Law Talk With Douglas M. Schneider, Esq.

The Stench Of Injustice

Jail is not solely used to punish criminals and deter future crime (and a look at the over-crowding of our jails calls the latter into question).  It also holds defendants who cannot make bail (or who were outright remanded) until such time as the case is resolved either through dismissal, plea bargain or trial.  This pre-trial detention often results in absurd situations where, if a defendant insists on taking a case to trial, he will spend more time in jail awaiting trial than he likely would once he is found guilty at trial.  This gives prosecutors tremendous leverage to force a defendant to plead guilty.

Take for example the defendants I mentioned a few months ago.  These guys (and gals) are patsies whose real crime is being stupid.  Many of them are charged with felonies, but, depending on their actual culpability, the chance of them spending much time in jail is slight.  I recently had one of the defendants, held on $200,000 bail because he was in the United States on a very temporary visa.  I made several attempts to lower the bail or get him released, even filing a writ of habeas corpus.  He insisted on his innocence, but was sitting in a jail in Rikers Island when all he wanted to do was go back to his Eastern European home.  He insisted on going to trial, but that trial was at least a year away, and he had no chance of getting out on bail during that time.  At the same time, the likelihood of him serving any jail time, even if convicted, was minimal.  Thus, he could stay in jail for a year to take his chance at trial, or plead guilty, get a sentence of "time served" and be on a plane to Europe within days.

Last week, a Judge in the Bronx did her part to expose one such shameful situation where the defendant had already served more time in jail awaiting trial than the maximum sentence should he be convicted.  He was accused of two A misdemeanors and a violation (the A's a re punishable by anything less than a year, the violation punishable by a maximum 15 days) arising out of an alleged assault at Rikers Island.  However, the prosecution eventually moved to dismiss the two A misdemeanors and add instead "attempted assault," a B misdemeanor, punishable by a maximum 90 days in jail.  By the time of pre-trial motions alone, the Defendant had already spent over 5 months in jail when the maximum penalty he was facing if convicted, and in the unlikely scenario he had to serve consecutive time for both the B misdemeanor and the violation (highly unlikely) was 105 days.  Based heavily on these facts, the Judge dismissed all charges in the case.

As the judge points out, as a society, we expect the criminal justice system to provide punishment, detterence, and fairness.  Fairness is undermined where we hold the accussed longer awaiting trial than he would serve were he convicted.  However, disturbingly and astonishingly, the Bronx prosecutor said in arguing against dismissal of all charges, "there are a lot of circumstances in which people serve the maximum amount of time before they're actually given the opportunity to have a hearing or trial."  Think about that for a second.  The prosecutor is not talking about cases like my patsies where, a defendant spends more time in jail than they would likely serve, but far less than statutorily allowed.  No, she is saying that there are a lot of situations where defendants actually spend more time incarcerated awaiting trial, than the law would allow were they to be actually convicted.  If true, this not only suggests a major illness with the administration of justice, but rampant violation of the right to be free from restraints on liberty that underlies the Constitution.

The judge was disturbed by such a representation, and, if true, the public, elected officials, and anyone responsible for the administration of justice should be outraged.  But the statement is not true.  Instead, it is the statement of a prosecutor who, for reasons other than justice, needs to obtain a conviction.  It is an example of a prosecutor trying to leverage pre-trial detention to force a guilty plea for reasons other than the administration of justice.  So what is really going on?

A close reading of the case suggests to me that the charges against the defendant are trumped up charges that arose when he got the crap kicked out of him by guards at Rikers Island.  There is a brief discussion in the case of a potential civil case.  It is unlikely that this refers to the guards suing a guy who can't even pay his $5,000 bail.  More likely, the defendant is engaged in a civil action against the State for the actions of the Rikers guards.  Thus, the prosecution needs a conviction or guilty plea because it will help defend against the civil rights action either already pending or about to be brought.  Unfortunately, this I see all the time.  You show me someone suing the city or state after being roughed up by police or corrections officers and I assure you that the defendant is also facing charges for assault, resisting arrest or, at the minimum, disorderly conduct.

