2021 | VOL. 19 | NO. 2 Criminal Law Newsletter A publication of the Criminal Justice Section of the New York State Bar Association

Section Viewpoint: Looking Cause of Death in Back, Going Forward Vehicular Homicides Criminal Justice Section

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Features Newsletter 2021 | Vol. 19 | No. 2 Section Viewpoint: 6 Looking Back, Going Forward Regulars Cause of Death in Vehicular Homicides Message From the 10 Marc Gann 3 Past Chair Robert J. Masters Message From the Chair 4 David Louis Cohen Message From 5 the Editor Jay Shapiro Section Committees 12 and Chairs New York Criminal Criminal Justice Section

Law Newsletter Section Officers Chair Editor David Louis Cohen Jay Shapiro Law Office of David L. Cohen White and Williams LLP 12510 Queens Blvd Ste 12 Tower Kew Gardens, NY 11415 7 Times Square [email protected] New York, NY 10036 [email protected] Vice-Chair Leah Rene Nowotarski Publication and Editorial Policy Wyoming County Public Defender 18 Linwood Ave Persons interested in writing for this Newsletter Warsaw, NY 14569-1116 are welcomed and encouraged to submit their articles [email protected] for consideration. Your ideas and comments about the Newsletter are appreciated as are letters to the Editor. Secretary All articles should be e-mailed to: Jay Shapiro at Benjamin Ostrer [email protected]. Ostrer & Associates, P.C. PO Box 509 Submitted articles must include a cover letter giv- 111 Main Street ing permission for publication in this Newsletter. We Chester, NY 10918-0509 will assume your submission is for the exclusive use [email protected] of this Newsletter unless you advise to the contrary­ in your letter. Authors are encouraged to include a brief Treasurer biography with their submissions. David M. Cohn New York County DA’s Office Editorial Policy: The articles in this Newsletter rep­re­ 1 Hogan Pl Fl 8 sent the authors’ viewpoints and research and not that New York, NY 10013-4311 of the Newsletter Editor or Section Officers. The accu- [email protected] racy of the sources used and the cases cited in submis- sions is the responsibility of the author. NYSBA.ORG/CRIMINAL Accommodations for Persons with Disabilities: NYSBA welcomes participation by individuals with disabilities. NYSBA is committed to complying with all applicable laws that prohibit discrimination against in- dividuals on the basis of disability in the full and equal enjoyment of its goods, services, programs, activities, facilities, privileges, advantages, or accommodations. To request auxiliary aids or services or if you have any questions regarding accessibility, please contact the Bar Center at 518-463-3200.

Publication Date: August 2021

Copyright 2021 by the New York State Bar As­so­ci­a­tion. ISSN 1549-4063 (print) ISSN 1933-8600 (online)

2 NYSBA New York Criminal Law Newsletter | 2021 | Vol. 19 | No. 2 Message From the Past Chair

Mid-morning on Tuesday, June 1, 2021, I received a the promise of finding text from my friend and past chair of our Section, Tucker an enduring criminal Stanclift. It simply read, “Welcome to the Club!” That was justice system that the Tucker’s clever way of noting that my tenure as the Sec- most elusive of com- tion’s chair had concluded at the stroke of midnight and I, modities—justice—for too, had joined the roster of our Section’s past chairs. Over everyone, those ac- the following few days, our new chair, my friend from our cused, victims—ev- shared home county of Queens, David Cohen, was imme- eryone—regardless of diately called to answer many requests, make prompt de- race, creed or social cisions and respond to an endless array of email threads. station. In one of my replies to such an email thread, I concluded with a wise-guy postscript, simply advising David that he Our editor and my had only 725 days ahead of him as chair of our Section. All friend, Jay Shapiro, joking aside, I am certain that David will provide inspired has been kind enough leadership for us—those who labor in the vineyards, prac- to permit me this op- ticing our chosen specialty—criminal law. portunity to address the Section as a past David assumes his position at the most delicate and chair, and what I wish Robert J. Masters difficult of times. His kind words about my tenure not- to express, above all, withstanding, serving as chair while we return from our apart from my heartfelt congratulations to David and the COVID-19 hiatus will prove daunting. It will be in the other officers upon their ascent, is my gratitude for having coming months that we will see the true impact of the bail had the experience of serving on the officers’ ladder in the and discovery reforms that were implemented on January Section, culminating with my term as chair. The importance 1, 2020, but have had no genuine opportunity to become of what we—the subject matter experts—of the criminal ingrained into our daily practice. Moreover, the reforms law can provide to our community cannot be underesti- enacted last year in the wake of events in Minneapolis only mated. It was a privilege to have participated in that. And, became effective a few short weeks ago and the latest legis- I promise, that, like Tucker, I will contribute to our common lative session promises to provide additional sea changes to cause in the future, while reserving the right to tease future our routine practice—all of which will test David’s tenure. chairs, as the occasion may present. Although the challenges are daunting, David’s remarkable wisdom, pragmatism and experience will guide the Section Thank you. to adapt to our new post-COVID-19 world and provide leadership to the courts and the Legislature in ensuring RJM

