Atticus - Winter 2021 by NYSACDL

Winter 2021 | Volume 33 | Number 1

ATTICUS

THE SECOND STAY-AT-HOME ISSUE

INSIDE this

ISSUE

Publication of the New York State Association of Criminal Defense Lawyers

2021 NYSACDL Foundation

Annual Meeting and Awards Celebration January 28, on Zoom See Page 5 for details

Message from the President

Meet the Incoming President

Dispatches from 90 State

From the Defense Table

Amicus Curiae By Richard Willstatter and Timothy P. Murphy

Court of Appeals By Timothy Murphy, Esq.

Race, White Supremacy and Black Liberation By Kenneth Montgomery, Esq.

Q&A with Mildred Morillo By Jessica Horani, Esq.

In Memoriaum

Recordings of Police Interrogations By Brian Shifrin, Esq.

Book Review By Roger Bennet Adler

Cutting Edge CLE

New York State Association of Criminal Defense Lawyers

Race, White Supremacy, and Black Liberation Page 23 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 2021 PRESIDENT: Alice Fontier, Manhattan

John Ingrassia, Newburgh

Jeanne E. Mettler

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

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

*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

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□ Colleague

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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 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

Publication of the New York State Association of Criminal Defense Lawyers

Submit an Article to Atticus Members wishing to submit articles for inclusion in Atticus should submit them via email to atticus@nysacdl.org. Questions regarding submission may be directed to: Jennifer Van Ort, Executive Director, NYSACDL 518-443-2000 jlvanort@nysacdl.org The editors reserve the right to modify any submission for style, grammar, space and accuracy. Authors are requested to follow these guidelines: 1. Use footnotes rather than endnotes. 2. When a Case is mentioned in the text, its citation should be in the text as well. 3. Articles longer than 4 pages may be edited or serialized.

Find NYSACDL on Facebook, LinkedIn, Twitter & Instagram

Message from the President Timothy W. Hoover WHO ARE WE? With each passing year, I learn more about the law, the judges and lawyers who wield it, and the citizens who feel its power. These annual lessons tend to come in glimmers of insight, which, more than anything else, reveal how much I have yet to learn. Approaching the end of 2020, I feel more acutely than ever the infinity of assumptions that deserve to be questioned and the progress that needs to be made—both for myself and for American society at large. Our country has been battered by a public-health crisis, assaults on the institutions of democracy, and a growing awareness of the extra-judicial violence routinely perpetrated by law enforcement. There is no more searing glimmer of insight than the video of George Floyd’s killing by Minneapolis police. That video and others like it offer visceral proof of something our members may have understood better than most: American society is less fair and less just than it should be; law enforcement is often more brutal and less transparent than it should be; and the most vulnerable Americans bear the brunt. As George Floyd’s killing shows, while these realities may have their roots in slavery and Jim Crow, they stretch far beyond the Old South. Take my hometown of Rochester. A fount of abolitionist sentiment in the 1800s, Rochester has an African American mayor and an African American police chief. It prides itself on its cultural institutions, stellar private university, and high quality of life. The killing of Daniel Prude by Rochester police in March 2020 came as a shock for many in Monroe County, and showed, once again, that the forces at work here are not unique to any one geography. The gulf between who we are as Americans and who we wish to be is a standing call for change. I am proud of the work our members have done to answer that call, and I expect them to continue to lead, as there is much more to be done. HUMAN TOUCH COVID-19 has cut a terrible swath through all of our lives over the past ten months. Along with the ghastly loss of life and livelihood, this disease has attacked the human need to connect—family traditions, gatherings with friends, collaboration with colleagues, and serendipitous exchanges with strangers have all gone by the wayside. Zoom is great, but it is no substitute. That is my one regret about how the pandemic has impacted the Association this year. It is the President’s duty and privilege to chair all Board meetings in person, Continued on next page

Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

President’s Message Continued from previous page and to travel across the State to attend our CLE programs, meet and greet members in person, and hear their suggestions and concerns, so we can try to improve the criminal-justice system and our members’ practices. Obviously, my disappointment pales in comparison to the more profound burdens this virus has imposed. But it’s real all the same. When we are traveling freely once again, I hope to meet with as many of you as possible, in Manhattan and at our CLEs across the State. RESILIENCE You do not need me to tell you that 2020 is a year unlike any other in recent experience. Each one of you has waged a private, daily battle to sustain your health, your livelihood, and your connection to friends and family. You have lived it and know how difficult it has been. I am very proud of the way that our Association—our members and our Board—rose to the occasion. The daily work of our members is the work of the Association, just as much as the advocacy, lobbying, amicus, and publicfacing efforts carried on in the name of the Association. As the frequency of inperson appearances has waned, waxed, and waned again, you have been in both state and federal courts litigating and trying cases, in jails meeting with your clients, and in the community locating and interviewing witnesses. You have breathed life into the constitutional right to counsel and due process, fighting through broad executive and judicial shutdowns, suspension of statutory protections, and judges and prosecutors who wanted to speed things up or slow them down without regard for your clients’ rights, health, and safety. You have collaborated with each other to devise creative solutions to release,

detention, and trial issues, and even when you failed to obtain the relief you wanted your advocacy kept your clients’ interests top of mind. As a Board, we have endeavored to support your labors, consistent with our twin obligations to support and enhance your practices and strengthen this institution. Our excellent CLE content, strong CLE attendance and participation, free member programs, continued advocacy in Albany, and continued amicus work in both the Second Circuit and New York Court of Appeals are just some manifestations of our efforts. The Board has also met twice in the past three months. One of those meetings included anti-bias training led by member Seymour James, and that work will continue in 2021. In closing, we have said it before, but as the calendar changes it is worth repeating: if you need anything from us, please reach out personally to me or to Jennifer Van Ort. Happy holidays, and all our best wishes for a safe, healthy, and more regular 2021.

In the end, we will remember not the words of our enemies, but the silence of our friends .

— Martin Luther King, Jr.

Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

2021 Annual Meeting & Awards Celebration Thursday, January 28, 2021 5:30pm - 7:00pm • Live via Zoom

NYSACDL Members: Free; Non-Members: $25 Register Online: www.nysacdl.org The Hon. William Brennan Award for Outstanding Jurist: The Honorable Analisa Torres, United States District Judge, SDNY President’s Recognition for Sustained Excellence in Amicus Work on Behalf of NYSACDL: Richard Willstatter, Esq., Green & Willstatter President’s Award for Outstanding Contributions to NYSACDL: Steven Epstein, Esq., Barket, Epstein, Kearon, Aldea & LoTurco, LLP Outstanding Practitioner Award: Ben Crump, Esq., Ben Crump Law Justice Through the Arts Award: “George Floyd Mural” by Artists Cadex Herrera, Xena Goldman, Greta McLain, Simone Alexa & Tachianna Charpenter Installation of 2021 President: Aice Fontier, Esq., Neighborhood Defender Servivce, Manhattan Recognition of 2020 President : Timothy W. Hoover, Esq., Hodgson Russ LLP Buffalo

NEW YORK STATE ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

Introducing the Incoming President Alice Fontier is the incoming President of NYSACDL, she will be the first Black woman to hold the position. An NYU Law graduate, Alice was born and raised in upstate New York and has lived in Harlem for 15 years. She is looking forward to using her experiences and years of work as a public defender to focus the work of NYSACDL in the coming year on enacting policy that reckons with racism in our legal system and curbs police misconduct. Alice also serves as the Managing Director of NDS Harlem, a holistic public defense office providing criminal, civil, and family defense. She has previously worked as the Managing Director of the Criminal Defense Practice at the Bronx Defenders, a Supervising Attorney at NDS Harlem, an attorney at the Federal Defenders of San Diego, and a private attorney in both the federal and state courts of New York. She has handled several high-profile national security cases.

Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

Thank you to the 2021 Defenders Circle! CHAMPIONS ($1000 Donation) Michael T. Baker, Esq. Barket, Epstein, Kearon, Aldea & LoTurco, LLP Brooklyn Defender Services The De Leon Firm, PLLC Steven Epstein, Esq. Hodgson Russ LLP Timothy W. Hoover, Esq. John Ingrassia, Esq. Alan Lewis, Esq. Greg Lubow, Esq. Brian Melber, Esq. Cory Morris, Esq. O'Connell & Aronowitz Richman Hill PLLC Scorpion Steptoe & Johnson, LLP Robert Wells, Esq. Richard Willstatter, Esq. John Wallenstein, Esq.

LEADERS ($500 Donation) Lori Cohen, Esq. Green & Willstatter Miedel & Mysliwiec, LLP Ostrer & Associates, PC Susan Walsh, Esq. COLLEAGUES ($250 Donation) George Goltzer, Esq. Gerald B. Lefcourt, P.C. Michael Gerard Postiglione, Esq. SUPPORTERS ($100 Donation) James A. Baker, Esq. Paul M. Callahan, Esq. Andrea Carapella Rendo, Esq. Joseph R. DeMatteo, Esq. Brian J. DeSesa, Esq. Karen L. Dippold, Esq. Michael G. Dowd, Esq. Mario F. Gallucci, Esq. David I. Goldstein, Esq. Sheldon Gould, Esq.

James W. Grable, Jr., Esq. Phillip Hamilton, Esq. James P. Harrington, Esq. Daniel J. Henry, Esq. Michael D. Horn, Esq. Isabelle A. Kirshner, Esq. Bruce Klein, Esq. Robert P. Leighton, Esq. Oscar Michelen, Esq. Mark J. Mahoney, Esq. Kenneth Moynihan, Esq. Steven K. Patterson, Esq. Owolabi Salis, Esq. Anastasios Sarikas, Esq. Steven Schiesel, Esq. Dennis B. Schlenker, Esq. Kevin Stadelmaier, Esq. Oliver S. Storch, Esq. Vivian Storch Cannon, Esq. Susan Tipograph, Esq. Emily Trott, Esq. Scott B. Tulman, Esq. James W. Winslow, Esq.

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 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

EDITORS

Dispatches from 90 State

John S. Wallenstein Ben Ostrer Russell Schindler

Jennifer Van Ort Executive Director January 19, 2021

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

“Alone we can do so little; Together we can do so much.” — Helen Keller A year ago, I was getting ready for NYSACDL’s annual great celebration in New York City – another spectacular dinner honoring great criminal justice reformers and introducing our new President. January 2020 started out like any normal year for NYSACDL. We were planning for a full slate of 2020 activities across New York State – including some of our traditional seminars and new events designed to focus on key issues we were expecting to face. The Board of Directors, members, and friends joined us in anticipating a productive year to come. Then, as you all know, in March the world turned upside down – and shut down – because of the global pandemic. About a week after the first shutdowns began, NYSACDL’s Executive and CLE Committees held the first of many Zoom calls to discuss our response. The health and safety of our members and colleagues were foremost on our minds. We immediately responded with programming designed to provide relevant educational opportunities and to nourish a new need to connect with colleagues and cope with the changing circumstances.

CLE & Other Events:

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

In 2020, NYSACDL led the way in providing web-based training and programs for criminal defense lawyers. In total, we had over 85 events, including the Annual Dinner and Lobby Days. These events included 60 CLE programs: our traditional programs including Cross to Kill and Weapons for the Firefight were adapted to be presented over Zoom and, because of that, we were able to attract a wider audience; we developed our Law @ Lunch program, which launched almost immediately following shutdowns, to provide easy access not just to training, but to connections with colleagues across the state; lastly, we responded to immediate concerns with programs focused on legal issues arising from COVID-19. Additionally, we had 21 free programs, for members only, focused on business issues – both relating to COVID-19 (the Paycheck Protection Program and other financial relief programs) and not (school loan forgiveness, investing, and more.) Along with those, we kept other initiatives moving; for example, the newly formed NYSACDL Women in Criminal Defense Committee starting meeting and planning how they could provide a positive impact. As I mentioned above, always in the back of our mind was supporting our members’ practices and their mental health – we look forward to continuing those efforts in 2021 as we adjust to our new normal.

Membership: In early October, NYSACDL once again celebrated reaching over 1,000 members

Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

From The Defense Table After Argument By Defender Annaleigh Porter, Onondaga County Court Rules That DA Must Provide Unsealed Police Disciplinary Records Under Cpl 245 Since the repeal of 50-a, there have been many discussions and arguments as to HOW the defense is to ascertain the existence of and get access to police disciplinary records. This issue was argued by Defender Annaleigh Porter and decided in last month by Onondaga County Court Judge Stephen Dougherty. The DA’s office argued that their Brady obligations do not include a requirement to make an inquiry to the police for impeachment material on officers and that if the defense wishes to pursue other law enforcement agency records that are no longer confidential, it may seek those records from the agency by way of FOIL. In response, Annaleigh argued that pursuant to CPL 245, any and all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall

be deemed to be in the possession of the prosecution, and that in addition to obligations pursuant to Brady v Maryland (373 US 83 (1963)) and Giglio v United States (405 US 150 (1972)), the People are obligated to disclose all evidence and information that tends to impeach the credibility of a testifying witness (see CPL 245.20 (12)(k)) and that the People’s obligations are not reduced because a defendant may be able to access information on their own. Judge Dougherty ruled that clear statutory language requires the DA’s office to produce police disciplinary records and turn them over to the defense as part of the discovery statute. He further stated that he did not believe the legislature ever expected the defense to go out and get these records themselves. However, the defense must provide a list of officers whose records they believe should be disclosed. This decision was on the record but as of this writing there is not a written decision by the court. Excellent advocacy and a great win. Next time you see Annaleigh Porter thank her for the work she did that will benefit all defenders and their clients. Great job, Annaleigh!!

Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

NYSACDL

micus Curiae

Committee Update By Richard Willstatter and Timothy P. Murphy,, Amicus Curiae Committee Co-Chairs

n September, the NYSACDL Amicus Curiae Committee filed a letter/ brief in the New York State Court of Appeals in People v Nolis Ogando, APL 2020-00052. Our brief was authored by Rochester appellate attorney, David Abbatoy. The brief was joined by a number of amici: the New York State Defenders Association, the Chief Defender’s Association of New York, the Center for Appellate Litigation and the Monroe County Public Defender’s Office. The brief addressed the propriety of waivers of appeal, arguing that it was time for the Court to overrule the seminal appeal waiver decision, People v. Seaberg, 74 NY2d 1 (1989), where the Court first approved of courts utilizing appeal waivers. The Ogando case is being considered by the Court along with a number of other defendants’ cases from across the state in follow up to the Richard D. Timothy P. Court’s recent decision in People v. Thomas, 34 NY3d 545 (2019), where three Willstatter is a Murphy, Esq. is an appeal waivers containing false information were considered. criminal defense Assistant Federal lawyer in West- Defender, WDNY, NYSACDL also recently joined an amicus brief filed by Families Against chester County. a formerly chief appelMandatory Minimums in the rehearing en banc of a Second Circuit panel’s past-president of late attorney for the decision, United States v. Scott, 954 F.3d 74 (2d Cir. 2020), finding that New NYSACDL and a Legal Aid Society of York first-degree manslaughter is not a predicate crime of violence for purmember of the Board Buffalo, and a poses of the Armed Career Criminal Act (“ACCA”) or the Career Offender of NACDL. Vice-President of Sentencing Guideline because it can be committed by complete inaction and, NYSACDL. therefore, without the use of force. The Panel decision was written by Circuit Judge Rosemary Pooler joined by Judge Leval with Judge Raggi dissenting. The The Amicus Curiae Committee can be contacted if you have, or learn of, a matter in government’s petition for rehearing was which our participation is solicited. However, members are reminded to contact us as granted, so soon the en banc set of all early as possible in the course of the case because it does take time to recruit an author, active Second Circuit Court Judges will prepare, edit, print, copy and file a brief. hear the case. Our brief was authored Continued on next page Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

Amicus Curiae

Executive Director

Continued from previous page

Continued from page 9

by Alan E. Schoenfeld of Wilmer Cutler Pickering Hale and Dorr LLP with substantial assistance from FAMM counsel Mary Price and Peter Goldberger of Ardmore, Pennsylvania. The amici argued that it would violate the “rule of lenity” to extend the ACCA’s or Guideline’s “force clause” to crimes of omission. In determining both the scope of a criminal statute and the penalties it authorizes, the rule of lenity requires that ambiguities “should be resolved in the defendant’s favor.” United States v. Davis, 139 S. Ct. 2319, 2333 (2019). NACDL joined a separate amicus brief in the same case filed by a variety of defenders, including the National Association of Public Defenders. Finally, NYSACDL will file an amicus brief in the State Court of Appeals in

the case of People v. Duval, 179 A.D.3d 62 (1st Dept. 2019). Hunter Haney of the Center for Appellate Litigation represents the appellant. He argued that reversal and suppression are required because a search warrant on its face did not give adequate constitutional notice of which particular separate apartment or unit in the house would be searched. The Appellant further argued that the motion court was not authorized to rely on materials not explicitly incorporated into the warrant to uphold its validity, based on the holding of Groh v. Ramirez, 540 U.S. 551 (2004), a position adopted by a dissenting justice of the Appellate Division. NYSACDL will be represented by Ada Wang and Iris Greenquist of White & Case LLP. We expect to file a brief by the end of October.

for the year. Membership support plays a crucial role in NYSACDL’s success – both financially and in the power of the collective voice – and we are thankful for this milestone in such a challenging year. As renewals have begun processing for 2021, membership continues to look strong. Our Membership Committee continues to meet regularly to make sure we are serving the needs of our members, and enhancing our programs and services in response to the changing times. Throughout the year, NYSACDL also worked steadfastly in other areas. The Legislative Committee navigated a challenging legislative session, the Amicus Committee continued to produce important briefs on cases in the courts today, and initiatives like the Trial Penalty Project Committee moved forward. While we are looking forward to celebrating again, although socially distanced via Zoom, at our Annual Meeting on January 28th, the Board of Directors and I do not take for granted all we have accomplished in 2020. There are many who struggled throughout the year, and our focus continues to be how we can play a role in assisting our members, their colleagues, and clients. As always, thank you for your continued support of NYSACDL. Please reach out to me if there is anything you need or any ideas you may have. Be well.

Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

ourt of Appeals

Pertinent Criminal-Related Decisions March through June 2020 By Timothy P. Murphy, Esq.

March 24, 2020

People v. Tsintzelis People v. Velez 35 NY3d 925

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.

These two cases are decided together in a memorandum, reversing the AD. Judge Rivera authors a concurrence, joined by Judge Wilson. The court ordered new trials in both cases, following its recent precedent in requiring DNA-related testimony to comply with Crawford v. Washington, 541 U.S.36 (2004). See, People v. John, 27 NY3d 294, 312-315 (2016); People v. Austin, 30 NY3d 98, 105 (2017); see also,

Bullcoming v. New Mexico, 564 US 647, 666 (2011). A defendant has the constitutional right to cross-examine a testifying DNA analyst who witnessed, performed or supervised the generation of a DNA profile. Here, the DNA profile satisfied the primary purpose test and was testimonial. The analyst who testified failed to identify which stages of the DNA testing she was directly involved in or the extent of her independent analysis on the raw DNA-related data. Defendantâ&#x20AC;&#x2122;s Confrontation Clause rights were violated. The errors in both cases were not harmless. March 26, 2020

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Continued on next page

Appellate Report Continued from previous page

People v. Hymes 34 NY3d 587 This is a unanimous memorandum affirming the AD. The defendant’s ineffective assistance of counsel argument, based on his attorney failing to object to the court not instructing the jury that the victim’s out-of-court sexual abuse disclosures were only introduced for the purpose of explaining the investigatory process, was unpreserved. On this record, defendant failed to demonstrate an absence of strategic or other legitimate explanations for trial counsel’s omissions.

People v. Perez 2020 NY Slip Op. 02096 This is a 5 to 2 decision with Judge Feinman authoring the majority opinion. Judge Fahey wrote a concurrence and Judge Wilson authored the dissent, joined by Judge Rivera. The AD is affirmed. At issue is risk assessment instrument (“RAI”) factor number 9, wherein defendant was assigned 30 points for a prior New Jersey (“NJ”) conviction for public lewdness. This category allows for points where, among other scenarios, defendant has suffered a prior conviction or adjudication for a misdemeanor sex crime or endangering the welfare of a child (“EWC”) or any adjudication for a sex offense. See, 2006 SORA Guidelines, at 13; Corr. Law § 168-l(5)(b)(iii). The defendant, while living in NJ, touched himself and flashed a 12-yearold and two others who were watching through a nearby apartment window. The offense he pleaded guilty to in NJ was not a registerable sex offense there. The 30 points for this factor put defendant into the moderate level 2 range.

Relying in part on North v. Board of Sex Off ’s of NY, 8 NY3d 745, 753 (2007) (addressing whether prior federal child porn conviction qualified under SORA based on its “essential elements”), the Court provides a full overview of the dreaded SORA regime. The argument relied upon by the majority was not preserved by the prosecution below. In fact, the DA’s Office disavowed it. No matter though, the NJ offense to which defendant pleaded guilty was comparable to New York’s EWC statute under the North “essential elements” test. Affirmed. Here’s something you didn’t need to know: NJ criminal law doesn’t use the word, “felony.” They say “indictable” crime. Judge Fahey correctly asserts in his concurrence that the majority should have affirmed on a preserved prosecution argument, namely that the NJ and NY lewdness statutes are, using the North test, equivalent under the “misdemeanor sex crime” provision of RAI factor 9. The Court did not have jurisdiction to entertain the issue utilized by the majority. The dissent from Judge Wilson starts off this way: “[i]f hard cases make bad law, botched cases make even worse law.” This case made its way to the Court of Appeals “in a tortured form not likely to repeat itself.” The dissent questions why the majority is condoning an unpreserved argument made by a prosecutor who was all over the place in this abrupt SORA hearing. Moreover, if you’re going to compare statutes, why not, as Judge Fahey opined, go with NY’s public lewdness statute since it was a NJ lewdness offense at issue? While PL § 245.00 doesn’t require that the victim be a minor, according to the dissent, the offenses would still qualify as “analogous” under the North standard, but

warranting only five points under risk factor 9. March 31, 2020

People v. Delorbe 2020 NY Slip Op. 02126 Judge Garcia authored this affirmance of the First Department’s affirmance of a summary CPL 440 denial. Though all members of the court agreed in the result, Judge Wilson authored a concurrence, joined by Judges Rivera and Fahey. The defendant failed to preserve his ineffective assistance of counsel claim that his attorney did not object at the time of his guilty plea under People v. Peque, 22 NY3d 168, 176 (2013), in that the court failed to provide defendant with sufficient notice that his guilty plea may result in his deportation. Defendant pleaded guilty to attempted second-degree burglary eight months after being provided a written notice indicating that his guilty plea may result in adverse immigration consequences, including removal. This is so because theft-related offenses qualify as aggravated felonies under 8 USC § 1101(a)(43). He was sentenced to 5 years in prison and filed a pro se CPL 440.10 motion, asserting that defense counsel failed to inform regarding his risk of removal. The narrow preservation exception under Peque was inapplicable, as defendant had the opportunity to raise the issue previously. Under Peque, “deportation is a plea consequence of tremendous importance” and a court accepting a guilty plea must inform a defendant that he or she might be deported as a result of the plea. See also, People v. Suazo, 32 NY3d 491, 499-500 (2018). A defendant must preserve a challenge

Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

to the voluntariness of a plea and a due process violation claim stemming from the court failing to appraise the defendant in this regard. This is generally done through a motion to withdraw the plea prior to sentence (CPL 220.60(3)) or a motion to vacate the judgment after sentence (CPL 440.10). In a rare circumstance, a defendant will lack a reasonable opportunity to object to a fundamental defect which is clear from the face of the record. In this case, the record seems to indicate that defendant had actual knowledge of his immigration problem. The written notice handed to him at arraignment, while not sufficient to satisfy the court’s Peque obligations (a point emphasized in Judge Wilson’s concurrence), gave the defendant the opportunity to ask questions regarding the immigration consequences of his guilty plea. The defendant’s direct appeal and his CPL 440 appeal were consolidated. Aside from the Peque claim being unpreserved, Supreme Court did not abuse its discretion in summarily denying defendant’s pro se 440 claim of ineffective assistance of counsel for failing to properly advise of immigration consequences under Padilla v. Kentucky, 509 US 356 (2010). Finally, Judge Wilson provides a nice footnote (note 1) regarding the requirement that waivers of constitutional rights require a certain level of knowledge to be deemed valid.

People v. Williams 35 NY3d 24 Judge Fahey authored this opinion, which affirmed the AD. This is a companion decision to People v. FosterBey, also decided on March 31st. The defendant here was charged in a shoot-

ing death in NYC; the small amount of DNA recovered on the gun had more than one source. But the evidence of guilt was overwhelming. There was video placing him at the scene and his girlfriend testified he had her hide the gun. Put your acronym hat on. Here the trial court committed harmless error in denying defendant’s motion to preclude evidence of low copy number (LCN) DNA and forensic statistical tool (FST) evidence without first conducting a Frye hearing to determine if these principles / procedures have gained general acceptance in their respective fields. Frye v. US, 293 F. 1013, 1014 (DC Cir. 1923). The DNA-related evidence here was analyzed by the NYC Office of the Chief Medical Examiner (OCME). The OCME is the largest medical examiner’s office in the country and has been around since 1918. They are known worldwide. Defense counsel have described them as somewhat arrogant. As explained in the addendum to the opinion, LCN DNA testing analyzes amazingly small amounts of material, creating DNA profiles from almost immeasurably small samples by increasing the amplification cycles to essentially make more copies and allow analysis. The validation testing for utilizing the LCN method only approved the OCME doing this for potential DNA samples of at least 25 picograms for a multi-source DNA sample. A picogram is really small; try imagining a trillionith of a gram! Here only 17.2 picograms were tested. At the time of this investigation, the OCME was the only lab in the country that was employing the LCN method, and have since discontinued using it. (No red flags there.) The FST evidence was a computer software developed, and solely used by, the

OCME to calculate DNA-related ratios. It was the prosecution’s burden to establish LCN DNA’s general acceptance by the relevant scientific community. See, People v. LeGrand, 8 NY3d 449, 458 (2007). The trial court’s abuse of discretion in denying defendant a Frye hearing regarding both the LCN DNA and FST evidence was harmless in light of the overwhelming evidence of defendant’s guilt. People v. Crimmins, 36 NY2d 230, 241-242 (1975). Judge Fahey does a nice job providing the reader with a full overview of LCN DNA as well as the principles behind Frye. The Chief Judge authored a concurrence. She has a personal interest in DNA stemming from her time as the DA in Westchester County, and has authored two recent Crawford-related DNA decisions for the Court. In this decision, the Chief stands up for the OCME and its legitimacy as a prestigious laboratory, including the oversight conducted of its activities by the Commission on Forensic Sciences and its DNA subcommittee.

People v. Foster-Bey 35 NY3d 959 This memorandum affirmed the AD. This is a companion decision to People v. Williams, also decided on March 31st (see above). This decision, like Williams, found the trial court committed harmless error in denying defendant’s motion to preclude LCN DNA and FST evidence without first conducting a Frye hearing. This prosecution involved the non-fatal shooting of a NYC police officer. Only 16.3 picograms of DNA material on the gun was available for testing. There were several eyewitnesses and incriminating statements made by the defendant. As in Williams, the Continued on next page

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Appellate Report Continued from previous page OCME investigated the DNA portion of the evidence. The defense claimed (correctly) that these methods had failed to be generally accepted in the scientific community. The trial court abused its discretion but this error was harmless in light of the overwhelming evidence of defendant’s guilt. As in Williams, the Chief Judge concurred. April 30, 2020

People v. Middleton 35 NY3d 952 This was the only criminal decision issued in April; a unanimous memorandum, affirming the County Court. The accusatory instrument, charging official misconduct under PL § 195.00, was not jurisdictionally defective. The defendant was an alcohol and substance abuse treatment aide at Great Meadows Correctional Facility who allegedly revealed info to an inmate regarding an incident that occurred at the facility (in violation of office policy). The accusatory instrument did not have to allege whether defendant intended to benefit herself or the inmates in taking the action in question. May 7, 2020

People v. Holz 2020 NY Slip Op. 02682 Fourth Department Presiding Justice Whalen’s dissent (People v. Holz, 167 AD3d 1417, 1422 [4th Dep’t 2018]) is vindicated by the Court’s unanimous reversal here, authored by Judge Fahey. CPL 710.70(2) indicates that “[a]n order finally denying a motion to suppress evidence may be reviewed upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of

guilty.” Defendant pleaded guilty to a single count of burglary to resolve two burglary charges. The same dwelling was burglarized on two different dates. There was a De Bour issue involving jewelry being taken during the second burglary; defendant lost his suppression motion relative to this count. The AD erroneously concluded it did not have jurisdiction to address the suppression order because it was not related to the singular count which defendant specifically pleaded guilty. In fact, it was an “ensuing judgment of conviction.” “Ensue” means “to take place afterward or as a result.” The right to review a suppression order under this provision includes all counts encompassed by the plea agreement, not just the counts defendant specifically pleaded guilty to. This reading of the statute, which includes “the broadest of relational terms,” is supported by its text and history, as well as the intent of the legislature when the provision was enacted in 1971. It is important that the appellate divisions are able to review potential errors relating to judgments of convictions that are not otherwise waived or forfeited. This interpretation recognizes the practical realities of plea bargaining, which often involves resolving multiple charges in a single disposition. Erroneous suppression decisions should not be insulated from appellate review.

