NEW YORK STATE BAR ASSOCIATION
Section Chair SHERRY LEVIN WALLACH, ESQ. Law Office of Sherry Levin Wallach Cross River
Program Co-Chairs NORMAN P. EFFMAN, ESQ Wyoming County-Attica Legal Aid Bureau Inc. and Wyoming County Public Defender Warsaw
RUSSELL W. DOMBROW, ESQ. Dombrow Law Firm, PLLC Syracuse NYSBA Criminal Justice Section Spring Meeting The Gould Hotel Seneca Falls, New York May 4 – 6, 2017 Under New York’s MCLE rule, this program qualifies for 7.5 MCLE credits in Professional Practice. This program is not transitional and is not suitable for MCLE credit for newly-admitted attorneys.
This program is offered for educational purposes. The views and opinions of the faculty expressed during this program are those of the presenters and authors of the materials, including all materials that may have been updated since the books were printed. Further, the statements made by the faculty during this program do not constitute legal advice.
Copyright ©2017 All Rights Reserved New York State Bar Association
NEW YORK STATE BAR ASSOCIATION Lawyer Assistance Program 800.255.0569
Q. What is LAP? A. The Lawyer Assistance Program is a program of the New York State Bar Association established to help attorneys, judges, and law students in New York State (NYSBA members and non-members) who are affected by alcoholism, drug abuse, gambling, depression, other mental health issues, or debilitating stress. Q. What services does LAP provide? A. Services are free and include: • Early identification of impairment • Intervention and motivation to seek help • Assessment, evaluation and development of an appropriate treatment plan • Referral to community resources, self-help groups, inpatient treatment, outpatient counseling, and rehabilitation services • Referral to a trained peer assistant – attorneys who have faced their own difficulties and volunteer to assist a struggling colleague by providing support, understanding, guidance, and good listening • Information and consultation for those (family, firm, and judges) concerned about an attorney • Training programs on recognizing, preventing, and dealing with addiction, stress, depression, and other mental health issues Q. Are LAP services confidential? A. Absolutely, this wouldn’t work any other way. In fact your confidentiality is guaranteed and protected under Section 499 of the Judiciary Law. Confidentiality is the hallmark of the program and the reason it has remained viable for almost 20 years.
Judiciary Law Section 499 Lawyer Assistance Committees Chapter 327 of the Laws of 1993 Confidential information privileged. The confidential relations and communications between a member or authorized agent of a lawyer assistance committee sponsored by a state or local bar association and any person, firm or corporation communicating with such a committee, its members or authorized agents shall be deemed to be privileged on the same basis as those provided by law between attorney and client. Such privileges may be waived only by the person, firm or corporation who has furnished information to the committee.
Q. How do I access LAP services? A. LAP services are accessed voluntarily by calling 800.255.0569 or connecting to our website www.nysba.org/lap Q. What can I expect when I contact LAP? A. You can expect to speak to a Lawyer Assistance professional who has extensive experience with the issues and with the lawyer population. You can expect the undivided attention you deserve to share what’s on your mind and to explore options for addressing your concerns. You will receive referrals, suggestions, and support. The LAP professional will ask your permission to check in with you in the weeks following your initial call to the LAP office. Q. Can I expect resolution of my problem? A. The LAP instills hope through the peer assistant volunteers, many of whom have triumphed over their own significant personal problems. Also there is evidence that appropriate treatment and support is effective in most cases of mental health problems. For example, a combination of medication and therapy effectively treats depression in 85% of the cases. Personal Inventory
Personal problems such as alcoholism, substance abuse, depression and stress affect one’s ability to practice law. Take time to review the following questions and consider whether you or a colleague would benefit from the available Lawyer Assistance Program services. If you answer “yes” to any of these questions, you may need help.
1. Are my associates, clients or family saying that my behavior has changed or that I don’t seem myself? 2. Is it difficult for me to maintain a routine and stay on top of responsibilities? 3. Have I experienced memory problems or an inability to concentrate? 4. Am I having difficulty managing emotions such as anger and sadness? 5. Have I missed appointments or appearances or failed to return phone calls? Am I keeping up with correspondence? 6. Have my sleeping and eating habits changed? 7. Am I experiencing a pattern of relationship problems with significant people in my life (spouse/parent, children, partners/associates)? 8. Does my family have a history of alcoholism, substance abuse or depression? 9. Do I drink or take drugs to deal with my problems? 10. In the last few months, have I had more drinks or drugs than I intended, or felt that I should cut back or quit, but could not? 11. Is gambling making me careless of my financial responsibilities? 12. Do I feel so stressed, burned out and depressed that I have thoughts of suicide?
There Is Hope
CONTACT LAP TODAY FOR FREE CONFIDENTIAL ASSISTANCE AND SUPPORT The sooner the better! Patricia Spataro, LAP Director 1.800.255.0569
SCHEDULE OF EVENTS
Thursday, May 4 3:00 p.m. Registration – Ballroom Foyer 4:30 – 6:30 p.m. Seneca Falls Walking Tour – The Road to Women’s Rights Led by former Police Chief and Historian Fred Capozzi; departs from Hotel; through the village, concluding at Seneca Falls Historical Society, site of our Reception.
6:30 - 8:00 p.m. Welcome Reception at the Seneca Falls Historical Society, 55 Cayuga Street Tour the mansion, see Susan B. Anthony’s cape and other artifacts while sampling some of the Finger Lakes’ best wines. Event Co-Sponsor: FINGER LAKES WOMEN’S BAR ASSOCIATION Friday, May 5 8:30 a.m. Continental Breakfast for Guests of the Hotel – Gould Hotel Restaurant Included in Hotel Rate for Gould Hotel Guests. 9:00 a.m. – 12:00 p.m. WILLARD DRUG TREATMENT CENTER TOUR/FORMER WILLARD ASYLUM Explore the grounds of the infamous Willard Asylum for the Insane, opened in 1869. By 1877, it was the largest facility of its kind in the US. Renamed Willard State Hospital in 1890, it was closed in 1995. Suitcases found in the attic when it closed inspired the book, “The Lives They Left Behind, Suitcases from a State Hospital Attic.” The campus is now a “boot camp”-style rehabilitation center for inmates with substance abuse problems run by NYS Corrections. Tours will be led by Superintendent and Deputy Superintendent. Preregistration Required. Very limited availability. Tour fee: $25 per person; advance registration required. 12:00 – 12:45 p.m. Registration and Luncheon Sandwich Buffet – Ballroom Foyer & Ballroom 2 Luncheon Sponsoredp By: SMART START
12:45 – 1:00 p.m. INTRODUCTORY REMARKS SHERRY LEVIN WALLACH, ESQ. Chair, Criminal Justice Section
1:00 – 2:40 p.m. SENTENCING ALTERNATIVES TO INCARCERATION Speaker: PATRICIA WARTH, ESQ. New York State Office of Indigent Legal Services Albany 2:40 – 2:50 p.m. Break – Ballroom 2 2:50 – 4:30 p.m. JUDICIAL DIVERSION COURTS: Innovative Approaches to The Treatment Court Model Panelists: HON. MICHAEL MOHUN KATHLEEN B. HOGAN, ESQ. Wyoming County Court Warren County District Attorney’s Office Warsaw Lake George LINDA PALMER SCOTT D. MCNAMARA, ESQ. Treatment Court Coordinator Oneida County District Attorney’s Office Allegany County Court, Belmont Utica 4:30 – 5:45 p.m. Executive Committee Meeting – Board Room 3 SCHEDULE OF EVENTS
Friday, May 5 continued 6:30 – 9:30 p.m. Cocktail Reception, Dinner and Awards Ceremony – Gould Hotel Ballroom CRIMINAL JUSTICE SECTION AWARD RECIPIENTS Outstanding Contribution in the Field of Correctional Services Karen L. Murtagh, Esq. Prisoners’ Legal Services of New York, Albany Charles F. Crimi Memorial Award Cheryl Meyers Buth, Esq., Meyers Buth Law Group PLLC, Orchard Park Outstanding Contribution in the Field of Criminal Law Education Gary J. Muldoon, Esq., Muldoon, Getz & Reston, Rochester
Saturday, May 6 7:30 a.m. – 9:00 a.m. Continental Breakfast for Guests of the Hotel – Gould Hotel Restaurant Included in Hotel Rate for Gould Hotel Guests.
8:00 – 9:00 a.m. Executive Committee Meeting – Board Room
8:00 a.m. Registration & Coffee – Ballroom Foyer & Ballroom 2
9:05 a.m. – 9:15 a.m. INTRODUCTORY REMARKS NYSBA WELCOME SHERRY LEVIN WALLACH, ESQ. CLAIRE GUTEKUNST, ESQ. Chair, Criminal Justice Section President, NYSBA
9:15 – 11:00 a.m. NEW YORK STATE COURT OF APPEALS UPDATE Panelists: HONORABLE JENNY RIVERA DANIEL N. ARSHACK, ESQ. New York State Court of Appeals Arshack, Hajek & Lehrman, PLLC Albany New York City ROBERT J. MASTERS, ESQ. Queen’s County District Attorney’s Office Kew Gardens
11:00 – 11:15 a.m. Break – Ballroom 2 11:15 a.m. – 12:30 p.m. DRAM SHOP AND HANDLING ALCOHOL RELATED ARRESTS Speaker: PETER GERSTENZANG, ESQ. Gerstenzang, Sills, Davis, Cohn & Gerstenzang Albany
1:00 – 5:30 p.m. EXPLORE THE CAYUGA WINE TRAIL AT THE REGION’S 25th ANNUAL WINE & HERB FESTIVAL Drink. Eat. Garden. Repeat. As you savor herb-prepared cuisine at the 16 participating wineries, you’ll be offered a wine that compliments the dish and receive the recipe for your next get together. You’ll also be offered up to 3 additional wine tastings at the vineyard. Single tickets: $45; Couples: $65. Discounted designated driver tickets also available. Tickets are good for both Saturday and Sunday and include souvenir wine glass, one potted herb or veggie plant, one wine and food pairing at each winery, 3 additional wine tastings per winery per person, garden guide, plant carrier and recipe collection. BUY ADVANCE TICKETS AT 800-684-5217 or at http://cayugawinetrail.com/events/130/25th-annual-wine-herb-festival LIMITED AVAILABILITY! 4
TABLE OF CONTENTS
When do I Get out of Here? What Every Criminal Defense Lawyer Should Know About Prison-Based Early Release Programs ...... …………………………………...... 1 Submitted By: Patricia Warth, Esq.
Judicial Diversion Courts: Innovative Approaches to the Treatment Court Model ...... 85 Submitted By Hon. Michael Mohun
Judicial Diversion Courts: Innovative Approaches to the Treatment Court Model………...... 119 Submitted By Linda Palmer
New York State Court of Appeals Update...……………...... 145 Submitted By: Hon. Jenny Rivera, Daniel N. Arshack, Esq. and Robert J. Masters, Esq.
Dram Shop and Handling Alcohol Related Arrests ……...... 199 Submitted By: Peter Gerstenzang, Esq.
Biographies ...……………………………………………………...... 253
WHEN DO I GET OUT OF HERE? WHAT EVERY CRIMINAL DEFENSE LAWYER SHOULD KNOW ABOUT PRISON-BASED EARLY RELEASE PROGRAMS
Submitted By: Patricia Warth, Esq. New York Office of Indigent Legal Services Albany, NY
1 2 When Do I Get Out of Here?
What Every Criminal Defense Lawyer Should Know About Prison-Based Early Release Programs
Patricia Warth, Esq. Office of Indigent Legal Services
Index of Materials
•What Every Criminal Defense Lawyer Should Know About Prison-Based Early Release Programs
• PowerPoint Presentation
• Early Release and Other Prison-Based Program: Recent Changes as a Result of the 2009 DLRA and 2010 Changes to the Shock, Willard, and LCTA Programs
• Early Release Checklist: Determinate Sentences
• Early Release Checklist: Indeterminate Sentences
• Willard Eligibility: Understanding the Limitation “Subject to an Undischarged Term of Prison”
• Willard Eligibility: Letter from Anthony Annucci, Department of Corrections, to Deputy Counsel, Office of Court Administration Explaining the Limitation “Subject to an Undischarged Term of Prison.”
• DOCCS Directives: - 4790 (Merit) - 4792 (LCTA) - 4793 (Earned Eligibility Program) - 0027 (Willard) - 0086 (Shock)
3 4 What Every Criminal Defense Lawyer Should Know About Prison-Based Early Release Programs
Patricia J. Warth New York State Office of Indigent Legal Services [email protected] (518) 486-5337 Introduction
The focus of sentencing in felony cases tends to be on the length of the prison sentence, as pronounced by the court. But widening the focus to include consideration of possible participation in prison-based early release programs can benefit individuals convicted of crimes and society as a whole. A wider focus can increase the chances that individuals convicted of crimes have access to rehabilitative programs while in prison and are able to be released to the community earlier with a diminished likelihood of re-offending. Increased access to participation in rehabilitative early release programs benefits the community by reducing re-offense behavior
(thereby enhancing public safety) and reducing the amount of tax dollars spent on keeping people in prison longer than necessary.
For criminal defense attorneys, expanding the focus to include possible participation in early release programs can result in better advocacy for clients. Just as importantly, doing so is a professional mandate. The New York State Bar Association’s 2015 Revised Standards for
Providing Mandated Representation provides in Section I-7 defines quality criminal defense representation. This section states that, mmong other things, criminal defense attorneys must be able to provide their clients with full information about “potential sentence exposure under all possible eventualities, including the relationship to any other sentences, potential release dates and available correctional programs.”
5 This Continuing Legal Education program explores the various prison-based early release
programs available in New York State’s Department of Corrections and Community Supervision
(DOCCS), including the following:
• Willard Sentence (and Willard Drug Treatment Center)
• Shock Incarceration (and Judicial Shock Orders)
• Temporary Release
• Comprehensive Alcohol and Substance Abuse Treatment (CASAT) (and Judicial
CASAT Orders)
• Merit Release
• Earned Eligibility
• Limited Time Credit Allowance
For each program, the following key information is discussed: What is the program? Who is eligible? Who is disqualified from eligibility? What is the impact on the person’s sentence?
What is the statutory and regulatory authority for the program?
I. What is a Willard sentence?
Willard is a determinate or indeterminate sentence to be executed as parole supervision,
with the first 90 days spent at Willard Drug Treatment Center, which is a facility jointly run by
Department of Corrections and Community Supervision (DOCCS) and the Office of Alcohol and
Substance Abuse Services (OASAS). On its website, OASAS describes the Willard Drug
Treatment Center program as “a demanding, three-month, shock incarceration-style residential
therapeutic program, followed by six months of out-patient treatment in the community under
intensive supervision by parole officers affording a stronger measure of protection to the
6 community than is provided by standard community treatment programs. For the addict, Willard
is not only a reprieve from a full prison term, but a new opportunity to tackle his or her
addiction.” See https://www.oasas.ny.gov/cj/programs/Willard.cfm. Attorneys interested in
learning more about the program at the Willard Drug Treatment Center can watch an hour-long
YouTube video, available at: https://www.youtube.com/watch?v=bGCxY-PgjcM.
The statutory authorization for a Willard sentence is found at Criminal Procedure (CPL) §
410.91, Penal Law (PL) §70.06(7), and PL § 70.70(2), (3).
a. Who is eligible for a Willard sentence?
The following individuals are eligible for a Willard sentence:
Individuals sentenced as a second offender for a class D or E designated property
offense listed in CPL § 410.91(5); see PL §70.06(7)
Individuals sentenced as a predicate offender for a class C, D, and E drug offense;
see PL §70.70(3)(d)
Individuals sentenced as a first-time offender for a class B drug offense (except
for those convicted under PL §220.48); see PL §70.70(2)(d)
Courts may sentence an eligible person to a Willard sentence upon a finding: “(i) that the defendant has a history of controlled substance dependence that is a significant contributing factor to such defendant’s criminal conduct; (ii) that such defendant’s controlled substance dependence could be appropriately dressed by a sentence if parole supervision; and (iii) that imposition of such sentence would not have an adverse effect on public safety or public confidence in the integrity of the criminal justice system.” See CPL § 410.91(3). Prior to 2009,
7 prosecutorial consent was required for individuals who were being sentenced as a predicate offender for a class D offense. See CPL § 410.91(4). However, the 2009 Drug Law Reform Act
(DLRA) eliminated this requirement, and the consent of the District Attorney is no longer required.
b. Who is excluded from eligibility for a Willard sentence?
Pursuant to the Willard statutes, the following individuals are not eligible for a Willard sentence:
Individuals whose current conviction is not one of the offenses specified above.
Individuals who have a prior conviction for a violent felony, class A felony or
class B (non-drug) felony offense. Under the statute, this is a lifetime ban.
Individuals who are “subject to an undischarged term of prison,” or put
differently, who are “not under the jurisdiction of or awaiting delivery to prison.”
The “subject to an undischarged term of prison” exclusion, set forth in CPL § 410.91(2), has caused much confusion, leading many to conclude that individuals who were under parole or post release supervision at the time of their conviction are not eligible for a Willard sentence. But this was never the intent of this language. Indeed, when he was Deputy Commissioner and
Counsel to the Department of Corrections, Anthony Annucci sent a letter to the Office of Court
Administration stating that this language “was never intended to exclude … the defendant who is on parole or conditional release … when the present crime is committed.” (A copy of this letter is attached). This limiting language is not found in the Penal Law provisions that authorize a
Willard sentence. Rather, the Penal Law provisions exclude from eligibility individuals who are
“not under the jurisdiction of or awaiting delivery to” prison. See PL §70.06(7); PL 70.70(3)(c).
8 In a previous training, DOCCS Counsel, Richard DeSimone, has clarified that this means a
person is not eligible for Willard if the person is “currently a DOCCS inmate or awaiting transfer
to DOCCS pursuant to a previously imposed indeterminate or determinate sentence.”
Notably, because Willard is a court pronounced sentence, DOCCS will honor the sentence
of a person who has been sentenced to Willard even though statutorily ineligible for the program,
but only after notifying the judge that the sentence is illegal so that the judge has an opportunity
to re-sentence the person. If the judge elects to not re-sentence the person, the person will be able
to participate in Willard.
c. Is there an Alternative to Willard?
DOCCS is required to provide an alternative to Willard if the person “requires a degree of
medical care or mental health care that cannot be provided” at the Willard Drug Treatment
Center. See Correction Law § 2(20). The alternative program will have the same impact on the
person’s sentence as the regular Willard program. The person can object to the alternative
program and opt to return to the sentencing judge for re-sentencing.
II. What is Shock Incarceration?
The Shock Incarceration Program (Shock) is a six month, boot-camp style program that focuses on discipline, substance abuse treatment and education. DOCCS describes the program as “stressing a highly structured routine of discipline, intensive regimentation, exercise, and work therapy, together with substance abuse treatment, education, post-release counseling, and life skills counseling.” See DOCCS Directive 0086 available at: http://www.doccs.ny.gov/Directives/0086.pdf. Currently there are two Shock facilities:
Lakeview Shock Incarceration Correctional Facility, located in Chautauqua County, and Moriah
9 Shock Incarceration Correctional Facility, located in Essex County. If eligible and accepted into the program, a person is placed in the Shock program when he or she is within three years of parole or conditional release. Thus, successful completion of Shock can shave 2 ½ years from a person’s sentence. Attorneys interested in learning more about the program can watch a short
YouTube video, available at: https://www.youtube.com/watch?v=bbDIUcCUGYc. Though this video was produced in 2013 and portrays the Monterey Shock Incarceration Facility which closed in 2014, its portrayal of the Shock program is still informative.
The statutory authorization for Shock can be found in Correction Law §§ 865-867.
a. Who is eligible for Shock?
The following individuals are eligible for Shock:
Individuals between the age of 16 and 50 at time of the offense and who have not
reached the age of 50 at time eligible to start Shock participation.
Individuals who have none of the exclusions listed in Correction Law § 865(1).
b. Who is excluded from Shock eligibility?
The following individuals are not eligible for Shock:
Individuals whose current conviction includes an A-I felony, violent felony
offense, sex, homicide, escape, or absconding offense.
Individuals who have a previous conviction for a violent felony offense for which
they served a state prison sentence (i.e., a determinate or indeterminate sentence).
It is important to note that not all eligible individuals are admitted into Shock. Correction
Law § 865(2) defines the program as one in which “eligible” inmates are “selected.” Correction
10 Law § 867(1) and (2) provide for the establishment of Shock Screening Committees that determine if a person’s participation in the program is “consistent with the safety of the community, the welfare of the applicant, and the rules and regulations of the department.”
According to a 2007 DOCCS report, about 46% of eligible inmates are screened out of Shock participation. See SHOCK INCARCERATION 2007 LEGISLATIVE REPORT, available at: http://www.doccs.ny.gov/Research/Reports/2007/Shock_2007_Executive_Summary.pdf.
The most common reason is that the Screening Committee views the person as a “public safety risk.” Additionally, individuals are screened out for needing medical care or mental health treatment that is not available at the Shock facilities or that prevents full participation in the rigorous program.
c. How does completion of Shock impact the sentence?
An individual who completes Shock earns an Earned Eligibility Certificate. For individuals who are serving a determinate sentence for a drug offense, completion of Shock means release to
Post Release Supervision. For individuals serving an indeterminate sentence for a non-drug offense, completion of Shock means that the parole board conducts a review of the person’s institutional record to determine if the person should be released. In 2015, 80% of individuals serving indeterminate sentences who completed the Shock program were granted parole release.
As stated earlier, successful completion of Shock can shave as much as 2 ½ years from a person’s minimum sentence.
d. What is a Judicial Shock Order?
The statutory authority for a judge to order that a person be offered the opportunity to participate in Shock is found in Penal Law § 60.04(7). The judge has this authority only for
11 individuals convicted of a drug offense pursuant to Penal Law Article 220 or 221 and who are otherwise are eligible for Shock pursuant to Correction Law § 865(1). Individuals who are eligible for Shock pursuant to Correction Law § 865(1) who receive a Judicial Shock Order cannot be screened out of Shock participation by a Shock Screening Committee. See PL §
60.04(7)(a), PL § 60.04(7)(b), Correction Law § 867(2-a). If the person has a medical or mental health need that cannot be met at one of the Shock facilities, the individual must be offered an
Alternative to Shock program. See PL§ 60.04(7)(b).
Practice Tip: Make sure the Sentence & Commitment clearly indicates that the judge
ordered Shock placement pursuant to PL § 60.04(7). Otherwise, the Shock Screening
Committee may mistakenly believe that the person can be screened out of Shock
participation.
Notably, DOCCS will consider a judicial shock order for a person whose conviction is a non- drug offense to be a non-binding recommendation that the person participate in the program.
See People v. Martin II, 105 A.D.3d 1266 (3rd Dept. 2013).
III. What is the Temporary Release Program?
The Temporary Release Program includes work release, the Comprehensive Substance
Abuse Treatment (CASAT) program, industrial training leave, furlough, day reporting, and educational release. It is an opportunity for a person to leave the prison for a set period of time prior to completion of his or her sentence, most often to participate in employment (i.e., “work release”). Understanding eligibility for the Temporary Release Program can be complicated because it is determined by a combination of statutory law (Correction Law §§ 851-861), regulations (7 NYCRR 1900.4), and Executive Order (9 NYCRR 6.9).
12 People who are eligible for Temporary Release cannot participate until they are within 24
months of supplemental merit release, merit release, or conditional release. (Participation in the
CASAT program, discussed more below, can begin when a person is within 30 months of
supplemental merit release, merit release, or conditional release). Additionally, a person must
have spent some time in prison, usually about 6 months, before DOCCS will consider a person
for Temporary Release.
a. Who is NOT eligible for Temporary Release?
A person is not eligible if the person has any of the following convictions: escape;
absconding; aggravated harassment of DOCCS employee; sex offense; incest offense; offense
involving sexual performance of a child; a homicide offense; act of terrorism; or a violent felony override.
b. What is a “violent felony override”?
A “violent felony override” means that a person can be considered for Temporary Release participation when the conviction is for a subsection of violent felony offense that does not involve: infliction of serious physical injury; being armed with a deadly weapon or dangerous instrument; use or threatened use of a deadly weapon or dangerous instrument; or possession of a deadly weapon or dangerous instrument with intent to use unlawfully against another.
The Second Department recently defined “violent felony override” as follows: “an imprecise and potentially confusing term that is sometimes used to describe a document referred to in 7
NYCRR 1900.4(c)(1)(iii) that permits DOCCS to ascertain whether an inmate has met one of the threshold requirements to be eligible for the temporary release program despite conviction of a specified violent felony offense.” People v. Lynch, 121 A.D. 3d 717, 718 (2nd Dept. 2014). The
13 Court further noted that a “source of confusion that may arise from the term ‘violent felony
override’ is that the term may imply that that the document itself qualifies the inmate for
eligibility for temporary release. It does not. It is for DOCCS and not the court or district
attorney to determine whether a conviction under a particular section and subdivision disqualifies
an inmate from eligibility.” Id. at 719. See also People v. Ballato, 128 A.D.3d 846, 847 (2nd
Dept. 2015) (invalidating defendant’s plea because the trial judge promised the defendant a
violent felony override to make him eligible for Temporary Release, and stating “court exceeded
its authority by promising the defendant something it had no authority to promise in exchange
for the defendant’s plea of guilty”).
Lynch involved the appeal of a defendant who was convicted of assault in the first degree
pursuant to Penal Law § 120.10(1). At sentencing, his lawyer asked the judge to issue a “violent
felony override,” but the judge refused. On appeal, the Second Department noted that there is no
such thing as a “violent felony override” document. Rather, the “violent felony override” refers
to a Temporary Release program regulation that permits DOCCS to consider possible
participation for people convicted of specific subsections of violent felony offenses. Thus, what
matters is the specific subsection of the violent felony offense for which a person was convicted.
For that reason, the Lynch court held that the trial court did not err in refusing to issue a “violent
felony override.” Instead, the Second Department ordered the trial court to re-issue a Sentence
and Commitment that specifies the subdivision under which the defendant was convicted.
c. What is an example of a “violent felony override”
Penal Law § 140.25, Burglary in the 2nd degree, serves as a good example of how the
“violent felony override” works. If the Sentence and Commitment shows a conviction under subsection (1)(a) of Penal Law § 140.25 (the defendant is armed with explosives or a deadly
14 weapon), or subsection (1)(c) (the defendant uses or threatens to use a dangerous instrument),
then the defendant is not eligible for the Temporary Release program, even if the judge issues a
document entitled “violent felony override.” But if the Sentence and Commitment shows
conviction under subsection (1)(b) (causes physical injury), subsection (1)(d) (displays a pistol,
revolver, rifle, etc.), or subsection (2) (the building is a dwelling), then the defendant can be
considered for participation in the Temporary Release Program.
Practice Tips: Do not ask the sentencing court for a “violent felony override.” Instead,
make sure the Sentence and Commitment issued by the court clerk reflects the correct
subdivision of the statute of conviction.
d. Are all eligible individuals admitted to the Temporary Release Program?
Eligibility for the Temporary Release program is not the same as admission to the program,
and in fact, DOCCS screens out most eligible individuals. This is done pursuant to a point system found in 7 NYCRR 1900.4. Over the past several years, DOCCS has applied this point system with increasing rigidity, and participation in the Temporary Release program has dwindled. At its peak in 1994, 24,055 people participated in the Temporary Release program. By 2010, program participation had plummeted to 1,910 participants. In 2013, over 21,757 incarcerated people applied; only 796 were accepted in the Temporary Release program as a stand-alone or as part of the CASAT program. Compare this 3.6% admission rate to Stanford Law School’s 9% admission rate and Harvard Law School’s 12% admission rate. The best avenue for admission appears to be CASAT, which is discussed below.
15 Practice Tip: Never encourage your client to take a guilty plea under the
misimpression that he or she “is likely” to be admitted to the Temporary Release
program.
IV. What is CASAT?
CASAT is an acronym for the Comprehensive Alcohol and Substance Abuse Treatment
program, which is a wrap-around substance abuse treatment program with 3 phases:
1) a 6-month prison-based substance abuse treatment program in a DOCCS annex
2) transition to Temporary Release with follow-up treatment
3) release to parole or PRS with after-care
To be admitted to CASAT, a person must be eligible for the Temporary Release program and be admitted into the program by DOCCS. Currently, most people in the Temporary Release
program are there as part of the CASAT program. Still, because DOCCS admits so few people to
the Temporary Release program, there also are relatively few people admitted to the CASAT
program.
a. What is a Judicial CASAT Order?
Under Penal Law § 60.04(6), a judge can order that DOCCS offer a person convicted of a drug offense the opportunity to participate in CASAT. However, to participate in all three phases of CASAT, the person must be deemed eligible and appropriate for the Temporary Release
Program by DOCCS. Individuals with a Judicial CASAT Order who DOCCS does not admit to the Temporary Release program will be admitted only to phase 1 of CASAT (6-months of substance abuse treatment at a DOCCS annex) when 6 to 9 months from earliest release.
16 Because DOCCS has so severely limited participation in the Temporary Release program, most
individuals who receive a Judicial CASAT order never realize the full benefits of CASAT
participation. Additionally, DOCCS will not honor as binding a judicial CASAT order for
individuals who are not serving a sentence for a drug offense. See Matter of Ferreri, 69 A.D.3d
1014 (3rd Dept. 2010).
V. What is the Merit Release Program?
Merit release allows individuals serving a sentence for a non-violent offense to be released
prior to their minimum sentence if they achieve certain programmatic objectives. The statutory authority for the Merit Release program is found in Correction Law § 803.
a. Who is not eligible for Merit Release?
Individuals serving a sentence for any of the following offenses are not eligible for Merit
Release:
• violent felony offense
• A-I non-drug felony
• homicide offense
• incest
• Penal Law Art. 130 and 263 offense
• aggravated harassment of a DOCCS employee
b. What are the required programmatic achievements?
To earn Merit Release, a person must earn an Earned Eligibility Certificate (discussed below) and complete one of the following:
17 • GED
• alcohol and substance abuse certificate
• vocational trade certificate
• perform at least 400 hours as part of a community work crew/outside assignment
c. How does Merit Time impact a person’s sentence?
For people serving an indeterminate sentence, merit release is 1/6 off of the minimum sentence (1/3 off for those serving a class A-1 drug offense) and therefore allows them to see the
Parole Board sooner. For people serving a determinate sentence, merit release is an additional
1/7 off the sentence imposed (i.e., release after serving 5/7s of their sentence).
Impact of Merit Release on a Person’s Sentence
Indeterminate Determinate
Person parole eligible sooner 1/7 off of conditional release date ◦ Class A drug – 1/3 off of minimum Person released after serving 5/7 of ◦ All others - 1/6 off minimum sentence
Initial parole release rates higher for people who earned merit time
VII. What is the Earned Eligibility Certificate Program?
The Department of Corrections and Community Supervision describes the Earned Eligibility
Program as “provid[ing] inmates with an incentive for addressing the reasons for their incarceration. The program recognizes that inmates are motivated to achieve positive change in
18 their lives and the program increases the likelihood of making a successful transition to the community upon release. Thus, one of the goals of the Earned Eligibility Program is to increase the number of inmates with indeterminate sentences who are released at their initial Parole Board
Hearings without increasing the risk to the community.” DOCCS Directive 4793. An Earned
Eligibility Certificate is certification by DOCCS Commissioner that a person has successfully participated in all appropriate programs. An Earned Eligibility Certificate is a prerequisite for
Merit Release; it also improves the chances of a person’s discretionary release to parole, as discussed further below.
The statutory and regulatory basis for the Earned Eligibility Certificate program can be found at Correction Law § 805 and 7 NYCRR Part 2100.
a. Who is eligible for the Earned Eligibility Certificate program?
To be eligible for the Earned Eligibility Certificate program, a person must be serving a determinate or indeterminate sentence with a minimum of eight years or less. Upon reception to
DOCCS, such individuals will meet with a DOCCS Offender Reentry Counselor (ORC), and an
Earned Eligibility Program Plan will be developed. This plan will identify the programs in which the person is expected to participate. In addition, the person must:
• Satisfactorily pursue all programmatic objectives outlined in the person’s
Earned Eligibility Plan
• Maintain an acceptable disciplinary record – i.e., not receive any
disciplinary infractions that result in long-term Keeplock or admission to
the Segregated Housing Unit (SHU)
19 Immediately prior to the person’s initial parole board appearance, DOCCS staff will review the
person’s institutional record. If DOCCS staff determine that the person has met the requirements
for an Earned Eligibility Certificate (EEC), the person will be issued the EEC and the Parole
Board will be informed that an EEC has been issued. If DOCCS staff determine that the person’s
institutional record is not satisfactory, an EEC will not be issued. If DOCCS staff determine that
the person has not been in programs for sufficient time to gauge participation (i.e., because the
person has not been incarcerated long enough, was out to court, or was in protective custody),
then the person will receive “non-certifiable” status.
b. Does achieving an EEC actually enhance the likelihood that a person will be granted
discretionary release to parole supervision?
Executive Law § 259-i sets forth differing standards for parole release depending on whether a person has achieved an EEC. For a person who has been issued an EEC, Executive Law §259-i states that the person “shall be granted parole release at the expiration of his minimum term…unless the board determines that there is a reasonable probability that, if such inmates is
release, he will not live and remain at liberty without violating the law…” Alternatively,
regarding a person who has not been issued an EEC, the Executive Law requires that in order for the parole board to grant the release, the board must find that “there is a reasonable probability
that he will live and remain at liberty without violating the law…”
When I was at working at the Center for Community Alternatives, my colleague Alan
Rosenthal and I decided to review parole release data to discern how these differing statutory
standards play out in practice. We concluded that, overall, release rates are quite low for first
time board appearances. Still, having an EEC does make a difference, as the following data
reveals:
20 Parole Release Rates at Initial Board Appearance (October 2015-March 2016)
EEP Decision Number % Approved for Parole Release Issued 2,225 38.2%
Denied 908 6.9%
Non-certifiable 808 15.5%
Total 3,941 26.4%
Thus, though the release rate is unacceptably low for initial parole board appearances, having an
Earned Eligibility Certificate significantly enhances a persons’ chances of release.
VIII. What is the Limited Credit Time Allowance?
The Limited Credit Time Allowance is an attempt to incentivize positive behavior and program involvement for people who are not eligible for Merit Release because of their crime of conviction (i.e., a violent felony offense). The Limited Credit Time Allowance is only six months. Thus, for a person serving an indeterminate sentence, it is six months off their minimum sentence; for people serving a determine sentence, it is six months off their conditional release date.
DOCCS describes the program as follows: “Certain inmates serving a determinate sentence or indeterminate sentence for a crime that is not a merit eligible offense as defined in Correction
Law 803, may be eligible to earn a six-month Limited Credit Time Allowance (LCTA) against their sentences pursuant to Correction Law 803-b, provided that they have achieved certain significant programmatic accomplishments, have not committed a serious disciplinary infraction
21 or maintained an overall poor institutional record, and have not filed any frivolous lawsuits.”
DOCCS Directive 4792.
The statutory authority for the Limited Time Credit Allowance is found in Correction Law §
803-b.
a. Who is eligible for the Limited Credit Time Allowance?
People who are serving sentences for the following offenses are eligible for the Limited
Credit Time Allowance:
. a class A-1 felony
. a violent felony offense
. a Penal Law Article 125 felony offense
b. Who is excluded from eligibility for the Limited Credit Time Allowance?
Unfortunately, many people are excluded from eligibility for the Limited Credit Time
Allowance, including people serving sentences for the following offenses:
. first degree murder (including attempt or conspiracy to commit)
. Penal Law Article 130 Offenses (including attempt or conspiracy to
commit)
. Criminal Possession of a Controlled Substance 1st (PL § 220.21)
. Criminal Sale of a Controlled Substance 1st (PL § 220.43)
Additionally, those who are in custody on a revocation of presumptive release, parole,
conditional release, or PRS are not eligible for the Limited Credit Time Allowance.
22 c. What type of programs must a person achieve to earn the Limited Credit Time
Allowance?
To earn the Limited Credit Time Allowance, a person must be awarded an EEC and achieve a “significant programmatic accomplishment.” The list of programs that qualify as a “significant programmatic accomplishment” is continuously updated, so attorneys are encouraged to review
Correction Law 803-b and the DOCCS Directive 4792, but as of writing of this document, the most current list is as follows:
1. participation in at least 2 years college
2. obtain a masters of professional studies degree issued at Sing Sing
3. participation as an Inmate Program Associate (IPA) for no less than two years
4. receive certification from the State Department of Labor for successful
participation in an apprenticeship program
5. work as an Inmate Hospice Aid for a period of no less than two years
6. two years of successful participation in the Puppies Behind Bars program
7. two years of participation in the Division of Correctional Industries Optical
program and achievement of certification as an Optician from the American
Board of Opticianary
8. received an asbestos handling certificate from the Department of Labor and
worked a minimum of 18 months in the Division of Correctional Industries
Asbestos Abatement Program as a Hazardous Materials Removal Group Leader
9. successfully completed the course curriculum and passed the minimum
competency screening process performance exam for Sign Language Interpreter
23 and a minimum of one year of work as a Sign Language Interpreter for deaf
inmates.
d. Will all eligible people who achieve “significant programmatic accomplishment”
earn the Limited Credit Time Allowance?
No. A person will not earn the Limited Credit Time Allowance if the person has a “serious disciplinary infraction,” has “maintained an overall poor institutional record,” during the current incarceration, or has filed a “frivolous lawsuit.” Each are discussed below:
1. “Serious disciplinary infraction” and “overall poor institutional record”
Correction Law § 803-b does not define these terms, leaving it to DOCCS to do so. In
Directive 4792, DOCCS states the following about these requirements: “This means that an inmate cannot have received a recommended loss of good time sanction within the five year
period preceding the LCTA date. Inmates serving maximum of life terms will be considered
reviewable when there are no recommended loss of good time sanctions within five years prior
to the review date, rather than prior to their LCTA date. Any recommended loss of good time
that occurred earlier will be separately reviewed by the facility LCTA Committee. Furthermore,
an inmate’s overall disciplinary history will be subject to review relative to the date, substance,
and number of incidents.”
