Code of Judicial Conduct...cont

July 31, 2014,

Where the people contend, as they do, that the request for such an investigation places this court in an accusatory posture with respect to the office of the district attorney of Suffolk County, such contention clearly is misplaced. If that were the case, and it certainly is not, this court should properly recuse itself from presiding over any criminal matter in the County of Suffolk. Obviously, such argument cannot be made with validity; thus, the attempt to focus this court's alleged bias toward the prosecution of the indictments.

It is well settled law both in this state and in the federal courts that in order for bias and prejudice to be disqualifying it "must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case."

It is certainly not the intent of the law or the Code of Judicial Conduct to permit a party to engage in conduct "in a course of litigation that might cause any conscientious judge to express, even in caustic terms, his disapproval of it, and thereby put himself in position thereafter to urge successfully motions to disqualify the judge in his subsequent cases before him." Parties or lawyers, once embroiled in a self created controversy with a judge, "would have a license under which the judge would serve at their will."

It is important to note at this juncture, however, that while the district attorney, who is not involved personally in these cases, remains the same, neither pending case is being prosecuted by either of the assistant district attorneys who tried the matters. Thus, even if there were such controversy extant between this court and the lawyers involved in those cases, the slate has been wiped clean as to the pending cases.

While the prosecution attaches great significance to the fact that this court will no longer conduct "off-the-record" conferences of cases assigned to the major offense bureau in chambers, their concession that they seek to have this court recuse itself only from the matters, although other major offense cases are pending before it, nullifies the logic of their argument that this court somehow has an animus directed against that particular bureau of the district attorney's office. More importantly, this court has the unbridled discretion to conduct its calendar in the best way it sees fit, without having to answer to the prosecutor or the defense bar.

Partiality, or the appearance thereof, in the context of a criminal prosecution, is synonymous with impropriety; and the appearance of impropriety, like beauty, is in the eye of the beholder. Conduct, which one may seek to paint as impropriety, or in this case, partiality, may in fact be propriety, necessitated by the conduct observed within the judicial confines, and this court knows of no cases where a judge has been disqualified by reason of acts of propriety. The true measure of a judge's bias, hostility or prejudice are the decisions which he or she has rendered in regard to the party alleged to be the target of such bias and prejudice, and the prosecutor can point to no action taken by this court as a result of same.

Furthermore, at a time when this court allegedly was harboring bias, hostility and prejudice towards the office of the district attorney, a motion to suppress an alleged oral confession of the defendant was denied after a lengthy Huntley hearing. Once again, the facts and the results fly in the face of the logic of the prosecutor's allegations. Moreover, "inferences drawn from prior judicial determinations are insufficient grounds for recusal because it is the duty of the judge to rule upon issues of fact and law and questions of conduct which happen to form a part of the proceedings before him." This is especially so, where the prior rulings, as often as not, favored the party alleged to be aggrieved.

The easiest course of action which this court could take in these matters would be to recuse itself. This court would then be free of the albatross which has weighed heavily upon it for the last several months. Presumably for now, the fires which have been fueled by the charges of animus, hostility, bias and prejudice will be dampened, and the court would be free and unfettered to deal with the many other matters pending before it. As one defense counsel stated in his since withdrawn oral application for recusal: "comments about this case may put undue pressure on any individual, and perhaps on this Court." Perhaps, another judge, given the same set of facts and circumstances would opt for recusal and self disqualification in an effort to avoid an unpleasant confrontation. However, the question of when a judge should disqualify himself is generally a matter of personal conscience, since only the individual judge knows fully his own thoughts and feelings.

While the option of recusal is indeed a tantalizing morsel available for the taking, this court's own conscience and sense of justice will not permit the first tempting bite. Bribery was not involved.

The people are certainly entitled to a fair trial, and they can rest assured that they will get one by this court. However, the defendant is likewise entitled to a fair trial. Due process calls for nothing less. While the prosecutor graciously suggests that these cases be transferred to any other judge of this court to "insure the integrity of the judicial process," it is no less judge shopping to improperly, and without legal basis therefor, seek to avoid one judge as it is to seek another.

At another time, in another jurisdiction, another judge, under similar circumstances, found himself confronted with allegations of prejudice and bias. Then, however, it was the defendants who claimed bias against them, and who sought to have the judge disqualify himself.

While the significance of the issues before this court pale by comparison to those which confronted the Judge in Watergate, a criminal case which "has been called one of the most important cases in American judicial history", nonetheless, the principle that a judge is under an obligation to deny a groundless application for recusal transcends the magnitude of those issues.

