Criminal Law News Report
As provided by the New York State Association of Criminal Defense Lawyers:
SHOPPING FOR JUDGES IN SYRACUSE
by Craig P. Schlanger
Onondaga County District Attorney William J. Fitzpatrick recently continued his efforts to control the local judiciary by filing an Article 78 proceeding against two Syracuse City Court judges, Langston C. McKinney and Kate Rosenthal, seeking to restrain them from such "unlawful" arraignment practices as scrutinizing felony complaints for legal sufficiency and refusing to consider, for purposes of sufficiency or bail, information that the District Attorney had labeled "confidential" without providing that information to defense counsel.
On April 1, Supreme Court Justice Donald Greenwood heard oral argument on the Article 78 proceeding while some 300 spectators filled the courtroom and spilled out into the hallway. Both judges were present with their counsel from the Attorney-General’s Office. It should also be noted that the NYSACDL submitted an amicus memorandum of law, authored by Scott Greenfield, on behalf of the judges.
The orderly crowd, which Fitzpatrick later characterized in comments to the media as "mob violence", consisted largely of community activists, including representatives of the NAACP, and concerned citizens who have been increasingly outraged at Fitzpatrick's public criticism of McKinney, a well-respected and experienced judge and, with the exception of one part-time village justice, the only African-American in the Onondaga County judiciary. The oral argument was generally confined to the threshold issue of subject matter jurisdiction. Judge Greenwood reserved decision.
The ongoing controversy came to a head one week before the argument of the Article 78, when Brian Shaw, a Syracuse University student, was arrested and charged with murdering his estranged girlfriend. At Shaw’s Friday morning arraignment, McKinney called Chief Assistant District Attorney Patrick Quinn and defense attorney Thomas Ryan into chambers in order to discuss his concern that the factual allegations in the felony complaint tended to support a charge of manslaughter but not murder in the second degree. According to Ryan, Quinn agreed to cure the defect by filing supplemental papers, and McKinney continued the arraignment to the afternoon for that purpose.
Fitzpatrick fired off a letter to James C. Tormey, the Administrative Judge of the Fifth Judicial District, complaining about the ongoing struggles between the District Attorney’s Office and McKinney over the sufficiency of felony complaints. In his letter, Fitzpatrick asserted that McKinney had “completely overstepped his bounds” and asked Tormey to intervene immediately “to prevent a total miscarriage of justice” by asking Syracuse City Court Supervising Judge Jeffrey Merrill to arraign Shaw or by appointing another judge to do so.
In an “unusual–and astonishing and dangerous” move, (Syracuse Post-Standard editorial, April 7, 2005), Tormey immediately granted Fitzpatrick’s request and then some: He relieved McKinney of his arraignment duties for the rest of his arraignment term, which ended the following Sunday, and assigned Merrill to take his place. Merrill completed the arraignment of Shaw that afternoon and held him without bail on the basis of the original accusatory instrument.
Assembly Committee Kills Death Penalty Bill
Albany, April 12
Associated Press
The Democratic-controlled state Assembly's powerful Codes Committee voted 11-7 Tuesday not to let the full house vote on legislation aimed at reinstating New York's death penalty, a move that may kill the effort for this year. Such legislation has been pushed hard by Republican Gov. George Pataki and the state Senate's Republican majority leader, Joseph Bruno. In March, the GOP-led Senate voted, 37-22, in favor of an almost identical bill to the one rejected Tuesday. Pataki called the committee's decision "outrageous."
New York's death penalty was reinstated in 1995 by the Legislature and the newly elected Pataki who had vowed, as part of his successful campaign to oust then-Democratic Gov. Mario Cuomo, to bring capital punishment back. Cuomo, in 12 years as governor, had routinely vetoed death penalty legislation. A ruling last year by the state's highest court effectively declared the 1995 statute invalid. Since the law took effect, no person in New York has been executed although seven people were sentenced to death. "I'm very pleased," said Albany's Roman Catholic bishop, Howard Hubbard, after the committee vote he witnessed. "I think the death penalty has not proven effective and is morally repugnant."
