March 30, 2014

Snowmobiling while Intoxicated (and Overly Free-Wheeling Four-Wheeling), Etc.

Snowmobile.jpgIn our entry of March 13, 2014, we discussed 'boating while intoxicated' and/or the consequences of whetting your whistle on the water. We look this week at the sorts of trouble you can get into - without getting your feet wet - all in the name of having a good time.

The law clearly tries to cut the recreational vehicle user some slack. As we pointed out last time, convictions for 'boating while intoxicated' or for 'snowmobiling while intoxicated' aren't currently reported to DMV. And, as we'll see below, you can get away with some things on your own property that would be offenses anywhere else. Things have tightened up a bit over the last ten years, though.

Once upon a time, you couldn't commit vehicular assault or vehicular homicide with a boat or a snowmobile. We're linking here to People v. Davis, an appellate decision from 1991. The court there considered (and dismissed) the argument that a snowmobiler might be convicted of vehicular homicide.

Decisions like Davis were implicitly overruled by 'VaSean's Law', which was passed in 2005, and made changes to the laws concerning vehicular assault and homicide (see, for instance, Penal Law Sections 120.03 and 125.12). These statutes now explicitly apply to boats, snowmobiles, and all-terrain vehicles.

Like so many things, of course, one of the keys to committing these crimes is alcohol. So we thought we'd examine some of the mischief you can do with an All-Terrain Vehicle, after we say good bye to winter with a brief glance at snowmobiling while intoxicated.

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March 13, 2014

Boating While Intoxicated (and Other Recreational Crimes)

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A recent story in the Utica Observer Dispatch reminds us that it isn't always winter in upstate New York. Spring will come, the piece suggests - a time when snowmobilers will regretfully put away their noisy machines, and boaters will again take to the mountain waters.

It also reminds us that alcohol and just about any recreational activity don't mix.

The story concerns Janelle Nixon, who was accused last summer of ramming another boat with her own, while drunk, and injuring two people. She was not accused of harming anyone intentionally. "Very simply," said her attorney, who was quoted in the article, "she had never driven a boat before, was unsure where the controls were and what they actually did." There was also evidence, apparently, that she had been drinking.

Ms. Nixon ultimately pled guilty in Herkimer County Court to assault in the third degree and 'boating while intoxicated'; these are misdemeanors. She had faced even more serious charges, according to an earlier article in the Adirondack Express.

Those original charges had included operating a vessel while intoxicated; operating a vessel with .08 percent or more of 1 percent of alcohol; and two counts of vehicular assault in the second degree. The alcohol-related charges are both misdemeanors, but vehicular assault 2nd is an E felony; the maximum sentence is 1 1/3 to 4 years in state prison.

'Operation of a vessel while under the influence of alcohol or drugs', more commonly known as 'boating while intoxicated', is defined in Section 49-a of New York's Navigation Law, and its language closely tracks that of the state's DWI/DUI statute, Section 1192 of the Vehicle and Traffic Law. Operating a vessel when you're impaired by alcohol to any extent is a violation. This parallels subsection (a) of Section 1192. And, as in subsections (2), (3) and (4) of 1192, operating a vessel with .08 percent or more of 1 percent of alcohol and/or 'in an intoxicated condition' and/or 'impaired by the use of a drug' is a misdemeanor, if it's a first offense. A second conviction of any of these - initially misdemeanor - offenses within 10 years is a felony.

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February 27, 2014

More 'Polite Coercion' - Confessions, Lies, and Videotape in New York

Goya Witches.jpegIn our entry of January 15th, we discussed two pending Court of Appeals cases testing just how far law enforcement can go, when it comes to misrepresentation, mendacity, and prevarication.

Both cases, People v. Thomas and People v. Aveni, were decided last week, and both came down in favor of the defendant, although they'd arrived at the Court of Appeals in very different postures.

Thomas reversed a decision by the Appellate Division, Third Department. That decision, in turn, upheld a ruling by the Rensselaer County Court which denied the defendant's motion to suppress a videotaped confession.

