Defense Table

Continued from previous page 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.

Continued from page 10 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

Continued on page 16