"A judge before whom a case is moved for trial shall preside at such trial unless he is satisfied ... that he is unable to serve with complete impartiality, in fact or appearance ..."
Under these circumstances, and after careful consideration of the law, and as a matter of personal conscience, this court has no choice but to continue to preside over these trials, and to deny the application for recusal. For all of the foregoing reasons, the application is hereby denied and Indictment Number 1103-84 is scheduled for trial January 27, 1986 at 9:30 A.M., Part VI, before the undersigned.

DPCA developed the form to remedy perceived shortcomings in the statute..cont

July 31, 2014,

The Criminal Defendants claiming indigency are obliged to seek a payment waiver from the court. To obtain the waiver, they must complete and submit to the court a financial history/status form prepared by the Department designed to aid the court's indigency determination. Curiously, the law supplies no indigency metric to guide the court nor is the court obliged to use the financial history form in making its determination. Ironically, DPCA developed the form to remedy perceived shortcomings in the statute as the statutory language does not refer to indigency' nor contain other limiting criteria based upon prescribed income levels or guidelines, including federal poverty, food stamps and participation in other government assistance programs, DPCA developed the Financial Disclosure Report form to provide the judiciary with information to better gauge whether the operator has resources to pay for device installation and maintenance.

As of 15 July 2010, the Department has approved seven qualified manufacturers, and, via memorandum, has published a list of each provider's prices for services.

The costs are not final, however. Besides, setting up the possibility of annual rate increases. Moreover, nothing in Part 358.5 prohibits manufacturers from increasing operator prices mid-contract.

The legislature's failure statutorily to fix the ignition interlock costs presents a significant due process problem because potential offenders and the general public cannot determine the punishment for violating the law, given that ultimate interlock costs are subject to administrative fiat.

The ambiguity lies in the fact that the State failed to provide constitutionally-required notice of the interlock fine amounts facing DWI convicts, given DCJS can, at its discretion, raise interlock rates. Because the Defendant hasn't been afforded such notice, lenity forbids the court from ordering him to finance interlock installation and maintenance. Instead, the State must find an alternative funding source for any interlock device the Defendant is required to install and maintain.

It should be noted that the "final" price list for interlock services hasn't been filed. Instead, the latest filing provides only an estimate of the interlock costs. Such failure violates New York’s Constitution, which requires that newly-enacted rules be filed with the Secretary of State for effectuation.

Also, the publication requirement is simple and obvious- rules and regulations to which citizens are held accountable must be available to them.

That the State has designed the system such that no final cost can be ascertained does not suspend its obligation to publish a statement of those costs, given that it elected to classify them as criminal fines.

The Department might contest the publication requirement related to costs on two grounds. The court finds that neither of which is persuasive. First, it might argue that t the master fee list does not constitute a "rule" per New York State Administrative Procedure Act § 102, which excludes from the publication requirement any fee which is established through negotiation, written agreement or competitive bidding, including, but not limited to, contracts, leases, charges, permits for space use, prices, royalties or commissions. Part 358.5, which governs the approval process of prospective interlock manufacturers, requires those applying for certification provide "fee structure information... including any and all fees charged to the operator, including but not limited to installation fee, monthly fee, any special service fees, shipping fee, and de-installation fee. The proposed fee structure shall take into consideration and be based upon an anticipated ten percent (10%) waiver of fees by sentencing courts due to operator unaffordability." Accordingly, the Department might contend, the fees needn't be published to be lawful.

To Be cont...

People v. Durham

July 31, 2014,

People v. Durham

Court Discusses Whether the Trial Judge Improperly Allowed Unauthorised Information Prohibited by the Sandoval Hearing

The defendant was convicted of driving while intoxication, DWI, and appealed on the ground that he did not have a fair trial. The defendant’s contention was based on the ruling of the Sandoval hearing versus what took during trial. The hearing held that if the defendant were to testify, he could be testified about his previous conviction of criminal possession of stolen property in the third degree in 1979, criminal possession of stolen property in the third degree in 1984, and operating a motor vehicle while intoxicated as a felony in 1984. The court allowed the prosecution to make inquiries into fact that there was a conviction of a class E felony in 1984 for operating a motor vehicle while intoxicated, but there could be no inquiry into the underlying facts of that conviction. The prosecution was not permitted to cross-examine the defendant on previous uncharged crimes. When the defendant testified, he denied intoxication and stated that he had experienced a dizzy spell and pull over onto the roadside. The defendant further stated he was yanked from the vehicle and lost consciousness while the police office stuck his head to the roof of the vehicle. The prosecution asserted that the defendant was driving with a suspended license and he did not produce any indicia of ownership of the car when demanded by the arresting officer after the objection by the defendant’s Queens County Criminal Attorney. The court allowed the prosecution to question the defendant about the indicia of ownership of the car. The evidence of the uncharged crimes was not directly relevant to the question of whether the defendant committed the crime charged, and went only to credibility.

