Gotham Gazette

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Criminal Justice

Close to Home

Photo provided by New York Public Library
New York State reformatory, plumbing shop, circa 1921.

In his 2011 State of the City Address Mayor Michael Bloomberg asked Gov. Andrew Cuomo to use an executive order to give control of juvenile offenders from New York City to the city itself. Rather than sending offenders to state-run facilities that are in many cases hundreds of miles away from their homes and are known to be violent and poorly run, the city would place the offenders in facilities close to home.

"The current system is not helping kids, it isn't helping taxpayers and it isn't helping public safety," Bloomberg said at the time. "The bottom line is, I think we all agree we need to stop sending kids miles away from their families and communities. And, instead, authorize the city to fully operate its own juvenile system here in the five boroughs."

But the state budget process had already begun Cuomo had already set his agenda for the year for dealing with the state’s flawed juvenile justice system—by closing some of the most troubled detention centers, trying to improve care in the existing ones and encouraging judges to sentence offenders to alternative treatment programs. Nevertheless at the end of session last year Assemblyman Karim Camara helped the city introduce the Juvenile Justice Realignment Act, that would have accomplished Bloomberg’ goal legislatively.

The bill did not come to a vote but as it turns out this year Cuomo has basically granted Bloomberg’s wish. Instead of using an executive order to hand control of the city’s youthful offenders over to the city Cuomo has made the initiative part of his budget plan as the ”Juvenile Justice Services Close to Home Initiative.” And while the move is not as sure as an executive order—making it part of the Governor’s budget package makes the chance of it becoming law much more likely than if it was a bill being pushed by Camara and the city.

Elizabeth Glazer, Cuomo’s Deputy Secretary for Public Safety, says that the initiative makes sense as part of the Governor’s overall approach to repairing the state’s broken juvenile justice system. She says the state would hand over jurisdiction of juvenile offenders from the city in two phases—offenders who are held in non-secure facilities will be transferred to the city as of this September and offenders in limited secure facilities will be handed over as of April 2013. Kids in secure facilities will remain in state care.

“Before that happens,” explains Glazer, New York City will have to lay out its plan for services that are the least restrictive but meet public safety and are also gender specific and tailored to the LBTQ community. There will public hearings and the city will have to explain how it incorporated the comments or why not.”

The Correctional Association of New York says that it is really the detail of the city’s plan that matters.

“The Governor’s initiative provides a unique opportunity for the creation of a new youth justice system in New York City, one that potentially could bring about better life outcomes for children and strengthen communities,” said Soffiyah Elijah, Executive Director of the CA.

“The CA has, for many years, advocated for keeping children in custody closer to their homes and communities. However, given the many challenges youth justice systems face both in keeping children safe and secure and in meeting the complex treatment and service needs of young people in custody, the details of the city’s plan are paramount,” said Elijah. “We very much look forward to receiving and being able to meaningfully respond to the city’s proposed plan.”

Glazer says it is important to realize that while “stepping back,” the state will, “Maintain crucial strong oversight of the city’s system, conduct on-site inspections and develop performance metrics and analytics,” for the facilities.

Advocates insist that recidivism rates can be reduced if juvenile offenders are kept near home, given support and not treated as career criminals. Kids in state run programs have recidivism rates of 80 to 90 percent while kids treated in alternative programs have only a 20 percent re-offense rate.

Assemblyman Camara has visited a number of treatment facilities and explains that sending a young offender to a secure detention facility in upstate New York can guarantee the child never reforms. “There is a much different culture in alternative programs. Kids that commit non-violent offenses may act tough, they might put on a show but they are not ready to deal with the setting of a secure facility. It crushes their spirit. They don’t get supportive services and the recidivism rate is so high—it is the whole culture and become a part of it.”

The Money

Why is the initiative part of the Governor’s budget package? Simply put—because detaining kids costs money--keeping a youthful offender in a secure facility costs around $260,000 a year. Alternative treatment programs cost about $20,000 per child, per year. And the state, to the chagrin of public employee unions, is slowly but surely getting out of the business of juvenile justice. Last year Cuomo closed detention facilities and this year the system is expected to further lose around 300 beds. The reductions are being carried out in a way that will allow for a regional model of care to possibly be implemented across the state.

Overall the state expects to save $9 million dollars by implementing the “Close to Home Initiative” in the 2012-2013 fiscal year and $12 million in FY 2013-2014. Thanks to the reduced number of kids in the system the state will be able to downsize the detention system and expects to save quite a bit on that--$9 million in FY 2012-2013 and $37 million in the following fiscal year.

The Future

Perhaps most indicative of the way the Cuomo Administration expects to approach juvenile justice for the entire state is another mandate that is part of the “Close to Home Initiative” that will require all family court judges to have a “predispositional risk assessment” of each juvenile offender before sentencing. The one-page document would be designed to help judges decide how likely someone is to reoffend and exactly what kind of setting would best suit them.

According to Glazer the risk assessment will likely evaluate a child’s criminal offense, school attendance and other factors that play into the risk that they will reoffend.

“There is a complete shift of resources being used more effectively and accurately state wide. Every county will be required to have risk assessment at detention.” Glazer points out that the move will not only save money but hopefully prevent offenders who are generally “good kids” from being sent to secure facilities where they might fall in with a far worse crowd than they know at home—thereby reducing recidivism.

Glazer says that the Office of Child and Family Services is working with the Department of Justice and the department of probation to make sure judges and everyone else in the chain is comfortable with working with these new evaluations.

Camara says he thinks his colleagues in the Assembly are supportive of the “Close to Home Initiative” and he expects that when Senators here more about the plan that they will get on board. He says he has seen firsthand what a difference being near home can make for a child in trouble. “I’ve toured these places and there is a huge difference between the facilities in Brooklyn than the juvenile facility on Rikers Island. There is different atmosphere and kids are closer to their family and have the support staff they need.”

A Tangle of Problems Links Prison, Foster Care

Photo (cc) sean94110

Wanda Chambers came to understand motherhood in an unlikely setting: the solitude of a maximum-security prison.

Chambers, now 41, had struggled with addiction for years; she had tried treatment but couldn't stop using. Her crisis bottomed out in 1998, when child welfare authorities took her infant daughter, Princess, and placed her in the home of a foster parent. Soon afterward, Chambers was incarcerated on a drug conviction.

At Bedford Hills Correctional Facility in Westchester, "I was locked up long enough to really strengthen my mind and change my way of thinking," she recalled. When she got out about three years later, she was determined to prove to the government she deserved to have her daughter back. She went through 18 months of court-supervised drug treatment and parenting skills programs before finally regaining custody.

The experience continues to shape her family. She works as an advocate for parents dealing with child welfare. Meanwhile, Princess' former foster mother remains involved, helping care for the child as a co-parent.

For Chambers, prison and foster care brought regret and revelation. "It was definitely a learning experience," she said. "You lose everything, and you break family ties. And I always wanted to get it right, but I just didn't know how."

In New York City's social service structure, two major institutions wield the power to separate families in the name of safety. With the aim of protecting society as a whole, criminal justice agencies sweep up parents through courts and prisons, while the Administration for Children's Services, charged with safeguarding individual children from harm, routinely removes young people from troubled homes. Though driven by different goals, the two systems interact in many families. Critics warn that both types of intervention may further deepen patterns of emotional and social trauma for children and parents.

Drawing by Ken Ng, courtesy of Rise Magazine

Interlocking Systems, Interlocking Problems

There are no comprehensive statistics on families involved with both the child welfare and criminal justice systems in New York City. According to New York State's Department of Correctional Services, the majority of inmates report having at least one child. The Correctional Association, a New York-based advocacy group, estimates that statewide, more than 10,000 children had a mother imprisoned in New York prisons or jails. National data indicate that most mothers in state prisons lived with their children before their current sentence. Of mothers in state prisons with children under 18, about one in ten reported having a child in foster or institutional care; many more had children living with other relatives, though some relatives may also serve as "kinship" foster caregivers.

But national child welfare data reveal more subtle overlaps between the systems. One third of all children reported to local child welfare agencies for being maltreated at home had a primary caregiver who had been arrested at least once. Long-term studies show that families often cycle through social problems that can lead both to losing a child to foster care and to losing a parent to prison: issues such as poverty, substance abuse and mental illness. Demographics underline the connections: people in poor and black communities tend to have heavier involvement with both child-protective services and the criminal justice system.

Reflecting the synergy of environment and family dynamics, most child maltreatment reports are tied not to outright abuse, but "neglect" -- failure to provide sufficient care. A child could become technically neglected if her parent cannot afford adequate food and housing, or is consumed by addiction.

Although a parent's encounter with law enforcement also will not necessarily cause her to lose custody, Children's Services may intervene on an emergency basis if an arrest leaves the child unattended. Reform advocates say these placements can lead to prolonged separation as families wade through the child welfare bureaucracy.

"Over a child's lifetime, mothers and fathers may be arrested multiple times, intermittently use drugs, or have other problems that affect the child's home," said Susan Phillips, a professor of social work at the University of Illinois-Chicago. "People not only progress through the criminal justice system; they loop through it."

