As a criminal defense lawyer sometimes we get cases where we have pretty good but not overwhelming evidence that our client is innocent.
In some counties, I contact the prosecutor and explain the evidence. Sensible prosecutors will agree to a deal where my client pleads guilty to a lesser offense that's better than the original charge. Yes ideally it would be dismissed but this compromise tends to make everyone happy.
Then there are counties where the District Attorneys have strict plea bargaining policies.
An example is a recent DWI case where we had great evidence. Police documents indicated our client may not have been driving (something they have to prove beyond a reasonable doubt). On video, one of the cops said he was surprised the breath test result was so high because our client seemed sober. And he looked and sounded completely sober. This took place in a county where the DWI has a strict policy on plea bargaining for DWI cases. Due to policy, the only offer was for our client to plead to the charge (link is to a previous post about such policies).
A reduction to DWAI would have been reasonable and my client would have accepted it. I'd prefer a dismissal or a better deal of course, but it would have been reasonable.
Since that was not possible, we did not discuss the evidence with the DA. We simply prepared for trial. When trial came, the flaws suddenly became apparent and the case was dismissed.
The policy led to a lot of waste. My client spent a lot of time and money. The judge and court staff wasted time. So did the prosecutors. If they made deals on cases like this, they'd have more time for the stronger and more important cases. This is a DA's office that has blown some big ones.
Perhaps the worst, about 30 prospective jurors sat in court for hours.
I appreciate the concern about drunk drivers. Through my work I've seen the harm more than most. But the punitive approach is wrong, especially with defendants who have clean records. The focus should be getting drunk drivers off the road and into treatment. Plea bargaining accomplishes that.
Thursday, December 30, 2010
Saturday, December 25, 2010
Bar Exam and Real World Experience
Okay, so I'm studying for the Florida Bar Exam. I am encountering one problem repeatedly. I think I'll get past it, but it's a little funny so I'll share ...
Here's a sample question from the review course:
Bob is showing off his new gun to Ted. Thinking there are no bullets in the gun, Bob reenacts a scene from his favorite movie – points the gun at Ted and pulls the trigger, hitting and killing Ted. With what crimes canTed Bob be convicted? Please evaluate fully, including any and all defenses that may apply.
The sample partial answer deals with First Degree Murder, and concludes that Bob cannot be convicted because he did not intend to kill him (because he thought there were no bullets in the gun).
Okay, maybe in the fantasy land of law school and/or bar exams that might be the case. But in the real world of criminal lawyers, the key word here is "can," not "should":
1. Simple - The jury can infer intent from the facts. Bob pointed the gun at Ted. He pulled the trigger. There was a bullet in the gun and it hit and killed Ted.
Yes in the abstract we know Bob thought there were no bullets in the gun. But how does the jury know that? Because Bob says so? Right. How many defendants would be acquitted if that was persuasive to a jury?
2. Detailed - Police came to the trailer park and took Bob down to the police station. Strangely they didn't believe Bob thought there were no bullets in the gun. After 7 hours of interrogation without an attorney (Bob didn't think he needed one because it was just an accident), Bob said he was sorry and admitted that he was mad because Ted ate the last french fry and he wanted to get back at him. Also, Bob's jail roommate gets extra good time credit by testifying at trial that Bob admitted he did it on purpose.
In other words, Bob can be convicted of First Degree Murder because the criminal justice system is not always about justice.
I'll do my best to stick to the fantasy answer, but maybe I'll slip in the real world answer at the end ("It should be noted that in the real world ...").
Here's a sample question from the review course:
Bob is showing off his new gun to Ted. Thinking there are no bullets in the gun, Bob reenacts a scene from his favorite movie – points the gun at Ted and pulls the trigger, hitting and killing Ted. With what crimes can
The sample partial answer deals with First Degree Murder, and concludes that Bob cannot be convicted because he did not intend to kill him (because he thought there were no bullets in the gun).
Okay, maybe in the fantasy land of law school and/or bar exams that might be the case. But in the real world of criminal lawyers, the key word here is "can," not "should":
1. Simple - The jury can infer intent from the facts. Bob pointed the gun at Ted. He pulled the trigger. There was a bullet in the gun and it hit and killed Ted.
Yes in the abstract we know Bob thought there were no bullets in the gun. But how does the jury know that? Because Bob says so? Right. How many defendants would be acquitted if that was persuasive to a jury?
