Community Re-Entry and Reintegration and the Independent Commission on New York City Criminal Justice and Incarceration Reform. He is a member of the New York State Justice Task Force, the Committee on Character and Fitness for the Second Judicial Department and the New York State Permanent Sentencing Commission. He previously served on the Departmental Disciplinary Committee for the First Judicial Department, the Task Force on the Future of Probation in New York State, and the Independent Judicial Election Qualification Commission for the 11th Judicial District.

Mr. James has also been active in other public interest organizations. He is a member of the Board of Directors of the Correctional Association of New York, a member of the Board of Directors of the National Legal Aid and Defender Continued on page 26

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Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

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

Gerry Spence, Esq. Trial Lawyers College

former Miss Wyoming Kim Pring, and the murder defenses of Ed Cantrell and Sandy Jones (of which he wrote about, respectively, in Gunning for Justice and Smoking Gun).

Gerry Spence, born, reared and educated in Wyoming, is recognized nationwide for his powerful courtroom victories. He has spent his life representing the poor, the injured, the forgotten and the damned against what he calls “the new slave master” — a combination of mammoth corporations and gargantuan government. He has tried and won many nationally known cases, including the Karen Silkwood case (a movie was made of the case with Meryl Streep and Cher), the defense of Randy Weaver at Ruby Ridge, the defense of Imelda Marcos (widow of the late President of the Philippines), the case against Penthouse Magazine on behalf of

Spence has never lost a criminal case, nor has he lost a civil case since 1969, and he has had more multi-million dollar verdicts without an intervening loss than any lawyer in America. As a man who has really never retired, in his late 70s Spence represented Brandon Mayfield, an Oregon attorney, against the United States federal government, and was instrumental in obtaining a federal court decision to hold the Patriot Act unconstitutional. In 2008, in a politically charged case brought by the U.S. Justice Department against attorney Geoffrey Fieger, Spence won complete acquittals for his client on a ten-count indictment alleging federal campaign contribution violations, conspiracy and obstruction of justice.

Spence is the founder of the Trial Lawyer’s College which has established a revolutionary method for training lawyers for the people. He believes that what he has learned in a career should be shared with those who will continue to strive for justice on behalf of ordinary citizens. At the College, he and his pro bono staff teach important skills and methods to trial lawyers for the people as well as to lawyers who have dedicated

their professional lives to defeating the death penalty.

Spence has received numerous awards in his lifetime including an Honorary Doctor of Laws degree from the University of Wyoming, the first Lifetime Achievement Award from the Consumer Attorneys of California (formerly California Trial Lawyers Association), and numerous honors by the American Academy of Achievement. In 2009, he was inducted into the American Trial Lawyers Hall of Fame, which also includes John Adams, and Clarence Darrow.

Spence is the author of eighteen published books, including his most recent publication, Police State: How America’s Cops Get Away With Murder. Additional best sellers include: How to Argue and Win Every Time; From Freedom to Slavery; O.J: the Last Word; The Making of a Country Lawyer; Murder and Madness; A Boy›s Summer; Seven Steps to Personal Freedom; With Justice for None; Give Me Liberty!; Lost Frontier; Gunning for Justice; Trial by Fire; Win Your Case; Bloodthirsty Bitches and the Pious Pimps of Power; Gerry Spence›s Wyoming; Smoking Gun; Half-Moon and Empty Stars. All these titles are available for purchase from the Trial Lawyer’s College, to which the author has donated all of his share of the proceeds.

Continued on page 26

Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

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Seymour James Jr., Esq.

Gerry Spence, Esq.

Continued from page 24

Continued from page 25

Association and a former member of the Board of Directors of the New York State Defenders Association.

Mr. James has served as an Adjunct Professor of Law at CUNY Law School and on the faculty of the Benjamin N. Cardozo School of Law Intensive Trial Advocacy Program.

Mr. James received a New York Law Journal Lifetime Achievement Award in 2016 and the Lifetime of Commitment Award from Fordham Law School’s Feerick Center for Social Justice in 2013.

He was the 2013 recipient of the Metropolitan Black Bar Association’s Public Servant of the Year Award, the 2012 re-

cipient of the American Bar Association’s Government and Public Sector Lawyers Division Dorsey Award in recognition of extraordinary commitment to providing legal services to those in need, and the 2009 recipient of The Judicial Friends Jane M. Bolin Award in recognition of outstanding service to the community through law and the delivery of legal services. He was also the 2007 recipient of the New York State Bar Association’s Criminal Justice Section’s Michele S. Maxian Award for Outstanding Public Defense Practitioner.

Spence lives in Jackson Hole, Wyoming with his wife of more than forty years, Imaging. They have six children and thirteen grandchildren.

He is married to the Honorable Cheryl E. Chambers, an Associate Justice of the Appellate Division, Second Department.

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Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

Voir Dire: When the Juror Lies

Lessons learned from a seated trial juror who neglected to disclose his felony convictions and was found to be simple, unsophisticated and lacked ability to comprehend

By Mark Hosken

T

he Sixth Amendment confers on the defendant the right to a fair trial by an impartial jury. In a recent Decision and Order in the Western District of New York, the district court judge concluded the presence of a disqualified juror who failed to disclose his prior felony convictions and lied about it when confronted in a post-trial hearing did not destroy the impartiality of the jury. The Court rejected the defendants’ motion for a new trial finding the juror who was not qualified to serve, blundered his way onto the jury without intentional deceit.

[United States v. Matthew Nix and Earl McCoy, 14-CR-6181-EAW (Document #382 - filed 8/24/17).]

Mark D. Hosken is the Supervisory Assistant Federal Public Defender for the Western District of New York in the Rochester, NY office. Mark has served as an AFPD for over twenty years.

The defendants were accused of Hobbs Act robberies, and related firearm and drug offenses. Eighty-three jurors arrived for jury selection and thirty-six were empaneled for questioning by the Court. The disqualified juror (identified as Juror No.3) was in the thirty-six member panel. That juror did not respond to the judge’s questions including: (1) has anyone ever been the victim of a home robbery; (2) has anyone ever served on a jury before; (3) has anyone ever been a defendant in a criminal case; (4) has anyone ever visited a jail or correctional facility other than in connection with your educational curriculum; (5) has anyone had someone close to them convicted of a crime.

The jury, including the disqualified juror, found the defendants guilty of all counts.

