Friday, October 17, 2014

Overcriminalized: America's use of incarceration as a response to mental illness, substance abuse, and homelessness

This series of short YouTube videos by Brave New Films examines the overuse of incarceration and, in the case of the mentally ill, force - too often deadly physical force - as a means to control those who are unable to toe the imaginary line of the social compact, thereby frightening the rule-bound and risk-averse.  The first video, for example, examines the social and economic benefits to utilizing officers and agencies trained in crisis intervention training when responding to those in mental health crisis, an all-to-common component of modern police work.

Given the obvious benefits, "Why wouldn't you do this?" asks one of the implementers of the training program for officers. The answer, sadly, comes not infrequently from the officers required to participate the crisis intervention training: "I'm a cop, I'm not a social worker; I don't believe in this B.S.," which roughly translated, sounds like "a little more force will solve the problem," a mindset that sometimes leads to shooting unarmed teenagers or choking people to death outside of Staten Island convenience stores for the tax code violation of selling loose cigarettes.

H/T Paul Layton

Tuesday, October 14, 2014

Family Court: An under utilized resource for the criminal defense attorney

Family court proceedings can be the ultimate source of discovery for the criminal defense attorney. Where a child neglect/abuse petition is filed in family court against a parent of a child or a "person legally responsible" for a child, there is often a companion criminal case.  The allegations in both venues are often identical.  Despite this, criminal defense attorneys (in my experience) seldom contact a client's family court attorney or observe the family court proceedings.  The advantages of having a "companion" family court case are numerous.

Upon the filing of a child abuse/neglect petition under Article 10 of the Family Court Act, an initial court appearance is scheduled within days.  During this appearance, the Respondent (the parent or person "legally responsible" of/for a child) is entitled to an immediate evidentiary hearing (a "1027 hearing" pursuant to Section 1027 of the family Court Act) to determine whether that child should be legally removed from that parent's care during the pendency of the family court proceeding. Witnesses will be called at this hearing and will be subject to cross examination.  Hearsay is admissible at this stage of the proceedings, however the primary Child Protective Services case worker who conducted the "investigation" as to the allegations of child abuse/neglect will most often be the witness called to testify.  That case worker is usually the individual who conducted the interview of the child.

The family court attorney may decide not to request such a hearing on behalf of the client during theses early stages of the proceedings, opting instead to reserve the client's right to a hearing for the return of the child at some point in the future (usually to give the client an opportunity to begin substance abuse treatment for example if there are allegations of substance abuse leading to the initial removal of the child).  Such a hearing is referred to as a "1028 hearing" pursuant to Section 1028 of the Family Court Act.

It may be more advantageous to the client to have certain witnesses cross examined early on in family court in order to assist in the defense of the criminal charges, rather than to wait   The criminal defense attorney may be deciding whether to waive a case to the grand jury without the benefit of discovery.  The Family Court "1027 hearing" may assist a great deal in exploring the allegations.

In addition to the "1027 and 1028 hearings", the Respondent in Family Court child neglect/abuse proceedings is ultimately entitled to a "fact finding hearing" to determine whether the child or children have been abused or neglected by the Respondent(s).  Hearsay is not admissible at this stage of the proceedings, with the exception of a child's hearsay statements if such statements pertain to neglect or abuse and are corroborated.  Consequently, the criminal defense attorney has the potential to gain discovery from two separate evidentiary hearings during which there will evidence pertaining to the very same allegations forming the basis of the "companion" criminal charge(s).

There is more even.... The family court attorney has access to the entire file compiled by the Department of Human Services.  Such a file is truly invaluable.  The Child Protective Case Worker(s) assigned to the case complies the contents of this file.  Child Protective Case Workers write everything in their notes!! I am often surprised by the detail that is included, details of conversations and observations that are often not helpful to them or their case, and often very helpful to yours! Such notes will include details regarding the interview of the child that you will not see in any document generated by law enforcement.

Thursday, October 9, 2014

When can the five day time limit to file a motion to dismiss an indictment based on violation of the defendant's right to testify before the grand jury be extended?

Lets take a trip down memory lane to the ‘80s: a time when hair was big, music was bad, and some important cases that are still good law concerning grand jury practice and, in particular, motions to dismiss an indictment pursuant to CPL § 190.50 based on a violation of the defendant’s right to testify before the grand jury were being decided. 