The Court of Appeal reversed the conviction and ordered a new trial. The purpose of the Sandoval hearing was for an accused to make an informed decision as to whether he should take the stand. The defendant was denied the right to make an informed decision after the trial court effectively changed its ruling of the Sandoval hearing by permitting cross-examination with respect to uncharged crimes on issue of credibility after he had made an informed the decision based on the conclusion of the Sandoval Hearing. The trial court errors were not seen as harmless but prejudicial to the defendant. Additionally, the prosecutor’s summation also deprived the defendant of a fair trial where the prosecution’s witnesses were repeatedly vouched for, the defendant was called a “loud drunk and the defendant’s testimony was described as a creation and fabrication.

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Police Sergeant acted reasonably...cont

July 30, 2014,

In deciding whether the police acted properly in this criminal case, the inquiry into the propriety of police conduct must weigh the degree of intrusion it entails against the precipitating and attending circumstances. The touchstone of any analysis of a governmental invasion of a citizen's person under the Fourth Amendment and the constitutional analogue of New York is reasonableness.

The events in this case indisputably involved an emergency situation inside of a public school and the Police Sergeant Collins and another Police Officer were responding to a report of a gun in a crowded public school. Based upon the information then known to the Police Sergeant, he had a reasonable basis to conclude that the respondent had not told him everything that he knew about the gun or its whereabouts. The Police Sergeant than asked the respondent whether he could look inside of his knapsack and as he did so he simultaneously tapped the bag and felt the outline of what he believed was a firearm.

The issue here is whether the Police Sergeant acted reasonably when he tapped the outside of the respondent's knapsack. In a similar case, the Court of Appeals held that an investigative touching of the outer surface of a book bag fell within a class of searches which are far less intrusive than searches which would require the application of the reasonable suspicion standard. The Court applied the balancing process set forth in another similar case and held that the respondent had only a minimal expectation of privacy regarding the outer touching of his school bag by school security personnel, even for the purposes of learning something about its contents. In addition, the Court stated that in the balancing process, prevention of the introduction of hand guns and other lethal weapons into New York City public schools such as the said high school is a governmental interest of the highest urgency. The extreme exigency of barring the introduction of weapons into the schools by students is no longer a matter of debate.

While the Police Sergeant cannot be said to have had reasonable suspicion as to the respondent at the time that he tapped the outside of the knapsack, there may be circumstances in which, because the privacy interests involved in the case are minimal and are overborne by the governmental interests in jeopardy if a higher standard were enforced, a search may be reasonable despite the absence of such reasonable suspicion.

The facts here establish that this is such a case. The respondent clearly had a diminished expectation of privacy in the contents of his book bag which were undoubtedly subject to a search by school officials upon his entry to the building. Balancing that expectation of privacy against the information known to the Police Sergeant, including a report of a gun inside of a crowded public school and the respondent's seemingly incredible story concerning a gun, and the risk that a gun in the school posed to the life and safety of students and staff, the facts in this case presented truly exigent circumstances which were not present in another similar case, and the Court concludes that the Police Sergeant had sufficient justification for the investigative touching of the outside of the respondent's knapsack. Once the Police Sergeant felt the outline of what he believed to be a gun in the knapsack he had a reasonable criminal suspicion that the respondent possessed a weapon which justified the search of the knapsack.

Accordingly, the actions of the Police Sergeant did not violate the respondent's rights and the motion to suppress the air gun is denied.

Family Court Act § 311.4(3)

July 30, 2014,

Respondent's background was obtained by means of questions put to TS who has supervised respondent's foster care with New York Foundling since 2007. Criminal Respondent was referred to the Girls Education & Mentoring Services, a social services program offering counseling to young women who have been sexually exploited sometime in 2009. On October or November of 2009, respondent disappeared from the GEMS facility and she subsequently fabricated a kidnapping, stating that kids kidnapped her from GEMS. According to TS, respondent later recanted, stating it was made up and she was not kid-napped. Rather, she went off and spent some time with a young man. According to TS, respondent had been referred to the GEMS program by New York Foundling because BP has a history of prostitution. TS recalled that in 2007 respondent's foster care case had come under her supervision and that respondent, who was then just 12 years old, was already introduced to the lifestyle and had been working with criminal adult pimps.

In October, 2009, respondent gave birth to her own daughter and she and the infant were initially placed in a "mother/daughter" foster home in Brooklyn. Since then, the infant has been removed from respondent's custody and placed into a different foster home. Child protective proceedings have been commenced on behalf of the infant and against the respondent by the Administration for Children's Services.

