Feb 18 2015

NY Court: Low Level Sex Offenders Can Live Near Schools

The Court of Appeals, New York’s highest court, ruled yesterday that Nassau County and other localities don’t have the authority to restrict where convicted sex offenders can live. The Court voted 5-0 to strike down a 2006 Nassau County law that banned convicted sex offenders from living within 1,000 feet of a school; the Court held that only the state had the power to enact such a ban. Under current NY State law, the school ban can only be applied to Level 3 sex offenders – those at the highest risk of repeating their crimes or those with the worst and most severe prior criminal history. The Nassau ban had applied to sex offenders of any level.

lady justiceThere are currently more than 100 similar local ordinances around the state that set boundaries around parks, schools and other areas where children are likely to gather. All of those laws are now rendered invalid and unenforceable. In writing the opinion for the court, Justice Eugene Pigott emphasized that while such laws may have good intentions, the State’s police power is paramount in this scenario:

“A local government’s police power is not absolute. Although a local government is constitutionally empowered to enact local laws relating to the welfare of its citizens through its police power, it is prohibited from exercising that power through the adoption of local laws that are inconsistent with the New York State Constitution or any general law of the state.”

The law was passed in Nassau County in 2006. Former Nassau County Legislator David Mejias was the bill’s draftsman and sponsor. He stated that he was very disappointed in the court’s ruling and hoped that the State Legislature would move quickly to bring the State law in line with the Nassau County standard stating:

We worked very hard to draft a law that we were confident would pass muster. We researched local laws around the country that successfully fought off appellate challenges and modeled the language of this law after those statutes. Its disheartening to see the Court strike down a law designed to protect children from sexual predators. Albany needs to move quickly to address this issue and pass tighter restrictions on where sex offenders can reside.

While it is undoubtedly disturbing for folks who live near schools to think that a sex offender could move in next door to them and close to so many children, the Court of Appeals was bound y the law to act as it did. The unanimous Court decision shows the strong power given to the State to regulate a field of law if it so chooses. The Court held that by enacting various laws in the area of sex offender registration and residency, the State showed its clear intention to preempt local laws in this field. That means the ball is in the NY State Legislature’s court. Perhaps the Legislature will pass an amendment to the Sex Offender Registration Act and related laws some time soon; though various amendments have already been enacted over the years and no change was made in the level of offender prohibited from living near a school. Maybe this decision will highlight the need and desire for such legislation but many great proposals for legislation have died on the vine while waiting for Albany to act. This may be just one more.

Feb 07 2015

Oregon Upskirt Case Shows How Old Laws Can’t Catch New Crimes

They say you can’t teach an old dog new tricks, but 61 year old Patrick Buono of Portland Oregon learned that by crouching way down in the aisle of a store he could take cellphone pictures up girl’s skirts. He admittedly did that in a Beavertown Oregon Target store and captured an “upskirt” picture of a 13-year old girl. The picture captured an image of her underwear.

Security personnel arrested Buono and he was charged with two crimes: (1)attempted encouraging of child sex abuse; and (2)criminal invasion of privacy. But Friday Oregon judge Eric Butterfield acquitted Buono on both counts, stating that while the conduct was “lewd and appalling” it was not illegal as defined by the statutes. The child sex abuse charge is normally used for child pornography and required that the defendant “knowingly possesses or controls, or knowingly accesses with the intent to view, a visual recording of sexually explicit conduct involving a child. . ..”; “sexually explicit conduct” was not present in the photo.

The privacy law bans clandestine photography in bathrooms, locker rooms, dressing rooms and tanning booths, but the Target aisle was none of those and was plainly public. Furthermore, the law also requires that the person being photographed or recorded be in a “state of nudity,” which specifically means that the subject’s genitals, pubic area or breasts are “uncovered or less than opaquely covered” in any way for the statute to apply. Here, while the girl’s underwear was exhibited in the photo, there was no nudity and her private area was opaquely covered. The prosecutor, Deputy District Attorney Paul Maloney, conceded that the lack of nudity was a “live issue in this case,” but he argued the charge applied nevertheless. “Sure, she’s in a public place. But she had an expectation of privacy that a deviant isn’t going to stick a camera up her skirt and capture private images of her body,” he was quoted as saying in an article about the case in The Oregonian newspaper.

