Criminal Defense Special Litigation Docket

No 1
Title: Alvarez v. Smith, No. 08-351 (U.S. Supreme Court)
Docket No./ Court: NO. 08-351
LAS Attys/Offices: Tom O’Brien
Date Filed: August 2009
Class Action: No
Nature of Claims: In this case the Supreme Court will decide whether a person whose property is seized for forfeiture has a right to a prompt post-seizure hearing to regain possession of the property. This is the same issue, now on the national level, that the Second Circuit decided in our favor in Krimstock v. Kelly. The Amicus brief, submitted in August, essentially argued that Krimstock was correctly decided and that the Krimstock hearing it engendered has proven to be a very workable effectuation of due process.
Current Status: Awaiting argument
Next Action Planned: Decision of the court
No 2
Title: Krimstock v. Kelly
Docket No./ Court: 99 Civ. 12041; SDNY
LAS Attys/Offices: Thomas O’Brien (CDP/SLU)
Other Counsel: None
Date Filed: 1999
Class Action:
Nature of Claims: This action challenges the impoundment of vehicles by police and or the prosecutor in connection with a criminal case. The action was filed in response to the NYPD policy of impounding any car driven by a someone who was arrested for driving while intoxicated.
Current Status: On plaintiffs’ first appeal from the SDNY, the Second Circuit ruled that persons whose vehicles are impounded by the Police Department have a due process right to a prompt post-seizure hearing and remanded the action of the district court to establish appropriate procedures for the hearing.

On the first remand, the District Court established the location, timing, and structure of the post-seizure hearing. Defendants appealed and the Second Circuit affirmed the procedures except for the treatment of vehicles seized as arrest evidence and on that issue it remanded for further fact findings.

After that remand and subsequent appeal, the Second Circuit on September 15, 2006 held that vehicle owners have a constitutional right to judicial review of a prosecutor’s claims that a vehicle needs to be impounded as “evidence.”

On remand, the nature and timing of that judicial review, which takes place in the criminal court, was set up by the district court after hearing argument from the parties. The NYPD has implemented the latest expansion of due process rights for car owners. We are monitoring its performance. As due process hearings regarding automobiles become more of an accepted practice we are seeing an increasing number of private attorneys litigating these hearings
Number of Persons Affected: Thousands of car owners throughout the metropolitan area.
Reported Decisions: Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002); 464 F.3d 246 (2d Cir. 2006)
No 3
Title: Doe v. Pataki
Docket No./ Court: 99 Civ. 1657 (SDNY) 06-2126 (2d Cir.)
LAS Attys/Offices: Thomas O’Brien (CDP/SLU)
Date Filed: 1996
Class Action: In effect, though not technically
Nature of Claims: This action originally challenged the registration public notification law for previously convicted sex offender as violative of the ex post facto clause, and subsequently challenges the failure to provide adequate due process to those persons when assigning risk levels.
Current Status: The federal courts ultimately denied the ex post facto challenge but held that the process by which sex offenders under SORA had received their risk level classifications violated due process of law.

The parties in 2004 finalized a settlement, the terms of which created a special hearing process for thousands of SORA registrants.

In January 2006, the Legislature increased the length of registration for persons currently subject to SORA, including many of the plaintiffs in Doe. The District Court granted plaintiffs’ motion to enforce the settlement’s 10-year limit on the duration of registration, and also granted plaintiffs’ application to enjoined expanded notification measures passed by the Legislature in June 2006.

The Second Circuit upheld the statute, thus allowing the State to apply longer periods for registration to SORA registrants. Some 2,000 affected individuals, however, were afforded the right to a new hearing to challenge their risk level.
Last Reported Decision: Doe v. Pataki, 481 F.3d 69 (2d Cir. 2007)
No 4
Title: Rockefeller Drug Law B Felony Re-sentencing Project
Docket No./ Court: Supreme Courts in NYC
LAS Attys/Offices: William Gibney, CAB
Other Counsel: Yes
Class Action: No
Nature of Claims: The Rockefeller Drug Law Reform of 2009 permitted people who are serving old law indeterminate sentences to apply to be re-sentenced to the generally shorter determinate sentences that have been in effect since 2005. The Special Litigation Unit is training the Criminal appeals bureau, a number of private firms, and a CUNY Law School Clinic regarding the requirements of the new law and how to file effective re-sentencing applications. We will continue to provide litigation support to the hundreds of applications now being filed.
Next Action Planned: Training, September 09
No 5
Title: Second Amendment Cases, People v. Albi Abdullah
Docket No./ Court: Various Courts around the City
LAS Attys/Offices: Wasserman (CDP/SLU)
Other Counsel: Often with local Criminal Practice attorney
Date Filed: September 2007 to present
Class Action: No
Nature of Claims: The defendant was convicted of misdemeanor possession an unlicensed handgun, which was found in his kitchen pantry by police responding to a domestic dispute. The gun did not figure in the dispute, and the defendant has no prior history that would disqualify him from gun ownsership. The court denied his motion to dismiss on Second Amendment grounds, based on 19th Century Supreme Court precedents which held that the Second Amendment is inapplicable to State laws. The Supreme Court is likely to address this issue in the coming October Term.