In arguing for the substitution of a PINS petition, respondent's Law Guardian contended that respondent is a victim of sexual exploitation and is entitled to the relief requested. The Law Guardian observed that respondent has no prior juvenile delinquency adjudications for offenses based upon acts defined by article 230 of the Penal Law nor does she have any PINS history in the Family Court. In addition, the respondent is herself a child placed in foster care as the result of child protective proceedings and termination of parental rights proceedings which had been previously brought against her biological parents.

On the other hand the Presentment Agency argued against the requested substitution on the ground that the respondent has failed to express a genuine current willingness to accept and comply with the services.

As noted by the Assistant Corporation Counsel, respondent had already been offered services by New York Foundling, including a referral to the GEMS program, but she has a history of running away from her foster home and the GEMS program facility. Respondent's attorney contended that she is currently willing to accept services as indicated, in part, by her planned cooperation with the District Attorney's office in its ongoing investigation of prostitution in Queens County. Indeed, the Law Guardian observed that her client has been assisting Assistant District Attorney to prosecute the pimp that has been involved in this young lady's life. Respondent had received a subpoena to appear in Criminal Court on 7 June or 8 June 2010, and it was her intention to appear and cooperate. As observed by the Law Guardian, respondent's cooperation with the Assistant District Attorney on that is proof, for lack of a better word, that she is willing to cooperate with any services that are put in place for her.
The court determined that there was a serious risk that respondent would commit further criminal acts or acts of juvenile delinquency were she to be released to her lawful custodian pending further proceedings upon the petition. Based upon respondent's history, there was a substantial probability that she would not return to court for further proceedings were she to be released, as well as that the continuation of respondent in her present home would be contrary to her best interests, and that reasonable efforts had been made prior to the date of the initial appearance to prevent or eliminate the need for removal of the respondent from her home.

The Court reserved decision on the respondent's substitution application as it was unclear whether this particular sex crimes case was one in which substitution under Family Court Act § 311.4(3) was appropriate. The Court then proceeded to enter an order in accordance with Family Court Act § 320.5 directing that the respondent be detained in the custody of the New York City Department of Juvenile Justice pending further proceedings upon the petition.

To Be Cont...

Code of Judicial Conduct

July 30, 2014,

In an unprecedented action in the County of Suffolk, the prosecutor, on behalf of the People of the State of New York, requests an order disqualifying or recusing this court from presiding as the assigned judge of two separate indictments charging the defendant with the commission of two counts of Burglary in the First Degree, Assault in the Second Degree and the marijuana Possession and Assault in the Second Degree and Sexual Abuse in the First Degree.

It is beyond dispute that a judge must be free from all prejudice or bias, actual or implied, and an impartial arbiter of all causes over which he presides. A judge should disqualify himself from a case "in which his impartiality might reasonably be questioned where ... he has a personal bias or prejudice concerning a party."

A Suffolk County Criminal attorney said that in affidavits replete with out-of-context quotations, inaccurate quotations, and arguments fueled in large measure by newspaper accounts and incomplete transcripts, they raise the serious allegation "that a pattern of conduct of this Court in these cases, as well as in other recent matters, has established a bias or animosity such that this Court's impartiality might reasonably be questioned."

In support of such application, they cite a decision dismissing an indictment, after a second Dunaway hearing conducted sua sponte, for the reasons set forth therein, as further evidence of the court's "prejudice, bias and animus." Though the decision pre-dated the first trial, and the preliminary hearings conducted thereon, it was not until after a jury had acquitted respondent of all charges including Murder in the Second Degree, and a new indictment was handed up by the grand jury charging with crimes committed while released on bail pending trial, that the prosecutor sought to have this court recuse itself as the presiding judge.
It would appear, therefore, that an investigation which has been initiated by the New York State Temporary Commission of Investigations is the impetus for the instant application. In that regard, the prosecutor argues that "this Court should not at the same time be an accuser/complainant in one forum and preside as a judge over proceedings involving the same defendant in another."

Canon 3(b)(3) of the Code of Judicial Conduct, Appdx Judiciary Law provides, in part, as follows:"A judge should take or initiate appropriate disciplinary measures against a ... lawyer for unprofessional conduct of which the judge may become aware.".

Consequently, the court, as a result of certain prosecutorial and police conduct which it observed during the course of the aforesaid trials, and after conclusion of the trial, requested that the Governor appoint a special prosecutor to conduct an independent investigation out of "a deep abiding concern for the integrity of the criminal justice system in the County of Suffolk."

It was toward that end that such investigation was requested, since it appeared that the independence, honor and integrity of this court was being threatened by conduct both within and without the confines of the courtroom. Nevertheless, any action by the governor was deferred pending the outcome of the instant investigation which had already been initiated by the state commission prior to this court's request, upon its own initiative, and the governor's office had been so apprised by counsel to the commission. Suffice it to say, therefore, that this court is neither the accuser nor the complainant in the pending investigation. Even if it were, in view of the conduct which the court observed during the trials, this court would be constrained by the Code of Judicial Conduct and its own conscience to take the unpleasant step of requesting such an inquiry.