The defendants made application for a new trial alleging one of the jurors might be a convicted felon. The Court appointed counsel for the juror, and conducted a two day hearing. The juror was provided an immunity letter from the government and testified under oath.

He was questioned by the Court on the first day and by counsel on the second day.

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Voir Dire Continued from previous page On the first day of the post-verdict hearing, the disqualified juror admitted that he lied when he completed the juror questionnaire online. He responded “No” to the question whether he had “ever been convicted either by… guilty or nolo contendere plea or by court or jury trial, of a state or federal crime for which punishment could have been more than one year in prison?” The juror explained he thought it meant 21 and over. When pressed by the judge as to how many crimes punishable by more than a year in prison or felonies he was convicted of, the juror responded, “Truthfully, I don’t remember your Honor.” The juror also admitted to the Court that he “did not answer those questions truthfully.”

The juror admitted to the Court that he was convicted of a burglary of a clothing store and was also convicted for stealing a motor vehicle. He maintained he was 17 or 18 and denied being involved in the actual criminal activity underlying those convictions.

The juror was confronted with his signed confession about the burglary when questioned by counsel on the second day of the hearing. He admitted his involvement and acknowledged he lied the day before when question by the Court. Again, the Court asked the juror why he didn’t answer the Court’s questions accurately. The juror answered he did not know. But, he did admit he

remembered stealing a car and switching the plates.

Counsel then began to inquire about other arrests, convictions, and jail terms imposed both in the county jail and state prison. The juror denied serving any jail term except for six months in shock camp. Again, further confrontation with certificates of convictions in which the juror was sentenced to serve six months in the local jail resulted in admissions by the juror that he had not correctly answered the Court’s question during voir dire about visiting a jail.

The juror said he didn’t think that applied to him as he had been less than 21 years old and was serving a sentence not visiting a jail or correctional facility.

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Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

Voir Dire Continued from previous page Counsel presented the certificates of conviction establishing the juror’s convictions in 1988 for Criminal Possession of Stolen Property in the 4th with a sentence of six months local jail and in 1989 for Burglary in the 3rd with a sentence of two to four years in NYSDOC. (Presumably, this was the shock camp commitment referred to by the juror.)

The juror continued to respond to the Court that because the convictions were over twenty years ago, he thought his civil rights were restored and that he did not think he was answering the question inaccurately. He denied that his prior criminal history negatively impacted his ability to be fair and impartial. He maintained he was not biased in favor of the government or the defendant, and he did not sympathize with the cooperating witnesses in this trial though he cooperated against his co-defendants in the clothing store burglary matter.

Further questioning revealed the juror was unaware at jury selection that his son had been convicted of a crime (he answered No); that he was required to answer yes to the question about prior jury service because he was previously selected for state jury service (he answered No); and that he was required to disclose he was the victim of a house burglary (he answered No).

The Court began its analysis with reference to the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861 et seq. Though the juror was statutorily precluded from serving as a jury, the information was not disclosed during jury selection. Thus, any statutory challenge to the juror’s disqualification post-verdict was untimely.

Next, the Court found the defendants’

Sixth Amendment’s right to an impartial jury does not demand an absolute bar to felon-jurors. United States v. Boney, 977 F.2d 624, 633 (D.C. Cir. 1992). The inquiry is whether the felon-juror’s presence destroyed the impartiality of the jury. Put another way, the Court had to determine whether the juror was biased.

The Court applied the two-part test derived from McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984). Prior to securing a new trial based on incorrect responses by a juror in voir dire, the defendant must establish (1)the juror failed to answer honestly a material question on voir dire and (2)a correct response would have provided a valid basis for a challenge for cause because the correct answer would reveal bias.

The judge began her analysis of the juror’s credibility. The Court noted its observations of the juror’s facial expressions, demeanor, and intonation while testifying in the two day post-verdict hearing. The Court found the juror’s testimony had to be viewed through his educational background. According to the judge, the juror appeared neither sophisticated nor bright; he exhibited poor comprehension and difficulties providing understandable and clear answers; he possessed vocabulary challenges; and he did not display attributes of cleverness. Simply put, the Court concluded the juror was “a relatively simple individual with a lack of education and sophistication who had difficulty comprehending certain areas of inquiry.” Though the Court found the juror provided false testimony about his criminal record at the post-verdict hearing, it chose not to discredit or disregard the juror’s entire testimony.

Most importantly, the Court suggested using caution when viewing the juror’s testimony through the judge’s own educational or socio-economic background.

Quoting from McDonough, 464 U.S. at 555, “jurors are not necessarily experts in English usage. Called as they are from all walks of life, many may be uncertain as to the meaning of terms which are relatively easily understood by lawyers and judges.”

The Court next determined whether the lies were deliberate. The first review included the responses to various questions and the juror’s responses during voir dire about a home burglary in 1999, the criminal history of anyone close to him, and his prior jury service.

The Court concluded these answers

were either not intentionally or deliberately false as the juror “had problems understanding the questions and expressing himself clearly.” Thus, the judge concluded the juror did not intentionally fail to disclose information.

The Court next addressed the lies reContinued on next page

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Voir Dire Continued from previous page garding the juror’s criminal background.

The judge found the juror failed to respond truthfully to the juror questionnaire and the Court’s questions on voir dire. Further, the Court concluded the juror deliberately offered false testimony at the post-verdict hearing regarding his criminal history notwithstanding the government had confirmed immunity on him. However, the judge did not determine the juror deliberately provided false information so as to deceive the Court and be selected to serve on the trial jury. As such, the Court concluded the false statements by the juror during voir dire did not satisfy McDonough’s first prong.

the juror was not related to any of the parties, victims, witnesses, attorneys, and he was not a victim of the charged crimes. Further, there was no reason to infer bias based on the juror’s two prior felony convictions.

Moving to the bias requirement of the McDonough test, the judge discussed the juror’s false answers relating to his criminal background. The Court reviewed whether actual, implied, or inferred bias was attributed to the juror. Finding no evidence that the juror knew the disclosure of his criminal history would have disqualified him from jury service, the Court rejected any actual bias. Similarly, the Court discarded any implied bias as

Courts find implied bias in repeated lies in voir dire. This conclusion rests on the belief that “a juror who lies materially and repeatedly in response to legitimate inquiries about her background introduces destructive uncertainties into the process.” Id. at 100.