People v. Maffei 2020 NY Slip Op. 02680 The Chief Judge authored the majority opinion in this 6 to 1 decision. Judge Rivera wrote a dissent. The Second Department is affirmed and the defendant’s ineffective assistance of counsel (“IAC”) claim for his attorney failing to challenge a particular prospective juror

is rejected. A CPL 440 motion would be needed to flesh out any potential defense strategy in not challenging this juror. The defendant was charged with depraved indifference murder regarding a well-publicized fatal drive-by shooting. The prospective juror in question (“juror #10”) had seen the case reported in the media. His cousin and uncle were members of law enforcement. Several times he affirmed having made up his mind about the case while giving only ambiguous assurances that he could be fair and impartial. Yet defense counsel did not challenge juror #10 for cause or by peremptory. Even in the face of pretrial publicity, defendants are entitled under the state and federal constitutions to a fair and impartial jury verdict based on the evidence. Duncan v. Louisiana, 391 U.S. 145, 153 (1968); People v. Torpey, 63 NY2d 361, 365 (1984). A determination of this issue requires a review of the totality of the voir dire record. People v. Johnson, 94 NY2d 600, 614-616 (2000); People v. Cahill, 2 NY3d 14, 38-40 (2003). But it was the defendant’s burden to establish that defense counsel had no strategic or other legitimate reason for not challenging the prospective juror. This, according to the Court, required a post-conviction motion to address matters outside of the direct appellate record. The Court reminds here that most IAC claims should be pursued through a CPL 440 motion, which would ultimately allow for adequate appellate review. Among other things, the record was silent as to the identity of four prospective jurors who affirmatively answered that they would acquit if the People presented insufficient evidence

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of guilt. While trial courts should err on the side of granting cause challenges, as at worse you’re trading one impartial juror for another, defendants have a right to pick who they want on their jury. A transcript does not reveal the demeanor, facial expression and “other subliminal responses” when prospective jurors are questioned. If the accused and his or her attorney discuss things over (outside of the record) and have a gut feeling about an otherwise unappealing potential juror, it’s the defendant’s prerogative. In dissent, Judge Rivera pointed to the Sixth Circuit’s decision in Miller v. Webb, 385 F3d 666, 675-676 (6th Cir. 2004), where counsel’s failure to challenge a biased juror constituted IAC. (This decision was distinguished by the majority in its second footnote.) Indeed, a prospective juror challenged for cause where he or she indicates a state of mind likely to preclude the rendering of an impartial verdict must provide an unequivocal statement that he or she will be impartial. People v. Arnold, 96 NY3d 358, 363-364 (2001). Here, despite thorough questioning by the trial court on the topic of impartiality, juror #10, on multiple occasions, was unable to unequivocally say that he could be fair and impartial. Particularly in light of the state IAC standard being (at least on paper) more protective of defendant’s rights than the federal standard, there could be no legitimate or reasonable trial strategy to support keeping juror #10 on the jury. As Judge Rivera observed, if you wouldn’t board a plane with a pilot who was unable to confirm being able to fly the plane, why would you place your liberty in the hands of a juror who, in response to being asked if he could be impartial, says things like: “I hope so” and “I’m not sure”? Jury selection is solely within

the tactical province of defense counsel, with no veto power for the client. See generally, People v. Colville, 20 NY3d 20, 32 (2012). Discussions outside of the record regarding whether defendant himself wanted to keep juror #10 would be important to the attorney-client relationship, but should not substantively change the IAC analysis. And don’t forget the footnotes: There’s some back and forth with the majority about whether Judge Rivera’s first two footnotes, addressing the heavy pretrial publicity through cited media accounts of the case, ventured too far outside of the appellate record. See also, dissent, FN 6. Further, Judge Rivera provides some interesting social science factors in FN 10 addressing the likely candor of prospective jurors, depending on who asks the questions and how they are posed. And finally, look at Judge Rivera’s FN 12 where she addresses the potential impact of forcing indigent defendants to file CPL 440 motions to vindicate their constitutional rights to an impartial verdict. But see also, County Law § 722 (last sentence of last paragraph addressing the assignment of CPL 440 counsel; a 2019 amendment that came about largely because of NYSDA’s efforts). June 9, 2020

People v. Ball 2020 NY Slip Op. 03209 This unsuccessful People’s appeal is a unanimous SSM (fast tracked) affirmance, relying exclusively on the reasons set out in the 3-2 AD decision in People v. Ball, 175 AD3d 987 (4th Dep’t 2019). Onondaga County Court properly dismissed the indictment, as the DA ignored the defense request to instruct the grand jury on justification in this homicide prosecution. See,

PL §§ 35.15 (use of physical force); 35.20(3) (use of force during burglary); CPL 190.25(6) (necessary or appropriate instructions required).

People v. Harris 2020 NY Slip Op. 03208 This is a unanimous reversal of the AD’s affirmance of an order denying suppression. It’s another dreaded chapter in the LaFontaine saga, as the AD affirmed on a ground different from what the suppression court relied on. The defendant argued for suppression based on People v. Gokey, 60 NY2d 309 (1983), in that exigent circumstances were needed to justify a warrantless search of the suitcase defendant was carrying. The suppression court found Gokey was inapplicable and made no findings regarding whether exigent circumstances existed. The AD, however, affirmed, finding that Gokey applied but that exigent circumstances in fact existed. The AD only has jurisdiction where an error or defect “adversely affected the appellant.” CPL 470.15(1). See, People v. LaFontaine, 92 NY2d 470, 474 (1998); People v. Nicholson, 26 NY3d 813, 825 (2016). Though the AD did not err in finding that Gokey applied, the issue upon which it relied was not decided adversely to appellant. People v. Muhammad, 17 NY3d 532, 547 (2011). The matter was thus remitted to Supreme Court, NY County. June 11, 2020

People v. Page 2020 NY Slip Op. 03265 This successful People’s appeal is a 5 to 2 decision, authored by Judge Feinman. Judge Fahey authored the dissent, with Judge Rivera joining. The Fourth Department’s affirmance of Supreme Continued on next page

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Appellate Report Continued from previous page Court’s suppression order is reversed. At issue is the application of People v. Williams, 4 NY3d 535 (2005), and the limits of peace officer and citizen’s arrest authority under CPL 2.15, 140.25, 140.30, 140.35 and 140.40. CPL 2.10 and 2.15 list over a hundred individuals who qualify as “peace officers.” These are narrowly defined powers for officers who have either “special duties” or “a geographical area of employment.” Peace officers do not necessarily work in general law enforcement, but do have a limited need for police powers, which concomitantly require a determination of various levels of suspicion. A citizen’s arrest, on the other hand, requires under CPL 140.30 that the offense in fact be committed. For offenses less than a felony, the conduct must also occur in the presence of the arresting citizen. In other words, whatever mistrust is presently in the air for general law enforcement right now, we trust others even less to carry out these often consequential 4th Amendment intrusions. Here, a federal Customs and Border Protection (“CBP”) agent pulled over an erratic and arguably dangerous driver by utilizing emergency lights in the grille of his unmarked truck. There appeared to have been a number of VTL violations committed. After pulling over defendant’s vehicle, the CBP agent waited in his truck until a Buffalo Police Department (“BPD”) officer arrived. The BPD officer and the CBP agent approached the defendant’s vehicle together, with the CBP agent only observing (and not interacting with) the driver. The CBP agent left the scene after other BPD officers arrived. After the CBP agent had left, the BPD recovered a gun from the defendant’s vehicle following a search.

In Williams, two Buffalo Municipal Housing Police (“BMHP”) peace officers (as recognized under CPL 2.10 [17]) pulled over a vehicle for a seatbelt violation outside of their geographical jurisdiction. The officers ordered the defendant out of his vehicle and required him to open his mouth, which contained crack cocaine. The Court of Appeals affirmed the lower court’s suppression of evidence. The BMHP officers were not conducting a citizen’s arrest; rather, they were peace officers acting under color of law “with all the accouterments of official authority.” Williams, 4 NY3d at 539. Peace Officers’ statutory powers are specific and limited. They cannot just default to wearing the citizen’s arrest hat when convenient to justify their conduct, which in Williams was carried out under the guise of being general law enforcement officers. At bar, defendant also successfully moved to suppress, arguing that: (1) the CBP agent was not vested with peace officer powers under CPL 140.25, and (2) Williams instructs that this was not a valid citizen’s arrest because emergency lights were used to effectuate the vehicle stop. Supreme Court ruled that although the agent was a peace officer under CPL 2.15, he was not acting pursuant to his special duties under CPL 140.25(1)(a). The actions were not a citizen’s arrest under CPL 140.30 because emergency lights were utilized in the stop. According to the lower court, under Williams, the agent acted under the color of law with all the accouterments of official authority. The Court of Appeals was having none of that. The CBP agent, actually a “federal marine interdiction”(“FMI”) officer, did not specifically qualify as a peace officer under CPL 2.15, which covered “federal law enforcement [peace] of-

ficers” but excluded the FMI category of CBP agents under CPL 2.15(7). The court observed that the statute was amended in 2014, years after the creation of the Department of Homeland Security, which consequently carved up a number of federal agencies (including Customs and the INS). Accordingly, as the CBG agent was not a peace officer; there was no violation of any “peace officer” special duties and CPL 140.25 was not violated. Critically, the court observed in foot note 1 (and elsewhere) that no state or federal constitutional arguments had been presented. So this was just a technical statutory issue. In dissent, Judge Fahey pointed out the illogical consequence of the majority’s holding: The majority’s reading of Williams results in the absurd state of affairs that a law enforcement official, acting outside the official’s geographical area of employment, may not use emergency lights to effect a traffic stop, if the official is considered a peace officer, but is permitted to use emergency lights to effect a traffic stop if the official is not a peace officer. There is no conceivable policy justification for such a mismatch. (emphasis added) As Judge Fahey observed, the concept of a citizen’s arrest goes back to medieval England, when there was apparently a shortage of law enforcement officers to go around (those were the days!). As time went on, the law would distinguish between government and non-government actors making these intrusions into the lives of citizens. In the majority’s ruling, says the dissent, law enforcement’s ability to effect arrests under the guise of a citizen’s arrest is expanded here. A reasonable person would believe that the CBP agent inside his unmarked vehicle

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was either a peace or police officer; the actual legal status of the arresting officer is irrelevant. It is the outward characteristics of official authority that is pertinent. The law is meant to deter vigilantism and ensure that those whom society has chosen to protect them may be readily identified as such. CPL article 140 is designed to protect a citizen’s state and federal constitutional rights to be free from unreasonable searches and seizures. See, US Const., Amend. IV; NY Const., art. I, § 12. The majority’s statutory interpretation falls short of this mission. The bottom line might be this: unlike this CBP agent, private citizens don’t have emergency lights in the grille of their cars to effectuate and induce vehicle stops. Moreover, much of the concern regarding peace officers is their

lack of training and, frankly, skin in the game. A fully trained career law enforcement officer may have a lot to lose, at least in theory, for violating the law. The same is not likely true for the typical peace officer, for instance, the “dog control officers for the Town of Brookhaven” (CPL 2.10 [56]). So when a full time federal agent performs acts that plainly implicate the 4th Amendment, how can his or her conduct not be subject to at least the same scrutiny (statutory, constitutional or otherwise) as we would place on the acts of a part time “dog officer”? To even imply that the federal agent here was effectuating a “citizen’s” arrest using his unmarked vehicle is like LeBron James removing his Lakers jersey and playing a pickup game against me; just two “citizens” playing some ball.

June 23, 2020

People v. Lang 2020 NY Slip Op. 03487 This is a unanimous reversal of the Third Department based on a violation of CPL 270.25(2). In this homicide jury trial, a sitting (sworn) juror failed to appear for the ninth day of the proceedings. In such a situation, a trial court is obligated to make a “reasonably thorough inquiry” on the record into the juror’s absence and ascertain when he or she will be reappearing. If the court determines there is no reasonable likelihood of the juror reappearing or if he or she has not done so within two hours of the scheduled time to appear, the court may presume the juror to be unavailable. However, the court must further provide the parties with

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Appellate Report Continued from previous page an “opportunity to be heard” and place on the record the court’s findings and determination. See, People v. Jeanty, 94 NY2d 507, 512, 516 (2000). This issue was properly preserved at trial through timely and thorough objections, as well as through a mistrial motion. The trial court failed in its obligations here, only providing a limited and inaccurate opinion on the situation. A new trial was ordered. June 25, 2020

People v. Hemphill 2020 NY Slip Op. 03567 This is a 6 to 1 affirmance of the First Department, with Judge Fahey alone in dissent. The defendant pursued a third-party guilt defense of his homicide charge, stemming from the shooting death of a two-year-old in the Bronx. There was no obligation on the part of the DA’s office to inform the grand jury (“GJ”) of exculpatory evidence that identified a third party as the perpetrator. See generally, People v. Mitchell, 82 NY2d 509, 513-514 (1993).The trial court also did not abuse its broad discretion in permitting evidence of a third party pleading guilty to a lesser charge than homicide (a weapon count). You really need to read Judge Fahey’s dissent to understand the case. Apparently, the trial court also denied the defendant’s request to call the court reporter from a 2007 GJ presentation. A completely unreliable prosecution witness (Gonzalez) identified a third party (Morris) as the shooter. Morris went to trial and ended up with a mistrial. A DNA test regarding physical evidence motivated the DA to abandon their prosecution of Morris. But Gonzalez recanted and pointed the finger at defendant (Hemphill), who was

then placed on trial. Gonzalez did not identify Morris by name before a 2006 GJ. However, she explicitly told a 2007 GJ that Morris was the man. Defense counsel mistakenly impeached Gonzalez with the wrong GJ transcript. The trial court permitted the People to call the 2006 GJ court reporter as a witness, but denied the defense the same request regarding the 2007 GJ court reporter. The trial court thus prevented defendant from effectively impeaching the lying witness and exposed defense counsel to unfair criticism by the prosecutor for purportedly fabricating GJ testimony. The prosecutor seized on these favorable events in their summation. The jury, armed with the wrong impression about this unreliable witness, convicted the defendant. In short, the trial jury was kept from learning that Gonzalez had specifically identified Morris as the shooter by name under oath. Doesn’t sound very fair.