2. “Frivolous lawsuit”
DOCCS defines “frivolous lawsuit” as follows: “An inmate must not have filed an action,
proceeding, or claim against a State Agency Officer or employee that was found to be frivolous
pursuant to: 1. Section 8303 of the (NY) Civil Practice Law and Rules, or 2. Rule 11 of the
Federal Rules of Civil Procedure.”
24 Additional Written Materials
The following materials supplement and provide more detailed information to the programs described above:
a. Updates to Early Release Programs: 2009 DLRA and 2010 Changes to Shock
b. Willard: Understanding the Limitation “Subject to an Undischarged Term of
Prison”
Tools
These two checklists provide a quick overview for attorneys to discern what early release programs a defendant is (and is not) eligible form and why:
1) Early Release Checklist: Indeterminate Sentence
2) Early Release Checklist: Determinate Sentence
Additional Resources
1) Letter from Anthony Annucci, DOCCS, to the Office of Court Administration
2) DOCCS Directive 4790 (Merit Time)
3) DOCCS Directive 4792 (Limited Credit Time Allowance)
4) DOCCS Directive 4793 (Earned Eligibility)
5) DOCCS Directive 0027 (Willard)
6) DOCCS Directive 0086 (Shock)
25 26 What Every Criminal Lawyer Should Know About Prison-Based Early Release Programs
Patricia J. Warth New York State Office of Indigent Legal Services
I-7(e): Providing the client with full information concerning such matters as:
(iv) Potential sentence exposure under all available eventualities including the relationship to any other sentences, potential release dates and available correctional programs.
27 1 Conditional Release Parole Release Willard Shock Incarceration ◦ Judicial Shock Orders Temporary Release CASAT ◦ Judicial CASAT Orders Merit Release Earned Eligibility Program Limited Time Credit Allowance
What is the program like? Who is eligible? Who is disqualified? What is the impact on the sentence? What is the statutory/regulatory authorization?
28 2 Indeterminate Sentence ◦ Good behavior allowance – 1/3 of max ◦ Correction Law § 803(1)(b)
Determinate Sentence ◦ Good behavior allowance – 1/7 of max ◦ Correction Law § 803(1)(c)
DOCCS Time Assessment Committees
Applies to indeterminate sentences Eligible at court imposed minimum sentence Parole Board makes decision ◦ Executive Law § 259-i(2)(c)(A) ◦ Executive Law § 259-c(4) ◦ 9 NYCRR § 8002.1, § 8002.3
29 3 Sentence to be executed as parole supervision, with the first 90 days at Willard, a boot-camp style substance abuse treatment program; joint program between DOCCS and OASAS
CPL § 410.91; PL §70.06(7); § 70.70(2), (3) https://www.youtube.com/watch?v=bGCxY- PgjcM
Predicate offender, convicted of a class D or E designated property offense (listed in CPL § 410.91(5)); see PL §70.06(7)
Predicate offender convicted of a class C, D, and E drug offense; see PL §70.70(3)(d)
First time offender, convicted of a class B drug offense (except for those convicted under PL §220.48); see PL §70.70(2)(d)
DA consent no longer required - Subsection (4) of CPL 410.91 has been repealed.
30 4 current conviction for non-specified offense
prior conviction for a violent felony
prior conviction for A felony
prior conviction for B felony other than B drug offense
“subject to an undischarged term of prison”
Tony Annucci: This language “was never intended to exclude … the defendant who is on parole or conditional release … when the present crime is committed.” Richard deSimone: “The defendant is not currently a DOCCS inmate or awaiting transfer to DOCCS pursuant to a previously imposed indeterminate or determinate sentence.”
31 5 DOCCS is required to provide an alternative to Willard if the person needs medical or mental health care not available at the Willard Campus
The person can object to the alternative program and opt to return to the sentencing judge for re-sentencing
See Correction Law § 2(20) (updated 2010)
Correction Law §§ 865-867 When the person is within 3 years of parole or conditional release, he or she is transferred to a Shock Incarceration Facility for a 6 month, boot-camp style program that focuses on discipline, substance abuse treatment and education (GED).
https://www.youtube.com/watch?v=bbDIUcCUGYc
32 6 between the age of 16 and 50 at time of offense and has not reached the age of 50 at time starts Shock participation
has none of the exclusions listed in Correction Law § 865(1)
current conviction includes an A-I felony, violent felony offense, PL Article 130 sex offense, homicide offense, escape, or absconding offense
has previous conviction for a VFO for which he/she served a state prison sentence (i.e., determinate or indeterminate sentence)
33 7 Eligible inmates must be “selected”; Shock Screening Committees screen out inmates for:
Mental health or medical condition
Participation not “consistent with the safety of the community” History of predatory behavior History of violence Crime of “sophistication”
Completion of Shock means achievement of Earned Eligibility Certificate
Determinate sentences (drug) - will be released to PRS
Indeterminate sentences - paper review by parole board to determine release 2015: 80% release rate
34 8 Penal Law § 60.04(7) (2009 DLRA) Convicted of a drug offense (PL Article 220 or 221 offense)
Eligible for Shock as defined in Correction Law § 865(1)
Issue One: Can the Shock Screening Committee “screen out” an eligible inmate who has a Judicial Shock Order?
NO! - PL § 60.04(7)(a) - PL § 60.04(7)(b) - Correction Law § 867(2-a)
35 9 Make sure the Sentence & Commitment clearly indicates that the judge ordered Shock placement pursuant to PL § 60.04(7).
Issue Two: Can a judge order Shock participation for a defendant who is convicted of a non-drug offense?
No! Such an “order” constitutes a “non-binding recommendation” that the person participate in Shock. People v. Martin II, 105 A.D.3d 1265
36 10 Issue Three Can a judge order Shock participation for a defendant whose sentence renders him/her more than 3 years from his/her conditional release date?
YES! Corr. Law § 867(2-a): “[A]n inmate sentenced to shock incarceration shall promptly commence participation when such an inmate is an eligible inmate pursuant to” Corr. Law § 865(1)
Work release, CASAT, industrial training leave, furlough, day reporting, educational release, etc.
37 11 Correction Law §§ 851-861 Executive Orders: 9 NYCRR 6.9 Regulations: 7 NYCRR 1900.4 & 7 NYCRR 1950.3
Must be within 24 months of supplemental merit release, merit release, or conditional release (30 months for CASAT)
Must have requisite time in DOCCS (usually 6 months)
38 12 No conviction for escape; absconding; aggravated harassment of DOCCS employee; sex offense; incest offense; offense involving sexual performance of a child; homicide offense; or act of terrorism
No conviction for a violent felony offense
“an imprecise and potentially confusing term that is sometimes used to describe a document referred to in 7 NYCRR 1900.4(c)(1)(iii) that permits DOCCS to ascertain whether an inmate has met one of the threshold requirements to be eligible for the temporary release program despite conviction of a specified violent felony offense”
People v. Lynch, 121 A.D. 3d 717 (2nd Dept. 2014)
39 13 People v. Lynch o Defendant convicted of assault 1st, PL § 120.10(1); counsel asked judge for a “violent felony override” o 2nd Dept. held that there is no document called a “violent felony override” o BUT – the Court ordered the lower court to issue a Sentence and Commitment that specifies the subdivision under which the defendant was convicted.
The conviction is for a subsection of violent felony conviction as one that does not involve: o Infliction of serious physical injury o Armed w/ deadly weapon/dangerous instrument o Use/threatened use deadly weapon/dangerous instrument o Possession deadly weapon/dangerous instrument w/ intent to use unlawfully against another Make sure the Sentence & Commitment reflects the correct subdivision of the statute of conviction
40 14 Sentence & Commitment shows conviction under subsection (1)(a), (1)(c) (1)(a): armed w/ explosives or a deadly weapon (1)(c): uses/threatens use dangerous instrument Sentence & Commitment shows conviction under subsection (1)(b), (1)(d), or (2) (1)(b): causes physical injury (1)(d): displays pistol, revolver, rifle, etc. (2): building is a dwelling
Must have requisite number of points under the “Vera” point system (7 NYCRR 1900.4) DOCCS screens out most eligible inmates
2013 - Applicants: 21,757 - Approved: 796
41 15 A DOCCS “wrap-around” substance abuse treatment program with 3 phases: 1) a 6 month prison-based substance abuse treatment program in a DOCCS annex 2) transition to Temporary Release (work release) with follow-up treatment 3) release to parole or PRS with after-care
Eligibility for the Judicial CASAT Order:
convicted of a drug offense to participate in all 3 phases, must be deemed eligible and appropriate for the Temporary Release Program inmates with a Judicial CASAT Order who are not deemed appropriate for the Temporary Release program will be admitted to phase 1 only (DOCCS CASAT annex) when 6 to 9 months from earliest release
42 16 Correction Law 803; 7 NYCRR Part 280
Eligibility ◦ Serving indeterminate sentence for most non-violent offenses ◦ Serving a determinate sentence for a drug offense
Eligibility is limited: Not Eligible if convicted of: VFO A-I non-drug felony homicide offense incest Penal Law Art. 130 and 263 offense aggravated harassment of a DOCCS employee
43 17 Must achieve programmatic objectives: achieve Earned Eligibility Certificate and complete one of the following: o GED o alcohol and substance abuse certificate o vocational trade certificate o perform at least 400 hours as part of a community work crew/outside assignment
Indeterminate Determinate
Person parole eligible 1/7 off of conditional sooner release date ◦ Class A-1drug – 1/3 off Person released after minimum serving 5/7 of ◦ All others - 1/6 off sentence minimum Initial parole release rates higher for people who earned merit time
44 18 Correction Law § 805; 7 NYCRR Part 2100 Certification by DOCCS Commissioner of successful participation in appropriate programs Eligibility: o determinate sentence or indeterminate sentence – min 8 years or less o successfully participate in appropriate programs
What Does it Do? prerequisite for merit time release improves chances of discretionary parole release
45 19 If issued EEC, the individual: “shall be granted parole release at the expiration of his minimum term…unless the board determines that there is a reasonable probability that, if such inmates is release, he will not live and remain at liberty without violating the law…”
Without an EEC ( Executive Law § 259-i): Discretionary release on parole shall not be granted merely as a reward for good conduct or efficient performance of duties” but requires the parole board to find that “there is a reasonable probability that he will live and remain at liberty without violating the law…”
Parole Release Rates at Initial Board (October 2015 – March 2016)
EEP Decision Number % Approved Issued 2,225 38.2%
Denied 908 6.9%
Non‐certifiable 808 15.5%
Total 3,941 26.4%
46 20 Reasons for EEP Reasons for EEP Non- Certificate Denial Certifiable Poor program Insufficient time in participation programs Poor program attendance Medical (hospital or Refusal to participate in infirmary) programs Protective custody Poor disciplinary record Out to court interfered w/ program In reception participation
Correction Law 803-b Eligible inmates: those serving an indeterminate sentence for class A-1 felony
those serving a sentence for a violent felony offense
those serving a sentence for a Penal Law Art. 125 felony offense
47 21 Exclusions: first degree murder sex offenses CPCS 1st CSCS 1st those who are in custody on a revocation of presumptive release, parole, conditional release, or PRS
Program Criteria: achieve EEC & “significant programmatic accomplishment” (some): 1) participation in at least 2 years college 2) obtain a masters of professional studies degree 3) participation as an inmate program associate for no less than two years 4) receive certification from the State Department of Labor for successful participation in an apprenticeship program 5) work as an inmate hospice aid for a period of no less than two years
48 22 A person can easily lose eligibility for LCTA: “serious disciplinary infraction” (to be defined by DOCS)
“overall poor institutional record”
“frivolous” lawsuit
Impact on sentence Determinate sentence eligible for CR 6 months prior to regular CR date Indeterminate sentence eligible for parole 6 months prior to completion of minimum
49 23 50 EARLY RELEASE AND OTHER PRISON-BASED PROGRAMS: RECENT CHANGES AS A RESULT OF 2009 DRUG LAW REFORM ACT AND 2010 LEGISLATIVE CHANGES TO SHOCK, WILLARD, AND LCTA PROGRAMS.
Together, the 2009 Drug Law Reform Act and 2010 legislative changes to the Willard Drug Treatment program Shock Incarceration program have resulted in several significant changes to various Department of Correctional Services and Division of Parole programs. Defense lawyers should be aware of these changes to advocate effectively so that their clients are eligible for potential early release possibilities. These changes are described below.
Willard Drug Treatment/Parole Supervision Sentence (CPL §410.91):
A joint program between the Division of Parole (Parole), Department of Correctional Services (DOCS), and the Office of Alcoholism and Substance Abuse Services (OASAS), Willard was originally established to target certain class D and E second felony offenders whose criminal conduct is related to a substance abuse problem. Willard is a sentence of parole supervision, with the first ninety days spent in an intensive drug treatment program. Since its inception in 1995, Willard has been available to second felony offenders convicted of a “specified offense” as defined by CPL § 410.91(5), upon a finding that the defendant has a substance abuse history that is “a significant contributing factor” to his or her criminal conduct, that this substance abuse problem can be addressed by a period of parole supervision, and that “imposition of such a sentence would not have an adverse effect on public safety or public confidence in the integrity of the criminal justice system.” CPL § 410.91(3). For class D felony offenders, under prior law, Willard was not available absent consent of the prosecution.
The drug law reform legislation makes several significant changes to CPL § 410.91;
1) The list of “specified offenses” is expanded to include burglary in the third degree, class C drug offenses, and first-time class B drug offenses.
Under the reform legislation, the following are now the “specified offenses” listed in CPL § 410.91(5), with the new offenses in italics: • burglary 3rd , PL 140.20 • criminal mischief 3rd , PL 145.05 • criminal mischief 2nd , PL 145.10 • grand larceny 4th , PL 155.30 (excluding subdivisions 7 and 11) • grand larceny 3rd , PL 155.35 (excluding offenses involving firearms, rifles and
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shotguns) • unauthorized use of a vehicle 2nd , PL 165.06 • criminal possession of stolen property 4th , PL 165.45 (excluding subdivisions 4 and 7) • criminal possession of stolen property 3rd , PL 165.50 (excluding offenses involving firearms, rifles and shotguns) • forgery 2nd , PL 170.10 • criminal possession of a forged instrument 2nd , PL 170.15 • unlawfully using slugs 1st , PL 170.60 • any attempt to commit any of the above-listed offenses • any class C, D or E felony drug offense • any class B first-time felony drug offense
2) Those who have been previously convicted of a Class B Article 220 offense are no longer excluded from Willard eligibility.
Old CPL § 410.91(2) excluded from Willard eligibility all defendants who had previously been convicted of a violent felony offense, a class A felony, and any class B felony. Under the 2009 amendments to this provision, those who have previously been convicted of a class B drug offense and sentenced pursuant PL § 70.70(2)(a) (first time felony offense) are no longer excluded from Willard eligibility.
3) District Attorney approval is no longer needed for class D felony offenders.
CPL § 410.91(4), which required District Attorney approval for class D felony offenders as a prerequisite for a Willard sentence, has been repealed. There is no longer any requirement that the prosecution consent to any Willard sentence.
4) Willard is now available to first time B felony drug offenders.
As explained above, Willard was originally established to target second felony offenders. Thus, subdivision 2 of CPL § 410.91, which generally defines Willard eligibility, formerly read as follows:
A defendant is an “eligible defendant” for purposes of a sentence of parole supervision when such defendant is a second felony offender convicted of a specified offense... (Emphasis added)
With the 2009 drug law reform, the Legislature sought to expand sentencing options available to class B first-time felony drug offenders, and as described above, did so by making a Willard sentence available to this group of defendants. Willard is not viewed as a necessary option for class C, D, and E first-time felony drug offenders because other non-incarcerative and less restrictive sentencing options are available to such defendants. Indeed, the centerpiece of the 2009 drug law reform is judicial authorization for diversion to treatment for felony drug
CENTER FOR COMMUNITY ALTERNATIVES 115 East Jefferson Street, Syracuse, NY 13202 39 West 19th Street,52 New York, NY 10011 -3- offenders with an identified substance abuse problem.
In amending CPL § 410.91 to make Willard a sentencing option for class B first-time felony drug offenders, the Legislature added this category of offense to the list of “specified offenses” in subdivision 5 and then omitted the word “second” from subdivision 2, so that this provision now reads as follows:
A defendant is an “eligible defendant” for purposes of a sentence of parole supervision when such defendant is a felony offender convicted of a specified offense....
As a result, this provision could be misinterpreted as providing that class C, D and E first time felony offenders convicted of one of the “specified offenses” in subsection (5) are eligible for Willard. For first time felony drug offenders, Willard is reserved only the more serious class B offenses.
5) Alternative to Willard for Individuals with Medical or Mental Health Issues: Correction Law § 2(20).
In addition to the changes described above, in May 2010, the Legislature again modified Willard (via updates to Correction Law § 2(20)) to allow for alternative-to-Willard programs for defendants with significant medical or mental health problems. Like the alternative-to-Shock program discussed further below, if a defendant sentenced to Willard “requires a degree of medical care or mental health care that cannot be provided at a drug treatment campus,” DOCS must propose an alternative-to-Willard program. If the defendant agrees to participate in this program and successfully completes it, the defendant shall be treated the same as those who successfully complete the 90 day drug treatment program at Willard. If the defendant objects in writing to the proposed alternative-to-Willard program, DOCS must notify the sentencing judge of the proposed alternative, who shall then notify the prosecution and defense counsel. The defendant shall then appear before the sentencing judge, who shall consider any submission from the defendant, defense counsel, and prosecution and also provide the parties an opportunity to be heard on the issue. Ultimately, the sentencing judge may modify the sentence notwithstanding CPL § 430.10 (sentence may not be modified after the sentence has commenced).
Shock Incarceration Program (Correction Law §§ 865-867)
Started in 1987 as a Department of Correctional Services Program, Shock is a 6 month boot-camp-style program that provides intensive substance abuse treatment, education, and an opportunity for a significantly reduced prison sentences for those who successfully complete the program. Those who graduate from the Shock program are awarded an Earned Eligibility Certificate and immediately eligible for parole release (for those serving indeterminate sentences) or conditional release (for those serving determinate sentences). See generally Correction Law §§ 865-867. Until the 2009 and 2010 amendments, eligibility for Shock was determined only upon reception at a reception facility and inmates were eligible for Shock only if: within 3 years
CENTER FOR COMMUNITY ALTERNATIVES 115 East Jefferson Street, Syracuse, NY 13202 39 West 19th Street,53 New York, NY 10011 -4- of parole eligibility or conditional release at time of reception; at least 16 years of age and not yet 40 at time of reception; not convicted of an A-I felony, violent felony offense, homicide, specified sex offense, or escape or absconding offense; and had no prior conviction for a felony upon which a determinate or indeterminate sentence was imposed. Unlike Willard, decisions regarding placement in Shock were solely the province of DOCS, and sentencing judges had no authority to order defendants placed into the Shock program.
The 2009 and 2010 legislation have resulted in the following significant changes to Shock:
1) Judicially Ordered Shock and Alternative to Shock Programs (PL § 60.04(7) and Correction Law § 867(2-a))
Sentencing judges are now authorized to order Shock placement for those defendants convicted of a controlled substance or marijuana offense which requires a prison sentence. Defendants must still meet the eligibility requirements of the program outlined in Correction Law § 865(1) – that is, be the requisite age and not also be convicted of an A-I felony, violent felony offense, homicide, specified sex offenses, or an escape or absconding offense, and have not previously been convicted of an violent felony offense for which a determinate or indeterminate sentence was imposed.
Defense counsel should note a couple of important points about judicial Shock orders. First, such an order can be issued only upon motion of the defense. Penal Law § 60.04(7)(a). Second, as discussed below, amendments to Correction Law § 865(2) establish a new concept of “rolling admissions” into Shock. According to the statutory interpretation of both the Office of Court Administration (OCA) and DOCS, the rolling admissions established by amendments to Correction Law § 865(2) is applicable to judicially ordered Shock as well as those selected by DOCS without a judicial order. For example, a defendant who receives a 6 year determinate sentence is eligible for a judicial order of Shock, but will have to wait to be placed into the program until after she is within 3 years of her conditional release date.
If a judicially ordered Shock defendant is found ineligible for the program because of a medical or mental health condition, DOCS must propose an alternative-to-shock program. If the defendant agrees to participate in this program and successfully completes it, the defendant shall be treated the same as those who successfully complete the Shock program – that is, he or she shall be awarded an Earned Eligibility Certificate and be immediately eligible for conditional release. If the defendant objects in writing to the proposed alternative-to-shock program, DOCS must notify the sentencing judge of the proposed alternative, who shall then notify the prosecution and defense counsel. The defendant shall then appear before the sentencing judge, who shall consider any submission from the defendant, defense counsel, and prosecution and also provide the parties an opportunity to be heard on the issue. Ultimately, the sentencing judge may modify the sentence notwithstanding CPL § 430.10 (sentence may not be modified after the sentence has commenced).
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2) Shock Eligibility Extended Beyond Reception: Rolling Admissions (Correction Law § 865(2))
The Budget Bill extends Shock eligibility beyond reception so that now inmates who were not eligible for Shock at reception because of the lengths of their sentences can become eligible for Shock once they are within three years of their parole eligibility (for those serving indeterminate sentences) or conditional release (for those serving determinate sentences). Thus, eligibility is now determined at reception facilities for new inmates and general confinement facilities for those who are approaching parole or conditional release.
3) Changes in Exclusions Based on Prior Criminal History (Correction Law § 865)
Prior to 2010, there were two types of exclusions based on prior criminal history. Specifically, individuals who had previously served a state sentence were excluded from Shock as were individuals convicted of a B felony drug offense who had previously been convicted of a violent felony offense. With the 2010 changes to Correction Law § 865, there is now only one exclusion based on prior criminal history – those who were previously convicted of a violent felony offense for which a determinate or indeterminate sentence was imposed (i.e., a state prison sentence), are not eligible for Shock. This change reflects the fact that with rolling admissions, Shock is no longer a program designed for those who are “new to prison.”
4) Shock Eligibility: 50 is the New 40 (Correction Law § 865)
The Budget Bill also amends Correction Law § 865 (1) to extend the upper age limit for Shock eligibility from 40 to 50 years of age, proving yet again that 50 is the new 40. Now inmates are eligible for Shock as long as they have not achieved their 50th birthday at the point of eligibility, whether it is reception or a general confinement facility.
Comprehensive Alcohol and Substance Abuse Treatment (Correction Law § 2(18)):
The CASAT program is a three-phased comprehensive substance abuse treatment program that includes prison-based substance abuse treatment, work-release with a community- based treatment component, and parole with substance abuse aftercare. Generally, inmates are eligible for CASAT if eligible for Temporary Release, which means the inmate must be within two years of his or her parole or conditional release date. The 2004 DLRA expedited CASAT eligibility by 6 months for those convicted of a Penal Law Article 220 or 221 offense. However, the 2004 DLRA also included an often-overlooked, though fully enforced, provision requiring that second felony class B drug offenders must serve at least 18 months of their sentence before achieving CASAT eligibility. This 18 month mandate has been halved so that now second felony class B drug offenders now must serve at least nine months of their sentence before achieving CASAT eligibility.
CENTER FOR COMMUNITY ALTERNATIVES 115 East Jefferson Street, Syracuse, NY 13202 39 West 19th Street,55 New York, NY 10011 -6-
Limited Credit Time Allowance for Those Convicted of a Violent Felony Offense (Correction Law § 803-b)
For years advocates have called for the expansion of the merit time program so that people in prison serving non-drug determinate sentences could earn merit time in the same way as others serving indeterminate sentences and drug determinate sentences. It was also hoped that a person whose controlling sentence was a non-violent one would not be determined ineligible to earn merit time by a non-controlling sentence for a violent felony. The credit limited time allowance in the 2009 legislation, however, is nothing short of disappointing and will prove nearly impossible for inmates to achieve. This legislation amends the Correction Law by adding a new section 803-b, described below.
At the outset, section 803-b excludes individuals convicted of murder in the first degree, any sex offense, or any attempt or conspiracy to commit these offenses.
Otherwise, “eligible offenders” are defined as: 1) those subject to an indeterminate sentence for any class A-I felony other than criminal possession of a controlled substance in the first degree (PL § 220.21) or criminal sale of a controlled substance in the first degree (PL § 220.43), or any attempt or conspiracy to commit these offenses; 2) those subject to an indeterminate or determinate sentence imposed for a violent felony offense as listed in Penal Law § 70.02(1); and 3) those subject to an indeterminate or determinate sentence for any Penal Law Article 125 offense. A person is not eligible if he or she is returned to DOCS on a revocation of presumptive release, parole, conditional release, or post release supervision. Moreover, a person is eligible for only one limited credit time allowance, no matter how many sentences he or she is serving.
The effect of the limited credit time allowance differs depending on the type of sentence the individual is serving. Individuals serving an indeterminate life sentence are eligible for parole consideration 6 months prior to completion of their minimum term. All other individuals are eligible for conditional release 6 months prior to their regular conditional release date, provided of course, that DOCS determines that they have earned their full amount of good time. If this 6 month time allowance moves the individual’s conditional release date to before his or her parole eligibility date, the limited credit time will essentially move the parole eligibility date up so that it coincides with the advanced conditional release date.
Actually earning this limited credit time allowance is no small feat. A person must achieve an Earned Eligibility Certificate in accordance with Correction Law § 805 and achieve “significant programmatic accomplishment” which is defined in Correction Law 803-b as: participation in at least two years of college programming; obtaining a masters or professional studies degree; successful participation as an inmate program associate for no less than two years; receiving certification from the State Department of Labor for successful participation in an apprenticeship program; successfully working as an inmate hospice aid for a period of two years; successfully working in DOCS industries’ optical program for two years and receiving a certification from the American board of opticianry; receiving a Department of Labor asbestos
CENTER FOR COMMUNITY ALTERNATIVES 115 East Jefferson Street, Syracuse, NY 13202 39 West 19th Street,56 New York, NY 10011 -7- handling certificate and then working in DOCS industries’ asbestos abatement program as a hazardous materials removal worker or group leader for 18 months; successfully completing the course requirements for and passing the minimum competency screening process performance examination for a sign language interpreter and then working as a sign language interpreter for one year; successfully working in the puppies behind bars program for two years. (Note: This list is current up until January 2011. It is worth reading the most recent version of Correction Law 803-b to determine if additional programs have been are added to this list).
As hard as it is to achieve the limited credit time allowance, it is very easy to lose. A person can be disqualified from eligibility for this time allowance by being deemed to have a “serious disciplinary infraction” or “overall poor institutional record”1 or by being deemed to have filed a “frivolous lawsuit” as defined in CPLR 8303 or Fed. R. Civil Procedure, Rule 11. In addition, the DOCS Commissioner can revoke this limited credit time allowance for any disciplinary infraction or failure to successfully participate in the assigned work and treatment program, and this revocation can occur even after the individual has been awarded an Earned Eligibility Certificate.
New Parole Release Factor for Those Serving Old Rockefeller Indeterminate Sentences:
Executive Law § 259-i(2)(c)(A) lists the factors that the Parole Board must consider in deciding whether or not an individual is to be released to parole supervision. These factors are:
(i) the institutional record including program goals and accomplishments, academic achievements, vocational education, training or work assignments, therapy and interpersonal relationships with staff and inmates; (ii) performance, if any, as a participant in a temporary release program; (iii) release plans including community resources, employment, education and training and support services available to the inmate; (iv) any deportation order issued by the federal government against the inmate while in the custody of the department of correctional services and any recommendation regarding deportation made by the commissioner of the department of correctional services pursuant to section one hundred forty-seven of the correction law; and (v) any statement made to the board by the crime victim or the victim's representative, where the crime victim is deceased or is mentally or physically incapacitated.
The 2009 legislation amends this provision by requiring the Parole Board to also consider the length of the determinate sentence individuals serving time for a drug offense would be serving if sentenced under the new provisions. Specifically, the Parole Board is now directed to also consider the following:
1 The legislation requires the DOCS Commissioner to define “serious disciplinary infraction” and “overall poor institutional record,” and states that these need not be defined the same as otherwise defined under regulations enacted pursuant to Correction Law § 803.
CENTER FOR COMMUNITY ALTERNATIVES 115 East Jefferson Street, Syracuse, NY 13202 39 West 19th Street,57 New York, NY 10011 -8-
(vi) the length of the determinate sentence to which the inmate would be subject had he or she received a sentence pursuant to section 70.70 or section 70.71 of the penal law for a felony defined in article two hundred twenty or article two hundred twenty-one of the penal law.
Medical Parole (Executive Law § 259-r)
Medical parole was originally implemented in 1992 for terminally ill individuals in DOCS’s custody. See Executive Law § 259-r. Over the years, it has been primarily used by individuals over the age of 55, who are considered to have the lowest recidivism rates. As the prison population has aged, more and more imprisoned people are suffering from debilitating physical and cognitive impairments, increasing the costs associated with imprisonment.
The Legislature has sought to address these skyrocketing costs by expanding eligibility for medical parole and streamlining the application process. In general, the 2009 amendments to Executive Law § 259-r: authorize the release of individuals to parole supervision who suffer from significant and non-terminal conditions that render them so physically or cognitively debilitated that they do not present a danger to society; allows individuals who have been convicted of certain violent felonies to be eligible for medical parole consideration if they have served at least one-half of their sentence, except that inmates convicted of first-degree murder or an attempt or conspiracy to commit first-degree murder are not eligible; and allows individuals who are ambulatory, but who suffer from significant disabilities that limit their ability to perform significant normal activities of daily living to be eligible for consideration.
In deciding whether a client is eligible for medical parole, defense lawyers should read the amended provisions carefully.
CENTER FOR COMMUNITY ALTERNATIVES 115 East Jefferson Street, Syracuse, NY 13202 39 West 19th Street,58 New York, NY 10011 EARLY RELEASE CHECKLIST: DETERMINATE SENTENCES
Program Eligibility Exclusions Impact Impact on Client
Willard PL 70.06(7); 70.70(2)(d), (3)(d); CPL 410.91; Not currently convicted of non-specified offense; no prior Sentenced to parole specified 2d D & E property offenses; 2d C, VFO, class A or B non-drug felony conviction; not under supervision, with first 90 D, & E drug offenses; 1st B drug offense jurisdiction of or currently awaiting delivery to DOCS days spent at Willard (except CSCS to a Child)
Shock Correction Law 865-867; b/w 16 and 50 years Not currently convicted of A-I felony, VFO, sex, homicide, Graduates of 6 month old; within 3 years conditional release escape, or absconding. No prior VFO w/ state prison program earn Earned sentence. Must be screened by Shock screening committee Eligibility Certificate (see (which look for indications of violence, predatory Correction Law § 805) behavior, or crimes of sophistication; medical or mental and are immediately health problems) eligible for release
Judicial Shock PL60.04(7); same as above, but must also be Same as above, but screened only for medical/mental health same as above convicted drug offense problems; if exist, alternative-to-Shock program must be made available.
Temporary Release Corr. L. 851-861; 9 NYCRR 6.9; w/in 24 Not currently convicted of terrorism, VFO, sex offense, Release to community for 59 (includes CASAT) months of earliest release (30 months for entry incest, sex perf. child, homicide, escape, absconding, or extended periods of time into CASAT) and requisite time in (generally 6 aggravated harassment of DOCS employee. Limited for work, education, etc. mos; 9 mos for 2nd B felony drug offense) availability of violent felony override
Judicial CASAT PL § 60.04(6); conviction for drug offense For CASAT annex and work release, must not have any of If TR eligible, will enter above exclusions. If above exclusions apply, will only get CASAT annex for 6 CASAT annex 6-9 months prior to earliest release. months and then work release.
Presumptive Release Corr. Law 806; have achieved an EEC (Corr Not currently convicted of A-I felony, VFO, specified Not applicable to L. 805) homicide, sex offense, incest, sex performance of child, determinate sentences, hate crime, terrorism, or aggravated harassment of since parole board not employee; no serious disciplinary infraction or frivolous involved in release lawsuit decision..
Merit Release Corr. L. 803; achieve EEC & one of 4 program Not currently convicted of A-I non-drug felony, VFO, 1/7 off minimum in objectives. specified homicide, sex offense, incest, sex performance of addition to the 1/7 off for child, or aggravated harassment DOCS employee; no conditional release. serious disciplinary infraction or frivolous lawsuit
Conditional Release all determinate sentences poor institutional record 1/7 off determinate sentence
Post Release Supervision: 1-5 for non sex felonies (PL § 70.45(2)); 3 to 25 years for felony sex offenses (PL § 70.80).
Updated March 2015 60 EARLY RELEASE CHECKLIST: INDETERMINATE SENTENCES
Program Eligibility Exclusions Impact Impact on Client
Willard PL 70.06(7); 70.70(2)(d), (3)(d); CPL 410.91; Not currently convicted of non-specified offense; no prior Sentenced to parole specified 2d D & E property offenses; 2d C, VFO, class A or B non-drug felony conviction; not under supervision, with first 90 D, & E drug offenses; 1st B drug offense jurisdiction of or currently awaiting delivery to DOCS days spent at Willard (except CSCS to a Child)
Shock Corr. L.865-867; b/w 16 and 50 years old; Not currently convicted of A-I felony, VFO, sex, homicide, Graduates of 6 month within 3 years parole eligibility escape, or absconding. No prior VFO w/ state prison program earn Earned Elig. sentence. Screened by Shock screening committee (screen Cert (see Corr. L. 805) for indications of violence, predatory behavior, or crimes of and are immediately sophistication; medical or mental health problems) parole eligible
Judicial Shock PL 60.04(7); same as above, but must be Because drug convictions require determinate sentence, convicted drug offense program not available for an offense that results in indeterminate sentence
Temporary Release Corr. L. 851-861; 9 NYCRR 6.9; w/in 24 mos Not currently convicted of terrorism, VFO, sex offense, release to community for 61 (includes CASAT) of earliest release (30 months entry into incest, sex perf. child, homicide, escape, absconding, or extended periods of time CASAT) and requisite time in (generally 6 mos; aggravated harassment of DOCS employee. Limited for work, education, etc. 9 mos for second B felony drug offense) availability of violent felony override
Judicial CASAT PL 60.04(6); conviction for drug offense Because drug convictions require determinate sentence, program not available for an offense that results in indeterminate sentence
Presumptive Correction Law 806; have achieved an EEC Not currently convicted of A-I felony, VFO, specified Released at earliest Release (Corr. L. 805) homicide, sex offense, incest, sex performance of child, hate release opportunity crime, terrorism, or aggravated harassment of employee; no without having to appear serious disciplinary infraction or frivolous lawsuit before Parole Board.
Merit Release Correction Law § 803; achieve EEC & one of 4 Not currently convicted of A-I non-drug felony, VFO, 1/6 off minimum sentence program objectives. specified homicide, sex offense, incest, sex performance of (1/3 for A-I drug felonies) child, or aggravated harassment DOCS employee; no serious disciplinary infraction or frivolous lawsuit
Supplemental Merit L. 2005, Ch. 736, § 30; drug offense conviction same as above, but A-I felony drug offenses excluded. an additional 1/6 off min. Release prior to 2004; same as above, but must complete 2 of 4 program objectives.
Conditional Release all indeterminate sentences poor institutional record 1/3 off maximum
Updated March 2015 62 WILLARD ELIGIBILITY: UNDERSTANDING THE LIMITATION “SUBJECT TO AN UNDISCHARGED TERM OF PRISON”
Criminal Procedure Law (CPL) § 410.91(2), which defines those who are eligible for a sentence of Willard, excludes those who are “subject to an undischarged term of incarceration.” On its face, this limitation seems to apply to those who are under parole supervision when convicted of the Willard eligible offense. Yet, Willard has traditionally been imposed for parole violators, so if read in this manner, this limitation makes no sense.
In fact, this language was never intended to exclude from Willard eligibility those who were on parole at the time of commission of the Willard eligible offense. When he was Deputy Commissioner and Counsel for the Department of Correctional Services, Anthony Annucci reiterated this point in a letter to the Office of Court Administration, stating as follows: “The language in question was never intended to exclude from Willard the defendant who is on parole or conditional release from a prior term of imprisonment when the present crime is committed, and is otherwise eligible to receive a sentence of parole supervision.”
In enacting the 2004 Drug Law Reform Act (L. 2004, ch. 738), the Legislature sought to clarify this limitation as well by changing Penal Law § 70.06(7) to eliminate the language “subject to an undischarged term of imprisonment” and to substitute the clarifying language “is not under the jurisdiction of or awaiting delivery to the department of correctional services.” Thus, Penal Law § 70.06(7) now provides that only those who are in state prison or “awaiting delivery” to the Department of Correctional Services for another crime are excluded from Willard eligibility. It can only be assumed that the failure to similarly change this language in CPL § 410.91 was a legislative oversight. Nonetheless, the changes to Penal Law § 70.06(7) makes it clear that only those who commit a new crime while in state prison or who commit a new crime while having just been sentenced to state prison (and are awaiting delivery to the Department of Correctional Services) are ineligible for Willard.
63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 JUDICIAL DIVERSION COURTS: INNOVATIVE APPROACHES TO THE TREATMENT COURT MODEL
Submitted By: HON. MICHAEL MOHUN Wyoming County Court Warsaw, NY
85 86 WYOMING COUNTY TREATMENT COURT PROGRAM
The Wyoming County Treatment Court is a court designed to assist defendants who suffer from drug and/or alcohol abuse or dependence. The goal of the Treatment Court is to break the cycle of substance abuse and criminal activity by providing treatment, education, responsibility, mandatory attendance and monitored abstinence rather than incarceration.
