NYSACDL Atticus Magazine - Spring 2020 | Volume 32

Spring 2020 | Volume 32 | Number 2

ATTICUS INSIDE

Publication of the New York State Association of Criminal Defense Lawyers

THE STAY-AT-HOME ISSUE

this

ISSUE 3

Message from the President

Editorial

Dispatches from 90 State

From the Defense Table

…meanwhile, in Albany

Court of Appeals By Timothy Murphy, Esq.

Don't Fence Me In: Geofencing By Cheryl Meyers Buth, Esq. and Joel L. Daniels, Esq.

Flagging New York's “Red Flag” Law By Sherry Levin Wallach, Esq.

Sentencing Under the DVSJA By Alan Rosenthal, Esq.

Annual Dinner photos

Cutting Edge CLE

New York State Association of Criminal Defense Lawyers

Criminal Defense Lawyers

L A I T N E SS

atticus@nysacdl.org www.nysacdl.org

90 State Street, Suite 700 Albany, New York 12207

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

Ensure NYSACDL’s Continued Success with a Donation to The Defenders Circle!

The Defenders Circle benefits NYSACDL members, seminars, and programs. NYSACDL has experienced tremendous growth over the past several years in membership, seminar attendance, advocacy efforts and more. Defenders Circle members play a crucial role in ensuring that NYSACDL maintains its success and strength as the leading criminal defense organization in New York State.

NYSACDL Officers and Directors 2020 PRESIDENT Timothy W. Hoover, Buffalo

John Ingrassia, Newburgh

Jeanne E. Mettler

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

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

Thank you!

*NYSACDL is a 501(c)6 organization. Donations $100 and over receive recognition online and in Atticus.

Ensure NYSACDL’s Continued Success with a Donation to The Defenders Circle!

$1,000

□ Leader

$500

□ Colleague

$250

□ Supporter

$100

□ Other $__________

Method of Payment:  Check made payable to NYSACDL  Please charge my (circle one): Visa MC AMEX Discover Card Number: ______________________________________________ Expiration Date: _______________ CVV Code: __________ Name on Card: _____________________________________________ Signature: _______________________________________ Billing Address (If Different from Below): _________________________________________________________________________ Donor Information: Name: ______________________________________________ Firm/Office: ___________________________________________ Address, City, State, Zip: ______________________________________________________________________________________ __________________________________________________________________________________________________________ Phone: ________________________________

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Return Completed Form to Executive Director Jennifer Van Ort/Registration Table or Mail To: NYSACDL, 90 State Street, Ste 700, Albany, NY 12207 Thank you!

*NYSACDL is a 501(c)6 organization. Donations $100 and over receive recognition online and in Atticus.

Atticus | Volume 32 Number 2 | Spring 2020 | 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.

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Message from the President Timothy W. Hoover

NYSACDL in the Age of Pandemic Martin Adelman passed away just before this issue was finalized. Marty was a champion for his clients, the attorneys he mentored, and for this association. He was a past president, long time board member, and a founding member of NYSACDL. The entire NYSADCL family sends our condolences to his family – and to those attorneys who are who they are because of Marty. He was a force for good, and he made all of us better. Below I summarize what NYSACDL has done in response to the COVID-19 epidemic over the past two and one-half months. It is important for you to know that the work of our Association to serve you continues, and this is only a summary. But the more important and inspiring message is the one that you deliver day after day, despite the crisis. I am awed every day by the work that our members are doing to continue to zealously battle for their clients, for access to their clients, and for justice, while attending to and taking care of their families and their staffs. The Board’s two guiding principles since March 1 have been largely the same as they always have been. First, do what we can to support and enhance the practice of our members. Second, be good stewards for the organization, and strengthen it, so that we can do more of the first, in different ways. With a lot of hard work from our members, our Board, our Executive Director, and even non-members, we have held our own over the past ten weeks. In fact, I think it’s fair to say that among the myriad bar associations, we have been a leader in supporting our members, the criminal defense lawyers of this state, and even lawyers in general. When the New York State closure of businesses was announced during the week of March 16, and when the State issued guidance on Friday March 20 about which businesses were essential, there was a problem. A big one. Criminal defense lawyers were not listed. Working quickly, and ascertaining that no other state-wide bar association seemed primed to make an application, NYSACDL made an immediate request to Empire State Development to have criminal defense attorneys designated “essential.” Forty eight hours later, on Sunday March 22, we received word that our request was confirmed via the following response: “[l]aw firms and other providers of legal services are essential businesses only to the extent that their services are currently needed ... to support criminal defendants in court proceedings or individuals in emergency family court proceedings; or to participate in proceedings concerning the imminent release or detention of individuals subject to criminal or civil detention under any applicable provision of state or federal law, or proceedings to address Continued on next page

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

President’s Message Continued from previous page emergency risks to health, safety, or welfare[.]” This allowed you to go about your important work, and to be in the office to prepare for new arrests, new cases, and seeking the release of clients.

The Board’s regular work and regular committee work continued, with a special focus on expense saving and preparing for the uncertain future, both for the rest of this year, and beyond.

In short order, the CLE Committee, headed by Steve Epstein of Garden City, organized two free CLE programs, open to all criminal defense attorneys, on seeking release of incarcerated clients during the pandemic. The April 9 program had 500 attendees. The April 20 program, focusing on Western New York, had over 230 attendees. The programs were recorded and remain available for viewing and CLE credit to any criminal defense attorney. Steve and the CLE committee – and NYSACDL’s indefatigable Executive Director, Jennifer Van Ort – jumped into action immediately to make sure that criminal defense lawyers across the state would have access to the tools they needed to do the important work of saving the lives of our clients. At the same time, our entire Board was involved in producing strong advocacy pieces related to the release of incarcerated individuals, opposition to the suspension of essential CPL safeguards, and other important issues of statewide reach and significance.

Finally, we have been a leader in actively coordinating with other bar associations, advocacy groups and advocacy partners, and making important content and CLE programming available to non-member criminal defense attorneys. It’s simply a fact that some bar associations and groups are driven by turf protection. It may be true, but that doesn’t make it right. I don’t believe we are like that, and we’ve worked hard to reach out to long-time and new partners this year. The current situation, as it relates to criminal defense and clients in need, demands such a holistic approach.

The CLE Committee also made immediate plans to move April in-person CLEs until later in the year, and to launch the ongoing Lunch and the Law CLE series, featuring interactive programs three or four days a week since early April. The Committee also has scheduled two upcoming CLEs on the 2020 bail/discovery amendments, and litigating in the face of COVID-19. The Board launched a series of free member webinars tied to the financial and business considerations in the time of COVID-19. Through June 2, nine of these programs will have taken place,

Caravaggio, “Sette opere di Misericordia”

including three related to the Small Business Administration’s PPP loan process, an issue of paramount importance to our private practice members. We also launched a series of free member wellness webinars, keyed to helping our members navigate these turbulent times, featuring Pema Sherpa. The third session took place on May 14. As everyone knew it would, early February through the beginning of April involved a crush of activity for our Legislative Committee. The April 2020 budget provisions related to bail and discovery changed the 2019 reforms, but did so in much more modest ways than was originally proposed. Our Legislative Committee members were a key part of beating back the worst of the reform proposals, and preserving the core and fundamental reforms that were enacted in 2019. They deserve our strongest thanks.

As much as we have tried to do, not all of our efforts succeeded. The courts were largely closed for months, and even the present steps toward reopening are limited. Significant efforts to get attention focused on the suspension of CPL provisions did not immediately succeed. Our members, who have worked so hard to fight for what is right, remain characteristically undaunted. They are continuing to speak out and advocate for access to justice and for full exercise of the rights essential to a fair criminal justice system. When Judge Barrington D. Parker, Jr. of the Second Circuit accepted the Brennan Award at our dinner on January 30, 2020, his remarks included a discussion of the The Seven Works of Mercy, a masterpiece dating from 1607 by Caravaggio, which hangs over the altar of the Pio Monte della Misericordia church in Naples, Italy. The Judge connected the works of mercy (includ-

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

ing those undertaken in the face of plague) to the work that our members do on a daily basis. The Judge could not have been more prescient regarding the fundamental goodness of our members, and importance of our work, and what we have done since we last gathered together in January. The most tangible, observable form of this incredible work are those incarcerated clients who have been (and who should have been) released from jail or prison because of COVID-19. Your work is lifesaving. Thank you. Iâ&#x20AC;&#x2122;m proud of what NYSACDL has done. But I recognize that the pandemic will continue to affect you, and us, in direct financial, practice and personal ways. You have my word that we will continue to work as hard as possible to be there for you, so you can be there for your families, your clients, your staffs, and your fellow criminal defense attorneys. A

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

From the Editors’ Desk John S. Wallenstein, Ben Ostrer, Russell Schindler We hope you enjoy this issue of Atticus. We know it isn’t the usual format, which you can read in the subway, in the courthouse, or on a park bench, but in these strange times, we have to make some adjustments. Most of us are working from home or in our offices, but without our usual court appearances and jail visits. NYSACDL’s CLE programs, which bring us together and help the Association’s bottom line, are running virtually now for at least the immediate few months ahead, and publishing online saves us substantial money. We look forward to the day we can return to printing a magazine that, in addition to being informative and entertaining, is as the editors of MAD magazine used to write “suitable for wrapping fish.” Three months ago, at NYSACDL’s annual dinner, we honored Speaker Carl E. Heastie, Senator Jamaal T. Bailey and Assemblyman Joseph Lentol for their work on discovery and bail reform, and heard supportive words from Lieutenant Governor Kathy Hochul, but in many ways it seems significantly more time has passed. Despite a full court press and the “Willie Horton” style campaign of falsehoods spearheaded by the District Attorneys Association of New York (DAASNY), bail and discovery reform have largely withstood the assault, even in the midst of the pandemic. Many thanks goes to all of the stakeholders who stepped up to refute the misinformation relied upon by those who sought to return New York to blindfolded discovery practice and a racist bail system. Speaker Heastie and his allies should be applauded for their staunch defense of the gains of last session. The backsliding in the recently adopted budget bill evidenced a compromise, though a step backward, which preserved many of the gains achieved on behalf of the people of New York. We encourage you to spare a

moment to pass along a word of thanks to Speaker Heastie, Senator Bailey and Assemblyman Lentol, for standing tall in the face of immense political pressure. We also mourn the passing of iconic figures in our defense fraternity. Our deepest sympathies to the Adelman family on the passing of past president Marty Adelman, a founding member of this organization. We also recognize the passing of Jeremiah Flaherty of Ulster County at age 70. Jeremiah was well known and universally admired among practitioners in the Hudson Valley. He was a brilliant attorney with a great sense of humor and flashy attire. He leaves behind many admirers. As we all do our best to stay safe and healthy in this uncertain time, NYSACDL, led by our President Tim Hoover and the officers and directors, stands ready to assist our members. Whether it’s advice on a case, sharing a brief, or just sharing a moment to commiserate, we are a community, and we must stand with each other. With the Governor’s Executive orders playing havoc with the operation of the courts, and the prosecutors looking for every way they can to flout the discovery reforms we worked so hard to achieve, now more than ever, we need to remain vigilant. STAY SAFE AND HEALTHY. BEN, JOHN & RUSSELL

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

EDITORS

Dispatches from 90 State

John S. Wallenstein Ben Ostrer Russell Schindler

A publication of the New York State Association of Criminal Defense Lawyers ©2020 NYSACDL 90 State Street, Suite 700 Albany, New York 12207 Phone: 518-443-2000 Fax: 888-239-4665 www.nysacdl.org atticus@nysacdl.org

Read a good book lately? Write a review of it, and submit to our Editor, John S. Wallenstein. Contact John at jswallensteinesq@ outlook.com

Jennifer Van Ort Executive Director Like everyone else, I have a little bit of a different view as I write “Dispatches from 90 State” for this issue of Atticus. Since our January issue, the NYSACDL offices have transitioned from 90 State Street to my home a little further up the Hudson River. While not commuting is always a pleasure, I am looking forward to the day my view returns to downtown Albany – and when I can start travelling to all the areas of our state to see members and friends when we can again have in-person programs. In March, NYSACDL worked with you as you fought to be deemed essential – you wanted to make sure you could run into the fire to support clients and incarcerated individuals at risk of contracting COVID-19. I have always been proud to say that my job is to support criminal defense lawyers, and I take that job more seriously now than I have ever before. Throughout this time of selfisolation, NYSACDL has stepped to the plate with programs and services geared toward supporting members as they support clients, colleagues, employees and family. As you will see throughout this issue and on nysacdl.org, we have extensive plans to continue this support as long as necessary. Early on in this crisis, the NYSACDL Board and CLE Committee took the challenge we were going to face with the postponement of our regular spring programming and immediately made it an opportunity to increase and enhance our online programming. The innovative Law @ Lunch program was proposed by CLE Chair Steve Epstein and supported by Board members and Past-Presidents – Yung-Mi Lee, Benjamin Ostrer, and Robert Wells. This program has been popular among criminal defense lawyers throughout the state and we are thrilled to be able to continue it into June with programs from Xavier Donaldson, Sherry Levin Wallach, and more! Now that we have jumped into this world of Zoom, webinars, and online connection, we will not look back. These types of programs will continue to be a part of our CLE planning in the new normal coming soon. Many of our other committees have also needed to innovate and adapt to continue our level of service to our members. For example, this issue of Atticus will be an online-only issue – which provided new opportunities for design enhancements and changes. The Legislative Committee adapted virtual lobbying during the NYS Budget process – making sure your voice continued to be heard during that critical time. And, of course, this has all been led by President Tim Hoover, who has led the charge and made sure that NYSACDL has been at the forefront of anything that needed the input of criminal defense lawyers. I hope that you are continuing to stay safe and be well as we start thinking about transitioning back to some level of “normal.” As always, if there is anything you need or thoughts about ways NYSACDL can enhance its support of our members, please do not hesitate to contact me. Throughout the next few weeks, at least, email will continue to be the best way to reach me – jlvanort@nysacdl.org. Thank you, as always, for all you do.

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

From The Defense Table Grand Juror’s Comment Leads To Murder Charge Dismissal During the prosecution’s grand jury presentation for Murder in the Second Degree, a grand juror mentioned that the Defendant, Paul Barbaritano, “cut his girlfriend’s throat or something.” The prosecutor never thoroughly questioned this juror about his or her knowledge or bias, and even though the conversation happened in front of the other grand jurors, there was no inquiry about how this information prejudiced them. The County Court judge dismissed the indictment following defense counsel’s motion because the DA’s attempts were inadequate to dispel the apparent likelihood of prejudice to the defendant. But for the new discovery reform, defense counsel would not have seen the grand jury transcript until much, much later, and may not have ever had access to this early part of the transcript. — REBEKAH SOKOL, ESQ. Albany County Public Defender’s Office

Cellphone Argument Is No Ground For Police Inquiry The Defendant, Gregory Stover, was sitting in his legally parked car in the private parking lot of a nightclub. Two officers noticed that he was speaking loudly on his cell phone, arguing with his girlfriend. They approached to “see if he was ok” and demanded his license, eventually placing him under arrest for Aggravated Unlicensed Operation in the Third Degree, conducting what they called an inventory search, and finding a gun in the car’s trunk. After losing a suppression hearing, the defendant pled guilty and appealed. The Third Department reasoned that a sole occupant of a vehicle arguing on the phone does not pose an immediate security threat and “gives rise to no apparent reason for the police to intervene”. The Court found that the police had no objective, credible reason to approach the car, and that the police further had no reason to extend the initial conversation by running Mr. Stover’s driver’s license. The Third Department suppressed all evidence, vacated the conviction and dismissed the charges. — REBEKAH SOKOL, ESQ Albany County Public Defender’s Office

Beating The Plea Offer Is A Win Some might say that when your client is convicted of Assault 3 after trial and is sentenced to almost 4 months in jail that this is a loss. But when your client is charged with Assault 1 and the DA is recommending 10 years on a top count plea, this is a win in every sense of the word. The Defendant was charged with Assault 1, 2 and 3 in Brooklyn Supreme Court for allegedly stabbing the complainant once in the chest causing serious internal injuries. He spent almost 4 months in jail before he was released following a bail reduction. Defendant testified convincingly as to how the complainant sustained the stab wound and that Defendant was not responsible. After complainant had sustained the stab wound, Defendant did proceed to assault the complainant, much of which was captured on security cameras. In summation, defense counsel attacked the People’s evidence on the Assault 1 and 2 counts and submitted that the Defendant was the much more credible witness. Strategically, defense counsel essentially conceded his client’s guilt of Assault 3. After the verdict, the Judge immediately sentenced Defendant to time served and scolded the DA’s Office for not having disposed of the case with a misdemeanor plea, something the client would have accepted pretrial. Truly, a satisfying “victory.” — DANIEL L. BIBB, ESQ, The Law Office of Daniel L. Bibb, LLC

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

…meanwhile, in Albany… Kevin Stadelmaier, Legislative Chair

n April 2019, after years of diligent efforts and extraordinary advocacy from stakeholders all across the state, NYSACDL and the criminal defense community as a whole celebrated landmark changes in NYS bail and discovery legislation. This legislation, widely regarded as the most progressive step toward rectifying the significant inequities built into the NYS criminal justice system, both substantially reduced the number of persons subject to pre-trial incarceration while at the same time lifted the barriers to early and fulsome discovery in virtually all criminal cases in NYS. However, while the criminal defense community celebrated, “pro-rollback” lawmakers from both parties as well as law enforcement immediately began a campaign to undo the hard fought reforms. Throughout the late spring and summer, as we prepared the logistical underpinnings of taking on the new reforms, the opposition was already working hard to make revision of the reforms their signature issue of the next legislative/election cycle.

