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Criminal Justice

Court Ruling Settles Key Question for Tenants, Landlords

Photo (cc) Dr.DeNo
The state's highest court cleared up a dispute about rent hikes at Peter Cooper Village.

Can New York landlords terminate rent stabilization while receiving tax benefits from the city? This question, which has been on the minds of landlords and tenants throughout New York, has now been answered by the state’s highest court. And the answer is "no." Building owners cannot reap the benefits of both tax abatements and destabilizing apartment rents at the same time.

The Court of Appeals opinion in a lawsuit brought by tenants of Peter Cooper Village and Stuyvesant Town will have widespread repercussions. Tenants who may be affected are pleased with the result, while landlords predict there will be great upheaval in New York’s housing market.

Writing in the New York Law Journal attorney Warren Estis (who has represented the defendants in the past and who filed a brief in this case on behalf of the landlord-based Rent Stabilization Association of New York City) said, "The decision has sent shock waves throughout New York City’s real estate and financial communities."

A Citywide Impact

The case of Roberts v. Tishman Speyer Properties, L.P. involves approximately 4,000 apartments in the Peter Cooper Village and Stuyvesant Town complexes, which cover about 80 acres between 14th and 23rd streets along the East River, but it is binding on all landlords who have rent stabilized apartments and also receive public benefits, in the form of tax relief.

The majority of the high court judges wrote, "Building owners who received [tax] benefits forfeit their rights under the luxury decontrol provisions if their buildings were already subject to the Rent Stabilization Law."

Owners remove apartments from the protection of the Rent Stabilization Law and Code so they can raise rents to market levels.

The tenants claimed that the building owners improperly and unlawfully raised rents on thousands of apartments, bringing them to market level while the property owners received public benefits under New York City’s J-51 tax abatement program, part of the Real Property Tax Law. The plaintiffs "sought a declaration that units in the Peter Cooper Village and Stuyvesant Town properties would remain rent stabilized 'until the last applicable . . . benefits period . . . in or about 2017or 2018.'" They also sought rental overcharges of $215 million and attorney’s fees.

Metropolitan Life Insurance Co. built the affordable housing in the 1940s after World War II. The apartments had been rent stabilized since 1974, when the Rent Stabilization Law came into existence, the tax breaks came in 1982. While taking advantage of the J-51 entitlement since 1992, the owners had realized public benefits of $24.5 million.

Soon after Metropolitan Life sold Peter Cooper Village and Stuyvesant Town to Tishman Speyer Properties, L.P. in 2006 for $5.4 billion, the plaintiff tenants commenced their lawsuit. They based their challenge on the fact that, under Met Life ownership the buildings began receiving tax benefits in the form of exemptions and/or abatements designed to encourage housing rehabilitation and improvements,

Parsing the Regulations

The lower trial court originally dismissed the lawsuit. The landlords’ entitlements, the first judge found, were based largely on advisory information and interpretations issued by the state Division of Housing & Community Renewal, a finding the Court of Appeals later rejected.

The 1993 Rent Reform Regulation Act facilitated rent destabilization. The act provided for “luxury decontrol” or deregulation of higher priced apartments. This applied to vacant apartments that had most recently rented for at least $2,000 a month or occupied apartments with a monthly rental of at least $2,000 whose residents had an annual income of more than $250,000 (later reduced to $175,000).

But there was a carve-out even to the exceptions. Deregulation under the Reform Act "shall not apply to housing accommodations that become or became rent stabilized by virtue of receiving tax benefits" under J-51. In other words, under existing law and codes, rent stabilized apartments cannot be removed from regulation when the building owner benefits from city tax relief.

Landlords, however, began to de-stabilize apartments. They were relying on a State Department of Housing and Community Renewal’s interpretation of an amendment to the Reform Act, which held that "participation in the J-51 program only precluded luxury decontrol where the result of such benefits is the sole reason for the accommodation being subject to rent regulation." The state then amended this to say, "Luxury decontrol shall not apply to housing accommodations which became or become subject to the Rent Stabilization Law and this code solely by virtue of the receipt of tax benefits."

The semantic analysis and parsing of words focused on "become or became," and "solely." The housing department had distributed a fact sheet specifying that "apartments that are subject to rent regulation only because of the receipt of [J-51 benefits] do not qualify for high rent decontrol." The defendants took the state's position to mean that they could take rent-stabilized apartments to market levels despite receiving public benefits. The Court of Appeals, however, gave no "deference" to the agency’s views.