To Be Cont...

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Our constitution grants a fair trial, not a flawless past

July 29, 2014,

A Queens Criminal Lawyer said that, defendant seeks an order restraining the District Attorney from cross-examining him regarding specific prior convictions. A hearing was held on September 12, 1973 and the Court determined the facts to be as follows: The defendant herein was indicted by a Queens County Grand Jury and charged with two counts of robbery in the first degree, assault in the second degree and criminal possession of a dangerous drug in the sixth degree. His counsel has placed before the Court the fact that the defendant has a prior criminal history, alleging: 1. That defendant in 1967 was granted youthful offender treatment in connection with a charge of possessing a prescription unlawfully; 2. A year later, in April 1968, defendant was arrested for robbery in the first degree and pleaded guilty to petit larceny in November; 3. On February 14, 1972 defendant was arrested on a charge of possession of a weapon and loitering and was sentenced to a conditional discharge after pleading guilty to loitering.

A Queens Petit Larceny Lawyer said that, defendant now moves to 'restrain the District Attorney and preclude the people from introducing any evidence' with regard to the above convictions or the underlying acts which gave rise to them. It is his contention that, while the People would allegedly offer such convictions solely to impeach his credibility as a witness, the practical result would be to establish his guilt in relation to the present crimes. In effect, such evidence would influence the jury to believe that the man now on trial is either a habitual criminal or has a specific propensity for the crime of robbery with which he is now being charged. The defendant concludes that, because of this, the probative value of impeachment of his credibility is clearly outweighed by the prejudicial value before a jury. This, in defendant's mind, constitutes a denial of the constitutional right to a fair trial.

A Queens Grand Larceny Lawyer said that, the People, first, dispute the facts of defendant's final conviction, pointing out that their records show that defendant on February 14, 1972 was indicted for possession of a weapon, pleaded guilty to same and received a sentence of probation for three years. Next, they attacked the logic of his contentions, maintaining that the defendant has offered no legal basis to support them; nor cited any pertinent Supreme Court decision to establish the alleged violation of constitutional rights. Further, it is submitted that the defendant has presented no facts of any kind, other than the bare recital of his prior criminal history, which might indicate substantial prejudice or show unique harm by the admission of such crimes before a jury.

The issue in this case is whether defendant’s motion for an order restraining the District Attorney from cross-examining him regarding specific prior convictions should be granted.
It is the general rule in New York that a witness may be cross-examined with respect to any immoral, vicious or criminal act which may affect his character and show him to be unworthy of belief. Further, if 'in the course of a criminal proceeding' a witness, including a defendant, answers in the negative, the People may present independent proof of such conviction (CPL, § 60.40(1)).

To Be Cont...

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There had been a series of postponements

July 29, 2014,

A man filed an appeal from a judgment convicting him of burglary in the third degree, criminal possession of stolen property in the third degree and petit larceny, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial of that branch of the man's motion which was to suppress physical evidence.

The appellate division stated that the hearing court's denial of the man's motion to suppress the items seized from his person should not be reversed. It was further stated that the decision was supported by the record, which established that the stop and inspection of the man at the scene of the crime was founded upon a reasonable suspicion that he had committed the crime and that he was armed and could be dangerous.

Sources revealed that to sustain a conviction based on circumstantial evidence, the facts from which the inference of the offender’s guilt is drawn must be established with certainty, be inconsistent with his innocence, and exclude to a moral certainty every hypothesis other than guilt.

At trial, the evidence established that the man was observed outside of the burglarized warehouse after the crime had been reported and that he was discovered with property that belonged to the corporation which owned the warehouse. In addition, a sneaker print was found inside the warehouse which matched the sneaker worn by the man. Under the said situation, there can be no doubt that the man was guilty of burglary in the third degree and the facts from which the inference of the man's guilt was drawn were established with certainty, were inconsistent with his innocence, and excluded to a moral certainty every hypothesis other than guilt.

Furthermore, contrary to the man's contention, the evidence sufficiently established that the corporation had a superior right of possession to the property found on the man. As such, his convictions for petit larceny and criminal possession of stolen property in the third degree were supported by legally sufficient evidence. In addition, the court found that the man's guilt was proven beyond a reasonable doubt and that the verdict was not against the weight of the evidence. Consequently, the court ordered to affirm the judgment.

In a similar criminal action, the surety for bail appeals from an order which denied its motion to remit the forfeiture of the undertaking filed by it.

