Assault in the Third Degree...cont

April 7, 2015,


4.Also since McDonald, federal Circuit Courts of Appeals have rejected Second Amendment challenges to federal laws that prohibit certain classes of people from lawfully owning firearms and that prohibit people from owning certain kinds of weapon. United States v Yancey, 621 F3d 681 (7th Cir 2010) (per curiam) (rejecting Second Amendment challenge to 18 USC § 922(g)(3), which makes it a criminal felony for one who is an unlawful user of, or addicted to, any controlled substance to possess a gun); United States v Seay, 620 F3d 919 (8th Cir 2010), pet. for cert. filed, Dec. 16, 2010 (same) (see also 620 F3d at 924-25, collecting cases); United States v Skoien, 614 F3d 638 (7th Cir 2010) (en banc), pet. for cert. filed, Oct. 12, 2010 (rejecting Second Amendment challenge to 18 USC § 922(g)(9), which makes it a felony for a person convicted of a misdemeanor crime of domestic violence to carry firearms in or affecting interstate commerce); United States v Marzzarella, 614 F3d 85 (3rd Cir 2010), pet. for cert. filed, Nov 23, 2010 (rejecting Second Amendment challenge to 18 USC § 922(k), which makes it a felony to possess a firearm with an obliterated serial number; see also id. at 90-91, n. 5 [collecting cases]); United States v White, 593 F3d 1199 (11th Cir 2010) (holding that Heller does not cast doubt on constitutionality of 18 USC § 922[g][9]). Because of the explosion of Second Amendment litigation post-Heller, and because cases analyzing Second Amendment challenges in various contexts are being decided with such frequency, see, e.g., United States v Oppedisano, 2010 WL 4961663 48 (ED NY, decided Nov 30, 2010) (rejecting defendant's motion to introduce otherwise irrelevant evidence to argue that 18 USC § 922(g)(1), prohibiting possession of ammunition as a convicted felon, is unconstitutional as applied to him in light of Heller); People v Foster, — NYS 2d —, 2010 WL 5187702, 2010 NY Slip Op. 20525 (Crim Ct, Kings County, decided Dec. 15, 2010), this Court does not attempt to set forth an exhaustive list of all federal and state cases raising challenges to such categorical bans.

5.This Court is aware that, generally, an as-applied constitutional challenge should be decided before addressing a facial challenge. "Because facial challenges to statutes are generally disfavored [citation omitted] and legislative enactments carry a strong presumption of constitutionality [citation omitted], a court's task when presented with both a facial and as-applied argument is first to decide whether the assailed statute is impermissibly vague as applied to the defendant [citation omitted]. If it is not and the statute provides the defendant with adequate notice and the police with clear criteria, that is the end of the matter." People v Stuart, 100 NY2d 412, 422 (2003). Here, however, the Court cannot proceed in the usual fashion, because defendant's as-applied challenge is entirely circular: the Penal Law and Administrative Code are unconstitutional as applied to him, because they are unconstitutional burdens on his Second Amendment rights. Moreover, facial challenges "outside of the First Amendment context" may be permissible "in the presence of a constitutionally-protected right," Dickerson v Napolitano, 604 F3d 732, 744 (2d Cir 2010) (discussing City of Chicago v Morales, 527 US 41 [1999]). Therefore, this Court begins with the facial challenges to the statutes. See People v Abaof, 187 Misc 2d 173, 185 (Crim Ct, New York County, 2001) (addressing defendants' facial challenge to PL § 240.35[4] before as-applied challenge; each as-applied claim was "based on the premise that the bandanas the defendants were wearing are entitled to protection under the First Amendment.").

6.New York City's premise residence licensing requirements "materially mirror those set forth in the Penal Law." City's Amicus Br. at 7.

7.The difference in the 2009 figures cited in the present case and in Foster is irrelevant to the Court's analysis.

8.Citing Bach v Pataki, 289 F Supp 2d 217, 224-226 (ND NY 2003), aff'd, 408 F3d 75 (2d Cir 2005), cert. denied, 546 US 1174 (2006), defendant argues that he has standing to challenge the licensing requirements "as a criminal defendant aggrieved by a prosecution that is founded upon a vague and unconstitutional licensing requirement....The general rule that requires civil plaintiffs to first submit to a challenged policy or licensing requirement is inapplicable to a criminal defendant charged with possessing an unlicensed gun" (Wasserman Br. at 3). Unlike defendant, Bach could not obtain a New York firearms license because he neither lived nor worked in New York; thus, it would have been futile for him to have applied for a license (289 F Supp 2d at 223). The People repeatedly emphasize that defendant never applied for a firearms license or showed that it would have been futile for him to do so (Peo's Br. at 8, 11, 13, 16), but never argue that he lacks standing to raise these claims.

9.Whether the rational basis test that is applied in Article 78 proceedings must be changed in light of Heller and McDonald (see Haidas Br. at 11-12; Broadus v City of New York Police Dept, 62 AD3d 527 [1st Dept 2009]; Moreno v Cacace, 61 AD3d 977 [2d Dept 2009]), should be decided in the context of an appeal from a denial of a license, not here, where defendant never applied for a license and never resorted to an Article 78 proceeding.

10.Indeed, information in the Court's file indicates that defendant was employed at the time of his arrest.

11.See esp. Peo's Br. at 8, n. 6 ("New York distinguishes between air guns and firearms. Penal Law § 265 does not mention air guns in its definition of firearms. Nor are air guns included in the Ad. Code § 10-301[a], the section that regulates pistols and revolvers.").

--------

Assault in the Third Degree...cont

April 6, 2015,

Defendant cites no facts from anywhere in the United States outside New York City to establish that American citizens overwhelmingly chose air guns for "the core lawful purpose of self-
Page 10

defense" (554 US at 630), rather than for sports and recreation. Instead, he resorts to theory and speculation: the City's police expert "is no authority on the psychological deterrent effect of an air gun when displayed as a defensive weapon;" "this inexpensive, easy to operate, and essentially non-lethal weapon has much to commend it as a household weapon for the average civilian;" "[t]he City should ponder whether its categorical opposition to these non-lethal weapons is creating an unnecessary conflict between the Second Amendment and the Sixth Commandment. Pacifists, too, have Second Amendment rights. The city should consider licensing airguns for the home" (Wasserman Br. at 7).

Nor do criminal defendant's citations to the Journals of the Lewis and Clark Expedition of 1803-06 to establish that air guns were "an integral part of the American arsenal at the time of the Framers" (Wasserman Br. at 5) carry the day. All these historical references illustrate is that Capt. Merriwether Lewis used an air rifle "for hunting and to astonish" native Americans (id. at 6). Conspicuously missing from the excerpts that defendant selected is any reference to the use of air guns in the early 19th century for self-defense.

Accordingly, this Court holds that AC § 10-131(b) does not implicate the Second Amendment right to keep and bear arms. As such, the statute is presumptively valid and need only pass the rational basis test to withstand constitutional scrutiny. The People and the City advance several reasons why the air pistol ban is rationally related to legitimate state interests: air pistols cause thousands of injuries per year in the United States; like imitation firearms, they could be mistaken for firearms by law enforcement officers; and some do not have serial numbers, which hampers criminal investigations when they are recovered during such investigations (Peo's Br. at 18; City's Amicus Br. at 12, n. 10). These reasons suffice to justify the statute.
Defendant's As-Applied Challenges

Defendant devotes just two paragraphs in support of his claims that PL § 265.01(1) and AC § 10-131(b) are unconstitutional as applied to him. But his arguments derive exclusively from his claims that the statutes are facially unconstitutional and from the fact that he has no criminal record. In any event, both statutes give defendant clear notice of what is prohibited — namely, possession of an unlicensed firearm and possession of an air pistol — and explicit standards to the police for applying the statutes (People v Stuart, 100 NY2d at 422). Defendant has not established why the Penal Law and Administrative Code were unconstitutionally applied to him.

