People v Murphy

July 22, 2014,

People v Murphy

Court Discusses Whether the Sentence Imposed was Excessive in Driving While Intoxicated Offenses

The defendant was convicted of aggravated driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (2-a) (b), driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (2), and driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (3). The defendant was sentenced to a definite term of one year on each count that would run concurrently. The defendant appealed the sentence on the ground that it was excessive. The defendant was granted a stay of execution of the sentence pending decision of the Appellate Division.

The Appellate Division of the Supreme Court reduced the sentence to to a definite term of incarceration of six months in the interest of justice as the sentence was excessive when looking at her background of the case. Further, the matter was remitted to the trial court to review the weight of the evidence pursuant to section 470.15(5) of the Criminal Procedure Law albeit that the court respected the verdict of the jury as they had the opportunity to view the witness, hear the testimony and observed the defendant’s demeanor.

Continue reading "People v Murphy" »

Criminal Term, Part I

July 22, 2014,

A Queens Criminal Lawyer said that, on October 26, 1965, after having been adjudicated a Youthful Offender under indictment 411--65 which charged him with robbery in the second degree, defendant was sentenced to Elmira Reception Center for an indefinite term. On April 18, 1967 defendant was released on parole from that sentence.

A Queens Petit Larceny Lawyer said that, while on parole, and on May 6, 1967, defendant was arrested for robbery and he was subsequently indicted for that crime by indictment 1010--67. On October 27, 1967, on his plea of guilty to assault in the third degree and petit larceny to cover that indictment, defendant was sentenced to Elmira Reception Center for an indefinite term. Defendant was received at Elmira under the latter sentence on November 2, 1967. Thereupon the Parole Board, after a hearing, adjudged defendant a parole violator on the 1965 sentence. It charged him with 11 months and 27 days delinquent time on that sentence and ordered that he serve the full delinquent time (which would expire on October 29, 1968) before commencing service of the 1967 sentence imposed.

A Queens Criminal Lawyer said that, on May 29, 1968, after defendant had served a portion of the said delinquent time and before he had commenced to serve the 1967 sentence, the Court of Appeals decided defendant's appeal from the 1965 judgment. That disposition created an anomalous situation and triggered the developments which led to the muddled situation which exists here.

The issue in this case is whether the defendant should serve the full delinquent time of his sentence.

In an opinion a majority of the Court of Appeals found the findings of the trial court wanting in two respects: The absence of an 'explicit finding that defendant's statements to the patrolman, which furnished significant proof of the crime, were voluntarily made’ and the 'failure to specify the acts, otherwise criminal, supporting the determination that defendant is a youthful offender'. Accordingly, to cure the lacunae in the trial court's findings, the opinion stated that the case should be 'remanded for further findings on the issues of voluntariness and the underlying acts supporting the determination'. The opinion further stated: 'whether further or De novo hearings are required is left solely to the discretion of the trial court.'

In this posture of the matter, there was no need to disturb the judgment of conviction. In fact, as I see it, the remand for further findings counter indicates a Vacatur of the judgment. If the judgment of conviction was, in fact, being reversed, further findings--apparently to be made on the existing record or after further or de novo hearings--would not suffice for a final disposition of the case, since in such a situation a new trial and a new record would be required for a proper adjudication. However, instead of withholding the determination of the appeal until a return of the remand with the further findings directed by the Court of Appeals to be made.

This, of course, was contradictory. The contradiction in the opinion, however, was not carried over into the dispositive mandates in the case which followed. Thus the remittitur of the Court of Appeals, dated May 29, 1968, did not provide that the judgment of conviction In this court is reversed but merely provided that the 'judgment of the Appellate Division appealed from herein be and the same hereby is reversed and the matter remanded to the Supreme Court, Queens County, for further proceedings in accordance with the opinion herein.' Similarly, the order of this court dated July 12, 1968, making the order of the Court of Appeals the order of this court did not provide that the judgment of conviction be vacated but provided merely that 'the order of the Court of Appeals which reversed the order of the Appellate Division affirming the conviction and which remanded the case to the Supreme Court, Queens County, for a hearing' be made the judgment of this court, and that defendant be produced in court for such hearing.

To Be Cont...

Continue reading "Criminal Term, Part I" »

C.P.L.R. (§510[3])

July 22, 2014,

This case involves for petitions pursuant to Article 10 of the Mental Hygiene Law. In April 2008, the State moved to transfer the venue of these proceedings from New York County, where they are currently located, to the jurisdictions where the crimes committed by the offenders in these cases occurred. Specifically, the State moves to transfer venue in the first matter from New York County to Chemung County, in the second matter from New York County to Oswego County, and in the third matter from New York County to Ulster County.