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

The NYSACDL Legislative and Lobbying Committee (“NYSACDL L&L Committee”) met in late August to formulate their priorities for the 2020 legislative session. Obviously looking to build on the momentum of the previous year’s victories, we sought to focus on things other than bail and discovery changes. Among the other issues on our agenda for 2020 were: Repeal of Civil Rights Law 50-a. Long regarded as among the most damaging statutes in the NY, Continued on next page

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

…meanwhile Continued from previous page Code, 50-a has shielded from public view evidence of police misconduct. Without a court order, law enforcement agencies were not required to disclose records of their employees’ official misconduct. NYSACDL sought repeal of this legislation in order to allow “sunshine” on bad actors in the law enforcement community and bring a level of heretofore seen accountability. Increase of the “Youthful Offender” age to 21. Increasing the age at which a young person could take advantage of record expungement of certain offenses was a key priority. Allowing those convicted of crimes at a young age to nevertheless lead productive lives, without the collateral consequences and stigma of a conviction, was seen by our committee as absolutely necessary. Amendment of CPL 60.45 (Coercive Interrogation). The issues of false confessions has long been a major one in criminal defense circles. Currently, law enforcement are not prohibited from creating false impressions regarding evidence in hand, or making false promises to those interrogated, for the purpose of extracting confessions. We sought an amendment of these practices to prohibit law enforcement from misrepresenting evidence or circumstances with the hope that same would lead to a significant reduction in false confessions. Increase in 18-b rates. 18-b rates in NYS have been frozen since 2004 at $75/hour for felonies and $60/hour for misdemeanor cases together with limits of $4400/$2200, respectively. Obviously the cost of living and practicing in NY has outstripped these amounts. In order to continue to attract high quality attorneys for those requiring representation by panel attorneys, NYSACDL sought to advocate for a substantial

increase in the rates, together with a yearly increase benchmarked to COLA adjustments. Obviously, this was a very aggressive agenda, especially in light of the expansive bail and discovery reforms won the year past. However, with a Democratic majority in both Houses and the Governor’s mansion, we surmised that there was a high probability we would be successful on at least some of these issues. Unfortunately, almost immediately after our priorities were announced, it became clear that bail and discovery were once again going to be the major legislative issue of 2020. Coordinated efforts by law enforcement and the District Attorney’s Association were effective in frightening newly elected Senators from traditionally Republican districts. These scare tactics placed us and other criminal defense reform coalitions on the defensive. In Legislative and Lobbying Committee meetings in September and October, despite our willingness to advocate for the aforementioned priority items, we faced the real possibility of bail and discovery rollbacks. By that time, law enforcement and its surrogates had already begun a robust media disinformation campaign aimed at overturning the legislation even before it had taken effect. While the criminal defense community as a whole was preparing for the “new world” of pre-trial releases and early, voluminous discovery, behind the scenes momentum was building for an all-out attack from the opposition. As such, our Committee turned its attention to focus on protection of the new bail and discovery legislation, even before its effective date. On October 28, 2019, NYSACDL

Legislative and Lobbying Chair Kevin Stadelmaier testified before the Senate Standing Committee on Codes regarding the benefits of pre-trial discovery reform. He, along with defenders from across the state argued persuasively that the benefits of the new legislation would be substantial and, upon implementation, self-evident. On November 20, Kevin Stadelmaier and NYSACDL Lobbyist Jennifer Richardson met with Senate Codes Chair Jamaal Bailey and Assembly Codes Chair Joe Lentol at their respective Bronx and Brooklyn offices. Both had been champions of the new reforms and we urged them to remain strong against the building opposition. They indicated their continuing support for the reforms and remained staunch advocates throughout the 2020 legislative cycle. At the same time, other L&L Committee members such as Yung Mi-Lee, Alice Fontier, Derek Andrews, Amy Marion and Greg Lubow, were advocating for “no rollbacks.” Committee members contacted various local and statewide officials urging them to remain firm. Through our membership on various statewide coalitions we continued to forcefully advocate for the reforms. As legislated, the new reforms took effect in January and had an immediate positive effect. Clients charged with misdemeanors and non-violent felonies were being allowed to remain free pre-trial. Earlier and more meaningful discovery was realized. Despite erroneous claims of deleterious societal effects stemming from the release of persons charged pre-trial, the facts demonstrated the contrary. Jail populations began to plummet statewide. Rising crime rates, long cited by the opposition as a predicted negative effect of bail reform,

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

failed to materialize. Bench warrant rates remained steady or declined. However, despite objective evidence of greater fairness and cost savings, the conservative chorus for “rollbacks” continued and even intensified. On January 23, approximately three weeks after the reforms went into effect, a delegation from NYSACDL L&L, including Yung-Mi Lee, Derek Andrews and Amy Marion met with top Assembly and Senate staff to discuss the impacts of the reform on our clients and practice and how we could best support the houses in holding firm on the new reforms. During these discussions, we were regrettably informed to expect further compromise on this issue. At that point, the main thrust of the “rollback” position had now coalesced into a move to provide Judges more discretion in determining a given defendant’s dangerousness to the community as a factor in determining bail. NYSACDL seized upon this notion and fought extremely hard against it. With no specified criteria for determining “dangerousness,” allowing Judges to exercise their own subjective “discretion” in determining if an individual would present a danger to his/her community was unacceptable and would constitute a significant setback to bail reform. Retreating to that position from where the reformed statute currently sat was an untenable position, and one we could never countenance. In response to the information obtained on January 23, NYSACDL L&L intensified our efforts. On February 11 and 26, we held “Lobbying Days” in Albany and in meetings with over 20 legislative members, we continued to push for no rollbacks to the reforms. By that time, it

had become even more clear that despite the fear mongering and disinformation of law enforcement, the reforms were working as intended. However, fear continued to outpace facts In addition to the Lobbying Days, Chair Kevin Stadelmaier testified at a Republican sponsored bail roundtable on February 6th. In February, Legislative Committee Members Yung Mi-Lee and Amy Marion met with potentially vulnerable Democrat electeds in an effort to assist them in holding firm against any rollbacks. In the ramp up to budget discussions in March, conference calls were held daily with NYSACDL L&L members and statewide partners Plans for additional lobby days at the end of March in the lead up to the budget votes were unfortunately stymied by the outbreak of the Coronavirus. However, despite the fact that “in person” meetings were impossible, communications to the Legislature, both direct and indirect, continued. Op-Eds were written, letters were circulated, phone calls and e-mails were sent daily, imploring them to remain firm on bail and discovery reform.

custody status. In prosecutions involving traffic infractions or municipal code petty offenses disclosure is not required until 15 days before trial. And prosecutors have now gained troubling, if not unconstitutional, authority to withhold the identities of 911 callers, as well as victims and witnesses in sex offense and gang-affiliated cases. The amendments also clarify that physical/mental/scientific tests do not have to be turned over until they are completed. And, proficiency tests are limited to only a list, rather than the tests themselves. Finally, the amendments attempt to clarify the validity of certificates of compliance by injecting a “reasonableness” standard and stating the obvious –that a Certificate is still valid even when evidence is lost or destroyed or otherwise unavailable. A new, undefined standard of “special circumstances,” rather than “exceptional circumstances” now applies in the context of discovery as it relates to the Prosecution’s trial readiness.

Alas, despite all these efforts, the legislature ultimately decided on changes to both the bail law and the discovery law. However, the changes, while in our view unnecessary, and certainly damaging to the pre-trial release prospects of many defendants, did not go as far as the rollback proponents had wished.

The legislature has also scaled back the historic 2019 bail reform laws by reclassifying dozens of crimes as “qualifying offenses” for purposes of bail or, when the charge is a felony, possible remand. The legislation also gives judges additional authority to set non-monetary conditions of release, including restrictions on associating with “victims, witnesses or co-defendants” (the last condition is probably unconstitutional).

However, the legislature has significantly scaled back the “early, open and automatic” framework of the discovery law. The timeline for initial discovery has been extended and bifurcated from fifteen days to either twenty or thirtyfive days depending on the defendant’s

Additionally, the legislature amended the qualifying offense “bucket” to include additional offenses that had been non-qualifying under the January 1st, 2020 legislation. Frequently charged crimes that will now become qualifying offenses include: criminal obstruction Continued on next page

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

…meanwhile Continued from previous page of breathing or blood circulation when committed against a member of the defendant’s same family or household, bail jumping, all Class A-I drug felonies, and burglary in the second degree [Penal Law 140.25 (2)], which is now a qualifying offense when the defendant enters the “living area” of a dwelling. The legislature further clarified that courts have authority to set bail or remand (felonies only) following conviction and pending sentencing on a non-qualifying offense. A qualifying offense now includes “any crime that is alleged to have caused the death of another person” [CPL § 510.10 (4) (j)]. This categorical change will include homicide charges under Penal Law Article 125 that previously were non-qualifying offenses because they are classified as non-

violent felonies (e.g., manslaughter in the second degree, criminally negligent homicide). Furthermore, some of the reclassifications are more troubling and their implications are unclear. For example, two sequential charges (felonies or misdemeanors) involving an undefined “harm” to persons or property will give judges discretion to set bail in otherwise non-qualifying offenses. Also, when a defendant “qualifies as a persistent felony offender” and is charged with a non-qualifying felony, the court may now set bail. Finally, a court can set bail when a defendant is charged with a felony while on probation or postrelease supervision. While the L&L Committee is certainly disappointed the Legislature chose to

amend the law without giving the original reforms time to reveal the positive gains in greater detail, we are pleased that the “discretion” on dangerousness did not make it into this year’s amendments. Accordingly, while we can’t quite claim victory, we can take pride in defeating that counterproductive measure. As we approach the end of the session, we are hopeful that this battle on bail and discovery, for now, has ended and that we can move on to many other criminal justice priorities to improve the fairness of our system of justice and our practice of law. Rest assured that the NYSACD L&L Committee will continue to remain vigilant in defense of any attacks on the rights of our clients and continue to seek improvements to criminal defense advocacy. A

MARTIN B. ADELMAN April 4, 1943 - May 10, 2020 The officers, directors and past-presidents of NYSACDL are deeply saddened to note the passing of past-president and founding member of NYSACDL Martin B. Adelman. Marty was a mentor and friend to all who had the privilege to know him. Rest in peace.

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

ourt of Appeals

Pertinent Criminal-Related Decisions November 2019 through February 2020 By Timothy P. Murphy, Esq.

November 21, 2019

People ex rel. Prieston v. Nassau Co. Sheriff’s Dept. 34 NY3d 177

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

At issue is CPL 520.30(1), which governs the conducting of a bail sufficiency hearing regarding the use of collateral pledged on an insurance company bond in support of bail. Here, Supreme Court was correct in the first instance and the AD erred in granting the petitioner / respondent’s state habeas corpus petition pursuant to CPLR article 70. The petition is dismissed. In setting bail, courts must consider the kind and degree of

control or restriction that is necessary to secure the defendant’s court attendance. CPL 510.30. Under CPL 520.30(1), the court is permitted to conduct an inquiry, including six enumerated factors, regarding the value and sufficiency of any security offered. The AD erred in its total deference to the insurance company’s business judgment, which may not be consistent with the state’s concern for having the defendant return to court. Supreme Court did not abuse its discretion in finding that the unspecified value of automobiles pledged by the defendant were insufficient to ensure defendant’s return to court.

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

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Appellate Report Continued from previous page November 25, 2019

November 26, 2019

People v. Rouse

People v. Li

34 NY3d 269

34 NY3d 357

Consistent with People v. Smith, 27 NY3d 652, 659 (2016) (addressing the cross-examination of a police officer regarding claims of a false arrest in a previous federal law suit), law enforcement may be cross-examined regarding acts of dishonesty just as other prosecution witnesses are. Defendant was convicted of attempted murder. The weapon was not tested for DNA or fingerprints. While admissibility is ultimately within the trial court’s discretion, a trial attorney acting in good faith may cross-examine a witness regarding specific allegations of wrongdoing relevant to credibility. The Court rejected a seven-part test from the Second Circuit for determining the scope of cross-examination regarding a prior incident. See, United States v. Cedeno, 633 F3d 79, 82-83 (2d Cir. 2011). Instead, a three-part test is followed, consistent with Smith, 27 NY3d at 662 (requiring that there be a good faith basis for the inquiry, the content be relevant to credibility and that the examination not confuse, mislead the jury or prejudice the opposing party). Identification was the pertinent issue at trial. The trial court abused its discretion as a matter of law in precluding defense counsel’s attempt to inquire regarding one of the officers misleading a federal prosecutor as to his involvement in a ticket-fixing scheme, while preparing to testify in a federal proceeding. Defense counsel also pointed to two federal court (SDNY) suppression determinations wherein the officer provided unreliable testimony. A new trial was ordered.

Defendant was a doctor from Queens who provided his addicted patients prescription pills at will. His manslaughter conviction was based on legally sufficient evidence, despite the lack of direct evidence between the two individuals who overdosed and defendant’s conduct. Patients at bar were not required to

Judge Wilson argues persuasively for the decriminalization of low level crimes in neighborhoods having significant amounts of indigent and minority residents. The dissent addresses the defendant’s personal background here, thus humanizing him. make appointments and were required to pay in cash. Physical exams were rare. Over 21,000 prescriptions were written in a three-year period. Seconddegree manslaughter requires here that the People must establish the requisite recklessness mens rea and that the defendant engaged in conduct through the sale of dangerous drugs that directly causes the death of another. Recklessness means that the defendant was aware of and consciously disregarded a substantial and unjustifiable risk of such

nature and degree that it constituted a gross deviation from the standard of a reasonable person under the circumstances. Causation was the prime issue here. A defendant’s conduct must set in motion events which ultimately result in the victim’s death. The defendant’s actions need not be the sole cause of the death, nor does the defendant’s conduct need to be the final, fatal act. But the conduct must be an actual contributory cause. The fatal result must be reasonably foreseeable. The evidence was sufficient here even though it was sketchy whether defendant actually provided the drugs that the victims ingested which led to their deaths. Judge Wilson wrote an insightful dissent. Unlike tort liability, a generally foreseeable risk and an action that ignites a chain of causation is not enough.

People v. Thomas People v. Green People v. Lang 34 NY3d 1019 The court here wrestles over what constitutes a knowing, intelligent and voluntary appeal waiver under circumstances where a written waiver form containing false information is used. The Chief wrote for the majority, which covered three combined separate cases wherein defendants pleaded guilty after waiving their right to appeal orally and in writing, and then perfected their appeals. Two of the three appeal waivers considered were found to be invalid, as those two oral allocutions failed to cure the errors contained in the written waiver forms. The appeal waivers for Green and Lang, both out of Genesee County in WNY, were invalidated. The Thomas waiver, from Bronx County in NYC, was approved. The written waivers at bar mischaracterized the scope of

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

the defendants’ appellate rights being waived, specifically regarding whether defendants could file a notice of appeal and secure assigned counsel on appeal. False info in this regard could easily deter defendants from exercising their fundamental and constitutional rights to direct appellate review of their criminal judgments of conviction. See, CPL 450.10; N.Y. Const., art. VI, § 4(k). At the very least, the validity of an appellate waiver must be reviewed. In Green and Lang, which utilized identical waivers, the written forms falsely indicated that the defendants could not file an appeal, nor have assigned appellate counsel. The oral allocutions did not cure the situation. In Thomas, though the written form erroneously indicated that defendant could (and was) waiving the right to file a notice of appeal, the court found other language in the form to be “clarifying” and the oral allocution to be sufficient. In his Lang / Green dissent, Judge Garcia indicates that prosecutors may be less willing to strike deals with defendants now. In his Thomas dissent, Judge Wilson boldly argued for the abolition of all appeal waivers and the overruling of People v. Seaberg, 74 NY2d 1, 7-8 (1989). Appeal waivers have become “purely ritualistic.” They have proven to be unworkable and are rarely knowing, intelligent and voluntary. December 17, 2019

People v. Patterson 34 NY3d 1112 This is a 4 to 3 memorandum, affirming the AD. The trial court did not abuse its discretion in denying defendant’s challenge for cause under CPL 270.20(1)(b). The prospective juror did not demonstrate preexisting opinions that might indicate bias. Because of this, an unequivocal assurance that she could be fair and impartial was unnecessary.

Judge Fahey disagrees in dissent, opining that the trial court had an obligation to “inquire further” to obtain unequivocal assurances that the prospective juror could be impartial.

People v. McCullum 34 NY3d 1022 Not too much to be see here. This is a unanimous memorandum, affirming the AD. The “standing” issue for challenging the search of defendant’s apartment was not preserved. See, C.P.L. 470.05(2).

People v. Mairena People v. Altamirano 2019 NY Slip Op 08978 Two cases were combined in this decision, which affirmed the appellate courts. The issue in both cases was whether the defendant was deprived of a fair trial where counsel depended on particular jury instructions confirmed by the trial court, presented summations and then had the instructions subsequently changed when they were given to the jury. Under the circumstances, the defendants believed that they were deprived of the right to an effective summation. The errors regarding both defendants were harmless; the evidence of guilt in both cases was overwhelming. People v. Crimmins, 36 NY2d 230, 237, 241-242 (1975). The prejudice component of this analysis is whether a summation is materially affected by knowledge of the charge submitted. Neither case passed this inquiry. Though agreeing with the result, Judge Fahey in concurrence argues that the constitutional harmless error standard should have been applied by the majority. In dissent, Judge Rivera also trumpets the unique importance of a de-

fendant’s summation in our adversarial system. The dissent believed that new trials should have been ordered. December 19, 2019

People v. Ellis 34 NY3d 1092 This is a 6 to 1 memorandum, affirming the AD. Judge Rivera dissented for reasons stated in the dissenting opinion in People v. Ellis, 166 AD3d 993, 997-1006 (2d Dep’t 2018). Defendant’s argument that it was error for him to be in prison garb during several days of jury selection is unpreserved. See, CPL 470.05(2). The trial court also did not err in denying defendant’s challenge for-cause regarding the issue of implicit bias. There was no indication that the prospective juror had a professional or personal relationship with the People’s witnesses or counsel. CPL 270.20(1)(c); People v. Branch, 46 NY2d 645, 651 (1979); People v. Colon, 71 NY2d 410, 418 (1988).

