New York Criminal Attorney Blog

Appearance Tickets In New York: Detention Of A Person In New York For Purposes Of Issuing That Person An Appearance Ticket Is An Arrest Situation Which Would Allow The Officer To Search That Person As If That Person Was Formally Arrested

January 31, 2012 | Tilem & Associates

In New York, if a person is formally arrested, they can be searched incident to that arrest. However, can the officer also search a person if the person could have been arrested but the officer decides to issue that person an appearance ticket on scene instead? The answer is “sometimes.” Generally, the police can search a person they issue an appearance ticket to. However, the New York courts have frowned on a blanket right to search where traffic infractions are involved.

The detention of a person for the purpose of issuing that person an appearance ticket amounts to an arrest situation. People v. Hazelwood, 104 Misc.2d 1121, 1123 (N.Y. City Crim. Ct. 1980) see also People v. King, 102 A.D.2d 710 (1st Dept. 1984)(Where an “officer intends to issue an appearance ticket in lieu of a lawful arrest, he had the concomitant right to ‘pat down’ the defendant.”).

In Hazelwood, 104 Misc.2d 1121, the court held that the police could search a person they detained for the purpose of issuing that person an appearance ticket. Noting that the officer could have arrested the person and then searched the person incident to that arrest, the court observed: “to hold that a search is not permissible because an arrest did not occur in a case where the defendant was subject to arrest, but the officer gave the defendant a break, is an injustice to the officer.” Id. at 1124.

HOW CAN APPEARANCE TICKETS ISSUED IN NEW YORK BE SERVED [CPL 150.40(2)]

January 22, 2012 | Tilem & Associates

With Limited Exceptions, When the Defendant is a Natural Person,
Appearance Tickets Must be Served Personally [CPL 150.40(2)]

Generally, under New York law, other than an appearance ticket issued for a traffic infraction relating to parking, an appearance ticket must be personally served. Except, an appearance ticket issued for the violation of a local zoning ordinance or local zoning law, or of a local building or sanitation code may be issued in any manner authorized for service in a civil action under CPLR 308. CPL 150.40(2).

To summarize, appearance tickets issued to natural persons in New York must be personally served. Except, appearance tickets may be served in accordance with CPLR 308 (see below section) if they are for parking violations or violations of local zoning, building or sanitation violations.
Service Upon a Natural Person by Mail Insufficient. New York City Routinely Ignores The Requirement That Appearance Tickets Issued To Natural Persons Be Personally Served.

Personal service on a “defendant, whose liberty will be at stake in a criminal action, serves to assure his right to adequate notice and expeditious resolution of the charges.” People v. DiLorenzo, 149 Misc.2d 791, 794 (N.Y. City Crim. Ct. 1990). In DiLorenzo, the court noted that the certified mailing of an appearance ticket that should have been personally served was insufficient service.

In People v. Baxter, 148 Misc.2d 1009 (N.Y. City Crim. Ct. 1990) the court found service of appearance tickets by a New York City administrative agency by mail defective and dismissed charges for lack of jurisdiction. In doing so, the court observed “that the CPL requirements of personal service are not being followed by the Buildings Department and other administrative agencies.” Id. at 1010.

In People v. Neuberger, 149 Misc.2d 1 (N.Y. Crim. Ct. 1991) the court dismissed all charges against the defendants in the interests of justice explaining that “[a]s for the Corporation Counsel’s continued practice of flouting the service requirements of the Criminal Procedure Law, that abuse cannot be left unremedied.” People v. Neuberger, 149 Misc. 2d 1, 5 (N.Y. City Crim. Ct. 1991).

In Neuberger, several defendants were served appearance tickets by mail which ordered them to appear in criminal court. The Honorable Martin G. Karopkin explained that the Corporation Counsel had been warned numerous times over the preceding several months that such service by mail was improper:

On numerous occasions during the past several months this court, and others, have warned the Office of the Corporation Counsel, the Buildings Department and other city agencies that service by mail is improper and contrary to CPL 150.40, as well as CPL 600.10.

Id. at 1-2.