In People v. Aveni, on the other hand, the Court of Appeals dismissed the prosecution's appeal from an Appellate Division (Second Department) decision reversing a trial court ruling that denied suppression. (Aveni also touches, incidentally, on the issue discussed in our February 6th entry; Mr. Aveni had been convicted of criminally negligent homicide for injecting the decedent, allegedly, with the drugs that had killed her.)

In both cases, the defendant was essentially told that his confession could save the decedent's life. In neither case was that true.

Continue reading "More 'Polite Coercion' - Confessions, Lies, and Videotape in New York" »

February 14, 2014

Urban Legends and Appearance Tickets in New York

Daumier Attrib 2.jpeg It's a snow day here in upstate New York. The schools are all closed, and throughout the Capital Region, children are at home watching TV, while their parents shovel snow and try to coax them outside.

Now, adults tend to think that snow storms are natural phenomena and that school closures are a natural consequence of heavy snow. But fourth graders know better. A nine-and-a-half year old we know has explained how she herself brings about snow days, and it's a simple, three step process. (1) Leave four spoons in the freezer overnight; (2) flush three ice cubes down the toilet; and (3) sleep with your pajamas inside out, and backwards.

Not that adults are immune to magical thinking. "The judge has got to dismiss this ticket," one man assured us. "The trooper wasn't wearing his hat when he gave it to me. If the trooper isn't wearing his hat, the ticket's no good, right?" This shows a touching and naive faith in human nature, but it's a myth.

There is actually some mystery surrounding traffic tickets, as we'll get into below. For one thing, where do troopers get the authority - with or without the stetson - to issue them for traffic violations they didn't witness themselves? But while the Criminal Procedure Law (CPL) requires that a ticket be issued "by a police officer or other public servant authorized by law to issue same," it says nothing about hats.

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February 6, 2014

Philip Seymour Hoffman and New York Law: When is an overdose Homicide?

Arrest Sourced.jpegThere has been a lot of coverage and commentary concerning the recent death - apparently by drug overdose - of Philip Seymour Hoffman, the noted actor. One article that raised an interesting issue was published a few days ago in the Guardian. It concerns the attempt to find out exactly who had provided the drugs that killed Hoffman. Per the article:


The New York police department's intensive effort to determine the source of the drugs in an apparent accidental overdose is unusual. Courts have found in past rulings that under state law drug dealers can't be held liable for a customer's death.

Some quick research suggests that this is more or less correct. A 1972 decision immediately turns up - People v. Pinckney - an appellate division ruling later affirmed by the state's highest court, the Court of Appeals. The court in Pinckney reviewed New York's overall statutory scheme for dealing with drug offenses. Noting, first, that it was comprehensive and, second, that it didn't include enhanced penalties for drug sales just because the use of the drug resulted in the death of the customer, the court concluded that New York's Penal Law does "not make the act of selling a dangerous drug, which, when injected . . . , causes the death of the user, a homicide."

But it's a bit more complicated than that, as we'll get into below.

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January 31, 2014

The Scourge of Unlicensed Back Rubs in New York

Adam and Eve Attrib.jpegAn article in the Saratoga Springs Saratogian caught our eye recently, for a couple of reasons. One was an apparent irony in the charges, which we'll get into below. The other, admittedly, was nosiness: the story involves 'the Happy Angel Spa' - a business located on our very street - and charges that arose, according to police, because 'the Happy Angel Spa' "was not just a massage parlor."

We presume that the defendants here are innocent, but what might 'not just a massage parlor' mean? Well, one of the defendants has been accused of Prostitution. That term can cover a lot of ground: it includes any form of sexual conduct (or an offer to engage in sexual conduct) in exchange for a fee. 'Sexual conduct', defined here in the context of sex crimes, would, in turn, include just about anything you could imagine.

Prostitution is a class B misdemeanor. The maximum penalty is three months in the county jail or a year's probation and/or a fine. ('Patronizing a prostitute', although it's not charged here, would actually be more serious; it's a class A misdemeanor. That can cost a year in jail, or three years' probation.)

Prostitution is not the most serious charge faced by the 'Happy Angel' defendants, though. It's one thing to perform an act - like exchanging money for sex - that's completely illegal. It's quite another - and far more serious, in this case - to do something that's completely legal but that you, personally, aren't authorized to do. And that's where the irony comes in.