The judge however went off the rails in his decision, in my opinion. In dismissing the case he stated:

“These things are not only seen but video-recorded. It’s incumbent on us as citizens to cover up whatever we don’t want filmed in public places.”

Blind and occasionally fickle

Blind and occasionally fickle

He cited the famous photo of Marilyn Monroe unsuccessfully holding her skirt down over a subway grate as an example of how upskirt sightings can occur by happenstance; he also mentioned riding up an escalator, taking a spill or exiting a car as ways that a woman’s underwear can be exposed to the public. This part of his decision is completely misguided. In all those instances, the camera is merely capturing what is in the public view. That reasoning was why a Washington DC judge recently dismissed charges against a photographer who used a high power lens to capture images up women’s skirts as they sat on the steps of the Lincoln Memorial. The “upskirt area” in that case and in the examples given by Judge Butterfield were exposed to the public view. Buono, on the other hand, used his camera to shoot from the ground up in order to capture the image. There was no reason anyone – particularly a 13 year old girl – would expect that the upskirt area would be visible to the public in that scenario. Moreover, his comment that it was incumbent for the girl to cover up the area from view begs the question: How? So his comparison of the case facts to those other situations is just plain stupid and frankly unneccessary.

I say unnecessary because the case was easily dismissable without getting into this language since the facts did not come close to meeting the words of the statute. As I have repeatedly taught my law students over the years, criminal defense always begins with a close look at the elements of the crime(s) being charged. Each term or element of the crime provides a possible defense if the actions or omission of the accused do not meet those elements. Here, no one could argue that sexual conduct was involved so the sex abuse charge had no chance. The privacy charge was similarly DOA since the aisle of the store was not a “bathroom, locker room, dressing room or tanning booth.” One of those locations was a required element. Secondly, the law required “nudity.” While a picture of a girl’s panties is lewd and sexual in nature, it is not “nudity.” So the fault lies in the law’s language, not in the girl’s failure to block an upskirt view of her underwear from the ground.

In fact, the prosecutor in this case was at fault for even bringing the charges in the first place. Yes, Buono was committing a nasty, immoral act. But his conduct did not come close to violating any crime. What was the probable cause for his arrest? What chance did this prosecution ever have from the beginning? None. I think he can even bring a claim agaist the police officers who arrested him. The judge also commented “From a legal point of view, which unfortunately today is my job to enforce, he didn’t do anything wrong.” Yeah, judges hate it when they have to enforce the law as written.

The judge should have instead used his pulpit to chide the DA and not the victim. He should have made clear that there was no crime and no basis for this prosecution. He could have perhaps made two recommendations to the Legislature if they want to capture this conduct as a crime: (1) add the words “or any other location or manner where the victim would have a reasonable expectation of privacy” to the list of locations; and (2) add the words “underwear” or “private areas” to “state of nudity.” Other states have added such language to their law to try and criminalize “revenge porn” and other new methods of lewdness that were not previously thought of or criminalized.

I’m no fan of adding to the already lengthy list of criminal statutes, but its up to legislatures to look at their laws and decide if they want to make those changes. Bringing unprovable cases is not the way to do it.

Feb 06 2015

Resist Bill! Making False Arrest a Felony is a Very Bad Idea

Yesterday, NYPD Commissioner Bill Bratton called on the NY State Senate to make the charge of Resisting Arrest a felony; it is currently a misdemeanor punishable by up to one year in prison. While it may sound good on paper this is a profoundly bad idea.

Those who practice or work in the criminal justice system know that “Resisting Arrest” is a common charge employed to cover up an excessive use of force by an officer. It is a charge prone to abuse and easy to prosecute – your only necessary witness is the arresting officer: a professional, trained testifier in a uniform. And all he has to do to make out the elements of the crime is testify that the defendant offered up any kind of mild resistance or hesitation. In fact, the most common phrase used in Resisting Arrest complaints is that the defendant “flailed his arms” when the officer tried to put handcuffs on him.

