People v. Combest, 2005 N.Y. LEXIS 236 (N.Y. Ct. of Appeals Feb. 22, 2005) (Judge Kaye) - The defendant is this case, James Combest, appealed from his conviction for manslaughter on the grounds that the trial court had improperly denied his motion to force a television production company to turn over to him tapes it took while making a documentary about the Brooklyn North Homicide Squad for Court TV. The defendant argued that the tapes would show that the New York City Police had used trickery in eliciting his confession; and that they would confirm that his confession was not voluntary and that he had acted in self defense.

The television company opposed the motion on the grounds that the release of the tapes would violate its journalistic privilege; and it argued that Combest had not met the three-pronged test for entitlement of the tapes under New York's "Shield Law" ( Civil Rights Law § 79-h (c)), which affords journalists and newscasters a qualified privilege in nonconfidential news.

The Court of Appeals, by a 6-to-1 vote, held that Combest had met the strict legal standards required under the Shield Law to force the television production company to turn over the tapes; and it granted Combest a new trial and ordered that he be allowed to use the tapes. The Court reasoned that, in criminal cases, a "defendant's interest in a non-confidential material weighs heavily."

People v. Hardy, No. 11, N.Y.S. Ct. of Appeals, Feb. 17, 2005
People v. Douglas, No. 12, N.Y.S. Ct. of Appeals, Feb. 17, 2005

The New York Court of Appeals has finally addressed the impact of the Supreme Court's landmark Confrontation Clause decision in Crawford v. Washington, 124 S.Ct. 1354 (2004) on prevailing New York jurisprudence. in these two separate decisions, the Court backed away from its 1986 holding in People v. Thomas, 68 N.Y.2d 194, and said that judges can no longer admit testimonial hearsay statements, such as the plea allocution of a co-defendant who is not available for cross-examination. However, the Court also stressed that the issue is subject to harmless error analysis. Thus, while the Court overturned Hardy's conviction based on a Crawford error, it upheld Douglas' conviction (even though he cited a similar infirmity) because the evidence against him was overwhelming and the error was harmless.

People v. Pitts, No. 9, N.Y.S. Ct. of Appeals, Feb. 15, 2005
People v. Barnwell, No. 10, N.Y.S. Cy. of Appeals, Feb. 15, 2005

In this consolidated decision, the Court of Appeals held that there is no time bar for bringing a post-conviction DNA challenge and that the defendant has no burden to show that potential DNA evidence exists or that it exists in quantities sufficient to analyze. Writing to the Court, Judge Smith wrote: "We hold that there is no time limit for bringing a post-conviction motion requesting the performance of forensic DNA testing. A defendant may move for DNA testing pursuant to CPL 440.30 (1-a) at any time. We further hold that the defendant does not bear the burden of showing that the specified DNA evidence exists and is available in suitable quantities to make testing feasible. To the contrary, it is the People, as the gatekeeper of the evidence, who must show what evidence exists and whether the evidence is available for testing."

U.S. v. Johnson, No. 07-CR-0206 (N.D.N.Y. Jan. 5, 2005) - A decision by Judge McAvoy in which he ruled that a a sex offender who used the Internet to lure young victims in child pornography may be barred from using the Internet, even in the performance of his job. In so ruling, Judge McAvoy distinguished two prior Second Circuit decisions where similar restrictions were stricken, namely U.S. v. Peterson, 248 F.3d 79 (2nd Cir. 2001) and U.S. v. Sofsky, 287 F.3d 122 (2nd Cir. 2002).

Wray v. City of New York, 340 F.Supp.2d 291 (E.D.N.Y. Oct. 18, 2004) - A interesting decision by Judge Weinstein in which he analyzed and summarized the current state of the law relating to civil right claims for damages, under 42 U.S.C. § 1983, against the police for alleged constitutional violations. The plaintiff in this case was an arrestee whose conviction was set aside after a finding that the identification procedures used by the New York City Police Department were unduly suggestive; and he raised numerous claims including one of failure to train the police properly. Judge Weinstein refused grant summary judgment to the police on that claim "in view of the strong statement of the Court of Appeals for the Second Circuit with respect to inadequate police activity." (Id., at 307, citing Walker v. City of New York, 974 F.2d 293 (2nd Cir. 1992)).