Conclusion Regarding Defendant's Constitutional Claims

For these reasons, defendant's motion to dismiss the counts charging violations of PL § 265.01(1) and AC § 10-131(b) is denied in all respects.
Defendant's Motion to Suppress or Preclude Evidence
Defendant's motion for a Huntley/Mapp/Dunaway/Payton hearing is granted.
Defendant's motion to preclude impeachment evidence, People v Sandoval 34 NY2d 371 (1974), and evidence-in-chief of prior bad acts, People v Ventimiglia 52 NY2d 350 (1981), is referred to the trial court for hearings immediately prior to trial. The People are ordered to comply with their disclosure obligations pursuant to CPL § 240.43 if they seek to introduce any such evidence.

Defendant requests a bill of particulars and discovery, as well as an order granting the same relief, or, in the alternative, preclusion of evidence. It appears from the People's response and the court file that the People still have not responded to defendant's bill and demand. Accordingly,

Page 11
defendant's motion to compel discovery is granted to the extent that the People are ordered to respond to defendant's bill and demand within seven days of the date of this order.

Defendant's application for an extension of time to file additional motions is denied, subject to the provisions of CPL § 255.20(3) regarding due diligence and good cause.
This opinion constitutes the decision and order of this Court.
Dated: Bronx, New York
January 13, 2011
_______________________________
MIRIAM R. BEST
Acting Justice of the Supreme Court

--------
Notes:
1. Pursuant to Executive Law § 71, defendant served a copy of his motion on the New York State Attorney General (Haidas Br. at 17). By letter to the Clerk of this Court dated September 9, 2010, the Attorney General declined to move to intervene pursuant to CPLR § 1012(b).
2.The McDonald plurality held that the Second Amendment is incorporated through the Due Process Clause, 130 S Ct at 3030-31, while Justice Thomas, concurring in part and concurring in the assault judgment, would hold that the Second Amendment right is a privilege of American citizenship that applies to the states through the Privileges and Immunities Clause. 130 S Ct at 3058-88.

3.See also 554 US at 595 (Second Amendment right is not unlimited; "we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose."); 554 US at 625 ("We therefore read [United States v] Miller [, 307 US 174 (1939),] to say only that the Second Amendment does not protect those weapon not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right..."); 554 US at 632 (nothing in the Court's analysis "suggest[s] the invalidity of laws regulating the storage of firearms to prevent accidents.").


To Be Cont...

Assault in the Third Degree...cont

April 5, 2015,


Defendant cites no case for his proposition that New York's firearms licensing scheme is unconstitutional because all applicants, even the indigent, must pay for the extensive background checks that are required before licenses are issued. Nor does he argue that the fees are unrelated to the costs of conducting the background checks. This case is simply unsuited to deciding the question of whether the application fees must be changed in light of Heller and McDonald, because defendant does not claim that the fees prevented him from applying for a license.10
Page 8

Finally, defendant has not demonstrated that the firearms licensing regulations are unconstitutional under the intermediate scrutiny test, which "the majority of courts to have considered this issue" have held "is the most appropriate standard of review to apply to" firearms regulations. Heller II, 698 F Supp 2d at 188. "A law survives intermediate scrutiny if it substantially related to an important governmental interest. Clark v Jeter, 486 US 456, 461 (1988)." Heller II, 698 F Supp 2d at 186, n. 7. The People assert that the regulations "further the important goal of public safety" (Peo's Br. at 14). Promoting public safety is a "well-established goal" (Heller II, 698 F Supp 2d at 191; see also Schall v Martin, 467 US 253, 264 [1984] ["The legitimate and compelling state interest' in protecting the community from crime cannot be doubted. (Citation omitted.)"]; Bach v Pataki, 408 F3d at 87 [New York has an "interest in monitoring gun licensees"] and 408 F3d at 91 ["(t)he State has a substantial and legitimate interest... in insuring the safety of the general public from individuals who, by their conduct, have shown themselves to be lacking the essential temperament or character which should be present in one entrusted with a dangerous instrument" [quoting In re Pelose, 5,3 AD2d 645 (2d Dept 1976)]). As the Heller II court did, this Criminal Court concludes that New York's licensing scheme is substantially related to this important governmental interest.

NYC Adminstrative Code § 10-131(b)

Defendant also argues that New York City's ban on the possession of air pistols, AC § 10-131(b), violates the Second Amendment. On this issue, the parties disagree sharply on what air pistols are and on what Heller means. The People and the City both argue that air pistols are not firearms, which were the focus of the analysis and holding in Heller.11 Defendant argues that the Court's focus in Heller was handguns. While he appears to concede in his reply brief that air pistols are not firearms, he claims that they are "arms" as well as handguns that simply work differently from hand-held firearms. Thus, he argues, air pistols are entitled to Second Amendment protection and the City's outright ban is unconstitutional.

This Court begins, as Heller did, with the meaning of the word "arms" and of the phrase "bear arms." According to Heller, "[t]he 18th-century meaning [of "arms"] is no different from the meaning today. The 1773 edition of Samuel Johnson's dictionary defined arms' as weapons of offense, or armour of defense.' [Citation omitted.] Timothy Cunningham's important 1771 legal dictionary defined arms' as any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.' [Citations omitted.]." 554 US at 581. As for the phrase "bear arms," the Court adopted Justice Ginsburg's definition in Muscarello v United States, 524 US 125, 143 (1998), which it said "accurately captured the natural meaning of bear arms, '" that is," wear, bear or carry... upon the person or in the clothing or in a pocket, for the purpose... of being armed and ready for offensive or defensive action in a case of conflict with another person.'"

Page 9
554 US at 584.

With these meanings in mind, and based on the information provided by the parties about how air pistols operate and how air pistol manufacturers intend them to be used, and not used, this Court must conclude that air pistols are not "arms." The manufacturer of the air pistol that defendant is charged with possessing includes a disclaimer at the bottom of its Internet web page recognizing that air pistols are not firearms: "Do Not Brandish Or Display Your Airgun In Public. It May Confuse People And It May Be A Crime. Police And Others May Think An Airgun Is A Firearm" (Peo's Br. at 17, quoting Gamo air pistols and quality airgun products, http: //www.gamousa.com/category.aspx?category=pistols & catID=2 [last visited by the Court on Jan. 10, 2011]). The manufacturer's web page also states that it designs air pistols and airgun ammunition "for small game hunting and pest control" and that its products are "used daily by hunters and outdoor enthusiasts" (Peo's Br. at 20, quoting Gamo Adult Precision Airguns, http: //www.gamousa.com [last visited by the Court on Jan. 10, 2011). In stark contrast, firearms manufacturers such as Smith and Wesson and the Italian company that makes the Beretta line of handguns "make it clear that their products are intended to be effective in self-defense scenarios" (Peo's Br. at 20) (See, e.g. http: //www.smith-wesson.com/webapp/wcs/stores/servlet/Category4_ 750001_750051_759152_-1_759151_759159_image, picturing "The New Home Defense Kit" SD9 & SD40, also described as "Homeowner's Insurance" [last visited by the Court on Jan. 12, 2011]).

