IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer
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IDAHO STATE POLICE NEWS RELEASE
District 3 Patrol 700 S. Stratford Dr., Meridian 83642
(208) 846-7550
Fax (208) 846-7520
For Immediate Release: 12/18/2013 7:59 p.m.
Please direct questions to the District Office
On Wednesday, December 18, 2013, at 3:49 p.m. the Idaho State Police investigated a one-vehicle fatal crash near the intersection of Pershall Road and South Bruneau Highway in Marsing.
Ethan J. Anderson, 16, of Marsing, was driving southbound on S. Bruneau Highway in a 1997 Chevy Suburban and drove off the right side of the road as he went around a corner. The vehicle rolled, ejecting Anderson and his two passengers, Devan J. Anderson, 14, and Michael E. Sterkenburg, 15, both of Marsing. Sterkenburg succumbed to his injuries on scene. Ethan and Devan Anderson were treated for injuries at the scene. None of the occupants were wearing seat belts.
This crash is under investigation by the Idaho State Police.
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Fatal Crash in Marsing
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Have A Safe And Merry Christmas
By Justin Coquat | Traffic Ticket SAThe Coquat Law Firm would like to take a minute to express our wish that everyone Have A Safe And Merry Christmas this year. We want you to Have A Safe And Merry Christmas! Please remember that the holiday season is one of the busiest times for traffic each year. This is also the time of year when road conditions are the worst. If you are driving please remember that getting where you are going safely is the best present that anyone could ask for. The first step to avoid problems with winter weather, is to be sure to check the Continue reading →The post Have A Safe And Merry Christmas appeared first on Traffic Ticket | Speeding Ticket | CDL Ticket | Traffic Ticket Dismissal |.
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Property Damage Crash Blocks U.S. 30 Near Montpelier
IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer
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Idaho State Police
District 5 5205 South 5th Ave.
Pocatello, Idaho 83204-2299
(208) 236-6466 FAX: (208) 236-6068
For Immediate Release: 12/19/13 at 2:30 p.m.
Please direct questions to the District Office
The Idaho State Police is currently working a property damage crash on U.S. Highway 30 at milepost 447, near Montpelier. Both lanes of U.S. 30 are blocked at this time and motorists are encouraged to avoid the area. More updates will be released when they become available.
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Update - Property Damage Crash Blocks U.S. 30 Near Montpelier
IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer
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Idaho State Police
District 5 5205 South 5th Ave.
Pocatello, Idaho 83204-2299
(208) 236-6466 FAX: (208) 236-6068
For Immediate Release: 12/19/13 at 2:30 p.m.
Please direct questions to the District Office
*****Update*****
All lanes of travel on U.S. 30 are no longer blocked.
*****END OF UPDATE*****
The Idaho State Police is currently working a property damage crash on U.S. Highway 30 at milepost 447, near Montpelier. Both lanes of U.S. 30 are blocked at this time and motorists are encouraged to avoid the area. More updates will be released when they become available.
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Court Denies Martoma’s Motion to Dismiss Insider Trading Charges Based on Foreign Securities
Earlier this week, Mathew Martoma lost his bid to dismiss certain insider trading charges pending against him in the Southern District of New York. Martoma sought to dismiss charges based on trades involving foreign securities, but Judge Paul Gardephe held that the trades were covered under the U.S. securities laws. Martoma is the former SAC Capital portfolio manager who allegedly helped SAC realize profits, and avoid losses, totaling $276 million by trading securities of Elan Corporation and Wyeth. According to prosecutors, the transactions were based on material nonpublic information about a clinical drug trial for the treatment of Alzheimer’s disease. Martoma purportedly obtained the information from two doctors involved in the study.
Martoma argued that under the Supreme Court's decision in Morrison v. National Australia Bank Ltd., 130 S. Ct. 2869 (2010), the transactions in American Depository Receipts (“ADRs”) of Elan Corporation, plc, an Irish pharmaceutical company, were extraterritorial transactions beyond the reach of Section 10(b) of the Securities Exchange Act of 1934 - the basis of the government's charges. In Morrison, the Supreme Court held that Section 10(b) only reaches fraudulent conduct in connection “with the purchase or sale of a security listed on an American stock exchange, and the purchase or sale of any other security in the United States.” ADRs are securities denominated in U.S. dollars that represent a certain number of shares of stock in a foreign company. ADRs are listed and traded on U.S. exchanges.
