Every once in a while a case arises in the law that seems ordinary and unlikely to change law or policy or mean much to anyone but the individuals directly involved. These can be little cases that become big because of determined litigants and tenacious lawyers who keep challenging until they are heard. People v Matthew Jones is one of those rare cases. When Jones, 19, was arrested on West 43rd Street in Manhattan, at 2:01 a.m. on June 12, 2004, he could not possibly have expected that the case resulting from his arrest would three and a half years later reach the highest court of the State of New York.
But the case of People v Jones did go to the highest court, the Court of Appeals. That court has now unanimously decided that legally, it was not Jones' conduct that was the problem, but rather the arrest itself and the language used to describe the event.
Jones, who had no criminal record, was accused by the New York City police of disorderly conduct, a violation of the Penal Law. Because he ran from the police, he was also charged with resisting arrest, a misdemeanor. Police handcuffed Jones, placed him in the back of a patrol car and took him into custody. After a night in a police precinct, hours spent in central booking, a round of fingerprinting and posing for mug shots, and dining on a baloney sandwich while locked up in the "pen" of Criminal Court at 100 Centre Street, Jones appeared before Judge Abraham Clott for arraignment and notification of the formal charges against him.
The charge against Jones was that "with intent to cause public inconvenience, annoyance and alarm and recklessly creating a risk thereof, [he] obstructed vehicular and pedestrian traffic." The arresting officer further stated that, "he observed defendant along with a number of other individuals standing around at the above location, to wit a public sidewalk, not moving, and that as a result of defendants' [sic] behavior, numerous pedestrians in the area had to walk around defendants [sic] ... Deponent [the police officer] directed defendant to move and defendant refused and as deponent attempted to stop defendant, defendant did run." Translation: Matthew Jones was standing on a public street and did not follow police orders to move (though he apparently did run).
The attorney appointed to represent Jones, Eric M. Dorsch of the Legal Aid Society, asked Judge Clott to dismiss the case. Dorsch argued that the charges -- Jones' presence on a public street -- were insufficient. That is, the written allegations failed to establish a prima facie case that Jones had committed a crime or violation of the Penal Law.
Dorsch argued that accusations contained in the information, the type of complaint issued against Jones, lacked the factual allegations of what his client had done to constitute criminal conduct. The information must give the defendant specific notice of how he or she broke the law.
The Criminal Procedure Law requires that this written accusation provide reasonable cause to believe that the defendant committed the offense charged. In this case, the acts committed by Jones and observed by the arresting officer allegedly were intended to cause public inconvenience, annoyance or alarm or could created a risk by obstructing vehicular or pedestrian traffic. But nowhere did the papers say what exact acts led to the arresting officer's conclusions.
Judge Clott, however, denied dismissal. Jones then agreed to plead guilty to disorderly conduct with a sentence of "time served," meaning the time he had already spent in jail, without any further penalty. In exchange for the guilty plea, the charge of resisting arrest, a class A misdemeanor punishable by up to a year in jail, was, as is typical, dismissed.
Most defendants enter pleas of guilt, which are the same as convictions after trial. Since every year thousands of cases end with guilty pleas at arraignment, this might have been the end of People v Matthew Jones. Here, however, the Legal Aid Society continued to make its arguments. Nancy E. Little of the Legal Aid Appeals Bureau took issue to the Appellate Term, which hears cases arising in the Criminal Court. There, two out of three judges agreed with Judge Clott who had found no defect in the arrest and charges, and affirmed his refusal to dismiss.
That still was not the end of it. Little continued up the appellate ladder, taking the challenge to the Court of Appeals in Albany where all seven judges of the state's highest court agree that the conviction resulting from Jones’ guilty plea guilt had to be reversed and all charges dismissed.
" Something more than a mere inconvenience of pedestrians is required to support the charge," wrote Judge Carmen Beauchamp Ciparick, who is from New York City and began her judicial career as a judge of the Criminal Court. "Otherwise, any person who happens to stop on a sidewalk -- whether to greet another, to seek directions or simply to regain one's bearings -- would be subject to prosecution under this statute.”
Citing a 1928 case holding that those congregating on the street display "atrociously bad manners" by "discommoding some other persons," Ciparick's opinion said such conduct alone does not necessarily give rise to disorderly conduct. In other words, the court concluded that "nothing in the information indicates how defendant, when he stood in the middle of a sidewalk at 2:01 a.m. had the intent to or recklessly created a risk of causing "public inconvenience, annoyance or alarm." Therefore, no prima facie case of disorderly conduct was spelled out and therefore the courts lacked jurisdiction or the power to consider the case, because legally, there was no case.