The stench of injustice from the Bronx on this one is wafting throughout the city.  This prosecutor should be ashamed of herself, and, what is typically one of the best prosecutor's office in the state should be embarassed.  It is only fair that I leave you with the words of the distinguished prosecutor in this action.   "This case is being prosecuted on its own merits, and, irregardless [sic] of, you know, the civil matter that is pending or soon to be pending...While the civil case has nothing to do with the criminal case, the criminal case does have something to do with the civil case. . . . The criminal case has nothing to do with the civil case, however, the civil case does have something to do with the criminal case."

 

Shoplifting And You, Not So Perfect Together*

Arrests for misdemeanor shoplifting have been skyrocketing in recent years.  During the Bloomberg administration, misdemeanor shoplifting arrests have increased from 13,826 in his first year, to 23,237 in 2009.  This excludes arrests for shoplifting where the value of the goods allegedly stolen exceeded $1,000 and the defendant was charged with Grand Larceny (PL 155.30; PL 155.35; PL 155.40; PL 155.42.).  Administration officials cite a commitment to cracking down on law-level crime and streamlined processing procedures for the increase in arrests.  I suggest some other ideas.

It is important that we define terms.  The statistics cited above seem to apply only to petit larceny and does not include grand larceny or criminal possession of stolen property.  Larceny is when, with the intent to deprive another of property, a person wrongfully takes the property from the owner.  (PL. 155.05).  Petit larceny is when the value of the goods is less than $1,000. (PL 155.25).  Often charged with petit larceny is criminal possession of stolen property (PL 165.40; PL 165.45; PL 165.50; PL 165.52; PL 165.54) which is when someone knowingly is in possession of stolen property with the intent to benefit someone other than the owner of the property.  In other words, if someone actually saw you take the property that is petit larceny.  If no one saw you do it, but you were caught with stolen property, that is criminal possession of stolen property.

So why have petit larceny arrests increased so dramatically?  First, for a police department highly focused on the number of arrests made each month, shoplifting cases represent low-hanging fruit.  The police do not have to do anything but process the arrests which are essentially made by store security guards acting in a quasi-police function.  The police receive a call from someone at the store, show up, listen to the security guard and take the person to be processed.  They are typically given a Desk Appearance Ticket ("DAT") with an assigned date to show up in court.  There is little risk in overcrowding holding cells or overburdening  arraignment courts.  Thus, shoplifting arrests are an easy way for police to create impressive arrest numbers.

Second, these same store security guards do not exercise discretion.   Their job is to detain the person, call the police and have them arrested.  If someone walks out of the store with unpaid for goods, the security guard is going to hold them for the police.  This often leads to absurd arrests.  Any experienced New York criminal defense attorney can tell a similar story to these.  An 80 year old lady is shopping at a major chain drug store when she sees her daughter walk by the store.  With a package of vitamins in her hand, she runs out the store to get her daughters attention.  When she turns to go back inside, she is detained and eventually arrested.  Or, my personal favorite.  A woman is shopping at a major chain clothing store.  She is looking at some jewelry on the table, does not make a purchase and leaves the store.  She is immediately accosted by store security guards who accuse he of stealing.  She takes them back to the store, where she points out that the item she is accused of stealing is sitting on the floor below the table.  The security guard calls the police and tells them that he saw her drop the item from her pocket to the floor after catching her shoplifting.  She protests, but it is not until four hours later when she is being booked that a police officer reads the report, looks at the defendant, and realizes that she is wearing a dress without pockets.

Third, New York law allows a store to collect a civil penalty from those accused of shoplifting.  General Obligations Law section 11-105 allows a mercantile establishment to collect up to five times the amount of the items stolen up to a total of $500.  If them items are not recovered or not recovered in merchantable shape, the store can collect up to $1,500.  The stores often hire "law firms" who act as glorified collections agencies to send letters threatening lawsuit if the civil fine is not paid.  This is separate from, and not contingent on the outcome of the criminal case.  Thus, a mother who inadvertently walks out of a store with $100 worth of children's clothes on top of her stroller, may have her case dismissed, but will receive a demand for a minimum of $300.  The store gets the items back, can resell them, and also gets to collect a civil penalty from the (wrongfully?) accused.

