Atticus - Winter 2023, Volume 34, Number 1

NYSACDL Officers and Directors 2023

PRESIDENT:

Yung-Mi Lee, Brooklyn

PRESIDENT-ELECT:

Steven B. Epstein, Garden City

FIRST VICE PRESIDENT:

Jessica A. Horani, Manhattan

VICE PRESIDENTS:

John Ingrassia, Newburgh

Seymour W. James Jr., New York

Alan S. Lewis, Manhattan

Kevin M. Stadelmaier, Buffalo

Claudia Trupp, Manhattan

SECRETARY:

Derek S. Andrews, Newburgh

TREASURER:

Samuel Braverman, Manhattan*

DIRECTORS

Michael Baker, Binghamton

Stephanie Batcheller, Albany

Lance A. Clarke, New York

Drew Dubrin, Rochester

Xavier R. Donaldson, Manhattan

Laura A. Fiorenza, Syracuse

Renee Hill, Bronx

Randall Inniss, Suffern

*To be appointed at January 20 , 2023 Board of Directors meeting.

Danielle Jackson, Manhattan

Jamal Johnson, Manhattan

Jessica Kulpit, Buffalo

Leanne Lapp, Canandaigua

Lindsey Lewis, Manhattan

Greg Lubow, Tannersville

Noreen McCarthy, Keene Valley

Michael McDermott, Albany

Grainne E. O'Neill, Brooklyn

Jill Paperno, Rochester

Donald G. Rehkopf, Jr., Rochester

Donald Thompson, Rochester

Andre A. Vitale, Jersey City, NJ

IMMEDIATE PAST PRESIDENT:

Brian Melber, Buffalo

PAST PRESIDENTS:

Lawrence S. Goldman

Paul J. Cambria, Jr.

Jack T. Litman

Mark J. Mahoney

David L. Lewis

William I. Aronwald

Thomas F. Liotti

Ira D. London

Jeanne E. Mettler

Murray Richman

Gerard M. Damiani

Marvin E. Schechter

Kathryn M. Kase

Russell M. Gioiella

James P. Harrington

Richard J. Barbuto

Martin B. Adelman

Joshua L. Dratel

Ray Kelly

Daniel N. Arshack

Lisa Schreibersdorf

Craig Schlanger

George R. Goltzer

Kevin D. O’Connell

Richard D. Willstatter

Benjamin Ostrer

Aaron Mysliwiec

Wayne C. Bodden

Andrew Kossover

John S. Wallenstein

Robert G. Wells

Lori Cohen

Timothy W. Hoover

Alice Fontier

Brian Melber

EXECUTIVE DIRECTOR:

Jennifer Ciulla Van Ort, Clifton Park

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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.

Publication of the New York State Association of Criminal Defense Lawyers

Message from the President

Brian Melber

A year ago I said here that we would face a year of challenges and opportunities. We have. Over this past year what has been impressed on me most about this group is its fighting spirit. NYSACDL fights for justice for our clients, for racial justice and social justice of every kind. And we do it by working together. Here are some highlights of the fight this past year.

The legislative committee has been hard at work battling against a misinformation backlash campaign seeking to roll back discovery and bail reforms. At the same time we are going on the offensive for higher 18-b rates so long overdue for indigent defense.

NYSACDL has been aggressively calling officials to account and demanding action to remedy the unconstitutional and sadly lethal conditions inflicted on the accused in some pretrial detention facilities.

Members of NYSACDL testified in every region of the state before the Commission to Reimagine the Future of NYS Courts, Pandemic Practices Working Group. We spoke out strongly about how some practices adopted for the pandemic compromised the rights and freedoms of our clients, and argued against continuing those procedures after the pandemic.

The Board has been focused on re-invigorating our organization through strategic planning. That has been a year-long and ongoing process including a Board retreat in August. Through that effort we will be implementing a strategic plan on multiple fronts with actions that will double down on our mission and articulate that mission more passionately and effectively.

The strategic plan, and the Board’s efforts this year in every sphere, have aimed at persistently seeking better inclusion and representation in our membership, our leadership, and every project and program. Seeking justice for our clients is inseparable from demanding it from ourselves and our organization.

We recently interviewed and rated the nominees for appointment to be Chief Judge of the Court of Appeals. Just as we did in the last three Court of Appeals appointments, NYSACDL took a leadership stance among bar associations by offering frank and critical ratings of the nominees, taking the opportunity to take a strong stand on the quality of the nominees for this critical role.

We continue to offer the most innovative and valuable education programs to help our members become ever more effective champions for our clients. This year, that included a first of its kind state-wide trial competition which now includes a live jury selection and observed jury deliberation.

Everything we do as NYSACDL is possible because we work together. By bringing together criminal defense lawyers from every area of practice, including public and private defense, in every state and federal court, we leverage our collective authority and speak with one voice. That community of action and advocacy gives us a meaningful place in these public issues that affect all of our clients and all of us. If you are a member please consider getting more involved in one of these efforts. And please think about inviting a colleague to join and make us even stronger.

EDITORS

John S. Wallenstein

Jessica A. Horani

Russell Schindler

From the Editors’ Desk

John S. Wallenstein, Jessica A. Horani, Russell Schindler

636

Fax:

atticus@nysacdl.org

When you, our readers and members, receive this issue of Atticus, it will hopefully be at our long awaited in-person Dinner on January 19, celebrating our terrific slate of honorees and installing our new president, Yung-Mi Lee. It will be the first time in several years that you will thumb through the actual pages of this magazine, gone on digital hiatus for too long during the pandemic, and we hope its return in a physical form will be welcomed by all.

Many changes have transpired over the past few years. The one that we at Atticus feel most sharply and deeply is the change to our masthead that you will notice, as our beloved fellow Editor, Ben Ostrer, passed away this year. We hope to honor his legacy with the newly formed NYSACDL scholarship in his name, which you can read more about on page 21 of this issue.

We recognize more of the excellence among us as we celebrate our annual dinner honorees (Judge D’Emic, Bobbi Sternheim, and James Scruggs) who each bring something special to our profession and the communities and individuals we serve. We also recognize the ongoing good work of our members that leads to success for their clients, in our “From the Defense Table” column.

But success in the courtroom is not guaranteed, nor is it the only benchmark of a good defense attorney. Legal Aid attorney Aaron Horth shares their story of advocating for a client in treatment court, whose alleged failures within the treatment model did not result in the desired outcome but whose story begs the question, “are our treatment courts really doing enough to serve the people whose cases end up there?”

This issue also celebrates those just starting out in this profession, as we share some insights and fun from the winners and coach of the inaugural mock trial competition created by our President-Elect Steven Epstein. No matter where you are in your career, we hope you will be inspired by the takeaways from the participants in this mock trial competition, and perhaps encouraged to join us next year.

Not to be missed as you keep up with your legal scholarship is our long time contributor Timothy P. Murphy’s column on the Court of Appeals’ decisions of note.

These pages should serve and reflect all our members; in order to do so we need your input and help! If you are so inclined, please reach out to join us on the Publications Committee, pitch an article, or share a trial win or other significant success or accomplishment.

Stay safe and healthy.

Jessica, John & Russell

The View From the Park

Jennifer Van Ort, Executive Director

Welcome back to another issue of Atticus! We are all so pleased that we are able to reinvigorate this publication going into 2023. One change you will notice, of course, is that my column, Dispatches From 90 State, is now The View From the Park, reflecting our move to Clifton Park in beautiful Saratoga County. This move has been beneficial to NYSACDL in many ways, including more office space for all of our activities (more on this later!)

The past year has once again been busy for NYSACDL, including the return to in-person CLE programming with our flagships seminars Cross to Kill, Superstar Trial Seminar, and Weapons for the Firefight. We were also pleased to be able to offer these programs using the hybrid model and we continue to streamline those options to best fit the needs of those who would like to attend in person and those who prefer to watch on Zoom.

We also continued our successful Law @ Lunch webinar series throughout 2022 where we offered several programs on topics of relevance in the moment. We are planning on continuing this series throughout 2023 in this format – if you have any topics you are interested in learning about – or are prepared to teach – please let us know!

We have continued our advocacy efforts on several issues of importance, including protecting the current discovery and bail laws, and the desperately needed increase in Assigned Counsel pay rates. Our advocacy efforts for 2023 are beginning to ramp up and we look forward to once again working for you and your clients. We always need your input and help – please look for opportunities to join us!

Recently, the NYSACDL Judicial Screening Committee participated in reviewing and interviewing the slate of candidates for the Court of Appeals Chief Judge position. The committee provided important ratings and commentary to Governor Kathy Hochul on the candidates –recommending those that would bring important perspectives and could be transformational leaders for the Court.

NYSACDL has continued to experience tremendous growth in membership – we ended 2022 at over 1,200 members. The Indigent Defense Committee and Membership Committee worked together to create an accessible Indigent Defense Office group membership program that has been incredibly successful. Thank you to all the full-time defender offices and Assigned Counsel plans that have signed up so far – we look forward to welcoming many more in 2023!

As such, speaking of the expanded office space, NYSACDL will soon be hiring a part-time Membership Coordinator to assist all of you, our critically important members, with your needs. It is our hope that this position will be able to work with the Board of Directors as they implement our strategic plan to enhance our current membership benefits and develop new ones. The Membership Coordinator will be a resource for our current members’ daily questions and concerns; and will create campaigns that reach out to new and diverse membership populations to enhance the dialogue and expertise available to everyone.

Lastly, I am thrilled to be returning to an in-person Annual Dinner! Our slate of awardees, outlined in this issue, are inspiring and sure to provide a great experience. While bittersweet, the announcement of the Benjamin Ostrer Memorial Scholarship for law students choosing criminal defense internships is an important part of NYSACDL’s mission that I am pleased to see moving forward. I hope Ben would be honored to see NYSACDL remembering him with this scholarship, although, I’m sure in his humble way, he would say it is not necessary. We miss him dearly.

As always, as we move into 2023, if there is anything I can do for you, please don’t hesitate to reach out to me. Thank you for your continued support of NYSACDL and all you do for your clients and colleagues. Happy New Year!

Message from the Incoming President

Yung-Mi Lee

Recently, Supreme Court Justice Clarence Thomas said, “I don’t have a clue what [diversity] means.” Quite an admission. No matter where you stand on affirmative action, the Supreme Court’s future decision will have far reaching implications, including, I worry, on the work we do.

As I prepare to step into my new role as NYSACDL’s president, I have also been thinking about racial equity and diversity, albeit not in the same way that Justice Thomas struggles. As a public defender for almost 25 years, I have seen the daily inequities that people of color encounter in our legal system. I concluded a long time ago that we work in a system that oppresses - whether intentionally or not. One needs only to look at who makes up the majority of those who are arrested, prosecuted and incarcerated. There can only be one conclusion: racism is still deeply institutionalized in our criminal justice system.

As a community of diverse defense lawyers (from different backgrounds with different types of cases and courts), I also realize that we are all at different points in our stances on racism and bias. I admit that I have a lot more work to do myself. It is hard work and, sometimes, painful.

In the last several years, while working at NYSACDL and at Brooklyn Defender Services, I have been driven by a need to upend this system. During my presidency, I plan to build upon what NYSACDL has achieved. In 2020, we participated in Jeh Johnson’s in-depth Report from the Special Adviser on Equal Justice in the New York State Courts, published a little more than two years ago. This report did not “whitewash” the experiences of the vast majority of litigants in the criminal, family and housing courts, or the attorneys of color who regularly appear in those courts.

Our CLE’s have also explored the nature of the disparities and how to address them. In 2021, at Buffalo’s Superstar Trial Seminar we focused on “Examining Race Issues in Criminal Defense.” This past year we were lucky to have Heather Pinckney, a co-founder of Black Public Defenders Association, present on “Crossing on Race” during our annual Cross to Kill seminar. I also see on our listserv that attorneys have been discussing pretext stops in the context of racial profiling!

NYSACDL’s legislative committee works on bills designed to achieve not just fairness but also with an understanding that we need to address systemic racism. As we work against more “rollbacks” to our historic criminal law reforms, we continue to oppose “dangerousness” as a standard in our bail laws because we know that such a standard will only result in perpetuating racial disparities in our pre-trial jail populations.

We have also provided essential testimony before the Pandemic Practice Working Group of the Commission to Reimagine the Future of NY’s Courts. In a nutshell, our testimony emphasized the importance of guarding against the dehumanizing effects of virtual proceedings. While the constitution provides important safeguards when conducting hearings and trials, we also talked about the need to be able to connect with the people we represent especially in a first meeting and that judges also need to see that we represent human beings.

I am honored to serve as president because I am proud to be a part of NYSACDL and I am proud of the work that our members do. I look forward to continuing our work and getting to know many more of you in the upcoming year.

ourt of Appeals C

Pertinent Criminal-Related Decisions

December 2021 through October 2022

By Timothy P. Murphy, Esq.

December 14, 2021

People v. Lashley

37 NY3d 1140

People v. Pietrocarlo

37 NY3d 1142

P. Murphy,

This is a brief and unanimous memorandum reversing and remitting the matter to the AD. The defendant’s challenge to the People’s CPL 400.21 predicate felony statement did not fall under the narrow illegal sentence exception to the preservation requirement. See, People v. Nieves, 2 NY3d 310, 315-316 (2004); People v. Samms, 95 NY2d 52, 56-58 (2000).

This is a 6 to 1 memorandum affirming the AD, with Judge Wilson dissenting. There was legally sufficient evidence supporting the second degree assault charge under the People’s accessorial liability theory. Viewing the evidence in a light most favorable to the People, there was a valid line of reasoning and permissible inferences that could lead a rational person to conclude every element has been proven beyond a reasonable doubt. People v. Delamota, 18 NY3d 107, 113 (2011). In dissent, Judge Wilson opined there was no evidence specific to the defendant; rather it was equivocal and

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Timothy

Esq. is an Assistant Federal Defender, WDNY, formerly chief appellate attorney for the Legal Aid Society of Buffalo, and Chair of NYSACDL's Amicus Curiae Committee

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circumstantial. The evidence supporting the defendant’s purported intent was remote from the occurrence of the offense.