NYPDStatistics show that these charges are routinely brought by the same officers. A recent report by WNYC has discovered a startling and disturbing reality about the way that New York’s police officers operate. According to their findings, just 15% of New York Police Department arresting officers generated over 50% of all “resisting arrest” charges since 2009, while an even smaller group of just 5% accounted for over 40% of those incidents. Just 5% of the entire NYPD were involved in over 40% of the city’s “resisting arrest” incidents. What are these 5% just continually running into chronic arrest-resisters? Do they work in neighborhoods where “flailing” is taught in school? Or is it more likely that these 5% are using the charge wrongly and excessively?

Raising the charge to a felony significantly raises the stakes against the accused. Now they are facing up to 4 years in prison; 5 years probation; loss of professional licenses; loss of the right to vote; and a black mark on their record that could easily prevent future employment. Many will now be forced to cop out to misdemeanors and end up with criminal records rather than face a felony trial against police witnesses.

I get why Bill Bratton is doing it: He needs to mend fences with his police force after they started turning their backs on Mayor Bill DeBlasio at police officers’ funerals. He needs to show that he’s got their backs and will support them. But this is a bad way to do it. Police departments around the country consider frequent charges of resisting arrest a potential red flag, as some officers might add the charge to justify use of force. University of Nebraska accountability consultant Sam Walker told WNYC: “There’s a widespread pattern in American policing where resisting arrest charges are used to sort of cover … the officer’s use of force. Why did the officer use force? Well, the person was resisting arrest.” That will come as no surprise to any criminal defense practitioner. If your client is bruised or is bloody from his interaction with NYPD you can almost bet that Resisting Arrest (and the other favorite – Obstructing Governmental Administration) will will be on the docket.

Commissioner Bratton also called for laws instituting more severe penalties for fatally assaulting an officer; for attacking a school safety agent or auxiliary cop; and for wearing a bullet-proof vest. Okay – these reforms make sense but elevating Resisting Arrest to a felony gives too much power to an NYPD force that is still not trusted by much of the community it polices.

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Jan 29 2015

News Flash: Bad Idea Leads to Good Government!

Near the end of last year, the Nassau Regional Off Track Betting Corporation (NOTB) announced that it planned on leasing the space at the site of an old Fortunoff’s department store on busy Old Country Road in Westbury, NY, to house a 1,000 seat video slot casino. The decision came as a surprise to area residents who had not been asked and who had not heard about the proposal until its announcement. They quickly formed a grass-roots organization calling themselves Stop the Casino at Fortunoff Committee.

Stop CasinoNext thing you know, signs began popping up around the Village of Westbury; a Facebook page was launched (currently at over 3,300 likes); planning meetings were held; and the word spread. At every opportunity, hundreds and sometimes thousands gathered at meetings at churches, civic associations and most recently the Nassau County Legislature to voice their strong opposition. When it became clear that a political solution was not forthcoming, Westbury Village Mayor Peter Cavallaro formed a legal committee to try and decide if legal action could be taken to stop the proposal. I was proud to be asked to serve on the committee.

In the end it was decided that indeed it appeared the NOTB side-stepped local and State law in selecting the site. A lawsuit is to be filed today at 2PM seeking an injunction to stop the deal from moving forward. What makes this particularly interesting is that in addition to the Village of Westbury and the homeowners who reside near the site (one of whom I represent), the plaintiffs to the lawsuit will be the Town of North Hempstead and the Town of Hempstead. [NOTE: For the non- Long Islanders who read this blog, Towns on Long Island are like mini-counties, for example the Town of Hempstead has twenty-two villages completely or partially in the Town with a total population of around 800,000 people]. The reason why this coalition is interesting is that the Town of Hempstead is the core home base of the powerful Nassau County GOP while the Town of North Hempstead has been a bastion of the Democratic party since 1989. Interestingly, North Hempstead was formed during the American Revolution when British Loyalists in the south and the American sympathizers in the north caused a split of what was just called Hempstead; in 1784 the revolutionaries formed North Hempstead and the Tories ruled Hempstead. This petition against the Casino is a rare example of bipartisanship in Nassau County.