The increase in shoplifting arrests is artificial and unfortunate.  But it does increase the need to know what to do if you are accused by a store clerk of shoplifting.  First, resist the temptation of trying to talk your way out of it or offering to pay for it.  Remember your right against self-incrimination and your right to remain silent.  Second, do not believe the store security guard.  The tactics they use are less than honest.  They will tell you that if you give them your divers license, or sign a paper admitting the theft, they will let you go.  However, when you do it, they call the cops and you are arrested anyway.  Do not sign anything.  Third, they will tell you you have to pay a civil fine and may tell you it is $500.  Do not pay anything.  The fine is likely not $500 and you are not advantaged in any way by paying the "fine."  Fourth, be aware of the value of the goods you are accused of taking.  The guards like to claim the the suggested retail price as the value of the item, even though the store charges far less.  I once represented a defendant accused of stealing five T-shirts valued at $20 each.  Thus, he was charged with stealing items valued at $100.  However, in the middle of the store, was a display advertising the shorts at $5 a piece, which was also advertised on the website.  I got to accuse the store or filing a false statement when the accompanying affidavit claimed the items were valued at $100. (Not that it went anywhere).  Fifth, call an experienced defense attorney.

Finally, there is the question of how to deal with the pesky letters from the law firms threatening to sue to collect the civil penalty.  Despite the clear language of the statute, these firms often request much more than the $500 allowed by law.  Ignore the amount they request.  These fines can usually be negotiated down to between $100 and $200.  However, some lawyers even advise clients to ignore the letters altogether.  To collect the fine, the store has to begin a civil lawsuit which they are loathe to do.  Gary Muldoon, a leading New York Criminal Defense expert states "Many attorneys who are contacted in this situation recommend that the client, or the client's parents, ignore the letter...If the store wants to sue, it may do so. Rarely – very rarely – will any store file in any court under this statute. There are no reported cases in McKinney’s under this statute."  Thus, it all becomes a question of preference.  If you want the peace of mind that it is over with, and you have the means, you can negotiate the fine down, pay it, and be done with it.  Otherwise, you can ignore the letter and take the chance that it is just an empty threat.

* Anyone else remember the ads for New Jersey in the 80s?  "New Jersey and You, Perfect Together!"

Entrapment Is Rarely A Defense

Four American citizens were found guilty yesterday of plotting to blow up two Bronx synagogues and shoot missiles at military planes.  The defendants did not deny these actions, but claimed that they were entrapped by an informant working for the FBI who, according to the defendants, offered money, means and a motive for the plan.  As one legal expert said, "If this wasn't an entrapment case, then we're not going to see an entrapment case in a terrorism trial."

Entrapment is a word that is thrown around far too much when considering how often it is used as part of a successful defense.  Defendants caught red-handed often insist that they were entrapped.  Take the middle-aged man who is in an AOL (yes it still exists) chat room targeted to "adult conversations."  He starts talking to a person who identifies herself as 15/f/ny (15/female/lives in NY) and he steers the conversation to sexual conversation.  He asks he about her sex life.  He tells her about his.  He makes lewd comments to her of a sexual nature, all of which the girl is a willing participant.  He asks if she would like to meet him and she says yes, at the mall.  He shows up at the mall to find that the 15 year old girl is a 20 year veteran of the police department named "Gus."  This is not entrapment.

Person A is walking down the street when he is accosted by Person B (a government informant) who begs him to sell him marijuana.  Person A says he does not know anything about the sale of marijuana at which point Person B starts crying that he is in so much pain from his cancer treatment and needs marijuana.  Person A says he thinks he knows someone who can help and arranges to meet Person B at his house later.  When Person A shows up, he is arrested.  Person A probably will succeed with an entrapment defense.

The distinction between these two cases is the origin of the criminal idea and the pre-disposition toward committing the crime.  As the Supreme Court explained in Jacobson v. U.S., the government "may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce the commission of the crime so that the government may prosecute...the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by government agents."

In New York, Penal Law Section 40.05 defines the affirmative defense of entrapment and helps explain why New York defendants rarely successfully prove entrapment.  New York's definition of entrapment is where "the defendant engaged in the proscribed conduct because he  was  induced or  encouraged  to  do  so by a public servant ... seeking to  obtain  evidence  against him  for  purpose  of criminal prosecution, and when the methods used to obtain such evidence were such as to create a substantial risk that  the offense  would be committed by a person not otherwise disposed to commit it. Inducement or  encouragement  to  commit  an  offense  means  active inducement  or  encouragement.  Conduct  merely  affording  a  person an opportunity to commit an offense does not constitute entrapment."