The Honorable Michael M. Mohun, Wyoming County Court Judge, presides over the Treatment Court. The Team consists of representatives from the District Attorney=s Office, Public Defender=s Office, Probation
Department, our Treatment Court Coordinator, Spectrum Human Services,
Wyoming County Mental Health Clinic, Wyoming County Mental Health
Department, a Wyoming County Navigator, Literacy West NY, the Veteran=s
Administration, and the Wyoming County Jail Medical Services.
If the defendant is found to be eligible for participation in our program, our Team has high expectations of the defendant. First and foremost, that the defendant be honest with him/herself and to be honest with us. We expect the defendant to report as directed, attend treatment and comply with the contract that the defendant signs to become a participant in our program.
Upon signing the contract, the defendant will enter a plea of guilty, usually to a felony. The defendant will sign the contract and be placed on
Probation Supervision. The length of participation is at least one year. If the defendant is successful in following the terms of probation and contract, upon completion of Level IV of our program, the defendant will be allowed to plea to a reduced charge or have some of their charges reduced or dismissed, 87 depending upon their contract, and will not face a term of imprisonment, but
rather a community based sentence.
Treatment for drug or alcohol abuse and mental health counseling is a
mandatory part of this program. If the defendant fails to appear as directed
for treatment or fails to provide a requested urine sample, the Treatment Team
assumes that the defendant is or has been using and that absence/refusal
results in a jail sanction. It could also end the defendant=s time in the
Program.
If the defendant is unable to follow the rules, such as no use, no arrests,
adherence to curfew limits and faithful attendance at treatment, a sanction is
imposed and usually consists of the setting of a new clean and sober date and
jail time of 1 week increments. Thereafter, the Team will decide if the
defendant is really committed about turning their life around and if they are
someone who is deserving of efforts exerted.
Our Treatment Court is a four-level program that spans a minimum of
one year. The total amount of time the defendant spends in Treatment Court
is based upon their progress and commitment. If the defendant remains sober and abides by the rules, they will advance to the next level after a three month period. The various levels of our program are:
LEVEL I
Early Recovery
During Level I, the defendant must:
* Abide by the Contract and all Conditions of Interim Probation entered
into on the day their contract was signed.
88 * Report to their Probation Officer as directed.
* Submit to drug, alcohol or mental health evaluation as directed by
Probation Officer and follow all recommendations.
* Appear at the Probation Department prior to Treatment Court for
screening/testing. Remember attendance is mandatory.
* Appear every Wednesday morning at 10:00 a.m. before Judge Mohun for
Treatment Court.
After three months at Level I, if the defendant has remained clean and sober and have had no unexcused absences, they may be eligible to advance to Level II. Prior to advancing, the defendant will be expected to submit a letter to Judge Mohun detailing their achievements in Level I and setting forth their goals for Level II. All essays must be submitted the week before they move up and must be written in blue or black ink or typewritten.
LEVEL II
Intensive Treatment
During Level II, the defendant must:
* Abide by their Contract and all Conditions of Interim Probation
* Report to their Probation Officer as directed.
* Submit to drug, alcohol or mental health evaluation as directed by
Probation Officer and follow through with treatment as recommended.
* If they are not presently employed or in school, they must begin seeking
employment or pursuing vocational/educational training.
* Appear at the Probation Department prior to every Court session for
screening/testing.
89 * Appear as directed by the Treatment Court Coordinator, every other
Wednesday morning at 10:00 a.m. before Judge Mohun for Treatment
Court.
After three months at Level II, if the defendant has remained clean and
sober and have had no unexcused absences, they may be eligible to advance
to Level III. Prior to advancing, they will be expected to submit a letter to
Judge Mohun detailing their achievements in Level II and setting forth their
goals for Level III.
Upon completion of Level II, the defendant will have now completed a
minimum of six months in the Treatment Court program if they have followed
all rules and not been sanctioned.
LEVEL III
Transition
During Level III, the defendant must:
* Abide by their Contract and all Conditions of Interim Probation.
* Report to their Probation Officer as directed.
* Continue drug, alcohol or mental health treatment.
* Have or obtain employment or actively be pursuing vocation/education
training.
* Appear at the Probation Department prior to every Court session for
screening/testing.
* Appear as directed by the Treatment Court Coordinator, every three
weeks on a Wednesday morning at 10:00 a.m. before Judge Mohun for
90 Treatment Court.
After three months at Level III, if the defendant has remained clean and sober and have had no unexcused absences, they may be eligible to advance to Level IV. Prior to advancing, they will be expected to submit a letter to
Judge Mohun detailing their achievements in Level III and setting forth their goals for Level IV.
LEVEL IV
Relapse Prevention
During Level IV, the defendant must:
* Abide by their Contract and all Conditions of Interim Probation.
* Report to their Probation Officer as directed.
* Continue drug, alcohol or mental health treatment, but they may have
successfully completed this step by this time. If so, they will be
required to follow their aftercare plan.
* Have or obtain employment or actively be pursuing vocation/education
training.
* Appear at the Probation Department prior to every Court session for
screening/testing.
* Appear as directed by the Treatment Court Coordinator, once per month
on a Wednesday morning at 10:00 a.m. before Judge Mohun for
Treatment Court.
Recovery from any kind of addiction means developing self-sufficiency
91 and becoming a productive and responsible member of the community. It is recommended that they be employed prior to graduation or actively involved in a vocational/educational program. It will be expected that they are living in a Probation-approved stable living environment. It goes without saying, they must also be clean and sober, for at least one year.
After three months at Level IV, they will graduate from our Treatment
Court. A court proceeding will be conducted whereby the District Attorney will make a motion to the Court seeking a reduction of the charges filed against the defendant or dismiss some of the charges pending against the defendant to the agreed-upon reduced plea. They will be sentenced to the agreed-upon disposition of their criminal charges as contained in the contract they signed.
As is the case with all other Levels of our Treatment, the defendant will be required to provide an essay to Judge Mohun detailing to him why they feel they should be allowed to graduate, how the program has changed their life and their plans for remaining clean and sober in the future.
Graduation is a time to celebrate their transition to a healthy lifestyle!
Defendants will be able to invite their family and friends to their graduation ceremony as we are certain that they will be as proud of the defendant as the entire Treatment Court Team is! We all want to recognize this special event to celebrate their accomplishments and to open the door to their new life.
92 Wyoming County Treatment Court: Stake Holders
The Wyoming County Treatment Court is venued in Warsaw New York.
The Village of Warsaw is the County seat of Wyoming County. Wyoming
County is located in the western part of New York State. Per the 2010
census it has a population of 42,531 people. The county consists of 596
square miles. The predominant industry is agriculture; dairy farming and
cash crops. There are no cities within Wyoming County. Law enforcement
duties are performed by the New York State Police, Wyoming County
Sheriff’s office and four Village police departments. The Wyoming County
Treatment Court is a collaborative effort. A meeting is held every
Wednesday morning at the Court House in Warsaw with all of the stake holders. Attending this meeting are members of the following agencies and organizations:
1) Wyoming County Court Judge Michael Mohun, Court
Clerks, Becky Miller and Betty Fisher, Treatment Court
Coordinator, James Messe.
All are employees of the New York State Office of Court
Administration. Judge Mohun is the elected County Court Judge of
Wyoming County. He presides over the Wyoming County Treatment
Court on a weekly basis. Judge Mohun chairs the weekly meeting,
which are attended by all the stake holders. He presides over the
actual court proceedings involving the arraignment, plea, sanctions,
hearings, sentences and graduations.
93 Becky Miller and Betty Fisher are Court Clerks, who are
responsible for the data entry required for the smooth and proper
administration of the Wyoming County Treatment Court.
James Messe is the Wyoming County Treatment Court
Coordinator. He is initially responsible for interviewing potential
Treatment Court candidates and conducts a psycho-social assessment.
He then presents his assessment to the Treatment Court team, along with the Probation assessment to determine eligibility for the Wyoming
County Treatment Court. He establishes the necessary level of treatment for each individual client and assesses what entitlements they have or may need. Upon entry into the program, Mr. Messe connects the participant with the appropriate treatment provider. He is responsible to assure the production of regular status reports. He assists the navigator is assuring Health Insurance coverage. Mr.
Messe is invaluable in securing in-patient treatment for those participants who are unable to remain in the community. He assists in securing and testing participant’s samples for the detection of illicit drugs and alcohol. He communicates regularly with each participant to assure their compliance with the Treatment Court conditions.
2) Wyoming County District Attorney Donald O’Geen
Donald O’Geen is the elected District Attorney of Wyoming
County. His office consists of him and two assistant District Attorneys.
Mr. O’Geen has recognized the value and importance of the Treatment
94 Court model. He personally reviews each participant for eligibility. If
eligible, he along with the Public Defender or private attorney
negotiate a disposition that includes Treatment Court participation. He
attends each weekly meeting and actively participates in the discussion. He is an advocate for the People. Mr. O’Geen represents the State during the court proceedings, which include arraignment, plea, sanctions, hearings, sentences and graduation.
The District Attorney’s office expends tremendous resources because of its participation and support of the Wyoming County
Treatment Court. Mr. O’Geen devotes every Wednesday to attend the meeting and subsequent Court proceeding. A Treatment court participant will appear in court a minimum of twenty–five times before the matter is resolved. A typical criminal case will be resolved in usually four to eight appearances. The District Attorney recognizes that this extra effort exerted by his office reflected in time and manpower will result in breaking the cycle of addiction and criminality.
3) Wyoming County Public Defender, Norman Effman
Norman Effman is the appointed Public Defender of Wyoming
County. His office consists of him and three Assistant Public
Defenders. Mr. Effman’s office represent all indigent criminal defendants who are charged with a crime in Wyoming County. Along with the District Attorney, he identifies those criminal defendants that
are potential Treatment Court participants. If eligible he along with
95 the District Attorney negotiate a disposition that includes Treatment
Court participation. He also attends each weekly meeting and actively participates in the discussion as an advocate for the individual. Mr.
Effman represents the individual during the court proceedings, which include arraignment, plea, sanctions, hearings, sentences and graduations.
The public Defender’s office expends tremendous resources because of its participation and support of the Wyoming County
Treatment Court. Mr. Effman devotes every Wednesday to attend the meeting and subsequent Court proceeding. A treatment court participant will appear in court a minimum of twenty–five times before the matter is resolved. A typical criminal case will be resolved in usually four to eight appearances. The Public Defender recognizes that this extra effort reflected in time and manpower will result in breaking the cycle of addiction and criminality.
4) Wyoming County Probation Department: Gene Traxler
Gene Traxler, Sr. Probation Officer with the Wyoming County
Probation Department. The Wyoming County Probation Department is operated under the direction of Director Joan Kibler. The department consists of 7 officers. This department has been involved in the
Treatment Court since its inception in 2003 and has been un-wavering in its support and has been primarily responsible for its success.
96 Each participant is placed on Interim Probation supervision immediately upon his or her acceptance into the Wyoming County
Treatment Court. These conditions of Probation are tailored
specifically to assure that the participant leads a law abiding,
productive and drug free life. Gene Traxler is assigned to supervise each and every Treatment Court participant. This requires PO Traxler to initially assess each participant needs regarding treatment, home environment, educational, vocational and transportation needs. At a minimum PO Traxler meets with each participant weekly to assess their compliance with the terms of Probation and contract.
Additionally, PO Traxler, with other members of the department performs random and unannounced home visits to ensure curfews are followed, and compliance.
Testing of each participant is both random and scheduled. Each participant is tested prior to each Treatment Court session. These tests ensure sobriety. Officer Traxler is in constant contact with treatment agencies, family members, employers and other service providers, to verify attendance, compliance, and employment.
Employers are made aware of tax credits for hiring participants through the Work Opportunity Tax Credit Program. If there are any violations, positive tests, attendance issues, discrepancies or other issues, this information is relayed to the team for discussion at the next team meeting or in some cases a warrant is sought for the
97 participant’s arrest for violating Probation, and the participant may be and jailed. Strict compliance with the terms of probation and the terms of the contract will assure that the participant is afforded the opportunity to break the vicious cycle of addiction and lead a law abiding, healthy and productive life.
5) Wyoming County Jail Medical Services: Cheryl Glaus, R.N. and Laura Dutton, R.N.
Wyoming County Jail Medical Services works collaboratively with the treatment team to address every participant that is incarcerated while participating in Treatment Court. The jail nurse attends
Treatment Court meetings to identify participants who may be presenting with withdrawal concerns, their needs for medical or mental health services while incarcerated, and their need for continuation of medications. Jail medical services also works to gather participants’ medical and mental health information to provide a comprehensive and inclusive plan of care. This information can then be shared with all members of the treatment team and with inpatient treatment providers. The goal is to work with all disciplines involved to provide continuity of care while they are incarcerated and to keep the treatment team informed of each participant’s progress.
Additionally, New York’s internet system to combat over prescribing (I-STOP) is utilized. This system, begun in 2012, aims to reduce the number of deaths caused by opioid addiction and the over
98 prescription of opioid medications. As of March 27, 2016 all drugs, including controlled substances must be prescribed electronically. As of
August 27, 2013 all New York prescribers must consult the Prescription
Monitoring Program when writing a prescription for a Schedule II, III, or IV controlled substance.
It is widely known that inmates with a mental illness have increased in numbers. Additionally, the intensity and complicated nature of their illnesses and life circumstances is challenging to manage in the jail setting. It is estimated that 20 percent of inmates in jail and 15 percent of inmates in state prisons have a serious mental illness. Mentally-ill inmates are often jail management problems as they do not understand jail rules, and violate them. These inmates also are more likely to contemplate suicide. Because of the need to have added staffing, mentally-ill inmates cost more to house in a jail setting. (Treatment Advocacy Center, Arlington, VA). The Wyoming
County Sheriff’s Dept. and other Departments that work with inmates regularly, agree that mentally-ill inmates have increased in the jail in the last several years. As the numbers have increased, the jail behaviors and intensity of mental illness, the Sheriff’s Dept. contends, have increased as well.
The regular, on-site presence of mental health professional,
Laura Dutton, R.N. provides mental health services to inmates thus decreasing management problems and safety issues (i.e., suicide
99 watch). As a result, utilization of extra staff time by corrections
officers is decreased as well, saving the County dollars. Having mental health professional, Laura Dutton, R.N. working at the jail, brings continuity of services to the inmates and provides ongoing and regular consultation with the Jail Nurse and the corrections officer staff. Some hospitalizations have been avoided by having increased mental health services provided at the jail site. Although housed at the jail site,
Laura Dutton, R.N. functions as a member of the WCCHS Behavioral
Health Unit and is supervised by the Unit’s Director and Psychiatrist.
There are additional WCCHS staff who provide complimentary and additional services in the jail through special referral by the Jail Nurse or Administrator.
6) Spectrum Human Services: Mitchell Kibler
Spectrum Human Services provides outpatient mental health and chemical dependency treatment services to the treatment court participants through their Warsaw location as well as providing supportive housing. Participants attend weekly group and individual sessions to address their diagnosis.
The treatment program offers a multi-phase treatment curriculum. This allows the clinical staff to develop recommended treatment frequencies based upon the individual’s diagnosis. This is structured similarly to the Treatment Court Program as the early phases of treatment are intensive. Clients will attend a combination of
100 group and individual therapy sessions. In early phases these groups and individual sessions could be attended up to five times per week to address identified needs. As the client progresses throughout the treatment program they will be seen less frequently to facilitate the development of a personal support network and to allow vocational training or employment.
Spectrum Human Services offers care coordination services. The staff assist the individuals by providing support and advocacy for needed services. This, at times, involves finding housing and assisting the individuals in obtaining daily life necessities, as well as assisting in transportation to, and scheduling of appointments, while offering emotional support. The care coordination and housing program staff attend meetings with the Wyoming County Treatment Court team to collaborate with the other involved agencies. This allows individuals involved with the Treatment Court access to a myriad of services to address ongoing needs.
Medication assisted treatment for opiate addiction is offered.
Suboxone and Vivitrol are prescribed. Suboxone combines
Buprenorphine, an opiate with Naloxone, an opiate blocker. It is taken orally daily and requires strict testing and physician supervision.
Vivitrol is purely an opiate blocker and given once a month by injection. These medications are used in conjunction with either inpatient or outpatient treatment.
101 7) Wyoming County Mental Health Clinic: Kazmiera Ostertag
The Wyoming County Mental Health Clinic provides outpatient mental health services, focusing on co-occurring disorders. Participants attend weekly group or individual sessions to address their diagnosis.
Medication assisted treatment for opiate addiction is offered.
Suboxone and Vivitrol are prescribed. Suboxone combines
Buprenorphine, an opiate with Naloxone, an opiate blocker. It is taken
orally daily and requires strict testing and physician supervision.
Vivitrol is purely an opiate blocker and given once a month by
injection. These medications are used in conjunction with either
inpatient or outpatient treatment.
8) Literacy West NY, Inc.: Holly Mazurkiewicz
This organization assists Treatment Court participants to earn a
high school equivalency diploma. Classes are scheduled in their
Warsaw Office, Monday through Friday. The following topics are
covered: reading, writing, social studies, science and mathematics.
When a Treatment Court participant obtains a high school equivalency
diploma, Literacy West will assist that individual in attending college.
Genesee Community College has campuses in two locations in
Wyoming County. Literacy West works closely with Genesee
Community College is enrolling Treatment Court participants. Those
who do not wish to attend college are offered National Work Readiness
Credential Classes and career coaching.
102 9) Department of Veterans Affairs: John LaHood
Veteran Justice Outreach Coordinator John LaHood has been
assigned by the Veteran’s Administration to assist our Court when
dealing with Veterans. Mr. LaHood first determines whether treatment
court participants are eligible for services through the Veterans
Administration. If they are eligible, he coordinates efforts to
determine the appropriate level of care after diagnosis. The eligible veterans are treated at the various Veteran’s Administration facilities located throughout Western New York. These locations are located in
Batavia, Bath, Canandaigua and Buffalo.
10) Wyoming County Health Department Navigator Program:
Cathy Murdie
The navigator identifies those treatment court participants in
need of health insurance. Providing health insurance removes some of
the barriers associated with inpatient and outpatient treatment options
as well as the ability to afford prescribed medication necessary for
successful completion.
11) Wyoming County Mental Health Department: Colleen
Eccleston and Sue Gagne
The Wyoming County Mental Health Department assures the delivery of quality services to residents of Wyoming County in the areas of mental health, alcoholism and substance abuse and developmental disability. This includes services coordination,
103 community-oriented prevention education, consultation, and
performance management of agencies providing treatment,
prevention, rehabilitation and/or recovery services on behalf of the
County of Wyoming. The Department plays a key role in monitoring
services outcomes, determining areas of unmet needs and/or gaps in
the services delivery system, setting priorities for services
development and allocation, identifying potential sources of funding
and initiating proposals in collaboration with providers and peers to
meet those needs.
Weekly Meeting/Court Proceedings
When the Treatment Court first began almost fourteen years ago
participants addicted to opiates was a rarity. The court dealt with alcohol,
cocaine, methamphetamine, designer drugs and non-opiate prescription pill
abuse primarily. Today, over 70% of the participants are diagnosed as
opiate dependent, primarily heroin. At the weekly meetings, each treatment court participant is discussed individually. First, a discussion is had regarding their treatment; whether there is regular attendance and active participation in counselling whether in groups or individually. Testing of either breath or urine is routinely done by both the Probation Department and the treatment providers. A failed test will result in a jail sanction or if the subject denies use, then the sample is sent to the lab for testing. Next, the discussion focuses on the participant’s employment, vocational training or schooling. Lastly, the participant’s overall attitude and demeanor is
104 discussed in regards to his/her compliance with the probation terms and
contract conditions.
The Wyoming County Treatment Court process has evolved into a
unified system of care, with an integrated cross-systems approach supported
by non-traditional, community partnership. This unique team offers a wide-
open door of hope for each individual qualifying for the program. Whether
the primary problem is mental health or addiction, the treatment team
utilizes weekly meetings to review the participant’s status; including their life
domain needs, while recognizing and promoting the individual’s areas of
strength and support.
The Wyoming County Treatment Court is in tune with the need for
timely and efficient screening and assessment by local treatment providers.
This helps to identify all challenged areas and to link them with the
necessary treatment modalities. Following evaluations and recommendations, the team works diligently to view treatment planning with a holistic approach, by several community-based professionals to aid in their particular specialized areas for each individual. The Treatment Court
Coordinator and Probation Officers ensure prompt service delivery, participant engagement, provider collaboration and continuity of care for each participant.
The Wyoming County Treatment Court offers just that; an opportunity to link treatment, vocational training, supportive living, educational needs and employment opportunities while working towards goals of hope and
105 recovery, and a chance to break the vicious cyclical nature of an addict involved in the Criminal Justice system.
Respectfully submitted,
HON. MICHAEL M. MOHUN Wyoming County, Family, and Surrogate Court Judge 147 North Main Street Warsaw, New York 14569 (585)786-3148 Extension 126 [email protected]
106 WYOMING COUNTY TREATMENT COURT
APPLICATION
Defendant: JOHN DOE
The numbers below relate to the paragraphs contained in the WCTC Contract with Defendant.
1. Pleading Guilty to:
2. Maximum legal sentence:
3. Promised maximum sentence if not successful in Treatment Court:
4. Promised disposition of charges if successful:
5. Promised sentence if successful:
6. Restitution: $______.
______Norman P. Effman, JOHN DOE, Defense Counsel Defendant
______Donald G. O=Geen Dated: ______, 2017 District Attorney
______Hon. Michael M. Mohun Wyoming County Judge Dated: ______, 2017
107 STATE OF NEW YORK : : WYOMING COUNTY COUNTY OF WYOMING : : TREATMENT COURT ______THE PEOPLE OF THE STATE OF NEW YORK
against CONTRACT
JOHN DOE, Defendant. ______
I, JOHN DOE, agree to enter the Wyoming County Treatment Court (WCTC) Program and agree to the following terms:
PLEA AND WAIVER
1. I plead guilty to: 2. The maximum legal sentence is: 3. After consulting with my attorney I voluntarily waive the following:
a) my constitutional and statutory rights to a speedy trial and sentencing;
b) service by the People of a CPL '710.30 notice and a Notice of Alibi;
c) the right to pursue any pending or possible motions; and,
d) the right to appeal both my conviction and 4. If I do not successfully complete the WCTC Program, the maximum sentence I may receive is: in the discretion of the Court. Any time that I spend in treatment will not be credited toward this sentence.
5. I enter the WCTC Program because I have a severe substance abuse and/or alcohol problem and because close supervision and treatment through the WCTC Program can assist me in achieving and maintaining a drug free life.
108
CONDITIONS FOR PARTICIPATION IN WCTC
6. I must obtain a substance abuse evaluation and shall submit to a drug, alcohol or mental health evaluation as directed by the Probation Department and shall comply with all treatment recommendations, including in-patient, out-patient treatment and any aftercare until successfully discharged. I authorize release of the results of the evaluation to WCTC, the District Attorney, my attorney and my treatment provider as members of the WCTC team. The WCTC team will make the final decision about which treatment program is appropriate for me based on my needs and the strengths of each program.
7. I will sign all releases necessary for the treatment program or counseling agency to communicate with the WCTC and/or my treatment provider and treatment team.
8. I must pay all required treatment fees reasonably within my means if so directed by the WCTC.
9. I must participate in any approved treatment or programs as directed by the WCTC and provide verification of my participation when requested by the WCTC or my treatment provider.
10. I will not possess or use any alcoholic beverages or other drugs, legal or illegal, without a verifiable prescription from a physician.
11. I will submit to periodic testing designed to detect the use of alcohol and/or drugs. WCTC, treatment personnel, my treatment provider or someone under their direction may administer these tests, including but not limited to a probation officer, police officer or parole officer.
12. I will be truthful and notify WCTC, treatment personnel and my treatment provider in the event that I have possessed or used alcohol or drugs. I may have my treatment plan revised or I may be
109 sanctioned or terminated for drug or alcohol possession or use.
13. I will return to the WCTC as ordered by the Judge. I must keep all of my Court dates and appointments with treatment providers or education/employment/mental health counselors.
14. I will report to my treatment provider or treatment personnel as directed by the WCTC or my treatment provider.
15. I will keep all treatment providers and the WCTC advised of my current address at all times during my participation in the program.
16. I must report any new arrest to my treatment provider and the WCTC. If such arrest is based upon probable cause, it may be grounds for terminating me from the program in the discretion of the WCTC.
17. I must work faithfully at suitable employment or faithfully pursue a course of study or vocational training. Upon the request of the Probation Department, I will provide verification of employment or study/training.
18. I will support my dependents and comply with any support orders currently in effect.
19. The Judge alone will determine whether or not I have complied with or failed any of the terms of this agreement. The Judge will also determine whether I am ready for graduation.
20. If I violate any terms of this contract, the Judge may impose a sanction in his discretion, including but not limited to the following:
a) In-Court admonishment; b) Additional treatment; c) Additional WCTC appearances; d) More intensive supervision; e) Extension of the time period in the WCTC; f) Community service; g) Written assignments;
110 h) A period of incarceration; or, i) Termination from the WCTC Program and sentencing on the most serious conviction.
21. The following may result in termination from the WCTC Program:
a) Failure to keep scheduled WCTC appearances; b) Failure to satisfy the requirements of the treatment plan;
c) positive drug tests; d) lateness or absences from drug testing, treatment sessions or required support meetings;
e) any incident of violence; f) a new arrest or conviction; g) any violation of any direction of the WCTC; or h) any violation of the terms of this contract. 22. If I successfully complete the WCTC Program, the charges against me will be disposed of as follows: I will be sentenced on the charge of ______and the charge of______will be dismissed. 23. If I successfully complete the WCTC Program, I will receive a sentence of:
24. I must pay restitution in the amount of: $______. Full payment is required prior to graduation if reasonably within my ability as determined by the Judge.
25. Any information obtained through the attached release form will be restricted to the immediate WCTC team and will not be made available to other law enforcement agencies or prosecutors.
26. Information disclosed during the eligibility screening and assessment process can not be used for purposes of prosecution. 27. If I successfully complete the WCTC Program, a graduation ceremony may be held which will be open to the public and the media. I will notify the WCTC team if I do not wish to participate.
111 28. A WCTC team representative may make unannounced home visits.
29. The staff of the WCTC, which may include the Judge presiding over my case, will be discussing my progress and participation in the WCTC Program at regularly scheduled meetings, and such meetings may include my substance abuse treatment provider. Communications during these meetings may take place in my absence and that of my attorney and the Judge may consider such communications.
30. I agree to be placed on interim probation until my graduation from the WCTC Program, even if the period of probation exceeds one year.
31. This defendant shall be placed on interim probation supervision unless this box has been checked and initialed by the Judge.
32. I agree that I shall be terminated from the WCTC immediately if I intentionally try to circumvent and/or manipulate any kind of authorized drug testing or the results of said test which are given by personnel involved with the WCTC.
I have read and fully understand the above agreement and execute it on my own free will. No threat or promise of any kind has been made to me by anyone, except as set forth herein.
______JOHN DOE,Defendant
I hereby certify that I am attorney of record for JOHN DOE, the above-named defendant, and that I have explained to JOHN DOE his/her rights and that (s)he has freely and knowingly executed the foregoing waivers. I have no reason to believe that my client is incapable of understanding the plea of guilty, the waivers of release of confidential information, or the terms and conditions of this contract.
112 ______
Defense Counsel
We agree to the terms of this agreement.
______Donald G. O=Geen Hon. Michael M. Mohun District Attorney Wyoming County Judge
Dated: ______, 2017
113 114 STATE OF NEW YORK COUNTY COURT : COUNTY OF WYOMING ______
THE PEOPLE OF THE STATE OF NEW YORK
-vs- Ind./SCI No.
JOHN DOE, Defendant ______
WYOMING COUNTY PROBATION DEPARTMENT ORDER AND CONDITIONS OF INTERIM PROBATION: TREATMENT COURT PROGRAM
Defendant, having pled guilty to ______, a Class ______, in violation of §______of the ______Law, is hereby placed under Interim Probation Supervision from this date until completion of the Wyoming County Treatment Court Program. While on
Interim Probation Supervision, you are ordered to comply with the terms and conditions specified below and to follow the instructions of the Probation Department as to the way in which these conditions are to be carried out.
1. Probationer shall report to a Probation Officer as directed and permit the Probation
Officer to visit you at your place of residence or elsewhere. Truthfully answer all
reasonable inquiries by the Probation Officer.
2. Probationer shall reside in a probation-approved residence and remain within the
jurisdiction of the Court unless granted permission to leave by the Court or the
Probation Department. Any change in residence shall not be made without the
prior approval of the Probation Department.
115 3. Abide by the conditions contained in the Wyoming County Treatment Court
Contract, and/or any additional terms imposed later, as deemed appropriate by
the Court.
4. Avoid persons and places as directed by the Probation Officer. Probationer shall
not intentionally associate with anyone under parole/probation supervision or any
other type of community-based sentence, except as approved by Probation.
5. Follow a curfew set by Probation of 8:00 P.M. between Labor Day and Memorial
Day, at your residence and 9:00 P.M. from Memorial Day to Labor Day, or as
otherwise directed by Probation.
6. Work faithfully at suitable employment or faithfully pursue a course of study or
vocational training. Upon the request of the Probation Department, provide
verification of employment or study/training.
7. Probationer shall support dependents and comply with any support orders.
8. Probationer shall not be charged with a crime and shall refrain from violation of
any law. Probationer shall notify Probation Officer within 24 hours if arrested or
questioned by any law enforcement officials.
9. Probationer shall submit to a drug, alcohol or mental health evaluation as directed
by the Probation Department and shall comply with all treatment
recommendations, including in-patient, out-patient treatment and any aftercare
until successfully discharged. Probationer shall sign any release of information
116 consent forms necessary to allow the complete exchange of information between
the Probation Department and any treatment provider(s).
10. Abstain from the use of any alcohol, drugs, narcotics, controlled substances,
and/or mood altering drugs except as prescribed to probationer by a duly licensed
physician. Do not own, possess or purchase any drug paraphernalia. Probationer
shall not participate in the Needle Exchange Program and shall relinquish any
“needle card” in his/her possession to the Wyoming County Probation Department.
11. Probationer shall refrain from entering any establishment, gathering or place
where alcohol is sold or served for on-premises consumption, except to consume
a meal.
12. Probationer shall submit to warrantless search of person, property, residence or
vehicle upon the request of the Probation Department. Probationer shall
acknowledge and agree that any law enforcement officer may assist the Probation
Department in this search. Probationer waives his/her Constitutional right to
object to the search and seizure of his/her person, residence, automobile or any
area under his/her immediate control at the request of Probation.
13. Probationer waives his/her Constitutional right and will submit to random chemical
testing of breath, blood and/or urine for the presence of drugs/alcohol at the
direction of Probation. Probationer shall pay for lab testing of breath, blood
and/or urine if requested.
14. Make restitution in the amount of $______to the Probation Department.
Payments are to be made monthly in the amount of $______beginning on
117 ______, 2017. In addition, all monies due Probation,
including fines, surcharges, restitution amount, if any, and supervision fees must
be paid in full prior to completion of Interim Probation.
15. Probationer shall not enter into any agreement to act as an informant or as a
special-agent of any law enforcement agency without prior written permission of
the Probation Department.
16. Satisfy any other conditions reasonably related to your rehabilitation.
I have read and understand the above order and conditions of interim probation and have received a copy of them. I agree to abide by these conditions. I understand that the commission of any offense, other than a traffic infraction, occurring after the imposition of this sentence and prior to expiration or termination of the period of the sentence, may constitute a ground for revocation of such sentence.
I hereby do waive extradition to the State of New York, from any jurisdiction in or outside the United States where I may be found and also agree that I will not contest any effort by a jurisdiction to return me to the State of New York.
DATED: ______, 2017 Warsaw, New York
______HON. MICHAEL M. MOHUN Wyoming County Court Judge
______JOHN DOE Witness
118 JUDICIAL DIVERSION COURTS: INNOVATIVE APPROACHES TO THE TREATMENT COURT MODEL
Submitted by: LINDA PALMER Resource Coordinator Allegany County Court Belmont, NY
119 120 NYS Unified Court System: https://www.nycourts.gov/courts/problem_solving/
Please visit the NYS Court page for information and complete list of Treatment Court locations throughout NY State.
• Excerpt from New York State Unified Court System Office of Policy and Planning Division
~Drug Courts have their roots in an idea that was developed in Miami, Florida in
1989. In response to a crack epidemic, jurists in Miami realized that the endless
cycle of addiction and recidivism needed to be broken to reduce drug use and
drug-related crime. The basic concept behind drug courts involves a dramatic
intervention by the court in cooperation with an entire team including the defense,
prosecution, treatment, education, and law enforcement. In return for a promise
of a reduced sentence, appropriate non-violent addicted offenders are given the
option of entering voluntarily into court-supervised treatment. The rules and
conditions of participation are clearly stated in a contract entered into by the
defendant, the defense attorney, the district attorney, and the court. The results
have been overwhelmingly positive and drug courts have gone into operation all
over the country.
New York State leads the nation in the expansion and institutionalization of drug
courts into daily court operations. Former Chief Judge Judith Kaye recognized
the benefits of the program and had the vision to ask that it be implemented in
every jurisdiction in the State. As of January 1, 2016 there were 141 drug courts
in operation, 89 in the criminal courts, 33 in the family court, 4 in the town and
121 village courts and 15 drug courts focused solely on juveniles. Through January 1,
2016, over 93,000 individuals have participated in New York State court drug
treatment programs and over 42,800 have graduated. In addition, 867 drug-free-
babies have been born to drug treatment court participants while in the program.
Each drug court in New York is locally based and reflects the legal culture of the
community. Support for the program comes from the local communities, the
Unified Court System budget and the federal government. Statewide standards
are facilitated by the intense training each team receives and the oversight
provided through continuous evaluation and assistance from the Office of Policy
and Planning.
ADMINISTRATIVE ORDER New York State
Part 43 of the Rules of the Chief Judge, October 18, 2005. Establishment of
Superior Court for Drug Treatment and Transfer of Drug Cases within a
County.
The Allegany County Multi Bench Court: Adult Drug Treatment Court (ACADC) became operational in 2005 as a post plea model. Courts include Felony Drug Court,
Misdemeanor Drug Court and Hybrid DWI. Judicially monitored treatment, abstinence and compliance with recovery. Deferred sentencing approach - minimum one year-long program.
122
123 TYPES OF TREATMENT COURTS
Criminal Part Treatment Courts: Charges may be dismissed, reduced or have
reduction in sentence. Felony :
Misdemeanor:
DWI Court:
Veterans Court:
A separate Court within an existing drug treatment or mental health court that
provides veteran-defendants suffering from addiction, mental illness and/or co-
occurring disorders with community-based services as well as local, state and
federal agencies specializing in veteran's affairs.
Young Adult Treatment Courts:
Courts are operational in several of the criminal Courts. These courts target
defendants in the 16 to 21-year-old population.
216 Diversion Court - Article 216 of the Criminal Procedure Law (CPL)
Judicial Diversion Programs: Drug Court alternatives to certain addicted non-violent offenders, Court authorized to divert eligible offenders into substance abuse treatment programs.
Eligible defendant are persons who are charged in an indictment or superior court information with a class B, C, D or E felony offense defined in article two hundred twenty (220) or two hundred twenty-one (221) of the penal law or any other specified offense as defined in subdivision four of section 410.91 (disqualifying factors do exist)
Other:
Family Court Part Treatment Courts:
124
Juvenile Drug Treatment Courts (JDTC):
Persons are facing either Juvenile Delinquency (JD) or Person In Need of
Supervision (PINS) petitions in the Family Court where substance abuse
forms some component of the pending petition. Successful participation in
the juvenile drug treatment court program generally results in the
dismissal of the pending petition.
Family Drug Treatment Courts (FDTC):
Target respondents in neglect petitions where substance abuse is a component of
the allegations. Respondents who successfully complete the program are reunited
with their children in the great majority of cases. Additionally, successful
participants in the FDTC program often receive more liberal contact with their
children prior to graduation.)
DRUG COURT ELIGIBILITY CRITERIA:
Addiction/abuse diagnosis –
Non-violent offender -
Residency –
REFERRAL:
NYS Initial Drug Court Hearing Form (sample in lower text)
I. Legal Screening (District Attorney)
II. Eligibility Interview (Drug Court Coordinator)
III. Clinical Screening (OASAS Licensed Agency)
IV. Team acceptance (Majority Vote or Judicial Discretion)
125
216 Diversion Referral Form (sample in lower text)
I. 216.05 Judicial diversion program: court procedure: At any time after the
arraignment of an eligible defendant, but prior to the entry of a plea of
guilty or the commencement of trail… at the request of eligible
defendant…
II. Clinical Screening (OASAS Licensed Agency)
III. Hearing
HEALTH INSURANCE PORTABILITY /ACCOUNTABILITY ACT (HIPPA)
Signed Release(s) of Information - Health Insurance Portability/Accountability
Act (HIPPA) are part of the referral and acceptance process, defendants execute release(s) of information as necessary for treatment providers and other agencies to furnish reports and information to the Drug Treatment Court.
See Sample below: OASAS /NYS COURTS/CRIMINAL JUSTICE CLIENTS
126
See sample: Hearing Request Form: Drug Court
127
STATE OF NEW YORK TO: DRUG COURT
VS CURRENT COURT of JURISDICTION:
CASE NUMBER: Defendant CHARGE(S):
REQUEST FOR DRUG COURT INITIAL HEARING
I understand that the State of New York is alleging that I have committed a criminal offense.
I understood that based on an investigation into the alleged offense and a review of my background, it will be determined whether or not I meet preliminary qualifications to participate in the Allegany County Drug Court Initial Hearing, if I so volunteer.