Despite the repeated warnings of both J. Karopkin and other judges, “the Corporation Counsel . . . continued to submit affidavits of mailing to the court accompanying its pleadings and to argue that the defendants’ appearances confer jurisdiction and render that issue moot.” Id. at 2-3. In other words, the New York City Corporation Counsel knowingly served appearance tickets on individuals by mail, in clear contravention of the law. What’s more troubling is that they continued to do so even after several judges warned the Corporation Counsel that such service was improper. Thus, the Corporation Counsel “acquired these defendants’ presence by means of improper service” and then argued that the defendants’ mere presence before the court conferred jurisdiction thus mooting the service issue. Id. at 5.

Service When Issued For Violation Of Local Zoning Laws,
Ordinances or a Building or Sanitation Code

An appearance ticket issued for the violation of a local zoning ordinance or law or a building or sanitation code may be served the same way a summons may be personally served upon a person in a civil action. [CPL 150.40(2)]. Personal service of summons upon a person in a civil action doesn’t necessarily require that the summons be literally handed (served) to the person. Pursuant to CPLR 308, personal service can be accomplished by:

(1) Actual Personal Service: Delivering the summons/appearance ticket upon the person within the State [CPLR 308(1)]; or
(2) Suitable age and Discretion Servcie: Delivering the summons/appearance ticket within the State to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served. When service is made by this method, it must be followed by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served. This follow-up mailing must be done within twenty days of the delivery of the summons/appearance ticket to the person of suitable age and discretion as described above [CPLR 308(2)]; or
(3) Service on Designated Agent: Delivering the summons/appearance ticket within the State to an agent designated in accordance with CPLR 318 [CPLR 308(3)]; or
(4) “Nail-and-Mail” Service: If service cannot be made in a manner described above despite due diligence (a diligent effort), service may be made by affixing the summons/appearance ticket to the door of either the actual place of business, dwelling place or usual place of abode within the State of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served. This follow-up mailing must be done within twenty days of the “affixing” of the summons/appearance ticket as described above [CPLR 308(4)]; or
(5) Court Ordered Service: If service of the summons/appearance ticket in a manner described above is impracticable, service may be made in a manner as the court, upon a motion without notice, directs [CPLR 308(5)]
In Contravention of New York State Law; New York City Code
Allows Service of Departmentally Issued Notices by Mail

While CPL 150.40(2) requires that appearance tickets issued for the violation of a local zoning ordinance or law or a building or sanitation code must be served the same way a summons may be personally served upon a person in a civil action, NYC Administrative Code 26-244 (c) provides for service of departmentally issued notices by mail.

GUILTY PLEA IN NEW YORK DRIVING WHILE INTOXICATE CASE VACATED BECAUSE DEFENDANT’S ATTORNEY DID NOT PROVIDE MEANINGFUL REPRESENTATION

January 17, 2012 | Tilem & Associates

If you are charged with Driving While Intoxicated [VTL 1192(2), (3)] in New York, the criminal defense attorney you choose can be one of the most important decisions of your life. Are you going to retain a “read-em-and-plead-em” hack, the lawyer who handled the closing when you purchased your home, the lawyer who drafted your Will or are you going to retain a lawyer well versed in the law, science and procedures associated with DWI cases?

Are you going to choose an attorney that has experience not just in DWI cases; but also in winning Driving While Intoxicated trials? Make no mistake about it, district attorneys and prosecutors know full well which attorneys are capable of actually taking a DWI case to trial. An attorney’s trial ability often plays a role in the plea bargaining offer. If your attorney has no trial experience, plea bargains all of his or her cases, always backs down at the last minute and accepts whatever offer the prosecution has made and has shown him or herself to be incompetent in the few hearings or trials he or she has done, the prosecutor has no real concern that the case will ever go to trial. If the prosecutor knows that in the end, your attorney will “plea you out” the prosecutor has no incentive to offer anything other than their standard policy offer.
Of course, accepting a plea bargain offer in certain cases is advisable. However, a detailed “risk/benefit” analysis must first be done. If the prosecution wants you to plead guilty to misdemeanor DWI with three years of probation and you’re a first time offender and the case did not involve any accident or injuries; their might not be any risk associated with going to trial because it’s very unlikely you would be sentenced to anything more than probation if you lost at trial.