In addition, the court found the prosecution could not say a man broke the law by standing on a public street without stating what he did to warrant an arrest. There were no facts to support the charges. In the future, police officers, prosecutors and judges will have to adhere to the principals set out in People v Matthew Jones. The police will have to write up more specific charges and cannot say that the basis for an arrest was that a person was simply standing on the street, or even being "annoying" without saying what exactly was done.
Once the disorderly conduct charge fell, so did resisting arrest charge. Jones could not be resisting arrest if the arrest was not proper in the first place. Resisting arrest requires that "a person is guilty ...when he intentionally prevents or attempts to prevent a police officer ... from effecting an authorized arrest of himself or another person." And this was not an authorized arrest.
The office of the Manhattan district attorney, which prevails in the vast majority of appeals from cases it prosecutes, had battled the Legal Aid Society in order to uphold both the disorderly conduct count and the charge of resisting arrest. Having succeeded in two lower courts in its case against Matthew Jones, the office of Robert Morgenthau, represented on appeal by Paula-Rose Stark, received an unusual defeat when the Court of Appeals vacated the conviction and threw the case out.
Dorsch, the lawyer originally assigned to represent Jones at his one and only court appearance, has left the Legal Aid Society and is now first deputy executive director of the Civilian Complaint Review Board, which rules on cases of allege police misconduct. In that capacity, he has been reviewing the Court of Appeals opinion in People v Matthew Jones in connection with possible future citizen complaints to the board. Dorsch, though, had handled too many "discon" (disorderly conduct) charges, to remember this one in particular. It was only during a telephone interview for this column that Dorsch learned, that according to court transcripts, the lawyer for Jones who, at the arraignment three and a half years before, had made the motion to dismiss and so laid the groundwork for Little’s appeal and the unusual result, was Eric M. Dorsch. Jones has not filed a complaint with the board, and there has been no civil lawsuit.
Emily Jane Goodman is a New York State Supreme Court JusticeÂ
Eugenio Cidron drank so much at a party at Chelsea Piers last December that he mistook the bike path along the Hudson River for the West Side Highway. After driving his silver BMW for a mile along the greenway, he plowed into Eric Ng, an avid bicyclist, and killed him.
Earlier this month, Cidron, a first-time offender, pleaded guilty to a second-degree manslaughter charge. At sentencing, he faces between 3 and a half and 10 years in prison. Ng’s friends and family are left to grieve his death. “He was just a real joyous, smart, sweet good person,” Ng’s friend Ryan Nuckle told the New York Times.
Eric Ng is one of 463 New Yorkers who were killed by drunk drivers in 2006, according to the National Highway Traffic Safety Administration. Last year, over 13,000 individuals were killed across the United States by drivers who were legally drunk. To put that number in perspective, a total of 3,866 American military have been killed to date in Iraq, according to antiwar.com.
In recent years, New York State has passed a series of strict new laws that increase penalties for drunk driving and provide alcohol and substance abuse treatment for first and second-time offenders. Perhaps as a result, the state has modestly reduced the number of drunk driving deaths, with alcohol-related fatalities in New York declining by 5 percent from 2005 to 2006. New Jersey had a 13 percent increase during that same period. Nationwide, drunk driving deaths have remained relatively constant since 1999, frustrating government officials, public health experts and advocates.
At the same time, advocates like Mothers Against Drunk Driving believe that New York could be even more aggressive in keeping repeat drunk drivers off the road by following states like New Mexico, which requires that all convicted offenders have ignitioninterlock systems in their cars. These systems keep the car from starting unless the driver breathes into a breathalyzer device and is not drunk. Advocates would also like to move the focus from prosecution of drunk driving offenses to prevention. This poses a major challenge since a majority of alcohol-related traffic fatalities involve a driver, like Eugenio Cidron, with no prior drunk driving arrests.
The bottom line is that even more dramatic steps might have to be taken to tackle the problem of drunk driving. What is less clear is whether the political will exists for such fundamental change.
In the last two years, New York has passed tough new legislation against drunk driving. On November 1, new felony penalties for aggravated vehicular homicide and aggravated vehicular assault went into effect. These allow judges to put drunk drivers in jail for up to 25 years in cases involving vehicular homicide and 15 years in cases involving vehicular assault. The changes also expand the use of ignition interlock devices. This law does not apply to Eugenio Cidron, who was arrested before it took effect.
