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Gotham Gazette

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Citizens Union

Public Safety

A Legal Victory for Tenants


Photo (cc) sardinista

"Your aged parents or your home" is not a choice anyone would want to face, especially when your parents are 78 and 80, and your New York apartment is rent stabilized. But that is exactly what confronted Charlene Lee of Manhattan.

In litigation that began in 2002 and ended in July 2009, the landlord, 542 East 14th Street LLC, commenced a holdover proceeding in Housing Court charging that Lee, a nurse, had breached her lease and was no longer entitled to her apartment. The landlord claimed her apartment was not her primary residence because she had spent most of the previous two years in California. But Lee established that she had been in California caring for her ailing parents, and that her New York apartment continued to be occupied by her 16-year-old daughter, then a student at Stuyvesant High School. (During the long course of this litigation, the daughter, Cindy, has graduated from high school and college and is now in her last year of medical school, according to the New York Law Journal.)

The law requires the tenant of a rent-stabilized apartment to occupy the premises for at least 180 days a year for it to be considered a primary residence. Only primary residences are entitled to rent regulation. But although Lee did not personally meet the 180-day-in-the-apartment-test, she also had no other residence. While in California to care for her sick, non-English speaking parents, Lee stayed with various friends and relatives. She returned to New York, her daughter and her apartment intermittently, staying for several weeks at a time.

The Legal Rulings

Housing Court Judge Kevin McClanahan dismissed the landlord's petition, finding that the 14th Street apartment was Lee's primary residence. He noted that she maintained her furniture and personal property at the Manhattan apartment and that it was her address for banking, taxes, utilities and mail, as well as the place where her daughter lived. Also, Charlene Lee had never established in California the indicia of permanent residency, such as acquiring a home or voting there. No evidence was presented to rebut the allegations of family illness, and the court rejected landlord's argument that the illness of Lee's parents was "merely a pretext" to keep her apartment while actually residing in California.

The landlord also lost the next round, the Appellate Term, where two judges out of three agreed with the Housing Court findings. The Appellate Division, at the next appellate level, has now unanimously, affirmed the finding of the two lower courts. In an opinion by Justice Peter Tom, the Appellate Division addressed for the first time the question of whether a tenant's absence for the reasons presented in this case affect their eligibility for rent regulation. The court found that the need to care "for a sick relative is a viable defense to a non-primary residence claim by a landlord." This circumstance has now joined other possible exceptions to the primary residence requirement, such as military service, hospitalization, "or other reasonable grounds."

In all, eight judges have decided in favor of Lee. Moreover, her attorneys have been awarded $34,000 in legal fees.

Limits on Landlords

There are only a few ways for landlords to legally recover possession of the apartments they own. Evictions may flow from failure to pay rent, if the landlord prevails in a non-payment proceeding brought in Housing Court. Holdover proceedings, such as the one brought against Lee, begin when the owner or management claims that the landlord-tenant relationship has ended, often as a result of primary residence issues. Landlords who suspect tenants of living elsewhere or of not spending half the year in the apartment often hire private investigators or put the resident under surveillance to uncover evidence that the premises in issue are not the primary residence -- that is, to challenge whether there is "an ongoing substantial, physical nexus with the premises for actual living purposes," as the Court of Appeals explained in a case involving Bianca Jagger's residence.

The decision about primary residence is generally not based on one single factor, so landlords may arrange for searches of public records to ascertain where the tenant votes, holds a driver's license, receives mail, for example. They may search property records to see if there is another home in, say, Florida. In addition, some landlords have installed cameras, which time stamps and records the dates the occupant enters the space. An artist reports his was done at her loft. A Westside tenant whose spouse lives in another city, divides his time, between Manhattan and the Midwest, literally counting the days in New York in order to keep his primary residence here, and not lose the apartment he lived in for decades, prior to his recent marriage.

In 2008, Bianca Jagger, the former wife of Mick Jagger of the Rolling Stones, lost "an action of ejectment" in the state Supreme Court rather than Housing Court, a decision which was affirmed by the highest court, the Court of Appeals. In that case, immigration was the critical factor, since Jagger, a British citizen, was in the United States on a tourist visa. The court found that she could not have both "a principal, actual dwelling place" outside the country and also have her primary residence in New York City. The two circumstances were called "logically incompatible.

It is considered unlikely that the Court of Appeals will hear the Charlene Lee case. That would allow the decision letting her keep the apartment to stand.

Lee was represented at trial by the office of Adam Leitman Bailey, P.C., and on appeal by David E. Frazer. The landlord was represented by Borah, Goldstein, Altschuler, Nahin & Goidel.

Emily Jane Goodman is a New York State Supreme Court Justice

The Race to Fill Morgenthau's Shoes


Image by Ya-Hsuan Huang

In 1975, U.S. troops finally left Vietnam, a not-yet-20-year-old Bill Gates launched Microsoft, and the Weather Underground and Symbionese Liberation Army were seen as terrorist threats. As New York City grappled with the fiscal crisis, services declined and crime increased. And in 1975 Robert Morgenthau won his first election to become Manhattan district attorney.

Election 2009

In the years since, Morgenthau remained, evolving into something of an icon. Generally seen as the model for District Attorney Adam Schiff on "Law and Order," he faced only two serious opponents in winning his next eight elections. Now just days short of his 90th birthday, Morgenthau mulled seeking re-election to a ninth full term this year, but eventually "decided I would not push my luck any further."

Three Democrats -- Richard Aborn, Leslie Crocker Snyder and Cy Vance Jr. -- will compete in September to see who will replace Morgenthau. (Currently there is no Republican candidate, since Greg Camp withdrew, saying he would rather run for Congress or the State Senate.) By all accounts, with two months left to go, the race among the trio remains exceedingly close. All have raised similar amounts of money and attracted an array of endorsements. Their debates and discussions reveal few substantial disagreements on the issues, with their differences revolving largely around who has the best experience to run the district attorney's office.

While his name will not appear on the ballot, Morgenthau undoubtedly will play a role in the race between these three people, all of whom once worked in Morgenthau's office. While none of the them would attack such an icon, the candidates clearly have different views of the Morgenthau legacy and, to a lesser extent, of where they would go from here.

The Candidates

Vance, a former prosecutor who practiced law in Seattle for a number of years before returning to New York City, boasts the closest ties to Morgenthau. The sitting district attorney has endorsed Vance, now a principal partner at the litigation firm of Morvillo, Abramowitz, Grand, Iason, Anello and Bohrer, P.C., and said he would "do whatever I can to be helpful." Vance did not announce his own intention to run until Morgenthau decided not to, and Morgenthau's decision to back Vance prompted another possible contender -- Dan Castelman -- to abandon his fledgling candidacy.

Cy Vance at the Pride Parade

Along with Morgenthau's backing comes the imprimatur of an establishment candidate. Vance boasts endorsements from some of the city's most well-known political names -- David Dinkins, Betsy Gotbaum, and Caroline Kennedy to name a few.

For his part, Vance gives Morgenthau high marks. Asked in an interview what he might do differently, Vance said, "The office to start with is a remarkable office, so the things I would change I would change carefully."

Leslie Crocker Snyder, who founded the Sex Crimes Protection Bureau in the district attorney's office, attracted Morgenthau's ire when she unsuccessfully challenged him four year ago. By all accounts Morgenthau makes little secret of his distaste for Snyder. In an appearance on the Charlie Rose Show this spring, Morgenthau said Snyder "has no humility." He also recalled her comment that she would willingly give a lethal in=injection to one defendant, adding, "That's not the kind of person I want as DA."

Leslie Crocker Snyder

Snyder concedes her challenge to Morgenthau did not win her popularity in some circles, but she resists the temptation of openly going after Morgenthau, instead taking opportunities to praise him and to reassure voters she would not clean house at the district attorney's office.

"A lot of very good things have happened in that office," she said in an interview. As to Morgenthau's comment about her, Snyder said criticisms of her blunt comments about defendants come from "people who haven't been involved in the cases I have. They haven’t seen babies smashed against the wall and being raped and sodomized. … I get a little emotional."

Snyder, who also served as a special corruption prosecutor and a judge, stresses her long involvement in all aspects of the criminal justice system and cites endorsements from various police and firefighter groups -- as well as former Mayor Ed Koch -- to reinforce that.

The third candidate, Richard Aborn, a former president of the Brady Campaign, a pro-gun control group, and president (on leave) of the Citizen's Crime Commission, has attracted youthful volunteers and a bit of buzz in the race against two somewhat better known opponents.

Richard Aborn at the Puerto Rican Day parade

Aborn has said that he wants "to build on the legacy of Bob Morgenthau" but also portrays himself as a proponent of change who would help to "transform" the criminal justice system. Aborn, who also manages a major law firm, boast endorsements from a number of elected state and city officials but most frequently cites the backing his candidacy received from former New York City Police Commissioner Bill Bratton.

What a District Attorney Does

The job the three seek entails being the top prosecutor for violations of state and local laws in Manhattan. Every county in the state has its a district attorney but Manhattan's location and the fact that so much business and commerce is located there gives the office prominence it would not otherwise have.

Brooklyn District Attorney Charles Hynes also faces re-election this year. He held off three challengers in a closely fought race in 2005, but this tie around has no opposition. The other three city district attorneys -- Richard Brown of Queens, Robert Johnson of the Bronx and Daniel Donovan of Staten Island -- will not face the voters until 2011.

Even in these relatively peaceful times, enforcing the criminal laws in New York City represents an enormous and expensive undertaking. The Manhattan DA's budget, part of the overall city budget, totals about $82.6 million, and the office has some 550 assistant district attorneys.

Much of the discussion in the campaign involves how those resources should be used at a time of relatively low crime rates, rising concern about identity theft and financial fraud, and new technologies.

A Race to the Left

Few constituencies in the U.S. are as solidly liberal as Manhattan Democrats. So not surprisingly all candidates have sought to style themselves as "real progressives" -- to borrow the description on Aborn's website.

"My opponents would like to paint me as the conservative," Snyder said. But at a recent debate in Manhattan, she cited her work to change rape laws and said, "I've been a fighter and an advocate for social justice." Vance bills himself as someone with "a passion for justice [and] the experience to deliver it."

Issues that might attract angry debate almost everywhere else in the nation -- even in other parts of New York City-- are accepted wisdom in this race.

Asked about the death penalty at a recent debate, Aborn called it "fundamentally wrong" and continued, "The death penalty has no place in the state of New York and I frankly think it has no place in the United States."

Snyder had supported the death penalty in some cases when she ran in 2005, but she said her "position has evolved slightly, and I agree with everything that Richard said."

His record in lobbying for gun control in Congress -- and getting key measures passed -- plays a key part in Aborn's campaign. And while most prosecutors in the state enthusiastically backed New York's harsh Rockefeller drug law, which set long minimum sentences for drug offenses, all three candidates applaud the changes in the law enacted earlier this year.

"I'm for complete judicial discretion except in kingpin cases," Snyder said, adding, "having been a judge for20 years, maybe I have more confidence in judges. I don’t think a DA should sentence."

The candidates all question the recent arrests of men at gay video stores in Manhattan and also expressed doubts about the arrest and detention of hundreds of people at the 2004 Republican National Convention in New York. "The whole situation was a mess," Snyder said. "We can do a lot better."

