On September 15, 2016, in Criminal, by John A. Weber IV, ESQ.

Criminal Hearings to Determine if a Search is Reasonable

The fourth amendment of the United States Constitution guarantees that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….” In recent times these principles have had real life consequences on New Yorkers with regard to issues such as the controversial “Stop and Frisk” policy of the NYPD, and arbitrary traffic stops that sometimes result in arrests for driving while intoxicated or drug offenses. There are three main types of criminal hearings in the New York Courts that are held to determine the reasonableness of police search and seizures that relate to these fourth amendment principles. These criminal hearings respectively are; Mapp, Huntley, and Dunaway hearings.

A Mapp Hearing deals with the admissibility of physical evidence obtained by the police as a result of an illegal search.

Huntley Hearings are held to determine if a defendant’s statements to police were made voluntarily and not coerced. If they are found to have been coerced then under the Huntley rule they will not be admissible as evidence.

A Dunaway hearing is held to determine whether evidence was obtained by police as the result of an arrest made where police lacked probable cause to make the arrest in the first place. If it is determined that police lacked probable cause to initiate an arrest any subsequent statements or evidence obtained by police as the result of the arrest will be held inadmissible in court.

Criminal Defense Attorney

Retaining an attorney that understands the nuances of these hearings and how to challenge the accuracy and veracity of evidence in court can and will make all the difference in your case. When you or a loved one are facing criminal charges, you need someone fighting on your side. Call the Law Firm of Vaughn, Weber & Prakope, PLLC at 516-858-2620 to speak to an experienced criminal defense attorney.

DWI on Long Island

On March 10, 2016, in Criminal, Litigation, Motor Vehicle Accident, Personal Injury, by John A. Weber IV, ESQ.

(Image from nytimes.com)

DWI Issues and Long Island

DWI – Driving While Intoxicated aka Drinking and Driving. Drinking and Driving is a problem that has plagued Long Island.  Nassau County and Suffolk County have a major problem with drunk drivers on their roads.  There was an informative article in the New York Times on July 24, 2015 written by Kirk Semple,  that caught my eye.  Drinking and Driving has an impact on all Long Islanders.  It is worth taking a minute to read this New York Times article if you have time.

Drinking While Intoxicated causes grief for the families of both the perpetrator and the victims.  For the individual caught driving while intoxicated, attorneys fees, impound fees and facing criminal charges should be sufficient deterrents.  For some reason, especially on Long Island, they have not deterred enough drivers from driving while intoxicated.  For victims of DWI incidents, there are many consequences as well.  Medical treatment, if they are lucky enough to survive, time investment for personal injury suit to be compensated for damages suffered, lost time from work and a myriad of other issues are often the results.  As set forth in the article, Long Island is particularly hard hit by DWI incidents.

DWI Attorney in Long Island

If you or a loved one have been arrested for DWI or DUI or have been in an accident where drugs or alcohol have contributed, please call the Law Firm of Vaughn, Weber & Prakope, PLLC at 516-858-2620 to speak to an attorney who can help you today!

 

Driving While Intoxicated

The Defendant was charged with, among other things, Driving While Intoxicated or DWI (VTL 1192). Defendant challenges the stop and subsequent arrest. Defendant further claims that the results of his blood alcohol test should be suppressed because his right to counsel was violated. The officer, a veteran in driving while intoxicated detection, pulled over the defendant inquired as to whether the defendant had anything to drink. At first, the defendant denied drinking anything. Sobriety tests were performed and a portable breath test came up with results of .07 and .08. The police officer asked the defendant again if he had anything to drink to which the defendant responded that he drank a sip of wine. The defendant was taken into custody and asked to speak to an attorney.

“A defendant has a qualified, not an absolute, right to counsel when deciding whether to submit to a breath test to determine blood alcohol content (see People v. Smith, 18 NY3d 544, 549 [2012]; People v. Gursey, 22 NY2d 224, 227 [1968]). However, once afforded, if that qualified right is to have any meaning, the communication between the defendant and his or her attorney must be private. Because the police prevented that privacy here, the court suppresses the results of the breath test, all statements defendant made while on the phone with his attorney, and that portion of the video showing defendant’s breath test and statements to counsel.” Pp. 1.