A New York Criminal attorney said that although each of these motions was brought separately and these cases have not been formally consolidated, the legal issues, procedural history, counsels for the parties and many of the factual issues in these motions overlap.

These cases all arose pursuant to a unique procedural history. In the fall of 2005, after failing to achieve passage of legislation to provide for the civil commitment of persons convicted of sex crimes for a number of years, the Governor charged state officials to "push the envelope" and use the provisions of the existing Mental Hygiene Law to civilly confine convicted sex offenders whose prison terms were ending.

Twelve convicts of sex crimes were confined at the conclusion of their prison terms at the Manhattan Psychiatric Center pursuant to this directive. The Governor relied upon M.H.L. § 9.27(a) for these actions, which authorizes the involuntary confinement of persons who are mentally ill, in need of involuntary care and treatment and pose a danger to themselves or society. Some of these first twelve criminal offenders were later transferred to a Psychiatric Center also located in New York County.

The Deputy Director of Mental Hygiene Legal Services petitioned for a writ of habeas corpus seeking the release of the offenders. The trial court granted the writ based on procedural errors the trial court found had been made in committing the offenders and based on the trial court's finding that the Petitioners had been deprived of their due process protections and were being illegally detained. The Court ordered the Petitioners released unless additional psychiatric examinations in compliance with the statute and other appropriate procedural steps were followed. The Appellate Division reversed the trial court's decision and dismissed the habeas corpus petition. The Court of Appeals then reversed the Appellate Division's decision, but fashioned a more limited remedy for the Petitioners than the trial court had originally imposed. With respect to the Petitioners, retention hearings under Article 9 of the Mental Hygiene Law were ordered, but no other relief for those individuals was granted.
The phrase "good cause" under the venue provision at issue here lists three non-exclusive examples of issues which can be considered in making a venue change determination under the statute. They are the convenience of the parties, the convenience of witnesses and the condition of the respondent.

To Be Cont...

Continue reading "C.P.L.R. (§510[3])" »

Rodriguez v. Wolfe

July 21, 2014,

Rodriguez v. Wolfe

Court Discusses Whether Forum Non Conveniens Precluded it from Exercising Quasi in Rem Jurisdiction

The decedent who was a passenger in one of the motor vehicles involved in a car accident died in Florida after the defendant was DWI driving while intoxicated. The defendant pled guilty and was sentenced for vehicular manslaughter. The administrator of the decedent’s estate sought to attach insurance policy issued to the defendant in connection with the cause of action arising out of accident in Florida. The decedent was a member of the United States Navy who resided in Florida but was a domiciled in New York prior to entering the Navy. The decedent’s administrator who was his father was a domicile of New York as well as the fact that the estate was being processed in New York, demonstrated that the estate was a resident of New York. The criminal defendant however opposed the motion on the ground that New York was not the appropriate forum but Florida was the forum to bring the motion.

The trial court then considered the decisions of Seider v. Roth, 17 N.Y.2d 111 after it established that a New York resident was seeking to acquire quasi in rem jurisdiction by attaching the defendant's insurance policy. The decision of Donawitz v. Danek, 42 N.Y.2d 138, Shaffer v. Heitner, 433 U.S. 186, O'Connor v. Lee-Hy Paving, 437 F.Supp. 994 and Torres v. Tow Motor Division of Caterpillar were considered by the court in analyzing Seider. Since the decedent's estate sought no personal jurisdiction over the defendant as such the insurance policy was at the heart of the cause of action. Therefore, the court could exercise quasi in rem jurisdiction by attaching the insurance policy issued to the defendant which provided an obligation to defend the claim in New York. Furthermore, any hardship experienced by the witnesses in appearing at a New York trial involving an automobile accident in Florida could not be greater than the loss sustained by the administrator of the decedent's estate in his individual capacity. The defendant’s argument that the doctrine of forum non conveniens precluded the court from exercising quasi in rem jurisdiction by attaching insurance policy was unmeritorious.

Continue reading "Rodriguez v. Wolfe" »

Mental Hygiene Law

July 21, 2014,

Respondent is the subject of a sex offender civil management petition filed pursuant to article 10 of the Mental Hygiene Law. A hearing was conducted to determine whether probable cause exists to believe respondent is a sex offender requiring civil management pursuant to Mental Hygiene Law § 10.06 (k). The petitioner called one witness, a Psychiatric examiner. Although the court did not credit certain aspects of her testimony, as explained infra, the court found her testimony to be credible. The respondent did not call any witnesses.