The same crises make the home more vulnerable to child welfare intervention. Whether one system is a cause or an effect of the other may be impossible to discern, but both can pull children into a spiral of instability.

The Loss of a Child

Cathy Faust barely had a chance to be a mother before Childen's Services decided she was an unfit parent. A survivor of child abuse, she struggled with depression and drugs throughout her youth, right up to the birth of her daughter Jimeaka in 1990. After charging her with neglect, she recalled, Children's Services pressured her to turn her baby over to the care of her sister-in-law.

Without access to legal help or support services, Faust said, she went along with the plan, but three years later, her sister-in-law moved to adopt Jimeaka and terminate Faust's parental rights.

Though Faust maintained some contact with her daughter over the next few years, losing custody stoked her emotional volatility. "I just felt worthless and hopeless," she said. "It was like I was [the] worst person in the world. So it just made me indulge in drugs more, because I'm feeling less than a woman because I can't even be a mother to my child."

Faust was arrested on drug-related charges in 1998. When she met her daughter again after her release from prison six years later, the legal separation had grown into a permanent distance, and they remain estranged.

Faust, now 47, holds down a job at a social service organization and receives regular therapy. But while her life has become more stable, she said, it is not whole.

Drawing by Edwin Yang, courtesy of Rise Magazine

"That's my only child," she said. "And it's like, OK, my life is together, but it's not together, because that's a piece that's missing. And so much damage that has been done-not just for me, but for her also, for the family."

Recent reform efforts in both child welfare and criminal justice have emphasized preventing mistreatment or neglect and preserving family bonds. Some alternative sentencing programs can route parents into drug treatment rather than prison. Children's Services has stepped up social support services to help children in distressed homes remain with their parents. But advocates say both systems still fail the city's most vulnerable families.

To regain custody of a child in foster care, a birth parent must demonstrate her willingness and ability to care for the child by meeting an array of legal obligations, such as a mandated "service plan" that could include parenting classes or drug treatment, along with periodic review by family court. But Sarah From, director of public policy with the Women's Prison Association, said complying with this can be nearly impossible for a parent behind bars. "The onus is very much on the woman to manage this process of keeping her family together, while she's under the very hard and stressful situation of incarceration," From said.

Children's Services, which must facilitate visits with birth parents, has helped ease the strain of separation with its Children of Incarcerated Parents Program, which provides foster care children with transportation to correctional facilities across the state. In recent years, some prisons have become more accommodating as well. Parenting centers at Rikers and Bedford Hills, for example, allow family visits in a more open, "child-friendly" setting.

Yet, according to the Correctional Association, problems persist at other facilities, including cumbersome security clearance procedures, a lack of social support services for parent-child interaction, and difficulties coordinating visits with child welfare and corrections personnel.

As an advocate, Chambers said she sees many incarcerated parents set back by unresponsive case managers, who are overworked, out of reach or just insensitive to the challenges of incarceration. "I feel like, when a parent is locked up, out of sight, out of mind," she said.

Legal Blockades

Unlike a criminal trial, the family court process centers on assessing a child's well-being, rather than judging evidence of alleged criminal activity. The judge and the city tend to take a preventive approach, focused on broad risks to family safety -- from a lack of medical care to domestic violence.

Shortages of money and staff complicate the legal landscape. Despite recent efforts to make the process more efficient, parent advocates say the system still lacks the personnel and funding it needs to conduct adequate investigations or provide competent counsel.

The hurdles facing imprisoned parents grew higher in the late 1990s with the federal Adoption and Safe Families Act. If a child has spent 15 of the previous 22 months in foster care, the law requires that child welfare authorities file for termination of the birth parent's rights. The aim is to set a time period so the child can find "permanency" instead of foster care -- generally, either reunification with the birth parent or adoption by another family.

Though child welfare agencies can make limited exceptions to the timetable based on family circumstances, the law has tightened pressure on parents to defend their custodial rights. Meanwhile, state policies make no specific exemptions for incarcerated parents, whose sentences typically exceed the time line. According to research led by Columbia University law professor Philip Genty, in the years following the act's passage -- 1997 to 2002 -- termination proceedings for incarcerated parents more than doubled.

Criminal justice reform groups have pushed for state legislation to make the foster care timeframe more flexible for incarcerated parents.

The law's aim of promoting stability has backfired, Genty said. "There's no unified, enlightened policy going on," he said. "The correctional system is making its decisions for its own reasons, the foster care system is making its decisions for its own reasons, and nobody's really keeping track of whether that creates inherent tensions."

Prison as the Final Chance

After returning to their communities, many formerly incarcerated women say prison was the necessary "break" that compelled them to change their lives. But to activists, that attests not so much to the positive aspects of incarceration as to a lack of alternatives. Reform advocates argue that neither locking up parents nor removing children from their homes can substitute for community-based programs that intervene to keep families intact before a crisis hits.

"It's not that the transforming factor or moment had to be prison, per se," said Tanya Krupat, a program director at the Osborne Association, a criminal justice-focused service and advocacy organization. "But it was that prison may have been the first time that a woman felt safe, let's say, because she was in a domestic violence relationship, or it's the first time someone could actually detox and think clearly. Then that's a failure of us not having adequate or accessible drug treatment, domestic violence services and other programs."

After Natalie Credell was arrested in 2005 with her boyfriend on drug-related charges, she was placed on bail and ordered into a residential rehabilitation program, designed to house her and her infant son, Nasir, while she got treatment. But Credell, 31, found the program stressful and stifling. After clashing with the counselors, she dropped out and relapsed. She ended up doing 15 months in a federal prison in Virginia, and Administration for Children's Services placed Nasir in the care of Natalie's father.

Like Chambers, Credell hit a wall in prison. "It just dawned on me that I'm a mom now," she said. "This is not where I want to be. This is not the type of mother that I want to be to my son."

Following her release, Credell found her way to Hour Children, a Queens-based organization for women transitioning from prison that offers job training, childcare, and supportive housing. She regained custody of Nasir in March 2007, and the two now live together at Hour Children while she studies to become a drug-treatment counselor.

Credell traces her crisis farther back than her arrest or even her addiction. She first encountered Children's' Services as a child, she recalled, when her mother's drug use prompted a child welfare investigation. She eventually went to live with her grandmother. But her mother's turbulence had started her on a chaotic trajectory.

"The streets taught her," she said, "and this is what she passed on to me."

Now on the outside, Credell hopes to pass something better onto her son. "A mother is a child's world," she said. "So in order to make things happen for him, I have to make things happen for me."

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.

City Hall and CCRB Negotiate Over Hiring Freeze

under review
Photo by fedjake

The Civilian Complaint Review Board is negotiating with City Hall for an exception to the citywide hiring freeze. The Board wants to rehire an attorney for a program called the Administrative Prosecuting Unit (APU), which independently prosecutes police misconduct trials.

In the past, New York City Police Department attorneys handled all substantiated cases of police misconduct. With APU, the CCRB’s own lawyer is authorized to take on a portion of cases as a lead prosecutor.

In November 2011, the city extended funding for the program through fiscal year 2012, including funds for one attorney and one investigator. However, with the hiring freeze in effect, the Board is unable to hire an attorney who would be the centerpiece of the program. This may change as Daniel Chu, CCRB’s chairman, expressed optimism about his talks with City Hall.

“CCRB is beginning the search for highly qualified candidates for the APU attorney vacancy,” said Chu. “Recognizing the importance of this hire to the continued success of the APU, City Hall has agreed to review our final selection with a view to permitting the hire as a critical hire.”

Mayor Michael Bloomberg’s press office did not comment on the negotiation, except to say “While a hiring freeze affects all City agencies, each case is reviewed individually. Once a candidate is identified, we will review right away.” CCRB has posted a job vacancy on its website.

Talks about a program like APU date back to 2001 when Mayor Rudolph Giuliani and former Police Commissioner Bernard Kerik proposed giving CCRB the authority to prosecute cases. The state courts ruled that all cases that involve disciplinary actions against officers must be filed with the deputy commissioner for trials, instead of a new office proposed by Giuliani. However, CCRB and the police department began working more closely together.

In 2008, the CCRB and NYPD launched a pilot program where CCRB lawyers would participate in a “second seat” capacity during some police prosecutions. In 2010, Commissioner Kelly and the CCRB took this farther, to grant the Board lead prosecution authority on a random selection of cases.

In the years leading up to 2010, the city saw a rising number of complaints against the NYPD, especially over controversial stop-and-frisk practices where police were encouraged to stop and search large numbers of people for weapons. Many complaints dealt with alleged racial profiling by the police.

Christopher Dunn, an associate legal director at the New York Civil Liberties Union said that the NYPD moved to accept the program “because of public embarrassment due to PD handling of cases” in 2009 and 2010, when NYPD allegedly threw out many substantiated complaints of police misconduct.

Only substantiated cases ever make it to trial and it may take the CCRB many months to determine whether a complaint has merit. About 5-6 percent of all complaints to the CCRB are substantiated.