In the wake of District of Columbia v. Heller, which provided national guidance regarding the applicability of the Second Amendment to gun possession cases, we have redrafted our model motion to incorporate the Heller argument and a new memorandum of Law. Cases in which a gun is found in a person’s home or business have a much stronger defense as a result of Heller and the motion/memorandum should be used in many cases. We are seeing more favorable offers in these cases. We continue to file motions as additional cases are identified. So far New York State courts (in Brooklyn, the Bronx and Queens) are following an old Second Circuit decision which says that the Second Amendment does not apply to the states. Two other circuits now disagree with this analysis. Steve Wasserman published an article discussing the state of the law for the Law Journal.
Current Status: We are appealing the decision to the Appellate Term Second Department
Next Action Planned: We continue to file additional motions as additional cases are identified.
No 6
Title: People v. Scott Liden
Docket No./ Court: SCID 30142-2007, Supreme Court New York County
LAS Attys/Offices: Newman (CDP/SLU)
Other Counsel: Andrew St. Laurent
Class Action: No
Nature of Claims: We are representing a client who is being required to register as a sex offender based on a conviction for Unlawful Imprisonment in the State of Washington. We argue that the People have not provided sufficient documentation of the age of the victim, which is necessary under the law to bring the client within the scope of SORA. There is an additional issue of whether the documentation of the facts of the case, from the State of Washington, is sufficiently reliable to support the Risk Level 3 that the Board of Examiners of Sex Offenders is seeking. We are also arguing that the requirements of New York’s SORA law preclude its application to Mr. Liden.
Current Status: Awaiting decision by Justice Shafer, New York County, Civil Term. Related appeal from Judge Cataldo's designation of client as a Level 3 offender is pending in 1st Department. Brief has not yet been filed.
No 7
Title: People v. Ida Clark et al.
LAS Attys/Offices: Wasserman (CDP/SLU)
Other Counsel: No
Class Action: No
Nature of Claims: Three apartments in the Walt Whitman Housing project were raided by the police who were looking for suspected drug dealers. The police did not knock. They broke down the doors and entered the apartments. Some people were put through the system. We are representing several defendants in an effort to spotlight abusive police practices in public housing buildings. A number of these charges have now been dropped. The search warrant cases are being litigated. Termination of tenancy proceedings have also been filed against the tenants. We have now received decisions allowing the tenants to remain in their apartments.
Current Status: Termination of tenancy prevented
Next Action Planned: Confirm that the conviction record is sealed
No 8
Title: People v. Julio Borrell
Docket No./ Court: Supreme Court Queens County
LAS Attys/Offices: Newman (CDP/SLU)
Date Filed: 2008
Other Counsel: None
Class Action: No
Nature of Claims: In this case, the client, acting pro se, persuaded the 2nd Department to grant a coram nobis writ and modify his sentence, on the ground that his appellate attorney was ineffective in failing to argue that consecutive sentences imposed on two counts of the indictment were illegal. However, the Appellate Division, when fashioning a remedy for the illegal sentence, modified a concurrent sentence imposed by the trial court to make it consecutive, thereby leaving the client with the same aggregate sentence as before. We agreed to take the case to argue that the Appellate Division was not legally authorized to modify the sentence in this way and asked for leave to appeal to the Court of Appeals. The People opposed the leave application on technical grounds. We have submitted a Reply to the People's technical argument. The application is pending.
Current Status: Julio Borrell: Court of Appeals ruled against us on grounds that client received effective assistance of counsel on direct appeal. Ruling does not preclude further challenges to the legality of his sentence. A 440.20 motion challenging the sentence has been filed and is pending in Supreme Court, Queens County.
No 9
Title: Gill v. Greene
Docket No./ Court: U.S. Supreme Court
LAS Attys/Offices: Newman, Gibney (CDP/SLU)
Other Counsel: No
Date Filed: 2008
Class Action: No
Nature of Claims: Petitioner Gill, acting pro se, convinced the Third Department that the "Earley/Garner" rule, requiring that a judge, not an administrative agency like DOCS, orally pronounce the specific terms of a sentence, also applies to the question of whether a new sentence runs concurrently, or consecutively, to a prior undischarged sentence. In other words, DOCS may not administratively decide that the statute requires that the new sentence be consecutive. We agreed to defend the Gill decision because of the large number of other prisoners who will be affected by it. The Court of Appeals reversed the Third Department decision and we filed a petition for Certiori in the U.S. Supreme Court.