A New York Sex Crimes lawyer said that witness is employed by the New York State Office of Mental Health since August 2007 testified that she is both a psychologist and psychiatrist currently evaluating and diagnosing sex offenders. She testified that she had previously worked in New York State at the Central New York Psychiatric Center treating and evaluating sex offenders and had also worked at the Albany Correctional Facility, as the Acting Coordinator of the Mental Health Unit, where she did sex offender evaluation and provided some crisis intervention treatment while supervising a staff of eight. Outside New York State, She testified, she had evaluated criminal female offenders and juveniles in California as part of her doctoral program and did community mental health work in New Hampshire. She further stated that she had been to over 10 training sessions and conferences with experts in the field of sex offenders from March 2006 through August 2008.

The witness said she had evaluated or diagnosed criminal sex offenders with disorders related to thought, mood, substance abuse, sex and personality. She stated that she had evaluated over 40 sex offenders pursuant to article 10 and approximately 100 sex offenders in total. Additionally, she testified that she teaches developmental psychology and an undergraduate course in forensic behavioral science.

On cross-examination the witness acknowledged that the "DSM," which she acknowledged was "sort of the Bible of psychiatric diagnosis," indicated with respect to exhibitionism that "[i]f the person acts on these urges [to expose himself to a stranger] there is generally no attempt of sexual activity with the stranger." She indicated that her view that exhibitionists escalate to hands-on offenses was "based upon the research book, the DSM-IV-TR." She testified that the escalation by the respondent of his exhibitionistic behavior to the hands-on instant offense "was a function of his exhibitionism." She testified that "there's a lot of research that demonstrates that exhibitionists escalate. Absolutely it's likely he can escalate again. That's a function of an exhibitionist. Typically they engage in other paraphilic behavior and many escalate." She further testified that although the respondent had exhibited feelings of humiliation and shame following the 1993 attempted rape offense, he experienced those same feelings following his exhibitionist behavior and that exhibitionist behavior had not been curtailed because of those feelings. She said that there was no indication that his sex offender treatment would prevent RESPONDENT from escalating his exhibitionism and voyeurism to a hands-on offense.

To Be Cont

Continue reading "Mental Hygiene Law" »

70.25, subd. 2, of the Penal Law

July 20, 2014,

In April 1969, the relator was convicted in the Nassau County Court of one count of grand larceny in the third degree, and one count of forgery in the third degree, on the basis of his prior plea of guilty. He was sentenced, on each count, to imprisonment in the Nassau County Jail for a period of one year, said terms to be served consecutively.

A Nassau County Criminal lawyer said that in November 1968, the relator had falsely drawn four checks, all on the same bank account and to the order of the same payee, and that he had received from the payee named in the purported checks property and cash having an aggregate value of more than $250.00.

The Relator contends that since both of the offenses to which he pleaded guilty arose from the same transaction, the issuance of a forged instrument and the receipt of value therefor, the Court lacked power to impose consecutive terms of imprisonment.

The relator relies principally upon section 70.25, subd. 2, of the Penal Law which provides as follows: 'When more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences must run concurrently.'

What constitutes a 'single act or omission' within the meaning of the quoted provision has been the subject of several recent decisions, not all of which can be easily reconciled. Although the issue in that case was whether concurrent sentences for assault in the first degree and attempted robbery in the first degree constituted double punishment violative of section 1938 of the former Penal Law, the analysis in the Court's opinion has relevance to the issue at bar.

In reaching that interpretation of the former statute, the Court relied on and cited with approval prior cases holding that consecutive sentences were improper where defendant used a loaded revolver to detain his victims while he robbed them, and was subsequently convicted of both robbery and assault with a deadly weapon, or where, with no intent to kill, the defendant fired a gun injuring one whom he was in the act of robbing and was subsequently convicted of robbery and assault in the second degree, or where, during an escape from prison, one of several inmates held a gun on a deputy sheriff while another took the keys from his pocket and the escapees were later convicted of robbery and assault, both in the first degree.

More recently, it has been held that separate sentences imposed upon convictions for attempted robbery and conspiracy to commit the same act of robbery and for attempted extortion and conspiracy to commit the same act of extortion and for attempted rape and assault with intent to commit rape were required to be concurrent rather than consecutive. There is, however, a holding that consecutive sentences may be imposed upon convictions for unlawful entry and petit larceny arising from the defendant's act of breaking and entering an apartment and stealing personal property from the apartment.