The candidates all propose that some of the money, staff and energy once spent on punishing crime now go toward preventing it.

"My overriding priority is to proactively break the cycle of crime, Snyder said. To accomplish this, the candidate would direct nonviolent offenders to drug treatment, job training, family counseling, mental health services and the like -- "holistic programs," as Snyder puts it.

"Our next goal," she said, "has to be preventing first offenders from becoming second offenders."

With crime down, Aborn sees this as a key moment to prevent crime not only by trying to assist with nonviolent offenders before they turn to violence but also working with others involved, such as victims and families.

"We want a big focus on kids because we know that kids are a group we can steer out of a life of crime," Aborn said in a recent interview. This does not mean the DA's office would be a "service provider" he said, but it would have a staff that would know which programs are out there.

The candidates also call for linking assistant district attorneys to specific Manhattan communities, allowing them to work more closely with the police who patrol those precincts and the community groups that serve those neighborhoods.

Expanding what he calls "community based justice," Vance said might have helped flag the arrest at gay video stores earlier.

A 21st Century DA

Although on no serious candidate would call Morgenthau out of touch -- and indeed there is no indication that he is - inevitably one subtext of this campaign involves moving the DA's office into the current era.

For Aborn, this takes the form of looking at data. He notes that research found that violent sex offenders often had committed larceny earlier in their lives. This led him, he said, to push for getting DNA samples from people convicted of larceny, perhaps discouraging some from going on to commit more serious crime -- and providing a means to help apprehend them if they did.

"Data is a mirror of life," he said, but "you have to know how to use it."

Snyder would set up what she calls "a second look bureau" to review convictions. "We try to get it right the first time, but we're human," she said.

She also faults the state of technology in the district attorney's office. "It's not in good shape there," adding the office needs to update "so the bad guys are not ahead of us."

As crime rates fall, Vance thinks the office has the opportunity to increase its investigation and prosecution of financial fraud cases. And he plans to create a special unit to target hate crimes. Beyond prosecuting cases, he hopes the unit would help to prevent bias incidents by working with community groups and others "to start having awareness about these kinds of biases."

Vance also looks to easing the office's backlog in criminal court cases. Noting that the office has more attorneys now than it did in the 1980s when there was far more crime, Vance thinks the increased financial fraud prosecutions as well as reducing the backlog could be accomplished by reallocating staff and other resources.

The Right Stuff?

Each of the candidates says that, whatever their similarities on this issues, he or she has the background and credentials to make his or her ideas a reality, keep crime down and run the district attorney's office.

There are similarities between candidates on the core issues," said Vance. But he said his life as an attorney gives him the understanding and experience" to lead an office with 500 lawyers. Saying he has spent decades representing individuals and businesses in legal cases, Vance said that "is very different than doing policy work," as Aborn has done, "or being a judge" like Snyder.

"When we sum up each time, we don’t sound all that different, but I've been saying it for four years," Snyder said. As the oldest candidate - and the only one who has been a judge as well as a lawyer and prosecutor -- she repeatedly cites her record.

Aborn tries to make that beside the point. While saying he "respects Leslie's long and deep experience in the courtrooms, he "said he sees the district attorney as having a broader role" -- one that he would use to take on non violent crime in a new way.

How the Race Shapes Up

Going into the final two month of the contest, Snyder may have a slight edge. She has raised the most money -- $1.45 million -- followed by Vance with $1.26 million and Aborn with $1.1 million. But $100,000 of Vance's war chest comes from the candidate himself.

At least publicly, Aborn's camp remains upbeat about the numbers. Campaign spokesperson Alexis Grenell told the Post, "It's simply astonishing that with the other candidates getting a two to four years head start in fundraising, Richard Aborn is tied with them in fund raising."

Polling numbers also show Snyder ahead, followed by Vance and then Aborn.

Snyder's role as the only woman in the race -- if elected she would be the first woman ever to hold the post -- may give her a boost, according to some observers.

"Gender plays a role in Manhattan politics," said political consultant Hank Sheinkopf. In addition, Snyder ran before, got the endorsement from the New York Times and "calls herself a fighter for social justice," which are "buzz words" that Sheinkopf said tend to work. Meanwhile, he said, Aborn is hoping to wrest the left away from Snyder, and "Vance is trying to find a place where he can stand between them."

Consultant Joseph Mercurio also sees Snyder as holding the advantage -- parts of Manhattan, he noted, "tend to be a magnet for professional women from all over the country" -- but think Morgenthau' s endorsement also gives Vance "a substantial edge."

Both consultants predict a small turnout in the primary, meaning the race could turn on who votes and what motivates them. If it is women, Mercurio said, that could win the race for Snyder. Elderly Manhattanites, on the other, hand could be swayed by Morgenthau's endorsement and turn out for Vance. If it comes down to voters on the Upper West Side, that could boost Aborn. Having a race among lawyers in a borough with so many lawyers adds yet another dimension. Then there is the question of who the Times might endorse.

This is a race for an important office, Mercurio said, but he predicted, "Little things will make an enormous difference."

Parents in Prison, Children in Foster Care


Photo (cc) Robert Crum

Jacob Gunther was just a toddler when the state removed him from his home. But when he finally reconnected with his mother as a teenager, dim memories flared into painful recognition.

Although Gunther was living at the time with a new family -- a couple who had adopted him out of foster care -- seeing his mother again linked him to a past he would never grow out of.

Since their separation, according to Jacob's recollection of that time, she had spiraled deeper into drugs and poverty, giving birth to more children along the way. Mired in a crack addiction, she spent years cycling through jail and rehab.

"I remember leaving from seeing my mother at that visit and feeling like shit," he recalled in an interview. "And that's probably the reason why I started selling drugs. It's connected in some way. I felt like, I'm just going to the dark side. ... That's what's going to become of me."

About a decade later, Christina Voight returned from Bedford Hills Correctional Facility in Westchester to her son Lance, ready to start over after about four years of separation. But Lance, who had grown up at Hour Children, a group home run by nuns, didn't recognize her as his mother.

"I thought she was just this lady who wanted to take me," said Lance, now 12, in a recent interview.

His mother was confused, too.

"I was just like, 'What did I do to him?" Voight recalled. "You know, full of blame, which a mother coming out shouldn't have." She thought to herself, "Maybe I should have just not come home to him."

The intersection of the child welfare and criminal justice systems is as complex as the relationships entangled in it. The prison system wasn't designed for families, but it nonetheless holds hundreds of thousands of parents including many who were their children's main caregivers. Likewise, the child welfare bureaucracy wasn't designed to deal with crime, but the many of children in its care are refugees from their parents' clashes with police, courts and prisons. (For more on the many connections between the two systems, see Michelle Chen's previous story, A Tangle of Problems Links Prison, Foster Care.)

Custody of the State

Federal data indicates that one eighth of all children in homes investigated by child welfare authorities have a parent who was recently arrested. A smaller but significant percentage of currently incarcerated parents report having a child in foster care.

Whether or not these "dual-system" families eventually reunite, both child welfare and law enforcement leave an indelible mark on parents and children. Despite recent reform efforts, the tangled knot of the courts, prisons and foster care brings together problems that are too deep for any one of those institutions to solve. Both the criminal justice and child welfare systems have come under similar criticisms from community advocates.

Although child protective services are supposed to remove children from their families only to prevent harm or abuse, critics argue that foster care often unnecessarily traumatizes children by cutting them off from their communities anddisrupting their schooling. Similarly, advocates say children with incarcerated parents frequently struggle with feelings of stigma and shame, on top of their household's legal and financial hardships. Research shows that a family's contacts with child welfare and criminal justice don't always happen simultaneously, but the two types of intervention nonetheless have similar origins and compound each other's effects.

There are common risk factors for both systems, including domestic violence, drug use and poverty. Sometimes, a police encounter itself is enough to prompt the removal of a child, since a parent's arrest may be considered a form of "neglect."

In her research on dual-system families, Susan Philips, a professor of social work at the University of Illinois-Chicago, pointed out that entry into foster care tends to be driven more by overarching crises besieging the household, rather than just by parental arrest or incarceration. Compared to other young people in households in the child welfare system, those with arrested parents experience a greater number of overlapping problems, such as mental illness and substance abuse.

"The criminal justice and the child welfare systems are the two most powerful systems in this country when it comes to families," Phillips said. "And I can't help but think that legislators [could], if they chose to, force those two systems to sit down and figure out how they're going to stop this pinging back and forth between the two systems."

Both institutions have begun to shift their efforts toward prevention in recent years. Following a nationwide trend, New York City's Administration for Children's Services has sought to reduce the number of children in care by shifting policies to emphasize preventive services and reunification. In the criminal justice system, too, Bedford Hills has developed programs that provide incarcerated parents with advocacy and supportive services to help them deal with child welfare and family court. Nonetheless, to the families forced apart by government intervention, even a softer touch can feel brutal.

The Lingering Effects

When Jacob Gunther was removed from his home in the early 1980s, his mother was using heroin and struggling to care for nine children on her own; his father was in prison. According to memories and anecdotes he later gathered from family members, city child welfare authorities took the children after they were left unattended at home. He and his brother, who are black, were placed with an older black couple, while their siblings were scattered to different caregivers.

The couple eventually adopted Jacob and his brother. On paper, that met the child welfare system's goal of moving youngsters into permanent homes. But the boys' state-approved home didn't bring stability, just discipline -- in the form of regular beatings that his new parents meted out to keep them in line.

Jacob Gunther's journey through the system was not exceptional. In the 1980s, as drugs and blight devastated inner-city neighborhoods, child welfare and police activity reached epidemic levels. In poor black and Latino communities, the government routinely left households like the Gunthers deprived of parents, children or both.

By 1998, according to a report by the Center for an Urban Future, one out of every 22 black children and one in every 59 Latino children in New York City were in foster care, compared to just one in every 385 white children.

Studies of the long-term impact of child welfare and law enforcement interventions reveal a cruel cycle spanning generations. In her book Shattered Bonds, Northwestern University law professor Dorothy Roberts noted that many black foster care children, marginalized and neglected by the system, wind up in the juvenile justice system as adolescents. "These institutions serve a similar function," she wrote. "Both use blame and punishment to address the problems of the populations under their control."

The criticisms of institutional racism in child welfare still resonate today. Black children remain starkly overrepresented nationwide, and more recently, advocates have raised alarm about children of immigrants streaming into the system as their parents are swept up in federal immigration raids and threatened with deportation.

The aftermath can ripple throughout a child's life. A national study of foster care "alumni" by the Annie E. Casey Foundation found that about one in five former foster youth had experienced homelessness within a year after leaving foster care and that they suffered from high rates of alcohol and drug dependence.

Gunther found his own way to wrestle with his problems. Around the beginning of high school, he and his brother reconnected with some of their estranged brothers and sisters. When hanging out together, he said, "We felt safe."

But rekindling old family ties didn't stop the rest of his life from unraveling. He recalled skipping school and getting into all sorts of trouble in the neighborhood with the other kids. His relationship with his adopted parents deteriorated further, and the trauma of seeing his mother again drove him toward a familiar path of turmoil. His involvement with drugs and gang activity led to a stint at a youth detention center. Labeled by the state as a delinquent, he bounced back into foster care.

