Monday, April 29, 2013

It's a Dangerous World

The penalties for assaults become more severe the more serious the injury and the more dangerous the weapon used.

For example, breaking someone's nose with a fist is a misdemeanor, while breaking someone's nose with a bat is a felony because a bat is considered a dangerous instrument. But what else is a dangerous instrument? New York Penal Law Section 10.00(13) says it could be anything. What matters is how it was used.

Some examples of dangerous instruments:

Handkerchief People v. Cwikla, 46 NY2d 434 (1979) - The victim was gagged with one, which led to death by asphyxiation.

Sidewalk - People v. Galvin, 65 NY2d 761 (1985) - A bar fight where the defendant bounced the victim's head off the sidewalk, causing serious physical injuries.

Garbage bagPeople v. Abreu, 283 AD2d 194 (1st Dept.) - Defendant used a garbage bag to choke the victim

Footwear - People v. Carter, 53 NY2d 113 (1981) - Defendant stomped the victim in the face with rubber boots. The boots caused more serious injuries than what we would expect with bare feet. People v. Lappard, 215 AD2d 245 (1st Dept.) and People v. Lev, 33 AD3d 362 (1st Dept. 2006) say sneakers are dangerous instruments. Work Boots? Yes under People v. Elijah B., 28 AD3d 312 (1st Dept.). Plastic sandals? Of course, People v. Byrd, 51 Ad3d 267 (1st Dept.).

Braided Belt - People v. Curtis, 222 AD2d 237 (1st Dept.)

UmbrellaPeople v. Dones, 279 AD2d 366 (1st Dept. 2001) 

Flyswatter Handle - When used to assault a five year old child - People v. Wade, 232 AD2d 290 (1st Dept. 1996)

TV Remote - People v. Krotoszynski,43 AD3d 450

What are not dangerous instruments?

Human teeth - People v. Owusu, 93 NY2d 398 (1999). Unless they are sharpened or altered by the defendant to make them more dangerous. 

Saliva containing HIV - People v. Plunkett, 19 NY3d 400 (2012) - Since the saliva is part of a person, it cannot be considered a dangerous instrument. Dangerous instruments are items that someone uses other than their body parts to cause injury.

Many thanks to a former boss for compiling this list!









Friday, April 26, 2013

Just a Quick Pic

When I look out my office window, I stare across the street into the windows of the holding center, a temporary detention facility for defendants awaiting trial. The fact that I walk out of my building some days and come face to face with the family members of persons I am prosecuting is not lost on me.

But some days it provides amusement. I was crossing the street back to my office from the side with the holding center on it. A woman sat in her car, cell phone aimed at the holding center's windowed facade. I didn't think about it until I crossed between her and the building.

"Hey," she said.

I looked at her.

"Do you mind?"

"Mind what?"

"I'm taking a picture here."

I look at where the camera was facing and see a young male in the street, holding up a plastic bag with his name on it. I recognize it immediately as the personal property bag jailed defendant's possessions are housed in. He's holding it up towards his mother and smiling.

"It's his first time being locked up," she said.

I apologized for the intrusion and walked away, hoping that the single photograph is not the beginning of a lifelong album.

Monday, April 22, 2013

What is an Arrest?

This is not a post about Miranda rights and the unnecessary debate that is occurring in the media. If the police violate the law, the penalty is to suppress the evidence at trial. The entire world was determining whether the police violated a person's rights without hearing any of the evidence. As it turns out, no one could question the suspect anyway because he was intubated and sedated.

This post is about an arrest, or what it means to arrest someone.

First, the police must gather the evidence. They must speak to witnesses, gather physical evidence, and analyze the evidence. Once they determine a suspect, they then have to figure out the next steps. It is usually trying to get a statement from the suspect. If they cannot get a statement or he refuses to give one, the police can only arrest someone based on probable cause.

The post below appeared on February 20, 2012, on this blog, and explains what it means to arrest someone. 


Despite the three day weekend, I've spent a lot of time advising on criminal law. Through my years in law enforcement I've developed several good relationships with police officers. We've exchanged cell phone numbers and whenever I need anything on a case, I call them.

