December, 2011 | Pappalardo & Pappalardo LLP

2011 December


Justice Scalia Reminds Prosecutors that the Constitution Isn’t Optional in Melendez-Diaz

The recent United States Supreme Court holding in the case of Melendez-Diaz v. Massachusetts is a huge victory for criminal defense attorneys, and more importantly for the rights of defendants and the sanctity of the Constitution.  The attorneys at the Westchester, New York criminal defense law firm of Pappalardo & Pappalardo have been actively following this case, and are in a position to utilize it for the benefit of their clients.  The case dealt with the Confrontation Clause of the Sixth Amendment which reads: “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.”  While it was well settled that witnesses called to testify for the prosecution were subject to confrontation through cross examination, the effect of the Confrontation Clause on the admissibility of out of court hearsay statements was far less clear.  This question had been answered (somewhat unsatisfactorily) by the Supreme Court in Crawford v. Washington, where the Court held the Confrontation Clause prohibits the introduction of “testimonial” hearsay statements against a criminal defendant, unless the defendant is afforded an opportunity to cross-examine the declarant.  However, while this decision answered one question, it created many more, and as a result, the state of the law in New York was far from settled.

In the aftermath of this decision, prosecutors obviously still wished to introduce hearsay statements against defendants without having to produce a witness, and in a series of decisions, the New York Courts allowed them to do it.  Since Crawford only applied the Confrontation Clause to “testimonial” hearsay, the key for any prosecutor to get around Crawford was to characterize the evidence they sought to admit as non-testimonial.  The evidence most often fought over included reports, laboratory test results, and other analysis.  Considering that this type of scientific evidence is critical in prosecution of crimes ranging from DWI (breath test results) to rape (DNA and rape kit evidence) to drug cases (laboratory analysis of seized substances), it is easy to see how much was at stake. The New York Courts relied on two justifications in concluding that this type of evidence was non-testimonial.  First, in People v. Meekins, a case dealing with a DNA testing report, the Court of Appeals held that in order to be considered “testimonial” a record must directly accuse a defendant of a crime.  As a result, reports that provided essential links in the chain of logic leading to a defendant’s guilt were admissible without cross-examination so long as they did not directly “accuse[] the defendant of criminal wrongdoing.”  Second, the Court of Appeals held that so long as scientific testing was merely a “contemporaneous recordation” using well-recognized techniques, it did not resemble the types of ex-parte examination contemplated by the Confrontation Clause, and as a result, was non-testimonial.  Based primarily on these two justifications, for many years a variety of scientific and laboratory evidence was considered admissible in New York and the defendant had no right to confront any of it through cross-examination.

All of this changed with Melendez-Diaz.  The evidence at issue in Melendez-Diaz was three “certificates of analysis” which stated that forensic testing of evidence seized from the defendant established that the substance in question was cocaine.  The certificates were sworn to by analysts at the State Laboratory Institute of Public Health; these analysts were not called to testify, and the defendant’s Confrontation Clause objection was overruled.

In his decision, Justice Scalia quickly dismantled the two flimsy non-testimoial justifications which had previously been relied upon by the New York Courts.  Addressing the justification that certain reports and laboratory tests did not directly accuse a defendant of a crime, Justice Scalia made the following simple, yet persuasive analysis: “The text of the Amendment contemplates two classes of witnesses- those against the defendant and those in his favor.  The prosecution must produce the former, and the defendant may call the latter.  Contrary to respondent’s assertion, there is not a third category of witnesses, helpful to the prosecution, but somehow immune to confrontation.” In this way, evidence, which does not directly accuse a defendant of criminal wrongdoing, but which is still damaging to his case, is no longer somehow immune to cross-examination.  In response to the other justification citing the neutrality of science, Justice Scalia’s opinion refers to “documented cases of fraud and error involving the use of forensic evidence” and points out that “confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one, as well.” As a result, scientific tests and reports are no longer considered non-testimonial in New York, and are subject to cross examination.  Based on this line of reasoning, in a recent case, a California appeals court in People v. Dungo, prevented the prosecution from doing an end run around a defendant’s constitutional rights by calling a different pathologist than the one who actually performed the autopsy, in order to avoid the jury hearing about the original pathologist’s questionable competence, which would have undoubtedly been revealed during cross examination.