Defendant does not dispute these facts. But while he concedes differences in both the operation and lethality of air pistols versus hand-held firearms — the former use air to propel a BB or pellet, while the latter use gunpowder to expel a bullet — he urges that air pistols fit squarely within Heller's rationale:

There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police.

554 US at 629. Defendant claims that "[n]othing in the foregoing passage suggests a limitation to hand-held weapons that employ gun powder rather than compressed air" (Wasserman Br. at 4).

Defendant's argument, however, overlooks crucial facts. The statutes at issue in both Heller, 554 US at 574-75, and McDonald, 130 S Ct at 3026, banned possession and registration of firearms, and the Court in Heller emphasized that handguns are "an entire class of arms' that is overwhelmingly chosen by American society for that lawful purpose [of self-defense]," 554 US at 628. Thus, "banning from the home the most preferred firearm in the nation to keep' and use for protection of one's home and family, ' [Parker v District of Columbia,] 478 F3d [370] at 400 [DC Cir 2007], would fail constitutional muster." 554 US at 628-29. See also 554 US at 629 ("It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms [i.e., long guns] is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon.").


To Be Cont...

Penal Law § 215.50 (3)

April 5, 2015,

"Superior court" is defined as the Supreme Court or a County Court (see CPL 10.10 [2]). The County Court is a court of limited jurisdiction and may act only as provided by the New York Constitution or by act of the Legislature within the limitations of the Constitution (see NY Const, art VI, § 11; Judiciary Law § 190; Matter of Russell v Clute, 222 AD2d 980 [3d Dept 1995]; People ex rel. Dold v Martin, 284 App Div 127 [4th Dept 1954]).

In contrast, article VI, § 7 of the New York Constitution accords the Supreme Court general original jurisdiction in law and equity (see Judiciary Law § 140-b). The Court of Appeals has consistently viewed the Supreme Court as "a court of original, unlimited and unqualified jurisdiction" (Kagen v Kagen, 21 NY2d 532, 537 [1968]). "That jurisdiction includes all cases of every description in law and equity, from the most important and complicated to the most simple and insignificant" (Nestor v McDowell, 81 NY2d 410, 415 [1993], quoting Maresca v Cuomo, 64 NY2d 242 [1984]; De Hart v Hatch, 3 Hun 375, 380), and includes any new classes of actions or proceedings that the Legislature may create (see NY Const, art VI, § 7 [b]; Kagen v 193 Misc.2d 435]
Kagen, 21 NY2d 532, supra). The Supreme Court "is competent to entertain all causes of action unless its jurisdiction has been specifically proscribed" (Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 166 [1967]). In exercising its power to enact laws, the Legislature is precluded from eroding the power accorded to the Supreme Court by article VI of the New York Constitution (see Matter of Malloy, 278 NY 429 [1938]). Any attempt by the Legislature to abridge, limit or qualify the broad jurisdiction of the Supreme Court is unconstitutional and void (see Busch Jewelry Co. v United Retail Empls. Union, 281 NY 150, 156 [1939]; Matter of Malloy, 278 NY 429, supra).

In conjunction with its unlimited jurisdiction, the Supreme Court is vested with the broad power to transfer cases to itself. Article VI, § 19 (a) of the New York Constitution provides in relevant part: "As may be provided by law, the supreme court may transfer to itself any action or proceeding originated or pending in another court within the judicial department other than the court of claims upon a finding that such a transfer will promote the administration of justice." If the drafters of the Constitution had intended to authorize the Legislature to limit the broad and unqualified jurisdiction granted to the Supreme Court, they would have done so in unambiguous language as they did in prohibiting the transfer of cases from the Court of Claims.

Moreover, the well established rule in New York is that constitutional provisions are presumptively self-executing (see Brown v State of New York, 89 NY2d 172, 186 [1996]). The use of the phrase "as may be provided by law" is not restrictive and suggests that the Supreme Court possesses the self-executing authority to remove cases to itself (see People v Levandowski, 190 Misc 2d 738 [Sup Ct, Rensselaer County 2002]). This is in contrast to the Constitution's use of the more restrictive phrase "in the manner to be prescribed by law" in connection with the waiver of trial by jury in civil actions (NY Const, art I, § 2) which suggests that implementing legislation would be required in that context (see People v Carroll, 3 NY2d 686 [1958]). Thus, it is concluded that the phrase "as may be provided by law" cannot be read as authorizing the Legislature to limit the jurisdiction accorded the Supreme Court by the Constitution.

Sections 10.20, 10.30 and 210.05 of the Criminal Procedure Law have the effect of limiting the Supreme Court's ability to remove to itself and preside over cases proceeding on local criminal court accusatory instruments. In People v Trabazo [193 Misc.2d 436]

(180 Misc 2d 961 [Crim Ct, Queens County 1999]), it was held that these limitations on superior courts were sound procedural mechanisms. This court respectfully disagrees. To empower the Supreme Court to transfer to itself "any action or proceeding originated or pending in another court within the judicial department" (NY Const, art VI, § 19 [a]) and to suggest that it does not possess the inherent procedural authority to accomplish that mandate would contravene the mandate of the New York State Constitution. Indeed, if one were to interpret the Criminal Procedure Law as requiring an indictment as a condition precedent to the Supreme Court's transfer to itself of a misdemeanor or petty offense, it would, in effect, divest the Supreme Court of jurisdiction over these matters and empower the local district attorney to determine which matters could be heard in the Supreme Court.

Moreover, it is noted that the Chief Administrative Judge of New York State, pursuant to the delegation of power authorized by article VI, § 30 of the NY Constitution and implemented in Judiciary Law § 212 (2) (d), regulates the practice and procedure of the courts. The Chief Administrative Judge is specifically authorized to create special categories of actions and proceedings (see Uniform Rules for Trial Cts [22 NYCRR] § 202.3 [c] [2]), and may authorize the transfer of any action or proceeding and any matter relating to an action or proceeding from one judge to another in accordance with the needs of the court (see Uniform Rules for Trial Cts [22 NYCRR] § 202.3 [c] [5]). The rules and regulations of the Chief Administrative Judge have the force and effect of law (see Judiciary Law § 212 [2] [d]).

Pursuant to this delegated authority, Chief Administrative Judge Jonathan Lippman established an Integrated Domestic Violence Part in Suffolk County with the specific authority to transfer cases pending in a local criminal court to itself (see Uniform Rules for Trial Cts [22 NYCRR] § 202.3 [c] [5]). Thus, the Chief Administrative Judge has established a procedure by which the Supreme Court in Suffolk County may transfer cases to itself as contemplated by article VI, § 19 (a) of the NY Constitution.

Suffolk County's new IDV Part, the fourth to be established in New York State, is a response to the need for a single court to adjudicate all the matters which might bring a family into the court system when the underlying issue is domestic violence. A goal of the part is to promote informed decision-making as well as efficient case management. If the procedural [193 Misc.2d 437]limitations set forth in CPL 10.20, 10.30 and 210.05 were read as precluding these IDV courts from transferring to themselves misdemeanors and petty offenses pending in the local criminal courts, the objectives of the IDV courts established in Suffolk, Westchester, Rensselaer and Bronx Counties would be frustrated.