People v. Wilkins

37 NY3d 371

This is a 4 to 3 decision, authored by the Chief Judge. Judge Fahey wrote the dissent, joined by Judges Rivera and Wilson. The Fourth Department is affirmed. In contrast to the Court’s previous jurisprudence, the defendant’s pre-waiver Antommarchi issue required preservation. See generally, People v. Antommarchi, 80 NY2d 247, 250 (1992); People v. Davidson, 89 NY2d 881, 882 (1996).

A defendant has a “critical” statutory right recognized in Antommarchi to be present for side bar conferences during voir dire, in order to have meaningful input and participation in picking potential jurors. See, CPL 260.20. The defendant needs to be personally present to assess the jurors’ facial expressions and demeanor. This permits a defendant the opportunity to detect a perspective juror’s hostility and bias, and provide valuable input regarding defense counsel’s discretionary decision. Here, the defendant was only given his prerequisite warnings (and then waived his general Antommarchi rights) after the sidebar in question for which defendant was not present. The perspective juror in question was ultimately struck peremptorily by the co-defendant.

The majority emphasized that defendant could observe the exchange between the parties in open court, completely ignoring the importance of his Antommarchi right, which enables him to be personally present for the exchange. The majority noted the defendant had the opportunity to protest the error in question; it was curable during the voir dire process. Instead the defendant acquiesced. See also

generally, People v. Nealon, 26 NY3d 152, 160-163 (2015) (O’Rama error requiring objection, where defendant had sufficient notice of jury note).

In dissent, Judge Fahey reminds us of the fundamental right to be present during material stages of the trial. Antommarchi, supra at 250; People v. Vasquez, 1 NY3d 44, 47 (2003). There is no dispute that an Antommarchi error occurred, as there was no waiver of rights before the side bar occurred in the defendant’s absence. The majority has reversed 30 years of

that unless the Court or the legislature correct the majority’s error, future defendants need to object now to an Antommarchi error.

December 16, 2021

People v. Lamb

37 NY3d 1174

established jurisprudence in requiring preservation here. It will impair a defendant’s right to be present at every material stage of the trial. Similar to Ventimiglia issues, a general post-violation waiver is insufficient and must not be applied retroactively. See, People v. Spotford, 85 NY2d 593, 587-599 (1995). The postviolation waiver here was only meant for going forward and did not explicitly reference the particular Antommarchi violation that had already occurred. The two prejudice-related exceptions to an Antommarchi violation reversal (where the defendant’s presence could not have affected the outcome or where the sidebar is replicated later) are inapplicable here. Having a so-called opportunity to view the perspective juror in court, as the majority observes, ignores the importance of being personally present at the side bar conference. Judge Fahey opines

This is a splintered memorandum, with Judges Singas (joined by the Chief Judge and Judge Cannataro) and Wilson (joined by Judges Rivera and Garcia) writing separate concurrences. Judge Fahey was the lone dissenter. At issue was the propriety of jury instructions regarding two sex trafficking counts under PL § 230.34. At the time of the law’s enactment, NYS was the fourth busiest point of entry for sex trafficking in our country. The initial jury instructions accurately presented the law. However, a new trial was ordered because of erroneous supplemental jury instructions which severed the link between two separate (but connected) statutory elements. These elements require that the offender advance or profit from prostitution and do so by one of the specific enumerated coercive acts, all of which are common in the sex trade. These acts include threatening physical force, making false statements, withholding a passport, damaging property, falsely accusing a person of a crime and blackmailing.

Here the defendant’s conduct occurred in both New York and New Jersey, involving two complainants, ages 18 and 22 respectively. Young women in homeless shelters in both states were targeted, beginning with online escort advertisements. The

“To be an effective criminal defense counsel, an attorney must be prepared to be demanding, outrageous, irreverent, blasphemous, a rogue, a renegade, and a hated, isolated, and lonely person - few love a spokesman for the despised and the damned.”

— Clarence Darrow

prosecution theorized the defendant mostly promoted these crimes in NYS and committed the coercive acts in NJ.

Jurisdiction concerns the power of the state to bring a criminal proceeding. See also generally, People v. Werblow, 241 NY 55, 60 (1925) (Judge Cardozo addressing the scenario of where an offender commits only part of his or her conduct within NYS). A jurisdictional defense was raised under CPL 20.20(1), as the People were obligated to establish beyond a reasonable doubt at least one element of the crime either occurred or was attempted in NYS. The defendant contended the “core” coercive conduct was required to have occurred in NYS. Here, the coercive acts only occurred in New Jersey.

The jury requested clarification regarding the elements, to which the court supplemented its original instruction, informing the jury that the first element was not specific to either complainant. The jury convicted on a sex trafficking count for one complainant, but not the other. The Court observed the similarity between the sex trafficking statute and first-degree promoting gambling under PL § 225.10(1), as both are premised on advancing or profiting from a certain illegal activity by performing certain affirmative acts. See, People v. Giordano, 87 NY2d 441, 447 (1995) (concluding the gambling statute contains in fact two elements). Collapsing the statute into a single element casts too small a net for what the legislature intended. The two main elements here are both separate and linked. Defendant’s argument would effectively require two PL § 230.34 elements, not one, be established in NYS for courts to obtain jurisdiction.

The way forward following this decision maybe unclear. The Judge Singas concurrence opined the trial court should have

clarified the jury’s inquiry under CPL 310.30 instead of effectively severing the link between the two elements. Rather than responding in a meaningful manner, this supplemental instruction effectively contradicted the trial court’s own initial instructions, muddled the definition of the crime and confused the jury. This further left the reviewing court without assurance that the jury applied the proper standards for both jurisdiction and the elements of the charged crimes. A new trial is thus in order. Judge Wilson’s concurrence, though condemning the supplemental instruction as improperly severing the elements, concluded that NYS did not have jurisdiction to prosecute the PL 230.34 statute without showing coercive conduct was used on a particular victim. Jurisdiction here requires that the two elements be linked. Further, Judge Wilson disagrees with Judge Singas’s analogy to the Giordano gambling case, as it leads to unreasonable results. Judge Fahey in dissent correctly concludes that the decision is confusing, providing the trial court little guidance upon remittal. It was also contradictory to find the supplemental instruction to be erroneous while also finding there to be legally sufficient evidence for geographic jurisdiction. Stay tuned.

January 6, 2022

People v. Sposito

37 NY3d 1149

This is a 5 to 1 memorandum, affirming the AD. Judge Wilson authored the dissent. Judge Troutman did not participate. The defendant was not deprived of ineffective assistance of counsel under either the state or federal constitutions, People v. Baldi, 54 NY2d 137, 147 (1981); Strickland v. Washington, 466 US 668, 690-691 (1984), by waiving a Huntley hearing. Rather, it was a reasonable trial strategy to take the sting out of defendant’s statements

and fend off their use in impeachment of the defendant. Not using expert testimony also did not reach the level of ineffective assistance, as counsel was able to obtain key concessions from the People’s experts during cross-examination.

January 11, 2022

People v. Ortiz

37 NY3d 1157

This is a unanimous memorandum, affirming the AD. The Miranda-related issue of post-warning statements being admissible is unpreserved. The admission of defendant’s initial unwarned statements was harmless error. People v. Crimmins, 36 NY2d 230, 237 (1975). There was no ineffective assistance of counsel and the trial court did not abuse its discretion in summarily denying the defendant’s CPL 440.10 motion.

February 10, 2022

People v. Johnson

37 NY3d 1166

This is a unanimous and brief memorandum reversing the AD. The waiver of appeal, which included a suppression issue, was invalid, as it conflated the rights the defendant was giving up in pleading guilty, as opposed to those surrendered by waiving the right to appeal. See, People v. Moyett, 7 NY3d 892, 892-893 (2006); see also generally, People v. Holz, 35 NY3d 55 (2020) (terrific decision on CPL 710.70(2) suppression issues surviving the entry of a guilty plea).

February 15, 2022

People v. Duarte

37 NY3d 1218

This is a 4 to 2 memorandum, affirming the Appellate Term. Judge Rivera authored the dissent, joined by Judge Wilson. Judge Troutman did not

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participate. The Court held that the defendant’s statement to the trial court, “I would love to go pro se” (mixed within his complaints about defense counsel), did not reflect a definitive commitment to self-representation that would trigger a searching inquiry by the trial court. See, People v. LaValle, 3 NY3d 88, 106 (2004); People v. McIntyre, 36 NY2d 10, 17 (1974); see also, People v. Crespo, 32 NY3d 176, 178 (2018); People v. Silburn, 31 NY3d 144, 150 (2018).

In dissent, Judge Rivera opined the defendant’s request was clear and unequivocal, as evidenced by his reference to purported ineffective assistance of counsel and suppression issues. The clarity of the defendant’s words, coming on the heels of the court’s rejection of his complaints about counsel, foreclosed any suggestion of hesitance or uncertainty. No request for a new assigned attorney was made. Though the trial court ignored the defendant, a simple inquiry would have clarified any potential questions as to what Mr. Duarte meant. Moreover, comments made after the defendant’s request for counsel were irrelevant. “The reasoning of McIntyre has stood the test of time. The majority’s memorandum cannot.”

quences of refusing to take the chemical test three hours after his DWI arrest. He refused. The Court held that the horribly drafted VTL § 1194(2)(a) two-hour chemical test “deemed consent” rule was inapplicable to administrative DMV revocation hearings.

The Court observes that VTL § 1194(2) (c) limits the scope of administrative

subdivisions under § 1194(2). In 1973, a defendant’s refusal became statutorily admissible in criminal trials under VTL § 1194(2)(f). In 1980, the legislature added an immediate suspension of the license by the criminal court if refusal is sufficiently alleged, pending the DMV administrative adjudication.

turning with quick guilty pleas.”

— Emily Bazelon, Charged

DMV revocation hearings to determining whether: (1) there are reasonable grounds to believe the motorist operated a motor vehicle in violation of VTL § 1192; (2) the arrest was lawful; (3) the motorist was sufficiently warned of the consequences of refusing to take the chemical test; and (4) the motorist refused to take the test.

The Court distinguished People v. Odum, 31 NY3d 344, 346 (2018), which addressed the admissibility of “such chemical test” (under VTL § 1194(2)(f)) in a criminal proceeding taken more than two hours after the arrest. The matter at bar, however, addressed only the scope of a DMV hearing. In dissent, Judge Rivera opined that Odum controlled, as there was no textual basis for concluding the same language found in subsections (2) (a) and (2)(f) mean something different. The majority is making a policy-based statutory revision by judicial fiat, an action only a legislature may perform.

March 17, 2022

People v. Burgos

38 NY3d 56

Matter of Endara-Caicedo v. NYS Dep’t of Motor Vehicles

38 NY3d 20

This is 5 to 1 decision, affirming the First Department. The Chief Judge authored the majority opinion, with Judge Rivera being the lone dissenter. Judge Troutman did not participate. At bar, the defendant was warned of the revocation conse-

The majority observed the legislature’s wishes to facilitate the taking of chemical tests and remove “the scourge” of drunk drivers from the road. The Court distinguishes between the 2-hour evidentiary rule (which is rooted in how fast alcohol is metabolized in the bloodstream) regarding VTL § 1192 prosecutions in criminal court and administrative hearings which determine whether a license is to be revoked. Administrative DMV revocation hearings have been with us since 1954, refusal warnings since 1968. In 1971, criminal and administrative DWI-related issues were delineated into separate

This is a unanimous affirmance of the defendant’s consolidated direct and CPL 440 denial appeals, authored by Judge Troutman. Defense counsel, who had a history of ethical violations, had been suspended from practicing law for 18 months (for neglecting clients) by the U.S. Court of Appeals for the Second Circuit. There were pending reciprocal disciplinary proceedings in the First Department at the time of counsel’s representation of Mr. Burgos. The Second Circuit had required counsel to instruct other tribunals that he was appearing before of the Second Circuit’s suspension. But his client was not informed. This did not deprive the defendant of meaningful and effective assistance of counsel, or of the constitutional right to

“The central point is this: in the vast majority of cases, bail doesn’t make the public safer and it’s not necessary to make sure people come back to court. Its true though unstated function is to keep the wheels of the courthouse—and in the D.A.’s office—

rom the Defense Table F

The ongoing COVID-19 Pandemic affected all of us in our individual lives and in our representation of clients in criminal cases. For many, the focus in the early days of the pandemic turned to furiously filing writs to obtain the release from custody of some of our most high-risk clients. Many trials were indefinitely postponed and new strategies had to be learned and developed to defend our client’s rights in this new landscape. Despite the adjournments, postponements, and general uncertainty, our membership continued to fight. Here is a small sampling of some of what has been achieved by our members in court. Read it and take heart that while our work is never done, it is sometimes won:

Trial Court Dismissal of Sex Crimes on Statute of Limitation Grounds

May 21, 2021

NYSACDL mem-

ber Rob Caliendo secured the dismissal of a six count indictment in Nassau county charging his client with course of sexual conduct against a child in the second degree and other

charges. Nearly twenty years after the alleged conduct occurred, and nearly a decade after it allegedly ended, his client was arrested and charged with sexually abusing his step-grandchildren. The case was brought in September of last year and although his client was able to remain out on bail he was facing a prison sentence if convicted which, at 80+ years old, would have been a death sentence. Caliendo moved to dismiss the entire case on ex post facto grounds, arguing that New York’s 2019 Child Victims Act – which extended the Statutes of Limitations for certain sex offenses – was unconstitutional as applied to his client based on Supreme Court precedent that such laws cannot revive already expired claims. He also moved to dismiss on alternative ex post facto grounds where one of the counts criminalized conduct that wasn’t illegal when it was alleged to have occurred. The DA orally conceded the motion and the Court dismissed the case in its entirety.