The court cited previous related case where it has set the guidelines for disposition of applications for remission of bond forfeitures. In this action, the surety's principal was charged with forgery and petit larceny, not the type of crime usually associated with organized crime. The period of delay from the nonappearance of the principal was five days. There had been a series of postponement s from the time of the original arrest and it is not indicated in the record at whose request the postponements were granted.

In the opponent's affidavit, submitted in opposition to the application for remission, an assistant district attorney did not claim prejudice, delay or expense to them. The affidavit contained a hearsay assertion that some court officer had claimed difficulty in locating the principal. It is noted that the principal eventually pleaded guilty to petit larceny.

Since sureties provide a necessary and important social function in the area and since the offender may suffer severe hardship, and for all the other reasons noted, the court is forced to hold that remission is warranted and that it was an irresponsible exercise of discretion in the case to deny the application. As a result, the court order to reverse, without costs, and motion for remission of forfeiture of the undertaking filed is granted.

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DPCA developed the form to remedy perceived shortcomings in the statute

July 29, 2014,

This matter is before the Court for sentencing under Leandra's Law New York's newest anti-DWI measure wherein the defendant pled guilty to DWI driving while intoxicated pursuant to Vehicle and Traffic Law § 1192 (3).

One month after the DWI death of 11-year-old Leandra Rosado in New York City, the State enacted Leandra's Law on 18 November 2009 requiring all first-time, misdemeanor DWAI install ignition interlock devices in every automobile they own or operate for at least 6 months. It further requires, barring indigency, that offenders pay for installation and maintenance of the interlocks. However, like so many products rushed to market prematurely, Leandra's Law exhibits numerous defects imperiling its constitutionality.

The court faces the issues to be considered from the State's failure to establish determinate ignition interlocking costs. The first is whether the indeterminate nature of the cost of installing and maintaining ignition interlocks invalidates the requirement defendants pay for the devices, given the cost is statutorily classified as a fine and therefore constitutes a criminal punishment. That issue informs a related, New York constitutional concern whether the State violated New York constitutional law by failing properly to promulgate a final interlock cost list. Moreover, the court will examine whether the lack of a statutory metric for determining a defendant's ability to pay for the ignition interlock violates equal protection because it may lead to arbitrary enforcement. Also at issue on equal protection grounds is whether requiring defendants to interlock every auto they own or operate is justifiable.

Section 4(a) of the amended Vehicle and Traffic Law § 1198 requires those convicted finance ignition interlock installation and maintenance unless the sentencing court determines they cannot afford to do so. Accordingly, failure to pay for the interlock may prompt imprisonment.
It should be noted that the interlock costs are indeterminate. This indeterminacy stems from the intentionally open-ended manner by which the State chose to calculate them. The New York Division of Probation and Correctional Alternatives, a subdivision of the Division of Criminal Justice Services created a regulatory scheme whereby private companies, following an application and approval process, contracted with the State to provide and maintain interlock services. The prices they charge conform to a maximum fee/charge schedule with respect to all operator's costs associated with such devices. DUI was involved.

Because not everyone sentenced to interlocking can afford it, the Department had to contrive a means to pay for interlocking for indigent drivers. Rather than having local governments finance them, the Department insisted that the "qualified manufacturers" pay for them.
During the application process, manufacturers supply proposed fee structures that must take into consideration and be based upon an anticipated ten percent (10%) waiver of the fees by sentencing courts due to operator unaffordability. The ten percent figure derives from the Department's speculation based upon the experience of other states.

To Be Cont...

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Typically, a bottle of Aguardiente Antioqueno has an alcohol content of 29%

July 28, 2014,

This wrongful death action arises out of an automobile accident due to drunk driving that occurred sometime between the hours of 9 and 10 p.m. when a man went to a bar to celebrate the end of tax day. The celebration was for the employees and spouses of the man’s accounting firm. Ten to fourteen peopled attended the celebration. The owner of the bar and a waitress, who served drinks to the party, were also present. The record reveals that the celebrants ate appetizers and drank alcohol throughout the night. Prior to arriving at the bar, the man drank a beer at his office. After arriving at the party, the man continued to drink alcohol. Specifically, the waitress indicates that the man was served approximately six vodka and cocktails. Also, a complimentary bottle of Aguardiente Antioqueno, was served to the party. Typically, a bottle of Aguardiente Antioqueno has an alcohol content of 29%.

At trial, two testified that the man took at least one shot of the Aguardiente on the night in question. Another testified that around 1:00 a.m., the criminal man appeared to be intoxicated. The wife of the man also attended the celebration to be her husband's designated driver. However, she took shots of Aguardiente, drank vodka and cocktails. The woman subsequently appeared intoxicated. Based upon the time of the accident, it appears that the two left around 1:00 a.m.