In an effort to continue the unconstitutional practice of subjecting a defendant to unconfrontable hearsay testimony, opponents to the change say that the new rule will unreasonably burden prosecutors and the criminal justice system.  Justice Scalia’s response to this contention is that the requirements of the Constitution are not negotiable, and such, the Court does not have the authority to relax the requirements of the Confrontation Clause to accommodate the “necessities of trial and adversary process:” “The Confrontation Clause- like [other] constitutional provision- is binding, and we may not disregard it at our convenience.” He further notes that “there is no evidence that the criminal justice system has ground to a halt in the States that, one way or another, empower a defendant to insist upon the analyst’s appearance at trial.”

This decision is bound to have a significant effect on criminal defense law in New York state and Westchester county.  The decision seems to require prosecutors, at least on demand, to produce not only drug analysts, but medical examiners, rape-kit analysts, DNA analysts, and even certain clerks, or forfeit the admission of their reports.  This will make the prosecution of a whole variety of offenses more difficult for prosecutors.  Significantly, the nature of the prosecution of DWI cases will change, as the opinion strongly suggests that reports of breath-test and blood-test results are, in fact, testimonial.  Pappalardo & Pappalardo partners John D. Pappalardo and Richard Portale, who have years of experience in defending against DWI and other crimes, are ready to use this groundbreaking decision to further the administration of justice and secure the best possible outcomes for their clients.  The attorneys at Pappalardo & Pappalardo pride themselves on their decades of experience in the areas of law affected by this decision, as well as their commitment to education on all recent court decisions in order to stay on the cutting edge of criminal defense law.

It should be noted that this blog relied heavily upon Andrew C. Fines’ analysis of Melendez-Diaz v. Massachusetts, which appeared in the winter 2010 issue of the New York State Bar Association’s New York Criminal Law Newsletter.


Victims of False Rape Allegations Beginning to Get Justice

Rape is an extremely serious crime.  The psychological effects that it can have on a victim are severe and sometimes lifelong.  Largely because of the severity of this crime, a false rape allegation can have an equally horrific effect upon its victim.  It is not uncommon for victims of false rape allegations to have their reputation damaged irreparably, lose their job or suffer severe marital and family strife- and all this and the accompanying stigma, from no more than an accusation. One of the reasons that a mere allegation can have such a devastating effect comes from the very nature of a rape accusation: rape has been recognized as the easiest criminal allegation to make by an alleged victim, and the hardest to disprove by the accused.  Sadly, even if the victim of the false allegation is eventually completely vindicated, oftentimes the irreparable damage is already done.  Unfortunately, it’s more common than one might think: the attorneys at Pappalardo & Pappalardo– Westchester, New York’s premier criminal defense firm- see it all the time.

For this reason, the statistics involving false rape allegations are particularly disturbing.  One study conducted by Professor Eugene J. Kanin of Purdue University concluded that 41 % of all reported rapes were false allegations.  The number of false claims is likely even higher, as this study only credited recanted accusations as false; acquittals were not considered false accusations for the purposes of the study.  Other studies around the country have confirmed the disturbing finding that nearly half of all rape allegations are false.  The fact that a rape claim has as much chance of being true as it does of being false is particularly troubling given law enforcement’s current policy of pressing charges on all claims, regardless of merit, and hoping that the false claims will somehow sort themselves out somewhere down the line.  Therefore, while every rape allegation deserved to be taken seriously, false rape allegations need to be defended with equal vigor, and as early in the process as possible.

That is where the law firm of Pappalardo & Pappalardo comes in.  Pappalardo & Pappalardo is the premier criminal defense law firm in Westchester County, with decades of experience in handling the defense of false rape allegations and other sex crimes.  In one of many such cases handled by Pappalardo & Pappalardo, partner Richard A. Portale not only completely vindicated one falsely accused young man, but he pursued the false accuser so vigorously that the Putnam County District Attorney’s Office charged her with offering a false instrument for filing and required her to pay her victim’s legal and investigator fees as restitution.

