Saturday, December 31, 2005

Nassau DA-Elect to Nassau Criminal Defense Bar: When It Comes To DWI, IT'S ON!!

In her first policy statement since shocking Nassau County's legal circle with her election win over long time Nassau County DA Dennis Dillon , Nassau District Attorney Elect Kathleen Rice has announced that she intends to be tough on DWI. In her remarks before the New Year's day holiday, she has told the public that she intends not to plea bargain Felony DWI charges. Hence if you are arrested in Nassau County for Felony DWI you can expect to go to trial or go to jail.

Ms. Rice is not the first to notice that many Long Island lawyers who handle DWI's are reticent to go to trial. It will now be important not only to try Felony DWI's, but counsel should seriously consider trying all DWI charges, especially those at the misdemeanor level. Those first misdemeanor convictions are the predicate to a later felony charge.

Defendants in Nassau County often think that DWI's are unwinnable. Actually, if the money is invested into the defense, the cases are very beatable. I have won cases where the defendant was painting all day and went out to buy a cup of coffee. He was stopped and blew a .15 on the machine. I have won buy attacking the documents that support the arrest or the lack thereof. I have even won by showing documents and evidence was missing.

A major problem, is that many first time offenders do not hire expierenced DWI lawyers. They go with attorneys who have plea bargained a couple of criminal cases or who actually lie about their credentials. Learning to hire a real criminal lawyer, is one way to put a stop to prosecution edicts such as this one. Nothing stops expensive rules like this one than losing at trial.

Now the prosecution does not give winning information up willingly. We had to dig for it at hearings. We had to make motions, and seek discovery. We had to hire experts and we had to purchase manuals. We had to attend seminars. We had to go the extra mile (or two). Our clients were told ahead of time that the defense was going to cost over Six Thousand dollars and in fact some cases have cost over Twenty Thousand Dollars. Nevertheless, it was a better result than going to jail or losing an important job. DWI cases can be won. The machine is not perfect, in fact it is far from it. Many clients hired dump truck attorneys who bled them and pled them for a few hundred dollars. These people would return to us with even greater problems thanks to the half-ass efforts of prior non-criminal defense attorney counsel.

The facts are, that many, many, DWI arrests do not, and should not, end in conviction when the cases go to trial. The only issue is: Does the Nassau bar have the intestinal fortitude to be honest with defendants to tell them what the cost of a conviction really is, and how much a "real" defense is going to cost. Do clients, their families, and employers have the means and the trust to go forward with an attorney who knows how to handle this kind of a case.

Feel free to contact us at or leave us a comment below.

Happy New Year's Day to All :

This is just a fast note to all our friends: defense attorneys, prosecutors, police and law enforcement officers, Judges, and especially our family and clients. From all of us here at the Law Offices of Anthony J. Colleluori and Associates LLC and Long Island (Criminal)Trial Law, we wish you all a happy and healthy New Year. We look forward to continuing to bring you the best in legal analysis on the net regualarly in the coming year.

Thursday, December 29, 2005

DWI Refusal Precluded:Court Rules that Two Hours Rule Applies to Refusals

Our office has had a victory precluding the prosecution from using a client's refusal to submit to a breath test offered him over two hours after he was arrested for Driving While Intoxicated.

The decision in People v. Cavaliere, Docket No. 3906C/04 Bronx County Marcus J. (December 14,2005), deals with whether or not the prosecution can use a DWI defendant's refusal to take a breath test when such test is offered to the suspect over two hours after the arrest.

In the Cavaliere case, the defendant was arrested after being involved in a multi-car accident on the Bruckner Expressway in the Bronx. The police claim to have smelled a strong odor of alcohol on the defendant's breath and witnesses claim that the defendant appeared intoxicated after the accident. The breath test was offered to the defendant well over two hours after the defendant was arrested.

The defendant moved to preclude the test refusal based on the NYPD's violation of VTL Sec. 1194(2)(a)(1,)in that the test was not offered to the defendant until after two hours from the time of the defendants arrest. See People v. Brol, 81 AD2d 739 (4th Dept. 1981). The prosecution argued that Brol was overruled by the Court of Appeals in People v. Atkins, 85 NY2sd 826(1995). It was the defendant's contention that Atkins is mistakenly described as holding that the "two hour rule" was no longer applicable in its entirety.

