Friday, February 5, 2010


NYLJ 5-22-07

[This is probably the beginning of an ongoing series called Sidebar. The idea is that there are these moments when, in a trial, or in discussion among justices, the court stops, everybody steps out of their roles and everything is thrown into a heightened relief.

At any rate, this is also is going to inaugurate a new label for blueback. Just for a bit of background, several years ago, the Modern Language Association of America did a study that went on for a while as they wanted to find out a bit how we talk, which also implies how we think. Let's not cite chapter and verse and just cut to the chase, for once. It is estimated that in post-industrial, First World States, there are roughly 10,000 words in the general lexicon--outside of specialized vocabulary as in professional jargon or hobbies or past-times (different classes)--available to anyone to use. Of that set, the average person uses, in the course of their entire life, something in the neighborhood of 1,000 words, in regular rotation. In their daily lives, in the course of one sidereal rotation: 100.

That is all said to say this: most people don't care. At all. Period. Language is either for making money, gossip or comedy. The rest is action. For the purposes of this blog, however, it is of paramount concern. And when you stumble across a day like this one, in the Journal, you need to give it your full attention.]

So the word for today is PARSING or TO PARSE! What most of us would think as a job for Webster’s, the New Collegiate or Funk & Wagnalls—and at the extreme, the O.E.D.—becomes something quite different when the Court of Appeals is asked to rule on definitions. It is Clinton’s famous excuse “What is the meaning of the word ‘is’?” that comes to mind when the oral argument calendar brings up the importance of statutory clarity.

Regard the situation of a loon who inhales “Dust-Off” spray from an aerosol can while operating a motor vehicle. While this might be excusable if he were trying to clear his dash board of lint, the fact that he was actively seeking the affect the hydrocarbon propellant would have as a depressive on his central nervous system, has to mean he was looking for a “down”. As any seasoned huffer will tell you, he had to get a nod, and while driving at full speed on the highway, resulting in his straying over the divider and smacking head-on into oncoming traffic. Vehicular homicide would be the coroner’s assessment, but “Depraved Indifference” in Felony, or “Negligence” in Liability? Depends on where you draw the bright line. For the former, in the 2nd Degree, you need proof that the defendant has violated Vehicle & Traffic Laws Section 1192(3) that “no person shall operate a vehicle while in an intoxicated condition.” And that is where the tragedy of instant death accelerates past comedy and leaps the guard rail to do another header into absurdity.

An acting Supreme Court Justice shouldn’t conclude that, within that particular statutory scheme, intoxicated should only be limited to the consumption of alcohol, should it? Well, surely the Appellate Division should not concur, right? I mean, they are all working with the same basic tools: a/k/a the English Language. Not if you take the anti-drunk driving statutes back to 1910 and add in the 1941 blood-alcohol content evidence inclusion—of course they should. And did.

So you might be led to think that it would be covered under another section of the VTL? Perhaps one on drugs? That would be 1142(4). And you would be wrong, again. It seems the writers of this section never anticipated anyone using that particular substance to get their rocks off. But they were wrong too.

However, the only miscarriage of justice would be that one charge didn’t make the cut. There are still criminally negligent homicide and second-degree manslaughter to content with—and these can’t be argued away over a question of semantics.

As for some antics...of another sort... Is it the Great Escape…or the Great Attempted Escape? It depends on how far away you get from an officer’s custody, and what appears to be your motive.

The motive is important as the distance. The mens rea here might be, 'I wasn't trying to escape, it was just exercise... I thought the guard didn't mind, he wasn't paying attention.' Or it might be, 'I forgot where I was!' Or 'If I was trying to get along, then why wasn't I farther along?' And until you can get that nailed, you are not going to be able to assign any penalty based upon intent.

So ya gotta go with what you know.

One might be a chronic repeater or a first-timer with opportunities, but it all starts with drastic measures. You're being walked from your secure ward down to the solarium and back and somewhere along the're not. If your first flight was 30 feet, before being grabbed, and your second only 12, and both are within the hospital facility, then you must ponder “physical contact” as much as “out of sight”. Which might also lend itself to the remainder of that saw, “out of mind”, if you were in deliberations over this one, and to wonder perforce: what was his escort thinking while his charge made his way away?

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