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January 15, 2014

Police Interrogations and Polite Coercion

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Photo Credit: Tillman B. Johnson, Sr. (Texarkana Gazette) [Public domain], via Wikimedia Commons

You sit in a dimly-lit interrogation room across from a police investigator. He is interviewing you in connection to a serious crime. You finish telling your side of the story and lean back in your chair. With an expression of intense concentration the officer asks you (for the second/umpteenth time?) if you committed the crime. You say, of course, that you did not do it. Out of the blue the officer, stumbling over his words, asks you a bizarre non sequitur: "And, uh--I--you know, you, you're giving me, uh, what do you think should happen to somebody like this?"

How are you supposed to respond to that question? What does he even mean? What is happening here? You have just witnessed the clumsy application of a police interrogation technique meant to make you exhibit some sort of sign of anxiety. While you respond to the officer's questions he is on the lookout for you incriminating yourself by shifting in your uncomfortable seat, or by flicking some lint off your sleeve. A single inadvertent motion and that investigator may have now pegged you as a liar--and quite possibly guilty of whatever crime is being investigated.

Where this technique came from has been in the news, lately, along with such questions as whether it's good for anything but getting false confessions, and the proper role - if any - of lying and cheating in the criminal justice system. We'll get into that below.

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December 3, 2013

Lowering the Boom (and the Bar) in New York Drunk Driving Prosecutions

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This is the third in a series of entries about the US Constitution's 'confrontation clause'. In May we published a very brief overview and history of the provision, which is found in the Sixth Amendment, and in August we got into the nuts and bolts of Crawford v. Washington, a Supreme Court case that set the stage for today's 'confrontation clause' confrontations.

That decision concluded that "where testimonial evidence is at issue" the Sixth Amendment demands, in its simplest terms, an opportunity for cross-examination. Crawford didn't tell us, though, just what's included in that term 'testimonial', and how 'non-testimonial' hearsay might be treated by individual states.

Which brings us once again to People v. Pealer, a recent decision from New York's highest court, the Court of Appeals.

In our September 5th entry, we addressed a secondary topic noted in Pealer: the fact that driving around with a transparent sticker on your rear window is actually illegal. This time around we'll take a quick look at the primary issue in the case.

Robert Pealer, the defendant, had been charged with driving while intoxicated. How did the People know he was intoxicated? A breathalyzer test. How did they know the breathalyzer was working properly? A 'certificate of calibration', a 'certificate of maintenance records', and a certification of the sample of the simulator solution used in the machine - a rubber stamp, essentially.

Not surprisingly, Mr. Pealer didn't think this was sufficient. He thought he had a right to cross examine the person or persons who prepared those certificates. But he was wrong, according the the Court of Appeals, as we'll see below.

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October 29, 2013

Fake IDs in New York - Just Don't!

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We've had a number of cases, recently, involving college students arrested with fake driver's licenses. This isn't really surprising in Saratoga Springs. There's an 'attractive nuisance' here in the form of the Saratoga Performing Arts Center, a music venue that sells alcoholic beverages.

It is surprising that these students clearly had no idea what they were getting themselves into when they obtained - and then tried to use - the licenses.

For one thing, it's a crime to buy a fake ID in New York. Vehicle and Traffic Law Section 392-a prohibits buying or selling a false, fraudulent or stolen license, or identification card. A first offense is a misdemeanor. A second, within five years, is a felony.

Get caught using a fake ID to buy alcohol, and you'll face vehicle and traffic - or even criminal - charges. You can expect administrative sanctions, as well, as we'll discuss below.

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September 17, 2013

New York Vehicle and Traffic Round Up


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It's been a busy year in New York, when it comes to vehicle and traffic laws and regulations. In many ways the field has been turned upside down by non-legislative, regulatory action relating to relicensing of drivers with a history of alcohol-related offenses. We noted DMV's new relicensing regulations when they came out, and in a future entry we'll get into the fall-out for the drivers affected.

The governor and legislature have been active in other areas as well, including changes to 'anti-cell phone and 'anti-texting' laws and regulations; increased surcharges; and 'Alix's Law', an ongoing attempt by the legislature to deter leaving the scene of an accident.