First Department Grants Gun Suppression

NYSACDL Member Peter H. Tilem, Esq., of Tilem & Associates, P.C., White Plains obtained a reversal and dismissal of a gun charge for his client on March 30, 2021.

Police in the Harlem neighborhood of New York City stopped a vehicle with Massachusetts license plates for running a red light. Because the driver seemed nervous, the police asked him to step out of the vehicle. A police sergeant asked the driver about weapons in the vehicle, which had three passengers. Police claimed that the driver made an ambiguous response about the man in the front seat. They removed the front seat passenger from the

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Defense Table

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vehicle, patted him down but found no weapons. The police then asked the two passengers in the back seat if they had guns. One passenger responded that he was a licensed concealed-carry gun owner in the State of Massachusetts and that he had a gun. After he was arrested, the other back seat passenger admitted that he too had a gun and was arrested. That defendant, S. Jonathas, moved to suppress the gun, claiming that the police lacked a founded suspicion of criminality to justify a common-law right to inquire about weapons in the vehicle, relying on the Court of Appeals 2012 precedent People v. Garcia , which held that driver nervousness during a routine traffic stop is insufficient by itself to justify a level 2 inquiry under People v DeBours.

The People tried to distinguish this from People v. Garcia by arguing that the driver displayed an "extreme nervousness", that the out-of-state license plate could indicate guns being brought in to New York, and that this occurred in a "highcrime" area. Supreme Court denied the suppression motion and Mr. Jonathas entered a guilty plea which preserved his right to appeal the suppression decision.

The First Department reversed and dismissed the charge, agreeing with Defendant that neither the stop occurring in a high-crime area nor the unsupported contention that out-of-state license plates were more highly associated with criminal activity and guns than cars with New York plates justified the intrusion. People v Jonathas 2021 NY Slip Op 01954 Decided on March 30, 2021.

Kings County Speedy Trial Dismissal After DNA Delay

Member Tara

Whelan obtained a speedy trial dismissal in a felony DV case in Kings county for her client on

September 13, 2021 in a written decision authored by Administrative Judge Matthew D’emic. Whelan’s client had been charged with PL 265.01(b), Criminal Possession of a Firearm in the summer of 2019. Whelan successfully argued for a dismissal of the indictment on speedy trial grounds. Judge D’emic’s decision followed the change in applicable law on the case from 2019, when the client was initially charged, and after 2020, when the new discovery statute went into effect. The prosecution made a strategic decision in 2019 to seek DNA testing of the recovered firearm prior to presenting to a grand jury and ultimately it was that delay prior to indictment, along with an additional failure to file a certificate of compliance and readiness in time after the governor lifted the 30.30 suspensions that led the Court to grant dismissal.

Jurisdictional Defect in Waiver of Indictment Leads to Reversal of Rape Conviction

NYSACDL Member Noreen E. McCarthy, Esq., McCarthy Law, Keene Valley, NY, who appeared of counsel to the Frank H. Hiscock Legal Aid Society, Syracuse, NY, successfully obtained a reversal of a rape conviction on appeal for a client who had waived prosecution by indictment. The plea of guilty to Rape in the First Degree was reversed on appeal and the superior court information dismissed by the Fourth Department in People v. Paul Meeks, (Docket # KA 1801956, decided 3/26/21), upon a finding that Defendant's waiver of indictment was jurisdictionally defective for failing to provide adequate notice of the charges upon which the prosecution by SCI would proceed.

The Fourth Department noted that, to be valid, a waiver of indictment must contain, among other things, "the name, date and approximate time and place of each offense" to be charged in the SCI (CPL 195.20). A

waiver of indictment which fails to provide sufficient information about the approximate time or location of an offense is not per se jurisdictionally defective where the alleged omissions merely involve "nonelemental factual information".

However, cognizant of the Court of Appeals' decision in People v. Thomas, 34 NY3d 545 (2019), requiring the written waiver of indictment to ensure the defendant has notice of the charges upon which the prosecution by SCI would proceed by memorializing "with sufficient specificity the charges for which a defendant waives prosecution by indictment", (Thomas, 34 NY3d at 569), the Fourth Department had to assess the sufficiency of the facts alleged as to non-elements of the crime with a "fundamental concern [for] whether the defendant had reasonable notice of the charges for double jeopardy purposes and to prepare a defense".

In this case, the felony complaint referred to two separate acts of rape which occurred, respectively, in September and October of 2016. By contrast, the waiver of indictment listed only a single count of rape in the first degree alleged therein to have occurred between July and November of 2016. Inasmuch as the sole charge in the waiver of indictment could plausibly refer to either of the two acts of rape in the first degree alleged in the felony complaint, the waiver of indictment failed to put defendant on notice of the precise crime for which he was waiving prosecution by indictment and was thus jurisdictionally defective. The court held that this defect both impeded the defendant's ability to prepare a defense and failed to provide sufficient identification of the alleged crime for purposes of double jeopardy.

Repeal of Civil Rights Law 50-a Applied Retroctively to Grant F.O.I.L. Request for Police Disciplinary Records

Member Kenneth Puig, Esq., Law Office of Kenneth Puig, Newburgh, NY successfully obtained police disciplinary records under a retroactive application of the repeal of 50-a. Judge Onofry, Supreme Court, Orange County granted a Freedom of Information Law request seeking police personnel disciplinary records, which had previously been shielded from disclosure, by applying the repeal of Civil Rights Law Section 50-a retroactively. Puig v. City of Middletown, Index # 498-2021, decided 4/7/21.

Puig made a FOIL request seeking "disciplinary records of all City of Middletown Police Officers who have been disciplined". The Middletown City Clerk denied the FOIL request on the ground that it was unreasonably broad, noting that "Middletown has been incorporated as a city since the 1880's". Puig initially appealed the denial but, for technical reasons, ended up filing a new FOIL request seeking the disciplinary records of only those Middletown officers on active duty. The City Clerk granted the new application only as to those disciplinary records created after June 12, 2020 - the effective date of the repeal. He denied the request as to those records created prior to the effective date, claiming there was no basis to believe that the repeal of Civil Rights Law 50-a was intended to apply retroactively. On appeal to the Middletown Mayor, the denial was affirmed on the ground that the repeal of Section 50-a was not intended to be applied retroactively.

Judge Onofry, after analyzing the language of the statute and the legislative intent behind the repeal of Section 50-a, as well as the purposes behind the Freedom of Information Law, determined that the repeal of Section 50-a was "remedial" in nature. The Committee Report from the Legislature had indicated the purposes of the repeal included helping "the public regain trust that law enforcement officers and agencies may

be held accountable for misconduct". The Committee found that police-involved killings by law enforcement officials who have histories of misconduct complaints, and in some cases recommendations of departmental charges, had increased the need to make the records more accessible. Judge Onofry ultimately ordered the City to provide the requested police disciplinary records.

Deferred Prosecution Agreement Obtained in Multi-Defendant, Multi-Count Federal Indictment In SDNY

Member Andrew M. J. Bernstein a Partner at Sichenzia Ross Ference LLP (“SRF”) in New York, NY successfully negotiated a Deferred Prosecution Agreement for his client, a member of the health care sector, with the United States Attorney’s Office for the Southern District of New York. The agreement should result in a full dismissal of all currently pending criminal charges. Bernstein’s client was charged in a sweeping multi-defendant, multi-count indictment which included allegations of soliciting bribes by an agent of a federally funded organization and conspiracy to commit bribery. Mr. Bernstein successfully persuaded federal prosecutors to allow the client to enter into a DPA that is expected to result in a full dismissal of all charges sometime in quarter one of 2022. While the efforts to secure the DPA required a creative strategy and compelling written advocacy, Mr. Bernstein credits federal prosecutors for their careful review of all information he put forth and conducting a “thorough investigation” that “determined that the interests of the United States and [the client would] best be served” by entering into a DPA.

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the counsel of his choice. The attorney was not constructively unlicensed in NYS at the time of the representation in question. Indeed, the First Department only reciprocally suspended defense counsel from practicing law after the defendant had been sentenced in this matter.

The defendant argued that had he known of the Second Circuit suspension, he would not have let counsel continue representing him. But attorneys are entitled to due process (i.e., notice and an opportunity to be heard) in disciplinary proceedings. Accordingly, the imposition of reciprocal discipline is not a foregone conclusion. Defense counsel violated no ethical rule, according to the Court, by not informing his client of this foreign jurisdiction’s disciplinary ruling. Finally, while the Court in footnote 6, affirms once again that the state constitution “offers greater protection than the federal test…” for ineffective assistance of counsel, People v. Caban, 5 NY3d 143, 156 (2005), the Second Circuit’s suspension had no impact on the representation provided at bar.

March 22, 2022

Matter of Alvarez v. Annucci

38 NY3d 974

This is a 5 to 2 memorandum regarding an Article 78 petition. Judge Wilson authored the dissent, with Judge Rivera joining. The Second Department is affirmed. The Court held that the residency restriction of the 2000 Sexual Assault Reform Act (“SARA”) applies equally to eligible offenders released on parole, conditional release or subject to post-release supervision (“PRS”). Mr. Alvarez was on PRS and argued the law did not apply to him.

As SARA, codified in Executive Law § 259-c(14) (as amended in 2005), prohibits certain enumerated level

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Treatment Not

By Aaron Horth

Rico1 was 17 the first time he was arrested for violence against his mother. It started with a misdemeanor assault, and then a contempt case less than 48 hours later. It culminated with Rico threatening to kill his mother with a knife. But not once, during Rico’s half a dozen cases, did the prosecutor ever try to find out why Rico would seek to kill his mother, his natural protector. The events of Rico’s life were always viewed in a vacuum. It is not normal or natural for a child to want to harm their parents, and so when it happens, we must ask why.

I knew that the Administration of Children’s Services was somehow involved in Rico’s home, but that’s about all I knew. That said, although he never opened up to me about it, I also knew he had at least one adverse childhood experience. Rico’s trauma was palpable since the moment I met him. But I was never able to fully unearth that history; and the prosecutor simply never cared to look.

In addition to Rico’s issues at home, he also struggled with his ability to form relationships and maintain appropriate boundaries with women. The ATI programming he received was part of a combined plea deal that included a conditional discharge for a forcible touching conviction as well. Though the prosecutor knew about these problems with inappropriate sexual behavior, I doubt they ever considered that it might be due to his upbringing and that amorphous trauma that surrounded him.

Jails

While the prosecutor accepted Rico into the court’s Alternatives to Incarceration Program, this wasn’t based on any individualized consideration of what sort of horrors could have led Rico to threaten his mother with a knife or inappropriately touch or talk to women. This was simply based on his age and lack of record, Rico was literally chosen because he had the right numbers, low enough on the age and conviction matrix. But what that system of evaluation misses are the contours of what preceded the illogical child behavior, because if we really believe in rehabilitation, the chosen alternative to incarceration must be tailored to fit the contours of the problem. And the only way that these programs can actually be successful is for prosecutors to embrace meaningful mental health treatment, with an emphasis on cognitive behavioral therapy.

Shortly after being released to ATI programming, Rico was accused of making sexual comments or gestures towards women in his counseling program and housing placement. Despite the fact that the court, the prosecutor, and Rico himself all agreed he had a problem with sexual behavior; the very program he was sent to for treatment of these issues discharged him for these exact behaviors. The program alleged he made inappropriate sexual advances toward staff and told the counseling staff that he didn’t want to talk about his mother or his family. These were the only complaints. He never missed a session. He was always on time. Rarely in doing this work have I had a client as open to guidance as Rico. He was both honest and earnest, he showed up and always did his best, and he never failed to admit when he was wrong or to apologize for his actions. When asked about an inappropriate comment made to his counselor, he simply told me, “I think I should be able to say those things to people.” I am not a mental health practitioner, but I was always struck by his honesty. How many people greet mental health practitioners with such earnest energy? We spend so much time struggling to get clients to take ownership of their actions but this was never at issue for Rico. Yet still, he “failed” the mandated programming.

Aaron Horth (he/they) has been a Staff Attorney with the Legal Aid Society’s Criminal Defense Practice in Manhattan since 2018. Prior to joining Legal Aid, Aaron worked in Legal Services NYC’s Housing practice doing eviction defense and tenants’ rights litigation. In his spare time, Aaron enjoys reading fiction and is a novice yet very enthusiastic surfer.

He simply showed up to a court ordered therapy session presenting with the symptoms the court sought to address as any 19-year-old might, with frustration and hesitancy to open up to strangers. But rather than question why a counseling program for individuals displaying deviant sexual behavior was unable to redirect deviant sexual behavior or engage a disengaged teenager, the court instead punished Rico for the failure of his providers. He was discharged from the treatment program at the prosecutor’s insistence and remanded for sentencing. And thus, due to a failure of a treatment program that seemed intent on discharging Rico from the moment he entered, I found myself in front of the court making these arguments on behalf of Rico, who asked the court directly for another opportunity to engage in counseling:

“This is an incredibly pivotal period in Rico’s life, and it will inform the way he relates to others and the world for the rest of his life. If he is sent to state prison, he will inevitably learn only how to survive in prison, but nothing else about how to lead a positive life in the real world. And while DOCCS is known for many things, their incredibly effective treatment for problematic sexual behavior is simply not one of them. For Rico, a state prison sentence will be tantamount to a life sentence in the criminal justice system. Dramatics aside, consider that while Rico’s peers are going to college, doing intern-

Treatment Not Jails

Continued from previous page ships, entering the workforce, and gaining real skills that will help them succeed, Rico will be learning how to make weapons, smuggle contraband, and survive in a highly militarized environment. There is no real-world application for this skillset, and when Rico is 22 or 23 and released from prison, with a felony conviction and no work history, reintegrating into society will be almost impossible. If there is any hope for Rico to be a productive member of society, he must be given the opportunity to live on his own, as an adult. As Rico becomes an adult, the lessons he learns now are going to be lessons that guide him throughout the rest of his life. So before making this decision, I asked the court, do you feel safer in a world where Rico has learned how to interact with others from licensed mental health professionals, or a world where Rico was educated by fellow inmates at a Correctional Facility?”