A lawyer should not advise a client to accept a plea bargain unless that attorney has thoroughly investigated the case. That includes listening to, and investigating, not only a defendant’s claim of innocence, but the facts, circumstances and issues concerning probable cause to stop the vehicle, the legality of the roadblock, the administration of Standardized Field Sobriety Tests, the timeline of events, the officers involved, the administration of any breathalyzer testing, blood drawing, urine collecting and other issues that can arise in DWI cases.

In certain Driving While Intoxicated cases it might be advisable that the attorney visit the scene of the stop. The attorney might view the area where the defendant performed the Standardized Field Sobriety Tests. The attorney might even travel the route the defendant traveled prior to being pulled over. If the defendant claims he or she only had one or two drinks, credit card statements from the restaurant or other establishment where the defendant was prior to being stopped by the police might be helpful. Interviews with employees of the establishment where the defendant drank might reveal a witness to defendant’s drinking. Are their any witnesses to defendant’s driving?

Only after a searching and diligent review and investigation of the above factors as well as the relevant statutes, regulations and case law can an attorney render an opinion on a plea bargain offer. Most importantly however, the attorney who conducts the case review must be extremely knowledgeable and experienced in DWI defense. An attorney can spend countless hours reviewing and investigating all aspects of a Driving While Intoxicated case with zealous enthusiasm, however, if that attorney simply doesn’t know the laws, rules, regulations, case law, science, toxicology, breath testing, chemical testing, police procedures, etc., that lawyer’s opinion on a plea bargain offer will be no better than flipping a coin.

In a recent decision, the New York State Appellate Division unanimously affirmed a lower court ruling which granted a defendant’s motion to vacate his guilty plea in a Driving While Intoxicated case. The Court concluded that “[d]efense counsel failed to conduct any investigation, make any motions, or even view the video of defendant’s breathalyzer test before negotiating a plea bargain whereby defendant would plead guilty to the top count of the accusatory instrument.” People v Rivera, 2012 NY Slip Op 43, 1 (1st Dept. Jan. 5, 2012).
In support of its decision, the Court observed that there were defenses that should have been investigated including matters affecting the accuracy of the breathalyzer result. Furthermore, the Court explained that, because the defendant had no prior record and no accident occurred, it was extremely unlikely that he would have received a jail sentence had he lost at trial. Therefore, the “defendant received little, if any benefit, by pleading guilty to the top count without ever having received even a minimally accurate assessment of the strength of the People’s case.” Id.

The Rivera decision unfortunately does not indicate the sentence defendant received as part of the plea deal or what his Blood Alcohol Concentration was. In fairness to the attorney that represented defendant in Rivera, if his BAC was alleged to be, for example .16 or .17 and the plea offer didn’t require probation, than Rivera did receive some benefit. Specifically, he avoided probation, which can be difficult for some. For example, in Westchester, avoiding probation is a major consideration on DWI cases because DWI probation in Westchester County can be fairly onerous.

Nevertheless, the Rivera decision should put all defense attorneys on notice that it is unacceptable to advise a DWI client to plead guilty to the top charge without first conducting any real investigation into the strength of the prosecution’s case. The Rivera decision should also put everyone who is charged with DWI on notice that they should speak with several attorneys and get several opinions prior to retaining an attorney. And, the attorney they retain should be knowledgeable specifically with DWI cases.

Generally, if you are charged with Driving While Intoxicated and have no prior criminal history; there was no accident; no injuries; no property damage and there are no allegations that you were driving in an overly reckless or unreasonable manner, be very careful if your attorney recommends you plead guilty to the top charge with probation – be even more careful if your attorney makes such a recommendation very early in the case.

Appearance Tickets In New York: New York Has Carved Out Only Three Specific Exceptions Which Allow An Officer To Arrest A Person For A Traffic Infraction Not Committed In the Officer’s Presence

January 10, 2012 | Tilem & Associates

The New York State Legislature has acknowledged that CPL140.10(1)(b) prohibits an officer from making an arrest or issuing an appearance ticket for a traffic infraction not committed in his or her presence and has determined that there are only three specific traffic infractions where an officer should be allowed to arrest or issue an appearance ticket despite the fact that said infractions were not committed in the officer’s presence.

Specifically, the New York State Legislature has authorized an officer to arrest or issue an appearance ticket in lieu of arrest where the motorist leaves the scene of an incident involving property damage in violation of VTL 600(1) or leaves the scene of an incident involving injury to certain animals in violation of VTL 601.