People v. Cook 2019 NY Slip Op 09059 The lower court did not abuse its discretion in granting the People’s request to reopen a suppression hearing after the People rested (but prior to the court making a suppression decision). The defendant was charged with robbing a cab driver at knife point in the Bronx. Money was demanded, the driver was cut, the vehicle crashed and the perpetrator fled. The police found defendant on a subway platform two blocks from the car accident, about four to five minutes after the police responded to the scene. Defendant matched the description provided by the victim. Defendant argued that the police did not have reasonable suspicion to execute a level-three intruContinued on next page

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

Appellate Report Continued from previous page sion under De Bour. After resting their case, the People requested permission to reopen the hearing in order to call one of the officers who first spotted the defendant on the subway platform. Of the five people on the platform, the defendant was the only one matching the victim’s description. The hearing was ultimately reopened. The hearing court at bar had not yet issued a suppression decision. The DA is entitled to “one full opportunity” to present their evidence. In general, the prosecution should not be afforded a second opportunity to succeed once they have failed. The People should also not gain the windfall of impermissibly tailored testimony on a remand. Absent a showing that the People were deprived of a full and fair opportunity to be heard, they are precluded from reopening a suppression hearing to shore up their evidentiary or legal position. Otherwise, defendants’ success at suppression hearings would be meaningless. The court here did not abuse its discretion in granting the DA’s request to reopen the hearing. The majority notes that concerns about finality and the risk of tailored testimony must be balanced against the strong public policy in holding “culpable individuals responsible and protecting legitimate police conduct.” Moreover, there is less required formality in a suppression hearing (CPL 710.60[4]) than in a trial (CPL 260.30). The dissent argues that the suppression court indeed tipped its hand here and the People followed its lead.

People v. Udeke 2019 NY Slip Op 09057 This is a 5 to 2 memorandum, affirming the Appellate Term. The accusatory instrument charging second-degree criminal contempt, an “A” misdemeanor, was facially sufficient, as the

allegations and reasonable inferences drawn therefrom provided reasonable cause that defendant intended to violate the “stay way” provision of the order of protection in question. He did this by being physically present in the close confines of a subway turnstile with his wife, the protected person in the order. Based on the record as a whole, defendant’s “B” misdemeanor plea was voluntary as well. The dissent argues that the non-citizen defendant’s Sixth Amendment right to a jury trial was violated pursuant to People v. Suazo, 32 NY3d 491, 494 (2018), as the lower court effectively communicated that defendant was giving up the right to a jury by pleading guilty to a “B” misdemeanor.

People v. Britt 2019 NY Slip Op 09060 This is a 5 to 2 decision. The First Department is affirmed. It was 11:15 pm in Times Square. Defendant was seen drinking out of a paper bag, apparently consuming alcohol in public in violation of a NYC ordinance. The police saw the defendant and followed him into a haunted house attraction. Defendant was handcuffed and searched incident to arrest. He was ultimately found in possession of crack cocaine and 17 counterfeit bills (totaling $300), which were separated from his genuine money and wrapped in a rubber band. Defendant possessed an amount the majority described as a “large sum.” It was not inadvertent. He made incriminating statements regarding the counterfeit currency. The People’s expert from the Secret Service testified that individuals who pass counterfeit bills often separate them from their genuine currency. There was legally sufficient evidence to support defendant’s convic-

tion for 1st degree criminal possession of a forged instrument (“CPFI”) under PL § 170.30, which requires proving a complex mens rea mandating that the defendant knows that the instrument is forged and that he or she intends to defraud using the instrument. Just knowing that you possess a forged instrument is insufficient. There was also record support for the suppression court’s determination that law enforcement had reasonable suspicion and therefore properly conducted a third-level De Bour intrusion. This being a mixed question of law and fact, no further review was authorized. Judge Wilson writes for the dissent. There was no evidence that defendant attempted to use, was using, or had plans to use the counterfeit money. Further, the police only had reasonable suspicion, if they had even that, for defendant committing a violation, not a crime. See, People v. Moore, 6 NY3d 496, 498-499 (2006). The facts here only justified a level-two intrusion. Judge Wilson further argues persuasively for the decriminalization of low level crimes in neighborhoods having significant amounts of indigent and minority residents. January 9, 2020

People v. Muhammad 2020 NY Slip Op 00180 This is a unanimous memorandum affirming the AD. Defense counsel at bar “impliedly consented” to the submission of written copies of the court’s entire final instructions to the jury. Any error is this regard was thus unpreserved for appellate review. February 13, 2020

People v. Ramlall 2020 NY Slip Op 00995

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

This is a unanimous memorandum affirming the appellate term. After balancing the factors set out in People v. Taranovich, 37 NY2d 442, 445 (1975); CPL 30.20, the defendant’s claims do not rise to a level of a constitutional speedy trial violation regarding a lengthy delay of his prosecution for the traffic infraction of driving while ability impaired.

People v. Wheeler 2020 NY Slip Op 00998 This is a unanimous memorandum reversing the appellate term. The lower court accusatory instrument charging obstructing governmental administration (PL § 195.05) is dismissed, as the instrument was facially insufficient. Defendant was not put on notice of the “official function” that he purportedly interfered with. Such notice implicates the defendant’s constitutional rights to due process, to prepare a defense and to be protected from double jeopardy. Defendant was accused of not cooperating with law enforcement which was attempting to execute a search warrant on his vehicle as he was backing out of his driveway. There were insufficient nonhearsay allegations which, if true, would establish every element of the offense charged and the defendant’s commission thereof. See generally, People v. Kalin, 12 NY3d 225, 228-229 (2009); CPL 100.40(1)(c).

People v. Francis 2020 NY Slip Op 00996 This is a unanimous opinion authored by Judge Garcia, affirming the First Department. The defendant here had four prior felony convictions, often using different aliases along the way. The unique question posed to the state’s

highest court was whether the defendant was “adversely affected” pursuant to CPL 470.15 (1) by the CPL 440 denial of his argument that his 1988 sentence was illegally lenient. If defendant could knock out this adjudication, which was illegal, then like dominos his subsequent recidivist felony offender judgments would theoretically follow. The court held that the jurisdictional restrictions of CPL 470.15 (1) apply to appeals from CPL 440 litigation. Being aggrieved under the statute requires that the defendant must have already been adversely affected, which is in the past tense. It can’t be a speculative future harm contingent on how future litigation is navigated; the provision in question does not encompass errors that may adversely affect the defendant. A court can only address a purported error or defect presently before it. Along these lines, the defendant actually received a windfall through his unusually low 1988 sentence. In and of itself, he was not adversely affected by the ruling; it merely kept in place his illegally lenient sentence. If just being denied a motion were enough to satisfy the statute, it would incentivize the delaying of postconviction proceedings. February 18, 2020

People v. Anonymous 2020 NY Slip Op 01113 This is a 4 to 3 opinion, authored by Judge Rivera. The defendant was arrested for committing a crime after he entered a guilty plea. He asked that his sentence be adjourned until after the new matter was resolved. The jury acquitted defendant of the new charge and the records were sealed pursuant to CPL 160.50. In order to obtain evidence of the defendant violating a pre-sentence condition, the People secured an order staying the CPL 160.50

(1) sealing of these records. This order was erroneous. The information should never have been used to increase the defendant’s sentence for his A-II drug felony. The AD correctly found that the CPL 160.50 order was erroneous, but wrongly concluded that there was no remedy to be afforded. The matter was thus remitted for resentencing, as defendant should have been restored to his status before arrest with regards to the acquitted matter. CPL 160.50 (1) permits the unsealing of records and papers relating to an arrest or prosecution where the People, with at least five days’ notice, make a motion demonstrating that the interests of justice require the record to be unsealed. The purpose of CPL 160.50 is to protect the presumption of innocence and to keep individuals from suffering adverse consequences as a result of unfounded public accusations. None of the six exceptions to sealing records under CPL 160.50 (1) (d) were present. The sentencing court’s obligation to sentence defendants with accurate and reliable info does not outweigh this fact. The sentencing court may consider a defendant’s non-compliance with pre-sentence conditions in an Outley hearing, just not with sealed records. These did not constitute extraordinary circumstances warranting an exception under this carefully designed statutory framework. In dissent, the Chief Judge observed that the defendant was told to just stay out of trouble while awaiting sentencing. At bar, there would have been no stigma suffered by the defendant, as the acquitted charge would not have been considered. Rather, the sentencing court would have been considering reliable and accurate info in imposing its sentence and fulfilling its obligation to execute the terms of the plea agreement.

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People v. Diaz 2020 NY Slip Op 01114 This is a 5 to 2 memorandum, with Judge Rivera authoring the dissent, joined by Judge Wilson. The AD, which affirmed the SORA risk level assessment finding defendant to be a level two offender, is affirmed. Here the presentence investigation report (“PSI”) authored by the probation department, which addresses the circumstances surrounding the offense and the defendant’s background (CPL 390.30[1]), indicated without any basis that the defendant “on one or more occasions … used physical force to coerce the victim into cooperation.” The Case Summary falsely stated that the PSI indicated that “on more than one occasion force was used.” These documents were used to justify an additional 10 points under the forcible compulsion factor of the risk assessment instrument, taking the score from the low risk level one to the moderate level two risk. People v. Mingo, 12 NY3d 563, 571-573 (2009) recognized that Corr. Law § 168-n(3) permits the admission of “reliable” hearsay in a SORA hearing. The accuracy of the PSI at bar was not challenged by counsel below. Terrific dissent here by Judge Rivera, addressing the SORA statutory regime under Corr. Law article 168 (see, footnotes 1 and 2), as well as the critical hearsay problem here.

Some Noteworthy Recent Second Circuit Criminal Decisions: United States v. Wright

three years after he was sentenced in 2014 in the WDNY. This was obviously untimely under FRAP 4(b)(1)(A) (requiring under its 2009 amendment that where the government does not appeal, a NoA must be filed within 14 days of the judgment or order being appealed). Defendant claimed that he received ineffective assistance of counsel (“IAC”) under the Sixth Amendment as his attorney failed to file a NoA as timely requested. If defendant at bar had filed a 28 USC § 2255 post-conviction motion, a finding of IAC would require a remand for either resentencing or the entry of a new judgment. But unlike Fuller, defendant here filed his NoA after the one-year § 2255(f ) time limitation had expired. Concerned that future defendants will simply substitute a timely § 2255 motion with a late NoA (thus circumventing the statute), the court ultimately remanded to the District Court with instructions to convert appellant’s untimely NoA into a habeas petition and for consideration of whether his petition is timely under § 2255(f )(4), either with or without an application of equitable tolling. Equitable tolling under § 2255 requires a showing of either due diligence in pursing appellate rights and that some extraordinary circumstances stood in the way of a timely filing of the petition. The latter includes the scenario where attorney negligence is so egregious as to become an effective abandonment of the attorney-client relationship; a much heavier burden than merely showing that defense counsel failed to file a timely NoA as requested.

United States v. Mumuni

945 F3d 677 (12/19/19)

946 F3d 97 (12/27/19)

Here the defendant filed a pro se notice of appeal (“NoA”) in 2017, more than

This is a successful government’s appeal, vacating a sentence for substantive

unreasonableness. Defendant pleaded guilty to conspiring to provide material support for a terrorist organization and attempting to murder an FBI agent with a kitchen knife. The advisory sentencing guidelines indicated a sentence of 85 years. The District Court in the EDNY sentenced the defendant instead to 17 years, an 80% downward variance from the guidelines range. According to the Second Circuit, this sentence was disproportionately lenient. Though a substantively unreasonable sentence is still a “rare case,” the Second Circuit believed this one fit the bill as the prison sentence here was “shockingly low.” The panel was not pleased with the exceptionally serious conduct at issue, which involved facilitating the travel of ISIS members and a domestic terrorist attack against a law enforcement officer in the name of ISIS. Moreover, where a District Court accepts a guilty plea including an allocution to the elements of the charged crime, it may not make subsequent contradictory findings of fact or otherwise minimize the conduct described at the defendant’s plea hearing. The District Court should not have selectively relied on mitigating factors under 18 USC § 3553 in considering the relative culpability of co-defendants. “While district courts have broad discretion at sentencing, this discretion is not unlimited.” On remand, the District Court must, consistent with § 3553(a), place greater weight at defendant’s resentencing to the nature and circumstances of the offense, the need for the sentence to reflect the seriousness of the offense, the need for the sentence to afford adequate deterrence to criminal conduct and the need to protect the public from future crimes committed by the defendant. Judge Hall concurred, but did not agree that a District Court should weigh the § 3553(a) factors differently in cases involving terrorism.

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

United States v. Silver 948 F3d 538 (2020) This was a partial win here for the now former speaker of the NYS Assembly in a decision authored by Judge Wesley. There were two primary components of defendant’s bribery schemes wherein he used two law firms in which he was “of counsel,” as a vehicle to exploit his position for his personal gain, totaling over 3.5 million dollars in attorney referral fees extending over a decade. To begin with, the defendant performed official acts beneficial to a physician who referred mesothelioma patients to defendant’s firm to support its personal injury practice. With regards to the second law firm, the defendant received attorney referral fees for tax certiorari cases, wherein the defendant’s official

acts included pushing for certain legislation involving tax abatement and rent stabilization, for two real estate developers. One of the developers also received tax exempt financing from the Public Authority Control Board through a “side letter” retainer agreement with the defendant. The court rejected the defendant’s first argument that his Hobbs Act extortion under color of official right and honest services fraud require evidence of a “meeting of the minds” to satisfy the quid quo pro component. Though the court also rejected defendant’s second argument that the government’s “as opportunities arise” theory of bribery did not survive McDonald, it ultimately found error in the District Court’s jury instructions regarding counts 1, 2 and 5, addressing his mesothelioma scheme. Those counts,

which included honest services mail and wire fraud, as well as a Hobbs Act extortion count, were dismissed as there was insufficient evidence to sustain those allegations. McDonald requires that the public official understand a properly defined question or matter to be influenced at the time of the promise. In addressing the distinction between lobbying and bribery, the court observed that the criminal conduct in question must be more than a mere open-ended promise to perform official acts for the benefit of the constituent. Finally, Judge Lohier authored a concurrence to emphasize that the “as opportunities arise” doctrine remains alive and that neither Hobbs Act extortion nor honest services fraud require a meeting of the minds agreement. A

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Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

“DON’T FENCE ME IN” Location Tracking Technologies and the Future of Privacy By Cheryl Meyers Buth, Esq. and Joel L. Daniels, Esq.

Introduction Back in the 1970s (yes, one of us was around then) you were considered a “tech savvy lawyer” as long as you used an IBM Selectric typewriter and always carried a quarter for a payphone call. But to quote the Greek philosopher Heraclitus, 500 BC: “Nothing is permanent except change”. Today legislatures and courts cannot keep up with the rate of technological development. Our personal lives are reduced to bits of electronic data. As law enforcement agencies increasingly rely on technology, tech companies see this sector as a growing market. Police use new and undisclosed ways to gather evidence. Gone are the days when a defense lawyer could leave tech’s “bells and whistles” to younger colleagues. If we adopt Heraclitus’s metaphor of life as a constantly flowing river, protecting our clients’ rights today means we all have to step into the water. But when it comes to technology, even Heraclitus could not have predicted the speed of the current.

“GEOFENCE” – What Is It? It has only been thirteen years since the first iPhone was released but look at how our lives have changed. Wireless communication occurs through cellular networks1. With those networks in the background, tracking the whereabouts of individuals within those networks is now at the forefront. Companies use location data transmitted by Wi-Fi, cell towers and Global Positioning Systems (GPS) to provide a wide range of services—routing cell phone calls, processing ATM and other pointof-sale transactions, running electrical grids, directing advertisements, targeting drone strikes, turning on lights, operating home security systems, giving virtual tours, awarding points for store visits and regulating online voting. Cellular networks are the maps on which we can pinpoint the location of individual users. In some ways they are similar to an air traffic controller’s radar screen with its “blips” indicating airplane traffic2. To define the area on the map we are interested in, we essentially draw a circle around it or construct a “Geofence”. A Geofence is a virtual fence or perimeter around a physical location within the digital network. The term “Geofencing” is used in a broad range of contexts but commonly means establishing a perimeter within which the presence of a phone causes something to happen. For example, customers download an app and give permission for positioning information to be utilized by the app owner/user. Then they walk past a store

Cheryl Meyers Buth is the founding partner of Meyers Buth Law Group PLLC and was admitted to the New York Bar in 1994; Joel L. Daniels is a criminal lawyer who has been practicing in Buffalo, New York since 1964. Mr. Daniels and Ms. Meyers Buth have frequently worked together for more than 25 years. Both are past recipients of the Charles F. Crimi Award from the New York State Bar Association honoring defense lawyers in private practice who embody the highest ideals of the Criminal Justice Section of the Bar.

1 “Cellular” technology is the use of wireless communication most commonly using personal mobile devices. The term “cellular” comes from the design of the system, which carries information (e.g. data can include voice, text, pictures, video, etc.) from geographical service areas that are divided into smaller pockets called cells with a tower in the middle. Traditional cellular technology uses analog service which modulates radio frequencies to carry information like the human voice (FM-frequency modulation). “Digital” does the same thing using a binary code to represent any signal as a sequence of ones and zeros. Since the information is broken down into smaller units, it can be sent faster and more securely than analog over radio bands (subsections of the spectrum of radio frequencies; common terminology includes “broadband” or “broadband spectrum”.)“Wi-Fi” is basically just another band (channel) of radio, intended to cover much shorter distances, used to wirelessly connect devices through an access point. For example, your laptop or iPad connects to the router installed in your home or office for internet access. That kind of access does not normally use the cellular network, relying instead on telephone lines, televisions cables, or dedicated internet cables to reach internet routers. This kind of access is usually cheaper than cellular data access on your phone (usually your phone plan charges more for data as anyone who has used their phone as a hotspot for internet access knows). “Bluetooth” is a name brand of wi-fi technology that allows a personal mobile device to communicate with a fixed device over short distances (less than 30 feet) using radio bands. For example, using a phone to open a smart lock or communicate with a speaker. www.scienceclarified.com 2 Radar uses radio waves sent from a transmitter which reflect off an object and return to the receiver, giving information about the object’s location and speed. Cell networks produce smaller, weaker signals that are sent primarily along two radio bands. Their strength fluctuates based on traffic to the particular tower. Radar is more sensitive and operates on different bands than cell networks.