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cjonline: Legislator drug testing includes no penalties for failure
cjonline: Legislator drug testing includes no penalties for failure by Andy Marso:
Jeff Russell, director of Legislative Administrative Services, says privacy laws prevent him from disclosing the names of those who fail drug tests.
=> Read more!
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Former Bank VP Sentenced for Stealing from Client’s HELOC
Adorean Boleancu, 47, Napa, California, was sentenced to 20 months in prison and ordered to pay $360,199.25 in restitution for a wire fraud offense. As previously reported by Mortgage Fraud Blog, Boleancu pleaded guilty on September 13, 2013, to one count of wire fraud. According to the plea agreement, Boleancu admitted to executing a fraud […]
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//blawgsearch75.rssing.com/chan-6519914/article4648-live.html
United States v. Anderson, No. 12-10344 (12-19-13)(Callahan with Fernandez and Vance, Chief D.J., ED La). There aren't many criminal copyright prosecutions around, and this is a rare one. Here, an ex-cab driver started selling Adobe software through his own website. The copied software was generic and burned on a CD and supposedly used only for back-up. They weren't. After a four day trial, the defendant was convicted. On appeal, the 9th affirms the conviction but vacates and remands the sentence. The 9th finds the used instruction on "willfulness" a muddle, and not as clear as it could be that the defendant knew his acts were illegal. However, under plain error review, the defendant's rights were not so trampled as to require reversal. Counsel accepted the proffered instructions, and the error was not plain. The 9th also affirmed the use of uncharged prior conduct as intrinsic to the charge. The sentence was reversed, though, because of restitution. The defendant was responsible for actual loss, not potential.
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Law Enforcement Will Unite as "One Team" Against Impaired Driving this Holiday Season
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IDAHO STATE POLICE NEWS RELEASE
Teresa Baker
Public Information Officer
Headquarters
700 S. Stratford Dr., Meridian 83642
(208) 884-7122
Fax (208) 884-7087
For Immediate Release: 12/19/13 at 4:00 p.m.
MERIDIAN - Law enforcement officers from across Idaho are teaming up to stop impaired driving this holiday season. Police departments, sheriff's offices and the Idaho State Police are joining together as "One Team for Borderless Enforcement" of impaired driving laws. Enhanced DUI patrols will be on the roads in every city and county now through the first weekend of January looking for those who have had too much to drink, or are otherwise impaired.
"Whether you are under the influence of alcohol or drugs, prescription or illicit, or whatever the case may be, the message is the same, don't get behind the wheel," said Sgt. Sam Ketchum, Idaho State Police. "The holidays are a time to bring family and friends together and, unfortunately, we see all too often families brought together by the tragedy of drunk driving."
In 2012, there were more than 1,450 impaired driving crashes in the state of Idaho. As a result of these crashes there were 73 people killed and 241 people who sustained serious injury. Nearly 11% of all fatal and injury crashes involved an impaired driver, an impaired pedestrian, or an impaired bicyclist. Just fewer than 40% of all fatalities were the result of an impaired driving crash. Additionally, only 19% of those killed in impaired driving crashes while in a passenger vehicle were wearing a seatbelt.
A grant from the Idaho Department of Transportation's Office of Highway Safety allows for enhanced DUI patrols statewide between December 20 and January 3 with payment for overtime for officers involved in the patrols.
Law enforcement in southwest Idaho are dedicating the enhanced holiday patrols on Friday in the memory of Victoria Shafner of Nampa, who was killed at the age of 19 in a vehicle crash when her friend was driving impaired in March, 2007. Her mother Karen Shafner and representatives from Mothers Against Drunk Driving (MADD) will speak to officers on Friday evening at ISP's District 3 Office before the patrols begin at 8:00 p.m.
Law enforcement agencies in southwest Idaho participating in the mobilization are Boise, Caldwell, Cascade, Emmett, Garden City, Meridian, Mountain Home and Nampa Police Departments, Ada, Canyon, and Elmore County Sheriff's Offices and the Idaho State Police.
