2nd honker
Jul. 15, 2015
News Picks from NYSDA Staff

News Picks


No Probable Cause for DisCon Arrest of Defendant Who Cursed at the Cops. The Court of Appeals recently held in a memorandum opinion that police did not have probable cause to arrest, for disorderly conduct, a man who shouted obscenities at them in a subway station. The Court found in People v Gonzalez (2015 NY Slip Op 05515 [6/25/2015]), that the defendant's motion to suppress an alleged "gravity knife" found on him at arrest should have been granted. The Daily Record account of the case indicated that the knife was a work tool purchased at Home Depot.


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Low Copy Number DNA Analysis and NYC OCME's Forensic Statistical Tool Results Not Admissible. Brooklyn Supreme Court Justice Mark Dwyer has released a detailed written decision explaining his reasons for concluding that DNA evidence based on low copy number (LCN) or high sensitivity analysis and results from the New York City Office of the Chief Medical Examiner's Forensic Statistical Tool (FST) are not generally accepted in the relevant scientific community and thus, not admissible. People v Collins, 2015 NY Slip Op 25227 (Supreme Ct, Kings Co 7/2/2015). Information about the court's oral ruling and its affirmance after reargument appeared in the Jan. 30, 2015 issue of News Picks. The written decision in Collins includes a critique of the decision in People v Belle (47 Misc 3d 1218[A] [Supreme Ct, Bronx Co 4/29/2015]), in which the court denied the defendant's motion to preclude FST evidence or for a Frye hearing.


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The Quest to Strengthen Forensic Sciences Continues to Moves Forward. In 2009, the National Academy of Sciences (NAS) released a report entitled "Strengthening Forensic Science in the United States: A Path Forward," which found that forensic science disciplines suffer from an inadequate research base. But, as noted by The American Association for the Advancement of Science (AAAS), the report "does not ... specify what in the literature supports current forensic practice and what does not, nor does it provide a research agenda for moving forward."


Through funding from the Laura and John Arnold Foundation (LJAF), AAAS will attempt to fill this void by conducting a quality and gap analysis of ten forensic disciplines: Bloodstain Pattern Analysis; Digital Evidence; Fire Investigations; Firearms and Toolmarks/Ballistics; Footwear and Tire Tracks; Forensic Odontology- Bitemark Analysis; Latent Fingerprints; Trace Evidence- Fibers; Trace Evidence- Hair; and Trace Evidence- Paint & Other Coatings. AAAS plans to review the current scientific studies regarding the procedures and testimony of forensic experts and conduct an analysis of the scientific bases for each discipline. According to an article in Forensic Magazine, the analysis is expected to take 18 to 24 months, but results will be released on a rolling basis.


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New Commission on Statewide Attorney Discipline to Hold Public Hearings. Earlier this year, Chief Judge Jonathan Lippman established a Commission on Statewide Attorney Discipline that is conducting "a comprehensive review of the state's attorney disciplinary system to determine what is working well and what can work better, and offer recommendations to enhance the efficiency and effectiveness of New York's attorney discipline process." The Commission is studying, among other issues, whether the current system leads to regional disparities in discipline, whether to switch to a statewide system, and ways to resolve matters more quickly to provide closure to both clients and attorneys. The Commission is chaired by Chief Administrative Judge A. Gail Prudenti; a list of the Commission members is available here.


The Commission is conducting three public hearings this summer: July 28 in Albany; August 4 in Buffalo; and August 11 in Manhattan. More information, including how to request an invitation to present oral testimony and the process for submitting written testimony, is available here.


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Documentary Chronicling the Effort of Parents to Reunite with Their Children, Tough Love, Airs on PBS. Filmmaker Stephanie Wang-Breal reveals the difficulties that parents face after a child has been removed from the home. This film follows a Seattle father, Patrick, and a NYC mother, Hannah, through the sometimes-overwhelming requirements of the child protective system. Tough Love provides a candid perspective for anyone interested in child welfare procedure and practices. The documentary, which is just under 90 minutes in length, can be viewed for free on the PBS website through Aug. 6, 2015.


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Kings Family Court Determines Parents Did Not Neglect Their Child Despite Injury and Incredible Testimony. Despite determining that the parents prevaricated about the details surrounding the injury caused when their one-year-old child fell on a playground and they waited several days before seeking medical assessment of the injury, the family court dismissed the neglect petition against them with prejudice and ordered the Administration for Children's Services (ACS) to return the child home within two days of the dismissal. Matter of Legend G., 2015 NY Slip Op 50984(U) (Family Ct, Kings Co 6/29/2015). The emergency room physician testified that the "final diagnosis was minor trauma to the face" and, in his expert medical opinion, it is hard to say whether a parent should have sought medical care given the appearance of the injury. The court concluded there was no record evidence that "the failure to obtain timely medical treatment placed the child at imminent danger of impairment within the meaning of the statute." See Family Court Act 1012(f)(i).  The Family Court noted that the child's mother "later admitted ... that she had lied due to her fear of ACS." 


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Third Department Tosses Pornography Case for Pre-indictment Delays. In January 2009, local police seized the defendant's computer after a computer repair technician reported that the computer contained what he thought was child pornography. The police questioned the defendant the next day and about seven months later they got a search warrant to analyze the computer. In January 2011, the police brought the matter to federal prosecutors who then engaged in pre-indictment plea negotiations, which were ultimately unsuccessful, and at some point, the federal prosecutors declined to prosecute. The police brought the case to the local district attorney's office in November 2013, and the defendant was indicted the following month on multiple counts of possession of a sexual performance of a child. After the trial court declined to hold a Singer hearing (People v Singer, 44 NY2d 241 [1978]), and denied the defendant's motion to dismiss based on the pre-indictment delay, the defendant pleaded guilty and reserved his right to appeal the delay issue.


The Third Department reversed the conviction and dismissed the indictment. After reviewing the constitutional speedy trial factors and noting that the prosecution sought to have the matter decided on the record without a Singer hearing, the Third Department held: "Under these circumstances, we find that the length of the delay is such that dismissal is the appropriate remedy, despite the absence of any actual prejudice to defendant .... [T]hat defendant was aware of the pending charges and engaged in preindictment plea negotiations is immaterial, as this does not excuse the People's responsibility for assuring prompt prosecution ...." People v Montague, 2015 NY Slip Op 05721 (3rd Dept 7/2/2015). Presiding Justice Karen K. Peters dissented, stating that while the delay was protracted, the record is insufficient to determine whether the delay was justified and the matter should be remitted for a Singer hearing.


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