PROSECUTORS MAKE WIDENED USE OF TERROR THREAT LAW

NYLJ 6-04-07

2. PROSECUTORS MAKE WIDENED USE OF TERROR THREAT LAW

2. The wreckage of the Twin Towers was still burning when the State Legislature began tacking the word “anti-terrorism” onto their latest anti-crime bills. And those provisions governing speech, conduct, and other areas of behavioral suspicion have gotten a bit of use by prosecutors—just not against anyone really threatening to bring down the government. Just ask the head of the Public Defenders.

“Those charges make these cases that are essentially meaningless into something far more important. We’re seeing a pattern of serious allegations resulting in de minimus outcomes.”

Take the guy who threatened two social services workers upstate. The Appellate for 3rd Dept unanimously upheld his conviction of making “terroristic threats” and the 15-year-to-life sentence he received. A persistent felon? Sure—but an Al Qeda operative? How many of them lose their temper over an SSI disqualification? And his son too?

The big nut here is Penal Law Section 490.20. it makes a Class D felony punishable by 2 to 7 years to make threats “with intent to intimidate or coerce a civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by murder, assassination or kidnapping.” Any more vague and you could add in “loitering with intent to create a public nuisance”. Might as well get Cool Hand Luke and turn cutting the heads off parking meters into a capital offense.

The 3rd says otherwise: “The statutory language sufficiently apprises persons of ordinary intelligence of the type of conduct that is forbidden and provided law enforcement officials with clear standards for enforcement.” Which is kind of like saying: The Rules were posted on the Barn last night. If you sheep didn’t read them, that’s your problem. If the paraphrase of the Pigs from George Orwell’s “Animal Farm” offends you (with the tacit association of the 1960s radical label for police), don’t let it. There is a complete disconnect from the people who pen these pieces of legislation and those who look at them as a means of enforcing the peace. ADAs and Grand Juries only see the presentation of the letter of the Law, and thereafter what it implies. For prosecutors, this is a new screwdriver to put into the toolkit; something which can be used to leverage a reluctant witness as much as twist the twistos into the planks. Yet there is nothing that says you can’t use it to pry open cases, wedge defendant’s away from standard please (where precedent can stop a lot of arguments before they get started) and thump a couple of small brads to anchor an offense. They don’t have to be threatening to overthrow our form of government.

As it is, this is being applied in every aspect where either intimidation or scare tactics are in use—from street-level gang violence to leaving messages on a phone with promises of a “Virginia Tech”-style massacre. It would seem, then, that once this sort of label gets placed upon previously unclassifiable, tragic behaviors, it take on a life of its own. As well as a new identity.

The native American who had done two pervious bids—’82-’88 Grand Larceny, and '91-’95 for sexual abuse—is by no means an innocent; canned for even corking off to the cops (and SS Admins). But even with his admission of a terminal illness, which gave him “nothing to lose”, and membership in the Akwesasne Warrior Society, giving him easy access to “a gun…at any time,” his conviction on this seems disproportionate, to say the least. For the exact same incident, he was convicted, on the Onodaga County level, for 2nd-degree Aggravated Harrassment: a six-month sentence. Under 490.20, 15-to-life appears almost absurd. And to make matters worse, his son mouthed similar threats and ended up getting charged and convicted, with his father’s prosecutor as a witness, on the same section number.

In the present state of government, not only can’t you not fight city hall, but it is almost one step from treason to do so. When threat and dissent become known under the same heading, you’d better be damned sure of what side of the line you stand, at all times.

ABUSE PROCEEDING CONTINUES DESPITE SEVEN-YEAR DELAY

NYLJ 6-03-07

4. ABUSE PROCEEDING CONTINUES DESPITE SEVEN-YEAR DELAY

4. In the case of sexual abuse hearing for children, even those grown older in the seven years after the fact of the incident, the issue will be both why it took so long and does this violate the defendant’s right to a speedy trial?

When CC was 9, visiting his stepbrother’s family over a holiday, CR was 5. The obvious question to ask is: what were they both doing in the same bathtub at that age? Which is completely irrelevant. It seems strange to say, but this is the nature of the job. The allegation of sexual abuse has to take a back seat to the frame around that event. Before you can get to the facts of the situation, you have to find out if Time has rendered the situation moot or more. It is all well and good to say, this is why the Courts are so clogged up and bogged down: every case is multiplied by its circumstances. At the end, this is how it should be: the courts are FIRST--the protection of the innocent. In this case there were two minors, which further complicates the issue. But then there is SECOND--the prosecution of the guilty. Here, you have to, as well, find out if that is part of the Time factor as well. And, further, does the victim change with Time?

The delay was both the lack of the victim’s report of the incident—only discovered by his mother six years later, finding an open journal entry in his hand. As well, upon that discovery, wanting to not assume the perpetrator’s actions were unprovoked by other factors—such as abuse at his mother’s home—and also wanting to bring this to counseling and therapy, the mother’s course of actions were careful and prudent. The prosecution of a law suit for the finding of juvenile delinquency is, as it should be, the last resort.

