ATTICUS Fall 2024 - NYSACDL

NYSACDL Officers and Directors 2024

PRESIDENT:

Steven Epstein, Garden City

PRESIDENT-ELECT:

Jessica A. Horani, Manhattan

FIRST VICE PRESIDENT:

Kevin M. Stadelmaier, Buffalo

VICE PRESIDENTS:

John Ingrassia, Newburgh

Seymour W. James Jr., Manhattan

Alan S. Lewis, Manhattan

Jill Paperno, Rochester

Claudia Trupp, Cragsmoor

SECRETARY:

Grainne E. O'Neill, Brooklyn

TREASURER: Samuel Braverman, Manhattan*

DIRECTORS

Michael T. Baker, Binghamton

Stephanie Batcheller, Albany (NYSDA Designee)

Jacqueline E. Cistaro, Manhattan

Ilona Coleman, Bronx

Xavier R. Donaldson, Manhattan

Drew Dubrin, Rochester

Laura A. Fiorenza, Syracuse

Randall Inniss, Suffern

Kendea Johnson, Manhattan

Jessica Kulpit, Buffalo

Leanne Lapp, Canandaigua

Lindsey Lewis, Manhattan (NACDL Designee)

Greg Lubow, Tannersville

Nathanial Z. Marmur, Manhattan

Noreen McCarthy, Keene Valley

Michael McDermott, Albany

Hilary Rogers, Plattsburgh

Donald Thompson, Rochester

Andre A. Vitale, Jersey City

Sherry Levin Wallach, White Plains

IMMEDIATE PAST PRESIDENT:

Yung-Mi Lee, Brooklyn

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

Yung-Mi Lee

EXECUTIVE DIRECTOR:

Jennifer Ciulla Van Ort, Clifton Park

*To be appointed at January 19, 2024 Board of Directors meeting.

Ensure NYSACDL’s Con�nued Success with a Dona�on to The Defenders Circle!

The Defenders Circle benets NYSACDL members, seminars, and programs. NYSACDL has experienced tremendous growth over the past several years in membership, seminar a�endance, advocacy efforts and more. Defenders Circle members play a crucial role in ensuring that NY SACDL maintains its success and strength as the leading criminal defense organiza�on in New York State.

Yes, I want to join the Defenders Circle at the level below*!

Method of Payment:  Check made payable to NYSACDL  Please charge my (circle one): Visa MC AMEX Discover Card Number: ______________________________________________ Expira�on Date: _______________ CVV Code: __________

Name on Card: _____________________________________________ Signature: _______________________________________

Billing Address (If Different from Below): _________________________________________________________________________

Donor Informa�on:

Name: ______________________________________________ Firm/Office: ___________________________________________

Address, City, State, Zip: ______________________________________________________________________________________

Phone: ________________________________

Mail To: NYSACDL, 636 Plank Road, Ste 215, Cli�on Park, NY 12065 Thank you! *NYSACDL is a 501(c)6 organiza on. Dona ons $100 and over receive recogni on online and in A cus. Ensure NYSACDL’s Con�nued Success with a Dona�on to The Defenders Circle! The Defenders Circle benets NYSACDL members, seminars, and programs. NYSACDL has experienced tremendous growth

EDITORS

John S. Wallenstein

Jessica A. Horani

Grainne O'Neill

Phone: 518-443-2000

Publication of the New York State Association of Criminal Defense Lawyers

Message from the President

We are living in a historically significant era for practicing criminal defense in New York. Today, our clients benefit from discovery and bail reform. We as an Association have a seat at the table for the appointments of judges to the Court of Appeals. The secrecy of police disciplinary records went out the window with the repeal of Civil Rights Law §50-a and the CLean Slate law allows our clients to have their conviction records sealed, giving them a second chance. Our clients are afforded rights not enjoyed by those who came before them. But rights are only half the equation in the pursuit of justice. Proportional to those rights are our responsibilities.

To quote President John F. Kennedy “our privileges can be no greater than our obligations. The protection of our rights can endure no longer than the performance of our responsibilities. Each can be neglected only at the peril of the other.” We together, must remain vigilant to safeguard what we have achieved. This is our responsibility. This is our obligation.

We are both public defenders and lawyers in private practice. We may work in different counties, represent different types of clients, focus on different types of charges, and hail from different types of offices. But we have all devoted our professional lives to one simple ideal: we defend the accused. We draw strength from this common purpose and are unified by it.

This year we have welcomed many new members of our committees. This has been one of my goals. Opening the doors for pathways to leadership makes us stronger and more diverse. I invite you to help us be even stronger by taking on a role on one of our committees. Nearly all the accomplishments of this Association are the result of the work done by our committees. Regardless of your capacity, I ask that you give some of your time in service to one of our committees. You will make us better by working together with us. I invite you to visit our website where you can find a list of our committees then reach out to our Executive Director, Jennifer Van Ort and we will put you in touch with the committee chair. Remember the protection of our rights can endure no longer than the performance of our responsibilities. I hope you join us in doing that.

Steven B. Epstein, NYSACDL President 2024

From the Editors’ Desk

John S. Wallenstein, Jessica A. Horani, Grainne O'Neill

Fall is a time of new beginnings: back to school, a New Year for many, a return to work after summer vacations and for us at Atticus it is time for a fresh start as well. We return in print to you, our members and readers, after too long a hiatus. We are eager to return to a version of our beloved magazine that we can sustain going forward. We will be looking at ways to modernize our work and create a schedule and publication mode that works for the future. This may mean we publish some of our issues digitally, but we will not fully abandon print, as evidenced by the magazine you hold in your hands now. We look forward to membership feedback as we chart this new course and as always welcome submissions for consideration.

This issue debuts a new column that helps usher in some of that modernity; Editor Grainne O’Neill’s Digital Docket focuses on the use of Artificial Intelligence in transcription services and reviews some of the current programs available for your use to aid your practice and your clients. We are excited to see what advancements the column will cover in the future to keep our membership and readers aware of how tech can and should be used as a practice aid.

Our President, Steve Epstein, helps pull our motion practice out of the rut we sometimes get into with his article on Creative Motion Practice. Both new and seasoned practitioners can benefit from his advice on a fresh approach to motion writing.

Longtime contributor and former Board Member and former Chair of the Amicus Committee Tim Murphy has provided an update on the Court of Appeals decisions that affect our clients with a wrap up that spans October 2023 through April 2024. If you know Tim, please give him a pat on the back or other expression of gratitude for the years he has spent providing this service to our members. He deserves a retroactive, Thank You!

Russell Neufeld rounds out the contributions with his compelling article looking at some of the hidden mechanisms behind court administration which he argues have resulted in keeping people of color off of juries. The question of fundamental fairness in jury trials is always at the forefront of what we do as defense attorneys and we don’t shy away from the tough questions. Russell’s article asks us to look at the potential prejudicial impact of seemingly innocuous practices and take the extra step to challenge and confront them.

See you around the courthouse, Jessica, John & Grainne

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.

The View From the Park

In every issue of Atticus, I use this column to give you, our valuable members, important updates on the administrative workings of NYSACDL. In this issue, I am excited to write about several updates we have coming shortly that will directly benefit you!

Jennifer Van Ort, Executive Director

First, I am currently interviewing candidates for a new Membership Representative & Administrative Support position in our office. The person in this position, while part-time, will now be your go-to person for membership needs. With a dedicated email address only for members - members@nysacdl.org - you will be able to email with any member service needs and receive a timely response (in other words - you will no longer have to wait for me!)

This person will also work with our Membership Committee and me to review our current membership structure and benefits and solicit feedback from you on the same. This will help us identify changes that we can make to better serve you and how we can implement those changes. I am really looking forward to this process and reviving our membership program for the future!

Second, I am currently in the process of revamping our websitewww.nysacdl.org. Shortly, before the end of the year, we will launch our site with a brand new look and feel. Our goal is to make this site easier to navigate and to use it to provide more member resources. (This will be part of the process outlined above.) As you explore the new site, please email me if you see anything that did not transition well into the new format - I hope to be able to catch everything, but you will all serve as a great second pair of eyes!

Lastly, I want to thank you all in advance for helping us in our efforts to reach 2,024 members in 2024! At this writing, we are launching our “Top 10 Reasons to Join” and I know it is going to be successful with your help! If you haven’t had a chance to share the posts on social media, send out emails to your circle, or chat with a fellow defense attorney about why they should join our association, now would be a great time to take a few minutes to do so. All new members who sign up now before the end of the year will get the remainder of 2024 free, with their memberships expiring December 2025; so please pass that info along and help boost our numbers!

As always, thank you for everything you do for your clients, your colleagues and NYSACDL! Wishing you a wonderful holiday season!

As I sit down to write the first Technology Column in Atticus, I am tempted to type into ChatGPT. ‘Can you please write a column on technology for a criminal defense publication about the tools that might be relevant to our work?’ OK I did do that. It did write a column and maybe I could edit whatever it wrote to passably be a column of text, but the article lacked a human je ne sais quoi, and it didn’t capture what I wanted to convey here.

Technology, including Artificial Intelligence Systems or AI, does have a place in our work. We can’t ignore technological advances because we are afraid of them. But, at the same time, ours is a human profession. Our humanity, our clients’ humanity, and ultimately the jurors’ humanity. So, while technology tools can be helpful to our practices, we must be careful about trying to shortcut the real human work we do.

With that said, AI has rapidly changed the transcription landscape, and the tools are now much better, and more appealing to use, than they were two years ago. In this article I want to go over some of the benefits and drawbacks to transcription tools and provide some information about how you can comfortably make use of these advances in technology in your practice.

On a high level, an “AI” is trained on a pool of data, in the case of AI transcription the pool of data is both data sets of people talking and other large sets that are used to predict what word comes after another. The AI uses both the general training in how people talk or write and put words together along with more specific training about what words sound like in its pool of more specific data.

With the advances in computational power and data variety, transcription systems have become much more accurate, even when our clients are not using standard English in telephone calls with loved ones, or when people are talking over each other in body camera videos.

Although the improvements in transcription have been profound in the last two years, any computer-generated transcription will not be perfectly accurate, especially for our purposes. There are a lot of factors, including background noise, slang, and the intimate codes between people who know each other well, that impede the accuracy of transcription. A transcription AI is helpful for getting the gist of a conversation, so you can skim large quantities of calls in a shorter amount of time than it would take for you to listen to those calls. But, you might be missing some nuance in the conversations and it is important to listen to any calls that are seemingly relevant.

I tested a few of the standard transcription services like Rev, Otter, and Trint. Their transcriptions were adequate. I uploaded a single jail call (that wasn’t governed by a protective order, just to be safe). All three of the transcription services mistranslated “Hello, This is a free call from… an inmate at New York City Department of Corrections. This call is subject to recording and monitoring.” They all left a lot to be desired, but you could sort of use them to learn the basic outline of a call. They might be more helpful if you are also going to transcribe

Digital Docket

Grainne O’Neill, NYSACDL Secretary and Board Member

all the calls as a starting point, but the transcriptions are not really sufficient.

JusticeText, “a team of empathetic and kind technologists with a commitment to racial and economic justice”, has designed a tool for defense attorneys to use to transcribe audio and video, like interrogations, jail calls, 911 calls, and body camera videos, and to be able to use AI to ask questions like, ‘when were the rights read by the police’ or ‘what weapons were mentioned and what are the timestamps?’ ‘What crimes were mentioned and when?’.

The transcription was much better, but still not perfect. But in reading the transcript I did understand what was happening in the conversation. (Which like most jail calls was about absolutely nothing.) The AI tools that JusticeText has designed for defense attorneys are helpful and can be used over sets of jail calls to quickly identify calls that should be reviewed. The AI tools are specifically designed for defense lawyers and should improve with use.

JusticeText is priced with a subscription model at 20 hours of audio per month for $100 per month or 50 hours uploaded per month for $175 per month. But, they are willing to modify those fees on a monthly basis to either expand or contract depending on the needs of the user. For example, if you are doing a large racketeering case with thousands of hours of jail calls, you could upload it all in one shot at $175 per each 50 hours in one month. Or contact them for a negotiated rate.

JusticeText will also make a timeline out of the calls and pieces of audio and video data, and its AI is able to highlight relevant portions. It is working to expand services specifically for criminal defense attorneys. Unlike many tools designed for defense attorneys, it is elegant and user friendly.

I spoke to JusticeText about its security. It is not using user data, the files we upload to its server, to train its AI. The company is aware that materials are governed by protective orders and privilege, and it has made a decision to separate user data from its AI models. In the terms of its contract, the data we provide to JusticeText will be wholly separate from the data the AI is trained on.

Many public defender offices are using JusticeText now. They have contracts with over 60 public defender agencies throughout the United States. The private bar is much slower to join. The pricing model as advertised adds costs to overhead, rather than a cost that can be billed to a client or the court. The ability to pause and expand the subscription, might make it more attractive as it could potentially be billed to a case rather than as overhead.

JusticeText offers a free thirty minute introductory zoom to anyone interested in its product. Check it out here: justicetext.com

CPertinent NYS Court of Appeals Criminal-Related Decisions ourt of Appeals

October of 2023 to April of 2024

By Timothy P. Murphy, Esq.

Timothy

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

October 19, 2023

People v. Justice A.

40 NY3d 1009

This memorandum is a unanimous reversal of the Appellate Term. The accusatory instrument is dismissed.

The defendant was charged with thirddegree assault, requiring the People to proceed to trial within 90 days. See, CPL 30.30(1)(b). At issue was the CPL 30.30(4)(f) “without counsel” exclusion. A defendant is not “without counsel” under the statute where the defendant appears with “substitute” counsel. See, People v. Rouse, 12 NY3d 728 (2009). Here, the defendant was assigned an attorney from the Legal Aid Society, who appeared at arraignment but was subsequently replaced by another attorney from that office. The (4)(f) provision was inapplicable and the lower court erred in excluding this time from its speedy trial calculation.

The Court also commented that the defendant appearing in court later in the day after a bench warrant is issued does not trigger the bench warrant exclusion under CPL 30.30(4)(c)(ii).

People v. Cerda

40 NY3d 369

This is a 5 to 2 decision, reversing the Second Department, which had affirmed the judgment. The trial court erred in applying the rape shield law (CPL 60.42) to exclude forensic evidence proffered by the defense to demonstrate a third party committed this sex crime.

Saliva from two unknown males was discovered in a stain in the complainant’s underwear. The DA’s expert testimony was ambiguous as to why the complainant had burst blood vessels in the hymen area of her vagina. The defense sought to present a plausible alternative theory of third-party contact in response to other scientific evidence introduced by the

Continued on next page

Court of Appeals

Continued from previous page

prosecution (including evidence of semen in the complainant’s vaginal area). This forensic evidence would imply that the complainant had prior sexual contact with a third party.

CPL 60.42 presumably precludes evidence of a complainant’s prior sexual conduct in PL article 130 prosecutions, unless a statutory exception applies. This type of evidence tends to harass the complainant and confuse jurors. While typically providing little relevance to the question at hand, it may seriously prejudice the prosecution of a sex crime. However, defendants are guaranteed a meaningful opportunity to present a complete defense. Crane v. Kentucky, 476 US 683, 690 (1986); Chambers v. Mississippi, 410 US 284, 294 (1973). Along these lines, CPL 60.42(5) carves out a broad exception to preclusion, providing a low ‘interest of justice’ discretionary standard for relevance and admissibility. Here, the defendant was deprived of his constitutional right to due process and to present a defense. The forensic evidence in question was relevant to the defense, directly addressing the theory of the prosecution. Alternative (and innocent) explanations to the complainant’s injuries would have been presented. The probative value of this evidence outweighed any potential for confusion or undue prejudice to the prosecution. Great language here from the majority, observing that the constitutional right to present a defense encompasses “the right to put before a jury evidence that might influence the determination of guilt.” See, Taylor v. Illinois, 484 US 400, 408 (1988) (emphasis added). In other words, the evidence in question need not completely exonerate the defendant in order to be deemed admissible. The inconclusiveness of forensic reports goes to the weight, not admissibility of the documents. The majority recognizes these principles despite the defendant at bar having had an opportunity to address this issue in general; the forensic reports were more important. The DA’s summation, touting the idea that no alternative theories existed, didn’t help their cause

here. In sum, the trial court’s ruling was an abuse of discretion as a matter of law under CPL 60.42(5).

In dissent, Judge Cannataro, joined by Judge Garcia (Judge Singas recused herself from this Nassau County based case), opined there was no abuse of discretion by the trial court precluding the defense from using this inconclusive, speculative and confusing evidence. No defense expert testimony was proffered to help explain the report. The dissent further thought (for some reason) it was important that the prosecution had not intended to introduce the report in question (hardly surprising since it didn’t help its case). The dissent opined that the jurors would be confused and led to speculate by the introduction of this evidence. The 60-year-old defendant purportedly committed these sex crimes against this minor whom he was babysitting. She immediately reported the incident to her mother. The rape shield law was meant to exclude this type of evidence. The right to a defense is not absolute. Now the child has to testify again. This, according to the dissent, is just more evidence of how difficult these cases are to prosecute. Future victims will be discouraged from coming forward.

October 24, 2023

People v. Lovett

40 NY3d 1018

This memorandum is an unsuccessful People’s appeal; an affirmance of the County Court order, which affirmed an erroneous Town Court dismissal of an accusatory instrument on CPL 30.30 grounds. The People agreed in Town Court that CPL 30.30 applies to standalone traffic infractions. However, CPL 30.30(1)(e), which became effective more than a year before the defendant was charged here, clarified that the provision applies to traffic infractions charged along with crimes - - but the Galindo decision says stand-alone traffic infractions are not subject to CPL 30.30 regulation. See, People v. Galindo, 38 NY3d 199,

201, 206 (2022). The majority found it too late (now on appeal) for the People to complain about this ostensibly simple issue. It appears the Court was also concerned about bringing back to court a pro se traffic infraction litigant almost two years after his case was disposed. Judge Rivera was the sole dissenter, relying on Galindo as precedent.

People v. Douglas

40 NY3d 385

This is a 6 to 1 opinion, affirming the First Department and approving of a so-called “inventory search” of the defendant’s vehicle conducted by the NYPD. A firearm was recovered. Judge Singas authored the majority opinion and Judge Rivera was the lone dissenter.

The defendant was pulled over following the police observing him commit a number of VTL violations. He was arrested for illegally possessing a gravity knife, found in his pocket at the time of the vehicle stop. The vehicle was transported to the precinct and an inventory search (under the guise of NYPD Patrol Guide section 218-13) was conducted. The firearm was found in the trunk.

The NYPD protocol listed 10 areas of the vehicle which were to be searched, including the glove compartment and trunk. The trunk may, under the protocol, be forced open if only minimal damage will result. A specific invoice or “voucher” form is required to be completed for each item seized. All property must “within reason” be listed in the officer’s activity log. Further, all items removed must be cross-referenced to the invoice number pertaining to those items.