And a Few Noteworthy Recent Second Circuit Criminal Decisions… December 12, 2019

United States v. Lett 944 F3d 467 This successful government’s appeal was unanimously vacated and remanded with instructions for the District Court to reinstate the indictment. The opinion was authored by Judge Park, with Judges Winter and Pooler joining. Here we see the intersecting of a District Court’s authority to release a criminal defendant under the Bail Reform Act (“BRA”), 18 USC § 3142, and the government’s authority to detain aliens

under the Immigration and Nationality Act (“INA”), 8 USC § 1101, et seq. Mr. Lett is a citizen of Trinidad and Tobago. He was arrested at JFK airport with over two kilos of cocaine, and ultimately charged with importing cocaine and possession with intent to distribute under 21 USC §§ 841(a), 952 and 960. An immigration (ICE) detainer was lodged. The defense argued that the government needs to choose a single vehicle for having a District Court impose custody: either the BRA or the INA. According to the defendant, this is evidenced by § 3142(d), which requires that a non-citizen detainee not be held more than ten days unless ICE takes the person into custody. If ICE takes no action, then the defendant is treated in accordance with the BRA. The District Court ultimately agreed and, upon learning that ICE would not release the defendant, dismissed the indictment with prejudice. The District Court erred in finding the two statutes in conflict. Immigration authorities may lawfully detain a criminal defendant who has been ordered released under the BRA. The statutes serve different purposes, govern separate adjudicatory proceedings and provide independent statutory bases for detention. The standard for detaining under the BRA has no bearing on the issues addressed under the INA, and vise versa. While a number of District Courts side with defendant’s position, see, e.g., United States v. Boutin, 269 F. Supp. 3d 24, 26-29 (EDNY 2017), this approach is consistent with the Third, Sixth and DC Circuits. See, e.g., United States v. Nunez, 928 F.3d 240, 247 (3d Cir. 2019). Courts cannot order the executive branch to choose between criminal prosecution and removal. Both can be generally pursued simultaneous-

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ly. Moreover, § 3142(d) is a mere notice provision providing other agencies authority to detain and further limiting the District Court’s ability to detain the individual. Finally, regulations governing the INA only prohibit aliens from voluntarily departing during a criminal case; they do not impact the government’s authority to deport. See, e.g., 8 CFR §§ 215.2(a); 215.3(g). June 8, 2020

United States v. Thompson 961 F.3d 545 This is a unanimous vacatur and remand authored by Judge Walker. Judges Carney and Koeltl (sitting by designation from the SDNY) joined the opinion. The District Court of the NDNY erroneously failed to apply the categorical approach in determining whether defendant qualified for a 21 U.S.C. § 851(c) sentencing enhancement under § 841(b)(1)(B)’s prior “felony drug offense” (“FDO”) provision, as defined in § 802(44). Defendant was convicted at bar of conspiracy to distribute and possess with intent to distribute marijuana. The prior offense at issue was a state crime: criminal sale of a controlled substance (“CSCS”) in the 5th degree (P.L. § 220.31). Under the categorical approach, the District Court must look at the elements and nature of the offense of conviction, as opposed to the underlying particular facts, and ask whether the least of the conduct falls within the scope of prohibited federal activity. Taylor v. United States, 495 US 575, 600 (1990) (addressing 18 USC § 924(e)). Both the language of § 841(b)(1)(B), § 851(c) and § 802(44) (describing “an offense that is punishable”) and its legislative history support the congres-

sional intent for courts to look only to the fact of conviction of crimes falling into certain categories, and not to their underlying facts. Section 841(b)(1) was enacted in 1970 and amended in 1994, when the definition of an FDO was moved to § 802(44). The categorical approach in the law did not change. See also, McCoy v. United States, 707 F3d 184, 188 (2d Cir. 2013) (recognizing categorical approach for prior felony drug convictions to be a “long-accepted practice”); see also, United States v. Savage, 542 F.3d 959, 964 (2d Cir. 2008) (applying modified categorical approach in determining whether prior conviction qualifies as predicate under USSG §4B1.2). This approach also avoids 6th Amendment concerns, as any fact, other than that of a conviction, that increases a penalty for a crime beyond the statutory maximum must be submitted to a jury. Descamps v. United States, 570 US 254, 269 (2013). Not only was the District Court wrong in not applying the categorical approach, but the prior NY drug conviction did not qualify under this standard, as NY criminalizes certain compounds (hCG, a pregnancy hormone) under Public Health Law § 3306 that are not covered as a federal analogue under § 802(44). See also, United States v. Townsend, 897 F.3d 66, 75 (2d Cir. 2018) (categorical approach used to find CSCS 3rd not to be a predicate for USSG §4B1.2 purposes; hCG also at issue). (Incidentally, the Court observed in footnote 3 that defendant was sentenced prior to the enactment of the 2018 First Step Act and therefore does not benefit from the non-retroactive heightened threshold for § 841(b)(1) (B).) In short, the District Court erred in finding that defendant’s 2002 CSCS 5th degree conviction served as an FDO for purposes of § 841(b)(1)(B). The

matter was thus vacated and remanded to the NDNY for resentencing. June 29, 2020

United States v. Perkins 2020 US App Lexis 20509 Here’s a little unpublished summary order with some hidden prizes. The panel consisted of Judges Pooler, Raggi and Lohier. Defendant’s probation in the NDNY was revoked based on seven different admitted violations. However, a probation office letter was not disclosed. The defense was thus not afforded an opportunity to make a statement and present mitigating information regarding the letter, in violation of her due process rights and Fed. R. Crim. P. 32.1(b)(2). The matter was vacated and remanded to the District Court. A few “take-aways”: Normally, only issues presented in the appellant’s principal brief will be considered by the Second Circuit. However, this issue, though normally waived, was addressed by the panel in its discretion as a manifest injustice would have otherwise resulted. The Court further observed that the issue was not deemed moot just because the defendant was no longer imprisoned. And finally, the probation letter in question, though not made officially part of the appellate record, was considered by the Second Circuit as it was deemed “material” under Fed. R. App. P. 10(e)(2). A

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RACE, WHITE SUPREMACY AND BLACK LIBERATION by Kenneth Montgomery

Kenneth Montgomery is an adjunct professor at Fordham Law in the trial advocacy department, and a Professor in the Black Studies Department at Brooklyn College. He currently serves as a member of both the S.D.N.Y. and E.D.N.Y. CJA panel and both Capital panels. He also serves on the federal death penalty working group in Washington, D.C. COLLAGE ILLUSTRATIONS BY MARLIS KRAFT

After originally committing to do the article, I was, for several reasons, a bit hesitant to actually write it. The first reason is that I don’t think it’s the responsibility of Black people to teach, remind or explain to White people how immoral racism is, nor how much America owes its society to the oppression and alienation of Black people in its colonial democracy. Let’s be honest, White people in America don’t have to deal with race as a matter of survival, their privilege ensures that. I was especially hesitant to write something for a readership of mostly White criminal defense attorneys, considering that so many of our clients are Black and Brown and the majority of prosecutors, judges, law clerks and jurors are White. If there is any group of White Americans who are in position to have insight and context to the insidiousness and destructive nature of race in America as applied to Black people, it is the criminal defense bar. You would think so, right!? So many of my White peers have overheard racist dog whistles or overt racism Continued on next page

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Race Continued from previous page

from family – friends – colleagues – judges – strangers, and adversaries thr oughout the course of their lives and careers. I wonder how many of my White peers actually have Black relationships Black presence in positions of prominence outside of their profession does not mean the end of racism and racist and whether those policies, nor even changing paradigms in relationships are ongoing American society and in the American or just aberrational? In legal system. many ways, the defense bar is an example of race relations in America. We have a race issue in both the state and federal defense bars across this country. Have you looked at the percentage of Black and Brown Federal prosecutors in the DOJ, appointed Black and Brown District Court judges, Black and Brown attorneys on CJA panel, or Black and Brown Death penalty team members? Some may associate Black people in those above positions as being a sign of Black excellence, but I’m not one of them. In my experience, the “first Black” rhetoric in America is usually a sign for Black people, as a collective, to raise their antennae and embrace the fact that there are plenty of Black people in America that, not only are comfortable with White supremacy, but are actually advocates and facilitators of it. True Black leadership is not married to American political parties or corporations, nor any ideology for that matter. It is tied to Black liberation and freedom for a group of people that suffer domestically and globally. In my personal experience, simply having Black people in certain positions does not facilitate Black liberation and freedom. After all, White supremacy has always done a very good job of diversifying white nationalism in America. Black presence in positions of prominence does not mean the end of racism and racist policies, nor even changing paradigms in American society and in the American legal system. Black liberation and freedom has little in common with the American electoral system. Electoral politics is simply the mechanism for America to control the narrative to deny the horrible condition that it created for millions of Black people across America. This society is built on a faulty and illogical premise, not surprising for a society so infused with anti-intellectualism. Here is the basic problem and paradox that America presents as Jack O’ Dell mentions in the book, Climbin Jacob’s Ladder by Nikhil Pal Singh:

Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

“The paradox this presents is one of a nation being born in the fires of an anticolonial revolution while at the same time consolidating its state power and sovereignty on the basis of preserving the slavery variety of colonialism.” In other words, America got British colonialism off of its back by simply replacing the British colonial overlords with Slave masters, Plantation owners and an entire system committed and dedicated to state-sponsored terror and violence against those of African heritage. The birth of the American Dream and its white nationalistic purpose is permanently tied to the destruction of people of African heritage here in America. The American version of slavery was particularly unique in that it was ultra-violent. That violence was normalized in every area of American society. Violence was the tool that helped facilitate the financial success of America. Cotton was King, and America was willing to dehumanize, torture and subjugate Black people to such a degree that the truth about the atrocities committed to Black people is pretty much removed from American history and its educational system. Our modern criminal justice system is, in many ways, a continuation of that terror reigned upon Black people. Through might, and the buying in of every facet of American life, the American “Rule of Law” and its legal system has been the vanguard for White supremacy and White nationalism. The rule of law, in many regards, is justification that the means which was slavery justified the end, which is American exceptionalism and power. That paradox has always shaped the development of America, and the American legal system has been one of the most brutal mechanisms of White supremacy. The federal criminal bar is a special kind of algorithm, as many of you already know. Any legal system that has a 90% plus conviction rate at trial is less about legal acumen and skills and more about the system itself, a system that has convinced the majority of its citizens and institutions that the presumption of innocence does not extend to its Black citizens. That is accomplished culturally by the information and media institutions, as well as the educational system in America. The results in the courtroom are reflections of a society that is desensitized to Black humanity and personhood.

The American version of slavery was particularly unique in that it was ultraviolent. That violence was normalized in every area of American society. Violence was the tool that helped facilitate the financial success of America.

I believe in freedom of speech, but I also believe that we have an obligation to condemn speech that is racist, bigoted, anti-Semitic, or hateful. — John Lewis on speech in Walking with the Wind: A Memoir of the Movement

In the Federal Defense Bar, we are often tasked with representing clients who lead lives filled with tremendous adversity. When you study their narrative and social history, you quickly realize the role that race has had in defining their life circumstances. You understand the symbiotic relationship between American History, trauma, and autonomous choices. You understand the correlative and causal connection between your client’s life and 18 U.S.C. 3553(a). The difficult part comes with educating a jury, but more importantly an Article III judge at sentencing who, in their opinion, has heard and seen it all. How many of us have heard judges and prosecutors both insinuate that others were lucky to get out of your client’s circumstances, inferring that your client could have too, but he or she Continued on next page

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Race Continued from previous page just made all the wrong choices. Many prosecutors, judges and even jurors are in a position of privilege, many in the defense bar are also a part of that privilege. Often, those of privilege feel personally affronted by a history that connects their privilege to the broken lives of the Black and Brown people they have to judge, prosecute, or represent. After all, if America was truly a meritocracy, then the descendants of slaves would have something to show for it, since no one could possibly work harder than a slave, right? It’s amazing how often in America we hear how hard someone’s ancestors worked when they immigrated to America. Do we ever think about how hard those people of African heritage who actually survived the boat ride here and the plantation must have worked, only to be systematically alienated in a society committed to and preoccupied with their alienation? Hopes and dreams deferred and lives rendered hollow and meaningless. In most State and Federal Defense Bars across this country, you have a homogenous group of White lawyers with similar life experiences and social synergy, who sometimes are either incapable or unwilling to tell the story of their Black or Brown clients as their allegiance is to the American paradigm and not so much their client. You have some prosecutors who only see Black or Brown as a cancer to an otherwise well-functioning social order. You have some judges who fail to see the complexities in the lives of Black and Brown defendants and have no problem imprisoning them for decades in their protection of the rule of law and maintenance of status quo. You also have some prosecutors and judges who realize it is an imperfect system

Take a long, hard look down the road you will have to travel once you have made a commitment to work for change. Know that this transformation will not happen right away. Change often takes time. It rarely happens all at once. In the movement, we didn't know how history would play itself out. When we were getting arrested and waiting in jail or standing in unmovable lines on the courthouse steps, we didn’t know what would happen, but we knew it had to happen. — John Lewis on protesting in Across That Bridge: A Vision for Change and the Future of America

Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

and that Black people may be the casualties of that imperfect system, and they follow their intellect and consciousness and do their best to address that in the name of the rule of law. For those at the bottom of America’s social order, the rule of law in practice has always been a concept and mechanism for power and to maintain social order in America. It operates with an iron fist against Black and Brown people. This moment in history reflects just how hypocritical and powerful is the rule of law. The hypocrisy of the rule of law is reflected in this current administration in Washington, which tells us that there is nothing in the rule of law that will allow its citizenry and political apparatus to hold a corrupt leader accountable. Laws will be broken, people will be pardoned, lies will be normalized. The rule of law will be manipulated to maintain the social order of White nationalism in America. The American information system is much more effective at shining a light on looters at a protest than on those looting on Wall Street, corporate America, and those in government looting public funds. Our criminal justice system authorizes the death of its own citizens — mainly based on race, and operates on the raiding of poor communities of color with sweeping RICO indictments and targeted reverse sting operations. These are just a few of this system’s reliable hallmarks of racial discrimination. Supreme Court Justice Taney was absolutely right when he surmised in the Dred Scott Decision: “that Blacks had no rights which the White man was bound to respect; and that the Negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic, wherever profit could be made by it.” He further opined … “it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration” Continued on next page Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