Today, at 32, Gunther is finally clean and on his way to completing a probation sentence for a drug conviction. He's slowly repairing his relationship with his mother, who now works as a substance abuse counselor, and with his father, who is now out of prison.. To help him reconcile his present and past, he has begun work on a documentary film about his ongoing search for a brother, Destiny, the only sibling he has not yet reunited with.

Yet he still struggles not to get too close to his memories. "The gravitational pull to do something bad is always there. So I'm kind of like, relearning," he said. "I'm reparenting myself, so to speak, without parents."

Missing Mom

With a seriousness in his voice that makes him sound older than his nine years, Ruben Rivera remembered the moment he met his new foster family.

"When they came and took me home with them," he said, "I thought they were kidnappers."

He was confused when workers from the Administration for Children's Services took him from his aunt's house. At first, he said, he thought it was because he didn't get along with his parents. Later, he said, his aunt explained, "It was really my mom that messed up."

Ruben's childhood memories are colored by encounters with prison and family court. But in contrast to the chaos Jacob Gunther experienced, Ruben's family learned to navigate the prison and child welfare systems to slowly, and haltingly, piece itself back together.

Like Cristina Voight's son Lance, Ruben began his life at Hour Children. His mother Carol placed him there soon after she gave birth to him while serving time at Rikers. After her release, she reunited with Ruben and his father, Tony. The next several years brought bouts of addiction, treatment and relapse. After Carol was found passed out in the hallway of a shelter, the city removed Ruben and his newborn brother Jose, citing neglect. Carol was eventually arrested for snatching a purse and incarcerated again.

For Tony, the trauma of losing both his children and his wife within a few months "destroyed" him. He relapsed briefly after his sons were taken away. But Ruben's aunt went through a lengthy licensing process to become the children's formal foster caregiver, and the boys were reconnected with the family while Tony cleaned himself up. He now lives with his sons and holds a job at Hour Children, awaiting Carol's release next year.

Tony sees Carol's imprisonment as a crisis that had to happen. Before the children were removed, he recalled, children's services had pressured her to get clean and stable, but she wasn't able to stick with treatment. "The thing about prison -- she's safe," he said. "That's what I wanted ... whether it was prison or program, you know, as long as she's off the street, and she's able to redeem herself, [that's] what I want, for the kids."

Advocates for child welfare reform say agencies too often fail to intervene early, letting families spiral into crisis until foster care becomes the only option to keep children safe.

"We should be working with the people involved in these systems before or at least at the very earliest part of their incarceration,” said Denise Johnston of the Center for Children with Incarcerated Parents, a national research and social service group. “And at the same time, we should be working with children at the beginning of the developmental process and not somewhere in the middle or at the end [of childhood]. It's too hard at the end.”

Growing Together

When Voight was released from prison, she thought her most wrenching struggles were behind her.

Both her incarceration and her pregnancy had stemmed from a violent relationship. It was her abusive former partner who got her arrested on charges of arson. She fought a fierce battle in court, but was ultimately sentenced to several years, getting locked up shortly after becoming pregnant.

While in prison, isolated from her family, she arranged with the Administration for Children's Services to place Lance in foster care while she completed her sentence. But then a new state policy pitted her against a deadline that threatened to permanently sever her parental rights. New York had just implemented a strict new timetable for foster care cases under the federal Adoption and Safe Families Act, which mandates in most cases that the state seek "permanent" placement for a child after about 15 months in foster care. If the parent is unable to reunify with the child -- because the mother is serving a long prison term, for example -- the policy typically pushes foster children toward adoption.

As the time frame closed in on Voight, Lance was slipping away from his mother in other ways. Though he was living in a certified foster home, she noticed during visits that he sometimes appeared emotionally distraught or filthy, his skin raw from a urine-soaked diaper.

Voight eventually sued the city for neglect, regained custody through a legal settlement and placed Lance at Hour Children. But after surviving abuse, prison and the maze of child welfare, Voight faced her toughest challenge yet as a mother: reintroducing herself to her son.

"When I came home, he didn't want to touch me, feel me, nothing," she recalled. "Because I think he was so worried I was going to take him away from his 'mom' [the nuns]."

With support from the nuns at Hour Children, Voight worked back toward Lance in increments. She would start "by picking up his fork, or giving him a hug or sitting next to him or staring him in the eyes," she recalled. "Every day I got five more minutes, or ten more minutes."

Even after rebuilding her relationship with her son, Voight remained for several years at Hour Children, which provided housing support while she earned a graduate degree.

Since leaving prison, Voight has become a prominent social justice advocate, focusing on issues facing incarcerated women and parents and reproductive rights. Still, though her experience has been channeled into activism, it has left an undercurrent of fragility in her family life.

Parents who have raised their children from birth, she said, have "that security of, 'No one's gonna take my child away, I know my child, I've been with my child, I've seen my child.'" But for her and Lance, she said, "That's what's missing. Because I often wonder, 'What would have been, if you would have been a regular baby, and I would have grown up with you?'"

Michelle Chen is a freelance writer and a native New Yorker. This article is part of a series that will explore the connections between the criminal justice and child welfare systems in New York City. The project is supported by a fellowship from the Center on Media, Crime and Justice at John Jay College of Criminal Justice.

Political Intrigue in a Personal Injury Case


When Jashar Maliqi, 43, left Kosovo and entered the United States in 2003 via Canada, he possessed no valid documents authorizing him to be in this country. In other words, he was here illegally. And he was here to seek political asylum.

Immigration proceedings eventually began. They continued as he brought a personal injury case resulting from an accident he suffered while employed as a painter at 17 East 89th St. in Manhattan. Maliqi claimed a large mail cart was negligently handled by a building porter and fell on him causing serious back and neck injuries requiring major cervical surgery.

As Maliqi pursued his claim, the immigration case and the personal injury suit became intertwined. According to plaintiff's lawyer, the immigration issue became the focus of the civil case with defendants referring unfavorably to Maliqi's name and making references to Sept. 11, 2001.

The Plaintiff

Justice Dominic Massaro of New York State Supreme Court in the Bronx, described the case of Maliqi v 17 East 89th Street Tenants In., as having "a backdrop of political intrigue" which formed the basis of his federal application for asylum. During the war following the dissolution of the former Yugoslavia, according to court records, Maliqi, an ethnic Albanian, was arrested, threatened and beaten by Serbs. Eventually forced from Kosovo, Maliqi relocated temporarily to Albania. His father, who remained in Kosovo, was killed. Maliqi then returned to Kosovo under the protection of NATO but was again persecuted because of his political activities. He fled to the United States.

Although Kosovo eventually became an independent nation, under the Albanian majority factionalism is rampant, according to Brooklyn Justice Gustin Reichbach who served as a judge in Kosovo under the auspices of the United Nations.

Injured and Undocumented

The issue of worker lawsuits claiming future damages had not before been raised in the context of political asylum. The question of whether juries could award future lost wages to injured, but undocumented, workers had previously been settled in 2006 by the state's highest court, the Court of Appeals in Balbuena v. IDR Realty LLC. In that case, intermediate appellate courts had come to opposite conclusions, with the one in Manhattan ruling undocumented workers could not be compensated for future wages lost, while the Brooklyn court ruled they could. The highest court agreed with theBrooklyn ruling.

"The primary purpose of civil recovery in a personal injury action . . . is to compensate the worker for injuries proximately caused by negligence or the violation of statutory safety standards," the court said.

The defendants in Balbuena had argued that an award of past and future wages to an undocumented alien worker expressly conflicts with federal immigration law and implicitly undermines the objectives that Congress sought to achieve when it adopted the nation's current immigration policies.

The top court rejected that theory saying, "New York's Labor Law applies to all workers in qualifying employment situations, regardless of immigration status. Limiting a lost wages claim by an injured undocumented alien would lessen an employer's incentive to comply with the Labor Law and supply all of its workers the safe workplace, the legislature demands. ... Precluding lost earnings damages for undocumented workers would undermine the State of New York's critical interest in promoting safety for all workers."

Since that decision, the law in this state is that undocumented workers are entitled to compensation for workplace injuries. In Maliqi's case, the defendant building owners argued that plaintiff's injuries were pre-existing and were not caused by them. They did not want jurors to hear evidence of the plaintiff's projected future lost wages and medical expenses. They argued that, if Maliqi's asylum petition was ultimately denied and he was deported to Kosovo, he would not have access to the lost income or the expense of costly medical bills he would have had in this country. On the other hand, the plaintiff did not want evidence before the jury implying that he was here illegally or working illegally.

The Judge's Instructions

Massaro concluded that under existing immigration law while his asylum plea was active, the plaintiff was legally present in the U.S. and legally employed. He invoked Homeland Security regulations that permit asylum seekers to work while their applications are pending, "to alleviate financial hardship." Massaro determined, "Under no circumstances may defendant assert that plaintiff was working illegally at the time of the accident."

The defendants also were barred from arguing that Maliqi's status prevented the jury from awarding future damages. But, at the same time, the jury was instructed that plaintiff's immigration status is not illegal, they also were told that it is nevertheless relevant.

Massaro did allow the jury to consider what economic effects the injury would have on Maliqi if he returned to Kosovo -- if his asylum petition is denied and he is deported. The court instructed the jury that immigration status was relevant in the sense that the jury could consider "the economic realities if plaintiff is ultimately not permitted to remain in the U.S." So, for example, the jury was allowed to "consider the effect on plaintiff's wage earning ability and required medical costs in the event he is required to return to his homeland."

The jury then would be expected to consider whether Maliqi would be returning to his home country. Apparently they concluded that he would be denied political asylum here and would be deported because they reached a verdict in his favor, but awarded damages only for the past and not the future, giving him $1.68 million with no future damages.

The defendant's counsel, Patrick J. Crowe of Crowe & Fassberg called the award "excessive" and has asked the judge to reduce it. According to Crowe, awarding no future damages was a proper result even though he conceded that Maliqi "will not be able to do painting or heavy lifting again" and does not have language skills for more sedentary jobs.

Plaintiff's counsel, Albert Dauti, of The Dauti Law Firm, said that, even if the jury believed that Maliqi would be leaving this country and so rejected the future wage claims, they should have made an award for future pain and suffering, because "he will be in pain wherever he is."

Emily Jane Goodman is a New York State Supreme Court Justice

Staying Out of Jail -- and in Upper Manhattan


Photo (cc) Netream

Every year, hundreds of inmates released from New York State prisons return to the streets of upper Manhattan. Many will not remain in the neighborhood for long. Instead, they will do something that puts them back behind bars again.

Despite the decline in crime over the past several years, upper Manhattan neighborhoods carry the heaviest burden when dealing with an aftermath of crime: reintegration of former offenders. Of all parolees returning to Manhattan, almost half go to upper Manhattan, according to the state Division of Parole. And in East Harlem between 119th Street and 126th Street, where more than 108,000 people live, 1 in 20 men have been incarcerated at some time, reported the Justice Mapping Center.

Spates of gun violence north of 96th and 110th Streets contribute to a murder rate quadruple that of the rest of Manhattan, the Upper Manhattan Reentry Task Force has found. Meanwhile, more than 45 percent of families in the 15th Congressional District, which includes Upper Manhattan, have a household income of less than $35,000.