With respect to grand jury proceedings, the district attorney has a “duty of fair dealing to the accused” (People v Pelchat, 62 NY2d 97, 105 [1984]; see also, People v Lancaster, 69 NY2d 20, 26 [1986]) and to the court (People v Ianniello, 21 NY2d 418, 424 [1968]).  This duty of fair dealing encompasses an obligation to ensure fairness in grand jury submissions (People v Pelchat, supra; People v Jordan, 153 AD2d 263 [2nd Dept 1990]; People v Russo, 128 Misc2d 876, 880 [Co Ct Suffolk Co 1985]), which includes notice of the grand jury proceedings that gives a defendant a reasonable opportunity to exercise his right to testify, not mere technical compliance with minimum statutory notice requirements (People v Davis, 133 Misc2d 1031 [Sup Ct Queens Co 1986]; People v Martinez, 111 Misc2d 67 [Sup Ct Queens Co 1981]; People v Rakity, 77 Misc2d 324 [Sup Ct Suffolk Co 1974]; People v Randazzo, 171 Misc2d 541 [Sup Ct Kings Co 1997] [one day’s notice is not reasonable notice]).

Under CPL § 190.50(5)(c) a defendant may move to dismiss an indictment on the grounds that he was denied the opportunity to testify before the grand jury.  Such a motion is waived, however, if not made within five days of arraignment (see also, People v Jones, 187 AD2d 750 [3rd Dept 1992], lv den, 81 NY2d 790 [1993]), although in some cases, discussed below, that five-day deadline may be extended.  

Defense counsel’s failure to have a defendant testify at the grand jury does not, per se, constitute ineffective assistance of counsel (People v Jiminez, supra; see also, People v. Wiggins, 89 NY2d 872 [1996]), however actions of counsel that deprive a defendant of a meaningful opportunity to testify before the grand jury constitutes ineffective assistance.  For example, when notice of opportunity to testify before the grand jury is provided to defense counsel, failure to timely make defendant aware of such notice or otherwise protect defendant’s right to testify (by failing to provide the People with written notice of the defendant’s desire to testify, for example) is ineffective (see, People v Jiminez, supra; People v Prest, 105 AD2d 1078 [4th Dept 1984]; see also, People v Crown, 216 AD2d 484 [2nd Dept 1995]). 

Where a defendant is incapacitated at the time of the presentation to the grand jury, the indictment may be dismissed with leave to represent (People v Bakulas, 95 AD2d 813 [2nd Dept 1983]). Likewise, where defendant was represented at the time of the grand jury proceeding by counsel who rendered ineffective assistance the defendant may be considered legally “incapacitated” for purposes of exercising his right to testify, warranting extension of the time to file a motion pursuant CPL § 190.50 to a period of five days following the appointment of new counsel (see, People v Stevens, 151 AD2d 704 [2nd Dept 1989] [Five day time period for motion to dismiss held inappropriate where defendant unrepresented]; People v Moskowicz, 192 AD2d 317 [1st Dept 1993] [Five day time period inappropriate where prior counsel was ineffective]; see also, People v Hooker, 113 Misc2d 159 [Sup Ct Kings Co 1982]).  

A good example of a situation in which the five day period for a § 190.50 motion may be extended is provided by People v Prest, 105 AD2d 1078 [4th Dept 1984].  In Prest, the defendant was originally represented by a public defender for purposes of arraignment on the felony complaint.  After being indicted, defendant alleged that she was not advised of her right to testify before the grand jury by her public defender, and new counsel was assigned.  Within five days of being assigned, defendant’s new counsel moved for dismissal of the indictment pursuant to CPL § 190.50(5), based on denial of defendant’s right to testify before the grand jury.  County Court denied defendant’s motion and defendant thereafter pled guilty.  The Fourth Department reversed defendant’s conviction and dismissed the indictment, reasoning that
. . . the circumstances here militate against a strict application of the five day requirement (CPL 190.50, subd. 5, par. [c]) . . . Assigned counsel promptly moved within five days of his appointment to dismiss the indictment on the ground that defendant had improperly been denied her right to testify before the Grand Jury.
see also, People v Mason, 176 AD2d 356 [2nd Dept 1991] [five day period extended where new counsel is assigned]; People v Backman, 274 AD2d 432 [2nd Dept 2000] [same].  Further, at least one lower court has reasoned that “[i]t is quite possible that holding the defendant to the five day limitation in these circumstances could violate the defendant’s due process rights” (People v Onyeabor, 8 Misc3d 310, 314, n 10 [Sup Ct Kings Co 2005] citing Santobello v New York, 404 US 257 [1971]).