I understand that this Request for Drug Court Initial Hearing constitutes my admission that I have a drug or alcohol problem and hereby seek treatment through the Drug Court Program. Information regarding statements of guilt or innocence will not be used in subsequent trials outside of the Drug Court process. However, it is understood this does not bar admittance of defense or prosecutorial investigation materials which may be included in the report(s).
I understand that my participation in the Drug Court Initial Assessment & Hearing does not guarantee my admission to the Drug Court Program but is the initial step in determining the extent of my needs and qualification to participate, based on both a comprehensive review of my criminal record and comprehensive assessment of my treatment needs. It is agreed that in the event that I am not accepted for participation in Drug Court and subsequently returned to the originating criminal justice process, no personnel of the Drug Court or investigating agencies will be called to testify regarding any statements made by me during evaluation.
I stipulate and agree that in consideration for my participation in the Drug Court Initial Hearing I waive the right to a speedy trial as provided by law and, further, my right to speedy trial shall re-vest only upon resumption of prosecution on the pending charges.
Defendant Signature Defense Attorney Signature
Print Name Print Name
DOB: Tel: Tel: Address:
Date Date
ACADC – 06 Rev 08/05
128 Sample Referral: 216 Diversion Intake Form
Acceptance:
129 - Drug Court Committee review/discussion/vote - Committee vote and clearance from District Attorney - Offer to defendant/attorney - Drug Court Contract proposed
(216 Diversion decisions: Buffalo COURTS Office - Hearing)
Entry: Post Plea and Pre-Plea Treatment Court structure
Allegany County Treatment Courts are Post Plea - To enter treatment Court defendants
waive presentation of their case(s) to the Grand Jury and plead by Superior Court
Information or plea to an existing indictment.
Waive all rights to speedy trial, 710.30 notices.
Drug Court contract is executed which outlines the plea. It includes the agreed upon plea
and sentence regarding both possibilities, completion and non-completion. It also outlines
the conditions of behavior during treatment Court participation.
• Supervision Model, Probation/Interim Probation can be used during treatment Court
participation. (upstate models)
Compliance with Treatment Recommendations:
TREATMENT RECOMMENDS – COURT MANDATES
In New York State, Level of Care for Alcohol & Drug Treatment Referral (LOCADTR) is a system designed to assist with treatment level of care for a person. Provided by OASAS- certified alcoholism and substance abuse treatment services or qualified health professional as defined by OASAS chemical dependence regulations.
130 Should you like information on NYS Drug Courts: Research Based Scientific Practices/Principals or 10 Key Components please visit National Drug Court Institute: http://www.ndci.org
SEE ATTACHMENTS:
ALLEGANY DRUG COURT SAMPLE CONTRACT
ALLEGANY RANDOM TESTING PROGRAM LETTER
MISDEMEANOR TRANSFER FORM -2
131 132 STATE OF NEW YORK : : ALLEGANY COUNTY DRUG COUNTY OF ALLEGANY : : TREATMENT COURT ______
THE PEOPLE OF THE STATE OF NEW YORK
against CONTRACT
,
Defendant. ______
I, , agree to enter the Allegany County Drug Treatment Court (ACDTC) Program and further understand my Drug Court participation may be transferred to a Supervising Drug Court outside this jurisdiction. I agree to the following terms:
PLEA AND WAIVER
1. I plead guilty to: OPERATING A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL (as a Felony). 2. The maximum legal sentence is: 1 and 1/3 to 4 YEARS IN STATE PRISON, PLUS FINES AND MANDATORY SURCHARGES. 3. After consulting with my attorney I voluntarily waive the following: a) my constitutional and statutory rights to a speedy trial or hearing and sentencing; b) service by the People of a CPL §710.30 notice and a Notice of Alibi; c) the right to pursue any pending or possible motions; d) the right to a pre-sentence investigation prior to sentencing, and, e) the right to appeal both my conviction and sentence. 4. If I do not successfully complete the ACDTC Program, the maximum sentence I may receive is: 1 and 1/3 (1 1/3) YEARS IN STATE PRISON, PLUS FINES AND MANDATORY SURCHARGES. Any time that I spend in treatment will NOT be credited toward this sentence.
133 5. I enter the ACDTC Program because I have a severe substance abuse and/or alcohol problem and because close supervision and treatment through the ACDTC Program can assist me in achieving and maintaining a drug free life.
CONDITIONS FOR PARTICIPATION IN ACDTC
6. I must obtain a substance abuse evaluation from a counselor or counseling agency approved by the ACDTC team. I authorize release of the results of the evaluation to ACDTC, the District Attorney, my attorney and my treatment provider and members of the ACDTC team. The ACDTC team will make the final decision about which treatment program is appropriate for me based on my needs and the strengths of each program. 7. I will sign all releases necessary for the treatment program or counseling agency to communicate with the ACDTC and/or my treatment provider and treatment team. 8. I must pay all required treatment fees reasonably within my means if so directed by the ACDTC. 9. I must participate in any approved treatment or programs as directed by the ACDTC and provide verification of my participation when requested by the ACDTC or my treatment provider. 10. I will not possess or use any alcoholic beverages or other drugs, legal or illegal, without a verifiable prescription from a physician. 11. I will submit to periodic testing designed to detect the use of alcohol and/or drugs. ACDTC, treatment personnel, my treatment provider or someone under their direction may administer these tests, including but not limited to a probation officer, police officer or parole officer. The ACDTC utilizes “instant” urine testing cups for random testing and I understand and agree that the results of such tests will be admissible in any hearing conducted by the ACDTC on my case. 12. I will be truthful and notify ACDTC, treatment personnel and my treatment provider in the event that I have possessed or used alcohol or drugs. I may have my treatment plan revised or I may be sanctioned or terminated for drug or alcohol possession or use. My statements regarding personal drug and alcohol use made in connection with ACDTC will not be used against me in any separate criminal prosecution. 13. I will return to the ACDTC as ordered by the Judge. I must keep all of my Court dates and appointments with treatment providers or education/employment/mental health counselors.
134 14. I will report to my treatment provider or treatment personnel as directed by the ACDTC or my treatment provider. 15. I will keep all treatment providers and the ACDTC advised of my current address at all times during my participation in the program. 16. I must report any new arrest to my treatment provider and the ACDTC. If such arrest is based upon probable cause, it may be grounds for terminating me from the program in the discretion of the ACDTC. Any new arrest for an offense which endangers another member of the public is grounds for automatic termination from the ACDTC. 17. The Judge alone, after a hearing, will determine whether or not I have complied with or failed any of the terms of this agreement. The Judge will also determine whether I am ready for graduation. 18. If I violate any terms of this contract, the Judge may impose a sanction in his discretion, including but not limited to the following: a) In-Court admonishment; b) Additional treatment; c) Additional ACDTC appearances; d) More intensive supervision; e) Extension of the time period in the ACDTC; f) Community service; g) Written assignments; h) A period of incarceration; or, i) Termination from the ACDTC Program and sentencing on the most serious conviction. 19. The following may result in termination from the ACDTC Program: a) Failure to keep scheduled ACDTC appearances; b) Failure to satisfy the requirements of the treatment plan; c) Positive drug tests; d) Lateness or absences from drug testing, treatment sessions or required support meetings; e) Any incident of violence; f) A new arrest or conviction; g) Any violation of any direction of the ACDTC; h) Revocation of consents for release of drug treatment information, or i) Any violation of the terms of this contract.
135 20. If I successfully complete the ACDTC Program, the charges against me will be disposed of as follows: I WILL BE ALLOWED TO WITHDRAW MY PLEA AND PLEAD INSTEAD TO OPERATING A MOTOR VEHICLE UNDER THE INFLUENCE OF ALCOHOL AS A MISDEMEANOR. 21. If I successfully complete the ACDTC Program, I will receive a sentence no greater than: THREE YEARS PROBATION AND MANDATORY FINES AND SURCHARGES. 22. I must pay restitution in the amount of: $N/A. Full payment is required prior to graduation if reasonably within my ability as determined by the Judge. 23. Any contested factual issue regarding my termination from the program will be resolved by the ACDTC at a hearing pursuant to the procedures set forth in CPL §410.70 (Hearing on Violation of Sentence of Probation). 24. Any information obtained through the release form will be restricted to the immediate ACDTC team and will not be made available to other law enforcement agencies or prosecutors. 25. Information disclosed during the eligibility screening and assessment process may not be used for purposes of prosecution. 26. If I successfully complete the ACDTC Program, a graduation ceremony may be held which will be open to the public and the media. I will notify the ACDTC team if I do not wish to participate. 27. An ACDTC team representative may make unannounced home visits. 28. The staff of the ACDTC, which may include the Judge presiding over my case, will be discussing my progress and participation in the ACDTC Program at regularly scheduled meetings, and such meetings may include my substance abuse treatment provider. Although my attorney is invited to these meetings he/she may or may not attend them in his or her discretion. Any non-appearance by my attorney at a meeting shall be deemed a waiver of his or her participation for that particular meeting. Communications during these meetings may take place in my absence and that of my attorney and the Judge may consider such communications. 29. I agree to be placed on interim probation until my graduation from the ACDTC Program, even if the period of probation exceeds one year. I specifically agree that any time I spend on interim probation will NOT be considered as part of, or credited towards any term of probation to which I may ultimately be sentenced. 30. The standard conditions of Interim Supervision Probation Supervision for Drug Court in Allegany County, which may include a period of Electronic Home Monitoring or
136 SCRAM monitoring and Community Service, will be in effect as conditions of my release during my drug court participation. I UNDERSTAND THAT NONE OF THE TIME I AM SUPERVISED DURING DRUG COURT WILL COUNT TOWARD ANY PROBATION SENTENCE I MAY ULTIMATELY RECEIVE.
I have read and fully understand the above agreement and execute it on my own free will. No threat or promise of any kind has been made to me by anyone, except as set forth herein. I further understand that all references to ACDTC also include the supervising Drug Court in my home jurisdiction to which my case may be referred for supervision.
______, Name: Date: Defendant
I hereby certify that I am attorney of record for , the above-named defendant, and that I have explained to his rights and that he has freely and knowingly executed the foregoing waivers. I have no reason to believe that my client is incapable of understanding the plea of guilty, the waivers of release of confidential information, or the terms and conditions of this contract.
______ESQ Defense Counsel
We agree to the terms of this agreement.
______HON. District Attorney Allegany County Court Judge Dated: ______,
137 138 ALLEGANY COUNTY DRUG COURT 7 COURT STREET BELMONT, NEW YORK 14813-1084 Tel: (585)449-3436 Fax: (585) 268-9634 Random call-in #: 585-449-3465 HON. THOMAS P. BROWN HON. STEVEN G. PRESUTTI Felony Drug Court Judge Misdemeanor Drug Court Judge SAMPLE
RE: Drug Court Random Call-in Program
Dear Participant: The random drug testing # assigned to your case is: # __
Drug Court participants are required to make daily “call-in’s” Monday through Friday. You should plan to call the Drug Court telephone number, 1-585- 449-3465 between the hours of 9:15 am - 1:30 pm to confirm whether or not you must appear for a random drug test. You are not required to call on Saturday or Sunday. However, the Allegany County Sheriff’s Office will notify individual participants on weekend mornings and holidays for testing. If contacted by the Sheriff you must appear by 12:00 (noon) for your test at the Jail Facility in Belmont NY, unless an alternative time is approved by the Officer you speak with. The random drug screening program does not substitute for your normal weekly testing through your treatment program. You must have permission from the Court prior to a treatment test counting toward a random test requirement. You must test weekly at treatment regardless of how many times you are called for random testing. As per your Drug Court Contract, you remain under interim probation guidelines allowing home visits by probation or designated Law Enforcement personnel throughout the week including weekends. You may also be tested at their discretion. If your number is stated on the drug court answering machine, you must report to the Drug Court Coordinator’s Office by 3:30 pm that day, unless other arrangements are made with the Coordinator. If the message you hear designates a different location for the testing to take place such as Probation, Sheriff’s Office, State Police, ext... bring picture I.D. with you. The telephone system dates and times all calls received. When checking in, always leave your name and test number. On occasion, in my absence, the message may not be changed from the previous day. Should this happen, and no update takes place by 9:15 a.m. simply leave your name and test number and your call is automatically dated and timed for confirmation of your daily contact. Do not appear during the lunch hour without prior approval. Failure to report as directed and comply with random testing could cause sanctions and/or a warrant for your arrest. Should you be scheduled to attend an inpatient program, you will not be responsible to begin calling until you return home. Should there be any question or concerns please do not hesitate to contact me at your earliest convenience.
SAMPLE ______Linda C. Palmer Resource Coordinator 139 140 STATE OF NEW YORK : TOWN COURT : COUNTY OF ALLEGANY : ______
THE PEOPLE OF THE STATE OF NEW YORK
vs. CONSENT TO TRANSFER
Arrest Number: Defendant
CJ Tracking #:
______
I hereby agree to the transfer of the above-referenced criminal proceeding from the TOWN COURT to the Allegany County Hub Drug Court under the Amity Town Court/Allegany County Court by the provisions of Section 170.15 of the Criminal Procedure Law. In doing so, I submit to the jurisdiction of the Amity Town Court Hub Misdemeanor Drug Court/Allegany County Court for misdemeanor transfer cases, for all purposes related to this criminal proceeding, and waive all objections thereto.
Dated: / / ______Defendant:
Dated: / / ______Attorney for Defendant:
Dated: / / ______District Attorney:
Submission of this form to the ACADC by Court of Jurisdiction acknowledges Drug Court referral Please forward original case file to Amity Hub Drug Court Attention Linda Palmer, Resource Coordinator, 7 Court St, Belmont NY 14813
141 142
STATE OF NEW YORK : COUNTY OF ALLEGANY :
TOWN COURT : ______
THE PEOPLE OF THE STATE OF NEW YORK
vs. ORDER OF REMOVAL (MISDEMEANOR CASE) ARREST NO.
Defendant ______
The above named defendant, in the above entitled action, having been arraigned before this Court on 2017, upon an accusatory instrument charging the defendant with the crime(s) of: , and the defendant having moved this Court, pursuant to Subdivision 4 of Section 170.15 of the Criminal Procedure Law, for the removal of this action to the ALLEGANY COUNTY HUB DRUG COURT and the District Attorney having consented.
ORDERED that the above entitled action be removed to the ALLEGANY COUNTY HUB DRUG COURT in accordance with the provisions of Subdivision 4 of Section 170.15 of the Criminal Procedure Law, provided, however, that this Order of Removal shall not take effect until TEN days after the date of this Order is issued unless, prior to such effective date, the ALLEGANY COUNTY DRUG COURT notifies this Court that:
(a) it will not accept the action, in which event the order shall not take effect, or (b) it will accept the action on a date prior to such effective date, in which event the order shall take effect upon such prior date.
Dated: 2017 ______Honorable Town Court
PLEASE SEND ORIGINAL CASE FILE, THIS ORDER, AND THE CONSENT TO TRANSFER SIGNATURE FORM TO: ALLEGANY COUNTY DRUG COURT AMITY TOWN HUB DRUG COURT ATTENTION LINDA C. PALMER, COORDINATOR 7 COURT STREET, BELMONT NY 14813
DC 03 Rev. 08/05
143 144 NEW YORK STATE COURT OF APPEALS UPDATE
Submitted By: HON. JENNY RIVERA New York State Court of Appeals Albany, NY DANIEL N. ARSHACK, ESQ. Arshack, Hajek & Lehrman, PLLC New York, NY ROBERT J. MASTERS, ESQ. Queens County District Attorney’s Office Kew Gardens, NY
145 146
NYSBA Criminal Justice Section Spring 2017 Meeting Court of Appeals Decisions
CLE MATERIALS
I. JURISDICTION OF THE COURTS
A. Preservation & Mode of Proceedings Errors
People v Griggs, 27 NY3d 602 (2016) Garcia, J. The main issue presented was whether defendant’s appearance in shackles before the grand jury constituted a mode of proceedings error. The Court concluded that this type of error does not fit within the narrow class of mode of proceedings errors. Accordingly, defendant needed to object to preserve this claim for appellate review, and the record revealed that no such objection was made.
Additionally, the Court considered whether other errors before the grand jury mandate dismissal of the indictment, namely: 1) that the prosecution asked certain cross examination questions that referenced a pending indictment; and 2) that the prosecution failed to inform the grand jury of a requested witness. However, the Court determined that none of these arguments were preserved.
Defendant also argued that counsel's failure to preserve these claims constitutes ineffective assistance of counsel. A defendant has received effective assistance "so long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation" (People v Baldi, 54 NY2d 137 [1981]). Here, the Court concluded that defendant’s counsel was effective when considering the entirety of the representation, and noted that defendant’s request to proceed pro se undermined his representation by counsel.
Rivera, J., concurring The concurring opinion agreed in the result but addressed the majority’s apparent shift in blame for counsel's failure to defendant for seeking to proceed pro se. The concurrence disagreed that defendant acted in such an obstructionist manner as to undermine his defense and his claims regarding his counsel's representation.
147 People v Wallace, 27 NY3d 1037 (2016) Memorandum Defendant challenged, inter alia, Supreme Court’s response to a jury note requesting that the jury be allowed to take notes during a readback of a portion of the charge, and the manner of communicating the court’s response to the jury. Defendant failed to preserve both issues and the mode of proceedings exception to preservation did not apply. With regards to the trial court’s response, the Court held that no mode of proceeding error occurred because the request was not the kind of substantive request envisioned by the Court in People v O’Rama, 78 NY2d 270 (1991). With regards to the use of a court officer to deliver the trial court’s response, the Court held that the action was “practically ministerial” and did not constitute a mode of proceedings (People v Williams, 21 NY3d 932, 935 [2013]).
B. Grounds for Dismissal
People v Harrison, 27 NY3d 281 (2016) Fahey, J. The Court addressed the scope of its holding in People v Ventura (17 NY3d 675 [2011]), in which the Court had ruled that intermediate appellate courts may not dismiss a criminal defendant’s pending direct appeal on the grounds that defendant was involuntarily deported and no longer within the appellate court’s jurisdiction. The Court reasoned that the right to an appeal was of fundamental importance in New York state, such that access to the intermediate courts was imperative.
Still, the Appellate Division dismissed defendant’s direct appeal in People v Serrano because defendant had been deported and his appeal may have required his continued involvement in the case. The Appellate Division distinguished Ventura by noting that defendant was not seeking outright dismissal of his conviction, and his appeal may have resulted in a new trial. The Court reversed and reinstated Serrano’s appeal, holding that such a dismissal on these grounds was impermissible under Ventura. The Court clarified that the Ventura rule applied regardless of defendant’s appellant contentions.
In the companion case People v Harrison, the Court reached the opposite conclusion. There, the Appellate Divisions dismissed defendant’s permissive appeal brought pursuant to CPL 450.10. The Court reasoned that the Ventura rule did not apply to such permissive appeals because the language in Ventura focused on the fundamental right to appellate review, which is not implicated in a permissive appeal. Accordingly, the Ventura rule was no bar to dismissing Harrison’s appeal based on his forced deportation, and the Court affirmed the Appellate Division.
Rivera, J., dissenting in People v Harrison & concurring in People v Serrano The dissent reasoned that the rule of Ventura should apply with full force in both cases. Under these circumstances, the dissent considered dismissal of Harrison’s appeal an abuse of discretion because Harrison sought to prevent his deportation by challenging his conviction, but that consequence was the basis of the Appellate Division's dismissal. The
148 appropriate rule, in accordance with Ventura, is that an intermediate appellate court may not refuse to consider an appeal based solely on defendant's status as a deportee.
People v Morales, 28 NY3d 1087 (2016) Memorandum The Court considered whether the rule in People v Harrison (27 NY3d 281 [2016]) applied when a deported defendant ceases communication with appellate counsel. The Court clarified that the rule prohibiting dismissal of a direct appeal upon a defendant’s involuntary deportation applies in any context. Accordingly, the Court reversed the Appellate Term’s dismissal and reinstated defendant’s appeal.
People v Smith, 27 NY3d 643 (2016) DiFiore, C.J. The Court held that, under CPL 460.10, the filing of an affidavit of errors is a jurisdictional prerequisite for the taking of an appeal from a judgment entered in a local criminal court where there was no court stenographer present during the criminal proceeding. A mechanical recording of proceedings in town or village justice courts is not equivalent to a record taken by a court stenographer. Accordingly, where defendant filed a transcript derived from the mechanical recording of the underlying proceedings but no affidavit of errors, defendant failed to meet the jurisdictional prerequisite, requiring dismissal of the appeal.
149
II. GRAND JURY & INDICTMENTS
People v Guerrero, 28 NY3d 110 (2016) Pigott, J. The Court held that defendant, by pleading guilty to all counts of an amended indictment, forfeited his right to challenge the legal sufficiency of the “DNA indictment” and the amended indictment that added his name to the caption.
In a rape case with an unknown perpetrator, the People successfully indicted a “John Doe” using the unique DNA sequence associated with the perpetrator as a means to stop the statute of limitations on an otherwise cold investigation. A decade later, defendant was matched to the John Doe’s DNA in an unrelated case, and the People used affidavits from the investigating officers to amend the indictment to include defendant’s name. Defendant pleaded guilty, but later appealed, arguing that substitution of his name for the DNA numerical identifier requires the exercise of the Grand Jury's accusatory power and cannot be accomplished on submission to the trial court by a motion to amend. The defect concerns who may accuse defendant based on evidence of a match to the inculpatory DNA, and therefore goes to the essential role of the Grand Jury and the "integrity of the process.”
Generally, a guilty plea marks the end of a criminal matter as opposed to providing a gateway to further litigation (People v Hansen, 95 NY2d 227, 230 [2000]). Certain matters will survive a guilty plea, however, such as those involving jurisdictional defects or rights of a constitutional dimension that go to the very heart of the process (People v Iannone, 45 NY2d 589, 600 [1978]). The distinction between jurisdictional and non-jurisdictional defects is between defects implicating the integrity of the process and less fundamental flaws, such as evidentiary or technical matters (People v Dreyden, 15 NY3d 100, 103 [2010]).
Here, Defendant's challenge to the legal sufficiency of the DNA indictment is based on the failure to identify him as the perpetrator by name. The Court concluded that the alleged defect is not a jurisdictional one, and therefore, does not survive his guilty plea. By pleading guilty, defendant acknowledged that he was the person who committed the offense and, therefore, forfeited his challenge and is foreclosed from raising the issue on appeal.
The Court also disagreed that defendant’s challenge to the amended indictment based on the hearsay grounds survived his guilty plea. By pleading guilty to the amended indictment, defendant forfeited the argument that the People improperly utilized the hearsay statements at trial.
Rivera, J., dissenting The dissent would have held that defendant’s conviction must be reversed and the indictment dismissed because a Grand Jury never accused defendant specifically of the crime for which he stands convicted, and the amended indictment that substituted his name for the
150 DNA profile of the unknown perpetrator was not the product of a Grand Jury's deliberative process. The dissent noted that using CPL 200.70 in this way usurps the Grand Jury’s fundamental role in our legal system. Rather, the People should have obtained a superseding indictment that relates back to the earlier indictment, or, if dismissal of the indictment is required, the People may re-present to another Grand Jury.
People v Aragon, 28 NY3d 125 (2016) Abdus-Salaam, J. The Court considered the facial sufficiency of an accusatory instrument which alleged that defendant unlawfully possessed "brass metal knuckles" in violation of Penal Law § 265.01 (1). The Court concluded the instrument was facially sufficient because "metal knuckles have a common meaning in ordinary American parlance, which corresponds to the dictionary definition [as being] . . . a metal object with multiple holes, through which an individual places his or her fingers so that a metal bar rests atop the individual's knuckles. That object is used as a weapon to cause increased pain when the person wearing it hits someone with a fist" (id. at 128). Further, the arresting officer here did not have to exercise professional skill or experience to conclude defendant possessed metal knuckles, and therefore the accusatory instrument did not require any specific description of the officer's training or experience.
151 III. GUILTY PLEAS
People v Manor, 27 NY3d 1012 (2016) Memorandum The issue on appeal was whether the hearing court abused its discretion when it denied defendant’s motion to withdraw his guilty plea without a hearing. The Court held that the hearing court had not abused its discretion because when a defendant moves to withdraw a guilty plea, the nature and extent of the fact-finding inquiry rests largely in the discretion of the judge to whom the motion is made and a hearing will be granted only in rare instances (People v Brown, 14 NY3d 113, 116 [2010]).
While defense counsel claimed that defendant had been pressured by his family to take the plea, the Court has never recognized “coercion” by family members as a reason for withdrawing a guilty plea (People v Lewis, 46 NY2d 825, 826 [1978]). Furthermore, the court gave defendant an opportunity to argue in furtherance of the motion to withdraw the plea, and because he declined (and the prosecutor did not address the issue), the motion was appropriately decided on the written submissions. Lastly, while defendant’s psychiatrist indicated that defendant’s plea was impaired by his use of alcohol and marijuana before the plea hearing, defendant was silent as to his consumption of drugs or alcohol in his sworn statement. Under these circumstances, it was not an abuse of discretion for the court to have denied the motion to withdraw the plea without holding a hearing.
People v Reynolds, 27 NY3d 1099 (2016) Memorandum The first issue presented was whether defendant’s guilty plea should have been vacated on the grounds that it was conditioned upon an illegal presentence condition. The Court held that this issue was not properly preserved for appellate review because a defendant must move to withdraw a guilty plea prior to sentencing (People v Williams, 27 NY3d 212, 214 [2016]). Moreover, though an illegal sentence is sometimes an exception to the preservation rule (People v Nieves, 2 NY3d 310, 315 [2004]), the Court affirmed the Appellate Division’s assessment that the sentence here was not illegal.
The second issue presented was whether the trial court’s findings comported with the standard announced in People v Outley (80 NY2d 702 [1993]) when it looked into defendant’s post-plea offense. The Court held that proof that defendant committed the post-plea offense was not necessary, and the nature of the court's inquiry was sufficient under CPL 400.10. When an issue is raised concerning the validity of a post-plea charge or there is a denial of any involvement in the underlying crime, a court must conduct an inquiry at which defendant has an opportunity to show that the arrest is without foundation. Here, defendant was afforded that right, and the trial court was permitted to discredit defendant’s testimony.
152
Rivera, J. (dissenting) The dissent would have held that defendant's claim was preserved for review, and on the merits, the plea should be vacated. A plea agreement conditioned on defendant's presentence "interim incarceration" lacks statutory authority and renders the plea invalid. The dissent found no express statutory authority granting a court the discretion to impose a post-conviction, presentencing term of incarceration like the one imposed here. Therefore, defendant's six-month incarceratory “interim” condition was illegal.
153 IV. SPEEDY TRIAL
People v Barden, 27 NY3d 550 (2016) Stein, J. The issue was who is chargeable, for statutory speedy trial purposes, with each discrete time period within a pre-readiness adjournment when the People initially request an adjournment to a specific date, defense counsel is unavailable on that date and requests a later date, but the court is unavailable on that later date, resulting in an even longer adjournment. The Court concluded defendant did not consent to the additional delay attributable to court congestion and, because the People failed to announce readiness within the statutory time period, defendant was entitled to dismissal of the indictment on speedy trial grounds. The general rule is that the People should be charged with pre-readiness delays caused by court congestion, and that defendant must clearly express consent to adjournments in order to relieve the People of the responsibility for that portion of the delay. Consent does not arise by counsel merely indicating that a date suggested by the court is convenient.
People v Clarke, 28 NY3d 48 (2016) DiFiore, C.J. The Court held that the time needed to conduct DNA testing and to produce a DNA report may, under certain circumstances, be excluded from speedy trial computation. To invoke the exclusion provided in CPL 30.30(4)(g), the People must exercise due diligence in obtaining the evidence. Here, a 161-day period of delay was attributable to the People because it was a result of the People’s inaction in obtaining defendant’s DNA exemplar. The People have the burden of proof of showing that they exercised due diligence sufficient to exclude the delay and that burden was not met here.
People v Henderson, 28 NY3d 63 (2016) DiFiore, J. After a jury trial, defendant was convicted of rape in the first degree and two counts of criminal sexual act in the first degree. Prior to trial, defendant filed a CPL 30.30 motion to dismiss the indictment because he was deprived of his statutory right to a speedy trial. The trial court denied the motion without a hearing, as it excluded the periods of delay for the DNA testing process as exceptional circumstances under CPL 30.30 (4)(g).
Defendant claimed on direct appeal that he was denied effective assistance of counsel because his trial counsel did not argue in his motion to dismiss that the People failed to exercise due diligence in securing DNA testing. The Court has held that only very rarely will a single lapse by otherwise competent counsel compel the conclusion that a defendant was deprived of his constitutional right to effective legal representation (People v Turner, 5 NY3d 476, 478 [2005]). In this case, there was nothing in the record to demonstrate that the People were not diligent in their pursuit of DNA testing. Furthermore, at the time of
154 defendant's CPL 30.30 motion, there already was Appellate Division authority holding that the period of time needed to obtain the results of DNA testing could be excluded from speedy trial computation as an exceptional circumstance.
People v Allard, 28 NY3d 41 (2016) Garcia, J. The Court confronted the issue of whether, in the context of CPL 30.30 motions, a defendant’s failure to preserve an objection affects the procedural rules mandated by statute.
To preserve a claim charging the People with a violation of the speedy trial statute, (1) a defendant bears the initial burden of alleging that the People were not ready for trial within the prescribed time period, (2) the People must then identify the exclusions that apply to their delay, and (3) defendant must subsequently identify any legal or factual impediments to the use of those exclusions. Criminal Procedure Law 210.45, applicable to all motions to dismiss, provides that a court may only deny a motion without a hearing if the People have “conclusively refuted” an allegation of fact essential to support the motion by “unquestionable documentary proof.”
The Court held that the basic rules of preservation in the CPL 30.30 context do not affect the statutory rules of motion practice. In this case, therefore, defendant was entitled to a hearing, where his arguments were raised and developed and his claim was preserved for review, notwithstanding his failure to file a reply to the People's opposition identifying legal or factual impediments to the exclusions.
People v Brown, 28 NY3d 392 (2016) Pigott, J. In these three cases—People v Canady, People v Brown, and People v Young—the Court considered whether to charge the People time under CPL 30.30 when the People were not ready for trial and asked for an adjournment, then filed an off-calendar certificate of readiness, and were not ready at the subsequent court date. In all three cases, defendants claimed that the off-calendar certificate of readiness should be considered illusory and that time should be charged to the People. The same issue arose in People v Sibblies (22 NY3d 1174 [2014]), in which the Court sought to clarify what the People must show in response to such a challenge. On the facts of Sibblies the Court held unanimously that the People's off- calendar declaration was illusory, but there was no majority opinion as to the applicable rule. Here, the Court held that an off-calendar statement of readiness is presumed truthful and accurate and that a defendant who challenges such a statement must demonstrate that it is illusory.
Rivera, J., dissenting in People v Canady, concurring in part in People v Brown and concurring in result in People v Young
155 The dissent argued that the Speedy Trial law requires more than an ephemeral declaration of readiness susceptible to being rendered meaningless during the course of a defendant's prosecution, and that the rule set forth in Chief Judge Lippman’s concurrence in Sibblies should be adopted: if the People declare readiness off-calendar and then are not ready at the next court date, “the People must demonstrate that some exceptional fact or circumstance arose after their declaration of readiness so as to render them presently not ready for trial.”
156 V. SUPPRESSION MOTIONS
People v Joseph, 27 NY3d 1009 (2016) Memorandum The issue presented was whether the police had probable cause to arrest defendant upon the tip of a confidential informant, such that drugs confiscated from defendant’s person upon arrest should have been suppressed. The Court held that, on the record presented, a finding of probable cause is a mixed question of law and fact (see People v Oden, 36 NY2d 382 [1975]) and that the issue was beyond the Court's review power.
People v Crooks, 27 NY3d 609 (2016) Stein, J. The Court was asked to determine whether the police established probable cause for the search warrant based on their own independent observations, or whether a confidential informant's statements were necessary to establish probable cause.
A confidential informant tipped off a detective, whom the informant had worked with previously, that defendant was selling drugs in his nearby apartment. The detective arranged two controlled buys between the informant and defendant, and used that information to obtain a search warrant for defendant’s apartment. Upon executing the warrant and entering the apartment, officers observed defendant throw a large amount of cocaine out an open window. Defendant was charged with third-degree criminal possession of a controlled substance. At trial, defendant contended that he was entitled to a hearing pursuant to Darden, to determine whether the information provided by the informant was sufficient to establish probable cause to support a search warrant of defendant's apartment. The suppression court denied the motion and the Appellate Division affirmed.
The Court held that because there was a basis in the record for the determination of the lower courts that the police established probable cause based on their own independent observations, without having to rely on the statements of the informant, a Darden hearing was not required. The Court balanced the need to assure the protection of confidential informants with the rights of criminal defendants to challenge the probable cause offered as justification for the seizure of evidence.
People v Tardi, 28 NY3d 1077 (2016) Memorandum The Court upheld the towing, impoundment, and inventory search of an automobile, holding that these actions were, under the facts of the case, consistent with a “community caretaking function.” The police officers' decision to tow defendant's vehicle, which was parked in the same parking lot in which defendant was arrested, was properly made in accordance with "standard criteria" set forth in the police department's written policy (Colorado v Bertine, 479 US 367, 375 [1987]). Those criteria, among other things, limit an officer's discretion to tow a vehicle upon a driver's arrest to situations in which such action is necessary to ensure the safety of the vehicle and its contents, and where releasing the vehicle
157 to an owner or designee is not otherwise appropriate. Upon defendant's arrest, the vehicle would have been left unattended indefinitely in the complainant's private parking lot, which had a history of vandalism, and the complainant requested that the police remove the vehicle. In the Court’s view, the officers' decision to tow the vehicle was, therefore, consistent with a community caretaking function.
Rivera, J. (dissenting) The dissent concluded that the police conduct was unreasonable because it did not conform to a reasonable community caretaking function. Under the facts of this case, there was no threat to public safety, defendant was not initially arrested while operating the vehicle, and upon his arrest, the vehicle was parked unobtrusively and safely. The car also did not affect the movement of vehicular traffic nor was it a luxury vehicle at risk of vandalism or theft. The community caretaking function must actually mean community caretaking, and cannot authorize police officers to search cars that are neither a threat to public safety nor an obstruction to vehicular traffic. By failing to recognize this, the majority's opinion undermines the Fourth Amendment's protection of individual privacy from the state.
People v Gayden, 28 NY3d 1035 (2016) Memorandum An anonymous caller reported two black men with guns in their waistbands—one wearing a black t-shirt, the other wearing a white t-shirt -- in a residential neighborhood in Rochester. The police dispatcher sent out a radio call and two officers started driving separately to the location. The first officer arrived at the scene within two minutes of the dispatch and spotted two men who met the general description walking down the street, defendant and his companion. The officer radioed in that he was about to approach the two suspects and got out of his car and slowly jogged towards the men, who were walking away from him down the block. When the men spotted the officer, the companion took off running and the officer gave chase. Seconds earlier, the second officer arrived at the scene having heard both radio calls and witnessing the companion flee from the officer. When he got out of the car to approach defendant, defendant spotted him and began running. The second officer immediately gave chase and within seconds spotted the first officer holding the companion at gunpoint and then saw a handgun fall out of defendant's waistband. Both men were eventually arrested.
The defendant was charged with possession of a handgun and moved unsuccessfully to suppress, subsequently pleading guilty to the offense. The Appellate Division denied his appeal, arguing the anonymous tip gave the officers a founded suspicion that criminality was afoot, which was elevated to reasonable suspicion by flight, which was subsequently elevated to probable cause for arrest when the gun became dislodged and dropped to the street. The Court affirmed, holding that the issue of whether the second officer had reasonable suspicion to pursue defendant is a mixed question of law and fact, and there is record support for the determination of the lower courts.
158
People v Perkins, 28 NY3d 432 (2016) Abdus-Salaam, J. In this case, the Court clarified that although some cases from the Appellate Division may "suggest that a witness's prior mention of a distinctive feature can be a determinative factor in a lineup's suggestiveness . . . a bright line rule in this area would be unworkable, and unwise. A lineup's suggestiveness should not turn solely on whether a defendant's distinctive feature figured prominently in a witness's prior description. Rather, a witness's prior description is but one factor a court should consider in determining whether the lineup is one that 'create[s] a substantial likelihood that defendant would be singled out for identification' (People v Chipp, 75 NY2d 327, 336 [1990]). Our review remains limited and deferential to the suppression court's findings on this mixed question of law and fact." The Court thus reversed the suppression court's determination that a lineup was not suggestive as to two of four witnesses based solely on the fact that they did not mention the distinctive lineup feature possessed only by defendant -- dreadlocks -- in their prior description of the perpetrator.
159 VI. VOIR DIRE
People v Miller, 28 NY3d 355 (2016) Pigott, J. In this case the Court held that the trial court abused its discretion in precluding defense counsel from questioning prospective jurors about their views on involuntary confessions. The defendant, charged with murder, gave a written and oral statement to the police admitting his involvement in a shooting. During jury selection, defense counsel sought permission to inform jurors about the rules related to using statements attributed to defendants. The court denied defense counsel’s request because prosecution had not yet determined if the People would be using defendant’s statement at trial. The court reasoned that it would improperly encourage the jury to speculate about the existence of a statement in the event that the statement was not admitted into evidence at trial. The statement was ultimately introduced into evidence, and defendant was found guilty of manslaughter in the first degree. The Court of Appeals held that Criminal Procedure Law § 270.15 (1) (c) affords parties the opportunity to question prospective jurors about unexplored matters affecting their qualifications. Defense counsel’s request to question potential jurors about their ability to disregard involuntary confessions was central to determining whether those jurors could be impartial.