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In United States v. Parse, 789 F.3d 83 (2d Cir. 2015), the panel explained the types of bias: actual, implied, and inferable. Actual bias is attributed as a matter of law to a prospective juror regardless of impartiality. It is in the relationship between a prospective juror and some part of the litigation which renders it unlikely the average person could remain impartial. Id. at 100.

Inferable bias exists when a juror discloses a fact that is sufficiently significant to cause the judge to excuse for

cause but not enough for a presumption of bias. Equally important, once that fact is found, the juror’s statements as to his or her ability to be impartial are irrelevant. Id. at 100-101.

In Parse, the panel concluded the seated juror, Conrad, exhibited conduct and responses that fell within all three bias categories. Thus, she was barred from serving on the jury. A new trial was warranted as the defendant was deprived of his right to a trial before an impartial jury. Id. at 108.

The trial judge in the Nix decision concluded that even if the first prong of the McDonough test was met, there was no evidence of extreme deceit (citing to Parse) that would support the required showing under McDonough’s second prong. Thus, no bias was present.

The Court cited her responsibility to properly frame questions on voir dire.

The Court acknowledged a need for more direct questioning during voir dire regarding the juror’s response in the questionnaire to answering “No” to ever been convicted of a crime “for which punishment could have been more than one year in prison” and the general questions to the panel “has anyone ever been a defendant in a criminal case” and “has anyone ever visited a jail or correctional facility other than in connection with your educational curriculum.” However, she took the defense to task for never requesting follow up questions on the issues during voir dire, nor proposing “questions regarding the prospective jurors’ criminal background as part of their requested voir dire questions.” I’m not sure many of us would anticipate the need to propose specific questions about a prospective juror’s prior criminal history knowing the Court required prospective jurors Continued on next page

Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

Voir Dire Continued from previous page to complete a questionnaire under oath prior to their appearance in court.

Though the judge’s decision resulted in the denial of the defendants’ motion for a new trial, the Court’s findings may be applicable in other trials.

Consider an upcoming trial where you anticipate calling the defendant or a defense witness. Your prospective witness may be similar to the juror questioned by the trial judge in this article. He may be uneducated, lack sophistication and might experience difficulty in following your questions on direct exam. Why not ask for additional voir dire by the trial judge regarding the defense witness’ specific characteristics and whether the prospective jurors would be willing to consider testimony from such a witness?

Recently, the United States District Court for the Western District of Washington adopted model jury instructions addressing bias. (See, www.wawd.uscourts.gov/jury/unconscious-bias). One of those include a preliminary instruction to the entire jury panel before jury selection begins: It is important that you discharge your duties without discrimination, meaning that the race, color, religious beliefs, national origin, sexual preference, or gender of the defendant, any witnesses, and the lawyers should play no part in the exercise of your judgment throughout the trial.

Accordingly, during voir dire and jury selection process, I may ask questions related to the issues of bias and unconscious bias.

Another approach might include a request to conduct attorney voir dire on how a juror might judge credibility of

a witness (including a defendant who might testify) who may be uneducated, lacks sophistication and might have difficulty following the Court’s questions.

We might also consider drafting requests to charge in those trials wherein we called the defendant or other defense witnesses who come from different backgrounds than the jury. Perhaps an expanded charge on witness credibility and bias might be relevant and useful to overcome an expected challenge from the government that the defense witness didn’t answer questions directly or hesitated when compared to government witnesses.

Hon. Mark W. Bennett, Senior United States District Judge, Northern District of Iowa uses a standard charge in criminal trials that explains implicit bias: Do not decide this case based on implicit biases. Everyone has feelings, assumptions, perceptions, fears, and stereotypes, that is, implicit biases, that we may not be aware of. These hidden thoughts can impact what we see and hear, how we remember what we see and hear, and how we make important decisions. Because you are making every important decision in this case, I strongly encourage you to evaluate the evidence carefully and resist jumping to conclusions based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies, stereotypes, or biases. The law demands that you return a just verdict, based solely on the evidence, your individual evaluation of the evidence, your reason and common sense, and these instructions. Our system of justice is counting on you to render a fair decision based on the evidence, not on biases.

sider the juror’s credibility from the judge’s background provides incentive for making creative requests to charge.

Once again, the Court’s language in the Nix decision (page 38) is instructive: Thus, in assessing Juror No. 3 ‘s credibility, the Court must exercise caution against viewing Juror No. 3 ‘s testimony from the Court’s own educational or socioeconomic background. As recognized by the Supreme Court, “jurors are not necessarily experts in English usage. Called as they are from all walks of life, many may be uncertain as to the meaning of terms which are relatively easily understood by lawyers and judges.”

— McDonough, 464 U.S. at 555.

I’m not sure whether we will be successful. But, the Decision and Order from the Western District of New York dated August 24, 2017, chronicles the trial court’s in depth findings that a juror who gave false testimony in jury selection and in a post-trial hearing “had problems understanding the questions and expressing himself clearly.” This may provide us with a renewed opportunity to rely on this rationale when making our requests before and during our future trials. A

The district court’s reluctance to con-

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Appellate Roundup Continued from page 19 the suppression court had suppressed the videotaped statement, it had ruled admissible defendant’s earlier statement to the detective. The Appellate Division reversed, finding “given defendant’s failure to comprehend that he had the right to an attorney at the time of his statements if he could not afford one it is evident that defendant’s previous statement to the detective should also be suppressed”.

People v. Doumbia, 2017 NY Slip Op 06402 decided September 5, 2017 Defendant was denied the effective assistance of counsel where his attorney advised him that there was a mere risk or possibility he would be deported prior to his guilty plea. As defendant plead guilty to an aggravated felony, the plea would result in mandatory deportation.

In remanding for further proceedings the Appellate Division recognized that “lawyers have an affirmative duty to adequately inform their clients about the serious effects of criminal convictions to the extent, and with as much specificity as possible”. The dissent viewed the record as insufficient to support a claim of ineffective assistance because the challenged conduct implicated matters not reflected in the record.

People v. Bonilla, 2017 NY Slip Op 06405 decided September 5, 2017 The trial court committed reversible error in refusing to charge temporary lawful possession of a gun where the defendant testified at trial that after wresting the gun away from the deceased he shot him a short time later. Given the imposition of a justification defense, the defendant’s shooting the deceased did not negate the entitlement to a temporary lawful possession instruction where the shooting was justified and the

32

possession otherwise lawful.