Following a lawful arrest, a vehicle may be impounded and the police may conduct an inventory search. Such a search is designed to properly catalogue the contents at the time of the search. Because no warrant has been issued, an inventory search must be conducted according to a “familiar routine procedure.” People v. Padilla, 21

NY3d 268, 272 (2013); People v. Johnson, 1 NY3d 252, 256 (2003); Colorado v. Bertine, 479 US 367, 375 (1987). The inventory search here, which limited the discretion of the officer in the field, People v. Galak, 80 NY2d 715, 719-721 (1993); Johnson, 1 NY3d at 256, and was administered in good faith, Bertine, 479 US at 374, was legal and complied with established procedures. The defendant’s facial challenge to the constitutionality of the NYPD protocol was thus properly denied. The majority did not address the 11-hour delay between the discovery of the gun and completion of the vouchering process (see, majority decision, FN 1).

In dissent, Judge Rivera focused on the 11-hour delay between the finding of the knife and the completion of the paperwork. The NYPD’s protocol was silent as to the timing issue, and how and where to safeguard a defendant’s property. This means unfettered discretion for the police and a violation of both the state and federal constitutions. See, US Const. Amend, IV; NY Const., art. I, § 12; Johnson v. United States, 333 US 10, 14 (1948). Judge Rivera also observed the purposes of having an inventory search protocol: protecting the property while in police custody, protecting the police against claims of stolen or lost property, and protecting the police and others from dangerous items. Galek, 80 NY2d at 718. A “meaningful inventory list” is the hallmark of an inventory search. Johnson, 1 NY3d at 256. The procedure must be rationally designed to meet these objectives and justify the search in the first place - - and must also limit the officer’s discretion in the field. Galek, 80 NY2d at 719; Bertine, 479 US at 375. The procedure must assure searches are carried out consistently and reasonably, and do not become little more than general rummaging to discover incriminating evidence. Galek, supra. The NYPD’s protocol being silent on timing, as well as how and when to safeguard the seized items, leaves too much discretion for the NYPD.

November 20, 2023

People v. Jordan

40 NY3d 396

This is a unanimous reversal, authored by Judge Garcia, granting a new trial. The testimony of the Office of the Chief Medical Examiner (“OCME”) criminologist relative to the DNA profile (connecting the defendant to a cell phone found at the crime scene) violated the Confrontation Clause of the Sixth Amendment. The error was not harmless and Second Department is reversed.

At issue is the long debated post-Crawford determination of “when the mechanical processing of data becomes testimony.” The identification of the robber here was the primary issue at trial. Defense counsel’s objection to the admission of the OCME office file, the DNA profile and chart, as well as the testimony of a witness who hadn’t conducted the DNA testing himself, should have been sustained.

These were out-of-court testimonial statements made by a presumably available non-testifying witness who was not previously subject to cross-examination. Bullcoming v. New Mexico, 564 US 647, 657 (2011). That there was no suspect developed at the time the DNA profile from the cell phone was secured is immaterial. Only an analyst who was directly involved in the critical final stage of DNA testing, i.e., one who either witnessed, performed or supervised the process, or who used “independent analysis” on the raw data (as opposed to being a conduit for others’ conclusions), may testify. See, People v. John, 27 NY3d 294, 315 (2016); People v. Austin, 30 NY3d 98 (2017); People v. Tsintzelis, 35 NY3d 925 (2020).

General testimony about the lab doesn’t cut it. The witness at bar did not prepare the reports, nor was he present when they were made. He didn’t run the raw data. The record is insufficient to determine what exactly the witness’s roll was in the generation of this DNA profile. The witness did not recount any involvement in

the stages of testing that would require the exercise of judgment and the opportunity to identify error. The People need to make a clear record in this regard. Indeed, appellate courts “must be able to confirm that the testifying analyst participated in the critical portion of the testing process or reviewed the data in a meaningful way that enabled independent verification of the accuracy of the DNA profile.” Nice decision.

People v. Ortega

2023 NY Slip Op. 05956

This is a unanimous affirmance of the AD, with Judge Singas authoring the Court’s opinion. The admission of two autopsy reports into evidence at this double homicide trial violated the Confrontation Clause but constituted harmless error. The First Department is affirmed.

The defendant was a nanny caring for three children in Manhattan. She stabbed two of them to death and pleaded not guilty by reason of insanity under PL § 40.15. The OCME doctor who testified for the People did not perform the autopsies. Still, she testified regarding the number, size, location, type and pattern of wounds to the young victims. These included wounds to the victims’ necks and hands. There was no prior opportunity to cross examine the doctor who actually prepared these reports. There was no evidence of the unavailability of the reports’ author. Autopsy files include reports, diagrams, videos, photos, slides and crime scene evidence. Here, the jury viewed the reports as well as seven diagrams of the decedents’ bodies. The witness at trial did not witness, perform or supervise the analysis in the reports. Nor did the witness use her independent analysis on the primary data.

The admission of these autopsy reports, which were out-of-court testimonial statements admitted for their truth, violated the Confrontation Clause of the Sixth Amendment. See, Crawford v. Washington, 541 U.S. 36, 61, 68 (2004); Continued on next page

Court of Appeals

Continued from previous page

People v. John, 27 NY3d 294, 315 (2016) (addressing DNA testing); People v. Freycinet, 11 NY3d 38, 42 (2008). However, the Court here elected to abandon the Freycinet factors for evaluating purported “indicia of testimonality”: (1) the extent to which the entity conducting the procedure is an arm of law enforcement; (2) whether the contents of the report are a contemporaneous record of objective facts; (3) whether a pro-law-enforcement bias is likely to influence the report; and (4) whether the report’s contents are directly accusatory, in that they explicitly link the defendant to the crime.

Freycinet was followed by Melendez-Diaz v. Massachusetts, 557 U.S. 305, 308-311 (2009), which addressed “certificates of analysis” regarding cocaine that were reasonably believed to be available for use at a later trial. See also, Davis v. Washington, 547 U.S. 813, 830 (2006). In Melendez-Diaz, the surrogate testimony did not meet the constitutional requirement, but rather the analyst was used as a ”mere scrivener” of results. Then came Bullcoming v. New Mexico, 564 U.S. 647, 652, 661-664 (2011), which recognized that forensic evidence was not immune from the possibility of incompetence, as there was wide variability of techniques, methodologies, reliability, types and numbers of potential errors, research, general acceptability and published material. In sum, Freycinet’s framework did not survive Melendez-Diaz and Bullcoming

The autopsy reports at bar were created under circumstances which would lead an objective witness reasonably to believe the statements would be available for use at a later trial. The reports, which the OCME were legally required to create, actually accuse the defendant herself (as ‘the live-in nanny”) of committing the homicides. It was unclear whether the testifying witness based her conclusions on independent analysis or whether she was just providing surrogate testimony and parroting the conclusions of the reports. The Sixth Amendment was violated. But, despite the testimony regarding the six-

year-old’s self-defense potentially impacting the defendant’s insanity defense, the error was harmless in light of the remaining proof of identification.

November 21, 2023

November 21st was easily the Court’s most voluminous release of substantive criminal decisions on a single date in years.

People v. Medina

40 NY3d 1022

This memorandum is a unanimous affirmance of the Third Department.

The legality of the defendant’s consent for law enforcement to search his vehicle following a traffic stop (which triggered subsequent De Bour issues) was a mixed question of law and fact. There was record support for County Court’s conclusion that the officer’s testimony was credible and legally sufficient to demonstrate a founded suspicion prior to seeking consent.

People v. Telfair

2023 NY Slip Op. 05965

This is a 4 to 3 decision, authored by Judge Halligan. Judge Rivera wrote a concurrence. Judge Cannataro wrote for the dissent, joined by Judges Garcia and Singas. The AD is reversed and a new trial is ordered based on a Molineux violation. The defendant’s 2nd Amendment facial constitutional challenge under Bruen (142 S.Ct. 2111) is unpreserved (see People v. Cabrera below, also decided on 11/21/23).

The defendant was pulled over after making a U-turn in Brooklyn without his headlights on. Four guns were recovered following an inventory search. He was ultimately charged with criminal possession of a weapon (“CPW”). The defendant had picked up his truck from a long-term packing facility the day before the arrest. His defense at trial was that someone

else planted the guns, of which he had no knowledge. There was no DNA or fingerprint evidence.

The trial court erroneously admitted evidence of two prior incidents involving the defendant illegally possessing guns: a 2006 uncharged matter and a 2007 misdemeanor conviction. Limiting instructions were given, directing the jury to only consider this evidence regarding the defendant’s state of mind and absence of mistake. The strange 2006 incident involved a flight attendant finding a gun in a pillow (or pillowcase) imprinted with a photo of the defendant’s baby. The gun was owned by defendant’s girlfriend and he purportedly didn’t know it was there. No charges were filed. (Of course the defendant was a professional basketball player at the time: wait a minute, you don’t think that may have impacted the decision not to charge him, do you?) The 2007 incident resulted in charges in Westchester County. There the defendant was stopped for speeding and a handgun was recovered from under the passenger seat. He pleaded to 4th degree CPW.

People v. Molineux, 164 NY 264, 293 (1901) lives on. Evidence of uncharged crimes or prior bad acts is generally inadmissible, as it risks allowing the jury to infer propensity to commit more crimes. The exceptions: where the evidence is admitted to address motive, intent, absence of mistake or accident, common plan or scheme, or identity. People v. Alvino, 71 NY2d 233, 241 (1987). The uncharged or prior acts may not be introduced to establish propensity to commit further crimes. Moreover, the probative value of the proposed evidence must outweigh its potential for prejudice. People v. Ventimiglia, 52 NY2d 350, 359 (1981). The 2006 and 2007 incidents, both about a decade old at the time of trial, involved completely different circumstances and did not increase the probability that the defendant

intended to commit the present crime or that he knew the guns were in the car at the time of the present (2017) arrest. These priors were not evidence of recent, repeated or highly similar acts. Rather, they involved different circumstances, involved different excuses and different guns -- occurring many years before. These prior incidents only went towards propensity and were therefore inadmissible. Ten years, however, is not a bright line rule; the remoteness of the priors must be evaluated on a case-by-case basis. Because the evidence of guilt was not overwhelming, this error was not harmless.

Judge Rivera opined in her concurrence that the Breun issue was preserved. In dissent, Judge Cannataro concluded the Molineux issue had to be evaluated in light of New York’s gun problem. The majority’s opinion destabilizes the Molineux jurisprudence. Moreover, the relevance of evidence is founded on the law of probabilities, often from successive repetitions of an act. Propensity, on the other hand, is focused solely on one’s bad character. (Good luck distinguishing these principles for a jury scared of illegal guns.)

People v. Garcia

2023 NY Slip Op. 05969

a threat towards his girlfriend. There had just been an altercation inside the club. The defendant possessed a gun license from the state of Utah.

While trial courts have broad discretion in restricting the scope of voir dire examination, it is essential that both sides have a “fair opportunity” to question prospective jurors as to “any unexplored matter affecting their qualifications.” See, CPL

“The right to a fair trial is enshrined in the DNA of our justice system.”

serious health issues at the time he sought release from prison in 2020 (via CPL 440.20) pursuant to the Eighth Amendment because of the pandemic. There weren’t a significant number of COVID cases in his facility at the time. The constitutional challenge was rebuffed. Further, the defendant was serving the minimum statutory sentence, so the AD could not have reduced the sentence under CPL 470.20(6). Finally, for the reasons set out in People v. Cabrera (see below, also decided on 11/21/23), the defendant’s facial constitutional challenge under Bruen was unpreserved.

Chief Justice John Roberts, 2023 State of the Judiciary Address

This is a 6 to 1 affirmance of the AD, with Judge Halligan writing for the majority. Judge Rivera was the lone dissenter. The defendant presented arguments involving voir dire restrictions, Eighth Amendment / COVID-19 issues and Second Amendment / Bruen issues. All were rejected.

The defendant was charged with 2nd degree CPW, following an incident in a nightclub parking lot where the defendant brandished a gun in anticipation of

270.15(1)(c); People v. Miller, 28 NY3d 355, 358-359 (2016). During the fifth round of the voir dire examination at bar, the trial court denied the defendant permission to question the perspective jurors about the defendant’s likely self-defense claim and regarding gun ownership. Only general questions about impartiality and following the law were permitted. The court itself asked the panel generically about gun licensing and the jurors’ ability to follow the law (notwithstanding their personal views). Issues regarding guns and self-defense had been permitted in the preceding voir dire rounds. After four rounds of questioning, the original pool of potential jurors was said to be exhausted and were purportedly getting confused, leading to speculation on issues. There was thus no abuse of discretion in the trial court imposing these restrictions on defense counsel.

Regarding the COVID issues, the defendant was 67 years old and suffering from

In dissent, Judge Rivera concluded that both the voir dire and Bruen issues had merit. The judge does a nice overview of the Bruen “historical tradition” test here, which invalidated New York’s “proper cause” requirement. The defendant’s out-of-state gun license would have been sufficient except for the NYS “proper cause” licensing scheme. The defendant’s statutory presumption argument (under PL § 265.03(1)(b)) required reversal. Mere possession should not trigger a presumption to use the weapon unlawfully. The defendant further did not need to seek a license in NYS in order to obtain standing to litigate this issue. As there was an intervening sea change, i.e., the Supreme Court decision in Bruen, the Second Amendment issue is preserved. In other words, a litigant can’t raise an issue he or she was unaware of at the time. The Court had the option of remitting for the creation of a better record to be made. Finally, the trial court improperly curtailed voir dire in violation of CPL 270.20(1)(c). See also, Miller, 28 NY3d at 358; People v. Steward, 17 NY3d 104, 110 (2011). Direct admissions of bias are not frequently made by

Continued on next page

Court of Appeals

Continued from previous page

prospective jurors. Thus, the question, “Can you be fair?” is often meaningless. Gun ownership and self-defense were the core of this trial. Targeted questioning of prospective jurors was essential to ensure the defendant’s right to a fair trial.

People v. David 2023 NY Slip Op. 05970

This is a 6 to 1 affirmance of the AD, with Judge Halligan writing for the majority. Judge Rivera was the lone dissenter. The defendant unsuccessfully challenged law enforcement’s inventory search of his vehicle in Rochester, as well as the constitutionality of New York’s post-Bruen gun regulation. The Bruen issue was unpreserved.

An inventory search may be conducted of an impounded vehicle without a warrant, so long as the search is conducted in compliance with reasonable regulations and procedures conducted in good faith. Colorado v. Bertine, 479 US 367, 374 (1987). “Reasonable” means in part to clearly limit the officers’ conduct (and discretion) in order to assure consistency. Here, the defendant’s vehicle was pulled over after he drove without headlights. The defendant possessed only a learner’s permit. After being pulled over, the vehicle illegally parked (partially) in a bike lane. The officer elected to tow the car. Two handguns and a large amount of cash were ultimately recovered. Rochester Police Department Regulations General Order 511 (E) indicates that when deciding whether to tow a vehicle for safekeeping, the police will consider the crime rate in the area, the proximity of the operator’s residence, what valuables are in the vehicle and whether another person is readily available to operate the car. Though the police did not know the registered owner resided just three blocks away from the scene, the inventory policy was not violated. The defendant, who did not possess a valid driver’s license, could not legally drive the car away and no other licensed

driver was present. The defense pointed out, however, that this was just a minor driving infraction, the car was not stolen, the defendant’s license had not been revoked and the defendant was not under the influence of alcohol. Indeed, he was only illegally parked because he had been pulled over. But because the defendant could not legally drive away, concluded the Court, the decision to tow his vehicle was reasonable.

In addition to a facial challenge, the defendant argued that New York’s gun regulation violated due process by treating presumptively innocent conduct as unlawful, thus unconstitutionally shifting the burden of production to the defendant. His claims, however, do not constitute mode of proceedings errors, see e.g., People v. Patterson, 39 NY2d 288, 295296 (1976), and are thus unpreserved.

In dissent, Judge Rivera believed that, in addition to Bruen, the jury was erroneously instructed, as not being licensed to possess a weapon (under PL § 265.20(a) (3)) was an essential element to be proven for CPW. This particular issue is not dependent on Bruen. For reasons Judge Rivera provided in People v. Garcia (also decided on 11/21/23), the facial Bruen challenge is preserved. It is, however, without merit as NYS does not criminalize the mere (licensed) possession of handguns in public. Moreover, the majority erroneously characterizes the presumption argument as merely shifting the burden of production; rather it is the fundamental burden to prove one’s innocence that has been shifted.

People v. Debellis

2023 NY Slip Op. 05964

This is a 4 to 3 reversal of the First Department, authored by the Chief. Judge Cannataro wrote for the dissent, joined by Judges Singas and Garcia. A new trial is ordered. The defendant was afforded

ineffective assistance of counsel by his attorney failing to seek a jury instruction on the only reasonable defense available to him. Here, counsel sought a temporary lawful possession (“TLP”) instruction, see, People v. Williams, 36 NY3d 156, 160-161 (2020), instead of a voluntary surrender instruction under PL § 265.20(a)(1)(f).

This case arises from a purported NYPD gun buyback program in the Bronx. The defendant was found in possession of a gun located under the front seat during a car stop. Before the weapon was recovered, the defendant lied to the police about having weapons in the car. He testified at trial he was concerned he would not be compensated (as part of the buyback program) if the gun was seized from his vehicle. Charged with CPW, his defense was that he had been arguing with his wife about finances and was on his way to deliver the weapon to law enforcement as part of a gun buyback program in the Bronx. The trial court correctly denied the TLP jury instruction request, as the defendant’s weapon possession was not temporary. Even a few hours may disqualify a defendant from being afforded a TLP instruction. See, e.g., People v. Banks, 76 NY2d 799, 801 (1990). The voluntary surrender defense, on the other hand, is meant to encourage persons with illegal firearms to turn them in, no matter how long the delay in doing so. This impacts public safety by reducing the number of illegal handguns in circulation. At bar, the weapon was possessed for over a year before the defendant sought to surrender it.

The defendant was deprived of meaningful and effective assistance of counsel under the circumstances. There were no reasonable, strategic or legitimate explanations for counsel’s strategy and conduct. See generally, People v. Benevento, 91 NY2d 708, 712 (1998); People v. Caban, 5 NY3d 143, 156 (2005). In determining whether a reasonable view of the evidence

supports a requested jury instruction, it must be viewed in a light most favorable to the defense. Credibility questions regarding the defendant’s trial testimony are fact-questions for the jury and would not have precluded the court from giving the voluntary surrender instruction. Because the instruction was not given, the jury was deprived of the opportunity to consider the defendant’s only legitimate defense. After the trial court rejected defendant’s meritless jury instruction request, counsel unsuccessfully argued for jury nullification in summation. In sum, the defendant was deprived of a fair trial.