People v Bridgeforth, 28 NY.3d 567 (2016) Abdus-Salaam, J. The Court held that under New York State’s Constitution and Civil Rights Law, skin color is a prohibited classification for peremptory strikes, and may be grounds for a challenge pursuant to Batson v Kentucky (476 US 79 [1986]). The case involved the peremptory strike of five dark-skinned women in the case of a dark-skinned African- American male. The prosecutor provided non-discriminatory reasons for four of the women, but could not recall his reason for the fifth. Under Batson’s three step protocol 1) defendant must make a prima facie showing that the strike was used to discriminate, 2) if defendant satisfies this burden then the opposing party must articulate a non-discriminatory reason for striking the juror, and 3) the trial court determines whether the strike was pretextual, and defendant has established purposeful discrimination. Discrimination against prospective jurors is prohibited “on the basis of race, gender or any other status that implicates equal protection concerns” (People v Luciano, 10 NY3d 499, 502-503 [2008]; see People v Kern, 75 NY2d 638 [1990]).
The issue was whether a peremptory strike based on skin color implicates equal protection guarantees. Based on the separate listing of “race” and “color” in the State constitution and section 13 of the Civil Rights Law, the Court held that “color” is a classification distinct from “race,” and is treated as a separate category for purposes of determining the existence of a discriminatory practice. (NY Const. Art 1, § 11; Civil Rights Law § 13). Therefore, a Batson challenge may be based on skin color, and the prima facie
160 burden of demonstrating a peremptory strike was discriminatory may be met by showing that the peremptoried jurors have a similar skin color. It is then the responsibility of the court to decide whether the individuals identified share a common skin color in the same way they make determinations about other classifications. Defendant was entitled to a new trial as the prosecutor could not provide a nondiscriminatory explanation—or any reason-- for why he exercised a peremptory strike against a dark skin prospective juror.
Garcia, J., concurring The concurrence agreed with the majority that a new trial was warranted, but claimed the question of whether skin color is a cognizable classification for Batson purposes is moot. Once a party in step two of the Batson protocol offers a race-neutral reason for the strike, the sufficiency of step one becomes moot. In this case, the prosecutor could not recall his reason for striking one of the five prospective jurors. A party may not rebut a party’s contention that a strike was discriminatory simply by stating that it was not, and a failure to recall why a strike occurred is insufficient. On these grounds, the trial court erred in excluding the fifth juror, and a new trial is warranted. Since the error occurred in step two, the issue of whether skin color is a cognizable classification that was invoked by the prosecutor during step one is precluded by the mootness doctrine. As a result, the majority incorrectly ignored the mootness doctrine, and unnecessarily expanded the application of Batson.
161 VII. STATUTORY INTERPRETATION
People v Parrilla, 27 NY3d 400 (2016) Garcia, J. The Court was asked to determine whether the People were required to prove that defendant had knowledge that the knife in his possession was a gravity knife and subject to enhanced punishment. Defendant did not dispute that he possessed a folding utility knife at the time of his arrest, but argued that he was unaware that the knife's characteristics rendered it a gravity knife and that the People were required to prove such knowledge to establish an element of third-degree criminal possession of a weapon.
The Court held that Penal Law § 265.01(1) does not require the People to prove that a defendant has knowledge that the knife meets the statutory definition of a gravity knife. Rather, the Legislature intended to impose strict liability to the extent that a defendant need only be aware of the physical possession of the knife. While knowing possession of the knife is required, Penal Law § 15.15(2), it is not necessary that a defendant know the knife met the technical definition of a gravity knife under § 265.00(5). Therefore, the Appellate Division properly affirmed defendant's conviction.
People v Berry, 27 NY3d 591 (2016) Fahey, J. The Court considered whether a conviction for unlawful dealing with a child under Penal Law § 260.20 (1) can stand when culpability is based solely on defendant's failure to act, and defendant has no legal duty to the child. Defendant was arrested when police arrived at his girlfriend’s house and, upon a lawful search, found crack cocaine on the premises. The girlfriend’s children were in the home at the time of the arrest, and both defendant and the girlfriend were charged with possession of a controlled substance and unlawful dealing with a child.
Penal Law § 260.20(1) was intended to protect children from those who exploit them for illicit purposes. The Court interpreted this as indicating that the law targets those who can exert influence and control over children, as opposed to one who has knowledge that a child is remaining in a place where illegal narcotics or sexual activity is conducted but no authority to control the child.
To establish that a defendant permitted a child to enter or remain in a place, premises, or establishment, within the meaning of Penal Law § 260.20(1), the People must show that defendant had a relation either to the child or to the place, premises, or establishment, such that the person could control whether the child entered or remained there. A mere ability to notify authorities does not constitute such ability to control. Otherwise, the statute might apply to anyone who encounters a child entering or remaining in one of the proscribed places. One who lacks the power to control another person cannot
162 be charged with permitting an act. Here, the People offered no evidence that defendant could prevent the children from remaining on the premises or, conversely, allow them to remain. Accordingly, the Court reversed the appellate order affirming conviction, vacated the judgment and dismissed the indictment.
Pigott, J., dissenting; Chief Judge DiFiore and Judge Garcia joining In the dissent’s view, the evidence established that defendant knowingly permitted three underage children to remain in an apartment where he knew, or had reason to know, that unlawful drug activity was being maintained. Viewing this evidence in the light most favorable to the People, the jury could have reasonably rejected defendant's claim that he was homeless and concluded that defendant lived, or otherwise had control over, the apartment. Thus, the dissent would have affirmed the Appellate Division.
People v Davidson, 27 NY3d 1083 (2016) Memorandum The “Protection of People with Special Needs Act,” under article 20 of the Executive Law, was enacted to protect those “who are vulnerable because of their reliance on professional caregivers.” The Act provides for the creation of a “justice center” which shall “employ a special prosecutor” empowered to “investigate and prosecute offenses involving abuse or neglect” and to “cooperate with and assist district attorneys and other local law enforcement officials in their efforts against such abuse or neglect” (Executive Law § 552 [2][a]). The question on appeal was whether the special prosecutor created under the Act was authorized to prosecute cases of abuse and neglect in local criminal courts, and not just County and Supreme Court, which were explicitly named in Executive Law § 552(2)(c).
The Court held that the special prosecutor was not prohibited from prosecuting abuse and neglect cases in local criminal courts because “[t]here is no indication from the statute that the special prosecutor’s powers are limited by section 552 (2)(c)” and the specific reference to County and Supreme Court in the statute “merely sets forth the requirement that the special prosecutor consult with the district attorney of the pertinent county should the special prosecutor wish to appear in County Court or Supreme Court.”
Rivera, J., dissenting; Abdus-Salaam, J. joining The dissent would have held that the Legislature may not transfer or diminish the core responsibilities and prosecutorial powers of a constitutionally elected officer, such as a District Attorney, through appointment of an unelected official. The District Attorney has the ultimate responsibility for prosecuting crimes and offenses. Thus, where the Legislature creates the office of an appointed special prosecutor for criminal matters, and prohibits interference with the investigatory and prosecutorial duties of the District Attorney, such special prosecutor may only appear in accordance with the authorizing statute, upon consent of the local District Attorney. The dissent, believing the record to be unclear as to whether such consent was obtained, would have remitted the matter for further proceedings to resolve this issue.
163
People v Joseph, 28 NY3d 1003 (2016) Memorandum The Court was asked to determine whether the basement of a deli was a “dwelling” under the burglary statute where the deli was located on the ground floor of an apartment building and the basement was accessible only by doors on the sidewalk.
The residences were cut-off and inaccessible from the basement, as there was no door or any other method of entry between the basement and the rest of the building -- the basement was solely accessible via the public sidewalk. Furthermore, the basement was used exclusively by deli staff, so there was no chance that a resident would have been in the basement during the alleged burglary.
The Court held that on these facts there was no "close contiguity" (Quinn v People, 71 NY 561 570-572 [1878]) between the basement and the residences and "the special dangers inherent in the burglary of a dwelling do not exist" (People v McCray, 23 NY3d 621, 624 [2014]). The basement was therefore not a “dwelling” within the meaning of the statute, and the Court therefore reversed defendant’s conviction for burglary in the second degree.
Stein, J., dissenting The dissent argued that the majority’s holding constituted an unreasonable expansion of the exception to the rule that a building with residences in it is a dwelling. The building at issue, the dissent reasoned, contained a basement, a deli, and six floors above the deli, rendering every part of the building a dwelling under a strict application of the statute. The judicially created exception, that remote and inaccessible spaces in a building are not a “dwelling,” should not be expanded and does not apply here since the basement in this primarily-residential building was not so remote from the living quarters as to eliminate the special dangers inherent in the burglary of a dwelling. The dissent would have affirmed defendant's conviction of burglary in the second degree.
People v Pabon, 28 NY3d 147 (2016) Rivera, J. Defendant appealed his conviction of first-degree course of sexual conduct against a child arguing, inter alia, that the statute of limitations had run and his prosecution was therefore untimely. Defendant maintained that under the version of the Criminal Procedure Law in place at the time, CPL 30.10 (2)(b) provided a general five-year statute of limitations period, applicable to defendant's crime, rendering CPL 30.10 (3)(e), which also provided for a five-year statute of limitations period, superfluous. The Court disagreed, ruling that the statutory language and the legislative intent of easing prosecutions for repeated sexual offenses against children established that CPL 30.10 (3)(f) was, in fact, the tolling provision for CPL 30.10 (3)(e).
164
Pigott, J. (concurring) The Judge concurred for the reasons stated by the Appellate Division.
People v Ocasio, 28 NY3d 178 (2016) Stein, J. The Court considered whether an extendable metal baton can be considered a "billy" under Penal Law § 265.01 (1), a strict liability statute that punishes criminal possession of various enumerated weapons without proof of criminal intent or knowledge of the weapon’s legal status. Defendant was charged with possession of what the accusatory instrument described as a “rubber-gripped, metal, extendable baton (billy club)” in his rear pants pocket. Defendant successfully moved to dismiss the accusatory instrument as facially insufficient, arguing the extendable metal baton was not a “billy,” one of the weapons prohibited by Penal Law § 265.01 (1) and not defined by the statute. The Appellate Division affirmed. The Court reversed, holding that the common understanding of the term “billy” is “a cylindrical or rounded, rigid, club or baton with a handle grip which, from its appearance and inherent characteristics, is designed to be used as a striking weapon and not for other lawful purposes.” The fact that billies have traditionally been made of wood and have not been retractable was not as important as the object’s general function. As such, the accusatory instrument alleging that defendant possessed a metal, extendable striking weapon with a handle grip was sufficient to charge him with possessing a “billy” within the meaning of the statute.
Rivera, J., dissenting; DiFiore, C.J. and Pigott, J., joining At the time “billy” was added to the list of prohibited weapons, it was recognized as a solid wooden club, of fixed dimensions and proportions, and that this was the term’s meaning for well over a century. Further, because the statute included several other similar striking weapons with handle grips, the majority’s definition of “billy” violates the rule against superfluities. Also, the rule of lenity provides that if two constructions of a criminal statute are plausible, the one more favorable to defendant should be adopted.
People v Fisher, 28 NY3d 717 (2017) Rivera, J. Defendant pleaded guilty to hindering prosecution in the second degree after helping dispose of a gun used in a homicide. Following the plea, the shooter was acquitted of all felony charges, with the jury likely finding the shooting to have been in self-defense or accidental. After the acquittal, and before defendant’s sentencing, defendant moved to withdraw his guilty plea. The court denied the motion. On appeal defendant argued that because the shooter was acquitted, and because the commission of an underlying felony is an element in hindering prosecution in the second degree that needs to be proven by the prosecution beyond a reasonable doubt, defendant was innocent of the charge. The Court held that it was within the trial court’s discretion to reject defendant’s motion to withdraw the plea prior to sentencing. While Penal Law § 205.60 provides that a defendant is guilty of
165 hindering prosecution in the second degree when defendant “renders criminal assistance to a person who has committed a class B or class C felony,” the Court previously held in People v Chico (90 NY2d 585, 588 [1997]) that the “the statute does not require proof that the assisted person was ever arrested or convicted.” The Court held that the People satisfied their burden of establishing defendant’s guilt beyond a reasonable doubt based on defendant’s plea admissions that the assisted person committed the crime. Furthermore, collateral estoppel does not bar the People’s continued prosecution following the shooter’s acquittal because no previously determined facts were relitigated at defendant’s sentencing.
People v Badalamenti, 27 NY3d 423 (2016) Fahey, J. Defendant, who was charged with second-degree assault and other crimes for beating his girlfriend's six-year-old son, protested the admission at his jury trial of a recording in which he was heard yelling at the boy and threatening to beat him. The recording had been made by the child's father, when a cell phone call he placed to the mother allowed him to hear and record the conversation in her apartment without her knowledge. Defendant contended that the making of the recording amounted to the crime of "mechanical overhearing of a conversation" (Penal Law §§ 250.05, 250.00 [2]), because no party to the conversation consented to the recording, and that it was therefore inadmissible under CPLR 4506 (1). The Court, however, interpreted the term "consent" in the definition of that crime to include vicarious consent on behalf of a minor child. The Court joined other jurisdictions, notably the Sixth Circuit, in holding that if a parent or guardian has a good faith, objectively reasonable basis to believe that it is necessary, in order to serve the best interests of a minor child, to create an audio or video recording of a conversation to which the child is a party, the parent or guardian may vicariously consent on behalf of the child to the recording. The Court noted that, properly applied, this narrowly tailored test of parental good faith and reasonableness does not lend itself to abuse by scheming parents in custody disputes. Significant factors in assessing whether the test is met will be the parent's motive or purpose for making the recording, the necessity of the recording to serve the child's best interests, and the child's age, maturity, and ability to formulate well-reasoned judgments of his or her own regarding best interests. The Court concluded that in this case the father had a good faith, objectively reasonable basis to believe that it was necessary for the welfare of his son to record the conversation, and that he therefore gave vicarious consent to the recording within the meaning of the law criminalizing "mechanical overhearing of a conversation."
Stein, J., dissenting; Rivera, J. and Abdus-Salaam, J., joining The dissent rejected the majority’s interpretation of the statute, and would have held that vicarious consent could not be used in Penal Law §§ 250.05, 250.00. The statute is silent on vicarious consent, and the existence of a parent-child relationship is insufficient to create this exception. The dissent warned that the majority’s rule is unworkable and will lead to anomalous results.
166
People ex rel Schneiderman v Greenberg, 27 NY3d 490 (2016) Stein, J. Defendants, two former officers of the American International Group, Inc., challenge the availability of certain equitable relief in a case brought by the Attorney General under the Martin Act (General Business Law article 23-A) and Executive Law § 63 (12). In a prior appeal, defendants requested the Court of Appeals determine that equitable relief was unavailable under the Martin Act, and argued that no basis for equitable relief existed because it had been exhausted in the litigation brought by the Securities and Exchange Commission (SEC). The Court remanded the case for the lower court to determine whether the injunction sought by the Attorney General was considered a justifiable exercise of the court’s discretion, and if other equitable relief sought by the Attorney General, ie. disgorgement, was available.
The question before the Court is whether the prior decisions were properly made. First, the Court affirmed the decision that “upon a showing of a reasonable likelihood of a continuing violation based upon the totality of the circumstances,” the Attorney General may obtain permanent injunctive relief under the Martin Act and Executive Law § 63 (12) (see People v Lexington Sixty-First Assoc., 38 NY2d 588, 598 [1976]; Securities & Exch. Commn. v Management Dynamics, Inc., 515 F2d 801, 807 [2d Cir 1975]). This action is authorized as a remedial measure in order to prevent fraud and defeat exploitation. (Lexington Sixty-First, 38 NY2d at 598). The Court held that the Attorney General does not have to show irreparable harm in order to obtain a permanent injunction, and that in this case, questions of fact preclude summary judgment.
Next, the Court determined that disgorgement is an available remedy under the Martin Act and Executive Law § 63 (12), as in the appropriate case, it may be an" equitable remedy distinct from restitution" in New York anti-fraud litigation (Matter of People v Applied Card Sys., Inc., 11 NY3d 105, 125 [2008], cert denied 555 US 1136 [2009]; see People v Ernst & Young LLP, 114 AD3d 569, 569-570 [1st Dept 2014]). The Martin Act provides courts with the authority to "grant such other and further relief as may be proper" in any action brought under it (General Business Law § 353-a). Disgorgement "merely requires the return of wrongfully obtained profits [and] does not result in any actual economic penalty." (Official Comm. Of Unsecured Creditors of WorldCom, Inc. v Securities & Exch. Commn., 467 F3d 73, 81 [2d Cir 2006]). Therefore, the order of the Appellate Division was affirmed, and the Court held the prior decisions were properly made.
167 VIII. EVIDENCE
A. Witness Testimony
People v Frankline, 27 NY3d 1113 (2016) Memorandum The Court determined that the trial court's admission of extensive testimony by the victim, defendant's former intimate partner, describing how defendant brutally assaulted her approximately one week before the attempted murder and assault at issue, did not constitute reversible error. The testimony was admitted in conjunction with at least three curative instructions through which the court scrupulously advised the jury that such evidence was to be considered for only two purposes: to explain the relationship between defendant and the victim, and as proof of defendant's intent and motive. Those instructions, which the jury is presumed to have followed, offset any potential for prejudice arising from the admission of the disputed testimony. The Court was not convinced that the trial court erred in admitting the testimony, and any error was harmless.
Fahey, J., concurring Judge Fahey concurred in the result only because, in his opinion, the trial court did not abuse its discretion in admitting the testimony of the previous assault, thus making the harmless error analysis unnecessary.
People v McCullough, 27 NY3d 1158 (2016) Memorandum The Court held that the Appellate Division erred by holding that the trial court abused its discretion as a matter of law in precluding the introduction of expert testimony because the trial court was entitled to reject the expert testimony after balancing the probative value of the evidence against its prejudicial or otherwise harmful effects. The decision to admit or exclude expert testimony concerning factors that affect the reliability of eyewitness identifications rests within the sound discretion of the trial court.
The defense moved for an order permitting, among other things, testimony from an identification expert about certain factors that could have influenced an eyewitness’ ability to make a positive identification of defendant. When the motion is considered during the People's case-in-chief, the trial court performs this function by weighing the request to introduce such testimony against other relevant factors, such as the centrality of the identification issue and the existence of corroborating evidence (see People v LeGrand, 8 NY3d 449 [2007]).
To the extent LeGrand has been understood to require courts to apply a strict two- part test that initially evaluates the strength of the corroborating evidence, it should instead be read as enumerating factors for trial courts to consider in determining whether expert testimony on eyewitness identification "would aid a lay jury in reaching a verdict.”
168 Rivera, J., dissenting The dissent argued there is no question that the eyewitness identification was central to the People's case since it was the only direct evidence linking defendant to the crimes. The dissent viewed the sole question as being whether another eyewitness provided sufficient corroborating evidence to significantly diminish the importance of the proffered expert testimony. The corroborating evidence must be sufficiently reliable that a trial court may conclude with some confidence that the eyewitness identification is quite unlikely to be mistaken, and that expert testimony would be an unnecessary distraction for the jury. The dissent reasoned that the record does not support such a conclusion in defendant's case.
B. Impeachment
People v Smith, 27 NY3d 652 (2016) Abdus-Salaam, J. The primary issue in these appeals was whether the trial courts abused their discretion in precluding any cross-examination into allegations of a law enforcement officer's prior misconduct made in an unrelated federal lawsuit. The Court held defense counsel may question officers for impeachment purposes about specific prior bad acts underlying federal civil rights lawsuits against them, so long as the specific allegations are relevant to the witness's credibility. Here, there was a good faith basis for the questions and no indication that the main issues would have been obscured and the jury confused by the inquiry. Moreover, the evidence against defendant was not overwhelming.
The Court clarified that law enforcement witnesses should be treated in the same manner as any other prosecution witness for purposes of cross-examination. Whether to permit inquiry into such prior bad acts for impeachment purposes is a discretionary determination for the trial court and fact-reviewing intermediate court, and generally no further review by the Court of Appeals is warranted. The trial courts have inherent power to control the scope of cross-examination and questioning about prior bad acts. An appellate court will only intervene where the trial court has either abused its discretion or exercised none.
People v Wilson, 28 NY3d 67 (2016) Pigott, J. The issue presented was whether the Court should adopt a new bright-line rule that made any statements obtained in violation of Miranda inadmissible in New York. Previously, the Court held in People v Harris (25 NY2d 175 [1969]) that a statement obtained in violation of a defendant's rights under Miranda v Arizona, (384 US 436 [1966]) may be utilized for impeachment purposes on the cross-examination of a defendant whose testimony is inconsistent with the illegally obtained statement.
Here, defendant was repeatedly questioned after invoking his right to remain silent. The officers involved in the questioning admitted that they kept talking at defendant, but denied that their purpose in doing so was to create admissible impeachment evidence.
169
The Court has long held that if a statement made by defendant to the police is voluntary, it may be used for impeachment purposes, but if a statement is involuntary, it will not be admissible, even if it may be deemed reliable (see People v Maerling, 64 NY2d 134, 140 [1984]). As there was no indication the officer consciously circumvented defendant's invocation of his Fifth Amendment rights or otherwise rendered his statements involuntary as a matter of law, the Court declined defendant's invitation to adopt such a rule, and affirmed the order of the Appellate Division.
C. Hearsay & Confrontation Clause
People v Kangas, 28 NY3d 984 (2016) Memorandum The Court considered whether the trial court erroneously admitted breath test documents into evidence under the business records exception to the rule against hearsay. County Court had held that the record of simulator solution testing and the records pertaining to the maintenance and calibration of the breath test instrument were admissible based upon the attached state agency certifications. That court also disregarded the inaccurate certifications submitted by the County Sheriff's Office with respect to those records.
The Court held that County Court was correct to consider as the applicable statute CPLR 4518 (a), which was amended in 2002 (see L 2002, ch 136, § 1) to provide that an "electronic record . . . shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record" (CPLR 4518 [a]). The statute further provides that the court "may consider the method or manner by which the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record," but "all other circumstances of the making of the memorandum or record . . . may be proved to affect its weight," and "shall not affect its admissibility.” Based on the interpretation of this statute, the Court held that County Court’s rulings were correct and, thus, affirmed.
People v Speaks, 28 NY3d 990 (2016) Memorandum The Court was asked to determine whether a police officer’s testimony’s that recounted the statements of both a non-testifying witness’ description of the perpetrator constituted hearsay, such that the trial court erred in admitting the testimony.
The Court held that the majority of defendant’s claims were unpreserved and that the sole preserved issue was meritless. Not only was the police officer’s testimony not admitted for the truth of the matter asserted, but it was also accompanied by a curative instruction explaining that it was not admitted for its truth. Moreover, the testimony
170 consisted only of a generic description of the robbers that was cumulative of non-hearsay descriptions provided by other witnesses. It was also consistent with the visual depiction of the robbers seen in a surveillance video. Under these circumstances, the trial court did not abuse its discretion in allowing the testimony as background information to explain why the police sought relevant surveillance footage.
The Court also rejected defendant’s ineffective assistance of counsel claim that defense counsel failed to object to various summation comments. Here, the totality of the representation did not evince counsel’s ineffectiveness.
People v Patterson, 28 NY3d 544 (2016) Stein, J. The Court upheld the admission of prepaid cell phone records as non-hearsay evidence located within a business record because it was not offered for the truth of the matter asserted. Defendant in the case was convicted of second-degree robbery and burglary, and he pleaded guilty to robbery in the first and third degrees and attempted robbery in the first degree.
Rivera, J., concurring The concurrence would have affirmed the admission of the evidence for the non- hearsay purpose of completing the narrative. The concurrence recognized that the completing the narrative exception is used too often in criminal cases to get around the rules of hearsay, but in this case the exception applied.
People v Jones, 28 NY3d 1037 (2016) Memorandum The Court considered whether an eyewitness’s statements to police at the time of the crime constituted a present sense impression, such that the statement was properly admitted as a hearsay exception. An officer observed defendant from across the street as defendant got in the cab of a parked FedEx delivery truck, exit the cab, and proceed to the back of the truck. The officer then followed defendant to the back of the truck and, while walking up to the truck, encountered a woman who said: “Did you see he was trying to get into the back of the truck? Are you going to get him?” This woman was unidentified by the time of trial, and the officer testified to her statements during trial.
The Court held that the trial court properly admitted the statement as a present sense impression. In so holding, the Court explained that the woman’s statements were made immediately after a startling event, and that the rule allows for admission of “spontaneous descriptions of events made substantially contemporaneously with the observations . . . if the descriptions are sufficiently corroborated by other evidence” (People v Brown, 80 NY2d 729, 734 [1993]). Accordingly, the Court affirmed the Appellate Division.
171
People v Vining, 28 NY3d 686 (2017) Abdus-Salaam, J. The Court considered whether the trial court properly admitted defendant’s girlfriend’s statement on a recorded Rikers Island phone call as an adopted admission. Defendant was charged with several counts of assault against his girlfriend, but still regularly spoke with his girlfriend while incarcerated at Rikers Island. During one such recorded phone call, the girlfriend repeatedly accused defendant of breaking her ribs, and defendant either did not respond or gave elusive responses. The trial court permitted admission of the taped phone call as an adopted admission by silence, and defendant objected to its admission on the grounds that admission of the call both failed to meet the elements of an adopted admission by silence and violated his right to pre-trial silence.
The Court rejected defendant’s claims. The Court concluded that the trial court did not abuse its discretion in deciding that the girlfriend’s statement was an adopted admission by silence because adoption of another’s statement can be achieved through either silence or evasive responses. To admit the evidence, the proponent must show that defendant heard and understood the assertion, and reasonably would have been expected to deny it (People v Allen, 300 NY 222, 225 [1949]). The Court concluded that the trial court properly ruled that the People met this burden, and that the value of the statement was for the jury to weigh. The Court also stated that the right to pre-trial silence is triggered only when a defendant is facing custodial interrogation, and distinguished this from the current case, i.e. a voluntary phone call that happens to be recorded by the Department of Corrections.
Rivera, J., dissenting; DiFiore, C.J., joining The dissent concluded that the admission of the phone both violated defendant’s right to pre-trial silence and the People failed to show that the statement met the elements of an adopted admission by silence. The same policy concerns that prevent admission of silence during a custodial interrogation are applicable to a phone call that defendant knows is being recorded. “Silence is especially weak evidence of guilt because a defendant may stand mute in the face of a direct accusation for a number of reasons unrelated to actual criminal culpability” (see People v Conyers, 52 NY2d 454 [1981]). Accordingly, the dissent would have held that the phone call was inadmissible because “whether a law enforcement official asks the question, or is merely listening to another's accusation, a defendant's silence is ambiguous and prejudicial.”
Additionally, the dissent would have held that the People failed to meet their burden under the adopted admissions standard as a matter of law. The dissent noted that the adopted admission doctrine requires defendant to be at “full liberty” to respond to the statement (People v Allen, 300 NY 222, 225 [1949]), but defendant here was not at such liberty because he knew that his phone call was being recorded and monitored by Rikers Island staff.
People v Chery, 28 NY3d 139 (2016)
172 DiFiore, C.J. This case involved a defendant who, while in handcuffs but before being Mirandized, uttered a spontaneous statement to a police officer about the crime being investigated that did not include many of the exculpatory details to which he would later testify. The prosecution then impeached defendant with these omissions, or selective silences, during cross-examination. The issue was whether such a defendant can be impeached with these omissions during cross-examination under the NY State Constitution.
While evidence of a defendant’s pretrial silence is generally inadmissible, in People v Savage (50 NY2d 673, 679 [1980]), this Court recognized a narrow exception: “when given circumstances make it most unnatural to omit certain information from a statement, the fact of the omission is itself admissible for purposes of impeachment.” The Court held that defendant spontaneously elected to provide some explanation of what happened at the scene, and it was unnatural to have omitted the significantly more favorable version of events to which he testified at trial, and as such the omissions could be used for impeachment.
Rivera, J., concurring The concurrence argued that the facts distinguished the case sufficiently from Savage so that its exception should not have been applied and it was thus error to allow the People to impeach defendant’s trial testimony. This error, however, was harmless.
People v Lin, 28 NY3d 701 (2017) Stein, J. On this appeal, defendant argued that the Confrontation Clause was violated when the police officer who testified at trial regarding defendant’s breathalyzer test was not the officer who had personally administered the test. The Court held that because the testifying officer had observed the test, was himself personally trained to operate the machine, and was familiar with the process and could tell whether the machine was functioning based on its sounds, he was an adequate surrogate for the test-administrator and could testify regarding the test results. The Court reasoned that, “[n]either the United States Supreme Court nor this Court has required the primary analyst to testify in every case in order to protect a defendant's confrontation rights” and further that, “both courts have commented that the Confrontation Clause is satisfied if the trial witness is a trained analyst who supervised, witnessed or observed the testing, even without having personally conducted it.” Here, because the testifying officer had satisfied these requirements, the Court held that the Confrontation Clause was not violated.
People v Hernandez, 28 NY3d 1056 (2016) Memorandum Defendant was convicted of sexual abuse in the first degree and endangering the welfare of a child for sexually touching a three-year-old girl. The issue on appeal was
173 whether the trial court erred in allowing the child’s mother and father to testify about certain statements the child made to them shortly after the alleged abuse occurred and then several hours later at a hospital, both under the excited utterance exception to the hearsay rule. Defendant argued that because the statements were spoken after the girl was repeatedly questioned by her parents and then hours later at a hospital, they were not “excited utterances.” The Court disagreed, however, holding that because the “decisive factor is whether the surrounding circumstances reasonably justify the conclusion that the remarks were not made under the impetus of studied reflection,” and because the facts and circumstances of the case indicated that the child was indeed in a highly emotional state, the statements were “excited utterances.” The Court further held that, “[e]ven accepting defendant's contention that the stress of excitement had sufficiently abated by the time the child made those later statements” at the hospital, “any error in their admission was harmless.” The Court therefore affirmed the Appellate Division’s order affirming defendant’s convictions.
D. Molineux & Sandoval Evidence
People v Brewer, 28 NY3d 271 (2016) Abdus-Salaam, J. The Court considered whether evidence of defendant’s sexual proclivities and drug use were “prior bad acts,” such that the evidence was subject to the Molineux rule. Defendant was charged with sexual abuse of his girlfriend’s young daughters, and both victims testified that defendant had a specific sexual preference—he would take the girls into a closet, put his shirt over his head, and smoke crack while receiving oral sex. The People sought to admit evidence from the girlfriend that she had engaged in the exact same sexual ritual with defendant and that she had observed defendant engage in the same behavior with other women. The People argued that the evidence was admissible to corroborate the victims’ testimony.
The Court held that the testimony of defendant’s sexual preference was not subject to the Molineux rule. Whereas Molineux limits the admission of prior convictions, uncharged crimes, or bad acts, the Court reasoned that evidence of consensual sexual encounters cannot be considered a “bad act.” Accordingly, the trial court properly admitted the evidence to corroborate the victims’ testimony (see People v Ventimiglia, 52 NY2d 350, 359 [1981]). Additionally, the Court ruled that the evidence of defendant’s crack use was not overly prejudicial, and that the trial court did not abuse its discretion in admitting the evidence.
People v Jackson, 2017 NY Slip Op 02361 (2017) Rivera, J. Defendant, convicted of predatory sexual assault and criminal sexual act in the first degree, appealed on two grounds. First, he asserted that the trial court erroneously allowed
174 prosecution to elicit information about his juvenile delinquency adjudication on cross- examination, and it was not harmless. Next, he claimed that the trial court did not secure a valid waiver of his right to be present in a sidebar conversation with a prospective juror regarding her potential bias.
During trial court proceedings, the prosecution sought to ask about juvenile offenses for which defendant was adjudicated. At a Sandoval/Molineux hearing, defendant opposed prosecution’s request because the offenses were juvenile and “a young offender's mind and sense of values are not well formed” (People v Jackson, 2017 WL 1135879) The court ruled that prosecution could elicit information on the fact that the adjudication occurred and defendant received a year of probation, but could not elicit the facts underlying the adjudication. Defendant did not object to this ruling.
The Court explained that a challenge based on a Sandoval error must be preserved with a specific, timely objection (People v Cantave, 21 NY3d 374, 378 [2013]; People v Gray, 86 NY2d 10, 20–21 [1995]; CPL 470.05 [2]). The defendant did not make an objection based on the argument he asserted in his appeal, and failed to argue it was legal error to admit evidence that he was adjudicated as a delinquent. (see People v Greer, 42 NY2d 170, 176 [1977]). Defendant contended that the specific issue was preserved under CPL 470.05 (2) because the trial court responded to his protest by ruling on the legal merits. The Court concluded that because defendant only objected on the ground that juveniles have not achieved the mental and social capacity of adults, the trial judge never had the opportunity to confront the issue defendant raised on appeal (People v Feingold, 7 NY3d 288, 290 [2006]).
The Court also considered whether defendant was denied the right to be present at a sidebar conference, and concluded that because defendant waived his right to be present the issue was non-reviewable. At a hearing, the trial court informed defendant that he had a right to be present at sidebar conferences, but because he was in custody, he had to be accompanied by court officers and this would reveal his custodial status to the jurors. The court informed defendant that he could waive his right to be present, and even with the waiver, he could come up to the conversation at any time. Defendant consulted with his attorney and signed the waiver. Although a court may not question jurors as to their ability to weigh evidence objectively without defendant present, (People v Antommarchi, 80 NY2d 247 [1992]), a defendant may waive his right to be present (People v Vargas, 88 NY2d 363, 375-376 [1996]). In this case, defendant was informed by the court of his rights, consulted with his attorney, and signed a clearly worded waiver form. Therefore, the Court held he validly waived his rights to be present at the sidebar conference.
Fahey, J., concurring, Judge Abdus-Salaam joining The concurring opinion agreed that defendant properly waived his Antommarchi right to be present at the sidebar conference, but disagreed that defendant’s challenge to the Sandoval challenge was unpreserved. Although defendant’s initial objection was general and insufficient to preserve his contention for appeal, the prosecutor clarified that the juvenile adjudication could not be used for impeachment purposes, and that only the facts underlying
175 the offense were proper for impeachment. The trial court, however, ruled instead that prosecution could use the fact that there was a juvenile adjudication and not the facts. Since the trial judge expressly ruled on the issue being raised on appeal, defendant’s contention was properly preserved for appellate review. The concurring opinion, however, agreed with the Appellate Division that the error was harmless.
People v Leonard, 2017 NY Slip Op 02359 (2017) Abdus-Salaam, J. Defendant was charged with sexual abuse in the first degree and unlawfully dealing with a child in the first degree for sexually assaulting his underage relative after serving her alcohol. The issues on appeal were (1) whether the trial court erred in admitting prior bad act evidence under Molineux, and (2) whether defendant received ineffective assistance of counsel. The Court held that the Molineux evidence was improperly admitted, entitling defendant to a new trial and rendering the ineffective assistance claim academic.
At defendant’s trial, the People were permitted to introduce evidence of a prior uncharged incident during which defendant allegedly provided the same victim with alcohol and proceeded to sexually assault her. The Court held that admitting such evidence was error because where intent can be readily inferred, evidence of prior bad acts used to prove intent is unnecessary and should be excluded. Here, because sexual gratification “can be inferred from the act,” the evidence was not admissible under the intent exception. Furthermore, in defendant’s case, to the extent the evidence was admissible to show why he provided alcohol to the victim, it was still improper as highly prejudicial. The evidence of defendant’s prior bad act was “propensity evidence, tending to show that defendant committed the charged crime because he had done it before,” as such, the evidence was prejudicial and, the Court held, that prejudice “far outweighed any probative value that may be attributed to it.” Furthermore, such error was not harmless given that “the evidence of defendant’s guilt . . . was not overwhelming; additionally, no limiting instruction was provided regarding the permissible purposes for which the Molineux evidence could be considered.”
E. Legal Sufficiency of the Evidence
People v Flanagan, 28 NY3d 644 (2017) DiFiore, C.J. Defendant was convicted of conspiracy in the sixth degree and two counts of official misconduct for participating in a conspiracy with several other Nassau County Police Department officers to prevent the arrest of the son of a friend and police benefactor who had stolen over $10,000 worth of electronics equipment from his high school. Defendant’s role was helping return the stolen equipment to the school at the behest of the thief’s father. The appeal was primarily based on defendant’s challenges to his convictions on the bases of the legal sufficiency of the evidence and the fairness of the trial.
176 To be convicted of official misconduct for malfeasance, a defendant (1) must commit an act that constitutes an unauthorized exercise of his or her official functions, (2) knowing that the act is unauthorized, (3) with the intent to obtain a benefit or deprive another of a benefit (Penal Law § 195.00[1]). The Court held that defendant's knowing participation in a “purportedly” authorized official action, which was actually done in blatant violation of department protocols and state law, coupled with the intent to thwart arrest and prosecution of a suspect, all to the benefit of the suspect's father, was enough for the jury to rationally conclude there was legally sufficient evidence to convict defendant of official misconduct under a theory of malfeasance.
To be convicted of official conduct for nonfeasance, a defendant (1) must knowingly refrain from performing a duty imposed by law or clearly inherent in the nature of his or her office (2) with the intent to obtain a benefit or deprive another of a benefit (Penal Law § 195.00[2]). The Court found that despite the fact that police officers have a degree of discretion in determining who to investigate and arrest, the jury could have rationally concluded that the elements of official misconduct by nonfeasance were established by proof that defendant, acting alone and with others, in his supervisory capacity, caused the abdication of the inherent duty to investigate a felony complaint in order to prevent the arrest and prosecution of the thief, where there was overwhelming evidence of the crime, all to the benefit of the suspect's father.
The third issue was one of first impression and concerned whether the hearsay exception that allows statements of co-conspirators into evidence applies only to statements by co-conspirators made while defendant was involved in the conspiracy, or whether it also applies to statements made prior to defendant's joining the conspiracy. The Court held, in line with Supreme Court precedent, that “when a conspirator subsequently joins an ongoing conspiracy, any previous statements made by his or her coconspirators in furtherance of the conspiracy are admissible against the conspirator pursuant to the coconspirator exception to the hearsay rule.”