2. Detailed - Police came to the trailer park and took Bob down to the police station. Strangely they didn't believe Bob thought there were no bullets in the gun. After 7 hours of interrogation without an attorney (Bob didn't think he needed one because it was just an accident), Bob said he was sorry and admitted that he was mad because Ted ate the last french fry and he wanted to get back at him. Also, Bob's jail roommate gets extra good time credit by testifying at trial that Bob admitted he did it on purpose.
In other words, Bob can be convicted of First Degree Murder because the criminal justice system is not always about justice.
I'll do my best to stick to the fantasy answer, but maybe I'll slip in the real world answer at the end ("It should be noted that in the real world ...").
Tuesday, November 30, 2010
Don't Drink and Drive!
Our public service announcement on WTEN for the holidays. I hope everyone follows this advice.
Monday, November 22, 2010
Judicial Diversion for drug felonies
This revolution has started with a whimper, not a bang.
In the spring of 2009, New York adopted a new Article 216 of the Criminal Procedure Law. It became effective in October of 2009.
This is a huge development in New York for handling drug offenders with treatment instead of incarceration, through Judicial Diversion. Or it should be. In some counties the courts are applying it faithfully. We've had reasonably good experience in Orange County and have heard good things about Westchester.
In other counties the judges and/or prosecutors are fighting it. Sadly, Albany County is one of these.
Here's what we have been saying in our memos:
Dear Judge ______:
Please accept this letter memorandum regarding judicial diversion. As we have discussed in Court, Mr. _____ seeks to participate in judicial diversion as laid out in the new CPL Article 216.
Judicial Diversion under Article 216
Pursuant to § 216.05(1), Mr. ______ can undergo a court-ordered alcohol and substance abuse evaluation. Per that subsection, this is “for the sole purpose of determining whether the defendant should be offered judicial diversion for treatment for substance abuse or dependence, alcohol abuse or dependence and any co-occurring mental disorder or mental illness.” We have already provided such an evaluation, by Dr. _____.
If the Court prefers to save judicial resources, we are happy to have the Court rely on Dr. _______’ report.
§ 216.05(3)(a) permits a hearing if requested, “on the issue of whether the eligible defendant should be offered alcohol or substance abuse treatment ….” Mr. _____ requests such a hearing.
§ 216.05(3)(b) lays out certain factors to be considered at such a hearing. Under subdivision (i), the Court would “consider and make a finding of fact” as to whether the defendant is eligible per § 216.00. It is undisputed that Mr. _____ is eligible.
Under subdivision (ii), the Court would consider whether Mr. ______ “has a history of alcohol substance abuse or dependence.” Dr. _______ finds that he does.
Under subdivision (iii), the Court would consider whether “such … abuse or dependence is a contributing factor to the defendant’s criminal behavior.” It should be noted here that the standard is not whether such abuse or dependence was “the proximate cause” of the crime. It is a very low standard – whether it was “a contributing factor.” Dr. _____ does find that his “substance abuse was a contributing factor.
Under subdivision (iv), the Court would consider whether “judicial diversion could effectively address such abuse or dependence.” Dr. _____ finds that Mr. ______ is “a good candidate for judicial diversion.”
Under subdivision (v), the Court would consider whether “institutional confinement of the defendant is or may not be necessary for the protection of the public.” There is no indication in this case that Mr. ______ poses any danger to the public, and Dr. _____ finds that institutional confinement is not necessary.
Thus, on all five factors specified in § 216.05(3)(b), Mr. _____ fits, and should be offered judicial diversion pursuant to § 216.05(4). I note here that Mr. ______ does not claim “exceptional circumstances” under § 216.05(4)(b) so any diversion would involve a plea of guilty.
Judicial Diversion is not the same as Drug Court
During the course of handling Mr. ______’s case and other cases, it seems that many court personnel think that Judicial Diversion is the same as or similar to drug court. It isn’t.
Judicial Diversion is governed by Article 216 of the CPL, which has several substantial provisions. By contrast, “drug court” is not well defined in the statutes. As Professor Preiser put it in the commentary to CPL 180.20:
The new procedure permits transfer of cases to another court within the same county that has been designated to operate a special “drug court” program. The program did not require any particular substantive authority, as diversionary programs have been in operation in this state for many years without specific legislation. The present statute merely facilitates use of a diversionary program by creating a mechanism for economies of scale through legislative authorization for transfer of cases; thus supplementing jurisdictional limitations of local criminal courts. Note that there is no provision as to how a “drug court” is to operate. The sole requirement is a motion by defendant, consent of the district attorney and exercise of judicial discretion to transfer the action. Presumably the operation is a matter of local county option. This would include, such matters as: whether a plea of guilty is to be required prior to or post transfer; whether there is to be a specified sentence upon a guilty plea, if entered, that will be carried out if defendant does not perform acceptably in the program; or whether a guilty plea, if entered, may be withdrawn upon successful completion of a program. A parallel provision for offenses below felony grade was added as CPL § 170.15(3).
