ISSUE FOUND UNPRESERVED; SPLIT COURT REJECTS HABEAS BID

NYLJ 5/17/07

1. ISSUE FOUND UNPRESERVED; SPLIT COURT REJECTS HABEAS BID

There's so many things to do when you get a client that they should walk in the door with checklists attached. And Criminal over Civil? With charge, you get eggroll...but you don't get a second chance at a defense of false ID or improper arrest.

Cast an eye on that ROA to see how it got here and page one stops your clock at "Citizen’s Arrest". No question, there should be real chain-of-custody issue, illegal detainment, or even kidnapping, if it goes wrong--leaving the door open for lawsuits as well.

We can assume that you didn't do it, why not? However, arguendo, when you rob her place and can’t even carry all the goods away with you--first and foremost: don't be greedy. If you get nabbed coming back to pick up the DVD burner which you’d stashed in the trash, then you have only yourself to blame…unless you can bring in the vigilantes. As it was the neighbors who put the arm on you, that immediately gives you a wedge issue. But it has an expiration date.

The catch is, you have to bring it up before the Appeals process and the sooner the better. Like even before you got into jurisdictional disputes. Honestly, how many have you seen tossed because of improper service? Basically, it should be your first motion, gratis, a given—and if it isn’t, you should wonder who’s representing you. The best defense starts, as any fan of “Law & Order” will tell you, right in the identification room. Sign up at the line-up or miss the boat entirely. You may not be procedurally barred but merits?—that’s another thing. In New York, a party is considered to have preserved an issue for appeal either through objection at trial (under CPL section 470.05(2)) or where the court makes and express ruling on the specific question. If all you do is object to the second ID, the aforesaid police one, whatever the civilians did is long past a valid defense.

At first blush, it looks like counsel screwed up royally…until you look at the minority opinion. “The inconvenient fact is that the trial court prevented opposing counsel from explaining the full scope of his suppression motion after the close of evidence—arguably the most important time… And did raise the issue of suggestive civilian conduct through testimony at his suppression hearing.” The 'inconvenient fact' means, the judge may have screwed up...but not enough.

Somewhere down the line, this could end up in a test case before the Nine...but not the present Nine. The right to petition for a writ of habeas corpus is always an option, just not much of one, right now.