Attempting to apply the rationale of these decisions to the case at bar, it is the opinion of this Court that the imposition of consecutive sentences upon the relator herein did, in fact, violate section 70.25, subdivision 2, of the Penal Law. The forged check, reproduced in the indictment, bears the relator's own name and purports to be drawn on a joint account maintained by relator and his wife, whose names are printed on the check. The single act that made the relator guilty of forgery was drawing the check without funds on deposit in such account to pay the check. That same act made relator guilty of larceny when he received property and money from the payee in exchange for the worthless check.

There is further ground for sustaining the writ herein. Subdivision 3 of section 70.25 of the Penal Law provides: 'Where consecutive definite sentences of imprisonment are not prohibited by subdivision two of this section and are imposed on a person for offenses which are committed as parts of a single incident or transaction, the aggregate of the terms of such sentences shall not exceed one year.'

Here, clearly, the relator's criminal conduct, the acts constituting forgery and grand larceny, were committed as parts of a single transaction. Therefore, even if the Court had authority to impose consecutive sentences, the aggregate of the terms imposed was limited to one year.
Accordingly, for the reasons stated herein, the writ is sustained and a judgment shall issue directing that the relator be discharged from custody forthwith.

Continue reading "70.25, subd. 2, of the Penal Law" »

The man's motion for an order dismissing the indictment is granted....cont

July 19, 2014,

Furthermore, it is the opponent's position that the man would have been indicted for the same charges regardless of whether or not any evidence concerning the lineup was presented.
Subsequently, the man asserts that the challenged legal instructions were anything but curative. Characterizing the prosecutor's directions as prejudicial and misleading, the man persistently argues that by instructing the grand jury to disregard the highly exculpatory evidence of non-identification, the effect was to mislead the grand jury, thereby prejudicing him by depriving her of her constitutional right to due process of law.

Due in part to the inherently one-sided nature of grand jury proceedings and, in some instances, their potential for abuse, the criminal courts have frequently felt obliged to comment upon the dual role of the prosecutor within the grand jury and to stress the importance of fair dealing and limited discretion.

In addressing the issues and attempting to apply the fair dealing standard to the actions of the prosecutor that resulted in the indictment, the court's attention is immediately drawn to the prosecutor's unilateral decision to specifically direct the grand jury to disregard legally competent and exculpatory evidence.

In spite of the argument advanced by the opponent, the criminal court cannot conceive how the prosecutor's instructions could rationally be construed as curative.

In the case at bar, the prosecutor's instructions were, at best, an ill considered reaction to the unsatisfactory course of the proceedings and, at worst, an improper attempt to strike legally competent evidence from the minds of the grand jurors, exculpatory evidence that had been admitted at the request and with the knowledge of the prosecutor.

Sources revealed that if the prosecutor hoped to cure something following the witness' testimony, it certainly wasn't a defect, an error, an omission or an irregularity. The witness had apparently testified in a truthful manner and his testimony was anything but a surprise to the prosecutor.

But, the court is singularly unimpressed with the alternative explanation offered by the prosecutor, to the effect that since the witness found it inconvenient to appear and testify before the grand jury, the proceeding was continued, resulting in the grand jury having already heard the police officer's testimony, thereby forcing the prosecutor to question the witness about the lineup procedure.

In light of the nearly four month break between the lineup and the grand jury presentation, the opponent had more than sufficient time to investigate the matter and ascertain the potential testimony from their witnesses.

Even though the court has found that the prosecutor did not act in good faith, the opponent still maintains that the man suffered no prejudice as a result of the improper legal instructions.
The court stated that whether or not the witness actually identified the man at the police lineup and only answered in the negative in the grand jury because he couldn't be sure if his positive identification stemmed from his personal recollection of the man from the prior subject banking transactions or was the product of having subsequently viewed the man in the surveillance photographs, the proof, as presented by the prosecutor, failed to explain the consideration.

Based on records, the witness had clearly failed to identify the man at the lineup, yet they were now being directed by the prosecutor to disregard the evidence.

The court of appeals also noted and stated that they do not intend to suggest by their holding in the case that inadequate or incorrect legal instructions would never constitute grounds for dismissing an indictment for grand larceny as defective.

Consequently, the court found that the actions of the prosecutor, in specifically instructing the grand jury to disregard the exculpatory evidence of non-identification by the key witness, constituted a clearly defined impairment to the reliability of the grand jury proceeding, resulting in prejudice to the man and mandating a dismissal of the indictment. As a result, the man's motion for an order dismissing the indictment is granted.