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NYSBA New York Criminal Law Newsletter | 2021 | Vol. 19 | No. 2 3 Message From the Chair

Following Bob Masters as chair is a daunting task. and modifications that Not only is he a good lawyer and a better person, he is a are being considered wonderful writer and his Messages From the Chair have by the Legislature and been interesting and informative. On behalf of the Section, the court system. We I want to express our thanks and appreciation for a job well can and should be the done. “experts” who provid- ed in-depth analysis Bob led us through the pandemic. Realizing that input as to the practical im- from those who actually work in the system would be most plications and the real beneficial, he created a Best Practices Working Group to world impact of such serve as a resource to court administrators as they devel- proposals. oped new protocols for the “virtual practice.” Bob, along with the officers of the Section, continued to do whatever To this end, my they could to improve the practice during this most diffi- main goal as chair will cult period for our members. be to revitalize the Sec- tion’s committees. We Every new leader comes into office with myriad theo- have a wealth of talent ries as to how to improve the organization. Having served on our committees that David Louis Cohen as a county bar president, I learned rather quickly that the is underutilized. Com- best practice is to focus on one or two areas, rather than to mittee members have an expertise that we should enlist to try and reinvent the wheel. draft legislative proposals to improve their specific area of This Section is composed of some of the best and expertise. Committee members can write articles for our brightest lawyers who practice as both prosecutors and newsletter to inform us about issues of interest. By meeting defense counsel in the criminal courts of our state and regularly, committees can discuss issues in their practice country, as well as judges who preside or have presided area and create CLE programs. All of these efforts will not over cases in those courts. Especially in today’s times when only benefit our Section, but the NYSBA as a whole. there is a clarion call for “reform” in all aspects of the crimi- nal legal system, this diversity makes our Section uniquely qualified to evaluate, analyze and educate on the changes David Louis Cohen

NEW YORK STATE BAR ASSOCIATION

If you have written an article you would like considered for publication, or have an idea for one, please contact New York Criminal Law Newsletter Editor: Jay Shapiro [email protected] Articles should be submitted in electronic document format (pdfs are NOT acceptable), along with biographical information.