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

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Geofencing Continued from previous page and a coupon is sent to their phone. From the company’s perspective, it’s like casting a net over an area and hauling in whatever happens to be there at the time. See generally “What is a geofence- A complete guide to geofencing”, Kalle, Jan 31, 2018, https://proximi.io/geofencecomplete-guide-geofencing/3

Early Law Enforcement Uses of Geofence Technology – United States v. Jones Prior to requesting geofence warrants, police used this technology in other ways, primarily with GPS trackers to monitor individuals or vehicles they had already identified. GPS mobile tracking devices are used with tracking software (e.g. “covert track”). The device uploads location data and the software permits users to download a spreadsheet with the date, time, location, direction and speed. It allows users to track the GPS device in near real-time (NRT). Law enforcement can place a geofence around a location and the officer is notified by text or email if the GPS tracking device enters or leaves the defined area. This technology has been used frequently for the past decade. See eg United States v. Mitchell, 2014 U.S.District LEXIS 30739 (Dist. Kansas, Jan 15, 2014) (GPS was not monitored continuously; rather it was monitored via a geofence perimeter that would alert police when the tracker crossed into a geographic area); United States v. Lynn, 2014 U.S.Dist. LEXIS 47669 (Dist. Oregon, Apr. 7, 2014) (operating officer notified by text or email if GPS tracking device leaves the geofence area); United States v. Asghedom, 992 F.Supp. 2d 1167 (NDAl Dec. 31. 2013) (track3 Proximi is a marketing company that develops positioning platforms

ing device software allowed agents to set up a geofence around certain locations); United States v. Hermiz, 42 F.Supp.3d 856 (EDMi Aug.29, 2014) (officers placed geofence around residence so whenever the target vehicle got to a certain point heading towards the residence the officer would receive an electronic notification); United States v. Lopez, 895 F.Supp.2d 592 (Dist. Delaware Sept 10, 2012); United States v. Cabrera, 2014 U.S.Dist. LEXIS 96288 (Dist. Delaware, July 16, 2014); United States v. Berry, 664 Fed. Appx. 413 (5th Cir. 2016). In United States v. Jones, 565 U.S. 400 (2012), the Supreme Court found that installation of a GPS tracker to monitor a vehicle’s movements constituted a “search” under the Fourth Amendment thus requiring a warrant. Justice Scalia, writing for a unanimous court, rejected the Government’s argument that there is no reasonable expectation of privacy in a person’s movement on public roads. The Court found little difference between collecting information from a person’s vehicle using a GPS device and committing a physical trespass onto private property. In her prescient concurring opinion, Justice Sonia Sotomayor agreed that the Government had invaded the defendant’s property. She reasoned that the Fourth Amendment was not just about actual physical trespasses; rather, a prohibited search occurs whenever the Government violates a subjective expectation of privacy that society recognizes as reasonable, even when there is no actual (as opposed to virtual) physical

intrusion. Justice Alito concurred but believed the pertinent question is whether the defendant had an expectation of privacy in the information rather than whether the law enforcement action constituted a “search”. The suggestion that the Court focus on privacy rights, predictably found Justices Ginsburg, Breyer and Kagan joining Justice Alito’s concurring opinion.

When Police Have Identified a Suspect and Want to Track His Movements: Carpenter v. United States In Carpenter v. United States 585 U.S.__, 138 S. Ct. 2206 (2018), decided six years after Jones, a majority of the Supreme Court held the Government’s warrantless collection of weeksworth of cell site location information (CSLI) was a Fourth Amendment “search”. There, a suspect was arrested in a string of armed robberies of Radio Shack stores and provided names and phone numbers for fifteen accomplices to the FBI. Carpenter was one of the alleged accomplices. Federal prosecutors sought cell phone information from cell carriers through

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the Stored Communications Act (SCA)4 rather than obtaining a warrant. Prior to Carpenter, the SCA did not require prosecutors to demonstrate probable cause. They only had to show “specific and articulable facts constituting reasonable grounds to believe” that the data was relevant to an ongoing criminal investigation. MetroPCS and Sprint, Carpenter’s cell carriers, provided location points for a 127-day period. This information was then used to charge Carpenter with the armed robberies. Carpenter moved to suppress the CSLI as an illegal search. The district court denied the motion and the Sixth Circuit affirmed. Relying on the “Third Party Doctrine” the Circuit Court held that people do not have a reasonable expectation of privacy in records they voluntarily provide to third parties like banks and utility companies. See United States v. Miller, 425 U.S. 435 (1976) and Smith v. Maryland, 422 U.S. 735 (1979)

4 Pursuant to 18 U.S.C. §2703(d), the Government may require the disclosure of telecommunications records when “specific and articulable facts show that there are reasonable grounds to believe the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation”. The records subject to disclosure include the date and time of calls, and the approximate location where calls began and ended based on their connections to cell towers--“cell site” location information (CSLI).

The Supreme Court, in a 5-4 decision written by Chief Justice Roberts (joined by Justices Ginsburg, Breyer, Kagan and Sotomayor), sided with Carpenter. Looking to the seminal case of Katz v. United States 389 U.S. 347 (1967),5, the majority narrowly held that Carpenter had a reasonable expectation of privacy in his physical movements. Therefore, law enforcement officers needed a warrant to obtain months-worth of CSLI information. While the Court declined to extend the warrant requirement to all CSLI, it said more than a week’s worth of information was too intrusive, focusing on the unique nature of cell phone and cell site records. Noting the Third Party Doctrine originated years before the internet was invented, the Court still deemed it viable but distinguished traditional business records from a phone carrier’s affirmative collection and aggregated storage of CSLI. (For a good discussion on this point see “Surveillance Tech Still a Concern After Carpenter”, Matthew Feeney, Cato At Liberty, June 25, 2018 www.cato.org/blog/surveillance-techstill-concern-despite-carpenter (Carpenter recognized that cell phone records were different from records in existence when the Third Party Doctrine was developed:”‘[W]hen the Government 5 Suspecting Katz was using public phones to gamble on sports, federal agents installed an eavesdropping device on the outside of a payphone booth Katz used. Deciding that the absence of a physical intrusion into the phone booth itself was not dispositive, the Supreme Court held a Fourth Amendment “search” had occurred (only Justice Marshall dissented). The idea that the Fourth Amendment provided a “reasonable” expectation of privacy came from Justice Harlan’s concurrence. Justice Potter Stewart famously wrote for the majority “The Fourth Amendment protects people, not places”.

tracks the location of a cell phone it achieves near perfect surveillance as if it had attached an ankle monitor to the phone’s user’, allowing the Government to travel back in time to trace the user’s behavior”). The Jones Court viewed GPS devices as a threat to personal privacy that necessitated a higher “probable cause” showing and required a warrant before law enforcement could use them to collect evidence. In his dissent in Carpenter, Justice Kennedy argued that GPS tracking, like that in Jones, with its ability to pinpoint a subject’s location much more accurately than CSLI’s reliance on triangulating information from cell towers, was more intrusive6. Justice Roberts responded that modern cell phones may rely on GPS for tracking in addition to CSLI. Justice Roberts noted that the amount of data in a smartphone may exceed even the contents of our homes which traditionally have been the most protected constitutional spaces. The majority opinion referenced the Court’s unanimous decision in Riley v. California 573 U.S. 373 (2014) (also authored by Justice Roberts) which held that the warrantless search of a cell phone was unconstitutional. Riley had his cell phone in his pocket when he was arrested. A gang unit detective analyzed videos and photographs that were stored on the phone of Riley making gang signs. The Court held that the warrantless search of Riley’s cell phone violated his Fourth Amendment rights. The volume of personal information stored on, and able to be retrieved from, a cell phone which then allowed retrospective searching concerned the 6 Rather than relying on cellular networks, GPS tracking uses satellites to triangulate a user’s exact location. WiFi location technology uses network signal strength to estimate distance.

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Geofencing Continued from previous page majority. Carpenter, 138 S. Ct. at 2218. That same concern about information stored on a cell phone in Riley extended to information stored by cell towers in Carpenter. The four dissenting opinions in Carpenter frame the present-day arguments about whether there is an individual privacy right in cell phone location information, whether CSLI constitutes “property” (as distinguished from physical property) for purposes of the Fourth Amendment and, if so, who owns it: Justice Anthony Kennedy, in his dissenting opinion, was joined by Justices Clarence Thomas and Samuel Alito. In finding cell-site records are no different from the many other kinds of business records the Government has a lawful right to obtain, Justice Kennedy believed the majority was improperly restricting law enforcement’s access to such records. Justice Thomas filed a separate opinion, in which he not only agreed that the Fourth Amendment should be limited to actual trespasses onto physical property but asserted that the determining factor should be who owned the searched property. Concluding that the CSLI did not belong to Carpenter, he could not object to the search of someone else’s property. Filing a dissenting opinion, Justice Alito (in which Justice Thomas joined) distinguished between an actual search and an order “merely requiring a party to look through its own records and produce specified documents”— with the former being far more intrusive than the latter. Like Justice Thomas, Justice Alito criticized the majority for what he characterized as “allow[ing] a defendant to object to the search of a third party’s

property,” a departure from long-standing Fourth Amendment doctrine. Justice Gorsuch in his dissenting opinion emphasized the “original understanding” of the Fourth Amendment. Concluding that Katz had been incorrectly decided, Justice Gorsuch found no “reasonable expectation of privacy” had been granted by the Fourth Amendment which was limited to unreasonable searches of physical property. The tension between individual privacy rights versus police surveillance and invasive Government practices was evident in Jones, Riley and Carpenter. The dilemma the Court will soon face is how to balance the cell phone user’s intention to stay “private” and not be tracked in light of the capabilities of cell carriers and technology companies to collect location data. (see pp. 10-12 infra); see generally testimony of David A. Clarke (law professor at University of District of Columbia) before the House of Representatives Committee on Oversight and Reform Hearing on Facial Recognition Technology: Its Impact on our Civil Rights and Liberties, May 22, 2019.

Google Maps) and apps (e.g. Google Weather) that collect location data; and 2) modern cell phones have two “processors”: the Baseband Processor (the “phone”) and Application Processor (“the computer”). “COMSEC: Off-theGrid Communications Strategies for Privacy Enthusiasts, Journalists, Politicians, Crooks and the Average Joe”, Justin Carroll & Drew M. 2018

How “Location History” [LH] Works on a Cell Phone

The Baseband Processor is a cellular modem that connects to a phone network using a radio signal timed to the network’s clock. Baseband processors have not changed much over the years. The Federal Communications Commission requires that all devices that interact directly with a cellular network be certified. Cell phone companies figured out that separating the baseband processor from the application processor relieves them from having to get the entire device certified. That way the application processor (“computer”) operating system (APOS) can be updated frequently without going through a lengthy certification process each time. Id.

In the context of location services and tracking, there are two important things to understand about cellphones: 1) many of the most popular cellphones, including iPhone, Android, Samsung and LG, use a Google search engine (chrome), Google location services (e.g.

Baseband processors are not physically accessible or accessible through software settings to the user. So as long as the device has power (i.e. has a battery installed) the baseband processor may be on. Initiating the “powering down” sequence only impacts your device’s

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Application Processor (AP). Therefore, your device cannot be fully turned off unless the battery is removed. The problem is that most manufacturers have moved to sealed housings which make it impossible for users to remove and replace the battery. There are good design reasons for eliminating replaceable batteries. The consequence is that we not only cannot see what our phone is doing, we cannot stop it. Turning off location services on the application processor through software settings has no effect on the baseband processor which is constantly engaged. Whether your phone is visibly powered on or off does not necessarily determine whether your location can be tracked7. Id. The Application Processor (“the computer”) uses Wi-Fi (accesses the internet wirelessly- think of it like a radio that can send and receive information), 7 The cell carrier can access the baseband processor at will through the device’s microphone and camera. Law enforcement can do real-time GPS tracking with a cell phone by asking the phone company to “ping” the target phone to discover its real time location. The Government can also use its own technology rather than relying on the phone company. For example, “stingrays” or cell-site simulators are devices that police can use to directly track cellphones so they can cut the phone company out of the middle. (tricking nearby phones into revealing their location information believing the simulator is an actual cell site) They can also obtain a record of outgoing/incoming calls, texts and listen-in on a call. Id.

Bluetooth and NFC (near-field communications) interfaces. Wi-Fi and Bluetooth can be used to track your movements through the router and/or network your phone is connected to. Apps can see the networks within the range of the device. Therefore, even those networks your phone is not connected to, play a role in location monitoring.

Geofence Warrant A geofence warrant allows the search of a database to identify mobile devices in a particular physical location or within specified geographical limits. Sensorvault, originated in 2009, is the internal Google database of users’ historical cell and GPS location data8. The database is accessed by Google to respond to geofence (reverse location) warrants. Using over 10 years of its collected historical data, Google can identify all devices within the vicinity of a specific crime or other geographic area9. A “cell tower dump” may be able to place a user within a quarter mile or greater radius of a particular cell tower(s); whereas Google’s location data using cell network plus GPS coordinates can place a user inside a building or even identify the exact point where

he/she was standing on the street. Law enforcement advocates argue that privacy rights are not compromised by geofence warrants because they are done in two stages: the first stage asks for anonymous identifiers and locations for all phones in a particular area at a particular time. Then only after movement patterns are correlated with potential suspects, witnesses or other evidence do they request those users’ names and specific information. Google is not the only entity that has a program like Sensorvault. In 2013, Edward Snowden disclosed that the National Security Agency (NSA) collects and stores location data worldwide without court authorization using a program called “Co-Traveler” (its database is called “FASCIA”) NSA claims it ended that program in 2014. See “Meet Co-Traveler: The NSA’s Cell Phone Location Tracking Program”, Electronic Frontier Foundation (EFF), December 5, 2013 (eff.org). Apple does not track the geolocation of devices and therefore does not have the ability to identify all Apple devices near a given location at a particular time. However, many Apple devices use Google software or other apps. In January, Fast Company reported that prosecutors had issued warrants for account information for users of Apple, Facebook, Uber, Lyft and Snapchat. “This unsettling practice turns your phone into a tracking device for the Government”, Albert Fox Kahn, Jan. 17, 2020 (“These requests included ‘user information for accounts that were active at those specific longitudes and latitudes at those specific times’. We don’t know how much data was handed over, just that the request was made”). Continued on next page

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Geofencing Continued from previous page

The “Reverse Location Warrant”: Working Backward from the Carpenter problem — when police want to track movements of unknown people in a particular area Ninety-six percent of Americans own cell phones. Google Maps is the mostused navigation app and appears on 67% of phones. The next most-used is Waze which is also a Google -owned app. Android operating systems developed by Google control 90% of the smartphone market share worldwide. “Google location data helped police find an alleged bank robber, possibly illegally”, Washington Post (infra) Nov. 21, 2019. According to Google employees, and first publicly reported last year in North Carolina, federal agents first used

geofence warrants in 2016. It is unclear how often those search requests have led to arrests or convictions because many of the cases are still open and judges frequently seal warrant applications. This practice has spread to local police departments across the country. One Google employee said in 2019 the company received as many as 180 requests in a single week. Id. See also “Have a Search Warrant for Data? Google Wants You to Pay”, Gabriel J.X. Dance and Jennifer ValentinoDeVries, New York Times, Jan. 24, 2020 ( www.nytimes.com/2020/01/24/ technology/google-search-warrantslegal-fees.html ). Writing for the blog Lawfare, Nathaniel Sobel explained:

“Last year, a New York Times feature detailed law enforcement’s use of a new investigative technique called a geofence warrant. Unlike traditional warrants that identify a particular suspect in advance of a search, geofence warrants essentially allow the Government to work backwards. These warrants compel a technology company (so far, only Google) to disclose anonymized location records for any devices in a certain area during a specified time period. After that, for certain accounts, the Government may obtain additional location data and subscriber information. Particularly in light of the Supreme Court’s watershed decision in Carpenter, geofence warrants present a host of new Fourth Amendment issues.” “Do Geofence Warrants Violate the Fourth Amendment?”, Nathaniel Sobel, Lawfare, Feb 24, 2020

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the same Honda Accord. The police collected video from home security cameras nearby which depicted the suspects entering a white Honda CRV. Police concluded the Honda CRV was the remote getaway vehicle for the robbery. They speculated the suspects may have used cell phones when doing reconnaissance to pick their rendezvous point or the getaway driver may have been on his phone passing time during the robbery. The Milwaukee District Attorney’s Office requested location data from Google surrounding the area where the Honda CRV was spotted. They asked for an anonymized list of every phone between that location and the site of the robbery. Id. The supporting affidavit for the geofence warrant filed in the United States District Court for the Eastern District of Wisconsin is available on Pacer at 2:19-mj-00857 [doc. 1 filed on January 16, 2020]. (A copy of the affidavit is attached).

In response to geofence warrants, Google provided 1,494 identifiers from its Sensorvault for phones in the vicinities of the [series of arsons in Milwaukee] to the ATF.