Perhaps it won’t surprise you, readers, to learn that the court opted for incarceration rather than continued treatment in this instance. The failures unjustly attributed to Rico by Prosecutors and the Court in his treatment program were simply too difficult to overcome within the larger framework of our current punitive and carceral system. My hope is that as a community we can think more deeply about how to advocate for real, meaningful treatment alternatives to incarceration, especially for our younger clients. Perhaps the problem is that these treatment programs are so accustomed to treating individuals without real behavioral issues who merely engage in treatment to fulfill the mandates of courts that they don’t understand real trauma. Or perhaps the issue is that programs can’t afford mental health practitioners skilled enough to engage complicated participants like Rico, with serious behavioral issues, mental illness, and/ or histories of trauma. Or perhaps we as defense attorneys need more training in dealing with clients’ mental health issues and early life trauma so we can better advocate to the courts on their behalf.

Whatever the issue or issues may be, it’s clear that for clients like Rico, the system simply is not working. And now, because of the system’s failure, Rico will inevitably experience more trauma, learn more anti-social behavior, and be much less able to interact in a non-carceral world when he finishes his sentence. While I don’t pretend to have the answers, I know for certain we can and must continue to show the prosecutors and the courts when these systems fail. We must tell them when they treat our clients poorly, or worse, don’t treat them at all. We must also advocate within our state and local governments for better funding for these programs, as a masters’ degreed social worker who only makes $40,000 a year is certainly not in any position to bring their best selves to their work or their patients. Our clients deserve better, and so do the mental health providers who serve them. By demanding that the government value these services more, we send the message that our clients, too, deserve more respect and value. And hopefully by supporting the infrastructure that works with alternatives to incarceration programs, we can make the mandate of treatment not jails more than a catchy slogan. We can bring more meaningful services to our clients and give them the support they need to heal and learn to live in our society.

Appellate Report

Continued from page 13

3 sex offenders from residing within 1000 feet of a school, see also, Penal Law § 220.00(14)(b) (defining “school grounds”), released offenders are not free to reside anywhere they want. Finding a homeless shelter as a sex offender, particularly in NYC, is a daunting task, as the DOCCS waiting list for this type of housing is 2 to 3 years. See also generally, McCurdy v. Warden, Westchester Co. Corr. Facility, 36 NY3d 251 (2020); Negron v. Superintendent, Woodbourne Corr. Facility, 36 NY3d 32 (2020); Johnson v. Superintendent, Adirondack Corr. Facility, 36 NY3d 187 (2020).

The question here was whether SARA applies to a scenario not contemplated explicitly in Exec. Law § 259-c(14), which only refers to parolees and those conditionally released. But see, Johnson, 36 NY3d at 200 (finding the SARA residency requirement indeed applies to PRS).

The Court concluded that the 1998 Sentencing Reform Act, which brought us PRS under PL § 70.45(3), needs to be considered in this context as part of a “comprehensive reading of the statutory scheme.” See also, Exec. Law § 259-c(2) (referencing PRS, along with parole and conditional release as being under the authority of the Parole Board). Resembling its recent DWI decision in February, the majority described SARA as part of a “comprehensive and multiyear legislative effort to place more stringent restrictions on certain sex offenders living in the community.” See again, Matter of Endara-Caicedo v. DMV, 2022 NY Lexis 164, at *11-13; 2022 NY Slip. Op 00959; 2022 WL 451453 (Feb. 15, 2022) (recognizing the various legislative attempts in ridding society of the scourge of drunk drivers in concluding the 2-hour rule applied to DMV administrative hearings). It does appear that policy issues are again

NYSACDL Foundation

Annual Dinner & Awards Celebration

Thursday, January 19, 2023

The Rooftop at Edison Ballroom 240 W 47th St., New York, NY

Cocktail Reception // 6:00pm

Dinner & Awards Ceremony // 7:30pm

Join the NYSACDL Foundation and NYSACDL Officers and Directors in honoring our colleagues.

Hon. William Brennan Award for Outstanding Jurist

Hon. Matthew J. D’Emic // Administrative Judge for Criminal Matters, Kings County Supreme Court

Hon. Thurgood S. Marshall Award for Outstanding Criminal Practitioner

Bobbi C. Sternheim, Esq. // Law Offices of Bobbi C. Sternheim

Justice Through the Arts

James Scruggs // Writer/Producer/Creator - 3/Fifths

Benjamin Ostrer, Esq. Scholarship Program For Criminal Defense Internships (a portion of the dinner proceeds will benefit the scholarship program)

Installing 2023 NYSACDL President

Yung-Mi Lee, Esq.

Honoring 2022 NYSACDL President

Brian M. Melber, Esq.

Recipient of the Hon. William Brennan Award for Outstanding Jurist

Hon. Matthew J. D’Emic

Administrative Judge for Criminal Matters, Kings County Supreme Court

Judge Matthew D’Emic was appointed to the bench in 1996. In 2014 he was appointed Administrative Judge for Criminal Matters in Kings County Supreme Court. In addition to his administrative duties, Judge D’Emic presides over the Brooklyn Mental Health Court.

Judge D’Emic is a member of the New York State Judicial Committee on Women in the Courts and the New York State Judicial Committee on Elder Justice. He is a past chair of the Brooklyn Supreme Court Gender Fairness Committee and a past chair of the Alternatives to Incarceration and Diversion Committee of the American Bar Association. Judge D’Emic served on the Steering Committee of Mayor Bloomberg’s Citywide Justice and Mental Health Initiative and Mayor DeBlasio’s Behavioral Health and Criminal Justice Task Force. He is a commissioner of the New York City Commission on New York City Criminal Justice and Incarceration Reform, commonly known as the Lippman Commission.

Judge D’Emic has been recognized for his work in domestic violence and mental health and frequently lectures on these topics. He has served on the boards of the Guild for Exceptional Children, the Mercy Home and Xaverian High School. He is also an adjunct professor at Brooklyn Law School.

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

Apart from successful verdicts and settlements, dismissals and favorable sentences, Bobbi counts among her proudest professional experiences having coached a young pro se defendant with a 9th grade education to acquittal on federal charges and a 50-year-old woman to parole following 30 years of a life sentence in state prison and multiple denials by the Parole Board.

In addition to her law degree, Bobbi holds a master’s in forensic psychology and an LL.M in Advocacy. She has been named a New York Super Lawyer and is "AV" peerreview rated by Martindale-Hubbell. She is a fellow of the prestigious American College of Trial Lawyers and the first (and only) woman recipient of the New York Criminal Bar Association’s Award for Excellence in the Profession.

Bobbi C. Sternheim, Esq

Law Offices of Bobbi C. Sternheim

Bobbi C. Sternheim is a highly respected and seasoned trial lawyer, advocating for her clients both inside and outside the courtroom. She has built a reputation as a leading criminal defense lawyer experienced in handling a wide variety of matters in federal and state court for individual and corporate clients. She is a recognized leader in the local and national criminal defense bar for litigating difficult and complex cases, using her courtroom and advocacy skills in New York and beyond, and educating practitioners and law students in the skills of trial and appellate advocacy.

Bobbi’s case portfolio is extensive, covering a wide range of criminal and civil matters. She holds Top Secret/SCI Clearance and has represented individuals extradited internationally.

Among her notable criminal cases, Bobbi has tried international organized crime and racketeering conspiracies, international terrorism offenses, international telemarketing fraud, capital murder, sex abuse/sex trafficking, and interstate transport of pornographic media. She has represented federal defendants charged with death-eligible offenses as both lead and learned counsel and persuaded the Attorney General of the United States to de-authorize a federal death penalty case. Most recently, Bobbi was lead trial attorney for Ghislaine Maxwell.

Notable civil cases include representation of Ghislaine Maxwell, gender discrimination suit against the Mission of Saudi Arabia, a financial interpleader action against Imelda Marcos, and a medical malpractice suit against the United States Bureau of Prisons.

Bobbi has taught advocacy on a local, national and international level, including Advanced Trial Advocacy as an adjunct professor at Pace Law School, Trial Advocacy as director of Cardozo Law School’s Intensive Trial Advocacy Program, Federal Trial Practice as a faculty member of the Federal CJA Trial Skills Academy, Advanced Evidence an adjunct professor in the LLM-Advocacy Program at Stetson College of law, Appellate Practice as a supervisor in Cardozo’s Criminal Appeals Clinic, and Trial Advocacy in Stetson’s Oxford, UK Program.

Bobbi is the Criminal Justice Act Panel Attorney Representative for the Southern District of New York and a member of the Defender Services Advisory Group to the U.S. Courts’ Committee on Defender Services. She is a member of SDNY’s CJA Peer Review Committee and Mentoring Programs and serves on the Board of Directors of Federal Defenders of New York. In addition, she serves on the SDNY/EDNY Joint Local Rules Committee.

Bobbi is a past President of the New York Women’s Bar Association and has chaired the Criminal Courts Committee for the Association of the Bar of the City of New York. By judicial appointment, Bobbi has served on the Joint Committee for Local Rules for the Southern and Eastern Districts of New York, the New York State’s Task Force on Professionalism - Ethics Subcommittee, and as a member of the First Department’s Indigent Defense Organization Oversight Committee.

Bobbi has been a facilitator and presenter at continuing legal education seminars and has provided legal commentary for print and television media. Most recently in 2022, she presented on Voir Dire & Opening Statements at the New York City Bar’s “Giants” of the Defense Trial Bar – Winning Strategies, and Representing Woman Accused in Sex Cases at NACDL’s 13th Annual Defending Sex Crimes Seminar.

Bobbi brings to her clients what it takes to make a difference: the energy and experience to provide strategic advocacy and innovative solutions to the most challenging issues confronting her clients.

Recipient of the Justice Through the Arts

James Scruggs Writer/Producer/Creator - 3/Fifths

James Scruggs is a writer, performer, producer, screenwriter, who creates large scale topical, theatrical, multi-media and virtual work focused on inequity or gender politics. In 2018, he created a site specific immersive, interactive, satirical work commissioned by The High Line… MELT!. He was awarded a 2015 MAP Grant and a 2016 Creative Capital Grant, to create 3/Fifths. Performed in May 2017, it was a fully immersive, interactive ethno-theme park, exploring race and racism called SupremacyLand.

His November 2017, 3/Fifths Trapped in a Traveling Minstrel Show was about how unarmed black men are still feared and legally killed. It received an Elliot Norton Award for Outstanding Fringe Production in Boston.

He recently produced and performed a virtual piece exploring the limited choices that people trapped in the World Trade Center were faced with, called Severe Clear. 2022.

He is currently working on a theatrical/social justice piece, Off The Record, Restorative Acts of Justice (recently funded by NPN) where effects of mass incarceration are confronted head on. In 3 cities, NYC, Boston, and Tampa, Fl. 15 BIPOC with criminal records will be identified, paired with a an attorney and have their records expunged, and their stories will be shared theatrically.

James Scruggs has a BFA in Film from School of Visual Arts. www.jamesscruggs.com.

Recipient of the Benjamin Ostrer, Esq. Scholarship Program for Criminal Defense Internships

Tribute to Benjamin Ostrer

Fierce and sharp-minded attorney Benjamin Ostrer, of Chester, Orange County, died at age 71 on July 13th Ben left behind a memorable trail of bold and quality criminal and civil litigation.

Having earned his law degree from New York Law School in 1976, he became one of the foremost criminal defense attorneys in New York State and earned a reputation for obtaining acquittals in complex murder cases.

In 2016, he was awarded the N.Y.S. Bar Association Criminal Justice Section’s Charles M. Crimi Award for outstanding criminal defense in New York. The Bar Association later bestowed on Ben its Outstanding Volunteer of the Year Award, recognizing his significant pro bono work for those in need. In 2022, the N.Y.S. Association of Criminal Defense Lawyers gave Ben its Lifetime Achievement Award for his dedicated service to the profession.

Ben’s son Evan, an attorney practicing in New Jersey, describing his father’s approach to serving his clients, stated:

“He won what most lawyers would think were unwinnable cases. He made his living defending the defenseless. If there was science involved, my father would study so much that he became a worthy adversary to the prosecution’s expert witness.”

In his honor, NYSACDL and the NYSACDL Foundation are pleased to announce the creation of an annual scholarship: The Benjamin Ostrer Memorial Scholarship. This scholarship will be awarded each year to a law student selected by a committee of the Foundation, to support their work in summer internship in criminal defense practice.

Andrew Kossover, past President of our Association, who appointed Ben to the NYS Commission on Forensic Science, offers the following tribute:

“Ben was a highly skilled advocate dedicated to his clients whether he was being paid or the case was pro bono. He was one of the most accomplished DNA attorneys in New York, self-taught. He worked tirelessly on bringing the criminal justice system closer to its highest ideals. He always made himself accessible to colleagues for mentoring and advice. Ben was a true lawyer’s lawyer. But above all, he was devoted to his family and his faith. He walked the walk and maintained quality of character throughout his life. He was a warm and distinguished individual. I’ve admired and respected Ben since we graduated high school together. This scholarship is a fitting honor to his memory.”