First, entrapment is an affirmative defense, so the burden of proof is on the defendant.  Second, in New York State, inducement to commit the crime must be more than just providing a person an opportunity.  Thus, if you are walking in Times Square on your way to a Broadway show and an undercover asks you if you want to buy cocaine and you say yes, under New York law, an entrapment defense likely will not succeed.  Even though there is no evidence that you were pre-disposed to committing the crime, and the criminal idea originated with the undercover, all he did is afford you the opportunity to commit the crime, and under New York State law, that is not entrapment.

Thus, under either federal or New York State law, our first imaginary defendant is going to lose on  his entrapment defense because he engaged in a sexual conversation with a person who identified herself as a 15 year old girl and he suggested that they meet in person.  Even though "she" was a willing participant, and may have encouraged him, it cannot be said that the government originated the criminal act, induced the commission of the crime or that the defendant was not already disposed to commit the criminal act.  Person A, on the other hand, was just walking down the street when a government informant begged him for drugs because he was in so much pain.  Person B originated the criminal scheme and Person A otherwise showed no inclination toward selling drugs.  Under Jacobson, he will probably succeed with an entrapment defense.  He would also likely succeed under New York law because the undervocver did more than just provide an opportunity, he begged Person A and convinced him to help out a sick person who was in pain.  This is probably more than just "providing an opportunity."

Going back to the would be "Bronx Bombers," the defense argued that these four defendants had no real ability or motivation to commit this crime without the prodding and assistance of the FBI informant.  It was the informant who provided the defendants with money, technology, a plan and a motive.  As one legal scholar stated, "they took people who might or might not commit hate crimes, and led them along the path to jihad.”  But even this was not enough to convince a jury that the defendants were entrapped.  Thus, the lesson I take from this case, and the lesson every defendant who says "I was framed" should take, is that your chances of winning with an entrapment defense are just about as good as the chances of the Pittsburgh Pirates winning the world series.  Neither are bets I would make.

Second Circuit Grants Immunity To Officer Who Arrested Defendant On Statute That Was Declared Unconstitutional 18 Years Ago

New York State previously had a statute on its books, Penal Law 240.35(3), which prohibited loitering in a public place for the purpose of engaging in "deviate sexual intercourse."  The statute was passed to "punish conduct anticipatory to the act of consensual sodomy."  Because the consensual act of sodomy is not criminal, the highest Court of New York ruled that loitering for the purposes of a non-criminal act, likewise could not be criminal.  People v. Uplinger.  This decision was rendered in 1983.

Despite the fact that this statute was found to be unconstitutional in 1983, in 2001, an Ithaca, New York police officer arrested a man under this statute  whom he had been watching in a local park for asking the officer if he wished to engage in consensual oral sex.  The man was detained and then driven to the police station for the officer to prepare an accusatory instrument.  The man was given a date to return to court and eventually released.  The City prosecutor eventually dismissed the case and informed the officer that the statute he arrested the man under had been unconstitutional for 18 years.

The man sued the individual officer and the City of Ithaca.  Police Officers typically have immunity from prosecution for official conduct if their conduct did not violate clearly established rights of which a reasonable person would have known or if it was objectionably reasonable for them to believe that their actions did not violate these clearly established rights.  In Amore v. Novarro, the Second Circuit ruled that the officer was entitled to immunity because he did not know that the statute had been declared unconstitutional because the statute continued to be published in official recitations of New York law.

The facts of this case are rather unique.  Despite the fact that the statute was declared unconstitutional, it still appeared in copies of the New York Penal Law, was available from on-line legal publications like Westlaw and Lexis, and was treated as a current statute by the New York Legislature.  As such, the Court ruled that the officer had sufficient reasons not to know that the statute was unconstitutional.

I find this decision to be somewhat amazing.  If nothing else, we have to expect that our police officers are acting with an understanding of the law.  The law typically, and in my opinion must, impute knowledge of the law to public officials.  However, the Court essentially disregards this as a "legal fiction."  In doing so, it disregards the holdings of two other circuit courts that had previously ruled that an officer was not entitled to qualified immunity for arrests made under a statute that had long ago been declared unconstitutional.