Rules of Professional Conduct..cont

July 19, 2014,

One cannot but be troubled by several assertions made by the prosecutor with regard to his Brady obligations and the general sentiment present throughout the prosecutor's response that he has determined unilaterally that the substance of the call from the 911 caller is not exculpatory. The prosecutor asserts in the first instance that the failure of two separate courts to give him a specific time period on which to turn over the information excuses or mitigates his failure to do so in a timely manner. This position is, of course, flatly inconsistent with the rule 3.8(b) of the Rules of Professional Conduct (22 NYCRR 1200.0) 2, and standard 3–3.11 of the American Bar Association Standards for Criminal Justice 3, both of which require a prosecutor to make timely disclosure at the earliest feasible opportunity. If the prosecutor felt the court erred in its determination that the substance of the 911 call made by the unidentified caller constituted Brady information, his remedy was to ask for re-argument and not act in a dilatory manner that may yet jeopardize defense counsel's own independent investigation of the Brady witness.

The second assertion made by the prosecutor was the notion that the posture of the case is somehow related to when a prosecutor should discharge his or her Brady obligations. Here, the prosecutor, in his response opposing an alleged speedy trial violation and a request that a sanction be imposed on the prosecution for failure to disclose the contact information of the Brady witness, maintains that “even if the 911 caller did possess knowledge of how the outbreak of violence began, which she does not, it would have no bearing on a Mapp/Wade/Dunaway hearing as she was never interviewed by the arresting officer because she did not wish to be involved.” In a subsequent passage of the response also opposing the same alleged speedy trial violation and request for a sanction, the prosecutor again asserts that “given the sensitive nature of the information requested, the lack of a specific deadline by the court and that this matter is not at a trial phase, it is obvious that the court would not have held the case stagnant for this information.”

Both of these arguments by the prosecutor miss by a wide margin any rational explanation for delaying by nearly seven months the disclosure to the defense attorney of the contact information for the Brady witness. While the prosecutor states the sensitive nature of the information requested as a concern that somehow contributed to the delay in disclosing contact information of the Brady witness to the defense attorney, the record is absolutely silent as to whether the prosecution ever sought a protective order “given the sensitive nature of the information requested”. Nor does the posture of the case have any bearing on the timely disclosure of Brady information at the earliest feasible opportunity. The timeliness of a Brady disclosure should not depend on the eccentric, arbitrary, or capricious legal arguments offered by the prosecutor that essentially disclaims an “ever cognizant” understanding of his obligations to disclose Brady information. In effect, the prosecutor gave short shrift to Brady's requirements of prompt disclosure and to the orders of two separate criminal courts to disclose the contact information of the Brady witness to the defense attorney.

In this case it is worth considering the comments of a Justice who wrote the majority opinion for the Supreme Court. In that case the Court reversed the Court of Appeal's affirmation of the District Court's finding that the respondent was liable for Brady violations committed by subordinate prosecutors. The Justice made clear that prosecutors are ethically bound to know what Brady entails and have a “unique duty to produce Brady evidence to the defense.” Justice Thomas also observed that “an attorney who violates his or her ethical obligations is subject to professional discipline, including sanctions, suspension, and disbarment.” Thus, this court finds the delay of nearly seven months in disclosing the contact information of the Brady witness to the defense attorney inconsistent with the prosecutor's overriding and fundamental duty to promptly disclose such information and constitutes a clear and unequivocal breach of his responsibility to do so.

Twice in the People's response, the prosecutor states his intention to make the Brady witness available to the defense but only when the case has reached the trial stage. The stated intention of the prosecutor to delay disclosing the contact information of the Brady witness despite a judicial ruling that the information sought by the defense is Brady material and two directives by two separate courts to release the information to the defense attorney raises a reasonable inference that the prosecutor's delay was wilful and motivated by a desire to gain a tactical advantage notwithstanding that he subsequently disclosed the contact information of the Brady witness to the defense attorney. As such, this court orders that a hearing be held to determine whether the prosecutor's actions in belatedly turning over the information to defense counsel were “willful and motivated by a desire to obtain a tactical advantage” and whether a sanction is warranted.

Turning to the defendant's motion to dismiss on the ground that her statutory right to a speedy trial has been violated, it is well settled, however, that while Brady material is discoverable pursuant to CPL 240.20(1)(h), time is not chargeable to the People merely on account of their failure to comply with their discovery obligations. The People's failure to comply with their discovery obligations does not implicate their ability to proceed to trial, although it may affect the defendant's ability to do so. For this reason, the defendant's argument that the time period from February 18, 2011 to the present should be charged to the People because they did not respond to her discovery demands is rejected.