Although, any provision of the Criminal Procedure Law which has the effect of limiting the Supreme Court's broad jurisdiction is arguably unconstitutional, it is well settled that issues of constitutionality should not be reached unnecessarily (see Comiskey v Arlen, 43 NY2d 696 [1977]; Peters v New York City Hous. Auth., 307 NY 519 [1954]). Accordingly, given that the Chief Administrative Judge created the IDV Part under authority granted by the Legislature and that the Supreme Court possesses the constitutional jurisdiction to accomplish the objectives of the IDV Part, it is concluded that the procedural provisions of the Criminal Procedure Law which limit a superior court's trial jurisdiction over misdemeanors and petty offenses should not be read as applying to the IDV Part.

For the foregoing reasons, the motion to dismiss is denied.

CPL §§ 330.30, 330.40 and 330.50...cont

April 5, 2015,

In this case the Court's Sandoval ruling properly balanced the probative value of the defendant's prior convictions against any potential for undue prejudice. The court permitted the People to cross-examine the defendant fully regarding the existence and underlying facts of only his most recent conviction, the 1999 conviction for criminal sale of a controlled substance in the third degree, insofar as this crime was a serious recent felony conviction and it bore no similarity to the case at bar. As to three of the defendant's remaining convictions, the Court very reasonably ordered a Sandoval compromise. Such a compromise, properly balances the probative value of the defendant's prior convictions against potential prejudice by only permitting the People to inquire about whether a conviction was a misdemeanor or felony, precluding any inquiry about the nature of the offense or any of the underlying details. See People v. Long, 269 AD2d 694 (2000), lv. denied 94 NY2d 950 (2000). As to all of the defendant's numerous remaining convictions both in this state and out-of-state, this Court precluded any inquiry whatsoever.

Lastly, the Court's ruling allowing inquiry into the
defendant's use of aliases is clearly proper. "Manifestly, a suspect's use of a false name or other inaccurate pedigree information is an indication of dishonesty that goes to the very heart of the question of that individual's testimonial credibility... Common sense suggests that individuals who give false information in such situations are usually motivated by a desire to gain some unwarranted benefit or to avoid some deserved penalty or liability..." People v. Walker, 83 NY2d 455, 461-462 (1994).

It is clear from all the above that this Criminal Court exercised appropriate discretion in its Sandoval ruling. Defense counsel's claim that this Court abused its discretion in it's Sandoval ruling is without merit.

THE JURY'S VERDICT

The defendant's contention that the jury's verdict was against the weight of the evidence is not the proper subject of a CPL § 330.30 motion such as the defendant made before the court.

CPL § 470.15 (5) in dealing with the scope of review by intermediate appellate courts, states in pertinent part:

"The kinds of determinations of reversal or modification deemed to be on the facts include, but are not limited to, a determination that a verdict of conviction resulting in a judgement was, in whole or in part, against the weight of the evidence".

A motion to set aside a verdict as against the weight of the evidence is only proper on an appeal to a higher court after a judgement of conviction, not to the state court that heard the case. See People v. Alam, 180 AD2d 689 (1992). The Appellate Division has the exclusive authority to review the weight of the evidence in criminal cases. See People v. Bleakley,69 NY2d 490 (1989).

It is this Court's obligation to determine whether or not legally sufficient evidence was presented to establish defendant's guilt beyond a reasonable doubt. In determining the legal sufficiency of the evidence this Court"... must determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial". People v. Bleakly, supra at p495. The applicable standard of review for the trial court is to view the evidence in a light most favorable to the People. People v. Alam, supra. "Resolution of issues of credibility is primarily and appropriately determined by the jurors, who saw and heard the witness".

People v. Phillips, 11 AD3d 406 (2004).

In this case, there is no support for any argument on behalf
of the defendant that the evidence was legally insufficient as a matter of law and therefore, this Court sees no basis to disturb the jury's verdict.

Accordingly for all of the reasons discussed herein, weapon defendant's motion to set aside the verdict of guilty and requesting that this court order a new trial is denied.

The foregoing constitutes the opinion, decision and order of this Court.

Assault in the Third Degree...cont

April 4, 2015,

Defendant argues that New York's licensing requirements violate the Second Amendment for a number of reasons.8 He claims overbreadth, because "there is no exemption [in PL § 265.01(1)] for maintaining a firearm in the home for the purpose of self-defense" (Haidas Br. at 8) and because, under PL § 400.00, those convicted of felonies or "serious offenses" cannot obtain licenses. He argues that the licensing scheme is arbitrary and capricious, because the "availability of a gun license is under the complete control and virtually unreviewable discretion of the New York City Police Commissioner" (id. at 9). He argues that requiring "all successful applicants to be of good moral character' is too vague to withstand any level of constitutional scrutiny" (id. at 10). Without actually acknowledging that decisions of the Commissioner are reviewable by the courts, criminal defendant then argues that the review process is infirm because the "Appellate Divisions have never required the N.Y.P.D. to present anything more than a rational basis for denying a gun license" (id. at 12). Finally, he claims that the licensing scheme unconstitutionally prevents indigent citizens from legally possessing firearms because of the cost of the non-refundable application fee.

Defendant's claim that there is no exemption in the statute for maintaining a firearm in the home for self-defense is simply wrong. Moreover, defendant never applied for a firearms license, as both the People and New York City point out and as defendant himself ultimately concedes (Wasserman Br. at 3), and he has not established that it would have been futile for him to do so. Thus, his arguments challenging New York's firearms licensing rules are speculative at best, because he cannot show that any of the rules that he singles out would have prevented him from obtaining a firearms license had he actually applied for one. "A person to whom a statute properly applies can't [sic] obtain relief based on arguments that a differently situated person might present. [Citations omitted.] A closely related principle is that constitutional rights are personal and may not be asserted vicariously (citations omitted)." United States v Skoien, 614 F.3d 638, 645 (7th Cir 2010) (en banc), pet. for cert. filed, Oct. 12, 2010. See also United States v Mojica, 62 AD3d 100, 110 (2d Dept) ("the defendant may not assert a due process challenge contending that the statute is vague as applied to the conduct of others (see Broadrick v Oklahoma, 413 US 601, 608 [1973]; People v Shack, 86 NY2d 529, 538 [1995]; People v Nelson, 69 NY2d 302, 308 [1987]."), lv to appeal denied, 12 NY3d 856 (2009).

A few examples suffice. Defendant has no criminal record. Accordingly, that fact that a convicted felon cannot obtain a firearms license in New York would not have disqualified defendant

Page 7
had he applied. In any event, Heller clearly stated that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons," 554 US at 626, and federal law prohibits felons from possessing firearms (18 USC § 922[g][1]). Similarly unpersuasive is defendant's claim that the licensing scheme is overly restrictive, because the statutory definition of "serious offense" in PL § 265.00(17), a conviction for which is disqualifying, includes "not only an arbitrary selection of misdemeanors but violations such as trespass, disorderly conduct and loitering" (Haidas Br. at 8). Federal law already prohibits those convicted of a misdemeanor crime of domestic violence from possessing firearms (United States v Skoien, 614 F3d at 639-45; United States v White, 593 F3d 1199, 1205-06 [11th Cir 2010]). Additionally, the requirement that firearms license applicants be of "good moral character" would appear to be one of long standing, as "most scholars of the Second Amendment agree that the right to bear arms was tied to the concept of a virtuous citizenry and that, accordingly, the government could disarm unvirtuous citizens.' (Citations omitted.)." United States v Yancey, 621 F3d 681, 684-85 (7th Cir. 2010).