The driver of the dump truck testified that he was transporting asphalt. Prior to starting the task, he performed a 20 to 25 minute inspection of the truck. Specifically, he examined the interior and exterior of the vehicle. He determined that the lights on the vehicle were in satisfactory condition, the tires did not have physical damage and had a satisfactory tread depth and pressure, the wheels and rims of the vehicle were in satisfactory condition, the steering was in satisfactory condition and there was no overdue preventive maintenance required on the vehicle. He completed three trips prior to the accident.

At 2:19 a.m., the dump truck driver left the yard again with a load. He was traveling at approximately 35 to 40 miles per hour in the middle lane when he heard a very loud pop that sounded to him like his rear tire had blown out. Suddenly, the vehicle began to pull to the left with a good amount of force. At that instant, he concluded that if he tried to fight the pull of the truck, it might tip over, spilling its contents onto the roadway. Therefore, he lightly applied the brakes and veered into the left lane. He testified that seconds after the tire blew; he called his dispatcher via a blue tooth device to let him know about the blown tire and his location. He testified that the call lasted only a few seconds. He was in the left lane when the man's vehicle drove into the rear of the truck. He testified that he was driving approximately 10 to 15 mph when he was struck by the man's SUV. He testified that he was unsure of how much time elapsed between the time the tire blew out and the time the man's vehicle struck the rear of the truck. He testified that he had on his headlights, four way flashers, flickering lights and warning lights at the time of impact.

Another witnessed testified that the man's vehicle drive into the rear of the truck at approximately 2:30 a.m. The witness was driving his car on the night of the accident. He recalled that the weather conditions were regular and that it was not snowing or raining. He did not notice any defects or objects on the road and estimated he was traveling at about 50 mph. On the expressway, he saw only two vehicles, an SUV and a truck. He observed that the SUV was over 500 feet from the truck at the time he observed it. Subsequently, he saw the SUV in the left lane traveling at 55-60 mph that was approximately 600 feet from the truck. He estimated that approximately 10 seconds elapsed from the time he saw the SUV to the time of the accident. After seeing both vehicles, he slowed down to 20 mph to allow the SUV to pass him and move over to the middle lane. However, the man's SUV continued to travel in the left lane towards the truck at 55-60 mph. The SUV passed the witness' car approximately 400 feet from the truck and he testified that he did not observe the SUV attempt to slow down, brake or stop prior to the accident. He also did not saw the SUV attempt to swerve to avoid the collision. Incidentally, the accident investigation squad also did not found any skid marks from the man's vehicle at the site of the accident. He was 200 feet in front of the accident when it occurred and drove by the incident site at approximately 5 mph. He further testified that the lighting in the area enabled him to see the truck when he was about 500 feet from the vehicle. The truck was observable from the street lights on the expressway, the headlights from the witness' car and the headlights from the man's SUV. Finally, the witness testified that there were no objects or vehicles in the left lane that could have blocked the man's view of the truck.
A medical examiner performed an autopsy on the man and discovered that the man had a blood alcohol level of .26%, which is over three times the legal driving limit and DWI.

Subsequently, the motion of the opponent for decision without trial in its favor is granted. Based on records, the operator of a motor vehicle approaching another motor vehicle from the rear is obligated to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle. Further, a rear-end collision with a stopped or stopping vehicle creates a case of negligence against the operator of the rear vehicle, thereby requiring that operator to deny the conclusion of negligence by providing a non-negligent explanation for the collision. DUI was involved.

In opposition, the complainant contends that the truck was illegally stopped in the left lane without any warning lights. The court notes that the operator of the truck was faced with an emergency when he stopped or was stopping in the left lane on the highway, namely, that his tire blew out.

Lastly, while the complainant is correct that there is a lower standard of proof in wrongful death actions, and the complainant is entitled to every inference that can reasonably be drawn from the evidence in determining whether the case is made, the complainant is still obligated to provide some proof from which negligence can reasonably be reliant.

Furthermore, the motion of the bar company for decision without trial in its favor is denied. The bar company failed to satisfy its initial burden of negating the possibility that it served alcohol to a visibly intoxicated person. In addition, proof of visible intoxication can be shown by circumstantial evidence, including expert and eyewitness testimony. Therefore, the branch of the motion which seeks to dismiss the conscious pain and suffering claims is granted.

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Family Court Act § 311.4(3)

July 28, 2014,

In this proceeding, the criminal respondent is charged with committing acts which, were she an adult, would constitute the crimes of Prostitution, Resisting Arrest, Obstructing Governmental Administration in the Second Degree, and False Personation. Respondent has moved pursuant to Family Court Act § 311.4(3) for an order directing the substitution of a petition alleging that she is a Person in Need of Supervision for the petition alleging that she is a juvenile delinquent.