Recent incidents in Milwaukee, Wisconsin highlight the vast amount of information which can be quickly made available to law enforcement. In 2018 and 2019 there were a series of arsons in Milwaukee. In response to geofence warrants, Google provided 1,494 identifiers from its Sensorvault for phones in the vicinities of the fires to the ATF. See “Police get “unprecedented” data haul from Google with geofence warrants”, Lisa Vaas, Dec. 16, 2019 (https://nakedsecurity.sophos.com/2019/12/16/police-getunprecedented-data-haul-from-googlewith-geofence-warrants/ 10 In that case, investigators asked for identifiers for phones located within about a 7 acre-square radius over a 9 hour period during covering 4 separate incidents. See also “To catch a thief, go to Google with a geofence warrant and it will give you all the details”, The Register, Thomas Claburn Jan 18, 2020 (www.theregister. co.uk). Another case in Milwaukee shows how geofence warrants are being used in conjunction with traditional law enforcement techniques. On April 20, 2019, four people attempted to rob a Brinks truck. The Brinks driver narrowly escaped according to an affidavit from a member of the Milwaukee Crime Task Force signed on May 8, 2019. The robbers fled in a green Honda Accord without license plates. The next morning police discovered a burning vehicle later determined to be

A Case Study – United States v. Chatrie Currently, the most important geofence case is United States v. Chatrie, pending in the United States District Court for the Eastern District of Virginia (Richmond Division, 19-cr-00130). There, a bank in Richmond, Virginia was robbed on May 20, 2019. Blurry surveillance footage showed the suspect holding a cell phone to his ear before he entered the bank. A month later, state law enforcement officials obtained a geofence warrant from a state judge. The warrant authorized a 3-step process allowing law enforcement, without seeking further judicial approval, to compel Google to produce increasingly detailed data on

certain suspects. A detective submitted the warrant to Google through an established online law enforcement portal. Eventually the suspect was identified, arrested and charged in federal court. See “Alleged bank robber accuses police of illegally using Google location data to catch him”, Deanna Paul, Washington Post, Nov. 21, 2019. The first step authorized under the warrant was the examination of anonymized location records for any “Google account that is associated with a device” within 150 meters of the bank in the one-hour window of the robbery. There was a large church next door to the bank with no connection to the crime and which implicated First Amendment issues. The first step generated 19 anonymized account records. One account’s location data placed it in the bank at the time of the robbery and allegedly corroborated a witness’s observation of a suspect’s whereabouts before the crime and surveillance footage of the robber leaving the bank. In the second step the Government requested another round of anonymized location data for nine of the nineteen accounts. The Court had no oversight over the people chosen for further search and the warrant also permitted investigators to track devices “anywhere outside the [initial 150 meter] geofence”. In this round the Government sought data during the 30 minutes before and after the original hour-long period in the first step. The Government alleged that the suspicious account travelled from the bank to a residence after the robbery. Using that address, the Government was able to obtain records that linked a person’s name to that residence and then used it to search other databases for more information about the suspect. Continued on next page

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Geofencing Continued from previous page

In the third step, law enforcement requested Google tell them the subscriber information for the suspect account and two other accounts. The name linked to the residence matched the email address and username on the Google account. The account holder was ultimately indicted by a federal grand jury on Sept. 17, 2019. Relying on Carpenter, the Defense11 argues that geofence warrants are just a different form of general warrants. They do not identify a suspect and allow the search of persons’ accounts who may have absolutely no connection to the crime. Second, like the cell phone records in Carpenter “google location records are qualitatively different from the business records to which the third-party doctrine traditionally applies.” Third, the defendant did not “voluntarily” share his location data with Google because carrying a cell phone is “indispensable to participation in modern society” and it was unreasonable “to expect ordinary phone users to avoid Google software”. The Government’s position is that “the defendant had no reasonable expectation of privacy in any of the information disclosed by Google pursuant to the geofence warrant” because: 1) the Google data dealt with a much shorter period than the cell site location information in Carpenter, 2) it did not provide information about a known 11 Mr. Chatrie is represented by the Laura Jill Koenig and Paul Geoffrey Gill of the Office of the Federal Public Defender and Michael William Price of the National Association of Criminal Defense Lawyers (pro hac vice).The Government is represented by Kenneth R. Simon, Jr. and Peter S. Duffey of the United States Attorney’s Office in Richmond. Google appeared through Wilmer Cutler Pickering Hale & Dorr, LLP (Brittany Blueitt Amadi, Alex Campbell Hemmer and Catherine Mary Agnes Carroll, Of Counsel).

phone user’s location like the Court was concerned about in Carpenter (the information here was anonymized) and 3) Google required users to opt-in to allow the company from obtaining location information.

acterizing the former as a detailed journal of a person’s travels. It maintained geofence information is not comparable to cell site information or so-called cell tower dumps because the data is much more precise in its use of GPS.

The Government relied on two recent cases. One court rejected a particularity challenge to a cell tower dump warrant that allowed the Government to identify cell phone users within geographic and time limitations. The Government analogized the cell tower dump warrant to a geofence warrant. The Government also relied on a decision in the PlayPen child pornography investigation (Network Investigative Technique – NIT) which authorized the FBI to search computers of everyone who logged onto a child porn site for 30 days and allowed agents themselves to narrow the information they initially received under the warrant without first going back to seek court approval. The Government also asserted that if the court found a particularity problem it could sever the offensive part of the warrant from the first step.

Google stressed that users had to “opt-in” to voluntarily share their location12. While agreeing that a warrant was necessary for police to obtain LH information, Google found fault with the Defense position that a geofence warrant was overly broad:

An amicus brief was submitted by Google, not in support of either party but rather to provide “context” for the location data and to assist the Court [dkt 73, filed 12/23/19] (copy of brief attached). It argues users had a reasonable expectation of privacy in their user information which Google simply stored (as opposed to Google having an ownership interest in records it did the work to collect and thus having an expectation of privacy in its own records). Google took the position that a warrant was necessary under both the Stored Communications Act (SCA) and the Fourth Amendment. Google distinguished the geofence data from traditional business records, char-

“Mobile device users cannot opt out of the collection of CSLI or similar records, nor can they retrieve, edit, or delete CSLI data. Google LH information, by contrast, is stored with Google primarily for the user’s own use and benefit—just as a user may choose to store her emails on Google’s mail service and her documents on Google Drive. Google LH information is controlled by the user, and Google stores that information in accordance with the user’s decisions (e.g., to opt in or out, or to 12 Cf. “COMSEC: Off-the-Grid Communications Strategies for Privacy Enthusiasts, Journalists, Politicians, Crooks and the Average Joe”, Justin Carroll & Drew M. 2018 at p.10 (“Location Tracking: Because th[e baseband] processor may be constantly engaged in may be collecting your location at all times. We consider this to be one of the greatest threats to your privacy. All Smartphones now offer the ability to somewhat control location services on the application processor level through software settings. It is impossible to control the baseband processor, however. One noteworthy example of this is the Android phone debacle that made news in late 2017. The online magazine Quartz broke a story in late December detailing Android’s data collection. Even with location services fully disabled, it turns out that Android phones were still reporting their location to Google (the maker of the Android AP operating system). . . Even with location services completely disabled and no SIM card present, devices were able to record their locations in relation to cellular towers. Google admitted to this practice immediately and agreed to end it. This still does not protect you from the cellular carrier however.” (pp. 2-3); See “Google collects Android users’ locations even when location services are disabled”, Keith Collins, Quartz, Nov. 21, 2017

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that Google falsely led users to believe that disabling the “Location History” setting on Android phones would stop the company from collecting their location data. But users were actually required to also turn off a second setting, “Web and App Activity,” that was enabled by default. Google did not properly disclose the need to disable both settings from January 2017 until late 2018, the suit alleges. The company changed its user guidance after The Associated Press revealed in August 2018 that it was continuing to collect the data even after the Location History setting was switched off ”. “Google Misled Consumers Over Location Tracking, Australia Says”, Isabella Kwai, New York Times, Oct. 29, 2019; See also See “Google collects Android users’ locations even when location services are disabled”, Keith Collins, Quartz, Nov. 21, 2017; “Android devices seen covertly sending location data to Google”, TechCrunch, Natasha Lomas, November 21, 2017.

Even when users opted-out, Google was able to track user locations. While not as exact as GPS, by triangulating cell towers which were servicing a specific device, Google could narrow the user’s location to within a quarter mile or less save, edit or delete the information), including to enhance the user’s experience when using other Google products and services. Supra pp.6-8. Defendant thus errs in asserting that “[i]ndividuals do not voluntarily share their location information with Google”, Mot. 10, and that the acquisition of user location records by Google is “automatic and inescapable”, Reply 6. As discussed, Google does not save LH information unless the user opts into the LH service in her account settings (and logs into her Google account while using a properly configured mobile device), and the user can choose at any time to delete some or all of her save LH information or to disable the LH service completely. And LH information was the only location information produced to the Government in response to this geofence warrant” (Amicus Brief at p.9) These assertions are at odds with claims that have been made since 2017 that Goggle continues to collect location information even when the user “optsout”. As reported in the New York Times on October 29, 2019, Google is currently being sued over its data collection practices. In a lawsuit believed to be the first of its kind by a national Government against a tech company, the plaintiff cites Google’s use of personal data: “The Australian Competition and Consumer Commission alleged in a lawsuit

Other apps and Google services which run on your phone collect location information even when you opt-out of LH: “Google says that will prevent the company from remembering where you’ve been. Google’s support page on the subject states: “You can turn off Location History at any time. With Location History off, the places you go are no longer stored.” That isn’t true. Even with “location history” paused, some Google apps automatically store time-stamped location data without asking”. “Google records your location even when you tell it not to: Some services on Android and iPhone automatically

stores your movements even after you pause the ‘location history’ setting”, Associated Press, The Guardian, Aug. 13, 2018. The term “location services” oftentimes refers to exact GPS data for app usage, such as Google Maps finding your best commute route, or Uber figuring out exactly where you’re waiting so drivers can pick you up. However, even when users opted-out, Google was able to track user locations. While not as exact as GPS, by triangulating cell towers which were servicing a specific device, Google could narrow the user’s location to within a quarter mile or less: “A source familiar with the matter stated that Google added the cell tower data-collecting feature to improve its Firebase Cloud Messaging, where devices have to ping the server at regular intervals in order to receive messages promptly. The findings are surprising, given that cell tower data is usually held by carrier networks and only shared with outside companies under extreme circumstances. Through Google’s practices this year, an individual’s particular location within a quarter-mile radius or less could be determined with the addresses of multiple cell towers. This has particular security implications for individuals who wish to not be tracked, meaning that the safest way to avoid being tracked at all is probably to stick to burner phones. It could also create a bigger target for hackers looking to obtain personal information. An update that removes this cell tower data-collecting feature will roll out by the end of this month, according to Google. Google’s terms of service, at the time of [publication], still vaguely state, “When you use Google services, we may collect and process information Continued on next page

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Geofencing Continued from previous page about your actual location” using “various technologies... including IP address, GPS, and other sensors that may, for example, provide Google with information on nearby devices, Wi-Fi access points and cell tower.” Google does offer details on how to control Google’s location access points. But as shown by its [terms of service], the company could admittedly do a better job of making this clearer and simpler for its general consumers.”

Government’s use of Google’s Sensorvault Data is a road map for anyone handling a case which involves this technology [Dkt. 28 filed 10/29/19] and is attached at the end of this article.

“Google admits it tracked user location data even when the setting was turned off: It did so via cell tower data”, Shannon Liao, The Verge, Nov. 21, 2017 (https://www.theverge. com/2017/11/21/16684818/google-location-tracking-cell-tower-data-androidos-firebase-privacy)

The use of geofence warrants have earned criticism where they have led to the wrongful arrest of innocent people. For example, Jorge Molina, a warehouse worker in Arizona was arrested in December 2018 for a drive-by murder after police obtained information using a geofence warrant. After spending a week in jail and providing alibi information that he was somewhere else when the shooting occurred, he was released. Three months later police then arrested his mother’s ex-boyfriend who occasionally used Molina’s car. “Tracking Phones: Google as a Dragnet for the Police”, Bill Barton, Criminal Legal News Sept. 16, 2019 (www.criminallegalnews.org); “Tracking Phones, Google Is a Dragnet for the Police”, Jennifer Valentino-DeVries, New York Times, Apr.13, 2019. (“The tech giant records people’s locations worldwide. Now, investigators are using it to find suspects and witnesses near crimes, running the risk of snaring the innocent”).

The Chatrie Court scheduled a hearing on Defendant’s “Motion to Suppress Evidence Obtained from a “Geofence” General Warrant” for July 2, 2020 at 09:30 AM before District Judge M. Hannah Lauck13. The Defendant’s motion for discovery regarding the 13 “In 2014, M. Hannah Lauck was unanimously confirmed by the Senate to serve as United States District Judge in the Richmond Division of the Eastern District of Virginia. She is the first woman to serve in this position. Prior to becoming a district judge, Judge Lauck had served as a United States Magistrate Judge since May of 2005. She is a member of the Virginia and District of Columbia bars, and the Fourth Circuit Judicial Conference. Judge Lauck received her B.A. in Political Science from Wellesley College, magna cum laude and Phi Beta Kappa, in 1986. She received her J.D. in June 1991 from Yale Law School. After law school, she clerked for the Hon. James R. Spencer in the Richmond Division of the Eastern District of Virginia. Judge Lauck then worked in a Washington, D.C., law firm. In 1994, she began her ten-year tenure as an assistant U.S. attorney, prosecuting both civil and criminal cases. Before becoming a judge, Judge Lauck served as a supervising litigation attorney at the headquarters of Genworth Financial, Inc., a Fortune 500 company based in Richmond.” Virginia State Bar (vsb.org)

Geofence warrants also raise First Amendment concerns about a person’s freedom of association (e.g. targeting political rallies, meetings, etc.)

Mistakes Lead to the Arrest of Innocent People

Another widely reported case involved the arrest of Zachary McCoy in Florida,

who used a fitness app14 to track his bike rides and often rode his bike to work. Police used a geofence warrant to investigate the burglary of an elderly woman’s home on Zachary’s regular bike route. He had biked past the house three times on the day of the crime and was deemed a suspect. Google’s legal team sent him a letter in January advising that police had requested information about his account that would be released in a week. His parents loaned him money for a lawyer who learned the request for information resulted from a geofence warrant. According to The Verge, law enforcement requests for geofence warrants rose 1500 percent from 2017-2018 and another 500 percent from 2018-2019. “Google location data turned a random biker into a burlary suspect”, Kim Lyons, The Verge, March 7, 2020.

First Amendment Geofence warrants also raise First Amendment concerns about a person’s freedom of association (e.g. targeting political rallies, meetings, etc.). Last 14 As of August 2018, members of the military on deployment were prohibited from using fitness trackers, personal phones or other devices with geolocation features in operational areas: “These Global Positioning System capabilities can expose personal information, locations, routines and numbers of DoD personnel.” “New Policy Prohibits GPS Tracking in Deployed Settings”, Aug. 6, 2018, Jim Garamone, DOD News. For a good summary of cases involving these technologies see “Electronic Evidence in Criminal Investigations and Actions: Representative Court Decisions and Supplementary Materials”, Ronald J. Hedges, Editor (Sept. 2019)

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

Other Technologies The dilemma the Court will soon face is how that Raise Privacy to balance the cell phone user’s intention to Issues stay “private” and not be tracked in light of Google Nest and the capabilities of cell carriers and technol- Amazon Ring are home security camera ogy companies to collect location data summer the Manhattan District Attorney’s office used a geofence warrant to investigate a politically-motivated assault. The Defendants, pro-Trump supporters called the “Proud Boys”, allegedly attacked several leftist protesters. Prosecutors sent Google a warrant requesting records of cell phones in the area the fight calling it a “reverse location” search warrant. Google forwarded an “anonymized list”15 of Google device ID’s for several specific locations. Authorities then used spreadsheets to cross-reference the numbers to see which ones showed up at more than one location. When the assault and riot charges against four “Proud Boys” went to trial, prosecutors revealed that they had used a reverse search warrant but that they hadn’t done so to find the Proud Boys suspects—they did it to find protesting members of a rival group that were believed to be victims of the assaults. By process of elimination, however, they eventually discarded all of the device numbers as belonging to any of the victims. “Manhattan DA got Innocent People’s Google Phone Data Through a “Reverse Location” Search Warrant”, George Joseph, WNYC, Aug.12, 2019

15 Cf. Paul Ohm, Groken Promises of Privacy: Responding to the Surpising Failure of Anonymization, 57 UCLA L.Rev. 1701, (2010) (gathering research on the science of “reidentification” from alleged anonymized information to show true anonymization is an impossibility); see also Stuart A. Thompson & Charlie Warzel, “Twelve Million Phones, One Dataset, Zero Privacy”, N.Y.Times (Dec. 19, 2019)

systems with cloudbased storage. Amazon-owned Ring with its ubiquitous doorbell cameras has entered into agreements with over 600 police agencies. Homeowners opt-in or out of a program which allows police to request and download video recorded by the motion-detection, internetconnected cameras inside and outside their homes. Police can keep the video and share it with whomever they’d like without any initial showing of probable cause. They can request up to 12-hours of video from anyone within half a mile of a suspected crime over a 45-day periods as long as they include the case number for the crime they are investigating without reference to evidence or other details of the crime. Ring is now even developing near realtime (NRT) facial recognition capabilities to add to its cameras. Homeowners themselves can share the footage on the Ring social network “Neighbors”. The “Neighbors” app includes a law enforcement portal. Police can post alerts and request video from people who live near a crime scene. The portal tells police whether any of the cameras in the area recorded a video around the time of the crime. Police get access to the portal by entering an agreement with Ring. Ring provides cameras to the police and in return the police give Ring access to the police department’s call logs or incident reports which it then uses to post alerts on Neighbors.

