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January 2006
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March 2006

Do Not Disturb--Genius at Work

In this article, it is reported that a Pace University student was arrested for making and selling fake IDs and charged with Forgery in the Second Degree and Criminal Possession of a Forged Instrument in the Second Degree.  Nothing particularly surprising about that, right?

But, what caught my eye was the following evidence of mental genius:

It is believed that the fake licenses were sold to students principally so they could unlawfully engage in underage drinking.

Um, ok then.  Thanks for cluing me and your apparently-dumber-than-door-nails readers in.  I never would have figured that out.

Court of Appeals Holds Defendant Out of Luck

In People v. Trevor Burns, 2006 N.Y. Slip Op. 01109, the Court of Appeals considered whether an alleged exculpatory hearsay statement should have been admitted at trial under the exception for declarations against penal interest and whether the preclusion of the statement violated the defendant's constitutional right to present a defense.

The Court described the relevant facts as follows:

Defendant took part in a shootout in which he was wounded and the victim killed. Before implicating himself and two associates in the killing, he gave several different accounts of what had happened, including the claim that both he and the victim had been shot by a gang of Hispanic men.

At trial, the People disclosed a signed statement given to police by a declarant whose last-known address the People supplied. Declarant placed five armed Hispanic men a few New York City blocks away from the scene of the shootout on the same day and at roughly the same time. He stated that one of the armed men gave him three bags of heroin and told him to leave the area because "they" had to talk about "something [they were] going to do" that night. After declarant had walked about two blocks from the site of this encounter, he heard gunshots and sirens; he also saw the five men get into two cars. The next day, declarant happened upon one of the five men, who told him that "[e]verything was taken care of last night."

The Court concluded that the only portion of the statement that arguably fell within the declarations against penal interest exclusion, that the declarant had admitted possessing heroin, was not relevant to the issues at trial.

The Court also concluded that the defendant's right to present a defense was not violated, even though the Court did not allow the admission of the hearsay statement through the testimony of a police officer.  The Court's holding in this regard was based upon the fact that the lower court had allowed the defendant to use a "so ordered" subpoena for declarant to testify and the opportunity to make an offer of proof.  In upholding the lower court's ruling, the Court stated:

[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.

Small  solace to the defendant, given that even if the declarant was able to be located and served with the subpoena, he likely would not have actually shown up to testify at trial. And, if he had, he probably would have recanted his statement once on the stand out of fear of retribution.

Indignent Indigent
posted about this decision here.

Define That Term #49

Yesterday's term was scintilla, which is defined as:

n. Latin for "spark." Scintilla is commonly used in reference to evidence, in the context that there must be a "scintilla of evidence" (at least a faint spark) upon which to base a judgment.

There were no correct guesses this time around.

Today's term is:

ab initio.

No dictionaries allowed.

Re-Pay Your Debt To Society--Literally

There was an interesting article in the New York Times yesterday about the many fees assessed against criminal defendants by the courts.  Fees are levied against those charged with a crime at nearly every stage of the process:

Almost every encounter with the criminal justice system these days can give rise to a fee. There are application fees and co-payments for public defenders. Sentences include court costs, restitution and contributions to various funds. In Washington State, people convicted of certain crimes are also charged $100 so their DNA can be put in a database.

Private probation companies charge $30 to $40 a month for supervision. Halfway houses charge for staying in them. People sentenced to community service are required to buy $15 insurance policies for every week they work. Criminals on probation and parole wear global positioning devices that monitor their whereabouts — for a charge of as much as $16 a day.

An argument made by proponents of this system is that it's only fair that the costs to society are offset by charging fees to those accused and convicted of crimes.  Concerns raised by those who oppose the fees are that the system is forcing those who can't afford to pay for an attorney to otherwise pay through added charges.  Another argument is that the government is essentially forcing people to "buy back" their right to vote, since in many states, the right to vote is regained only upon re-payment of the fees in full.