Defendant's claim that the availability of a firearms license is under the "complete control and virtually unreviewable discretion of the New York City Police Commissioner" (Haidas Br. at 9) is wrong. The statute provides an unsuccessful applicant with an administrative appeal process, and that decision can be challenged in court in a CPLR Article 78 proceeding. As the People state, "If an applicant is unsatisfied with the judgment of Supreme Court, he/she is entitled, as of right, to appeal the final judgment of that court to the Appellate Division (CPLR 5701[a]), whose order is appealable, by permission, to the Court of Appeals. CPLR 5602(1)(a)" (Peo's Br. at 10). The court's role in such an Article 78 proceeding is to ensure that the administrative decision denying a petitioner a firearms license was neither arbitrary and capricious nor an abuse of discretion. Goldstein v Brown, 189 AD2d 649, 650 (1st Dept 1993). Finally, as the People correctly point out, the cases that defendant cites for his claim that "the police have a history of inserting their own requirements into the licensing regulations" (Haidas Br. at 10) "all reversed administrative denials of firearms licenses where the officials inserted their own requirements'" (Peo's Br. at 10-11). Clearly then, contrary to defendant's claim, the discretion of a pistol licensing officer to deny an application "is not unfettered, and the officials involved — including the NYPD licensing division — are bound by standards reviewable in a court of law" (Peo's Br. at 11).


To Be Cont....

CPL §§ 330.30, 330.40 and 330.50...cont

April 4, 2015,

While it is clear that in the case before this Court, what is present is not an expert juror situation, the note from the

jury expressed a concern that juror # 4 had specific past experience that was influencing his verdict and the juror, upon being questioned by the court, admitted that he had discussed this situation with the other jurors in the process of jury deliberations. The concern of this Criminal Court was that it was the apparent perception of the other jurors as evidenced by their note that this juror was taking such specialized knowledge and experience that he had developed in a particular area and was relying on such knowledge and experience to inject into the deliberations facts that were not in evidence. While the juror specifically denied that this specialized knowledge was influencing his verdict, the other jurors expressed their concern in the jury note that such was influencing his verdict.

Accordingly, this Court determined that the most prudent course of action was to deliver its supplemental instruction to the jury. The jury was instructed that they should use their common sense, knowledge and experience in evaluating the evidence but that if any of the jurors had any special knowledge or experience in a certain area, it would be wrong to rely on such to inject into their deliberations either a fact that was not in evidence or inferable from the evidence, or an opinion that could not be drawn from the evidence by a person without that special knowledge or experience. Again, while this was not an expert juror situation, it was appropriate and proper for this Court to instruct the jury as a whole in the manner that it did to effectively address the note presented by the jury. There is no basis for defense counsel's assertions that juror # 4 was a lone juror who was deadlocking the jury and that this Court's instruction to the jury was unbalanced and coercive so as to deprive him of a fair trial. Furthermore, there is no basis for the defense argument that the instruction to the jury directed them to disregard their past knowledge and experience. The instruction, as a whole, was fair and balanced and cannot be viewed as to have the effect of directing juror # 4 to abandon his view. In its original final instructions and in it's jury deadlock drug charge that preceded this instruction, the juror was specifically told that no juror should surrender his or her honest view about the evidence solely because the jury wants the trial to end or the juror is outvoted.

THE PROSECUTOR'S SUMMATION

The defendant contends that the People's summation was improper and the defendant's conviction should be reversed as a result of such improprieties.

Specifically, the defendant contends that the Assistant District Attorney vouched for the credibility of her sole identifying witness, eventually becoming

an unsworn witness arguing facts not in the record in her summation. The prosecutor contends that her remarks during summation were proper, that they were fair comment on the evidence and in response to the defendant's summation.

The first example of impropriety the defendant gives is when the District Attorney is discussing the identification made by the witness and notes that she herself is 5'7". That information is certainly not in evidence. However, her height is something the jury can observe for themselves and make their own conclusions. The District Attorney's height is irrelevant to the case, but not prejudicial to the defendant. Therefore it is nothing more than harmless error. See People v. Crimmins 36 NY2d230 (1975).

er sole identifying witness. It is well settled that it is totally inappropriate for the prosecutor to vouch for the credibility of any witness. The examples given include the comment that the witness was an electrician for ten years as opposed to thirty years. The District Attorney did state that in her summation. However, that fact is so insignificant that it could not have had any real impact on the trial. The District Attorney commenting on the witness coming into her office before the trial to prepare is apparently commenting on what the witness already testified to at trial, which is perfectly permissible. The District Attorney goes on to say "when you're telling the truth there is no need to prepare". While this may be viewed as an instance where the prosecutor implicitly vouched for the credibility of her witness, such remark need to be viewed in the context of. It being responsive to the defense summation and the issues raised by the defense. See People v. Galloway, 54 NY2d 396 (1981); People v. Torres, 171 AD2d 583 (1991).

Lastly, the defendant implies the District Attorney did something wrong by saying she told the witness only to identify the person if you recognize him. Once again this isn't vouching for the credibility of the witness. On the contrary, those are the proper, common sense instructions prosecutors give to witnesses before testifying at any proceeding.

All in all, the comments the defense alleges were improper, were in totality, for the most part, fair comment on the evidence. In criminal trials both the prosecutor and defendant's counsel alike have the right during summation to comment upon every pertinent matter of fact bearing upon the questions the jury have to decide See People v. Ashwal, 39 NY2d 105 (1976).

Here, the prosecutor's remarks, did not deprive the defendant of

a fair trial or improperly prejudice the jury. At most, any error in the prosecutor's comments in the context of the entire summation and the trial was harmless error. See People v. Galloway, supra at p401.

THE SANDOVAL RULING

Defense counsel argues that the Sandoval ruling of the Court was an abuse of discretion and prevented the defendant from testifying, maintaining that the defendant was the only source of material testimony in support of his defense. He further argues that this error deprived the defendant of a fair trial warranting setting aside the verdict. The People contend that the jury verdict should not be disturbed as the Court's Sandoval ruling was not an abuse of it's discretion, but a fair balance between probative value and risk of unfair prejudice. The People argue that the defendant's decision not to take the witness stand was a strategic maneuver, unrelated to the Court's ruling.

A Sandoval determination rests within the discretion of the trial court. See People v. Mackey 49NY2d 274 (1980). The court when making a Sandoval ruling must balance the probative value of defendant's prior criminal conduct on the issue of his credibility against the risk of unfair prejudice to the defendant. This is measured both by the impact of such evidence if admitted after his testimony, and by the effect its introduction may have in discouraging him from taking the stand in his own defense. See People v. Sandoval, 34NY2d 371 (1974); People v. Mitchell 209AD2d 443 (1994).


To Be Cont...

Penal Law § 215.50 (3)

April 4, 2015,

193 Misc.2d 432
751 N.Y.S.2d 351
THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,
v.
THOMAS TURZA, Defendant.
October 18, 2002.
George M. Harmel, Jr., Central Islip, for defendant.
Thomas J. Spota III, District Attorney, Central Islip (Jodi Franzese of counsel), for plaintiff.
OPINION OF THE COURT
H. PATRICK LEIS III, J.

The defendant, by interposing the within motion for an order dismissing criminal charges pending against him, challenges the authority of the Supreme Court sitting in Suffolk County's newly established Integrated Domestic Violence Part (IDV
[193 Misc.2d 433]

Part) to transfer to itself misdemeanor and violation cases pending in the Suffolk County District Court.

On May 12, 2002, the defendant Thomas Turza was charged with the offense of harassment in the second degree in violation of Penal Law § 240.26 (1). On May 13, 2002, the First District Court issued an order of protection directing the defendant to stay away from the complainant, Diana Turza, and refrain from harassing, intimidating or threatening her. Thereafter, a misdemeanor charge of criminal contempt in the second degree pursuant to Penal Law § 215.50 (3) was interposed against the defendant alleging a violation of the order of protection. On May 16, 2002, Thomas Turza commenced a matrimonial action against Diana Turza.