Circumstances giving rise to the filing of what would otherwise be an untimely § 190.50 notice can arise in several ways.  For example, counsel who represents the defendant at arraignment never meets with the defendant and advises him concerning his right to testify before the grand jury, or having determined that the defendant wishes to testify, counsel fails to notify the District Attorney in writing of defendant’s desire to testify.  Sometimes, counsel who is not present at arraignment is assigned thereafter, but never meets with the defendant before the grand jury votes an indictment.  Other times, counsel may appear with the defendant at arraignment and announce a conflict of interest and new counsel may not be assigned until after the indictment is voted, leaving the defendant unrepresented during the entire pre-indictment period and often, with the notice of his right to testify having been served on an attorney who does not represent the him (conflicted counsel who is present at arraignment) and who cannot advise him concerning his right to testify.  

Where the motion papers demonstrate that the defendant’s right to testify before the grand jury has not been “scrupulously protected,” the “mandatory language” of CPL § 190.50(5) “creates what is a ministerial duty on the part of the court to dismiss an indictment obtained in violation of a defendant’s right to appear before the Grand Jury” (Matter of Borrello v Balbach, 112 AD2d 1051 [2nd Dept 1985]; see also, People v Mason, 176 AD2d 356 [2nd Dept 1991]; People v Greenfield, 178 AD2d 653 [2nd Dept 1991]; People v Degnan, 246 A.D.2d 819 [3rd Dept 1998]).

Saturday, October 4, 2014

Federal Standing: Don’t Take it Lying Down

When you file a suppression motion in federal court, certain things will almost always happen. First, the government will threaten to withdraw offers of resolution and foreswear any future motion for acceptance of responsibility points for your client. (Whether this is proper or not is a topic for a future blog.)

Second, the government will challenge your client’s "standing" to make the suppression motion and demand a declaration from your client or, if you have already provided a declaration, the government will claim the declaration is insufficient. This will happen in almost every case.

The government will invariably couch its challenge to your client’s right to protest an illegal search in terms of "standing." The United States Supreme Court, however, has not adopted the use of this common law term to define the limits of Fourth Amendment protection. Rather the Court has stated that the "definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing." Rakas v. Illinois, 439 US 128, 140 (1978). You don’t have to use the term "standing" if the Supreme Court doesn’t and it is usually better to frame your issue in terms of your client’s privacy expectations.

"the Fourth Amendment protects people, not places"

This is a classic quote from Katz v. United States, 389 U.S. 347, 351 (1967). In Katz, the government tried to avoid the warrant requirement for taping phone calls by attaching an eavesdropping device to the outside of a public telephone booth. Rejecting the government’s property­-based standing argument, the Supreme Court affirmed the suppression of the recordings and held that a "Fourth amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable." Katz, 389 U.S. at 361 (Harlan, J. concurring) (cited in Kyllo v. United States, 533 U.S. 27, 33 (2001).

After Katz, the government continued its efforts to cordon off Fourth Amendment protection to property rather than people, usually arguing that if a person doesn’t have property rights for a location or a thing, he or she has no reasonable expectation of privacy to protest the search or seizure. Courts have resisted this argument in certain contexts, see United States v. Gargiso, 456 F.2d 584 (2d Cir. 1972) (holding that a person has a right to privacy in a hotel room and the hotel clerk can’t consent to the search), while yielding to it in others, see California v. Greenwood, 486 U.S. 35, 41 (1988) (holding a person has no expectation of privacy in discarded trash waiting for pickup by trash collector).

The Two Minnesota Cases

In Minnesota v. Olson, 495 U.S. 91 (1990), the Supreme Court held that an overnight guest enjoys an expectation of privacy that society deems legitimate. The Olson language is inclusive and should be used to resist the government’s efforts to contract the boundaries of Fourth Amendment protection:
We stay in others' homes when we travel to a strange city for business or pleasure, when we visit our parents, children, or more distant relatives out of town, when we are in between jobs or homes, or when we house­sit for a friend. We will all be hosts and we will all be guests many times in our lives. From either perspective, we think that society recognizes that a houseguest has a legitimate expectation of privacy in his host's home.
495 U.S. at 498.