REQUEST FOR ARTICLES

4 NYSBA New York Criminal Law Newsletter | 2021 | Vol. 19 | No. 2 Message From the Editor

The question is, “Are we almost there?” That inquiry is Now the reins are far better than, “Will we ever get out of here?” Of course, in the hands of David what comes next is, “Now what?” Louis Cohen, who, like Bob, will be a thought- We are full of questions about where we’ve been, how ful leader. Let’s all join life has changed and what the future holds. For our Section, together to support there is much to consider. We’ve held together for more David going forward. than a year without in-person interaction but that hasn’t stopped our membership from their focus on critically im- That needs to be portant criminal justice issues. We have been active in ad- the message for the dressing new legislation and in advocating for protections next year: let’s all join of defendants. We have strived to continue to bring impor- together. We must, tant issues to the attention of the courts and the Legislature. together, take the op- portunity that a fresh It is both a time to look back and a time to look ahead. start provides to im- Looking back, I want to congratulate the Executive Com- prove all aspects of mittee on forging ahead, albeit remotely, on the critical mat- the criminal justice ters that concern our members. Also, thanks to the various system in New York. Jay Shapiro Section committees that focused on important projects and Members with ideas initiatives. and concerns should reach out to the officers of our Section On a personal note, I cannot offer enough praise and and communicate their thoughts. And, please, feel free to appreciation for the work Bob Masters has done for our contact me with ideas for articles that address the matters Section. He served as chair under the most difficult circum- you believe are ripe for discussion. stances and at times it appeared that he had body doubles because he was everywhere. Through it all, he filled the role of the voice of reason in the room. Bob remained un- Jay Shapiro flappable.

COMMITTEE ON PROFESSIONAL ETHICS ETHICS OPINIONS

The Committee on Professional Ethics has issued over 1100 opinions since 1964. It provides opinions to attorneys concerning questions of an attorney’s own proposed ethical conduct under the New York Rules of Professional Conduct. It cannot provide opinions concerning conduct that has already taken place or the conduct of another attorney. When an inquiry is submitted, it will be researched to determine whether an existing opinion is responsive to the question. If no opinions exist, the inquiry will be forwarded to the committee for preparation of an opinion.

Inquiries submitted to the committee are confidential, and no identifying information is included in the opinion.

If you have a question about your own proposed conduct, send your inquiry to the committee by email to [email protected]; by fax to (518) 487-5564; or by mail to One Elk Street, Albany, NY 12207. Please include in all inquiries your name, mailing address, telephone and email address. To view Ethics Opinions, visit: www.nysba.org/Ethics/

NYSBA New York Criminal Law Newsletter | 2021 | Vol. 19 | No. 2 5 Section Viewpoint: Looking Back, Going Forward

It’s a conversation that we are all having. What hap- Tucker Stanclift, of Stanclift Law PLLC in Glens Falls, pens now? What happens next? Except for thinking about is one of our former Section chairs. He offered some very those we lost and the mourning process, we want to look honest and candid assessments. His remarks are critically forward in our personal and professional lives. important because he offers the perspective of a small practitioner. It’s safe to assume Tucker speaks for many. Plans will be made about returning to the workplace Tucker’s response to the impact told what is likely a very and changes in the environments that we were used to for common story: so long. Some adaptations will be driven by business deci- sions while others will be mandated by the government. My practice scaled down dramatically due And, of course, there will be deeper reactions to the pan- to the pandemic. I let go associates and demic, driven by changes in perspective and philosophical staff. Currently, I’m operating with just decisions. myself and one administrative assistant. My space is too large for me now, so I’m In the Criminal Justice Section, we have been discuss- moving to a smaller location. That said, a ing the impact and the future for more than a year. Because little pressure taken off with less overhead. the Newsletter provides Section members the opportunity to offer their comments on important issues, we asked the His prediction for the future described a mixed bag. It’s members of the Executive Committee two questions that likely a very common view: inspired some very interesting commentary. I believe the virtual appearances estab- Here are the two questions: lished during the pandemic will continue during “post pandemic” times. I anticipate • Will the pandemic change how you practice criminal this practice will continue for incarcerated law as we return to a less restrictive environment? defendants because there was a significant • Will the pandemic change the criminal justice system push towards virtual arrangements and in New York going forward? appearances before the pandemic to cut down on travel expenses from the jails As you might expect, some of those who responded to the courthouse and back. I think we as put their own twists on the issues. That, of course, is a law- lawyers have become accustomed to this yer’s prerogative. As we all know, it’s not the question that approach; however, the inherent complica- matters—it’s the answer.