The dissent believed there was no reasonable view of the evidence to support a voluntary surrender instruction, as the defendant’s loaded gun was in his possession for over a year and was hidden under a car seat. Further, the defendant denied having it when asked by the police. Ammunition and a holster were also found in the car. On the date in question, the gun was transported approximately 50 miles -- from Putnam County, where the defendant then lived, to the Bronx, where he formally resided. In fact, the precinct the defendant was driving towards had no payback program in effect at the time. In sum, the majority’s view supports a dangerous public policy regarding guns. Finally, the dissent lists all of the things it believed counsel did not perform ineffectively in defending his client (i.e., cross-examination of witnesses and summation). Indeed, the defendant was “uncooperative” by taking the stand in his own defense.

More commentary: Just need to file this one away: The dissent seems to hint that defense counsel pursued a reasonable strategy by pursuing a jury nullification defense in summation. This is understandably a very touchy issue for appellate courts to grapple with.

People v. Cuencas

2023 NY Slip Op. 05974

This is a 4 to 3 reversal of the Second

Department, authored by the Chief. Judge Cannataro wrote for the dissent, joined by Judges Singas and Garcia. The purported consent to enter the homicide defendant’s Queens residence, following an exchange with a third party, was invalid.

The police asked the person who answered the door (at 5:30 a.m.): “How ya doing, sir? Mind if we come in and talk to you?” The person at the door stood aside to allow the police to enter. However, no response was given by the third party (who was previously unknown to the police) and law enforcement did not identify who they were speaking to, nor where he resided. There was a small vestibule at the entrance of this multifamily apartment, leading to two separate apartments -- with one of them (leading upstairs) belonging to the defendant. The door to the defendant’s apartment was open. The defendant was arrested in his living room and transported to the station where he confessed. A search warrant was executed the next day, wherein incriminating evidence was secured.

Entering a residence without a warrant is presumptively unreasonable. People v. Knapp, 52 NY2d 689, 694 (1981); Payton v. New York, 445 US 573, 587590 (1980). The consent here did not comply with either the state or federal constitutions. See, NY Const., art. I, § 12; US Const., amend. IV. The purported apparent authority of the third party to grant the police consent to enter (which is dependent on an objective view of the circumstances known to the police) only applied to the vestibule, not the defendant’s apartment. See, Coolidge v. New Hampshire, 403 US 443 (1971). Common authority of a third party to grant consent requires some communication or conduct to support such a claim and may not be implied by one’s mere interest in the property in question. See, e.g., People v. Adams, 53 NY2d 1, 6, 9-10 (1981) (where the third-party granting consent possessed a key to the premises).

The dissent observes the issue of consent to enter was a mixed question of law and

fact. As there was record support for the lower court’s conclusions, the Court was without authority to review this issue.

More commentary: This is one of five cases (Cuencas, Telfair, Rodriguez, Brown and Debellis) decided on November 21, 2023 where Judge Troutman sided with the defense in a 4 to 3 criminal decision win. Before this date, the odds of her Honor siding with the defense in a split criminal decision was only about a third of the time. Something to keep an eye on.

People v. Rodriguez

2023 NY Slip Op. 05972

This is a 4 to 3 decision, with Judge Troutman authoring the majority opinion. Judge Singas wrote for the dissent, joined by Judges Garcia and Cannataro. The question is whether a cyclist has the same Fourth Amendment rights as the operator of a motor vehicle in terms of being pulled over and seized by the police. The answer is yes. Suppression of the loaded firearm seized (which led to a 2nd degree CPW plea) is granted and the indictment is dismissed. The Second Department is reversed.

The defendant was stopped by the police on a December evening in Queens as he was riding his bicycle on a two-way road, wearing sweatpants, a puffy “snorkel” jacket and a hat. The road did not have a marked center-lane divider or a bike lane. Cars could legally park on either side of the road. Though no VTL violations were charged, the officers described the defendant as riding in a “somewhat reckless fashion” in the middle of the road. His right hand was on the handlebars while his left one was holding something, as his hand covered his pants. The defendant was “favoring his waistband.” Therein was a “bulky object.” The police ordered the defendant to stop twice before he complied. The defendant acknowledged having a gun in his waistband.

Diversion by law enforcement of a vehicle is a seizure. People v. Spencer, 84 NY2d 749, 752 (1995). Bicycle stops implicate

Continued on next page

Court of Appeals

Continued from previous page

the right to be left alone, analogous to a motor vehicle stop. Thus for both cars and bicycles, the police need either reasonable suspicion of a crime or probable cause of a VTL violation in order to conduct a stop. People v. Hinshaw, 35 NY3d 427, 430 (2020). In contrast to how pedestrians are treated, this is consistent with the VTL subjecting bicycles to the same rules of the road as automobiles. They effectively have the same rights and duties.

See, VTL § 1231; see also, VTL § 375(1)(a) (car horn requirement); § 1236(6) (bicycle bell); § 1229-c (car seatbelt); § 1238(5) (bicycle helmet for those under 14 years of age).

procedure” position in part by noting the purportedly bad post-Bruen gun policy the Court is effectively pursuing.

People v. Pastrana

2023 NY Slip Op. 05966

This is a 4 to 3 decision, affirming the AD. Judge Troutman authored the majority decision. Both Judges Rivera and

“The right to counsel is a fundamental right essential to a fair trial.”

Though the dissent observes that a more robust display of authority, and thus a greater intrusion, is required to stop a car, as opposed to a bicycle, all police commands are unsettling, frightening and destabilizing. Moreover, a bicyclist is more physically vulnerable and subject to physical injury than a car passenger. A bicyclist will likely not feel free to simply ride away upon being approached by a police officer.

In every relevant, legally significant way, bicycles are like cars for constitutional purposes during a police encounter. Here, there was insufficient evidence of reasonable suspicion of a crime or probable cause of a VTL violation.

The dissent concludes that the case-bycase De Bour standard for approaching individuals should control. The majority’s decision could lead to per se rules for joggers and other pedestrians. Moreover, more force is needed to stop a motor vehicle than for a bicycle, because of its size and potential speed. Following the expansion of Second Amendment rights in Bruen, the majority’s opinion is simply bad policy.

More commentary: In several cases decided on November 21st, including Cuencas, Judge Cannataro articulates his “criminal

Gideon v. Wainwright, 372 U.S.

335 (1963)

Halligan (joined by the Chief) authored dissents. The defendant’s vehicle was searched following a roadblock stop. The officer smelled (and observed in plain view) marijuana and obtained the defendant’s consent to search. A large quantity of marijuana and a loaded firearm were discovered inside the glove compartment, from where a strong odor of marijuana was emanating.

The vehicle checkpoint in question was set up for the purpose of public safety. Every third driver was stopped. Each driver was asked to produce their license, and proof of insurance and registration. Inspections, equipment and seatbelts were also checked. If evidence of a crime, i.e., a DWI, arose, the officer would take appropriate action. The roadblock was maintained in accordance with a uniform procedure, leaving the police little discretion. Fair warning was afforded to motorists and the checkpoint stops were conducted with precautions to assure their safety. The purpose of the checkpoint was highway safety, not general crime control. Indianapolis v. Edmond, 531 US 32, 44 (2000); People v. Jackson, 99 NY2d2d 125, 131-132 (2002).

According to the majority, the defendant’s claim that the checkpoint being conducted on the day of the National Puerto Rican Day Parade was discriminatory was unsupported by the record and went towards law enforcement’s credibility, a matter for the lower court to evaluate. It was just as reasonable to infer that the police chose the particular date and location because of the large volume of traffic expected. While there was no written documentation authorizing the roadblock and the supervising officer did not testify, the record was still sufficient.

Moreover, the Marihuana Regulation and Taxation Act (“MRTA”), which became effective March 31, 2021, is not to be applied retroactively. The law took effect some six years after this vehicle stop. The law, codified in PL § 222.05(3), prohibits the police from utilizing the purported odor of cannabis as a basis for a “finding or determination of reasonable cause to believe a crime has been committed.” In other words, for events occurring on or after March 31, 2021, the odor of marijuana in legally authorized amounts may no longer form the basis of a police search. See also, CPL 440.46-a (addressing prior marijuana-related convictions). But the legislature did not intend this law to be applied retroactively. Further, an appeal to the Appellate Division (an “intermediate appellate court”) does not constitute a “criminal proceeding” under PL § 222.05(3). See also, CPL 1.20(18), (19) and (22).

And finally, the defendant’s Second Amendment Bruen issue (142 S. Ct. 2111) was unpreserved. See, People v. Cabrera (also decided on 11/21/23). The First Department is affirmed.

In dissent, Judge Rivera concluded the Bruen issue was both meritless and unpreserved. The matter should have been

remanded to develop the record on the defendant’s as-applied constitutional challenge. In Judge Halligan’s separate dissent, both she and the Chief believed the record was insufficient to confirm the validity of the roadblock stop. While the goal of the checkpoint was vehicular safety, a permissible primary programmatic purpose, the record does not establish that the selection of the particular date and location would be effective in serving public safety. A balancing test to determine the reasonableness of a suspicionless stop was in order. A checkpoint plan must assure the officers in the field are not afforded unfettered discretion in order to reduce the risk of arbitrary intrusions. There was no testimony as to how the checkpoint was authorized. This was not, as the majority opines, a simple issue of credibility. The officers in the field did not choose the location for the stop. A written administrative directive and the testimony regarding the approval of a supervisor (i.e., the brains of the operation) would have addressed these concerns.

People v. Brown

2023 NY Slip Op. 05973

This is a 4 to 3 decision, authored by Judge Rivera. Judge Cannataro wrote for the dissent. The AD is reversed, as the requirement that the defendant register (as a level 2 offender) under SORA violated due process.

This case addresses the propriety of applying SORA to a defendant who stole money at gunpoint from an adult whose 10-year-old child was present. The defendant challenges the premise of People v. Knox, 12 NY2d 60 (2009), and its companion cases, where the Court permitted the SORA registration for defendants convicted of non-sex crimes. The Court reasoned that the legislature had a rational basis for concluding that children under those circumstances are still vulnerable to being attacked sexually, notwithstanding the non-sexual motives of

the perpetrator. Mr. Knox, for instance, was a homeless drug abuser with psychiatric problems. Hurting children is a potential way of leveraging the true target of the crime to comply. Indeed, unlawful imprisonment of a child (under 17 years) by a non-parent is a SORA-eligible crime. Corr. Law § 168-a(1) & (2)(a)(i).

But defendants have a substantive due process right not to be erroneously labeled a sex offender. Indeed, a sex offender is impeded in securing employment, housing and relationships. He or she is often subjected to humiliation, ostracism, and vigilante-motivated physical violence. Here, the legislative purpose of SORA was not furthered. The robbery in question included no sexual conduct or sexual motivation. The Court accepted the defendant’s asapplied constitutional challenge, claiming that requiring SORA registration for his non-sex crime was not rationally related to protecting the public from actual sex offenders. His crime only included detaining the child for a short period of time. No sex crime occurred, nor was there a risk of a sexual crime taking place. There was no motive for such a crime, nor was the child ever the target of the crime. Moreover, the defendant had not committed any sex offenses in the past.

In addition to the life-changing stigma thrust upon the defendant in question, the public is misled where an individual is wrongly listed as a sex offender. Only two members of the Court, Judge Rivera and the Chief, would officially overrule Knox as the error in question also facially violates the constitution. Indeed, SORA has expanded in scope (in part, because of technology) and severity since Knox was decided. Filling the SORA registry with individuals who don’t actually pose of danger of committing sex crimes undermines the usefulness of having a registry at all.

The dissent is tolerant of a small percentage of the SORA population being mislabeled (those who are technically “unmerited” for SORA). Defendant’s

was a rare “outlier” case. A “marginally overinclusive” application of the law is acceptable. Because of the “hard and fast rule” in Knox, stare decisis precludes the majority’s conclusion. The issue is also unpreserved. Statutes are presumed to be constitutional. The defense has not met its heavy burden in establishing that the legislature acted irrationally. Though SORA courts are required to make individual assessments, it is often too burdensome to accurately distinguish non-sex offenders from true sex offenders. The prerogative of the legislature, where it has a rational basis for its decision, controls here. Judicial restraint compels this deference. Finally, the majority and the dissent disagree about the state of the SORArelated jurisprudence in sister state courts and the federal bench.

People v. Rivera

2023 NY Slip Op. 05967

This is a unanimous memorandum in its judgment, with just Judge Rivera filing a concurrence. It was not an abuse of discretion for the sentencing court to deny the 17-year-old weapon possession defendant’s YO application under CPL 720.10(1) and (2). The AD is affirmed. The Second Amendment / Bruen issue was unpreserved, consistent with the Court’s Cabrera decision (also decided on 11/21/23). While the sentencing court could have been more artful in its statements, the defendant’s contention that the lower court failed to determine whether mitigation circumstances existed under CPL 720.10(3) during his resentencing was rejected.

In concurrence, Judge Rivera concluded the Bruen issue was preserved. However, since the defendant was under 18 years old, he did not possess Second Amendment rights, as minors (who are immature and may be physically vulnerable) have limited constitutional rights. It’s thus not surprising they are prohibited from voting, serving on a jury and holding certain types of employment. Because

Continued on next page

Court of Appeals

Continued from previous page

children lack the maturity, experience and capacity for judgment to make difficult decisions, both state and federal law require adult consent or a court order for minors to engage in certain adult activity. In sum, the 17-year-old defendant had no legal right to possess the unlicensed guns in question.

People v. Cabrera

2023 NY Slip Op. 05968

This is a 5 to 2 opinion, with Judge Halligan writing for the majority. Judge Rivera authors the dissent, joined by the Chief. The AD is reversed and a new trial is ordered based on a Miranda violation. The defendant’s Bruen (142 S.Ct. 2111) issue, that New York’s PL § 265 “proper cause” standard for the issuance of a gun carry license violates the 2nd and 14th Amendments, was unpreserved.

The defendant was pulled over in South Carolina for speeding. He possessed guns that he was licensed to carry in Florida and informed law enforcement that he was headed to a specific address in the Bronx. The defendant was warned it was illegal to possess the guns in NYS. The NYPD was informed of the defendant’s plans. The defendant was subsequently met by law enforcement in the Bronx. There he was handcuffed and questioned about whether he had guns in his car. He affirmed that he did but did not have a NYS firearm license. He was then transported to the station, where he was Mirandized and interrogated. The defendant signed a consent to search form regarding his car. Asked orally if the car could be searched, the defendant nodded affirmatively. He then immediately invoked his right to counsel. The questioning ceased. Officers recovered three handguns, a rifle, and ammunition from his trunk. The defendant pleaded guilty to 2nd degree CPW.

The facial challenge to PL § 265.03(3) under Bruen was unpreserved. Errors need to be corrected at the earliest opportunity after being fully litigated in the court of first instance. CPL 470.05(2). This is especially true for constitutional

challenges where appellate courts are asked to take the drastic step of invalidating legislation. Mode of proceedings errors, which address the essential validity of the proceedings and the organization of the court, are an exception. A mere change in the law ushered in by the Supreme Court is not enough to trigger the mode of proceedings exception to the preservation rule. To the extent that a futility exception exists where the law has changed since the proceedings ended below, i.e., People v. Patterson, 39 NY2d 288, 295-296 (1976) (addressing Mullaney and the burden of persuasion regarding an EED defense); People v. Baker, 23 NY2d 307 (1968) (addressing Bruton and the Confrontation Clause), that exception does not apply here. In short, citing to past examples of when the Court failed to accept a futility argument (even after Mapp v. Ohio was decided!), the Court significantly walks back the intervening Supreme Court case law exception to the preservation rule. Though Bruen affected a dramatic change in Second Amendment and gun regulation law, there is a “high bar” for excusing preservation based on an intervening high court decision. After some hairsplitting about the Supreme Court’s 2008 Heller and 2010 McDonald decisions, the Court arrived at this not being a sufficient case for applying the exception. In sum, the Court will await a future case with a fully developed record (with likely amici briefs) before addressing Bruen on the merits.

The handcuffing of the defendant outside his mother’s Bronx residence constituted custody for Miranda purposes. His incriminating statements regarding the guns in the car and his not having a NYS gun license are therefore suppressed. A defendant is in custody for Miranda purposes where a person innocent of any wrongdoing would believe he or she was not free to leave and where there has been a forcible seizure curtailing one’s freedom of action to the degree associated with a formal arrest. Miranda v. Arizona, 384 US 436, 444, 457 (1966); People v. Paulman, 5

NY3d 122, 129 (2005); People v. Morales, 65 NY2d 997, 998 (1998). Here, the defendant was cuffed prior to interrogation with no limits placed on the duration of the defendant’s detainment. His movements were restricted to a degree associated with a formal arrest. No reasonable innocent person would have felt free to leave. No public safety exception was raised by the People.

This is a fact-sensitive issue and the Court declined to adopt a per se handcuff rule for Miranda custody issues. However, observed the Court, “[t]here may be very few circumstances where a handcuffed person is not in custody for purposes of Miranda given the obvious physical constraint and association with formal arrest.” But while ‘[h]andcuffs are generally recognized as a hallmark of a formal arrest,” their impact must be assessed based on the circumstances. See also, United States v. Newton, 369 F3d 659, 675, 677 (2d Cir. 2004). At bar, the plea must be vacated.

The majority found the oral and written consent to search the vehicle to be voluntary. Here, despite the police describing the consent form as a “formalit[y]” that needed to be addressed before defendant’s mother could have her car returned: (1) the handcuffs had been removed when the defendant was read Miranda, (2) the defendant was calm and cooperative, and (3) he sought counsel right after consenting. Moreover, the Miranda violation did not taint the voluntariness of the consent, as this was not a single continuous chain of events. Rather, there was a sufficiently, definite pronounced break in the interrogation to dissipate the Miranda violation taint. People v. Chapple, 38 NY2d 112, 115 (1975); Paulman, 5 NY3d at 130-131. At bar, there was a 90-minute delay between the Miranda violation outside the residence and the consent at the station, which were obviously different locations. The removal of the cuffs was also an important factor.

In dissent, Judge Rivera believed there should be a per se handcuff custody

rule for Miranda purposes. The dissent describes the history of handcuffing individuals going back at least to the time of slavery. “Handcuffs are restraints, full stop.” They are commonly used to physically restrain a person during an arrest. Their singular purpose is to restrain and the individual wearing them knows this. There is no situation where a handcuffed person is not restrained. A case-by case approach is wrong. A per se rule is easy to comply with for law enforcement.

Also, the defendant’s consent, which was obtained through misstatements, was involuntary under the circumstances. In addition to the factors addressed above, Judge Rivera also observes there were multiple armed officers present, it was late at night and the defendant had been driving for hours. Further, the defendant could not have known his previous incriminating statements would be suppressed. Thus, there was insufficient evidence remaining to convict and the indictment should be dismissed based on both the Miranda and consent violations -- as opposed to merely ordering a new trial.