'Anti-Cell Phone', 'Anti-Texting' Changes

Both the legislative and executive branches have been working to make the world a sadder place for distracted drivers.

By executive fiat (we're linking to a press release from the governor's office), Governor Cuomo has increased the penalty for cell-phone use and texting by drivers. It's now a five-point violation. This is the same number of points as you would receive for a reckless driving conviction. Even if you formerly had a clean record, you would be almost half way to a license suspension; you would be one point away from a $300 driver responsibility assessment.

That's if you're an adult. As for probationary drivers and holders of junior licenses, the Legislature has amended Sections 510-b and 510-c of the Vehicle and Traffic Law. If you're in either of those categories and you're convicted of cell-phone use or any use of a 'portable electronic device' (this includes texting), you get both the points and at least a 60-day suspension.

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September 5, 2013

Rear Window Stickers are Illegal in New York

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Did you know that the college sticker in your car's rear window is an invitation for any police officer to pull you over? Don't take our word for it - read the law; you'll find it (if you look very carefully) in Sub-paragraph '(i)' of Paragraph '(b)' of Subsection '(1)' of Section 375 of New York's Vehicle and Traffic Law. And the law is very clear: "[t]he use or placing of posters or stickers on . . . rear windows of motor vehicles is . . . prohibited."

You might want to take a look at Subsection 32 of Section 375 while you're at it. A sticker in your window can cost you $150 (plus surcharge), 30 days in jail, or both.

While 'ignorance of the law is no excuse', though, no one really expects you to read every sentence of every statute ever published. The way a government spreads the word about a law is by enforcing it. So, the real reason you didn't know you were an outlaw, a scofflaw, and a desperado, is that you never got a ticket for having a sticker in your window. No one ever does get a ticket for it - at least, no one ever gets pulled over for that alone.

The 'no-sticker' statute is only used when law enforcement wants to bust your chops over something else.

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August 5, 2013

Oh My God! They [Almost] Killed Kenny! (Please Let Me Face My Accuser Part 2)

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We began the tale of Mike and Sylvia and Kenny in an earlier entry, and we continue it today: Mike Crawford and his wife, Sylvia, you will recall, were visiting with Kenny Lee. Kenny got knifed - and accused Mike of doing it. Sylvia gave a statement to the police, who recorded it. Although Mike invoked marital privilege at his trial, the recording of Sylvia's out-of-court statement was played for the jury. Mike got convicted.

His case, Crawford v. Washington, wound up in the US Supreme Court.

Mike's position was that it wasn't fair to introduce an untested statement against him at trial - his lawyer, of course, hadn't been able to cross-examine Sylvia in the police interrogation room.

The state's position was that even without an opportunity to cross examine, Sylvia was unavailable as a witness (because of the marital privilege), and the statement was 'otherwise reliable'

That term, 'otherwise reliable', had come from a 1980 opinion of the Supreme Court, in a case called Ohio v. Roberts. The rule, as set forth in Roberts, was that

[W]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. even then, his statement is admissible only if it bears adequate "indicia of reliability." reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.

But what did 'reliable' mean, when it came to hearsay? And what in the world were 'indicia of reliability'? In trying to answer these questions, courts were all over the place.

The Crawford court, in an opinion by Justice Antonin Scalia, decided that the answers were irrelevant, as we'll see below.

Continue reading "Oh My God! They [Almost] Killed Kenny! (Please Let Me Face My Accuser Part 2)" »

May 30, 2013

From 'Not Impaired' to 'Drunk' - With a Stroke of the Pen

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The National Transportation Safety Board (NTSB) wants states to make major changes to their drunk driving laws. In a new safety report, Reaching Zero: Actions to Eliminate Alcohol-Impaired Driving, the NTSB has published a wish-list that includes

reducing the per se blood alcohol concentration limit for all drivers; conducting high-visibility enforcement of impaired driving laws and incorporating passive alcohol sensing technology into enforcement efforts; expanding the use of in-vehicle devices to prevent operation by an impaired driver; using driving while intoxicated (DWI) courts and other programs to reduce recidivism by repeat DWI offenders; and establishing measurable goals for reducing impaired driving and tracking progress toward those goals.