This court, having been assigned the related Supreme Court matrimonial action, determined that it would promote the administration of justice to transfer to the IDV Part the charges pending against the defendant in the District Court. By order dated June 20, 2002, the District Court matters were transferred to the IDV Part.

The defendant now moves for an order dismissing the District Court cases for lack of subject matter jurisdiction. The defendant asserts that Criminal Procedure Law §§ 10.20, 10.30 and 210.05 mandate dismissal of the cases transferred from the District Court. The defendant's motion is determined as follows.


Discussion of the defendant's contentions begins with an examination of the statutory jurisdiction of the criminal courts. Section 10.20 (1) of the Criminal Procedure Law grants the superior courts, Supreme Court and County Court, trial jurisdiction of all offenses:

"(a) Exclusive trial jurisdiction of felonies; and
"(b) Trial jurisdiction of misdemeanors concurrent with that of the local criminal courts; and
"(c) Trial jurisdiction of petty offenses, but only when such an offense is charged in an indictment which also charges a crime."

In contrast, section 10.30 (1) of the Criminal Procedure Law limits the trial jurisdiction of local criminal courts to offenses other than felonies, specifically granting it:

"(a) Exclusive trial jurisdiction of petty offenses except for the superior court jurisdiction thereof prescribed in [CPL 10.20 (1) (c)]; and
[193 Misc.2d 434]

"(b) Trial jurisdiction of misdemeanors concurrent with that of the superior courts but subject to divestiture thereof by the latter in any particular case."

Read together, CPL 10.20 (1) (c) and 10.30 (1) (a) give the local criminal courts exclusive trial jurisdiction over petty offenses unless they are charged in an indictment which also charges a crime. In addition, although CPL 10.20 (1) (b) appears to grant the superior courts unfettered trial jurisdiction over misdemeanors concurrent with that of the local criminal courts, CPL 210.05 provides that "[t]he only methods of prosecuting an offense in a superior court are by an indictment filed therewith by a grand jury or by a superior court information filed therewith by a district attorney." Thus, the Criminal Procedure Law allows for the divestiture of the local criminal court's jurisdiction in favor of a superior court only after indictment by a grand jury at the initiative of either the district attorney (see CPL 170.20) or, much less frequently, the defendant (see CPL 170.25). Accordingly, the apparent statutory power of a superior court to divest a local criminal court of its trial jurisdiction over misdemeanors (see CPL 10.30 [1] [b]) actually rests in the hands of the district attorney (see CPL 170.20). In effect, CPL 210.05 procedurally bars prosecutions in the superior courts by means of a local criminal court accusatory instrument.


To Be Cont...

Assault in the Third Degree...cont

April 3, 2015,


Analysis

In Heller, the Supreme Court struck down District of Columbia statutes prohibiting the possession of handguns in the home and requiring lawfully-owned firearms to be kept inoperable. (554 US at 635.) Rejecting the argument that the right "to keep and bear arms" was connected with militia service (554 US at 595-619), the Court concluded that the Second Amendment codified an individual right to keep and bear arms for the core purpose of allowing law-abiding citizens to defend themselves, their families and their homes (554 US at 595, 628-30; see also McDonald, 130

Page 3
S Ct at 3044 ["our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home."]).

Two years later, in McDonald, the Court held that the Second Amendment right to keep and bear arms for self-defense is fully applicable to the states through the Fourteenth Amendment. 130 S Ct at 3050.2

Significantly, the Supreme Court unequivocally stated in Heller that "the Second Amendment is not unlimited" (554 US at 626), that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms," id. at 626-27, and that the Court was identifying "these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive" (id. at 627, n. 26).3 In "repeating those assurances" in McDonald, the plurality of the Court stated that, "incorporation does not imperil every law regulating firearms" (130 S Ct at 3047). Indeed, federal district courts have rejected challenges to the firearms licensing schemes that were adopted in the District of Columbia and Chicago following Heller and McDonald. (Heller v District of Columbia ["Heller II"], 698 F Supp 2d 179 [D DC 2010]; Ezell v City of Chicago, — F Supp 2d —, 2010 WL 3998104 [ND Ill 2010]).4
Page 4

Penal Law §§ 265.01 and 400.005

Penal Law § 265.01(1) states, in relevant part, that a "person is guilty of criminal possession of a weapon in the fourth degree when: (1) [h]e possesses any firearm." Exemptions to this rule are listed in PL § 265.20, which provides, in relevant part in subsection (a)(3), that Section 265.01 shall not apply to "[p]ossession of a pistol or revolver by a person to whom a license therefor has been issued as provided under section 400.00 or 400.01 of this chapter." Penal Law § 400.00(2) specifically provides for the issuance of a license "for a pistol or revolver, other than an assault weapon or a disguised gun," for a householder to "have and possess in his dwelling." The general statutory requirements for a license are that an applicant be 21 years of age or older, of good moral character, who has not been convicted of a crime or serious offense (as that term is defined in PL §

Page 5
265.00[17]) or had a license revoked, who is not disqualified by reason of mental illness or the existence of an order of protection, and "concerning whom no good cause exists for the denial of the license." (Donnino, Practice Commentary, McKinney's Cons Law of NY, Penal Law § 400.00).6 Thus, any person to whom a license has been issued may lawfully possess a firearm in his or her home. Indeed, the City affirms that, "[i]n 2009, there were 1, 141 new applications for premise residence licenses, and 826 of these applications were approved" (City's Amicus Br. at 3). (See also People v Foster, — NYS2d —, 2010 WL 5187702, *3, n.1, 2010 NY Slip Op. 20525 (Crim Ct, Kings County 2010) ["The People have affirmed that in 2008, the Police Department received approximately 900 premise residence license applications and issued approximately 773 such licenses; in 2009, the Police Department received approximately 1, 167 premise residence license applications and issued approximately 852 such (licenses); and that in 2010, as of June 30th, the Police Department has received approximately 637 premise residence license applications and has issued approximately 351 such licenses."]).7

Accordingly, on their face, PL §§ 265.01(1) and 400.00 are constitutional and do not run afoul of Heller. (People v Perkins, 62 AD3d 1160, 1161 [3d Dept] [affirming defendant's conviction for Criminal Possession of a Weapon in the Second and Third Degrees; "Penal Law article 265 does not effect a complete ban on handguns and is, therefore, not a severe restriction' improperly infringing upon defendant's Second Amendment rights."], lv to appeal denied, 13 NY3d 748 [2009]; People v Abdullah, 23 Misc 3d 232, 234 (Crim Ct, Kings County 2008] ["Because New York does not have a complete ban on the possession of handguns in the home... Heller is distinguishable and its holding does not invalidate New York's gun possession laws or regulations"]; People v Ferguson, 21 Misc 3d 1120(A), *4, 2008 WL 4694552 [Crim Ct Queens County 2008] ["the requirement that handguns be licensed in the State of New York is not tantamount to a total ban and, therefore is not a severe restriction' as was the case in Heller"]; see also Mallard v Potenza, 376 Fed Appx 132, 134 [2d Cir] [affirming partial summary judgment to New York City and other defendants and jury award to plaintiff of nominal damages; "Mallard had no legitimate possessory interest in firearms for which he held no license. [Citations omitted.]... Contrary to Mallard's contention, no different result is compelled by... Heller..., which did not hold reasonable licensing requirements unconstitutional."], cert. denied, — US —, 2010 WL 3907255 [2010]; Justice v Town of Cicero, 577 F3d 768, 773-74 [7th Cir 2009] [rejecting Second Amendment claim by business owner who was ticketed for possessing unregistered firearms; Cicero ordinance merely regulated, but did not prohibit, gun possession, and left law-abiding citizens free to possess guns], cert. denied, 130 S Ct 3410 [2010], reh'g denied, 131 S Ct 46 [2010]; United States v DeCastro, 2010 WL 1783550, *2 [SD NY 2010] [declining to reach defendant's legal argument that he could not be prosecuted for violating 18 USC § 922(a)(3), because his factual claim that New York's restrictive licensing requirements are "tantamount to a ban" was undermined by New York City Police Department's submission of statistics revealing that handgun licenses are routinely issued in the eight different categories of handgun licenses available]).
Page 6

To Be Cont....