People v. Espinosa

2023 NY Slip Op. 05971

This is a 6 to 1 memorandum, with Judge Rivera dissenting. The burglary defendant’s argument that he was deprived of the effective assistance of counsel because of his attorney’s failure to object to the admission into evidence of a DNA report is rejected. At issue was DNA recovered on a screwdriver found in the outdoor patio of the victim’s residence. Even if this Confrontation Clause / Crawford issue had merit, this singular error was not so clear cut and dispositive that no reasonable counsel would have failed to assert this argument. People v. Rodriguez, 31 NY3d 1067, 1068 (2018), quoting People v. McGee, 20 NY3d 513, 518 (2013). The AD is affirmed.

In dissent, Judge Rivera observed that the DNA report was indeed testimonial. Melendez-Diaz v. Massachusetts, 557 US 305, 309-317 (2009); Bullcoming v. New

Mexico, 564 US 647, 655-663 (2011). Accordingly, the testifying DNA report witness must have performed, witnessed or supervised the testing, or independently analyzed the raw data. People v. John, 27 NY3d 294, 303-315 (2016) (though decided after defendant Espinosa was convicted). The People’s case relied entirely on the defendant’s DNA being found on the screwdriver. As defense counsel cross-examined the forensic witness on his lack of involvement in the testing process, a point counsel revisited in summation, there could be no reasonable, plausible or legitimate explanation for counsel not objecting to the admission of the report. See generally, People v. Benevento, 91 NY2d 708, 712 (1998); People v. Caban, 5 NY3d 143, 156 (2005); McGee, 20 NY3d at 518; People v. Sposito, 30 NY3d 1110, 1111 (2018). Though it was the case here, to qualify as ineffective assistance, the law need not be “definitively settled” regarding the omitted claim. There need only be “clear appellate authority.” People v. Saenger, 39 NY3d 433, 442 (2023). Here there was. Finally, People v. Brown, 13 NY3d 332, 340 (2009), relied upon by the prosecution, which held that a DNA report was not testimonial because the profile was developed before the defendant became a suspect, was superseded by the Bullcoming decision two years later.

December

14, 2023

People v. Bay

2023 NY Slip Op. 06407

Here the Court unanimously reversed a lower court’s denial of a 30.30 motion to dismiss involving discovery violations and an invalid CPL 245.50 Certificate of Compliance (“CoC”). This is the first time the Court confronted the seminal 2020 discovery legislation that replaced Article 240 with 245 and changed New York criminal law. Judge Halligan authored the decision.

The new law imposed automatic CPL 245.20(1) disclosure requirements (for

21 categories of materials) and compliance mechanisms, linking for the firsttime discovery and 30.30 readiness. See, CPL 245.50(3); 30.30(5). The People have 20 days to comply (by filing a CoC) for in-custody defendants and 35 days for defendants out of custody. The filing of a CoC requires prosecutors to have exercised due diligence and make reasonable inquiries to ascertain the existence of discovery material. There is a CPL 245.60 continuing duty to disclose, requiring the filing of a supplemental CoC if needed. But a supplemental CoC does not absolve an initially-filed illusory CoC. CPL 245.80 sanctions and remedies, short of dismissal, are appropriate where the DA acts in good faith and reasonably under the circumstances. Still the DA cannot correct an initial illusory CoC with a supplemental one.

Under a 2022 amendment to the statute, as long as the initial CoC is appropriate, dismissal should be ordered only where appropriate and proportionate to the prejudice caused. Trial courts must make inquiries on the record in order to analyze the DA’s readiness, to ensure inquiries from defense counsel are meaningfully addressed and make sure that the People’s efforts are recorded. Moreover, the defendant has an obligation to notify the People of a deficient CoC, all the more motivation for courts to make a proper record. Further, “[n] othing prevents the People from detailing their efforts to exercise due diligence within the [CoC] itself.” Indeed, it is the People’s burden to establish due diligence in response to a motion to dismiss under this statutory scheme. Prejudice is not required for a successful motion to dismiss under CPL 245.50(3) and 30.30(5). A good faith compliance with the CPL 245 disclosure mandates is a prerequisite for being 30.30 ready for trial. The consequence is dismissal.

The defendant at bar was charged with second-degree harassment in city court. The People turned over key pieces of required discovery under CPL 245.20

Continued on next page

Court of Appeals

Continued from previous page

(including the 911 call, the domestic incident report and a police report) weeks after filing a CoC. The defense had made numerous requests on the record for particular discovery to be turned over. The prosecution, which made vague assurances of having checked for requested discovery items, was therefore not actually ready for trial under CPL 30.30. The CoC statement of readiness was illusory. Because the People failed to show they exercised due diligence and made reasonable efforts to identify mandatory discovery prior to filing the CoC, the CoC was improper and the prosecution’s declaration of trial readiness was therefore illusory. The trial court’s sanction of precluding the admission of the 911 tape under CPL 245.80 was inadequate. The intermediate appellate court’s affirmance based in part on the purported lack of prejudice to the defense was erroneous.

Analyzing the reasonableness of the DA’s efforts is conducted on a case-by-case basis. The statute does not require a “perfect prosecutor.” However, good faith is not a substitute for due diligence. CPL 245.20(2); 245.50(1), (3). Factors to consider in evaluating due diligence include the efforts made to comply with the statute, the volume of the discovery, the complexity of the case, how obvious the missing material would be to a prosecutor exercising due diligence, the prosecution’s explanation for the discovery lapse and its response when apprised of the missing discovery. Due diligence is a mixed question of law and fact, requiring only the existence of some record support to affirm the lower court’s decision.

It’s important to note that prosecutors may seek more time to comply, seek an individualized finding of special circumstances or attempt to exclude periods of delay based on exceptional circumstances under CPL 30.30(4)(g). At bar, however, there were significant items not timely turned over which were easily noticed by the defense. The DA had two opportunities to establish due diligence but failed to do so.

Concluded the Court:

Because the People did not establish that they exercised due diligence prior to filing the initial COC, the trial court should have determined that the COC was improper and accordingly stricken the statement of readiness as illusory. In the absence of a valid readiness statement tolling the speedy trial clock, the People do not dispute that they had exceeded the applicable 30-day period under CPL 30.30 (1) when Bay moved for dismissal. Thus, the defendant’s motion should have been granted. Accordingly, the County Court order should be reversed, defendant’s CPL 30.30 motion granted, and the accusatory instrument dismissed.

People v. Purdue

2023 NY Slip Op. 06404

“Mrs. Victim, do you see the man who shot you in court today?” “Well, perhaps it’s the guy at the defense table sitting next to the attorney.”

This is a 6 to 1 decision, affirming the AD. Judge Singas authored the majority opinion. Judge Rivera wrote a lone dissent. At issue was the lack of formal notice for a first-time in-court identification. In other words, as there were no pre-trial law enforcement ID procedures conducted (through a photo-array, show up or lineup), no CPL 710.30 notice was required.

The defendant was accused of shooting the victim at a house party. The victim had an opportunity to view a dark-skinned six-foot Black male with a mustache and goatee, wearing gray jeans, white sneakers and a white cap. Law enforcement did not conduct a pre-trial identification procedure. The defense unsuccessfully moved to preclude the expected ID at trial, as the defendant sitting next to defense counsel was obviously unduly suggestive. No other alternative procedures were sought by the defense.

Where there is a first-time in-court ID, a defendant must be afforded, as soon as

practical, an opportunity to request alternative ID procedures. The People have an obligation to ensure the defendant is made aware (as soon as practical) of the possibility of a first-time in-court ID. Trial courts have discretion to fashion protective measures necessary to reduce misidentification, subject to the traditional balancing of the probative value against the dangers of misidentification. Factors the trial court should consider: the opportunity the witness had to view the incident, the extent the witness previously viewed or knew the defendant, the witness’s ability to provide an accurate description, corroborating evidence and the time between the crime and the trial. The defense must be given a meaningful opportunity to seek additional procedures to address the reliability of the identification and (or) reduce the suggestiveness of the identification.

While the majority recognized the ”very real danger” of wrongful convictions based on witness misidentification, as well as the futility of cross-examining a witness that is convinced of his or her identification, no formal pretrial procedure was required here. The witness had the ability to observe the shooting, described the shooter in detail, was corroborated by the surveillance video, had met the defendant before the shooting, mirrored the description from the 911 call and made the ID at trial just 5 months after the crime. The discovery provided to the defendant here (including body-camera footage, the 911 call and the witness list) was sufficient to place him on notice of the situation. The lack of formal notice did not significantly prejudice the defendant.

In dissent, Judge Rivera reminds us of the dangers of misidentification leading to innocent people being convicted, particularly in single ID witness cases. DNArelated exonerations have borne this out. See generally, People v. Boone, 30 NY3d 521, 535 (2017) (addressing cross-racial ID issues). At bar, the witness had consumed alcohol the night of the party and only briefly saw the defendant. As there’s

often just a single person sitting at the defense table next to counsel, a first-time in-court identification is a high stress, inherently unduly suggestive, show up procedure. Even a rudimentary knowledge of courtrooms guarantees an ID. Moreover, juries tend to trust a confident witness’s ID of a defendant.

Due process and the right to a fair trial require formal notice where ID is an issue, the witness was a stranger and memory is the only basis for the ID. It should be the prosecution’s burden to establish the reliability of an ID to effectuate the truth-seeking function of a trial. To support her concerns, Judge Rivera notes 79 exonerations reported by 14 DA “conviction integrity units” across the state. The typical exonerated individual spends 14 years in custody before being freed. Aside from the individual harm to the defendant, this obviously erodes confidence in our system. Cross-examination of a confident witness won’t sufficiently mitigate this issue. It’s like throwing a drowning person an anchor. Indeed, there are no “Perry Mason moments” in real life. Why have a rule where a defendant is only afforded constructive notice and must shoulder the burden to contest an inherently unfair situation? Why hide the ball? Why not require an express onthe-record notice (i.e., like under CPL 710.30(1)(b))?

December 19, 2023

Matter of Appellate Advocates v.

NYS DOCCS

2023 NY Slip Op. 06466

This is a FOIL request made by the Appellate Advocates regarding 11 documents withheld by the NYS Department of Corrections and Community Supervision (“DOCCS”). The Third Department is unanimously affirmed in finding these documents exempt and privileged as attorney-client communications under Public Officers Law § 87(2)(a) and CPLR § 4503(a)(1). Judge Rivera au-

thored this decision. This FOIL request involved the Board of Parole’s decisionmaking process, resulting in DOCCS providing thousands of pages of materials. An Article 78 settlement resulted in the 11 pages in question being in dispute.

Under New York’s FOIL, there is a presumption of disclosure unless the scenario falls within an enumerated statutory exemption. FOIL is to be liberally construed and its exemptions interpreted narrowly. The purpose of the law is to maximize transparency and the public’s access to government records. Here, however, the documents reflected counsel’s legal analysis of statutory, regulatory and decisional law and were prepared for the purpose of facilitating the rendition of legal advice or services.

The law promotes open dialogue (in both directions) between attorney and client, whether or not that advice was explicitly requested by the client. An attorney’s professional judgment, experience, skill and knowledge of the law are critical to his or her client. Communication in this regard may be in anticipation of litigation or as way of avoiding it. The communications at bar were for training and advising parole commissioners, and were primarily of a legal character. They addressed interviews and discretionary determinations. Privileged communications may include memoranda or slide shows as part of a training project. The Court rejected the argument that this material was effectively the parole board’s official policy.

People v. Butler

2023 NY Slip Op. 06468

This is a unanimous remittal, authored by Judge Cannataro. The issue, one of first impression in our State, was whether a dog sniff of a human constitutes a search under the Fourth Amendment. The answer is yes. The matter was remanded to determine a proper standard.

A canine’s heightened sense of smell has long been utilized by law enforcement to detect the presence of illegal drugs embedded in cars, suitcases and clothing. Here, law enforcement observed the defendant’s vehicle leave the scene of an apparent drug deal and commit several VTL violations. The car was stopped and the defendant was questioned. When Mr. Jones denied a request to search his vehicle, a police canine was led towards the vehicle, but started pulling toward the defendant who was standing outside. The dog jumped into the front seat, indicating it caught the scent of narcotics. The officer then extended the leash to allow the dog to walk around the defendant. The dog put its nose in the defendant’s groin area. When the officer indicated the dog was signaling the scent of narcotics, the defendant attempted to flee. Abandoned drugs were recovered from the surrounding area (which the defendant admitted were his). County Court denied the defendant’s suppression motion, finding that no search occurred through the dog sniff. The Third Department affirmed on different grounds, finding that a search did occur, but that reasonable suspicion, purportedly present here, was sufficient.

The US Supreme Court has addressed dog sniffs of: (1) the exterior of an airplane passenger suitcase (US v. Place, 462 US 696, 707 (1983) (not a search; not requiring the suitcase to be opened, no embarrassment or inconvenience caused)), (2) the exterior of a lawfully seized motor vehicle (Illinois v. Caballes, 543 US 405, 409 (2005) (also not a search; only reveals presence of narcotics)) and (3) the porch of a residence (Florida v. Jardines, 569 US 1, 6, 8 (2013) (qualifies as a search; the porch is encompassed within the 4th Amendment curtilage)). For the Jardines homeowner, where one’s privacy rights are most heightened, there was no implied invitation to have a trained police dog sniff the porch area for narcotics possessed inside the home.

Court of Appeals

Continued from previous page

There is also a heightened expectation of privacy, integrity and security in one’s body and the space immediately surrounding it. The Fourth Amendment protects against unreasonable intrusions into our bodies by the government -and is triggered when the government attempts to gather evidence of criminal activity from one’s person (whether the method be compelled surgical intrusion or brief outer-clothing contact). Direct physical contact is not a prerequisite for triggering the Fourth Amendment. Sniffing an inanimate object like a suitcase does not create as great an intrusion as sniffing a human body. Most people attempt to hide bodily odors from the public, as they cause people embarrassment and anxiety. It is little consolation that the law enforcement canine is only obtaining otherwise undetectable info regarding the presence of illegal drugs. The dog sniff of a person may be undignified, alarming, intrusive, annoying, humiliating and demeaning. Moreover, many people are afraid of dogs. Many others, particularly people of color, don’t trust law enforcement. One’s personal space when confronted by a law enforcement canine may be precious. When one ventures into public, being subject to a law enforcement canine sniff is not implied as a social convention. Law enforcement may not roam the streets of NYS with their drug dogs arbitrarily sniffing people for the detection of illegal drugs.

As the standard for conducting the search was not addressed by County Court and was thus beyond the jurisdiction of the AD to decide, People v. LaFontaine, 92 NY2d 470, 473-474 (1998), the AD is reversed and the matter is remitted to County Court.

January

11, 2024

People v. Greene

2024 NY Slip Op 00096

The AD is unanimously reversed in this memorandum decision, with Chief Judge Wilson filing an important concurrence. Count 3 of the indictment, charging perjury, is dismissed as multiplicitous. Multiplicitous counts create the risk that a defendant will be punished for, or stigmatized with, a conviction of more crimes than he or she actually committed. The judgment is otherwise affirmed.

In his concurrence, the Chief returns to a theme he has visited before: the excessive resources expended on unnecessary prosecutions. These types of cases often result, as this one did, in a disproportionate result for minor antisocial behavior. Here, the defendant rode his bike the wrong way on a street and almost hit two people. Harsh words were exchanged. One of the complainants tried to take the defendant’s photo, so he grabbed her phone and took off. In essence, “two New Yorkers got into a protracted argument about whether a jaywalker or a wrong-way cyclist was in the wrong.” The complainant was uninjured and got her phone back soon after the event. The defendant was charged with 4th degree grand larceny and two counts of perjury regarding his grand jury testimony. He ultimately represented himself pro se until sentencing, where his history of mental illness came to light. He received 4 to 8 years in prison. The complainant did not even want law enforcement involved in the situation.

The Chief, as he observed in his dissent in People v. Britt, 34 NY3d 607, 628-630 (2019) (J. Wilson, dissenting), warned against the use of law enforcement to prosecute minor offenses that often result in disproportionate punishment. Incarceration should not be the default response to those convicted of low-level offenses. Restorative justice, allowing the parties the opportunity to communicate without placing the defendant in custody, was the path that would best serve society.

People v. Messano

41 NY3d 228

This 4 to 3 decision was authored by Judge Rivera. Judge Garcia wrote for the dissent, joined by Judges Singas and Cannataro. The prosecution failed to establish reasonable suspicion to detain the defendant and the evidence seized from the vehicle (a rolled-up dollar bill and apparent powder cocaine) was not taken under the plain view exception to the warrant rule, justifying a search of the car. A loaded firearm was found in the backseat. The Fourth Department, which affirmed with two dissents, is reversed.

A car was observed speeding that stopped in a Syracuse parking lot for its driver to conduct what appeared to be a drug deal. The driver exited and stuck his head into another parked car to have a conversation. The defendant also looked around and texted on his phone. The officers did not actually observe drugs and money exchanged. A third party, who had previously been arrested for drug possession, approached the two parties in the parking lot. The police approached the defendant who was now sitting in his driver’s seat in a non-threatening manner. The defendant exited as the officer approached and was frisked for weapons. At this point, the defendant was cuffed and not free to leave. Apparent cocaine was observed on the defendant’s driver’s seat. A baggy containing apparent narcotics was retrieved from the front console, in addition to a handgun secured from the center armrest in the backseat. Defendant also had $1,200 on his person.

Warrantless searches are presumed unreasonable. One of the narrow and delineated exceptions to the warrant requirement is when incriminating evidence in plain view is observed from a lawful vantage point. People v. Diaz, 81 NY2d 106, 111 (1993); People v. Brown, 96 NY2d 80, 89 (2001). It is the DA’s burden to establish the legality of a search. Here, the defendant was not lawfully detained, as there was no reasonable suspicion supporting

Continued on page 33

NYSACDL & NYSACDL Foundation

Annual Dinner 2025

January 17, 2024

Cipriani 25 Broadway, New York, NY

Guests of Honor

Hon. Rowan D. Wilson

Hon. William Brennan Award for Outstanding Jurist

Robert G. Wells, Esq.

Hon. Thurgood S. Marshall Award for Outstanding Criminal Practitioner

A24 Media - Sing, Sing (Feature Film) Justice Through The Arts Award

Jessica Horani, Esq.

Installation as 2025 NYSACDL President

Steven Epstein, Esq.

Recognition as 2024 NYSACDL President

On May 30, 2024, NYSACDL participated in its first group admission ceremony at the US Supreme Court. Congratulations to our inaugural class!

We look forward to offering this program again in 2026. Please watch for the chance to join us!