Race Continued from previous page Who knew some 100 plus years later the well-respected Taney would be so accurate? His opinions help you understand how, after Brown v. Board of Education, on the upper west side, White parents align with each other and protest against Black and Brown children coming into their school district. Liberal blue New York has one of the most segregated school systems in the …this isn’t the first time that White people country. Taney’s words shed light on have stood in line with Black people, that how America is infatuated with Black entertainment and sports, and, at has been a phenomenon from the the same time, with the management Abolitionism period to the civil rights era. of Black dysfunction created and perpetuated by White supremacy and White nationalism. Another reason I was hesitant in writing this article is I wanted to avoid the cliche viral nature of this new digital corporate age. After George Floyd’s death, I observed a host of corporations and institutions, many with scandalous racial histories up until 2020, voicing their support of the concept and slogan “BLM”. I saw federal judges author open letters about the racist nature of the legal system ( I read it with my eyes rolled). I observed tech companies like IBM who hardly hire Black tech people change their logo to RED, BLACK, and GREEN (I laughed out loud then rolled my eyes). I saw the NFL, which famously black-balled Colin Kaepernick and suppressed Black consciousness with the support of an American president and its fans, voice support for Black lives after its partner, Jay Z, surmised that we were past protesting. Hell, I was even asked to write this article (don’t think you would be hearing from me otherwise). The list goes on and I can’t for the life of me see how any critical thinking Black person doesn’t see all of it for what it is — an insult to our intelligence and public relations activations based in commerce and capitalism. Do we really believe that White privilege and cognitive dissonance has blinded and prevented White people and American society from being aware of the atrocities of the trans-Atlantic slave trade, the Red Summer of 1919, the Tuskeege experiment, the rape and brutality of Jim Crow, redlining, Slave codes, all the racist laws and policies, (both locally and federally), the effectiveness of de facto segregation, voter suppression, the constant dog whistling in American politics and business, the continued alienation of Black and Brown people socially, politically, academically, and economically?....Call me a cynic but I don’t believe that. When people tell me “but this moment in time feels different, you see how many White kids are protesting?” I’m prompted to remind them that this isn’t the first time that White people have stood in line with Black people, that has been a phenomenon from the Abolitionism period to the civil rights era. Yes, quite a few white people have lost their lives fighting White supremacy, from John Browne to Paul Guihard to William Lewis Moore and many more. Despite White acknowledgement and, in some instances, White alliances, the brutality of White supremacy has remained. In American history, the truth is hardly ever told about whiteness. Most White people in America have no idea about the history of Whiteness pre-America and the development of America. Irish and Italians, along with other Europeans, are

Ours is not the struggle of one day, one week, or one year. Ours is not the struggle of one judicial appointment or presidential term. Ours is the struggle of a lifetime, or maybe even many lifetimes, and each one of us in every generation must do our part. — John Lewis on movement building in Across That Bridge: A Vision for Change and the Future of America

Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

recent invitees to the Whiteness party. However, many would come to figure out just what it means to be American, which is to hold anti-Black feelings or ideology. Many of us who are trial attorneys and actually pick jurors for a living (no disrespect to my fellow federal trial attorneys, we don’t actually pick federal jurors, the Judge and the Federal System Maybe we should listen to Kwame Ture when does) know how deeply infected this society is because of race. We know that he suggests that White America should look America could never be as great as it within itself and its own humanity to civilize props itself up to be, until it confronts its racist past and present. Many of us itself, as opposed to civilizing Black know that all these diversity panels and and Brown people. committees are still just mechanisms of power for White supremacy to control the narrative on racism. Those panels and committees have been around forever and hardly ever address the underlying factors that perpetuate White supremacy and the system which excludes lawyers like myself and others. The first Black or Brown with an Ivy League education is hardly a formidable response to systemic oppression. It’s just a nice window dress towards the perniciousness of White supremacy. So, no, a group of White kids and young adults trying to weaponize their privilege in protest looks good optically, if you want to believe in the good parts of America, but it won’t dismantle a system that is unrelenting and purposive. So where do the solutions lie for Black liberation and freedom? I think many of the answers lie outside of the rule of law and the legal and political system to which many attorneys are beholden. Our solutions will be found in stakeholders from our communities who are committed to making sure Black and Brown children are not only protected but are given a true intellectual, educational and cultural experience outside of the filter of Whiteness. A paradigm that gives the community a truthful recitation of American history and its place not just in America, but in the world. Educational programs offering mentorship and apprenticeship for the young people, while also facilitating practical solutions that facilitate control of their political and social environment. The end goal is to have communities of color control their own ecosystem, which is really difficult to achieve when you are on the world’s stage and everyone is invested to some degree in your oppression. The innovation and intellect necessary for Black liberation won’t be found in the electoral process or American social activism, it will be found in intelligent radical thought and action, but also, in self-reliance and determination away from White supremacy. That is a thought process that makes most people, regardless of race, uncomfortable. After all, America has spent a lot of resources to destroy any remnants of Black nationalism or Black intellectual thought. So, what are some things that can be done by the lawyers and practitioners in the criminal justice system? Maybe we should listen to Kwame Ture when he suggests that White America should look within itself and its own humanity to civilize itself, as opposed to civilizing Black and Brown people. Maybe, as practitioners, we should be focused on accurately telling the history of our clients and the history of America and how the two intersect. We shouldn’t ignore issues of history and Continued on next page Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

Race Continued from previous page race. Maybe we should be making sure our staff, legal teams, capital teams, habeas teams have members who can tell the stories of our clients and who understand race and the Black and Brown experience in America and around the globe. Those are just a few of the things we can do, however, we must all first recognize that the legal system in America is one of the main reasons why we still have a deadly pandemic besides the virus, and that’s the pandemic of White supremacy. We need courageous and intelligent attorneys who are willing to speak truth to power. As criminal advocates and litigators, our opportunity to teach in an insanely inhumane and racist society is one of the most revolutionary things we can embark on. We are positioned between our client, who is often the victim of American terror and history, and a system of judges, prosecutors, and jurors made powerful and privileged because of our clients’ alienation, and the two worlds are more connected than they both would acknowledge. That is a heavy responsibility that exists regardless of whether the most recent Black death at the hands of American law enforcement is captured via someone’s phone for all the world to see. The world has become complicit and complacent to Black death. These grotesque examples on tape and on the news, are paved over by the other, more subtle everyday examples of social, political and economic alienation of Black people. Until those subtle examples are dismantled, we will be in the same perpetual cycle. The dismantling will be uncomfortable, as it should. No matter how uncomfortable America is as a society in dealing with race, it pales in comparison to the millions of Black people that have had their humanity hijacked by the illogical, unreasonable and destructive concept of race that has been perpetuated throughout America’s short history. A

Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

Q&A with Mildred Morillo Staff Attorney at NYCDS and new member of NYSACDL

Millie and I are colleagues at NYCDS. She joined our office in December 2019 and recently moderated an office wide discussion related to Black Lives Matter and the system wide effects of racism both inside and outside of the institutions we both work in. I was impressed with how she took on that role of leading and moderating the discussion as one of many first steps within our office to reckon with conscious and unconscious racial bias and wanted to engage in more of a dialogue with her and give her a platform to be heard by all our members. JH: Millie, welcome! Can you start by just sharing your path to NYCDS?

MM: I graduated from John Jay College with a bachelor in criminology and went to New York Law School. During my time at New York Law School I also worked as a substitute teacher and began my legal career as a defense attorney with Queens Law Associates in 2015. JH: What drew you to the practice of law and criminal defense in particular?

(CONTENT HAS BEEN EDITED FOR LENGTH AND CLARITY)

MM: My dad owned a bodega in the Bronx in the â&#x20AC;&#x2DC;90s. He was robbed at gun point two times before buying a gun of his own. During a random lotto check, the Continued on next page

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Geofencing Continued from previous page police were tipped off to the gun and my dad was arrested and ultimately convicted of CPW. I was 12 years old. That was the most traumatizing experience to see my dad in handcuffs. It was at that moment that I thought I should be standing there next to him. Right then I knew that this [being a public defender] is what I needed to do. JH: One of the main issues we are discussing is the issue of racism within the system and in our everyday lives. If you are comfortable sharing; what is your racial identity and how do you see that shaping your experience and perspective?

MM: I am comfortable discussing it. I think there is a difference between race, ethnicity, and national origin and I think that a lot of people get those three concepts confused. I identify as a Black Latina who is American. I grew up in the Bronx and I didn’t really become aware of how much my identity played into my practice until about my second year of practicing law. I saw the differential treatment by some judges in Queens between black female attorneys and everyone else. There were about a handful of judges that made their biases clear. JH: As women in criminal defense we often experience gender inequality in what is largely still a male dominated field; how do you feel your experience as a Black female lawyer compares to what you see non-Black female lawyers describe regarding inequity in their workplace?

MM: Black female attorneys are the most disrespected group in our field. I

can’t tell you the amount of times court officers, correctional officers, judges, prosecutors, and even some of my own colleagues have mistaken me for a client, a social worker, a parent, etc. I’ve gotten yelled at, berated, and humiliated multiple times by judges in front of other non-Black attorneys. JH: Have you felt comfortable broaching that subject of racial bias in the courtroom?

MM: I haven’t felt comfortable yet to do so. We are talking about the color of our skin which we have no control over and you are in a very vulnerable position to address those issues as they happen. I have had a white supervisor who viewed a judge’s treatment of me and confirmed based on her experience and perception that it was due to my race that I was experiencing that discriminatory treatment. It took her telling me that for me to comprehend that yes that judge was being racist towards me. JH: It does put people who are experiencing racial discrimination in a tough position to say they need to speak out whenever they experience discrimination in the court system, lets say as Black attorneys. You want to advocate for your client and all of a sudden the issue is about you and your identity. It could feel like an unfair burden to place the people affected by this behavior in the position of having to take it on solely by themselves. That is why I think these discussions are important for white attorneys to have and engage in so that we can all examine our behavior and change our actions as well as addressing racism that we witness without having to wait to be told about specific problematic behavior as it happens to others.

Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

JH: What was your experience as a Black law student; did you see racial inequality in your school experience? In internships? Opportunities?

MM: I was an evening student throughout law school. I personally did not see any racial inequity in my law school partly because the evening division of the law school was comprised of a fair amount of Black and Latino law students. The internships themselves, however, were infested with microaggressions. Students from different law schools were vocal about their biases. It was difficult to not lash out every time I heard discrimination throughout my time there. I remember specific instances of having to educate people on the culture and why its wrong and ineffective to generalize. For the most part, I adapted by keeping to myself and focusing on my work. JH: What do you feel is your role within the system as a public defender? What do you most hope to achieve for your clients?

MM: It is our duty to tell our clients’ story - not just how it relates the facts of the case, but their experience in the criminal justice system in general. Too many times I’ve been told to gloss over clear facts and evidence of excessive force because “it would confuse the jury”, “not relevant to the facts of the case”, “insufficient evidence of racism”. Unless we have a video, or audio or some other “smoking gun” of clear excessive force, we often times ignore our client’s plead for justice from police misconduct. JH: Has that changed since recent events?

MM: I certainly hope so. I hope moving forward we begin to elevate their voices and stories more. JH: You mentioned in a previous conversation that you have been involved in social activism for many years; Can you tell us how you came to that involvement and what that has meant for you?

MM: I started my activism in 2012 when Trayvon Martin was murdered. Once his murderer was acquitted, I organized marches and protests with the student organizations in my law school. In 2013 I stumbled on #BlackLivesMatter on twitter and continued that conversation in law school and anyone who was willing to hear. In 2014, I hosted numerous “Know Your Rights” sessions in the Bronx and volunteered as a mentor in StreetLaw. StreetLaw is a program that connects law students with middle school students in educating them on their 4th amendment right. We spoke about all the injustices in the criminal justice system, the levels of intrusion, and how to try to avoid being killed by the police. As vice president of the Latin American Law Student Association (LALSA), Vice President of the Criminal Law Society, and NYLS ambassador in MetroLALSA, I moderated discussions relating to police reform with all student organizations. I also moderated the Policing Post Ferguson lecture at the 2015 MetroLALSA Pa’Lante Conference. While working in Queens, I also volunteered in Youth Court. Youth court is a program with consent of the 101 precinct and the Queens District Attorney office that handled select criminal cases involving children under the age Continued on page 48

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of 17. I mentored high school students as “attorneys” in either the student or community advocate side. JH: Youth Court sounds like a great program within the criminal justice system which actually empowers young people and leads to resolution and growth rather than stigma and criminal records. For our young clients of color that can be the difference in a future with potential versus being trapped within a racist system. Hopefully these are the types of programs which continue and are expanded as options in the future. JH: In your years of activism and being involved in protests have you seen something similar to what is happening in our city and our country now? What do you see driving the current momentum and what would you want to see happen to continue that momentum?

MM: I think that because of the coronavirus pandemic, people are constantly reminded of the gruesome images of George Floyd’s death. People are forced to reflect and assess their own values because of this gift of time we’ve been forced to take. This time, it feels different. Because we’re engaging more, I am hopeful for positive change. For the first time, our governor seems genuinely interested in what we have to say and how we can shape our criminal justice system to reflect our morals. I’m hopeful that Black voices will be heard, considered, and discussed when we shape what our police department should look like. JH: When we walk into our criminal courthouses again (whenever that may be!); we will likely see once again that

our clients are disproportionately Black and Latinx but I think the face of who their attorneys are at least is changing; meaning more Black and Latinx attorneys. What do you think about the change in how the defense bar looks and how that affects how our system functions moving forward?

MM: Diversity, especially in our field, is necessary. Let me put it this way: if all my clients were non-Black, english speaking, American citizens, with little to no collateral consequence, then I can see the flip side argument of diversity being less of a priority — but since our criminal justice system is made up of people like me, the field REQUIRES people like me. I distinctly remember my father having a difficult time communicating with his attorney because of the language barrier. Too many times was I required to be his Spanish interpreter. As an attorney, the evidence and witnesses I’ve been able to obtain and use in my cases is a direct result of me being bilingual, and being able to communicate directly and therefore connect with others. We NEED more Black and Latinx attorneys, not just for the practicality but because we can and have contributed to progress of our laws. Representation matters! JH: How have bar or professional organization memberships affected your professional development? Are there ways in which you think they could do more to not only increase diversity of membership and leadership but actively fighting systemic racism?

MM: I think these Bar Associations are so important to be a part of. I love

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learning new ways to attack a case. Often times I find myself with a lot of unanswered questions because I’m scared that they’re stupid questions. I think “why didn’t I know this? Why am I now just learning this? How do I file this? If I ask a supervisor will they judge me for not knowing the answer?” Professional organization memberships allow the questions to be answered in a controlled educational environment. As for what more organizations can do; I think that because we are attorneys with specialized knowledge, we have a duty to spread that knowledge for the fairness of others. Attorneys are attorneys 24/7 — that drive for social justice cannot end after the verdict at 5pm. That fight needs to extend at all

hours for all ears. There are ways we can collectively end systemic racism; it’s simple. Start from within. In assessing our own contributions to racism, we become aware of how to avoid it moving forward but as attorneys, we must spread that knowledge to everyone willing to hear. We can because we have credibility and therefore a duty to educate. Its not enough to not be racist; we have to be anti-racist and that takes work! That discussion must include our friends from more conservative areas. They might not want to hear from me, but they may hear from you! JH: Thank you so much for taking the time to talk and we hope to see more of you in NYSACDL! A

Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

IN MEMORIAM

Past-President William I. Aronwald

“The Lion In Winter” The last Friday in October was miserable. COVID-19 numbers were reaching new highs, presidential politics were reaching new lows, and the weather was awful. Then it got worse. My partner Kerry texted me that our longtime friend Bill Aronwald had passed away, suddenly and unexpectedly. We learned that he had gone out for his usual morning walk on Thursday and never came home. He had died during his walk. I knew Bill for over 20 years – as an office suite landlord, tenant, pilot, colleague, co-counsel, mentor. But more than anything, a friend. We were office suite-mates, had lunch together almost every day for years, talked about everything. We talked about our cases, the state of the world, the Mets. Bill was a pleasure to talk to and was generous with his time and advice. When I was recovering from a medical procedure and trying to get back in the groove, he would come in to my office to talk and keep me company. That helped me more than any of the medication I was taking. His kindness was truly remarkable. I know a lot of people felt the same way about Bill. His spirit, warm heart and willingness to share his time left an impression on all of us. We all wanted more, but we were so fortunate to have had the time we had with him, and to have him in our lives.