Indeed, VTL 602 states in pertinent part that an officer may arrest “in case of violation of section six hundred and section six hundred one, which in fact have been committed, though not in his presence, when he has reasonable cause to believe that the violation was committed by such person.” Therefore, with regard to VTL 600(1) and VTL 601, both non-criminal traffic infractions, the Legislature has determined that officers may arrest or issue appearance tickets even where said infractions are not committed in the officer’s presence.

Additionally, the Legislature has authorized an officer to arrest where the motorist has committed the violation of Driving While Ability Impaired by alcohol in violation of VTL 1192(1) if the motorist was involved in an accident. The relevant statute, VTL 1194(1)(a) states in pertinent part:that a police officer may arrest a person, without a warrant in case of a violation of subdivision (1) of section 1192 of this article, “if such violation is coupled with an accident or collision in which such person is involved, which in fact has been committed, though not in the police officer’s presence, when the officer has reasonable cause to believe that the violation was committed by such person.”

Accordingly, only if a motorist is believed to have committed VTL 600(1); VTL 601 or VTL 1192(1) involving an accident can an officer arrest even though these non-criminal traffic infractions were not committed in the officer’s presence.The Legislature’s Exclusion of Some Traffic Infractions From The Precepts Of CPL 140.10(1)(b) Establishes An Irrefutable Inference That Those Not Excluded Were Intentionally Not Excluded
That an officer may not arrest for non-criminal traffic infractions not committed in his presence except where said infraction is for violating VTL 600(1); VTL 601; and VTL 1192(1) involving an accident is supported by the Latin maxim “inclusio unius est exclusio alterius”. What this Latin Maxim means is that where a law expressly describes a situation where it applies, an irrefutable inference arises that what was excluded or omitted was intentionally excluded or omitted. This ancient rule of statutory construction is codified in New York Statutes 240 titled “Expression of one thing as excluding others”.

Section 240 states in pertinent part: “where a law expressly describes a particular act, thing or person to which it shall apply an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.” In other words, where a statute specifically mentions that said statute applies to one category of persons, said statute irrefutably implies the exclusion of other persons not specifically mentioned was intended by the Legislature. See e.g. Combs v. Lipson, 44 Misc.2d 467 (1964)(Holding that the express grant of power to one person excludes by implication the grant of same powers to another.).
The New York Legislature has in fact judicially created several exceptions to the general rule found in CPL 140.10(1) which prohibits an officer from making an arrest or issuing an appearance ticket for non-criminal traffic infractions not committed in his presence. These express exceptions created by the legislature pertain to violations of VTL 600(1); VTL 601 and VTL 1192(1) involving an accident.

It must be noted however that the Legislature did not except any other non-criminal traffic violations from the precepts of CPL 140.10(1). Therefore, under New York Statute 240, there is an irrefutable inference that the Legislature purposely chose not to exclude any other non-criminal traffic infractions from the precepts of CPL 140.10(1)(a).

NEW YORK’S “MOVE OVER” LAW JUST EXPANDED

January 6, 2012 | Jasmine Hernandez

New York’s “move over” law was expanded starting at the beginning of this year (January 1, 2012) making it applicable to not only emergency vehicles that are stopped on the side of the road but now to “hazard vehicles”. The law, which originally went into effect last January originally only covered “emergency vehicles” those vehicles which are displaying either a red light or a combination of red and white lights such as a police, fire or emergency medical vehicle. Now, as of this year, the law also applies to “hazard vehicles” those vehicles which display one or more amber lights such as tow trucks, road service vehicles and highway crews.

New York Vehicle and Traffic Law Sec 1144-a requires that drivers on a limited-access highway or parkway to exercise “due care” when approaching an emergency or hazard vehicle and defines due care as requiring at a minimum that the driver move from the lane adjacent to the shoulder where the emergency or hazard vehicle is stopped. In other words if the emergency vehicle is stopped on the right shoulder and you are driving in the right lane, you must move over to the center lane as you pass the emergency or hazard vehicle. Since moving over is not always possible on busy New York highways, the law does set the condition that you should move over only if it complies with other New York Vehicle & Traffic Laws such as moving from lane unsafely under V&TL 1128 and disobeying a traffic control device under V&TL 1110. In other words, if it is not safe to do so you or it is otherwise illegal to move over you should not. Rather, in that case you should slow down.