6 NYSBA New York Criminal Law Newsletter | 2021 | Vol. 19 | No. 2 upon completion of the case. This process requires the 18B lawyer to carry the cost of the litigation (time and expense), some- times for several months before getting paid. Is life better? I guess that was the question. . . . The ups and down of the cash flow are facts of life for the private practitioner. The valleys were low and the mountains not so high over the last year-and-a-half. I was lucky to fill the gaps with two different PPP loans, one last spring and the second this January. Those funds are exhausted and I’m hoping for business to pick up as many citizens are still out of work and un- employment relief is dwindling. David M. Cohn is counsel for Legal Initiatives and senior supervising appellate counsel, New York County District Attorney’s Office. David demonstrated how well he learned the lesson that a successful appellate lawyer listens to the court’s questions and offer direct responses: It remains to be seen how criminal ap- pellate practice will change. I, personally, hope for a full return to in-person oral ar- tions associated with virtual appearances guments, as I prefer the courtroom setting persist. For example, there is no opportuni- to remote arguments. E-filing in the Appel- ty to privately discuss issues conveniently late Division has been a positive change, while the proceeding is ongoing. I do find and I hope appellate courts continue to virtual appearances convenient for the move toward universal electronic filing. routine adjournments where no substantial matter is being addressed. I expect that there will be a nationwide shift toward more remote work, virtual After receiving that response, I inquired about the im- meetings, and electronic filing. I hope we pact these changes had on Tucker’s quality of life: can retain the efficiencies of remote and Good question. It’s less stressful with less virtual practice while restoring the in- overhead. However, the pandemic put a person interactions that were the heart and damper on new retainer files because of soul of criminal practice. a combination of the timing of the bail re- Tim Koller, another seasoned prosecutor, the chief as- form laws and court closures. Defendant sistant in the Richmond County District Attorney’s Office, not in custody (bail reform) and the court provided insights from the senior level administrator’s closures put many cases out a few months. perspective: Accordingly, no incentive to hire an attor- ney right away because there’s no immedi- I see the courts really pushing lawyers on ate need. This somewhat leveled off in late both sides for dispositions, being stingy summer, early fall of 2020. Then I noticed with adjournments a calendar control tool, a lull again as we caught up with the back- and holding lawyers’ feet to the fire regard- log and moved into the holiday season. ing deadlines for motions, conferences, etc. (No $$ for lawyers). I also handle a good I think the biggest modification as to the number of 18B cases. Those were at least way we all practice is the use of virtual a consistent source of revenue because the proceedings, to the extent allowed by law. county administration allowed us to sub- As long the defendant has a right to insist mit monthly vouchers instead of waiting on a live proceeding, the system can bene- for the case to conclude. This helped with a fit from incredible time and money savings lack of cash flow from a deficit in retained with the use of virtual proceedings. matters. The county is now going back to the original method of final vouchers