The petition alleges that on 18 May 2010 in Queens County, the respondent, BP born 17 July 1994, offered to engage in sexual conduct with an undercover police officer in exchange for payment in violation of Penal Law § 230.00, that respondent resisted arrest by fleeing from police officers who intended to take her into custody for committing the sex crimes of Prostitution and that she obstructed governmental administration by physically resisting arrest and by refusing to follow the directives of police officers after she had been taken into custody.

The undercover police officer states that at approximately 6:50 A.M. in the vicinity of 111th Avenue and Sutphin Boulevard, Jamaica, Queens County, a known prostitution location, the respondent asked him what he wants and with a hand gesture indicating oral sex respondent asked if he wanted a blow job. The police officer asked the criminal respondent how much for the blowjob and she replied, in sum and substance, “fifty dollars”. Thereafter, respondent got inside the vehicle.

Respondent appeared before the Court with the Law Guardian appointed to represent her for the initial appearance upon the petition on 19 May 2009 under Fam. Ct. Act § 320.1-§ 320.5. TS, a foster care supervisor employed by New York Foundling Hospital, an authorized agency as defined by Social Services Law § 371(10) was also present at the initial appearance. New York Foundling presently has joint legal guardianship of the respondent along with the New York City Administration for Children's Services as a result of unrelated proceedings terminating the parental rights of respondent's biological parents under Social Services Law § 384-b; Fam. Ct. Act § 614 and the Presentment Agency appeared by an Assistant Corporation Counsel.

The Assistant Corporation Counsel noted that at the time respondent had been arrested for the underlying crime, she was absent without permission from New York Foundling's custody, that she had been regularly absent without permission from the agency or her foster parent from January until August 2009, and that her whereabouts had been unknown.

According to information provided to the Presentment Agency, in addition to running away, the respondent had been engaging in acts of prostitution since she has been twelve years old, she has a child of her own who had to be removed from her care by the Administration for Children's Services, which had thereafter commenced child protective proceedings against respondent on behalf of the child. The Law Guardian moved for substitution for a PINS petition for the juvenile delinquency petition citing Family Court Act § 311.4(3).

To Be Cont...

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People v. Fountain

July 27, 2014,

People v. Fountain

Court Discusses Whether the Defendant Evinced a Depraved Indifference to Human Life
The defendant was indicted for manslaughter in the second degree and criminal negligent homicide in connection with the deaths of two pedestrians, assault in the first degree in connection with serious physical injuries inflicted upon another pedestrian and driving while intoxicated. At the trial the investigating officer testified that the defendant told him that he was driving thirty miles per hour when he hit the victims. Another officer testified that the defendant had a .23 blood alcohol content and he observed that the defendant had an unsteady on his feet, slurred speech and his breath smelled of alcohol. The surviving witness testified that he was struck by the defendant when he was in the crosswalk with the light in his favor. At the trial, it was brought out that the lighting conditions were good and the defendant car was in proper mechanical condition. Further, autopsy report revealed that victims who died injuries were consistent with being struck by an automobile. The defendant was acquitted of the manslaughter and criminally negligent homicide counts by the trial judge. The defendant was convicted in the Supreme Court, Queens County, of assault in the first degree and operating a motor vehicle while intoxicated, DWI, by a jury and driving while intoxicated by a non-jury trial. The defendant appealed.

The Appellate Division of the Supreme Court reduced the conviction to assault in the third degree and vacated the sentence on assault in the first degree. The case was remitted to the Criminal Term for the defendant to be resentenced on the reduced conviction. Evidence showed that that the defendant acted recklessly while in an intoxicated condition when he drove through an intersection in violation of a traffic signal and that his actions caused physical injury to another. As a result, the evidence was sufficient to show assault in the third degree but was insufficient to show that the reckless conduct occurred under circumstances evincing a depraved indifference to human life and thus did not sustain conviction for assault in the first degree.

The minority however, felt there was sufficient evidence to show that the defendant’s conduct was reckless and evinced a depraved indifference to human life merely because he drove through an intersection in violation of a traffic signal at approximately 30 miles per hour while pedestrians were rightfully crossing the street. DWAI was in play.

Our colleagues in the majority conclude that the People failed to prove that defendant's conduct evinced a depraved indifference to human life. We feel, however, that under the circumstances of this**816 case, where it was shown that defendant, while intoxicated, drove through an intersection in violation of a traffic signal at approximately 30 miles per hour while pedestrians were rightfully crossing the street, there existed a sufficient basis from which the Trial Justice could conclude, as he did, that defendant's conduct was reckless and evinced ‘a depraved indifference to human life.’

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