The court ruled that the breath test was not offered with in two hours and thus the refusal should be precluded. The People made a motion to reargue. Again arguing that the Brol case was overruled by Atkins the People filed an exhaustive brief discussing the history of the ill fated "two hour rule." It urged the court should join other lower courts in finding that the "two hour rule" no longer a precluded a test refusal from coming into evidence after an offer of a test post two hours from arrest. The Defense argued that such a rule would subject a defendant to a refusal if he was offered the test anytime after arrest and allow the prosecution to argue the test was refused because of a consienceness of guilt.

The Court in its decision again ruled the refusal precluded as outside the
strictures of VTL Sec. 1194(2)(a)(1). The court held that Atkins only permitted the use of a breath test taken more than two hours after the arrest when the defendant consented to taking the test more than two hours after the arrest. The court held here however that Atkins does not hold that evidence of a REFUSAL obtained more than two hours after arrest is admissible at trial. By holding that the test results obtained by consent are admissible the Court of Appeals did not announce new law or imply that the "Two Hour Rule" was no longer viable. Atkins only holds that tests consented to after two hours from arrest are admissible and that does not mean that refusals are admissible.

This win should be credited to John J. Marshall Jr. who won the original motion and Amy Hsu who wrote the major part of the response to People's motion to reargue both on behalf of The Law Offices of Anthony J. Colleluori & Associates LLC.

Wednesday, December 28, 2005

A few quick Blawg notes that I found interesting

A quick look through my blog roll at some of the articles I think might be of interest to you Trial Lawyer types:

The Rochester Democrat & Chronicle had a really interesting piece on NYS Court of Appeals Judge Robert Smith, the courts conservative libertarian. (I knew there were more like me somewhere here in NY.) Follow this link. The article has a voting record on criminal appeals and notes that while Judge Smith is a big fan of Justices Scalia and Thomas up at SCOTUS, he mostly likes their libertarian streak. Me too.
UPDATE: Forgot to attribute the above to the really superb blog How Appealing by Howard Bashman

Our friends at DWIBLOG over in California have posted about how police organizations, with DOJ funding, are now going after non drunk drivers for being "Buzzed." Pretty soon MADD will try to get people who THINK about drinking and driving arrested. This post is very scary.

Professor Berman over at Sentencing Law and Policy writes here about a recent 7th circuit case that upholds a ridiculously long 40 year sentence for possession and sale of a moderate amount of cocaine. The decision reminds the district courts that Booker suggests a certain proportionality and that they need to give themselves room at the top of the USSG for the really bad guys.

Yuachung Lee does a very nice cover of the Second Circuit's decision in US v. Irving. The US Court of Appeals Second Circuit overturned a few counts that were based on uncooberated writings found in defendant's personal journal. It is a long post but Yuachung does the case justice here. See also his discussion of US v. Alaa Al-Sadawi which deals with when a person's leaving the jurisdiction constitutes flight as a consciousness of guilt.

You know those ridiculous "perp walks" that the police hold to show off defendants to the press like they were some kind of hunting trophy, and which really are meant to contaminate the jury pool and destroy the clients life before trial? Well White Collar Crime Profs Blawg has some good news... If you live in Colorado. Read all about it
at this post. Maybe we should bring this to the attention of both DA Tom Spota and DA-elect Kathleen Rice. Maybe we should bring it up with the legislature.

Then there is this cautionary tale about obtaining a legal fee in a money laundering case.

That is it for now. Feel free to contact us if you have any ideas for topics or columns for this blog at, or leave a message below.

The Law of Partial Verdicts: People v. Echevarria

The big news today is going to be the Court of Appeals decision on Depraved Indifference Murder. I however, think that Echevarria, 2005 NY Slip Op 09812, is more important to the criminal practioner hence...

In Echevarria the defendant goes to score drugs at the home of acquaintances and kills them while trying to steal their drugs. He is charged with Murder in the First Degree (multiple deaths) and Murder in the Second Degree. The defense argues intoxication.