The People, however, are charged with some delay from this time period. On February 18, 2011, the People were not ready to proceed and requested an adjournment to February 25, 2011. The court adjourned the case to March 2, 2011. Since this is a post-readiness adjournment (the People announced their readiness for trial on October 4, 2010), the People are charged with only the actual period of the adjournment requested. Thus, the People are charged the 7 days they requested; the balance of the adjournment is excluded.
On March 2, 2011, defense counsel was actually engaged on another matter. The court adjourned the case to April 13, 2011. This period is excluded. On April 13, 2011, the People were ready to proceed. The court adjourned the case to June 27, 2011. This period is excluded. On June 27, 2011, the People were not ready to proceed and requested an adjournment to July 5, 2011. The court adjourned the case to July 15, 2011. Since this is a post-readiness adjournment, the People are charged with only the actual period of the adjournment requested. Thus, the People are charged the 8 days they requested; the balance of the adjournment is excluded.

On July 15, 2011, the People were not ready to proceed. The court adjourned the case to September 9, 2011. On August 31, 2011, the defendant filed with the court and served upon the People this instant motion. The court file does not reflect that the People requested a particular date. Since the record is silent as to the length of this post-readiness adjournment sought by the People, the People are charged with the 47 day period from July 15, 2011 to August 31, 2011. On September 9, 2011, the court adjourned the case to October 20, 2011 for decision. This period is excluded. For the time period of February 18, 2011 to the present, the total amount chargeable to the People is 62 days, an amount that does not exceed the ninety day speedy time limitation. Therefore, the defendant's motion to dismiss, pursuant to CPL 30.30, is denied. Credit card fraud was not charged.

The defendant seeks dismissal of the information on the ground that she has been denied her constitutional right to a speedy trial. The defendant fails to set forth any arguments to show how her constitutional right to a speedy trial has been violated. For this reason, defendant's motion to dismiss pursuant to CPL 30.20 is denied.

Thus, this court is not convinced that dismissal is required due to any compelling factor, consideration or circumstance that clearly demonstrates that the conviction or prosecution of this defendant would constitute or result in injustice.

Accordingly, the court held that the defendant's motion to dismiss the information in the interest of justice is denied.

Lynch-Fina v. Paredes

July 18, 2014,

Lynch-Fina v. Paredes

Court Discusses Whether Section 388 of the Vehicle and Traffic Law was Limited to only Negligence

The plaintiff, who was the administratrix of the estate of the decedent, who was a young infant bought an action against the defendants who were the owner of the motor vehicle and the driver of the motor vehicle. The driver of the motor vehicle pled guilty to manslaughter in the second degree. The owner of the motor vehicle requested summary judgment as the liability under section 388 of the Vehicle and Traffic Law imposed on her as owner only extended to negligent acts rather than negligent and reckless conduct. The defendant used the case of Ingle v. Mark, 58 Misc.2d 895 where there was a refusal by the criminal court to make the owner guilty of punitive damages because the driver had acted in a grossly negligent manner.

The court held that contrary to the defendant’s argument the statute was not only limited to negligent conduct but also to reckless and gross negligent conduct. If the court were to allow a holding based on the defendant’s argument, it would result in absurdity and impose an inconsistent standard with authorities such as O'Neill v. Hamill, 22 A.D.2d 691 which held that evidence of DWI driving while intoxicated, as a statutory violation, would be prima facie proof of negligence, sufficient to impose liability upon a finding of a causal connection. The purpose of section 388 of the VTL was to ensure that where injury or death was caused when the owner consented or permitted the driver to operate their motor vehicle, they will be financially responsible. Additionally, the word negligence in the section was board to cover both gross negligence and reckless acts. Therefore, the proposed interpretation of the statute by the defendant would defeat the purpose it sought to accomplish.

The case of Ingle v Mark which the defendant cited was distinguishable. In Ingle it held that section 388 cannot to be used to make an owner liable for punitive damages based on reckless conduct or morally culpable conduct. However, in the present case the defendant wanted to be shielded from responsibility where the driver acted recklessly or was grossly negligent when the acts rationally and realistically fell within the scope of the statute.

Continue reading "Lynch-Fina v. Paredes" »

Rules of Professional Conduct

July 18, 2014,

A Queens Petit Larceny Lawyer said that, the defendant is charged with one count each of assault in the third degree, petit larceny, criminal possession of stolen property in the fifth degree, criminal possession of a weapon in the fourth degree and harassment in the second degree.