Now, while the main question has been answered and the State Court of Appeals has ruled that landlords are not entitled to de-stabilize apartments and get city tax breaks at the same time, the lower courts, which administrators say are unprepared for a new volume of cases, will be expected to resolve many remaining questions. These include whether the decision is retroactive and whether future court proceedings will be treated as a class action. In the meantime, efforts may be made to have the law changed legislatively in the unpredictable environment of Albany.

The tenants in Roberts v. Tishman Speyer were represented by Alexander Schmidt, Speyer Property by Jay B. Kasmer; and Metropolitan Life Insurance by Alan Mansfield. The court also accepted briefs from various interested organizations on both sides of the issue, including the Legal Aid Society, the Rent Stabilization Association of New York City, Office of Manhattan Borough President and the Urban Justice Center.

Emily Jane Goodman is a New York State Supreme Court Justice

Crime Falls, but Why -- and at What Cost?

"Crime is down," is a phrase New Yorkers are getting used to hearing. The notorious peaks in crime during 1970s and '80s, when the city was thought of as dangerous and neglected, gave way in the late 1990s to a steady decrease that has given New York's politicians something to crow about. Mayor Michael Bloomberg certainly hasn't been shy about taking credit for the increased perception of safety on city streets.

"Under Mike, New York City's crime rate is at its lowest level in over 40 years," trumpets Bloomberg's campaign website. "Crime is down nearly 30 percent since he took office. New York is the safest big city in the nation and, under Mike Bloomberg, it will continue to be. Crime in New York continues to decline, including by 12 percent in the first six months of this year."

It's not that anyone disputes those crime statistics -- it's that some experts are not convinced that Bloomberg and his police department should get all the credit for the success. At the same time, civil rights groups say that while the city may be getting safer, the rights of many New Yorkers are being eroded.

How Low Can It Go?

"At the end of 2001 the consensus was that crime could not go any lower," said Deputy Police Commissioner Paul Browne, "but now we are down 35 percent lower than any of the Giuliani years, and the Giuliani administration built its reputation around crime fighting."

In fact, Browne said, if current trends continue, New York is on track this year to have the lowest homicide rate since 1962, when modern record keeping began.

It's not as if conditions seem exactly right for a steady decline in crime.

Bloomberg was elected following 9/11, when the new reality of terrorist threats diverted law enforcement funding, and the economy began to crater. Now, after several good economic years, the economy suffers from an even worse recession. Even the size of the police department has declined from a high of around 40,000 to around somewhere above 30,000 officers, but for the most part, major crime has continued to decline.

Preliminary FBI crime statistics show that New York remains the safest big city in the country, with the lowest crime rate per capita of the nation's 10 largest cities. Major felony crime has continued to drop from a five-year high of 136,491 in fiscal year 2005 to a low of 110,828 in fiscal year 2009.

How Did They Do It?

Andrew Karmen, a sociology professor at John Jay College of Criminal Justice in New York, said he has no explanation for how the crime rate remains low while job losses and poverty mount. The city's unemployment rate is the highest it has been in almost two decades. "No one knows for sure, but some entities like the confusion … because they can take credit for" the drop, said Karmen.

"The mayor has a very good relationship with his police commissioner," said Browne. "That may be obvious, but we speak the same language as far as technology and how it can advance police work."

Browne said that the application of technology in crime fighting has increased under Bloomberg and helped reduce crime. He added that Bloomberg "instinctively knows the application of technology" and said that under Bloomberg the department has made data more accessible and provided real time mapping for officers.

The Real Time Crime Center collects tips from the public and information about crime in the city and combines it with computer mapping to give officers a better understanding of where crime is happening.

Karmen, however, wonders why New York doesn't do as some other cities do and make crime mapping data available to the public on its website. Karmen said there is a certain lack of "transparency" under the Bloomberg administration. According to Karmen, the police department also has stopped releasing a report that details the percentage of cases of major crime it solves each year.

A recent article in the New York Post stated that the department has about a 70 percent clearance rate for murder cases. In other words, 30 percent of all murders go unsolved. That number, as police officials point out, is above the national average of around 60 percent. But New York has historically performed better.

"They take credit for all these crimes they say they prevent," said Karmen, "but murder clearance has slipped from a high in 1998." At that time, Karmen said, the clearance rate was in the 80 percent range.