U.S. v. Richard Green, No. 02-10054-WGY (D.Mass. June 18, 2004) - The widely-publicized decision by District Judge William Young (D.Mass.) in which he blasted the Federal sentencing system and called the Federal Sentencing Guidelines unconstitutional.

U.S. v. Hiruko, No. 03 CR 1124 (JG) (E.D.N.Y. June 9, 2004) - A ruling by District Judge John Gleeson (E.D.N.Y.) in which he granted the defendants' motions to suppress evidence of counterfeit money found in a car after finding that the Government had relied on false testimony. (See also, "Judge Again Cites Lies by U.S. Witnesses," by William Glauberson, The New York Times, June 16, 2004).

People v. Clayton Stultz, New York Court of Appeals, May 4, 2004 - By a unanimous decision, the Court applied to appellate cases the rule it had established in People v. Baldi, 54 N.Y.2d 137 (1981) (where it adopted the so-called Baldi standard for evaluating the effectiveness of trial counsel) - a somewhat more lenient standard than the Strickland test that is used in Federal courts. See "Standard is Set For Ineffective Appellate Counsel," by John Caher, New York Law Journal, May 5, 2004.

People v. Lewis, New York Court of Appeals, April 6, 2004 - a 5 to 2 decision which indicates that virtually any testimony by a lawyer against the client's interest in a criminal case is a denial of effective assistance of counsel. (See, New York Law Journal article, "Forced to Testify Against Client? Withdraw, Says N.Y. Court."

U.S. v. Martha Stewart, No. 03 CR 717 (MGC) (S.D.N.Y. Feb. 27, 2004) - Judge Cedarbaum's decision and order dismissing the Federal securities charges against Martha Stewart.

U.S. v. Martha Stewart, No. 03 CR. 717 (MGC) (S.D.N.Y. July 8, 2004) - Judge Cedarbaum's second decision and order denying motion for a new trial based on alleged perjury of a Government expert witness.

In Re Habeas Corpus Cases, No. 03-MISC-0066 (JBW) (E.D.N.Y. Dec. 11, 2003) - Final Report on 500 Federal Habeas Corpus Cases, including Judge Weinstein's 60 page annotated memorandum entitled "Legal Issues Raised in Section 2245 Petitions."

Vives v. City of New York, 305 F.Supp.2d 289 (S.D.N.Y. Nov. 24, 2003) - This case involved a 66 year old man who was arrested pursuant to the New York State Penal Law § 240.30(1), charging him with sending a mailing to Jane Hoffman (then candidate for Lt. Governor of NY) containing religious and political materials. Judge Scheindlin ruled that § 240.30(1) is unconstitutional to the extent that it allows for the arrest and prosecution based upon speech that "annoys and/or alarms". This decision is based upon First Amendment precedent, as well prior Federal and State case law which had held § 240.30 to be unconstitutional, albeit limited to the facts of their cases.

Brown v. Greiner, 253 F.Supp.2d 413 (E.D.N.Y. 2003) - where U.S. District Judge John Gleeson held that New York State's persistent felony offender statute (N.Y. Penal Law § 70.10) is unconstitutional under the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000).