People v Smith, 2017 NY Slip Op 02362 (2017) Fahey, J., In this case, the Court decided whether the evidence was sufficient to establish that defendant had violated Penal Law § 160.15(4), for attempted robbery in the first degree. The facts at trial established that defendant entered a check cashing store, demanded money, verbally threatened he would shoot the teller, and (although the exact positioning and timing are ambiguous) had his hand placed under his sweatshirt, near his waistband, during the encounter. The Court held the evidence to be legally sufficient to establish that defendant “[d]isplay[ed] what appears to be a . . . firearm” in the course of an attempted robbery (Penal Law § 160.15[4]).
On appeal, defendant principally argued a rational jury could not have found defendant guilty beyond a reasonable doubt of first degree robbery because the victim, and
177 only witness to the robbery, could not precisely identify when and where defendant placed his hand during the course of the robbery. In rejecting this argument, the Court relied on People v Lopez, 73 NY2d 214 (1989). In that case defendant, in the course of a robbery, told the victim “this is a stick up,” while simultaneously placing his hand inside of his vest. The Court held that the “displaying” of a hand in a manner that appears to the victim as a firearm could satisfy the statutory language of Penal Law § 160.15(4). Thus, the Court in the instant case rejected defendant’s principal argument regarding timing due to the totality of the circumstance approach established in Lopez. The majority noted that prior to Lopez the Court had recognized the victim’s fear is a relevant factor distinguishing among the degrees of robbery.
Abdus-Salaam, J., concurring The concurrence, on constraint of Lopez, joined the majority, but reiterated, as did all the opinions in this case, that defendant did not argue to overturn Lopez.
Wilson, J., dissenting While the dissent did not argue to overrule Lopez, it would not have extended Lopez, or its related cases, to the instant case. The dissent’s primary argument against extending Lopez is rooted in statutory construction and legislative intent. First, the dissent argued that the plain meaning of “display,” as used in Penal Law § 160.15(4), does not include conduct such as that exhibited by defendant in this case. The legislative history, according to the dissent, showed that the legislature amended the robbery statute in 1969 to cure an evidentiary problem in proving a defendant’s gun, displayed during a robbery, was loaded and operable. According to the dissent, absent from all of the legislative history cited by the dissent was any mention of legislative intent to make these amendments due to concerns for the fear experienced by victims of such robberies. To buttress this point, the dissent summarized the four controlling cases discussed by the majority. In doing so, the dissent emphasized how each opinion by the Court moved incrementally away from the true legislative intent behind the 1969 amendments by falsely stating that victim’s fear was an aspect of the legislative intent. In short, the dissent believed that Lopez, and the related cases, are incompatible with the statute and its legislative history.
People v Whitehead, 2017 WL 1135968 Memorandum The Court considered whether defendant was convicted on legally sufficient evidence of promoting contraband. The Court reaffirmed People v Samuels (99 NY2d 20, 24 [2002]), which held that “direct evidence in the form of contraband or other physical evidence is not the only adequate proof.” Here, the people presented sufficient evidence in the form of, inter alia, intercepted phone calls filled with drug-related conversations, visual surveillance, and testimony of cooperating witnesses.
This Court also rejected defendant’s claim that the trial court abused its discretion by allowing the people to misstate the definition of “sell” under Penal Law §220.00[1], during
178 the opening statement. The Court explained that this case involved an agreement to sell, which is not the conventional meaning of a “sale,” and so the People did not misstate the meaning of the term. Further, the trial court is charged with instructing the jury not the attorneys, so no error is apparent.
People v Davis, 28 NY3d 294 (2016) DiFiore, C.J. The Court held that there was legally sufficient evidence to support the jury's conclusion that defendant's violent beating of a victim during a home invasion was a sufficiently direct cause of the victim's death. Specifically, the medical examiner's testimony that the stress induced by the injuries inflicted by defendant, given the victim's underlying heart disease, caused his death. Taken in conjunction with crime scene evidence proving that defendant's beating of the victim was severe and immediate in its consequences, the evidence supported the jury's determination that defendant's conduct was an actual contributory cause of the victim's death and that the death of the victim was a reasonably foreseeable result of defendant's conduct.
Rivera, J., dissenting The dissent concluded that the victim’s death was not a reasonably foreseeable consequence of defendant’s actions, and distinguished the existing case law on this point, noting that in all previous cases the defendant’s behavior was inherently deadly. Here, however, causation was predicated on defendant’s actions leading to death because of the victim’s weight and heart disease. The dissent characterized defendant’s actions as non- deadly based on the autopsy report and, thus, would have held that the death was unforeseeable.
179 IX. SUMMATION, JURY INSTRUCTIONS, & JURY NOTES
People v Morris, 27 NY3d 1096 (2016) Memorandum The Court held that neither the trial court’s failure to discuss a jury note on the record before recalling the jury into the courtroom, nor the court’s incomplete response to the jury’s inquiry, constituted a mode of proceedings error. The trial court read the precise content of the jury's note into the record in the presence of counsel, defendant, and the jury, and counsel was present during the court’s incomplete response to the jury’s inquiry. Counsel was therefore aware of the court’s errors and had an obligation to timely object in order to preserve the claims for appellate review.
People v Mack, 27 NY3d 534 (2016) Fahey, J. Criminal Procedure Law Section 310.30 imposes two responsibilities on trial courts upon receipt of a substantive jury note: meaningful notice of the content of the note to the parties and a meaningful response to the jury’s inquiry (People v O’Rama, 78 NY2d 270, 276-277 [1991]). The Court previously held that a trial court’s failure to provide meaningful notice of the content of a substantive jury note constitutes a mode of proceedings error and need not be preserved. This case presented the separate issue of whether a trial court’s failure to provide a meaningful response to a jury note is also a mode of proceedings error.
In defendant’s case, a number of notes were submitted during jury deliberations, the substance of which the court made clear to the parties. Before recalling the jury to provide the agreed upon responses to the jury’s inquiries, however, the court received another note from the jury stating that a verdict had been reached. The court indicated that it would recall the jury and take their verdict, which it did, without ever responding to the previous notes. Defense counsel did not object.
The Court held that the trial court did not commit a mode of proceedings error because, in the O’Rama context, “lack of notice is the key determinant in classifying a particular procedure as a mode of proceedings error” as “[n]otice gives counsel the opportunity to object” (Mack, 27 NY3d at 541). Here, counsel had notice of all the facts required to object to the trial court's procedure or lack of response to the jury's requests as he knew the precise content of the jury notes and that the jury later sent a note stating that it had reached a verdict. Counsel also knew that the court intended to recall the jury and take the verdict on the record without responding to the earlier notes. Defense counsel was therefore required to preserve his claim by timely objecting. Not having objected, the claim was beyond appellate review.
180 Rivera, J., dissenting The dissent argued that under the Court’s precedents, a trial court’s failure to fulfill either of its core responsibilities under O’Rama constitutes a mode of proceedings error. Failures to fulfill core responsibilities are exempted from the preservation requirement because such errors have “the potential to affect the outcome of the trial” (Mack, 27 NY3d at 546 [Rivera, J., dissenting]). Therefore, although the Court has recognized that some departures from the procedures outlined in O'Rama may be subject to rules of preservation . . . a failure to fulfill the court's core responsibility is not" (People v Kisoon, 8 NY3d 129, 135 [2007]). The dissent would have held, therefore, that what matters is not whether counsel had the opportunity to object and did not, but whether the trial court failed “to comply with its mandated duty and core responsibility” of providing a jury with a meaningful response.
People v Finkelstein, 28 NY3d 345 (2016) Pigott, J. In this coercion case, the Court considered whether the trial court erred in declining to instruct the jury on the lesser included offense of second-degree coercion. Defendant was charged with coercion in the first degree for psychologically and verbally threatening his former girlfriend, her business, and her friends after she had asked defendant to move out of her apartment. At trial, defendant requested that the jury be instructed on the charge of coercion in the second degree, which the court denied. He appealed on the ground that there was “a reasonable view of the evidence which would support a finding that defendant committed such lesser offense but did not commit the greater.” (CPL 300.50[1]).
The Court previously ruled in People v Eboli (34 NY2d 281, 285 [1974]), that first and second-degree coercion are identical charges that involve instilling fear in the victim. Unless there is an “unusual fact situation” where the threat “lacks the heinous quality Legislature associated with such threats,” the lesser crime of second-degree coercion will not be charged (id. at 287). The Court held that this case did not present that unusual fact situation, and the Appellate Division’s holding was affirmed.
The Court also considered whether the trial court infringed on defendant’s constitutional right to represent himself during pre-trial proceedings. The Court held that the trial court did not infringe on defendant’s rights because he had abused his phone and law library privileges during his pre-trial incarceration to an extent that jeopardized his ability to properly prepare for trial.
Rivera, J., dissenting The dissent would have reversed the conviction because the trial court incorrectly assumed the jury’s fact finding role by denying defendant’s request for the second-degree charge. The dissent noted that trial court’s application of Eboli and People v Discala (45 NY2d 38 [1978]) incorrectly permitted the judge, not the jury, to make the factual determination of whether defendant’s conduct was of a “heinous quality.” The dissent cited
181 a line of Supreme Court cases that require any facts that enhance a defendant’s sentence must be submitted to the jury (see Apprendi v New Jersey, 530 US 466, 490 [2000]; see also Ring v Arizona, 536 US 584, 590 [2002]; Alleyne v United States, 133 S Ct 2151, 2162 [2013]). As a result, the dissent considered it to be a reversible error for the trial court to deny defendant his request to instruct the jury on the factual requirement of heinousness and the second-degree charge.
People v Hull, 27 NY3d 1056 (2016) Memorandum The issue on appeal is whether, on review of the evidence, is it possible for the trier of the facts to acquit defendant on the higher count and still find him guilty on the lesser one.
The defendant fatally shot his neighbor and was convicted of one count for murder in the second degree. On appeal, facts revealed defendant did not want to kill his neighbor but wanted to stop his momentum. The jury acquitted defendant of murder but found him guilty of first degree manslaughter, which requires intent to cause serious physical injury (Penal Law 125.20[1]).
CPL 300.50(1) allows a court to submit a lesser offense if there is reasonable view of the evidence which would support a finding that defendant committed the lesser but not the greater offense. Here, the additional evidence shows defendant did not want to kill his neighbor, but intended to stop him, making it reasonable to conclude that he intended to injure his neighbor and the neighbor’s movements resulted in his death. (see People v Ford, 66 NY2d 428, 441 [1985]). Even though defendant fatally shot his neighbor, it does not necessarily mean he intended to kill him (People v Butler, 452 NYS2d 582 [1st Dept 1982], rev’d on other grounds, 454 NYS2d 70 [1982]). Therefore, the trial court did not err when it instructed the jury on the lesser charge.
People v Morgan, 28 NY3d 516 (2016) Garcia, J. The Court considered whether the trial court’s supplemental instruction, given after the jury returned a non-unanimous verdict, which was “unbalanced and coercive” as to deprive defendant of his right to a fair trial. A court may give a supplemental charge to encourage the jury to resume deliberations if they are confronting a potential deadlock (People v Aponte, 2 NY3d 304, 308 [2004]). However, a court must not attempt to coerce or compel a jury to agree on a particular verdict, should not guide jurors through prejudicial innuendos or coerce them to reach an agreement, and should not instruct any single juror for noncompliance with the majority (People v Pagan, 45 NY2d 725, 726-727 [1978]). “Swiftness of the verdict” after receiving a supplement charge may suggest that the jury was coerced. (Aponte, 2 NY3d at 308 [where the jury returned a verdict five minutes after a supplement charge]).
182
Here, after receiving full instructions, the jury returned a spilt verdict. The trial judge asked the jury to attempt to reach a verdict and reminded them that the vote must be unanimous to constitute a verdict. The court did not overemphasize the need to return a verdict, or suggest that they “were failing their duty” by not doing so. (Id.). Nor did the court suggest the jurors would be deliberating for a longer period. (Pagan, 45 NY2d at 727). This Court found the absence of cautionary language in the supplemental charge was not fatal since the charge was given two hours after the initial instructions. Moreover, the jurors took a full day to deliberate after receiving the supplement charge suggesting it was not coerced.
People v Williams, 2017 NY Slip Op 68927 (2017) DiFiore, C.J. The main issue in this case involved the prosecutor’s use of a PowerPoint presentation during summation, which included stills from the surveillance video with circles, arrows, and captions, intending to draw the jury's attention to particular details in the images in line with the prosecutor's argument. Defendant alleged that the context of some of these captions included improper argument, and that the overall impact of the presentation violated his right to a fair trial, despite the judge's curative instruction.
The Court concluded that “any type of blatant appeal to the jury's emotions or egregious proclamation of a defendant's guilt would plainly be unacceptable,” and that the slides in question did not contain those types of appeals. The Court also noted that the trial court was very attuned to the annotated slides, ultimately stopped the slideshow and instructed the jury to disregard the slides. To the extent any slides may have misrepresented the trial evidence, the trial court instructed the jury on more than one occasion that the attorneys' arguments were not evidence and that the jury was the sole judge of the facts. Under these circumstances, defendant was not deprived of a fair trial.
People v Anderson, 2017 NY Slip Op 02589 (2017) Abdus-Salaam, J. Defendant was convicted of Attempted Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree for shooting his ex-girlfriend's boyfriend several times in the torso from close range in Brooklyn. During summation, the prosecutor utilized an 80-slide PowerPoint presentation that included exhibits overlaid with text boxes and circles, to which defense counsel voiced a sole objection that was overruled. The final slide included defendant’s arrest photo, overlaid with an orange circle and text boxes with arrows pointing at defendant's face, containing snippets of testimony and the prosecutor's inferences. While this slide was on the screen, the prosecutor referred to the defendant’s face as the “face of death.” Defendant argued defense counsel was ineffective for failing to object to several slides that unfairly prejudiced him.
183 The majority held that “PowerPoint slides may properly be used in summation where the added captions or markings are consistent with the trial evidence and the fair inferences to be drawn from that evidence.” The basic rule established by the majority is that “[i]f an attorney can point to an exhibit in the courtroom and verbally make an argument, that exhibit and argument may also be displayed to the jury, so long as there is a clear delineation between argument and evidence, either on the face of the visual demonstration, in counsel's argument, or in the court's admonitions.” Given the parameters of the permissible use of PowerPoint slides in summation, counsel was not ineffective for failing to object.
Rivera, J., dissenting, joined by J. Fahey The dissent argued that the prosecutor's use of digitally edited reproductions of exhibits to convey inferences and misinformation, as well as to project defendant's image as the “face of death,” exceeded the bounds of proper summation. This imagery was reminiscent of cases in which edited arrest photos were found to be improper summation material because superimposed descriptive labels and inferences appealed to the passion of the jury. As the dissent explained, studies demonstrate that audio and visual information and arguments are processed differently by the human brain. Under the dissent’s rule, edited versions of evidence are permissible only if they assist the jury with their fact-finding function, express information that places the exhibit’s relevance in context, and accurately and precisely reflect the admitted testimony and evidence.
184 X. PUNISHMENT
A. Sentencing
People v Rossborough, 27 NY3d 485 (2016) Pigott, J. The Court considered whether a defendant who has pleaded guilty may waive the right to be present at sentencing. At the plea proceeding, defense counsel informed the court that defendant wished to waive his right to personal appearance at sentencing. County Court apprised defendant of his rights before accepting the waiver. After he was sentenced in absentia, defendant appealed and argued that the court violated his right to be present at sentencing.
The Court held that a defendant who pleads guilty to a felony may waive the right to be present at sentencing, so long as the waiver is a knowing, voluntary and intelligent decision (People v Corley, 67 NY2d 105, 109-110 [1986]). Although CPL 380.40 protects a defendant's fundamental right to be present, that right may be waived, just as any other fundamental right may be waived. Moreover, a defendant's right to be present at sentencing does not fall within the class of those fundamental rights that may not be waived, particularly where a defendant receives the sentence knowingly and voluntarily agreed upon in a plea bargain.
People v Smith, 28 NY3d 191 (2016) Pigott, J. The Court considered whether People v Catu applies retroactively. In Catu, the Court ruled that automatic vacatur of a defendant’s sentence was required when the sentencing court failed to apprise the defendant during a guilty plea allocution of the mandatory period of post-release supervision included in the sentence. The Court reasoned that the failure to provide this information made the guilty plea unknowing and, thereby, unconstitutional.
Here, both defendants had Catu-infected convictions, and the trial court used those convictions to enhance their sentences for subsequent convictions. Defendants objected, arguing that the state Constitution and state criminal procedure law prevents the use of unconstitutionally obtained convictions to enhance subsequent sentences (People v Harris, 61 NY2d 9, 16 [1983], citing Burgett v Texas, 389 US 109, 115 [1967]; CPL 400.15). The Appellate Division agreed, vacating defendants’ enhanced sentences and remitting for new sentencing.
The Court reversed and reinstated the enhanced sentences. In so holding, the Court determined that Catu was a new rule because the Court had applied an automatic vacatur for failing to apprise defendants of mandatory post-release supervision, rather than a settled constitutional principle to a new situation. The new rule in Catu did not apply retroactively
185 under either the federal or state retroactivity analyses. First, under the federal standard, a new rule applies retroactively only when it is a watershed rule of criminal procedure (see Whorton v Bockting, 549 US 406, 416 [2007]), and the Court determined that Catu did not create such a rule. Second, under the state analysis, a new rule is applied retroactively when: “(1) the purpose to be served by the new standards; (2) the extent of the reliance by law enforcement authorities on the old standards; and (3) the effect on the administration of justice of a retroactive application of the new standards” (People v Pepper, 53 NY2d 213 [1981]). The Court reasoned that none of these factors weighed in favor of applying Catu retroactively. Therefore, because defendants’ prior convictions occurred before the Catu rule was announced, their subsequent convictions were not unconstitutionally obtained at the time defendants’ pleaded guilty. Therefore, the trial court properly considered defendants’ prior convictions, and the Court reversed the Appellate Division.
DiFiore, C.J., concurring The concurrence maintained that defendants’ convictions were constitutionally obtained and, thus, were properly considered during sentencing for the subsequent crimes. The concurrence noted the long history of the Catu line of cases, statutes, and regulations, and explained that the legislature adopted new statutes to provide for resentencing for Catu- infected convictions. The concurrence concluded that any constitutional error was cured because both defendants invoked the resentencing proceedings.
Rivera, J., dissenting The dissent concluded that Catu applied retroactively and mandated affirmance of the Appellate Division. The dissent reasoned that Catu was an extension of the well-settled principle that guilty pleas are constitutional only if made knowingly, intelligently, and voluntarily. Further, the dissent noted that the Court had previously applied Catu retroactively, but was now departing from that implicit holding in earlier cases. Moreover, the resentencing did not cure the Catu error. Resentencing cured the illegal sentence, and could not cure the conviction of its unconstitutionality. CPL 400.15 forbids the use of unconstitutionally obtained convictions to enhance sentencing for subsequent crimes, therfore defendants were entitled to be sentenced without regard to their Catu-infected convictions.
People v Couser, 28 NY3d 368 (2016) Abdus-Salaam, J. Appeal No. 1 The first appeal presented the issue of whether consecutive sentences for robbery and attempted robbery were properly ordered under Penal Law 70.25 (2). Defendant was convicted of attempted murder, three counts of attempted robbery, and one count of robbery, stemming from an incident in which defendant waved a gun in front of four people, ordered them to get on the ground, shot at one of them and missed, and took one victim’s purse. Defendant was acquitted of the attempted murder charge, but the robbery and attempted robberies were sentenced consecutively. Defendant argued that concurrent
186 sentencing was required because the statutory elements of robbery and attempted robbery are identical and overlapping and because he engaged in a single act to attempt and execute the robbery. Penal Law Section 70.25 (2) provides that “offenses committed through a single act” must be sentenced concurrently, and the Court in People v Laureano (87 NY2d 640 [1996]) interpreted this provision to require that “where a single act constitutes two offenses” and a “single act constitutes one of the offenses and a material element of the other” the offenses may not be sentenced consecutively. This Court has also held, however, that where there is some overlap in the elements of multiple statutory offenses, courts retain discretion to impose consecutive sentences if the offenses were “separate and distinct acts” (People v Frazier, 16 NY3d 36, 40-41 [2010]). In defendant’s case, the Court held that the taking of one victim’s purse was a “separate and distinct” act such that it was properly within the trial court’s discretion to sentence the robbery and attempted robberies consecutively.
Appeal No. 2 In the second appeal, defendant argued that his counsel was ineffective because his attorney erroneously advised him, before he took an Alford plea, that he could receive consecutive sentencing for the attempted murder charge if it went to trial. Defendant urged that such advice was erroneous because any sentence imposed for first-degree murder – committed “while defendant was in the course of committing or attempting to commit and in furtherance of a robbery” – must run concurrently because in order to be convicted of first degree murder, he would have to have committed a robbery. Without addressing the merits of this argument, the Court held that because neither this Court, nor the Fourth Department, where this case was heard, had directly addressed whether the sentence on a first-degree felony murder charge must run concurrently with the sentence imposed on the underlying felony, defense counsel’s advice, even if erroneous, did not render him ineffective.
Fahey, J., dissenting from Appeal No. 1, concurring in result of Appeal No. 2; Rivera, J. concurs with Fahey, J.’s writing in its entirety; Stein, J. concurs with Fahey, J. as to Appeal No. 1, but joins the majority in Appeal No. 2
Appeal No. 1 The dissent reasoned that “the majority creates a new rule that will result in an irrational parsing of the actions of defendants” and that “[t]he result will be sentences grossly disproportionate to the crimes of which defendants are convicted.” Since “defendant neither committed a separate act of force nor made a separate threat of force against the victim of the completed robbery to effectuate the taking of her purse,” there was no “separate and distinct” act and consecutive sentencing was required. The facts at trial established that the robbery was completed because the victim complied with defendant’s commands, commands he made to all four victims. There was no evidence that “defendant accomplished the taking of her purse through any additional act or threat of force directed specifically at her” and therefore “defendant accomplished both the completed robbery and the attempted robberies through an action directed toward the group as a whole.” The dissent would have held that the People did not meet their burden of establishing that the
187 crimes were committed through separate and distinct acts, and so it was error to run the sentences consecutively.
Appeal No. 2 The concurring Judges would have rejected the People’s arguments and conclusively held that the sentence imposed on a first-degree felony murder charge must run concurrently with the sentence imposed on the underlying felony. However, because at trial for the attempted murder, the People could have specified which of the attempted robberies served as the underlying felony for the attempted murder, the attempted murder sentence could have run consecutively. In other words, at trial the People could have specified that the attempted murder stemmed from the attempted robbery in count five only, so the other attempted robbery counts could have been sentenced consecutively to those sentences. Defense counsel’s advice that consecutive sentencing was a possibility, therefore, was not erroneous so defendant did not receive ineffective assistance of counsel and his Alford plea was valid.
People v Pena, 28 NY3d 727 (2017) Abdus-Salaam, J. Defendant was an off-duty NYPD officer who brutally raped a 25-year-old elementary school teacher in Manhattan in broad daylight while she was on her way to her first class on the first day of the school year, threatening her with his police-issued gun and dragging her into an apartment courtyard. He was convicted by a jury of three counts of predatory sexual assault and three counts of criminal sex act and sentenced to three consecutive 25-to-life terms. He appealed his aggregate sentence, arguing that it was cruel and unusual under the Eighth Amendment and the NY State Constitution. The Court found that both claims were unpreserved, because although defendant objected generally to the length of the sentence as draconian, he never alerted the sentencing court to his constitutional argument.
People v Brahney, 2017 NY Slip Op 02465 (2017) Stein, J. The Court considered whether consecutive sentences are authorized under Penal Law § 70.25(2) for defendant’s burglary and intentional murder convictions. It is the people’s burden to establish the legality of consecutive sentences, (People v Rosas, 8 NY3d 493, 496 [2007]), and if the people fail, the sentences run concurrently. (People v Underwood, 52 NY2d 882, 883 [1981]). Consecutive sentences may be imposed when either elements of the crimes do not overlap or if the facts demonstrate that defendant’s acts underlying the crimes are separate and distinct (People v Ramirez, 89 NY2d 444, 451 [1996]), even if the separate and distinct acts are part of a single transaction (People v Couser, 28 NY3d at 376). In a single transaction, the Court does not look at whether the
188 criminal intent was the same, but rather whether the separate acts have been committed with the requisite criminal intent (People v McKnight, 16 NY3d 43, 49 [2010]).
Here, defendant entered the victim’s home and inflicted injuries on her while she was upstairs, then dragged her downstairs to the living room where he inflicted mortal wounds. During the nonjury trial, defendant stipulated in writing that he caused the victim’s death by stabbing the victim, but advanced a defense of extreme emotional disturbance. Defendant was found guilty and was resentenced to 54 for years to life on intentional murder and two counts of first degree burglary. The Court stated that second degree murder (Penal Law § 125.25[1]) and first degree burglary (Penal Law § 140.30[2], [3]) do not overlap in the actus reus element, as burglary’s actus reus is predicated upon the use or threatened use of a dangerous instrument. However, the Court agreed with the People that “defendant used a dangerous instrument to cause physical injury to the victim upstairs, and then ‘dragged her down the stairs and murdered her in a separate and distinct act.’” (People v Brahney, WL 1166934, *3 [2017]; see People v Brown, 80 NY2d 361, 365[1992]).
B. Restitution
People v Connolly, 27 NY3d 355 (2016) Stein, J. The defendant was given a second restitution hearing, because defendant appealed the first restitution order and People conceded that County Court had erred by delegating its authority to conduct the restitution hearing to a JHO, and consented to a remittal to County Court for a new hearing. The issue on appeal was whether the procedures employed at the second restitution hearing, in which exhibits and transcripts from the first hearing were admitted, and no further testimony was taken, violated Penal Law 60.27 (2) and CPL 400.30.
The Court held that the procedures were sufficient because, at the first hearing, defendant was given the opportunity to cross-examine the People’s witness and put his own witness on the stand, and at the second hearing, County Court offered defendant the opportunity to call witnesses or submit evidence. The Court was unpersuaded by defendant’s argument that the trial court shifted the burden of proof to defendant, holding that the People met their burden by submitting the transcript of the prior hearing and by resubmitting the exhibits proffered at that hearing. Inasmuch as County Court alone determined the proper amount of restitution based upon relevant evidence not legally privileged, after affording defendant a reasonable opportunity to contest the People’s evidence and submit his own proof, the procedures were legally sufficient.
C. SORA
People v Howard, 27 NY3d 337 (2016) DiFiore J. The issue on appeal was whether the Sexual Offender Registration Act (SORA) hearing court abused its discretion in adjudicating defendant a risk level three where
189 the qualifying crime under SOLA was a conviction for the unlawful imprisonment of a child which did not involve a sexual component. The Court held that the hearing court had not abused its discretion given that the risk assessment instrument (RAI) “provides for four automatic overrides” which result in a presumptive risk assessment of level three, and one of which is for the “infliction of serious physical injury or the causing of death.” While the hearing court may, in its discretion, depart from a presumptive level, departures are “the exception, not the rule.”
In defendant’s case, the RAI assessment warranted a level one classification. However, while the underlying crime was not sexual in nature, it involved “serious physical injury,” triggering an automatic override to a presumptive risk assessment level of three. The hearing court did not abuse its discretion when it chose not to depart from that presumptive level.
Rivera, J., dissenting The dissent would have held that County Court erred when it applied the clear and convincing evidence standard in determining whether a downward departure from the assigned level was warranted in defendant's case. The proper legal standard, and one consistent with SORA's legislative intent "to carefully guard a defendant's liberty interest," is the less onerous preponderance of the evidence standard (People v Gillotti, 23 NY3d 841 [2014]). The Court held in People v Gillotti, that a court may depart if it concludes “there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines,” and a defendant must establish by preponderance of the evidence the existence of such mitigating circumstances (23 NY3d at 861). The SORA court in defendant’s case required defendant to prove mitigating circumstances by the more onerous clear and convincing evidence standard. The dissent would therefore have remanded and remitted the case for the hearing court to consider, under the preponderance of the evidence standard, whether a departure was warranted.
People v Sincerbeaux, 27 NY3d 683 (2016) DiFiore, J. The question on appeal was whether the SORA court erred in assessing defendant points under risk factors 1, 5, and 9, and abused its discretion in adjudicating defendant a risk level three sex offender based on uncharged prior crimes and crimes not sexual in nature. The Court held that the SORA court had neither erred nor abused its discretion since whether to depart from a presumptive risk level is based on an assessment of the totality of the circumstances.
Sworn statements constitute reliable hearsay evidence admissible in SORA proceedings to determine defendant's risk level, and even unsworn statements of the victim are admissible if there is a requisite indicium of reliability. The victim in this case maintained that defendant first started forcing her to have sexual intercourse with him when she was 13 years old, and the aggravating factors included defendant's admission that his prior conviction under Penal Law § 260.10 was based on excessive corporal punishment of his
190 son. Taking this evidence together, the SORA court did not abuse its discretion when it declined to downwardly depart from the presumptive risk level three. Defendant's focus in isolation on his nonsexual prior conviction for endangering the welfare of a child as a mitigating factor ignores that both the violent nature of that prior offense and the gravity of the current incest offense are both probative of defendant’s risk of re-offense – the purpose of the risk level assessment.
Rivera, J., dissenting; Pigott J., joining The dissent would have held that the record cannot be read to establish that County Court considered the Guidelines' instruction concerning factor 9 and defendant's argument that his offense was nonsexual in nature. County Court abused its discretion when it denied defendant’s request, at the SORA hearing, that his risk assessment reflect the nonsexual nature of his prior offense, which he correctly identified as a permissible ground for departure under the SORA Risk Assessment Guidelines and Commentary. The dissent would reverse and remand for the court's assessment of defendant's risk level considering the Guidelines and the facts of his case, and, if necessary, for a determination on the People's request for an upward departure.
191 XI. INEFFECTIVE ASSISTANCE OF COUNSEL
People v Wright, 27 NY3d 516 (2016) DiFiore, J. The Court was asked to determine whether the trial court abused its discretion when it denied a hearing on defendant’s CPL 440.10 motion. Defendant alleged that one of his trial attorneys was conflicted, and thus ineffective, because he was also representing the District Attorney in an election-law matter. Defendant maintained that evidence of the alleged conflict was newly discovered, that his conviction was obtained in violation of his right to counsel, and that it was based on misrepresentation or fraud on the part of the prosecutor. He further asserted that his attorney had provided ineffective assistance of counsel.
The court below was within its discretion to summarily deny the motion because defendant's papers failed to substantiate the allegations that there was an actual conflict of interest. There were no sworn allegations that substantiated or tended to substantiate the essential facts pursuant to CPL 440.30(4)(b).
People v Carver, 27 NY3d 418 (2016) Garcia, J. The Court considered whether counsel was ineffective for failing to make a suppression motion to challenge the legality of a traffic stop. Defendant was in the front passenger seat of a vehicle when it was stopped by a police officer. When defendant attempted to flee the car, defendant was arrested and, during a subsequent inventory search, a number of items belonging to recent burglary victims was found in the car. Defendant challenged his conviction, contending that a series of alleged errors—from pretrial proceedings through sentencing—deprived him of effective assistance of counsel.
The Court held that defendant received effective assistance of counsel, reaffirming that it is a rare case to deem counsel ineffective for failure to pursue a suppression motion based on a trial record alone (see People v Rivera, 71 NY2d 705, 709 [1988]). The Appellate Division correctly noted that trial counsel may have strategic reasons for not seeking suppression (see People v Carver¸ 124 AD3d 1276, 1278-1279 [4th Dept 2015]), and the Court will not second-guess these decisions with the clarity of hindsight. The Court was unpersuaded by defendant's attempt to buttress his claim by labeling each such decision "ineffective." Viewed in totality and as of the time of the representation, counsel provided meaningful representation (People v Baldi, 54 NY2d 137, 147 [1981]).
People v Clark, 28 NY3d 556 (2016) Rivera, J.
192 Defendant appealed his conviction for murder in the second degree and assault in the second degree, arguing that his lawyer had been ineffective for failing to advance a self- defense theory, even though defendant rejected the defense outright, favoring a defense of misidentification instead. The Court concluded that defendant's trial attorney was not ineffective for presenting only a misidentification theory because advancing both theories together would have been inconsistent, and the record did not indicate that any one theory of defense was vastly superior to the other. The Court further reasoned that defendant's wish to advance a misidentification theory was not so self-destructive that it undermined counsel's ability to provide meaningful representation.
People v Bank, 28 NY3d 131 (2016) Pigott, J. The Court rejected defendant’s ineffective assistance of counsel claim. In 2007 defendant killed two and seriously injured a third while driving the wrong way on an interstate in Monroe County while high on cocaine. He was indicted on several different charges and his trial counsel incorrectly informed him that if convicted, his sentences on each charge would run consecutively. Defendant was told that he faced 11/5-34 years upon conviction after trial, when he actually only faced 5-15 years. When defendant told his trial counsel that he would accept a plea for 4-12 years, trial counsel told him it would be a waste of time to even discuss that number with the prosecution because it was so much lower than the sentence he wrongly believed defendant was eligible for. Defendant went to trial and raised the affirmative defense of not guilty by reason of mental disease or defect. To prove this defense by a preponderance of the evidence, he called a clinical pharmacist to testify as to how a drug he had just been prescribed could have interacted with his other prescriptions and/or his bipolar disorder to generate a manic state in which he could not understand the consequences of his actions. Defendant was found guilty and received the maximum sentence of 5-15 years. After trial he filed a CPL 440 motion, claiming he was denied effective assistance of counsel due to this misunderstanding that deprived him of the possibility of receiving and accepting a plea to a lesser sentence. Additionally, on direct appeal he argued trial counsel was ineffective for relying on the expert testimony of a clinical pharmacist, rather than a forensic psychiatrist.
It is well settled that a defendant is entitled to the effective assistance of competent counsel at the plea negotiations stage. In New York, the standard for an ineffective assistance of counsel claim is whether defendant was afforded “meaningful representation” and, while significant, the prejudice component of an ineffective assistance claim is not necessarily indispensable. Although trial counsel’s advice was incorrect, the prosecutor made clear that he had zero intention of offering defendant a reduced plea and there was no proof the court would have extended an offer to a reduced sentence. Furthermore, trial counsel and defendant, who was a pharmacist himself, pursued a reasonable trial strategy by attempting to demonstrate the effect of defendant’s medications on his mental health.
193
People v Flowers, 28 NY3d 536 (2016) Garcia, J. Following a successful appeal, defendant was resentenced to the same sentence that was originally imposed. The Court rejected defendant's argument that his attorney was ineffective for failing to object at resentencing. The Court noted that the presumption of vindictiveness is inapplicable where the same term of imprisonment is imposed upon resentencing, and that the record was devoid of any retaliatory or improper conduct by the resentencing court.
People v Parson, 27 NY3d 1107 (2016) Memorandum The Court concluded counsel was not ineffective where the hearing court denied a motion to suppress a loaded firearm seized in a traffic stop search. Where there is a voluntary guilty plea, defendant "'must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial,' or that the outcome of the proceedings would have been different" (People v Hernandez, 22 NY3d 972, 975 [2013], quoting Hill v Lockhart, 474 US 52, 59 [1985]). While it was evident in this case that the suppression of the evidence would have resulted in dismissal, the attorney must have deprived defendant of "meaningful representation" based on the totality of the representation, (People v Baldi, 54 NY2d 137, 147 [1981]), without second-guessing the counsel's efforts (People v Benevento, 91 NY2d 708, 712 [1998]). The record showed that at the suppression hearing, counsel conducted competent cross- examination of the witness and presented clear and logical arguments for the suppression of the gun.
People v Henderson, 27 NY3d 509 (2016) Pigott, J. On this appeal by the People, the Court considered whether the Appellate Division was correct to conclude that a failure to provide certain information to an expert witness constituted ineffective assistance of counsel. Defendant was a fifteen-year-old who was convicted of attempted murder and first-degree assault for stabbing a 12-year old. As part of his defense at trial, defendant put on an expert psychologist to testify that defendant suffered from schizophreniform disorder, and cross-examination of the witness revealed that defense counsel did not provide all of the relevant information about the case to the witness. The jury convicted defendant on all counts, and defendant then appealed, arguing that his counsel was ineffective for failing to provide pertinent information to the expert witness. The Appellate Division agreed with defendant and reversed the conviction.
The Court reversed and remitted the case to the Appellate Division, holding that defense counsel is not ineffective for failing to provide an expert witness with every piece of information that conceivably aids the expert in reaching a conclusion. This is true, even where the expert admits that such information would have been useful and important and
194 the prosecutor highlights that admission. Overall, defense counsel mounted a cogent, albeit unsuccessful, multi-pronged defense and provided the expert with a substantial amount of information and an accurate description of the victim’s wound. The defense strategy was not inconsistent with what a reasonably competent attorney would do under the circumstances (see People v Baldi, 54 NY2d 137, 147 [1981]).
195 XII. OTHER CONSTITUTIONAL ISSUES
People v Aviles, 28 NY3d 497 (2016) Garcia, J. The Court was asked to determine whether an NYPD policy violated a defendant’s equal protection or due process rights under both the federal and state constitutions. The policy allowed NYPD to administer both breathalyzer and physical coordination tests to English-speaking DWI suspects, while offering only the breathalyzer test to non-English- speaking suspects such as defendant.
The New York Constitution provides for equal protection safeguards that are equivalent to those provided by US Const. amend. XIV, § 1. NY Const. art. I, § 11. Alleged equal protection violations are primarily evaluated using either a "strict scrutiny" or a "rational basis" standard of review.