“Police can keep Ring camera video forever and share with whomever they’d like, Amazon tells Senator”, Drew Harwell, The Washington Post, Nov.19, 2019; “Amazon is developing high-tech surveillance tools for an eager customer: America’s Police”, Jon Schuppe, NBC News Aug.8, 2019 (www.nbcnews.com); See also “Smart Home Surveillance: Governments Tell Google’s Nest To Hand Over Data 300 Times”, Thomas Brewster, Forbes, Oct 13, 2018 (A smart home is a surveilled home. “On Friday Forbes revealed the first known case in the U.S. in which Nest handed over surveillance feeds and customer data from its cameras. Indeed, it appears to be the first documented case of Nest assisting law enforcement in such a manner anywhere in the world. The information was provided to investigators looking into a $1.2 million fraud perpetrated by a rap crew that had taken control of surveillance technology tracking 95% of Americans.”). There are a number of gadgets that police will soon be able to carry with them to help in pursuit situations. Pocket drones (UAS-unmanned aerial systems) are small, inexpensive drones that attach to a cell phone case and stream video back to a phone. So if the police are chasing a suspect and need an aerial view they just deploy the drone. GPS-equipped darts stick to a fleeing vehicle and let authorities track the vehicle’s movements without a high-speed pursuit. The FBI has developed a database called “Next Generation Identification” (NGI) which is the world’s largest and most efficient electronic database of biometrics (DNA/fingerprints) and criminal history information. Some agencies

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Continued on next page

Geofencing Continued from previous page are using INK (Identity Not Known), a device to scan a suspect’s fingerprint and match it to identity information in a database in under a minute. “Shotspotter” uses sensors to detect gunshots, track the location and relay it to police. Handheld thermal imaging devices can be used to track the motion of suspects in a darkened environment. Automatic License Plate Recognition (ALPR) that is used to scan your license plate to collect highway tolls is also used by the police to speed up the process of checking a plate against a database. ALPR cameras can be mounted in tollbooths, intersections or in police cars. Multiple cameras can capture images of the license plate to track a vehicle’s movement over time. See “10 Innovative Police Technologies”, Erik Fritsvold, PhD, University of San Diego Law Enforcement and Public Safety Leadership 2020. Amazon’s Web Services provides secure cloud storage to various law enforcement agencies. In addition it provides other tools such as speech-to-transcription service that allows analysts to flag jail calls with keywords such as “gun”. Amazon is developing “voice biometrics” which could identify participants on a jail call or other call by the sound of their voice. Senators Lindsey Graham (E-SC) and Richard Blumenthal (D-CT) in March introduced anti-encryption legislation that would require every message sent to be scanned by Governmentapproved software and would prohibit companies from encrypting messages [Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT Act). See also “CISA: the dirty deal between Google and the NSA that no one is talking about” Evan Greer

& Donny Shaw, Juy 29, 2015 (The Hill, www.thehill.org) (cybersecurity information sharing act – companies given expanded authority to monitor their own users and given immunity from virtually all existing surveillance laws, are encouraged to share information regarding “cyber threat indicators” with the Government).

The Impact of Location Tracking for Fighting Coronavirus (COVID-19) U.S. Chief Technology Officer Michael Kratsios recently met with a task force comprised of federal agency officials, representatives from Harvard and executives from Google, Facebook, Twitter, Microsoft, Amazon and 55 other tech companies to discuss ways to use smartphone location data to battle the coronavirus. (3/20/20 TheVerge. com “Tech Companies could face more pressure to share location data with Governments to fight coronavirus”, Casey Newton; “Facebook, Google discuss sharing smartphone data with Government to fight coronavirus, but there are risks”, Sheng, 3/19/20, cnbc.com,; thenextweb.com, “The US wants to track your phone’s location data to help limit the spread of coronavirus”, Mehta, 3/19/20). The information could include “tracking whether people are keeping one another at safe distances to stem the outbreak” (“U.S. Government, tech industry discussing ways to use smartphone location data to combat coronavirus”, TheWashingtonPost.com, Romm/ Dwoskin/Timberg, 3/17/20). As it turns out this is not a new concept. Facebook has previously provided aggregated, anonymized location data since 2017 to track and map population movements during natural disasters and

disease outbreaks and the database is accessed by 125 nonprofits and research institutions. The same tools used to track movement can also track whether people are staying in place. Israel and England already use such cellphone surveillance. Israel is sending customized texts to people telling them they had been in proximity to another person who has tested positive for the virus. The Israeli Government had not disclosed its capability to tap into citizens’ location data until this crisis (see New York Times, “To Track Coronavirus, Israel Moves to Tap Secret Trove of Cellphone Data”, 3/16/20, Halbfinger/ Kershner/Bergman)(data secretly gathered to combat terrorism since 2002 being used for public health effort). The text also contained a quarantine order. In England, the Government is working with a telecom company, as opposed to a tech company, to see how citizens in London are reacting to social distancing and transport restrictions. See also The Wall Street Journal, 3/22/20, Grind/ McMillan/Mathews, “To Track Virus, Governments Weigh Surveillance Tools that Push Privacy Limits”) (Geolocation services track locations of people in vectors of infection and facial-recognition systems can identify photos who came into contact with infected individuals); Business Insider, 3/17/20, “Google, Facebook, and other tech companies are reportedly in talks with the US Government to use your location data to stop the coronavirus—and to see if social distancing is really working”, Holmes). Such information could be used to enforce prohibitions of groups of 10 or more, shelter-in-place orders to help map and determine likelihood of

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

cording to the Government, no central database exists and users can delete the app if they was to stop being tracked. See “Use of Tracking Technology Meets Resistance in Europe”, Michael Birnbaum & Christina Spolar, Washington Post, April 19, 2020; see also “COVID-19 Phone Location Tracking: Yes, It’s Happening Now— Here’s What You Should Know”, Zack Doffman, Forbes Mar 27, 2020.

Austria's “Stop Corona” app…uses the Bluetooth transmitter on users’ phones to monitor other phones in their vicinity. That information is stored on the phone so if the person later suspects he or she has come down with COVID-19 that information can be uploaded from the app to alert others transmission of the virus. Vox, “The Government might want your phone location data to fight coronavirus. Here’s why that could be okay”, 3/18/20, Morrison: “Cellphone location data is seen as particularly sensitive because of the immense amount of personal information that can be gleaned from it. The Federal Communications Commission (FCC) recently moved to issue massive fines to cellular phone carriers that were accused of selling individual location data. Here the Government is seeking not an individual’s data but aggregated information impossible to trace back to individuals. (Different from the “health code”, a QR code assigned to users in China restricting their movements, reporting their location to law enforcement, or allowing people to check if they have been in close contact with someone infected with the virus). Austria has launched coronavirus tracking technology. Its “Stop Corona” app, released by the Austrian Red Cross, uses the Bluetooth transmitter on users’ phones to monitor other phones in their vicinity. That information is stored on the phone so if the person later suspects he or she has come down with COVID-19 that information can be uploaded from the app to alert others anonymously that they may have been exposed. Ac-

While not all countries doing contacttracing are concerned to the same degree with an individual’s right to privacy, the ramifications of using even the most anonymous and depersonalized location tracking programs are nevertheless significant. The technology structure that is being built in the wake of the virus may have unforeseen uses in the future in countries interested in monitoring its citizens for other purposes.

Is the Use of Technology Being Disclosed to the Defense? Technology advances have given the term “investigation” an entirely new meaning. Law enforcement agencies have initiated criminal investigations based on what they have observed on cameras installed around city locations. Police view what may be criminal activity from a remote location via video streamed to a viewing center and then send officers to intercede. See “New Orleans Police appear to use surveillance to initiate investigations” Mike Hayes, June 3, 2019, The Appeal (www.theappeal. org) .

Sometimes defendants are unaware of the origins of the investigation and evidence against them: “In the United States today, a growing body of evidence suggests that the federal Government is deliberately concealing methods used by intelligence or law enforcement agencies to identify or investigate suspects—including methods that may be illegal. It does so by creating a different story about how agents discovered the information, and as a result, people may be imprisoned without ever knowing enough to challenge the potentially rights-violating origins of the cases against them. Through a practice known as “parallel construction,” an official who wishes to keep an investigative activity hidden from courts and defendants—and ultimately from the public—can simply go through the motions of re-discovering evidence in some other way. For example, if the Government learned of a suspected immigration-related offense by a person in Dallas, Texas, through a surveillance program it wished to keep secret, it could ask a Dallas police officer to follow the person’s car until she committed a traffic violation, then pull her over and start questioning her—and later pretend this traffic stop was how the investigation in her case started.” ****** Judge: [I]f, you know, there was an illegal search … followed by a legal search, but that was only obtained because now that you had the illegal search, you knew something about [the case], that would be a concern to the Court.… And that is the fruit of the poisonous tree, potentially. Continued on page 48

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

New York’s By Sherry Levin Wallach

New York’s “Red Flag” Law was enacted on August 24, 2019 and it has been codified in Article 63-A of the Civil Procedure Law and Rules (C.P.L.R.) as the Extreme Risk Protection Order. While the intent behind this statute is commendable, as it is meant to protect our communities against gun violence, unfortunately as currently written, it provides for the circumvention of constitutional protections, the Criminal Procedure Law (C.P.L.) and changes the burdens established under the C.P.L. for criminal prosecutions.

The Temporary Extreme Risk Protection Order (TERPO) and Final Extreme Risk Protection Order (FERPO) statues are found in C.P.L.R. §§6340-6347. Not only are the statutes vague and constitutionally unsound, but they arguably violate both U.S. Constitutional Amendments I, II, IV, V & VI and XIV as well as the New York State Constitution. U.S. Const. Amend. I, II, IV, V, & VI & XIV; N.Y.S Const. Art. I. Consequently, these statutes have massive implications both constitutionally and procedurally for those people charged with crimes and thus the criminal justice community.

Sherry Levin Wallach, Esq., is the Deputy Executive Director of the Westchester County Legal Aid Society

The Temporary Extreme Risk Protection Order is a civil court order that is issued by a Supreme Court Judge in a civil part

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

on ex-parte application. The applicant may be law enforcement and/or lay people such as school employees, family members, neighbors or other members of the community. It can be made based on uncorroborated hearsay allegations. All the applicant or other reporter must allege is that the respondent has firearms and is “likely to engage in conduct that would result in serious physical harm to himself, herself or others…..” C.P.L.R. 6342(1). As discussed above, part of the determination for issuing a FERPO must be that the person is “likely to engage in conduct that would result in serious physical harm to himself, herself or others…”. C.P.L.R. 6343(2) which references section 9.39(a) of the Mental Hygiene Law. Mental Hygiene Law §9.39(a) is for clinical determinations and assessments made by mental health professionals as to as to a person’s mental stability. Therefore, C.P.L.R. §6343 is in direct conflict with the Mental Hygiene Law and allows for lay persons to act as Mental Health Professionals for the purpose of establishing a basis for a Temporary Extreme Risk Protection Order. Id. In essence, a Judge issuing a Temporary or Final Extreme Risk Protection Order is making a finding under the Mental Hygiene law that classifies the respondents mental state without professional analysis or support and/or legal counsel. C.P.L.R. Article 63-A is not clear about how such a finding can or will be used in a subsequent criminal prosecution. This also begs the question of can a person determined under C.P.L.R. §6343 then have the mental capacity to be acting with the requisite intent to be later charged criminally for possession of said weapons? While a TERPO or FERPO is a Civil Order, it effectively circumvents basic constitutional protections and effectively alters the burdens required for a lawful search and seizure that exist in a criminal proceeding under the C.P.L. The respondent (and potential future criminal defendant) is not represented

by counsel during the ex-parte proceeding even though the result of the issuance of the TERPO results in search orders that require respondents to sign a receipt for guns surrendered and/or anything recovered during a search admitting possession thereof, whether or not the items are lawfully possessed. C.P.L.R. Section §6342 states that the temporary order itself must include a form to be completed and executed by the unrepresented responded which must list all the “firearms, rifles and shotguns possessed by him or her and their particular locations”. The execution of this form alone is a clear violation of a respondents Fifth and Sixth Amendment Rights under the United States Constitution and well as the New York State Constitution. U.S. Const. Amend. V. For example, if an illegal gun is recovered pursuant to a search authorized pursuant to a TERPO, the unrepresented respondent is required to sign a receipt for the item and is asked to do so without the advice or representation of counsel. The respondent will then be prosecuted in criminal court for the unlawful possession of a firearm, which may be a misdemeanor or felony charge, both of which carry with them terms of incarceration. Since this ex-parte application can be made by law enforcement or lay people and the supporting deposition can be based on uncorroborated double or even triple hearsay, See C.P.L.R. §6342, it circumvents the Criminal Procedure Law’s standard of proof required for a search warrant under C.P.L. §690 as well as purportedly changes the standard of proof required for the admissibility of evidence in a criminal case. Upon this Temporary Order, the unrepresented respondent is required to voluntarily surrender all of his firearms and even upon this surrender, law enforcement is authorized to conduct a search of the respondent’s person and home upon reason to believe an enumerated listed weapon is still in the respondents possession. According to C.P.L.R. §6342(8), a search “may” be ordered by the judge pursuant to C.P.L. §690. The word “may” as it is written under C.P.L.R. §6342(8) is left open

Continued on next page Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

Red Flag Law Continued from previous page

for interpretation. Some are reading it that a search “may” be ordered in compliance with the protections set forth in C.P.L. §690. Others are ready section C.P.L.R. §6342(8) to mean that the Judge may or may not issue the order to search a person’s property or place pursuant to the C.P.L. The TERPO or Final Extreme Risk Protection Order statutes are also unconstitutionally vague as the Order permits and encourages arbitrary and discriminatory enforcement by failing to provide minimal guidelines to be given law enforcement in any ordered searches. See People v. Bright, 71 N.Y.2d 376. The search authorized under C.P.L.R. §6342 provides no perimeters as to the time frame in which the search may be executed or number of times searches may be conducted. Although the statute provides for an order that must be issued by the court, there is no requirement in the statute that said Order set forth parameters for the execution of a search in the statute. It effectively circumvents the standard set out in the Criminal Procedure Law’s for a search warrant and the myriad of case law that has been developed protecting individuals Fourth Amendment Rights. U.S. Const. Amend. IV. These statutes are not only vague as described above, but they also fail to give respondents adequate notice of the exact nature of the conduct which gives rise to the Order violating the respondents right to due process pursuant to U.S. Const. Amend XIV. These statutes further violate the XIV Amendment of the U.S. Constitution and the N.Y. Civil Rights Laws in that they require, upon issuance of the Temporary Extreme Risk Protection Order be immediately reported to the Department of Criminal Justice Services and the Federal Bureau of Investigation to prohibit further firearm purchases by the respondent. C.P.L.R. §6342(7). This all occurs prior to

the respondent being afforded counsel or the opportunity to challenge the application in a hearing. Article §6340 of the Civil Procedure Law which legislates the Extreme Risk Protection Order fails to include criminal protections. In addition, to being constitutionally unsound, not only should the existence of the order not be applicable in criminal proceedings, but all “evidence”/property recovered pursuant to said Protection Order should likewise not be admissible in criminal proceedings. These protections are not included in the statute. Further, since this is a civil proceeding in Supreme Court there is nothing in the statues that provides for any of the witness information, evidence or documentation to be discoverable pursuant to the new criminal discovery laws under C.P.L 245. I suggest one of two potential remedies to correct the constitutional wrongs and legal inconsistencies created by the statute. The statute can be repealed. Alternatively, it needs amendments to provide the same constitutional protections afforded people under the United States and New York Constitutions. U.S. Const. Amend. I, II, IV, V, & IV; N.Y.S Const. Art. I. Any new legislation must include protections and amendments to the Criminal Procedure Law. All items recovered as a result of the Order, statements made by the responded in response to the application, and any information and/or other derivative evidence must be precluded from being used in a criminal case. The Legislators’ desires, however laudable, cannot be justified to trample the Constitutional rights of all. The mantra to “do something” cannot result in poorly constructed laws which have no efficacy and violate both Federal and New York State Constitutions. A legislative fix to these statutes in their infancy will prevent needless future litigation. A

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

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The Complexity of Sentencing Under the DVSJA:

A CHALLENGE FOR JUDGES AND DEFENSE COUNSEL By Alan Rosenthal The New York Legislature enacted the Domestic Violence Survivors Justice Act (DVSJA), effective May 14, 2019, thus authorizing alternative sentences for defendants who were victims of domestic violence and for whom the abuse was a “significant contributing factor” to their “criminal behavior.” (Penal Law § 60.12). A corollary provision of the Act, CPL § 440.47, (effective August 12, 2019), provides for resentencing relief for certain victims of domestic abuse.

Alan Rosenthal is a criminal defense and civil rights attorney with over 40 years of experience. As an expert in the field of sentencing, Mr. Rosenthal has written many articles, consulted extensively and presented at CLE programs throughout New York State, including on the subject of the recently enacted DVSJA.

The recently enacted DVSJA adds a new level of analysis to the already difficult judicial duty of sentencing. Yet it should be a welcome challenge, if what we seek to impose on our fellow citizens is a just sentence informed by what we have learned from the rapidly developing behavioral sciences and a growing awareness about the dynamics of domestic violence. This article takes a look at the knowledge and analysis that must now be brought to bear in the course of this new sentencing determination by judges and correspondingly the advocacy required of defense counsel. But before doing so, let’s review what has previously been required for a judicial sentencing determination.