Because certain phones within the police station were allegedly not working, the Police Officer “allowed defendant to use his (Officer Winn’s) own private cell phone.” Pp. 4. Seems innocent enough, right? Wrong. “[B]ecause Officer Winn was concerned that defendant would break his cell phone (Officer Winn explained that, on a prior occasion, a defendant broke his phone), the Officer held the cell phone, while defendant used the speakerphone feature to speak to his wife and then his attorney.” Id. Why would the officer make that assumption? The law in regards to the right to counsel in New York Driving While Intoxicated cases is quite clear:

In People v. Gursey, 22 NY2d 224 (1968), the Court of Appeals recognized that a defendant has a qualified right to consult with an attorney about whether to submit to a breath test when under suspicion or arrest for driving while intoxicated. The Court acknowledged that alcohol dissipates rapidly in the body and therefore a breath test is time sensitive (id. at 229). However, so long as communication between lawyer and client does not “interfere unduly” with administration of the breath test, the police cannot “prevent access between the criminal accused and his lawyer” (id. at 227). The Court elaborated that a telephone call to an attorney would conclude in a matter of minutes and therefore would not interfere with the investigative procedure (id. at 228). Accordingly, “the denial of defendant’s requests for an opportunity to telephone his lawyer must be deemed to have violated his privilege of access to counsel” (id.).The Court of Appeals has reaffirmed the rule in Gursey twice in recent years (see People v. Smith, 18 NY3d 544, 549 [2012] [“as we explained in Gursey, the right to seek the advice of counsel — typically by telephone — could be accommodated in a matter of minutes and in most circumstances would not substantially interfere with the investigative procedure”]; People v. Washington, 23 NY3d 228, 234 [2014] [failure of police to notify defendant, after she had consented to chemical breath test, but before she had performed it, that an attorney had telephoned the station on her behalf, violated her qualified right to counsel]). A violation of defendant’s qualified right to counsel generally requires suppression of the breath test results (Smith, 18 NY3d at 550; Washington, 23 NY3d at 232)….The right to counsel includes “the right to consult counsel in private, without fear or danger that the People, in a criminal prosecution, will have access to what has been said” (People v. Cooper, 307 NY 253, 259, 120 NE2d 813 [1954]; see also People v. Gamble, 18 NY3d 386, 396 [2012][“[i]ntrusion upon a client-lawyer conference, whether in the privacy of an office or at the counsel table in court, contravenes our sense of traditional fair play and due process”] [citations omitted]; Coplon v. United States, 191 F2d 749, 759 [DC Cir.1951] [the Fifth and Sixth Amendments “guarantee to persons accused of crime the right privately to consult with counsel both before and during trial. This is a fundamental right which cannot be abridged, interfered with, or impinged upon in any manner”]).

Pp. 5-6 (external quotation marks omitted and internal citations preserved). Here…. “Suppression is necessary because the police violated defendant’s limited right to counsel when they would only permit defendant to talk to his lawyer on speaker phone in the presence of third persons.” Pp. 5. Not only did the police officer not have a phone which the defendant could use in private, the police officer held the phone while the defendant listened through the speaker phone feature… on video. “Once afforded, if the right to counsel is to have any meaning, the communication between lawyer and client must be private.” Pp. 6. As if it is not strange enough that there were no private phones available in the police station (what about all the other suspects who wanted to speak to an attorney), one might ask where the defendant’s cellular phone was. After all, everyone has a cellular phone these days: “This result is all the more appropriate given that the police had confiscated defendant’s phone, and, therefore, defendant could not use his own phone to call his attorney. If Officer Winn was so concerned that defendant would have broken the Officer’s phone, he could have given back defendant his own phone to use.” Pp. 7 (emphasis added).

“In conclusion, defendant’s qualified right to counsel was effectively destroyed when the officer: (1) placed the entire conversation on speakerphone; (2) stood so close that he could overhear the entire interchange and even answer some questions himself; and (3) recorded the entire conversation on video. Accordingly, the court suppresses: (1) the results of the breath test; (2) any statements defendant made to his counsel; and (3) that portion of the video showing defendant’s breath test and statements to counsel.” Pp. 7. The Court suppresses the breath test results and the portions of the video containing statements the defendant made to his attorney.  The case is People v. Moffitt, 2014NY060669, NYLJ 1202745797904, at *1 (Crim., NY, Decided November 17, 2015)

DWI Attorney in Long Island

If you have taken a breath test or have questions about breath test, call the Law Firm of Vaughn, Weber & Prakope, PLLC at (516) 858-2620 to speak to a criminal attorney today!