Assembly Speaker Sheldon Silver, a Manhattan Democrat, has supported the death penalty in the past but cooled to the policy in recent months. Some former Democratic supporters, including Codes Committee Chairman Joseph Lentol, have gone even further and come out against the death penalty. Lentol told his fellow Codes Committee members Tuesday that advances in DNA technology have shown innocent people are too often convicted of murder. The Brooklyn Democrat said New York's life-without-parole sentences are sufficient. But Republican members of the Codes Committee argued the issue was too important to let it die without a vote by the full chamber. State Assemblyman David Townsend, a central New York Republican, said the legislation was needed "to protect the innocent people of New York from these monsters." "Once again the Assembly leadership is failing New Yorkers by refusing to enact tough criminal justice legislation that will reduce crime, save lives and protect our families," Pataki said. "The Assembly leadership's `So what' attitude toward criminals ... is simply shameful," Pataki added. "They need to stop protecting criminals and start protecting New Yorkers." Lentol told his colleagues they would likely be revisiting the issue, although probably not this year. "I don't think this issue will die today," Lentol said. "The nature of politics being what it is, it will be brought up again and again in years to come." In fact, Republicans may try to attach the death penalty to other legislation in the Assembly as an amendment. Such backdoor efforts, however, routinely fail on almost straight party-line votes.
There are currently 103 Democrats and 46 Republicans, with one vacancy, in the 150-member Assembly. Calling it "the democratic thing to do," a disappointed Bruno said, "I would have thought, minimally, they would allow that bill to go the floor." But death penalty opponents, including the brother of convicted Unabomber Ted Kaczynski, praised the action. "It was a great day," said David Kaczynski, who turned in his brother in 1996 after 16 explosions between 1978 and 1995 that killed three people and injured 29 others. "I think this is a giant step along the path to abolition of the death penalty" nationally, said David Kaczynski, executive director of New Yorkers Against the Death Penalty. His brother was sentenced to life without parole as part of a plea agreement in 1998.
In June, New York's Court of Appeals effectively placed a moratorium on executions with a 4-3 ruling that jury-instruction provisions in the 1995 statute could coerce some jurors into voting for death even if they opposed the penalty.
Probe Examines Judges' Actions In Plea Process
New York Law Journal
April 1, 2005
The State Commission on Judicial Conduct has opened an investigation that could end up drawing lines as to how far and in what manner judges can involve themselves in the plea bargaining process.
The commission is looking into a complaint against Acting Justice Rena K. Uviller to determine whether her involvement in a plea negotiation was coercive, according to several sources.
David Bookstaver, a spokesman for the court system, declined to comment.
Though the details of the complaint are unknown, the commission is reportedly looking at a practice that, in one version or another, is used by many judges to encourage pleas.
Indeed, because judges' involvement in the plea process is widespread, sources said, the commission's action has touched a raw nerve among some judges who sit with Justice Uviller on the Criminal Term of the Supreme Court in Manhattan.
The most potent form of a judge's participation in the plea bargaining process, several defense lawyers said, was developed by Acting Justice Harold W. Rothwax, who died in 1997.
It is common for the prosecution to issue a one-time-only offer of a lenient sentence early in a case. Justice Rothwax would commit to the prosecution's suggested sentence but warn defendants that if they did not accept the offer, the sentence they would face if they later pleaded guilty would increase by a set amount.
Defense lawyers said judges have adopted the Rothwax approach in different iterations. In a far less pointed version, a judge might tell defendants that based on their criminal histories and other factors they would face a longer sentence if they go to trial.
The commission's administrator, Robert H. Tembeckjian, declined to answer any questions about whether a probe of Justice Uviller is under way. But, speaking generally of the commission's work, he said, "Over the years, we have appropriately adjudicated gross abuses of judicial discretion — such as presuming guilt, coercing guilty pleas, misusing the summary contempt power and disregarding statutory mandates for setting bail — as violations of the Code of Judicial Conduct, which requires all judges to be fair, impartial and faithful to the law."