In contrast to Olson stands another Minnesota case: Minnesota v. Carter, 525 U.S. 83, 98­, 99 (1998) (holding that occupants of an apartment who were using the apartment solely for the illegal commercial purpose of bagging cocaine lacked an expectation of privacy sufficient for Fourth Amendment protection).

The government will always urge the court to employ Carter, while the defendant will argue for an application of Olson. In advancing the Olson argument, it is important to emphasize that the issue is
the privacy interest of the guest, not the actual "overnight" status of the guest, and that Carter is the exception, not the rule. And in United States v. Fields, 131 F.3d 313, 321 (2d Cir. 1997), the Second Circuit set forth a slightly more expansive rule than that in Olson: "any guest, in appropriate circumstances, may have a legitimate expectation of privacy when he is there ‘with the permission of his host, who is willing to share his house and his privacy with his guest,’" even when the apartment was also used for drug packaging. Also, in United States v. Pollard, 215 F.3d 643, 647-­48 (6th Cir. 2000), the Sixth Circuit held that a guest who was present at the premises for a commercial drug sale, but who had also previously stayed at the premises and had personal property there, was protected by the Fourth Amendment.


Always view the government’s argument of lack of standing skeptically. Frame your issue in terms of privacy interests rather than common law standing. And remember the more vociferous the government challenges standing, the more it is signaling to you, and to the court, its reluctance to argue the constitutionality of the search or seizure at issue.

Posted o/b/o Bill Easton

Up Next from Bill: the filing of affidavits or declarations from your client to support suppression motions.

Sunday, September 28, 2014

Consulting With An Expert in a Child Sex Case Is More Than A Good Idea

In child sex cases in which these is no corroboration for the child's allegations, prosecutors frequently call a doctor to testify that the absence of any physical corroboration, even when the allegations are of years of anal or vaginal intercourse, is consistent with the allegations and do not undermine the complainant’s credibility.

Without consulting with an expert defense counsel is unable to effectively cross-examine and/or respond to the testimony of the People’s medical expert. Without such consultation, counsel cannot effectively establish, either through cross-examination of the prosecutor's expert or by presentation of a defense expert, what evidence of trauma doctor look for and was not present,  Nor can counsel effectively challenge the research supporting the prosecution expert's testimony or present the actual research findings.

 Thus, in granting federal habeas petitions in New York child sex cases in which the defense counsel neither consulted nor called a medical expert, the Court of Appeals for the Second Circuit has held that “because of the centrality of medical testimony, the failure to consult with or call a medical expert is often indicative of ineffective assistance of counsel.” (Gersten v Senkowski, 426 F3d 588,  607 [2d Cir 2005] [citing Eze v. Senkowski, 321 F.3d 110, 127-28 (2d Cir. 2003); Pavel v. Hollins, 261 F.3d 210, 224 (2d Cir. 2001); Lindstadt v. Keane, 239 F.3d 191, 210 (2d Cir. 2001)]).

The Second Circuit explained in Eze, in the context of a sexual assault case, that “[a] lesson to be learned from Lindstadt and Pavel is that when a defendant is accused of sexually abusing a child and the evidence is such that the case will turn on accepting one party’s word over the other’s, the need for defense counsel to, at a minimum, consult with an expert to become educated about the ‘vagaries of abuse indicia’ is critical. The importance of consultation and pre-trial investigation is heightened where, as here, the physical evidence is less than conclusive and open to interpretation.” Eze, 321 F3d at 128 (internal citations omitted).

As the Second Circuit has explained “[d]efense counsel may not fail to conduct an investigation and then rely on the resulting ignorance to excuse his failure to explore a strategy that would likely have yielded exculpatory evidence.” Gersten at 611.Thus, where counsel failed to make a reasonable  investigation that is reasonably necessary to the defense, a court will usually conclude that the decision not to consult with and/or call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland’s prejudice prong. (Gersten v. Senkowski, 426 F.3d at 611 [2d Cir. 2005]; Pavel v. Hollins, 261 F.3d at 223 [2d Cir. 2001]; Lindstadt v. Keane, 239 F.3d at 201 [2d Cir. 2001]).

Wednesday, September 17, 2014

The Parole Board can’t follow their own guidelines what’s the remedy?