The reverse is also true. They call me when they need legal advice on a case or to ask if they have enough probable cause to arrest. As I thought about my conversations with several detectives this weekend, I thought a post on how a suspect gets charged with a crime is due.

The police have the authority to arrest any person when they have probable cause to believe the person has committed a crime. The police officers then decide the charges as well.

How do they attain probable cause to arrest? Some examples:

1) Observe the crime being committed (DWI, drug and gun possession)
2) A citizen informs the police about what happened and the police corroborate the information (robbery call and the victim provides a description. The suspect is arrested ten minutes later, one block away, and is identified by the victim).
3) Someone reports a crime, but there is no suspect. The police investigate and develop evidence against a person. (DNA hit in rape or burglary cases, following the paper trail in an embezzlement case).

The police file the charging paperwork at the time of the arrest. The defendant is then arraigned on this paperwork shortly after.

The time between the arrest and filing of charges is when an officer or detective usually calls me seeking advice. The questions are either is there enough probable cause to arrest or what charges should be filed. Many times I instruct the police to gather more evidence before charging.

Once a defendant is charged and arraigned an ADA looks at the case. If it's a misdemeanor, the ADA may need to file new charging paperwork if the charges the police filed were incorrect. If it's a felony, the grand jury indictment will charge the proper crimes so no changes are necessary at the outset.

The police do not need the district attorney's consent to arrest and charge person. It is the district attorney's discretion to decide which cases to prosecute, however. The DA's office can also direct the police to arrest someone who they did not arrest initially.

It's an interesting interplay between the police and ADA's. Most of the time we are of the same mindset regarding what should happen to a case. There have been many instances where we disagree though. At that point, the DA's office has the final say on whether to prosecute a crime.

So what was the result from all the phone calls over the weekend? The police arrested a suspect we've been looking for since the New Year.

Friday, April 19, 2013

Days to Reflect

The planned post for today did not seem a good fit considering the events in Boston this week, and specifically over the morning hours.

We of course remember the victims of the attacks. The killing of a police officer is another example of how dangerous the job of a police officer is. Every time they pull over a vehicle for a routine traffic stop, they are at risk.

The Boston Marathon bombing may change the shape of major criminal investigations. They crowd sourced some of the investigation to obtain every image and video they could from the events from the public. The media has played a significant role, both good and bad, in the investigation. It may come to play a critical role in the trial, if there is one. This is the first time I can remember that an entire area has been locked down due to the on-going investigation.

There will be a lot to discuss in the coming weeks, but today we will just pray for a safe resolution for all involved in the manhunt.

Monday, April 15, 2013

What is a Speedy Trial?

The New York Times reported on the long delays the Bronx court system experiences on a daily basis. In just that borough, there are about 800 indicted felony cases that are over two years old. That means there are 800 defendants, many of whom are incarcerated, waiting for their trial.

The article exposes some of the flaws of the court system and lays plenty of blame at the feet of all the parties involved. My favorite part of the article was the timeline of a day in a typical trial, where only about two hours of actual work was done in an eight hour day.

That's abhorrent, you say? Doesn't the United States Constitution guarantee us a right to a speedy trial? Aren't there state laws too? Yes, yes, and yes, but speedy trial doesn't mean what you think it does.

The Sixth Amendment guarantees us all the right to a speedy and public trial, yet it sets no time limits as to what a speedy trial is. The Supreme Court, in Barker v. Wingo, laid out a four part test to determine if a period of time violates a defendant's constitutional right:

1) What was the length of the delay,
2) What was the reason for the delay,
3) Manner in which the defendant asserts his right, and
4) Degree of prejudice to the defendant that the delay has caused.

There are no inflexible rules laid out by the Supreme Court or the Constitution, leaving it to the states to establish time limits. In New York State, the People must be ready for trial within six months of the filing of the charges or the case is automatically dismissed. C.P.L. Section 30. 30.

Six months? Then, what are all those people doing waiting for trial for two years and some even up to five years? Shouldn't those cases be dismissed?