People v. Swison, 2017 NY Slip Op 07302, decided October 19, 2017 The evidence was legally insufficient to support defendants’ first-degree burglary conviction. Even viewed in the light most favorable to the prosecution, the evidence did not prove that defendant had the intent to commit a crime when he entered or remained on the premises. The incident was part of an escalating domestic dispute. The intent to commit the assault did not precede defendant’s entering or refusing to leave the premises.

Second Department People v. Vargas, 2017 Slip Op 07465, decided October 25, 2017 The trial court erred in admitting the grand jury testimony of a witness who testified at a Sirois hearing that he had been threatened. The prosecution failed to demonstrate by clear and convincing evidence that the witness became unavailable due to threats made at the initiative or acquiescence of the defendant. Accordingly, the trial court unjustifiably denied the defendant the right to cross-examine the witnesses against him.

For similar reasons, the trial court erred in admitting evidence concerning threats made against the witness where there was no evidence linking the defendant to the threats. The errors, which could not be deemed harmless, warranted reversal.

People v. Karal, 2017 NY Slip Op 07274 decided September 11, 2017 The Appellate Division vacated a persistent violent felony offender

sentence where the sum of defendant’s incarceration dates did not amount to a sufficient tolling period so as to qualify a 1987 conviction as a predicate violent felony under penal law § 70.04 (1) (b) (iv).

People v. Noble, 2017 NY Slip Op 07280 decided October 18, 2017 The suppression court erred in refusing to suppress the defendant’s statements and refusal to take a chemical test made to an officer who found defendant sleeping in his car parked on the side of the road with his engine running. When defendant awakened upon the officer’s banging on the windshield, defendant floored the accelerator causing the engine to race and attempted to shift the car into gear. At that point the officer opened the car door, leaned inside and turned off the ignition. The officer detected the odor of alcohol and observed that defendant’s eyes were glossy. The officer asked defendant to step out of the car and administered sobriety tests before arresting him for driving while intoxicated and aggravated unlicensed operation of a vehicle in the first degree.

The hearing court denied suppression finding the officer had a “founded suspicion” that criminal activity was afoot which gave him the right to open the door and turn off ignition for his own safety. The Appellate Division reversed, finding that reaching into the car and turning off the ignition constituted a forcible stop of the car permitted only upon a finding of reasonable suspicion.

The prosecutor had not argued that reasonable suspicion supported the officer’s actions. Accordingly the Appellate Division reversed the order denying suppression. Without the suppressed evidence there was insufficient proof to support the charges, warranting dismissal of the indictment.

Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

Appellate Roundup Continued from previos page People v. Owoaje, 2017 NY Slip Op 07147 decided October 11, 2017 Defendant’s conviction was reversed on reverse- Batson grounds because the trial court erred in disallowing the defendant’s peremptory challenges to two white prospective jurors. The defense satisfied its burden of articulating raceneutral reasons for the challenges – the juror’s prior jury service and strong personality. The prosecution then failed to meet its burden of demonstrating that the facially race-neutral reasons were a pretext for discrimination. The unjustified denial of peremptory challenges required reversal without regard to harmless error.

Third Department People v. Darah, 2017 NY Slip Op 06684 decided September 28, 2017 In this SORA appeal, defendant was entitled to have the matter remitted with respect to his request for a downward departure of his risk determination level under the guidelines. The SORA hearing court’s failure to address this request as required by law in its written order or at the hearing precluded meaningful appellate review of the propriety of the court’s risk-level assessment.

People v. Fenner, 2017 NY Slip Op 06483 decided September 14, 2017 Defendant was entitled to have his sentence vacated following a plea to criminal sale of a controlled substance in the third degree where he had not been given an opportunity to contest his proper predicate status because the prosecution failed to file a predicate felony statement. There was no indication that

defendant had notice that he would be sentenced as a second felony offender when he admitted a probation violation or when he was re-sentenced pursuant to those violations.

People v. Atkins, 2017 NY Slip Op 07342 decided October 19, 2017 Defendant was entitled to reversal of his conviction for weapon possession charges where the trial court erred in conducting the proceedings in his absence. Even though defendant had been warned that trial would proceed in his absence, “trial in absentia is not thereby automatically authorized” the Appellate Division found. Before proceeding with trial in absentia the court must consider “all appropriate factors,” including the possibility of locating the defendant within a reasonable period of time, the difficulty of rescheduling and the chance that the evidence or witnesses will be lost. In most cases, simply adjourning and issuing a bench warrant could provide an alternative to trial in absentia, the court found, unless the prosecutor can demonstrate such a course would prove futile. Here, the court improperly considered hearsay statements of witnesses interviewed by a police investigator in assessing the reasons for the defendant’s absence.

The record demonstrated that the court failed to consider the appropriate factors before proceeding without defendant.

People v. Grierson, 2017 NY Slip Op 07344 decided October 19, 2017 Reversal of defendant’s weapons possession conviction was warranted due to the admission of hearsay testimony relating to the circumstances surrounding the recovery of the gun. While general and cursory testimony would have sufficed to provide background relating to the

investigation, the court allowed four officers to testify to hearsay. The court compounded the error by allowing the prosecution to impeach its own witness with her prior grand jury testimony. The witness’s testimony did not affirmatively damage the prosecution’s case so as to permit the impeachment, rather her testimony merely failed to corroborate the officers’ accounts. The errors could not be deemed harmless where the prosecution exploited them on summation.

People v. Daniel P. Tyler, 2017 NY Slip Op decided November 2, 2017 In a lengthy opinion, the Appellate Division ruled that the motion court erred in denying defendant’s CPL §440 motion alleging ineffective assistance of counsel on the grounds that the claims could have been raised on direct appeal.

The Appellate Division recognized that a claim of ineffective assistance is not generally demonstrable on the trial record. The claim that counsel had failed to impeach a critical witness was dependant on the witness’s statements to the police that did not appear on the trial record, the court noted. Similarly the decision to forego submission of a lesser included offense implicated tactical considerations. While two additional claims – the failure to object to the Allen charge or to adequately articulate the entitlement to a justification charge --were record based, the Appellate Division recognized that such claims could be considered together with the non-record based claims. Since counsel’s shortcomings must be viewed collectively and in totality to determine an ineffectiveness claim. Upon reviewing all defendant’s claims, the Appellate Division determined that the defendant was denied the effective assistance of counsel.