"The last report was issued in 2001," said Karmen. "Why did they stop putting it out? I know some information doesn't come out in a post-9/11 world, but why should information about basic crime be suppressed?"

Getting Rid of Guns

According to Browne, Bloomberg's crusade against illegal guns has made a major impact on crime in the city. With the help of his organization, Mayors Against Illegal Guns, the mayor has waged a full-out assault on the influx of guns into New York from out of state, and Browne said the impact can be felt on the street. "Stopping the flow of illegal guns into the city has been extremely important," said Browne.

"When there is pressure on the supply, you see the price go up. We now see a gun that you could purchase legally for around $155 and would normally sell on the street for around $230 is now selling for six to seven times that amount," he said.

Despite this, gun violence continues to be a problem in low-income areas. Experts like Karmen say that preventing gun violence in those neighborhoods cannot be achieved exclusively through police work. Instead, they say, social ills must be addressed through the education and economic opportunity to break the cycle of violence.

Civil rights watchdogs say that part of the police strategy under Bloomberg to reduce gun crime -- stop and frisk -- has not only violated the privacy of residents of poor neighborhoods but done irreparable damage to their futures.

Last year the police conducted 531,159 stop and frisks -- five times the number they conducted in 2002. And the majority (51 percent) of those people stopped were black. Thirty-two percent were Hispanic and 11 percent white.

Other large cities also use stop and frisks where people are asked for information and sometimes searched. The widespread stops began under the Giuliani administration as part of its effort to reduce crime by targeting nuisance offenses. The practice has steadily increased under Bloomberg.

"The mayor gives the police department carte blanche," said Donna Lieberman of the New York Civil Liberties Union, "and it results in the stop of hundreds of thousands of innocent New Yorkers each year."

Browne vehemently disagrees. "Nationally, stop and frisk has been a traditional crime fighting tool. There are a lot of things that are misunderstood about it," he said, adding that critics "have been race baiting to an extent. They say it is disproportionate by race, but they never say it is disproportionate by gender. Should we be stopping 50 percent women?"

Browne said the stops are "not disproportionate according to the descriptions given by victims."

The issue of stop and frisk has come up on the campaign trail this year with both Bloomberg and his challenger William Thompson describing the process as useful but in need of strong oversight.

Advocates say that stop and frisks negatively and unfairly affect minority communities. They say during stop and frisks officers will ask suspects to show anything they should not have. Then suspects who take marijuana out of their pockets so it is in public view suddenly can be charged with a misdemeanor for smoking and or displaying marijuana in public.

Karmen said that the police disproportionately stop and frisk minority suspects. "Studies show more white middle class kids smoke, but there is selective enforcement," said Karmen, adding, "Hispanics and blacks get records, preventing them from getting jobs and loans for college." The Civil Liberties Union released a target="new">report in 2008 showing what they say is a racially biased "marijuana arrest crusade."

The police trumpet the arrests as part of its plan to "get guns off the street, but they are pot-related," according to Karmen. The department, however, says the program has gotten hundreds of guns off the street, 747 handguns in 2008 alone.

Big Brother

Civil rights advocates say that the Bloomberg administration has slowly encroached on the privacy of city residents and expanded the role of the police. For example, they note that Bloomberg stationed5,000 school safety assistants and 200 uniformed police officers in city schools to combat school violence.

The city has hailed the program citing statistics that show violence in school has decreased 22 percent from 2002 to 2008. United Federation of Teachers President Randi Weingarten has celebrated the effort, telling the New York Post, "The work we've done together with the NYPD has, by and large, created safer schools. We've figured out how to defuse situations."

But the Civil Liberties Union says the city has put school discipline in the hands of the police department. There have been reports of children under the age 16 being arrested, handcuffed and dragged out of the classroom because of non-violent behavior. Lieberman said that the arrests "stigmatize and humiliate" children.

Circling the Cameras

Beyond schools, the police have become involved in the lives of ordinary New Yorkers through the creation of the "Ring of Steel" or the Lower Manhattan Security Initiative as it is officially known. The initiative, launched in 2007, is a surveillance system made up of cameras designed to track vehicles, register license plates and keep tabs on suspicious behavior. The system is modeled after one used in London that lead to quick arrests following the subway bombings there.

This year, Bloomberg announced plans to expand the program to midtown from 30th to 60th streets, angering civil liberties activists.