For the average resident, the poverty and crime can add up to a tough situation. Parolees looking to start anew can face even greater hurdles as they try to avoid becoming become another recidivism statistic. Several programs, private and government-sponsored, have popped up uptown to address the needs of the formerly incarcerated. The goal: Keep them out of prison.

Jailhouse Learning

New York's jails and prisons offer various programs to inmates, including vocational and emotional, helping them adjust and prepare for life outside. Joseph Fargas tried that. Serving time for a gun charge, he joined classes on building maintenance, horticulture and anger management. But he got kicked out of each one for "acting crazy and starting fights," he said. Jail life seemed to foster more criminality.

"You put a person in a medium [and] the medium is a bunch of little kids running around acting stupid. I wasn't in that mind frame, but being in that medium, it makes you want to smack flames out of somebody," he said.

At Harlem Reentry Court, Braulio Rodriguez shows off photos of the floor covering skills he picked up in prison. Employment is one of his major obstacles in his transition to freedom.

Braulio Rodriguez, though, took advantage of classes in prison. He showed off the snapshots of his flooring work. In pictures, the retiled bathroom, faux fireplace and parquet floor look like they could be in any middle-class home. But, in reality, the floors were small spaces in upstate Cayuga prison set aside to teach inmates like Rodriguez how to install floors.

His opportunity to learn floor covering came, he said, after police caught him with cocaine. He said he was holding the drug for his brother, who was later deported to the Dominican Republic for his role in the crime. Rodriguez, from Washington Heights, spent 18 months in Rikers and 18 months in Cayuga.

"All my life I worked in the bread industry running routes," said Rodriguez, 28. "And when I went into jail they didn't have that," he said with a chuckle.

A dropout at 16, Rodriguez began academic classes in prison at only a fifth-grade level. He went on to get his GED in prison and also enrolled in a Cornell-sponsored course in international relations. His grade: B-.

Research by the Department of Correctional Services linked a decline in recidivism with college courses in prison. Despite that, the state does not budget funds to programs beyond high-school level. Of New York's 70 facilities, only 17 offer college programs. Only one program, in Wyoming prison, receives any kind of state support in the form of money. Federal grants, foundations, volunteers and private funding prop up the others.

Job Search

With or without an education, released inmates return to no jobs or housing and to the same settings that led them to crime. This all makes it difficult to change. About 49 percent of those arrested in upper Manhattan had previous convictions, higher than the rate in the rest of the borough, reported the Upper Manhattan Reentry Task Force, a partnership of public, private and community-based groups.

Even with his job training and course work, Rodriguez cannot find a job. Paroled in November 2008 and armed with his new floor-covering skills, Rodriguez is advertising his work on MySpace. Through the site, Rodriguez, the father of two, got a job redoing a bathroom. He also recently completed work on a kitchen, he said. But he hasn't found a steady, long-term job in floor covering, or anything else. He thinks it has something to do with his record.

"That question, have you been convicted of a crime? There should be a follow-up, like what did you do in prison? How has your life changed? And what skills did you develop in prison?"

To foster job creation, the state has offered financial incentives to employers. The Work Opportunity Tax Credit allows employers to claim up to $2,400 in tax credits when they hire former felons.

A federal-state incentive, the Federal Bonding Program, offers free insurance for six months to employers who hire one-time inmates. Some employers may think former convicts pose a business risk, that, for example, a person arrested for burglary could rob the business. The insurance protects the employers and gives the former prisoner a chance to work.

An incentive program helped Fragas. After he left Rikers on parole, he quickly found work in maintenance at a Brooklyn grocery store that receives incentives for hiring ex-convicts. Employer-employee benefit programs could help other parolees in upper Manhattan, where, the reentry task force found, they are more likely to be unemployed than parolees in other parts of the borough.

The task force also plans to educate local businesses about reentry, said Kate Krontiris, the group's coordinator and manager at the Harlem Community Justice Center. This would familiarize the owners with parolees and possibly lead to new hires.

Providing Help

Employment and housing often go hand-in-hand. Six percent of parolees in upper Manhattan lived in homeless shelters last year, according to the Division of Parole. Finding a New York apartment is hard for all, but former convicts face even more obstacles. The New York City Housing Authority "has the right to deny persons with criminal records residency in order to provide a safe environment for all residents," its Website says.

Without housing, the chance of a former convict reverting to crime increases, according to some experts.

In Harlem, Exodus Transitional Community helps former offenders find jobs, which can lead to settling into a better living situation. The group began as a vision from inside a prison. Now it is a faith-based non-profit recognized by former President George W. Bush for its work in reentry.

Exodus offers practical services, such as food, Internet access and resume-building workshops. It also pushes the former convicts to set goals, involving fitness, spiritual concerns and relationships, said Alvin Valentine, a former inmate and an Exodus contract coach. Of Exodus' 263 participants in 2008, 123 found jobs, according to the group's data.

Before coming to Exodus, "I never had a job a day in my life and never had a desire to," Valentine said. "They gave me hope."

Joseph Fargas must regularly meet with his parole officer at the Harlem Reentry Court as he reintegrates. "Right now, my focus is staying out of jail," he said.

Other organizations offer housing. The Fortune Society's Fortune Academy in West Harlem provides beds and food to homeless reentrants. Further uptown, Assemblymember Adriano Espaillat, whose district covers such neighborhoods as Washington Heights and Inwood, said he is considering halfway houses as an option for reentrants.

To reduce recidivism the city uses 311 to reach out to ex-offenders. One call to the city's free line provides information on organizations that offer reentry services, including counseling, job training and housing.

The Lure of the Street

Jobs and housing do not exist in a vacuum. Some say the environments that lead to incarceration must be addressed, too. Upper Manhattan residents cite a slew of deep-seated issues, including gangs, drugs and poverty, that lead to crime in their neighborhoods. Others attribute high parolee rates to heavy police involvement in the mostly minority neighborhoods uptown.

Some former inmates tell tales of poor education and broken relationships, which led to bad choices and incarceration. Fargas used to run the streets of East Harlem toting handguns and hustling. "I was inspired by fast money, fast life," he said.

His first arrest was for assault -- at 13. Fargas' last arrest was for possession of a German Luger, he said. Now 21, Fargas said he didn't know his father growing up, so he sought comfort in the streets. He joined the Crips gang. He smoked pot. He was shot. He was stabbed. He almost died, he said. That was his life -- a dangerous one.

"I saw people gang banging, I gang banged. I saw people shooting, I shot. I saw people selling drugs, I sold drugs," he said.

Fargas' tale resembles many: Children and teens, looking for a connection to someone, wind up on the streets getting their hands dirty.

Working with youth can play a big role in keeping kids from getting involved in crime. Espaillat's office participates in the city's summer job youth program and supports a myriad of after-school programs in his district.

In his district, where gang violence is emerging as a serious problem, Espaillat said he wants to get to kids before they get in the gangs. In collaboration with police, he said his office talks with families about how to recognize the signs that their children are getting involved in a violent gang.

At Exodus, volunteers mentor children of inmates to help them develop life skills and prevent their chances of repeating the criminal cycle and going to prison themselves. "There is a lot of data to suggest that the absence of one's parent increases risk for some -- not all -- kids of the incarcerated," wrote Krontiris.

Fargas said he's not interested in the gang life anymore. If he falters back into a life of crime and commits a felony, depending on the severity and circumstances, he's facing at least two years and at most life in prison. So, Fargas has a job, abides by the conditions of his parole and regularly appears in Harlem Reentry Court. Fargas says his mom is proud of his turnaround.

The Parole Rules

Some reentrants find the turnaround more difficult. Of offenders released in 2004, almost four in 10 returned to prison within three years. More than 28 percent of the recidivists were sent back because of a parole violation, according to the Division of Criminal Justice Services.

An upper Manhattan parole officer, who asked not to be identified, said she wouldn't violate a parolee for a minor incident, such as a traffic ticket or being approached by a police officer. Instead, she said, she sees her job as balancing the legal and social work aspects of managing her parolees. She said she recommends them to educational or substance abuse programs and advises them on how they can best succeed in their transition.

She also views her job as a way to protect the community. And when a parolee repeatedly misses curfew or moves without notifying her, she has to put her foot down.

"At the point where he refuses to listen, I know I care more about his freedom than he does," she said. The 11-year veteran added, "They're not all trying to be good. Some people are used to living their life the way they have. They don't see anything better."

Fargas said he's fine with abiding by the conditions of his parole, but one mandate does bother him. "How can you tell me I can't be around my co-defendant when he lives in the same building as me?" he said. "We grew up together."

New York's Gun Battle


Photo (cc) .::LINUZ::.

Ten-year-old Naiesha Pearson was happily playing with other children at a Bronx playground during a Labor Day picnic on the day a bullet meant for someone else tore into her chest. Two men in their early 20s had gotten into an argument earlier in the day, and one of them decided to resolve it with gunfire. Naiesha was struck by one of the bullets. Her grandmother fainted, and fights broke out as onlookers tried to attack the shooter. Naiesha was taken to the Lincoln Medical and Mental Health Center where she was pronounced dead. Leonardo D'Eaza, the target of the shooting, was brought to the same hospital in critical condition; he survived.

Reporters quickly latched onto the story. "There was a lot of media hoopla afterward but they were quickly on to the next story," says Gloria Cruz, Naiesha's aunt. "It seemed like nobody cared, like there was no support."

That feeling of emptiness led Cruz to call New Yorkers Against Gun Violence. Cruz asked if they had a chapter in the Bronx, and when she found out they didn't, she started one.

Earlier this month, Cruz stood with hundreds of mothers and other relatives who had lost family members to gun violence. The people who marched in the rally represent the everyday fallout from the illegal guns that are prevalent throughout New York City's underprivileged neighborhoods.

New York City has some of the strictest gun laws in the nation, and, under Mayor Michael Bloomberg, the police department has worked to strictly enforce them. Despite that in communities like parts of the Bronx gunshots regularly claim the lives of innocent bystanders as illegal weapons continue to pour into the city. If the city is to further reduce gun violence, it will need help from the state and federal government.

That assistance has often proved fleeting at best. New Yorkers Against Gun Violence executive director Jackie Hilly said that for many of New York State's politicians the issue of controlling illegal guns and monitoring who is allowed to carry a gun has become one they deal with "from tragedy to tragedy." "Their attention is so episodic that we don't get strong policy," says Hilly. "To get solid policy we need solid leadership."

Bloomberg's Crusade

Hilly says that the most consistent leadership on gun issues comes from Bloomberg and Mayors Against Illegal Guns, the organization he formed with Boston Mayor Thomas Menino. The group boasts 340 mayors from across the country who want to stop the flow of illegal guns.

Bloomberg's push to rid New York City of illegal guns has seen results. The number of guns recovered from crime scenes in the city dropped by 13 percent from last year. The number of people shot to death dropped from 347 in 2007 to 292 in 2008. Overall, murders increased from 2007 to 2008, but only due to an increase in crimes committed with knives.

Besides law enforcement initiatives that target high crime areas and gun buy-back programs, New York City has moved to tighten its already strict gun laws. In 2006 the City Council passed legislation that established a gun offender registry, which allowed an individual to purchase only one handgun in a 90-day period, and required gun dealers to inspect their inventory and report inventory losses to the police twice a year. Pistol permits in New York City, unlike those in most other localities in the state, expire every three years and must be renewed.