While the case has many legal nuances that have to be argued and decided upon, the politics of the case are also interesting. NOTB (like all OTBs) is a patronage mill – when the Dems control the Legislature, the jobs go to the Dems, when the GOP is in power, they get the perks and the pork. So right now it is headed by longtime GOP operative Joe Cairo; Cairo dodged a bullet many years ago when GOP District Attorney Denis Dillon decided to take a pass on indicting Cairo for “discrepancies” in his law firm escrow account. The NOTB Board are all hand-picked by the GOP; it is highly unlikely that they did not advise GOP County Executive Ed Mangano and GOP Majority Leader/Legislature Presiding Officer Norma Gonsalves about their site choice. Both have now declared their opposition to the site but have said their hands are tied as the decision where to put the Casino is entirely in the NOTB’s hands. Earlier this week, Gonsalves refused to put up for a vote a Democratic-backed resolution to unseat the entire NOTB Board. That led to the unusual spectacle of GOP Mayor Cavallaro at the public podium loudly telling Gonsalves her actions were “shameful.”

Casino Press conferenceIn fact, Mayor Cavallaro deserves much credit for taking this on despite the GOP’s control over the NOTB.Normally, Nassau County Republicans are expected to tow the line and stand in unison on the side of the party. Frankly, before I became involved, I sniffed around to see if there wasn’t someone or some entity throwing money around to stop the project. (The folks who run the video slots and gaming at Aqueduct and other nearby locations came to mind, for example). But so far, all I have seen is that the Mayor’s efforts are being driven solely by a concern for the residents of his community. He welcomed the participation of Town of North Hempstaed Supervisor Judi Bosworth who added the sharp talents of Town Attorney Liz Botwin to the legal committee. Yesterday, the Town of Hempstead jumped on board as the momentum of the litigation and the coalition was barrelling full-force to the courthouse. Local reporters who have covered Nassau County for decades could not believe their eyes at yesterday’s press conference as they saw elected Dems and Reps standing side by side on an issue.

A Casino next to the Roosevelt Field and Source Malls and within 500 feet of residential neghborhoods in an already clogged and crowded commercial corridor is a terrible idea. We will argue today that it is also an illegal idea. Will the judge see it that way? I don’t know – our arguments are strong but so are the forces that want the $20 Million per year the Casino will bring to the County. Nassau OTB officials would not speak on camera Thursday, but said they are going ahead with their plans at the Fortunoff site. The agency said state law exempts them from needing local approval. We’ll soon see. But win or lose, I thank the NOTB for picking the Fortunoff as it showed that a grassroots effort can mobilize the citizenry and that elected officials can occasionally put politics aside to do what’s best for their constiuents. Will this become a regular thing? I wouldn’t bet on it but I’ll take what I can get.

Jan 21 2015

Time to Undo Another Shameful Vestige of the Hynes Era

At one time, Charles “Joe” Hynes was the untouchable District Attorney of Kings County, holding down the post as Brooklyn’s top prosecutor form 1989 to 2013. He often ran for election with little or no opposition. But as is often the case with politicians who overstay their welcome, the end of his career with filled with allegations of wrongdoing and corruption.  In 2010, Hynes’ office vacated the murder conviction of Jabbar Collins, who had been convicted in 1995 of killing a Brooklyn rabbi. Collins had been sentenced to 34 years to life in prison, but won the right to retrial after the district attorney’s office admitted that a key witness had recanted his testimony in the presence of a prosecutor before trial, and that this information had not been disclosed to the defense. Collins was released after another of the original witnesses against him, Angel Santos, testified that the case’s original prosecutor, Assistant District Attorney Michael Vecchione, had coerced Santos to testify against Collins with threats of physical violence and imprisonment. Following Collins’ release, Hynes said Vecchione was “a “very principled lawyer” and “not guilty of any misconduct”, and said he had no plans to investigate anyone who had been involved in Collins’ prosecution.  News of other similar incidents involving Vecchione and Brooklyn Detective Louis Scarcella arose that called into question how trials were conducted and witnesses treated. Another controversy arose when it was alleged that Hynes had used forfeiture money for campaign expenses and had been privately communicating with Kings County Administrative Judge Barry Kamins; Kamins resigned from his judgeship as a result of the scandal. Hynes was driven out of office by the election of Kenneth Thompson who ran on a platform of focusing on wrongful convictions from the 80s and 90s.