2022 Mock Trial Competition

Mock Trial Tournament Recap with Michael Gutman William Szilagyi Renate Lunn

The New York State Association of Criminal Defense Lawyers Trial Advocacy Program is a yearly program that teaches trials skills in a clinical environment allowing lawyers to learn from lectures and apply the skills in a supportive clinical environment. The program is composed of four modules, each teaching a different trial skill. The skills taught are jury selection, evidence and objections, cross examination and summation. Each module consists of a two-hour lecture via Zoom taught by a faculty member who is an accomplished trial lawyer with years of trial experience, and most importantly has strong teaching skills. The lecture is followed by another two hour Zoom during which attendees break into small groups to apply the skills learned. Teaching is done through the critique method of learning. Registration is limited so we can keep the breakout groups small and give each participant time on their feet to apply the skill in a supportive but instructional environment (where no client goes to jail!).

Last year, a new addition was added to the Trial Advocacy Program: a statewide mock trial tournament. This first of its kind program allowed attorneys to participate in a mock trial against other lawyers throughout the state. Regional competitions were held and the two finalists met at the second day of a two-day seminar in October where they got to pick a jury and try the case. All attendees and competitors were able to watch and listen to the jury deliberate and then ask the jurors questions afterwards for rare (and often surprising!) insights.

Here, we take a look back at this successful and unique inaugural program with two of the Mock Trial winners, Will Szilagyi and Michael Gutman, along with their finals coach, Renate Lunn. To participate next year, please check out our CLE calendar for more details on the upcoming program. It is sure to sell out and be another highlight of the training year for NYSACDL!

How did you get involved in NYSACDL’s Mock Trial Tournament?

Michael: I received an email from the Brooklyn Defender Services (BDS) training supervisor about NYSACDL’s trial training program and it sounded like a great opportunity. Little did I know that over the next few months this program would give me the experience of a lifetime.

Will: I had just graduated from Fordham Law School and sat for the bar, and I was waiting around for another couple of weeks until my job started at New York County Defender Services (NYCDS) when I was asked to join the competition. The trial competition seemed like a perfect way to prepare myself for my new career as a trial lawyer.

Renate: Steve Epstein reached out to me asking for coaches. I don’t say “no” to Steve Epstein. Especially not after last time…

What kind of training did you come into the program with and how did the program supplement it?

Michael: I attended most of the trial training sections offered. Each session counted as a CLE and each was focused on a specific trial skill such as direct, opening, closing, etc… I appreciated learning about each aspect of a trial and having the opportunity to practice in small groups with participants with more experience than you have from around the state.

Will: I was trained during law school by Fordham’s Brendan Moore Trial Advocacy Center, where I had the opportunity to compete in a few mock trial competitions.

What were your first impressions of each other? Michael and Will competed against each other in Round 1 at Fordham Law School in September.

Will: I was intimidated when I showed up to our first preliminary round. Like I said, I’d done mock trial competitions before, but they were always against other law students and not fully admitted, practicing attorneys. Michael had all of these diagrams and charts and materials he’d gotten from NYSACDL’s trial training on his iPad. I thought he looked very professional and cool as a cucumber. I was just grateful my partner, Anna Andel from Legal Aid Manhattan, looked as calm and prepared as Michael did.

Michael: Funny story about that iPad, actually… As I was leaving I said to myself, wouldn’t it be nice to have an iPad instead of papers? So I brought everything with me and proceeded to leave the iPad on top of my car 3 blocks away. A few moments before Will walks in, I realize my iPad is in the street about to get stolen and make a run for it. My stuff is miraculously still there and… now I get to run back. As the trial is about to start I can barely breathe. There’s no water in sight. I thought I’d pass out before we got to the end of the People’s presentation.

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Mock Trial

Continued from previous page

How did your first round against each other go?

Michael: I enjoyed it! Will and his partner Anna were amazing. Getting to put all this theory into action you can see how the case unfolds and you realize so many of the things you never considered. I wish we could try our real-life cases multiple times to perfect them.

Will: It was a real electric round - I was just trying to poke holes in Michael’s arguments as fast as he was making them.

How did the two of you end up in the finals?

Michael: I guess to understand that we should first discuss the semi-finals…

Will: Actually, we were still not on the same team in the semi-finals!

Can you say more about that?

Michael: The semi-finals brought the teams up to Pace Law where we were set to have the elimination round and pick the top two teams to head to Buffalo. I ended up winning my semifinal round, but I had a problem - my partner couldn’t make it to Buffalo for the final round.

Will: I, on the other hand, did not win my final round. So here I am, walking out the door with a slice of well-earned consolation pizza when Mike, who I had bonded with after our prelim rounds, asked me if I could fill in as his partner for the finals. I immediately said yes.

So then finals were next up?

Michael: Yes, but first, Steve promised us a coach at the end of the semi-finals.

Will: Yeah, and we were starting to realize that we were going to need one. We were heading up to present this case in a real Federal Court, in front of a real Federal Judge with a real (fake) Jury.

So did you get one?

Michael: Yes! A huge thank you to Renate from NYCDS who led us to victory!

Will: We really couldn’t have pulled it all together in time for the finals without Renate’s expert coaching. Renate, can you tell us about how you met the team?

Renate: Well, I met Will when he was an intern at my office in Fall 2021. Will is now conveniently in the new class of trial attorneys that I’m training. I still haven’t met Michael in person! As soon as I was assigned as their coach I wanted to get to work, because I was determined to ensure Will started his career at NYCDS with a win under his belt.

Thankfully, we got to listen to a group of renowned trial skills presenters at the Superstar Trial Lawyer Seminar. Michael and I were still making revisions to our case the day before during our lunch break at the conference, working in the things we’d learned from the presenters. So did things go according to plan once the trial went underway?

Michael: Things fell apart almost immediately!

Will: We had a motion in limine to exclude hearsay that we thought was sure to be granted, but the judge instead reserved judgment, so we were already sweating bullets.

Michael: We also lost our Sandoval application for a 3-decade old misdemeanor conviction.

I think we have a clip from your practice sessions. Let’s play that. Cue Rocky theme. Mike is on vacation on a small hotel balcony, working on his cross while his infant daughter naps in the room, Renate is in her office diagramming jury selection strategies, beating her pointer against a flip chart. Will mops his brow and he furiously scribbles in his notebook. All this happens on Zoom.

Renate: But seriously folks, Will and Michael were good sports about getting on their feet, mooting each step of the trial, and incorporating feedback. We were so committed, that our last moot was with Will in NYC, Mike still on his hotel balcony, and me calling in from the woods in Kentucky, where I was coaching at another trial skills program. I had full confidence in them by the time they went off to Buffalo.

So you were ready for trial by the time you got to Buffalo?

Will: After all the work that we’d done with Renate you’d think we’d feel ready, but you’re never ready till it’s over.

Renate: I have concerns about the judge’s bias.

Will: But once our coffee kicked in and Michael started us off strong with his opening, things started going smoothly.

One of the appeals of this competition in particular is getting to watch the jury deliberate in real time over live feed video. What were some of the highlights of that process for you?

Michael: Probably the most frustrating experience ever. One second you’re cheering they remembered and followed your ideas, the next you are pulling you hair out that they thought a minor mistake actually had meaning. For example, when our client testified there was a misunderstanding between my question and her answer. We just moved on and didn’t think much of it. Apparently, this led the jury to believe that there was something we were hiding. Nope, just nerves! The entire time they deliberated it felt like a roller coaster.

Will: Well, I got to experience confirmation of every trial lawyer’s worst nightmare in real time. I sat down from

“We really couldn’t have pulled it all together in time for the finals without Renate’s expert coaching".

— William Szilagyi

my closing and realized, dang, I forgot to make this argument Mike and Renate told me I should mention. I say to myself, “oh well, you still made your main points, it’ll be fine.” I managed to keep saying that to myself right up until the jury started to talk about the exact point I had forgotten to address, in exactly the way that I could have fixed if I had made my point. Watching them talk about that felt like an eternity.

Finally, was your favorite/worst part of the trial?

Michael: My favorite part was impeaching the testifying officer. Worst part, no juror remembered the impeachment during deliberations because I went through it too fast.

Will: I’m not sure if this answer is cheating, but my favorite part of the trial was just getting to do a full criminal trial in a courtroom as beautiful as the one we had. The “worst part” was listening to the jury and agonizing over how I could have made my arguments clearer, but watching jury deliberations was also an invaluable experience.

Renate: The worst part was missing the actual trial, as I couldn’t make it to Buffalo. The best part of the experience was helping two people starting out in this thrilling and rewarding profession build up the skills they need to effectively represent the people we serve.

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the loadstar in this Court’s analysis. But see again, Negron, 36 NY3d at 37-40 (where the Court conducted a strict interpretation of SARA, finding only specifically enumerated offenses qualify under the law).

In dissent, Judge Wilson opines the majority interpreted SARA well beyond its text. The legislature explicitly omitted PRS from Exec. Law § 259-c(14). The canon expression unis est exclusion alterius directs that the exclusion of one term while utilizing others is presumed to be intentional. The legislature knew how to draft the provision differently but chose not to. To hold otherwise would make the specific references to parole and conditional release superfluous. Moreover, Exec. Law § 259-c(14) indicates its words stand “[n]otwithstanding any other provisions of law to the contrary,” which was meant to preempt potentially conflicting statutes. Further, the law’s legislative history does not clarify the issue at bar. See, fn 7 (discussing same).

Judge Wilson further reminds us: (1) that Mr. Alvarez was effectively held in custody a year and a half too long, and (2) of the “near impossibility of finding affordable SARA-compliant housing in urban areas like New York City, in which virtually no residences are located more than two blocks from a school…” Still, Judge Wilson observes, the Court’s 2020 decisions in Johnson and McCurdy concluded it did not unconstitutionally infringe on the liberty of litigants to be effectively subjected to indefinite DOCCS confinement. There’s also some interesting footnotes here: number 3 is a veiled criticism by Judge Wilson of the Court’s decision to designate this fully preserved case of first impression under its fast-tracked Rule 500.11 procedure. Footnote 9 describes the prison programming a former inmate has received after serving a full term, perhaps making an individual on PRS less likely to commit crimes than those on parole (who haven’t yet served a full prison term). Food for thought.

People v. Bush

38

NY3d 66

This is a 4 to 3 decision affirming the AD, authored by the Chief Judge. Judge Rivera wrote for the dissent, joined by Judges Wilson and Troutman.

The defendant entered a guilty plea to the misdemeanor, CPCS in the 7th degree, wherein he agreed to 20 days of community service (“CS”). Trial courts have the constitutional duty to ensure that defendants, before pleading guilty, have a “full understanding” of what the plea connotes and its consequences. People v. Ford, 86 NY2d 397, 402-403 (1995); People v. Catu, 4 NY3d 242, 244-245 (2005); People v. Louree, 8 NY3d 541, 544 (2007). Here, the plea allocution was described as “thorough.” The CS was completed prior to sentencing and the defendant did nothing to otherwise breach the plea agreement. At sentencing, however, after purportedly being given the opportunity to lodge an objection, the lower court imposed a one-year conditional discharge, PL § 65.10(3)(b), which was not specifically referenced as part of the plea agreement. But the agreed-to CS was part of a revocable sentence imposed under the court’s statutory authority to impose a conditional discharge. Along these lines, the defendant agreed at the time of the plea that he could face a year in custody for not complying with the CS requirement.

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As no objection or motion to withdraw the plea, CPL 220.60(3), was lodged, any argument that the plea was involuntary was unpreserved. See, People v. Williams, 27 NY3d 212, 221-222 (2016). Not properly preserving issues breeds speculation at the appellate level. See, fn 4 (discussing same). The illegal sentence exception to the preservation rule, People v. Samms, 95 NY2d 52, 56 (2000), was inapplicable. If there are other issues outside of the record… you guessed it… the defendant needs to file a CPL 440 motion.

In dissent, Judge Rivera opined dismissal was the proper remedy, as the defendant did all that was asked of him to secure this bargained-for-sentence. No penological purpose is served by merely remitting the matter. Indeed, Mr. Bush had no practical opportunity to object, as he was only informed within minutes of the lower court imposing a harsher term, i.e., a oneyear conditional discharge. At sentencing, the court stated, “I’m glad you did the [CS], and I’m glad the case is over.” The error was not clear from the record and did not constitute sufficient notice. The court must advise defendants of direct consequences of the plea, including the sentence. See generally, People v. Harnett, 167 NY3d 200, 205 (2011). The defendant’s due process rights were violated, as he was unaware at the time of his plea of the additional conditional discharge term to be imposed at sentencing. See generally, Catu, 4 NY3d at 245 (addressing PRS requirement). The integrity of the system is threatened when the government reneges on a plea bargain, which is essentially a contract. Our system relies on what the parties and the court “understand and state” on the record.

April 21, 2022

People v. Carman

38 NY3d 972

This is a 5 to 2 memorandum, affirming the AD. Without deciding whether the right to meaningful and effective assistance of counsel applies in SORA (Correction Law article 6-C) proceedings in general, the majority concluded the defendant failed to establish he was deprived of this right. People v. Benevento, 91 NY2d 708, 712 (1998). Judges Rivera and Wilson dissented for the reasons set out in the AD’s dissent. See, People v. Carman, 194 AD3d 760, 763-767 (2d Dep’t 2021) (Barros, J., dissenting) (describing how assigned counsel failed to even request a downward departure during the SORA proceedings).

April 26, 2022

People v. Easley

38 NY3d 1010

This is a 4 to 3 memorandum, with Judge Rivera authoring the dissent, joined by Judges Wilson and Troutman. The AD is affirmed. The trial court abused its discretion by admitting Forensic Statistical Tool (“FST”) low copy number (“LCN”) DNA evidence without conducting a Frye hearing. See, People v. Foster-Bey, 35 NY3d 959 (2020); People v. Williams, 35 NY3d 24 (2020). FST is a DNA analysis method developed by the NYC Office of Chief Medical Examiner (“OCME”). The People’s proof was overwhelming, however, making the error harmless. People v. Crimmins, 36 NY2d 230, 241242 (1975).