NYSBA New York Criminal Law Newsletter | 2021 | Vol. 19 | No. 2 7 Backlogs in all courts will impact on every As everyone feels safer returning to in-per- aspect of our practices. Delays in trials will son life, I think we will substantially revert cause lawyers to lose witnesses, witnesses’ back to the way things were before COVID recollections will become stale, etc. The use both in our professional associations and of technology, e.g., ZOOM, etc. is another in our court appearances. However, I do efficiency that can be used, even when the think we will continue to see virtual op- Executive Orders sunset, for off-calendar tions presented as an alternative, at least conferences between lawyers, as well as for the foreseeable future. lawyers and the court. Marc Gann, Rick’s partner, is an optimist and, not sur- Tim was hopeful about lawyers changing with the times: prisingly, was forward-looking: Many lawyers who did not really utilize The pandemic restrictions have had a technology pre-pandemic have now come weirdly positive impact on my practice to realize how it came make their commu- in that the virtual court appearances have nications with the court and counsel more made the practice much more efficient and efficient, and instantaneous. productive. No more waiting around in court because cases are scheduled in state Rick Collins, partner at Collins Gann Mccloskey & court as they have been in federal court; Barry PLLC in Nassau County, was able to describe the im- and when waiting in a virtual courtroom, pact on many attorneys on Long Island: I am able to work on other matters. As the I served as president of the Nassau County restrictions ease and we return to more in- Bar Association when the pandemic start- person appearances, I will regret the loss of ed. Suddenly, our 90-year-old landmark efficiency. building was emptied out and we had to Aside from the obvious delays in adjudi- quickly shift our model to virtual meetings cating cases due to the backlog created by and legal education seminars. Most mem- the pandemic, I am hopeful that scheduled bers appreciated the concern for safety and and/or virtual appearances will continue enjoyed the convenience of participating for the reasons stated above. In addition, in bar business from their offices or homes. virtual appearances save on travel time But I sense that most members now long and costs to clients for attorneys who need for the type of interaction that only in- to “appear” in jurisdictions outside of their person contact can provide, and we are office location. shifting to a hybrid model that offers mem- bers the choice between coming back to the David Louis Cohen, of the Law Office of David Louis building or participating remotely. Cohen in Queens, is our new Section Chair. David wrote a response that focused on practical impacts on court appear- Those of us who handle federal criminal ances: matters in courts outside New York State traveled much less through the pandemic. Most of the efficiencies will be a benefit to Video conferencing options made it easy clients who will not have to miss work for to confer with both incarcerated clients a day just to sit and wait for a case to be and those out on bond. Magistrates and called. Also, billable hours will go down as judges generally accommodated video ap- we get more efficient. As long as proceed- pearances for most routine matters, and ings of substances, hearings and trials are I conducted a number of change of plea in person we are ok. The biggest “loss” will hearings, a few sentences, and even two be in arraignments if they continue to be proffers by video. I didn’t fly for over 14 virtual. Having family etc. in courtroom months. My law partners handled a signifi- when making a bail argument is important, cant volume of our local criminal practice and in some cases can make the difference virtually, spending many of their mornings in the amount of bail set. The biggest prob- going from one court to another without lem is going to be how will the enormous ever leaving their desks. The convenience backlog of cases, especially those of incar- is a big selling point, although situations cerated clients be resolved. involving uncertainty or issues of credibil- ity are best handled in person. As a result of his response, I asked about at what cost do we gain these efficiencies? David wrote: Rick is also looking to retain some of the pre-pandemic culture: I believe that the pandemic will change the way that I practice criminal law going

8 NYSBA New York Criminal Law Newsletter | 2021 | Vol. 19 | No. 2 forward. Initially, I believe that there will Leah appreciated the progress that was thrust upon be less personal interaction with clients, us, but, in the end, wrote about the personal touch that so adversaries and colleagues. Virtual appear- many of us miss: ances are here to stay in many preliminary matters such as calendar calls and status As for public defense practice, I am happy conferences. Required live court appear- to return to in-person, less restrictive pro- ances will be less frequent; therefore, I will ceedings. It feels good to regain control not regularly have in-person contact with over arraignments and in communicat- adversaries and the other members of the ing about process with town and village criminal defense bar. justice courts. The biggest change that I have incorporated into T&V court practice On the upside, there will be much more is feeling more comfortable about using use of electronics in the service of motions Pleas by Affidavit for VTL matters, ask- and discovery. I also believe that judges ing for adjournments until I have received will be less likely to schedule needless and reviewed all discovery and discussed calendar appearances. The impact of the it with my clients, and feeling more com- pandemic on jury service is of concern. fortable discussing their cases with them Will prospective jurors from minority com- via Zoom or telephone rather than wait- munities be less likely to appear for service ing until court to meet them in person to as their vaccination rate is lagging behind? discuss everything at the last minute. The The pandemic will change the operational new system makes court calendaring more side of the criminal justice system; how- effective and productive (no more appear ever, the legal side will remain as is. just to adjourn for nothing). Otherwise, I really hate virtual proceedings (and that’s Leah R. Nowotarski is an Assistant Public Defender in probably not the information that you’re the office of the Wyoming County Public Defender. Leah hoping for in your article). has practiced long enough to apply scrutiny to the predic- tions of others: Hillel Hoffman is no longer practicing and as a result he viewed the questions from a different perspective: I don’t know whether you have seen it, but on May 10, the NYS Unified Court System As a retiree I have been spared the eco- sent out the following update: nomic and logistical impact of the pan- demic. The only good thing I could say Chief Judge Janet DiFiore, during her about the pandemic is that it has fostered weekly coronavirus update today, the use of Zoom sessions for many of our said that as the state court system meetings. This has increased attendance moves forward into a “new and bet- dramatically at NYSBA meetings (and the ter normal” many types of virtual same occurred with the District Attorneys’ proceedings and services will become Association) and I hope that it continues “permanent features” of court opera- into the future. It seems highly unneces- tions even after the pandemic sub- sary for our members to incur travel ex- sides. penses for routine meetings when partici- DiFiore did not specify yet what pation can be had by the click of a mouse. types of proceedings would likely be- I’ve known Hilly for more than 20 years and his dedi- come permanent. cation to the criminal justice system is special. He appears “Fifteen months after COVID-19 com- at meetings regularly, so I followed up, and asked if he pelled us to transform court opera- misses the personal interaction. Here’s what he wrote: tions overnight, virtual proceedings I miss the interaction with colleagues are no longer an ‘experiment’ but but our meetings were not well attended have proven to be an effective meth- since so many people began to rely on the od of moving cases closer to resolu- conference call (including people nearby), tion while ensuring that litigants and which was often difficult to navigate. What lawyers can have their matters heard we miss in the personal touch is somewhat in a convenient, timely and cost-effec- made up by the ease with which we can tive manner,” said DiFiore. see and hear each other on the Zoom call. I I guess we soon will find out whether any don’t miss schlepping to Queens on a rainy of those virtual proceedings apply to crimi- night with only a handful of people in at- nal practice. tendance at the meeting.

