New York Criminal Law and Procedure

State Senator Hiram Monserrate found not guilty of felonies; guilty of misdemeanor

State Senator Hiram Monserrate has been on trial in Queens County for allegedly assaulting his girlfriend.  He opted for a bench trial.  Today, the judge found him not guilty of the most serious charges --- felony assault --- but guilty of reckless assault, a misdemeanor.  Sentencing will occur later this month.  (LC)

Field Trips for Insanity Patients?

This week, Washington State's mental health system came under fire after Phillip Arnold Paul, an insanity acquittee -- a person found not guilty by reason of insanity ("mental disease or defect" in New York lingo) -- escaped during an outing to a state fair.  The outing had been arranged by the mental hospital.  He was captured Sunday afternoon.  Paul's escape was apparently motivated by a judge's refusal to grant his request, earlier this month, to be transferred to a residential facility.

Insanity acquittees are not convicted criminals; rather, they are considered patients entitled to rehabilitation and treatment.  In New York, a person acquitted by reason of mental disease or defect is usually first committed to one of two secure facilities run by the state Office of Mental Health.  These facilities look and feel like prisons, complete with barbed wire, metal detectors, and armed guards.  Patients remain in state custody until they are no longer a danger to themselves or society.  Some patients are so ill that they remain in secure custody for the rest of their lives.

A patient who is no longer dangerous, but still requires in-patient treatment, is transferred to one of many non-secure facilities around the state.  Eventually he or she can be released into the community under an order of conditions.  Each level in the step-down process requires judicial consent.  OMH, the patient (represented by Mental Hygiene Legal Service, an arm of the Appellate Division), and the District Attorney are each given an opportunity to present evidence and be heard before a patient is transferred from secure to non-secure custody and from non-secure custody to full release.

Furloughs --- temporary releases from non-secure facilities into the community --- serve a therapeutic purpose.  Many patients begin their reintegration into society with one-on-one trips with their psychiatrist to the bank, grocery store, and the park.  The psychiatrist or other professional is able to observe how the patient handles the stresses of being off-grounds.  Later, OMH may seek furloughs of ratios of several patients to one professional.  Eventually, the patient may go on unsupervised and even overnight furloughs into the community.

CPL § 330.20(10) governs furlough applications, which can only be made by OMH and only if the agency believes "consistent with the public safety and welfare of the community and the defendant, the clinical condition of the defendant warrants a granting of the privileges authorized by a furlough order."  If the court finds public safety and welfare of the community and the defendant would be served by a furlough order, it must grant the application. 

In my view, Phillips Arnold Paul would never have been granted a furlough order in New York.  During recent releases to the residential facility, the patient's mental status deteriorated.  He escaped from a mental hospital in 1990; during his re-apprehension, he injured a deputy sheriff.  His underlying crime was particularly heinous: a strangling and slashing of a 78-year-old who the patient believed was a witch casting spells on him.  Based on these facts, particularly the recent decompensation and a judge's finding earlier this month that he was dangerous, it is tough to say that the public safety would be served by even supervised visits to the community.  (LC)

Cyrus Vance Wins Manhattan D.A. Primary

This week, Cyrus Vance defeated his opponents, Richard Aborn and Leslie Crocker Snyder, to secure the Democratic Party nomination for District Attorney of New York County; with no Republican opponent in the general election, he has all but secured the position currently held by long-time DA Robert Morgenthau.  Here is a roundup of news reports about Vance's election and the changes he intends to bring to the office: NY1, New York Times, New York Post, Daily News (plus the questionnaire Vance submitted to the News), and the Associated Press.  (LC)

Thoughts on the Grand Jury ... by a Former Grand Juror (updated)

Today's Daily News has an interesting piece by Michael Aronson, who recently served on a Grand Jury in New York County.  Overall he appears to have had an unpleasant experience.  Among his complaints:

• The Grand Jury is a rubberstamp for prosecutors.  He cites the following statistic, "Of about 125,000 adult felony arrests in Manhattan in the last five years, grand juries have only dismissed charges three times."
• An A.D.A. refused to give him a written copy of the general instructions for grand jurors. 
• A.D.A.'s had to be reminded to leave physical evidence with the Grand Jury rather than taking it outside the room during deliberations.
• The Grand Jury was not provided with a copy of the Penal Law.
• Grand jurors were dissuaded from notetaking: "As for note-taking, which is fully permitted under the law, grand jurors are counseled against doing so and given three reasons why it's a bad idea."
• The instructions state that the Grand Jury "should" indict if it finds reasonable cause that the defendant committed a felony; however, the law states that the Grand Jury "may" indict.

The Grand Jury has certainly been no stranger to criticism that it is a rubberstamp for prosecutors.  However, I have never heard of the dismissal statistic Mr. Aronson cites.  In fact, I thought "no bills" are quite common, as are reduction of charges and directions to file charges against juvenile offenders in Family Court.  UPDATE: Indeed, DCJS' report of adult felony arrests by county shows that there have only been 3 "no bills" in New York County in the last five years. Other counties, such as the Bronx, show higher numbers.  Does anyone know if the DCJS data is accurate?

I agree with Mr. Aronson that grand jurors should be given a copy of the preliminary instructions.  Indeed, CPL § 190.20(5) requires that each grand juror receive a written copy of CPL Article 190.

The Grand Jury should not be left with a copy of the Penal Law.  Jurors are not expected to be trained in statutory interpretation.  Thus, the Grand Jury's legal advisor, either the court or prosecutor, is required by CPL § 190.25(6) to instruct the Grand Jury on the law.  Indeed, this advice must be recorded in the minutes of the proceeding.  This advice may be a recitation of the statutes, but often it will include an explanation of the relevant provisions, thus saving the Grand Jury from having to sort through unnecessary sections of the Penal Law to discern the elements of applicable offenses.

Regarding note-taking, the CJI model instructions for the empaneling of a Grand Jury states, "Note-taking by grand jurors is neither prohibited nor encouraged."  Similarly, the CJI instructions do not state that a Grand Jury "should" indict, only that it "may" indict if it finds sufficient evidence and cause to do so.  (LC)

Expansion of sex offender courts

State court administrators have promulgated new rules authorizing the creation of sex offender courts throughout the state and enabling certain courts to hear misdemeanors, not just felonies.  (LC)

Plaxico Burress indicted

Plaxico Burress, former New York Giants receiver, was indicted by a New York County Grand Jury for CPW 2º and Reckless Endangerment 2º, stemming from an incident on November 29, 2008, during which Mr. Burress allegedly shot himself in the foot at a nightclub in Manhattan. 

In a press release, District Attorney Robert Morgenthau appeared to address claims that Burress was singled out for prosecution:

In this case, we conducted a thorough investigation and then presented the evidence to the Grand Jury, which evaluated the facts under the applicable law. The case required a more protracted investigation than does a typical weapons possession case, given the number of witnesses and the need to investigate events both before and after the shooting. The case was treated like any similar case against any other defendant. Ultimately, the Grand Jury did what it thought was fair.

(LC)

Omnibus motion decided in People v. Monserrate

State Senator Hiram Monserrate is charged, in Queens Supreme Court, with various counts and degrees of assault, stemming from an alleged domestic dispute in December 2008.  Today, Supreme Court's decision addressing the defendant's omnibus motion was posted on the UCS website.  In sum, it appears that nearly all of the relief, including dismissal and suppression of evidence, that was sought by the defense was denied by Justice Erlbaum.  A September 14th trial date has been set.  (LC)

Will Bronx Eviction Drama Lead to Criminal Charges?