More sweeping legislation passed in 2006. It included a tougher penalty for those who refuse to take a police-administered breathalyzer test, along with a requirement that offenders with a blood alcohol content of above .18, well above the .08 threshold that defines intoxication, install an ignition interlock system while they are on probation.
In addition, the law requires that every person arrested for driving while intoxicated be screened or assessed for a drug or alcohol abuse problem before their case is resolved. Drug treatment is mandatory for those who test positive and are not sentenced to jail. The goal is to “cast a treatment-centric net over the population of [driving while intoxicated] defendants,” says Michael Yavinsky, the chief court attorney for the Criminal Court of the City of New York.
These new measures come on the heels of over 25 years of aggressive public policy measures designed to tackle drunk driving. For the first two decades, the result was nothing less than a public health miracle.
In 1982, 26,173 Americans died in alcohol-related traffic crashes, according to the National Highway Transportation Safety Administration. By 2002, the number dropped to 17,448 deaths, a 30 percent decrease.
Raw numbers don’t tell the whole story, however. Adjusting for the total number of miles driven, deaths dropped from 1.64 per 100 million vehicle miles traveled in 1982 to .63 in 2002. New York’s rate is about .50 deaths per 100 million vehicle miles traveled.
This means that more than 150,000 drunk driving deaths were prevented in a 20-year period, according to Ralph Hingson, director of the Division of Epidemiology and Prevention Research at the National Institute on Alcohol Abuse and Alcoholism. “That’s more than the combined effect of safety belts, air bags, and motorcycle and bicycle helmets,” says Hingson.
Hingson attributes this success to two factors: the rise of advocacy groups like Mothers Against Drunk Driving and the development of a “body of scientific literature” that documents what works and what doesn’t in preventing drunk driving.
MADD was launched in 1980 by a California woman, Candy Lightner, after her 13-year old daughter was killed by a drunk driver. At the time, 60 percent of all driving deaths were alcohol-related, yet lax social norms about drinking and driving created a “wink and nod” attitude about the problem. As the organization grew – by the end of 1984, MADD had 330 chapters in 47 states – it created a powerful constituency for change. That year, MADD helped persuade President Ronald Reagan to sign the Uniform Drinking Age Act, which denied federal highway funding to states that did not raise their legal drinking age to 21.
Another development that would prove critical was the establishment of the Fatality Analysis Reporting System by the National Highway Traffic Safety Administration in 1975. With this system, every person involved in a fatal car accident is tested for alcohol and drug use. Using the collected data, public health experts can make state-by-state comparisons over time, as well as test the effectiveness of new enforcement initiatives. For example, reporting system data was used to predict that increasing the drinking age from 18 to 21 would result in 700 to 1,000 fewer drunk driving deaths per year. In addition, advocates like MADD use the information to shine a spotlight on states slow to change laws and public attitudes.
MADD’s longest campaign involved convincing state legislatures to lower the legal standard by which a person is defined as intoxicated, from .10 to .08. According to MADD, a 170-pound man who has four drinks in an hour on an empty stomach would have a blood alcohol level of .08.
States were slow to adopt the new standard. Only six states had changed the law by 1990.Then in 2000, President Bill Clinton adopted the new standard nationwide: As with the Uniform Drinking Age Act, states had to comply with the new level or risk losing highway funding. New York complied by November 2003, one of the last states in the country to make the change.
After these advances in the 1980s and 1990s, progress stalled. The number of alcohol-related driving fatalities (which includes anyone with a drink in their system, regardless of whether they are legally intoxicated) has increased slightly from an all-time low of 16,572 in 1999 to 17,602 in 2006. “We’ve seen no progress in 10 years; we’re completely stalled,” Susan Ferguson, a researcher at the Insurance Institute for Highway Safety, told the New York Times.
In response, MADD has launched an aggressive push for the expanded use of ignition interlock devices. “Our goal is to get interlocks on all convicted offenders within five years,” says Chuck Hurley, MADD’s executive director. The logic is straightforward: 75 percent of convicted drunk drivers who have their license revoked continue to drive anyway, including 500,000 first-time offenders. “What we’re doing now,” says Hurley, “is a catch and release program.”