Without objection, the court charges the jury with both counts. It gives no instruction as to the order with which to consider the counts; a plain error. (See People v Boettcher, 69 NY2d 174 [1987]). Thereafter, the jury announces it has a partial verdict. Wary of the fact that the jury could have considered the lesser charge first, the prosecutor argued that the court should not take the verdict and should order the jury to complete deliberations. (See People v. Fuller,96 NY2d 881 [2001]). The defense attorney told the jury that Fuller was not an issue and asked for the partial verdict. The court agreed.

The jury came back guilty on the Second Degree Murders. Then they were told to deliberate on the remaining charges. No objection by defense counsel. Next day the Murder in the First comes back guilty. Result of course is that the Court of Appeals upholds the verdict.

The law on partial verdicts holds that if the partial verdict comes in on the lesser included count, the higher charge is deemed acquitted. (See Fuller) The defense should have objected to the continued deliberations. However, after arguing that Fuller was not at issue here, counsel would be hard pressed to object. The defense objection may have been a low ball but should have been made anyway. (Yeah that would mean that counsel could never appear before that judge again but...)

The real error came in failing to require the court charge the jury to consider the counts in order; the most serious count first. This is probably the prosecutors burden. If the second degree murder charge was the lesser included of the first degree murder charge, it should have only been reached after the verdict on the first degree charge had been decided. If the jury impasses on the First Degree charge, and goes to the Second Degree charge and thereafter announces it's verdict as partial, the First Degree charge falls whether or not they convict or acquit.

If the Prosecutor fails to ask for the Boettcher instruction and then argues Fuller, defense counsel should argue the prosecutor waived Fuller by failing to ask for the Boettcher instruction. In the case at bar the defendant waived Fuller by arguing it was not at issue here. Of course it is hard to be perfect under the heat of battle. Hence spending a few hours on jury charges prior to trial begining is an important part of trial preparation.

If you have any Ideas for subjects or cases you would like us to discuss or if you just want to reach me directly you can contact me thru our website at

Monday, December 26, 2005

NY State Court of Appeals Applies Crawford v. Washington

In People v. Goldstein,2005 NY Slip Op 09654 (2005), the New York Court of Appeals was confronted by a murder case where the defendant attacked a unsuspecting woman and threw her off a subway platform in front of an oncoming train. There was substantial testimony offered by both the defense and the government's psychiatrists. The Doctors all agreed that the defendant was mentally ill. However, the prosecution’s expert predictable decided that the illness did not render the defendant legally insane. Part of that doctor's testimony included the basis of the Doctor's conclusions. Rather than rely on just the statements of the defendant, this expert felt she should speak to non-testifying third parties who witnessed other things the defendant had done in his life. Those things supported her finding that the defendant was a predator, and not just an ordinary insane individual. Her testimony, which encapsulated the hearsay stories of six other witnesses, came in over defense objection.

On appeal, the Court of Appeals dealt with the junk science part of the case quickly but disconcertingly. It held that, although only a small minority of experts accepts the notion that third party accounts aid in diagnosis, enough find the approach to yield the kind of material that is reliable and widely accepted in the field.

I find that this is the biggest problem with the decision. It is clear in the decision, that the cross-examination of the witness on the issue of widespread acceptance in the field was not deep enough, to explore the level of professional acceptance. Now we will have prosecutors arguing for a rule that "Forensic study into the psyche of a defendant must include a review of the defendants past acts and interviews with witnesses to those acts" whose testimony would never be permissible in the governments' case in chief.

However, the court did not reach that issue here. In fact, it specifically refused to acknowledge that NY Law is the same as the Federal Rule of Evidence 703 with regard to that issue.

The Court of Appeals instead looked at the new federal issue raised by Crawford v. Washington, 541 US 36 (2004). It decided, that under the US Constitution the defendant's conviction here must be overturned. The court cites both the 6th amendment’s language in the confrontation clause and language in the NY State Constitution’ Article I Section 6, however it relied on federal precedent for its decision. (In fact the dissent noted that Crawford, was only recently settled law and that giving it too much weight at this juncture could expose this decision to criticism should the Supreme Court of the United States not go as far as the majority did here. I have no reason to think that this six to one decision would be different if it were decided on state grounds alone. In fact, given the strength of the language in the decision the state constitutional argument might yield an even stronger result.)