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Continued on next page

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Appellate Roundup Continued from previous page

Fourth Department

People v. Trotman, 2017 NY Slip Op 07071 decided October 6, 2017

People v. Lewis, 2017 NY Slip Op 06776, decided September 29, 2017

The trial court erred in denying a defense request for a missing witness charge relating to a witness who was walking behind the victim moments before the altercation. Defendant met his burden of demonstrating that the witness was knowledgeable about a material issue and would be expected to testify favorable for the prosecution.

The burden therefore shifted to the prosecution to account for the witness’s absence. Here, the prosecution’s assertion that the witness claimed to have no recollection of the events was insufficient to establish the witness was not available.

The motion court erred in refusing to suppress the statements defendant made at the police station after he asserted his right to counsel. Defendant had told the police he would not discuss the incident without a family member or a lawyer present. Although the police had given defendant access to a family member, the Appellate Division found that defendant had invoked his right to counsel so that he could not waive his rights outside counsel’s presence. Accordingly the court reversed the conviction and suppressed the statements.

People v. Bradly, 2017 NY Slip Op 07032 decided October 6, 2017 The evidence was insufficient to support defendant’s negligent homicide and reckless assault convictions resulting from the death of a child after defendant’s car struck the child and another when he suffered a seizure. The Appellate Division found that the prosecution had narrowed its theory of recklessness by specifying in the bill of particulars that defendant had ingested marijuana and failed to take medication to prevent his seizures. The prosecution failed to present evidence that marijuana use caused seizures or that defendant had been prescribed medication. Defendant was essentially tried on an alternative theory where the prosecution elicited evidence of his lack of sleep, failure to inform his doctors of his syncope events and failed to control his alcohol consumption. Because the People specified their theory in the bill of particulars they were not free to present a different one at trial.

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People v. Parris, 2017 Slip Op 06843, decided September 29, 2017 The Appellate Division granted a writ of error coram nobis where defendant alleged that appellate counsel was ineffective for not challenging the legal

sufficiency of the evidence underlying his murder conviction. Accordingly, the court vacated the 2006 order affirming the conviction and ordered a de novo consideration of the appeal.

People v. Saraceni, 2017 NY Slip Op 06732 decided September 29, 2017 Conditions of probation which required defendant to consent to waive his Fourth Amendment rights protecting him from unreasonable searches and seizures of his person, home and personal property and to submit to chemical tests of his breath, blood., and urine were not enforceable because they were “not related to the probationary goal of rehabilitation.” While defendant acknowledged that his criminal behavior was related to drug or alcohol abuse, there was no evidence defendant committed the crime under the influence of drugs or alcohol. Another special condition ordering defendant to abstain from using alcohol and to submit to alcohol testing was also not enforceable. A

When non-violent New Yorkers are jailed as a function of their inability to pay, we perpetuate inequality and mass incarceration, and bring about unnecessary immigration, employment, and family consequences. Beginning today, we will be guided by the presumption that bail is not appropriate for misdemeanor cases.

—Cy Vance, Jr., Manhattan District Attorney 1/9/2018

Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

From the President

From the Editors' Desk

Continued from page 3

Continued from page 4

in spite of the studies and statistics which demonstrate that these moves are counterproductive. On the state and local level, there is a push for bail reform, and NYSACDL is in the thick of it. We are pressing for a true bail reform bill, one which will help to break the cycle of poverty and incarceration which so many of our clients face. Discovery reform and the reining in of prosecutorial overreach remain our top legislative priorities. Just recently, Governor Cuomo announced pardons and commutations for a significant number of people, a move which we applaud, and support wholeheartedly. In conjunction with NACDL, we are moving forward with a New York State Clemency Project, akin to the federal project undertaken under President Obama, which, alas, will not be moving forward under the present administration in Washington, where the priorities appear to be more prisoners for longer sentences. I urge each of our members to participate in this state project…details are available elsewhere in this issue, and on our website. It’s a time commitment to be sure, but one which you’ll find satisfying.

Legal Aid Society’s Civil, Criminal and Juvenile Rights practices in the most populous city in the United States and Spence, a Wyoming native, in his singularly skilled courtroom advocacy in both civil and criminal cases of epic proportions who wins by bringing the humanity of his clients, a varied and diverse lot, to shining light.

Although this will be my final column as President, I will remain as an editor of this magazine, and continue to serve NYSACDL as a Board member and as President of the NYSACDL Foundation, our charitable arm. I will be available to our incoming President, Rob Wells, as he takes up the reins and herds the cats in the next year.

Happy, healthy New Year to all.

Let us let their example guide the way in 2018 as we continue our efforts to reform the system of criminal justice in New York State; and to help create a new day for our clients.

Jessica A. Horani, Editor-in-Chief

From 90 State Continued from page 5 Being a volunteer President of any organization is no small task and John accepted all the opportunities and faced all the challenges head-on. I look forward working with Rob Wells in 2018 on continuing to further NYSACDL’s important work in meeting our mission of protecting the rights of criminal defendants through a strong, unified, and well-trained criminal defense bar.

You are invited to be a part of our transition moment by attending the 2018 NYSACDL Foundation Annual Dinner & Awards Ceremony. In addition to thanking John for his service and installing Rob as President, we will also be celebrating the work of Seymour W. James, Jr., Esq., Attorney-in-Chief, The Legal Aid Society and Gerry Spence, Esq., Trial Lawyers College. This will be an exciting night and I encourage you to attend. If you cannot attend, there are many opportunities to extend your congratulations through program book ads and listings. Please contact me for details!

Lastly, I want to express my gratitude for your ongoing support of me as I continue to learn and grow in my position as Executive Director. I will carry on with my own continuing professional education in 2018 as I strive to meet your needs and the needs of NYSACDL better each day. Thank you and Happy New Year! A

— John S. Wallenstein

Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

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Book Review THE BRAIN DEFENSE: Murder in Manhattan and the Dawn of Neuroscience in America’s Courtrooms

By Kevin Davis (Penguin Press. New York. 2017. 336 pp.)

Reviewed by Cheryl Meyers Buth

T

wo things led me to order this book on Amazon. First, the subject of brain injuries and neuroscience has been somewhat of an obsession of mine ever since I saw Concussion, the movie about the effects of CTE (Chronic Traumatic Encephalopathy) on professional football players. Until recently, CTE could only be definitively diagnosed by direct tissue examination after death. Bennet Omalu, the doctor portrayed in the movie and generally credited with discovering the protein marker linked to CTE, announced in the journal Neurosurgery this month that he developed a test in 2012 that was used to detect CTE for the first time in a living individual.