Article 6 the New York Constitution provides for due process protections that are similar to the protections provided by the Due Process Clause of the Fifth Amendment of the US Constitution. Due process is a flexible concept that calls for such procedural protections as the particular situation demands. Determining whether additional process is due in any particular proceeding requires balancing the interests of the State against the individual interest sought to be protected.
The Court held that NYPD's policy of not administering coordination tests when a language barrier prevented the administering officer from communicating test instructions to a non-English speaking suspect did not violate defendant's equal protection rights, as non- English speakers were not a suspect class and the policy was rationally related to the legitimate governmental purposes of ensuring the reliability of coordination tests and avoiding the burdens of employing translation services or multilingual officers. In so holding, the Court accepted NYPD’s reasons for withholding the test, i.e. that a language barrier prevents the administering officer from communicating the test instructions to a non- English speaking suspect and undermines the effectiveness of the test. The Court further held that the policy did not violate defendant's due process rights because he had no constitutional right to an interpreter during the pre-arrest investigation through the administration of coordination tests, and there were substantial state interests supporting the department's policy.
Rivera, J., dissenting; Fahey, J., joining The dissent concluded that the NYPD policy of offering the coordination test to everyone except those persons who are not proficient in English places certain individuals in a better position than others to defend against criminal charges. To support this conclusion, the dissent pointed to the NYPD’s language access protocols and resources, which are made available to address the needs of New York City's linguistically diverse communities. Given New York City's commitment to access to justice regardless of language
196 status, the NYPD's refusal to administer a coordination test equally to all violates defendant's federal and state equal protection rights.
People v Then, 28 NY3d 1170 (2017) Memorandum Defendant appealed arguing that he was denied a fair trial when he was compelled to wear orange correctional pants for half a day of jury selection. The Court held that, because there was “no evidence on this record that the correctional pants were visible to the jury,” and because the clothing that was visible to the jury – a black sweater – was “clearly not identifiable as correctional garb,” defendant’s right to a fair trial had not been denied. The Court expressly noted that, “[b]ecause we find no error here, we do not address whether harmless error analysis applies when a defendant is compelled to stand trial before a jury dressed in identifiable prison clothes.”
People v Stephens, 28 NY3d 307 (2016) Garcia, J. The Court upheld the constitutionality of Syracuse Noise Control Ordinance § 40-16 (b), which prohibits the creation of "unnecessary noise" emanating beyond 50 feet from a motor vehicle operated on a public highway. The Court concluded that § 40-16 (b) does not "offend the constitutional void-for-vagueness doctrine of due process" as did the Ordinance in People v New York Trap Rock Corp. (57 NY2d 371 [1982]). Unlike the Ordinance in Trap Rock, the Syracuse Noise Ordinance defines "unnecessary noise" based on an objective standard -- "a reasonable person of normal sensibilities" -- which prevents arbitrary and discriminatory enforcement, and is tailored to a specific context. The Court explained that the Syracuse Noise Ordinance is sufficiently definite to put a person on notice that playing music which can be heard over 50 feet from such person's car on a public road, in a manner that would annoy or disturb a reasonable person of normal sensibilities, is forbidden conduct. The objective standard affords police sufficiently clear guidance for enforcement.
Matter of 381 Search Warrants Directed to Facebook, Inc., 2017 NY Slip Op 02586 (2017) Stein, J. In 2013 the New York County District Attorney's Office obtained a search warrant under the Stored Communications Act ("SCA") to compel Facebook to deliver a variety of information contained in the accounts of 381 Facebook users suspected of committing disability fraud. Facebook moved to quash the warrants under the Fourth Amendment. The trial court denied the motion and Facebook complied with the warrants while continuing to pursue the challenge on appeal. This appeal was dismissed by the Appellate Division, which held that Facebook did not have a right to challenge the warrants and that the trial court's ruling was nonappealable.
197 The majority affirmed, holding that an order resolving a motion to quash SCA warrants is not appealable. The majority found that the SCA warrants, despite sharing some characteristics with subpoenas, were in fact warrants, as evidenced by the plain language of the SCA itself, and as such were not appealable under New York State law.
Rivera, J., concurring Judge Rivera concurred with the majority that the order denying Facebook’s motion to quash the warrant was not appealable, but on a narrower basis. Since Facebook did not assert the two grounds set forth in the SCA to challenge a warrant, that procuring the information sought by the warrant was unusually voluminous or would cause an undue burden on the provider, and instead argued the request violated its users’ rights, the Appellate Division should be affirmed. Unlike the majority, however, Judge Rivera agreed with the dissent that the SCA gives service providers standing to move to quash or modify warrants on the aforementioned grounds and that a denial of such a motion would be appealable.
Wilson, J., dissenting Judge Wilson argued that the denial of a motion to quash is appealable and that Facebook had standing to move to quash. He interpreted “undue burden” to include a violation of a service provider’s users’ privacy rights, as complying with a search warrant could tarnish the provider’s brand or alienate users. He also argued that an SCA warrant is more akin to a subpoena, and that federal law and New York common law would both allow Facebook to appeal the denial of its motion to quash even apart from the SCA.
198 DRAM SHOP AND HANDLING ALCOHOL RELATED ARRESTS
Submitted By: PETER GERSTENZANG, ESQ. Gerstenzang, Sills, Davis, Cohn & Gerstenzang Albany, NY
199 200 DRAM SHOP AND HANDLING ALCOHOL RELATED ARRESTS
Sponsored by THE NEW YORK STATE BAR ASSOCIATION
CRIMINAL JUSTICE SECTION SPRING MEETING MAY 6, 2017 –- SENECA FALLS, NEW YORK
Materials Prepared By PETER GERSTENZANG, ESQ. GERSTENZANG, SILLS, DAVIS, COHN & GERSTENZANG 210 Great Oaks Boulevard Albany, New York 12203 Tel: (518) 456-6456
Copyright © 2017
Peter Gerstenzang, Esq. All Rights Reserved
201 202 Table of Contents Page DRAM SHOP LIABILITY I. INTRODUCTION...... 1 II. CIVIL LIABILITY...... 1 III. DAMAGES...... 2 IV. MENTAL ANGUISH AS RECOVERABLE DAMAGES...... 3 V. PROBLEM DEFINED...... 4 VI. DRAM SHOP V. ORDINARY NEGLIGENCE...... 6 VII. THE DRAM SHOP ACT...... 8 VIII. WHO CAN SUE?...... 10 (A) FAMILY AND FRIENDS...... 12 IX. WHO CAN BE SUED?...... 15 X. COMMERCIAL SALE REQUIRED FOR DRAM SHOP LIABILITY.. . . 17 XI. LIABILITY FOR SALE TO SOBER MINOR...... 20 XII. INDIRECT SALE DOES NOT ESTABLISH LIABILITY...... 23 XIII. THE PROOF IN A DRAM SHOP ACTION...... 26 (1) Unlawful Sale...... 26 (2) Intoxicating Beverage...... 27 (3) Consumption of Beverage...... 27 (4) Intoxication...... 27 (5) Intoxication Must Be Visible...... 28 (6) Injury to Third Party...... 34 (7) Injury Caused By Intoxication...... 34 XIV. STATUTE OF LIMITATIONS...... 35 XV. CONTRIBUTION...... 36 XVI. THE JUDGE'S CHARGE TO THE JURY...... 39 XVII. SOCIAL HOST'S LIABILITY...... 41 XVIII. UNLAWFULLY FURNISHING ALCOHOLIC BEVERAGES DEFINED. . . 42
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203 204 DRAM SHOP LIABILITY
I. INTRODUCTION
The purpose of this article is to explain the liability of persons selling alcoholic beverages to the public. In New York
State, there are basically three ways in which a person can be held liable for injuries arising out of the sale of alcoholic beverages. The most well known is § 11-101 of the General
Obligations Law or, as it is better known, the Dram Shop Act. In addition to Dram Shop, there is ordinary negligence. The fact that the Dram Shop Act exists does not prevent anyone from suing under a valid theory of "common law" negligence. Finally, there is criminal liability under both the Penal Law and Alcoholic
Beverage Control Law. This article will explore these types of liability as well as the parties, the nature of the actions, and the potential damages.
II. CIVIL LIABILITY
Insofar as civil liability is concerned, there are two elements which are a part of every civil lawsuit. These are liability and damages. Liability is the theory of negligence or what you did, or failed to do, that gives rise to the lawsuit.
Damages are the dollar measure of the injury which results from the negligence or wrong doing. If a person is walking down the street and is struck by lightning, it is normally considered to be an act of God and no one is liable. The damages can be very
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205 great, but there is no one to sue. The concept of liability is that of identifying the source of the injury and establishing whether or not there is a relationship between the source of the injury and the person suffering an injury. If someone is hurt because you did something, or failed to do something you were required to do, then there is a basis for liability.
III. DAMAGES
Damages are a much simpler concept in that they constitute the money value placed upon the injury and any consequences that flow from it. Damages are not limited to the pain and suffering of the person injured; they may also include loss of income, compensation for permanent injury, medical expenses, etc.
Furthermore, damages are not limited to just the person injured; they may also include loss of support for members of their family as well as loss of sexual and emotional comfort for their spouse which the law refers to as "consortium".
While there is no question that a spouse and children can recover for the economic consequences of the death of the other parent; the New York State Court of Appeals has held that the
Dram Shop Act would not allow a husband and children to recover damages resulting from loss of consortium of the wife. Valicenti v. Valetize, 68 N.Y.2d 826, 507 N.Y.S.2d 616 (1986); Besner v.
Bucci, 135 A.D.2d 1081, 523 N.Y.S.2d 300 (4th Dep't 1987).
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206 IV. MENTAL ANGUISH AS RECOVERABLE DAMAGES
Generally, damages flow from the occurrence of a physical injury. Traditionally, mental anguish without physical injury would not constitute recoverable damages. Bovsun v. Sanperi, 61
N.Y.2d 219, 473 N.Y.S.2d 357 (1984); Trombetta v. Conkling, 187
A.D.2d 213, 593 N.Y.S.2d 670 (4th Dep't 1993). Because of the wording of the Dram Shop Act, the Supreme Court of Onondaga
County held that such a recovery was possible even though the person bringing the lawsuit did not suffer any physical injury.
In Winje v. Cavalry Veterans of Syracuse, Inc., 130 Misc. 2d 580,
497 N.Y.S.2d 291 (Onondaga Co. Sup. Ct. 1985), Judge Robert Lynch denied a liquor dealer's motion to dismiss where the plaintiff had suffered no physical injury whatsoever.
Here, Michelle Winje was driving her car on an unlighted road which wound around a development and a golf course.
Suddenly, she saw an object lying in the road directly in front of her. She swerved to miss it, but struck the object which she thought was a black plastic bag of garbage. Upon getting out of her car, she observed the mutilated and headless body of a man lying on the highway. The dead man was later identified and found to have a tissue alcohol content of .03%. The man had been drinking at the Cavalry Veterans and had left there to walk home.
Ms. Winje complained that she suffered "post-traumatic stress disorder" because of the accident. This disorder manifested
3
207 itself in nightmares, weeping spells, depression, insomnia, anxiety, distress, fear of driving and of the area of the accident.
The lawyer for the liquor dealer argued that under ordinary principles of negligence, these facts did not constitute a basis for a cause of action for mental anguish in the State of New
York. In denying the lawyer's motion to dismiss, the Court stated that the Dram Shop Act provided for injuries to a "person, property, means of support, or otherwise". The words "or otherwise" authorized damages for mental anguish that would not, otherwise, be recoverable in an ordinary negligence action.
The Calvary Veterans appealed Judge Lynch's decision to the
Appellate Division of the Fourth Department. The Appellate
Division upheld Judge Lynch holding that damages for emotional and psychological trauma directly resulting from a violation of the Dram Shop Act were recoverable. Winje v. Cavalry Veterans of
Syracuse, Inc., 124 A.D.2d 1027, 508 N.Y.S.2d 768 (4th Dep't
1986).
V. PROBLEM DEFINED
Since people started drinking alcoholic beverages, injury and damages have occurred as a result of the abuse of this substance. Throughout history, various attempts have been made to prevent the occurrence of these injuries. None of these have been particularly successful. Temperance has not stopped the
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208 consumption of alcoholic beverages; nor has legislation banning the sale of alcoholic beverages. Prohibition produced bathtub gin; it did nothing for sobriety.
Since the attempts to eliminate the sale and consumption of alcohol have met with little or no success, society now tries to prevent or control the injuries arising out of the consumption of alcoholic beverages. It also tries to find ways in which the damages resulting from that consumption can be paid for.
Generally, prevention has taken the form of regulation of the sale of alcoholic beverages and the control of the operation of motor vehicles.
A major cause of physical injury arising out of the consumption of alcoholic beverages has been primarily automobile accidents occurring because of people driving while intoxicated.
The STOP-DWI campaigns have been among the attempts to control the occurrence of DWI accidents. Stiffer legislation combined with educational campaigns have resulted in a decrease in instances of driving while intoxicated. The increased awareness of law enforcement has resulted in a far larger number of arrests than in the past.
The chief means of paying for the injuries which do occur are automobile insurance policies. Since New York State only requires a minimum of a $25,000/$50,000 liability policy for injuries arising out of the operation of a motor vehicle, and
5
209 $50,000 in the case of wrongful death, the Dram Shop Law represents an attractive source of funds to compensate for the injuries sustained in a DWI automobile accident.
VI. DRAM SHOP V. ORDINARY NEGLIGENCE
The Dram Shop Law imposes a far stricter standard of liability than is normally found in ordinary negligence cases.
The Dram Shop Law is narrowly drawn and specifies the parties who may sue and be sued as well as the nature of the damages that can be collected. Nothing in the law makes the Dram Shop Act the exclusive method for obtaining money for injuries suffered as a result of the actions of an intoxicated person. A liquor dealer can be sued under a theory of ordinary negligence. For example, if an intoxicated customer gets up from his bar stool to go to the bathroom and trips over a loose piece of rug and breaks a leg, he has a cause of action against the bar and can collect under principles governing an ordinary lawsuit based on negligence.
If he tried to sue the liquor dealer under the Dram Shop
Act, he would not be allowed to collect because the Dram Shop Act is, generally, limited to persons who get hurt as a result of things the intoxicated customer does. For example, if that same intoxicated customer left the bar and drove his car into a tree, he could not use the Dram Shop Act to sue the liquor dealer for his injuries. His wife and children, however, could sue the
6
210 liquor dealer for the loss of the support of the intoxicated customer.
The intoxicated customer would not be prevented from suing the liquor dealer in an ordinary negligence action, but he would have a hard time collecting. The reason for this is that most courts would hold that the "proximate cause" of his injury was his intoxicated operation of a car; and not the action of the liquor dealer in serving him drinks.
Ordinary negligence requires that the person bringing the lawsuit show that the person he is suing is responsible for his injury. To be responsible, you have to have done something that you weren't supposed to do; or fail to do something that you should have done. There has to be some relationship between the person who was injured and the person being sued. In legal terms, the person being sued has to have done something, or failed to do something; and that something has to be the
"proximate cause" of the plaintiff's injury.
Ordinary negligence does not usually hold liquor dealers responsible for things that happen to their customers after they leave the bar. Ordinary negligence would, also, not hold the liquor dealer liable for things his customer does after he leaves the bar. The reason for this is that whatever the liquor dealer did or failed to do while the customer was in the bar will not usually be considered the "proximate cause" of whatever happened after the customer left the premises.
7
211 While the law will require the liquor dealer to have his carpet tacked down so that people don't trip on their way to the bathroom; the law does not require a liquor dealer to prevent his customers from leaving so that they do not hurt themselves. Once the customer leaves, the principles of ordinary negligence will not hold him responsible for injuries that occur outside of the premises under his supervision and control.
The Dram Shop Act differs from ordinary negligence in that it creates a relationship between liquor dealers and other people that the principles of ordinary negligence would not recognize.
The relationship is not based upon "proximate cause." In fact, the relationship would not be recognized under the normal rules governing a negligence action. The relationship is created purely by § 11-101 of the General Obligations Law which is commonly referred to as the Dram Shop Act.
VII. THE DRAM SHOP ACT
The Dram Shop Act creates a relationship between the liquor dealer and people who have absolutely no connection with his business. It makes the liquor dealer responsible for injuries occurring to third persons arising out of the actions of a customer who is visibly intoxicated, and who leaves the bar and does something that injures a third person.
The classic example is the intoxicated customer who leaves the bar, and drives his car into a third person. If the accident occurs as a result of the negligent driving of the intoxicated
8
212 person and this driving is caused by his intoxication, both the intoxicated customer and the liquor dealer who served him the alcoholic beverages can be held liable for the injuries caused to someone else.
It is this open-ended liability which makes owning a bar a most risky business. The actions of a total stranger can cause liquor dealers to be financially responsible for death and injury occurring miles away from their place of business. In order to protect themselves, liquor dealers need to understand the law which places them in this position.
The Dram Shop Act itself is contained in § 11-101 of the
General Obligations Law. It states:
§ 11-101. Compensation for injury caused by the illegal sale of intoxicating liquor
1. Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages.
2. In case of the death of either party, the action or right of action given by this section shall survive to or against his or her executor or administrator, and the amount so recovered by either a husband, wife or child shall be his or her sole and separate property.
9
213 3. Such action may be brought in any court of competent jurisdiction.
4. In any case where parents shall be entitled to such damages, either the father or mother may sue alone therefor, but recovery by one of such parties shall be a bar to suit brought by the other.
The best way to understand this law is to break it down into its parts. The first thing the law does is to set forth the people who can bring a Dram Shop lawsuit.
VIII. WHO CAN SUE?
The law provides for a suit to be brought by any person injured in "person, property, means of support, or otherwise by any intoxicated person." What this means is that if a person drinks in a tavern, becomes intoxicated, and then goes out and causes an automobile accident which injures another person, the tavern owner can be held liable to that other person.
Interestingly enough, the person who became drunk cannot sue the tavern owner for injuries arising out of his own intoxication.
If the customer is killed in the accident, his estate is also prevented from bringing an action under the Dram Shop Law.
In Sheehy v. Big Flats Community Day, Inc., 137 A.D.2d 160,
528 N.Y.S.2d 213 (3d Dep't 1988), Margaret Sheehy was struck by a car as she crossed the highway after having been served beer at a tent operated by the American Legion, one of the defendants in this case. The allegation was that she was intoxicated, and under age at the time she was served. Her attorney argued that
10
214 the American Legion was liable because they had violated Penal
Law § 260.20(4) which is a criminal statute prohibiting the gift or sale of alcohol to a minor. The lower court had dismissed the complaint; and on appeal, the Appellate Division agreed with the dismissal saying:
While it could be argued that Penal Law § 260.20(4) gives the intoxicated minor a cause of action for injuries he himself may have sustained (which General Obligations Law § 11-100[1] does not do), we have found no legislative intent to support this argument. Further, it is a well-established principle that the Dram Shop Act does not create a cause of action in favor of one suffering injury by reason of his own intoxication.
Id. at 164, 528 N.Y.S.2d at 215-16 (citation omitted)(emphasis added). See also Armstrong v. Petsche, 172 A.D.2d 1079, 569
N.Y.S.2d 257 (4th Dep't 1991).
On appeal from the Appellate Division, the Court of Appeals agreed with both lower courts:
Penal Law § 260.20(4), which makes it a crime for anyone but a parent or guardian to furnish alcoholic beverages to a person who is under the legal purchase age, does not give rise to an implied private right of action in favor of such a person who has been injured as a result of his or her own consumption of alcohol. Accordingly, since recovery under traditional common-law tort principles is also precluded on this record, this minor plaintiff's complaint against the party that furnished her with alcohol was properly dismissed.
Sheehy v. Big Flats Community Day, Inc., 73 N.Y.2d 629, 631-32,
543 N.Y.S.2d 18, 19 (1989). See also Santoro v. DiMarco, 65
11
215 Misc.2d 817, 320 N.Y.S.2d 132 (1971); rev'd, 80 Misc.2d 296, 363
N.Y.S.2d 694 (1972); Marsico v. Southland Corporation, 148 A.D.2d
503, 539 N.Y.S.2d 378 (2d Dep't 1989).
(A) FAMILY AND FRIENDS
Although neither the customer nor his estate can sue a tavern owner; the customer's wife, child or parent who is injured in "means of support" by the death of the customer as a result of his intoxication does have a right to sue under the Dram Shop
Law. A parent does not have to show a legal duty on the part of their child to support them in order to bring a lawsuit under this law.
In Raynor v. C.G.C. Grocery Corp., 159 A.D.2d 463, 552
N.Y.S.2d 316 (2d Dep't 1990), the Court held that a mother, whose
17 year old son was killed while he was driving in an intoxicated state, would not have her lawsuit dismissed where she had alleged that her son had been contributing $50.00 a week to her support for approximately a year and a half prior to his death and was expected to do so until he entered college. The fact that the mother did not establish a legal duty on the part of her son to provide the support did not mean that she could not pursue this action.
Insofar as pain and suffering is concerned, family members cannot recover any damages for the intoxicated customer's pain and suffering because that impacts on the customer and not his
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216 family. Lyons v. Tiedemann, 135 A.D.2d 509, 522 N.Y.S.2d 159 (2d
Dep't 1987). Parents can, however, recover damages for loss of future support and funeral expenses, but may not recover damages for loss of services, affection, and companionship. McCauley v.
Carmel Lanes, Inc., 178 A.D.2d 835, 577 N.Y.S.2d 546 (3d Dep't
1991).
If the customer is drinking with a friend and the friend leaves with him and is injured in the automobile accident, the friend can also sue the tavern even though the friend was drinking alcoholic beverages and was as intoxicated as the customer. Mitchell v. Shoals, Inc., 19 N.Y.2d 338, 280 N.Y.S.2d
113 (1967); Russell v. Olkowski, 144 A.D.2d 837, 535 N.Y.S.2d 187
(3d Dep't 1988).
If the friend, however, buys or encourages the customer to drink alcoholic beverages, he will generally be prevented from recovering from the tavern owner. In Powers v. Niagara Mohawk
Power Corporation, Glenville Beer Distributors, Ltd. et al., 129
A.D.2d 37, 516 N.Y.S.2d 811 (3d Dep't 1987), the Court held that injured passengers in a van could not recover from a liquor dealer under the Dram Shop Act where they had contributed to the funds used to purchase the beer that was the subject of the action. See also, Vandenburg v. Brosnan, 129 A.D.2d 793, 514
N.Y.S.2d 784 (2d Dep't 1987); Prunty v. Keltie's Bum Steer, 163
A.D.2d 595, 559 N.Y.S.2d 354 (2d Dep't 1990) (plaintiff's action
13
217 against bar dismissed based upon admission that he had purchased alcohol at defendant's establishment for driver who had caused plaintiff's injury).
In Slocum v. D's & Jayes Valley Restaurant & Cafe, Inc., 149
Misc. 2d 120, 563 N.Y.S.2d 1022 (Dutchess Co. Sup. Ct. 1990), aff'd, 182 A.D.2d 981, 582 N.Y.S.2d 544 (3d Dep't 1992), the
Supreme Court, Dutchess County, dismissed the husband's action against a liquor dealer for injuries the husband suffered in an automobile accident arising out of his wife's intoxicated operation of their car. Here, the husband and wife had both been drinking in the defendant's bar. The drinks were purchased with joint marital funds. The attorney for the husband argued that a married couple should be treated as a single entity and the husband should not be prevented from suing the liquor dealer because the money for his wife's drinks had come from his pocket.
The Court specifically refused to carve out an exception to the general rule for married couples and dismissed the husband's action against the liquor dealer.
Whether a party procured alcoholic beverages for another must be decided without regard to a person's marital status. A party who does not procure alcoholic beverages for his spouse is protected by the Dram Shop Act; one who does is not.
Id. at 123, 563 N.Y.S.2d at 1023. See also Campbell v. Step/Lind
Restaurant Corporation, 143 A.D.2d 111, 531 N.Y.S.2d 576 (2d
Dep't 1988) (plaintiff not allowed to recover when the plaintiff
14
218 purchased alcoholic beverages for the person who caused his injury); Schrader v. Carney, 198 A.D.2d 779, 604 N.Y.S.2d 376
(4th Dep't 1993) (monetary contribution to purchase alcoholic beverages negates passenger's Dram Shop claim).
IX. WHO CAN BE SUED?
In addition to the owner of the bar, the obvious people who can be sued are the bartender, waitress and anyone else employed by the bar who has anything to do with serving the customer a drink.
Lawyers have also tried to sue the owner of the building housing the bar. In New York State, there are older cases which were handed down in the late 1800's which held that the owner of the building in which the bar was located could also be sued.
The present law in this area is unclear and there are cases which hold that the owner of the building cannot be liable under the
Dram Shop Law unless the owner was "involved in the operation of the bar (LeFever v. Stultz, New York County, reported in the New
York Law Journal, November 29, 1982.)
In addition to the conventional liquor dealer, caterers, package and grocery stores are equally liable. Volunteer fire companies, fraternal lodges, charitable and religious organizations share the same exposure as liquor dealers if they engage in the commercial sale of alcoholic beverages.
15
219 In Montgomery v. Orr, 130 Misc. 2d 807, 498 N.Y.S.2d 968
(Oneida Co. Sup. Ct. 1986), the Court held the Stanwix Veteran's and Men's Club liable in a Dram Shop action where injury resulted from the intoxicated operation of a motor vehicle by a minor who had consumed alcoholic beverages at the club. Here, the veterans had agreed to host a high school graduation party on their premises. Under the terms of the agreement, the club was to provide kegs of beer, glasses and tapping services, as well as assorted soft drinks and food. The beer was to be paid for by the number of kegs used, and the food was to be billed on a per plate basis. While the beer was dispensed on a self-serve basis, the club did connect the taps and provide the glasses. A representative of the club was allegedly present throughout the party.
In denying the club's motion to dismiss, the court held that a jury could conclude that the club did exercise sufficient control over the dispensing of the beer as to render it liable under the Dram Shop Act. The club's argument that they did not sell the beer directly to person's consuming it was held to be without merit. The court stated that it did not matter whether the sale of beer was by the keg or by the glass. Since the club was being paid for the beer consumed on their premises, the transfer was deemed a sale within the meaning of the statute.
The court distinguished this situation from that of a supplier who merely delivers intoxicants to another for dispensing.
16
220 In Quaranta v. Lessings, Inc., New York Law Journal, August
24, 1987, a husband brought an action to recover damages resulting from the death of his wife who had attended an office party sponsored and paid for by her employer. The party was catered by the defendant, Lessings, Inc. The husband sued both his wife's employer and the caterer. In dismissing the case against the employer, the court found him to be a social host and held that the Dram Shop was not applicable to him because none of the guests were charged an attendance fee, nor were they required to pay for any of the services rendered by the caterer.
The caterer, however, was held to have an exposure under the
Dram Shop Law because the caterer provided the liquor and the bartending staff to dispense beverages "in expectation and realization of pecuniary gain." Accordingly, the caterer's motion to have the case against him dismissed prior to trial was denied. It is clear that the law is not limited to retail liquor dealers. Exposure under the Dram Shop statute arises wherever an unlawful sale is made. Whether the sale occurs in a firehouse, church, fraternity house, or private residence is not relevant.
X. COMMERCIAL SALE REQUIRED FOR DRAM SHOP LIABILITY
While the location of the sale is not significant, the presence or absence of commercial activity determines whether or not liability exists. Although the section does not restrict itself to Dram Shops or commercial taverns, the Courts have
17
221 consistently limited the application of the Dram Shop Act to sales of alcohol for profit. As the Court of Appeals observed in
D'Amico v. Christie, 71 N.Y.2d 76, 524 N.Y.S.2d 1 (1987):
While not literally restricted to actual "dram shops" or commercial taverns, the Dram Shop Act has consistently been read by lower courts as applicable only to sales of alcohol for profit--that is, commercial sales.
Id. at 83, 524 N.Y.S.2d at 3 (citations omitted). In this case, the Court of Appeals was asked to hold a voluntary employees association liable for injuries derived from an accident involving the intoxicated operation by one of the employees who had attended the association's picnic. The food and beverage for the association's picnic had been purchased out of a fund made up of members' monthly dues of $1.00 as well as the proceeds from
$5.00 ticket sales. At the picnic, cans of beer were freely available and the defendant consumed six to eight cans and was subsequently involved in the accident.
In holding that the Association was not liable under the
Dram Shop Act, the Court noted that the Association did not engage in the commercial sale of alcohol as contemplated by the
Dram Shop Act.
The Association made no direct sales of alcohol, and had no recognizable expectation of pecuniary gain from its social affairs. The availability of beer to coemployees who had chipped in to buy their own food and beverages for the picnic cannot be considered a commercial sale of alcohol within the Dram Shop Act.
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222 There having been no commercial sale of alcohol, no claim is stated against the Association under the Dram Shop Act, and this claim against Schlegel obviously fails as well.
Id. at 84, 524 N.Y.S.2d at 4.
Using D'Amico v. Christie, supra, as a precedent, the
Appellate Division, Fourth Department held that a local union could not be held liable under the Dram Shop Law where the union had provided beer to its members at a sports night banquet at the union hall. Here, one of its members, Paul Dominick was involved in an accident in which the plaintiffs were injured and they brought an action against the union for providing beer to
Dominick at the banquet. The union asked the Court to dismiss the lawsuit, but the court denied the motion. The union appealed the trial court's decision to the Appellate Division which reversed the lower court on the ground that the union could not be considered to be engaging in commercial activity:
Like the defendant in D'Amico, the Local is not engaged in the sale of alcohol for profit and did not plan its "Sports Night" banquet in order to make a profit. The Local purchased the alcohol from membership dues and ticket sales. It did not make any "direct" sales of alcohol, and there is no evidence that the provision of alcohol resulted in a pecuniary gain. On the contrary, the balance sheet submitted by the Local in support of the motion establishes that the event resulted in a substantial deficit. Finally, beer was available on a self-service basis. "The availability of beer to [those] who had chipped in to buy their own food and beverages . . . cannot be
19
223 considered a commercial sale of alcohol within the Dram Shop Act" (D'Amico v. Christie, supra, at 84, 524 N.Y.S.2d 1, 518 N.E.2d 896).
Casselberry v. Dominick, et al., 143 A.D.2d 528, 529, 533
N.Y.S.2d 31, 32 (4th Dep't 1988).
Similarly, a lawsuit arising out of an automobile accident caused by an assistant manager of a bar was dismissed where the assistant manager admitted to consuming beers during the course of his work and after closing, but did not pay for any of those beers. In this case, the Court held that the bar's liability depended upon a commercial sale which the consumption of free beers by an employee did not establish. Custon v. Salty Dog, 170
A.D.2d 572, 566 N.Y.S.2d 348 (2d Dep't 1991).
XI. LIABILITY FOR SALE TO SOBER MINOR
Most Dram Shop lawsuits concern unlawful sales to people who are visibly intoxicated pursuant to § 65(2) of the Alcoholic
Beverage Control Law. The question arises as to the liquor dealer's liability for the sale of an alcoholic beverage to a sober minor in violation of § 65(l) where that minor consumes the beverage, leaves the premises, and subsequently becomes intoxicated. Is the liquor dealer liable for injuries sustained by a third-party which arise from the intoxication of a minor who was not visibly intoxicated when the liquor dealer made the unlawful sale?
20
224 If you read the statute as it is written, it would appear that a liquor dealer would be liable. In McNally v. Addis, 65
Misc. 2d 204, 317 N.Y.S.2d 157 (Westchester Co. Sup. Ct. 1970),
Judge Gagliardi confronted a situation in which a liquor dealer was being sued by the parent of a minor who was deemed sober when the illegal sale was made. After doing considerable research, the judge held that a parent could not recover for loss of services under these circumstances, but left the question open as to whether an unrelated third party could recover damages under these circumstances.
Neither the letter nor the spirit of the statute would be served were the Court to hold that a parent could recover for unlawful sales to his sober child and there should be no quandry on the facts here present. While there might be a question regarding the application of the Dram Shop Act as it concerns the remedy of an innocent third person (not in privity with the voluntarily intoxicated minor) vis-à-vis the vendor, that is not this case.
Id. at 222, 317 N.Y.S.2d at 176.
This issue of a liquor dealer's liability for a sale to a sober minor had, apparently, remained unanswered for approximately 16 years. In 1986, Judge Mercure of the
Schenectady County Supreme Court held that the Dram Shop Law was not applicable to a sale to a sober minor and dismissed both the
Dram Shop and common law negligence causes of action.
21
225 Here, a bunch of minors chipped in and purchased alcohol.
Eight hours later, and after having driven approximately 100 miles, the van they were in struck a telephone pole killing one of the passengers and injuring the others. The evidence indicated that the two minors who bought the beer were sober at the time of the purchase. In dismissing the resultant lawsuits brought by the parents, Judge Mercure held that a Dram Shop action required proof that the liquor dealer sold alcoholic beverages to a visibly intoxicated person. Powers v. Niagara
Mohawk Power Corporation, Glenville Beer Distributors, Ltd., et al., 132 Misc. 2d 123, 503 N.Y.S.2d 516 (Schenectady Co. Sup. Ct.
1986).
On appeal, the Appellate Division, Third Department held that Judge Mercure was wrong in requiring that the sale be made to a visibly intoxicated person. The Court held that the Dram
Shop statute applied to an unlawful sale and that unlawful sales included sober minors.
In our view, since "persons under the age of 19" (now 21) and "intoxicated persons" are separately classified (Alcoholic Beverage Control Law former § 65[1], [2]), an underage person need not be intoxicated at the time of the purchase for the sale to be unlawful under the Dram Shop Act.
Powers v. Niagara Mohawk Power Corp., 129 A.D.2d 37, 40, 516
N.Y.S.2d 811, 814 (3d Dep't 1987). In view of the fact that all of the kids chipped in for the beer, their individual suits were
22
226 dismissed, but the parents who had sued in their individual capacities were allowed to proceed against the defendants. (See also, Johnson v. Plotkin, 172 A.D.2d 88, 577 N.Y.S.2d 329 (3d
Dep't 1991). Although the underage driver's intoxication at the time of the sale is not relevant, intoxication at the time of the accident is a relevant factor because liability arises under the
Dram Shop Act only when the injuries are caused "by any intoxicated person, or by reason of the intoxication of any person". Id. at 91, 577 N.Y.S.2d at 331.
XII. INDIRECT SALE DOES NOT ESTABLISH LIABILITY
While a commercial sale to an underage customer is illegal, it cannot be the basis for a Dram Shop lawsuit if the injury upon which the lawsuit is based is caused by someone other than the customer. In Lee v. Holloway, 146 Misc. 2d 455, 550 N.Y.S.2d 977
(Wayne Co. Sup. Ct. 1989), an underage customer purchased beer from the C & W Mini Mart. The customer was a passenger in an automobile operated by another minor. The automobile was involved in an accident and the injuries that resulted led to a lawsuit against the C & W Mini Mart as well as others.
In dismissing the Dram Shop action against the Mini Mart, the Court found that the fact that the sale to the customer was illegal did not make the Mini Mart liable for the injuries arising out of the accident because the sale had been to a passenger and not the driver. The fact that the sale to the
23
227 passenger was illegal; and that the passenger had given the beer to the driver did not make the Mini Mart liable because the Dram
Shop Act did not include an indirect sale such as this one.
Although there was a commercial sale in this matter, the New York Courts have interpreted the statute to require a direct sale. Since the sale of the beer by the employee of Mini Mart was not a direct sale to the operator of the vehicle who caused the injuries, the Dram Shop Act does not apply.
Id. at 459, 550 N.Y.S.2d at 979; accord Stewart v. Taylor, 167
A.D.2d 846, 562 N.Y.S.2d 253 (4th Dep't 1990); Rann v. Hamilton,
194 A.D.2d 599, 599 N.Y.S.2d 51 (2d Dep't 1993).
A more common situation is where drinks are purchased by a person, in a bar, who is over the age of 21, and delivered to another person in the bar, who is a minor. In Bennigan's of New
York, Inc. v. New York State Liquor Authority, 151 A.D.2d 747,
542 N.Y.S.2d 771 (2d Dep't 1989), the Court annulled the determination of the State Liquor Authority which had held that
Bennigan's had violated the Alcoholic Beverage Control Law by serving a minor.
In this case, a minor was seated at a table 15 feet away from the bar of the defendant's restaurant, when her boyfriend, who was not a minor, purchased a mixed drink and delivered it to her. She did not go to the bar and the testimony established that the bartender's view of her was blocked by a crowd three people deep surrounding the bar. Additionally, she had been in
24
228 the restaurant for no more than 20 minutes and had consumed only two sips of the drink before she was approached by undercover police officers.
In considering the situation, the Court held that the applicable rule was:
In order to find that a licensee has "caused or permitted" the service or delivery of alcoholic beverages to a minor, the conduct must be "open, observable and of such nature that its continuance could, by the exercise of reasonable diligence, have been prevented."
Id. at 747, 542 N.Y.S.2d at 771.
Based upon these facts, the Court held that there was a lack of substantial evidence to establish that the bar owner knew, or should have known, of the delivery of the mixed drink to the minor, or that the delivery could have been prevented by the exercise of reasonable diligence.
On the contrary, where the delivery by the adult to the minor is open and obvious, the liquor dealer will be held accountable. In Matter of Jo Mar Jo Restaurant Corp. v. New York
State Liquor Authority, 197 A.D.2d 625, 602 N.Y.S.2d 673 (2d
Dep't 1993), the Court upheld the State Liquor Authority's suspension of the petitioner's license and a $1,000.00 bond forfeiture for the indirect sale of an alcoholic beverage to a minor. Here, the Court held:
The evidence adduced at the administrative hearing established that the petitioner's premises was not crowded on the night in
25
229 question and that the petitioner's bartender sold and delivered alcoholic beverages to an adult male, who in turn handed one of those beverages to his underaged friend, who began consuming the drink. Although the minor was seated at a table, the bartender had an unobstructed view of her and thus, the evidence was sufficient to support the conclusion that the petitioner's conduct was "open, observable and of such nature that its continuance could, by the exercise of reasonable diligence, have been prevented."