Of Bill’s many passions, he loved the movies, so to try to bring some order to this remebrance, I have organized it by movie titles. I think Bill would have approved.

The Lion In Winter Bill Aronwald was a lion of the bar. He was enormously smart and talented and one of the premiere defense lawyers in New York. He was a Super Lawyer before they started naming the Super Lawyers. His legal career covered the whole spectrum. After earning his law degree at Brooklyn Law School where he served on the law review, Bill went to the Manhattan District Attorney’s Office. There, he helped resurrect the Rackets Bureau and helped make it into an interesting and sought-after unit. He became particularly involved with the new wiretap laws and assisted other prosecutorial offices facing questions about those laws. Criminal organizations felt the heat of Bill’s efforts, which he carried with him to the U.S. Department of Justice. He became the Attorney in Charge of the Organized Crime Task Force in the Southern District of New York and Chief of the Criminal Division for United States Attorney’s Office in the Eastern District of New York. His contributions to these offices are the stuff of legend and are still talked about.

By Clinton “Chip” Calhoun

After ten years of serving as a prosecutor, Bill entered the world of criminal defense. He believed deeply in the concept that Atticus Finch described in his closing argument in To Kill A Mockingbird: “Our courts have their faults, as does any human institution, but in this country our courts are the great levelers, and in our courts all men are created equal.” Bill understood that concept only became what it was meant to be if those accused of crime were properly represented, by lawyers who were skilled, dedicated, and ready to fight for their clients. Bill was all of those things. Bill was as loyal to his clients as any lawyer could be, and was able to present their side of a case with energy and the belief that he was in the right. He loved trial work and was a talented advocate in the courtroom. Prosecutors found him a tough guy who never gave an inch, but had total respect for him, his energy, preparation and professionalism. They knew there were no easy cases when Bill was on the other side. Judges too respected his tenaciousness and extraordinary preparation. If there was a flaw in the prosecutor’s case, Bill would find it and leverage it to client’s advantage. His persistence could rankle, but it earned him respect in the courthouse. His clients could do no better. Colleagues and co-counsel in the defense bar profited enormously from

Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

knowing Bill. He was never too busy to pitch in to a difficult part of a case, such as preparing to cross-examine the prosecutor’s medical or technical expert. He would learn their craft, study their reports, and find the weak spots. The experts were generally glad to leave the witness stand after Bill was finished cross-examining them. Even into his 70’s, he still displayed the energy and skill in court that younger lawyers would note and envy. He was always ready to help colleagues looking for guidance or the benefit of his knowledge. Many of us benefitted from his generosity and wisdom. Bill’s loyalty to his clients was no act. He never, ever spoke ill of them – in court or out of court. He was always there for them, always dedicated to them, always the one person they knew they could count on. He would make sure they got a fair shake. In his cases, he made the court “the great leveler” for his clients.

A Man For All Seasons Aside from defending the accused, Bill was active in bar activities. He helped form the New York State Association of Criminal Defense Lawyers in the 1980’s and became one of its earliest presidents in 1993. One of his true highlights was joining eleven of his friends and colleagues in a production by the Association of Twelve Angry Men. A better statement of the importance of the jury system and the obligations it carries with it has never been made. He also was a legal commentator on WNBC, explaining the law and cases in understandable language, and throwing in an opinion or two in the process. Outside of the law, flying was Bill’s great passion. He loved piloting his plane and Bill’s true motivation was to be in

the air. A love of sports also filled Bill’s life. In a true test of his dedication and loyalty, he was a Mets fan and a season’s ticket holder for many years He also was an avid golfer and became part of a golfing community in retirement in Florida. He loved the game, kept an honest scorecard, and got to be pretty good at it. Bill also found pleasure in travel, movies, books, television and of course politics. He was never at a loss for words or an opinion on any subject. He was completely immersed in the world around him and could talk, at length, on almost any subject. To be in his company was to experience what the love of life actually looked like.

It’s A Wonderful Life More than anything else, Bill loved his family and had a wonderful family life. He and his wife Barbara were married for 56 years, raised two children, a son and a daughter, who became accomplished adults and proud parents themselves, and who gave Bill and his wife four grandchildren. Bill adored his grandchildren and was a real presence in their lives. They will all carry with them memories of their grandfather.

engaged with friends and friends stayed in touch with him too. Bill loved this country too. He served in the U.S. Army and became a captain. He used his flying skills to assist the Coast Guard. And he believed in the institutions that make this country what it is, especially the judicial system, and never stopped trying to make them better. They weren’t just ideals to him but the “living working reality” of America of which Atticus Finch spoke. Bill’s life had entered its winter season, he was almost 80, but he was living a wonderful life in retirement in Florida. He was happy, spending time with his wife Barbara, playing golf, being with family and friends, and even serving as vice president of the board that oversaw the golf course and the community where he lived. He had earned that happiness, and more, when the end came.

Heaven’s Gate Bill Aronwald will be missed. Family, friends, colleagues won’t forget him. I certainly won’t. We were all the lucky ones to have had him as part of our lives, this remarkable man. Goodbye Bill, and rest in peace. A

Friendships were important to Bill and were plentiful in his life. Some dated back to his school days, some were of more recent vintage, but all were meaningful to him. He would often meet someone in some way, perhaps in an office setting or on a case, and they would become friends. And he treated his friends as though they were important to him, because they were. He was never too busy to help someone get a job interview or to talk to a friend about a problem. He was a Facebook user too, which kept him

Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

If there were no bad people there would be no good lawyers. —Charles Dickens

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Charles Hamilton Houston — noted Black lawyer (Harvard Law) who helped dismantle so much of Jim Crow he was known as “The Man Who Killed Jim Crow”. He was the head of the NAACP Legal Defense Fund and was involved in nearly every civil rights case before the Supreme Court from 1930 to Brown v. Board of Education, although he passed away before the decision in Brown came down. Brown coincidentally was argued by Houston’s former student, Thurgood Marshall. From a voice recording of Mr. Houston speaking to his son before his deat:

“I regard what I am doing, and my work as a lawyer not as an end in itself, but simply as the means of a technician probing, in the courts, which are products of the existing system, how far the existing system will permit the exercise of freedom before it clamps down. And I have seen several instances as to the limitations on which the existing system as represented by its courts will go.” Also: “The race problem in the United States is the type of unpleasant problem which we would rather do without but which refuses to be buried.”

Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

Reducing One Aspect of the Pernicious Impact of Recordings of Interrogations:

POLICE STATEMENTS OF OPINIONS AND LIES By Brian Shiffrin, Esq.

I. Recordings of Interrogations Provide the Best Objective Evidence as to What the Defendant Said During the Interrogation and Whether the Defendant’s Statements Were Voluntary Brian Shiffrin is a member of the firm Easton Thompson Kasperek Shiffrin LLP. From 1981 to 2008, Mr. Shiffrin served as the attorney in charge of the Monroe County Public Defender’s Appeals Bureau. He has argued appeals and post-conviction motions and proceedings in numerous courts, including the New York Court of Appeals, the Second Circuit, and United States Supreme Court. Mr. Shiffrin has twice served as Chair of the Criminal Justice Section of the Monroe County Bar Association and is the co-author of the chapter on Appeals in Criminal Cases in the New York Bar Association’s Criminal Practice Handbook.

A series of exonerations of wrongfully convicted and other cases in which there have been contemporaneous recordings of police encounters have established that police lie. Stories of police falsification are so pervasive that the moniker “testilying” has developed to describe the practice of police giving false testimony. (See I. Bennett Capers, Crime, Legitimacy, and Testilying, 83 Ind. L.J. 835, 836 [2008] [noting that, in New York, a commission founded to investigate police corruption found that perjury was “so common in certain precincts that it has spawned its own word: ‘testilying’”]; Christopher Slobogin, Testilying: Police Perjury and What to Do About It, 67 U Colo L Rev 1037, 1044 [1996]; Donald A. Dripps, Police, Plus Perjury, Equals Polygraphy, 86 J Crim L & Criminology 693, 698 [1996]). Sadly, but not unexpectedly, the relationship between police perjury and wrongful convictions has been well documented (see generally, Russell D. Covey, Police Misconduct as a Cause of Wrongful Convictions, 90 Wash U L Rev [2013]). Not only has it been established that police commit perjury in testifying about police interrogations and that such perjury has led to wrongful conviction of innocent Continued on next page

Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

Interrogations Continued from previous page persons, it has been proven that police in Monroe County, New York, lie about their interrogations. Further, it had been proven that innocent men were convicted and imprisoned as a result of these lies being wrongly credited. Specifically, the Monroe County murder convictions of Frank Sterling and Douglas Wamey, and the rape conviction of Freddie Peacock, were all predicated on false police testimony as to statements purportedly obtained from the suspect. All three men spent years in prison before they were proved innocent and received financial settlements as a consequence of the police misconduct that resulted in their wrongful prosecutions, convictions, and imprisonment. The problem with courts accepting false police testimony about statements which are neither true nor voluntary has been increasing well documented. The 2009 New York State Bar Association Report of 53 recent wrongful convictions in New York found false confessions to be a leading cause of wrongful conviction in New York. (http://www.nysba.org/ Content/ContentFolders/TaskForceonWrongfulConvictions/ Final WrongfulConvictionsReport.pdf; see generally, Steven Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891-1007 [2004]). Police lie with impunity with respect to what they believe to be unrecorded encounters with civilians because they are confident that their false version of what transpired will be credited over the accurate version of the suspect. That is what happened in the cases of Sterling, Wamey, and Peacock. With the increase ease of making recordings, more and more proof surfaces as to the frequency of police lying regarding what they believe to be unrecorded encounters. A quick internet search of videos of police unwittingly caught lying by citizens recording their encounters reveals dozens of such cases (see, e.g., http://www.nbcchicago.com/investigations/VideoShows-Cops-May-Have-Lied-On-the-S tand-255416251. html [video showing five officer lied on the stand]; http:// www.wfaa.com/news/local/dallas/surveillance-footagedisputes-dallas-police-affida vit-officer-involved-shooting-mentally-ill-22825255 1 .html; http://baystateexaminer.com/ traffic-court-upholds-ticket-even-cop-caught-committing-per jury/; http://articles.latimes.com/2009/oct/07/local/me-lapdperjury7). The phenomena of police providing false testimony when they believe that their interrogation was not recorded was also revealed in People v Perino (19 NY3d 85 [2012]). In Perino,

the surreptitious recording of an interrogation made by an arrestee resulted in the prosecution and conviction of a police officer for perjury regarding his false testimony as to what transpired during the interrogation. Police perjury in cases of unrecorded interrogations occurs because police are confident that if an interrogation is not recorded, a fact-finder will credit the false testimony of the police officer over the truthful testimony of the suspect. For example, in explaining its decision affirming Mr. Wamey’s conviction in 2002, the Appellate Division, Fourth Department wrote that: Defendant confessed to the crime and gave accurate descriptions of many details of the crime scene. Defendant testified at trial that the police threatened him and forced him to confess to the crime. Two police detectives, however, testified that they did not threaten defendant, and that defendant was cooperative with them. (People v Warney, 299 AD 2d 956 [4th Dept 2002].) Not just the jury, but the Appellate Division credited the police version of the interrogation. After Mr. Wamey was incarcerated for ten years, we learned that Mr. Wamey’s testimony was accurate and correct, that the police lied, and that the actual perpetrator had killed someone else while the innocent Mr. Wamey was incarcerated (https://www.innocenceproject.org/ cases/douglas-wamey/). In affirming Mr. Peacock’s conviction, where Mr. Peacock denied making the alleged oral statement, this Court found that there had been an evidentiary error, but “in light of the strong evidence of guilt, including defendant’s confession, we find the error to be harmless” ( People v Peacock, 70 AD2d 781, 781 [4th Dept 1979]). We now know that, in fact, as he had long urged, Mr. Peacock never confessed (https://www.democratandchronicle.com/story/ news/2016/05/05/rape-confession-possibl y-fabricated-federal-judge-says/83969432/). If Mr. Wamey’s interrogation had been recorded, the Appellate Division, the trial court, and the jurors would have seen what coercive, improper or suggestive tactics led to Mr. Wamey’s false confession which contained facts that the police told Mr. Wamey (since Mr. Wamey, innocent of the crime, could not have otherwise known them). If Mr. Peacock’s in-

Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

terrogation had been recorded, this Court, the trial court, and the jurors would have seen that, as Mr. Peacock testified, there was no confession. Instead, Mr. Wamey and Mr. Peacock each spent years in prison, not because they were guilty, and not solely because the police used improper tactics. Rather, they spent years in prison because the other players in the criminal justice system were unwilling to accept that the police had lied under oath regarding these purported confessions. Thus, the need for recorded interrogations.