NYSACDL 2024

Supreme Court

Group Admission Class

Saul Bienenfeld

Diane Clarke

David Cohen

Danielle Coysh

Mehdi Essmidi

Steven Goldenberg

Michele Hauser

Noreen McCarthy

Suzanne McElwreath

Victor Sanchez-Lloveras Campolieto

W. John Thompson

Emily Trott

Beyond Batson:

The Hidden Hand - How Court Administrators Keep People of Color Off Juries

TBy Russell Neufeld

Russell Neufeld was the attorney-in-charge of the NYC Legal Aid Society Capital Division, Criminal Defense Division and Criminal Practice. He was a member of the CJA capital panels in the SDNY and the EDNY.

his is a story of how court administrators keep people of color off juries before they can ever make it to the courtroom. Atticus readers are all too familiar with the numerous times prosecutors have been caught trying to use peremptory challenges to improperly strike people of color from juries, in violation of Batson v. Kentucky. 1 And there has been much publicity about the history of negating the power of unbiased jurors of color by doing away with unanimous juries, during the early Jim Crow period in Louisiana2 and Oregon, and now, for the sentencing phase of Death Penalty trials in Florida. In order for the court system’s railroad to smoothly function, juries must be composed of people who reflexively credit police testimony and convict defendants that prosecutors tell them are guilty – because prosecutors and police are who protect “us” from “them.”

A lesser known, but no less damaging tactic to rig juries occurs before a prosecutor ever gets to improperly use a peremptory challenge. It is the misuse by court administrators of the hardship excuse. The two examples discussed here are chosen because of the author’s familiarity with them acquired in the course of capital prosecutions in the Federal District Court for the Eastern District of New York and New York State Court in Brooklyn. In one case, keeping Latinos and immigrants off of juries and in the other, young Black men. Undoubtedly, further research would reveal many other examples. Such hidden practices are particularly destructive of the right to a fair trial because, unlike those that occur in open court and which defense counsel can, therefore, confront, the behind-the-scenes machinations of court administrators are specifically designed to avoid such scrutiny.

where Central Islip lies. Studies of general attitudes towards immigrants demonstrated that Suffolk residents held a greater degree of bias against Latin American immigrants than those in the other counties of the Eastern District. A Newsday/NY1 poll found “Suffolk County has the highest percentage of

“The under-representation and exclusion of people of color from juries has seriously damaged the credibility of the criminal justice system.”

Bryan Stevenson

In 2007, along with my colleagues Peter Tomao, I represented Wilver Lopez, accused of being a member of the Salvadorian gang MS-13 in what was the first case in the Eastern District’s Central Islip courthouse where the government sought the death penalty.3 We argued that our client could not get a fair trial in Central Islip because of the jury composition there. The Eastern District includes 3 counties in New York City; Kings (Brooklyn), Queens and Richmond (Staten Island), and two counties east of the City, Nassau and Suffolk. Jurors selected for criminal trials in the Central Islip courthouse were disproportionately made up of residents of Suffolk County

residents in the state who have negative opinions about undocumented immigrants…. The survey found that Suffolk is the only county in New York where more registered voters think immigrants in the county have had a negative impact on their communities rather than a positive impact.” The poll found that 35% of Suffolk residents felt negatively about the immigrants, compared with 13% in New York City. A Marist poll found that only Suffolk residents made immigration their number one concern, at a rate three times greater than the state as a whole. Census figures showed that jurors drawn for the Central Islip courthouse significantly underrepresented the Latino population of the Eastern District.4

Theoretically, the jury pool for the Central Islip Courthouse, like that of the Eastern District’s other courthouse in Brooklyn, consisted of people called at

random from the entire Eastern District. So, how did the court administration manage to so skew the composition of actual juries? The device was both ingenious and simple. All those called for jury service in Central Islip received “Federal Court Jury Service Information” brochures – while those called for service in Brooklyn did not. The brochure instructed all those called for service, under the headings “REQUEST FOR EXCUSE OR POSTPONEMENT,” and “HARDSHIP EXCUSE/ POSTPONEMENT,” that anyone for whom travel to the court would pose a “serious transportation problem” is eligible to be excused and receive a later summons for jury duty at the court closer to their home. Travel hardship was defined as a trip from home to court taking more than 75 – 90 minutes. The brochure then stated that the Long Island Rail Road trip from New York City to Central Islip takes about 75 minutes. That does not include the time it takes to get from one’s home to the train station or from the train station to court. Therefore, everyone coming by public transportation could be automatically excused as well as scores of those driving. Of course the time to travel by train in one direction was the same as in the other, but no such automatic hardship excuse was offered in the Brooklyn court.

Thanks to Peter Tomao’s meticulous research and data collection on one of his prior Central Islip cases, we were able to demonstrate the devastating effect of this “hardship excuse” on achieving a fair jury. Of the 600 jury pool members sum-

Continued on next page

Beyond Batson

Continued from previous page

moned to the courthouse, 104 were from Kings County, 102 from Queens, 29 from Richmond, 156 from Nassau and 190 from Suffolk. Travel hardship requests that courts granted to this pool by county were: Kings 48, Queens 28, Richmond 15, Nassau 3, Suffolk 0. The jurors summoned to the Central Islip courthouse on the first day of jury selection, by county, were: Kings 3, Queens 14, Richmond 0, Nassau 41, Suffolk 62. The panel actually sent to the courtroom contained: Kings 2, Queens 12, Richmond 0, Nassau 33, Suffolk 55. So, although the initial pool contained more residents of New York City (235) than of Suffolk (190), the panel that was sent to the courtroom for jury selection contained three and a half times as many Suffolk residents as New York City residents. While we could not predict that our client’s jury pool would be identical, there was no reason to believe it wasn’t typical.

Similarly, there was no reason to believe that the race/ethnicity data of jurors from the earlier trial was also not typical. Of the 288 venire members on the Clerk of the Court’s report, only 6.17 identified as Hispanic. Of the 55 sent to the courtroom, only one (1.96%) identified as Hispanic. Census data for the Eastern District showed a Hispanic population of 1,474,698. Only a small portion of those, 181,416 lived in Suffolk. The great majority, 1,141,304 lived in the three New York City counties. A further indication of attitudes and biases towards immigrants was reflected in the fact that 11.2% of Suffolk residents were foreign born, while 46.1% of Queens residents and 37.8% of Kings residents were foreign born.

So, the automatic hardship excuse worked fiendishly well to deny Latino and immigrant defendants in federal

court in Central Islip a jury of their peers. The Court, Judge Leonard Wexler, accepted our arguments and transferred the place of trial to Brooklyn. In so doing he implicitly acknowledged the risks of a biased jury had he kept us in Central Islip. But he also eliminated a potential appeal issue that could have led the Second Circuit Court of Appeals to scrutinize Central Islip’s Jury Service Information brochure and its blatantly discriminatory intent and effect – An appellate review that could have resulted in the public damning of the practice and a resulting order from the chief judge of the Eastern District to end it.5

Court administrators in state court in Brooklyn also devised a similarly simple and nefarious way to limit some people of color from jury service. Throughout the later part of the twentieth century, Black participation in Brooklyn jury pools had steadily grown; first through voter registration projects during the Chisolm and Jackson presidential campaigns, and then through the expansion of the jury pool beyond registered voters, to draw on licensed drivers and government benefit recipients.

In 1998, while representing Darrel Harris in what would be the first capital trial after New York brought back the death penalty6, my Legal Aid colleagues and I were concerned with ensuring that the special jury pool that would soon be empaneled for the trial, contain a fair cross section of Brooklynites. Prior to the special panel’s appearance date, a visit to the very large central jury room revealed scores of people waiting to be sent out to various courtrooms for jury selection. And although there were a significant number of people of color among them, there was a marked absence of young Black men.

This was a time when the NYPD’s stop and frisk program was revving up. NYCLU statistics showed that literally most young Black men in the city had been stopped by the police for no reason.7 They were routinely told to empty their pockets and if even a small amount of marijuana was produced, they were arrested on the trumped up charge of having drugs in the open and then spent days in police lockups or city jails.8 Prosecutors did not want such people, who had been dishonestly mistreated by the NYPD, evaluating police testimony. So, rather than having to count on a judge granting a challenge for cause or having to use up one of their peremptory challenges, it would be much easier for the prosecution if these young men never made it out of central jury.

We met with Jon Besunder, Sr. to inquire about this anomaly. Mr. Besunder was the Kings County Clerk, the Kings County Jury Clerk and the Kings County Jury Commissioner – all at the same time. He controlled who got summoned for jury duty, who got excused and what procedures his staff followed in producing panels for the trial courts. He was also the father of Jon Besunder, Jr., deputy bureau chief in the Brooklyn DA’s homicide bureau – which was seeking to have our client executed. Asked to explain the absence of young Black men, he stated that his office believed it would be an undue hardship to ask anyone who was unemployed and said they were engaged in the important work of finding a job, to take time out from the job hunt, to serve on a jury. So, they excused many unemployed people which just happened to include a lot of young Black men. We strongly believed this rationale was pretextual.

Determined to prevent this outrageous, overtly racist practice from infecting Mr.

Harris’s jury, we deployed a number of Legal Aid staff to monitor Central Jury the entire time the special panel was processed; ready to document and testify if the bogus hardship excuse or other discriminatory tactics were employed. With the jury clerks now knowing that this was what we were watching for and that we would raise it with the trial judge or, if need be, on appeal, the automatic excusing of job seeking, unemployed young Black men did not happen. But just as in the Central Islip case, while the racist practice was stopped momentarily for the benefit of a single defendant, court administrators dodged the bullet of a broader inquiry into their discriminatory practices that could have led to ending them.9

The type of devices court administrators in Central Islip and Brooklyn used to eliminate jurors of color are but typical

instances of a larger and long term history. While Jim Crow laws in the South maintained a de jure system of racial discrimination, the Northern version has long been Jim Crow sub silentio. Like realtors steering unwitting prospective home buyers to segregated neighborhoods which then results in segregated schools, the people orchestrating these practices know exactly what they are doing. And they rely on escaping public awareness to continue getting away with them. Some have labeled such practices part of the new Jim Crow, but they really have been around just as long as the old one.

© Russell Neufeld 2024

1476 US 79 (1986). See, Accountability NY Discrimination Complaints at accountabilityny.org .

2Thomas Aiello, Non-Unanimous Juries, 64 Parishes, Nov. 15, 2021.

3United States v. Wilver Lopez, 04-cr-939(LDW).

4All data citations are contained in Defendant’s motion to change the place of trial. Lopez, Docket No. 220.

5The death notice was withdrawn by the next administration’s attorney general due to gross government misconduct. (See, R. Neufeld, The Dopey Tapes, Atticus, Fall 2011). The case was resolved through a plea agreement. Following the case resolution, at a meeting with the Chief Magistrate Judge for the Eastern District, she committed to correcting the Central Islip travel hardship policy. However, that did not happen and the discriminatory policy remains in the current juror brochure.

6Darrel Harris was convicted and sentenced to death. The death sentence was overturned on appeal. See, People v. Darryl Harris, 98 NY2d 705 (2002).

7NYCLU, Stop-and-Frisk, Report on 2011 Findings, “The number of stops of young Black men exceeded the entire city population of young Black men.” assets.nyclu.org>stopandfriskfactsheet.pdf .

8See, People ex rel Maxian, 77NY2d 422 (1991). 9However, unlike in Central Islip, the Brooklyn jury clerk’s office claims to have ended the discriminatory practice.

By Steven Epstein President NYSACDL

Creative Motion Practice: Thinking Who, What, Where, When

and Why

Reprinted with minor changes by permission of The Champion, an NACDL publication

Counselor, would you like a motion schedule? This seven-word question often commences dreading, planning, writing, editing, and ultimately filing motions in criminal cases. For many criminal defense attorneys this task is low on the list of desirable activities, perhaps just above preparing your tax returns.

This is written for many of you who are criminal defense attorneys, you love the battlefield inside of the courtroom. For you, advocacy means standing up in court and doing what you do best: arguing; cross examining; objecting; and anything but writing.

This is also written for those of you that welcome the opportunity to advocate for a client in the written form. Motion practice is not something you avoid but welcome. For you, this will offer a view of motion practice from a new perspective, being creative.

The dictionary defines creative as relating to or involving the imagination or original ideas, especially in the production of an artistic work1. Prosecutors, Judges, and the public will view our clients with a narrow lens. They will see in our client what they expect to see and perhaps what they want to see. Though the Constitution grants the accused the presumption of innocence, we know from practice in the trenches that the accusation itself often creates a presumption of guilt. To overcome this narrow lens in which our clients are viewed it is essential to be unique in the way we represent them. “Two roads diverged in a wood, and I—I took the one less traveled by, and that has made all the difference.”2 Criminal defense attorneys are presented with two roads to choose from: be like everyone else and get average results; or be unique by using your strengths to arrive at better results than most lawyers. I have chosen the latter and that has made all the difference.

Being unique and dare I say creative in the way you plan, write, and edit your motions requires the consideration of who, what, where, when and why, prior to putting pen to paper. These considerations will guide you down your path to being creative through motion practice.

Who?

We must first consider who our audience is. Your audience may not be the Judge. Many Judges delegate the reading of motions to their Law Clerks. It is important to get to know your audience with the

same focus you select a jury. What is their background before becoming a law clerk or a Judge? Did they write prior decisions that help or hurt your argument? Perhaps they already have a bias that goes against the conclusion you want them to reach. If so, you must find a way to address that bias and make your arguments unique. In making the ruling unique to your fact pattern you alleviate the fear of creating a precedent they do not want to establish. Who do they respect on the bench? Perhaps those Judges have written decisions helpful to your arguments.

What?

There are many motions that can be filed in a criminal case. They each have one thing in common: they all ask the court to take some action. A motion is by its nature a formal way for a party to persuade the court to take some action. There is a trilogy fundamental to all persuasion, especially true in motion practice: the law; the facts and the emotions that drive decisions. Many attorneys are skilled at researching the law. They can synthesize the discovery to present facts helpful to their arguments. Few attorneys appreciate the importance of emotion or how to integrate the emotions when persuading others to act. Since the goal of a motion is to persuade the court to act in some manner, harnessing the power of emotions is the most important part of the trilogy.

Harnessing emotions when persuading is natural. Research on the use of emotion in persuasion demonstrates that people possess a learned association between emotion and persuasion. An attempt to persuade another will create a spontaneous shift in the language we use toward more emotional appeals3. When we speak, we naturally use words likely to generate an emotional response in the audience. A lawyer must avoid taking the

emotion out of an argument that they already are inclined to use.

The writer can use emotion to influence the reader by their careful choice of words. This is a subtle but effective technique. The Reverend Dr. Martin Luther King Jr. did not declare he had an idea. Instead, he had a “dream.” That dream sparked the civil rights movement. In our written advocacy we should spend considerable time choosing important language. Is our client a Defendant? Rarely will such a label be helpful if at all. Why are we so careful not to use such labels in oral advocacy in front of a jury yet we label our client the Defendant often in motion practice. Consideration should be given to what label to use: Mr. Jones, Patrick Jones, or simply Patrick.

In oral advocacy emotion flows freely and is obvious. When speaking, the presenter uses voice characteristics such as tone, pace, rhythm, and volume to project the intended emotion. Writing is far more complex. The method of writing itself includes outlining, drafting, editing by others who do not share the emotion of the writer, and redrafting. These methods of preparing a written document offer many opportunities to remove emotion from the argument. When the writer is going through that process, they are more focused on style, grammar, punctuation, and organization than with the power of the emotions in the argument. This process risks the filtration of emotion from the argument. To avoid this, start by dictating what you want to say into a recorder. When done drafting your motion go back to the voice recording to determine if you have unnecessarily filtered the emotional language from your argument. This will occur every time we write with legalese instead of using a plain language approach to writing. Terry McCarthy, one of the pioneers of cross

Continued on next page

Creative Motion Practice

Continued from previous page

examination, always teaches lawyers to talk to jurors like you are in a bar. We should write no differently.

Be especially cognizant of the removal of any words that may trigger a healthy level of fear as fear can be a powerful motivator for acting. Examples are shown in the table below.

When tapping into the power of emotion in persuasive writing consideration must also be given to the audience. Our audience will be more likely persuaded when what we ask them to do is that which they wanted to do in the first place. Most of the power to persuade takes place in the receiver of the message, persuaders typically account for less than 10% of the effect.4 Research shows that the listeners desire to be consistent will impact the success or failure of an argument. We all possess a desire to maintain consistency in our beliefs. This is the reason managers are less likely to see faults in employees they themselves hired. Judges will strive to be consistent in their decisions. If your Judge has written on the issue before or on a related topic be sure to place particular emphasis on that fact. Judge’s will also seek to be consistent with courts of superior jurisdiction or fear the likelihood of a reversal on appeal. The strongest emotion in influencing action is fear. People are more motivated by the possibility they

Emotional Words

You alone can right this wrong.

This conduct created a danger to the rights all of us share with Mr. Jones.

The People failed to meet this burden.

may lose something of value such as health or money, than they are of gaining something they may want to have.5

The use of a syllogism in your argument will enhance the likelihood that your audience will be persuaded because it uses logic to let the listener reach the conclusions without being told how to think. People are better persuaded by the reasons which they have themselves discovered than by those which have been forced upon them. This synthesizes the power of logical reasoning using the syllogism. A syllogism is an argument that consists of a major premise, a minor premise, and a conclusion. Once the major and minor premises are proven the audience is led to the conclusion themselves. As an example:

Major premise:

All members of NYSACDL are lawyers

Minor premise:

John is a member of NYSACDL

Conclusion:

Therefore, John is….

By using this technique, the audience will not have the conclusion forced upon them. Instead, once convinced that the major and minor premises are true, they will arrive at the conclusion that John is a lawyer themselves. This will greatly

Filtered

Language

We ask Your Honor to find this action violated our client’s Constitutional rights.

Allowing such conduct creates a slippery slope by which police and the Government may use to secure evidence illegally in other cases.

The People did not establish proof by a preponderance of evidence to establish the legality of their conduct.

enhance the power of arguments made in a motion. As an example:

Major premise:

If consent is not voluntary a search based on it is unlawful.

Minor premise:

John Smith’s consent was not voluntary.

Conclusion:

Therefore, the search of John Smith was…

In this example, the writer still must establish both the major premise (law) and minor premise (facts), but once accomplished the emotional desire in the listener to reach their own conclusions will lead them to the conclusion that the search of John was unlawful.

Consideration should be always given to how many arguments you want to advance and whether they will help you persuade the court. One theory is to throw everything you have against the wall and see what sticks. This idiom itself implies the advancement of an illogical argument unlikely to persuade others. In motion practice, attorneys will often have alternative theories to advance, each with the capability of becoming a winning argument. One such example is in arguing a Fourth Amendment violation that results in an illegal seizure and the suppression of evidence. In advancing this argument you may want to argue that the car stop itself was unlawful. But the continued detention of an individual after the stop of the car or the arrest itself may also be argued to be unlawful. Each argument if successful will result in the suppression of evidence, each argument requires the consideration of different facts and different legal precedents. Consideration should be given to all that is gained or lost in advancing these alternative arguments. When deciding what to include in your motion it is important to consider the

dilution effect. The dilution effect is a judgment bias. When a Judge is presented with information that is helpful to a particular issue (e.g. the law concerning probable cause to arrest) there is a risk that the court will under-utilize such information when information not important to such an analysis is also presented (e.g. the law concerning car stops).6 Our minds do not distinguish the relevant from the non-relevant information when considering each independent argument. Instead having irrelevant information dilutes the power of persuasion. In essence our minds do not add 75 (the value of argument A) to 25 (the value of argument B) to reach a total of 100. Instead, we average these out resulting in a value of 50, thus the weaker argument may dilute the stronger argument.7 Less can indeed be more. We should be careful in advancing multiple arguments to persuade the court or risk our better argument being diluted by the weaker.