The wording makes all the difference. The statute states that a dismissal must be granted when the People are not ready for trial within six months. It does not say that the trial must commence within six months. All that is needed to stop the speedy trial clock from ticking is, 1) an indictment is filed, 2) the witnesses are available, and 3) the People declare either on the record or in a letter to the defendant that they are ready for trial. If an arrest occurs on January 1, the speedy trial date is July 1. If an indictment is filed on February 1 and the People declare they are ready for trial, then the clock stops on February 1 and only 31 days out of the 180 days (six months) are charged against the time.

Ready for trial doesn't mean the trial will occur that day, or even soon after. It just means that the People can proceed to trial. The defense has to file motions, hearings have to be held, and plea bargaining can occur. Every time the case is on the court's docket though, the People must be ready for trial or the clock starts ticking again.

But there are many reasons that adjournments will not count against the speedy trial clock:

1) Motion practice,
2) Defense attorney doesn't appear,
3) Defendant doesn't appear,
4) Emergencies like storms and power outages that close the court,
5) Defendant is rearrested on new charges, or
6) The court isn't available.

There are simply too few courtrooms for the number of cases in the Bronx. There are over 800 two-year old indicted cases, but not enough judges, courtrooms, court officers, stenographers, clerks, and other personnel. Plus, prosecutors have dozens of indictments to manage and defense attorneys have hundreds of cases to control. Every felony trial takes at least two weeks to complete, leaving all the personnel involved unavailable to move other cases. This doesn't even consider the number of new cases coming through the system daily.

The problem in the Bronx Court is a matter of scheduling. After a case is indicted, it gets assigned to a calendar judge, who handles the case from the arraignment on the indictment until the motions are completed. Due to the volume of cases, every adjournment is at least a month long, with older cases moved quicker. Once motions are completed the case is scheduled for trial.

The calendar judge does not do the trial. She is merely a cog moving the cases through the mostly routine matters. On the date the case is scheduled for trial, the prosecutor must say they are ready for trial, the witnesses must be available, the defense attorney must be ready for trial, and the defendant must be present. Then, the calendar judge calls the clerk who then decides if there are any trial judges available. If there are, the case is sent to that judge for trial. If not, the case is adjourned for a month or more, with no speedy trial time charged because the people were ready for trial.

On any given day, there are probably 50 cases scheduled for trial with only at most 30 judges available to try them. Since a prosecutor or defense attorney can never be certain which case will actually go to trial because there is no certainty as to availability, they have to triage cases and decide which ones are the most important to move and most likely to move. If a prosecutor has five cases scheduled to begin on a Monday, they obviously cannot prepare all five of them adequately. They must decide which one or two to prepare and then hope that the rest of the components are in place when Monday rolls around so the case can actually move to trial.

Lingering cases are a travesty for everyone. The victims are denied swift justice and many times do not care two years later. Memories fade over time affecting the outcome of cases.Innocent until proven guilty defendants languish in jail for years.

The delays definitely can work to the advantage of unscrupulous prosecutors and defense attorneys. Prosecutors who are afraid of trials or who do not want to put in the work can find any reason to tell the court they are not ready for trial and simply request an adjournment of a few days. Since the court's calendar is so enormous, they cannot schedule it on the date requested and must push it out for a few months. Then, only the days the prosecutor requests count against the speedy trial time and the rest is excludable due to the court's need to control its calendar.

Defense attorneys know that witnesses' memories fade over time, victims become disinterested, move, or die, and that plea deals then become more beneficial. The attorneys can then find any reason to request adjournments and let cases languish for years until they get a great resolution. Plus, judges do not like to pressure defense attorneys to trial when they say they are not ready because they are afraid the case will get reversed on appeal.

The Times article barely mentions the corrections department's role in the delays. They have to move thousands of prisoners a day through the five boroughs. That means transports are shuttling back and forth between Riker's Island and the courthouse all day long. Not all defendants are in the courthouse at 9:30 a.m. If the defendant doesn't arrive until 11 or even 12, there might not be any courtrooms available for trial because cases called earlier already claimed them.

Most prosecutors and defense attorneys I knew did their absolute best to have their cases ready for trial on every possible date. Even still, older cases still took precedence and newer trial cases would get pushed for months. The starts truly need to align in the current system to get a case to go to trial.