While this sort of action might have drawn massive outcry upstate, these measures were relatively uncontroversial.

Bloomberg's fight against guns has taken him farther afield. Concerned about the flow of illegal guns into the city in 2006, the mayor authorized private detectives to go to Pennsylvania, Virginia, Georgia, Ohio and South Carolina to see if dealers illegally evaded gun regulations. In particular, the detectives were investigating whether dealers knowingly took part in so-called "straw purchases," where one person fills out a gun background check but then gives the gun to another person.

As a result of the sting, the city filed lawsuits against 27 gun dealers. Bloomberg's strategy ruffled the feathers of Virginia politicians, who moved to pass legislation to ban this type of investigation, and of gun enthusiasts, who held gun raffles and giveaways in Bloomberg's honor.

Bloomberg's criminal justice coordinator, John Feinblatt, said the lawsuits "ended in settlements across the board." Dealers agreed to have gun sales videotaped and to submit to a database that would flag purchases made by someone who had previously purchased a firearm that was later used in a crime.

Critics say Bloomberg has been successful in his fight against illegal guns at the expense of civil rights. The National Rifle Association has dubbed Bloomberg an "evangelist for the nanny state" and charges that his actions infringe on the Second Amendment that guarantees the right to bear arms. Further, the group says, his support for databases and checks violate a citizen's right to privacy. They say that Bloomberg is trying to extend New York City style gun control to other localities with different attitudes about firearms.

"I think this is mostly an ego thing for him," said Jacob Rieper, vice president of legislative and political affairs for the New York State Rifle and Pistol Association. "If gun control really worked, New York City would be a utopia. And it's not."

But criticism hasn't stopped Bloomberg. This year, he financed a commercial that ran in Virginia criticizing the presumptive Republican candidate for governor, Robert McDonnell, for supporting what the mayor calls a loophole in Virginia law that allows private dealers to sell guns without background checks. The commercial featured the brother of a woman who was killed in the Virginia Tech massacre.

Focusing on the State

Feinblatt says that Bloomberg also has focused on implementing changes in New York state law. This is in keeping with a 2008 study by the Legal Community Against Violence that said, "In the absence of comprehensive federal legislation, it is up to state and local governments to adopt policies to prevent gun violence." The study found state laws to be effective in addressing gun issues that federal law does not, "and can act as a catalyst for the broader reform our country needs."

In New York, though, gun laws tend to be more controversial at the state than the city level. This became apparent earlier this year when Gov. David Paterson chose then Rep. Kirsten Gillibrand to fill the Senate seat left vacant by Hillary Clinton. Gillibrand, a Blue Dog Democrat from a rural upstate district, sported an A rating from the National Rifle Association. Gillibrand's stance drew outcry from many New York City and suburban representatives who felt she was insensitive to the effects of gun violence on their constituents. The conflict highlighted the divide between upstate and downstate New York on issues of gun law.

On April 3, though, the conversation shifted when Jiverly Wong walked into the American Civic Association in Binghamton and opened fire, killing 13 people and spitting 99 shots from his two pistols in just minutes. The State Assembly moved quickly to pass legislation proponents say will help police prevent and investigate gun crime.

"They always have to wait until they have some tragedy to come out to exploit to push their agenda," says Rieper.

Identifying Ammo

The package before the legislature includes a bill that requires any semiautomatic pistol delivered or manufactured by a gun dealer in New York be capable of microstamping ammunition by 2011. Microstamping marks bullets fired from semiautomatic weapons with the information of the gun that fired it.

The microstamping bill, which was sponsored in the Assembly by Assemblywoman Michelle Schimel and in the Senate by Sen. Eric Schneiderman is the Bloomberg's number one gun legislation priority, according to Feinblatt. "What do criminals leave behind at the crime scene?" asks Feinblatt, "Gun casings."

Legislators have taken a cue from Bloomberg by insisting their legislation will help fight crime.

Schimel said that microstamping would give police the tools they need to solve gun crimes, 40 percent of which go unsolved every year. "Microstamping is a crime prevention issue. It is not gun control. This is evidence-based crime prevention," she said. The legislation has the support of a wide range of law enforcement groups including 70 police and sheriff departments across the state.

But opponents say that microstamping is unproven. "This is basically being pushed by one small company that hasn't exactly perfected it yet," said Rieper. But even if it did work perfectly, he said, "All it is going to do is point police back to the person who originally bought the gun. It could have been sold or stolen. It's not going to prove anything."

Opponents cite a study by the University of California at Davis that shows that the technology only works 54 percent of the time. They also complain that microstamping might negatively influence gun owners' ability to resell guns that are not equipped with the technology.

Limits on Licenses

Another bill would require that state handgun owners renew their licenses every five years. While pistol permits in New York City expire after three years, in some places in the state licenses last for a lifetime.

Some critics say the bill is a money grab designed to get gun owners to cough up licensing fees every five years. But Schimel, who is from Nassau County, disagrees. "I called the pistol permit division the other day and said, 'This is a money grab, right?'" Schimel said. "They said, 'No, we really want to know who has the guns out there.' They believe that it works."

According to Rieper, the measure aims to deter gun ownership and will do little to make the public safer. "How many times does a licensed hand gun owner commit crimes in New York State?" asks Rieper, "I bet it is less than the number of state senators who have right now."

Assemblywoman Amy Paulin, who sponsored the bill in the Assembly, and Schimel both say that, just as drivers, physical therapists and a wide range of other license holders have to renew their permits handgun owners too should have to regularly demonstrate they still meet the requirements to hold their licenses.

To bolster their arguments for license renewal, advocates point to Jiverly Wong. In 1997, he received a license for the gun he used in Binghamton. During the years since, many who knew him said he displayed increasing signs of instability. Advocates insist that, if Wong had been required to relicense his handgun, authorities might have noticed his condition. Under the proposed new law, owners would lose their license if they moved out of state and would require the county that issued the license to track down any guns that are no longer licensed. Wong moved to California in 2001, only to later return to New York.

The gun legislation is now pending before the Senate, where Democrats have a narrow majority. While supporters tout them up as crime prevention initiatives, gun rights activists seek to turn the conversation into a discussion of upstate versus downstate values.

A State Divided?

Tom King, president of the New York State Rifle and Pistol Association, posts a blog about gun rights on the website of the Albany Times Union. "Before I begin, let me define Upstate and Downstate," wrote King in February. "Upstate includes the entire state except the five boroughs and anyone who embraces the traditional values of firearms ownership, hunting, shooting and fishing. Downstate is everywhere/everyone else."

King decried downstate's influence on statewide gun policy, noting New York City has its own gun laws. "We are not Downstate sheeple that need to be protected from violence, the weather or ourselves. We are descended from strong stock that came to this country to escape oppression," he continued. "This proclivity for the blood sports is a part of our nature," he said regarding hunting. King did not return calls for comment.

Feinblatt takes exception to the idea that gun legislation pits upstate values vs. downstate ones. "It isn't an urban issue, it isn't just a suburban issue and it isn't just a rural issue," he said. Mayors from upstate cities like Utica, Syracuse and Albany belong to Mayors Against Illegal Guns. And upstate cities like Albany and Buffalo struggle with gun violence.

This year's budget contains $4 million for a program called Operation SNUG that is specifically designed to target gun and gang violence in Buffalo, Rochester, Syracuse, Albany, Westchester County and New York City. "In cities across the state, our children are dying at the hands of gun violence, but through our commitment to SNUG, we can put a stop to that deadly trend now," said Senate Majority Leader Malcolm Smith during the unveiling of the program earlier this year.

Operation SNUG, modeled after Chicago's Cease Fire gun violence prevention program, focuses on direct intervention in communities where disputes all too often lead to shootings.

Passing further gun measures, though, remains a challenge. Austin Shafran, a spokesman for Smith, said that Smith supports the microstamping and permit renewal bills because, "they do not infringe on anyone's Second Amendment rights." But with a slim majority and a few rural Democrats who might oppose further limits on guns, Democrats will probably need the support of some Republicans to pass the measures. They say they have been reaching out not only to suburban and urban Republicans but also to rural legislators. They admit they do not know how successful these efforts will be.

Schimel, though, is confident. "I wouldn't be working as hard as I am if I didn't think it was a go," said Schimel. "Eric and I have not stopped since the legislation passed in the Assembly and we won't until we see them on the governor's desk."

Hilly and Cruz say they expect the specter of the Binghamton massacre to motivate politicians to find common ground. "It would be a real shame if our governor and Legislature didn't take action after what happened in Binghamton," says Hilly.

Meanwhile in Washington

Since 2006, Mayors Against Illegal Guns have been putting pressure on Washington to change laws they say restrict law enforcement's ability to stem the flow of illegal guns and prosecute dealers. Feinblatt said the issue has particular resonance for mayors. "Who are the people that get the calls at 3 a.m. that are going to break someone's heart?" Feinblatt asked. "It's the mayors."

The organization has focused on repealing the Tiahrt amendments, which put restrictions on how law enforcement can use the Bureau of Alcohol, Tobacco and Firearms gun-tracing database. The amendments also limit whom officers can share gun tracing data with and stops the ATF from requiring gun dealers to carry out inspections to insure no guns "go missing."

The National Rifle Association maintains that much of the information would not help law enforcement and can be misleading.

First introduced in 2003, the amendment is attached yearly to spending bills and for years became increasingly restrictive. In 2008, though, gun control advocates scored a victory by enacting a measure that allowed law enforcement to share gun trace data in related cases. It also gave the Bureau of Alcohol, Tobacco and Firearms some limited ability to release statistical reports using gun trace data to analyze firearm tracking.

This year advocates hoped that they might finally abolish the Tiahrt amendment completely. The Obama administration had said it supported doing just that.

Fear of Control

The administration's stance on gun control had sparked fear among gun enthusiasts. Following Barack Obama's election, gun rights groups and gun enthusiasts across the country were reportedly so nervous about the administration that they ran out to buy all the ammo and guns they could. Ammo became scarce in some states, and gun sales spiked.

For years polls showed that Americans support stricter gun laws. A 2001 Gallup poll, for example, put support for stricter laws at 54 percent. But a recent Opinion Research Corp. poll found only 39 percent of respondents backed stricter gun laws. Pundits say they think the drop can be tied to fears about the Obama administration's stance on guns as well as to a decline in crime.

But so far, it appears gun groups need not have worried. Congress kept the Tiahrt amendments relatively intact this year except for a change that allows state and local police departments to access the gun trace data when investigating individual crimes.

Bloomberg welcomed that change, calling it "an important step forward that will make communities across America safer." But Hilly said that the amendments make it illegal for law enforcement to share trace data with the public -- including government officials.

The Obama administration has already backed off on the reinstatement of the assault weapons ban that the Bush administration let expire in 2004. The new administration originally said it would push for reinstatement of the ban, but last month recanted, saying that the political cost of fighting the powerful gun lobby was too high. During a meeting in April with Mexican President Felipe Calderon, Obama acknowledged his administration favored the ban but admitted, "I think none of us are under any illusion that reinstating the ban would be easy."