Where?

When writing for certain audiences an author may deliberately seek to confuse the reader. This technique may be helpful when the writer wants to make the reader uncomfortable, lost or confused. When writing murder mysteries this can be highly effective, but this technique will not work well when writing to persuade the reader.

Persuasive writing is aided by planning where in the motion various components are placed. A well-planned piece of writing will take a clear path that the reader can follow. Where you place the various components of an argument will help focus your reader on the pathway you want them to follow.

The pathway you want the reader to take will only be clear to them if you impose structure to your story (such as who,

what, where, when, and why.) To understand the value of structure, consider the barriers to communication that result from the lack of structure. Most of us have a family member or friend that communicates without structure. Their story goes something like this:

Did I tell you about the great restaurant I went to last night? It was great. Oh, you will never guess who I ran into at the restaurant, JOE! It has been so many years since I saw Joe last. I forgot all about him. For good reason too. Do you remember the time Joe stole that money from Susan? I felt bad for Susan, she is vulnerable. I think Sue is that way because of the way she was raised, you know no siblings, an only child…

In the above writing we are first led to believe that we will find out about a great restaurant. Not only do we never find out about why the writer enjoyed the restaurant, we do not know its name, the type of food they serve or where it is located. If the writer intended us to visit the restaurant, that effort failed. When listening to a story without a structure the audience loses focus, is unsure of what will follow or what pathway the story will take. The listener will give up and often not pay attention to or follow the story thereby preventing persuasion.

In persuasive writing the goal is to keep the listener engaged and comfortable. We want the listener to follow our arguments so that we can persuade them. When writing motions, our listener can more easily follow our arguments if the structure is clear to the reader. There are many tools that can be used to connect with our audience and create structure.

Each segment should have a clear title with labels that make sense to the reader. When writing an Omnibus Motion for example, the writer may be asking the

court for various forms of relief. The title of each segment should clearly identify the facts, law, and emotion succinctly with a label. I will highlight these labels by centering, underlining, or writing the text in bold. An example of one such label may be

“The stop of the car Mr. Jones was driving by the police was illegal and the evidence gathered after this illegal act must be suppressed.” (Dunaway)

Using such a title will cue the reader into the structure of your argument. This will allow the reader to determine what each segment seeks to argue and sets the reader up to follow and possibly be persuaded by your argument.

Topic sentences are another important tool in creating structure. The topic sentence appears as the first sentence of the paragraph, helps communicate the structure to the reader and summarizes the information in each paragraph. Since the reader will be cued into the purpose of the paragraph by reading the topic sentence, they are more likely to follow the arguments made by the writer. The writer should start with writing the topic sentence before the other content within the paragraph. The topic sentence also helps the writer know what to exclude from a paragraph. If the content of a paragraph does not pertain to the argument advanced in the topic sentence it will only confuse the reader and should be removed. As an example, this paragraph’s topic sentence is that “topic sentences are another important tool in creating structure.” The sentence “the writer should start with writing the topic sentence before the other content within the paragraph” does not help or advance the topic sentence. It may be relevant to the larger story, but its inclusion in this paragraph may confuse the reader and make it more difficult to follow. It should be omitted.

Continued on next page

Creative Motion Practice

Continued from previous page

The order of your argument will impact its effectiveness. If we view written motions as a learning episode for the reader the primacy-recency effect will have an impact on the effectiveness of our arguments. The primacy-recency effect teaches that an audience will tend to remember best that which comes first and remember second best that which comes last. We tend to remember least that which comes just past the middle of the material. This phenomenon has been studied since the 19th century.8

When?

The power of a well written reply should not be ignored. In life we always want to get in the last word in an argument. No trial attorney would dare wave a summation. Yet lawyers often do not request an opportunity to reply; and even worse; when they have the opportunity do not know how to use it. In determining whether and how to file a reply, consideration should be given to what arguments your opponent made in their opposition papers that can be refuted. Of particular importance is an argument that impacts your opponent’s reasoning. If done effectively this can negatively impact the overall persuasiveness of your opponent’s arguments because you have effectively used primacy and recency.

Consideration should also be given to whether oral argument may be advantageous. Determine if your Judge will permit oral argument. Perhaps your strengths lie in your ability to orally persuade, or your adversary may have a weakness in making oral arguments. If either is true do not pass on the opportunity to deliver your arguments both in writing and through oral argument. The timing of when you file motions may help you negotiate a better plea. Some motions do not have to be filed

by a certain deadline. This is often true with dispositive motions, discovery motions, motions to dismiss in the interest of justice, requests to modify the jury charge, and pre-trial motions to preclude evidence. If you were looking to give the prosecutor a motive to offer your client a better plea offer, proper timing of your motion can create that opportunity.

Why?

The question of why we file omnibus (or suppression) motions can directly be answered with the reply that we seek some order from the Court. But the more creative answer to why we file motions lies in the benefits of the motion practice itself. My role is not to make the prosecutor’s job easier. I rarely will accept an offer from the prosecution to agree to stipulations in lieu of motions. The prosecutor and/or the court seek the alternative of stipulations because they do not want to do the work of responding to or deciding the motion. Consideration must be given to the role of the court in this regard and whether you will risk being denied a hearing on a motion if you choose to write. However, consider that in making motions we do more than seek to obtain a hearing. We seek the suppression of the evidence itself, not simply a hearing. A hearing should only be held to determine disputed facts. Thus, a prosecutor must respond to the motion with factual assertions. This may disclose facts previously not known. The People’s response will also cue you in to the theory of their case from the way they argue the relationship between the law and the facts. The process of preparing the motion itself will also aid you in understanding the strengths and weaknesses of your defense. Both sides engaging in this process may help lead to a resolution of the case prior to trial.

There are many motions that can be creatively used that do not simply address the suppression of evidence. These include but are not limited to modification of bail; change of venue; to compel a bill or particulars; to compel discovery; a modified jury charge; dismissal for facial insufficiency; dismissal for destruction of evidence; severance; speedy trial; motions in limine; and dismissal in the interests of justice. Each can be used creatively depending on the facts of your case.

Conclusion

Motion practice is not something to avoid but welcomed as an opportunity to be more creative in the way we practice criminal defense. We should challenge ourselves to be original. If we allow ourselves to think outside the box and consider who, what, where, when, and why, prior to putting pen to paper it will lead us down the road less traveled by and to a road that allows us to become more original and in turn creative in our motion practice.

1 Oxford Languages Dictionary, Oxford University Press. (December 23,2022), https://languages. oup.com/google-dictionary-en/

2 Frost, Robert, et al. The Road Not Taken: A Selection of Robert Frost's Poems. New York, H. Holt and Co, 1991

3 Rocklage MD, Rucker DD, Nordgren LF. Persuasion, Emotion, and Language: The Intent to Persuade Transforms Language via Emotionality. Psychol Sci. 2018 May 29(5):749-760. https:// doi: 10.1177/0956797617744797.

4 Id.

5 Id.

6 Baumeister, Roy F., Vohs, Kathleen D. Encyclopedia of Social Psychology. https://dx.doi. org/10.4135/9781412956253

7 Sivanathan, Niro. https://www.ted.com/talks/ niro_sivanathan_the_counterintuitive_way_to_ be_more_persuasive

8 Sousa, David A., How the Brain Learns. 6th Ed., Sage Publications, 2022

Court of Appeals

Continued from page 20

the purported drug transaction. Terry v. Ohio, 392 US 1, 20-22 (1968); CPL 140.50. The dollar bill and the white powder on the driver’s seat were not in plain view. No drug transaction was actually observed. The arrival of a third party with a prior drug arrest did not change this conclusion.

At the time the defendant was detained, the police did not have evidence that he had committed a violation or a crime. There is no record evidence that the police could see the car seat (where the incriminating evidence was viewed) as the defendant approached or during the frisk. After the defendant was detained at the back of the car, the officer looked through the window and observed the driver’s seat. Indeed, there was no evidence or reasonable inference that the police were in a position to see the money and drugs absent the unlawful detention. In sum, the People failed to rebut the presumption of unreasonableness regarding this warrantless search.

In dissent, Judge Garcia pointed out this determination was a mixed question of law and fact. The Court of Appeals does not have jurisdiction to find suppressionrelated facts. With any record support, viewing the evidence in favor of the court’s ruling below, the Court of Appeals should go no further. The People were entitled to the benefit of every reasonable inference. The majority, ignoring this standard, reweighed the hearing testimony, effectively acting like a suppression court. The officer pointed to specific and articulable facts. Based on the totality of the circumstances, there was reasonable suspicion to detain and ample support in the record for the lower courts’ determinations.

More commentary: This appears to be an aggressive and defense-friendly view of the mixed question of law and fact (“MQLF”) doctrine, which leads to two conclusions: First, consider using this decision to help fend off prosecutors’ leave application responses on MQLF suppression arguments. Second, while it’s still early, this expansive MQLF interpretation may be an indica-

tion of how strong the new four-judge pro-criminal defense bloc on the Court may be. Always the optimist.

January 16, 2024

People v. Appiah

2024 NY Slip Op 00158

The AD is unanimously reversed in this memorandum decision. The defendant’s waiver of appeal was invalid and unenforceable pursuant to People v. Thomas, 34 NY3d 545 (2019) and People v. Bisano, 36 NY3d 1013 (2016). The matter is remitted to the AD to address the defendant’s excessive sentence argument.

February 15, 2024

People v. Novas

41 NY3d 956

The entire unanimous decision: “Order affirmed. Viewing the evidence in the light most favorable to the People, “there is a valid line of reasoning and permissible inferences from which a rational jury could have found” that the defendant violated Vehicle and Traffic Law § 600 (2) (a) (People v Rouse, 34 NY3d 269, 274 [2019]).”

February 20, 2024

People v. Ramirez

2024 NY Slip Op 00848

The Second Department is unanimously affirmed in this vehicular homicide prosecution. Judge Cannataro authored the decision. The defendant’s statutory and constitutional rights to be present for jury selection were not infringed by certain emergency Covid-19 related health and safety restrictions imposed during jury selection during the pandemic (in July 2021). These protocols included potential jurors wearing face masks when not being questioned during voir dire. New York guarantees the right of defendants to be present during all material

stages and to meaningfully participate in their defense. NY Const., art. I, § 6; CPL 260.20. This includes being present during jury selection and observing body language, facial expressions and demeanor of prospective jurors. See generally, People v. Wilkins, 37 NY3d 371, 374 (2021); People v. Antommarchi, 80 NY2d 247, 250 (1992). During jury selection, a defendant has the right to search out a prospective juror’s bias, hostility or predisposition to believe or discredit potential witnesses. Counsel must have the opportunity to assess the juror’s facial expressions, demeanor and other subliminal responses. People v. Velasco, 77 NY2d 469, 473 (1991), citing Snyder v. Massachusetts, 291 US 97, 106-107 (1934).

Defense counsel objected to the procedures below, as defendant was entitled to observe “every smile, every frown of a potential juror.” The prospective jurors were given plastic face shields and instructed to lower their cloth masks while being questioned by the attorneys. The defense seeks a “sweeping interpretation” of the right to meaningful participation. There is no right to have “unlimited ability” to observe each prospective juror’s facial expression. Indeed, the restrictions here did not have a substantial effect on defendant’s ability to mount a defense and observe the jury selection process. There’s a lot to observe besides the nose and mouth (i.e., posturing, the position of one’s arms, eyes and eyebrows). Tactically preferable proceedings do not create a right. The defendant was not deprived of due process, as there was an ongoing health emergency interest that outweighed the slight restrictions imposed upon the defendant’s ability to see the facial expressions of potential jurors.

Finally, the Court rejected the defendant’s complaints regarding the surviving spouse expressing emotions before the jury. Addressing such an issue is left to the trial court’s discretion.

Court of Appeals

Continued from previous page

People v. Aguilar

41 NY3d 335

The First Department is affirmed. Judge SIngas authored the majority opinion. The Chief wrote a concurrence. The murder defendant was not deprived of his constitutional right to meaningful and effective assistance of counsel by his attorney not seeking a reinstruction for the jury regarding justification (following a jury note during deliberations). The jury only asked the court to “give… the elements of all the crimes again…” The trial court denied defense counsel’s request to have the justification defense reread. Factors considered are the form of the jury request, the particular issue in question, the supplemental instruction provided and the issue of prejudice. In sum, the court meaningfully responded to the jury’s request and did not abuse its discretion under CPL 310.30.

People v. Brann

2024 NY Slip Op 00850

The lower court’s modified CPL 530 securing order is unanimously vacated and converted to a declaratory judgment. The Court addresses the scenario where a CPW defendant is released on bail and commits a new violent felony (here, three of them) and the trial court remands the defendant.

CPL 510.30(1) requires that trial courts impose the least restrictive kind and degree of control or restriction that is necessary to secure the defendant’s return to court. CPL 530.60(1) permits a modification of a securing order where good cause exists. Risk of flight must be considered in a new securing order. A trial court may modify a securing order where defendant is charged with additional class “A” or violent felonies pursuant to either CPL 530.60(1) (addressing risk of flight factors under CPL 510.30) or CPL 530.60(2)(a) (including due processrelated procedural requirements under

CPL 530.60(2)(c)). Flight factors, which were expanded in 2019 to encompass non-statutory circumstances, include the defendant’s history, the charges, criminal history, record of flight, financial circumstances and whether there are pending orders of protection. Here, there was no record of the trial court considering issues of flight risk; therefore, the procedural requirements under CPL 530.60(2)(a) were required. These included showing reasonable cause that he committed a class “A” or violent felony or intimidated a witness. A CPL 530.60(2)(c) evidentiary hearing must also be held. A grand jury transcript is admissible in such a proceeding. In sum, the record must support which non-exclusive provision (sub (1) or (2)(a)) the court utilized as a basis for modifying a securing order.

The present issue qualifies under an exception to the mootness doctrine, as the issue is novel, likely to occur again and would typically evade appellate review.

February 22, 2024

People v. Seignious

2024 NY Slip Op 00927

This is a unanimous People’s appeal, reversing the First Department. The defendant was charged with second-degree burglary as a sexually motivated felony regarding events occurring at NYU. See, PL § 130.91(1) (encompassing 30 potential predicate felonies); PL § 140.25(2). The matter was remanded to the AD to address an excessive sentence issue. The AD had reversed, finding that the People limited their theory to the more serious offense; further concluding that requiring the defendant (who objected) to defend against the lesser included offense (a simple 2nd degree burglary) violated the defendant’s right to be notified of the charges.

The Court of Appeals reversed the reversal. Indeed, there was a reasonable view of evidence under CPL 300.50(1)/(2) to support the lesser included offense here and not the higher charge. See also, People v. Glover, 57 NY2d 61, 64 (1982). The indictment provided the defendant with sufficient notice and the People purportedly did not abandon the lesser included offense (i.e., by bill of particulars, jury instruction or presentation of evidence). The defendant was not lured into only defending against the greater indicted charge.

People v. Boone

People v. Cotto

2024 NY Slip Op 00928

This is a combined 4 to 3 decision, affirming the First Department. The Chief authored the dissent, joined by Judges Rivera and Halligan. The question is whether defendants’ SORA assessment hearings were premature as they were subject to Mental Hygiene Law article 10 (Sex Offender Management and Treatment Act [“SOMTA”]) petitions. Potential SOMTA outcomes include discharge, strict supervision or civil commitment. The Court concluded it was not necessary to wait for a defendant’s actual release from custody to conduct a SORA assessment hearing. The defendants’ requests for adjournment were properly denied.

Both defendants were level-three sexually violent defendants who assaulted children they were supposed to be babysitting. They were both in custody under SOMTA petitions and argued that due process demands a SORA assessment be conducted at a meaningful time, i.e., just prior to actual release from custody (as opposed to just being transferred from a DOCCS to an Office of Mental Health (“OMH”) facility. But SORA was intended to protect the public from recidivist sex offenders. There is no certainty as to how the defendants’ SOMTA

litigation would have concluded. Civil confinement was not a foregone conclusion. Delaying SORA proceedings would defeat the statute’s primary purpose of protecting the public.

Courts must make SORA determinations within 30 days of a defendant’s release. The majority concluded a defendant is “released” under Correction Law 168n(3) when he or she is released from a DOCCS prison, regardless of pending SOMTA litigation. As there is no explicit definition provided, this answer is based on a contextual reading of the statutory scheme. The statute does not require assured reentry into the community before the SORA assessment is triggered. The legislature did not want to depend on the ad hoc cooperation between DOCCS and the OMH in protecting the public. Due process (including notice and opportunity to be heard) is a flexible concept based on the balancing of interests. Mathews v. Eldridge, 424 U.S. 319, 333 (1976). While a defendant must be afforded meaningful timing in being heard, in this context, that means just before a determination is made. Because of the statutory procedural safeguards in place under Corr. Law §§ 168 m, n and o, the risk of SORA misclassification is minimal. Postponing a SORA assessment because of SOMTA litigation brings with it unnecessary unpredictability.

In dissent, the Chief opines that “release” under Corr. Law § 168-n means being released to the public from all state confinement, not merely transferred from DOCCS to the OMH. Legislative history and a dictionary reading of the term “release” back this up. It is telling that the majority’s “plain reading” of the statute takes pages to explain. The statute does not designate which custodian is the releaser of the litigant, so the majority effectively adds DOCCS to the text. Neither defendant at bar were ever set free from

confinement. They were “transferred” between agencies – not “released.” Here it was premature (perhaps even decades so) to address the SORA assessments. Between 2007 and 2023, 84 % of SOMTA offenders who proceeded to trial were committed to state custody. Moreover, only 59 SOMTA offenders out of thousands were released from commitment in 2007. The objective of promulgating accurate information about potential sex offender recidivism (in order to protect the public) was not achieved. Defendants over a decade in custody are subject to treatment which may certainly impact their ultimate SORA assessment.

People v. Watts

2024 NY Slip Op 00926

This is a 4 to 3 decision, affirming the First Department. Judge Cannataro wrote for the majority. Judge Rivera wrote the dissent, joined by the Chief and Judge Halligan. There was no due process violation by the defendant being forced to litigate his SORA assessment issues after having been in and out of competency. The mere possibility that he might have lacked capacity to understand the proceedings did not trigger due process protections precluding the assessment process. The statutory protections under Corr. Law article 168 protect against any due process deprivation.