In eastern Idaho, the Idaho State Police is joining forces with the Bingham, Bonneville, Fremont, Jefferson, Power and Oneida Sheriff's Offices and the Idaho Falls Police Department.
You can easily avoid a becoming a DUI statistic but you must PLAN AHEAD.
- PLAN not drink and drive before you start drinking. Alcohol impairs a person's ability to determine if they should drive. You can't count on making the right decision after you've consumed alcohol.
- Designate a sober driver and give that person your keys.
- Plan to call a taxi, a sober friend or family member to get you home safely.
- Offer non-alcoholic beverages when entertaining.
- Promptly report drunk drivers to 9-1-1 or *ISP (*477) on your mobile phone.
- Wear your seat belt. This is the best defense against an impaired driver.
- Friends don't let friends drive drunk or impaired. If you know someone who is about to drive while impaired, take their car keys and make other safe travel arrangements to get them home, or offer a spare bedroom or sofa to "sleep it off".
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What is the entrapment defense?
Does entrapment still exist? Absolutely. It’s an affirmative defense, meaning the defendant bears the burden of proving by a preponderance of the evidence that they were entrapped. A preponderance means the defendant must convince the jury that it is “more likely than not” that they were entrapped. Entrapment is when law enforcement officer (or their [...]
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SORA became effective on January 21, 1996
A man pleaded guilty in the United States District Court to an indictment charging a federal class C felony, carrying a potential punishment of more than one-year imprisonment. The indictment charged that he attempted to purchase videotapes depicting child pornography. The underlying facts indicate that the man, using a computer, ordered tapes which depicted sex acts involving children ages 5, 6 and 14 years old.
Based upon such conviction, the New York State Board of Examiners of Sex Offenders, acting pursuant to the New York Sex Offender Registration Act (SORA), Correction Law, determined that the man was required to register in New York State as a sex offender, and so notified him. The man has challenged the applicability of SORA to him on the ground that the federal conviction does not include all of the essential elements of the applicable designated felony as set forth in SORA.
SORA requires a person who has been convicted of certain criminal offenses, referred to in SORA as sexual offenses, to register as a sex crimes offender in the State of New York. A sexual offense is defined by express reference to a list of New York crimes if the conviction was in New York. Under SORA, crimes committed in other jurisdictions, (which also imposes a registration requirement) include a conviction under federal law in a federal court in New York. There are two alternate criteria established to determine whether such crime is a sexual offense under SORA which requires SORA registration.
The first criteria is whether the conviction in the other jurisdiction was a conviction of an offense which includes all of the essential elements of any such felony or whether the other conviction was a conviction of a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred.
The People seek to require the man to register pursuant to the First Criterion. The man objects on the ground that the federal conviction does not include all the elements of the applicable designated felony as set forth in the New York State Correction Law. The man and the People agree that the relevant New York State provision is Penal Law possessing a sexual performance by a child, a class E felony which states that a person is guilty of possessing a sexual performance by a child when, knowing the character and content thereof, he knowingly has in his possession or control any performance which includes sexual conduct by a child less than sixteen years of age.
The federal crime for which the man was convicted provides, in pertinent part, that any person who knowingly receives or distributes any child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer shall be punished as provided in subsection of the statute. Child pornography as defined in this statute requires the person depicted to have been a minor, which is defined as any person under the age of 18 years.
The differences, the man argues, are that the federal criminal statute criminalizes possession of images of children under 18 (as distinct from the New York law which criminalizes possession of images of children under 16) and that the federal law requires that the offense be committed by the use of the mails or other shipment or transport in interstate commerce, including by computer (as distinct from the New York law which contains no such requirement).