"This is a massive infusion of surveillance program directed at us on the streets of Manhattan, and there are no privacy protections in place against abuse," said Lieberman. The Civil Liberties Union wants firm details about how much data will be collected on innocent people, how the city and federal governments plan to use the information collected, how long they can keep it, and how much federal money is being devoted to the project. The Civil Liberties Union has demanded that the City Council establish a review process to make the project more public.

"The City Council ought to be having hearings and the mayor ought to hear New Yorkers about it," said Lieberman. "New Yorkers are too sophisticated to just say yes."

"We cannot afford to be complacent," Bloomberg said announcing the expansion earlier this month. To reinforce that argument, Bloomberg and the police say that law enforcement has thwarted numerous terrorist plots against the city and note that the city has not been attacked since 9/11.

Police Commissioner Ray Kelly has said that surveillance systems are popular with the public. "Virtually every time it's polled, the public, over 80 percent approval rating on the part of the public for cameras in public places," said Kelly.

But Lieberman said police under Bloomberg have used the fight against terrorism to win support for questionable practices.

"Invoking the terrorist threat gives politicians a lot of leeway with the American people," she said, adding "We need more sunlight on the program itself. It seems like they are creating bigger haystacks to find needles."

New Law Protects Assets During Divorce

The mere mention or even the thought of divorce often sets off a race to the bank with each spouse trying to get hold of assets ahead of the other -- and before either one appears before a judge.

But effective this month, as soon as an action for divorce is commenced, the parties cannot take any steps to change their financial situation. Under a bill passed by the state legislature this year, the minute a husband or wife sues for divorce by filing a summons in New York State Supreme Court, he or she is barred from altering the economic status quo of the marriage. As soon as the other spouse receives that summons and a form order, it is too late for him or her to move money or other property to shield it from claims by the plaintiff.

Until the recent enactment of the new statute and implementing court rule, the less wealthy spouse, usually the wife, had to seek an injunction from a state Supreme Court justice, to bar the richer partner from removal, sale or other disposition of assets. This meant she had to seek a court order, incurring legal fees and losing time, before getting any financial protection. During that time, stocks, bonds and cash could vanish.

By maintaining the status quo until the divorce case is actually heard by a judge, and evidence of entitlement and equity can be presented, the new statute avoids costly motions at the beginning of the case. The race to the courthouse, like the race to the bank, may no longer be an emergency.

The change does not affect applications for spousal support, child support or eventual equitable distribution of marital property; it simply means that there is an automatic stay to prevent hiding or liquidation of assets.

The Letters of the Law

As the state Judicial Committee on Women in the Courts explains it, "Both parties are prohibited from selling property, mortgaging real estate, depleting bank accounts, invading pension funds, running up credit card debt, or removing a spouse or child from life insurance and medical plans."

The Administrative Order of the Chief Administrative Judge of the Courts, which implemented the change in the law, spelled it out: "Neither party shall sell, transfer, encumber, conceal, assign, remove or in any dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney's fees in connection with this action."

The statute covers retirement accounts, pension accounts, annuities and insurance. However, there is an exception: All of this can be overridden with the consent of the other party in writing, or by order of the court.

Saving Time and Money

Jacqueline W. Silbermann, former administrative judge for matrimonial matters in New York State, had been attempting to implement this change since 1997 when she observed it working in Connecticut. Since approximately 2000, courts in the Buffalo area have adopted a similar rule, but statewide acceptance required legislative action. That did not happen until now.

"The change puts the burden on the person who wants to change the status quo, rather than the one seeking to keep things in place, the one saying 'let's not move bank accounts, insurance or anything yet,'" said Silbermann "This requires nothing," she adds, "because if you want to change things, you can go to court, and if necessary a judge can decide." Not only is the new way more efficient, she emphasized, but it will eliminate the danger of one angry spouse removing the other from insurance, for example.

For judges it will be a relief to have litigants' assets preserved without court intervention and court orders, especially since most matrimonial judges in New York City have hundreds of cases on their calendars. Ultimately the judges still will order the division of property, but it need not be at the start of the case.

Husbands and wives who might some day divorce are not yet aware of the new law on assets and probably don't realize that the change in court procedures could save them money on legal fees. This could please the less affluent spouse in particular.

