February 2010 Estates Criminal Law Cases Update - 2009
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Queenswww.qcba.org Bar Bulletin Queens County Bar Association / 90-35 One Hundred Forty Eighth Street, Jamaica, NY 11435 / (718) 291-4500 Vol. 73 / No. 5 / February 2010 Estates Criminal Law Cases Update - 2009 BY: ILENE J. REICHMAN, ESQ. determined that the evidence against him was of “doubtful BY DAVID N. ADLER quality” because the witnesses were drug addicts with pend- Over the past year, the New York Court of Appeals ing cases who were afraid to assist in the investigation due The year in Trusts and addressed a wide array of issues in the area of criminal law to Decker’s reputation for intimidating and threatening wit- Estates is highlighted by a and procedure. This article will review and highlight sev- nesses. new Power of Attorney eral cases that will likely be of interest to criminal practi- In 2002, the police reopened the case and attempted to Law, an anticipated freeze tioners. obtain additional evidence through the use of modern sci- of estate tax levels, and the In People v. Riley Williams, 12 N.Y.3d 726 (decided entific techniques including DNA testing. Although no fur- designation of the Queens February 13, 2009), the Court reviewed the trial judge’s rul- ther forensic evidence was obtained through those tests, the County Surrogate’s Court ing pursuant to People v. Sandoval, 34 N.Y.2d 371 (1974) prosecution decided to charge Decker after determining that as a pilot program for elec- which permitted the prosecutor to question the defendant the witnesses had overcome their drug addictions and were tronic filing. David N. Adler about one prior felony conviction and 45 prior misde- now willing to testify. The defense moved to dismiss the meanor convictions in the event he elected to testify on his indictment based on the lengthy pre-indictment delay. The POWER OF ATTORNEY own behalf. While the Court noted that “the trial court trial court denied the motion, finding that the delay did not A new Power of Attorney Law went into effect might have been more discriminating” in its ruling, it deny Decker his right to due process of law. In upholding on September 1, 2009 (General Obligations Law upheld the defendant’s conviction on the basis that the rul- the conviction, the Court of Appeals found that under the Section 5-1501). Any and all Powers of Attorney ing fell within the trial court’s broad discretion. Of course, leading case, People v. Taranovich, 37 N.Y.2d 442 (1975), executed prior to that date shall remain valid. the Court left unanswered the question of how many prior the 15-year delay in commencing the prosecution, while Any Powers of Attorney executed after that date convictions it would take before it determined that the trial substantial, caused no serious prejudice to Decker. must conform to the new law. For a detailed his- court had abused its discretion in permitting impeachment Moreover, since there was no indication that the prosecu- tory and analysis of the law, kindly refer to the of a defendant who testifies on his own behalf. tion had acted in bad faith, and since the jury was made article entitled “Guardian and Elder Law: New In People v. Scott Weaver, 12 N.Y.3d 433 (decided May aware of the witnesses’ past conduct and were subject to Power of Attorney”, by John Dietz, as contained 12, 2009), the Court decided that the use of a GPS (global cross-examination regarding their history of drug use, there in the May, 2009 issue of the Queens Bar positioning system) by the police without first obtaining a was no violation of the defendant’s due process right to a Bulletin. This update shall attempt to briefly warrant violated constitutional protections provided under prompt prosecution. reflect the major amendments contained in the the New York State Constitution against unreasonable In People v. Victor Gomez, 13 N.Y.3d 6 (decided June 30, new legislation, as represented on the power searches and seizures. In Weaver, the police surreptitious- 2009), the Court clarified the rules pertaining to inventory itself. ly placed a GPS tracking device inside the bumper of the searches of vehicles by the police. In Gomez, the police The overall subjects upon which authority may defendant’s van. For the next 65 days, the position of the observed the defendant driving his car in an erratic manner. be granted to act are similar, and the mode of des- vehicle was continuously monitored. Eventually, the defen- After pulling the defendant over, the officers discovered that ignation of an attorney in fact is similar. Yet, 3 dant was charged with two separate commercial burglaries: his driver’s license was suspended. The defendant was major changes clearly differentiate the new form. the first occurring at a meat market; the second occurring at arrested and his car impounded. Officers then searched the Firstly, the agent is also required to execute the a K-Mart. At trial, the prosecution introduced evidence car’s interior