Attorney Laura Edidin prosecuted and won her first solo case for the Board in May 2011 against two Bronx police officers. She served as solo lead prosecutor on seven total cases for the Board and has since moved on to work as deputy executive director for legal affairs at CCRB at the pilot’s conclusion in November.

The CCRB petitioned and won approval from the city to continue the program, citing its effectiveness in maintaining strong police accountability due to the Board being independent from the Police Department. According to a CCRB testimony, the practice also improves communications between the Board and the police and lessens the chance that the NYPD will drop substantiated cases for trial.

Additionally, attorneys who investigate misconduct are in a unique position to give crucial and correct details to a judge and prepare complainants for trial outside 1 Police Plaza.

However, despite City Hall’s authorization of funds for the program, the city’s hiring freeze prevented CCRB from hiring an attorney to replace Edidin and continue APU’s work. The allocated funds currently sit unused.

“This makes the program meaningless because there’s no one there to prosecute the case,” said Dunn.

The CCRB can hire someone from within city government but its director of communications, Linda Sachs, said that the Board would prefer to seek attorneys from the broadest possible pool of qualified candidates. Potential hires will be reviewed by City Hall, which may make a rare exception to the hiring freeze.

The Guns on Our Streets

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In 2002, the Bureau of Alcohol, Tobacco, Firearms and Explosives released a list of the 10 guns most commonly recovered from crime scenes across the country. At the top of the list: the Smith & Wesson .38-caliber revolver and the Ruger .9mm semiautomatic pistol.

Almost ten years later, NYPD Officer Peter Figoski was shot and killed while responding to an early morning Brooklyn home invasion. When Figoski's fellow officers arrived on the scene, they found two guns: a Smith and Wesson .38 and a Ruger 9mm.

The December shooting, the first in which an NYPD officer was killed in the line of duty in more than four years, once again puts the spotlight on two types of handguns that appear to not only be commonly accessible despite strict gun laws, but also the weapons of choice for many of the city's bad guys.

In a statement to the press shortly after the shooting, Mayor Bloomberg praised Officer Figoski and the entire NYPD for their efforts in helping to drastically reduce crime throughout the city in recent years. He also chided federal officials for failing to crackdown on the illegal gun trade.

"[A]s we look at what’s gotten better in New York City over the decades, there’s one thing unfortunately that hasn’t changed – hasn’t changed at all in Washington – our nation’s threat from the weapons that end up as illegal guns on the streets of our communities," the Mayor said.

Lamont Pride, a 27-year-old already wanted in connection with a shooting in North Carolina, fatally shot Officer Figoski with the Ruger .9mm as Pride attempted to flee a basement apartment in Brooklyn's Cypress Hills neighborhood. He stashed the gun under a car as he tried outrun Figoski's partner, Glenn Estrada. The .38, allegedly belonging to co-conspirator Kevin Santos, was later found in a microwave inside the apartment.

A Pattern

The Figoski murder isn't the first high profile shooting involving gunmen with these types of firearms. In 1993, Colin Ferguson opened fire with a Ruger 9mm on a crowded LIRR train, killing six passengers and wounding another 19. More recently, a gunman shot two men with a Ruger .9mm, killing one, while aboard a Q111 bus in Queens. A Smith and Wesson .38, meanwhile, was Bernhard Goetz's weapon of choice when the electronics technician turned vigilante infamously pumped rounds into four young men aboard a subway car in 1984.

Nor are these the only guns being used in shootings throughout the city. Yet, while much of the focus of the NYPD's gun buyback program (the department has recovered more than 7,000 guns since 2008, but declined to give a breakdown of the kinds of guns turned in) has been on exotic and high-powered firearms - a June event netted a Tec-9 loaded with hollow point bullets; previous buybacks have yielded AK-47 assault rifles and Uzi submachine guns - the weapons arguably doing the most damage on the street are smaller handguns like the .38 and 9mm.

In 2010, more than 75 percent of the 8,853 firearms traced after use in an NYC crime were either pistols or revolvers. Recent law enforcement statistics don't break down gun use, tracing and recovery by make and model. Four of the top five guns on the 2002 ATF list, however, were small handguns.

Many of the guns most commonly used in street crimes are what Eugene O'Donnell, a professor of law and police studies at John Jay College who previously served as both an NYPD officer and criminal prosecutor, and other cops call "Saturday night specials": small, cheap handguns that are generally easy for buyers to get their hands on. "Less sophisticated, cheap guns that are easy to use have been the coin of the realm," O'Donnell says.

But not too cheap, according to Charles Key, a gun expert who spent nearly 26 years with the Baltimore Police Department. "There is a myth about Saturday night specials. The old Saturday night special was some sort of cheap knock off, made of less than sturdy steel that you could buy on the street corner from some rat faced guy selling $2 pistols," says Key, who served as an expert witness in the civil case filed against New York City by the family of Amadou Diallo, the 23-year-old Guinean immigrant who was shot and killed by four NYPD officers in The Bronx in 1999.

"In actual point of fact, criminals don't want cheap knock offs." According to Key, there is no inherent quality - price or ease of use, for example - in Smith & Wesson and Ruger firearms that would make them more attractive to criminals than other handguns. "It really depends on the model," he says. "The easiest gun to use on the market is a double-action, semiautomatic pistol, which simply means that when you pull the trigger, the weapon fires."

The Ruger P95 model used in the Figoski shooting is a 27 oz. double action auto loading pistol - when fired, it automatically reloads and recocks itself, so that a user can fire again by simply pulling the trigger - designed to shoot .9mm caliber bullets. Ruger discontinued the P95 in 2005. The gun retails for roughly $400. Smith & Wesson currently offers more than 60 models of its .38-caliber revolvers, ranging in price from about $450 to more than $1,000. The company's Model 10 has been called " the most popular centerfire revolver of the 20th Century." Both companies declined to speak with the Gazette for this story.

These and other smaller handguns are not only attractive to criminals, but also law-abiding citizens who keep guns for self-defense. Smith & Wesson touts its Bodyguard line of firearms, which includes .38 revolver and .380 semi-automatic pistol, as accurate and easy to use as well as "lightweight, compact and concealable for personal protection."

While Key says that widespread criminal use of Smith & Wesson and Ruger handguns is likely an anomaly - there are plenty of less expensive, lightweight and relatively accurate guns on the market - their prevalence may be a simple matter of supply. Smith & Wesson made more than half of the .38s produced in the country last year, while Ruger produced the second most .9mm firearms.

Looking to Washington

In his tenure as Mayor, Bloomberg has repeatedly called for beefed up federal gun restrictions as well as further tightening of what are already some of the country's toughest gun control laws here in the city.

"It's virtually impossible to get a permit for a handgun in New York City" says criminal defense attorney Don Murray, who represents clients in criminal gun possession cases.

In addition to prohibiting persons who've been convicted of a felony from obtaining a gun license, city law also allows NYPD to deny an application by a person it deems to be lacking "good moral character" or where other "good cause" exists. Private individuals who successfully navigate the licensing process are most like to get a premises license, allowing the licensee to possess a handgun only at a specific residence or place of business.

Given the tough licensing rules, It's safe to say that the overwhelming majority of guns on the street are illegal; that is, the people carrying them don't have a license. Possession of a firearm without a license is a felony, punishable by anywhere from one to 15 years in prison.

"It's very, very strict in New York," Murray says. "Mayor Bloomberg has put a lot of pressure on the DA offices to come down hard on gun possession."

Out of State

The illegal weapons floating around the city are often purchased in southern states like Georgia, North Carolina and Virginia along the so-called "Iron Pipeline." The Ruger .9mm used to shoot Officer Figoski was purchased at a Colonial Heights, Va. sporting goods store, by a man who claims that he lost the gun when he was evicted from his home in 2009, but never reported it lost or stolen.

Virginia is the largest out of state source of guns traced in New York crimes, according to a 2009 ATF report. For one Virginia police officer who has investigated illegal gun sales, it's the Old Dominion's gun expos - large gun shows at which private individuals who are not considered dealers can sell guns without conducting a background check and recording basic buyer information - that attract gun hungry criminals.

"We have some of the biggest gun expos in the country where buyers either don't have to fill out paperwork or get someone else to buy a gun and fill out the paperwork for them," the officer, who spoke on the condition of anonymity, says. "The expos are notorious. You'll see a lot of backdoor dealing there."

Guns are also making their way into the city via the internet. Just days after the Figoski shooting, Mayor Bloomberg announced the results of an NYPD investigation finding that 62 percent of online gun sellers contacted through websites like Craigslist and ArmsList agreed to sell guns to buyers who admitted they couldn't pass a background check, a felony offense.

For many firearm enthusiasts, the city's strict gun laws are not only ineffective, their also misguided. According to Charles Key, guns don't kill people. Criminals do. " You very seldom find police officers killed by priests, pastors or accountants," Key says. " It's folly to keep pointing fingers at a gun. You can ban one gun and criminals will find another one."

Indeed, while the city continues to enjoy nearly historic lows in violent crime, including homicides, its strict gun permitting process is nothing new. Bernie Goetz's application for a handgun license was reportedly denied back in the 80s, when the Big Apple was awash in crime. New York is certainly safer than it was in those days, but Officer Figoski's death is a reminder of the danger that criminals with illegal guns pose to both citizens and those who protect them.