Violating the new “move over” law is a traffic infraction under New York Law punishable by a fine of $150, 2 points on you license and up to 15 days in jail although it should be emphasized that jail in not a likely possibility and that the points have been improperly reported in the media. The points count toward suspension of your driver’s license and/or the driver responsibility assessment.

Motorists should be warned that when section 1144-a originally went into effect last year the police were very aggressively enforcing the new law. We fully anticipate that the police will be aggressively enforcing all of the new provisions of section 1144-a. In addition motorists need to exercise extreme caution when they attempt to move over. The purpose of the law is safety and changing lanes create another risk. Vehicle and Traffic Law section 1144-a makes clear that you must observe all other Vehicle and Traffic Laws including but not limited to using your turn signal, changing lanes safely, complying with lane markings, signs and speed restrictions.

OVER CRIMINALIZATION – Part III – There Are No Accidents

January 2, 2012 | Jasmine Hernandez

The Wall Street Journal Reported last week, that criminal charges were being prepared against British Petroleum and/or individuals who worked for British Petroleum and who were supposedly responsible for the oil spill that occurred in the Gulf of Mexico last year after the Deep Water Horizon drilling platform caught fire. This news highlights another troubling trend in the national trend toward over criminalization; “there are no accidents.”

Traditionally, criminal liability required two elements; a criminal act and a criminal mind referred to in Latin as “MENS REA”. The criminal mind required for criminal liability traditionally and under New York law was either that you acted intentionally, knowingly, recklessly or with criminal negligence. Specifically absent from the list was acting negligently or carelessly. Under New York law one who merely acts negligently or carelessly could be held liable for financial damages but could not be found guilty of a crime. As we over criminalize our society the traditional rule is giving way to attempts to hold someone criminally liable for every tragedy.

Recently in New York, three individuals were indicted by a grand jury, tried and acquitted of Manslaughter and related charges after a tragic fire in the Deutsche Bank building in lower Manhattan tragically killed two firefighters. The sadness and the outcry were great as the City attempted to place blame for the tragedy. Ultimately, a site safety officer, a contractor and an an abatement foreman, all of whom worked at the site were indicted for Manslaughter under the theory that they recklessly caused the death of the two firefighters. All were ultimately found not guilty in separate verdicts.

Whatever the tragedy, our society has moved to the point where it is not enough to merely hold someone civilly responsible and force them to pay for the damage they caused. Rather someone must be indicted, tried and if convicted sent to prison. It does not really matter whether the tragedy is a crane collapse, elevator accident, collapse of a company, oil spill or fire. The issue of who is to be held criminally responsible seems to take a back seat to the outrage and the need to find anyone who can be sent to prison. In the Deutsche Bank case, the jurors who were interviewed after specifically rejected such scapegoating.

As we have discussed in our prior blog, the element of having a criminal mind has been substantially relaxed or eliminated in many newer statutes, particularly in statutes that punish “Environmental Crimes.” As a result, convictions are easier to obtain in many of these cases brought as a result of tragic accidents.

OVER CRIMINALIZATION – Part II – COLLATERAL CONSEQUENCES OF ARRESTS

December 26, 2011 | Jasmine Hernandez

As of 2008, 2 million youths are arrested each year. While the original intent of the juvenile justice systems created throughout the country was to prevent stigmatization and collateral consequences that could naturally flow from an arrest. As experienced criminal defense lawyers know the system is less than perfect in that regard. Examples abound of the collateral consequences that can and sometimes do flow to juveniles who are arrested.

For example, children can be suspended or expelled from school under the federal “Gun Free Schools Act (GFSA) for certain weapons offenses committed on school grounds. The GFSA requires that schools that receive federal funds expel a student for one year for certain weapons offenses. A student can be expelled even if found not guilty of the weapons offense. Many states have expanded this to require expulsion for weapons offenses committed off school grounds (New Jersey) or in the case of Missouri any student charged with a felony can be suspended or expelled even if they were found not guilty of the offense.

