Case In Point
Mon, 11 Aug 2008 14:51:00
Legal Linguistics Cuts Deep for Machete Swinger
People v. Montilla
Decided by: Court of Appeals, June 25
One month after pleading guilty to third-degree assault, Franklyn Montilla had the bold wisdom to swing a machete in front of several police officers. While he did not threaten or harm anyone, he was indicted for third-degree criminal possession of a weapon.
In New York, third-degree criminal possession is the same crime as fourth-degree criminal possession, except it is applicable only to persons who have previously been convicted of any crime. Had Montilla done the same act before his plea, it would have been a misdemeanor charge. As a felony, however, third-degree possession carries a stiffer sentence that left Montilla facing several more years in prison. Attempting to change the charge to fourth-degree possession, Montilla argued that he technically had not yet been "convicted" of assault; after all, he had only pleaded guilty.
A unanimous Court of Appeals rejected Montilla's nod to technical linguistics. While the New York Penal Law, perhaps surprisingly, does not define "conviction," the Criminal Procedure code does. A guilty plea counts.
Criminal Procedure Law does, however, permit a defendant to withdraw a guilty plea anytime prior to sentencing. Both the Court of Appeals and Montilla's attorney neglected to mention this point.
Troopers Inadvertently Bargained Away the Right to an Attorney
Police Benevolent Association of New York v. New York State Police
Decided by: Court of Appeals, July 1
An officer in a high-speed chase collides with another car killing its passenger. Police surround a house and shoot a murder suspect. A state trooper takes a knife from a suspect and fatally stabs him.
These are the kind of incidents, when life and limb are in jeopardy or lost, which trigger a Critical Incident Review (CIR) by the New York State Police.
While the New York State government argues that CIRs are used to ensure rapid reporting of events up to the governor, state troopers have filed several lawsuits in recent years arguing the reports are used to determine disciplinary action. If the report could result in discipline, the troopers argue, the right to counsel should apply during CIR questioning. The state has maintained the troopers must not interact with a lawyer or their union representative during CIRs.
In Police Benevolent Association v. New York State Police, the Court of Appeals tried to resolve this seven-year dispute, issuing a decision denying the troopers' right to counsel. But, the decision's reasoning is opaque, with the possible discipline issue left unaddressed. Instead, the state's highest judges relied on employment law for their answer. Basically assuming that CIRs were unrelated to discipline, Chief Judge Judith Kaye found the police union never negotiated for a CIR-related right to counsel in its contract negotiations with the state. The result is that troopers have no right to speak to an attorney or union representatives during the very first stage of an investigation.
The decision is likely to frustrate both sides. The court's refusal to elucidate its reasons for rejecting the officers' CIR-disciplinary argument provides incentives for dissembling or silence for troopers who desire advice on what questions to answer. Doing so only slows the state in its task of determining what happens in a particular tragic incident.
Setting a New Bar on Breathalyzer Test Windows
People v. Holbrook
Decided by: Supreme Court, Bronx County, July 1
Netania Holbrook fell asleep in the parking lot of a White Castle restaurant in the Bronx last year. Noticing her idling car was "parked kind of crooked," an NYPD officer tapped on the windows, waking Holbrook and a companion. Upon questioning, Holbrook admitted to drinking at a wedding and driving to the White Castle, at which time the officer arrested her. It was 2:40 a.m.
At 5:30 a.m., a breathalyzer test administered to Holbrook showed a blood alcohol content (BAC) of .133, a level sufficient to charge her with driving under the influence (DUI). At her trial on the DUI charge, she moved to suppress the evidence stating that the entire test was unreliable. She based this argument on New York Vehicle and Traffic Law, which requires BAC tests to occur within two hours of arrest.
Despite an existing Court of Appeals decision in People v. Atkins about being able to admit tests administered more than two hours after an arrest, the trial judge agreed with Holbrook and agreed to exclude the evidence.
Given that there were more than 57,000 DUI arrests in New York in 2000, decisions like this have the potential to affect thousands of prosecutions. Clarification from the Legislature or Court of Appeals is certain to follow if the reasoning in Holbrook's case sticks on appeal-for instance, would the same standard apply to a test administered two hours and one minute after an arrest?
