Saturday, October 28, 2006

Talk About Not Getting It? Village Justice Of S. Nyack Proves NYT Is Right

A couple of weeks ago the New York Times ran a series of articles on what was wrong with the Village Courts of NY (See here and here.) One of the Times' complaints were that Village Justices use their power to wreak revenge on their rivals and otherwise misuse the office for their own agenda's.

Now comes the Village Justice of South Nyack the Hon. Dennis Lynch inthis decision. The case entailed the use of marijuana by one Slade Morrison in public. If the guy were prosecuted in the county court or in a district court, the case would be dismissed by an ACOD (an adjournment in Contemplation of Dismissal which means that he has to behave himself for a year and the case is dismissed. It is reserved for people who have little or as in this case no record and for minor crimes such as open use Marijuana use. Its purpose is a good one. It requires the user to face his behavior and gives him a chance to avoid a criminal record if his act gets cleaned up. It also serves as a way to stop people with greater records from walking away from their behavior.

So what does judge Lynch do? He denies the ACOD even though both the prosecution and the defense agree on it and even though the law encourages it. Why? Is it because the guy involved is a bad guy? Is it because Mr. Morrison's attitude was so bad that there was a need to call attention to it so others might know he has an attitude problem? Was it because the court knew of a drug problem Morrison had that wasn't being addressed by the agreed disposition?

NO!! It was so the court could make a point about the "importance" of the village courts and to answer the NY Times. The Decision was not even requested. It was issued sua sponte (on its own.) So some guy has to face a lifetime criminal record that this self important lawyer/judge can make a point about village courts and his personal opinion that Marijuana is a gateway drug.

Now I am of the opinion that if the judge is unhappy with the law or the way that the legislature views the violation for marijuana, then RUN FOR LEGISLATURE. If he is unhappy with the way the prosecutor handles these cases (he regularly offers ACOD's to save the budget and promote the idea behind the legislatures rule for ACOD's)THEN RUN FOR DA. If the court is unhappy with the NY Times, GO WRITE FOR THE NY DAILY NEWS. But whatever you do, how about you not use your office to promote your personal agenda. Read the decision, you will see what I mean. Yeah the guy was arrested once before. He also was NOT CONVICTED. (The prosecution could not proceed in a timely manner.) So he has no record. The defendant is not a kid, and I do not think that marijuana being a gateway drug (which I agree it is) is an issue here. Nope, Judge Lynch you just proved the point of the TImes series. Too many Village Justices are abusive of their powers.

Now if the District attorney wants to send a message back to the judge, I guess he just refuses to answer ready for trial. As for me, I am thinking of sending a letter to the New York State Commission on Judicial Conduct...

Friday, October 27, 2006

Lazy Reporters Stupid Detectives Libel A Good Judge: That Lawyer Dude Defends Judicial independence

I like Kieran Crowley of the NY POST. I know him to be both a compassionate and hard working reporter. Which is what makes this article so disappointing. Keiran how could you let this show off Detective get away with slandering Judge Richard LaPera??

It seems that the the head of the Detectives Union, Tom Willdigg is angry because Judge LaPera, with the agreement of both the then District Attorney Denis Dillon and the defense attorney agreed that the sentence of 12 years for a guy who robbed people. Now it is easy to rip a judge for accepting a plea bargain because the public doesn't like plea bargains. Without them however, the criminal justice system would ground to a halt.

When a criminal agrees to plead guilty to a crime. He saves the state the cost of the trial. He saves the victim the emotional expense of reliving the crime. He takes responsibility for his crime. The value of a plea as opposed to a trial is so encouraged that the Federal government rewards a plea with a reduction in sentence of up to three points on the sentencing grid.

When judges and lawyers get involved in plea bargaining, they look not only to the crime but also to the background of the person being sentenced and the reason the person may have committed the crime. A drug addicted kid may get a bigger break than a sociopath. A younger person more of a break than a more "mature" person.

In the case Crowley writes about, the defendant received a 12 year plea as opposed to a 25 year max. If the court were to offer the max or even close to it, it is doubtful that the defendant would have agreed to it. After all what's he got to lose. The state may have saved over a half million dollars in paying for salaries for court personnel, district attorney, police, jury's, public defender, defense investigators, appeals, etc. etc. etc.

How dangerous will the defendant in the case be in 12 years? He will be over 50, He may even rehabilitate. Either way, the sentence given the goal of plea bargaining was not a soft one.