Council Bills To Curb Street Vendor Fines Moving to Committee


For Moustapha Cisse, 48, setting up shop each morning can be a nightmare.

Cisse is a general vendor; he typically sells handbags and scarves at 51st street and 7th avenue. His table or cart must be within 18 inches of the curb, ten feet from a crosswalk, 20 feet from a store entrance, and on a sidewalk that is at least 12 feet wide. His license must be worn, visibly, on their chest and not covered by scarves or outwear, and he can’t be on top of a subway grate or too close to a pay phone. Cisse’s found a regular spot to peddle his goods, but choosing that location can’t have been easy. In Manhattan, there are at least 160 blocks with restrictions on vendors — some ban vending entirely on certain stretches while others restrict the time of day vendors are allowed.

Deviations from these rules come at a high price. Fines can cost as much as $1000 for each violation; vendors say that fines can quickly put them in debt or completely out of business. Vendors typically make $15,000 - $20,000 a year, according to the Street Vendor Project, the advocacy group that has lead the charge to change these laws.

Two City Council bills are working to fight these hefty tickets and according to lead sponsor Councilman Stephen Levin, they will likely receive a Committee hearing within the next three months.

“We have a lot of support, this is a matter of months,” Councilman Levin said, calling the fines "outrageous."

The bills, Intro 434 and Intro 435were introduced in November 2010 and already have a majority support — 33 and 35 cosponsors, respectively.

“These are common sense, basic fairness bills,” Councilman Levin said. “[Vendors] are extremely hard-working. These people are trying to put food on the table for their families. For someone to get a $1000 fine for a minor infraction goes against a lot of what we believe in this city.”

The Fine Print

“It’s not doing the city any good to issue such outrageous fines because it just ensures that the people aren’t going to be able to pay them,” Levin said.

Indeed, in 2008 and 2009, the Independent Budget Office found that of the $15.8 million of issued tickets, only $900,000 was paid to the city.

The two Council Bills proposed by Councilman Levin already have a majority number of cosponsors. The first bill, Intro 434, has 33 cosponsors and would lower the minimum ticket to $25 and set the maximum fine cost at $250 and Intro 435, which as 35 cosponsors, would stop the ticket price for rising for unrelated violations, meaning that the fines only rise if the tickets are issued for the same violation.

The 2010 IBO study that investigated the issue also found that the regulation of vendors was costing the city money. In fiscal year 2009, street vendors cost the city approximately 7.4 million, though only $1.4 million was collected in revenues.

The “Easy Targets”

Mohammad Anu Miah, 50, emigrated to the U.S. from Bangladesh in 1998 has been selling hot dogs in SoHo since 2002, but this year he lost his license because he owes $4,513 dollars in fines but doesn’t have the money to pay it. Some of his fines are health code violations — something these bills wouldn’t affect — but one $1000 violation is for vending on a sidewalk less than 12 feet wide.

Miah says he can’t find other work and still owes the money to the city. Sometimes he can’t afford to eat and since losing his license, he’s been unable to send money back to his wife and six children in Bangladesh.

“They refuse to admit that there are ticket quotas, but I think it’s pretty publicly known that there are,” Shapiro said. “Vendors are easy targets – they’re out their on the street, a lot of them are immigrants and they don’t speak great English. It’s hard for them to protect themselves.”

Vendors report that arguing with the cops or trying to show that they are in fact abiding the law only leads to more tickets.

“The lesson I’ve learned is don’t talk,” said Cisse, who said he thinks he’s been targeted by cops. Cisse still has his license, but is in debt to a friend after he had to borrow money for a $750 ticket last year.

Vendors report wide disparities in enforcement. Street Vendor Project explains that the regulations for vendors are so elaborate that many cops can’t keep them straight.

Wanda Foster, 46, was fined for being less than 90 feet from a Subway while selling fruit. Even when she said she used a tape measure to show the cop that she was a full 90 feet from the subway entrance, she still received a ticket. But the law only says vendors have to be ten feet from the subway, according to Matt Shapiro, the staff attorney at the Street Vendor Project.

And while vendors can fight these tickets, Shapiro said that most don't know how to appeal the decisions and language barriers often hurt their attempts. The Street Vendor Project often appeals tickets, but they are rarely successful in getting the ticket reversed.

Air Conditioner at Center of Legal Battle

Photo by BostonBill.

When Stuart Feldman purchased a cooperative apartment in Whitestone, Queens, in 1997, it was to provide a home for his parents, Clara and Jerome Feldman who were in their eighties. Three years later, the family had an air conditioner installed in one room although the building had a central cooling system. After another three years, an employee of the cooperative corporation noticed the unit protruding through a brick wall on the apartment’s terrace. Management said the air conditioner was against their rules. The co-op and the Feldmans have fought this issue in and out of court, where it has now ended in a judicial determination and order. In November, the the Feldmans won their case and were awarded legal fees.

Upon learning of the existence of the air conditioner, the management of the Cryder House informed Stuart Feldman that he was in violation of the lease and the building’s rules which prohibited installation of such units. If he did not remove it within five days, he risked having his proprietary lease and ownership of his shares in the co-op terminated; that would lead to the eviction of his parents.

The boards of directors of cooperative housing, which is considered by some to be an ironic description, have enormous control over their buildings and the occupants. They have almost unfettered powers to act in what they determine to be the best interests of the corporation and the shareholders in general, under something recognized by the state’s highest court as “the business judgment rule.” But in this case the Board came up against charges more powerful.

The board was met by a lawsuit commenced by the Feldmans complaining of discrimination. It was alleged that Ms. Feldman was highly allergic and asthmatic but that air conditioning eased her breathing. The absence of purified air, the plaintiffs claimed, interfered with her ability to carry out the “activities of daily living.” The charge was discrimination based on her physical condition, a violation of federal, city and state laws including the federal Fair Housing Act, and the New York State and New York City Human Rights Laws. Her eviction based on her disability or impairment would constitute an unfair housing practice. The plaintiffs argued that even if there was a violation of the building’s rules, it was minor and was outweighed by Ms. Feldman’s medical needs and legal rights. Still, the defendant corporation continued to press for removal of the air conditioner, and, otherwise, removal of the occupants.

A judicial hearing officer appointed by Justice Martin Schulman of Queens Supreme Court agreed with the defendants that the unit was prohibited, and that the Board had never consented to its installation. However, there was no evidence that this caused substantial damages to the building or other residents, who could neither see nor hear the air conditioner, and who had never complained about it. The hearing officer found that while the building does have cooling units; those units do not provide the filtration provided by the air conditioner, and are not in use all year round. He also reported his findings that Ms. Feldman needed air conditioning to protect her from pollen, dust, mold, lint, feathers, and other allergens which caused her to suffer severe headaches, coughing, sneezing, pain, and difficulty in breathing. An expert witness, Dr. Morton Teich, an allergist and immunologist, testified that exposure to such allergens “induced a reaction including local skin reaction, nausea, burning sensation, itchy throat, dry cough and general malaise [because she is] extremely allergic, hyper-reactive and had delayed reactions [which would last for days].” The air conditioning unit, he testified, was medically necessary for Ms. Feldman’s health.

The post-hearing report led to a determination of discrimination in the defendants’ refusal to accommodate Clara Feldman’s medical needs, without which she could not enjoy the apartment in which she resided, as others do enjoy theirs. The business judgment rule may be nearly all-encompassing, but does not permit co-op boards to discriminate, in this case, against residents who have special medical needs.

While not cited by Justice Schulman, the Court of Appeals had previously ruled in a Manhattan case that a midtown co-op’s ban on the installation of washing machines and dryers could not override all circumstances. In that case, Merle Hirschmann v Constantine Hassapoyannes v 20166 Tenants Corp., Et al., an apartment buyer had cancer which necessitated the frequent laundering of his bed linens and undergarments. The State’s highest court found that the installation of the machines was a reasonable accommodation to the plaintiff’s infirmities, and the board could not discriminate by withholding consent despite their rules.

The result in Feldman v Cryder House is that plaintiffs can maintain the air-conditioning unit as long as Ms. Feldman resides in the apartment. The family will then be required to remove it and repair the wall. The co-op corporation was ordered to pay the Feldmans’ legal fees.

Emily Jane Goodman is a New York State Supreme Court Justice

In New York, the Police Police the Police

Photo by Ken
Decades after Frank Serpico (portrayed in the movie by Al Pacino) blew the whistle on misconduct by his colleagues in the police department, corruption -- though perhaps not on as grand a scale - remains an issue.

Mention the words "NYPD" and "corruption" or "scandal" in the same sentence these days, and many New Yorkers quickly think of ticket fixing. The rest reach for the nearest soap box to decry the department's treatment of Occupy Wall Street protestors.

