Police Misconduct
Police Misconduct is a highly contentious topic in this country, including New York. The New York Law Journal Headline read that “A Manhattan judge ruled that two New York City police officers lawfully detained a non-English speaking public school student who left school and went home without permission after his teacher told him that he could not take part in a class field trip.”
The infant-plaintiff was W.C., a fifth grade student at P.S. 137, who was not allowed to go on a school field trip but, instead, simply left the school without anyone letting his parents or guardians know. The child returned to his home and his (W.C.) grandmother notified his mother. Two New York City Police Department Officers arrived at the home (where the child went after being denied the ability to go on the field trip) and found W.C. in his bedroom, unresponsive to the police officers’ conversation. A dispute ensued. Police allege that W.C. became physically aggressive and, in response, the police handcuffed, yes handcuffed a young child, W.C. The child was subsequently taken back to school and an ambulance was called to examine W.C. for psychological issues.
Pursuant to New York Education Law §3205, school attendance is mandatory for children. Any child not found to be in school, i.e., truant, is considered to be in violation of such law, and Education Law §3213. (2) (a) permits police officers to “arrest without warrant any minor who is unlawfully absent from attendance upon instruction.” See Matter of Julio R., 129 Misc. 2d 171 (Sup Ct Richmond County 1985); Matter of Shannon B., 70 N.Y.2d 458 (1987). Here, it is clear that the police officers were complying with such instructions under the law to find and retrieve W.C., and bring him back to school. Although it would not be entirely dispositive of the claims, as police officers are “not required to negate every lawful excuse for [a child’s] absence from school before detaining him” (Matter of Kennedy T., 39 A.D.3d 40 [1st Dep’t 2007]), the Court notes that any sort of evidence that Ms. Choi gave W.C. permission to be at home, and that such permission was communicated to any one at school or one of the police officers, is notably absent from the record. Pp. 2-3 (external quotation marks omitted and internal citations preserved)
The Court holds that “because the officers were acting within the lawful scope of the Education Law, the noncriminal detention of W.C. was privileged. Therefore, plaintiffs’ claims for false arrest/imprisonment are dismissed.” Pp. 3 (citations omitted). Further, the Court dismisses the excessive force claim. Allegations differ yet “his alleged injuries to his knees consisted of scrapes and lacerations, which were relatively minor….W.C. testified at his §50-h hearing and deposition that he did not seek treatment for the alleged injuries, and did not sustain any others, physically or mentally. Ultimately, the Court does not find any evidence showing that the police officers exceeded the standard of objective reasonableness.” Pp. 3 (citation omitted). Having found the noncriminal detention as privileged, and “absent any evidence that the force used to effect the [detention] was excessive,” the Court also dismisses plaintiffs’ assault and battery claims. Akande v. City of New York, 275 A.D.2d 671, 672 (1st Dep’t 2000). So, under these or similar circumstances, the New York City Police can detain and handcuff a fifth grader? What about the psychological harm to the child – not only does he not get to go on the trip (for reasons otherwise unknown), he gets the cuffs slapped on him.
Although the case against the police is dismissed, a fifth grade student who managed to become estranged from school and then subsequently handcuffed, detained and hospitalized, the Court offers these words of comfort to the Plaintiff: “this unfortunate situation likely could have been avoided had the school and/or police officers shown a bit more sensitivity and attention to the cultural and language issues presented in this case. And, although the school and police officers should not, in any way, be commended for how they handled these translation and cultural sensitivity issues, the Court is simply unable to conclude that the defendants ultimately acted unlawfully.” Pp. 4. The Defendants’ Motion to dismiss is granted in its entirety – case dismissed! Wai-Wai Choi v. NYC, 155821/2012, NYLJ 1202749328138, at *1 (Sup., NY, Decided February 2, 2016).
Police misconduct is often difficult to prove. If police misconduct is proven and the defendant is cleared, a civil rights action may be an option to compensate the defendant for the damages caused by the police misconduct.
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If you believe that police misconduct has deprived you of your rights, please call the Law Firm of Vaughn, Weber & Prakope, PLLC at (516) 858-2620 to speak to a criminal attorney today!
Driving While Intoxicated
The Defendant was charged with, among other things, Driving While Intoxicated or DWI (VTL 1192). Defendant challenges the stop and subsequent arrest. Defendant further claims that the results of his blood alcohol test should be suppressed because his right to counsel was violated. The officer, a veteran in driving while intoxicated detection, pulled over the defendant inquired as to whether the defendant had anything to drink. At first, the defendant denied drinking anything. Sobriety tests were performed and a portable breath test came up with results of .07 and .08. The police officer asked the defendant again if he had anything to drink to which the defendant responded that he drank a sip of wine. The defendant was taken into custody and asked to speak to an attorney.