The second objection is, upon analysis, almost frivolous. The requirement for an instrumentality of interstate commerce in the federal law provides the jurisdictional basis for federal action and legislation. The implied correlative in New York law is that for a conviction under Penal Law, the possession would have to have been in New York. Any jury instruction charging a violation of Penal Law would, in New York, have to include, as an element of a crime charging possession that the crime was committed in the county in which the possession occurred. Yet, to claim that the absence of such jurisdictional requirement where the crime was not committed in New York means that such crime did not have the same essential elements of a New York crime, cannot be serious if the SORA provisions, which consider how crimes in other jurisdictions are to be considered in a SORA registration, are to have any meaning. Here, the claim that the federal jurisdictional predicate somehow by itself excludes the man's federal crime from inclusion under SORA is even weaker. First, in fact, he was in New York County when he attempted to acquire the videotapes, and second, the jurisdictional requirement is for the federal crime, in addition to all other elements, and not in substitution therefore. While an essential element necessary for a conviction in New York missing in the federal prosecution would bar a conviction in such proceeding from consideration under SORA, an additional element should not. In the former case, there would be no basis to believe an analogous crime had been committed; in the latter case, there would only be a possibility that some persons who might have been convicted in New York would not be convicted under the federal statute which requires additional elements to be proven for conviction.
To Be cont....
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Obama Commutes Sentences For 8 in Crack Cocaine Cases
The New York Times
WASHINGTON — President Obama, expanding his push to curtail severe
penalties for drug offenses, on Thursday commuted the sentences of eight
federal inmates who were convicted of crack cocaine offenses. Each
inmate has been imprisoned for at least 15 years, and six were sentenced
to life in prison.
It was the first time retroactive relief was provided to a group of
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Educational Mentoring Service (GEMS)...cont
Because the court found that the defendants did not have a constitutional right to the material, the court did not decide the constitutionality of the statute. It is important to recognize that neither defendant alleges that the subpoenaed documents...
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SOMTA... cont
The court ruled as follows: Firstly, the respondent argued that the designation of a non-sexual offense committed prior to the effective date of SOMTA as sexually motivated violates the Ex Post Facto clause of the United States Constitution. In...
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SEC Seeks Over $1.1 Million From Fabrice Tourre Following Liability Verdict on Securities Fraud Charges
In a post-trial motion filed Monday, the SEC asked U.S. District Judge Katherine Forrest of the Southern District of New York to order Fabrice Tourre to pay over $1.1 million in disgorgement, pre-judgment interest, and civil monetary penalties. The request, which comes four months after a jury found Tourre liable on six of seven counts of federal securities violations, also seeks injunctive relief against the former Goldman Sachs trader. The SEC's case against Tourre centered on allegations that Tourre misled long investors in a failed 2007 mortgage deal called ABACUS 2007-AC1 (AC1) by failing to disclose that a purely short investor, Paulson & Co., helped select the underlying collateral. When the deal collapsed, long investors lost approximately $1 billion; Paulson made approximately $1 billion.
According to the SEC, Tourre also profited from the failed deal. The SEC claims that Tourre made approximately $1.7 million in 2007 (the year the Goldman booked the AC1 transaction). Most of that compensation was in the form of a performance bonus, the largest bonus Tourre had ever received at Goldman. The SEC argues that Tourre should disgorge his "ill-gotten gains" and estimates that the amount of his bonus reasonably attributable to the AC1 transaction to be $175,463. Because Tourre has had access to that money since January 2008 (when he received his 2007 bonus), the SEC claims that Tourre should also pay $62,858 in pre-judgment interest.
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Florida Highway Patrol Says “Don’t Drink and Drive!”