NYSBA New York Criminal Law Newsletter | 2021 | Vol. 19 | No. 2 9 Cause of Death in Vehicular Homicides By Marc Gann

As a former prosecutor and criminal defense lawyer for Then, tragedy occurred. Approximately 10 minutes 35 years, I have had the opportunity to try all types of crim- after the accident, with traffic at almost a standstill, and inal cases from minor misdemeanors to intentional murder. with at least a half dozen individuals in the roadway And, as lawyers, we strive to make a difference for our including Mr. Ryan and P.O. Olivieri, Francis Belizaire clients every day and in in every area of practice. But we pulled out onto the HOV lane to avoid the traffic and rarely get to be involved in a case that effectively changes accelerated to approximately 40 miles per hour. He was the law. However, People v. James Ryan, 161 A.D. 3d 893 (2d looking to his right at the accident scene and, at the last Dep’t 2018), was such a case for me. second, looked up to see P.O. Olivieri standing in front of him. He hit the officer at 39 miles per hour and killed The concept of superseding or intervening causation him almost instantly. Mr. Belizaire was not charged in was largely unrecognized in criminal cases, though it Officer Olivieri’s death. James Ryan, who was deter- Ryan has always been in civil negligence cases, prior to . mined to have a BAC of .12 %, was charged with hitting In fact, the pattern jury instruction for cause of death and killing Officer Olivieri because he set in motion in criminal cases effectively precluded a jury from con- a chain of events leading to the officer’s death even sidering a superseding or intervening cause of death. though there clearly appeared to be intervening and su- The language of the pattern jury instruction at the time I perseding causes of death. handled this case essentially said that a defendant who sets in motion or continues in motion a chain of events The defense successfully made a motion to dismiss the leading to another’s death is responsible regardless of manslaughter charges based on a lack causation. However, whether the defendant was the actual cause of death; on appeal, the Appellate Division reversed that decision forging a link in the chain of causes is sufficient. and re-instated the manslaughter charges. This jury instruction was created to address cases The case subsequently proceeded to trial. The where a defendant intentionally, or with depraved indiffer- People asked for the standard cause of death instruc- ence, subjected someone to likely death. For instance, the tion, which stated, “a person’s conduct is an actual jury charge addressed a circumstance where a defendant contributory cause of the death of another when the shot the victim but did not kill him; however, when the conduct forged a link in the chain of causes which actu- victim, who was being treated for that gunshot wound died ally brought about the death—in other words, when the due to the malpractice of the treating physician, the defen- conduct set in motion or continued in motion the events dant was criminally responsible for the death because his which ultimately resulted in the death.” Defendant conduct clearly had the foreseeable consequence of death. requested a modification of that charge to include “a Unfortunately, this concept was used much more exten- person’s conduct is not an actual contributory cause of sively and broadly in vehicular cases, particularly People v. the death of another when there is unforeseeable inter- Ryan. vening cause sufficient to break the chain of causation that brings about the death. Thus, if a person’s conduct Ryan In , my client was operating his motor vehicle does not cause the intervening act, but merely furnishes on the eastbound Long Island Expressway (LIE) at ap- the condition or give rise to the occasion by which the proximately 4 a.m. in the area of New Hyde Park Road. death occurs, and the intervening act is not foreseeable, He had a fender bender accident and continued to drive then the person’s conduct does not constitute an actual approximately 900 feet eastbound where his vehicle contributory cause of the death.” After argument, the stopped in the middle lane of the LIE. Mr. Ryan was trial court denied defendant’s requested charge and then rear-ended at a high rate of speed by a third ve- gave the pattern instruction that existed at that time. hicle, causing both vehicles to spin out; when they came Based on that charge, defendant was convicted of kill- to rest, Ryan’s vehicle was perpendicular to the concrete ing Officer Olivieri. divider blocking the HOV and left lanes of the roadway and the other vehicle was blocking the right-hand lane An appeal of this conviction was taken to the Ap- and part of the center lane. Traffic backed up on the pellate Division on a number of grounds, including the LIE and a police officer, Joseph Olivieri, responded and failure to instruct the jury on intervening causation as parked his vehicle on the eastbound shoulder with his requested by defendant. The Appellate Division over- emergency lights activated. Many vehicles had stopped turned Mr. Ryan’s conviction as against the weight of in the roadway and a number of people were walking on the evidence and he could not retried. As a result, the the various lanes of the LIE. A small number of vehicles pattern jury instruction was modified as follows: were rolling through the center lane.

