Saturday, July 29, 2006

Appellate Division Overturns Conviction for disseminating Indecent Materials To A Minor: Law Requires Images, Words Alone Are Insufficient

A unanimous Second Department Appellate Division panel overturned the conviction of Manhattan attorney Jeffery Kozlow, who was convicted of sending lewd e-mails and instant messages via the internet to a reader he thought was a juvenile but was, of course, a police officer.

The panel held in People v. Kozlow (linked here) that the law (Penal Law Section 235.22) required the sending of "visual" sexual images of sexual conduct. Descriptions of sex are not enough to trigger the statute. The actual statute reads:

" § 235.22 Disseminating indecent material to minors in the first degree.
A person is guilty of disseminating indecent material to minors in the
first degree when:
1. knowing the character and content of the communication which, in
whole or in part, depicts actual or simulated nudity, sexual conduct or
sado-masochistic abuse, and which is harmful to minors, he intentionally
uses any computer communication system allowing the input, output,
examination or transfer, of computer data or computer programs from one
computer to another, to initiate or engage in such communication with a
person who is a minor; and
2. by means of such communication he importunes, invites or induces a
minor to engage in sexual intercourse, oral sexual conduct or anal
sexual conduct, or sexual contact with him, or to engage in a sexual
performance, obscene sexual performance, or sexual conduct for his
Disseminating indecent material to minors in the first degree is a
class D felony."

District attorney's around New York are "outraged", as are parents who do not properly control or supervise their children's internet use, along with everyone else who doesn't understand the importance of the First Amendment and the plain meaning of Congress shall inact no laws abridging the freedom of speech.

The rest of us (mostly defense and civil rights attorney's) are pleased to know that words alone are not enough.
I only wish the Appellate division had taken the time to write on the importance of the decision in light of the first amendment. Maybe explaining the ruling would have shut down a few District Attorney Public Relation hacks.

Saturday, July 08, 2006

What Not To Say When Taking A Plea OR The Need To Prep Your Client For His Plea Allocution

Jeffrey Blunt, 23 years old, was taking a package plea that was going to net him a total of 9 years in jail. While he was admitting to the crime, the court asked him the standard question of whether he had taken any narcotic that may negate his ability to understand the plea. He admitted he had...Marijuana...While he was incarcerated at the Monroe County Jail!! He had already plead guilty to one of the crimes. The judge gave Jeffrey 15 years on that charge and must have threatened to give him the whole 19 years he faced because the Manslaughter 2* case starts on Monday.

There is a lesson here aside from the fact that Jeffrey "found God" a little earlier than he should have... Plea allocutions are often overlooked by busy defense counsel. The results could be, as in this case, devastating. Plea deals get lost, days in court are wasted, and counsel looks like an ass. (So does the client of course but in a case like Blunt's we didn't expect much more.) Potentially the client could lose a plea bargain exposing him to a lot more time as in the case above. He could also blow his chance at getting a substantial assistance departure, or could, under the right circumstance, earn himself a perjury charge. He could talk his way into a confession on a new charge (in the Blunt case above, promoting prison contraband.)

Blowing a plea allocution is not something that is a rarity either. As a Legal Aid lawyer back in the 80's, (can it be that long ago???) I used to see it happen a few times a week. The reason? Not taking the time to review the questions that the client will be asked.

Under Boykin v. Alabama, 395 U.S. 238 (1969), the Supreme Court set a standard for all plea allocutions. The NY Court of Appeals weighed in with its decision in People v. Harris, 61 NY2d 9 (1983). The standard requires that the defendant at the time of allocution make a "knowing, voluntary and intelligent waiver of their constitutional rights" (to a jury trial; to remain silent; to not have to present a defense but to put the prosecution to their burden; to a lawyer even if they cannot afford one.)

The Harris court stated that "a uniform mandatory catechism of pleading defendants is not required, and a sound discretion exercised on an individual basis is preferable to a ritualistic uniform procedure. A record that is silent will not overcome the presumption against waiver by a defendant of constitutionally guaranteed protections, but the record must show an intentional relinquishment or abandonment of a known right or privilege. A detailed articulation and waiver of the rights to a jury trial, the privilege against compulsory self incrimination and the right to confront accusers is not constitutionally mandated, although the Trial Judge must make sure that the accused has full understanding of what the plea connotes and of its consequences."

The record must be clear enough so that there is some evidence on the record which affirmatively discloses that the defendant understood the alternative to pleading guilty. (See Hanson v. Phillips, 442 F.3d 789 (2d Cir., 2006.)

Understanding that there is no hard and fast "script" that a judge must use, most ask at least the questions that a defense attorney in a civil deposition might ask a witness to satisfy the "knowing, voluntary and intelligent waiver part of the allocution. Hence, after asking about whether a defendant has been advised of their rights to: silence, to an attorney, and to a trial of their peers, the court will inquire if they understand they are entitled to those rights; if anyone has forced them to relinquish those rights; if any promises have been made to obtain the waiver (a smart defense counsel will pipe up, if the court doesn't, that there was an agreement to plead guilty to "X" crime for "Y" sentence wherein the court will ask "other than the plea agreement entered into, was there any other promises made by anyone to convince the defendant to take the plea); is the defendant acting voluntarily (that no one coerced him to take the plea); and it will often ask if he is in good health or has taken any drug or alcohol that would impair his ability to understand the proceedings.

Counsel for the defendant should review these concepts and ask the actual questions of the defendant even on the day of the plea. Make sure the defendant is ready to give the answers you want him to give. IF he fails to give those answers then you must determine why. You cannot advise him to lie to the court. You can however ask for a continuance, (which is what the attorney for Blunt above should have done had she known he had used cannibis that morning) or explain to the defendant his rights, what his answer will do to the proceeding, and if he still wants to plead guilty.
If necessary an Alford, (North Carolina v. Alford, 400 U.S. 25 [91 S.Ct. 160, 27 L.Ed.2d 162 or Serrano(state court) (People v. Serrano, 15 N.Y.2d 305 [196])plea should be entered into for the purpose of getting the deal done.

Taking the time to prep the defendant for the plea won't always result in a successful outcome. A defendant entering a plea who, either doesn't think he is guilty, or doesn't like the plea bargain, may still destroy the allocution, but at least you will know that you did what you could to save him from himself.

Friday, July 07, 2006

Judge Treats Repeat DWI Offenders "Like Human Beings" and Gets Great Results: Now There's A Concept!

Memo to Nassau County District Attorney Kathleen Rice and Suffolk County District Attorney Tom Spota:

From our friends over at the CrimProf Blog, There is a judge who understands the concept of "Carrot and Stick" in Minnesota. The judge will take repeat offenders and spread their jail sentences out over years. He jails them for a month at a time in July and December. If they can prove to him that they have maintained employment, therapy, and sobriety, they miss that months jail until the next time when they have to do it all over again. Records show recidivism has been cut in half!!

Think about this. It encourages good behavior, it does away with the need for a probation violation hearing, it saves money on incarceration costs (because often the first time a repeat offender sees jail is on the felony conviction)and it reduces the need for costly trials which depend on a faulty machine working on voodoo science which often wind up with the prosecution losing.

Hmmm. Saves money, effectively reduces recidivism and isn't punitive. Come on guys. Do you have the guts to actually do something about the DWI problem? Or is it all a show for your MADD supporters?

Money quote Judge James Dehn said "It's about treating them (repeat drunk driving offenders) like human beings," Whoa, what a concept!