Current Status: Our Petition for certiorari is pending in the U.S. Supreme Court. State has filed opposition papers. Decision is awaited.
No 10
Title: People v. James Dreyden
Docket No./ Court: Court of Appeals
LAS Attys/Offices: John Schoeffel
Date Filed: September 2009
Class Action: No
Nature of Claims: What factual allegations are necessary to charge criminal possession of a gravity knife in a misdemeanor complaint? In this case, the complaint alleged only that the officer "observed defendant in possession of a gravity knife." It did not establish that the knife had been tested and was found to be operational as a gravity knife (i.e., that its blade opened from the handle by the application of centrifugal force or force of gravity alone, and that it automatically locked in place with a button or other device). The defendant waived prosecution by information. Following its own precedent, the Appellate Term held that the complaint was sufficient because "the term gravity knife is self-defining." 23 Misc.3d 34 (App. Term 2,11&13 Jud. Dist. 2009). We argue that this premise is incorrect, and that the only way to determine that a knife actually is a gravity knife is to test the way it opens and locks. Without an allegation that the knife had been found to be operational, the complaint was purely conclusory, and, thus, it ran afoul of People v. Dumas, 69 N.Y.2d 729 (1986).
Current Status: Brief filed
No 11
Title: People v. Nunn
Docket No./ Court: 2009 WL 1740818 (Crim. Ct. Kings Co. 2009)
LAS Attys/Offices: Tom O’Brien
Class Action: No
Nature of Claims: After People v. Kalin came down from the Court of Appeals, lower courts stopped requiring lab reports in drug cases in order to block a defendant's statutory right to releases after five days. We briefed Nunn, and the judge ruled that due process requires a lab report confirming that a substance is drugs in order to continue detention of the accused during the pendency of the criminal case.
Next Action Planned: We expect to continue to litigate the issue in other boroughs as cases with appropriate facts present themselves.
No 12
Title: Probation Searches People v. Pagan, In the Matter of Rasheen Davis
Docket No./ Court: Appellate Division First Department
LAS Attys/Offices: Steve Wasserman
Nature of Claims: After a probation sentence was issued by the sentencing court the Probation Department is moving to add a condition that will allow it to search the defendants’ apartments at any time. The City is doing this in gun cases. We are opposing the application. The condition was not a part of the original sentence and there has been no changed condition of a probation violation which is required by the CPL to amend the probation order. Most judges are declining to impose routine home searches in the absence of changed circumstances.
Current Status: Oral argument on this appeal from a probation enhancement will be heard in the October term.
No 13
Title: People v. John Marquez, Alberto Nisvis, (Post Release Supervision)
Docket No./ Court: Appellate Division Second Department
LAS Attys/Offices: Robert Newman
Class Action: No
Nature of Claims: These defendants were resentenced to post-release supervision after they completed service of their original determinate sentences, and were discharged from PRS as a result of successful Article 78 petitions. We are appealing to AD2 on the ground that resentencing violates double jeopardy and due process.
Current Status: Briefs will be filed within the next couple of months.
No 14
Title: Bell v. New York State Department of Correctional Services, NYS Division of Parole, People v. Bell
Docket No./ Court: Appellate Division Second Department
LAS Attys/Offices: Robert Newman
Class Action: No
Nature of Claims: Queens County Supreme Court rejected our Article 78 petition seeking to terminate client's PRS. We are appealing this decision and simultaneously pursuing an 440 motion to end the PRS and/or withdraw guilty plea. This motion is pending in Supreme Court, Criminal Term, Queens.
Next Action Planned: File Brief
No 15
Title: Bush v. New York State Board of Sex Examiners, et al.
Docket No./ Court: Appellate Division Second Department
LAS Attys/Offices: Robert Newman
Class Action: No
Nature of Claims: We are appealing to AD2 from denial of Article 78 petition challenging client's designation by Board of Examiners as a sex offender. Appeal is being pursued primarily to preserve client's right to pursue this issue in Federal Court.
Next Action Planned: Brief is due on Sept. 13
No 16
Title: Everett Williams v. New York State Division of Parole
Docket No./ Court: Appellate Division First Department
LAS Attys/Offices: Robert Newman
Class Action: No
Nature of Claims: We are Respondent in an appeal to AD1 by the State, from an order allowing the client to have contact with his wife, even though the Parole Board refused to allow any contact because at one time the wife brought a DV charge against the client. (Wife dropped the charge, now says it's false, and supports our efforts on client's behalf.) The case presents a challenging and important case on my docket.
Next Action Planned: File Brief