On December 2, 20313, the Florida Highway Patrol launched its attempt at an “innovative” public awareness campaign. According to the FHP, this video is aimed at stopping college-aged adults from driving impaired. The video is narrated by Captain Nancy Rasmussen, the FHP’s Chief of Public Affairs. It starts with a Lt. Jimmie Collins as a […]
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Mis deseos de Navidad
Estimados amigos:Deseo de corazón un hermosa Navidad para cada uno de ustedes.Una Navidad en la que se priorice el amor de Dios.En la que el significado de la familia tenga preponderancia sobre todo lo material.Una Navidad para el reencuentro y para pedir perdón.Una Navidad para reencontrarnos con nosotros mismos y tener la oportunidad de hacer algo bueno por nuestro prójimoUna Navidad en la que no te midan el cariño por el precio del regalo, sino por el amor que pongas para brindarlo.En fin...Una Navidad que sea Navidad, es decir:Una Navidad con Jesús.SinceramenteAlberto
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People v Oddone - Three Significant Evidentiary Rulings in a Single Decision
byJill Paperno, Second Assistant Monroe County Public Defender The Court of Appeals reversed a conviction of Manslaughter in the First Degree on December 12, 2013 in People v. Oddone. The defendant, Mr. Oddone, originally charged with murder, was convicted of manslaughter based on his choking of another man in a bar. Oddone had been dancing with a woman on a table in a bar. The bouncer, Reister, told him to get off. When Oddone refused, Reister pushed him off the table. A fight began and Oddone got behind Reister and put his arms around his neck. Oddone choked him until Reister fell down, and continued to choke him while on top of him on the floor. Reister passed out and died two days later. Defendant let go and ran out of the bar. The defense raised justification at trial. The length of time Oddone choked Reister was hotly contested. In reversing this Oddone's conviction, the Court made three significant evidentiary rulings, 1. The Deputy Medical Examiner was permitted at trial to testify about the duration of the period during which Oddone choked Reister based on the petechiae (red spots caused by bursting of blood vessels in the eyes) he observed as well as discoloration of Reister's face. The defense claimed that there was no scientific basis for the testimony about how the appearance of petechiae could establish the length of time of compression on the neck. The Court found that as the Medical Examiner testified based on his experience rather than scientific principle, a Frye determination was not required. The Court noted that the defense can respond to such testimony with experts and cross. (But what if you have no idea that an expert is about to go where no man has gone before? It is difficult, if not impossible, to find an expert in the middle of trial.) 2. A defense witness gave a prior statement to an insurance company investigator that the choking occurred for 6 to 10 seconds. At trial she testified that it lasted about a minute or so, and that she didn't know how long. Defense counsel sought to refresh her recollection. But the trial court refused to permit this, ruling that the witness had "given no indication she needs her memory refreshed." The Court of Appeals, holding that this ruling was reversible error explained that, (W)hen a witness says an incident "could have" lasted "a minute or so" and adds "I don't know" the inference that her recollection could benefit from being refreshed is a compelling one. More fundamentally, it was simply unfair to let the jury hear the "a minute or so" testimony - testimony damaging to the defense, from a defense witness's own lips - while allowing the defense to make no use at all of an earlier, much more favorable, answer to the same question. The trial court suggested to defense counsel that this was "an effort to impeach your own witness," but counsel had not yet got to the point of impeachment; she only wanted to refresh the witness's recollection. And in any event, technical limitations on the impeachment of witnesses must sometimes give way, in a criminal case, to a defendant's right to a fair trial. (Chambers v. Mississippi,410 US 284 [1973]). (Emphasis added.) This holding is extremely important. In Chambers the United States Supreme Court held that a state's evidentiary rule is trumped by and cannot preclude a defendant form introduce reliable evidence consistent with his right to present a defense. Subsequently, the Court, citing Chambers, ruling that “the hearsay rule may not be applied mechanistically to defeat the ends of justice” (Green v Georgia, 442 US 95, 97 [1979]). And now the New York Court of Appeals has cited Chambers for this same proposition. This is a holding that one would be wise to keep in the pocket for a rainy day or for your next trial.3. The defense sought to call a psychology professor to testify as an expert on the issue of eyewitness observations. The witness would have explained that "It is generally accepted in the field of forensic psychology that eyewitnesses routinely overestimate the duration of relatively short events lasting a few minutes or less." The trial court barred the testimony. The Court, interpreting People v. Legrand, (abuse of discretion to exclude testimony about reliability of eyewitness identification if case is based solely on accuracy of witness's identification), noted that Legrandcan stand for the principle that "there are cases in which it is unfair to deprive the jury of expert testimony about the reliability of eyewitness observations." Although the Court did not determine whether the exclusion of this testimony at trial was an abuse of discretion, it seemed to support its admission on the retrial necessitated by the reversal on the refreshing memory issue. So one win, one loss, and one tie (but really close to a win). And, if I'm interpreting it correctly, an interesting theme throughout the decision about what is fair to a defendant, rather than hypertechnical adherence to rules.