One encouraging sign in this troubling trend is that courts are beginning to catch on, and deal with false accusers harshly; take for example a recent case reported on by the New York Times.  The false accuser in this case was convicted of perjury and now faces 2 1/3-7 years in prison.  Her victim was vindicated and released from prison, but not until he had spent more than two years there for a crime he did not commit.  This just goes to show that if you find yourself the victim of a false rape accusation, the stakes that you are dealing with could be measured in years of your life.  When you are choosing a law firm to take on a fight where this much is at stake, choose a firm that won’t just fight to vindicate your good name, but will keep fighting until the false accuser is forced to face justice.  Pappalardo & Pappalardo is that firm.  Feel free to read about our numerous victories in cases of false rape allegations in our “results” section.

Posted at 3:17 PM in Criminal Law, In The News, Sex Crimes | Permalink

New York State’s Tough New Drunk Driving Laws

On November 18, 2009, Governor Patterson signed into law the Child Passenger Protection Act (Leandra’s Law).  As a result, New York State now has some of the toughest drunk driving laws in the entire country.  While much of the law covers situations where a young child is injured or killed, several provisions of the law provide significant punishment for first time or comparatively minor offenses.  For example:

FIRST TIME DWI offenders who have a child under 16 in their vehicle may be charged with a class E felony punishable by up to four years in State prison

ALL drivers convicted of DWI must install an ignition interlock system for at least 6 months

While the law is written in such a way that the mandatory installation of an interlock system will not become effective until August of 2010, the provision making it a felony to drink and drive with a child in the vehicle becomes effective next week, on December 18, 2009.  It should be noted that the relevant date for the new penalties is the date of the offense- in other words, it does not matter when you plead guilty or are sentenced- if the offense was committed before either of the above dates, those penalties do not apply to you.

With the creation of this new law, it is critical to choose an attorney not only with experience, but also one who stays abreast of changes in the law.  Criminal defense attorneys John Pappalardo, Richard Portale, and Angelo MacDonald of the Westchester New York law firm of Pappalardo & Pappalardo have decades of experience in handling all types of DWI cases, both comparatively minor and high-profile.  They have the connections and the knowledge of the system to get you the best result possible, but also the in-court DWI litigation experience required to try your case if and when that becomes necessary.  Further, the attorneys at Pappalardo & Pappalardo pride themselves on staying current on the law, both through continuing legal education, and dialogue with community leaders and law enforcement.  Take a look at the “Results” section of our website to see a few of our more noteworthy victories in the field of DWI/DWAI .


John D. Pappalardo Quoted by NY Times in High Profile Human Trafficking Case

According to the New York Times there have been less than 18 arrests under New York State’s human trafficking law, which took effect in 2007. Those arrests have resulted in even fewer prosecutions; there are currently less than 5 pending prosecutions across the boroughs of Manhattan, Queens, and the Bronx combined.

In terms of experience in this emerging area of law, Pappalardo & Pappalardo stands alone. The firm is currently handling the first- and to this point- the only human trafficking case of its kind in Westchester County. In addition to taking advantage of educational opportunities such as human trafficking seminars conducted by law enforcement and experts in the field, Pappalardo & Pappalardo brings over 40 years of general criminal defense expertise to its cases. This makes Pappalardo & Pappalardo the obvious choice for representation in any rapidly developing area of criminal law.

Posted at 3:10 PM in Criminal Law, In The News, Sex Crimes | Permalink

Man Wrongfully Accused of Threatening to Kill President Obama Vindicated

It is an undeniable fact that 9/11 and the threat of terrorism has changed our country forever. Admirably, the safety of its citizenry has become our government’s top priority. However, this hyper-scrutiny and our knowledge of the consequences of anything less, has an unfortunate side effect: innocent citizens can become victims to the full weight of the power of the state.