Moreover, judges cannot defend themselves. Rules of Judicial conduct prohibit them from speaking about their cases outside of the courtroom. They can't hold press conferences. That is why the Nassau County Criminal Court Bar President Vito Palmieri is holding one on the courthouse steps on Monday October 30th.

Now a few words about the Hon. Richard LaPera. I have been a lawyer for about as long as the judge has been a judge. He tries as many cases as any judge in the courthouse. I have had the privilege of trying cases and handling suppression hearings with the judge. He holds lawyers feet to the fire, both sides too. The Office of Court Administration records show that judge LaPera is among the hardest working judges in the courthouse.

I don't always win when I appear before Judge LaPera, I don't always lose either. I don't always agree with his rulings. I am however always treated with respect by the judge and though he can get testy, two minutes later all is forgotten. He listens to all sides. He is as concerned with the needs of the public as he is with the needs of the defendant. He treats everyone, even people he is not happy with (like criminals) with respect. His decision not to run for re-election (if indeed he doesn't run) is a loss to our courthouse.

My problem with the POSTS article is that someone from the defense side of things should have said something in the article. The defense attorney in the case had good reason for supporting the sentence. The Post article and the Detective Union's words should not have been reported as fact. Fact is, there were problems with this prosecution, and my sources say DA Rice and the Detectives are lucky that the court managed to get them a plea bargain and saved them the embarrassment of an acquittal.

The Nassau County Criminal Courts Bar Association will be meeting on the Courthouse steps on Monday October 30th 2006 at 12:30. They will be there to support both judge LaPera and the importance of Judicial Independence.

Wednesday, October 18, 2006

Why the Heidgen Verdict Won't Stick

Nassau County (New York) District Attorney Kathleen Rice gets a temporary victory and a bully pulpit for her crusade against driving while Intoxicated with the conviction of Martin Heidgen for murder by depraved indifference. I wonder (again) how she will explain the waste of taxpayers money when the case is overturned on appeal.

I know this is difficult to understand. Depraved indifference to human life is a tough matter and the NY State Court of Appeals has made it as clear as they can. Here is the answer, yes the person who drives purposely the wrong way down a one way street at full speed not intending to kill anyone but not caring if he does and realizing he might is guilty of Depraved indifference. The person who either does not perceive the danger to others because he is intoxicated or metal ill, or lost, is not guilty of depraved indifference murder.See this decision

As written on a bulletin board service I am privileged to subscribe to, if a person goes up on top of a high rise and drops a bowling ball on a crowd below, that's depraved indifference. If he is so drunk that he goes to the top of the high rise and throws the ball down thinking he is in a bowling alley, he's not guilty. (A That Lawyer Dude thanks to Sufolk County criminal defense attorney John Powers for the example.)

Heidgen would have plead guilty to a offer of Manslaughter 2 which would have put him in for 5-15 years. It would have been the right solution to a really bad case, and saved the county taxpayers hundreds of thousands and maybe a million dollars.
Today Rice won, tomorrow taxpayers will lose. Politics as justice, Nassau's new standard.

UPDATE UPDATE UPDATE: The jury foreman claims she and another juror were coerced into finding the murder verdict. Another juror who voted for conviction says that the descriptions of violence in the jury room were correct but not coercive (yeah right) and he also admits those jurors who were for a Murder 2 conviction refused to debate (deliberate)the issue! You read it here, this verdict is getting overturned on appeal.

Monday, October 09, 2006

Here's A Real Shocker: Navy Refuses To Promote Lawyer Who Beat Administration On Guantanamo Military Tribunals

Ever wonder why people call the term Military Intelligence an oxymoron?
The story here is that Navy Lt. Commander Charles Swift, brought on an appeal for a Guantanamo terror suspect: Salim Ahmed Hamdan, a Yemeni and alleged al-Qaida member who was Osama bin Laden's driver. He attacked the military tribunals and wound up winning.

And what does he get for his trouble and hard work successfully defending someone who everyone would love to hate???


Talk about not understanding publicity. They should give this guy the promo just to avoid posts like this one. Nevermind that colleagues said the promotion was a no brainer and that the guy is one of the best and the brightest in the JAG. Nevermind that all of the Arab world will now feel confirmation that they cannot get a fair shake in US Courts. The worst part of this is that guys like me who want to think the government might know what it's doing get really turned off by stuff like this. It seems petty and is ill timed. Stupid stupid stupid

Friday, October 06, 2006

Nassau District Attorney Rice: Making A Career Out Of Wasting Taxpayers Money: Arresting Tassone Is An Expensive Bush League Move

I have to think that Nassau District Attorney Kathleen Rice either doesn't care about the taxpayers who (barely) elected her, or she thinks we are stupid.  Her latest boondoggle is costing us a minimum of Ten Thousand dollars, for five days.