(For a related article on whether the moves against demonstrators will change political attitudes toward the police and dissent, see Crackdown on Protests Could Spark More Scrutiny of Police)

Both the ongoing prosecution of 16 current officers for making their buddies' (or their buddies' buddies') traffic tickets go away and the rising feud over Zuccotti Park patrolling have for weeks been fodder for local news and afternoon radio show debates. Yet while these sagas continue to play out in judicial proceedings and the court of public opinion, they draw attention away from other, more serious instances of police wrongdoing. Recently exposed criminal conduct -- armed robbery, gun running and drug planting, for example -- by active police officers not only draws a cloud over a department that has made vast strides in keeping the city safe in the last decade, but also again raises an important question that New York has grappled with for more than a century: how to police the police?

A recent report by the Citizens Crime Commission of New York City indicates that, unlike some of the nation's other large police forces, New York's police lack strong, independent oversight controls. "We have been concerned for some time that NYPD is uniquely lacking independent oversight," said Richard Aborn, the commission's president.

If a string of recent criminal incidents is any indication, Aborn isn't the only one who should be keeping an eye on New York's Finest.

A Few Bad Eggs or a Rotten Coop?

On Nov. 1, police detective Jason Arbeeny was convicted on criminal charges for planting crack cocaine on a woman and her boyfriend outside a Coney Island apartment building. At trial, former detective Stephen Anderson testified that during his time on the force undercover cops often planted drugs on innocent people -- what he and other officers called "attaching bodies" to the drugs -- in order to beef up arrest numbers. In finding Arbeeny guilty, State Supreme Court Justice Gustin L. Reichbach said Arbeeny was not simply one rogue cop, but rather the result of the "cowboy culture" prevalent in the city's police drug units.

One of seven narcotics investigators recently convicted for planting drugs, Arbeeny is not the only city police officer to turn up on the wrong side of the law lately. An officer was convicted and three other current or former officers pleaded guilty for their roles in the 2010 armed robbery of $500,000 in perfume from a Carlstadt, N.J. warehouse. Some of the men announced themselves as police officer, displaying guns and badges, during the robbery, in whic11 employees were held hostage.

In October, eight current and former police officers, including 18-year veteran William Masso, were among 12 people arrested in connection with a gun smuggling ring.

All of this is not to mention conduct that, while, not criminal, has raised concern bout police conduct n the city, such as the aggressive, department-wide "stop and frisk" policy that some claim amounts to racial profiling and the recently reported Moroccan Initiative in which officers allegedly targeted Muslims for investigation based solely on their ethnicity.

Police abuse of power is nothing new, in New York City or elsewhere. In 1912 a committee headed by Alderman Henry Curran found that police officers had assisted in robberies throughout the city and, after being caught, were allowed to resign without punishment. Over the years, similar scandals have rocked cop shops from Boston to San Francisco.

Certainly, in a force of nearly 35,000 uniformed officers –New York has more police than Chicago, Philadelphia and Los Angeles combined -- there are sure to be a few bad apples. "The NYPD is the finest police department in the world, and theses arrests do nothing to diminish the selfless commitment of the 35,000 men and women who put on a uniform every day, and who put their lives on the line to keep us safe," Mayor Michael Bloomberg said in a statement following the gun smuggling arrests.

Indeed, the Citizens Crime Commission report calls the city's police department "one of the most effective crime fighting forces in the country" as shown by the nearly 80 percent drop in crime over the last 20 years. But the report also indicates that the department needs stronger independent oversight.

"Independent police oversight is essentially non-existent in New York City," Aborn, a former Manhattan assistant district attorney, said.

What Other Cities Do

The commission compared New York's police oversight methods with those in place at the next five largest police departments across the country: Chicago, Los Angeles, Philadelphia, Houston and Washington, D.C. It identified three "core elements" essential to proper oversight that are apparent in all, but one of these departments (Houston): transparency; independence; and the power to require that the police provide access to documents, personnel and other information.

While New York has two civilian-run police oversight entities, each fairly transparent and with some power to demand documents and interview officers, they are both only quasi-independent, and their power is limited. One refers all misconduct complaints back to the police department for investigation, and the other is limited to simply making recommendations based on the results of its investigations.

New York City's model, in Aborn's views, pales in comparison to that of Los Angeles, which he cites as the gold standard for police oversight. There, the Office of the Inspector General oversees the city police department, operating completely independently of the department's self-policing Internal Affairs Group. According to Aborn, the inspector general has "unfettered access" to information and officers in carrying out its investigations.

For John Jay College police science professor Maria Haberfeld how Los Angeles -- or any other city for that matter-- monitors its cops is neither here nor there. "Oversight is something that should be agency specific. We have over 18,000 police agencies in the United States. NYPD is certainly very different from all of the others both size and logistics-wise," she said.

Nevertheless, the Citizens Crime Commission expressed concern that, unlike most of the other large police departments, New York lacks a completely independent oversight body with the power to compel testimony and the release of evidence from the police department.

What New York Does

The department's Internal Affairs Bureau investigates allegations of corruption and serious misconduct against police officers. Anyone can file an complaint and may even do so anonymously. The bureau worked with the FBI to bring down the gun smuggling ring in October and built the case against the ticket-fixing officers. It does not appear to have been at the forefront of investigating the perfume heist or drug planting incidents.

The two civilian-run city entities intended to independently oversee police operations -- the Civilian Complaint Review Board and the Commission to Combat Police Corruption -- also appeared to have had little involvement with these case. The 13-member review board deals with complaints against police officers alleging specific behavior: "excessive or unnecessary force, abuse of authority, discourtesy or the use of offensive language."

Following an investigation, the board submits findings and recommendations to the police commissioner. The police commissioner is required to cooperate by making records and officers available for inspection and interrogation. Once the board issues its finding, however, the commissioner remains free to implement the board's recommendations, take them under advisement or simply do nothing at all.

Despite its civilian bent, Brooklyn civil rights attorney Richard J. Cardinale said that the board is not nearly as independent as it holds itself out to be. "The Civilian Complaints Review Board and the Internal Affairs Bureau are both rubber stamps for the officers," said Cardinale, who has recently represented clients in stop and frisk related cases against the city. "I don't even encourage clients to go there."

Neither the police department nor the Civilian Complaint Review Board responded to the Gazette's request for comment.

Last year, the review board found sufficient credible evidence to believe that an officer acted improperly in 11 percent of the complaints it investigated. The number of officers involved in substantiated complaints last year -- 377 – was the highest number since 2006. The department took some sort of disciplinary action, which can range from an oral warning to termination, in 78 percent of those cases.

The Commission to Combat Police Corruption's monitors all the department's corruption control policies and procedures. It reviews all corruption complaints received by the department as well as Internal Affairs' investigation of these complaints. The commission is authorized to demand police department documents for auditing purposes. It also receives corruption complaints.

On its website, the commission touts itself as "completely independent of the NYPD." Yet it also advises, "Please be aware that the commission does not, absent extraordinary circumstances, handle investigations itself. Complaints received by the Commission to Combat Police Corruption are, when appropriate, forwarded to the NYPD's Internal Affairs Bureau for review and investigation. In some instances, the commission monitors complaints that have been forwarded to the Internal Affairs Bureau."

Thus, while the review board and the Commission to Combat Police Corruption are both on their face independent entities, neither has final enforcement authority. In the case of the board all of its recommendations are subject to department approval. As for the commission, any complaints it receives are actually investigated by the officer's peers in Internal Affairs.

Debating Independence

Aborn believes the current system simply isn't good enough. "An entirely independent body with subpoena power is necessary to reassure the public that its findings will not be tainted and to serve as a deterrent to officers," he said.

In a 2008 report, the good government group, Citizens Union, issued a review of police policies and procedures and also called for a more independent review board and a "stronger" commission to combat corruption. Among other things, the group advocated letting the review board prosecute cases and that it have more money for staff and investigations. (Citizens Union's sister organization publishes Gotham Gazette.)

But not everyone agrees independent oversight is the sine qua non. "Policing is a profession that can be fully understood only by its members," said Haberfeld. "I understand the need for accountability and to include citizens, but to make oversight completely independent without police input is to already indict the profession."

One thing that Haberfeld, Aborn and Cardinale agree on is that the department's current oversight models can be improved.

"I would like to see more accountability at the precinct level," Haberfeld said. While she thinks that current safeguards are sufficient, she added, "It's one thing to have the structure in place; it's another for it to be carried out effectively."

Cardinale has his own ideas about how local police can be made accountable: "I think that the Justice Department needs to intervene, the same way that they did in New Orleans."

Who Judges the Judges?

Photo by Joe Gratz

On June 8, 2009 -- the same day as the notorious State Senate coup -- a group of state senators began hearings on the Commission on Judicial Conduct and New York's system for disciplining attorneys. During the hearings, witnesses testified as to how the state's judicial watchdog group had ignored their complaints about judges and rebuffed their attempts to ascertain what happened to their complaints. Overall, many said, they were left feeling helpless before the justice system.

On Sept. 24, 2009 another hearing was held in Manhattan. The parade of witnesses with complaints about judges who allegedly flout the law, hold grudges against lawyers and levy absurdly large fines for perceived slights continued. In fact so many people wanted to testify on the matter that a third meeting was scheduled for Dec. 16, 2009.