but found nothing. When the officers searched document. There further exists language specifi- obtained from the GPS device that the defendant’s van had the trunk, they discovered a paper bag containing cocaine, a cally directed at the agent explaining the special traversed the K-Mart parking lot at the rate of six miles per plastic bag with white residue, an electric scale and a small nature of the principal/agent relationship. This hour on the evening that store was burglarized. The jury manila envelope containing red pills. While driving the reflects a tangible attempt to alert the agent to his acquitted the defendant of the burglary of the meat market defendant’s car to the police station, an officer then discov- fiduciary obligation on behalf of the principal. but convicted him of the burglary of the K-Mart. ered 45 plastic bags in the driver’s side door panel. Secondly, the principal may designate a “mon- In a 4-3 decision authored by Chief Judge Lippman, the In upholding the Appellate Division’s decision reversing itor”, to oversee and review any and all transac- Court acknowledged that a citizen’s expectation of privacy the defendant’s conviction and suppressing the evidence tions performed by the agent. This provides a was diminished when operating a car on a public thorough- seized, the Court of Appeals held that the People had failed built in system of accountability on the operation fare. Nevertheless, the Court held that the massive and to meet their burden of establishing a valid inventory of any Power of Attorney. Third parties are also apparently limitless invasion of privacy entailed by the pro- search. While recognizing that the NYPD has a standard- directed to respect the monitor status with respect longed use of a GPS device was inconsistent with even the ized, written protocol governing inventory searches in its to furnishing records. slightest reasonable expectation of privacy and that in the Patrol Guide, the Court found that the People offered no Finally, the issue of gifting and executing other absence of a warrant, the use of such a device by the police evidence at the suppression hearing to establish that the intervivos transfers is specifically addressed. In constituted an illegal search, and ordered suppression of the police officers conducted their search in accordance with the event that a principal wishes to grant his agent evidence obtained from the GPS device. the protocol, or that they possessed justification to open and the authority to make gifts or transfers of any In People v. Wayne Decker, 13 N.Y.3d 12 (decided June search the trunk of the car in question. In addition, the nature, he must both note and clarify that on the 9, 2009), the Court considered a motion to dismiss a second Court found that the police officer failed to prepare a mean- basic Power of Attorney form (Section h), and on degree murder charge on the grounds that the prosecution ingful inventory of the contents of the defendant’s car since a separate Statutory Major Gifts Rider. This rider had violated the defendant’s right to due process by reason the officer failed to record the presence of any items in the incorporates all manner of gifting and transfers to of a 15-year pre-indictment delay in commencing the pros- car, other than the items of contraband that were seized. be elected by the principal, to wit: authority to ecution. In this case, the victim was found beaten to death In People v. Quentin Abney and a companion case, gift to relatives amounts up to the annual gift tax in her apartment in December, 1987. Decker was the only __________________________________Continued On Page 12 exclusion amount; authority to gift or transfer any suspect at the time. However, at that time, the prosecution amount to any individuals as may be specifically ________________________Continued On Page 6 INSIDE THIS ISSUE Criminal Law Cases..........................1 Corrections .......................................5 Estates Update .................................1 Restaurant Review ...........................6 President’s Message ........................3 Speaker’s Bureau Report .................6 Saturday Morning .............................3 Photo Corner: Holiday Party ............7 Profile of Hon. Leslie Purificacion.................4 Marital Quiz.......................................8 Holiday Party a Culture Corner ..................................9 Huge Success ................................5 Scholarship Fund Request .............10 Of Interest ........................................5 Books at the Bar.............................11 2 THE QUEENS BAR BULLETIN – FEBRUARY 2010 THE DOCKET . EDITOR’S MESSAGE being the official notice of the meetings and programs listed below, which, unless otherwise noted, will be held at the Bar Association Building, 90-35 148th St., Jamaica, New York. More information and any changes will be made available to members via written notice and brochures. Questions? Please call (718) 291-4500.