Those investigations, and subsequent proceedings, he added, have "always been sensitive to a judge's independence and exercise of discretion."
Before an investigation can be opened it must be approved by the 11-member commission.
Henry T. Berger, a former commission chairman, said one way the commission might deal with a broad question, such as the judicial role in plea negotiations, would be to issue a dismissal, coupled with a private caution to a judge. Then in its annual report, the commission could set forth its views on the issues raised by the case without disclosing the judge's identity, he said.
According to the commission's latest annual report, it opened 235 investigations in 2003. During that year it also dismissed 110 complaints against judges after conducting an investigation; issued 30 non-public letters of caution, combined with dismissals; and brought charges against 27 judges which could lead to a public sanction.
Defendants' Rights
In recent years, the commission has shown a greater willingness to view judges' disregard of defendants' rights as a violation of the state's judicial code, said Gerald Stern, a former commission administrator. Mr. Stern, who was the commission's chief executive for 28 years, said he has no knowledge of any investigations the commission has undertaken since he left in 2003.
"Coercing guilty pleas was once excused as a judge's effort to dispose of cases," he said.
"The present commission," he added, "appears to be sensitive to complaints that judges have coerced guilty pleas."
Mr. Stern pointed to the commission's determination to remove Troy City Court Judge Henry T. Bauer from the bench for setting high bail to coerce pleas and for failing to advise defendants of their right to counsel. The decision was affirmed by a divided Court of Appeals last year.
Mr. Stern also said that in 1998 the commission censured a town justice for threatening defendants with added charges and higher fines to coerce guilty pleas. Also, in 2002, a New York City Criminal Court judge was censured for giving the explicit message that she was using bail to coerce pleas from defendants reluctant to accept an offer.
COOP & CONDO CONVERSIONS
Different laws apply in various parts of New York State to the conversion of rental apartment buildings to cooperatives and condominiums. The laws' basic provisions are summarized here, and they are explained in detail in Section 4.
The Martin Act
The Martin Act (Article 23-A of the General Business Law) applies to the sale of all types of cooperatively owned real estate. The sale of co-op shares, condo units, or interests in homeowners' associations is subject to the Martin Act, as is the sale of other securities, such as stocks and bonds. The law requires that a complete description of these kinds of real estate interests be fully disclosed in an offering plan. No advertising or sales may take place unless the offering plan or prospectus, containing all the detailed information necessary for a purchaser to make a reasoned judgement about the decision to buy or not to buy, has been accepted for filing by the Attorney General.
The Cooperative and Condominium
Conversion Act
The Cooperative and Condominium Conversion Act, also part of the General Business Law, specifically regulates the conversion of existing rental buildings to cooperative forms of ownership. One section (352-eeee) governs the conversion of residential apartment buildings in New York City. A second (352-eee) applies to those cities, towns and villages in the counties of Nassau, Rockland and Westchester that have passed resolutions adopting the coverage of the law. A third (352-e(2a)) protects senior citizens and disabled tenants in the municipalities throughout the state that have adopted the law.
These laws provide specific protection for tenants living in buildings undergoing conversion, and require that offering plans include explanations of the rights and obligations of both purchasers and non-purchasers. These protections are explained further in Section 3.
The Rent Stabilization Law and Code and
The Rent Control Law
The Rent Stabilization Law and Code and the Rent Control Law offer additional protection for New York City tenants living in rent-stabilized and rent-controlled apartments undergoing conversion.
The Emergency Tenant Protection Act and
The Emergency Housing Rent Control Law
The Emergency Tenant Protection Act (ETPA) and the Emergency Housing Rent Control Law (EHRC) provide certain rights to tenants living in buildings outside New York City that are covered by these laws.
The Condominium Act
The Condominium Act details requirements for condominiums throughout the state (Article 9B of the Real Property Law).