CPL §§ 330.30, 330.40 and 330.50...cont

April 3, 2015,


CPL § 270.35 (1) states in pertinent part: "If at any time after the trial jury has been sworn and before the rendition of

its verdict.....the criminal court finds, from the facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case or has engaged in misconduct of a substantial nature, but not warranting the declaration of a mistrial, the court must discharge such juror". A juror is deemed to be "grossly unqualified" only "..when it becomes obvious that a particular juror possesses a state of mind which would prevent the rendering of an impartial verdict". See also People v. West, 92 AD2d 620,622 (1983)62 NY2d 708 (1984), (Mahoney, P.J. dissenting) revd on dissenting opinion below. People v. Buford, 69 NY2d 290 (1987)." The disqualification determination is to be made on a case-by-case basis after a "probing and tactful inquiry", into the unique facts'. (People v. Buford, supra, at 299) and great deference is to be given to the trial court's findings. People v. Matiash, 197 AD2d 794, 795 (1993). "The Trial Judge generally is accorded latitude in making the findings necessary to determine whether a juror is grossly unqualified under CPL § 270.35, because that judge is in the best position to assess partiality in an allegedly biased juror (see, People v. Michael, 48 NY2d 1,10)." People v. Rodriquez, 71 NY2d 214, 219 (1988)

This court gave much consideration to the issue of whether or not the most prudent course of action was to bring out juror # 4 for the sole purpose of determining what was being referred to in the jury note related to his past experience that was influencing his verdict. Considerable discussion with counsel took place before the Court decided which way to proceed. In the final analysis, both the criminal court and counsel would only be forced to speculate as to what the issue was without making this inquiry of juror # 4.

While the defendant cites the case of People v. Perfetto, 96 Ad2d 517 (1983) for the proposition that a private discussion with an individual juror during deliberations has a coercive effect on the juror, one most look at the totality of circumstances surrounding the situation. In the case at bar, the court was only addressing the situation created by the jury. The discussion between the judge and the juror was merely for the purpose of information gathering on the part of the Court. This discussion out of the presence of the other jurors was entirely neutral in nature, and "...not inherently improper or coercive..." People v. Rivera, 225 AD2d 638 (1996).

After hearing the juror's direct and unequivocal answers the Court did not try to change the juror's view or get him to capitulate. Under the circumstances of the facts of this case, and after carefully listening to all ideas and suggestions on the

part of both attorneys, the Court exercised extreme sensitivity, and utmost discretion in making its inquiry of this juror in the most non-coercive, non-threatening manner possible.

After questioning juror # 4, it was clear to this Court that there was no legal basis for removal of the juror. The juror unequivocally denied that his specific past experience was influencing his verdict. This Court further concluded that while this juror's discussion of this specific past experience with the other jurors did not equate with juror misconduct warranting the declaration of a mistrial, the Court did need to address this situation with the jury as a whole.

THE SUPPLEMENTAL CHARGE

After sending juror number 4 back to the jury room, the Court brought the entire jury into the courtroom to give them a further instruction. The Court gave a modified version of a jury instruction related to juror expertise. See People v. Maragh, 94 NY2d 569 (2000); People v. Arnold, 96 NY2d 358 (2001). The charge was modified in that whenever the term "special expertise" was used, the Court substituted the term "special knowledge or experience". The defense objected to this charge on the grounds that it was erroneous to tell the jurors, specifically juror # 4, to disregard his prior experience and render a drug verdict. The People contend the Court's charge addressed the issue in an appropriate fashion.

As noted in People v. Arnold, 96 NY2d 358, 362 in considering a defendant's right to a fair trial before an unbiased fact finder, "While the goal is utter impartiality, each juror inevitably brings to the jury room, a lifetime of experience that will necessarily inform her assessment of the witnesses and the evidence. This is a reality that we simply cannot deny. Nor would we want a jury devoid of life experience, even if it were possible...."

As held in People v. Arnold, supra, it is those experiences that give jurors the ability to evaluate the drug evidence but, jurors are expected to come in with an open mind and decide the case only on the evidence presented and the law.

In another case involving "juror expertise" a defendant's conviction was reversed because a juror had revealed during jury selection that she might not be able to be impartial on a domestic violence case because she studied domestic violence in college. People v. Arnold 96 NY2d 358 (2001). As held in that case, a jury must reach it's verdict solely on evidence received in open court, not from outside independent sources.

To Be Cont...

Uniform Child Custody and Jurisdiction Act

April 3, 2015,

Page 1
2009 NY Slip Op 50408(U)
SABRINA F., Petitioner,
v.
LOUIS F., Respondent.
V-15116-08.
Family Court of the City of New York, Bronx County.
Decided March 3, 2009.
ANDREA MASLEY, J.

Respondent father Louis F. moves to vacate this court's July 3, 2008 Certification of Registration of Out-of-State Order of Custody or Visitation (the "registration") of a custody and visitation order issued in Ohio. The issue is whether a temporary order of custody constitutes a "modification" under the Uniform Child Custody and Jurisdiction Act ("UCCJEA"), Domestic Relations Law, Article 5A. For reasons set forth below, the motion to vacate is granted.

Mr. F. and Ms. F. are parents of a son1 and daughter, ages 18 and 16 respectively. The parties were married and divorced in Ohio pursuant to a criminal judgment incorporating a separation agreement, with custody of the children to Ms. F., entered in the Court of Common Pleas in Ohio in October, 1994. Mr F. relocated to Florida in 1997 and Ms. F. and the children moved to the Bronx in 2003. In December of 2007 their daughter left the Bronx for the Father's Florida home where she has remained.

On May 9, 2008, Ms. F filed a petition in Bronx Family Court for custody of Jessica by Writ of Habeas Corpus.

Mr. F. filed a petition for temporary custody of his daughter in Broward County alleging domestic violence in the maternal home in the Bronx. He was represented by counsel. Ms. F. was present telephonically at a hearing on June 2, 2008 in Broward County. Ms. F. was not represented and consented to father's temporary order of custody Jessica. The Florida court issued an order on June 3, 2008 granting Mr. F.'s motion for a temporary order of custody until a determination of jurisdiction is made pursuant to UCCJEA.

On June 6, 2008, the return date on Ms. F's petition in the Bronx, the criminal court dismissed the Writ in light of the Florida order.

On July 3, 2008, Ms. F. filed an affidavit application for registration of an out of state custody and visitation order and the clerk of the court issued a certification of registration. DRL §77-d provides:

Page 2

(1) A child custody determination issued by a court of another state may be registered in this state, with or without a simultaneous request for enforcement, by sending to the appropriate court in this state . . .