There are many differences between drug court and judicial diversion.
Drug court is controlled at the county level with almost no state statutory guidance. Judicial diversion is covered by Article 216 which contains detailed instructions.
Drug court requires consent of the District Attorney, under CPL 180.20(3). Judicial diversion does not require the DA’s consent except where the defendant seeks to participate without entering a plea. CPL 216.05(4)(a).
Drug court covers both misdemeanors and felonies. Judicial diversion applies only to felonies. CPL 216.00(1).
Drug courts often include random visits to the defendant’s home with surprise drug tests. Judicial diversion “may include … periodic court appearances, which may include periodic urinalysis.” 216.05(5). Subsection 8 also provides:
The court may require the defendant to appear in court at any time to enable the court to monitor the defendant's progress in alcohol or substance abuse treatment. The court shall provide notice, reasonable under the circumstances, to the people, the treatment provider, the defendant and the defendant's counsel whenever it orders or otherwise requires the appearance of the defendant in court.
Monitoring of defendants under judicial diversion is much less stringent than under drug court. Please note that Dr. _______’s treatment plan includes random drug screens under the supervision of treatment personnel, so court drug screens may be unnecessary.
Probation supervision is common in drug court. It is optional in judicial diversion after the treatment is complete, and only applies where it is attached to subsequent withdrawal of the guilty plea. 216.05(10). Probation supervision is not included in the list of release conditions specified for diversion in 216.05(5).
While Judiciary Law § 212(r) does envision that judicial diversion cases would be assigned to judges who handle drug treatment courts, that is a directive to OCA, is only for supervision of such cases, and only “to the extent practicable.”
Judicial diversion does not mean putting the defendant in drug court nor the equivalent of drug court. It is not a one-size-fits-all treatment plan. 216.05(5) indicates it:
shall include: participation in a specified period of alcohol or substance abuse treatment at a specified program or programs identified by the court, which may include periods of detoxification, residential or outpatient treatment, or both, as determined after taking into account the views of the health care professional who conducted the alcohol and substance abuse evaluation and any health care professionals responsible for providing such treatment or monitoring the defendant's progress in such treatment.
Conclusion
In Mr. _____’s case, Dr. ______ has recommended a detailed program of treatment. He is a health care professional and has agreed to be responsible for providing and monitoring such treatment.
There do not appear to be any objections to Dr. ______’s recommendations.
Consistent with § 216.05, the Court should set conditions for Mr. _____ following Dr. ______'s recommendations, including:
[insert treatment recommendations]
While defense counsel feels it’s unnecessary (due to the treatment recommendations), 216.05(5) does permit the Court to require periodic court appearances with urinalysis. Defendant consents to this if the Court wishes to impose such condition.
Further, this program does not impose any costs on the state or county, and is thus consistent with the effort under 216.05(7) for costs to be borne by health insurance where possible.
Finally, while Article 216 is fairly new, the Court may wish to review the recent case of People v. Jordan, 908 NYS2d 844 (Westchester Co. Ct., August 2010) (defendant facing 23 count indictment offered diversion).
I respectfully submit that, absent any evaluation to the contrary, Dr. ______’s report is persuasive and unrebutted and a hearing may be unnecessary if the Court is willing to offer judicial diversion to Mr. _______.
In the spring of 2009, New York adopted a new Article 216 of the Criminal Procedure Law. It became effective in October of 2009.
This is a huge development in New York for handling drug offenders with treatment instead of incarceration, through Judicial Diversion. Or it should be. In some counties the courts are applying it faithfully. We've had reasonably good experience in Orange County and have heard good things about Westchester.
In other counties the judges and/or prosecutors are fighting it. Sadly, Albany County is one of these.
Here's what we have been saying in our memos:
Dear Judge ______:
Please accept this letter memorandum regarding judicial diversion. As we have discussed in Court, Mr. _____ seeks to participate in judicial diversion as laid out in the new CPL Article 216.
Judicial Diversion under Article 216
Pursuant to § 216.05(1), Mr. ______ can undergo a court-ordered alcohol and substance abuse evaluation. Per that subsection, this is “for the sole purpose of determining whether the defendant should be offered judicial diversion for treatment for substance abuse or dependence, alcohol abuse or dependence and any co-occurring mental disorder or mental illness.” We have already provided such an evaluation, by Dr. _____.