In dissent, Judge Rivera opined the circumstantial evidence purportedly establishing the defendant’s guilt was far from overwhelming. The defendant was convicted of CPW regarding a gun found between boxes on a deli store

shelf during an attack on defendant by several unidentified individuals. But the prosecution carries a heavy burden in establishing constructive possession. Here, no one witnessed the defendant possess the gun. There were, however, three DNA contributors on the trigger of the gun, including the defendant. Still, there was no blood or fingerprint related testimony. Nor did the defendant make any admissions. The store surveillance video merely showed the defendant to be in the physical proximity of the gun, along with numerous other individuals in this chaotic and violent episode.

People v. Dawson

38 NY3d 1055

This is a brief 5 to 2 memorandum, affirming the AD. Judge Wilson authored an extensive dissent, joined by Judge Rivera. While a defendant in custody who unequivocally requests an attorney may only waive that right in the presence of counsel, the majority deemed the issue here a mixed question of law and fact. At bar, there was record support for the lower court’s denial of defendant’s suppression motion.

The dissent, however, saw it differently. As Judge Wilson observed, the 19-yearold defendant was brought to the police station in handcuffs and had his cell phone confiscated. His leg was shackled to a chair. He waited in isolation for two hours before a detective entered the small interrogation room to inform the defendant of why he was there.

A verbatim account from the video-taped interrogation was provided by the dissent, including the Mirandized defendant asking the police for his phone back so he could contact his attorney. As counsel’s number was in his phone, the defendant specifically requested the opportunity

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hose We Have Lost T

The pandemic, and the long hiatus between issues of Atticus which resulted from these trying times, saw the defense community suffer the loss of some of our “best and brightest”. We mourn them all, and the thoughts and prayers of the NYSACDL community are with their families.

Past-President Ben Ostrer, eulogized on page 21 of this issue and honored with a scholarship in his name, was a force to be reckoned with. A pre-eminent scholar and practitioner, Ben pioneered the use of DNA as a defense tool, serving as a Commissioner of the New York State Forensic Science Commission, and lecturing frequently to NYSACDL and other bar associations on the subject. As one of the editors of Atticus, Ben’s loss is acutely felt by the rest of us, and certainly by NYSACDL. His intelligence, humor, and willingness to help anyone anywhere will be sorely missed.

Past-President Ira London, who passed at the age of 90, was a long time criminal defense practitioner, one of the founding members of NYSACDL back in the 80s. Ira was a fixture in the state and federal courts, primarily in Manhattan, and his office was our NYSACDL home base before the move to the Capital District.

David Goldstein, a former Board member of NYSACDL, was one of the most sought-after defense attorneys in Rockland County. Dave was always there for the younger members, and his smile lit up our annual dinner for years.

Jeremiah Flaherty was a well known practitioner in the Hudson Valley, known for his flashy dress and flashier defenses. Born a city boy in the Bronx, he moved north and established a criminal defense practice in Accord, New York, where he remained.

Lawrence Hochheiser passed away in October, 2022 at the age of 80. Larry began his legal career in 1967 as an A.D.A. in Manhattan under the legendary D.A. Frank Hogan, investigating and prosecuting organized crime cases. In 1971 he entered private practice with the well-known Brooklyn

criminal defense firm Evseroff, Newman and Sonenshine. Larry successfully defended a number of high profile figures over the years, including Mickey Featherstone, a member of the “Westies” (sometimes known as the Irish mafia) who was acquitted of murder based on an insanity defense. Several of Larry’s cases were the subjects of books, magazine articles and TV coverage.

Larry was a long time member and supporter of NYSACDL. His son Dan, an accomplished defense lawyer in his own right, carries on Larry’s legacy.

Gerald Shargel was one of the most well-known defense attorneys in the metropolitan area, representing notorious organized crime figures in the federal courts of the Southern and Eastern Districts. For all the posturing and bluster that accompanied his defenses, Gerry was a quiet, humble man whose skill was legendary. Always ready to help the younger and less experienced practitioners, he was a source of information and inspiration to many.

Roland Thau was a long time federal Defender in the Southern District. In the online edition of Atticus, we have published an obituary written by David Patton, the Executive Director and Attorney-in-Charge of the Federal Defenders of New York, where Roland spent virtually his entire career of more than 50 years. Roland was a fighter for all his clients, and respected by prosecutors, judges and defense attorneys alike for his tenacity, his skill, and his humor.

Editors’ Note: We know there are some we’ve missed in this column, and for that we apologize. The NYSACDL community, Board of Directors, and Officers, express our condolences to all those who have suffered losses during these years.

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to utilize the only mechanism he knew of to communicate with the attorney. The exchange confirmed law enforcement’s understanding of the defendant’s comments and requests to constitute a request for counsel. Said the detective: “It sounds like you understand your Miranda rights and you want your attorney.” An officer’s reaction to a request for counsel is relevant. People v. Porter, 9 NY3d 966, 967 (2007) (observing that the officer noted the defendant requested an attorney). The detective did in fact exit in order to retrieve the phone, but then returned less than two minutes later and continued to prod the defendant. He asked, among other things, “do you want your lawyer here or do you want to just figure this out?” The defendant was then Mirandized again and a written apology/confession for the alleged sex crime followed. The officer’s conduct diluted the previous Miranda warnings. See, People v. Dunbar, 24 NY3d 304, 316 (2004) (where law enforcement’s pre-arraignment preamble to Miranda warnings undermined the warnings, indicating that the defendants had the opportunity to “tell [their] story”).

Indeed, the officer gave the defendant the false impression that this serious sex crime investigation could somehow be resolved quickly in the defendant’s favor by him speaking to the police. For sure, there was no scrupulous adherence to the defendant’s unequivocal invocation of counsel. The fact that the defendant wanted to know what charges were impending and how long he would be at the station did not diminish his interest in seeking counsel. The only uncertainty expressed by the defendant was the method to be used in communicating with counsel.

The state and federal constitutional rights to the privilege against self-incrimination,

due process and the right to counsel were at stake in this matter. “The right to counsel in New York is robust and one [the Court] has vigilantly guarded.” It is more expansive than its federal counterpart. People v. Bing, 76 NY2d 331, 338 (1990); People v. Settles, 46 NY2d 154, 161 (1978). As Judge Wilson observed, once the right is invoked, it was legally impossible for a defendant to change his or her mind and speak to the police outside the presence of counsel. See, People v.

Glover, 87 NY2d 838, 839 (1995); People v. Cunningham, 49 NY2d 205, 207 (1980). This singular rule “breathes life” into the constitutional requirement that a waiver of the right to counsel be knowing, intelligent and voluntary. People v. Hobson, 39 NY2d 479, 484 (1976). A request for counsel is equivocal when it is “unambiguously negated” at the same time it is requested. Glover, 87 NY2d at 839. A defendant asking if he or she should speak to a lawyer is insufficient. See, e.g., People v. Hicks, 62 NY2d 969, 970 (1987). However, the Court has found “I might” and “I think I need” a lawyer to be unequivocal requests which trigger the constitutional right to counsel. See, People v. Esposito, 68 NY2d 961, 962 (1986); Porter, 9 NY3d at 967.

Judge Wilson observed the apparent new standard of verbal precision that the Court applies to criminal defendants, including when defendants assert the right to represent themselves pro se: Mr. Dawson unequivocally requested counsel. The detective repeatedly stated that he understood Mr. Dawson to have requested counsel.

Why doesn't the majority? … Today's holding is like several others in which our Court has imposed a high and unrealistic linguistic burden on criminal defendants — where the intent is clear, but some better choice of words can be imagined, often finding ambiguity in deferential language. For example, in People v Silburn, the Court upheld the Appellate Division’s finding that a defendant's statement to the trial court “I would like to know if I could proceed as pro se” as equivocal because the defendant also requested a lawyer be available as an aide (31 NY3d 144, 162 [2018, Wilson, J, dissenting]). In People v Duarte, the Court again interpreted the defendant's statement “I would love to go pro se,” despite abundant clarity, as insufficiently clear and unequivocal (37 NY3d 1218 [2022]. In People v Brown, the Court held the defendant's agreement to waive his right to appeal waived his right to speak at sentencing, despite his clear requests to do so — “Am I going to get a chance to talk?” (37 NY3d 940, 941, 943 [2021, Wilson, J., dissenting]). Despite our eschewing the need for “magic words” in theory, we seem to require them in practice.

The Court's failure construe defendants’ speech in a commonplace, contextualized, or even reasonable manner misapprehends the animating concerns behind our state's expansive guarantees of the privilege against self-incrimination, right to counsel and due process. Our hallmark right to counsel cases show deep recognition of the fear and intimidation inherent in police interrogation and investigation. We have noted that the rights we have recognized in this state not only “preserve

“Far too often, to be charged with a crime is to become something less than human.”

— Jerome F. Buting, Illusion of Justice: Inside Making a Murderer and America's Broken System

the civilized decencies, but protect the individual, often ignorant and uneducated, and always in fear, when faced with the coercive police power of the State” (Hobson, 39 NY2d at 485 [emphasis added])…. [w]hen it is not fear that shapes a defendant's word choice, it is often the custom of using the conditional tense when speaking to those in power : adopting a more deferential tone with a trial court or the police officers in whose control a defendant’s liberty and immediate safety rests may be advantageous.

People v. Dawson, __ NY3d __ , 2022

NY Slip. Op. 02772, 2022 NY Lexis 818, at *18-20, 2022 WL 1216195 (2022) (Wilson, J., dissenting) (emphasis added). As Judge Wilson further opined, “[p]enalizing criminal defendants for fearful or deferential speech that otherwise clearly articulates their desires is detrimental for those individuals, but also damages the integrity of the justice system as a whole.”

Further commentary: As averred above, law enforcement’s actions here violated both state and federal constitutional standards. See, Edwards v. Arizona, 451 U.S. 477, 484-485 (1981) (holding that “[w]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further policeinitiated custodial interrogation even if he has been advised of his rights. We further hold that an accused… having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities

until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.”); Maryland v. Shatzer, 559 U.S. 98, 110 (2010) (expanding the Edwards protection of a suspect who invokes the right to counsel following Miranda warnings, requiring that at least 14 days pass before law enforcement may accept a post-invocation of counsel waiver under Edwards).

ginia, Pennsylvania, California, Northern Ireland and Australia admit this type of evidence as well.

This was a burglary, robbery and ligature strangulation homicide. The victim was strangled with a guitar cord. A number of items were stolen or touched by the perpetrator, including shirt collars, an amplifier cord and the victim’s forearm. The defendant made a number of confessions, was observed in the victim’s company the weekend of the homicide and was seen in possession of the victim’s orange duffel bag after the crime.

People v. Wakefield

38 NY3d 367

The Chief Judge authored this decision. All members of the panel agreed with the result (affirming the Third Department), with Judge Rivera authoring a concurrence joined by Judges Wilson and Troutman. At issue was the admissibility of DNA mixture evidence generated by the TrueAllele Casework System. TrueAllele, created in 1999, is a probabilistic genotyping software for calculating a DNA likelihood ratio. The Supreme Court did not abuse its discretion in admitting, following a Frey hearing, this evidence as generally accepted in the relevant scientific community. Frye v. United States, 293 F. 1013 (DC Cir. 1923); People v. Wesley, 83 NY2d 417, 422 (1994) (recognizing the RFLP methodology of DNA to be generally accepted as reliable in the scientific community). Indeed, the DNA Subcommittee of the NYS Forensic Science Commission (“DNA Subcommittee”) recommended the NYS Police utilize TrueAllele. Vir-

TrueAllele analyzes raw data and calculates a DNA likelihood ratio using fundamental mathematical models and algorithms, as well as artificial intelligence. The People, however, were not in possession of the TrueAllele source code, which was characterized as a trade secret. This was also never disclosed to the defense. The majority believed this disclosure was unnecessary for the trial court to properly conduct the Frye hearing. Moreover, the source code is not a declarant that may be cross-examined under the Crawford jurisprudence.

The concurrence, however, believed the defense should have had the opportunity to confront (pursuant to the Sixth Amendment) the TrueAllele source code, which utilized artificial intelligence in place of human judgment. The calculations in question were nearly impossible to conduct by hand, with no meaningful involvement by the human analyst who merely prepared the initial data. In other words, it comes close to “eliminating all but the most rudimentary of human participation.” There was no opportunity for members of the relevant scientific community to review the source code. Internal validation studies and the “insular” endorsement of the DNA

“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

— Thomas Jefferson

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Subcommittee should not supplant the courts’ obligation under Frye. Indeed, the Confrontation Clause and Crawford were violated as the source code was testimonial. See generally, Crawford v. Washington, 36 US 36, 42 (2004); Bullcoming v. New Mexico, 546 US 647, 657 (2001); Hemphill v. New York, 595 US __ , 142 S.Ct. 681, 692 (2022); People v. John, 27 NY3d 294, 303 (2016). There was no viable challenge to the conclusions based on the TrueAllele algorithm linking the defendant to the murder. But as the evidence of the defendant’s guilt was overwhelming, these constitutional errors were harmless beyond a reasonable doubt. People v. Crimmins, 36 NY2d 230, 237 (1975).

May 19, 2022

People v. McKenzie-Smith

38 NY3d 1048

This is a successful People’s appeal. The AD erred in reversing defendant’s People v. Antommarchi, 80 NY2d 247 (1992) claim. See, People v. Wllkins, 37 NY3d 371, 380 (2021). All members of the panel concur except for Judge Troutman who did not participate.

People v. Rodriguez

38 NY3d 151

This is another successful People’s appeal. The Second Department’s 3 to 2 reversal is unanimously reversed in an opinion authored by Judge Cannataro. The trial court acted within its discretion as a matter of law in admitting into evidence screenshots of explicit text messages in this attempted use of a child in a sexual performance / disseminating indecent material to minors prosecution. The screenshots were a fair and accurate representation of the messages. See, People v. Price, 29 NY3d 472, 477 (2017). There was a legal foundation for the lower

court’s trial ruling. Participants in the relevant events properly authenticated the texted conversations, which were further corroborated by phone records.