Sentencing Prior to the DVSJA It is generally agreed that sentencing is “the most difficult and delicate decision that a judge is called upon to perform.” In a 2018 New York Law Journal article, Joel Cohen suggested that “[v]irtually every judge would agree that sentencing is the most solemn and difficult decision they must make.” Cohen posited that “almost every one of them, though, truly struggles with it every time.” In response, Judge Leon Polsky agreed that “sending someone to prison should be the hardest thing a judge sitting in a criminal term should ever have to do.” But the bigger concern, he Continued on next page

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

Sentencing Under DVSJA Continued from previous page wrote, “is not when [judges] struggle, it’s when they don’t.” Undoubtedly, many judges grapple with the impact imprisonment has on the human beings they sentence. As Judge Kaufman observed, “every judge is aware that five years in a penitentiary is a long time. He well knows that in many cases a prison term not only withers the life of the prisoner but spreads like a stain in an ever-widening circle, blighting the lives of innocent members of the family. Every judge is painfully aware of what five years without a father may mean to a prisoner’s son.” Some judges struggle with the need to provide a rationale for the sentence. Other judges consider most critical the individual factors of the defendant when arriving at the proper individualized sentence, fitting the punishment to the person and not merely to the crime. And some judges labor over identifying an incarcerative sentence that is a sufficient “minimum amount,” but “not greater than necessary.” But the most difficult aspect of sentencing is “the sensitive balancing of the objectives and criteria.” The objectives and criteria to be balanced are generally acknowledged to be “the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction.” The four traditional objectives or purposes of sentencing that must be considered are 1) retribution, 2) incapacitation, 3) deterrence, and 4) rehabilitation. They are established by the Legislature in Penal Law § 1.05 (6). In 2006, a fifth sentencing purpose was added by the Legislature, amending Penal Law § 1.05 (6) to include “the promotion of their [defendants’] successful and productive reentry and reintegration into society.” This amendment has been recognized as a move to a Reintegration-Focused Sentencing Model. A sentencing judge is now obliged to give due consideration to the five purposes of sentencing. One or more factors cannot be disregarded entirely. The balancing of these interacting, and often mutually antagonistic purposes “requires more than a good heart and a sense of fair play on the judge’s part, although these are certainly prerequisites.” The weighty responsibility placed on the sentencing judge is to determine what relative priority to attach to each objective or purpose. The DVSJA requires judges to do all of this and more.

Sentencing Under the DVSJA – A Trauma-Informed Approach The emergence of trauma theory over the past several decades has created a significant shift in the way we understand the role of domestic abuse and trauma’s effects on the behavior of survivors. There is nothing new about a trauma-informed approach. Over the last decade this concept has been developed for use in many different programs, organizations, and systems by the Substance Abuse and Mental Health Services Administration of the U.S. Department of Health and Human Services (SAMHSA). It has applicability in the fields of healthcare, education and mental health, to name a few. It has been recognized as having applicability to the criminal legal system by SAMHSA and by the Center for Court Innovation, both promoting the concept that trauma-informed responses can help improve the criminal legal system. The emergence of trauma theory has led to the adoption of a trauma-informed approach in many judicial settings including Veterans Courts, Treatment Courts, Mental Health Courts, Divorce and Family Courts. Lamentably, criminal laws in New York have not kept up with behavioral science. The first attempt by New York to adopt a more compassionate and contextual approach to sentencing in domestic violence cases was an abysmal failure. An exception to Jenna’s Law, former Penal Law § 60.12, was designed to provide relief for some survivor-defendants. Because it was too narrowly drafted, it provided de minimis benefit. The DVSJA captures the shift in society’s sense of justice and fairness and the advances in science and research. The time has come to apply the same trauma-informed approach in our criminal courts. The DVSJA not only invites it; it implicitly requires it in many cases. Here is how this trauma-informed approach works in practice under the DVSJA. After conducting a hearing, the sentencing court must make a determination that three statutory factors are present in order to impose an alternative sentence pursuant to Penal Law § 60.12. First, the judge must decide whether the defendant was the victim of domestic abuse, and second, whether the domestic abuse was a “significant contributing factor” to the defendant’s “criminal behavior.” The

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

third factor requires the judge to address whether a traditional sentence would be “unduly harsh.” Alternative sentencing under the DVSJA is authorized whether or not the defendant has raised the defense of justification, duress, entrapment, renunciation, mental disease or defect or extreme emotional disturbance. Even if such a defense was raised and rejected by the jury, a sentencing judge may still consider domestic violence for DVSJA sentencing purposes. The reason is simple. The factual showing required to establish a defense is a higher and more exacting a standard than the factual determination required by the DVSJA to establish that the “abuse was a significant contributing factor to the defendant’s criminal behavior.” In some DVSJA cases, a showing that the domestic abuse was a “significant contributing factor” may be made without regard to trauma. For example, the survivor who commits a financial crime because of threats of physical abuse made by an intimate partner, may not suffer from trauma. Nevertheless, that threatened physical abuse would certainly be a “significant contributing factor” to her crime of possession of a forged instrument. In this example, the defendant may raise the domestic abuse as the affirmative defense of duress under Penal Law § 40.00. The jury might convict the defendant, finding that the threatened use of unlawful physical force was not “imminent,” as required for the statutory defense of duress. However, the judge would still be authorized to impose an alternative domestic violence sentence by making a finding that the threat by the intimate partner was sufficient, even if not imminent, to be a “significant contributing factor” to the survivor’s criminal possession of a forged instrument. On the other hand, many DVSJA cases will involve establishing that the survivor suffered trauma. When trauma is implicated, this calls for an additional level of analysis, requiring more than just applying the law to the facts. The sentencing judge must first determine if the defendant suffered domestic abuse either prior to, or contemporaneous with, their criminal conduct, and then undertake an interdisciplinary approach to determine whether the domestic abuse resulted in trauma. The final step in the analysis is for the judge to determine whether that trauma affected the defendant’s functioning and behavior so as to be a “significant contributing factor” to the defendant’s “criminal behavior.” In other words, the sentencing judge is required to take a trauma-informed approach to determine whether the defendant is eligible for alternative

sentencing and to determine an appropriate sentence. A second level of analysis arises from the statute’s third factor. The sentencing judge must determine whether a sentence within the range of the traditional sentencing scheme would be unduly harsh, so as to warrant a less punitive sentence. The statute requires the judge to consider “the nature and circumstances of the crime and the history, character and condition of the defendant.” In order to undertake both levels of analysis, a judge should be both trauma-informed and fully familiar with the dynamics of domestic violence based upon reliable and evidencebased research in the field. When judges are trauma-informed they understand that domestic abuse can cause trauma. They understand what trauma is. They understand that trauma can be pervasive, re-shaping a person’s worldview and affect many aspects of life including altering how they function, perceive danger and react, abuse alcohol and drugs, and engage in problematic behavior that may include criminal actions. Being trauma-informed will help the sentencing judge avoid reliance on misconceptions and myths about domestic abuse and survivors, and avert misinterpreting the significance of confusing or counterintuitive survivor behavior. Trauma-informed judges are better equipped to use the tools of sentencing and resentencing to respond once the effects of trauma resulting from domestic abuse are recognized and to take on the added complexity of the already difficult task of sentencing. Being trauma-informed and familiar with the dynamics of domestic violence simply asks judges to approach DVSJA sentencing in a fair, just and knowledgeable way. As Judge Kaufman recognized more than sixty years ago, “[t]he task of improving our sentencing techniques is so important to the nation’s moral health that it deserves far more careful attention than it now receives from the bar and the general public.” Judge Kaufman urged his fellow judges to make use of the developments in behavioral science to do a better job of sentencing. “We must re-examine in the light of modern scientific knowledge some of our sentencing axioms.” There is much for judges to learn about the effects of trauma resulting from domestic abuse. The research and literature from the various fields of behavioral science help clarify the process by which trauma can lead to a host of devastating psychological and behavioral consequences, including violence Continued on next page

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

Sentencing Under DVSJA Continued from previous page and other criminal conduct. It helps place the behavior of survivors in a context, not to excuse, but to allow for a fully balanced perspective. To ensure that the sentences imposed on criminalized survivors are just, we must insist that our judges are prepared with knowledge and information from the most current advances in the medical and behavioral sciences and that they prepare themselves for the challenge of trauma-informed and reintegration-focused sentencing under the DVSJA. Unquestionably, the sensitive balancing of objectives and criteria, while taking a trauma-informed approach, makes the process of sentencing the most difficult and delicate decision that a judge is called upon to make. However, “[i] f such a [balancing] effort is not made, then any sentence passed, while it may be legal, will not be a just one.”

The Challenge for Defense Counsel Since the sentences we seek for our clients are ones that are just, defense counsel cannot, and should not, leave judges to their own devices to become trauma-informed, knowledgeable about domestic violence, reintegration-focused or to balance the five objectives of sentencing. The ultimate challenge for defense counsel in a DVSJA case is to present the case in such a manner that the judge is not only made aware of the fact that the defendant was physically, sexually or psychologically abused by a member of his/ her family or household, but also to educate the judge about trauma and the dynamics of domestic violence so that the dots can be readily connected between the defendant’s victimization and the defendant’s “criminal behavior.” Providing this education will pave the way to a judicial determination that the domestic abuse was a “significant contributing factor” to the defendant’s “criminal behavior.” In many of the DVSJA cases, although not all of them, the pattern of the connecting dots is established by a showing of trauma and its effects on the defendant. In order to educate judges, defense attorneys must first educate themselves and become trauma-informed in their approach to the case and to their client. They must be knowledgeable about the dynamics of domestic and intimate partner violence so that they can help judges avoid relying on

common myths and misinformation. Defense counsel must learn about the many types of domestic abuse that flow from the abuser’s attempts to coercively control the survivor, be they by physical abuse, sexual abuse or psychological abuse and its many manifestations including financial control, isolation, threats to harm or take away the children and many other forms of emotional battering. Defense counsel must understand the dynamics of domestic violence and trauma in order to be able to explain to the judge why the defendant’s “counterintuitive” behavior should not be interpreted in such a way as to be treated as compelling evidence of her lack of credibility. It is imperative that defense counsel understand that behavior that may seem counterintuitive to the judge is understood by experts to actually represent common victim responses to domestic violence and trauma. Defense counsel should take an inter-disciplinary approach; learning from the research and literature in the fields of epidemiology, psychology, psychiatry, developmental psychopathology, and neuroscience which can provide a basis to understand that trauma can change brain structure, brain chemistry and brain function. This allows defense counsel to place the defendant’s behavior in a context. To be trauma-informed for a DVSJA case, defense counsel must be willing to learn: What is trauma? What causes trauma? What are trauma’s effects? How to present the survivor’s case in a trauma-informed way? How to promote traumainformed sentencing? SAMHSA recommends following the “Four R’s” as a framework for a trauma-informed approach: Realize, Recognize, Respond and Resist Re-traumatization. This framework can readily be adapted to a trauma-informed approach by defense counsel in a DVSJA case. Realize the impact of trauma on your client. Recognize your client’s signs and symptoms of trauma. Respond by integrating knowledge about trauma into all facets of your representation. Resist retraumatization of your client. Defense counsel has an array of tools to choose from to help educate the judge about trauma and the dynamics of domestic violence. A hearing is provided for both sentencing and resentencing cases by the DVSJA. This hearing can be used to introduce evidence about trauma and domestic violence

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

through experts, reports, documents and other exhibits. Reliable hearsay is admissible. Either the report and/or testimony from a mitigation specialist may be an effective way to provide an overview of the survivor’s social and psychological history and place the defendant’s conduct in context. A defendant’s pre-sentence memorandum is authorized by CPL § 390.40 and is also authority for a defendant’s re-sentencing memorandum. Defense counsel should consider the use of an expert in DVSJA cases. Several different types of experts might be considered. Thought should be given to using either a report and/or testimony from a clinical psychologist. In addition, consideration should be given to introducing testimony from an expert on trauma and the dynamics of domestic violence. A report or testimony from an investigator may help fill in necessary facts. It will be necessary to introduce into evidence some documents or testimony that help to establish that the defendant was subjected to substantial physical, sexual or psychological abuse by a member of the same family or household as the defendant, and that such abuse occurred prior to or at the time of the defendant’s criminal behavior. Consider lay witnesses who observed the abuse or some manifestations. Make use of documents including law enforcement reports, medical records, and domestic violence counseling and support records. Keep in mind that even if you are not successful in convincing the judge to impose an alternative sentence under DVSJA, all of the evidence that you introduce will also go to the mitigation of a traditional sentence. This is exactly what happened in a recent Erie County case where the defendant was charged with Manslaughter in the first degree and was facing a 25-year sentence. Although defense counsel did not “win” the Penal Law § 60.12 hearing, it was the hearing that defense co-counsel attributed for “a very good outcome” that would not have been otherwise likely. The Judge, after hearing all of the mitigation introduced at the hearing, imposed a sentence of 8 years. Not only will developing a full and complete record at the hearing increase your chances of better outcomes for alternative sentencing and traditional sentencing, it will preserve a much richer record for any appeal. Careful consideration should be given as to whether your client should testify at the hearing. Be circumspect about such a strategy for at least two reasons. First, having the client testify

exposes him or her to cross-examination. Second, it runs the considerable risk of violating one of the “Four R’s - Resist Re-traumatization. Just being in the courtroom may retraumatize your client. Being required to testify and being subject to cross-examination may be a dangerous trigger for any survivor, and may do some real damage to your client and the case. The risk should be carefully examined. Instead, give thought to providing the survivor’s perspective through an affidavit or a videotaped interview. Perhaps humanizing the survivor and providing their perspective can be accomplished through defense counsel’s mitigation specialist. Scholarly articles and research are effective educational tools. Defense counsel should consider introducing into evidence literature and research from various fields of behavioral science to assist the judge to become knowledgeable about domestic violence and trauma. Not only should the citations to the research and literature be provided, defense counsel should introduce the articles into evidence. “For most of human history, acts of domestic violence have been minimized, denied, swept under the carpet, and hidden behind closed doors. It is only in the last few decades that our criminal justice system and our culture have recognized domestic violence for the insidious and destructive crime that it is.” Over this period, the New York court system embraced innovative approaches to domestic violence cases. Now a critical shift is happening in the treatment of domestic violence victims, survivors, who commit crimes due to their own victimization. The State of New York has recognized the right of women and all people to live free from violence in many different legal contexts. Our government has recognized its responsibility to preserve this right and provide support for domestic violence survivors. “This responsibility does not end when a survivor becomes involved in the criminal justice system because of the abuse she suffers – in part because the very lack of adequate protection, intervention and support is what often leads to this involvement in the first place. A full and meaningful implementation of the DVSJA will require judges, prosecutors and defense lawyers to step up to meet the challenge, taking a trauma-informed approach and educating themselves about the dynamics of domestic violence. For that is what it will take, as Justice Debra Ann James so poignantly observed, for us to arrive at “a day when survivor-defendants are treated with the fairness and dignity they deserve.” A

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

2020 ANNUAL DINNER

Will we ever gather this way again? President Tim Hoover addresses the assembled multitude; Honorees list in the background

Judge Parker, Richard Willstatter and Steven Kessler Vice-President Jim Grable presents the Thurgood Marshall Award to Terry Connors

Judge Barrington Parker accepts the William Brennan Award from Past-President Richard Willstatter

Alan Rosenthal, Don Thompson and Max Adler presenting the award to Valentino Dixon

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

2020 ANNUAL DINNER

President Tim Hoover and Presidentâ&#x20AC;&#x201C;elect Alice Fontier

President Hoover with (l-r)Assembly Speaker Carl Heastie, Lt. Governor Kathy Hochul, Assemblyman Joseph Lentol, Senator Jamaal Bailey

President Hoover presents a plaque honoring her service to Immediate Past-President Lori Cohen

Scorpionâ&#x20AC;&#x2122;s Molly & Brian Blades, with Past-Presidents Lori Cohen, John Wallenstein and Andy Kossover

To see more Dinner photos go to: https://www.facebook.com/NYSACDL/ photos/?ref=page_internal or www.nysacdl.org Hon. Amy C. Martoche, Dr. Sarah Adragna and Dr. Michael Adragna enjoying the program and dinner.

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

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 STEVEN EPSTEIN, CHAIR, CLE COMMITTEE Calendar listings on p. 49

Cutting Edge CLE — Where We’ve Been...Where We’re Going The CLE Committee has been working to meet the needs of our membership from the start of this crisis. The first task at hand was the rescheduling of the programs scheduled for April and May. We look forward to delivering them to you later in the year. The second task was to respond to the needs of our membership: professional education, affordable CLE credits, professional and social interaction and helping our members get through this difficult time.

for 1 CLE credit for $49 via webinar. Our speakers will be Xavier Donaldson, Sherry Levin Wallach and Mike Baker, with topics to be announced shortly.

We utilized Blue Jeans software to deliver the “Lunch and the Law” CLE Series. These discussion-based lectures, designed to be informative and driven by the attendees’ needs, included Motor Vehicle Mondays, Trial Practice Tuesdays, What’s New Wednesdays, and Forensic Fridays. These sessions gave our members the opportunity to learn and interact both professionally and socially with colleagues. Lunch and the Law will continue through June, at least, every Monday, Tuesday and Wednesday from 1:00 pm to 2:00 p.m. This discussion-based interactive CLE program will be offered

Many of our clients who are incarcerated face the perils of Covid-19 and our members needed help advocating for their release. We produced “Pathways to Freedom,” a free live half day webinar for 3 CLE credits which educated attendees on how to advocate for the release of inmates in both Federal and State prisons. This was offered to both members and non-members as we felt it was such an important need. The initial seminar was attended by 500 attendees (our maximum capability on Zoom) and then over 200 were able to watch the recorded version. Eleven days later,

To help address our members’ mental health needs we offered a series of free webinars given by Pema Sherpa, a graduate of Harvard and a mindfulness expert who guided us through breathing exercises, meditations and taught us ways to process news and handle stress.

we again produced the same CLE, but this time it was geared more towards the Western District of New York and upstate audiences. This presentation focused on the issues in their prison populations. We also offered free member webinars designed to help our members in private practice on topics such as “PPP Loans for Solo Practitioners;” “Employment and Labor Law Issues During COVID;” “Markets and Investing During COVID;” and “PPP compliance and planning for forgiveness.” We look forward to meeting your needs as we move forward in the “new normal.” We have created a CLE schedule that is mindful of your current and future needs and best utilizes our resources to keep our members educated and connected to one another. I suggest you take a look through the forthcoming presentations described below and choose one or two or more of interest and save the date(s).