A common belief is that individuals arrested as youths have their records destroyed when they reach the age of 18. This is not necessarily the case. In New York, for example, there is absolutely no provision for expungement of criminal records and the statutes that require that records be sealed, never completely seal the records leaving the records accessible for a host of reasons. This can lead to more limited employment options for youths who have been arrested, even if those records were eventually sealed.

In addition, the misapplication of sex offender registration databases can have long lasting effects on youths who are charged as juveniles with sex offenses. In Michigan, for example, 8% of the sex offender registration list is made up of juveniles including children as young as 9 years old. In a well publicized and outrageous case in New Jersey a 14 year old girl was arrested and faced child pornography charges after she posted naked pictures of herself on myspace. The charged carries a possible sentence of up to 17 years and mandatory registration as a sex offender.

Sex offender registration laws, which arguably could have the most severe collateral consequences for youths, are a prime example of just how far off mission the juvenile justice system has drifted. Clearly, the aforementioned 14 year old needs help. But she is clearly not the intended target of either child pornography laws or sex offender registration laws which were originally passed to register sexual predators.

The issue of the over criminalization of our society and the resulting collateral consequences that flow to a large percentage of the population has a tremendous cost to our youth and to our economy at large as a large percentage of people are either unemployable or underemployed as a result of the consequences of an arrest. The issue and costs are clearly too significant to ignore.

OVER CRIMINALIZATION – Part I, LEADS TO STAGGERING NUMBER OF YOUTH ARRESTS

December 26, 2011 | Jasmine Hernandez

The issue of the over criminalization of our society has been the focus of an increasing amount of media coverage and even led to recent hearings in congress. As discussed in the past in this blog (September 27, 2011 blog), the number of federal criminal statutes has increased to over 4500 and the watering down of some basic protections has led to convictions of people without criminal intent. Now, a recent study reveals that the number of youths being arrested has steadily increased to a staggering 30% of all youths by the time they turn 23 years old. This number while staggering is not surprising in light of the trend toward over criminalization and the increased reliance on police to address problems.

The number itself bears repeating. Thirty percent of youths are arrested by age 23, nearly one third of all youths. This number reflects all youths, not any particular group and is therefore likely higher among boys than girls and among minorities than non-minorities. The explanation however, is a lot more elusive. Certainly, crime nationally is on a protracted decline but it seems the propensity to arrest, for even minor offenses is clearly on the upswing. There is clearly less of a willingness on the part of the police to allow a school or the parents to handle a minor infraction.

As a criminal defense lawyer, involved with the criminal justice system for more than 20 years, I have noticed, a dramatic increase in the willingness of the police to intervene in what used to be matters often left to the school or the parents. Recent examples that I have noticed include a young high school student who “keyed” another student’s car in the high school parking lot is arrested and charged with the felony of Criminal Mischief for damaging property in excess of $250. Another example involves youths who attend parties where underage drinking occurs are arrested rather than being brought to their parents. Often times the parents who hosted the party are arrested themselves, even if they didn’t know about the drinking.

The potential for these arrests as youths to have long lasting effects even into adulthood is a legitimate fear as youths with arrests and convictions can lose valuable civil rights, the ability to obtain professional licenses and the ability to get jobs. The study which led to the report concluded that risk factors such as “being poor, struggling in school and having a difficult home” life were all factors that increased the likelihood of a youth being arrested.

As we discuss in a future blog, the consequences of an arrest, even if it doesn’t result in a conviction can be devastating to a young person and his or her future plans. The societal issues that have created this problem need to be dealt with. However, more immediately, if you or a loved one has been arrested for an offense you should immediately obtain experienced legal representation who is in a position to explain the process and the potential consequences whether or not a conviction results.

DRUG COURT CONTROVERSY

December 12, 2011 | Jasmine Hernandez

As discussed in our previous blog the Greenburgh Drug Court was so out of control that Court officials eventually had to transfer all of the cases out of the Court to protect the rights of those participating in its Drug Court. As it turns out, Drug Courts in general have become controversial and several studies that have been released this year raise several areas of concern for the people convicted of drug offenses who participate in these programs. Many of the concerns raised are related to the issues that derailed the Greenburgh Drug Court.