Take for example, the recent case of John Brek, which received national press attention. John Brek was a hard working private security guard at Newark Liberty International Airport who voiced a concern for the president’s security while on his lunch break. By the end of the day, his comment had been misconstrued as a threat against the president, he had been charged with a third-degree felony, and his bail was a six figure number. Needless to say, the high profile nature of this case had made Mr. Brek’s prosecution a matter of paramount importance for New Jersey law enforcement.

It was at this point that Moses Rambarran of the Rambarran Law Firm and Angelo MacDonald of Pappalardo & Pappalardo stepped in. They got to work immediately, and less than a month after his arrest Mr. Brek pled was offered a non-criminal disposition and went home. The bottom line is that Pappalardo & Pappalardo is not afraid to take on tough cases, and will never shrink from defending an innocent client.


Human Trafficking Prosecutions Come to Westchester County

Recently the crime of human trafficking is one that has received significant coverage from the news media and an accompanying raised level of awareness in local communities. As a result, prosecution for human trafficking crimes has become a high priority for federal, state, and local law enforcement. While this is commendable, this response to public pressure may sometimes result in prosecutors targeting innocent citizens.

The criminal defense attorneys at the Westchester, New York law firm of Pappalardo & Pappalardo pride themselves on their extensive experience in human trafficking law, and their continuing effort to stay abreast of any and all recent developments in this area of law and its enforcement. On November 12, 2009, Pappalardo & Pappalardo partners John D. Pappalardo and Richard Portale attended a seminar hosted by the Pound Ridge Police Department and the Junior League of Northern Westchester entitled Human Trafficking and Slavery: Tools for an Effective Response. At this seminar they met with law enforcement and experts in the field of human trafficking, insuring their continued expertise in the field.

Such expertise is critical; as human trafficking’s prominent presence in the media guarantees continued vigorous prosecution- sometimes of innocent people. In fact, at this moment, Pappalardo & Pappalardo is representing a Westchester man in one of the most high profile human trafficking cases in all of New York State, and the first of its kind in Westchester County. The attorneys at Pappalardo & Pappalardo will continue to stay on the cutting edge of human trafficking law to make certain that both our current and future clients do not fall victim to abusive prosecutors reacting to public pressure, even if it is well intentioned.

Posted at 2:48 PM in In The News, Sex Crimes | Permalink

Drunk Driving or Drag Racing May Cost You Your Car

Criminal defense attorney John Pappalardo of the Westchester New York law firm of Pappalardo & Pappalardo, an expert in both Driving While Intoxicated and Illegal Speed Contests law, spoke in front of the Westchester County Board of Legislators, providing legal expertise that helped shape a new law which allows the County to confiscate the cars of certain offenders. As such, Pappalardo & Pappalardo is in a unique position of expertise to consult on such cases, and ultimately, to litigate them if necessary.

Posted at 2:44 PM in Criminal Law, DWI / DWAI, In The News | Permalink

Driving While Intoxicated: Increased Media Interest, Increased Penalties

This very recent double-fatality DWI Case in Putnam County highlights the horrors of DWI and the importance of retaining a criminal defense attorney with extensive experience and knowledge of New York State DWI Laws.

This unfortunate DWI double-fatality case is yet another example of the potentially devastating effects of Driving While Intoxicated. While most people will never be involved in a situation as serious as Mr. Conses-Garcia, the simple fact is that recent multiple fatality cases such as this have become all too common in the media, and have elevated the horrific potential consequences of DWI in the mind of the public and the priority list of the local District Attorneys. Given this current climate, anyone arrested for DWI, even for comparatively minor cases- involving a low BAC and/or no resulting injuries or property damage- can expect harsh treatment from the District Attorney’s Office.

Therefore, retaining an attorney with expertise in the field of DWI/DWAI is crucial to insure the best possible, and the fairest result in your case. Criminal defense attorneys John Pappalardo, Richard Portale, and Angelo MacDonald of the Westchester New York law firm of Pappalardo & Pappalardo have decades of experience in handling all types of DWI cases, both comparatively minor and high-profile. They have the connections and the knowledge of the system to get you the best result possible, but also the in-court DWI litigation experience required to try your case if and when that becomes necessary. Take a look at the “Results” section of our website to see a few of our more noteworthy victories in the field of DWI/DWAI .