That hearing never took place. A notice was issued that the hearing had been cancelled and would be rescheduled. It never was.

No findings were issued, no committee report was put together and no task force was called to investigate as some senators had suggested while reacting to testimony.

What happened? According to Senate Minority Leader John Sampson who headed the proceedings, he got too busy. “We started these hearings right when the coup happened. I believe that it was just the demands I had as leader. I couldn’t do everything,” he said. Sampson was anointed leader of the Democratic conference after the coup and continued to lead it after the Democrats returned to power. Many other Senate hearings continued during and after the coup.

In the two years since, no one has held any additional hearings on judicial accountability, but critics say the issue has not gone away. Observers and many people who have had bad experiences say the state's judicial watchdog ignores major complaints to focus on infractions of low-level judges, dismisses many worthy complaints and does all this in secrecy.

When Judges Misbehave

The Commission on Judicial Conduct is tasked with accepting complaints against judges and investigating complaints deemed meritorious. But a number of critics say the commission investigates lower level town judges for small infractions while ignoring repeated complaints against higher ranking judges such as those on the state Supreme Court. The Commission on Judicial Conduct has 11 members, each of whom serves a renewable four-year term. The governor appoints four members, the chief judge three and the speaker of the Assembly, the minority leader of the Assembly, the temporary president of the Senate (the majority leader) and the minority leader of the Senate each appoint one.

Of the governor's appointees, one must be a judge, and one must be a member of the state bar. The chief judge must appoint a justice of the Appellate Division, a judge who is not from the Court of Appeals or Appellate Division, and one who is a justice of a town or village court. Legislative leaders may not appoint anyone who has served as a judge.

Saratoga Family Court Judge Gilbert Abramson was the only judge removed by the commission in 2010. He allegedly made comments about a woman’s shirt that were “full of sexual innuendo.”

Two other judges resigned while under investigation. One had approved of anti-semetic comments in court, the other hadn’t bothered to sentence 100 people who had been convicted. Twelve judges were censured last year for a variety of reasons.

A number of observers, including commission members feel that the commission is far too reserved in its disciplining of judges. Albany Family Court Judge Gerald Maney tried to use his position to get out of a driving while intoxicated charge and yet he kept his seat. But critics say even more serious allegations are ignored -- ones about cases being fixed, rights being ignored and clear conflicts of interest.

Watchng the Watchdog?

So what came out of the hours of testimony, the money, time and miles witnesses spent getting to Albany, the risk lawyers took by complaining about judges in a public forum?

In 2010 Sampson began pushing a piece of legislation that would open judicial disciplinary hearings to the public -- not the actual complaints against judges, but the proceedings that take place after the commission has found sufficient reason to proceed against a judge. Proceedings such as these are open to the public in 35 other states. In New York, the proceedings are public only if the judge waives the right to a private hearing and agrees to have the accusations aired in public. Information about cases that result in disciplinary action are available to the public after a decision has been made.

Robert Tembjeckian, administrator and counsel to the Commission on Judicial Conduct, supports making the proceedings public. But he points out that no one is exactly in a rush to act on such legislation. “There is a preoccupation with economic and budgetary issues. At the moment it doesn’t seem to be a major concern," he said, adding, "The best case to move it forward is hopefully one house will see fit to have public hearings, generate momentum and public discussion.”

Sampson says he may initiate hearings on the Commission on Judicial Conduct early next year. “Reforms are necessary. Lady Justice is supposed to be blind but she has a hole in her blindfold and her scales are not balanced. There is a call out there [for hearings],” Sampson said. Sampson said he plans to start early in the year, and thinks he will enjoy the support of Gov. Andrew Cuomo. “I know our governor is all for reform. He believes people lost faith in our government and he wants to restore it, so I know this is something governor would truly support.” Cuomo’s office did not return calls for comment.

While Sampson may be prepared to hold hearings, other supporters of the measure aren’t exactly chomping at the bit. Dennis Hawkins, executive director of The Fund for Modern Courts, says the economy has led his group to focus on court budgets and working for judicial pay raises. He expects the budget to be a major focus during the 2012 session as well. “Sometimes larger issues block out other issues,” he said.

Peter Barlet, president of the New York State Magistrate’s Association, said his organization has no position on the issue but said making hearings public could “be a concern among judges who have to run for office.” He said opponents could use baseless cases as ammunition against sitting judges.

Case Dismissed

Despite the talk about opening hearings, that was not the key concern of a majority of the people who testified in 2009. “None of those people said they lacked confidence in the commission because hearings weren’t open,” said Elena Sassower, director of the Center for Judicial Accountability, a group that describes itself as "a national nonpartisan, nonprofit, citizens’ organization documenting how judges break the law and get away with it." Instead, Sassower said, "They lack confidence because their detailed, documented complaints were dismissed without reason and they were told the reasons were confidential.

A majority of the testimony focused on complaints the commission decided not to pursue. Attorney Regina Felton described how one judge routinely altered the court record, failed to file motions and repeatedly fined her large amounts. Since these motions were not filed. Felton had difficulty appealing them. Eventually when the judge demanded she pay $6,700 in fines Felton told the judge she had appealed, but he sent her to Rikers Island where she spent 11 days. Other complainants detailed how judges who oversaw their cases had conflicts of interest thanks to business relationships.

Currently there is no way to judge how the commission performs its duties when it comes to investigating meritorious cases, because all complaints are secret.

In 1989 then State Comptroller Edward Regan attempted to audit the Commission on Judicial Conduct. The report that came of the attempt was titled “Not Accountable to the Public: Resolving Charges Against Judges is Cloaked in Secrecy.”

"The commission has denied our request for access to confidential files and has refused to propose legislation to open its records to my office," Regan said in a statement accompanying the report. "As a result, my auditors cannot determine if the commission is complying with applicable state laws and regulations." Regan added, "The potential exists that the commission could be abusing its authority by wrongfully dismissing complaints against judges without cause and justification."

The only group pushing to actually make these complaints available to the public is the Center for Judicial Accountability. Sassower said, "Making the hearings public is like snow in the wintertime. Opening hearings will only give us an idea of what is going on with a handful of complaints, not addressing the 95 percent that do not result in an investigation."

Sassower says she has a good idea about the number of complaints the commission gets and does not act on, because she encourages complainants to forward their grievances to her organization. Sassower’s group has brought suit against the commission a number of times, each case has failed and she has since been barred by the judiciary from bringing any further cases.

Sassower says the commission routinely ignores meritorious cases and even destroys complaints it has held for five years, thereby making it impossible to track a pattern of complaints against judges who serve long terms. She wants the veil of secrecy to be lifted so that the public can see whether the commission is doing its job.

The Power of the Purse

The center has recently started pushing its case in a new way: attaching the issue to the very sensitive topic of judicial pay raises.

The Special Commission on Judicial Compensation was created by a 2010 law that mandates the group recommend salaries for judges. This year, the group issued a report recommending a 27 percent pay increase. The recommendation is binding and will go into effect next year unless the legislature blocks it. Late last month Sassower’s group issued its own report, which said the increase should not be given and charged that that the testimony given to the Senate in 2009 adds up to “evidence of systemic corruption” that “disqualifies judges from pay raises by a constitutional bar.”

Other groups that work on court issues are loathe to tie judicial pay raises to increasing transparency at the Commission for Judicial Conduct. After all, those same groups have been pushing for judicial pay raises for years.

“I don’t think that’s the way government works,” said Dennis Hawkins of the Fund for Modern Courts. “That seems like a way of coercion by the legislature against the judiciary. We need to keep the judiciary a separate, independent branch of government. Judges don’t have the ability to change the Commission on Public Conduct, so we shouldn’t be penalizing people who aren’t in charge of it.”

Others disagree with the very idea of opening the records. Tembjeckian, the commission’s administrator and counsel, says that the promise of confidentiality regarding complaints made against judges is “important and explicit. The statutory mandate precludes that even a grand jury cannot subpoena commission records. You are innocent until proven guilty.”

But Sassower argues that it is public record when a judge is sued. She notes that she has tried to get members of the press to write about the many complaints she has collected over the years, but to no avail. “The media is not running to cover complaints against judges. The fear is baseless.”

Sassower has distributed her report to the office of Chief Justice Jonathan Lippman, the governor and the heads of the legislature. She is currently awaiting response.

Police Found Not Liable for Failure to Protect Shooting Victim

pushed out
Photo by Dave Hosford

When Carmen Valdez's onetime boyfriend threatened to shoot her, a New York City police officer assured her that he would be arrested. The boyfriend followed through on his promise, but the police did not.

Still, the case of Valdez v. City of New York alleging failure to provide adequate police protection has now been dismissed by New York's highest court. Five of the seven judges of the Court of Appeals in Albany reversed a Bronx jury verdict and determined that the plaintiff did not have a "special relationship" with the police department that would allow her to have a "justifiable reliance" on the city's promise to arrest her assailant, Felix Perez, before the shooting.