People v. Montilla
Decided by: Court of Appeals, June 25
One month after pleading guilty to third-degree assault, Franklyn Montilla had the bold wisdom to swing a machete in front of several police officers. While he did not threaten or harm anyone, he was indicted for third-degree criminal possession of a weapon.
In New York, third-degree criminal possession is the same crime as fourth-degree criminal possession, except it is applicable only to persons who have previously been convicted of any crime. Had Montilla done the same act before his plea, it would have been a misdemeanor charge. As a felony, however, third-degree possession carries a stiffer sentence that left Montilla facing several more years in prison. Attempting to change the charge to fourth-degree possession, Montilla argued that he technically had not yet been "convicted" of assault; after all, he had only pleaded guilty.
A unanimous Court of Appeals rejected Montilla's nod to technical linguistics. While the New York Penal Law, perhaps surprisingly, does not define "conviction," the Criminal Procedure code does. A guilty plea counts.
Criminal Procedure Law does, however, permit a defendant to withdraw a guilty plea anytime prior to sentencing. Both the Court of Appeals and Montilla's attorney neglected to mention this point.
Troopers Inadvertently Bargained Away the Right to an Attorney
Police Benevolent Association of New York v. New York State Police
Decided by: Court of Appeals, July 1
An officer in a high-speed chase collides with another car killing its passenger. Police surround a house and shoot a murder suspect. A state trooper takes a knife from a suspect and fatally stabs him.
These are the kind of incidents, when life and limb are in jeopardy or lost, which trigger a Critical Incident Review (CIR) by the New York State Police.
While the New York State government argues that CIRs are used to ensure rapid reporting of events up to the governor, state troopers have filed several lawsuits in recent years arguing the reports are used to determine disciplinary action. If the report could result in discipline, the troopers argue, the right to counsel should apply during CIR questioning. The state has maintained the troopers must not interact with a lawyer or their union representative during CIRs.
In Police Benevolent Association v. New York State Police, the Court of Appeals tried to resolve this seven-year dispute, issuing a decision denying the troopers' right to counsel. But, the decision's reasoning is opaque, with the possible discipline issue left unaddressed. Instead, the state's highest judges relied on employment law for their answer. Basically assuming that CIRs were unrelated to discipline, Chief Judge Judith Kaye found the police union never negotiated for a CIR-related right to counsel in its contract negotiations with the state. The result is that troopers have no right to speak to an attorney or union representatives during the very first stage of an investigation.
The decision is likely to frustrate both sides. The court's refusal to elucidate its reasons for rejecting the officers' CIR-disciplinary argument provides incentives for dissembling or silence for troopers who desire advice on what questions to answer. Doing so only slows the state in its task of determining what happens in a particular tragic incident.
Setting a New Bar on Breathalyzer Test Windows
People v. Holbrook
Decided by: Supreme Court, Bronx County, July 1
Netania Holbrook fell asleep in the parking lot of a White Castle restaurant in the Bronx last year. Noticing her idling car was "parked kind of crooked," an NYPD officer tapped on the windows, waking Holbrook and a companion. Upon questioning, Holbrook admitted to drinking at a wedding and driving to the White Castle, at which time the officer arrested her. It was 2:40 a.m.
At 5:30 a.m., a breathalyzer test administered to Holbrook showed a blood alcohol content (BAC) of .133, a level sufficient to charge her with driving under the influence (DUI). At her trial on the DUI charge, she moved to suppress the evidence stating that the entire test was unreliable. She based this argument on New York Vehicle and Traffic Law, which requires BAC tests to occur within two hours of arrest.
Despite an existing Court of Appeals decision in People v. Atkins about being able to admit tests administered more than two hours after an arrest, the trial judge agreed with Holbrook and agreed to exclude the evidence.
Given that there were more than 57,000 DUI arrests in New York in 2000, decisions like this have the potential to affect thousands of prosecutions. Clarification from the Legislature or Court of Appeals is certain to follow if the reasoning in Holbrook's case sticks on appeal-for instance, would the same standard apply to a test administered two hours and one minute after an arrest?