The answer is a bitter pill for taxpayers to swallow - more court staff, which means more money to pay them. This, combined with judicial pressure on the prosecutors and defense attorneys will help unclog the gridlock, although it is difficult to see this problem ever going away forever. I would love to see every felony trial occur within 6 months of the filing of the charges. I think that is fair and would give both sides ample time to prepare.

Tuesday, April 9, 2013

How To Make a Decision

How do you make a life-altering decision? Maybe you weigh the pros and cons. Write a list and see which column has more. Talk to your family and friends and get their opinions? Or maybe you just throw the choices in a hat.

Would you let strangers make the decision for you? 

That's what Mike Merrill is doing. He sells stock in himself and then has those stockholders vote on every decision he makes. The decisions range from whether he should wear only Brooks Brothers shirts to whether he should break up with his girlfriend.

I always applaud creative and unique ideas, especially ones that are geared towards building a business. Merrill says he does it to to keep himself accountable. He just has to hope that all these people have his best interests at heart. But I suppose that's the idea. By getting people to risk money, they have a vested interest in seeing him succeed. It is arguably a good way to force him to take classes or perform other tasks to advance a career that he might not otherwise do.

It seems most people would love to buy into this strategy. This way we get to tell someone else what to do. And isn't it easier to make decisions for someone else? It's the do what I say, not what I do thing.

So what decisions would the world make for me? It's amazing to think about my life and how one decision could have changed everything. Would I have a different job? Live in a different city? Be the world's most successful rock star? 

The problem will come down to free will for Mr. Merrill. There will come a point when he is told to do something that he doesn't want to do by his stockholders. It might be something unethical or something that is totally rational that interferes with our irrational feelings, like love. The interests of a group of people in increasing the value of their investment will conflict with the interests of an individual who is looking to enjoy his life.

And then, he will have to make his own decisions.  

Monday, April 1, 2013

Like Father, Like Son, Like Brother?

As my wife and I pondered what to name our baby, we tossed around many names. Some we hated because of the sound, some because of the negative connotation it draws from knowing someone with that name. The conversation turned to whether we should name a baby boy after me. After all, I have my father's name. We have different middle names though so I am not technically a junior.

Then I remembered growing up. My mother yelling my name when she was calling for my dad or vice versa, opening my father's mail, answering my father's phone calls, and I still get all his AARP information.

In the end, we decided against it. But the conversation shook a story loose from the annals of my job.

A defendant was arrested for gun possession. Only, the arrest took place a month after the police saw him with the gun. He threw it and the police couldn't catch him that day. They knew who he was and arrested him the next time they saw him.

But there was a hiccup in the scheme and some things didn't add up. The defense attorney allowed us to talk to his client because he thought he was innocent. The conversation went something like this.

"Tell me your name," I said.

"Thomas Aaron Simpson," he said.

"What do you want to tell me?"

"I didn't do it. It was my brother. The cops arrested the wrong man."

I'd heard this story before. "Okay. So what's your brother's name?"

"Thomas Aaron Simpson."

"No, your brother."

"Thomas Aaron Simpson."

"No, not your name. Your brother's."

"Thomas Aaron Simpson."

The defense attorney gives me a little kick under the table, helping me realize I was mistaken.

Sometimes you just ask the obvious question. "So you and your brother are both Thomas Aaron Simpson?"


"Okay. Same mother, same father, or both?" I wanted to get some more detailed information to investigate.

"Same father."

"What's his name?" I should have known. I really should have.

"Thomas Aaron Simpson."

"All right. So where were you the night the police thought they saw you with a gun."

"I was home from the hospital with my wife and son. I'd just accidentally stabbed myself with a machete and just got home."

The first accidental machete stabbing I'd heard of.

"What's your girlfriend's name?" I needed to investigate the alibi.


"And your son?"

Do you think I should have guessed the answer by now? You'd be wrong.

"Thomas Aaron Simpson."

As it turns out, Thomas Aaron Simpson's DNA did not appear on that handgun. None of them. We dropped the charges.

And I did not name my son after me.

Like all my anecdotal posts, this is drawn from a mixture of cases and situations and was not a verbatim conversation from any one particular case or in any way providing confidential information. Nice disclaimer?