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

We will continue to provide free member webinars for our members on topics related to the pandemic and the businesses of their practices. Upcoming programs including a roundtable on careers in public defense, and on practice and business development. April 1, 2020, brought changes to discovery and bail. On May 20, we will offer a live webinar “What Every Criminal Defense Attorney Needs to Know About the 2020 Changes to Bail and Discovery Laws” for 4.5 CLE credits. Topics include “Speedy Trial Motions in the Wake of the 2020 Amendments” by Drew DuBrin, “What’s New with Discovery?” by Andy Kossover and Yung-Mi Lee; and “What’s New with Bail?” by Al O’Connor. As we all begin to practice law via Skype and other electronic media, we are worried and concerned with how we best advocate and what the concerns are for our clients’ rights. On June 12 we will hold live via webinar a ground-breaking CLE entitled “Litigating in the Wake of Covid-19: the New Normal” for 4.5 CLE Credits. Topics will include “6th Amendment Concerns of Litigation in the Virtual Courtroom,” “Voice and Presence for the Camera: Persuasion in the Virtual Courtroom” by Neill Hartley and Steven Epstein, and “The Basics of Preliminary Hearings” by Jill Paperno. In June, we will continue our “Lunch and the Law Series” “Cross to Kill”, one of our flagship programs, will be held live via webinar on June 12 for 7.5 CLE skills credits. Topics include “ABCs of Cross Examination” by Steven Epstein; “The Law of Cross Examination” by Richard Willstatter; “Impeachment” by Andre Vitale; “Cross of the Expert Witness” by Al O’Connor; “Cross of the Snitch” by Xavier Donaldson; and “Cross of the Child Sex Crime Witness” by Aida Leisenring.

We look forward to continuing to bring you our regional lectures and hope to do them live, but CDC recommendations and “stay in place” orders are being closely monitored and, if necessary, we will be prepared to do these by webinar. In August, we will be in Lake Placid, New York at a date to be announced for our NYSACDL Regional 2020 Criminal Law Update. On September 26, 2020, we will be in Syracuse for our NYSACDL Regional Criminal Defense Seminar: “Syracuse 2020 In-Depth Cross Examination” at which Rob Wells and a group of experienced trial lawyers will provide you a system of cross-examination you can master. The morning session will introduce you to the method and the tools. Then, in the afternoon, attendees, in small groups in a safe and nurturing environment, aided by experienced trainers, will learn to develop, design and practice this style of cross-examinations utilizing any of six simple hypotheticals provided. The way to learn, is to do, and this is your chance to do both in a single day. We will also be returning to Binghamton to bring our Regional CLE Seminar to Binghamton, NY. On November 6, 2020 our popular Superstar Trial Lawyers Seminar will bring some of the nation’s top DWI attorneys to Buffalo, New York. This seminar will provide attendees with 7 CLE skills credits and topics will include: challenging blood test evidence, challenging

drug recognition evidence, challenging standardized field sobriety tests, the trial of a vehicular homicide, challenging breath test evidence, cross examination of the arresting officer and storytelling in summation in a DWI case. Each of the speakers are all Faculty from the National College of DUI Defense. They include Ed Fiandach, Peter Gerstenzang, Steven Epstein, Doug Murphy, Steve Oberman, Joe St. Louis and Bill Kirk. In the Fall, we look forward to holding the previously scheduled “Jack Litman Memorial Roundtable Discussion on Criminal Justice Reform” in New York City at a date to be announced. Our 31st Annual “Weapons for the Firefight” program will be held over the course of two days on December 5 and 6, 2020, in New York City. Day one will cover fundamental trial skills including the ethics of pre-trial investigations, confirmation bias in jury selection, opening statements, direct and cross examination and summation. Day two will focus on the trial of the forensics case. Attendees can attend one day or both days. Those attending both days will receive a discounted price. Please feel free to contact me (sepstein@ barketepstein.com) to provide feedback on how we are doing. The Committee welcomes your criticisms, compliments or suggestions. Until we meet again, I wish the best for you, your family, friends and colleagues. A

Scorpion is honored to be the 2020 CLE Series Sponsor for NYSACDL! As the only NACDL approved agency and the only agency with an entire team specializing in criminal defense – we want to know we are here for you. Scorpion is a digital marketing company that specializes in the growth of law firms. Over the span of nearly two decades, Scorpion has helped thousands of law firms build their online exposure, attract more of the types of clients they want, and increase their marketing return on investment. We look forward to seeing you at NYSACDL CLE programs in 2020!

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

Geofencing Continued from page 43 Prosecutor: I respectfully dispute that point.… [I]n fact, I don’t have any concern about that. —Hearing transcript, United States v. Lara (Northern District of California), December 2013 “Secret Origins of Evidence in US Criminal Cases”, Human Rights Watch (2018), www.hrw.org/report/2018/01/09/ dark-side/secret-origins-evidenceus-criminal-cases

Conclusion While consumers enjoy the functionality, connectivity and convenience of cell phones and other mobile devices, many others see these developments as nothing less than a technological assault on privacy rights. Telecommunications companies, corporations and government institutions are armed with indiscriminate, dragnet-type data collection capabilities. Those entities claim that by using our phones we voluntarily agree to hand over information about ourselves that we do not even know is being collected. That very personal information is then sold and commodified on a mass scale. Law enforcement and tech companies have realized accessing that bulk data is a mutually beneficial proposition. The most important question of our time is how technology will affect our concept of individual privacy. The answer will be the subject of continuing constitutional debate. And criminal lawyers will be the first line of defense. A

Thank you to the 2019 Defenders Circle! CHAMPIONS ($1000 Donation) Mark A. Foti James Grable Jr. Benjamin Ostrer COLLEAGUES ($250 Donation) George Goltzer Kevin D. O’Connell Jennifer L. Van Ort SUPPORTERS ($100 Donation) James A. Baker Paul M. Callahan Joseph R. DeMatteo Brian J. DeSesa Karen L. Dippold Michael G. Dowd Mario F. Gallucci David I. Goldstein Trevor W. Hannigan

James P. Harrington Daniel J. Henry Michael D. Horn John Ingrassia Robert P. Leighton Oscar Michelen Greg D. Lubow Christopher X. Maher Mark J. Mahoney Michael P. McDermott Kenneth Moynihan Steven K. Patterson Roland G. Riopelle Anastasios Sarikas Oliver S. Storch Vivian Storch Cannon Scott B. Tulman John S. Wallenstein Susan J. Walsh Richard D. Willstatter

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 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

NYSACDL CLE & Event Calendar (As of 5/14/2020 - Subject to Change) Details, Pricing & Registration Online at www.nysacdl.org

Monday May 18, 1pm: Law @ Lunch Talking DWI W/Steven Epstein: Addressing Confirmation Bias During Jury Selection — Virtual CLE Series Tuesday, May 19, 1pm: Law @ Lunch Trial Pract w/Rob Wells: Cross-examination – If Anything Can Go Wrong, It Will, Part 1 — Virtual CLE Series

Friday, June 12, 9am: CLE Webinar Cross to Kill 2020 Tuesday, June 16, 1pm: Law @ Lunch Top Summation Tuesdays w/Xavier Donaldson: It's All About Confidence

Tuesday, May 19, 4pm: Free Member Zoom Conference Taxes in the Time of COVID-19 – Developments for Individuals and Businesses

Wednesday, June 17, 1pm: Law @ Lunch Working WIth Experts w/Sherry Levin Wallach: Using a Forensic Psychology Expert in a False Confession Case with Marc Janoson, Ph.D.

Wednesday, May 20, 12pm: CLE Webinar What Every Criminal Def Attorney Needs to Know About the Changes to Bail & Discovery

Tuesday, June 23, 1pm: Law @ Lunch Top Summation Tuesdays w/Xavier Donaldson: Leave No Doubt

Friday, May 22, 1pm: Law @ Lunch Forensic Fridays w/Ben Ostrer: DNA – Likelihood Ratios, CPI , StrMix, True Allele — Virtual CLE Series

Wednesday, June 24, 1pm: Law @ Lunch Working WIth Experts w/Sherry Levin Wallach: How to Critique the Prosecution’s Forensic Expert’s Report & Prepare Your Cross with Marc Janoson, Ph.D.

Tuesday, May 26, 1pm: Law @ Lunch Trial Pract w/Rob Wells: Cross-examination – If Anything Can Go Wrong, It Will, Part 2 — Virtual CLE Series Tuesday, May 26, 4pm: Free Member Zoom Business Development and Networking for Solo Practitioners and Small Firms Tuesday, June 2, 1pm: Law @ Lunch Top Summation Tuesdays w/Xavier Donaldson: Where Do I Start

Saturday, September 26: NYSACDL Regional Crim Def Seminar Syracuse 2020: In-Depth Cross Examination Friday, November 6: NYSACDL Superstar Trial Lawyers Seminar, The DWI Case – Buffalo Thursday, December 3 & Friday, December 4: NYSACDL Weapons for the Firefight, The Trial – NYC

Tuesday, June 2, 4pm: Free Web Event Public Defense Career Paths in New York Now & In The Future: A Roundtable Discussion Friday, June 5, 12pm: CLE Webinar Litigating in the Wake of Covid-19: The New Normal Tuesday, June 9, 1pm: Law @ Lunch Top Summation Tuesdays w/Xavier Donaldson: What Do I Say and How Wednesday, June 10, 1pm: Law @ Lunch Working WIth Experts w/Sherry Levin Wallach: Working with a DNA Expert in a Touch/Mixture DNA case with Heather Miller Coyle, Ph.D.

Atticus | Volume 31 Number 2 | Spring 2019 | New York State Association of Criminal Defense Lawyers

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

Join the Committee

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

LEGISLATIVE COMMITTEE

Co-Chairs: Timothy Murphy (Timothy_Murphy@fd.org), Richard Willstatter (willstatter@msn.com) Members: Steven Epstein, Mark Fernich, Alan Lewis, Claudia Trupp

Chair: Kevin Stadelmaier (kstadelmaier@legalaidbuffalo.org) Members: Derek Andrews, Lori Cohen, Alice Fontier, Jessica Horani, Scott Iseman, Andy Kossover, Yung-Mi Lee, Alan Lewis, Greg Lubow, Amy Marion, Kenneth Moynihan

ANNUAL DINNER COMMITTEE Chairs: Lori Cohen (locohen@aol.com), Timothy Hoover (thoover@hodgsonruss.com) Members: Edgar De Leon, Alice Fontier, James Grable, Renee Hill, Andrew Kossover, Brian Melber

MILITARY/VETERANS AFFAIRS COMMITTEE

CLE COMMITTEE

MEMBERSHIP COMMITTEE

Chair: Steven Epstein (sepstein@barketepstein.com) Members: Michael Baker, Laura Fiorenza, Timothy W. Hoover, Andy Kossover, Yung-Mi Lee, Allison McGahay, Brian Melber, Peter Mitchell, Kenneth Moynihan, Timothy Murphy, John S. Wallenstein, Richard Willstatter, Robert Wells

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

FEDERAL PRACTICE COMMITTEE Chair: John Wallenstein (JSWallensteinesq@outlook.com) Members: James Grable, Timothy Hoover, Arnold Levine, Elizabeth Macedonio, Brian Melber, Kenneth Moynihan, Donald Thompson, Richard Willstatter

FINANCE COMMITTEE Chair: Alan Lewis (Lewis@clm.com) Members: Lori Cohen, Edgar De Leon, Andrew Kossover

INDIGENT DEFENSE COMMITTEE Chair: Michael Baker (mbaker@co.broome.ny.us) Members: Stephanie Batcheller, Alice Fontier, Jessica Horani, Mark Hosken, Arnold Levine, Greg Lubow, Jill Paperno, Craig Schlanger, Donald Thompson, Karen Thompson, Mark Williams

Chair: Donald Rehkopf (usmilitarylaw@gmail.com) Members: Kenneth Moynihan, Andre Vitale, Mark Williams

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

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

WHITE COLLAR CRIME COMMITTEE Chair: Scott Iseman (siseman@oalaw.com) Members: Joshua Dratel, James Grable, Timothy Hoover, Alan Lewis, Brian Melber

YOUNG LAWYERS COMMITTEE Co-Chairs: Lori Cohen (locohen@aol.com), Lindsay Lewis (llewis@joshuadratel.com)

JUSTICE COURTS COMMITTEE Chair: Greg Lubow (gdlubow@gmail.com) Members: John Ingrassia, Tucker Stanclift

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

Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

NYSACDL Membership

The Largest Criminal Defense Bar Association in New York State

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

LIFE MEMBERS

Timothy W. Hoover, Buffalo

Daniel Arshack Wayne C. Bodden Peter E. Brill 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 Renee Hill E. Stewart Jones, Jr. Kathryn M. Kase Ray Kelly Lee Kindlon Terence L. Kindlon Seth H. Kretzer Gerald B. Lefcourt David L. Lewis Thomas F. Liotti

PRESIDENT-ELECT Alice Fontier, Manhattan

FIRST VICE PRESIDENT Brian Melber, Buffalo

VICE PRESIDENTS Steven B. Epstein, Garden City James W. Grable, Jr., Buffalo Yung-Mi Lee, Brooklyn Timothy P. Murphy, Buffalo Russell A. Schindler, Kingston

SECRETARY Edgar De Leon, Manhattan

TREASURER Alan S. Lewis, Manhattan

EXECUTIVE DIRECTOR Jennifer Ciulla Van Ort, Albany

Scott Lockwood Zachary Margulis-Ohnuma Florian Miedel Aaron J. Mysliwiec Brian Joseph Neary Thomas J. O’Hern Benjamin Ostrer 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

SUSTAINING MEMBERS James A. Baker Paul M. Callahan Joseph R. DeMatteo Brian J. DeSesa Karen L. Dippold Michael G. Dowd

Mario F. Gallucci David I. Goldstein Trevor W. Hannigan James P. Harrington Daniel J. Henry, Jr. Michael D. Horn John Ingrassia Isabelle A. Kirshner Robert P. Leighton Greg D. Lubow Christopher X. Maher Mark J. Mahoney Michael P. McDermott Oscar Michelen Kenneth Moynihan Steven K. Patterson Roland G. Riopelle Anastasios Sarikas Oliver S. Storch Vivian Storch Cannon Scott B. Tulman John S. Wallenstein Susan J. Walsh Richard D. Willstatter James W. Winslow

NYSACDL WELCOMES OUR NEW MEMBERS (AS OF MAY 14, 2020) ALBANY Rebekah Sokol BRONX Vanessa Burdick Tahanee Dunn Mariam Hinds My Le Filaree Moore Naomi Oberman-Breindel Olivia Scheck Alexandra Valdez BROOME Dan Delbridge CATTARAUGUS Brendon Riley CAYUGA J. Justin Woods CORTLAND Kayla Hardesty DUTCHESS Anthony Burger

Anthony Cillis James Coughlan Gerardo Gutierrez Ronald McGaw Kent Pritchard

Igor B. Litvak Al O’Connor Bert Roughton Alison Stocking Iris Ying

ERIE James Richard Maloney Lillian Medina-Zelazny Susan C. Ministero Mark Sacha Claudia S. Schultz Michael Stachowski Jane I. Yoon

MONROE Drew DuBrin

FULTON Michael C. Viscosi GREENE Veronica M. Kosich KINGS Arthur Louis Aidala Alexandra Bonacarti Jacqueline Caruana Maryanne Kaishian

NASSAU Louise Hochberg Michael Gerard Postiglione NEW YORK Virginia Alvarez Joseph Z. Amsel Khiabeth Burgos Thomas Dollar David Gray Phillip Hamilton Seymour W. James Danielle Lerro Michael L. Marley Joseph Daniel McBride

Peter Rounds Mitchell Mildred Morillo George Santangelo Steven Schiesel Hanna Shoshany Luis M. Torres Juan Vera Michael Vitaliano ONONDAGA Michael Kerwin Gary Pieples ONTARIO Delton Caraway Heather Crimmins Nancy Farrell Alicia Grasso Kevin Karnyski Jennifer Kehoe Brian Leeds Jonathan Lorge Matthew Mix Bradley Porter

ORANGE Rebecca King OSWEGO Heather L. Nickolas PUTNAM David Squirrell QUEENS David Louis Cohen Michelle Minkin Dennis B. O’Sullivan Christopher Van Zele ROCKLAND Patrick Carle Alvin Spitzer SARATOGA Alex Shmulsky

ULSTER Andrea L. Gamalski CK Morgan WASHINGTON Mark Diamond WAYNE Richard W. Youngman WESTCHESTER Paul Hanft Samuel Jones Kevin Kennedy Andrea Loigman Matthew Montana Hannah Robbins Vivian Shevitz Ketienne Telemaques

SUFFOLK Gregory Haynes Antonia LoBello Cory Morris Caitlin Ortiz

Atticus | Volume 31 Number 2 | Spring 2019 | 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 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers

NYSACDL

New York State Association of Criminal Defense Lawyers

Membership Application Please print or type

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

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

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

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

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

New or Part-Time Attorney Member

$160.

Full-time Public Defender Allied Professional Member

$160. $220.

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

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

Retired Attorney $105. Recent Law School Alumni (less than one year since completion) $80. School: ________________________ Graduation date: ________ Law Student Free Membership dues can be paid by check or charged to American Express, MasterCard, Visa, or Discover Please charge to my credit card.

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

Credit card #: Exp. date:

Please make your check payable to NYSACDL and send it to:

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

NYSACDL Office, 90 State Street, Suite 700, Albany, New York 12207 Fax: 888-239-4665

Atticus | Volume 32 Number 2 | Spring 2020 | 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 31 Number 2 | Spring 2019 | New York State Association of Criminal Defense Lawyers

Publication of the New York State Association of Criminal Defense Lawyers

90 State Street, Suite 700 Albany, New York 12207

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

atticus@nysacdl.org www.nysacdl.org

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

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

NYSACDL Atticus Magazine - Spring 2020 | Volume 32 | Number 2

Articles inside

Cutting Edge CLE

Sentencing Under the DVSJA

Court of Appeals

Editorial

meanwhile, in Albany

Message from the President

Dispatches from 90 State

Don't Fence Me In: Geofencing

From the Defense Table

Flagging New York's “Red Flag” Law