For Cruz the issue of assault weapons is not political, it is far more visceral. She says a culture of retaliation has developed among young men in the Bronx who settle disputes by picking up a gun. "You have 14-year-old kids with AK47s, kids with semi automatics."

Cruz says she knows there will inevitably be more gun violence tragedies splashed across the front page while politicians wrangle over how to address the issue. But Cruz has faith that progress will be made.

"We wouldn't have the Brady laws if Jim Brady hadn't been shot with Reagan," said the woman who refuses to let her niece's death be in vain. "Terrible events can give birth to better things."

The End of the Rockefeller Era


Gotham Gazette image by Ya-Hsuan Huang

Thirty-five years after New York's criminal justice system was invaded by a misguided and counterproductive legislative scheme to fight the "war on drugs," there is finally some relief. The statutes known as the "Rockefeller Drug Laws," enacted in 1973 when Nelson A. Rockefeller was governor, have long been called draconian, the harshest in the nation and the end of judicial independence. They were based on long mandatory prison terms even in nonviolent cases involving small amounts of drugs, and judges were not permitted to impose sentences they believed better fit the crime and the accused. [For Emily Jane Goodman's essay on the Rockefeller drug laws, see Huffington Post.]

Now, after long and unprecedented organizing by community groups and criminal justice advocates, along with an aggressive push by elected officials and judges, some of the most onerous and destructive provisions have been removed or amended.

The Rockefeller Drug Law amendments, which were signed into law by Gov. David Paterson earlier this month, reflect a changing philosophy and approach to prosecuting nonviolent drug offenses in this state, especially first offenses, and even incorporate the view that drug addiction is a health issue as well as a legal problem.

Sen. Eric Schneiderman, who introduced the reform bill in the State Senate said, "New Yorkers have been clamoring for changes to these laws for decades and after careful deliberation, we finally achieved significant reform. By expanding the ability of judges to sentence drug-addicted individuals convicted of non-violent drug crimes to treatment, New York State is sending a message that there is a better way than our society's pattern of under-treating and over-incarcerating."

The goal of reform has always been the elimination of mandatory sentences, which forced judges to impose prison terms that ruined more lives than they saved, occasionally breaking the judge's heart at the same time. Some Supreme Court judges have cried as they were required to sentence a mother -- let's say, a first time offender -- to three years to life for carrying a package for someone else who may have misled her as to the contents. Any judicial departures from the mandatory minimums were swiftly reversed by appellate courts.

Now, judges can have that discretion.

The Fine Print

Under the revisions, a typical first offense possession case can result in a sentence of between one and two and a half years or an alternative sentence focused on drug treatment. If the accused has a prior record for a non-violent offense, the maximum becomes four years with treatment alternatives still possible depending on the details of the record. For defendants who previously committed violent crimes, the sentences increase and alternatives are eliminated. All of these sentences require intensive supervision for long periods of time.

The revisions represent significant changes to the sentencing scheme, in the approach to alternatives to incarceration, treatment and supervision. Now judges have the discretion to impose appropriate sentences, including drug treatment programs, without first obtaining the permission of district attorneys. Previously, district attorneys insisted on long periods of incarceration even when a defendant has an opportunity to be rescued from a life of crime by going to treatment instead of a cell.

The amended law provides a mechanism to divert certain eligible defendants into drug treatment. To be eligible, defendants must be non-violent, first offenders (sometimes second), who are not accused of the most serious drug felonies. The court may require the defendant to plead guilty prior to being referred to a community-based treatment program. An individual who fails to complete the program and abide by other conditions will then have to face the consequences of the guilty plea. A defendant who meets all the requirements may then be able to withdraw the guilty plea.

Judge Laura Safer-Espinoza, who presides in Bronx Treatment Court, which has functioned with the district attorney's approval, said such an approach has proved effective. "Over the last 10 years," she said, "I have seen over a thousand clients 'graduate' from our program. They have been drug free, compliant with treatment and working full time, enrolled in job training or back in school. Extending the treatment option to break the terrible cycle of drug abuse and crime is not 'soft on crime policy.' Defendants must plead guilty, undergo continuous monitoring by the court, and face serious penalties and higher sentences for non-compliance."

While the Rockefeller laws may have been directed at "drug kingpins," small time users -- most of whom are poor, and black or Hispanic -- felt the brunt of their effect. The reforms do not protect the big-time dealers or major traffickers, who can still be sentenced to 25 years to life. Cases involving violence, or defendants with records, violent or not, can still face heavy sentences.

Not the End of Rockefeller

For the last three and a half decades, when it came to drug offenses, the scales of justice have not represented our adversary system, with a prosecutor on one side, defense on the other and a judge in the middle. The shift, according to Gabriel Sayegh of the Drug Policy Alliance Network, came as prosecutors convinced the state's leaders "that judges are entirely incapable or incompetent to fashion appropriate sentences or actually do what their titles imply they should do - judge."

Even with the reforms signed, some still hold to that philosophy.

Councilmember Peter Vallone, Jr., a former assistant district attorney in Manhattan, wrote in the New York Post that the reform would turn New York into a "violent drug bazaar."

Daniel M. Donovan, the district attorney of Staten Island and the president of the state District Attorneys Association, told the New York Law Journal: "What you are doing is you're cutting out an essential part of the process, the district attorneys. And we are the ones that are elected to protect the public safety. And now we have been cut out of the process that helps insure that public safety."

Similarly, some prosecutors and legislators who oppose judicial discretion argue that New York City judges are not tough enough in sentencing drug users.

Beyond the criticism, some officials are still trying to work out how these reforms will affect the state's current prison population.

Individuals who were arrested before the law changed will, if convicted, be sentenced under the new law, and certain convicted felons can apply for re-sentencing. Some who are now in prison may also be able to apply for re-sentencing.

Elsewhere, even those who applaud the legislators and Paterson argue many addicts still will not qualify for treatment and rehabilitation. According to Donna Lieberman of the New York Civil Liberties Union, the changes "restore an important measure of common sense and rationality to our drug laws. But there is more work to be done in the future to restore fundamental justice and fairness to our criminal justice system."

It is too soon to know exactly how the details will work in drug treatment courts and state Supreme Court, but it is clear that we can say goodbye to some of the most egregious inequities of the old law.

Failed Justice: Convicted but Innocent


Photo (cc) mag3737
How does one move on from a wrongful conviction?

With Dr. Seuss's pink hardcover of "Oh Say Can You Say?" tucked under his right arm, Alan Newton politely follows the energetic students down Jackie Robinson P.S. 375's beige halls. The children scout out a class for Newton. It's Read Across America day and his chance to read aloud Seuss' book of clever tongue twisters.

Newton had arrived around 10 a.m. to help organize and direct volunteers. But now it is close to 1 p.m. and most of the classes received their readings earlier. Teachers have resumed their lesson plans. Newton missed his chance.

Newton has missed many chances in life. Now 48, he spent almost half his life in upstate prisons for rape, robbery and assault charges stemming from a June 1984 crime against a woman in the Bronx. Not until 2006 did DNA absolve him of the 1985 conviction. He was innocent.

Exonerated after spending 22 years in prison, Alan Newton waits in the hall of P.S. 375 after participating in Read Across America.

Newton's story is just one of hundreds nationwide that have weakened faith in the justice system. New Mexico Gov. Bill Richardson repealed the death penalty in his state in March, citing the potential for executing the wrong person among the many reasons.

Here in New York, the state bar association has begun identifying the causes of wrongful convictions in New York. In a recent report, an association task force reviewed 53 cases of vacated convictions. Its findings do not conclude that each was a case of innocence, but that errors and lapses in due process led to "a conviction [that] was wrongfully obtained."

A number of bills to address wrongful convictions have been proposed in the state legislature, and a previous attempt to expand the state's DNA database could have resulted in fewer conviction errors.

"No one benefits from a wrongful conviction. Not the police, not the prosecutor, not the judge, not the jury, not the victim," said Stephen Saloom, policy director at the Innocence Project. "The only person that really benefits is the perpetrator."

Causes of Wrongful Conviction

The 53 cases studied by the bar association represent only a sample of cases, although it's difficult to determine the extent of wrongful convictions in New York. The state Division of Criminal Justice Services does not keep track of wrongful convictions, said John Caher, the director of public information. Whatever the number, criminal justice experts and professionals agree that flaws in the system need to be addressed.

Newton's case exemplifies how things can go so terribly wrong. Soon after Newton's arrest, he said his then fiancée presented his alibi: Newton was in Queens with her at the time of the rape. But a Bronx store clerk identified Newton in a lineup as the male customer who trailed the victim out of the store. The victim, too, identified Newton. She chose him in a photo array as the man who forced her into his vehicle after she left the store, dragged her to a park and raped her, then stalked her as she tried to flee. He then allegedly brought her to an abandoned building where he raped her again and blinded her in the left eye with a box cutter.

Newton said in 1979 police had slapped him with a misdemeanor assault charge after he and his teenage friends grappled with an opposing group of teens. Five years later, his arrest photo was shown to the rape victim.

"Her testimony and the store clerk's testimony convicted me," Newton said. "That photograph is ultimately the reason why I'm here today."

Improvements in forensic science finally caught up with the evidence in Newton's case. Newton began requesting DNA testing on the victim's rape kit in 1994, nine years into his 13 and a half to 40-year sentence. Officials say they could not find the evidence.

The Innocence Project took up Newton's case. Since 1992, the non-profit legal organization has helped free 234 people based on DNA evidence, said a spokeswoman. Through its efforts, the kit was found in 2005 where it should have been all along, Saloom said.

Newton's case was among the 53 the task force studied. Mishandling of forensic evidence and/or not using DNA testing contributed to a wrongful conviction in almost half the cases. In most, as in Newton's case, which involved mishandling of forensic evidence and misidentification, more than one factor contributed to the wrongful conviction.

The task force found that errors by defense attorneys, false confessions and false testimony by jailhouse informants also contributed to imprisoning the wrong person. About 58 percent of vacated convictions stemmed from errors by a prosecutor, officer or judge. The most common cause of wrongful convictions, misidentification of the accused, accounted for about 67 percent of the cases.

Newton felt wronged but did not hold a grudge against the victim, he said. He thinks it was an honest case of mistaken identity. But he is definitely mad at the justice system.

"It's almost like there's no incentive for them to find out the truth about an innocent person because the cops solve the crime, they get a promotion or a raise or whatever," Newton said. "When a person is exonerated and a cop goes out his way to help the person, you don't hear about him getting no accolades."

Prosecutorial Problems

The state bar association's task force tackled the 53 cases last year in an effort "to pinpoint where the system let us down," said Bernice Leber, a partner at law firm Arent Fox and president of the bar association.

The task force reviewed cases and interviewed some of the judges, lawyers and the exonerated, Leber said. Their findings showed what other legal experts and advocates knew: The system needs reform.

In 31 cases, government malpractices contributed to a wrongful conviction. These included a prosecutor's failure to hand over information the defense had a right to examine and a prosecutor's purposeful use of false testimony. Failure to collect and preserve evidence and police not investigating other potential suspects were also cited by the report.

"I think if a prosecutor knowingly presents false testimony and it can be shown, then it's a crime and it's a kind of behavior from any lawyer that the system can't tolerate," said defense attorney Joel Rudin. He estimates he has helped overturn about 15 convictions.

