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NYSBA FALL 2014 | VOL. 12 | NO. 4 New York Criminal Law Newsletter A publication of the Criminal Justice Section of the New York State Bar Association U.S. Supreme Court Issues Directive to Police Regarding Search of Cell Phones (See Riley v. California and United States v. Wurie discussed at pp. 6 and 16) “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.” —Chief Justice Roberts in Riley v. California, 134 S. Ct. 2473 at p. 2495, decided June 25, 2014 From the NYSBA Book Store Section Members get 20% discount* with coupon code PUB2271N The Practice of Criminal Law under the CPLR and Related Civil Procedure Statutes Sixth Edition Many attorneys whose practices consist solely of criminal matters are unfamiliar with the precise rules that apply to civil actions. Moreover many of those rules are scattered throughout New York’s Penal Law, Criminal Procedure Law and other statutes, and are difficult to find without the aid of an organizational reference. The Practice of Criminal Law under the CPLR and Related Civil Procedure Statutes, Sixth Edition, written by Judge Edward Davidowitz, solves this problem. This book pulls together in an orderly, logical way the rules and provisions of law concerning jurisdiction, evidence, motion practice, contempt proceedings and article 78 and habeas corpus applications—none of which is covered in the CPL or the Penal Law. The sixth edition of The Practice of Criminal Law under the CPLR provides amendments, and additional relevant case and statutory law in almost every chapter. The chapter on “Rules of Evidence” has been completely revised, expanding its discussions of privi- leges and new provisions in civil case and statutory law relevant to rules of evidence in criminal trials and proceedings. Author Contents Hon. Edward M. Davidowitz Service of Process Bronx County Supreme Court Motion Practice Product Info and Prices Procedures for the Disclosure and Release of Documents and Records 2013 / 230 pp., softbound of Courts and Government Agencies PN: 40699 Rules for Disclosure of Evidence in Civil Actions NYSBA Members $55 Contempt Provisions and Sanctions Non-members $65 Rules of Evidence Order multiple titles to take advantage of our low fl at Rules Relating Generally to the Competency, Qualifications, rate shipping charge of $5.95 per order, regardless Nature and Status of Witnesses and Judicial Notice of the number of items shipped. $5.95 shipping and handling offer applies to orders shipped within the Special Proceedings continental U.S. Shipping and handling charges for orders shipped outside the continental U.S. will be based on destination and added to your total. *Discount good until October 31, 2014. Get the Information Edge NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB2271N Table of Contents Page Message from the Chair Jury Duties ...........................................................................................................................................................4 (Mark R. Dwyer) Message from the Editor ..........................................................................................................................................5 (Spiros A. Tsimbinos) Feature Articles A Review of the 2013-2014 Term of the United States Supreme Court ............................................................6 (Spiros A. Tsimbinos) A Summary of the 2013 Annual Report of the Clerk of the New York Court of Appeals ............................8 (Spiros A. Tsimbinos) New York Court of Appeals Upholds Non-Retroactivity of Padilla Decision ................................................9 New York Court of Appeals Review ..................................................................................................................10 Recent United States Supreme Court Decisions Dealing with Criminal Law .........................................15 Cases of Interest in the Appellate Divisions....................................................................................................18 For Your Information Former State Senator Bruno Acquitted ................................................................................................................21 Upcoming Vacancy on New York Court of Appeals .........................................................................................21 Criminal Harassment Statute ................................................................................................................................21 New Family Court Judgeships ..............................................................................................................................21 Recent Signs Point to Improving Economy ........................................................................................................21 Aging Population ....................................................................................................................................................22 Number of Millionaires Hits Record ....................................................................................................................22 Crisis of Confi dence ................................................................................................................................................22 Improper Government Payments Estimated at $100 Billion ...........................................................................22 Commission on Prosecutorial Conduct ...............................................................................................................22 Federal Sentencing Commission Votes to Apply Reduced Drug Sentences Retroactively ........................22 One-Third of Americans Still Behind in Unpaid Debts and Face Debt Collections ....................................23 About Our Section and Members .......................................................................................................................24 NYSBA New York Criminal Law Newsletter | Fall 2014 | Vol. 12 | No. 4 3 Message from the Chair Jury Duties In voir dire I tell my prospective jurors that the jury the elements in writing?”—and lunch on the second day has been a cornerstone of the American criminal justice of deliberations. And we get all that hard work from them system for over 200 years, and that we want citizens, not for just $40 a day. government offi cials, to decide who is guilty. Because it is After the verdict, and especially after a conviction, true. the jurors look spent. Of course, then it is the judge’s turn To be sure, not everyone is willing to serve. The to sweat, over what sentence to impose. But that’s for an- Clerk’s Offi ce tells me that over half those summoned other column. As to the jurors, I joke that we’ll get back to jury duty simply do not appear. Some who appear together and do it again in six or eight years. will say whatever it takes to dodge service. My favorite They never laugh. excuse, offered by prospective jurors for two separate tri- als, is that they would be unable to follow the instruction I have also been impressed with the performance of not to research the case until it was over. “Judge, I just counsel for both sides during the jury selection process. In won’t be able to stop myself!” Others say they have an a past life I litigated a number of appellate Batson issues, implacable hatred of prosecutors, or the police, or defense and I assumed that as a trial judge I would see frequent counsel, or defendants. To date, no one has boasted of Batson challenges. I have those three steps memorized! an implacable hatred of judges, but surely that will come But in over four years, I’ve seen only one or two Batson with time. Some of my fellow judges don’t even bother: applications. It seems that Brooklyn is so diverse that you they simply ask who does not want to serve, and let them could not hope arbitrarily to exclude whites, blacks, His- go. panics or even Asians. To the credit of the attorneys on both sides, no one seems to try. A typical jury in my part is Still, after one or perhaps two days, I always emerge half black and one-third white, with a miscellaneous dose with a panel of 12, and a number of alternates I happily of “other” to fi ll out the roster. compare to Mariano Rivera. I think those selected—with some exceptions, of course—are excited. They agree with The jurors take their responsibilities seriously. They my suggestion that they are serving their community in pay attention. During deliberations, they work very, very a profoundly important way, topped only by those in our hard. They may not, in my opinion, always reach the military. They do not know what they soon will learn— “right” result. But it’s not a bad system. After all, we want that it is damnably hard to reach a verdict in a criminal citizens, not government offi cials, to make these calls. case. I’ve tried three defendants non-jury myself, and I know: it is tough to “pull the trigger” on another human Mark R. Dwyer being. And it is equally tough to dismiss the plea of the complaining witness who, generally speaking, plainly The views refl ected in this

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