A Promise, Not a Guarantee

The events surrounding this case go back to 1996. Because she had been abused, harassed and threatened by Perez, Valdez had a Criminal Court order of protection against him. After the telephoned death threat, the victim and her children set out for a relative's home, but stopped to call the police Domestic Violence Unit to make a report. Officer Jose Torres, who had previously been assigned to the case and was familiar with it, told her to go home and that Perez would be arrested "immediately."

The next day, though, when Valdez stepped out of her apartment door, Perez was waiting. He pushed her back inside and shot her three times -- twice in the face, once in her arm -- in front of her five-year-old twins. He then killed himself. She survived.

During the trial in 2006, Torres denied that the exchange with Valdez about arresting Perez had ever taken place. The jury, though, believed it had occurred. Despite that, the appeals court found that Torres' contention that Perez would be arrested "immediately" did not mean she was "entitled to pursue a claim against the municipality."

Providing police protection to the public does not create a duty to a particular individual who is a victim of violence, the judges determined. "The government is not an insurer against harm suffered by its citizenry at the hands of third parties," their ruling said, adding that a call or conversation with a member of the police force does not create a "special relationship" beyond the duty owed to the general public.

Sharing the Blame

The Bronx jury had awarded the plaintiff damages of $9.93 million, but found that she and the city were each 50 percent at fault for the attack. They attributed fault to Valdez because she returned to her home and stepped out of her apartment into a "zone of danger," even though she had no reason to assume Perez was actually in custody.

The Court of Appeals opinion written by Judge Victoria Graffeo relied on this finding. It was not reasonable, according to the judges, for Valdez to conclude, based on nothing more than the officer's statement, that the police were going to arrest Perez "immediately" and "that she could relax her vigilance." This erroneous belief on her part apparently led her to exit her apartment some 28 hours later without having any further contact with the police.

Valdez testified that she did not call Officer Torres again to inquire because she believed he would not be at the precinct but would be looking out for Perez. The city argued that arresting Perez "immediately" would be impossible since the police would have to find him first.

"Although, in a colloquial sense, we should be able to depend on the police to do what they say they are going to do -- and no doubt the police have an obligation to attempt to fulfill that trust -- it does not follow that a plaintiff injured by a third party is always entitled to pursue a claim against a municipality in every situation where the police fall short of that aspiration," Graffeo wrote. "The element of justifiable reliance must be assessed through the prism of reasonableness, and liability will not always extend to a municipality for injuries caused by the violent acts of a third party."

To illustrate what would constitute a special relationship, the judges cited an earlier case on Long Island in which a police car was stationed at the victim's home awaiting the purported assailant. In that case – Mastroianni v. County of Suffolk -- the victim was attacked when the officers left for a dinner break.

A Sharp Dissent

In the Valdez case, Chief Judge Jonathan Lippman came to the opposite conclusion from the court majority and would have upheld the jury's verdict. He found that the jury was entitled to determine that Valdez acted reasonably in relying on Torres' statement to her.

Using strong language in his dissent, Lippman wrote, "It does not seem possible to say as a matter of law that it is unreasonable to expect the government to act in accordance with its legal mandate... . This is from a legal perspective merely incorrect, but from an equitable and policy perspective devastatingly wrong. Orders of protection are intended to, and do, foster reliance. To now say that they may not be reasonably relied upon, even in a situation where the party who has been adjudicated in need of protection has been specifically promised that the order will be enforced and has no objective indication that her reliance was misplaced, fundamentally subverts the utility of these orders."

Lippman characterized the events as "lulling the injured party into a false sense of security" that induced her "to relax [her] own vigilance or to forego other available avenues of protection."

A second dissent was by Judge Theodore Jones. The judges joining in the majority opinion were Eugene Pigott, Susan Read, Carmen Ciparick and Robert Smith.

Emily Jane Goodman is a New York State Supreme Court Justice

Making Bikes a Part of the Neighborhood

Bike Share
Photo by nycstreets

The brouhaha in the press about bike lanes seems to have subsided for now and the buzz has turned to New York City’s plan to launch the largest bikeshare program in the country. Highly publicized efforts to erase new bike lanes, like the failed court case against the Prospect Park West bike lane in Brooklyn, may have run out of steam. But in the long run, the battles over street space are bound to move beyond downtown and City Hall to the city’s hundreds of neighborhoods where there are many cyclists and very few bicycle lanes, raising complex and long-neglected issues of transportation justice.

Next year New York City’s bikeshare program New York City’s bikeshare program will place 10,000 bicycles at 600 locations in Manhattan and Brooklyn, so that for a minimal charge New Yorkers can get around the city – as an alternative and supplement to private cars, taxis, walking and mass transit. People will be able to pick up a bike at one station and leave it at another. Boston, Washington, DC, Paris and scores of other large cities around the world already have successful bikeshare programs that are expanding bicycle use and changing the way streets are shared.

New York City’s bikeshare program didn’t just spring from nowhere. It crowns decades of gradual changes that have helped make the city safer for bicycles and pedestrians. Unless we begin to understand how biking got this far, however, the press and public could get sidetracked again by high-profile no-bicycles-in-my-backyard antics, and miss an historic opportunity to shape the city’s rapidly expanding bicycle network.

How We Got Here

It took New York City a lot longer than many other big cities to get to bikeshare, but it would not have been possible at all if there hadn’t been decades of advocacy both from outside and within government. While there was cycling in New York before there were cars, as street space became monopolized by motor vehicles, cycling became dangerous and difficult. Transportation Alternatives Transportation Alternatives, the city’s largest advocacy group, was founded by bicycle advocates in 1973 and has grown dramatically both in size (with 8,000 members today) and scope (it now works for pedestrian safety, better mass transit, and in general for “reclaiming streets” as public spaces). In the 1990s, partly as a result of pressure from advocates like Transportation Alternatives, the city’s Department of Transportation openly debated the agency’s standard orthodoxy – shared by many traffic managers around the country – that gave priority to the movement of motorized traffic as quickly as possible throughout the city. This engineering dogma actually contributed to congestion because it only encouraged more people to get in cars, and turned major roads like Queens Boulevard and Eastern Parkway into dangerous highways. DOT considered using a different approach that is widely used around the world: traffic calming – which slows car traffic to make streets safer for other forms of transportation like pedestrians and bicyclists. Research clearly shows that slow streets save lives and reduce crashes just as slow food is healthier for you.

In 1997, with the City Planning Department and federal funds, the city made a major breakthrough with its Bicycle Master Plan (full disclosure: I was on the technical advisory committee). At that time there were 119 miles of bicycle lanes and the plan proposed another 900 miles, still covering only about 15% of all streets and highways. The planned bike network reached into the five boroughs and set clear standards for safety and design. Progress was slow and almost all of the new bicycle lanes were simply stripes painted on the pavement, which offered limited protection to cyclists from motorized vehicles. The city’s long-term sustainability plan PlaNYC2030 in 2007 boosted the importance of the lane network and called for its completion by 2030 – hardly an ambitious goal but at least it projected an end date. The promotion of cycling fit in with the 2030 plan’s call for cleaner air, a healthier environment and decreased reliance on fossil fuels that contribute to global climate change.

Mayor Michael Bloomberg'’s appointment of DOT Commissioner Jeanette Sadik-Kahn in 2007 logically followed this long and slow shift in transportation policy; the new commissioner was a clear voice for a more integrated approach to transportation that focused more on the long-neglected infrastructure for safe cycling and pedestrian circulation while still filling the potholes. DOT’s comprehensive approach took the form of the 2008 Sustainable Streets Strategic Plan – the agency’s first strategic plan -- and adoption of a “Complete Streets” approach that values access by all street users and not just cars. DOT also led an inter-agency group that prepared a new Street Design Manual, effectively setting out planning rules for the city’s most valuable public places. New physically-separated bicycle lanes were built on Ninth, First and Second Avenues in Manhattan, among others, addressing the problems of safety for cyclists as well as vehicle parking in bike lanes. The pace of lane development quickened and in four years 250 new miles of bike lanes were put in place, more than doubling the number of miles. Bicycle use more than doubled, and both pedestrian and cyclist casualties declined. In addition, DOT applied traffic calming principles more often, turning some traffic-clogged streets into popular public plazas, putting speed humps on residential blocks, and widening sidewalks at intersections to increase pedestrian safety.

The Neighborhoods and Community Boards

Not everyone is delighted with the trails blazed for bicycling. Vocal opposition in some places has forced DOT to slow down. Some new lanes were erased, like the eight blocks in Williamsburg, Brooklyn that some residents opposed. But so far there are many more bikers filling up new lanes as they get created and bikeshare is likely to give cycling a huge boost, helping to overcome widespread concerns by people who want to bike that they will be out there alone facing a sea of fast-moving cars and trucks. There is still the question of whether the city’s next mayor, who takes office in 2013, will put the brakes on or go in reverse. But those who dream of going backwards haven’t studied the history I’ve cited and underestimate the support for change. Whichever way the next mayor goes, there is likely to remain institutional support for cycling throughout government and beyond, and that will not evaporate after an election.