Frank Tassone is a non violent and evidentially very sick heart patient who also happens to have helped steal Eleven Million Dollars from the Roslyn (NY) School District (see this article.) The case has generated a lot of publicity here on Long Island, throughout New York State, and across the country. Though the investigation was completed by her predecessor, District Attorney Rice has been basking in the glow of the convictions her office has obtained even though she was unable to convince the judge in the case to impose the serious sentences she wanted. Getting the convictions and jail time without costing the already ripped of residents of Nassau more money, was laudable. Not happy however with coming in at the last moment, finishing the job, and getting all the good will that comes with the convictions her predecessor's investigation put in motion, Rice had to come in with one of the most bush-leauge moves I have seen in twenty two (22)years of practicing law. It again calls into question, Rice's professional maturity for her postion.

Tassone is in Lenox Hill Hosptial in NYC. He has congestive heart failure. He has surrendered his passport and returned a large share of the stolen money. As previously noted, he is not violent. He missed court twice while in the hospital. According to Newsday, the judwarranted a warrent for Tassone's arrest but also set another court date. Every real lawyer knows that the court is saying: "if he doesn't get in on the next day, I will be very angry." It does not mean go out to his hospital bed and arrest him.

NY Court of Claims Judge Alan Honorof, the judge in the case, is a very decent man. He would never unnecessarily cost taxpayers money. Unfortunately he underestimates the publicity seeking Ms. Rice. She went right out and had her police officers arrest Mr. Tassone at his hospital bed. Assuming Tassone is not released before his next court date of Tuesday, this little charade will cost we taxpayers a minimum of Ten Thousand ($10,000)Dollars in non overtime salary costs. If there is overtime involved, then it's going to cost nearly double. Those figures also do not inconveniencenconvienence to the Doctors, nurses and staff at the Hospital.

Rice complained "So am I supposed to wait until he does actually flee?" "Imagine the phone calls I'd be getting then: 'How could you let this happen? You should have known; he didn't show up twice before.'" Oh good now we are going to govern by trying to avoid bad publicity???

This lady has a bad excuse for every halfbaked scheme she comes up with. This county has more than its share of violent, healthy, dangerous, criminals that she cannot find in one day. But a sick fosuperintendentperintendant, he is a priority because he may garner her bad publicity if he gets out of a hospital bed with heart failure and escapes???? So now she is governing by the "Cover your ass" system of Justice?
It is rumored around the courthouse that Rice thinks she will be NY's next Jr. Senator from NY assuming the one we have now runs for a different office.

This is just one more example of Rice's nonchalance toward the costs of her immaturity in office on the taxpayers of Nassau County. Rice's budget proposal has been handed into the county legislature. It is a disaster. She has 4 more employees than she had in 2003 and her budget is 30% more expensive!!! That is more than 6 million Dollars!

I am unfortunately correct about Ms. Rice and her plans. She cares not a wit about the victims of Nassau County, unless of course their plight advances her publicity or career. When is Rice going to start to show some class in this job? I will analyze Rice's budget request and advise why the legislature should reduce it in my next post.

Sunday, October 01, 2006

Our Firm Newsletter Is Available. This Month's Topic: Fraud

Every month The Law Offices of Anthony J. Colleluori and Associates, LLC., publishes a newsletter which is compiled for us by the legal publisher, FINDLAW.  I have found these Newsletters to be really well done. In fact they not only provide information on a number 0f important criminal law topics but they also provide really good checklists to help readers evaluate their cases.

This month there is a really good checklist on how to avoid behaviors that will attract the IRS' ire.
For example:
Claiming an exemption for a dependent whom you never supported.
Destroying your books to conceal tax evasion.
Creating false checks or receipts to support deductions that don't exist.

I am often suprised that people are being advised by others to do exactly these types of things.  Some of the items on the list seem to be obvious. (Don't lie about your income) but I hear it regularly from people who ought to know better.  Read the Newsletter by clicking here.  Sign up for monthly updates by clicking here and following the directions.

I hope you enjoy the Newsletter. If you find you need to talk about something you read there, contact us by phone or e-mail by clicking here