“A defendant has a qualified, not an absolute, right to counsel when deciding whether to submit to a breath test to determine blood alcohol content (see People v. Smith, 18 NY3d 544, 549 [2012]; People v. Gursey, 22 NY2d 224, 227 [1968]). However, once afforded, if that qualified right is to have any meaning, the communication between the defendant and his or her attorney must be private. Because the police prevented that privacy here, the court suppresses the results of the breath test, all statements defendant made while on the phone with his attorney, and that portion of the video showing defendant’s breath test and statements to counsel.” Pp. 1.
Because certain phones within the police station were allegedly not working, the Police Officer “allowed defendant to use his (Officer Winn’s) own private cell phone.” Pp. 4. Seems innocent enough, right? Wrong. “[B]ecause Officer Winn was concerned that defendant would break his cell phone (Officer Winn explained that, on a prior occasion, a defendant broke his phone), the Officer held the cell phone, while defendant used the speakerphone feature to speak to his wife and then his attorney.” Id. Why would the officer make that assumption? The law in regards to the right to counsel in New York Driving While Intoxicated cases is quite clear:
In People v. Gursey, 22 NY2d 224 (1968), the Court of Appeals recognized that a defendant has a qualified right to consult with an attorney about whether to submit to a breath test when under suspicion or arrest for driving while intoxicated. The Court acknowledged that alcohol dissipates rapidly in the body and therefore a breath test is time sensitive (id. at 229). However, so long as communication between lawyer and client does not “interfere unduly” with administration of the breath test, the police cannot “prevent access between the criminal accused and his lawyer” (id. at 227). The Court elaborated that a telephone call to an attorney would conclude in a matter of minutes and therefore would not interfere with the investigative procedure (id. at 228). Accordingly, “the denial of defendant’s requests for an opportunity to telephone his lawyer must be deemed to have violated his privilege of access to counsel” (id.).The Court of Appeals has reaffirmed the rule in Gursey twice in recent years (see People v. Smith, 18 NY3d 544, 549 [2012] [“as we explained in Gursey, the right to seek the advice of counsel — typically by telephone — could be accommodated in a matter of minutes and in most circumstances would not substantially interfere with the investigative procedure”]; People v. Washington, 23 NY3d 228, 234 [2014] [failure of police to notify defendant, after she had consented to chemical breath test, but before she had performed it, that an attorney had telephoned the station on her behalf, violated her qualified right to counsel]). A violation of defendant’s qualified right to counsel generally requires suppression of the breath test results (Smith, 18 NY3d at 550; Washington, 23 NY3d at 232)….The right to counsel includes “the right to consult counsel in private, without fear or danger that the People, in a criminal prosecution, will have access to what has been said” (People v. Cooper, 307 NY 253, 259, 120 NE2d 813 [1954]; see also People v. Gamble, 18 NY3d 386, 396 [2012][“[i]ntrusion upon a client-lawyer conference, whether in the privacy of an office or at the counsel table in court, contravenes our sense of traditional fair play and due process”] [citations omitted]; Coplon v. United States, 191 F2d 749, 759 [DC Cir.1951] [the Fifth and Sixth Amendments “guarantee to persons accused of crime the right privately to consult with counsel both before and during trial. This is a fundamental right which cannot be abridged, interfered with, or impinged upon in any manner”]).
Pp. 5-6 (external quotation marks omitted and internal citations preserved). Here…. “Suppression is necessary because the police violated defendant’s limited right to counsel when they would only permit defendant to talk to his lawyer on speaker phone in the presence of third persons.” Pp. 5. Not only did the police officer not have a phone which the defendant could use in private, the police officer held the phone while the defendant listened through the speaker phone feature… on video. “Once afforded, if the right to counsel is to have any meaning, the communication between lawyer and client must be private.” Pp. 6. As if it is not strange enough that there were no private phones available in the police station (what about all the other suspects who wanted to speak to an attorney), one might ask where the defendant’s cellular phone was. After all, everyone has a cellular phone these days: “This result is all the more appropriate given that the police had confiscated defendant’s phone, and, therefore, defendant could not use his own phone to call his attorney. If Officer Winn was so concerned that defendant would have broken the Officer’s phone, he could have given back defendant his own phone to use.” Pp. 7 (emphasis added).