While I take some comfort in the fact that this case was so unique that its holding is unlikely to have much precedential value, it is still is amazing to me that an officer can escape punishment for an arrest based upon a statute that had been unconstitutional for almost two complete decades.  What's worse is that the officer admitted that the Ithaca police "were cracking down on this kind of activity in the park."  In other words, according to the officer, the police were using a statute that had been unconstitutional for 18 years to "crack down" on conduct that the highest court in the State ruled was permissible conduct.  At least the Court did not touch a ruling allowing the case to go forward against the City of Ithaca for failing to properly train its officers.  If that isn't as close to a slam dunk case as exists, I don't know what to think.

Court Rejects Tax Deduction For "Theraputic Prostitution"

I am hardly shocked that this case was filed pro se.  For those of you who don't know, "pro se" means without a lawyer.  However, in this case, the pro se petitioner is a 79 year old tax lawyer.  I guess the old adage is true, a lawyer who represents himself has a fool for a client.

ISSUE

Whether the Division of Taxation properly disallowed petitioner's claimed itemized deductions of medical expenses for amounts paid for erotic materials, sexually related publications, male enhancement pills, and miscellaneous services performed by prostitutes...

FINDINGS OF FACT

...For the 2002 tax year, petitioner claimed a medical expense deduction of $105,271.00, after the 7.5 percent limitation on federal adjusted gross income (AGI). Included among the medical expenses claimed was an expense of $111,364.00, of which $40,588.00 was categorized on an attachment to Schedule A on petitioner's federal return as "therapeutic sex" and $70,776.00 as"massage therapy to relieve osteoarthritis and enhance erectile function through frequent orgasms." Also included as part of the medical expense deduction claimed were the sums of $658.00 for medical books, videos and periodicals and $2,173.00 for "pornography to enhance sexual performance in lieu of taking Viagra."...

The $111,364 of expense for sexual activities with prostitutes is being disallowed as an itemized deduction for medical expenses because these expenses are not deemed to be allowable medical expense deductions. Also, the expenses incurred are illegal in New York State. Illegal treatments cannot be included in medical expenses. In addition to being illegal in New York State, these expenses are not substantiated with receipts. In addition, $2,160 and $658 of expenses that were primarily pornographic or sexually related are also not allowed as a medical expense because these expenses are not deemed to be allowable medical deductions. In addition, some of these expenses are not substantiated with receipts.

The moral of the story is two fold.  First, while Viagra may be deductible, "other methods" of stimulation are not.  More importantly, make sure to ask your prostitute and smut dealer for a receipt.  I would love to see THAT interaction.

Buying The Designated Driver Alcohol Is Stupid, But Not Costly*

I wrote last month about Braylon Edward's drunk driving arrest and New York State's drunk driving laws.  Edwards was lucky that there was no accident.  Not just for his safety and that of his passengers, other drivers, and pedestrians, but because penalties are often more sever when there is an accident.  However, in addition to criminal penalties, drunk driving accidents often result in civil lawsuits as well.

Anyone harmed by a drunk driver is likely to sue not only the driver, but also the person who provided the alcohol.  Thus, it is not uncommon for an accident victim to sue a bar for serving a person who went on to drive drunk and cause an injury.  One Nassau County bar, faced with a lawsuit from the victim of a drunk driver, tried to put a novel twist on an old routine. 

The facts of the case are as follows.  Plaintiff, Defendant, and two friends went drinking at the Nassau County bar.  Defendant agreed to serve as designated driver, but the two friends spent all night buying him drinks which the defendant bar continued to serve.  When Defendant attempted to drive in an inebriated state, he was involved in a one-car accident that injured the Plaintiff.  When the Plaintiff sued the Defendant and the Defendant Bar, the Defendant Bar turned around and sued the two friends for buying their designated driver alcohol.

The Nassau County Court dismissed the bar's case.  In doing so, the Court rejected the Bar's position that those who benefit from an agreement with a designated driver owe a duty to third parties not to then buy the designated driver alcohol.  While a moral duty may exist, no legal duty exists to prevent injuries to third parties and the existence of the designated driver agreement does nothing to change this general rule.  Buying your designated driver alcohol may be enormously stupid, but, it appears that it won't subject you to a lawsuit.