And yes, we can say that justice delayed IS justice denied. Then look again and ask: can an abstract concept be subject to Time? Only if we decide it is.

SEX OFFENDER’S CONFINEMENT RAISES ISSUE

NYLJ 5-08-07

1. SEX OFFENDER’S CONFINEMENT RAISES ISSUE

1. The civil confinement law gets its first test on a pass/fail system, and squeaks by. In essence, the question is: can you hold someone without the benefit of a jury trial? Yes, according to Mental Health Law Sec. 10.06(g). In the New York State's Attorney General’s position, to be “summary” in nature means the same as Summary Judgment. But the Justice hearing the immediate case doesn’t read it the same way. The term “summary” is the sticking point. “The Legislature has made very specific provisions to the procedures and rules governing such hearing, which mandate more than a ‘summary’ proceeding.”

How much more "more" is is a toss-up, however, when you are using the label “convicted sex offender”. You join the club of public opinion and controversy, you get a bigger bat to swing. In that event, it wouldn’t take more than the state psychiatrist’s testimony to get a 60-day period slated in for the Court to begin a jury trial to determine whether a secure Mental Health Facility is appropriate. What with so many "Fill-in-the-saddest-victim's-name" Laws out there you won't have trouble with schedules or venues, you can be sure of that. The Sex Offender Management and Treatment Act is the pro-active response and there’s very little dispute that it is a popular piece of legislation who’s time has come—it’s just that closed-door portion of the proceedings could still make some people, Civil Libertarians at least, very nervous.

Still, the jury trial is required to offer clear and convincing evidence, or at the minimum more than a shrink with a sheepskin and an Albany paycheck. And that's the safeguard. And this is another case wherein the parse is part and parcel.

CONTEMPT APPLICATION SURVIVES PHOTOCOPYING SNAFU

NYLJ 6/5/07

4. CONTEMPT APPLICATION SURVIVES PHOTOCOPYING SNAFU

4. The Reader’s Digest section called Humor in Uniform was always a fond memory of childhood. There was a tacit guarantee of some form of received wisdom, of lessons culled from experience and distilled of all impurities by those who’d chosen a life in service to a higher cause than civilians. And, as one might suspect, responding to entrenched armed service bureaucracy frequently required a response that was, to put it mildly (as RD would), “salty”. This was how they would explain SNAFU: "SITUATION NORMAL: ALL FOULED UP." And if you think that's "fouled up", FUBAR was—even though not a neologism, as many had made it, coined by Vietnam vets—never mentioned. It is just not rational for anyone who has ever spent any time in or around soldiers or sailors to believe they would reserve such reserved speech for their objections; it don't make no sense.

This is only to preface how elisions of this sort my be used to gloss over indelicacies. Like the fact that such an august publication as the Journal chooses to put this in its headline shows how its constant usage has turned an acronym of sardonic contempt into a totally sanitized noun of its own. And, as with the astonishment concluding the previous paragraph, when it comes to the view from the high chair in the court, there are daily reviews of the absurd and profane which, occasionally, might employ common sense, when not overruled by precedent or statute.

In the matter of this Family Court contempt application, the petitioner here acknowledged receipt of the mailing. His quibble was that he couldn't read the warning section. And the judge can, as well, acknowledge that what the petitioner received was a piss-poor job of photocopying. This is when the Reasonable Person argument can be the best one; that this is no defense for ignoring it. There is something so inherently satisfying to make such a response to blatant statements like “This application was missing five letters from its statutorily-required warning, making it confusing and misleading” with a roundly sound, "SNAFU. So what?"

We may here acknowledge that the judge is entitled to one, long, profound sigh--and perhaps an admittedly theatrical rub of the temples. And no, he doesn't get to offer the above epithet. That the ruling can be summed up as something similar to 'Ok. So it wasn’t nice and clean and was probably a 10th generation Xerox of all-caps boilerplate. But if that doesn’t tell you it worked on generations one thru 9, you are deluding no one but yourself.'

So there you have what the petitioner might plead as a classic example of FUBAR...if the court allowed for even a Reader's Digest version of the facts.

COURT FINDS CO-OP BOARD DISCRIMINATED AGAINST BUYER SUFFERING FROM CANCER

NYLJ 6/20/07

3.COURT FINDS CO-OP BOARD DISCRIMINATED AGAINST BUYER SUFFERING FROM CANCER

3. It is a question of, “To parse or not to parse… whether ‘tis nobler in the Law, to exact compliance with the letter, than to cast arms against a sea of regulatory statutes, and by the use of common sense, end them…” in an SJ ruling for the obvious.

Shakespeare rarely wins out over the possibility of overturning a verdict on appeal, which is now the co-op board lost to the retired cardiologist receiving treatments at Sloan-Kettering for colon cancer. The building’s prohibition on the installation of washer-dryer combinations may have been enacted after the fact of other apartments having them, but it was made clear at the doctor’s interview. That he felt it necessary to conceal his need to launder his incontinent status at the closing, then, should be considered as false pretenses, justifying the cancellation of his purchase.