At the same time, "monied" spouses, if they are the defendants, may be surprised when they learn that not only are they getting divorced but also that they won't be able to move or liquidate their accounts until later in the proceedings. Documentary proof will establish any withdrawals or transfers made after the date of the serving of a summons. Of course, the new law and rule offer the non-monied spouse, the one who may be seeking equitable distribution, a degree of security from knowing that marital funds cannot be depleted while the couple awaits a divorce settlement.

Lawyers may be glad that their clients have some certainty and that they don't have to rush into litigation in Supreme Court (not Family Court) to obtain an injunction. In the past, that required the person seeking it to establish that there was the risk that marital assets would be disposed of or minimized to the detriment of the party seeking equitable distribution.

Bringing such motions has been costly, particularly with legal fees averaging $250 to $800 an hour. But lawyers have not publicly objected to the loss of legal fees they would otherwise bill for.

Still, most divorces do not come by surprise. It may well be that individuals who expect to divorce have already consulted lawyers and accountants and have moved money or run up credit card bills in advance of the critical date. There is probably no way to keep all the acrimony over finances out of divorce.

Emily Jane Goodman is a New York State Supreme Court Justice

State Now Protects Jobs of Domestic Violence Victims

Photo (cc) idoloony

Refusing to hire, discharging or in any other way discriminating against a victim of domestic violence in the workplace now violates New York State law. Being a victim of domestic violence or being perceived as a victim of domestic violence has joined age, race, creed, color, national original, sexual orientation, military status, disability, genetic characteristics and marital status as a protected classification, Gov. David Paterson proclaimed upon signing the law.

The purpose of the new law, which Paterson signed in July making it effective immediately, is to help protect domestic violence victims in hiring and employment practices. According to the governor, this will help give people "the ability to deal with the circumstances of their lives, and to achieve financial independence from their abuser and participate more fully in the economy."

The victim and perpetrator may be married, living together or dating; they may be in a traditional or non-tradition family; they may be gay or straight.

However, the law, an amendment to Executive Law Section 292, applies to employment only -- not, for example, housing or education.

Cutting Financial Ties

Advocates say that many women remain in abusive relationships because they lack financial independence for themselves and their children. Becoming financially independent -- and able to leave the abuser -- often requires that the victim find and keep a job.

Being in an abusive relationship, they say, can make employment difficult. For example, a victim of domestic violence may need time away from work to confer with an attorney or domestic violence counselor, appear in court, seek medical attention, arrange for alternative housing or recuperate from injuries. Embarrassment or fear of losing the job may make the victim reluctant to inform her employer of the circumstances of her life. A victim may need time off or flexible hours as a protective measure. Employers may fear that a violent spouse or partner may show up at the workplace and cause disruption, fear and interfere with business.

By banning discrimination on the job against victims of domestic violence, this measure intends to help ensure the economic viability, as well as the physical safety, of victims.

"Assisting victims of domestic violence in keeping and maintaining employment provides a crucial pathway out of abusive situations. Protecting such victims against invidious discrimination in the workplace is an important step toward that goal," Paterson said.

The New York City Council had already amended the Administrative Code section 8-107.1 to make it unlawful for an employer in the city "to refuse to hire [or to] discharge from employment or discriminate against an individual in compensation or other employment practices because of such individual's actual or perceived status as victims of domestic violence." However, the city law does not apply to state agencies or to a city resident working or seeking work elsewhere in the state.

What the Law Will Address

There are few reported cases of victims of domestic violence losing their jobs for reason linked to their abuse. This could be because of confidentiality clauses in settlement agreements, because both the city and state statues are unfamiliar to the public, and of course, because of fear. Spokespeople and lawyers for major domestic violence organizations agreed, however, that the problem of discrimination exists.

They cited one example, wrapped in layers of confidentiality, that took place at a 2006 raucous Manhattan Christmas party given by a major corporation, a leader in its industry. A high-level employee quarreled with her boyfriend who soon left. She then told a staff member that the boyfriend sometimes was violent at home, although nothing of the kind had taken place at the party, which was held in a public place.

By the next work day, gossip and gross exaggerations had spread, and the woman was suspended and then fired. Prior to commencing a lawsuit under city law for unlawful termination as a victim of domestic violence, the woman and her lawyer worked out a settlement with the company. As part of an out-of-court settlement, the company agreed not to interfere with her future career, and she agreed to confidentiality as to the terms.