Posted at 2:32 PM in Criminal Law, DWI / DWAI, In The News | Permalink

Jury acquits Yonkers mother in tot’s killing

By Rebecca Baker

There were only two people who could have beaten 11-month-old Clarissa St. Victor to death, prosecutors said: her mother or her mother’s boyfriend.

A Westchester County jury decided the mother was not guilty, although she was the only one charged in the girl’s death.

The acquittal of 21-year-old Anthonica St. Victor was a stunning rejection of the prosecution’s case that she struck the girl’s head against a wall and shook her violently at her boyfriend’s place in Harrison.

The jury took 10 hours to acquit the Yonkers mother of killing her daughter on Sept. 9, 2008, days before the girl’s first birthday.

St. Victor wept as the jury found her not guilty of first- and second-degree man-slaughter, felony charges that carry up to 25 years in prison. She was found guilty of child endangerment , a misdemean-or with a maximum one-year jail term.

She’s been in jail more than a year awaiting trial, so she may be released Friday when she appears before Westchester Judge Barbara Zambelli. But there is an immigration hold on her, so she may be deported to her native Haiti.

“She always said she didn’t do it,” said her lawyer, Rich-ard Portale, who argued Dorrel Foster, then St. Victor’s boyfriend, was the one who killed the girl.

Foster was the prosecution’s star witness, testifying that he watched in horror as St. Victor hit the girl’s head against a wall and a dresser, then shook and squeezed her in his room at the Century Country Club in Harrison, where he lived in employees’ quarters.

When the baby became unresponsive, they took her in a taxi to Westchester Medical Center in Valhalla, where Clarissa died of blunt-force trauma. An autopsy found rib fractures, bruises and other injuries on the girl’s body.

Assistant District Attorney Laura Murphy argued the forensic evidence, namely Clarissa’s blood on the wall, matched Foster’s version of events and that her injuries were consistent with his testimony that he saw St. Victor hit the girl. But no forensic evidence linked St. Victor to the bloody spot on the wall; only Foster’s DNA was there.

Portale told the jury Foster lied numerous times after the baby’s death and that only after police threatened to throw him in jail did he blame her.

St. Victor never accused Foster of killing her daughter and testified that she didn’t know how her baby was fatally harmed.

Portale, an attorney with the Scarsdale firm Pappalardo & Pappalardo, said St. Victor was a loving mother of a child with sickle-cell anemia who made countless calls and visits to doctors and specialists. He said St. Victor conceded she could have done more to save the girl and accepted the endangerment conviction.

Portale said his client plans to file a wrongful death lawsuit against her daughter’s doctors, but insisted the case had no winners.

“Clarissa isn’t coming back,” he said. “No one wins.”

Posted at 2:32 PM in Homicide, In The News | Permalink

Jury has case of Yonkers mom accused of killing daughter in Harrison

By Rebecca Baker

WHITE  PLAINS - A Westchester County jury has finished its first day deliberating the case of Anthonica St. Victor, a Yonkers mother charged with fatally abusing her infant daughter at her boyfriend’s place.

St. Victor, 21, is on trial for first-degree manslaughter and other felony charges in the Sept. 9, 2008, death of Clarissa St. Victor, who died days before her first birthday.

Dorrel Foster, her ex-boyfriend, testified for the prosecution, saying he saw St. Victor strike the baby’s head against a wall and dresser, then violently shake and squeeze her in his room in the employees’ quarters of the Century Country Club in Harrison.

When the baby became unresponsive, St. Victor and Foster took a taxi to Westchester Medical Center in Valhalla, where the baby was put on life support and later died.

An autopsy found the girl died of blunt-force trauma and had bruises, hemorrhages, rib fractures and other injuries.

The jury got the case at 12:45 this afternoon in Westchester County Court, following closing arguments by Assistant District Attorney Laura Murphy and defense attorney Richard Portale of the Scarsdale law firm Pappalardo & Pappalardo.

They resume deliberations tomorrow.

Posted at 3:24 PM in Homicide, In The News | Permalink