But the modern world has much stricter standards for non-discrimination than it does for the Truth. The Lie of Omission then must cede to the cancellation of sale which commits the act of barring due to physical disability, and the all-mighty lobby of the “handicapped” (or “differently-abled”) who are responsible for everything from bowing busses and chair lifts to curb cuts to extra restrooms in all public spaces.

While these may be thought of as inconveniences and tax burdens upon those without such restriction of movement placed upon them by their appliances, they are the due and proper service owed to those for whom they were enacted. Federal Fair housing as well as local Human Rights laws bar any inquiry into whether a prospective buyer has any disability. Thus, “to parse or not to parse” becomes a moot question when a blatant case of discrimination smacks you in the prima facie. Just as the board needed no reason to reject, the doctor was under no obligation to reveal “obstacles” which would give reason for discrimination.

PANEL CANCELS DIVORCE; CRUELTY ALLEGATIONS ARE FOUND VAGUE

NYLJ 5/23/07

1. PANEL CANCELS DIVORCE; CRUELTY ALLEGATIONS ARE FOUND VAGUE


1. An Appellate Division’s reversal isn’t uncommon on divorces granted by juries under the “cruel and inhuman treatment” standard. A wife on the stand would be expected to bring up cold shoulders in the bedroom and withering sarcasm to constraints on personal allowances or cutting remarks and public embarrassment. The more titillating topics might entail extramarital affairs or simply call girls and whores, or orgies, beatings, wild living, financial extravagances, drugs, booze, gambling--the list is endless as are the possibilites.

Then again, recounting allegations of near-rapehave to rivet twelve peers by sheer drama alone. Not that lurid descriptions such as “ramming me up against the wall in the bathroom…” and the many occasions in which he’d “physically grabbed her,” and the times he’d “grab me, pull me down the hall, block me so I can’t leave the room, throw me on the bed and push me against the wall,” aren't adequate to express the horror that conjugal relations might descend. However, it can be as much a description of assault and unlawful restraint as it is a jolly good time—in some minds.

But when Domestic Relations Law section 170[1] is brought into the mix, the plaintiff offers only vague references to the subjects under text and no evidence of injury. That leaves it to uncorroborated testimony and no demonstrable affect on her mental well-being, meaning that the defendant’s conduct is not much of a fact-finding mission for a jury as possible material for Jerry Springer.

Oh, except for one material fact: they are still living in the same Upper West Side apartment.

Make of that what you will. The AppDiv did as well.

FULL STATE AWARD NOT AVAILABLE FOR CREDIT BENEFIT, CIRCUIT SAYS

NYLJ 5/23/07

4. FULL STATE AWARD NOT AVAILABLE FOR CREDIT BENEFIT, CIRCUIT SAYS

4. Another lesson of “Our Lexicon In Action” is, more specifically, two words in the Longshore and Harbor Worker’s Compensation Act, 33 U.S.C. Section 901 language which is, ultimately, the issue between a federal administrative law judge and the U.S. Court of Appeals for the 2nd Circuit. This would seem altogether academic and austere, twee even, were it not the end of a man in another of those sad series of events, choices, acceptances, of our daily burden as wage slaves without much recourse other than a shrug and a sigh of “That’s our lot in life”.

Mr. Shipfitter, shall we say, contracted asbestos lung over the years at Electric Boat, putting in a claim for the pittance figure of $30,000 for his debilitation over the years. Small price to pay for your health, it would seem, but the company must have thought any other amount would have been less deserved as they invoked Section 8(f) of the act which states that an employer only has to compensate an employee for two years where said employee has an “existing permanent partial disability,” and then sustains a work-related injury that results in total disability. And after these two years are up the only recourse remaining is a special fund administered by the Secretary of Labor. So the Boat people were perfect citizens under the letter of the Law. But that doesn’t mean words.

So, leaving aside the probability that it was only his job which killed him, when Mrs. Shipfitter went to apply for death benefits to Washington, it was still their right to persuade the power-that-do-such-things to credit the whole 30k for the disability award to this application. After all, they shouldn’t be taxed twice for the same payoff, don’t you agree? The judge sure did, stating, “in the absence of specific evidence of the apportionment of a state settlement, the employer is entitled to credit the amount of the state benefit paid.”

But wouldn’t you know it?—it was the minority reort who had the last word, and, ultimately, the best.

USCA 2nd found the reading of Section 3(e) as credit should be given for “amounts paid for the same injury, disability or death for which the benefits are claimed.” Judge Kittykat said, “the use of the present tense unambiguously indicates that only those injuries currently being claimed can be considered in applying the 3(e) credit.”

That he goes on to further cite the Black Letter law of Grammar makes it all the better. “When disability and death are listed in the disjunctive in the Longshoreman’s Act, they should be treated independently, even when both were cause by the same event.” And further, in accord with how other circuits have addressed the problem of double recovery, the key point is what is being claimed currently, and also that the burden of proof for the allocation lies of the party that seeks to apply the credit.

Kinda makes you glad that, beyond all the Westlaw references, headers, keynotes and such, somebody still uses good old Strunk & White when they really want justice…

SIDEBAR: JUDGES TO PARSE "INTOXICATION" AND "ESCAPE"

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 line...you'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?