10 NYSBA New York Criminal Law Newsletter | 2021 | Vol. 19 | No. 2 The defendant argues that there was an a lengthy battle for exoneration in Officer Olivier’s death, intervening act between his/her conduct which would not have been necessary had current cause of and the death of (specify); namely (spec- death charge existed at the time. ify what the argued intervening act was). As I noted earlier, attorneys play important roles for In that instance, liability for the death our clients but we rarely have the opportunity to shape the turns upon whether the intervening act law. However, this case demonstrates that we should never is a normal or foreseeable consequence of stop trying. Now, the concept of intervening or supersed- the defendant’s conduct. Thus, where the ing causes has found its way into criminal cases and may acts of a third person intervene between play a significant role in cases going forward. the defendant’s conduct and a person’s injury, the causal connection is not au- tomatically severed. Rather, that other Marc Gann, a former prosecutor, is a senior partner at persons share some responsibility for the Collins Gann McCloskey & Barry PLLC in Mineola, N.Y. death does not absolve the defendant A member of the Section’s Executive Committee, Marc from liability because there may be more has served as the president and been elected director of than one cause of an injury. It is only the Nassau County Bar Association. where the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or inde- pendent of or far removed from the de- fendant’s conduct, that it may break the causal connection. The end result of this case is actually a tragedy for two families. The Olivieri family has no closure since the driver who hit and killed Officer Olivieri was not and can- not be prosecuted now. The Ryan family suffered through

NYSBA New York Criminal Law Newsletter | 2021 | Vol. 19 | No. 2 11 Section Committees and Chairs