Generally, Drug Courts are a type of problem solving Court a new breed of specialized Court that attempts to solve a community problem such as drug abuse, domestic violence or guns. In the case of Drug Courts, participants, individuals arrested for drug related or drug motivated, non-violent crimes are asked to plead guilty in return for entering the Drug Court system where a “carrot and stick” approach will be used to get the participant to deal with their addiction. Participants who are successful are rewarded with such things as applause, certificates, praise and ultimately dismissal of their charges. Participants who are not successful are punished by being required to write essays, do community service, attend extra court sessions and in some cases lengthy jail sentences.

In a series of reports issued this year and discussed in a National Association of Criminal Defense Lawyers magazine article, the efficacy of the drug court model, as well as its expense and denigration of basic constitutional principles are called into question. In the Drug Court model used most often, drug court participants are often forced to plead guilty to crimes more severe than they might without Drug Court in the hopes that they will be able to get the charges dismissed after completing the Drug court program. In this model, as a cost of entering Drug Court, broad waivers are required, contracts and releases are signed and guilty pleas are entered giving the Court the “stick” to punish those who fail.

GREENBURGH DRUG COURT VIOLATES CONSTITUTIONAL RIGHTS Part-1

December 7, 2011 | Tilem & Associates

The Office of Court Administration, transferred all of the cases out of the Greenburgh Drug Court this week in an apparent response to complaints made by Tilem & Campbell partner, Peter H. Tilem. The problems began when a client of Tilem & Campbell, unhappy with her representation in the Town of Greenburgh Drug Court hired the firm to represent her. When Mr. Tilem, a 20 year veteran of the legal profession, and a member of the bar of New York and Connecticut as well as the United States Supreme Court and numerous federal courts initially appeared in Court he was told that he was not permitted to practice before the Greenburgh Drug court. From that moment the situation got worse.
Mr. Tilem observed that this Court was violating numerous constitutional rights of his client and potentially others and reported the conduct to the Deputy Chief Administrative Judge of New York State. After only a couple of hours after the report was made Judge Friedman one of the two judges in the Greenburgh Drug court agreed to comply with the suggestions of the supervising judge. However, when Mr, Tilem appeared next time before Judge Forster, Judge Forster steadfastly refused to comply with basic due process requirements as suggested by the supervising judge. Judge Forster continued to attempt to keep Mr. Tilem from representing his client and permitted the drug court “team” a group of non-judges to vote on matters that can only be decided by a judge such as the issues of bail or sentencing.
Judge Forster told Mr. Tilem and a reporter for the New York Law Journal who wrote a front page article about the matter that because the Court was funded through a federal grant and not through the Court system that they could have their own rules and that the supervising judges were not their supervisors. Judge Forster obviously learned differently when Judge Alan D. Scheinkman, the Administrative Judge for the Ninth Judicial District transferred all of the cases out of the Greenburgh Drug Court to the White Plains Drug Court and leaving Judges Forster and Friedman with no Drug Court cases.
Prior to the actions of Judge Scheinkman, Tilem & Campbell filed an Article 78 seeking to restrain Judge Forster and members of the Drug Court “Team” from continuing a list of illegal activities and from sentencing the firm’s client. On November 25, 2011, an acting Justice of the Westchester Supreme Court signed an order barring Judge Forster from sentencing the Tilem & Campbell client and from continuing other illegal practices that were going on in the Court.
Judge Forster had threatened to give the client one year in the Westchester County Jail for a shoplifting case, a Petit Larceny of less than $250 from a TJ MAXX in the Town of Greenburgh. It was only after Mr. Tilem pointed out that the Court could not conduct the sentencing because Mr. Tilem had not had the required 24 hours to review the pre-sentence report from the Department of Probation, that the sentencing was adjourned giving Tilem & Campbell enough time to file the Article 78 and get the restraining order.
Yesterday, a Judge in the Westchester County Court reversed Judge Forster on the issue of bail. Judge Forster had previously remanded the client, meaning that she was held without bail. Yesterday, after an extensive bail hearing County Court Judge John P. Colangelo agreed that the client should be released on bail.
“Other Judges ruled against Judge Forster every step of the way,” according to Mr. Tilem. “The Supreme Court obviously decided that there was enough evidence of impropriety to issue a stay, an extraordinary remedy. In addition, she was reversed on bail and had her calendar taken away, “according to Mr. Tilem.”