What got everyone's attention was the first item: reducing the per se blood alcohol concentration. The "per se blood alcohol concentration" is the magic number that makes it criminal to drive. Right now, every state in the union has that number set at .08 percent. The NTSB wants to make it .05.

Dozens of countries have already implemented the .05 standard, according to a table available through the International Center for Alcohol Policies' 'Drinking and Driving' webpage. These include such diverse places as Cambodia, Israel, Denmark and Peru. Many countries have even lower tolerances. In Lithuania, for instance, the standard is .04; in Japan it's .03; in Norway it's .02; and in Algeria it's .01.

Would lowering the per se blood alcohol concentration (BAC) really reduce the number of fatalities on our roads? It's hard to say, as we'll see below.

Continue reading "From 'Not Impaired' to 'Drunk' - With a Stroke of the Pen" »

May 9, 2013

Please - Let Me Face My Accuser!

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One of the hot topics in criminal defense these days is the sixth amendment's 'confrontation clause', and we thought we'd take an extended look at it.

The Sixth Amendment to the US Constitution includes the rights to speedy trial, to a jury, and to the assistance of counsel. It also states that "the accused shall enjoy the right . . . to be confronted with the witnesses against him . . ."

What does it mean to have the right to confront witnesses? If we take a look at Merriam-Webster's online Dictionary, the first meaning listed for the word confront is "to face especially in challenge: oppose" (as in "confront an enemy"). In other words, the right to confront really has to mean the right to challenge.

Where does this right come from and how long has it been around? The New Testament recounts the rescue of St. Paul from a rioting mob. His rescuers having decided to torture him to find out why the crowd was so upset, Paul reasonably asked "Is it lawful for you to scourge a man that is a Roman, and uncondemned?" The key word here was 'Roman'. As set forth later in the same source:

It is not the manner of the Romans to deliver any man to die, before that he which is accused have the accusers face to face, and have licence to answer for himself concerning the crime laid against him.

This looks a lot like a Roman form of the Confrontation Clause, at least in death penalty cases. In short, the principle has been around for a long time.

So what does our Confrontation Clause look like in action? In principle, witnesses testifying against the accused must come into court themselves - not just to give the testimony their proponent has prepared them to give - but to undergo cross examination by the other side. Vigorous cross examination is the way we challenge and test witness testimony in our courts. Essentially, the right to confront your accuser has no meaning if it doesn't require the accuser to be subjected to cross examination.

Mike and Sylvia and Kenny: Close Encounters of the Out-of-Court Kind

The current playing field was laid out by the US Supreme Court in 2004, in a case called Crawford v. Washington.

On August 5, 1999, Michael Crawford and his wife Sylvia called on Kenny Lee at his apartment. Mike apparently believed that Kenny had tried to rape Sylvia earlier, and he may or may not have come with the intention of having an adult conversation about it. The private tete a tete a tete ended in a fight, however, and Kenny got stabbed.

Continue reading "Please - Let Me Face My Accuser!" »

March 22, 2013

Bail (and Jail) in New York

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According to the latest figures published by New York's Division of Criminal Justice Services (DCJS), there were 576,319 arrests in the state during 2011. 576,319. That's 93 fewer arrests than there are people in the state of Wyoming! And DCJS statistics don't include arrests for violations such as harassment or disorderly conduct.

Even assuming some duplication (and we've certainly had more than one client who's been arrested more than once in a year) that's still a prodigious number of people cast into a pretrial purgatory. You might be innocent - you're certainly 'presumed' innocent - but you wouldn't know it from the way you're treated.

The court is required to issue a securing order anytime a defendant's "future court attendance at a criminal action or proceeding is or may be required[,]" and that securing order will either release you on your own recognizance, send you to jail, or fix bail.

Bail has been around in one form or another for at least a thousand years, according to an informative blog post by author Susan Higginbotham. In fact, the bail system was given what might be called its modern form more than 500 years ago, during the reign of Richard III: In 1484, Parliament gave judges discretion to set bail upon an initial arrest for a felony

"[b]ecause various people are arrested and imprisoned daily on suspicion of felony, sometimes out of malice and sometimes on vague suspicion..."

When making bail determinations, a court is supposed to consider a number of factors, including ties to the area, employment and financial resources, and your criminal record if any.

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