Currently, New Mexico and Arizona are the only states that require first-time drunken driving offenders to install the interlock system. In its first year after implementing the new law, New Mexico’s drunk driving fatality rate dropped by over 11 percent. Offenders with interlock systems have a 69 percent lower re-arrest rate than those without the devices, according to research prepared by Richard A. Roth of the University of New Mexico.
The interlocks reportedly cost $125 for installation and carry a monthly fee of $60 to $75.
New York’s recent law expands the use of ignition interlocks, though it is far less comprehensive than the approach used in New Mexico and Arizona. The devices are now required for anyone granted a so-called conditional license who was convicted on an aggravated driving while intoxicated charge. This means that their blood alcohol level was .18 or higher at the time of their arrest. Someone with a conditional license can drive only under certain circumstances and can be barred from driving complely if he or she does not comply with those limts.
In addition, the law closes a long-standing loophole that allowed individuals who had to have the ignition interlocks to evade the requirement by using a company car or a car owned by a spouse or friend. The current law stipulates that the devices be installed in all vehicles operated – as opposed to only those owned – by the offender.
According to Ron Bergstrom, of the New York State Division of Probation and Correctional Alternatives, which is responsible for overseeing the ignition interlock program, there are currently 1,050 units in place for drivers covered by the law. In New York City, ignition interlocks have been mandated in only three cases according to Bergstrom, although he expects that number to increase with the adoption of the new law. Nassau and Suffolk counties are the state’s biggest users of the program.
The devices have been somewhat difficult to obtain. There were only 21 qualified vendors in place across the state last year (the number is now 75).
Other problems exists as well. Many probation departments believed that people could fool the devices by having a friend or companion blow into the tube. New technology that photographs the driver whenever a reading is taken may solve that, however. Another potential problem involves false positives: the technology may prevent even sober drivers from starting their car if it makes a false reading.
Even if New York were to require installation of an ignition interlock system for all offenders, it would only affect a minority of drunk drivers. Federal government research shows that only 8 percent to 33 percent of intoxicated drivers involved in fatal crashes have prior drunk driving arrests. (The 33 percent comes from Minnesota, the only state that keeps lifetime driving records on file. Most states only record arrests going back three years.)
The case of Eugenio Cidron testifies to the limits of relying on enforcement strategies to combat drunk driving: Aside from a traffic ticket and a seatbelt violation from 2003, he had a clean driving record before he hit Eric Ng, the New York Post reported.
Most drunk drivers manage to avoid the police entirely. Only one in 87 are arrested, according to Hurley.
One option would be to require that ignition interlock devices be installed for all drivers, not just those who have been arrested for a drunken driving offense. In theory, that would have prevented Cidron from starting his BMW. The goal would be to create a “passive safety” device that works unobtrusively, like an air bag. According to the New York Times, car manufacturers like Nissan and Toyota are experimenting with skin-sensing technology embedded in a car’s steering wheel or headrest. The universal use of such technology would let us “make drunk driving the public health equivalent of polio,” said Hurley.
Car safety experts and government officials say this is a long way off. The key is convenience. As Susan Ferguson of the Insurance Institute has said, “We don’t want the soccer mom dropping kids off, going to the grocery store and the preschool, and having to blow into something every time.”
Concerns about reliability and intruding on people's right to drive has led government officials to tread carefully when talking about universal ignition interlocks. “To be frank, we are years and years away from [reliable] technology,” Nicole Nason, the administrator of the National Highway Safety Administration, told the New York Times.
There are less tangible issues as well. Americans are very sensitive about any restrictions being placed on their cars.
Despite such obstacles, MADD has continued to push for the expanded use of ignition interlocks, using an incremental approach. They hope to convince fleet operators (such as taxis and truckers) to adopt the systems. New York State Assemblymember Sam Hoyt is introducing legislation to require the installation of the devices in all school buses. Hurley is also confident about the prospects for rapid technological change, pointing to a recent agreement between the United States Department of Transportation and major car manufacturers to devote $10 million to researching ignition interlocks.
Underlying the debate about preventing drunk driving is the tradeoff between safety and convenience. Clearly, there are things that New York can do to reduce the number of drunken driving deaths. Whether citizens are ready for these changes is another question entirely.
Aubrey Fox is project director of Bronx Community Solutions, aimed at changing the Bronx court system’s approach to low-level crime.
Laws that prohibit gun possession may be unconstitutional in Washington, D.C., but they are not unconstitutional in Brooklyn. And that is bad news for Rashawn Handsome.