The defendant, convicted of numerous sex crimes, had long suffered from severe schizophrenia and psychosis. He was initially found incompetent under CPL 730. Only after a seventh mental health examination -- after spending five years in an Office of Mental Health (“OMH”) facility -- was he deemed competent to stand trial. His guilty plea followed. When it came time for defendant’s SORA hearing, counsel objected, believing his client to be incompetent. Indeed, at the time of the SORA proceedings, the defendant was confined in an OMH facility. Defense

counsel requested that a competency exam be ordered prior to any SORA proceeding, as conducting the proceeding now was premature. But this could ultimately cause extensive delay in an assessment being made, and even an indefinite postponement. The public has due process rights as well, analogous to government transparency and open proceedings.

A SORA risk level is a determination of status with considerable adverse impacts on housing, employment and relationships. Flexible due process balancing, encompassing notice and opportunity to be heard, under Mathews v. Eldridge, 424 US 319, 334-335 (1976); People v. David W., 95 NY2d 130, 136-137 (2000) and Doe v. Pataki, 3 F. Supp. 2d 456 (SDNY 1998), does not help the defendant here. The defendant’s limited liberty interests in this context must be seen in light of the state’s interest in accurate assessment of SORA offenders. The government is not required to provide defendants additional procedural safeguards. SORA litigants are not entitled to perfect error-free determinations. Other important litigation is conducted without concern for a litigant’s competency, like SOMTA civil commitment, immigration removal and termination of parental rights proceedings.

In dissent, Judge Rivera pointed out that all of the procedural due process protections under Corr. Law § 168 (i.e., notice, the standard of proof, the hearing, discovery, the right to counsel, the right to be present, appeal, the ability to seek modification, etc.) are meaningless if a litigant lacks the capacity to participate in his or her defense. The defendant had a long history of serious mental health issues. Because of the risk of miscalculation, the public is not protected by incompetent SORA defendants being assessed under the statute. (Incidentally, unlike SOMTA proceedings which involve severely mentally ill litigants, parole

Continued on next page

Court of Appeals

Continued from previous page

revocation litigation requires a competent litigant.)

No further Mathews balancing is needed, as the legislature has already weighed these issues. Though not explicitly referenced in the non-exhaustive statutory list of rights, fundamental fairness and due process compel competency as a prerequisite to litigants exercising statutory and constitutional rights (including communicating and assisting in one’s own defense). Controverting a SORA assessment by a “physically present,” but incompetent, defendant becomes a mockery of the system. The collateral consequences from a SORA assessment include housing deprivation under SARA and reincarceration for not registering properly; competency is thus required.

March 19, 2024

People v. Estrella

2024 NY Slip Op 01499

This is an unsuccessful People’s appeal, unanimously affirming the First Department. Judge Troutman authored the majority opinion. The Chief and Judge Singas each wrote separate concurrences. The AD had vacated defendant’s first-degree murder conviction as legally insufficient.

This horrendous crime, caught on surveillance video, stems from infighting between two factions of a Bronx gang. The victim was dragged to the street from a store, beaten and stabbed multiple times with knives and a machete. Five defendants went on trial for the death of this fifteenyear-old boy, mistakenly believed to be a member of one of the two gang factions.

The AD correctly found legally insufficient evidence (see, People v. Danielson, 9 NY3d 342, 349 (2007)), to satisfy PL §125.27(1) (a)(x), which provides that a defendant who kills another commits first-degree murder when, with intent to kill:

defendant acted in an especially cruel and wanton manner pursuant to a course of conduct intended to inflict and inflicting torture upon the victim prior to the victim’s death. As used in this subparagraph, ‘torture’ means the intentional and depraved infliction of extreme physical pain; ‘depraved’ means the defendant relished the infliction of extreme physical pain upon the victim evidencing debasement or perversion or that the defendant evidenced a sense of pleasure in the infliction of extreme physical pain.

The AD erroneously found the defendant did not engage in a course of conduct involving the infliction of extreme physical pain. The requirement of there being a “course of conduct” was added as part of the death penalty regime in 1995. A single, isolated act is insufficient. It must be a series of distinct acts, excluding any planning meetings (or steps) prior to carrying out the attack. Also excluded is evidence of chasing the victim just prior to the attack. Contrary to the Chief’s concurrence, these acts need not be separately chargeable as crimes.

However, the AD correctly concluded the record doesn’t support the conclusion that the defendant “relished” or “evidenced a sense of pleasure in the infliction of extreme physical pain.” Taking pride in killing in general (after the fact) must be distinguished from taking pleasure in carrying it out – and it must occur prior to the killing itself. There must be needlessly brutal and prolonged suffering based on all the circumstances.

In his concurrence, the Chief (effectively joined by Judge Singas) believed that “extreme” physical pain under PL § 125.27(1)(a)(x) should be guided to some extent by the “serious” physical pain definition in PL § 10.00(10), meaning the present crime must require more. See also, PL § 125.26(2)(a) (regarding aggravated murder, requiring pain that is “separate and apart from the pain which otherwise would have been associated

with such cause of death”). The Chief also reminded that the extreme pain definition must be distinguished from so-called ordinary homicides.

People v. Bohn

NY Slip Op 01500

This is a unanimous affirmance, authored by Judge Garcia, regarding a domestic violence homicide.

There was legally sufficient evidence to establish first degree murder under PL § 125.27(1)(a)(x), People v. Danielson, 9 NY3d 342, 349 (2007), which required proving at least one of the 13 delineated aggravating factors, including torture.

This means the intentional and depraved infliction of extreme physical pain.

“Depravity” means that “the defendant relished the infliction of extreme physical pain upon the victim evidencing debasement or perversion or that the defendant evidenced a sense of pleasure in the infliction of extreme physical pain.”

Here, the People’s proof included graphic threats of violence, the circumstances of the killing itself, as well as the medical examiner’s testimony. There was a 911 audio recording of the defendant’s prior conduct, which included his choking the victim. She had also been beaten by the defendant in the past. The medical testimony included evidence of the victim being strangled, as well as receiving contusions to her lungs, lacerations to her liver, bone fractures and internal bleeding.

The attack was a very painful experience. Mixed motives for a killing, including preventing being caught later, does not disqualify the conduct under the firstdegree murder statute.

March 21, 2024

People v. Labate

2024 NY Slip Op 01582

This was a 4 to 3 affirmance, another unsuccessful People’s appeal. Strange voting lineup from the bench, with the Chief authoring the decision and Judge Cannataro joining the majority. Judge Troutman authored the dissent, joined by Judges Garcia and Singas. The trial court denied defendant’s CPL 30.30 motion to dismiss and the Appellate Term reversed.

The defendant, who crashed into a parked patrol vehicle while drunk, was indicted with various class “A” misdemeanors, including DWI and reckless driving. The People thus had 90 days after the charges were filed to be ready. CPL 30.10(1)(b). Once the defendant sufficiently alleges the People were not ready within the statutory period, the burden shifts to the prosecution to show their entitlement to a CPL 30.30(4) exclusion. After filing an off-calendar statement of readiness in December 2017, the prosecution was not ready for a September 5, 2018 return date. Instead, the DA’s office asked for a 12-day adjournment. The trial court adjourned the matter until October 18th. The People were not ready on the October return date, nor on a November 28th return date. Different ADAs, having no clue about the case, took turns appearing in court. Instead of just charging the prosecution with the 12 requested days, the Appellate Term correctly found the prosecution responsible for the 43 days between September 5th and October 18th. While an explanation would have been presumptively valid, there was no oral or written reason provided for the DA’s delay; the previous declaration of readiness was thus illusory. Had there been an explanation, the defense would have had the burden to overcome the presumption. But that didn’t happen.

The majority does a tour of 30.30 jurisprudence analyzing the difference between pre and post-readiness court delay. Post-readiness delay caused by the

prosecution’s inaction is chargeable to the prosecution. People v. Brown, 28 NY3d 392, 403-405 (2016); People v. Anderson, 66 NY2d 529, 535 (1985). Pre and post-readiness delay and congestion caused by the trial court is not. People v. Goss, 87 NY2d 792, 797 (1996); People v. Smith, 82 NY2d 676, 678 (1993). It is the People’s burden to clarify the record. People v. Liotta, 79 NY2d 841, 843 (1992). Imposing strict time limitations on the prosecution (to discourage its inaction) with the threat of dismissal is a consequence contemplated by the legislature when it enacted CPL 30.30 in 1972. “[A]pplying the rule of Liotta and Brown, the order of the Appellate Term should be affirmed.”

According to the dissent, the sky is falling. The majority is insensitive to faultless prosecutors; its decision will cause people who commit “heinous crimes” to walk free. The prosecution should only have been charged with the 12 days it asked for. The other 31 days were because of court congestion. Trial courts are responsible for their own delay. A statement of readiness is presumed truthful and accurate. Brown, 28 NY3d at 405. Not being ready on a particular day does not indicate the People failed to maintain continued trial readiness. There was no record supporting the majority’s conclusion that the initial statement of readiness was illusory. The majority has effectively overturned the Canady decision. See, People v. Canady, 28 NY3d 392, 404, 407 (2016).

April 18, 2024

People v. Sims

2024 NY Slip Op 02083

This is a unanimous memorandum, affirming the AD. The Court rejected defendant’s argument that the lower court conducted an inadequate inquiry regarding his plea condition violation.

Indeed, the defendant was provided an opportunity to dispute the factual basis for the alleged violation. Any ineffective assistance of counsel issues should be addressed in a CPL 440.10 motion. The defendant’s post-plea statements to the probation officer did not require further inquiry by the court.

April 23, 2024

People

v. Williams

2024 NY Slip Op 02128

This is a unanimous reversal of the First Department regarding a drug conviction, authored by Judge Troutman. An undercover officer testified regarding a buy-and-bust and provided a confirmatory identification. The court erroneously denied the defendant’s motion for an independent source hearing, instead relying on the officer’s testimony at a limited probable cause suppression hearing to make the determination. Details regarding the independent source issue were not addressed. Though he described the defendant’s clothing, the officer never interacted with him in the past. Further, the trial court found the arresting officer unreliable at the probable cause hearing and suppressed the confirmatory ID and physical evidence, i.e., the prerecorded buy money and the defendant’s cell phone – but not a general ID of defendant at trial. The People were required to demonstrate that the ID was acquired by means sufficiently distinguishable from the arrest to be purged of any illegality. People v. Jones, 21 NY3d 449, 455 (2013); Wong Sun v. United States, 371 US 471, 488 (1963). The lower court should have suppressed any ID of the defendant.

People

v. Mosley

2024 NY Slip Op 02125

This is a unanimous reversal of the Fourth Department, authored by Judge Halligan. A new trial is ordered, as the Continued on next page

Court of Appeals

Continued from previous page

trial court erroneously permitted testimony from a non-eyewitness identifying a poor-quality surveillance video, despite the witness not being sufficiently familiar with the defendant.

The video, testified to by a homicide detective as purportedly showing the defendant, was the only evidence connecting the defendant to this Syracuse shooting. Previously viewing photos of the defendant is not enough. Though the detective knew defendant for a year and a half and could describe him physically, the officer recalled only one specific previous date where he observed the defendant face-toface. This testimony was neither helpful nor reliable. Some factors to consider: the witness’s general familiarity with the individual, whether this familiarity spanned an extended period of time, whether this familiarity was around the time of the crime, and whether the defendant possessed a specific physical trait (such as a scar, distinctive gait or tattoo). Instead, this testimony usurped the province of the jury (as opposed to merely assisting them in making an independent assessment), as the defendant was not wearing a disguise and had not changed his appearance since the crime.

The quality of the surveillance footage is another factor. During deliberations, the jury unsuccessfully sought a magnifying glass in order to view the video better. All of this is the People’s burden to establish. A thorough record must be made to afford appellate review. Cautionary instructions are also to be considered best practice. At bar, the video was of poor quality and the defendant did not possess a distinctive physical trait. The jury was thus equally well-positioned to identify the defendant and was not aided by the testimony in question. It also didn’t help that the lay witness in question was a member of law enforcement, who would likely be more credited by the jury. The evidence of guilt was not overwhelming. In sum, in light of all the circumstances, the admission of this improper lay noneyewitness identification testimony

constituted an abuse of the trial court’s discretion. The error was not harmless. Judge Rivera authored a concurrence, observing that surveillance videos of such poor quality (where the jury cannot discern the perpetrator’s physical characteristics) are inadmissible as a matter of law. If the image is clear, it is still inadmissible where the jury can make their own observations and compare it with the defendant in court, and the defendant’s appearance has not changed since the recorded event. Though agreeing with its conclusion, Judge Rivera disagreed with the majority’s totality of the circumstances approach, which could increase the likelihood of misidentification (especially where a member of law enforcement testifies or there exists a cross-racial dynamic). Despite this, Judge Rivera observed that a defining physical feature (like a tattoo or perhaps wearing a distinctive sweater the witness knitted for the defendant) could be a factor in excusing an otherwise blurry video or photo. Low quality video evidence should not, however, be improperly bolstered.

People v. Fisher

2024 NY Slip Op 02129

This is a unanimous reversal of the Third Department regarding a drug possession prosecution. The Chief Judge authored the opinion.

Here, a sworn juror untimely informed the trial court that after the first day of jury selection the defendant had followed her home in his car. Though mistaken, the juror was certain in her belief. The facts establish this juror was “grossly unqualified” pursuant to CPL 270.35, as she “possessed a state of mind which would prevent the rendering of an impartial verdict.” See, People v. Buford, 69 NY2d 290, 298 (1987). A new trial was ordered.

Though the court elicited some assurances of impartiality from the juror that she would put side her concerns, those

responses were insufficient under the circumstances. Assurances of impartiality “are not magic words.” A sworn juror must be dismissed if the record clearly demonstrates that he or she cannot render an impartial verdict. Bias harbored directly against a defendant strikes at the core of the right to an impartial jury. There must be a showing that the bias will not affect the verdict. At bar, juror number 6 had a specific bias (stemming from out-of-court events) regarding the defendant’s character. She never stated she stopped believing that the defendant followed her or that she was no longer in fear -- only that she would follow the trial court’s instructions. Indeed, she was 95 % sure the incident occurred. Moreover, the juror failed to timely report the incident to the court; instead she waited three days to reveal her concerns -- after the case was submitted to the jury. Context is critical. The trial court’s conclusion that the juror was most likely wrong in her beliefs about the purported incident further supported removing her as a juror. Finally, the juror’s assurances of impartiality weren’t even unequivocal. The defendant’s motion for a mistrial should have been granted.

People v. Dunton 2024 NY Slip Op 02130

This 6 to 1 decision is a successful People’s appeal, authored by Judge Rivera. A visiting judge (Justice Aarons of the Third Department) dissented. The AD erred in granting the defendant’s writ of error coram nobis petition. Because a prior warning was not practical under the circumstances, it did not violate the defendant’s statutory (CPL 260.20) and constitutional (US Const., amend. VI; NY Const., art. I, § 6) rights to be present during the entire announcement of the verdict; appellate counsel was thus not ineffective for omitting this non-meritorious claim.

The defendant was on trial for a Manhattan shooting. The court and law enforce-

ment considered the defendant a security threat. He had a number of violent outbursts while detained at Rikers Island, leading to 6 or 7 pending indictments. As the trial went on, the court was appraised of the defendant’s continued violent (out of court) conduct, including his punching a corrections officer. There was strict security during his transportation to court. Security measures continued while in court as well.

Defendants have a right to be present for all material stages of the trial, including the reading of the verdict and polling of the jury. People v. Sanders, 39 NY3d 216, 221 (2023). CPL 260.20, however, permits a defendant’s removal where he or she is disorderly or disruptive. A trial court may dispense with constitutional and statutory warnings where they are impractical to give. At bar, notice of the defendant’s violent conduct outside of court led the judge and law enforcement to be on heightened alert of a potential in-court outburst during the reading of the verdict. Over the defendant’s objections, he was handcuffed. The foreperson read the guilty verdicts for the first five counts without incident. The defendant then interrupted and yelled at the jury and the judge three times, using profanity. The defendant was then removed from what was apparently a small courtroom. In his absence, the sixth and seventh guilty verdicts were announced.

On appeal, appellate counsel raised a number of issues but omitted the defendant’s removal from court during the reading of the verdicts. After the Second Department decided People v. Antione, 189 AD3d 1445, 1446 (2d Dept 2020), appellate counsel’s supervisor filed a coram nobis motion in support of the defendant’s ineffective assistance of counsel claim for failing to raise the court removal issue. The First Department granted the motion and ordered a new trial based on this purported mode of proceedings error. The Court of Appeals now reverses the AD.

The Court found the trial court to have properly exercised its discretion under the

circumstances, which included the defendant posing an imminent risk of harm. Even defense counsel was unable to control his client. A trial judge has the inherent authority and affirmative obligation to control conduct and decorum in court. This was a reasonable and on-the-spot decision by the court. Providing warnings here imperiled the safety of those inside the court.

Appellate advocacy is meaningful if it reflects a competent grasp of the facts, the law and appellate procedure, supported by appropriate authority and argument. See, People v. Alvarez, 33 NY3d 286, 290 (2019); People v. Stultz, 2 NY3d 277, 285 (2004). Appellate counsel, who was not required to raise every issue of merit, was not ineffective for not raising the court removal issue. Further, the majority is critical of appellate counsel’s coram nobis affirmation in support for not explaining why the issue in question was not considered.

The dissent accuses the majority of overstating the threat defendant posed and inappropriately expanding the practicality exception to having to provide a defendant warnings before removing him or her from court. The Court should be careful not to place too much emphasis on a defendant’s out-of-court behavior in arriving at this exception. Here, there was a sufficient opportunity to provide the defendant at least a one-sentence warning before ordering his removal. See generally, Illinois v. Allen, 397 US 337, 342343 (1970). Such a removal should be a rare occasion. Further, Parker warnings, which warn of the trial continuing if a defendant fails to appear, do not supersede CPL 260.20.

April 25, 2024

People v. Weinstein

2024 NY Slip Op 02222

This is easily the Court’s biggest Molineux decision in years. The First Department is reversed and a new trial is ordered. The infamous Harvey Weinstein, a powerful and

predatory Hollywood producer, was tried for three sexual assaults occurring in Manhattan hotels and an apartment. Though acquitted of several counts, the defendant was convicted of first-degree criminal sexual act and third-degree rape for incidents occurring in 2006 and 2013. The court sentenced him to 23 years in prison.

There was no physical evidence supporting the complainants’ testimony. The People, not surprisingly, were permitted by the trial court to stack the deck in the prosecution’s favor with three socalled Molineux witnesses who testified to uncharged tails of sexual misconduct. This was in addition to an extensive list of prejudicial Sandoval incidents. These issues were not harmless, but rather had a combined “synergistic effect” that deprived the defendant of a fair trial, compelling a 4 to 3 Court of Appeals to grant a new trial. Judge Rivera authored the 40page majority opinion. Judges Singas and Cannataro wrote separate dissents, joined by each other and Judge Garcia.