If the Court prefers to save judicial resources, we are happy to have the Court rely on Dr. _______’ report.
§ 216.05(3)(a) permits a hearing if requested, “on the issue of whether the eligible defendant should be offered alcohol or substance abuse treatment ….” Mr. _____ requests such a hearing.
§ 216.05(3)(b) lays out certain factors to be considered at such a hearing. Under subdivision (i), the Court would “consider and make a finding of fact” as to whether the defendant is eligible per § 216.00. It is undisputed that Mr. _____ is eligible.
Under subdivision (ii), the Court would consider whether Mr. ______ “has a history of alcohol substance abuse or dependence.” Dr. _______ finds that he does.
Under subdivision (iii), the Court would consider whether “such … abuse or dependence is a contributing factor to the defendant’s criminal behavior.” It should be noted here that the standard is not whether such abuse or dependence was “the proximate cause” of the crime. It is a very low standard – whether it was “a contributing factor.” Dr. _____ does find that his “substance abuse was a contributing factor.
Under subdivision (iv), the Court would consider whether “judicial diversion could effectively address such abuse or dependence.” Dr. _____ finds that Mr. ______ is “a good candidate for judicial diversion.”
Under subdivision (v), the Court would consider whether “institutional confinement of the defendant is or may not be necessary for the protection of the public.” There is no indication in this case that Mr. ______ poses any danger to the public, and Dr. _____ finds that institutional confinement is not necessary.
Thus, on all five factors specified in § 216.05(3)(b), Mr. _____ fits, and should be offered judicial diversion pursuant to § 216.05(4). I note here that Mr. ______ does not claim “exceptional circumstances” under § 216.05(4)(b) so any diversion would involve a plea of guilty.
Judicial Diversion is not the same as Drug Court
During the course of handling Mr. ______’s case and other cases, it seems that many court personnel think that Judicial Diversion is the same as or similar to drug court. It isn’t.
Judicial Diversion is governed by Article 216 of the CPL, which has several substantial provisions. By contrast, “drug court” is not well defined in the statutes. As Professor Preiser put it in the commentary to CPL 180.20:
The new procedure permits transfer of cases to another court within the same county that has been designated to operate a special “drug court” program. The program did not require any particular substantive authority, as diversionary programs have been in operation in this state for many years without specific legislation. The present statute merely facilitates use of a diversionary program by creating a mechanism for economies of scale through legislative authorization for transfer of cases; thus supplementing jurisdictional limitations of local criminal courts. Note that there is no provision as to how a “drug court” is to operate. The sole requirement is a motion by defendant, consent of the district attorney and exercise of judicial discretion to transfer the action. Presumably the operation is a matter of local county option. This would include, such matters as: whether a plea of guilty is to be required prior to or post transfer; whether there is to be a specified sentence upon a guilty plea, if entered, that will be carried out if defendant does not perform acceptably in the program; or whether a guilty plea, if entered, may be withdrawn upon successful completion of a program. A parallel provision for offenses below felony grade was added as CPL § 170.15(3).
There are many differences between drug court and judicial diversion.
Drug court is controlled at the county level with almost no state statutory guidance. Judicial diversion is covered by Article 216 which contains detailed instructions.
Drug court requires consent of the District Attorney, under CPL 180.20(3). Judicial diversion does not require the DA’s consent except where the defendant seeks to participate without entering a plea. CPL 216.05(4)(a).
Drug court covers both misdemeanors and felonies. Judicial diversion applies only to felonies. CPL 216.00(1).
Drug courts often include random visits to the defendant’s home with surprise drug tests. Judicial diversion “may include … periodic court appearances, which may include periodic urinalysis.” 216.05(5). Subsection 8 also provides:
The court may require the defendant to appear in court at any time to enable the court to monitor the defendant's progress in alcohol or substance abuse treatment. The court shall provide notice, reasonable under the circumstances, to the people, the treatment provider, the defendant and the defendant's counsel whenever it orders or otherwise requires the appearance of the defendant in court.
Monitoring of defendants under judicial diversion is much less stringent than under drug court. Please note that Dr. _______’s treatment plan includes random drug screens under the supervision of treatment personnel, so court drug screens may be unnecessary.
Probation supervision is common in drug court. It is optional in judicial diversion after the treatment is complete, and only applies where it is attached to subsequent withdrawal of the guilty plea. 216.05(10). Probation supervision is not included in the list of release conditions specified for diversion in 216.05(5).