Id. at 625, 602 N.Y.S.2d at 674 (citations omitted).
XIII. THE PROOF IN A DRAM SHOP ACTION
Generally, the person suing under the Dram Shop Law must prove the following things:
(1) Unlawful Sale. The beverage must be unlawfully sold or otherwise provided by the liquor dealer. This covers both drinks that are sold as well as those that are "on the house." A sale, however, does not occur when an employee does not pay for drinks he obtains after closing hours. In Carr v.
Inged Restaurant, Inc., 195 A.D.2d 584, 601 N.Y.S.2d 8 (2d
Dep't 1993), the Court dismissed a Dram Shop action brought by a person injured by an intoxicated bartender in an automobile accident. Here, the proof established that the bartender consumed two Black Russians and two Grand Marniers after the bar closed for business at 4:00 AM. He did not pay for any of the drinks he consumed. Here, the Court found that there had been no
"sale."
26
230 (2) Intoxicating Beverage. The beverage provided or sold must be an intoxicating beverage. Although the statute refers to "liquor", the courts interpret that to mean any intoxicating beverage. The person bringing the suit does not have to obtain a laboratory analysis of the contents of the glass from -which the customer drank. The courts will infer that if a person ordered a Seven & Seven and paid for a Seven & Seven; it is reasonable to conclude that he got a Seven & Seven.
(3) Consumption of Beverage. There must be proof that the customer did, in fact, drink the beverage that was served him by the bar.
(4) Intoxication. There must be proof that the customer was or became intoxicated. The law does not require that the customer become intoxicated while drinking in the bar being sued. If he only bought a draft beer and drank half of it while he was in bar (B), the owner of bar (B) can be held liable even though the customer did most of his drinking in bar (A) and got to bar (B) after becoming intoxicated in bar (A).
In fact, if they know about bar (A), they can sue both bars and both will be held liable (fully or proportionately) for the damages as the jury may determine. Bar (A) and bar (B) may argue between themselves as to who was the most liable, but the jury could hold them each to be fully liable for all of the damages to the injured person.
27
231 (5) Intoxication Must Be Visible. The customer must be visibly intoxicated. This requirement provides the best defense to a Dram Shop action. The words "visibly intoxicated" come from
§ 65(2) of the Alcoholic Beverage Control Law. This states that it is illegal to sell an alcoholic beverage to:
2. Any visibly intoxicated person.
Does this mean that it is necessary for a plaintiff to directly prove that the intoxicated person who caused his injury was "visibly" drunk in the tavern at the time the tavern owner served him? In Harris v. Hurlburt, 83 Misc. 2d 626, 373
N.Y.S.2d 480 (Seneca Co. Sup. Ct. 1975), Judge Boehm held that intoxication at the time need not be shown directly but may be proven circumstantially.
Thus, if an accident occurs quite soon after one is drinking and he is shown to be intoxicated at the time of the accident, this would be sufficient to give rise to a reasonable inference that he was also intoxicated at the time of drinking.
Id. at 629, 373 N.Y.S.2d at 483-84.
What this means is that the plaintiff bringing this lawsuit does not have to produce a witness who was in the bar who will testify that the intoxicated customer was exhibiting the classic signs of intoxication. In an article entitled "Some Practical
Aspects--Dram Shop Litigation" published in the New York State
Bar Journal dated June, 1979, Robert J. Bohner tells how one plaintiff proved that the liquor dealer or his employees must
28
232 have known that the customer who caused his injury was intoxicated.
In a Dram Shop case recently tried, a well qualified physiologist, who was an expert on alcohol and its effects upon the human body, was used to graphically portray to the jury the visible effects which the alcohol had upon the intoxicated person. Thus, the expert testified on the basis of a hypothetical question which included the blood alcohol reading taken by the police after the automobile accident in which the plaintiff was injured. He testified that the intoxicated customer showed "clear and recognizable signs of intoxication", was a "recognizably intoxicated man" and was "visibly intoxicated" when he arrived at the defendant's restaurant after having imbibed previously at another bar. The expert was able to give his opinion as to the blood alcohol level of the intoxicated person at various stages of alcohol consumption throughout the evening and to state what visible effect, if any, these levels of alcohol would have on the intoxicated person at specific times throughout the evening. Then, in order to drive the point home, the following questions were asked: "Q. Would anyone serving him those additional five or six drinks have any difficulty apprehending the fact that this man was intoxicated? A. No, he would be a recognizably intoxicated man before he ever got there. He would be visibly intoxicated and recognizably intoxicated when he left the first bar. Q. Would they, (defendant's employees) have any difficulty observing his intoxication each and every time they served him a drink at the defendant's restaurant, that is, the second bar? A. They'd see each time a little more advanced intoxication than they did the time before so I don't think they would have any difficulty." The expert further testified that the drinks served to the intoxicated person were a substantial factor contributing to his intoxication and that the intoxication
29
233 was a substantial factor in causing the accident. The type of testimony may be particularly helpful where the direct proof as to the notice of intoxication of the patron is weak.
NYS Bar Journal, June 1979 at p. 288.
In Adamy v. Ziriakus & T.G.I. Friday's, Inc., 92 N.Y.2d 396,
681 N.Y.S.2d 463 (1998), the Court of Appeals upheld a finding of visible intoxication based upon the testimony of Dr. Michael
Baden, a forensic pathologist. Here, Dr. Baden was allowed to testify, without objection, to his opinion that the defendant had a .20 blood alcohol concentration at the time he was at the bar.
This opinion was based upon Dr. Baden's use of
"extrapolation" which is the questionable process of estimating what a person's blood alcohol concentration would have been at an earlier time, by working backwards from a later determined blood alcohol concentration. Since this was not objected to at trial, the high court did not rule on whether "extrapolation" was an accepted scientific procedure. Cf. People v. Mertz, 68 N.Y.2d
136, 506 N.Y.S.2d 290 (1986); People v. MacDonald, 227 A.D.2d
672, 641 N.Y.S.2d 749 (3d Dep't 1996), aff'd, 89 N.Y.2d 908, 653
N.Y.S.2d 267 (1996); People v. Stiffler, 237 A.D.2d 753, 655
N.Y.S.2d 139 (3d Dep't 1997).
The Court did rule that circumstantial evidence was admissible to establish the visible intoxication required by the statute. The Court distinguished this case from its earlier
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234 decision in Romano v. Stanley, 90 N.Y.2d 444, 661 N.Y.S.2d 589
(1997), where the Court of Appeals recognized the legitimacy of circumstantial evidence in establishing the element of visible intoxication, but held that the expert testimony offered in that case was inadequate for that purpose. Here, the expert's opinion was qualified and grounded upon a sufficient factual basis.
Circumstantial or not, there must be proof that the customer was visibly intoxicated at the time of the sale. In Nehme v.
Joseph, 160 A.D.2d 915, 554 N.Y.S.2d 642 (2d Dep't 1990), Maurice
J. Nehme suffered serious physical injury and his wife was killed when their van was hit by a pickup truck driven by Frank W.
Joseph. At trial, Mr. Joseph testified that he had consumed beer at two other bars prior to going to defendant Copperfield's. At
Copperfield's, he said he drank approximately eight to ten drinks and that when he left, he was intoxicated. He indicated that he was not, however, intoxicated when he arrived at Copperfield's.
Lisa Brinckerhoff, a bartender at Copperfield's, testified that she had served Mr. Joseph one drink and, at that time, he did not appear to be intoxicated. She, also, indicated that if
Mr. Joseph had consumed additional drinks, they were served to him by another employee.
While Mr. Nehme was successful in his suit against Mr.
Joseph, the jury ruled in favor of defendant Copperfield's and
Mr. Nehme appealed. The appellate court held that they would not
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235 set the jury verdict in favor of Copperfield's aside, as being against the weight of evidence, because Mr. Nehme had failed to demonstrate that Copperfield's had unlawfully sold alcoholic beverages to an intoxicated patron. The fact that Mr. Joseph testified that he was intoxicated when he left did not prove that he was visibly intoxicated when he was served.
Proof of the visibility of the customer's intoxication is the essential point. Donato v. McLaughlin, 195 A.D.2d 685, 599
N.Y.S.2d 754 (3d Dep't 1993). In Martinez v. Camardella, 161
A.D.2d 1107, 558 N.Y.S.2d 211 (3d Dep't 1990), Lisa Martinez was injured as a result of the intoxicated operation of a motor vehicle by James Camardella. Ms. Martinez had been at a wedding reception held at a golf club along with Mr. Camardella. While no one was able to testify as to how many drinks Mr. Camardella had, several witnesses testified that they observed him with a drink in his hand on a number of occasions during the five hour wedding reception. While they didn't know what he was drinking, or even if he had finished the drinks that he had, they did express the opinion that Mr. Camardella had become intoxicated during the reception.
The court rejected the argument of the golf club where the wedding reception was held that the plaintiff should be required to present direct evidence of the actual amount of alcohol consumed by Mr. Camardella; as well as proof that a golf club
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236 employee actually observed Mr. Camardella to be in an intoxicated condition when he was served an alcoholic beverage. Again, it is the visibility of the intoxication, not the number of drinks; nor whether the intoxicated customer was actually seen by an employee of the club.
In Senn v. Scudieri, 165 A.D.2d 346, 567 N.Y.S.2d 665 (1st
Dep't 1991), the jury verdict against a bar was vacated and set aside based upon, among other things, a failure of proof in regard to the evidence of intoxication. Here, the court observed that:
Evidence that a person has consumed alcohol, and has the odor of alcohol on his or her breath, is not conclusive proof of intoxication (Coleman v. NYC Tr. Auth., 37 N.Y.2d 137, 144-145, 371 N.Y.S.2d 663, 332 N.E.2d 850 (1975), since the effect of alcohol "may differ greatly from person to person ..." (Burnell v. La Fountain, 6 A.D.2d 586, 590, 180 N.Y.S.2d 52 (1958). In other words, a factual determination of intoxication cannot be made solely on the basis of how much alcohol a person has consumed (Baginski v. New York Telephone Company, 130 A.D.2d 362, 365, 515 N.Y.S.2d 23 (1st Dept.1987).
Id. at 350, 567 N.Y.S.2d at 668; accord Burkhard v. Sunset
Cruises, Inc., 191 A.D.2d 669, 595 N.Y.S.2d 555 (2d Dep't 1993).
We have held that the slurring of one's speech, in of itself, when that person is at the same time coherent, is insufficient to conclude that person is intoxicated (People on Complaint of Mulrean v. Fox, 256 App.Div. 578, 579, 10 N.Y.S.2d 694 (1st Dept.1939)).
Id. at 351-52, 567 N.Y.S.2d at 669.
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237 In Romano v. Stanley, 90 N.Y.2d 444, 661 N.Y.S.2d 589
(1997), the Court of Appeals held:
Thus, even where it can be established, a high blood alcohol count in the person served may not provide a sound basis for drawing inferences about the individual's appearance or demeanor.
Id. at 450-51, 661 N.Y.S.2d at 592 (footnote omitted).
(6) Injury to Third Party. The customer must then cause an injury to the person bringing the lawsuit.
While it is clear that the innocent driver of an automobile injured by the intoxicated customer has a cause of action against the liquor dealer, people far removed from the scene may also have the basis for a lawsuit against that liquor dealer. As stated earlier, the parents, wife and children of a person injured; and/or the family of the injured customer may also join in the lawsuit for loss of support and other damages.
(7) Injury Caused By Intoxication. The customer's intoxication must be connected to or linked to the person's injury.
The liquor dealer's liability is based upon the intoxicated customer causing injury to another. There must be a connection between the intoxication and the injury. For example, if a drunk driver is going down the road and a child suddenly runs in the path of the car and is injured or killed, there is a real question whether the child would have been killed regardless of
34
238 the intoxication of the driver. In order to recover against the driver and/or the liquor dealer, the lawyer for that child must prove that there was some negligent or erratic driving that caused the accident to occur.
If that connection is not made, a Dram Shop action against the liquor dealer will not succeed. The liquor dealer is liable for only those actions causing injury which can logically be connected to the intoxicated condition of the customer. If the proof in that case showed that the customer was driving at a reasonable speed and in a reasonable manner and that nothing he could have done would have prevented the accident, it would be very hard for the child's lawyer to prove the necessary connection between the intoxication of the customer and the accident.
XIV. STATUTE OF LIMITATIONS
Section 214 of the Civil Practice Law and Rules states that the statute of limitations for a Dram Shop action is three years.
In Bonjiorno v. D.I.G.I., Inc., 135 Misc. 2d 516, 515 N.Y.S.2d
969 (Suffolk Co. Sup. Ct. 1987); aff'd 138 A.D.2d 120, 529
N.Y.S.2d 804 (2d Dep't 1988), a conflict arose where the plaintiff was killed as a result of an automobile accident. The attorney for the liquor dealer argued that the statute of limitations for wrongful death was two years in accordance with §
5-4.1 of the Estates, Powers and Trust Law. In resolving the
35
239 issue, the Court held that since the action arose under the Dram
Shop Law, the appropriate statute was three years rather than the two years specified for a wrongful death action.
XV. CONTRIBUTION
In Cresswell v. Warden, 164 A.D.2d 855, 559 N.Y.S.2d 361 (2d
Dep't 1990), Police Officer Gary Cresswell and his wife sued John
Warden for damages resulting from John Warden's having struck the police officer in the face knocking him unconscious. John Warden had been drinking at the Cafe Royale for a period of several hours and had earlier attacked the proprietor. Although Officer
Cresswell had not sued the Cafe, John Warden had responded to the police officer's lawsuit by bringing his own action against the
Cafe seeking contribution for any damages that the police officer might recover from him.
The Cafe Royale's attorney brought a motion to dismiss on the ground that an intoxicated customer had no standing to sue under the Dram Shop Law. The trial court denied the motion to dismiss and the Appellate Division affirmed the trial court's ruling holding that although John Warden did not have a direct action against the Cafe Royale, he could sue them for contribution based upon his own exposure to Officer Cresswell's suit.
Essentially, the Court held that although Officer Cresswell had not sued the Cafe Royale, he had the right to do so; and accordingly, John Warden had a valid action against the Cafe
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240 Royale for contribution because the Cafe could have been held liable to Officer Cresswell had he decided to sue them.
Contribution comes into play when two or more persons who are subject to liability for damages for the same personal injury, claim contribution among themselves whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought. (CPLR § 1401.)
Accordingly, a person sued by someone he has injured may claim contribution from another person who had participated in causing the injury or whom had not been sued by the injured person in the first instance. This is an exception to the general rule that says the Dram Shop Law will not allow an intoxicated customer to recover damages from the establishment that served him the alcoholic beverages. The customer can't recover for his own injuries, but this exception allows him to obtain contribution from the liquor dealer for injuries which he caused to someone else and which that someone else could have recovered from the liquor dealer.
In Fowler v. Taffe, 152 Misc.2d 343, 576 N.Y.S.2d 743 (Bronx
Co. Sup. Ct. 1990), the issue of whether a defendant could claim contribution from another defendant took a different twist.
Here, the owner and operator of a motor vehicle were sued by an allegedly intoxicated pedestrian who had wandered into the roadway and been struck by the motor vehicle.
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241 The pedestrian had been drinking at the Country Club Cafe.
The owner and operator of the motor vehicle brought an action against the Cafe under the Dram Shop Act, on the theory that if they were liable to the pedestrian; the Cafe was also liable because the Cafe had contributed to the accident by illegally serving alcoholic beverages to the pedestrian. Their theory was that the pedestrian was intoxicated and this was the reason that he wandered into the roadway.
The court dismissed the suit against the Country Club Cafe on the ground that it was not a proper claim for contribution.
The court reasoned that if the owner and operator turned out to be correct, and the accident was the result of pedestrian's intoxication; then these facts would serve to negate the pedestrian's claim against them. If the Country Club Cafe made an illegal sale to the pedestrian which caused him to become intoxicated, this could only eliminate or diminish the pedestrian's claim against the owner and operator of the vehicle.
Therefore, there is no possibility that the defendants here can be monetarily injured by the third party defendant's alleged wrongful sale.
Id. at 344, 576 N.Y.S.2d at 743. Accordingly, the Court dismissed the action seeking contribution.
In Coughlin v. Barker Avenue Associates, 202 A.D.2d 622, 609
N.Y.S.2d 646 (2d Dep't 1994), a liquor dealer was sued by a customer's widow and surviving children. In response, the liquor
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242 dealer sued the deceased customer's estate attempting to obtain contribution from the estate. In dismissing the liquor dealer's claim, the Court held:
Under the particular facts of this case, to allow the defendant tavern owners to seek contribution from the estate of the intoxicated person would undermine the very purpose of the Dram Shop Act. The decedent and the intoxicated person are one and the same, and the only "victims" are the decedent's spouse and children, who are suing for the loss of support occasioned by the decedent's death due to intoxication. Allowing contribution against the decedent's estate would not only diminish their potential recovery, but would also allow the tavern owners to reduce their liability for their own misconduct. The tavern owners would be unfairly shifting the burden of the loss onto the spouse and children. The existence of a homeowners' insurance policy does not mitigate the unfairness. Accordingly, we find, as has the Appellate Division, Fourth Department, that a vendor who violates the Dram Shop Act is not entitled to contribution from "the deceased vendee's estate in an action by the vendee's dependents" (see, Bartlett v. Grande, supra, 103 A.D.2d at 672, 481 N.Y.S.2d 566).
Id. at 623-24, 609 N.Y.S.2d at 647.
XVI. THE JUDGE'S CHARGE TO THE JURY
At the conclusion of the proof in any law suit, the judge must instruct the jury as to the law regarding their verdict. To assist judges in formulating this charge, there is a legal publication entitled Pattern Jury Instructions. The
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243 Pattern Jury Instructions pertaining to Dram Shop tells the judge to first read the Dram Shop Law (GOL § 11-101) and then tells him to read the following quoted paragraphs:
Unlawful selling occurs when a person sells, delivers, or gives away, or causes, permits or procures the sale, delivery or gift of, any alcoholic beverage to any visibly intoxicated person. A person is visibly intoxicated when a reasonable person would conclude, based on observation of the subject's appearance and conduct, that the person is intoxicated.
Violation of the statute creates liability. While the statute is not violated unless the subject was visibly intoxicated, it does not matter whether defendant knew that (his,her) conduct was in violation of the statute. You may not disregard a violation of the statute and substitute some other standard of care in place of the statutory liability. What you must determine is whether plaintiff has proved that defendant violated the statute.
If you find (1) that the defendant unlawfully sold an alcoholic beverage to AB at (2) a time when AB was visibly intoxicated, and (3) that such sale caused or contributed to AB's intoxication, you must find for plaintiff on this issue. If, however, you find that the defendant did not unlawfully sell an alcoholic beverage to AB, or that AB was not visibly intoxicated at the time, or that any such sale did not cause or contribute to AB's intoxication, or that there is no reasonable connection between the intoxication and plaintiff's injury, you must find for the defendant on this issue.
Pattern Jury Instructions, PJI3d 2:28.
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244 As you can see, this charge to the jury reflects the severe nature of the liability imposed upon liquor dealers. Neither intent, nor knowledge on the part of the liquor dealer is required. This instruction prevents the jury from using normal standards of negligence in coming to their verdict. Obviously, the Dram Shop Act imposes a strict standard of civil liability.
XVII. SOCIAL HOST'S LIABILITY
Although a social host's liability is not directly related to the sale of alcoholic beverages, it is a significant development of which you should be aware. Essentially, this law makes social hosts liable if they provide alcoholic beverages to people under 21; and those people then cause injury to others.
In order to be held responsible under this law, the social host must know or have reason to know that the person they provided the beverage to was under the age of 21. Unlike the Dram Shop
Law, the social host is responsible only for actual damages suffered. Under the Dram Shop Law, an injured person may recover actual as well as exemplary (punitive) damages. Section 11-100 of the General Obligations Law states:
§11-100. Compensation for injury or damage caused by the intoxication of a person under the age of twenty-one years.
1. Any person who shall be injured in person, property, means of support or otherwise, by reason of the intoxication or impairment of ability of any person under the age of twenty-one years, whether resulting in his death or not, shall have a right of
41
245 action to recover actual damages against any person who knowingly causes such intoxication or impairment of ability by unlawfully furnishing to or unlawfully assisting in procuring alcoholic beverages for such person with knowledge or reasonable cause to believe that such person was under the age of twenty- one.
2. In case of the death of either party, the action or right of action established by the provisions of this section shall survive to or against his or her executor or administrator, and the amount so recovered by either a husband, wife or child shall be his or her sole and separate property.
3. Such action may be brought in any court of competent jurisdiction.
4. In any case where parents shall be entitled to such damages, either of such parents may bring an action therefor; but that recovery by either one of such parties shall constitute a bar to suit brought by the other.
It must be emphasized that the social host's liability law applies only to persons under the age of 21. If the person receiving the alcoholic beverage is over the age of 21, there is no liability unless the beverage is "sold" and a cause of action arises under the Dram Shop Law.
XVIII. UNLAWFULLY FURNISHING ALCOHOLIC BEVERAGES DEFINED
In Rust v. Reyer, 91 N.Y.2d 355, 670 N.Y.S.2d 822 (1998), the New York State Court of Appeals reversed the granting of summary judgment to the defendant in an action brought under the
Social Host's Liability Law. Here, the defendant, a 17-year old girl planned a party at her house when her parents were away on
42
246 vacation. Members of a high school fraternity who heard of the party approached her for the purpose of convincing her to allow them to attend the party and to bring beer. Their plan was that those attending the party would pay a one-time fee to receive a
16-ounce cup which would allow them unlimited access to the beer.
Defendant Reyer agreed to have the beer at her party in exchange for a portion of the proceeds.
Approximately 150 people attended the party and members of the fraternity collected money, stamped the hands of those who paid and handed out cups to the attendees. While the defendant attempted to obtain free beer for her friends and observed many of the 150 underaged attendees consuming alcohol, she did not drink, dispense beer, collect money or participate in the distribution of cups or the stamping of hands.
Following the break up of the party by the police, the plaintiff Rust and an intoxicated "guest" by the name of
Tarantino, got into a "melee" in the vicinity of Reyer's house.
As a result, plaintiff Rust was struck by Tarantino and suffered severe injury to her face.
The court notes that following the party, the kegs were stored in the Reyer's garage and that while she never received the promised share of the fees, she sought payment from the fraternity members on several occasions following the party.
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247 In granting summary judgment and dismissing the Social
Host's Liability claim against Reyer, the trial court held that while she might have been said to have "facilitated" the furnishing of beer to Tarantino, "the statute cannot be stretched to impose liability for this type of conduct." Id. at 823.
In reversing this dismissal and reinstating the lawsuit, the
Court of Appeals quotes the Appellate Division as having stated:
"General Obligations Law § 11-100 is not applicable to a homeowner who has neither supplied alcohol to nor procured alcohol for consumption by an underage person."
Id. at 357, 670 N.Y.S.2d at 823.
The Court of Appeals first points out the fact that neither the statute, nor the case law defines the term "furnishing" which is ordinarily understood to mean to provide, to supply, or to give. They conclude that the courts below had defined
"furnishing" too narrowly and the fact that Reyer had:
(a) allegedly given permission for the alcohol to be brought to the party she was planning;
(b) had allegedly provided storage for the kegs of beer before and after the party;
(c) had allegedly negotiated a share of the proceeds from cup sales for herself;
(d) had allegedly attempted to arrange for her friends to drink beer without charge; and
(e) had allegedly pursued payment of the agreed portion of the proceeds from the cup sales following the party.
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248 The Court held that all of these factors constituted what the plaintiff alleged in her affidavit as choosing "to participate in a scheme to furnish alcohol to underage individuals in return for a payment of money." Id. at 359-360,
670 N.Y.S.2d at 824.
The Court concluded that if all of these facts were proven at trial, they could bring Reyer's actions within the meaning of
"furnishing" as used in the statute. The defendant's role "could well be viewed as part of a deliberate plan to provide, supply or give alcohol to an underage person." Id. at 824. While the
Court recites their obligation to strictly interpret the statute, this case appears to have broadened and extended the reach of this statute.
In MacGilvray v. Denino, 149 A.D.2d 571, 540 N.Y.S.2d 449
(1989), the defendant was, apparently, less involved with the arrangements in regard to the serving of alcohol. Here, the
Appellate Division of the Second Department ruled that a complaint against a boat owner should be dismissed where the boat owner chartered his boat to Josephine Muliso for a birthday party. The complaint charged that the boat owner knowingly permitted consumption of alcoholic beverages aboard his boat by people who were under the age of 21. The complaint further charged that plaintiff, Shannon MacGilvray was injured as a result of an altercation with the defendant, Michael Denino, in a
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249 parking lot in the Village of Freeport. The complaint charged that the altercation was a result of the availability of alcoholic beverages on the boat.
In holding that the complaint should be dismissed, the court stated:
[T]he third-party complaint did not state a cause of action under General obligations Law §11-100, since that statute only provides for a "right of action to recover actual damages against any person who knowingly causes [another person's] intoxication or impairment of ability by unlawfully furnishing to or unlawfully assisting in procuring alcoholic beverages for such person with knowledge or reasonable cause to believe that such person was under the age of twenty-one years" (General Obligations Law §11-100[11]). Nowhere in the third-party complaint, however, is it alleged that the appellant unlawfully furnished or assisted in the procuring of alcoholic beverages for anyone. As an exception to the common law, General Obligations Law §11-100 must be construed narrowly (citations omitted) and, therefore, we conclude that the statute does not encompass liability based upon mere knowledge of alcohol consumption.
MacGilvray v. Denino, Id. at 572, 540 N.Y.S.2d at 450-451.
Minors Liable for Serving Minors
In Schrader v. Carney, 586 N.Y.S.2d 687 (4th Dep't 1992), a
17-year old was sued for injury of a passenger arising out of an automobile accident. The 17-year old had provided alcoholic beverages to a bunch of teenagers including the operator of the car. On appeal, the Appellate Division rejected the defendant's argument that the law should not be applied to him because he was
46
250 a minor. The Court held that there was nothing in the language of the statute that would limit its application to overage violators.
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251 252 BIOGRAPHIES
253 254 DANIEL N. ARSHACK, ESQ. BIOGRAPHY
Daniel N. Arshack is managing partner of Arshack, Hajek & Lehrman in New York and a founding member of the International Criminal Bar. For over 30 years, he has been getting calls from clients with unusual, high-stakes cases that require creative and aggressive representation. With offices in New York and London, Mr. Arshack represents clients in state, federal, and international courts at all levels. He also represents clients before administrative bodies and at the United Nations. He is known as a global leader in criminal justice and legal reform, and has taught lawyers and law students in the US and abroad, from New York to, Beirut to Paris. Mr. Arshack focuses his practice on criminal defense, civil rights protection and complex civil litigation, and has successfully defended a wide range of cases, from securities fraud and international arms-dealing to homicide and malpractice. He is currently the attorney for imprisoned Saudi human rights lawyer Waleed Abu Al Khair.
255 256 PETER GERSTENZANG, ESQ. BIOGRAPHY
Peter Gerstenzang is the senior partner in the Albany law firm of Gerstenzang, Sills, Davis, Cohn & Gerstenzang. He is a 1970 graduate of Albany Law School. He is one of only four lawyers in New York State who have been Board Certified as specialists in DUI Defense Law by the National College for DUI Defense ("NCDD"). The NCDD is the only organization accredited by the American Bar Association to certify attorneys as specialists in DUI law.* His practice focuses on Criminal Defense with an emphasis on DWI cases and Vehicular Crimes. In addition, Mr. Gerstenzang is listed as a top DWI attorney in the following publications: The Best Lawyers in America®, The New York Area's Best Lawyers®, and New York Super Lawyers® Upstate Edition 2014. He is listed as one of the "Top 25 Hudson Valley Super Lawyers 2010" regardless of category.
Mr. Gerstenzang commenced his legal career as a prosecutor for the United States Army in the Republic of Vietnam. From 1972 to 1975, he was an Assistant District Attorney for the County of Albany. Certified as a breath test operator, he taught at the New York State Police Academy in their Breath Test Training Program for 12 years. Mr. Gerstenzang currently serves as a Dean Emeritus and Fellow of the National College for DUI Defense, which holds an annual seminar in Cambridge, Massachusetts on the campus of Harvard Law School. He previously served on NCDD's Board of Regents from 2003 to 2013, as Assistant Dean in 2012-2013, and Dean in 2013-2014. His book, Handling the DWI Case in New York, published annually by Thomson/West, is considered a standard reference for the defense of Driving While Intoxicated cases.
Mr. Gerstenzang is a regular lecturer for the New York State Bar Association (Chair, Big Apple Program held annually in May, in New York City, and Chair, Representing a DWI Defendant in New York from Arraignment to Disposition, September – October, 2010); the National Association of Criminal Defense Lawyers/ National College for DUI Defense (Annual DUI Seminar, Las Vegas, Nevada 2012); the New York State Association of Criminal Defense Lawyers; the New York State Defenders Association; Albany County Bar Association; the New York State Magistrates Association; the San Diego Public Defenders Office; and Impaired Driving Specialists, LLC, Atlanta, Georgia; Delaware County Bar Association; Columbia County Magistrates Association; Suffolk County Bar Association; Suffolk County Magistrates Association; Westchester County Court Clerks Association; and Suffolk County Court Clerks Association. Mr. Gerstenzang teaches for various law enforcement, defense and judicial associations. In addition, he has lectured for the New York State Office of Court Administration Judges Training Program.
257 258 ROBERT J. MASTERS, ESQ. BIOGRAPHY
After graduating from St. John’s University and St. John’s University School of Law, Bob Masters worked as a law clerk for various Judges of the Criminal Term of the Supreme Court in both Queens and Kings Counties. Since 1990, Bob has been an Assistant District Attorney in Queens County, and has worked primarily on homicide cases since 1992.
Since 1993, Bob has held various administrative posts within the District attorney’s Office and since 2012, he has been the Executive Assistant District attorney for Legal Affairs, supervising all appellate matters, as well as office training. Bob is the Chair of the District Attorney’s Committee on Professional Standards and is the District Attorney’s liaison to all law enforcement agencies.
During his tenure in the District Attorney’s Office, Bob has handled dozens of homicide cases, as well as long term investigations into narcotics enterprises and their related murders. Additionally, Bob has specialized in handling homicides in which psychiatric defenses are interposed.
Among the high-profile cases handled by Bob was the trial of Patrick Bannon for the murder of Police Officer Paul Heidelberger, the trial of serial-killer Heriberto Seda, the “Zodiac Killer” of the 1990's as well as the prosecutions of the infamous “Wendy’s Massacre,” in which five fast food employees were murdered and the capital trial of John Talor resulted in the jury’s imposition of the death penalty. The prior prosecution of Taylor’s mentally retarded accomplice, Craig Godineaux, resulted in the imposition of five consecutive life sentences. Bob is currently assigned to the prosecution team for the accused murderer of NYPD Detective Brian Moore.
Bob has also been designated as a Special Assistant District Attorney in both Franklin County and Suffolk County to assist those offices in conducting complex litigation. He is also a founding member of the District attorneys’ Association Of New York’s Best Practices Committee and its Ethics Advisory Group, as well as its Legislative and Mutual assistance Committees.
Bob has previously served as an adjunct faculty member at St. John’s University School of Law and has lectured frequently throughout the state on many trial practice and ethical issues.
259 260 SCOTT D. MCNAMARA, ESQ. BIOGRAPHY
Scott D. McNamara is the Oneida County District Attorney. He started his career in the office as an Assistant District Attorney in 1992. He has held numerous positions within the office including Bureau Chief of the Narcotics Unit, Chairperson of the Death Penalty Committee, and First Assistant DA.
In 2007, McNamara was elected DA and has since been re‐elected. During his tenure, McNamara started many initiatives including (1) an economic crime unit; (2) a conviction integrity unit; (3) a second chance program and (4) the addition of a community liaison to his office. McNamara is currently a member of the New York State Commission on Forensic Science and he is the 3rd Vice‐President of DAASNY. He recently served on a committee with the National Academy of Sciences that studied eyewitness identification and issued a report titled: Identifying the Culprit: Assessing Eyewitness Identification
261 262 HON. MICHAEL M. MOHUN BIOGRAPHY
JUDICIAL OFFICE:
• County, Family and Surrogate Court Judge, Wyoming County
OTHER PROFESSIONAL EXPERIENCE:
• Admitted to practice 1981 • Former Bennington Town Judge (1998-2005) • Appointed Acting Town and Village Justice of Perry, Wyoming County, New York (2002) • Appointed Acting Village Justice of Warsaw, Wyoming County, New York, presiding over misdemeanor Drug Court Cases on a county-wide basis (2003- 2004) • Chairman of the Eighth Judicial District Attorney Grievance Committee (2009- 2010) • Member – Special Committee on Procedures for Judicial Discipline, New York State Bar Association (2004-2011) • Member – Criminal Justice Executive Committee, New York State Bar Association (2008-2011) • Life Fellow – New York State Bar Foundation (2001-present) • Director – University of Buffalo Law School Alumni Association (2002-2005) • President – Wyoming County Bar Association (1998-2002) • Delegate – New York State House of Delegates, New York State Bar Association (2001-2002)
EDUCATION:
• B.S. State University College at Buffalo, 1976 • J.D. University of Buffalo Law School, 1980
263 264 LINDA C. PALMER BIOGRAPHY
Linda Palmer is currently assigned to the Allegany County Multi Bench Court and serves as the Resource Coordinator for Felony, Misdemeanor and DWI Hybrid Treatment Court Programs. She believes that through the drug treatment Court setting a balance between justice and compassion is offered to those dealing with addiction. Her formal education includes studies in community and human service and psychology, gaining a Bachelor of Science Degree from the State University of New York and Family Development Credential from Cornell University. Over the course of her 12-year career within the Unified Court system, multiple NYS Office of Alcohol & Substance Abuse Service (OASAS) education and training programs have been completed, in addition to classes through Alfred State College Center for Community Education regarding in-depth studies of relapse prevention. While working within the Allegany County Probation Department as the Pretrial Release Coordinator in 2004, she was a recipient of the New York State Assembly Certificate of Merit for work with victim services. During this period, she also became part of the Adult Drug Court Planning Initiative for the formation of Allegany County’s pilot Drug Court Program, which was later established as a post plea model by Administrative Order in 2005. Passionate about her own children, and having centered her early career on the needs of all children and child development, she received an Early Childhood Development Credential through Missouri State College. When her children became school age, she worked as a Teaching Assistant for Allegany County’s first Head Start Family-Child Center for parents with children birth to 3 years of age. Later accepting a position as a home educator for Cattaraugus County’s Parent Education Program. She often wonders how the evolution to a career within the Drug Court setting came to be. With a belief system that dictates supporting people in recovery and helping to develop healthy life-views means stronger families and safer communities, everything works together for the greater good.
265 266 HONORABLE JENNY RIVERA BIOGRAPHY
Jenny Rivera, Associate Judge of the Court of Appeals, has spent her entire professional career in public service. She clerked for the Honorable Sonia Sotomayor, on the Southern District of New York, and also clerked in the Second Circuit Court of Appeals Pro Se Law Clerk's Office. She worked for the Legal Aid Society's Homeless Family Rights Project, the Puerto Rican Legal Defense and Education Fund (renamed Latino Justice PRLDEF), and was appointed by the New York State Attorney General as Special Deputy Attorney General for Civil Rights. Judge Rivera has been an Administrative Law Judge for the New York State Division for Human Rights, and served on the New York City Commission on Human Rights. Prior to her appointment, she was a tenured faculty member of the City University of New York School of Law, where she founded and served as Director of the Law School’s Center on Latino and Latina Rights and Equality.
Judge Rivera is an elected member of the American Law Institute. She has published extensively on interpersonal violence, women’s rights, and issues that impact the Latino community. She served on the American Bar Association Commission on Hispanic Legal Rights and Responsibilities from 2010 to 2012, and as the Reporter to the Commission authored the Commission’s Report. Judge Rivera has received several awards, including the ABA Spirit of Excellence Award and the NYSBA Diversity Trailblazer Lifetime Achievement Award.
She graduated from Princeton University, and received her J.D. from New York University School of Law, where she was a Root-Tilden Scholar. She received her LL.M. from Columbia University School of Law.
267 268 PATRICIA WARTH, ESQ. BIOGRAPHY
Patricia Warth, Esq. is the Chief Hurrell-Harring Implementation Attorney for NYS Office of Indigent Legal Services. Prior to joining ILS, and since 2008, she was Director of Justice Strategies at the Center for Community Alternatives (CCA). She has devoted her career to criminal justice advocacy. After graduating from Cornell Law School in 1996, Ms. Warth worked for the New York State Capital Defender Office until its closure in 2005. Ms. Warth then spent a semester at Syracuse Law School’s Office of Clinical Legal Education as practitioner-in-residence, and then two years as Managing Attorney of the Buffalo, NY office of Prisoner’s Legal Services of New York, until joining CCA.
The experiences of the people with whom she works have informed her research and advocacy. She has conducted research about and delivered presentations on sentencing, prison-based programs, drug law reform, and the life-long consequences of a criminal conviction to many audiences, including the New York State Defender Association, the New York State Association of Criminal Defense Lawyers, local bar associations, and other legal organizations. As one of the co-authors of CCA’s reports, “The Use of Criminal History Records in College Admissions Reconsidered,” and “Boxed Out: Criminal History Screening and College Application Attrition, Ms. Warth has delivered presentations and webinars to college admissions officers and faculty about screening college applicants. Ms. Warth is also the co-author of the 2013 article, “Barred Forever: Seniors, Housing, and Sex Offense Registration,” published in the Kansas Journal of Law and Public Policy.
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