To begin with, the Court quickly rejected the defendant’s CPL 30.10 statute of limitations argument. The defendant leaving the state prior to the authorities learning of the allegations tolled the time under 30.10(4)(a) for when the prosecution had to bring the charges. Footnote 6, however, seems to leave the door open for a potential future argument to reject this tolling provision where there is a sufficient record of when law enforcement learns of the allegations in question.

People v. Molineux, 168 NY 264 (1901) stands for the propositions that defendants are presumed innocent and should only be tried on the instant charges, as opposed to uncharged prior propensitydriven evidence. Defendants should not have to face at trial irrelevant, prejudicial and untested allegations of prior bad acts. When not presented for the sole purpose of establishing an accused’s propensity to commit the charged offenses, the DA is permitted to present evidence which may include motive, intent, absence of mistake or accident, common plan or scheme

Continued on next page

Court of Appeals

Continued from previous page

and identity. But the trial court must first weigh the probative value against its prejudicial effect. The majority does a full exploration of the premise behind Molineux See, e.g., People v. Vargas, 88 NY2d 856, 857 (1996); People v. Alvino, 71 NY2d 233, 241-242 (1987); People v. Ventimiglia, 52 NY2d 350, 359 (1981). Indeed, propensity evidence has a bias-inducing effect that undermines the truthseeking function of a criminal trial.

The defendant was a well-known powerhouse in the entertainment industry, legendary for coercing young women (his professional subordinates) into quid quo pro sexual exchanges to advance their careers. The trial testimony included what might be described as ambiguous responses by the complainants, as well as subsequent relationships following the indicted incidents. The prosecution witnesses included a forensic psychiatrist and an expert in rape trauma syndrome, who addressed complainants familiar with their attackers and those who do not promptly report the crimes. Though purportedly presented for purposes of establishing the defendant’s intent and for understanding the complainants’ lack of consent, the uncharged allegations here had no material non-propensity purpose. The majority concluded that Molineuxbased evidence of intent is only admissible where the criminal acts are equivocal to the extent that a defendant’s intention is not easily inferred from the criminal acts alone. The admission of prior uncharged conduct was unnecessary and improper, as it impermissibly bolstered the complainants’ credibility. The trial court’s limiting instructions did not sufficiently protect the defendant’s right to a fair trial.

The Sandoval list of prior criminal, vicious or immoral acts (supposedly) relevant to veracity permitted for potential cross-examination by the trial court was frankly over the top. People v. Sandoval, 34 NY2d 371, 374 (1974). Among other things, it included the defendant purportedly directing his wife to lie, hiding women’s clothing, scheduling a business

meeting under false pretenses, throwing staplers at people, abandoning a colleague by the side of a road in a foreign country and throwing a table of food. Like Molineux, the potential admission of Sandoval evidence must be balanced between its probative value and prejudicial effect and is ultimately reviewed under an abuse of discretion standard. These “breathtakingly inclusive” examples of bullying, fits of anger and verbal abuse of subordinates had little, if any, connection to evaluating the defendant’s veracity. What reasonable defendant is going to take the stand and face the impact of this avalanche of impeachment? In sum, the trial court abused its discretion in its rulings on both of these issues.

The dissenting judges concluded the majority was closing its eyes to the enduring effect of rape culture on notions of consent. This was not, as the majority opines, merely a “credibility contest.” Consent in the context of sexual violence is often a complicated concept, at times involving previous flirtation and intimacy between the parties. Consent is not something to be negotiated, bargained or coerced. Despite the expert testimony on sex crime victims and consent presented in support of the prosecution, the majority’s decision, according to the dissent, will allow “predators to escape accountability.” Moreover, the trial court “winnowed” down the prosecutor’s proposed five Molineux witnessed to just three. And limiting instructions were provided to the jury.

More commentary: While dissenting Judge Singas complains that under the circumstances of this case, the jury was permitted to “look for objective signs of non-consent,” that is exactly what a criminal jury in a sex crime prosecution is supposed to do: afford every reasonable benefit of the doubt to the defendant. What Judge Singas condemns as a created “presumption of consent” to sexual intercourse is actually the presumption of innocence at work.

More commentary: Judges Troutman and Halligan both recused themselves

from this case. As it turned out, the four-judge majority of the Court included two visiting AD justices. This practice of vouching in AD justices (usually the presiding justices) is not new, but its recent frequency is not without its critics.

People v. Baez

2024 NY Slip Op 02225

This is a 5 to 2 affirmance of a controlled substance conviction, authored by Judge Cannataro. Judge Rivera authored the dissent, joined by the Chief Judge. The Court rejected the defendant’s chain of custody argument. The Second Department is affirmed.

The defendant was pulled over for using his cell phone while driving. An envelope containing a white substance (cocaine) was found in the defendant’s possession. Inside the envelope was a plastic glove and a smaller bag containing 45 smaller Ziploc packets.

Before admitting an item into evidence that is seized at a crime scene, the People must establish the item is indeed the object recovered and is substantially unchanged. A fungible item like cocaine requires that all who handled the item identify it and testify to its custody and unchanged condition. Gaps in the chain of custody may be excused where the circumstances provide reasonable assurances of the identity of the item and its unchanged condition. Such gaps go to the weight of the evidence, not its admissibility. These gaps, however, will not be excused where there are clear and material discrepancies regarding the condition, appearance or handling of the contraband -- leaving no reasonable assurance that the evidence was not altered during the gap in custody. But brief and logical explanations may be provided or reasonably inferred from the circumstances. Such discrepancies, such as those that occurred at bar, merely raise weight and credibility issues to be resolved by the jury.

At bar, the People called every witness who handled the evidence from seizure to

trial, except those who merely transported the sealed evidence between locations. The People provided reasonable assurances of the identity and unchanged nature of the evidence. With that said, the majority provides some warning in dictum that it does not condone “the seemingly careless manner in which the items [in question] were described.” “Imprecision and inaccuracy in police paperwork not only impede the prosecution of crime, they erode public confidence in law enforcement and lend credence to allegations of incompetence and misconduct.”

As Judge Rivera observed in dissent, the bag of drugs in question recovered was torn and pouring out at the scene. Yet somehow this transformed into an unripped bag. The majority makes up for the missing links in custody through speculation. It is the judiciary’s role to be the gatekeeper of this issue. To be admissible, fungible evidence must be identical to that involved in the crime and, of course, not be tampered with. At bar, there was discrepancy in the grand jury and trial testimony regarding the condition of this evidence. No explanation was offered for how the ripped bag reached the crime lab undamaged. Then there is the latex glove that disappeared and was not photographed. Even the weight of the drugs was not consistent in the paperwork. All of this casts suspicion on the integrity of the evidence. The People failed to establish by clear and convincing evidence that the condition of the evidence was substantially unchanged. The chain of custody case law safeguards against wrongful convictions. Moreover, the primary officer in this case, who has had an adverse credibility finding in the past, provided different versions regarding how the item was packaged and how much the item weighed. It also didn’t help that the defendant represented himself at trial.

People v. Franklin

2024 NY Slip Op 02227

This is a 5 to 2 successful People’s appeal, authored by Judge Halligan. Visit-

ing judge, Justice Aarons of the Third Department, authored the dissent. The criminal justice agency (“CJA”) interview report was not testimonial and subject to the Sixth Amendment Confrontation Clause and Crawford v. Washington, 541 US 36, 51 (2004) protections for cross-examination. The document was not created for the purpose of serving as trial testimony. The Second Department, which reversed the defendant’s weapon possession conviction, is reversed.

A gun was discovered in the basement of the defendant’s Queens home. Prior to being arraigned, the defendant was interviewed by a CJA employee, a standard practice in New York City. The CJA is funded by NYC and collects info and provides pretrial services -- analogous to a probation department. Its purpose is to make pretrial release and bail recommendations for the court. In the interview report was the defendant’s pedigree info, including his 168th Street address. This form is filled out regardless of the facts of the case.

There was no physical evidence (i.e., DNA or fingerprints) connecting the defendant to the gun. Though no CJA employee testified at trial, the People were permitted to move the interview form into evidence, thus connecting the defendant to the location where the gun was recovered. There was no opportunity for cross-examination. The Court of Appeals abandoned the “essential element” Crawford test (i.e., People v. Pacer, 6 NY3d 504 (2006)) in favor of the US Supreme Court’s “primary purpose” test. See, Melendez-Diaz v. Massachusetts, 557 US 305, 307-308 (2009); Bullcoming v. New Mexico, 564 US 647, 651 (2011). If the primary purpose was to establish past events relevant to a later prosecution (an out of court testimonial substitute), the item is testimonial. Where an objective witness would reasonably believe the document would be available for use at a later trial, it is testimonial. Despite its consequences for a defendant’s liberty and its relevance to this particular trial,

the administrative CJA document does not qualify.

The dissent disagreed, as the report indicated that the defendant’s mother verified where the defendant resided. This report, a fact-finding tool for the trial court, was testimonial and the People’s only witness statement. Not participating in the CJA interview process would threaten the defendant’s liberty.

Find NYSACDL on Facebook, LinkedIn, X and Instagram.

CLE

MIKE BAKER & ANDRE VITALE, CO-CHAIRS, CLE COMMITTEE

2024 Seminars

Central New York CLE Seminar: Advanced Trial Skills and Mock Trial Finals

Friday, October 18 & Saturday, October 19

Onondaga County Community College

More information: bit.ly/NYSACDL101824

Law @ Lunch Webinar: Rape, Shoplifting, Hate Crimes, and Other Recent Changes in the Penal Law

Thursday, October 24, 2024 - 1:00pm–2:00pm Online via Zoom

More information: bit.ly/NYSACDL102424

Superstar Trial Seminar 2024

Friday, November 1

United States District Court, Buffalo, NY

More information: bit.ly/NYSACDL110124

Persuasive Communication in the Courtroom Seminar

Friday, November 15

Legal Aid Society of Westchester County Training Center, White Plains, NY

More information: bit.ly/NYSACDL111524

Weapons for the Firefight 2024

Friday, December 6

New York Law School, New York, NY

More information coming soon: bit.ly/NYSACDL120624

NYSACDL is noted for our innovative, interesting and informative CLE programs, which we present at various locations around the state each year.

Seminar registration & information available at: www.nysacdl.org

Questions?

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

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: Stephen Preziosi

Vice Chair: Claudia Trupp

Members: Alan Lewis, Nathaniel Marmur, Timothy Murphy, Donald Rehkopf, Claudia Trupp, Richard Willstatter

ANNUAL DINNER COMMITTEE

Chair: Jessica Horani

Vice Chair: Kevin Stadelmaier

Members: Steve Epstein, Alice Fontier, Renee Hill, Andy Kossover, Yung-Mi Lee, Lindsay Lewis, Brian Melber, Claudia Trupp

BY-LAWS AND GOVERNANCE COMMITTEE

Chair: Brian Melber

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

CONDITIONS OF CONFINEMENT TASK FORCE

Chair: Richard Willstatter

Members: Joseph DeMatteo, Alexis Epstein, Steven Epstein, Allegra Glashausser, Michelle Grant, Timothy Hoover, Seymour James, Jr., Hon. David Lewis (Retired), Prof. Michael Mushlin, James Neuman, Eli Northrup, Norman Reimer, Eric Seiff, Martin Tankleff, Sarena Townsend, Howard Weiner

CONTINUING LEGAL EDUCATION COMMITTEE

Chairs: Michael Baker, Andre Vitale

Vice Chair: Renate Lunn

Members: Samuel Braverman, Lori Cohen, Steven Epstein, John Ingrassia, Andy Kossover, Jessica Kulpit, Yung-Mi Lee, Peter Mitchell, Jill Paperno, Adam Shlahet, Kevin Stadelmaier, John S. Wallenstein, Rob Wells

FEDERAL PRACTICE / WHITE COLLAR

CRIME COMMITTEE

Chair: Samuel Braverman

Vice Chair: Grainne O’Neill

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

FINANCE COMMITTEE

Chair: Samuel Braverman

Members: Steven Epstein, Seymour James, Alan Lewis, Kevin Stadelmaier

JUDICIAL SCREENING COMMITTEEE

Chair: Alan S. Lewis

Vice Chair: Jill Paperno

Members: Derek Andrews, Samuel Braverman, Xavier Donaldson, Alice Fontier, Jamal Johnson, Greg Lubow, Nathaniel Marmur, Timothy Murphy, Donald Thompson, Claudia Trupp

JUSTICE COURTS COMMITTEE

Chair: Greg Lubow

Vice Chair: Laura Fiorenza

Members: Jenny Cheung, Clare Degnan, Thomas Donaldson, Lucien Elliott, Steven Epstein, John Ingrassia, Mark Juda, Robert Knightly, Greg Magnell, Dennis Nave, Ira Pesserilo, Alvin Spitzer, Joseph Tock, Michael Viscosi, Menachem White, Sandra Williams

LAWYERS STRIKE FORCE

ASSISTANCE COMMITTEE

Chair: Steve Epstein

Vice Chair: Jessica Horani

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

LEGISLATIVE COMMITTEE

Chair: Kevin Stadelmaier

Vice Chair: Yung-Mi Lee

Members: Matthew Bova, Laura Fiorenza, Alice Fontier, Andrew Kossover, Leanne Lapp, Greg Lubow, Amy Marion, Michael McDermott, Brian Melber, Eli Northrup, Jill Paperno, Sherry Levin Wallach

MEMBERSHIP COMMITTEE

Chair: Ilona Coleman

Vice Chair: Jill Paperno

Members: Stephanie Batcheller, Samuel Braverman, Jonathan Cohn, Ilona Coleman, Steven Epstein Laura Fiorenza, Jessica Horani, Jamal Johnson, Kendea Johnson, Leanne Lapp, Alan Lewis, Greg Lubow, Renate Lunn, Brian Melber, Grainne O'Neill, Hilary Rogers, Frederick Sosinsky, Claudia Trupp, Richard Willstatter

MOTOR VEHICLE ISSUES COMMITTEE

Chair: Randall Inniss

Members: Derek Andrews, David Arpino, Jonathan Cohn, Steven Epstein, Dan Friedman, William Furber, Zev Goldstein, Barry Jacobson, Andrew Kossover, Greg Lubow

PROSECUTORIAL AND JUDICIAL COMPLAINT COMMITTEE

Chair: Noreen McCarthy

Vice Chair: Fred Sosinsky

Members: Chandra Gomes, Russell T. Neufeld, Marvin Schechter

Advisory Member: Bennett Gershman

PUBLICATIONS COMMITTEE

Chair: John Wallenstein

Vice Chair: Grainne O’Neill

Members: Cheryl Meyers Buth, Mehdi Essmidi, Jessica Horani, Timothy Murphy, Joseph Rochman

STRATEGIC PLANNING COMMITTEE

Chair: Brian Melber

Members: Steven Epstein, Yung-Mi Lee, Jill Paperno, Kevin Stadelmaier

WOMEN IN CRIMINAL DEFENSE COMMITTEE

Chair: Lindsay Lewis

Vice Chair: Hilary Rogers

Member list forthcoming

NYSACDL Membership

PRESIDENT:

The Largest Criminal Defense Bar Association in New York State

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

Steven Epstein, Garden City

PRESIDENT-ELECT:

Jessica A. Horani, Manhattan

FIRST VICE PRESIDENT:

Kevin M. Stadelmaier, Buffalo

VICE PRESIDENTS:

John Ingrassia, Newburgh

Seymour W. James Jr., Manhattan

Alan S. Lewis, Manhattan

Jill Paperno, Rochester

Claudia Trupp, Cragsmoor

SECRETARY:

Grainne E. O'Neill, Brooklyn

TREASURER:

Samuel Braverman, Manhattan*

DIRECTORS

Michael T. Baker, Binghamton

Stephanie Batcheller, Albany (NYSDA Designee)

Jacqueline E. Cistaro, Manhattan

Ilona Coleman, Bronx

Xavier R. Donaldson, Manhattan

Drew Dubrin, Rochester

Laura A. Fiorenza, Syracuse

Randall Inniss, Suffern

Kendea Johnson, Manhattan

Jessica Kulpit, Buffalo

Leanne Lapp, Canandaigua

Lindsey Lewis, Manhattan (NACDL Designee)

Greg Lubow, Tannersville

Nathanial Z. Marmur, Manhattan

Noreen McCarthy, Keene Valley

Michael McDermott, Albany

Hilary Rogers, Plattsburgh

Donald Thompson, Rochester

Andre A. Vitale, Jersey City

Sherry Levin Wallach, White Plains

EXECUTIVE DIRECTOR:

Jennifer Ciulla Van Ort, Clifton Park

LIFE MEMBERS: (As of 9/25/24)

Daniel Arshack

Wayne C. Bodden

Peter E. Brill

David J. Cohen

Lori Cohen

Terrence M. Connors

Anthony Cueto

Gerard M. Damiani

Edgar De Leon

Joshua L. Dratel

Steven B. Epstein

Mark A. Foti

Russell M. Gioiella

Lawrence S. Goldman

James Grable

Renee Hill

Timothy W. Hoover

John Ingrassia

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

SUSTAINING MEMBERS: (As of 9/25/24)

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

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.

2025 Membership Application

Please Select A Membership Level:

PRESIDENT'S CLUB MEMBERSHIP

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

Note - All Prices Include $15 Donation To NYSACDL Foundation - Check Here To Remove

Dues: $631; 12

12

PUBLIC DEFENDER MEMBERSHIP

Annual Dues: $176; 12 Monthly Payments: $14.67 - Available to anyone whose practice includes more than 50% defense of indigent clients.

ATTORNEY MEMBERSHIP Annual Dues: $176; 12 Monthly Payments: $14.67 - Available to anyone practicing less than 5 years or annual criminal defense income is less than $50,000. RETIRED ATTORNEY MEMBERSHIP

RECENT LAW SCHOOL ALUMNI MEMBERSHIP

LAW STUDENT MEMBERSHIP

Address (If Different From Below):

Annual Dues: $244; 12 Monthly Payments: $20.33 - Non-lawyers who assist in the defense of criminal cases.

Dues: $114; 12 Monthly Payments: $9.50

Annual Dues: $87; 12 Monthly Payments: $7.25 - Within 1 year from graduation.

Annual Dues : $0 - Free Law School: Date of Completion:

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

of Birth: Website: City, State Zip:

Honors, Awards & Publications:

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.

“Miss Jean Louise, stand up. Your father’s passin’.”Townsfolk stand and pay their respects to Atticus Finch after the jury conviction of Tom Robinson in one of the most poignant scenes of Harper Lee’s great American classic To Kill a Mockingbird Original painting, © 2004 by the artist Trevor Goring • limited edition prints available, www.imagesofjustice.com

636 Plank Road, Ste. 215

Clifton Park, NY 12065

Phone: 518-443-2000 Fax: 888-239-4665 U.S.

atticus@nysacdl.org www.nysacdl.org