While Judiciary Law § 212(r) does envision that judicial diversion cases would be assigned to judges who handle drug treatment courts, that is a directive to OCA, is only for supervision of such cases, and only “to the extent practicable.”
Judicial diversion does not mean putting the defendant in drug court nor the equivalent of drug court. It is not a one-size-fits-all treatment plan. 216.05(5) indicates it:
shall include: participation in a specified period of alcohol or substance abuse treatment at a specified program or programs identified by the court, which may include periods of detoxification, residential or outpatient treatment, or both, as determined after taking into account the views of the health care professional who conducted the alcohol and substance abuse evaluation and any health care professionals responsible for providing such treatment or monitoring the defendant's progress in such treatment.
Conclusion
In Mr. _____’s case, Dr. ______ has recommended a detailed program of treatment. He is a health care professional and has agreed to be responsible for providing and monitoring such treatment.
There do not appear to be any objections to Dr. ______’s recommendations.
Consistent with § 216.05, the Court should set conditions for Mr. _____ following Dr. ______'s recommendations, including:
[insert treatment recommendations]
While defense counsel feels it’s unnecessary (due to the treatment recommendations), 216.05(5) does permit the Court to require periodic court appearances with urinalysis. Defendant consents to this if the Court wishes to impose such condition.
Further, this program does not impose any costs on the state or county, and is thus consistent with the effort under 216.05(7) for costs to be borne by health insurance where possible.
Finally, while Article 216 is fairly new, the Court may wish to review the recent case of People v. Jordan, 908 NYS2d 844 (Westchester Co. Ct., August 2010) (defendant facing 23 count indictment offered diversion).
I respectfully submit that, absent any evaluation to the contrary, Dr. ______’s report is persuasive and unrebutted and a hearing may be unnecessary if the Court is willing to offer judicial diversion to Mr. _______.
Sunday, November 14, 2010
Albany Lawyer: What we do
I'm not sure I've ever written up a summary of what we do in our firm. We cover a few areas of law.
Personal Injury Lawyer
We handle a small number of personal injury cases, usually from car accidents and motorcycle accidents along with a few other areas.
Most of these cases are in or near the Albany area, but we do take some further away. We keep the number small by only accepting cases where the injuries are serious.
Criminal Defense
We handle a broad variety of criminal cases. The two most common areas we see are from drunk driving (DWI and DWAI) and marijuana possession.
Other cases we see include:
Petit Larceny (usually shoplifting)
Grand Larceny (mostly alleged employee theft or contractor disputes - both usually strong cases for the defense)
Aggravated Harassment (typically when someone keeps calling, e-mailing or texting their ex)
Criminal Possession of a Weapon (often in the Albany Airport)
Federal Criminal Defense (border-related offenses and drugs)
Our criminal defense practice is almost entirely within the greater Albany area (within about 100 miles). We do handle some cases further away, especially minor marijuana offenses. But for more serious cases, it becomes too expensive for most clients to pay us to travel.
Traffic Lawyer
We handle speeding tickets and other traffic offenses across most of New York State, covering almost every court north of New York City. We don't handle New York City or Long Island.
In addition to simple traffic tickets we see some criminal traffic cases involving aggravated unlicensed operation and reckless driving. We usually get these reduced to non-criminal violations.
Personal Injury Lawyer
We handle a small number of personal injury cases, usually from car accidents and motorcycle accidents along with a few other areas.
Most of these cases are in or near the Albany area, but we do take some further away. We keep the number small by only accepting cases where the injuries are serious.
Criminal Defense
We handle a broad variety of criminal cases. The two most common areas we see are from drunk driving (DWI and DWAI) and marijuana possession.
Other cases we see include:
Petit Larceny (usually shoplifting)
Grand Larceny (mostly alleged employee theft or contractor disputes - both usually strong cases for the defense)
Aggravated Harassment (typically when someone keeps calling, e-mailing or texting their ex)
Criminal Possession of a Weapon (often in the Albany Airport)
Federal Criminal Defense (border-related offenses and drugs)
Our criminal defense practice is almost entirely within the greater Albany area (within about 100 miles). We do handle some cases further away, especially minor marijuana offenses. But for more serious cases, it becomes too expensive for most clients to pay us to travel.
Traffic Lawyer
We handle speeding tickets and other traffic offenses across most of New York State, covering almost every court north of New York City. We don't handle New York City or Long Island.
In addition to simple traffic tickets we see some criminal traffic cases involving aggravated unlicensed operation and reckless driving. We usually get these reduced to non-criminal violations.
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