A Queens Criminal Lawyer said that, in the accusatory instrument, the security officer for Conway Department Store, stated that on July 5, 2010, he observed the defendant remove a toy and three pieces of chocolate from the store shelves, place the items into a black plastic bag and leave the store without paying for the merchandise. The security officer also stated that he apprehended the defendant outside the store and recovered the merchandise from defendant's black plastic bag. He so stated that the defendant did not have permission or authority to take, remove, use, possess, or otherwise exercise control over said merchandise without paying for it. He also stated that as he stopped the defendant, she became upset and grabbed a metal rod striking him on the head causing a cut to his head, bleeding and substantial pain. He also stated that he sought medical treatment at a local hospital and received stitches to his head. Police Officer recovered the metal rod from inside the store.

A Queens Grand Larceny Lawyer said that, at the time of the incident, an eye witness telephoned 911. According to the defendant, the caller stated that a young man was beating up an elderly woman. The defendant maintains this witness' account of the incident is exculpatory and has requested that the People turn over the caller's name, address and telephone number. On February 18, 2011, the People gave a copy of the 911 call to the defendant without the identifying information of the caller. At that time, the Honorable Judge directed the People to provide the defendant access to the Brady material, meaning the caller's contact information. On April 18, 2011, this court directed the People to provide the defendant with the contact information of the witness/telephone caller. At the time of the filing of defendant's motion, August 17, 2011, the People had not turned over such information to the defendant.

A Queens Petit Larceny Lawyer said that, the defendant contends that her statutory and constitutional rights to a speedy trial have been violated based upon the People's failure to turn over the Brady material. The defendant claims that since more than 90 days has elapsed from February 18, 2011 when the court directed the People to turn over the Brady material, the accusatory instrument should be dismissed on speedy trial grounds. In the alternative, the defendant requests that this court impose a sanction against the People for their failure to turn over this Brady material. The defendant argues that the appropriate sanction is an adverse inference or that the 911 call be admitted.

The People oppose the defendant's motion and state unequivocally there was no Brady violation. In the prosecutor's response, he concedes that a court on February 18, 2011, “after hearing the People's description of the 911 call thought the material was Brady and directed the People to turn over the 911 caller's information to the defendant. The prosecutor as of the date on which he filed his response, October 3, 2011, asserts that he recently provided to the defendant the contact information of the 911 caller. 1 The prosecutor explained further, that while the People are ever cognizant of their obligation within the meaning of Brady v. Maryland, they did not turn over this information earlier because this case was at the suppression hearing stage so this information was not necessary to the defendant. The prosecutor also explains that he had not received a specific time frame from any criminal court as to when this information was to be turned over to the defendant.

The issue in this case is whether the defendant’s constitutional rights to a speedy trial have been violated based upon the People's failure to turn over the Brady material.

To Be Cont...

Continue reading "Rules of Professional Conduct" »

Proposed New York PL § 30.10, at 285 (1964...cont

July 18, 2014,

His crimes of violence have resulted in one death, and, but for a near miracle, almost caused a second. On April 22, 1996, the defendant punched one Raul Rodriguez in the face with his closed fist, causing the victim to fall backward and strike his head on the sidewalk. The victim lapsed into a coma and died a few days later. In the trial before me, Ortiz's appearance on the stand revealed him a bundle of rage and fury, a time bomb waiting to explode. He admitted he "gets agitated real easily" and once agitated "nothing stops him from doing what he wants to do."

Defendant's total disregard for, and abuse of authority, are evidenced by his escape from a New York State narcotics facility in 1970; a history of bench Warrants in Manhattan, Brooklyn, The Bronx; his outstanding violation of probation in California; his parole violation conviction in California; and his vicious armed attack upon EMS technician Kelleher on October 3, 1997, within weeks after being placed on probation after his plea of guilty to Assault Third Degree. Defendant's use of a knife in his assault upon his victim was not his first experience with knives or weapons. In May, 1996, defendant threatened a store security guard with a pair of scissors. Twenty years earlier, in 1975, he displayed what appeared to be a pistol in the commission of a robbery. His propensity for violence is evidenced by his convictions for Attempted Resisting Arrest, Robbery, Assault, Burglary and two convictions of spouse beating.

At the hearing before me, the defendant was given the opportunity to present evidence in his behalf. He admitted that the criminal record herein described is, in fact, his and that he is responsible for all of the crimes listed. However, he and his attorney urged this Court not to sentence the defendant as a persistent felony offender but rather to impose a minimum sentence, specifically, that authorized upon conviction of Attempted Assault Second Degree. This view overlooks entirely the purpose behind the persistent felony statute, which authorizes the sentencing court to treat defendants more severely if "by repeated criminal acts [they] have shown that they are simply incapable of conforming to the norms of society as established by its criminal law."