Prosecutors argue that purposeful misconduct happens infrequently. But unintentional errors sometimes occur, such as not giving the defense evidence that the police unintentionally withheld from the prosecutor, said Anne Swern, first assistant district attorney for Brooklyn District Attorney Charles Hynes, a member of the task force. On appeal, the prosecutor's failure to hand over evidence to the defense could be called prosecutorial misconduct even if it was not a "willful mistake," Swern said.

To limit the argument over withheld evidence, the task force suggests requiring a pre-trial conference that would establish that the defense has assessed evidence held by police and the prosecutor.

A Deficient Defense

Sometimes, though, defense counsel may be at fault. They do not always adequately review evidence or represent their clients. Supposedly on the side of the accused, defense attorneys have contributed to their client's wrongful convictions "usually [through] a failure to fully investigate or to offer alternative theories and/or suspects," according to the report.

"That's fundamental," Saloom said about every defendant's right to reliable counsel. "Our system relies upon an adequate defense --period."

For quality control of defense attorneys, the task force suggests additional resources that allow lawyers to investigate further and receive more supervision of their work. Additional funding could also provide poor defendants with lawyers even after appeal, when they are trying to get their convictions vacated, Rudin said.

"In our system now, no one has the right to a lawyer once they've lost appeal," he said. "You have all these people in prison with no resources whatsoever and no legal training, and most of the time they end up representing themselves and don't know how to do it."

False confessions have also contributed to wrong convictions. In 1990, five teenagers were convicted in the beating and rape of a Central Park jogger. They confessed to the crime on videotape but DNA later implicated a lone man, not the teenagers. In 2002, their convictions were vacated amid accusations of racism and police misconduct during the original investigation.

False confessions helped cause a wrong conviction in 12 of the 53 cases, the task force found.

A Taped Record

Some, including Assemblymember Joseph Lentol of Brooklyn, advocate for videotaping interrogations, not just confessions. This, they maintain, would provide reliable evidence of whether coercion played a role in a confession.

But even those who support videotaped interrogations are leery of the costs involved. If police taped all confessions and the entirety of interrogations, prosecutors would have to view hours of tape, some of which might not be of evidentiary use, and the tapes would have to be stored for years. This all costs money, said Swern, who serves on the board of the National District Attorney's Association. Paying for the equipment could also be an issue in some jurisdictions.

"Indeed, if adequate funding is not provided, there could be an unwitting failure to comply with the mandate and, depending on the sanction for non-compliance, strong and persuasive evidence of a defendant's guilt (i.e., his voluntary confession) may be suppressed," wrote Swern in an e-mail. "That result would not further the cause of justice."

A former prosecutor and defense attorney, Lentol says he plans to push for funding support of proposals like videotaped interrogations.

"Even if it costs money, how much is a human life worth? Do we want to risk a valuable citizen because we didn't have a few bucks?" he said.

With the status of videotaped interrogations up in the air, critics argue that police need more training in interrogations and recognizing false confessions elicited under extraordinary pressure.

"I think police need to be educated more than they probably are that there are such things as false confessions," said Judge Barry Kamins, a former prosecutor and chair of the task force. "If you ask the public most people would think, 'Why would you confess to something you didn't do?' It is a strange phenomenon but it does happen."

Mistaken Identity

Several studies in the last few years single out the misidentification of the accused as the primary reason for wrongful convictions. The task force recommends changes in police procedures that can make the process fairer and more accurate.

The recommendations include assigning an officer who does not know the identity of the suspect to administer lineups and photo arrays. This prevents intentional or unintentional influence by the officer on the witness.

In one of the most egregious instances, Leber said, "the accused was handcuffed to a table during the lineup and no one else was."

Each step in the identification process should be documented, including the witness's degree of certainty when describing the suspect or picking a suspect from a photo or lineup, according to the report. The New York Police Department did not return requests for comment on the recommendations.

The New Tool

To undo the potential for human error posed by, for example, witnesses or police, the courts have relied heavily on the absolutes of DNA profiling. Since its inception in 1985, the evolution of DNA profiling and its use in solving crimes has led to a push for increased DNA testing. But many support DNA database expansion more as a strategy to catch the guilty than to clear the innocent.

Former Gov. Eliot Spitzer sought to expand the DNA database by including anyone convicted of a misdemeanor or a felony, instead of just some felonies, like sexual assault. But that fell through with his governorship.

Rockland County State Sen. Thomas Morahan has proposed new legislation to mandate DNA samples from everyone convicted of a felony since Jan. 1, 2003. His motivation for the expansion: helping police solve sex crimes. And in his State of the City speech last year, Mayor Michael Bloomberg proposed that arrestees, not just convicts, be required to add their DNA swab to the database.

But less than 5 percent of cases involve DNA evidence that can 100 percent prove innocence or guilt, said Saloom. Rudin said none of his wrongful conviction cases included DNA that could absolve his client. In those cases he couldn't argue innocence based on DNA, but instead had to attack the "fairness of the process."

"The reason we're supposed to have a fair process is to increase the likelihood that the result will be consistent with what really happened," Rudin said.

Reducing Mistakes

The task force's proposals, as well as those from the Innocence Project and some members of the state legislature, seek to increase the fairness and accuracy of the criminal justice system. Lentol, for one, has sponsored legislation that makes it easier for the accused to request post-conviction DNA testing on evidence, such as rape kits. Presented in February, the bill has been referred to the Committee on Codes, of which Lentol is chair.

This bill accompanies a package of legislation that would expand the state's DNA database, require videotaping of interrogations and establish an Innocence Commission, Lentol said. The commission would investigate and reconstruct cases of wrongful convictions -- as investigators reconstruct a plane crash -- to find the faulty parts, he said. If his bills make their way through the political and bureaucratic obstacles, Lentol said he expects them to come up for a vote in late April or May.

Another bill in the Assembly, similar to Lentol's Innocence Commission, has spent two years working its way down the pipe. Sponsored by Assemblymember Michael Gianaris of Queens and picked up in the Senate in 2008 by Sen. Eric Schneiderman of Upper Manhattan, the bill would create the State Commission for the Integrity of the Criminal Justice System. The bill has been referred to the Ways and Means Committee in the Assembly and the Judiciary Committee in the Senate.

The permanent commission would investigate cases of wrongful convictions to establish their causes. The unpaid commission members would submit to the attorney general and governor recommendations on how to prevent wrongful convictions. Schneiderman says he thinks the governor and legislature would take the recommendations seriously because "the evidence of wrongful convictions that has developed in the last decade has had a tremendous effect on public policy."

Life After Wrongful Imprisonment

The crime Newton was convicted for is still an unsolved mystery. DNA excluded Newton but has not linked police to the actual perpetrator. Newton said he wishes the rapist had been caught 20 years ago. But he focuses on his present life and reminds himself that it feels good to be home.

On Read Across America day he opted for the professional look: a dark, well-fit suit paired with a red and gold striped tie. This might be his regular get-up in the next few years. After spending countless hours reviewing his own case while in prison, Newton wants to be a lawyer.

"I tell people I've been studying law for 20 years," he said.

He hasn't applied to law schools yet, so until then he has his job in the Male Development and Empowerment Center at Medgar Evers College. He recruits male students and sticks with them to encourage them to graduate. The center also organizes community service events, like reading to children at local elementary schools. While working at Medgar Evers, Newton earned his B.A. in business administration. It didn't take the average four years --he earned college credits while in prison.

While he has adjusted to his new life, nostalgia for what his life could have been is evident when he talks about his former fiancée. His family liked her and her family liked him, he said. But his conviction changed all that.

"One of the things she told me, she said, I hurt her because I told her I was coming home, and I didn't come home," Newton said. They never married.

For his time lost, pain and suffering, Newton is suing the city and the state for $50 million each. He filed his suits for compensation in late 2006, yet he is still not close to a conclusion.

"One thing I have plenty of is patience," Newton said. "What were you doing all that time in that cage? You were waiting."

Compensation for New Yorkers wrongfully convicted has varied wildly. Victor Ortiz won $530,000 in damages in 2000. He served nine years for rape and sodomy that DNA evidence later helped overturn. But in October 2008, Rudin helped Shih-Wei Su obtain $3.5 million for his 12 years in prison.

The task force suggests setting a minimum level of compensation, but if the convicted person opts to seek more, the minimum amount is waived. Other states have set minimum compensation amounts, but some have a hard time placing a dollar amount on an individual's life.

The state's claims law also currently excludes compensation for anyone who falsely confesses. The task force wants to see that change, too.

Aside from compensation after incarceration, which can take years, some argue that counseling, job training and other assistance for the wrongfully convicted is lacking.

"I think they need the most help of all because they shouldn't have been there," said Kamins. "After all, somebody in jail for 20 years for something they didn't do and you just open the door and say, 'Goodbye, here's some train fare.' That's just not appropriate."

But state officials dispute that; saying that the wrongfully convicted can access reintegration services as any other formerly incarcerated individual could.

Luckily, Newton, who said there was no government help for him after his release, had family he could rely on and an education underway. He doesn't mind the media attention, he says, because people need to know the system is flawed.

"A lot of times people don't believe this happens," Newton said. "This doesn't happen to the billionaires, this happens to ordinary people. They think it happens to other people. We all are those other people."

Court Limits 'Today Only' Plea Bargains


Plea "bargains," which are not necessarily bargains for any of the participants, are what keep the criminal justice system from collapsing under the weight of the number of cases. In 2008 of 7,611 new felonies filed in New York County (Manhattan), 6,142 cases ended in guilty pleas, 995 cases were dismissed and 397 had verdicts after trial, according to the New York State Unified Court System. The Bronx had 4,876 pleas and 137 trial verdicts. And in Kings County (Brooklyn) there were 5,250 pleas and only 267 trials.

There are rules regarding the pleas, however. The Supreme Court Appellate Division Second Department, sitting in Brooklyn has vacated the conviction in the case of People against Terry Grant on the grounds that his guilty plea was coerced by a judge in Nassau County. Grant, a dentist, was charged with fraud and falsifying business records by submitting bills to insurance companies for work he had, in fact, never performed.

The decision resulted in the guilty plea being vacated because Judge George R. Peck gave Grant only five minutes to decide whether to plead guilty or go to jail until his next court appearance at least. In other words, if he pled guilty he would walk out of the courthouse, but if he did not enter the guilty plea, he would be incarcerated -- his $1,000 bail would be revoked and he'd be remanded to the custody of the Department of Correction.

The decision is unusual because guilty pleas are not usually set aside on appeal. Moreover the case was a year old, and it appears that the Peck was eager for it to end one way or the other. Still, this kind of "choice" is a common scenario in criminal courts, where judges sometimes tell defendants that "it's a one-day sale," and they won't be offered the same deal if they don't plead guilty immediately. But allowing the choice of the plea or jail to be on the record laid the groundwork for the appeal.

Justice Steven W. Fisher and the appellate panel found that Peck had confused the purpose of bail, which is to ensure the defendant's return to court, with the matter of entering a plea. "Bail status," the Appellate Division has now said, "concerns only the kind and degree of control or restriction that is necessary to secure a defendant's attendance when required. It has no legitimate connection to the mutuality of advantage underlying plea bargaining."