Appellate Practice Defense Membership Robert S. Dean Harvey Fishbein Alexandra Rafaelian Ferlise Center for Appellate Litigation [email protected] Brooklyn Defender Services 120 Wall St Fl 28 177 Livingston St Fl 7 Diversity and Inclusion New York, NY 10005 Brooklyn, NY 11201 Alexandra Rafaelian Ferlise [email protected] [email protected] Brooklyn Defender Services Bail Reform 177 Livingston St Fl 7 Natasha Pooran Hillel Joseph Hoffman Brooklyn, NY 11201-5875 [email protected] [email protected] [email protected] Nominating CLE Natasha Pooran Norman P. Effman Tucker C. Stanclift [email protected] Wyoming County Public Defender Stanclift Law PLL 18 Linwood Ave Ethics and Professional CPO Box 4595 Warsaw, NY 14569 Responsibility 704 Upper Glen St [email protected] Lawrence S. Goldman Queensbury, NY 12804 [email protected] Prosecution [email protected] John M. Ryan Judiciary Conviction Integrity Units 12501 Queens Blvd Hon. Michael R. Sonberg Joel B. Rudin Kew Gardens, NY 11415 100 Centre St. Law Offices of Joel B. Rudin, P.C [email protected] New York, NY 10013 Tower [email protected] Publications 152 West , 8th Floor Jay Shapiro New York, NY 10019 Judiciary White and Williams LLP [email protected] Hon. Cheryl E. Chambers NYS Appellate Division, 2nd Dept Correctional System 7 Times Square 45 Monroe Pl Norman P. Effman New York, NY 10036 Brooklyn, NY 11201 Wyoming County Public Defender [email protected] [email protected] 18 Linwood Ave Sealing Warsaw, NY 14569 Legal Representation of Indigents Richard D. Collins [email protected] Alexandra Rafaelian Ferlise Collins Gann McCloskey & Barry Brooklyn Defender Services Correctional System 138 Mineola Blvd 177 Livingston St Fl 7 Leah Rene Nowotarski Mineola, NY 11501 Brooklyn, NY 11201 Wyoming County Public Defender [email protected] [email protected] 18 Linwood Ave Sealing Warsaw, NY 14569 Legislation Jay Shapiro [email protected] Andrew Kossover White and Williams LLP Kossover Law Offices LLP Times Square Tower Counsel at First Appearance 40 Main St. 7 Times Square (CAFA) New Paltz, NY 12561 New York, NY 10036 Leah Rene Nowotarski [email protected] [email protected] Wyoming County Public Defender 18 Linwood Ave Legislation Sentencing and Sentencing Warsaw, NY 14569 Hillel Joseph Hoffman Alternatives [email protected] [email protected] Robert J. Masters [email protected]

12 NYSBA New York Criminal Law Newsletter | 2021 | Vol. 19 | No. 2 Sex Offender Registration Act Town and Village Justice Court White Collar Crime (SORA) Leah Rene Nowotarski Jean T. Walsh Robert S. Dean Wyoming County Public Defender Kings County Criminal Court Center for Appellate Litigation 18 Linwood Ave Concourse Plaza - 198 E 161st 120 Wall St Fl 28 Warsaw, NY 14569 Bronx, NY 10451 New York, NY 10005 [email protected] [email protected] [email protected] Town and Village Report Wrongful Convictions Sponsorship Implementation Barry Kamins David Louis Cohen Leah Rene Nowotarski 546 Fifth Ave, Lbby 1 #6 Law Office of David L. Cohen Wyoming County Public Defender New York, NY 10036 12510 Queens Blvd Ste 12 18 Linwood Ave [email protected] Kew Gardens, NY 11415 Warsaw, NY 14569 Young Lawyers [email protected] [email protected] Andrea Luz Nieves Town and Village Justice Court Vehicle and Traffic Law New York County Defender Clare J. Degnan Jonathan David Cohn Services The Legal Aid Society of Gerstenzang, Sills, Cohn & 100 William St Fl 20 Westchester Co Gerstenzang New York, NY 10038 150 Grand St. Ste 100 210 Great Oaks Blvd [email protected] White Plains, NY 10601 Albany, NY 12203 [email protected] [email protected]

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NYSBA New York Criminal Law Newsletter | 2021 | Vol. 19 | No. 2 13 NEW YORK STATE BAR ASSOCIATION NON PROFIT ORG. CRIMINAL JUSTICE SECTION U.S. POSTAGE PAID One Elk Street, Albany, New York 12207-1002 ALBANY, N.Y. PERMIT NO. 155

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