May 24, 2022

People v. Mitchell

38 NY3d 408

This is a 5 to 2 opinion, authored by Judge Garcia. Judge Rivera wrote the dissent, joined by Judge Wilson. The Appellate Term is affirmed. The homeless defendant purportedly attempted to elicit fake donations for the homeless. On an early February evening in 2016, he set up a table (with two milk crates) on a sidewalk near Times Square in the heart of Midtown Manhattan. He didn’t approach anyone and no one spoke to him. But this was a busy sidewalk, requiring the Theater District people to walk around him. The defendant entered a guilty plea. The issue was whether Mr. Mitchell’s conduct satisfied the PL § 165.30(1) fraudulent accosting statute.

A person is guilty of this “A” misdemeanor when he or she “accosts a person in a public space with intent to defraud him [or her] of money or other property by means of a trick, swindle or confidence game.” The law, originally enacted in 1952 to address the difficult-to-prove act of street swindling, is centered around what “accosting” means. But “accost” is not defined in the statute. The majority rejected any requirement of the defendant having to physically approach anyone or to act with any aggressiveness or persistence. Many sidewalk scams begin with passive aggressive behavior. The dictionary definitions at the time of the law’s enactment included to “approach,” to “speak to” and to “address.” The defendant needs only to make an affirmative act. Merely “stationing” him or herself in a location is insufficient. Here,

the defendant blocked the sidewalk, requiring pedestrians to walk around him.

As Judge Rivera observed in dissent, the majority’s ruling comes perilously close to criminalizing protected speech, including in the religious and political spheres. Said Judge Rivera:

[d]efendant no more accosted the passersby than would a religious leader who stands on the corner requesting contributions to a place of worship or a local homeless shelter, the Salvation Army Officer who positions a bucket in front of a store and rings a bell asking for donations to help the needy, the peace activist who stands in front of an entrance to Central Park who calls for an end to war and for civil disobedience, or the person who stands in the middle of the block holding a sign asking for food because they are hungry. In each case, the individual makes a general request of anyone who can hear or see them to act on their conscience. The fact that a pedestrian must make a minor adjustment to their preferred street path does not turn the speech into an accosting or mean that they have accosted everyone who chose to avoid them by changing direction. Walking around people is part of daily coexistence in public spheres and we would be hard pressed to find a passerby who would think themselves accosted every time they had to walk around someone talking in the middle of the street or on the corner. People often have to bob and weave, duck and dive, maneuver and negotiate to make their way around others standing, walking, or sitting in their way. There is no unbroken line of passage on a New York City sidewalk, and certainly not one as busy as that found in the Theater

District, or the exact street corner where defendant was observed— 48th and Broadway—where, at the time of defendant’s arrest, large numbers of people were likely stepping on or off the curb shortly before curtains rose on the evening’s performances.

Indeed, the defendant was just standing on a street corner. He spoke to no one and no one spoke to him. The statute must require an affirmative, offensive or aggressive act - - some sort of initiated contact or a directed invitation for such contact with a specific target. The accusatory instrument at bar did not even allege that the defendant interacted with anyone. No one was targeted. Just generally (or passively) calling out to the public to donate should not be deemed sufficient. The defendant was homeless and just trying to survive.

People v. Wideman

38 NY3d 1067

This memorandum is a unanimous affirmance. The reasonable suspicion determination issue regarding the officer’s pat and frisk was a mixed question of law and fact. Here there was record support for the AD’s finding. Moreover, the defendant failed to establish prejudice regarding his Brady claim. See, People v. Garrett, 23 NY3d 878, 892 (2014).

People v. Garcia

38 NY3d 1137

This is a 4 to 2 memorandum, affirming the Appellate Term. Judge Wilson dissented, joined by Judge Rivera. This was a public lewdness prosecution wherein the defendant was alleged to have committed misdemeanor sex crimes on a NYC subway. He was convicted of a “B” misdemeanor following a bench trial

pursuant to the former CPL 340.40. The non-citizen defendant failed to overcome the presumption under People v. Suazo, 32 NY3d 491, 493, 507 (2018) that the crime charged was petty to establish a Sixth Amendment right to a jury trial. The defendant’s assertions were said to be merely conclusory.

In dissent, Judge Wilson, who also dissented in Suazo, observes the defendant explicitly asserted below he was a noncitizen and cited to the Immigration and Nationality Act (8 USC § 1227(a)(2)(A) (ii)), which indicates that conviction of two or more crimes of moral turpitude makes an alien deportable. The majority has created an unnecessarily ambiguous and heightened burden beyond what Suazo held -- leaving future defendants to “wonder” how to assert their Suazo rights. Indeed, defendant Garcia made a greater showing than defendant Suazo did, yet did not benefit from the latter’s ruling. Few defendants will be able to meet this new and more exacting standard, particularly in light of the complexity of immigration law.

Further commentary: As observed by the majority in footnote 1, our state legislature amended CPL 340.40, effective June 1, 2022. The right to a jury trial now extends to all defendants charged with misdemeanor offenses in local courts.

People v. Deverow 38 NY3d 157

This is a unanimous reversal of the defendant’s murder conviction, authored by Judge Singas. Defendant was convicted by a jury in this gang shooting death case in Queens. One eyewitness testified at trial. There were four evidentiary preclusions which deprived Mr. Deverow a meaningful opportunity to present a defense. This constitutional right is

guaranteed by the Due Process Clause of the 14th Amendment, as well as the Compulsory Process and Confrontation Clauses of the 6th Amendment. Chambers v. Mississippi, 410 US 284, 302 (2011); Crane v. Kentucky, 476 US 683, 690 (1986). The defense was precluded from introducing three 911 calls, which should have come in under the present sense impression hearsay exception. See, People v. Brown, 80 NY2d 729, 736 (1993); People v. Cantave, 21 NY3d 374, 382 (2013) (recognizing that out-of-court statement must be made by the person perceiving the event as it’s unfolding and must be corroborated by independent evidence establishing its reliability). Also precluded was a defense witness who may have directly contradicted the sole eyewitness to testify for the prosecution. The evidence presented against the defendant’s justification defense was not overwhelming. A new trial is thus in order.

June 14, 2022

People v. Stroud

38 NY3d 1130

This is a 6 to 0 affirmance of the AD. Judge Troutman did not participate. The lower court’s determination of reasonable suspicion regarding this vehicle stop is a mixed question of law and fact. There was record support for the lower court’s decision.

People v. Huertas

38 NY3d 1129

This is a 6 to 1 affirmance of the AD. The lower court did not abuse its discretion in reserving decision on a Molineux application regarding prior gun-related convictions until after defendant testified. People v. Molineux, 168 NY 264, 294 (1901). Any errors regarding this issue were harmless.

Appellate Report

Continued from previous page

People v. Laboriel

38 NY3d 1109

This is a 5 to 2 memorandum, affirming the Second Department. Judge Rivera authored the dissent, joined by Judge Wilson. The majority quickly rejected the defendant’s argument that his plea was involuntary because the prosecution unilaterally failed to keep its end of the bargain by illegally keeping the defendant in custody beyond the time permitted under law. The Court found the prosecution and the courts were not at fault for this complaint. Said, the majority: “The many dissenting opinions cited by the dissent provide no support for a different result.”

As the dissent observes, the defendant and the prosecution agreed upon a definite prison term of 3 years, to be followed by 5 years of post-release supervision (“PRS”). But the state failed to physically release the defendant when he was purportedly “released” to PRS. Instead, he was detained for 9 extra months in a prison, characterized as a “residential treatment facility.” Based on his conviction, the defendant was subject to the Sexual Assault Reform Act (“SARA”). See, Exec. Law § 259-c(14); Corr. Law § 73(10); PL § 220.00(14) (prohibiting certain sex offenders from residing within 1000 feet of a school). This case presents another example of there being little SARA-compliant housing for indigent sex offenders in the NYC shelter system, a topic the Court of Appeals has taken up a numbers of times in recent years -most often to the defendants’ detriment. See, e.g., Johnson v. Adirondack Corr. Facility, 36 NY3d 187 (2020); McCurdy

v. Westchester Co. Corr. Facility, 36 NY3d 251 (2020). Judge Rivera opines “the entire system of negotiated arrangements cannot survive unless the government adheres to its sentencing promise.”

Matter of Nonhuman Rights Project v. Breheny

2022 NY Slip. Op. 03859

This is a 5 to 2 decision, totaling 109 pages. The majority opinion was authored by the Chief Judge. Two separate dissents, totaling 92 pages, were authored by Judges Wilson and Rivera. The AD

As Judge Wilson points out in dissent, historically, African slaves detained in America, women (who were once the property of their husbands) and children have all been deemed proper habeas corpus litigants. In other words, being considered property under the law and (or) having no legal obligations does not end the analysis. Granting habeas relief to this elephant will not open up the food gates to neighbors filing habeas petitions for the barking dog next door. Here, there was a three-day hearing in Supreme Court, wherein the numerous signs of intelligence and autonomy this elephant (like the chimpanzees in Lavery) possesses was established. Finally, like the Lavery case, counsel for the petitioner does not seek to have this animal released from its present facility into oncoming traffic. Rather, the litigant seeks a transfer from one facility to another. This would be a proper habeas-related remedy.

June 16, 2022

People v. Serrano

2022 NY Slip. Op. 03932

is affirmed. In 2018, Judge Fahey wrote an extensive concurrence to the Court’s denial of leave to appeal from a habeas corpus denial in a now infamous chimpanzee habeas corpus decision. See, Matter of Nonhuman Rights Project v. Lavery, 31 NY3d 1054, 1055-1059 (2018) (Fahey, J, concurring) (thoughtfully recognizing that animals are not “the equivalent of ‘things’ or ‘objects’”). So what, you say? Well, the Lavera case involved two chimpanzees. The Breheny decision is about “Happy”, a 48-year-old female elephant from Thailand who has resided in the Bronx Zoo for most of her life. She is seeking to be transferred from the zoo to a large nature preserve. But the majority concludes only a human may qualify as a “person” under CPLR article 70, which governs habeas petitions.

This is a unanimous affirmance of the AD. The trial court properly denied a request for 3rd degree assault as a lesser included offense charge of 1st degree assault. There was no ineffective assistance of counsel. People v. Benevento, 91 NY2d 708, 712-715 (1998).

People v. Hill

38 NY3d 460

Judge Singas writes for a unanimous court, reversing the Appellate Term. The misdemeanor complaint should be dismissed, as the seventh degree CPCS accusatory instrument failed to refer to Public Health Law § 3306(g), which lists 10 particular synthetic cannabinoid substances as “schedule I controlled substances.” Sufficient notice in charg -

“When the jury came in, it didn't just disappoint me it shook the foundations of my beliefs, it shook the foundations of my beliefs in the justice system, in human beings, in my abilities and judgement and in my sense of reality. It just blew me away emotionally and psychologically.”

— David S. Rudolf

ing a defendant implicates due process and double jeopardy issues. The establishment of reasonable cause under CPL 100.40(4)(b) for committing the alleged crime is necessary. The accusatory instrument here, charging a synthetic cannabinoid synthetic marijuana (K2), is dismissed as facially insufficient and jurisdictionally defective.

People v. Galindo 38 NY3d 199

This is a successful People’s appeal, with Judge Rivera writing for a unanimous court. The Appellate Term is reversed. CPL 30.30(1)(e), added to the so-called speedy trial statute while the defendant’s appeal was pending, was not intended to be retroactively applied. Such an interpretation must only occur when the legislature makes a clear statement in that regard. Accordingly, the defendant should not benefit from the legislative addition of VTL infraction prosecutions as “offenses,” jointly charged with another offense, as protected by the time limits of CPL 30.30(1). The decision granting dismissal of the accusatory instrument should be reversed.

July 21, 2022

People v. Hemphill 2022 NY Slip. Op. 04663

Following some terrific attorney work, Mr. Hemphill’s convictions previously affirmed by the Court of Appeals were reversed by the US Supreme Court. See, Hemphill v. New York, 142 S. Ct. 681 (2022). This was a fatal street shooting in the Bronx related to a gang dispute. Three eyewitnesses identified a third party (Mr. Morris) as the perpetrator. The admission into evidence at trial of Morris’s plea allocution (despite being unavailable to testify) deprived Mr. Hemphill of his Confrontation Clause

rights under the Sixth Amendment. See, Crawford v. Washington, 541 US 36, 51-52 (2004). In addition to the plea allocution, the prosecution presented circumstantial evidence that included:

(1) the defendant’s blue sweater (containing DNA) being viewed by witnesses and then found in his grandmother’s nearby apartment, (2) defendant’s tattoo matching the description given by eyewitnesses, and (3) the defendant’s flight from NY shortly after the crime. Upon remand to the Court of Appeals, the judgment is again affirmed, as the evidence of guilt was over whelming and the constitutional error was harmless beyond a reasonable doubt. People v. Crimmins, 36 NY2d 230, 237 (1975).

October 20, 2022

People v. Baines

2022 NY Slip. Op. 05919

This is a unanimous opinion, authored by Judge Troutman. This sex crime defendant represented himself prior to trial for 21 months. He was not, however, properly warned by the court and thus did not provide a knowing, intelligent and voluntary waiver of his right to counsel during his pre-trial proceedings. Defendants have a constitutional right to either be represented by counsel or to represent themselves. People v. Silburn, 31 NY3d 144, 150 (2018). A trial court must conduct a ‘searching inquiry’ to explore the issue once a defendant unequivocally and timely requests permission to represent him or herself pro se. The litigant must be warned of the singular importance of being represented by counsel and the inherent dangers of proceeding without an attorney. People v. Arroyo, 98 NY2d 101, 103-104 (2002). No set catechism is required. The warnings may be provided in a nonformalistic and flexible manner. Viewing the record as a whole, the trial court here did not meet its obligation by

generally commenting that the defendant was putting himself “in a bad position” and that it was “not a great idea” to represent himself. The First Department was thus modified and the matter remitted to Supreme Court to afford the defendant an opportunity to file and litigate pretrial motions.