FOIL Request in death of Jo’Anna Bird

On February 28, 2016, in Civil Rights, Litigation, by John A. Weber IV, ESQ.

FOIL

FREEDOM OF INFORMATION LAW (FOIL)

Newsday sought access to records via the New York Freedom of Information Law (FOIL). The records requested were in response to potential police misconduct and the death of Jo’Anna Bird. Following the murder of Ms. Bird, the Nassau County Police Department’s (NCPD) Internal Affairs Unit investigated the circumstances leading up to Bird’s murder. The results of that report became the subject of litigation and, eventually, the report and the contents of the report were declared confidential by a Federal Court. Those who were privy to the report were forced into silence under the threat of contempt. Here, “[t]he NCPD denied the FOIL request based, inter alia, on a determination that the requested records fell within the statutory exemption under Civil Rights Law §50-a. In a determination dated March 12, 2013, the FOIL appeals officer of the NCPD denied the petitioner’s administrative appeal. The petitioner commenced this proceeding pursuant to CPLR article 78 to review the determination dated March 12, 2013.”

Were these records exempt from FOIL? “In a proceeding pursuant to CPLR article 78 to compel the production of material pursuant to FOIL, the agency denying access has the burden of demonstrating that the material requested falls within a statutory exemption, which exemptions are narrowly construed” Pp. 1 (citing Public Officers Law §89[5][e], [f]; Matter of West Harlem Bus. Group v. Empire State Dev. Corp., 13 NY3d 882, 885; Matter of Data Tree, LLC v. Romaine, 9 NY3d 454, 462)). FOIL “declares all agency records open to the public unless they fall within one of eight categories of exemptions.” Westchester Rockland Newspapers, Inc. v. Kimball, 50 N.Y.2d 575 at 580, 430 N.Y.S.2d 574 at 577, citing Public Officers Law § 87(2). Given the statute’s broad objectives, the Court of Appeals has consistently held that “ ‘FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government.’ ” Russo v. Nassau County Community College, 81 N.Y.2d 690 at 697, 603 N.Y.S.2d 294 at 297, quoting Capital Newspapers v. Whalen, 69 N.Y.2d 246 at 252, 513 N.Y.S.2d 367 at 371, “By their very nature such objectives cannot hope to be attained unless [access to government records] becomes the rule rather than the exception.” Westchester Rockland Newspapers, Inc. v. Kimball, 50 N.Y.2d 575 at 579, 430 N.Y.S.2d 574 at 576.

The government must articulate a basis for the denial. Indeed, this showing requires the entity resisting disclosure to “articulate a particularized and specific justification for denying access'” (Matter of Dilworth v. Westchester County Dept. of Correction, 93 AD3d 722, 724, quoting Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 NY2d 562, 566). “Conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed” (Matter of Dilworth v. Westchester County Dept. of Correction, 93 AD3d at 724). “If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material” (Matter of Gould v. New York City Police Dept., 89 NY2d 267, 275).

Although the wrongful death action of Ms. Bird is resolved, allegations of police misconduct impact the citizenry of Nassau County. Nassau The matter is remitted to the Supreme Court for an in camera inspection pursuant to Civil Rights Law Section 50-a.

The case is Newsday v. Nassau County Police, 829313, NYLJ 1202749869808, at 1 (App. Div., 2nd, Decided February 10, 2016).

LONG ISLAND CIVIL RIGHTS ATTORNEY

If you have been a victim of police misconduct or misconduct perpetrated by any municipal agency, please call the Law Firm of Vaughn, Weber & Prakope, PLLC at (516) 858-2620 to speak to a criminal attorney today!

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. This website is Attorney Advertising. It does not form an attorney-client relationship. We are a debt relief agency and a law firm that helps people file for bankruptcy relief under the U.S. Bankruptcy Code – Title 11. Prior results do not guarantee a similar outcome. Proudly assisting residents of Long Island, Nassau county, Suffolk county, New York City, Queens, Brooklyn, Bronx, Staten Island, Manhattan