The New York Times has an interesting article in today's paper about an unfolding series of events in Bronx Housing Court.  A number of landlord-tenant cases being litigated by a lawyer named "Robert Klein" are in jeopardy after it was discovered that no such lawyer exists in New York.  Several of his cases had process served by Curtis Brooks, a non-lawyer who has a business card that says "eviction specialist."  Apparently Brooks is the only person who has ever known, met, or spoken with Klein.  The New York Times' article states, "[A]uthorities now suspect that Robert Klein does not exist."  The Bronx District Attorney's Office is conducting an investigation.  (LC)

City Bar: Bronx Merger Project Suffering From a Lack of Judges

The New York Law Journal has a free (with registration) article about the Bronx Criminal Division, an experimental merger of the Supreme and Criminal courts in that county.  The Law Journal article discusses a recent report from the New York City Bar criticizing the lack of judges assigned to the merged court.  As a result, the report concludes, there is a growing backlog in felony cases.  (LC)

Judge Sotomayor: The State Criminal Justice Connection

Today, the President nominated U.S. Circuit Judge Sonia Sotomayor to the Supreme Court of the United States.  While much of the focus today has been on her time as a district and circuit judge, Judge Sotomayor began her legal career as an assistant district attorney in New York County.  According to the ABA, she spent five years in the Manhattan DA's Office, prosecuting robberies, assaults, murders, police brutality, and child pornography. She called the experience "wonderful training for a lawyer."  She later entered private practice before being appointed to the bench.  (LC)

Justice Luis Gonzalez Appointed Presiding Justice of AD1

Yesterday, Governor Paterson appointed Justice Luis Gonzalez as Presiding Justice of the Appellate Division, First Department.  The New York Law Journal has a free (with registration) article about the appointment.  (LC)

Brooklyn House of Detention to Reopen

A Brooklyn Supreme Court Justice has cleared the way for the reopening of the Brooklyn House of Detention.  However, in a partial victory for some members of the community, the City cannot proceed with its plans to expand the jail from 815 beds to 1719 without first going through an environmental and land use review process.  The court's decision will be published in Tuesday's Law Journal but is also available online. (LC)

Roundup of Appellate Division Cases

The New York Law Journal has a nice roundup of recent Appellate Division cases, courtesy of former Judge E. Leo Milonas.  Several of the  cases involve the criminal justice system and have also been discussed on this blog.  (Subscription required for online access.  Article will appear in 3/13/2009 issue of the NYLJ.)  (LC)

Disciplinary Committee Declines to File Ethics Charges Against Former Manhattan ADA

The New York Times is reporting that the First Department's Disciplinary Committee has declined to bring ethics charges against Daniel L. Bibb, a former Manhattan prosecutor who deliberately lost a 440 hearing in the Palladium nightclub murder case.  (LC)

DA Morgenthau To Retire

Several media outlets, including NY1 and the New York Times, are reporting that Manhattan District Attorney Robert Morgenthau will not seek reelection this Fall.  (LC)

NYLJ: Sullivan D.A. Announces Retirement

According to the New York Law Journal, Sullivan County's District Attorney, Stephen F. Lungen, has announced that he will not seek reelection later this year.  Mr. Lungen has served for 28 years.  (LC)

NYC Budget Spares District Attorneys, Reduces Funding to Legal Aid

Although the City of New York is facing a major budgetary crisis, the District Attorneys of Bronx, New York, Queens, Richmond, and Kings Counties will be spared during the next fiscal year, which begins July 1.  In fact, they will receive a net increase of 4.6%.  This is not all good news for the DAs, however.  According to the New York Law Journal, "[T]he increase to $261.5 million reflects either rises in fixed costs, such as rent or labor agreements, or revenues generated through prosecutions which the agencies are allowed to keep."

The Office of the Special Narcotics Prosecutor will see a cut of 3.2% in the next budget.  The Law Journal reports, however, that the City Council is likely to make up this difference.