(b) two copies, including one certified copy, of the determination sought to be registered, and a statement under penalty of perjury that to the best of the knowledge and belief of the person seeking registration the order has not been modified . . .

In her July 3, 2008 affidavit, Ms. F. swore to the best of her knowledge and belief that the order she sought to register was in effect and had not been stayed or modified. At the time Ms. F. swore the Ohio order was in effect and had not been modified, the child at issue was residing with Mr. F. pursuant to the Florida court order. On the basis of Ms. F.'s sworn statement, the clerk of the court issued the certification of registration. Mr. F. filed an objection on July 21, 2008.

On August 27, 2008, Mr. F. filed the Ohio judgment for registration in Florida.
As a threshold matter, the Ohio order was registered in New York on July 3, 2008. While Mr. F.'s motion to vacate the registration was not filed until late in September, court records confirm that he filed an objection to the registration with the court on July 21, 2008, within the permissible limits imposed by DRL §77-d(4). Thus, Mr. F.'s motion for vacatur of the registration is timely.

Mr. F. seeks vacatur of the July 3, 2008 registration pursuant to DRL §77-d which provides:

4. A person seeking to contest the validity of a registered order must request a hearing within twenty days after service of the notice. At that hearing, the court shall confirm the registered order unless the person contesting the registration establishes that . .
(b) the child custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so under title two of this article.

Mr. F. argues that since the Florida court has modified the Ohio judgment, if the Ohio judgment were registered in New York without registration of the Florida determination, Mr. F. would be precluded from contesting enforcement of the Ohio order in the New York court. Ms. F. asserts that she seeks only to register the Ohio judgment in New York and that there is no pending application for either modification or enforcement of the Ohio order and therefore no basis for vacatur. Implicitly, she argues that the Florida temporary order of custody does not constitute a modification.

"Modification" is defined by the UCCJEA §75-a as(11) a child custody determination that changes, replaces, supersedes, or is otherwise made after a pervious determination concerning the same child, whether or not it is made by the court that made the previous determination. (emphasis added).

Pursuant to DRL §75-a, a child custody determination means(3) a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual. (emphasis added).

Page 3

The Florida temporary order of custody constitutes a child custody determination. Clearly, it changes, supersedes, and was made after the Ohio order and concerns the same child, albeit temporarily, within the meaning of DRL §77-d(4)(b). Temporary orders are explicitly included, qualify for UCCJEA enforcement mechanisms, and entitle the issuing court to exclusive, continuing jurisdiction while the temporary order remains in effect. Sobie, Practice Commentaries, DRL §75-a, 14 McKinneys 2008 Cumulative Pocket Part, p. 90. See eg., In re Noel D. v Gladys D., 6 Misc 3d 1017(A) (Family Ct, Queens County, 2005)(NY temporary order granted under emergency jurisdiction of UCCJEA "modified" an Illinois temporary order of custody to father where marriage dissolved on default but court reserved decision on custody). There is no dispute that the Florida court properly exercised emergency jurisdiction to issue the temporary order of custody.

Finding that a temporary order of custody constitutes a modification is also consistent with the legislative intent. In enacting the UCCJEA2 it was the intent of the New York Legislature, as stated in DRL §75 (2), to

provide an effective mechanism to obtain and enforce orders of custody and visitation across state lines and to do so in a manner that ensures that the safety of the children is paramount and that victims of domestic violence and child abuse are protected.

That purpose would be frustrated by registration of the Ohio order in New York, since a temporary order is in effect in Florida.

Accordingly it is ORDERED that the motion to vacate the Certification of Registration of Out-of-State Order of Custody or Visitation of the Ohio order is granted and the case is dismissed.
This constitutes the decision and order of this court.
---------------
Notes:
1. The son Anthony resides in the Bronx with his mother and turned 18 on January 3, 2009. The Florida Temporary Order of custody does not address custody of Anthony. Nevertheless, neither party addresses registration of the Ohio judgment with regard to Anthony.
2. UCCJEA replaced the Uniform Child Custody Act ("UCCJA") as of April 28, 2002. Laws 2001, ch 386, §2.
---------------

Miranda v Vasquez...cont

April 2, 2015,


The father contends, inter alia, that reversal is required [29 A.D.3d 1015]
because he was deprived of his right to meaningful assistance of counsel, there was insufficient evidence that he received written or oral notice of the contents of an order of protection issued outside of his presence, and the Family Court relied on hearsay evidence in making findings of fact. The Law Guardian supports the father's appeal to the extent that it is based on insufficient evidence that the father received notice of the order of protection. We agree and reverse.

An individual has a constitutional right to counsel in any proceeding in which incarceration is a possibility (see Argersinger v Hamlin, 407 US 25 [1972]). As a corollary to the right to criminal counsel, non-English speaking individuals have the right to an interpreter to enable them to participate meaningfully in their trial and assist in their own defense (see People v Ramos, 26 NY2d 272, 274 [1970]; People v Perez, 198 AD2d 446, 447 [1993]; People v De Armas, 106 AD2d 659).

In addition, Family Court Act § 262 (a) (vi) provides an express statutory right to counsel for any person in a proceeding "in which an order or other determination is being sought to hold such person . . . in willful violation of a previous order of the court." Family Court Act § 262 (a) mandates that, "[w]hen such person first appears in court, the judge shall advise such person before proceeding that he or she has the right to be represented by counsel of his or her own choosing, of the right to have an adjournment to confer with counsel," and of his right to assigned counsel (see generally 1 Elkins and Fosbinder, New York Law of Domestic Violence §§ 2:37, 6:40, 6:53).

Here, although the father had been assigned counsel in connection with the ongoing Family Court Act article 10 proceeding, the Family Court Judge to whom the proceeding on the instant petition was first assigned denied the father any opportunity to confer with his counsel with the assistance of a Mandarin-speaking court interpreter before remanding him prior to the hearing. Moreover, the Family Court Judge failed to advise the father of his rights to retain counsel of his own choosing in defense of the petition and to have an adjournment to confer with counsel. The Family Court Judge who presided over the hearing failed to assure that the father had been advised of his rights. Thus, the record supports the father's assertion that he had no meaningful opportunity to confer with criminal counsel, with the assistance of an interpreter, between December 21, 2004, when he first appeared and was summarily remanded to prison, and December 23, 2004, when the hearing was held. Contrary to ACS's contention, the deprivation of the right to counsel is a [29 A.D.3d 1016]

fundamental error warranting reversal (see Matter of Otto v Otto, 26 AD3d 498 [2006]; Matter of Miranda v Vasquez, 14 AD3d 566 [2005]; Matter of Knight v Griffith, 13 AD3d 449 [2004]; Matter of Vladimir M., 206 AD2d 482, 483 [1994]; Matter of Williams v Williams, 91 AD2d 1044, 1045 [1983]).

Moreover, ACS failed to establish by a preponderance of the evidence (cf. Matter of Sarmuksnis v Priest, 21 AD3d 381 [2005]) that the father received oral or written notice of the terms of the order of protection dated October 7, 2004 (see People v McCowan, 85 NY2d 985, 987 [1995]; see generally 1 Elkins and Fosbinder, New York Law of Domestic Violence §§ 6:33, 6:28, 6:40). Furthermore, the Family Court improperly relied on hearsay evidence, when the statute requires that its findings be based on "competent proof" (see Family Ct Act § 1072).

Accordingly, we reverse the order appealed from insofar as reviewed and dismiss the petition.
Mastro, J.P., Rivera, Skelos and Covello, JJ., concur.