The only witness to testify in behalf of the defendant, besides the defendant himself, was his common-law wife. Although she described the defendant's relationship with his and her family as "beautiful" and "loving" and testified that he "gets along very well with everybody," not a single relative, neighbor or friend appeared as a character witness or to offer any kind words about the defendant.

Defendant's conviction by a jury on April 8, 1998 of Attempted Assault upon the victim represented what appeared to be his fourth felony conviction in New York alone. He was thereafter convicted by me of violation of the terms of Probation imposed upon him a few weeks prior to his assault upon the victim. He has been convicted 31 additional times in two states for a multitude of felonies, misdemeanors, and offenses. His voluminous criminal record includes eight (8) felonies.

Based upon the evidence presented at the hearing, the court finds that defendant’s history of violence, of disdain for lawful authority, of uninterrupted criminal behavior, evinces an individual who poses a real and imminent danger and threat to the lives, safety, and security of residents of every community in which he chooses to circulate. He is an evil, vicious, and violent predator and totally incorrigible. He was a menace to society on October 3, 1997, when he left his home armed with an 18 inch knife, seeking someone to stab. His criminal history demonstrates that he has been a menace to society for many years, and that he remains so. "By his repeated criminal acts" he has overwhelmingly demonstrated that he is "simply incapable of conforming to the norms of society as established by its criminal law." If he is not stopped, and stopped now, he will take another human life.

The court therefore conclude that the history and character of the defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision is necessary to best serve and protect the public interest.

Accordingly, it is my sentence that the defendant be incarcerated for a period of 15 years to life. The court also imposes a concurrent sentence of 1 year, upon defendant's conviction of violation of probation.

Court of Appeals ...cont

July 17, 2014,

In Lopez, the Court of Appeals ruled that, for the notice to be sufficiently specific “the People were required to inform defendant of the time and place the oral or written statements were made and of the sum and substance of those statements * * * Full copies of the statements need not be supplied but they must be described sufficiently so that defendant can intelligently identify them.” Similarly, the People were also required to inform drug crime defendant of the time, place and manner in which the identification was made.

However, this cannot be read to require the reviewing court to ignore the written information provided to the herein defendant in the same document which contained the formal "notice" statements or to ignore notice given either before the arraignment on the indictment or within the fifteen day window following thereafter. A contrary interpretation would cause the ridiculous consequence of preclusion of an identification or statement even though the defendant actually received the specific notice to which he was entitled, merely because the details were not provided in a particular format labeled "statement notice" or "identification notice."

Neither the notice statute nor any court has mandated a precise format in which the notice must be written in order to be valid. To the contrary, courts have ruled that the notice may be oral, and may be given before the arraignment on the indictment. Nor was there a requirement that the notice form be complete in itself. Notices have been found sufficient where the specifying details were provided by written material attached to the notice form, rather than in the notice itself, or by information provided orally.

So long as the intent to utilize the statement or identification at trial was clearly stated and the notice given was not misleading as to the number or specification of the statements or identification procedures to which it refers, the notice was generally sufficient, even if not complete in every detail.

Where the notice was otherwise correct and not misleading, minor mistakes can be corrected by amending the notice, even after the notice period has run. It was only when the notice was so erroneous as to mislead the defendant into understanding that the noticed identification procedure or statement was an entirely different procedure or statement than the one that the People actually seek to utilize that the errors cannot be corrected by amendment.

In this case, the claimed deficiencies in the formal notice provisions of the VDF were very minor. The criminal defendant argued that the notice in the VDF regarding the first statement stating the date, time, person to whom it was made, type and substance of the statement was inadequate because it did not include the exact location at which they were made. He further argued that the notice of the second statement was also insufficient because it did not contain the exact time at which the defendant made his audio-taped statement. The Court opined that the information provided, sufficiently described the two statements so that the defendant intelligently could identify them and move for a hearing to challenge their admissibility at trial, thereby complying with C.P.L. § 710.30(1)(a). As was ably stated by Judge Jasen in his dissenting opinion in Briggs, "where a defendant has been given ample time to prepare to challenge statements and can assert no claim of other prejudice, it is gamesmanship of the highest order to set aside a conviction on the basis of, what is at worst, a technical defect" in compliance with the notice statute.

To Be Cont...