The second reason I bought this book was to learn more about how so-called brainbased defenses are being used in court. They usually involve a search for medically demonstrable reasons why a client, especially one who was previously law abiding, would demonstrate anti-social or criminal behaviors on an isolated date or during a finite period of time. Although I frequently use psychiatrists and psychologists in my criminal practice, until this year I had never invoked an insanity defense on behalf of a client. As the book points out, the defense is rarely used; fewer than one percent of criminal cases involve an insanity plea (the majority of those cases result in guilty verdicts).

Attorney Cheryl Meyers Buth (www.MeyersButhLaw.Group) is a member of the NYSACDL Board of Directors and practices in Orchard Park, New York.

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I am currently defending a paraplegic who shot his father point blank as he sat on the family room sofa. The client had a NestŠ home security video system which recorded all activity inside the house. The recordings are temporarily stored in the cloud. Police were able to preserve the video and audio for the hour just before and immediately after the shooting. My client is heard talking in his normal voice, then adopting a strange, audibly distinct, voice and personality. Like flipping a switch, he goes from having a conversation with his father, with whom he was extremely close, to accusing him of being an imposter, and then shooting him twice in the

Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

chest with an AR-15. He watches him bleed out on the floor and eventually die. Later our client’s voice and demeanor suddenly change back, as if coming out of a dream and realizing what he has done, and he screams for help while acknowledging to a 911 operator that he “accidentally killed [his] father”. Not that firing the rifle was unintentional, but rather he thought he was shooting someone else and only later realized he had actually shot his own father.

In a chapter entitled “When Neuroscientists Come To Court”, the book discusses different attitudes among neuroscientists about their ability to categorically link brain conditions and imaging studies to causality in criminal cases.

The author reviews the history of courts accepting fMRI, CT, PET and SPECT scans, and other relatively recent tests used to diagnose brain diseases or conditions. He cites published papers investigating the pathology behind schizophrenia and bipolar disorder using PET scans and other neuropsychological tests to show, for example, frontal lobe dysfunction. He asks the reader to consider whether such dysfunction should serve as a mitigating factor in how the law treats offenders.

The chapter contains a laundry list of the most renowned experts in neurosci-

ence. The takeaway is that there is not yet general agreement on how to interpret the existence of brain conditions in relation to the legal question of whether someone should be held responsible for criminal conduct. The author quotes several of these experts who point out that the data from scans, while scientifically solid, is subject to interpretation.

Analogous to reverse extrapolation of blood alcohol content in a DWI case, scans taken months or years after an event which are then used to try to explain past behavior are subject to differing interpretations.

“The Brain Defense” is not a medical treatise or a law review article. It is an easy to read collection of biographical stories of people who, because of a brain condition, have engaged in aberrational violence and the legal consequences of their actions. The book poses the question whether like depression and schizophrenia, violent behavior has organic roots; whether acquired or genetic, brain impairments may predispose some people to violence. The author gives multiple examples from the growing field of neurocriminology, i.e. the use of neuroscience to investigate the causes of crimes.

Although the author uses true crime stories as an organizational device, the

“The Brain Defense” is not written just for attorneys; I would recommend it to anyone interested in the fluid intersection between law and science. The book examines how brain injuries and diseases are diagnosed, the connection between brain injuries and behavior, and how recent scientific developments are giving rise to novel legal defenses or used as mitigating evidence in court.

The book’s chronological structure, with each chapter revolving around a single case study or topic, conveys the progression of developing applications of neuroscience to determining an individual’s responsibility for criminal behavior.

The first chapter and subsequent chapters woven through the book introduce the reader to the case of Herbert Weinstein, an advertising executive who in January 1991 confessed to strangling his wife during an argument and throwing her out the window of their Upper East Side apartment. Weinstein had no Continued on next page

Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

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Book Review Continued from previous page prior history of violent behavior. He was represented by attorney Darmuid White of the New York office of Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria. Weinstein’s case was one of the earliest examples of using a brain condition (benign arachnoid cyst) to support a defense of temporary insanity. Until that time, arguing that a brain injury was the cause of a specific act at a precise moment was fairly untested in the courts.

Foreshadowing Weinstein’s defense was the case of John Hinckley who was tried for attempting to assassinate President Regan in 1981. Hinckley’s defense attorneys used the insanity defense, bringing in doctors to testify that Hinckley had schizophrenia and was delusional when he shot the President.

Hinckley’s lawyers moved to introduce CT scans of Hinckley’s brain which the judge first excluded but later admitted as some evidence of a brain condition that researchers believed occurred more frequently in people with schizophrenia.

The defense expert confirmed the findings on the CT scan but stopped short

You are entitled to your opinion. But you are not entitled to your own facts.

— Daniel Patrick Moynihan

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of saying the condition was associated with schizophrenia. Based on other testimony that Hinckley suffered from a diminished mental state, the jury found him not guilty by reason of insanity and he was ordered committed to a mental hospital. Last year, in July 2016, Hinckley was released after being deemed no longer a danger to himself or others.

The book documents Weinstein’s odyssey through the medical field as he was examined by many doctors and underwent a wide variety of tests until a PET scan revealed frontal lobe impairment as a result of the cyst. However, PET scan images had never been used in court to prove a defendant was temporarily insane and therefore not criminally responsible. The court in Weinstein’s case conducted a Frye hearing and ultimately ruled that the PET scans would be admissible at trial. Judge Richard Carruthers decided that PET scans were generally accepted in the scientific community as diagnostic procedures.

However, the judge would not allow experts to testify that the scans could explain specific behavior or that his condition had caused Weinstein to kill his wife. In other words, the theory that arachnoid cysts could directly cause violence was not an accepted theory nor was the theory that impairments of the brain generally caused violence. With that ruling, and considering the expense of calling experts at a full-blown trial, Weinstein decided to accept a plea to manslaughter. He was sentenced to seven to twenty-one years in prison.