“In conclusion, defendant’s qualified right to counsel was effectively destroyed when the officer: (1) placed the entire conversation on speakerphone; (2) stood so close that he could overhear the entire interchange and even answer some questions himself; and (3) recorded the entire conversation on video. Accordingly, the court suppresses: (1) the results of the breath test; (2) any statements defendant made to his counsel; and (3) that portion of the video showing defendant’s breath test and statements to counsel.” Pp. 7. The Court suppresses the breath test results and the portions of the video containing statements the defendant made to his attorney. The case is People v. Moffitt, 2014NY060669, NYLJ 1202745797904, at *1 (Crim., NY, Decided November 17, 2015)
DWI Attorney in Long Island
If you have taken a breath test or have questions about breath test, call the Law Firm of Vaughn, Weber & Prakope, PLLC at (516) 858-2620 to speak to a criminal attorney today!
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FREEDOM OF INFORMATION LAW (FOIL)
Newsday sought access to records via the New York Freedom of Information Law (FOIL). The records requested were in response to potential police misconduct and the death of Jo’Anna Bird. Following the murder of Ms. Bird, the Nassau County Police Department’s (NCPD) Internal Affairs Unit investigated the circumstances leading up to Bird’s murder. The results of that report became the subject of litigation and, eventually, the report and the contents of the report were declared confidential by a Federal Court. Those who were privy to the report were forced into silence under the threat of contempt. Here, “[t]he NCPD denied the FOIL request based, inter alia, on a determination that the requested records fell within the statutory exemption under Civil Rights Law §50-a. In a determination dated March 12, 2013, the FOIL appeals officer of the NCPD denied the petitioner’s administrative appeal. The petitioner commenced this proceeding pursuant to CPLR article 78 to review the determination dated March 12, 2013.”
Were these records exempt from FOIL? “In a proceeding pursuant to CPLR article 78 to compel the production of material pursuant to FOIL, the agency denying access has the burden of demonstrating that the material requested falls within a statutory exemption, which exemptions are narrowly construed” Pp. 1 (citing Public Officers Law §89[5][e], [f]; Matter of West Harlem Bus. Group v. Empire State Dev. Corp., 13 NY3d 882, 885; Matter of Data Tree, LLC v. Romaine, 9 NY3d 454, 462)). FOIL “declares all agency records open to the public unless they fall within one of eight categories of exemptions.” Westchester Rockland Newspapers, Inc. v. Kimball, 50 N.Y.2d 575 at 580, 430 N.Y.S.2d 574 at 577, citing Public Officers Law § 87(2). Given the statute’s broad objectives, the Court of Appeals has consistently held that “ ‘FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government.’ ” Russo v. Nassau County Community College, 81 N.Y.2d 690 at 697, 603 N.Y.S.2d 294 at 297, quoting Capital Newspapers v. Whalen, 69 N.Y.2d 246 at 252, 513 N.Y.S.2d 367 at 371, “By their very nature such objectives cannot hope to be attained unless [access to government records] becomes the rule rather than the exception.” Westchester Rockland Newspapers, Inc. v. Kimball, 50 N.Y.2d 575 at 579, 430 N.Y.S.2d 574 at 576.
The government must articulate a basis for the denial. Indeed, this showing requires the entity resisting disclosure to “articulate a particularized and specific justification for denying access'” (Matter of Dilworth v. Westchester County Dept. of Correction, 93 AD3d 722, 724, quoting Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 NY2d 562, 566). “Conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed” (Matter of Dilworth v. Westchester County Dept. of Correction, 93 AD3d at 724). “If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material” (Matter of Gould v. New York City Police Dept., 89 NY2d 267, 275).
Although the wrongful death action of Ms. Bird is resolved, allegations of police misconduct impact the citizenry of Nassau County. Nassau The matter is remitted to the Supreme Court for an in camera inspection pursuant to Civil Rights Law Section 50-a.
The case is Newsday v. Nassau County Police, 829313, NYLJ 1202749869808, at 1 (App. Div., 2nd, Decided February 10, 2016).
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Shorter Sentence with proven Brain Injury
Judges giving shorter sentence with proven brain injury
There was an interesting article in the New York Times by Benedict Carey. The article outlined a study that was conducted to figure out whether judges adjusted sentences that would normally be given to those defendants who were proven to have brain injuries. Brain injuries have become more clear in recent years due to advances in medical technology. Such clarity seems to be swaying judges from “dropping the hammer” so to speak, on these defendants.
Opposition to such a trend are not convinced that these injuries are clear and definite enough to alter legal decisions; especially those decisions made by judges. Such a study may be used as an important tool on how to proceed with all types of litigation and settlement negotiations. It is always interesting to see how real world issues work their way into court rooms. The link for the article is listed below. If you are trying to determine whether or not to bring a case that involves a party with a brain injury, call 516-858-2620 to speak with an attorney.
Criminal Attorney in Mineola
If you have questions regarding the impact that brain injuries can have on sentencing, call the Law Firm of Vaughn, Weber & Prakope, PLLC at 516-858-2620.
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