Hynes was also known for politically-motivated prosecutions, often charging folks who had the audacity to try and unseat him.  In 2001, civil court judge John Phillips announced his intent to oppose Hynes in that year’s race for district attorney. Shortly afterward, Hynes’ office began an investigation that resulted in claims that Phillips was the victim of a real estate scheme, and that the 70-year-old judge was incompetent to handle his own affairs. Hynes’ former chief of staff was named as temporary guardian of Phillips’ real estate holdings.In 2003, Hynes’ office filed felony theft charges against Sandra Roper, a lawyer who had challenged Hynes in the 2001 primary race. Prosecutors said that Roper had stolen about $9,000 from a client, whom she allegedly told she was representing for free. Ms. Roper’s defense argued that the funds were legal fees that the client had agreed to. Hynes subsequently recused himself from the case. Following a 2004 mistrial due to a hung jury, the charges were dismissed in 2005 after Roper repaid the funds to the client.


O'Hara's in Good Company

O’Hara’s in Good Company

But the worst politically-motivated prosecution of all is the one I am writing about today: In 1997, Hynes successfully prosecuted lawyer John O’Hara for voting in the wrong election district.  O’Hara admitted that he had voted in his girlfriend’s district where he had been living. As a result he was disbarred, paid a $20,000 fine, and served 1,500 hours of community service.  Only one other person was ever convicted in New York for voting in the wrong district: Suffragette Susan B. Anthony! . O’Hara has claimed he was prosecuted because he had run for office against Hynes’ allies and had supported challengers against Hynes. In 2009, the state Supreme Court’s Appellate Division unanimously approved a report by a state judicial committee that found that O’Hara’s prosecution was unjustified; the report said, “Mr. O’Hara, accurately it appears, claims that [Hynes’ political] machine went gunning for him and pounced on his change of residency calling it election fraud.” O’Hara was reinstated to the bar, although his conviction was  unfortunately upheld as presumably his actions did meet the elements of the statute – though the conviction seems to be on factually shaky grounds in my opinion: O’Hara lived in an apartment on 61st Street in Brooklyn and voted from that address for many years. After redistricting in the early 1990’s put his apartment in a different election district, O’Hara filed a new registration form stating residence at the 47th Street basement apartment of the building owned by his ex-girlfriend.The registration put O’Hara back in his old district, and he voted under the 47th Street address five times.

O’Hara has now filed a new motion to overturn his conviction. The motion claims Hynes, among other things, let certain prosecutors sidestep residency requirements while Hynes submitted his own “false real estate-related filings” and did not give his own correct address for voting purposes.

In pushing a “newly discovered evidence claim,”  O’Hara’s motion points to a bar reinstatement report by the fitness committee of the Appellate Division, Second Department, voicing “grave doubts” about the high-profile case and the absence of other criminal prosecutions for electoral fraud cases.  O’Hara is represented by Joel Rudin, a well-known litigator, who represented Jabbar Collins. It is hoped that DA Kenneth Thompson does the right thing here and agrees to support the motion. This kind of political hatchet job should not be allowed to stand.

O’Hara helped me out on my recent exoneration of David McCallum using some of his contacts to bring the story to the attention of the media and otherwise being there to bounce off ideas and strategize. When I learned first-hand the details of his situation, I could not believe Hynes had gotten away with it. John O’Hara has suffered the serious consequences of this selective and shady prosecution. It is time to undo the conviction and clear his name. It is time to clean up another disgraceful mess from the Hynes Era.


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