In Reynolds v NYC Department of Corrections, the city terminated a probationary worker after investigators went to her address to verify that she was out sick. She was not found at the address because she and her children were living in a homeless shelter due to domestic violence. In a 2004 decision, Justice Louis York concluded that she had been discriminated against under city law because of her status as a victim of violence in the home and was entitled to reinstatement and back pay.

Barbara Kryszko, director of Sanctuary for Families Brooklyn Family Justice Center Legal Project, represents domestic violence victims in their Family Court cases and sees the connection between her clients' home and work situations. She described one client who lost her job due to her partner's incessant calls to her office, harassing her and other employees. While she was given another reason for her dismissal, coworkers told her she was let go because of her partner's conduct.


Despite that, Kryszko said, the company may be able to document that she was unable to sperform her duties. "In all discrimination cases, the problem is proving that the firing was in fact illegal discrimination, rather than some other pretextual reason provided by the employer," Kryszko said. "You must consider how much of an accomodation an employer can reasonably be expected to to make. " Kryszko said that, despite protective legislation, proving discrimination "is an uphill battle for the victim."

Becoming Part of the Solution

Prior to her election in 2000, State Assemblymember Amy Paulin of Westchester, the bill's primary sponsor, was executive director of My Sisters' Place, a Westchester center for battered women. In her work, she found that the typical abuse victim might not be able to get or hold a job or become economically independent or free of her batterer. This may cause her to return to the violent situation she was trying to escape.

The problem of domestic violence, Paulin said, is "so serious, so prevalent, that we need to engage everyone or we are never going to solve it. Employers are such a significant part of our community that this is taking one small step toward eradicating it." Although the situation is "challenging for employers," Paulin said the business community took no position for or against the legislation.

She sees the legislation, which she had introduced three times before it was enacted, as sending "a message that employers should be more sensitive to victims of domestic violence and work with them and help them get out of a bad situation."

"Because a victim is unable to leave her abuser," Paulin said, "doesn't mean she won't have the strength to do other things to protect herself," if there are empowering tools available.

Emily Jane Goodman is a New York State Supreme Court Justice

A Legal Victory for Tenants

Photo (cc) sardinista

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

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

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

The Legal Rulings

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

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

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

Limits on Landlords

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

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

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

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

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

Emily Jane Goodman is a New York State Supreme Court Justice

The Race to Fill Morgenthau's Shoes

Image by Ya-Hsuan Huang

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

Election 2009

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

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

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

The Candidates

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

Cy Vance at the Pride Parade

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

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

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

Leslie Crocker Snyder

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

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

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

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

Richard Aborn at the Puerto Rican Day parade

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

What a District Attorney Does

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

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

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

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

A Race to the Left

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A 21st Century DA

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

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

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

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

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

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

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

The Right Stuff?

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

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

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

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

How the Race Shapes Up

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

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

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

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

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

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

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

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

Parents in Prison, Children in Foster Care

Photo (cc) Robert Crum

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

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

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

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

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

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

His mother was confused, too.

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

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

Custody of the State

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

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

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

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

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

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

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

The Lingering Effects

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

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

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

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

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

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

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

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

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

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

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

Missing Mom

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

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

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

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

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

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

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

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

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

Growing Together

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

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

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

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

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

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

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

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

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

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

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

Political Intrigue in a Personal Injury Case

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

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

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

The Plaintiff

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

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

Injured and Undocumented

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

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

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

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

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

The Judge's Instructions

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

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

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

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

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

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

Emily Jane Goodman is a New York State Supreme Court Justice

Staying Out of Jail -- and in Upper Manhattan

Photo (cc) Netream

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

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

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

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

Jailhouse Learning

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

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

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

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

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

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

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

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

Job Search

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

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

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

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

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

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

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

Providing Help

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

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

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

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

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

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

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

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

The Lure of the Street

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

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

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

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

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

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

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

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

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

The Parole Rules

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

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

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

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

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

New York's Gun Battle

Photo (cc) .::LINUZ::.

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

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

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

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

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

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

Bloomberg's Crusade

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

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

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

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

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

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

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

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

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

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

Focusing on the State

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

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

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

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

Identifying Ammo

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

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

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

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

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

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

Limits on Licenses

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

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

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

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

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

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

A State Divided?

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

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

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

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

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

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

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

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

Meanwhile in Washington

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

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

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

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

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

Fear of Control

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

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

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

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

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

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

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

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

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