Handsome was arrested when police showed up at his Wyckoff Gardens apartment with a search warrant and found three guns in a sneaker box. He had no permit to own or carry them, but because statutes on weapons possession in a home are different from other laws on weapons, Handsome was charged with a misdemeanor instead of a more serious felony. With the class A misdemeanor charge, he faces a one-year sentence.
His defense: the right to bear arms under the Second Amendment to the Constitution of the United States. Raising an argument not previously made by a criminal defendant in New York, Handsome and his court appointed counsel, Robyn Lear of the Legal Aid Society relied on a recent federal case decided by the U.S. Court of Appeals for Washington D.C., Parker v District of Columbia. To the surprise of many, that court, the federal court just below the Supreme Court, agreed with a group of Washington, D.C. gun owners that laws making gun possession illegal, do indeed violate the Second Amendment.
The U.S. Supreme Court is now deciding whether it will hear an appeal of that decision.
The closest any federal court in New York has come to this issue was in non-criminal litigation. In that instance, the court decided, "The right to possess a gun is clearly not a fundamental right."
Some civil lawsuits have tried to challenge New York weapons laws on the grounds that they violate the Constitution. All have failed.
Using the right to possess guns as a defense in a criminal case in New York, though, was something new. Handsome’s attorney argued that the case against his client should be dismissed because state laws making possession of an operable firearm without a permit illegal are themselves unlawful.
A loaded .44 Magnum revolver, a .38 caliber revolver and .25 caliber semi-automatic pistol along with ammunition, were in the sneaker box. Still, how could Handsome be prosecuted for something that is protected by the Constitution, the defense asked in moving to dismiss the charges.
When People v Handsome came to New York City Criminal Court in Brooklyn, Judge Michael Gerstein refused to dismiss the charges. Instead, he totally dismissed the opinion of the federal court, a far loftier court than his. He rejected the analysis in the Washington case and pointed out that other federal courts, including the Supreme Court, had at different times, found that "the right to bear arms" did not mean that individuals had such a right.
The Second Amendment says, "A well-regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed." To Gerstein, this means state militias (or in modern times the National Guard) have the right to possess weapons. No one, the judge reasoned, intended for every individual to "own firearms for their private, civilian use."
The D.C. federal court, though, had written that "the Second Amendment would be an inexplicable aberration if it were not read to protect individual rights," as well as militias. Gerstein boldly said that the federal judges were wrong. In fact, the judge wrote, "We find the reasoning of Parker to be deeply flawed, such that even if its holding were to be deemed applicable to our statute, which it is not, we would decline to follow it unless required to do so by our appellate courts." Although the Supreme Court of the United States has in recent years invalidated, for other reasons, sections of the Brady Handgun Violence Protection Act (named for Jim Brady who was shot during an attempted assassination of President Ronald Reagan), Gerstein cited the leading Supreme Court case, US v Miller, decided in 1939. In that case, the justices said an individual’s possession of a shotgun was not shown to have a reasonable connection to a well regulated militia or ordinary military equipment or that its use could contribute to the common defense." Therefore the Second Amendment did not protect possession of the shotgun. The conclusion in most decisions up to this point has been that the Amendment, using the language, "the right of the people," cannot be read out of the context of state militias. The Supreme Court could revisit this if it chose to review the Parker case – and take on one of the most divisive issues in the country
In his scholarly decision, Gerstein adopts the view that the Second Amendment was enacted to protect of state militias from the federal government and not to declare the individual’s right to possess arms. With the disappearance of state militias, courts have generally held, the purpose of the Second Amendment is moot. Parker is "founded on a revisionist view of the Constitutional Convention, which view is far from generally accepted," said Gerstein.
Going beyond the legal history, the New York judge used the decision to present statistics about the "nationwide proliferation of deaths and injuries caused by privately owned guns." Since the 2007 decision in Parker, Washington, D.C. has experienced 750 armed robberies, 520 armed assaults and 111 homicides, according to sources cited by Gerstein in his decision. In the United States, more than 30,000 people are killed each year by guns in murders, suicides and accidents with another 65,000 suffering gun injuries.
While the Legal Aid Society says that no decision has been made about appealing the Handsome decision, any reversal on appeal is generally viewed asextremely unlikely, and therefore unlikely to be pursued.
Emily Jane Goodman is a New York State Supreme Court JusticeÂ