St. Helen v. Senkowski, No. 02 Civ. 10248 (CLB) (S.D.N.Y. September 19, 2003) - Judge Briant's unpublished Memorandum and Order in which, for the second time, he declared New York's depraved indifference statute unconstitiotional.  In Jones v. Keane, No. 02 Civ. 1804 (S.D.N.Y. 2002) (Unpublished), Judge Briant concluded that New York's second-degree murder statute, N.Y. Penal Law § 125.25(2), under which petitioner-appellee Brian Jones was convicted, was unconstitutionally vague because it covered conduct indistinguishable from that covered by New York's significantly less serious reckless manslaughter statute, N.Y. Penal Law § 125.15.  That decision was reversed by the Second Circuit, in Jones v. Keane, 329 F.3d 290 (2nd Cir. 2003), on technical grounds.  These decisions have led to a great deal of comments from our Members, including the following:

First, on December 4, 2003, Lloyd Epstein, Esq. brought the St. Helen decision to our attention when he wrote:

"Anyone handling a case involving depraved indifference should be aware of this decision, where Judge Briant again declared the statute unconstitutional.   Judge Brieant's prior decision declaring the statute unconstitutional was overturned by the 2nd Circuit on a technical habeas ground, that the defendant failed to exhaust his state remedies. The 2nd Cir. did not overturn the prior decision on substantive grounds."

Then, on December 5, 2003, Martin B. Adelman, Esq. wrote:

"I understand why there was glee at USDJ Brieant's since-reversedd ecision on depraved indifference, but why isn't there more focus on People v. Hafeez, CANY 9/2003, which distinguished Sanchez and seemed to rein in the previously promiscuous application ofdepraved indifference as a catch-all alternative to intentional murder.
Isn't that case more significant ??"

Lloyd Epstein replied:

"It seems to me that there are two problems: 1) when the DA tries to use depraved indifference in a case where the acts were clearly intentional 2) when the DA tries to raise reckless manslaughter two (recklessly ignoring a substantial risk of death) to depraved indifference (recklessly ignoring a VERY substantial risk ...). Hafeez addresses the first problem, and only in the most limited way. Contrast, People v. Hall, 764 N.Y.S.2d 700 (1st Dept. 2003). Brieant's opinion addresses the second problem (as well as the first). Brieant notes that the NYCA draws a distinction between a substantial risk and a very substantial risk, and that this distinction word play at best, impossible for juries or judges to apply, and results in an arbitrary enforcement of the statute."

Then, on December 5, 2003, Todd Terry, Esq. commented:

"It looks to me that the Court of Appeals' pronouncement in People v. Hafeez lasted about a month. In Hafeez, the Court of Appeals seemed to hold that conduct which does not place anyone other than the victim at risk cannot qualify as depraved indifference murder. The Court distinguished Sanchez by saying that there were other people in the hallway where Sanchez shot his victim (a fact that none of the numerous opinion writers in Sanchez found to be of any significance at the time). As Judge Read pointed out in dissent in Hafeez, in Sanchez the majority expressly rejected the argument that conduct which puts only one person at risk cannot constitute depraved indifference.

"In late October, in People v. Mills, 2003 N.Y. LEXIS 3369, the Court held that there was sufficient evidence to support a charge of depraved indifference murder where the defendant threw a kid off a pier. No one else was placed at risk. In a footnote, the Court wrote:

"n3 Although depraved indifference murder often involves acts directed at a number of victims (see e.g. People v Russell, 91 N.Y.2d 280, 670 N.Y.S.2d 166, 693 N.E.2d 193 [1998]; People v Gomez, 65 N.Y.2d 9, 489 N.Y.S.2d 156, 478 N.E.2d 759 [1985]; People v Fenner, 61 N.Y.2d 971, 475 N.Y.S.2d 276, 463 N.E.2d 617 [1984]), we note that Penal Law § 125.25 (2) encompasses depraved indifference murder of a single victim (see e.g. People v Best, 85 N.Y.2d 826, 624 N.Y.S.2d 363, 648 N.E.2d 782 [1995]; People v Kibbe, 35 N.Y.2d 407, 362 N.Y.S.2d 848, 321 N.E.2d 773, supra; People v Poplis, 30 N.Y.2d 85, 330 N.Y.S.2d 365, 281 N.E.2d 167 [1972])."