Tag: suffolk criminal attorney

Police Misconduct

Police Misconduct is a highly contentious topic in this country, including New York.  The New York Law Journal Headline read that “A Manhattan judge ruled that two New York City police officers lawfully detained a non-English speaking public school student who left school and went home without permission after his teacher told him that he could not take part in a class field trip.”

 The infant-plaintiff was W.C., a fifth grade student at P.S. 137, who was not allowed to go on a school field trip but, instead, simply left the school without anyone letting his parents or guardians know. The child returned to his home and his (W.C.) grandmother notified his mother. Two New York City Police Department Officers arrived at the home (where the child went after being denied the ability to go on the field trip) and found W.C. in his bedroom, unresponsive to the police officers’ conversation. A dispute ensued. Police allege that W.C. became physically aggressive and, in response, the police handcuffed, yes handcuffed a young child, W.C. The child was subsequently taken back to school and an ambulance was called to examine W.C. for psychological issues.

Pursuant to New York Education Law §3205, school attendance is mandatory for children. Any child not found to be in school, i.e., truant, is considered to be in violation of such law, and Education Law §3213. (2) (a) permits police officers to “arrest without warrant any minor who is unlawfully absent from attendance upon instruction.” See Matter of Julio R., 129 Misc. 2d 171 (Sup Ct Richmond County 1985); Matter of Shannon B., 70 N.Y.2d 458 (1987). Here, it is clear that the police officers were complying with such instructions under the law to find and retrieve W.C., and bring him back to school. Although it would not be entirely dispositive of the claims, as police officers are “not required to negate every lawful excuse for [a child’s] absence from school before detaining him” (Matter of Kennedy T., 39 A.D.3d 40 [1st Dep’t 2007]), the Court notes that any sort of evidence that Ms. Choi gave W.C. permission to be at home, and that such permission was communicated to any one at school or one of the police officers, is notably absent from the record. Pp. 2-3 (external quotation marks omitted and internal citations preserved)

The Court holds that “because the officers were acting within the lawful scope of the Education Law, the noncriminal detention of W.C. was privileged. Therefore, plaintiffs’ claims for false arrest/imprisonment are dismissed.” Pp. 3 (citations omitted). Further, the Court dismisses the excessive force claim. Allegations differ yet “his alleged injuries to his knees consisted of scrapes and lacerations, which were relatively minor….W.C. testified at his §50-h hearing and deposition that he did not seek treatment for the alleged injuries, and did not sustain any others, physically or mentally. Ultimately, the Court does not find any evidence showing that the police officers exceeded the standard of objective reasonableness.” Pp. 3 (citation omitted). Having found the noncriminal detention as privileged, and “absent any evidence that the force used to effect the [detention] was excessive,” the Court also dismisses plaintiffs’ assault and battery claims. Akande v. City of New York, 275 A.D.2d 671, 672 (1st Dep’t 2000). So, under these or similar circumstances, the New York City Police can detain and handcuff a fifth grader? What about the psychological harm to the child – not only does he not get to go on the trip (for reasons otherwise unknown), he gets the cuffs slapped on him.

Although the case against the police is dismissed, a fifth grade student who managed to become estranged from school and then subsequently handcuffed, detained and hospitalized, the Court offers these words of comfort to the Plaintiff: “this unfortunate situation likely could have been avoided had the school and/or police officers shown a bit more sensitivity and attention to the cultural and language issues presented in this case. And, although the school and police officers should not, in any way, be commended for how they handled these translation and cultural sensitivity issues, the Court is simply unable to conclude that the defendants ultimately acted unlawfully.” Pp. 4. The Defendants’ Motion to dismiss is granted in its entirety – case dismissed!  Wai-Wai Choi v. NYC, 155821/2012, NYLJ 1202749328138, at *1 (Sup., NY, Decided February 2, 2016).

Police misconduct is often difficult to prove.  If police misconduct is proven and the defendant is cleared, a civil rights action may be an option to compensate the defendant for the damages caused by the police misconduct.

Civil Rights Attorney in Long Island

If you believe that police misconduct has deprived you of your rights, please 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!

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

Criminal Attorney in Mineola

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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