Tuesday, March 2, 2010


NYLJ 5-25-07


1. When one of the robes sitting in judgment over you used to be a Brother Officer you’d think the Blue Wall would be a consideration. And if he authors the sole dissent on your 2nd appellate reversal, you’d expect at least a soupcon of simpatico, no?

Consider the case of a former elite squad of the Street Crimes Unit chasing down a ‘suspicious black teen’ who ran from questions. You were driving the car with one hand—which also holds the gun with the finger on the trigger—and you’re trying to grab him with the other. Now you wouldn’t believe that criminal negligence would come up in your citation? That it could have been “extreme bravery in the line of duty”, true, though it ended up as “conduct unbecoming”, leading to the ex-Cop Justice to say this case “present a perfect example of why police misconduct is such a persistent, endemic problem in this county; it is condoned in high places.”

What he didn’t say was “twice”.

This time, the issue derived, as it did in the first, from whether the prosecution’s proof was sufficient to support the charge. Here, however, the Court of Appeals remanded the case to the First Department to conduct a factual inquiry into the “weight of the evidence”. This comes after the legal sufficiency review, giving the prosecution the best light, when the scales get brought out to see if there would be enough for a jury to convict beyond our old friend “reasonable doubt”. That the second review came to the same conclusion wasn’t a shock: it was almost the exact same panel. It was the prosecutor who was just as disappointed as the Ex-Cop judge, who, speaking of the Bronx, said, “I find it extremely disheartening that 3 Appellate judges cannot perceive the risk in this situation.” And further, “As the finding said the case was factually deficient, we are powerless to appeal.”

Meanwhile, the Ex-member of the Street Crimes Unit no longer had to perform those 150 hours of community service. After all, who ever heard of the pot having to scrub the kettle clean?

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