With bikeshare, and looking beyond it to the future, neighborhoods and community boards are shaping up as more critical players in the game. The next round of decisions on bicycle lanes will depend less on the route system laid out in the 1990s and more on what neighborhood residents and businesses have to say. DOT is inviting proposals for bikeshare stations from community organizations and on its website. This can open up possibilities for creating new, neighborhood-based networks for safer cycling – a logical next step given that most cycling is for short local trips and not long-distance commuting, and many of the original bike lanes covered long distances.

A looming problem, however, is that the traditional institutions for community participation – the city’s 59 community boards – are not equipped to participate as an equal partner in the planning process. Community boards Community boards are the closest thing we have to neighborhood-level government. Since community boards have limited authority, city agencies tend to ignore them and the first slight is in the city budget. The average community board has a (declining) budget of about $1.42 per capita each year (compared to $7,500 that goes into the city’s big budget pot). Their staff is small and even though the City Charter calls for each to have a professional planner, the city has never appropriated the money. Most boards have transportation committees, but there’s no training and support for the volunteer members. Community boards routinely review proposals for bicycle lanes and even though they have no veto power it can take only a few disgruntled speakers angry at losing a parking space to kill a proposal.

The problem with this system of neighborhood governance is that it could lead to the creation of a more sharply divided city, one for cyclists and pedestrians and another for the car culture. Community boards open to more bike lanes have usually gotten them. They usually have more cyclists who attend board meetings and get appointed to the boards. Those community boards opposed – especially in areas far from Manhattan with higher rates of car ownership – have not. Some of the boards – appointed by the borough presidents in consultation with city council members – are dominated by car owners and leave out cyclists entirely. There are no citywide standards that require all street users be represented. This is why the existing bicycle lanes tend to be concentrated in Manhattan and parts of Brooklyn nearest downtown – the very areas to be covered by bikeshare.

Community boards need the resources to do integrated transportation planning in collaboration with DOT, planning that addresses the needs of all street users. Community board members should include transit users, pedestrians and cyclists as well as car owners. However, DOT and the city are going to have to do more to avoid creating a more divided city. The agency’s legacy of top-down planning, reinforced by a top-down mayor, has contributed to bad blood with some of the city’s community boards and works against creation of a collaborative environment and a more representative planning process.

A proposal to fix the process, Intro 412A, currently under discussion by the City Council Transportation Committee would impose new requirements for review of bicycle lane proposals by community boards. But this just puts roadblocks in the way for even minor bicycle safety measures and hands to exclusionary community boards another tool for stopping the bicycle program. It does not address the institutional problems and would make them worse by generating more meetings without guaranteeing more democracy.

While DOT has to learn how to work collaboratively with community boards and all community-based organizations, the agency must retain the last word on street safety. It is a major steward, though not the only one, of our most prized public spaces. No community board should have the right to say no to safe cycling and pedestrian ways, throw thumbtacks in a bike lane, and declare “no-bike-lanes-in my backyard.” If it’s obvious that no board should exclude cars then it should be obvious they cannot exclude bikes. A city-wide transportation system must be balanced and guarantee safe access for all users – that’s what integrated transportation planning is all about. We need one street system connecting us all, not 59 isolated enclaves.

Transportation Justice

The broken system for making decisions about transportation in neighborhoods leads us to the issue of transportation justice. Contrary to the charges that the city is being taken over by cyclists, there are many thousands of cyclists who never get counted or consulted. They are virtually “invisible,” and many of them are new immigrants and people of color. In a nine-month study of bicycle policy conducted by graduate students in the Urban Affairs & Planning program at Hunter College (full disclosure: I taught the class), students developed a methodology for identifying and counting cyclists in the city’s many new immigrant communities. In Flushing (Queens), their tri-lingual survey found a large population of cyclists and almost no bicycle lanes and bicycle parking. They also found that most people used bicycles to go short distances, leading to a need for more than just a few select lanes and instead rethinking the whole street network. They propose developing neighborhood bike networks, working with community boards so that streets are truly “complete” and safe.

The Hunter students warn that we could be developing an even more segregated system of transportation: bicycle lanes, public plazas, and a safe and healthier environment in the wealthiest parts of the city – Manhattan below 96th Street and Brooklyn’s upscale neighborhoods – where bike lanes are concentrated and heavily used, while the rest of the city gets congested roadways, declining bus service, and unsafe conditions. Some people mistakenly think that bike lanes cause gentrification; this is clearly not true since cyclists in New York are truly a diverse population, representative of the majority which is Latino, African American, and Asian. But the myth is perpetuated by many real estate developers anxious to sell their new condos. Though bike lanes don’t cause racial, ethnic and class divisions, if they are perceived as only for the affluent young newcomers in spandex , and everyone else is invisible, the bike network won’t serve the majority of the population. In too many communities, it is not bicycle lanes but the lack of them that reinforces social exclusion.

Tom Angotti is Director of the Hunter College Center for Community Planning and Development and co-editor of Progressive Planning Magazine.

Doctor Sued for Mixing Sex and Psychology

Sex and Malpractice

When does a physician's sexual affair with his patient become medical malpractice?

When he treats her for mental health issues, the New York State Supreme Court Appellate Division, Second Department has determined.

In a September decision and order in the case of Dupree v Giugliano, three out of four judges who heard the appeals of the results at trial, determined that when a Long Island family practitioner — who was neither a psychiatrist or psychologist — began treating his patient for depression and panic attacks, prescribed anti-depressants and conducted "talk therapy," he was providing her with mental health services. As a result, the sexual affair that followed constituted medical malpractice.

The problem was not that he went beyond his medical expertise, but that he became physically intimate with a patient to whom he was rendering psychological care. That made the doctor subject to the same standard as a mental health professional who has sex with a patient, something that is broadly condemned. The appellate court called the defendant's conduct "reprehensible."

"A sexual relationship between a mental health provider and a patient is a departure from the standard of care, whether it is characterized as part of the treatment or independent of it, and it is a departure" from the accepted standards, the court wrote. "When the defendant started providing 'talk therapy,'" the appellate court wrote, "[he] assumed the duty of care applicable to mental health providers."

The acceptable conduct for mental health professionals and intimate relations with patients is higher than it is for other doctors, and sexual relations are a departure from accepted standards.

What the Doctor Did

The doctor, James Giugliano, also referred the patient, Kristin Dupree, to a psychologist who was a friend of his. In therapy with the psychologist, Dupree discussed having a nine-month affair, but because of the friendship between the two doctors, she did not reveal that her lover was actually Giugliano. The court saw this as evidence that his conduct damaged her. Once the affair ended, Dupree confessed to her husband who then proceeded to get a divorce.

A Long Island jury had found that Giugliano's conduct, was medical malpractice because it departed from accepted medical standards, interfered with the plaintiff's treatment and caused damage to her. The jury awarded her $416,500 in damages, including $150,000 for past mental distress, $50,000 for future mental distress, and $134,000 for loss of past financial support, and also awarded the plaintiff $166,000 in punitive damages. The jury also found that the doctor was 75 percent liable and Dupree 25 percent liable, reducing the award to her by a quarter.

Both sides appealed, he seeking dismissal, and she asking the court to attribute 100 percent of the liability to the defendant. She also wanted an increase in monetary damages and the legal fees she incurred in the divorce commenced by her husband. Both appeals were denied, and the court upheld the jury's verdict.

The court's majority agreed that there is a special duty of trust here, writing, "A mental health provider's duty is different, and a sexual relationship between that provider and a patient violates the trust that lies at the heart of the relationship." The court upheld punitive damages, which is unusual, saying that the doctor demonstrated "gross indifference to his patient's well-being."

Immoral but Not Actionable

The one dissenter, Judge Peter Skelos, saw the plaintiff's case differently and would have dismissed it entirely. He reasoned that a doctor cannot be liable for malpractice that is unrelated to his medical treatment even where it is unethical and a "moral impropriety." In other words, Giugliano committed no malpractice in his field – family medicine.

In his dissenting opinion, Skelos wrote, "By engaging in sexual relations with the plaintiff, the defendant may have committed professional misconduct warranting disciplinary penalties, such as revocation of his license. Further, the defendant undoubtedly acted unethically from a moral perspective, particularly due to the plaintiff's vulnerable emotional state. However, not all immoral conduct is actionable in tort. Nor does a violation of professional ethical guidelines, if such were the case here, by itself necessarily support a civil cause of action to recover damages for malpractice."

Skelos relied for precedent on a 1996 opinion by the same court that heard the present case. It too involved a doctor defendant – an allergist &dmash; who saw the patient twice a week for allergy injections and also, on an undisclosed schedule, for sexual relations. That case, Gross v Kurk had been dismissed at the trial level. The dismissal was affirmed with the appellate court saying, "Negligent conduct by a physician constitutes malpractice only when the conduct constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment." The Gross opinion went on to say, "In the instant case the plaintiff made no allegation that her social and sexual relationship with the defendant constituted part of her treatment or was in any way related to her treatment."

The judges in the majority in the Dupree case, Joseph Covello, Ruth Balkin and Leonard Austin, rejected Skelos' analysis because in the Gross case, unlike the more recent one, the doctor never provided mental health services to his patient.

Emily Jane Goodman is a New York State Supreme Court Justice

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