II. One Problem With Introducing Recordings of Interrogations: During Interrogations Police Are Permitted to Lie, Deceive, and State Their Opinion as to the Suspect’s Guilt and Credibility So, after years of efforts, as a result of the terms of negotiated settlements and legislation, New York now requires the recording of most interrogations in major felony cases. But, in many cases, the admission of these recordings has been shown to be as big a problem as testimony about unrecorded interrogations. First, of all the nature of pressures that lead to involuntary and false confession are not obvious. Instead of using threats to obtain confessions, most police in the United States use a variant of the Reid method of interrogation which is a powerful tool for extracting confessions of guilt from the targets of police interrogation. But a growing number of cases, many of them exposed by the availability of DNA testing, support the proposition that the Reid Method may be “too powerful, i.e. can break down the innocent as well as the guilty. The problem with this is that the very same forces that cause guilty suspects to confess—stress, isolation, maximization, minimization, promises of leniency—can also cause innocent people to confess. (See, The Reid Interrogation Technique and False Confessions: A Time for Change, Seattle Journal for Social Justice, https://papers.ssm.com/sol3/papers.cfm?abstract_ id=3002338 [An easy to understand soon to be published but

already available, explanation of how the Reid method works and how it can induce false confessions]). Perhaps the most famous example perhaps of innocent suspects falsely confessing to serious crimes they did not commit is the so-called Central Park 5, five innocent young men who were coerced into confessing in detail to committing a vicious rape and assault. Even though these confessions were inconsistent with the physical evidence and even though the DNA at the scene did not match any of the five, they were convicted and served many years in prison until they were exonerated by the confession of an unrelated individual whose DNA did match that of the DNA at the scene (http://thepsychreport. com/conversations/coerced-to-confess-the-psychology-offalse-con fessions/). Additionally, an analysis of cases in which defendants were convicted based on their detailed false confessions found that in all but two of the cases “police claimed that the defendant had offered a litany of details that we now know these innocent people could not plausibly have known independently.” (Brendan Garrett, The Substance of False Confessions, 62 Stan. L. Rev. 1051, 1064 [2010]). Thus, as in Doug Wamey’s case, these details had to have been fed to the suspect by the police during the interrogation. Thus, counsel needs to alert the court and jury to these problems. Although how to do so is beyond the scope of this presentation, there is an excellent outline for doing so available online: Deja Vishny, A Guide To Defending False Confession Cases: Understanding Police Interrogations and Cross-Examinations in Motions and Trials, http://opd.ohio.gOv/Portals/0/ PDF/PO/Juv%20Summit%202016/Guide%20to%20Defen ding%20a%20False%20Confession%20Case%20-%20 Deja%20 Vishny.pdf. This presentation is focused on another danger with playing a recorded interrogation to a jury. Police are permitted to say thing to a suspect in an effort to obtain statements that they could not testify to in court. They can lie and deceive. The Court of Appeals has held that the police are permitted to lie or use some deceptive methods in their questioning as long as “the deception was [not] so fundamentally unfair as to deny due process” (People v Tarsia, 50 NY2d 1,11 [1980]). Also, during interrogations, police can state their opinion that the defendant is guilty and that his denials are lies. During interrogations, police can falsely claim that they have Continued on next page

Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

Interrogations Continued from previous page evidence ofthe suspect’s guilt, such a a co-defendant’s statement, a video, or forensic evidence such as fingerprints They can state baseless opinions as to the impossibility of the suspect’s account. They can state opinions, lacking any scientific basis, as to how the wound would appear if accidental versus how it would look if it were an intentional stabbing. They can tell the suspect that they know she is guilty (People v Berumen, 46 AD3d 1019, 1020 [3d Dept 2007]). The fact that these might be proper interrogation techniques does not mean that it is proper for a finder of fact at grand jury or trial to hear what the police say during interrogations. As described above, we know that police lie and state their opinions while testifying, which is prohibited. Imagine how often they do that during interrogation when they are permitted to do so.

III. Witnesses Are Not Permitted to Testify, Either at Grand Jury or In Court Proceedings, as to Their Opinion as to Whether the Defendant’s Version of Events Was Believable The Court of Appeals has explained what a witness may and may not testify to with respect to an opinion as to whether the defendant’s version of events is credible. (People v Kozlowski, 11 NY3d 223 [2008]). Witnesses are permitted to testify about facts, but not as to their opinion as to whether the defendant’s version of events was believable: The line is crossed not when a witness relates facts that may be prejudicial, but when he or she conveys-either directly or indirectly-a personal opinion regarding the defendant’s criminal guilt (citations omitted).... What was impermissible about the testimony was that its sole purpose was to bolster the testimony of another witness by explaining that his version of the events was more “believable” (citation omitted). It was thus the equivalent of an opinion that the defendant was guilty, which is impermissible. (People v Kozlowski, 11 NY3d 223, 240 [2008].) This is not a recent or novel rule. Previously, the Court held that where a prosecutor seeks testimony that the defendant’s version of events was not believable, the witness’s “. . . testimony is equivalent to an opinion that the defendant is guilty, and the receipt of such testimony may not be condoned (People v Williams, 6 NY2d 18, 23 [1959]; People v Higgins, 5 NY2d 607, 627-628 [1959]; People v Gradon, 43 AD2d 842 [2d Dept 1984]).” (People v Ciaccio, 47 NY2d 431, 439 [1979].) Thus, in People v Amari Brown (Mon Co Ct, Randall, J., 11/2017 [unreported, copy attached hereto]), a murder indictment was dismissed because a police officer

Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

improperly testified at the grand jury as to his opinion that the defendant was not telling the truth as to the alleged actions of the victim.

IV. Testimony as to What the Police Said During Interrogation May be Admitted for the Limited Purpose of Showing the Circumstances in Which the Statement Was Obtained In People v Walden (148 AD2d 971, 971 [4th Deptl989]), the Court held that testimony as to what the police said to the suspect during an interrogation was not improper opinion testimony “where the witness merely explained the circumstances of defendant’s second statement to police. In any event, the testimony, if erroneously admitted, was harmless.” Subsequently, in People v Glover, 195 AD2d 999 [4th Dept 1993], the Court explained the rationale for and scope of this holding: At trial, defendant challenged the voluntariness of his confession. The burden is upon the People to establish voluntariness and, in the absence of circumstances involving physical force, voluntariness “may best be determined through an examination of the totality of the circumstances surrounding the confession” (People v Kennedy, 70 AD2d 181, 186). Thus, the trial court properly allowed testimony by the interrogating officer that he told defendant he disbelieved defendant’s initial denial of participation in the burglaries because the officer possessed information from someone that two black males and a car “very similar” to defendant’s car had been seen leaving the scene of the burglary. It was not hearsay because the testimony was not offered for its truth, but to establish the circumstances in which the statement was obtained, and to rebut defendant’s argument that the officer coerced or fabricated defendant’s statement. People v Glover, 195 AD2d 999, 999 [4th Deptl993] [emphasis supplied])

V. Testimony That the Police Officer Believed a Suspect Lied To the Police Is Inadmissible In contrast to the testimony held to be admissible in Walden and Glover, the Appellate Division, Fourth Department, and the Court of Appeals have held that the general rule prohibiting witnesses for testifying as to their opinion as the defendant’s credibility applies to a police officer’s testimony that he believed that the defendant lied to him during the interrogation. The Fourth Department held that “[w]e agree with defendant that the court erred in permitting a detective to testify that defendant lied to the detective during his interview (see People v Kozlowski, Continued on next page Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

Interrogations Continued from previous page 11 NY3d 223, 240, rearg denied 11 NY3d 904, cert denied 556 US 1282; People v Jennings, 33 AD3d 378, 379, lv denied 7 NY3d 926).” (People v Pabon, 126 AD3d 1447, 1448 [4th Dept 2015].) On appeal, the Court of Appeals held that “the judge should not have admitted the investigator’s opinion testimony that defendant lied to him during the interview” citing and quoting People v Ciaccio (AC NY2d 431, 439) that “ ‘(i)t is always within the sole province of the jury to decide whether the testimony of any witness is truthful or not.’ ” People v Pabon (28 NY3d 147, 157 [2016].) Thus, while an officer may testify that he told the suspect that he thought his denials were lies, the officer may not testify that, in fact, he believed that the defendant had lied during the interrogation.

VI. The Rule Against Witnesses Giving Opinion Testimony as to the Defendant’s Credibility or Guilt Applies to Playing Recorded Interrogations in Which the Officers State Such Opinions A. GENERALLY There are apparently no reported New York decisions discussing the application of this rule against witnesses giving opinion testimony as to the defendant’s credibility or guilt to the relatively new phenomena of the playing before a factfinder the recorded interrogations in which the officers state opinions as to whether the suspect/defendant is lying when denying guilt. Courts in numerous states that have considered this question have consistently applied the rule against the admission of opinion testimony as to the defendant’s guilt to police statements during interrogations. Some courts have found that the police statements of opinion during interrogation to be inadmissible opinion testimony that should not be admitted indirectly in the form of a recording, and they have held that such statements must be redacted from the recording before it is played for the jury. In other words, those jurisdictions have reasoned that if the police statements would not be admissible from the witness stand, they should not come in through the backdoor via the recording (See State v Elnicki, 279 Kan 47, 105 P3d 1222, 1224-25 [2005]; Commonwealth v Kitchen, 730 A2d 513, 521 [Pa Super Ct 1999] [holding that statements made in an interrogation accusing a defendant of lying were inadmissible ‘’’because they were ‘akin to a prosecutor offering his or her opinion of the truth or falsity of the evidence presented by a criminal defendant... [or] a prosecutor’s personal opinion, either in argument or via witnesses from the stand, as to the guilt or innocence of a criminal defendant....’ ”]; Sweet v State, 234 P3d 1193,1198,1199 [Wyo 2010] [interrogating officer’s accusations amounted to opinion evidence regarding the defendant’s veracity should not have been admitted]).

Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

In State v Elnicki (279 Kan 47, 105 P3d 1222, 1224-25 [2005]) the court explained that it was error for Detective Hazim’s comments disputing Elnicki’s credibility to be presented to the jury. The jury heard a law enforcement figure repeatedly tell Elnicki that he was a liar; that Elnicki was ‘bullshitting’ him and ‘weaving a web of lies.’ * * * A jury is clearly prohibited from hearing such statements from the witness stand in Kansas and likewise should be prohibited from hearing them in a videotape, even if the statements are recommended and effective police interrogation tactics. As far as context for Elnicki’s answers are concerned, the State could have safely accomplished its goal simply by having Detective Hazim testify and point out the progression of Elnicki’s various stories as the tape was played—minus Elazim’s numerous negative comments on Elnicki’s credibility. The absence of a limiting instruction merely compounded the already serious problem, misleading the jury into believing that Hazim’s negative comments carried the weight of testimony. (Id.) Court in other states have held that where the interrogation does not result in an admission or confession it is error to introduce the police statements. But these courts hold that where the interrogation does result in an admission or confession, the recordings, including the police statements may be admissible to show the context of the defendant’s statements if on balance the probative value of such evidence outweighs the prejudicial impact, with particular focus of the fact that police may lie or offer baseless opinions during interrogations, and the jury is instructed as to the limited purpose for which the police statements are admitted and may be considered (see e.g., State v Gaudreau, 139 A3d 433, 448-50 [RI2016]; Jackson v State, 107 So3d328, 33942 [Fla 2012]; State v Demery, 144 Wash 2d 753 (Wash 2001); Robinson v State, 574 So2d 910, 915-16 [Ala Cr App 1990]). Typical of these decisions is that of the Florida Supreme Court in Jackson v State (107 So3d 328, 339—42 [Fla 2012]). In Jackson, the court first held that “a police officer’s statements during an interrogation are admissible if they provoke a relevant response or provide context to the interview such that a rational jury could recognize the questions are interrogation techniques used to secure confessions.” (Id. at 340.). However, the Jackson court held that the trial court abused its discretion in admitting the defendant’s videotaped interrogation in which the officers repeatedly expressed their opinions about the defendant’s guilt (Id. at 330, 341—42). The court explained that while the detectives may have intended to secure a confession by consistently expressing their conviction as to the defendant’s guilt, as they did not secure a confession. The court held that the admission of the police officers’ statements essentially permitted the State to improperly elicit police opinion testimony and invade the province of the jury (Id. at 341). Further, the court held that even to the extent the detectives ’ s statements did yield somewhat relevant responses, this evidence should not have been admitted, as the statements had minimal probative value when compared with the inappropriate statements by the detectives (Id. at 341—42; see also Roundtree v State, 145 So3d 963, 965-67 [Fla App 4th Continued on next page Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

Dist 2014]) (applying Jackson) and Gaines v State, 155 So.3d 1264,1271-72 [Fla App4thDist2015] [applying and discussing Jackson in a case in which the defendant did not ultimately confess]). In Robinson v State (574 So2d 910, 915-16 [Ala Cr App 1990]), the interrogating officer repeatedly expressed the opinion that the defendant’s claim that she accidentally caused the victims injuries and death was not scientifically possible and that the the phsyical evidence did not match her account. The court held that “ [t]he fact that the assertions were made in the taped statement rather than on the witness stand does not render them any less inadmissible” and that the admission of the officer’s statements during interrogation “effectively permitted the State to bring in through the back door what it could not bring through the front.” (7<7.) B. IF RECORDINGS OF INTERROGATIONS ARE ADMITTED, LIMITING INSTRUCTIONS ARE REQUIRED Courts throughout the country have consistently held that if statement of the opinions of interrogating officers made during interrogation are to be admitted, courts must give limiting instructions charging that the jury cannot consider this statements for the truth, but only for the limited purpose of providing context to the defendant’s statements (see e.g. State v Gaudreau, 139 A3d433,450 [RI2016]; State vDemery, 144 Wash.2d753,761-62 [Wash 2001 ] [“when the trial court admits third party statements to provide context to a defendant’s responses, the trial court should give a limiting instruction to the jury, explaining that only the defendant’s responses, and not the third party’s statements, should be considered as evidence”]; Lanham v Com., 171 SW3d 14, 28 [KY 2005]; Jackson v State, 107 So3d 328, 341, n 15 [Fla 2012]). Unless so instructed, jurors do not know that police may lie and express opinions during interrogation in a effort to get a suspect to confess, but that such statements may not be considered for the truth. The absence of a limiting instruction regarding admitted evidence indicates to the jury that the evidence can be considered for all purposes {People v Butts, 177 AD2d 782, 783 [3d Dept 1991]; People v Bolling, 120 AD2d 601, 602 [2d Dept 1986]). Thus, without an instruction which actually limits the jury’s use and consideration of the police officer’s statements and opinions to a limited and proper purpose, the police statements in the interrogation are hearsay which a jury improperly free to consider for their truth.

VII. How To Minimize the Impact of Police Statements in Recorded Interrogations Referencing the above cited cases, it in incumbent on on counsel to object to the admission of the recording on the ground that it contains inadmissible and prejudicial opinions and statements, including lies. Also, citing Brown, supra, move to dismiss the indictment on the ground that the grand jury proceedings were defective

Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

in that improper and inadmissible opinion evidence from the police was presented to the grand jury. In cases in which there is no dispute as to the context or voluntariness of the defendant’s statements, only the defendant’s statements should be admitted, not the recording. If there is no basis to challenge the voluntariness of the defendant’s statements at trial, expressly offer to withdraw the challenge to voluntariness, so that can’t be used as a justification for the admission of the police officers’ statements. Remember, to argue that “[e]ven relevant evidence is not admissible if ‘its probative value is substantially outweighed by the potential for prejudice’ ” (People v Harris, 26NY3d 1, 5 [2015], quoting People vMateo, 2 NY3d 383,424-425 [2004]). The prejudicial impact of a fact finder hearing a police officer repeatedly tell the defendant that we know you are guilty and that your version as to what happened is impossible is obviously great. How probative is it to know that the police said that to the defendant repeatedly? Most importantly, if the recording is going to be admitted, demand that the jury be instructed both at the time of the recording is played and in the final charge that police are permitted to he and deceive during interrogations and that their statements of opinion are only admissible for the limited purpose of showing that circumstances in which the defendant statements were made and are not to be considered as evidence or for the truth of the statements. If the interrogating officers testify, be prepared to object to any statements which imply that they believed the defendant was guilty and lied when (s)he denied guilt. When cross-examining the interrogating officers, establish that they were trained that it is permissible to he, deceive, and state unfounded opinions when questioning suspects. Be prepared to show the officer specific examples of such conduct during the interrogation of your client (that means you need to have first prepared a transcript of the recording and, using that, you need the ability to quickly show the precise moments during an interrogation when these techniques were used). Also, be prepared to object to any statements made by the prosecutor in summation which reinforces or echoes the officers’s statements during the interrogation. Remember, a typical interrogation consists of multiple denials of guilt, and then an eventual admission to some of the charged conduct. Your job is to help the jury understand why the fact that your client ultimately made some admissions does not mean that your client is guilty. A

Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

Book Review A Case for the American People: The United States v. Donald J. Trump by Norman Eisen, Esq. Reviewed by Roger Bennet Adler

As the coronavirus pandemic rages, and the American death toll steadily climbs to a jaw-dropping 200,000 (and showing no end in sight), it is jarring to recall that the American governmental system recently went through the tectonic Senate impeachment trial resulting in President Trump’s acquittal, largely along partisan political lines.