(The Court also observed the appointment of standby counsel remains within the trial court’s discretion after it provides warnings on the limits of such representation. Silburn, 31 NY3d at 151. Such warnings were not provided here.)

People v. Murray

2022 NY Slip. Op. 05916

This is a unanimous decision authored by Judge Garcia. Defendant’s robbery / assault trial was coming to a close. Two alternate jurors were discharged following the summations, while the sitting jurors were sent to lunch. No deliberations had begun. One of the jurors was removed for misconduct. The trial court then erroneously substituted the removed juror with a discharged alternate juror. Defense counsel moved for a mistrial and objected to this procedure. CPL 270.35(1) must be strictly complied with. The “discharged juror,” who was by definition relieved of further juror responsibilities, was no longer “available for service.” (Incidentally, had jury deliberations begun, written consent from the defense would have been required.) The First Department was reversed and a new trial ordered.

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

Cutting Edge CLE — Coming Up

Winter/Spring 2023

National Highway Traffic Safety Administration “DWI Detection & SFST Student Course"

Thursday, February 9 – Saturday, February 11 Sonesta White Plains Downtown, White Plains, NY

If you practice DWI defense this course will change the way you practice entirely. This course is a must for anyone defending DWI cases.

For more information visit: bit.ly/NYSACDLSFST23

Cross to Kill 2023: Sex (Crimes) in the City

Thursday, March 30 New York, NY

More information coming soon!

Cannabis in the Catskills II: The Return to the

Mountain

STEVEN EPSTEIN,

CHAIR, CLE COMMITTEE

2023 Trial Skills Academy & Statewide Mock Trial Competition

“Trial Skills Taught Through Teaching, Training and Practice”

A Live Symposium on the Impact of the Marijuana Regulation and Taxation Act on the Practice of Criminal Law

Thursday, April 20 and Friday, April 21 Resorts World Catskills, Monticello, NY

Join us for a two day LIVE CLE Cannabis in the Catskills on April 20 and 21, 2023. This live symposium on the impact of the Marijuana Regulation and Taxation Act on the practice of criminal law will welcome some of the nation’s top experts on cannabis research and legal issues that relate to the new law.

For more information visit: bit.ly/NYSACDLCats2023

Basics of Criminal Law

Friday, June 9

Ithaca, NY

More information coming soon!

Seminar registration available at www.nysacdl.org

Questions? Call the NYSACDL office at 518-443-2000 or email: jlvanort@nysacdl.org.

Join top-rated criminal defense attorneys and improve your trial skills with these indepth programs. Each program consists of two sessions:

Session 1: Lecture from Trial Attorneys on Skill Session 2: Skills-Based Workshop: Apply the skills learned in session one and receive critiques from group leaders. Group leaders will be trial attorneys with extensive experience trying criminal cases.

Jury Selection with Robert Wells and Steven Epstein

Session 1: Monday, February 27

Session 2: Monday, March 6

Evidence & Objections with Adam Shlahet and Steven Epstein

Session 1: Monday, March 27

Session 2: Monday, April 3

Cross Examination with Robert Wells and Steven Epstein

Session 1: Monday, April 24

Session 2: Monday, May 1

Summations with Xavier Donaldson

Session 1: Monday, May 15

Session 2: Monday, May 22

For more information visit: https: bit.ly/NYSACDLTA23

Watch for more Law @ Lunch Webinars Coming Soon!

Join the Committee

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

AMICUS CURIAE COMMITTEE

Chair: Timothy Murphy

Member: Marc Fernich, Alan Lewis, Stephen Preziosi, Donald Rehkopf, Donald Thompson, Claudia Trupp, Richard Willstatter

ANNUAL DINNER COMMITTEE

Co-Chairs: Yung-Mi Lee, Brian Melber

Members: Alice Fontier, Renee Hill, Andy Kossover, Kevin Stadelmaier

BY-LAWS COMMITTEE

Chair: Brian Melber

Members: Yung-Mi Lee, Alan Lewis, Scott Iseman, Timothy Murphy

CONTINUING LEGAL EDUCATION COMMITTEE

Chair: Steven B. Epstein

Members: Michael Baker, Samuel Braverman, Lori Cohen, John Ingrassia, Andy Kossover, Jessica Kulpit, Yung-Mi Lee, Renate Lunn, Peter Mitchell, Jill Paperno, Adam Shlahet, Kevin Stadelmaier, Andre Vitale, John S. Wallenstein, Rob Wells

FEDERAL PRACTICE / WHITE COLLAR CRIME COMMITTEE

Co-Chairs: Samuel Braverman, Scott Iseman

Members: Lance Clarke, Alan Lewis, Donald Thompson, John Wallenstein, Richard Willstatter

FINANCE COMMITTEE

Chair: Alan Lewis

Members: Lori Cohen, Edgar De Leon, Andrew Kossover

INDIGENT DEFENSE COMMITTEE

Chair: Jessica Horani

Members: Michael Baker, Stephanie Batcheller, Alice Fontier, Mariam Hinds, Greg Lubow, Timothy Murphy, Jill Paperno, Kevin Stadelmaier, Claudia Trupp, Andre Vitale

JUDICIAL NOMINATING COMMITTEE

Chair: Alan S. Lewis

Members: Derek Andrews, Michael Baker, Samuel Braverman, Xavier Donaldson, Alice Fontier, Greg Lubow, Nathaniel Marmur, Timothy Murphy, Jill Paperno, Donald Thompson, Claudia Trupp

JUSTICE COURTS COMMITTEE

Chair: Greg Lubow

Members: Laura Fiorenza, John Ingrassia

LAWYERS STRIKE FORCE ASSISTANCE COMMITTEE

Chair: Brian Melber

Members: Samuel Braverman, Jill Paperno, Donald Rehkopf, Richard Willstatter

LEGISLATIVE COMMITTEE

Chair: Kevin Stadelmaier

Members: Derek Andrews, Laura Fiorenza, Alice Fontier, Andrew Kossover, Yung-Mi Lee, Greg Lubow, Amy Marion, Brian Melber, Eli Northrup, Russell Neufeld, Jill Paperno

MEMBERSHIP COMMITTEE

Chair: Derek Andrews

MILITARY/VETERANS AFFAIRS COMMITTEE

Chair: Donald Rehkopf, Jr.

MOTOR VEHICLE ISSUES COMMITTEE

Chairs: Steven Epstein

Members: Greg Lubow, Andrew Kossover

PROSECUTORIAL AND JUDICIAL COMPLAINT COMMITTEE

Chair: Russell Schindler

Members: David J. Cohen, Findayawah Gbollie, Chandra Gomes, Cesar Gonzalez, Jr., Yung-Mi Lee, Noreen McCarthy, Donald G. Rehkopf, Jr., Kevin Richards, Alan Ross, Frederick L. Sosinsky, Alvin Spitzer

Advisory Members: Bennett Gershmann, Ellen Yaroshefsky

PUBLICATIONS COMMITTEE

Co-Chairs: Jessica Horani, John Wallenstein

Members: Cheryl Meyers Buth, Jessica Horani, Timothy Murphy, Russell Schindler

WOMEN IN CRIMINAL DEFENSE

Co-Chairs: Lindsay Lewis, Grainne O'Neill

Members: Renee Hill, Mariam Hinds

YOUNG LAWYERS/STUDENTS COMMITTEE

Co-Chairs: Lori Cohen, Lindsay Lewis

Member: Grainne O’Neill

NYSACDL Membership

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

PRESIDENT:

Yung-Mi Lee, Brooklyn

PRESIDENT-ELECT:

Steven B. Epstein, Garden City

FIRST VICE PRESIDENT:

Jessica A. Horani, Manhattan

VICE PRESIDENTS:

John Ingrassia, Newburgh

Seymour W. James Jr., New York

Alan S. Lewis, Manhattan

Kevin M. Stadelmaier, Buffalo

Claudia Trupp, Manhattan

SECRETARY:

Derek S. Andrews, Newburgh

TREASURER:

Samuel Braverman, Manhattan*

DIRECTORS

Michael Baker, Binghamton

Stephanie Batcheller, Albany

Lance A. Clarke, New York

Drew Dubrin, Rochester

Xavier R. Donaldson, Manhattan

Laura A. Fiorenza, Syracuse

Renee Hill, Bronx

Randall Inniss, Suffern

Danielle Jackson, Manhattan

Jamal Johnson, Manhattan

Jessica Kulpit, Buffalo

Leanne Lapp, Canandaigua

Lindsey Lewis, Manhattan

Greg Lubow, Tannersville

Noreen McCarthy, Keene Valley

Michael McDermott, Albany

Grainne E. O'Neill, Brooklyn

Jill Paperno, Rochester

Donald G. Rehkopf, Jr., Rochester

Donald Thompson, Rochester

Andre A. Vitale, Jersey City, NJ

EXECUTIVE DIRECTOR:

Jennifer Ciulla Van Ort, Clifton Park

LIFE MEMBERS: (As of 12/29/2022)

Daniel Arshack

Wayne C. Bodden

Peter E. Brill

David J. Cohen

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 A. 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 H. Kretzer

Gerald Lefcourt

David L. Lewis

Thomas F. Liotti

Scott Lockwood

Greg D. Lubow

Christopher X. Maher

Zachary Margulis-Ohnuma

Brian Melber

Florian Miedel

Cory Morris

Aaron J. Mysliwiec

Brian J. Neary

Thomas J. O'Hern

Paul D. Petrus

Frank Policelli

Murray Richman

Stacey Richman

Joel B. Rudin

Lisa Schreibersdorf

John S. Wallenstein

Robert G. Wells

Richard D. Willstatter

Todd J.W. Wisner

PRESIDENT’S CLUB: (As of 12/29/22)

George Goltzer

SUSTAINING MEMBERS: (As of 12/29/22)

Frederick Brewington

Paul M. Callahan

Joseph R. DeMatteo

Karen L. Dippold

Michael G. Dowd

Mario F. Gallucci

Phillip Hamilton

James P. Harrington

Daniel J. Henry

Michael D. Horn

Isabelle A. Kirshner

Robert P. Leighton

Mark J. Mahoney

Kenneth Moynihan

Anastasios Sarikas

Scott B. Tulman

Susan J. Walsh

*To be appointed at January 19, 2023 Board of Directors meeting.

INDIGENT DEFENDER OFFICE MEMBERSHIP PROGRAM

Sign up every attorney in an office to receive NYSACDL’s valuable membership benefits for one low price! Plus Four Free Hours of Online CLE For Each - A $100+ Value!

2023 Pricing - Flat Rate:

4 - 9 Criminal Defense Practitioners: $500 (Like Paying No More Than $125/Attorney) 10 - 14 Criminal Defense Practitioners: $1,000 (Like Paying No More Than $100/Attorney) 15 - 29 Criminal Defense Practitioners: $1,425 (Like Paying No More Than $95/Attorney) 30 - 50 Criminal Defense Practitioners: $2,700 (Like Paying No More Than $90/Attorney)

50 - 75 Criminal Defense Practitioners: $4,000 (Like Paying No More Than $80/Attorney)

75+ Criminal Defense Practitioners: $5,250 (Like Paying No More Than $70/Attorney)

Regular Indigent Defender Price: $152

Ready to sign up? Contact Executive Director Jennifer Van Ort at 518/443-2000 or jlvanort@nysacdl.org.

The Largest Criminal Defense Bar Association in New York State

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.

LEGISLATIVE ADVOCACY – NYSACDL’s Legislative Committee, working with

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

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.

2023 Membership Application

To join NYSACDL, mail the form below or join online at www.nysacdl.org. NYSACDL 636 Plank Road, Suite 215 Clifton Park, NY 12065 518/443-2000

jlvanort@nysacdl.org

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LIFE MEMBERSHIP

One-Time Payment: $2,525

Premium Membership Level

LIFE MEMBERSHIP - QUARTERLY 8 Quarterly Payments: $316.25

PRESIDENT'S CLUB MEMBERSHIP

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PUBLIC DEFENDER

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ALLIED PROFESSIONAL MEMBERSHIP

RETIRED ATTORNEY MEMBERSHIP

Premium Membership Level

Annual Dues: $596; 12 Monthly Payments: $49.67/month

Premium Membership Level

Annual Dues: $360; 12 Monthly Payments: $30

Premium Membership Level

Annual Dues: $257; 12 Monthly Payments: $21.42

Premium Members receive special recognition and are included in the Defenders Circle for the duration of their membership or two years, whichever is longer.

Annual Dues: $167; 12 Monthly Payments: $13.92 - Available to anyone whose practice includes more than 50% defense of indigent clients.

Annual Dues: $167; 12 Monthly Payments: $13.92 - Available to anyone practicing less than 5 years or annual criminal defense income is less than $50,000.

Annual Dues: $216; 12 Monthly Payments: $18 - Non-lawyers who assist in the defense of criminal cases.

Annual Dues: $109; 12 Monthly Payments: $9.08

RECENT LAW SCHOOL ALUMNI MEMBERSHIP

Annual Dues: $83; 12 Monthly Payments: $6.92 - Within 1 year from graduation.

LAW STUDENT MEMBERSHIP Annual Dues : $0 - Free Law School:

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I certify that I meet the criteria for the membership category to which I am applying. Attorneys: I certify that I am member of the bar in good standing, I am not subject to suspension or disbarment in any jurisdiction and I am not engaged in any manner of criminal prosecution. Date

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

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

Original painting, © 2004 by the artist Trevor Goring • limited edition prints available,