The court held that while out of court statements not offered for the proof of the matter asserted are still admissible with proper precaution, the jury could not give the prosecution’s expert any weight unless they also believed the truth of the statements of the out of court declarants. Hence, the evidence had to be hearsay. They then acknowledged that Crawford had done away with the absolute right to offer the statements of witnesses who could otherwise not be cross-examined.

The dissent strongly criticized the majority, noting that even if the jury rejected all the hearsay, the proof was overwhelmingly in favor of conviction. Hence, it called on the majority to apply harmless error analysis to the decision. The majority refused however. It did note how hard this decision might be for the victim’s family to accept. However it noted that the right to cross examine one’s accusers sits at the very base of American liberty and must be upheld in spite of the pain that this decision may cause the victims family. I am happy to see the court at least acknowledged that the victims were going to suffer in a third retrial. However, the same trend can also be scary. Appellate courts are supposed to decide these cases without prejudice and on the law alone. If a court thinks too much about the fallout or the effect of the decision, it could leave its duty on the table and do the popular thing and not the right thing.

If you have any thoughts on this or any other trial law case, feel free to leave a comment for me at

Sunday, December 18, 2005

When Attacking an Inventory Search, Follow the "Guide"

The NYS Supreme Court 2nd Department has given us a few end of the year decisions to write about.Over the next few posts I am going to try to bring a few to you. The decision in People v Elpenord 2005 NY Slip Op 09327 reminds defense counsel that when confronted with an inventory search, one of the things that you must do is to make sure you hold police to their procedures. Fortunately the procedure they must follow is in the Patrol Guide.

In Elpenord the Nassau County Police Department received a radio run for shots fired. The 911 call was devoid of description of person or vehicle (it was alleged a car sped away from the scene.) The police see a speeding car in the vicinity of the shooting scene and try to pull the car over. It leads them on a chase and finally when pulled over the driver is without a valid license or registration. He tells police the vehicle belongs to his mother (it did) and that she gave him permission to use the car(she had.) Police pull him out of the vehicle for speeding. They then allegedly search the car to inventory the contents. The trial court held that the search was legal even though the officers failed to take any of the steps necessary to conduct an inventory search of the vehicle including filling out an inventory search form or even noting the search in their memo books. (In fairness they did start to fill out the form but stopped when they found a gun in a black bag in the trunk)

The Court noted that inventory searches at the scene of a valid vehicle and traffic law arrest are only permitted when they are "conducted in accordance with standard police procedures which limit the discretion of the searching officer (see People v Galak, 80 NY2d 715, 718). Such searches advance three specific objectives: protecting the owner's property while the police retain custody of the vehicle, insuring the police against claims of lost or stolen property, and guarding the police against dangers that might otherwise go undetected (see Colorado v Bertine, 479 US 367, 372; People v Galak, supra; see also People v Cammock, 144 AD2d 375). "In its modern Fourth Amendment jurisprudence, the [United States] Supreme Court has held that the reasonableness of a search is calculated by weighing the governmental and societal interests advanced by the search against the individual's right to be free from arbitrary interference by law enforcement officers" (People v Galak, supra at 118, citing Colorado v Bertine, supra). "While the discovery of incriminating evidence may be a consequence of an inventory search, it should not be its purpose" (People v Russell, 13 AD3d 655, 657). It is the People's burden to demonstrate the legality of police conduct in the first instance (see People v Thomas, 291 AD2d 462, 463)."
The court found that the search neither protected the property of the citizen nor did it protect the police department against an unwarranted claim for stolen property and thus was a pretext search. The court thus overturned the conviction for the weapon possession and ordered the defendant sentenced on the violations.

If confronted with an inventory search it would be wise if the defense counsel asked the Prosecutor for a copy of the patrol guide. It would be a good idea to subpeona it if they will not give it to you. This case can be used to back up the need to have the item. Remember when issuing a subpeona for a governmental agency, you must have the subpeona So Ordered by a court.

If you are aware of a case or decision that would be helpful to trial lawyers who practice in either the Eastern or Southern District of the US District Court or the First or Second Departments of the NY State Supreme Court, please send me an E-mail at