Fisher wrote that when a defendant pleads guilty, it relieves the prosecution of having to prove guilt beyond a reasonable doubt and eliminates the possibility of the defendant being found not guilty. In exchange, the defendant almost always receives a more lenient sentence than would be imposed after a trial. This is done because of "the need to dispose criminal cases without trial so that the particular local jurisdiction can manage its criminal caseload."

Grant's Choice

The record contained the following from Peck. "If he [Grant] wants the plea deal, I will continue the bail status that he is in." But "if he doesn't take the plea deal today, I'm going to remand him until Monday."

At that point, Grant, who was represented by counsel, pled guilty. Peck had already advised him that if he didn't plead guilty but maintained his right to a jury trial and was convicted, he would be sentenced to state prison. However, if he pled guilty he would probably be placed on probation.

The proceedings took place on a Friday. The defendant could think about it over the weekend, but he'd have to think about it in jail. If he wanted to go home, he would have to plead guilty right then to grand larceny and related crimes.

Grant had five minutes to make his decision. And he decided to plead guilty and leave the courthouse. This is a common scenario in criminal courts, where judges tell defendants that they won't be offered the same terms if they don't plead guilty immediately.

Prior to accepting the plea, the judge asked certain required questions, including: Has anyone threatened or coerced you? Is this plea voluntary? For the plea to be accepted, Grant had to answer "no" to the first question and "yes" to the second.

The judge warned Grant that, by pleading guilty, he would waive his right to appeal (which is not correct where there is a claim of coercion), would have to pay restitution and a fine, and his license would at least be suspended. Also, the district attorney could recommend a prison term of one and a third to four years, but the court was inclined, subject to a probation report, to sentence the dentist to probation. Ultimately Grant received five years probation and had to pay restitution of $10,102.20 and a fine of $20,000. His dental license was not revoked or suspended.

Grant tried to withdraw his guilty plea before sentencing, because, he said, it had not been voluntary, but was entered under duress and coercion. Peck denied that request, saying there had been no coercion. Grant appealed to the higher court.

The Court's Decision

The appellate judges concluded, "When the court threatens to increase bail or remand the defendant unless a guilty plea is entered, any resulting plea cannot be deemed voluntary because the defendant's decision to plead guilty would no longer represent a free choice. ... A threatened change in bail status may not be used by the prosecution or the court as a 'bargaining chip' to persuade a defendant to plead guilty." Here, they found, "The court made an unadorned threat to remand the defendant without bail if he did not plead guilty, and that the threat was a powerful factor in persuading the defendant to enter the plea when he did. ... Therefore, the defendant's guilty plea was not voluntary.

Since the waiver of any right must be knowing, intelligent, and voluntarily, the question before the appeals court was whether that test was met in Grant's case. The Appellate Division found that it was not. Therefore, since the guilty plea was the product of unreasonable pressure, it was not voluntary and was vacated.

According to Howard R. Birnbach, Grant's attorney for sentence and appeal only, the case now is scheduled for trial. The district attorney is Kathleen M. Rice with Judith R. Sternberg and Barbara Kornblau of counsel.

Emily Jane Goodman is a New York State Supreme Court Justice

How to Fight an International Landlord


Photo (cc) TAPorto

In late 2007, East Harlem tenant, Victor Calentre opened his rent check to find an additional bill charging several hundred dollars for unspecified repairs he knew nothing about. He assumed it was a mistake on the part of his landlord, British-based real-estate conglomerate, Dawnay Day International. But as the fine increased month after month -- reaching $8,000 -- Calentre suspected that this was not merely an error and soon discovered he was not alone.

Spurred on by Calentre and his fellow tenants, Movement for Justice in El Barrio embarked on a campaign to fight Dawnay Day and protect residents of rent stabilized apartments. The British firm, though, was no ordinary New York landlord, and so the Movement for Justice went beyond conventional tactics, framing their effort as a fight over consumer rights rather than housing, using the logic that tenants are, in fact, consumers too. The group also reached far outside its neighborhood to oppose Dawnay Day, organizing a network of British activists to confront the firm on its home turf. In doing this, the Movement for Justice believes it may reshape the way similar organizations fight gentrification.

Troubled Buildings

Originally, many tenants celebrated when Dawnay Day took over their buildings. Tenants had accused the previous landlord, Steven Kessner, of neglecting basic repairs for rent-stabilized tenants and offering financially desperate tenants buy-back sums far below the market rate.

According to the tenants, though, Dawnay Day, has continued and even intensified Kessners's efforts to drive out the buildings' rent-stabilized tenants. The new landlord began issuing rent-stabilized tenants erroneous fines, like Calentre's. It charged residents for false repairs and appliances that were never purchased, and set fines for improper use of appliances. Initially bewildered, the tenants soon became convinced these charges were not mistakes, but administered selectively to rent-stabilized tenants in an effort to intimidate and drive them out, allowing the owner to charge the market rate.

"When it became clear that Dawnay Day was worse than the previous owner, we had to sit down and figure out how to take on this multi-national corporation," said Juan Haro, a leading member of Movement for Justice. "We had never before faced this kind of landlord."

After several strategy meetings, the 440-member tenant group settled on a two-pronged strategy: It would file an innovative lawsuit and also would begin to build an international support base to confront the firm in its home base in Britain.

Phil Blakely, director of Dawnay Day, said in an interview with WNYC that his firm had done nothing wrong. "I am … sort of upset and disappointed that we've been accused of the things we've been accused of and that we are as bad or worse then Steven Kessner," Blakely said.

Tenants as Consumers

The tenants wanted to take legal action against Dawnay Day to clear the frivolous debts. With the pro bono help of lawyers from Harlem Legal Services (the 125th Street branch of Manhattan Legal Services) and the Neighborhood Economic Development Advocacy Project, the Movement for Justice sorted through already-tested legal approaches, none of which looked promising.

Because Dawnay Day was not necessarily charging incorrect amounts of rent, housing laws -- on which tenant groups usually rely -- did not offer much remedy. These laws pertain more to rent payment and collection than to separate charges like those issued by Dawnay Day.

"What to do here was not explicitly covered in housing law, so we had to look at what other bodies of law could cover this practice," said Chaumtoli Huq, a lawyer with Harlem Legal Services. "Then we found that this case was more appropriately covered by consumer protection laws. … All tenants are also consumers."

The Movement for Justice decided to incorporate consumer laws to the fight over housing displacement. A first step was to notify its tenant members of the Federal Fair Debt Collection Practices Act, which guarantees a consumer's right to challenge or receive written verification of debt. Members who had received false charges then wrote to Dawnay Day, notifying it of the law and demanding verification of their charges.

This strategy worked, but only temporarily.

For several months, the tenants' debts decreased or, in some cases, disappeared. But then false charges appeared again. Calentre, for instance, had fines -- for repairs that were never done, a refrigerator that he hadn't bought, interest and late fees -- in excess of $8,000 when he protested to Dawnay Day. He then watched the charges fall to the low hundreds, but a few months later, they climbed back up to nearly $4,000, where they hover currently and without explanation.

"Now, the bills don't even say what the charges are for," Calentre said. "They just show the amount that is owed in addition to the rent."

As it became clear that the letter-writing initiative provided no permanent fix, the Movement for Justice elected to file a lawsuit against Dawnay Day. Because the firm had complied, at least momentarily, with the tenants' requests of debt verification, they could not take them to court for violating the debt collection act.

Sifting through New York State consumer law, the group's lawyers found a statute in the New York General Business Law forbidding false and deceptive business practices. Because issuing false charges to customers falls under this law's provision, the Movement for Justice filed a lawsuit on behalf of 22 tenants, like Calentre, who had received allegedly false charges from Dawnay Day. The suit demanded that the charges be eliminated and that Dawnay Day refrain from such activity in the future.

Though the suit is still pending, the plaintiffs are optimistic. They say Dawnay Day asked for a settlement, which the Movement for Justice rejected because it did not include an all-encompassing commitment to stop issuing the false charges.

International Effort

At the same time, the Movement for Justice was taking the tenant's fight to Europe and particularly the United Kingdom, where Dawnay Day is headquartered and well known. The Movement for Justice had concluded that building a support base on the company's home turf was an essential tactic to their fight.

"We could have kept the struggle local, but targeting Dawnay Day in just Harlem or New York City would not be successful," Calentre said. "This is really an international struggle."

The Movement for Justice has circulated an online pamphlet explaining the situation and seeking help from a wider community. It called for the creation of a "multi-national network of allies and supporters who will stand by and support us in our struggle as we expand our resistance to take on Dawnay Day Group in London and any other global, national or local threat to our right to dignified housing, autonomy and self-determination." Though no one knew how effective the pamphlet would be, it generated a fair amount of interest.

"Lots of people stepped up -- more than we had imagined," said Haro, who went to Europe to press the tenants' case. "And many of them said, 'if you come, we will generate support for you here on the ground'…They understood that this was not just about raising awareness, but for creating a practical support base."

With such a response in March 2008, Haro went to England, Scotland, France and Spain, to meet with groups that offered to hold forums about the Dawnay Day situation. As Dawnay Day remains little known in the U.S., a main objective of the trip was spreading information about the firm's tactics among people somewhat familiar with the company. Over the course of the six-week trip, Haro attended 25 meetings and public forums.

After these events, "movement support committees" formed consisting of people who pledged to give their active support to the New York tenants. These activists agreed to participate in direct action efforts to raise awareness in Dawnay Day's home country in order to more effectively apply pressure to the firm.

As the trip concluded, the Movement for Justice and its new international allies began planning a mid-October action, in which press conferences and demonstrations would be held at Dawnay Day's offices in both London and Scotland. By mid-summer, the plane tickets for the event had been purchased, the local activists' commitments secured, and the plan solidified.

But then the unexpected occurred. A victim of the global financial meltdown, Dawnay Day posted major losses in July, and began selling off assets worldwide. With the landlord's future uncertain, Movement for Justice canceled the October action and refunded their plane tickets.

Today, while the lawsuit continues, the Movement for Justice is refraining from direct action against Dawnay Day until it is certain as to whether Dawnay Day will retain its East Harlem real estate. Meanwhile, basic repairs go undone and false fines continue, though the tenants have noticed that the landlord has become a bit less brazen in the latter practice.

Although the murkiness of the situation has frustrated some of the tenants, the Movement for Justice sees the past two years as a triumph in organization and innovation, strengthening its position to negotiate with the buildings' future owners and other landlords. The group also takes satisfaction in seeing that its efforts have created a template that other tenants' organizations can use. For example, Queens Vantage Tenants Council, a tenant group in Queens, has adopted the use of consumer law in a different fight over false charges.

"The outcome remains to be seen here, but the general principle is that we need to look at other bodies of law and be creative in the ways we confront landlords," Huq said. "As landlords like Dawnay Day come in, they bring in new practices. So we need to look at these new problems and be ready to come up with novel solutions."

Spencer Woodman is senior at Sarah Lawrence College studying writing and economics and a freelance writer. Jerry Deleon and Tom Kiely provided translating for this article. Joe Lamport is the assistant director of the City-Wide Task Force on Housing Court, a coalition of community housing organizations.



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