The book concludes with chapters on representing veterans who often suffer from post-traumatic stress disorder (PTSD) or traumatic brain injury (TBI). There is also a chapter discussing CTE and whether it is a viable defense in the courtroom. In 2014,

Dr. Daniel Antonius, an assistant professor of psychiatry at the University of Buffalo, wrote an influential paper in which he argued CTE currently has no value in the courtroom. He cites medical literature on CTE consisting mainly of case studies which alone cannot be used to establish clinical criteria for diagnosing a condition. The DSM 5th ed does not, for example, include references to brain scans to diagnose mental illness. On the other hand, with advances in testing for CTE in living persons, the use of CTE as a legal defense may begin to find greater support.

“The Brain Defense” posits that the future use of neuroscience in courtrooms will help evaluate criminal defendants more fully and compassionately and not in a manner incompatible with holding them criminally responsible.

The author points out the accelerating rate at which technology is being developed and the increasing interest among lay people in the field. To illustrate this point, two neuroscience researchers and a law professor collaboratively published a textbook in 2014 titled Law and Neuroscience, over eight hundred pages of articles, case studies and information being used by teachers at more than twenty schools where the subject is currently part of the curriculum. “The Brain Defense” ends the way it started – by asking the same questions that people asked twenty six years ago when Herbert Weinstein was arrested: “What, exactly, was going on inside Mr. Weinstein’s brain and what caused him to murder his wife?” A

Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

Men often oppose a thing merely because they have had no agency in planning it, or because it may have been planned by those whom they dislike.

—Alexander Hamilton

Thank you to the 2017-2018 Defenders Circle!

CHAMPIONS Champion donations start at $1,000 – Mr. David Cohen Trevor W. Hannigan James P. Harrington Renee Hill Scott Lockwood Mark J. Mahoney Zachary Margulis-Ohnuma Stacey Richman Joel B. Rudin LEADERS Leader donations start at $500 – E. Stewart Jones, Jr. COLLEAGUES Colleague donations start at $250 – Michael T. Baker Lori Cohen Telesforo Del Valle, Jr. George Goltzer Kevin D. O’Connell Benjamin Ostrer Jennifer Ciulla Van Ort SUPPORTERS Supporter donations start at $100 – James A. Baker Paul M. Callahan Joseph R. DeMatteo Anne J. D’Elia

Brian J. DeSesa Karen L. Dippold Michael G. Dowd Steven B. Epstein Peter M. Frankel Mario F. Gallucci David I. Goldstein Clifford Gordon Daniel J. Henry, Jr. Jessica A. Horani John Ingrassia Robert P. Leighton Greg D. Lubow Michael P. McDermott Oscar Michelen Kenneth Moynihan Marcos A. Pagan, III Steven K. Patterson Verena C. Powell Julie Rendelman 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

The Defenders Circle is a donation program that benefits New York State Association of Criminal Defense Lawyers (NYSACDL) members, seminars, and programs. NYSACDL has experienced tremendous growth over the past several years in membership, seminar attendance, advocacy efforts and more.

Defenders Circle members play a crucial role in ensuring that NYSACDL maintains its success and strength as the leading criminal defense organization in New York State. Donations* starting at $100 are included in the Defenders Circle. Among other benefits, Defenders Circle members will be showcased on the NYSACDL web site and in the quarterly Atticus publication.

For more information on the Defenders Circle, including ways to donate, please visit https://nysacdl.site-ym.com/page/DC. *NYSACDL is a 501(c)6 organization. Donations are not considered tax deductible.

Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

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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

CLE

Save the Dates for NYSACDL Spring CLE! Cross to Kill 2018

Friday, March 16, 2018 New York Law School New York, New York Adirondack Criminal Defense Seminar – Lake Placid 2018 Lead Sponsor

Friday, April 13, 2018 Conference Center at Lake Placid Lake Placid, New York NACDL CLE: 2018 Spring Meeting & Seminar: “Search, Seizure & Criminal Litigation”

Visit http://nysacdl.site-ym.com/events/event_ list.asp for registration information.

These programs are 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.

Wednesday, April 18 – Saturday, April 21, 2018 The Roosevelt Hotel New York, New York Central New York Criminal Defense Seminar – Spring 2018 Lead Sponsor

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Date TBD Syracuse University College of Law Syracuse, New York

Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

NYSACDL Fall CLE photos were taken at the following programs: Hudson Valley Criminal Defense Seminar, New Paltz; Central New York Criminal Defense Seminar, Syracuse; Weapons for the Firefight 2017, New York; and, Superstar Trial Seminar 2017, Buffalo.

Thank you to all of the faculty & sponsors for helping NYSACDL continue its tradition of excellence in CLE programming.

Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

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NYSACDL Membership

The Largest Criminal Defense Bar Association in New York State

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

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 James P. Harrington 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 Scott Lockwood Mark J. Mahoney Zachary Margulis-Ohnuma Florian Miedel Aaron Mysliwiec Brian Joseph Neary Thomas J. O’Hern Paul D. Petrus Frank Policelli Murray Richman Stacey Richman Joel B. Rudin Todd J.W. Wisner

PRESIDENT’S CLUB MEMBERS George Goltzer Kevin D. O'Connell Benjamin Ostrer

SUSTAINING MEMBERS James A. Baker Paul M. Callahan Brian J. DeSesa Karen L. Dippold

Michael G. Dowd Peter M. Frankel Mario F. Gallucci David I. Goldstein Daniel J. Henry, Jr. Michael D. Horn John Ingrassia Robert P. Leighton Greg D. Lubow Oscar Michelen Kenneth Moynihan Marcos A. Pagan III Steven K. Patterson Verena C. Powell Julie Rendelman Roland G. Riopelle Anastasios Sarikas 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 JANUARY 3, 2018) ALBANY COUNTY Cynthia Feathers William Morrison Charles F. O’Brien BRONX COUNTY Katherine Burton Karen Del Vecchio Sam Howell Peter Jones Julia Mattson BROOME COUNTY Alison Gachter Sarah Seece CATTARAUGUS COUNTY Youngjin Choi Gabrielle DiBella CHAUTAUQUA COUNTY David Roggenbaum

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CORTLAND COUNTY Jeri A. DuVall

Michael Schiano Gary Skuse

DUTCHESS COUNTY John J. Ventosa

NEW JERSEY Patrick Mullin Kevin Puvalowski

ERIE COUNTY Chris Puckett Robert C. Singer KINGS COUNTY Shahar Azoulay Masai Lord LIVINGSTON COUNTY Hayden Dadd MONROE COUNTY Julie Cianca Mark Cianca William Clauss Edward L. Fiandach