Roger Bennet Adler is a Manhattan based solo practitioner, former Chair of the New York State Bar Association Criminal Justice Section, and a Past President of the Brooklyn Bar Association and Kings County Criminal Bar Association.

Norm Eisen, Esq., is a Washington, D.C. legal insider with an impressive career path and a progressive political pedigree, which includes service as Ambassador to the Czech Republic during the Obama Administration, and now “Senior Fellow” in Governance Studies at the prestigious Brookings Institution. When House Judicial Chair Congressman Jerrold Nadler hired Eisen, he made a prudent pick, which soon spawned an early impeachment initiative which targeted the President’s political fate in a manner which some will perceive as disconcerting as when then Attorney General Robert Kennedy targeted labor union leaders, or when

President Nixon crafted his “enemies list.” Regardless of one’s initial take, it is unquestionable that President Trump impulsively and reflexively launched a series of actions – some charged, others ignored – which betrayed a little short of shocking ignorance of leadership protocols, and the Rule of Law. Daily dissembling, and a myriad of tweets and message “walk backs,” soon disturbingly revealed an uncontrollable President for whom truth (like beauty) exists in the eye of the beholder. While

Atticus | Volume 33 Number 1 | Winter 2021 | New York State Association of Criminal Defense Lawyers

Eisen undoubtedly knew all this, he provided legal guidance to an experienced Committee Chair, who, while a career politician, had no grounding in the world of legal practice, or courtroom protocols. While impeachment is likely more political referendum than criminal trial, the legal road maps are the equivalent of an indictment – the Articles of Impeachment. The question is whether to “go big” (some ten Articles), or “go small,” with a limited menu of charges which a majority of the Congressional Democratic caucus could rally around. If the lessons learned from the Watergate scandal were that members of the President’s own party finally found the political courage to forsake him for the Rule of Law, the political reality is no such perception would aid Eisen in his journey to hold Trump accountable became the operative Congressional dynamic. It was a political bridge too far. Eisen also focuses attention on the approach taken by the Republican members of the Judiciary Committee. Ranking member Doug Collins (R – Georgia) claimed that, rather than raising impeachable grounds, the Committee minority voiced the “Orwellian” view that it was not President Trump who was subverting American democracy, but rather he believed it was the Democratic Party! As opposed to the Watergate scandal, when a number of Republicans followed the facts and voted for President Nixon’s impeachment, the polarizing times in which we live prompted a block vote approach to the Article of Impeachment. Congressman Collins is now the Republican candidate for a Georgia Senate

seat, and well knows that to prompt President Trump’s ire would have ended his political career. This was a lesson corroborated months later, when former Attorney General Jeff Sessions was defeated in the Republican Alabama Senate Primary by a former Auburn University retired football coach backed by President Trump Eisen gives the reader realistic insight into the emotional clashes which, not surprisingly, arose over disagreements between Chairman Nadler and Chair Smallwood. Eisen verbally clashed with his Intelligence Committee Chair Don Goldman, a former Assistant U.S. Attorney, who, while both younger (and less senior) likely tried more cases than his more senior colleague Eisen. It may well be less than a “tale of the tape” comparison of Eisen to his Republican counterpart. The Republican unified loyalty to President Trump ultimately held fast, and the merits of the “Articles of Impeachment” became less. Essentially, the Senate Republicans filed a “Legal Demurer.” Lawyers know (and are accordingly attuned to) the difference between an acquittal, and a claim of innocence. In these sharply divided partisan political times we live in, much like the criminal cases from the South in the 1940s and 50s involving whites who murdered Blacks, the elicited evidence and the inferences drawn therefrom proved irrelevant. We have never had a President who perceived that he was cloaked with the power to shoot someone on Fifth Avenue, and escape legal accountability. Maybe the true “takeaway” is that impeachment, by a deeply divided Congress during a Presidential election year is simply a “bridge too far.” Americans

owe a deep debt to Norm Eisen for his public service. The ultimate Trump jury is currently scheduled to cast its ballot and render its verdict on Election Day. We will soon learn if the American voter is any more discerning than their elected representatives. Eisen’s disappointment with both the Report of Special Counsel Robert Mueller, and Mueller’s decision to hew to the Department of Justice legal position that a sitting President was immune from indictment for a federal crime while sitting in office, is palpable. Commendably, Manhattan District Attorney Cyrus Vance has picked up that mantle, and remains our “last best hope.” Eisen strongly suspected that Mueller pruned his Report’s conclusions to conform to it, and avoid any dicta indicating that the conduct may have arisen to being charged as impeachable acts. The Judiciary Committee was obliged to proceed with a Special Counsel Report fully filleted of the explosive obstructive conduct baked into the President’s DNA since he built with concrete provided by the late “Fat Tony” Salerno’s concrete company SIA. We also now know from more recent books that Deputy Attorney General Rod Rosenstein jawboned Robert Mueller away from pursuing and investigating financial ties between both Trump family members and Russian financing. Sadly, the more that has emerged about the work of Special Prosecutor Mueller, the more disturbing its shortcomings appear. Like a boxer with a “glass jaw,” when the going got tough, Mueller appears to have been rolled. We are the true losers. A

Atticus | Volume 33 Number 1 | Winter 2021 | 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

Cutting Edge CLE — Coming Up on Zoom and In Person Spring 2021

April

Ongoing: Law @ Lunch Webinars – Look for dates coming soon!

Adirondack Criminal Defense Seminar, Lake Placid & Online – Online Via Zoom

Jury Selection, Evidence and Objections, Direct Examination, Use of Acting Skills for Lawyers – Online Via Zoom

March

May 6 & 7 Cross to Kill 202 The Art of Impeachment, – New York City & Online Via Zoom

June 4 Spring Special Topic CLE Seminar, – New York City & Online Via Zoom

Federal Practice Webinar – Online Via Zoom

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!

Coming in October, November & December: NYSACDL Trial Skills Academy:

NYSACDL Trial Skills Academy:

Coming in February, March, April & May:

Fall 2021

Cross Examination, Opening & Closing Arguments – Online Via Zoom

October 9 & 10 Cannabis in the Catskills – Monticello

November 5 Superstar Trial Seminar – Buffalo

November 19 Central New York Criminal Defense Seminar –The Trial of a DWI Case – Binghamton

December 3 Weapons for the Firefight: When the Case Ends The Trouble Begins – New York City & Online Via Zoom

Atticus | Volume 33 Number 1 | Winter 2021 | 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

LAWYERS STRIKE FORCE COMMITTEE

ANNUAL DINNER COMMITTEE

LEGISLATIVE COMMITTEE

CLE COMMITTEE

MILITARY/VETERANS AFFAIRS COMMITTEE

Co-Chair: Timothy Murphy (Timothy_Murphy@fd.org), Members: Steven Epstein, Mark Fernich, Alan Lewis, Claudia Trupp, Richard Willstatter Chairs: Alice Fontier (afontier@ndsny.org), Timothy Hoover (thoover@hodgsonruss.com) Members: Lori Cohen, Edgar De Leon, James Grable, Renee Hill, Andrew Kossover, Brian Melber 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

FEDERAL PRACTICE / WHITE COLLAR CRIME COMMITTEE

Co-Chairs: Samuel Braverman (sbraverman@fbdmlaw.com), Scott Iseman (siseman@oalaw.com) Members: Joshua Dratel, James Grable, Timothy Hoover, Alan Lewis, 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: Timothy Hoover (thoover@hodgsonruss.com) Members: Marc Fernich, Alice Fontier, Jill Paperno, Richard Willstatter

Chair: Kevin Stadelmaier (kstadelmaier@legalaidbuffalo.org) Members: Derek Andrews, Jason Bassett, Lori Cohen, Alice Fontier, Timothy Hoover, Jessica Horani, Andy Kossover, Yung-Mi Lee, Greg Lubow, Amy Marion, Kenneth Moynihan Chair: Donald Rehkopf (usmilitarylaw@gmail.com) Members: Kenneth Moynihan, Andre Vitale, Mark Williams

MEMBERSHIP COMMITTEE

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

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)

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

Atticus | Volume 33 Number 1 | Winter 2021 | 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 LIFE MEMBERS:

PRESIDENT:

(As of January 19, 2021) Daniel Arshack Michael T. Baker Wayne C. Bodden Peter E. Brill Lori Cohen Anthony J. Colleluori Terrence M. Connors Anthony Cueto Gerard M. Damiani Edgar De Leon Telesforo Del Valle Joshua L. Dratel Steven B. Epstein Mark Andrew Foti Russell M. Gioiella Lawrence S. Goldman James Grable Renee Hill Timothy W. Hoover John Ingrassia E. Stewart Jones Kathryn M. Kase Ray Kelly Terence L. Kindlon Lee Kindlon Seth Herschel Kretzer

Alice Fontier, Manhattan

PRESIDENT-ELECT: Brian Melber, Buffalo

FIRST VICE PRESIDENT: Yung-Mi Lee, Brooklyn

VICE PRESIDENTS:

Michael T. Baker, Binghamton Steven B. Epstein, Garden City Jessica A. Horani, Manhattan 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

Gerald Lefcourt David L. Lewis Thomas F. Liotti Scott Lockwood Greg D. Lubow Zachary Margulis-Ohnuma Brian Melber Florian Miedel Cory Morris Aaron J. Mysliwiec Brian Joseph Neary Thomas J. O’Hern Benjamin Ostrer Paul D. Petrus Frank Policelli Murray Richman Stacey Richman Joel B. Rudin John S. Wallenstein Robert G. Wells Richard D. Willstatter Todd J.W. Wisner

PRESIDENT’S CLUB George Goltzer

SUSTAINING MEMBERS James A. Baker Paul M. Callahan

Andrea Carapella Rendo Joseph R. DeMatteo Brian J. DeSesa Karen L. Dippold Michael G. Dowd Mario F. Gallucci David I. Goldstein Phillip Hamilton James P. Harrington Daniel J. Henry Michael D. Horn Isabelle A. Kirshner Bruce Klein Robert P. Leighton Oscar Michelen Mark J. Mahoney Kenneth Moynihan Steven K. Patterson Michael Gerard Postiglione Owolabi Salis Anastasios Sarikas Dennis B. Schlenker Oliver S. Storch Vivian Storch Cannon Scott B. Tulman Susan J. Walsh James W. Winslow

NYSACDL WELCOMES OUR NEW MEMBERS (AS OF JANUARY 19, 2021) BRONX

Brian Arthur Jeffrey Deskovic Norma Esquivel Mairin Fogarty Mariam Gaye Dawit Getachew Anthony Green David Hanyok Yaniv Kot Claire Mauksch Nathanael Miller Eli Northrup Christine Rivera Chris Smith Paul Vernon Eli Wagschal

BROOME

Patrick Cutty Veronica Gorman

CHENANGO Brett Cowen

CLINTON

Jamie Martineau

COLUMBIA

Michael Howard

DUTCHESS

David Matthew Kittrell

ERIE

Connor Charles Dougherty Robert M. Goldstein Simone Grande Thomas Joseph Heubusch Natalia Marte Michelle Parker

ROCKLAND

Jeffrey Francisco Julia Kosineski

Tian Chi Ma TJ McCubbin Suzanne McElwreath Alexandra Mitter James E. Neuman Gilbert Parris Sandra Perez Rae Sansonetti Marni Schlesinger Chai Williams

NASSAU

ONONDAGA

SUFFOLK

Vanessa Rendon-Vasquez Owolabi Salis Bernarda Villalona

MONROE

Lawrence Kasperek Mark Young

MONTGOMERY

FULTON

Allen Day

N. Scott Banks Marc Hirschfeld Uchenna Emeagwali

JEFFERSON

NEW YORK

Charee Lynne Hull

KINGS

Caner Demirayak Robert Epstein William Fowlkes Umit Mike Gursoy Michele Hauser Judith O. Karpatkin Melanie Marmer Robert Peck

Rebecca Azuga Matthew Cleaver Adrienne Doreen Edward Yusuf Elashmawy Greg Getrajdman Caitlyn Hall McCarthy Hawkins Kendea Johnson Daudi Justin Gloria Keum

Laurin Haddad Susan Mintz Nhi Kha Truong

OTSEGO

Dennis Laughlin

QUEENS

Vito Arango Kristin Bruan Martin Cohen Sabina Khan

RICHMOND

Chris Pisciotta John Joseph Rapawy

Abraham Hoffman Alan Bruce McGeorge Ken Rones Barry Weiss

SARATOGA

Ann Flower Stitt

SCHENECTADY William Lotze

Natalia Bianco Kevin Joseph Casey Danielle Coysh Samantha Jorgensen Melissa Kanas Pearl Yea eun Lee Rachel Ostreich Olivier Roche Ray Smith

SULLIVAN

Ryan Walker

TOMPKINS

ULSTER

Margot Hanstein

WESTCHESTER

Chloe Caban April R. Cohen Christopher Daniele Cory Garcia Richard Hoover Paul Horowitz Ken Jones Brittany Natali Brendan O’Meara Vishakha Patel Patricia Petrosky Laurence Rene Andrew Restivo Darcy Rydlun Jill K. Sanders Krittika Shah Eli Siems Jennifer Spencer Daniel Steyskal Nicole Zagreda

Luke Fenchel Lance Salisbury

Atticus | Volume 33 Number 1 | Winter 2021 | 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. 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. 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.

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

LEGISLATIVE ADVOCACY – NYSACDL’s Legislative Committee, working with

Atticus | Volume 33 Number 1 | Winter 2021 | 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

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

Atticus | Volume 33 Number 1 | Winter 2021 | 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 33 Number 1 | Winter 2021 | 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

Atticus - Winter 2021

Articles inside

Cutting Edge CLE

Recordings of Police Interrogations

Book Review

Q&A with Mildred Morillo

Race, White Supremacy and Black Liberation

Amicus Curiae

Dispatches from 90 State

Meet the Incoming President

From the Defense Table