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Basics of Grand Jury Practice In New York
byJill Paperno, Second Assistant Monroe County Public Defender Article 190 of the Criminal Procedure Law sets forth the rules relating to grand jury presentations. As defined in Section 190.05 of the Criminal Procedure Law, A grand jury is a body consisting of not less than sixteen nor more than twenty-three persons, impaneled by a superior court and constituting a part of such court, the functions of which are to hear and examine evidence concerning offenses and concerning misconduct, nonfeasance and neglect in public office, whether criminal or otherwise, and to take action with respect to such evidence as provided in section 190.60. In Monroe County, there are usually at least two grand juries sitting at any one time. The grand jury sits for a term of the court (CPL 190.15), which is usually a month in length, although upon application of the D.A. the period can be extended (190.15[1]). As the grand jury sits, its decisions as to which cases are indicted, which are returned to lower court and which are dismissed are publicized periodically in a document called “the risings.” (Not the Bruce Springsteen rising.) So there are times that a prosecutor may commence a grand jury presentation, but delay the grand jury’s decision to see whether your client is accepting an offer. The prosecutor may tell you that the grand jury has its “final rising” on a particular date, and that the prosecutor must know your client’s decision prior to that date. Proceedings of the grand jury are not valid unless at least sixteen members are present (CPL 190.25). At least twelve members must agree for a charge to be indicted (CPL 190.25). The Grand Jury is a secret process (See CPL 190.25[4][a]); only specified individuals may be present during the grand jury’s work. The list of those who may be present is contained in CPL 190.25(2). The public may not be present. Your client may not be present unless s/he chooses to testify, and then may only be present during his/her testimony. Although the Court and the District Attorney are the legal advisors to the grand jury, there is no judge presiding in the room during grand jury conduct. Instead, the prosecutor reads the law to the grand jury and generally runs the show. If you have a dispute about something that is occurring in grand jury in one of your cases, you may seek to have the County Court Part I Judge resolve the matter by requesting to see the judge with the prosecutor. Section 190.30 of the Criminal Procedure Law sets forth the evidentiary rules applicable to the grand jury. Notably, there are certain types of hearsay evidence that are admissible in grand jury, but hearsay is limited to the specific types of evidence set forth in that statute. If you represent a witness who may appear before the grand jury, or a defendant against whom a case is being presented, you must become familiar with the statutes relating to compulsion of evidence and immunity (CPL 190.40), waiver of immunity (CPL 190.45), the statute that addresses who may call witnesses and the procedures when a defendant is a witness (CPL 190.50), and the statute that addresses an attorney’s role before the grand jury when representing a witness (CPL 190.52). If you represent a defendant before the grand jury, unless s/he is a cooperating witness who has been offered immunity, you will be expected to review with your client the law relating to immunity and waiver of immunity. Your client will have to sign a waiver of immunity that you will witness. Although the District Attorney’s Office has traditionally requested that the defendant sign an extensive waiver that exceeded the language of the Criminal Procedure Law, and also required that defense counsel sign an affirmation and acknowledge its signature in grand jury that defense counsel knows his/her role, a recent case decided by the Fourth Department (and discussed previously in this blog) confirms that the practice of requiring waiver beyond what the statute sets forth is unlawful. In People v. Brumfield, in which the defendant was convicted after trial, the Fourth Department ruled: CPL 190.50(5) provides that, if a defendant serves upon the People a notice of his intent to testify before the grand jury, appears at the appropriate time and place, and signs and submits to the grand jury “a waiver of immunity pursuant to [CPL] 190.45,” the defendant “must be permitted to testify before the grand jury” (CPL 190.50[5][b]; see CPL 190.50[5][a] ). In the event that the defendant complies with those procedures and is thereafter not permitted to testify, the appropriate remedy is dismissal of the indictment (see CPL 190.50[5][c] ). The parties do not dispute that defendant complied with the first two requirements of the statute. The only dispute is whether defendant signed “a waiver of immunity pursuant to section 190.45” (CPL 190.50[5][b] ). CPL 190.45(1) provides that a waiver of immunity “is a written instrument” in which a person who is to testify before the grand jury stipulates that he or she “waives [the] privilege against self-incrimination and any possible or prospective immunity to which he [or she] would otherwise become entitled, pursuant to [CPL] 190.40, as a result of giving evidence in such proceeding.” Here, the paragraphs in the waiver of immunity form that defendant left intact stated that defendant waived his privilege against self-incrimination and any immunity to which he would otherwise be entitled pursuant to CPL 190.40. Thus, defendant signed a waiver of immunity form that complied with the requirements of CPL 190.45(1) and was therefore required to be permitted to testify before the grand jury (see CPL 190.50[5][b] ). It is well settled that a defendant's statutory right to testify before the grand jury “ ‘must be scrupulously protected’ “ (People v. Smith, 87 N.Y.2d 715, 721, quoting People v. Corrigan, 80 N.Y.2d 326, 332). We conclude that, because defendant complied with the requirements of CPL 190.50(5) but was nevertheless denied his right to testify before the grand jury, the court erred in denying defendant's motion to dismiss the indictment. We therefore reverse the judgment of conviction, grant the motion, and dismiss the indictment without prejudice to the People to re-present any appropriate charges under counts two through five of the indictment to another grand jury (see generally People v. Pattison, 63 AD3d 1600, 1601, lv denied 13 NY3d 799). People v. Brumfield --- N.Y.S.2d ---- (Fourth Dept. Sept. 27, 2013). Although the Court ruled on the waiver issue and did not reach the attorney affirmation issue, it seems that a refusal to allow defendant to testify because the attorney refuses to sign an affidavit not required by the statute or acknowledge it in grand jury might also result in a reversal. The District Attorney has been granted leave to appeal the Fourth Department’s holding to the Court of Appeals.Practical tips Because handling preliminary hearings requires a working knowledge of grand jury practice, you must read the grand jury statutes (CPL Article 190). You should be aware of the following: 1. If your client wishes to testify before the grand jury, you must send the prosecutor a written notice of your client’s intent to testify. (CPL 190.50[5][a]). If the prosecutor is presenting on short notice, do your notice by email and fax, with an explanation included that you cannot send the letter by U.S. mail because of the short notice you received. Some attorneys send these notices on each case both in order to preserve the client’s right and to preserve any potential issue of the prosecutor presents the case without providing the defendant with the opportunity to testify. But if you choose to engage in this practice, you must notify the prosecutor if your client is not testifying before the grand jury, as your client will be body-ordered to the grand jury, and may be left sitting, without you there, initially bewildered and eventually angry. 2. Often, it’s a bad idea for your client to testify before the grand jury. You don’t yet know the evidence the prosecutor has in the case, you don’t yet know whether your client’s version varies greatly with that evidence or with any statement s/he may have made to the police, the client’s testimony can be used at trial, the grand jury is likely to indict any case the prosecutor presents to them, and you may be revealing more than you should to the prosecutor prior to trial, allowing the prosecutor to try to prepare the witnesses to refute your defense. There are exceptions to the bad idea rule, but not many. (I should note that some of my colleagues engage in a more vigorous and less conservative grand jury practice than I do, with greater success.) 3. You are entitled to reasonablenotice of the prosecutor’s presentation of the case if your client has been held for action of the grand jury on an undisposed of felony complaint and/or if notice has been served by the defense: The Criminal Procedure Law imposes a new obligation on prosecutors under CPL 190.50(5)(a): a defendant must be informed that a Grand Jury proceeding against that person is pending, in progress or about to occur, if that person has been arraigned on an undisposed felony complaint charging an offense which is a subject of the prospective or pending Grand Jury proceeding. CPL 190.50(5)(a) then adds in pertinent part that “[w]hen a criminal charge against a person is being or is about to be or has been submitted to a grand jury, such person has a right to appear before such grand jury as a witness in his [or her] own behalf if, prior to the filing of any indictment * * * he [or she] serves upon the district attorney of the county a written notice making such request” (emphasis added). Once an accused serves such notice requesting an appearance before the Grand Jury, the District Attorney “must notify the fore[person] of the grand jury of such request, and must subsequently serve upon the applicant * * * a notice that [the applicant] will be heard by the grand jury at a given time and place. Upon appearing at such time and place * * * such person must be permitted to