Monday, August 07, 2006

A Few Decisions of Import To The Criminal Trial Lawyer: A Big Week For The Prosecution

Being on Vacation, I have had some extra time to read. I just ordered the e-edition of the New York Law Journal, not to be confused with its sister e-publication The edition I ordered is in fact the whole actual paper downloaded onto my computer. I read it using a "reader" called NewsStand reader. It seems you can get a lot of major newspapers and magazines this way. I am still playing with it, but so far-so good. A fast round up of interesting decisions is what now follows:


As announced last week on our sister blawg That Lawyer Dude, one of my favorite judges has decided to resign from the bench. Judge Ken Gartner is resigning. I will miss appearing before the judge. It was always a good experience win lose or draw. He had a tremendous judicial demeanor, and was good natured on and off the bench. On behalf of myself and my staff at The Law Offices of Anthony J. Colleluori and Associates L.L.C. we wish him well. As a final goodbye, the judge leaves us with a case. In People v. Vonthaden Nassau County District Court Case No. 2494/04, the court was faced with a car stop based on an officer's decision that the car's window tint was too strong. Stating that the tint made it impossible to see into the car, he stopped the vehicle ostensibly to issue a summons. (In NY one cannot have a window tinted that blocks more than 30% of sunlight). On stopping the vehicle the officer observes that the driver has glassy eyes and a strong odor of Alcoholic beverage on his breath. He arrests the defendant and a Intoxilyzer 5000 finds a .19 BAC, more than 2x the legal limit of .08 BAC.

The defense attempted to suppress the findings and all statements noting that the officer had no special training in judging Window tint percentage and did not have a tint meter in his vehicle to aid him in determining the percentage of tinting. Relying on People v. Tompkins 6 Misc 3d 30 (App. Term 2d Dept. 2004)the defendant argued that since the police officer was not trained on detecting the proper amount of tinting on windows and did not have an appropriate tool to help him in such a determination, he would be unable to issue a ticket for the infraction.

The court did not agree. It cited the case of People v. Andeliz 3 Misc. 3d 384 (Sup. Ct. Kings County 2004) in which a court held that untrained police officers could still stop a car even if the officer could not ultimately sustain the charge.
Noting the difference in reviewing a case for proof beyond a reasonable doubt (as was the Tompkins court) and reviewing evidence for determining the legitimacy of a stop the court held that while the observation may not have been sufficient as proof beyond a reasonable doubt to prove a violation of the Vehicle and Traffic law was committed, a lesser standard is used for determining whether a stop is good. That standard is whether the tinting was sufficiently obvious enough, something a common sense observation could sustain. Noting that the officer said the window was so tinted he could not see through it, the court held that such a condition was sufficiently obvious enough that common sense could determine the appropriateness of the stop.

Practice Tip: Calling a Auto mechanic or even another observer, could have negated the police officer's testimony. While this was not a close case, all things being equal, the prosecution would not carry the day if the officer's testimony is properly challenged. The defendant has promised an appeal, I think the decision will probably stick though it seems that if you can't prove the violation, you are giving somewhat free reign to police to stop cars pretextually. Courts really need to be vigilant when faced with this type of testimony that the stop was in fact based on real evidence of a substantially obvious violation. Either way LI(C)TL says goodbye to Judge Gartner. Good Luck your Honor.


In the Bronx Judge Megan Tallmer ruled that despite the fact that there were no allegations of sexual conduct, where children are placed in a situation where the could be sexually abused there is a constitutionally rational basis for requiring that the defendant be required to register as a sex offender.

In People v. Citron 7821/87 (Bronx Sup. Ct. 2006)the court heard a motion from five defendants whose cases seem to have little/nothing to do with a sex offense against the children who were unlawfully imprisoned or kidnapped in the cases. Noting that there are two other cases from lower courts on the issue which set different standards for applying the law, Judge Tallmer refused to get involved with setting a judicial standard for when to apply SORA to a defendant's case. Holding that treating kidnapping and unlawful imprisonment of a child a sex offense for the purpose of SORA is rationally related to the legitimate government objectives underling the reason for SORA.

The court's final "advice" to unhappy defendant's is to take it up with the state legislature or stop committing crimes that create a risk of sexual abuse. Some advice for the judge, stop trying to fit square pegs into round holes. If you want to expand SORA to include any crime against children, take it up with the Legislature. When appealed, I predict this case is going to be overturned, at least as to four of the five defendants.


In People v. Byrdsong 2001-05643 the Supreme Court Appellate Division Second Department held that a Defendant who pled guilty to Murder, are not entitled to test DNA that may show they are not the person who committed the crime. Writing for the majority, Judge Gloria Goldstein held that a defendant who pled guilty is not entitled to relief under Criminal Procedure Law section 440.30. She also suggested that the defendants address their complaints to the state legislature.

I am concerned that the court ignores two realities of criminal law: one is that people faced with possible death or life imprisonment will take the lesser of two evils and plead guilty to something they didn't do rather than chance a more terrible sentence. The second reality is that, Convicts have no lobby. The legislature could usually care less. It seems that the Court should care that, where there are issues, we get the right answer. Public policy demands we not keep the wrong people locked up for crimes they did not commit even if they swore that they did. It is a waste of taxpayers money. I truly wonder when I see decisions like this one, if anyone cares about that. No wonder the guy on the street doesn't understand the judicial system...Sometimes I don't either.

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