Extremely high interest rates are charged on the fees, making them even more difficult to pay back.  The article described a number of specific cases, including this one:

In 2003, for instance, Sabrina Byrd, a 27-year-old single mother, was ordered to pay $852 for failing to leash and vaccinate her dog in College Park, Ga. Too poor to pay, she was placed on probation while she made 10 monthly installments, along with a monthly fee to a probation company of $39 — about half of the fine. When she fell behind and failed to contact the company, a judge revoked her probation and sentenced her to 25 days in jail.

While I understand the rationale behind some of the fees, I think that things have gone too far.  I find the fees assessed against those who are provided with a public defender to be particularly reprehensible and am also troubled by the effect that the inability to pay has upon the right to vote.

The ACLU has filed a lawsuit that challenges the effect of the fees upon the right to vote.  Perhaps another lawsuit is in order regarding the back door fees charged for public defenders.

Define That Term #48

Friday's term was posse comitatus, which is defined as:

(pahs-see coh-mitt-tah-tus) n. from Latin for "possible force," the power of the sheriff to call upon any able- bodied adult men (and presumably women) in the county to assist him in apprehending a criminal. The assembled group is called a posse for short.

There were no guesses this time around.

Today's term is:


Like many litigators, I've bantered this about, and thought I knew what it meant.   I was using it correctly, but am somewhat surprised by the actual definition.

Any guesses?  And remember, no dictionaries.

Fourth Department Dismisses Claims Against Police

In Weiss v. Hotung, 2006 N.Y. Slip Op. 00886, the Fourth Department considered whether the plaintiff's claims for malicious prosecution, false arrest and false imprisonment were properly dismissed by the lower court.  I've litigated a number of these cases in the past and am always interested in cases that address these types of claims.  The holding in this case isn't necessarily surprising, but bears repeating.

At the outset, the Court noted that the false arrest and false imprisonment claims were properly dismissed since a criminal summons had been issued pursuant to CPL 130.30 and thus:

(P)laintiff was never arrested or "held in actual custody by any law enforcement agency as a result of the charge ... filed against [him]."

The Court then turned to the malicious prosecution claim and established the elements of the claim: 1) the initiation of a criminal proceeding by the defendant against the plaintiff, 2) the termination of the proceeding in favor of the accused, 3) a lack of probable cause, and 4) malice.  The Court held that the claims against the individual police officers were properly dismissed since nothing aside from speculation and conclusions supported the claim that they acted with malice.

However, the Court held that the lower court should not have dismissed the claim against Violet Realty, Inc., since:

A probable cause finding as to one entity does not compel such a finding as to the other where the facts and circumstances known to each defendant may be different. Upon our review of the record, we conclude that there is an issue of fact whether an employee of Violet Realty intentionally gave false information to the police, resulting in the commencement of the criminal proceeding against plaintiff.  (Internal citations and quotations omitted).

I'm not sure how thrilled the plaintiff will be with this decision.  Generally, insurance policies don't cover these types of claims, so the guaranteed deep pocket in this case was the municipal entity, and it's no longer on the hook.  It's difficult to establish intentional malice at trial, and even if the plaintiff is successful,  he'll have to try to collect the judgment from a corporate entity that may very well be non-existent by the time the trial rolls around.  So, this may be a shallow victory, at best.

Body Parts, Cadavers and Rochester Ties, Oh My!

This article describes a criminal case involving hundreds of bodies that were looted for body parts without permission of surviving family members. 

Prosecutors claim that an oral surgeon who had lost his license, Michael Mastromarino, made millions of dollars by covertly carving up bodies at a Brooklyn funeral home and then sold the stolen body parts.  He teamed up with a mortician, Joseph Nicelli, who had embalming and cremation contracts in funeral homes in NYC, Rochester, Philadelphia and New Jersey.  According to the article:

Mastromarino, owner of Biomedical Tissue Services of Fort Lee, N.J., Joseph Nicelli, a Brooklyn mortician, and two other defendants, Lee Crucetta and Christopher Aldorasi, pleaded not guilty to charges including enterprise corruption, body stealing, opening graves, unlawful dissection and forgery. Each would face up to 25 years in prison if convicted, prosecutors said.

The evidence against the defendants includes x-rays and photographs of the recently exhumed cadavers:

The images show that where leg bones should have been, someone had inserted white plastic pipes _ the kind used for home plumbing projects, available at any hardware store. The pipes were crudely reconnected to hip and ankle bones with screws before the legs were sewn back up.

