I just recently did a post criticizing the notion of judges having policies. So I was in Court the other night and had another such encounter.
This again is a judge I like, arguably one of my favorites. He has a warm personality, a good sense of humor, respects not only the lawyers but the people who come before him as well. He also has policies, or at least one policy.
My client was accused of shoplifting (petit larceny), allegedly stealing a fairly small amount of merchandise from a local store. We worked out a deal with a very pleasant and fair prosecutor where my client would do a rather substantial amount of community service as part of an ACOD. The client had a completely clean record, is a good student, etc. So clean in fact that he was literally trembling for most of the time we were in court. This was possibly the most terrified client I've ever had.
We approached the bench and the judge informed us that he doesn't do ACODs on petit larceny cases. That sounds a lot like a policy. I made a further effort, going into some detail about why it was appropriate in this case. I think he actually thought about it, as he did hesitate for a minute and seemed to be thinking about it, but he fell back on his policy of no ACODs on petit larceny.
The legislature sets policy. It has established CPL 170.55 (and 170.56 for marijuana). In my not-so-humble opinion, judges should evaluate each case on a case-by-case basis to see whether the broad circumstances suggest an ACOD would be appropriate. The nature of the offense should not be a significant factor, because the legislature has set this provision for all misdemeanors and lesser offenses. Nothing in the statute gives judges authority to make their own policy decisions about which offenses are unworthy.
The idea is (or at least it should be if Warren ran the world - all who know me shudder at that thought) that the defense lawyer, prosecutor and judge review the defendant's background, criminal history, and various factors such as grades, mental health, strength of the case, etc. If the defendant has a clean record, gets good grades or does good work at their job, and otherwise seems like a good person, then an ACOD is like a warning without leaving a damaging stain on the defendant's record. If the defendant has a mental health issue, then treatment for that issue can be a part of the ACOD. Community service can also be a condition of ACODs under 170.55 (but in my opinion, not under 170.56), and may be appropriate to make sure the "good, clean" defendant gets a clear message that what they did was not acceptable and make sure the message sticks.
I'd say it would be nice if the legislature did a better job of setting clear standards for ACODs, but they'd probably just make things worse. When I gripe about judges, remember they have to deal with poorly written laws. These are good people doing the best they can with the junk the legislature puts out there, and the problems society sticks in their courtrooms.
I'd like it if there were a bit more sympathy and understanding for first-offenders who appear to be otherwise good people, but the politics of criminal law mean that judges and prosecutors have to be "tough on crime." Just remember next time you hear some politician saying that - they're not just referring to rapists and murderers, where things are already quite tough. They're referring to your kid, your sister, your brother, and maybe even you. We don't need to get tough on crime. We need to get smart on crime, and especially on dealing with mental health.
3 comments:
Also as a side note now petit larceny convictions require giving a DNA sample and paying the state another $50.00, where the ACD would be no cost.
I'm at graduate student at one of the colleges in the area. On Saturday evening I was charged with petit larceny (section 155.25). I have no criminal record, two undergraduate degrees with a 3.95 GPA (double degree). Additionally, my graduate standing is in the 3.6 area. I simply mention this since you spoke of your clients grades. Nevertheless, I was never asked about my grades in the situation described below.
The sergeant at the Albany police station was very rude. He insisted I call my parents who live in Long Island. I refused. He literally told me I was going to jail for the night instead of just issuing me an appearance ticket. Instead of arguing how ridicules it was to not let me post my own bail I just went along with his demand that I would spend the night in jail.
I also could not call my lawyer because it is a long distance call to the island, of course. The sergeant also would not let me utilize my cell phone to place the call. Once again, he was insistent that I contact my parents. Being in my 20s I was not only ashamed of myself but of what this call would do to my family.
Eventually, the sergeant decided to let me post my own bail from cash in my wallet ($50. I was released and appeared in court today before Judge Keefe.
When my name was called, I explained to Judge Keefe that my lawyer has a conflict now that she/he is an elected Judge in Nassau County. No names were mentioned, of course. I explained I did not know any attorneys in this area therefore, it would take me beyond next Monday (when I was scheduled to appear again) to find a local attorney. Judge Keefe asked me if I worked. I clearly stated I was a full time graduate student. He then stated, "Speak to the public defender."
Keep in mind that this was a Sunday with people being brought into the court in shackles. That is, the public defender looked pretty busy to me. Furthermore, I wasn't going to risk everything on a five minute conversation with a public defender. Nonetheless, I followed Judge Keefe's order to speak to the public defender. He told me to sit down while he spoke to the ADA. When he came back he told me the ADA would be willing to settle for an ACOD with no further need to appear in court.
My point here is that I was incorrect in thinking that I would need a top-notch defense attorney in Albany. Thus, I am confused why you could not get the client you mentioned an ACOD when I was offered one on the spot? So, are obtaining ADODs with Albany judge’s luck or policy?
Responding to Anonymous, above, my client was not in front of Judge Keefe, nor was she in that particular court. I try to avoid mentioning which court I'm in when I make a post like this to protect the anonymity of those involved. I even try to avoid mentioning the county. I regularly appear in courts in 10 different counties in the area (Albany, Schenectady, Rensselaer, Saratoga, Fulton, Montgomery, Schoharie, Warren, Columbia and Greene - we currently have cases pending in all 10), and we handle cases across the state. We've handled traffic cases all the way to the western edge of the state, along the northern border, and all the way down to Westchester and Rockland, though we try not to go beyond the 10 with DWI and other criminal cases - Washington County would be a good exception to that rule, and maybe Otsego. I've also appeared in NYC courts including City Court, Supreme Court, and the federal court in Manhattan (SDNY - I'm admitted there), not to mention our federal courts (NDNY), and our appellate court (the Appellate Division, Third Department). So good luck figuring out where something happened when I don't give any hints.
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