Before you go out and celebrate the fact that buying your designated driver a drink may not subject you to civil liability, it is plausible that it could subject you to criminal liability.  Some states have prosecuted people who assist drunk drivers, typically by letting them drive their car when they have reason to know they are drunk.  It is not inconceivable to me that buying your designated driver drinks. and then letting him drive drunk, could result in criminal charges for aiding abetting drunk driving, especially if it results in injury or death to a third party.  As New York continues to aggressively fight drunk driving, it would not surprise me if the test "aiding and abetting" case is right around the corner.

 

The Only Brady I Don't Boo

Yesterday was First Monday, the beginning of the Supreme Court's new term.  This year marks the debut of new Associate Justice, Elena Kagan, although she will sit out about half of the announced cases because she played some role in them as Solicitor General.  One case worth looking out for is Connick v. Thompson, a case about municipal liability, but really about the fairness and justice we expect from our criminal justice system.

John Thompson (no, not the famous Georgetown Hoya coach) spent 18 years in prison, with most of it in solitary confinement for crimes including capital murder.  Weeks before his scheduled execution in 1999, with Courts up to the Supreme Court rejecting his pleas of innocence, the case against him began to unravel.  Defense attorneys learned that Thompson's conviction was only procured by repeated failures of the District Attorney's office, led by the infamous Harry Connick (yes, father of the famous singer), to turn over exculpatory evidence.  Most disturbingly, the District Attorney's office had conducted blood tests that revealed that Thompson could not have been the killer, but failed to reveal this to the court, or defense attorneys.  This led to further revelations that the District Attorney's office had suppressed police reports showing the description of the perpetrator matched someone else, that a witness (the man who actually committed the murder) had repeatedly changed his story, and that several other witnesses were interviewed by the police but were never identified to defense counsel.

Once a few weeks from execution, Thompson was retried and the jury acquitted him in under 35 minutes.  For his 18 years in prison, including four after learning of the secret blood test, Thompson won $14,000,000 in a civil trial.  The rather mundane legal issue that the Supreme Court is deciding relates to municipal immunity and whether a municipality should be liable for constitutional violations of individual assistant prosecutors.  However, the facts and implications of the case go to the very core of our criminal justice system.

 A prosecutor's job is not to secure convictions, but to "do justice."  Over the years procedural rules have been created to ensure this distinction.  One such rule, called the Brady Rule (not the one about protecting the New England QB at all costs), requires prosecutors to reveal exculpatory evidence to the defendant.  Thus, if the defendant is black and the police learn from an eye-witness that the assailant was white, the prosecution must reveal this to the defendant, it cannot just ignore this witness and proceed with the case as if this never happened.  Violations of Brady can result in reversals of convictions.

Whether a piece of evidence is actually exculpatory, and therefore must be revealed, is often a close call.  However, in the Thompson case, there are no close calls.  I don't think any honest prosecutor would argue that blood evidence found on the victim, and not matching either the victim or the defendant, was not exculpatory. However, Harry Connick's office may not exactly be honest.  As the Innocence Project details in its Amicus Curiae, "a significant number of the thirty-six death penalty convictions obtained...under Harry Connick's tenure as District Attorney...involve[d] Brady violations."  Four of the defendant in those 36 convictions were exonerated or pardoned because of brady violations, one had his sentence reduced, and two had convictions reversed on other grounds.  For those playing at home, 20% of Connick's death penalty convictions were later found to be constitutionally or otherwise suspect.  This is not an acceptable number to anyone who cares about a fair criminal justice system.

I did not, and do not intend to, go into the law pertaining to municipal liability.  If you are interested in this, you can read the Amicus Curiae of the District Attorney's Association of the State of New York (who I was disappointed to learn opposed municipal liability in this case) or one of the other interested parties (including my alma matter, the Benjamin N. Cardozo School of Law, home of the aforementioned Innocence Project).  For me, this is not a close call at all.  Whatever rule the Court sets for municipal liability, a prosecutor's office with a history of knowing violations of the Constitution must be held accountable when a man spends 14 years in solitary confinement for a crime he didn't commit because multiple prosecutors suppressed evidence of his innocence.