NEW YORK COUNTY Kedar S. Bhatia John Andrew Birdsall Kristen Epifania Michael Figura Jerome D. Greco Jennifer Leigh Hose Jennifer R. Louis-Jeune Steven A. Metcalf Elizabeth P. Smith Sanford Talkin Jerry Vasquez

ONONDAGA COUNTY Joseph Bergh Nick DeMartino Todd S. Engel Sheldon Gould Amy Knibbs James Mcginty Philip Rothschild Frank Scibilia ORANGE COUNTY Louise Luck QUEENS COUNTY Germaine Auguste Dennis Coppin Kristal T. Ragbir Kristie Lyn Ranchurejee

RENSSELAER COUNTY Elizabeth J. Newton RICHMOND COUNTY Catherine Taylor Poor ROCKLAND COUNTY John Samuel Edwards SULLIVAN COUNTY Tim Havas John Janusas ULSTER COUNTY Melvin T. Higgins WESTCHESTER COUNTY John C. Gugliotta Julie Schechter

Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

Join the Committee

NYSACDL standing committees are chaired by members in good standing who are appointed by the President.

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

AMICUS CURIAE COMMITTEE Chair: Richard Willstatter Members: Marc Fernich, Timothy Murphy, Claudia Trupp

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

CONTINUING LEGAL EDUCATION COMMITTEE Chair: Arnold Levine (Nyccrimlaw@aol.com) 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 Chair: Alan S. Lewis (lewis@clm.com) Members: Lori Cohen, Andrew Kossover, John Wallenstein, Susan Walsh, Robert Wells

INDIGENT DEFENSE COMMITTEE Chair: Michael Baker (mbaker@co.broome.ny.us) 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

LEGISLATIVE COMMITTEE Chairs: Andrew Kossover (ak@kossoverlaw.com); Amy Marion (amarion@barketmarion.com) Members: Lori Cohen, Greg Lubow, Kenneth Moynihan, Marvin Schechter, John Wallenstein, Robert Wells, Mark Williams

MEMBERSHIP COMMITTEE 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: Alan Lewis, Eric Nelson, 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 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

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NYSACDL

New York State Association of Criminal Defense Lawyers

Membership Application Please print or type

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

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

Lifetime Member

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

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

$2,525. $316.25 $520. $320. $227.

New or Part-Time Attorney Member

$148.

Full-time Public Defender Allied Professional Member

$148. $201.

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

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

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.

Retired Attorney $94.

Law Student/Recent Law School Alumni (less than one year since completion) $68.

School: ________________________ Graduation date: ________

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.

Membership dues can be paid by check or charged to American Express, MasterCard, Visa, or Discover

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

Please charge to my credit card.

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

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

Atticus | Volume 30 Number 1 | Winter 2018 | 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 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

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2018 Spring Meeting & Seminar

Search, Seizure & Criminal Litigation:

It’s Not Your Parents’ 4th amendment Anymore!

April 18-21, 2018 The Roosevelt Hotel, New York, NY

REGISTRATION INFORMATION Circle your membership category fee and note the Grand Total due. Confirmation letters will be sent to all registrants in March. Registrants must stop by the on-site registration desk before attending any events to check-in and receive their badge and materials. Cancellations must be received in writing before 5:30 pm ET on Friday, April 13, 2018 to receive a refund, less a $75 processing fee. A $15 processing fee will be applied for returned checks. To register online, visit www.nacdl.org/Spring; or fax this form with credit card information to 202-872-8690; or mail with full payment to: 2018 NACDL Spring Meeting & Seminar, 1660 L St., NW, 12th Floor, Washington, DC 20036. Questions? Contact Viviana Sejas at 202-872-8600 x632.

REGISTRATION CATEGORIES

FEES

NACDL Members: Regular, Life and Sustaining ................................................. o $419 NACDL Members: Associate, Professor, "New Lawyer" and International Members o $309 All Public Defenders ........................................................................................ o $309 All New York Lawyers (Residents Only)............................................................ o $369 All Regional Affiliate Lawyers (Ct, NH, Nj, Ri) ................................................... o $379 Non-Members of NACDL (includes one year membership)..................................... o $728 Groups of 4 or more PDs ................................................................................. o $279 (must register at the same time; 1 payment; no changes or cancellations allowed)

Select your course materials preference: Name

__________________________________________________________________________________

Pre-Seminar Download (FREE)

CD-Rom (add $15)

Hard copy (add $39)

Badge name (if different) ____________________________________________________________________

Seminar Total CLE State(s) ______________________________ Bar # (s) ________________________________________ Address __________________________________________________________________________________ City ________________________________________ State ____________________ Zip ________________

SOCIAL EVENTS ONLY FEES

NACDL Member Events Package — excludes Gala Dinner................................. o $100 Guest/Spouse Events Package — excludes Gala Dinner..................................... o $100

Office phone __________________________________ Home phone ________________________________ E-mail ________________________________________________ Fax _______________________________ Guest(s)/children __________________________________________________________________________

o Check enclosed (payable to NACDL) o AMEX o VISA o MASTERCARD o DISCOVER

CAN’T ATTEND? ORDER MATERIALS ONLY

Non-Attendee Written Materials ................................................................... o $150 Non-Attendee Audio CD .................................................................................. o $150 Attendee Audio CD........................................................................................... o $125 Non-Attendee Written Materials & Audio CD............................................... o $225 Pre-Order Video DVD ....................................................................................... o $299 Events & Materials Total

Card Number ______________________________________________________________________________ Name on Card ____________________________________________________ Exp. Date ________________ Billing Address ____________________________________________________________________________ City ________________________________________ State ____________________ Zip ________________ Authorized Signature ________________________________________________________________________

*State fees must be paid in advance to receive CLE credit.

If left blank, you will not receive credit.

FAX TO 202-872-8690

46

Subtotal GA CLE fee add $60.00* NC CLE fee add $42.00* PA CLE fee add $21.00* IL, NE, UT CLE fee add $15.00* TX CLE fee add $10.00*

GRAND TOTAL #NACDLnyc

Atticus | Volume 30 Number 1 | Winter 2018 | 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 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers

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Publication of the New York State Association of Criminal Defense Lawyers

90 State Street, Suite 700 Albany, New York 12207

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

atticus@nysacdl.org www.nysacdl.org

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

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

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

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