There was apparently a "secret operating room" wherein the looting occurred:

Nicelli was paid up to $1,000 per body to deliver corpses to a secret second-floor operating room at his funeral parlor, where Mastromarino would remove bones, skin, tendons and other non-organ body parts, authorities said. Crucetta, a nurse, and Aldorasi allegedly helped Mastromarino cut up the bodies without the knowledge of the families.

I definitely see a future "Law and Order" episode based upon this scheme.

Define That Term #47

Yesterday's term was examplary damages, which is defined as:

n. often called punitive damages, these are damages requested and/or awarded in a lawsuit when the defendant's willful acts were malicious, violent, oppressive, fraudulent, wanton or grossly reckless. Examples of acts warranting exemplary damages: publishing that someone had committed murders when the publisher knew it was not true but hated the person; an ex-husband trashes his former wife's auto and threatens further property damage; a stockbroker buys and sells a widow's stocks to generate commissions resulting in her losing all her capital (money). These damages are awarded both as a punishment and to set a public example. They reward the plaintiff for the horrible nature of what she/he went through or suffered. Although often requested, exemplary damages are seldom awarded. There have been major awards in egregious (remarkable or outstanding) cases, such as fraud schemes, sexual harassment or other intentional and vicious actions even when the provable actual damages were not extensive. See also: damages punitive damages.

No guesses, so, accordingly, no winners.

Today's term is:

posse comitatus.

No dictionaries, please.


I Need to See Your Papers, Ma'am

I was unaware that in May of 2005 Congress passed the Real ID Act until I read a post regarding national ID cards on the knownunknowns blog. 

As explained in this article, the Real ID Act, which will become effective in 2008, will require anyone who lives or works in the United States to have a federally approved ID card in order to open a bank account, travel on an airplane, collect Social Security payments or take advantage of virtually any government service.  It is expected that all driver's licenses will have to be re-issued by each state to meet federal standards set by Homeland Security. 

The information that will be stored on the card includes:

At a minimum: name, birth date, sex, ID number, a digital photograph, address, and a "common machine-readable technology" that Homeland Security will decide on. The card must also sport "physical security features designed to prevent tampering, counterfeiting, or duplication of the document for fraudulent purposes."

Homeland Security is permitted to add additional requirements--such as a fingerprint or retinal scan--on top of those. We won't know for a while what these additional requirements will be.

The information will probably be stored on the cards using RFID chips:

In the past, Homeland Security has indicated it likes the concept of RFID chips. The State Department is already going to be embedding RFID devices in passports, and Homeland Security wants to issue RFID-outfitted IDs to foreign visitors who enter the country at the Mexican and Canadian borders. The agency plans to start a yearlong test of the technology in July at checkpoints in Arizona, New York and Washington state.

It all sounds kosher and happy, doesn't it?  We trust our leader and Homeland Security, right?  Not so fast.

According to this article, the Department of Homeland Security is currently seeking technology that can read these government issued documents embedded with RFID chips:

from up to 25 feet away, pinpoint pedestrians on street corners, and glean the identity of people whizzing by in cars at 55 miles per hour....DHS is seeking RFID devices that 'can be sensed remotely, passively, and automatically....The device must be readable under all kinds of indoor and outdoor conditions... and while carried by pedestrians or vehicle occupant.'

As set forth in this document originating with Homeland Security:

DHS has set "several high-level goals" for the reading of RFID "tokens" carried by travelers, including:

• The solution must...identify the exact location of the read such as a specific pedestrian or vehicle lane in which the token is read.
• The solution presented must sense the remote data capture technology carried by a pedestrian traveler at distances up to 25 ft.
• The solution presented must sense all tokens carried by travelers seated in a single automobile, truck, or bus at a distance up to 25 ft. while moving at speeds up to 55 mph.
• For bus traffic, the solution must sense up to 55 tokens.
• For a successful read, the traveler should not have to hold or present the token in any special way to enable the reading of the token's information. The goal is for the reader to sense a token carried on a traveler's person or anywhere in a vehicle.

Is this truly happening in America?  Where is the outrage?