Meanwhile, the Legal Aid Society will see a drop in its funding.  The head of Legal Aid told the Law Journal that this latest round of cuts "will further impair our ability to provide a constitutional defense."  (LC)

NYLJ: Gov. Patterson to Nominate Justice Lippman as Chief Judge

The New York Law Journal is reporting that Justice Jonathan Lippman, Presiding Justice of the First Department, will be nominated as Chief Judge of the New York Court of Appeals.

The Next Chief Judge

Certainly the next Chief Judge of the Court of Appeals will have a profound impact on not only the substantive law of criminal justice but also the administration of the Unified Court System.  Professor Bonventre (Albany) at New York Court Watcher has an interesting series of posts about the various candidates and the history of judicial selection in New York.  (LC)

Legal Aid Society and Private Firm Partnerships

Faced with budget cuts, the Legal Aid Society has formed partnerships with a number of private firms to boost the Society's manpower while simultaneously providing much needed real-world experience for big firm attorneys.  Junior associates work 25-30% of their time, for six months, at Legal Aid's Manhattan office, representing criminal defendants under LAS supervision.  The New York Law Journal has an article about the new program.  (LC)

Tough Times Ahead in the Budget

Governor Paterson's proposed budget calls for deep cuts in the criminal justice sector, including:

• Closure of various prison camps and annexes.
• Reform various parole laws and policies to release approximately 1,600 offenders into the community.
• Elimination of the Road to Recovery program for offenders with drug and alcohol problems (the budget website notes that additional money is being put into other similar programs).
• Elimination of aid to Westchester County for police patrols on certain highways.
• No more state inspections of local jails that are accredited by the American Correctional Association absent cause to believe that health or safety is at risk.
• Expansion of medical parole for offenders other than those convicted of Murder in the First Degree.  As the budget website points out, "These inmates ... require the most expensive medical care."  (One wonders where these sick inmates will go once they are discharged.  Medicaid/Medicare?)
• Cuts in state aid to local probation departments and community correction agencies.
• Deep cuts to the Office of Mental Health (OMH) and other mental hygiene agencies and programs.
• Shifting treatment of sex offenders away from an inpatient treatment model.
• Reduction of aid to local governments, generally.

The proposed budget is online and contains helpful summaries, broken down by subject area (e.g., mental health, public safety, etc.).  (LC)

Former Supreme Court Justice Thomas J. Spargo Indicted

According to the New York Law Journal, in an article free with registration, Thomas J. Spargo, a former Supreme Court Justice in the Third Judicial District, was indicted by a federal grand jury for attempted extortion and attempted bribery.  (LC)

Manhattan Surrogage-elect Arrested

The New York Law Journal is reporting that Manhattan Surrogate-elect Nora Anderson was arrested today in connection with a campaign finance-related investigation by the Manhattan District Attorney.  The top counts are four counts of filing a false instrument in the first degree and two counts of falsifying business records in the first degree, all Class E felonies.  The Law Journal article is free with registration.  (LC)

NYPD Officers Indicted

According to the New York Times and the Brooklyn District Attorney, the following top charges were handed down in the alleged assault of Michael Mineo in a Brooklyn subway station:

• Officer Richard Kern - Aggravated Sexual Abuse in the First Degree (Class B felony)
• Officer Alex Cruz - Hindering Prosecution and Official Misconduct (Class E felonies)
• Officer Andrew Morales -  Hindering Prosecution and Official Misconduct (Class E felonies)

Officers Kern and Morales were also both accused of participating in a cover-up; they were charged with Falsifying Business Records in the First Degree.  (LC)

NYT: Three NYPD Officers to be Indicted

The New York Times is reporting that an indictment will be unsealed this week charging three NYPD officers in connection with the arrest of Michael Mineo in a Brooklyn subway station in October.  Mineo accused the officers of beating and sodomizing him.  The Times reports that one of the officers, Richard Kern, faces an assault charge.  The other two officers are apparently facing lesser charges.  (LC)