testify before the grand jury and to give any relevant and competent evidence concerning the case under consideration” (CPL 190.50[5][b] ). The District Attorney must afford defendant “reasonable *413 time” to exercise the right to appear as a witness at the Grand Jury (CPL 190.50[5][a] ). People v. Evans, 79 N.Y.2d 407, 412-13, 592 N.E.2d 1362, 1364 (1992) Reasonable notice is not five or ten business hours after you’ve been assigned. (See CPL 190.50[5][a], People v. Degnan, 246 AD2d 819, “Insofar as is pertinent to this appeal, CPL 190.50(5)(a) provides that the District Attorney must notify the defendant or his or her attorney of a pending Grand Jury proceeding in such manner as to afford the defendant reasonable time to exercise his or her right to appear as a witness therein. Defendant asserts that the one-day notice provided by the People here was insufficient to allow him a reasonable opportunity to exercise his right to appear as a witness in the Grand Jury proceeding. We agree.” People v. Degnan, 246 A.D.2d 819, 820, 667 N.Y.S.2d 808, 809 (1998)) If you get notice that is unreasonable, send a letter to the prosecutor that the notice is unreasonable, and that you will be filing a five day motion seeking dismissal of the case after indictment if they do not provide you with reasonable notice. 4. A defendant has the right to testify before a grand jury that has not voted the case if the defense serves timely notice. Our reading of CPL 190.50(5) together with its history and purpose warrants the conclusion that the Legislature intended that individuals who give timely notice reasonably prior to the prosecution's presentment of evidence and prior to the Grand Jury vote on an indictment are entitled to testify before the vote. People v. Evans, 79 N.Y.2d 407, 413, 592 N.E.2d 1362, 1365 (1992) So ask your prosecutor if they have voted the case yet; if they have, do not have your client testify. They will not tell you if you do not ask (and may not tell you if you do!). Tell them you will be filing a five-day motion (CPL 190.50[5][c]) unless they withdraw the case from that grand jury and present to another that has not voted the case. 5. If a defendant is out of custody on a felony and the case is no longer pending in local criminal court, the defendant is not entitled to notice of the presentation of the case unless the defendant has requested the opportunity to testify in writing (as 190.50[5][a] has been interpreted by courts). Similarly, if the case has been referred to the grand jury following a preliminary hearing or a defendant waives the preliminary hearing, you are not entitled to notice. As a general rule, the target of a Grand Jury investigation is not entitled to any sort of notice that a Grand Jury proceeding against him is in progress or about to occur. The one exception is where a person has been arraigned on a “currently undisposed of felony complaint” charging the offense to be presented to the Grand Jury (subd. 5[a]). The purpose of this is to preserve some opportunity for a defendant to negate probable cause and avoid indictment. Thus the exception does not apply where defendant waives a preliminary hearing at arraignment or if the case is presented to the Grand Jury after the defendant has been held for the Grand Jury on the basis of a preliminary hearing. Commentary N.Y. Crim. Proc. Law § 190.50 (McKinney) Because many judges in Monroe County do not adhere strictly to Article 180, a question remains as to whether a defendant with an adjourned date for “screen” has an undisposed of felony pending in local criminal court, as undisposed of felonies are addressed in a statute that doesn’t specifically describe this situation. To be on the safe side, if your client wants to testify before the grand jury, serve notice whether or not the client is in custody or the case has been adjourned in local court. If notice is served, it must notify the prosecutor of intent to testify on either all charges pending before the grand jury, or the specific charge the defendant wants to testify about. A notice served on one charge will not be deemed notice on another matter. See People v. McNamara, 99 A.D.3d 1248, 951 N.Y.S.2d 816 (2012) leave to appeal denied, 21 N.Y.3d 913, 988 N.E.2d 893 (2013). And if the prosecutor does not provide notice of grand jury presentation when s/he is required to, the defense must file a “five day motion” to properly challenge the failure: Special note should be taken of the fact that, although a motion to dismiss an indictment for failure to honor a defendant's request to appear before the Grand Jury is, technically speaking, a “pretrial motion” (see CPL §§ 210.35 [4], 255.10), the timing is not governed by the forty-five day period specified in CPL § 255.20. This motion must be made within five days after arraignment or it is waived (see CPL § 190.50[5(c)]). (Emphasis added) Commentary, N.Y. Crim. Proc. Law § 190.50 (McKinney).
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Milwaukee Ald. Jim Bohl under investigation for suspected coercion
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