Tag: criminal attorney

Criminal Hearings to Determine if a Search is Reasonable

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.

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!

Shorter Sentence with proven Brain Injury

Judges giving shorter sentence with proven brain injury

There was an interesting article in the New York Times by Benedict Carey.  The article outlined a study that was conducted to figure out whether judges adjusted sentences that would normally be given to those defendants who were proven to have brain injuries.  Brain injuries have become more clear in recent years due to advances in medical technology.  Such clarity seems to be swaying judges from “dropping the hammer” so to speak, on these defendants.

Opposition to such a trend are not convinced that these injuries are clear and definite enough to alter legal decisions; especially those decisions made by judges.  Such a study may be used as an important tool on how to proceed with all types of litigation and settlement negotiations.  It is always interesting to see how real world issues work their way into court rooms.  The link for the article is listed below.  If you are trying to determine whether or not to bring a case that involves a party with a brain injury, call 516-858-2620 to speak with an attorney.

NY Times – August 16, 2012

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If you have questions regarding the impact that brain injuries can have on sentencing, call the Law Firm of Vaughn, Weber & Prakope, PLLC at 516-858-2620.

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