Your client is an inmate serving a 3-9 sentence for Grand Larceny Third starting on November 2, 2011.  During his incarceration he is awarded Merit Time pursuant to Corrections Law § 805 on July 31, 2012 which qualifies him for release after serving 5/6 of his minimum. He was also awarded a Certificate of Earned Eligibility on two occasions July 31, 2012 and again on February 6, 2013. His parole eligibility date is June 5, 2013. Prior to his initial appearance before the Parole Board on February 26, 2013 the following were submitted; a personal statement, letters of support, a Parole Board Summary evidencing a clean disciplinary record, a proposed residence upon release, and a guideline release range of 18 - 30 months; a COMPAS Risk and needs Assessment Report evidencing a low risk to re-offend, abscond or for violence; and a letter from prospective employers offering full time employment.

On February 26, 2013, the three panel Board denied release and ordered a hold for an additional 24 months. The Board’s determination recited the boilerplate “there is a reasonable probability that you would not live and remain at liberty without violating the law and your release at this time is incompatible with the welfare and safety of the community”. The reasons offered by the Board to support this conclusion include the facts of the underlying offenses – Petitioner’s theft of large amounts of money from people who trusted him; the fact that Petitioner had some misdemeanor larceny convictions from the early 1980’s; and the fact that restitution and child support were owed by Petitioner. The decision of the Board failed to weigh, or even acknowledge, Petitioner’s exemplary prison disciplinary record, his positive programming, positive contributions to the prison community, and the support his family and friends would provide upon release. 

Now what? First the inmate files an administrative appeal which was not acted upon within four months. Therefore, NY Comp. Codes R. & Regs. Title 9, §8006.4(c) (2006) deems the inmate has exhausted all administrative remedies and can bring a petition pursuant to Article 78 which is exactly what we did on his behalf. In his decision dated July 20, 2104, Acting Supreme Court Justice Robert B. Wiggins in Livingston County  relying upon Matter of Wallman v. Travis, 18 AD3d 304 (1st Dept. 2005) concluded Correction Law Section 805 creates a presumption in favor of parole release for any inmate who, like petitioner, has received a certificate of earned eligibility and has completed a minimum term of imprisonment of eight years or less. Justice Wiggins further concluded, like Wallman, the Board’s conclusions that the petitioner would likely re-offend, primary focus on underlying crimes and its other proffered reasons “are either unsupported by the record, or simply make no sense.” The Court concluded the Board’s determination denying parole was “irrational bordering on impropriety”annulled the determination and although unable to grant release remitted for a de novo hearing specifically finding; 
[T]he Board must consider the appropriate factors in light of the “reasonable probability” standard under Correction Law § 805 (see Cappiello v. New York State Bd. Of Parole, 6 Misc3d 1010[A], 2005 NY Slip OP 51762[U] [2005], [Board’s role is to evaluate inmate’s current danger, not to resentence him by substituting its own opinion of the severity of his crime for that of the court]). Further, the Board’s determination must be stated in nonconclusory terms, as the statute requires (Executive Law § 259-I[2] [a]).
Challenging the denial of release couldn't be more straight forward. 

Monday, September 15, 2014

ETKS Partner Lawrence L. Kasperek to receive the 2014 Jeffrey A. Jacobs Memorial Award

Congratulations to our partner Larry Kasperek, the 2014 Jeffery A. Jacobs Memorial Award recipient.  The award is to be presented on September 20, 2014 at the Defense Community Dinner at the Rochester Institute of Technology, sponsored by the Monroe County Public Defender’s Office and the New York State Defender’s Association.  

Jeff Jacobs is remembered as an outstanding attorney and person who was a fierce advocate for his clients and proud of having tried more than 100 felony cases in his career.  Many of his trials were complex cases requiring familiarity with novel scientific theories and the development of effective trial strategies.  In addition, Jacobs was a role model and mentor for younger assistant public defenders, generously giving his time and encouragement.

The award recognizes a criminal defense attorney from the Monroe County area who has demonstrated these qualities, including in particular, zealous client advocacy in complex criminal defense litigation, which may include the effective use of experts and litigating forensic or scientific issues, fearless advocacy on behalf of the client, and creativity in the presentation of the client’s defense.

Past award recipients include Second Assistant Monroe County Public Defender Jill L. Paperno (2010), ETKS partner William T. Easton (2011), Assistant Federal Public Defender Anne M. Burger (2012), and Assistant Monroe County Public Defenders Elizabeth A. Riley and Emily L. Rosmus (2013).