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Criminal Justice

Criminal Justice

The Case of The Youthful Offender And The Bawdy House Law


 

What happens when two laws that are both intended to protect people come into conflict with one another? Two such laws -- one, protecting young people who have made a mistake; the other, protecting tenants of public housing –- collided in the Bronx.

Under New York State law, eligible persons under 19 who are found culpable of criminal conduct, may, in the discretion of the court, be adjudicated “youthful offenders” or Y.O.'s. Their records are sealed to spare young adults who have violated the criminal laws from the stigma and detrimental consequences of a criminal conviction.

Criminal convictions resulting from drug activity on residential properties by people living there, must be reported to the landlords, who must then commence eviction proceedings in Housing Court, under the so-called Bawdy House Law, part of New York's Real Property Actions and Proceedings Laws.

Acting Supreme Court Justice Laura Safer Espinoza, the judge in charge of the Bronx Drug Court has criticized the office of D.A. Robert Johnson, for what she described as the "not uncommon" practice of violating the confidentiality of sealed records by supplying them to landlords.

Manauri R., as the youth was identified, had entered a guilty plea, establishing that the drug violation was at the location where he lived. Despite the sealing of the court records of Manauri R., a youthful offender, prosecutors had, without a court order permitting the unsealing, sent them to the landlord of the apartment in which he was living, with notice that due to a drug case, the landlord was obligated to evict the tenant. The landlord did, in fact, commence eviction proceedings, naming both Manauri R. who lived in the apartment, and the actual tenant, Ms. Qualquirys Tavarez. She had not been convicted or even accused of any drug related activity, but the issue came to light in Housing Court when Tavarez's Legal Services attorney learned the reason for the eviction proceeding against her.

The D.A. argued that it was in the interests of justice to evict persons who use or allow the use of residential or retail premises as narcotics warehouses and factories. Such premises should be inhabited by law-abiding persons. The judge did not agree with the prosecution that every allegation of drug possession in a residential apartment, while prohibited by the penal law, rises to the level of an illegal trade or manufacture or other illegal business, prohibited by the Bawdy House law. It must appear that the premises have been used for the unlawful purposes not in an isolated act, but with some measure of continuity.

While the D.A.'s office acknowledged that releasing sealed records without a court order is unlawful, the prosecution lawyers made arguments rejected by Justice Espinoza that either the records were not sealed or were part of an investigation or were transmitted to the landlord inadvertently. The prosecutors argued that they are not prohibited from providing the landlord with copies of documents from their files, analysis and property clerk vouchers, investigatory or business records. But in her decision, the judge pointed out that, "[s]ealing also includes evidence developed during the investigation that preceded the action, if related to the arrest for its prosecution or to the prosecution itself."

It is unavailing, the judge wrote, "in that disclosure of the records did not contravene the purpose or spirit of the Youthful Offender statute. Rather, [the prosecutors] are asserting that publishing the records does not stigmatize the defendant because the focus is not on the juvenile [but rather] on the adult tenant of record and the misuse and illegal use of the tenant's apartment."

"The People published the confidential records to evict him (Manauri R. the youth) as well as Ms. Tavarez.," who was not accused of drug activity. Still, even after Manauri R. left the apartment, the eviction proceeding continued.

"Violation of sealing statutes has been strongly condemned," said Justice Espinoza. "Use of confidential information regarding a youthful offender adjudication, if improperly obtained, is not permitted. [S]ince disclosure is the exception rather than the rule, one seeking disclosure first must demonstrate a compelling and particularized need for access. However, just any demonstration will not suffice. For it and the countervailing policy ground it reflects must be strong enough to overcome the presumption of confidentiality. In short, without the initial showing of a compelling and particularized need, the question of discretion need not be reached, for then there simply would be no policies to balance."

"The People have failed to offer a 'compelling and particularized showing as to how the sealed records in the instant case are necessary and essential to protecting the public from the evils which the Bawdy House Laws address,'" Justice Espinoza concluded.

Since the eviction proceeding was founded on the improperly released youthful offender record, there was no legal basis for it and it was discontinued.

Emily Jane Goodman is a New York State Supreme Court Justice

 

 

 

 

 

 

 

 

 

 

 

 

Home Invasion Robberies


The perfect crime may be the one that goes unreported. In January, police arrested leaders of a Harlem gang that, policesay, terrorized drug dealers with a series of over 100 home-invasion robberies. The leaders were also allegedly involved in three murders.

The arrest served to spotlight home-invasion robberies, which, according to federal crime statistics, have been increasing nationwide.

Home invasion robberies, which involve either using force or a ruse to enter someone’s home, are not uncommon in the drug trade, in part because the robbers can be confident that the victims will be reluctant to call the police. In December, 2003, the Drug Enforcement Administration and local police arrested drug dealers who, according to DEA"obtained a large amount of their cocaine and heroin by committing violent home invasion robberies of other drug dealers, often in large apartment buildings, endangering the public." And police notedthat the Bronx gang would sometimes target the wrong apartment, robbing people who had nothing to do with the drug trade. The elderly are also frequent targets of such crimes.

Overall, home invasion and push-in robberies (where entrance is gained by following someone to their door or through a ruse) can be traumatizing and can easily escalate into violence.

The New York Police Department declined to release statistics on these types of robberies. However, nationwide statistics released by the FBI show that, while robberies have been decreasing overall, robberies occurring at a residence increased every year from 1999 through 2003, the most recent year statistics are available.

By 2003, residence robberies had increased by 18 percent from 1999. (In contrast, the total number of robberies rose by 1 percent over the same time period.) Most robberies in the United States still happen on the street, but about 14 percent of all robberies took place at a residence in 2003. In the northeast, that number drops to about 9 percent.

New York police, in the past, have held special seminars in neighborhoods where push-in robberies are a problem, warning residents not to fall for the ruses sometimes used by robbers. For example, a robber might knock on the door and claim to be a building inspector or a deliveryperson.

The elderly can be particularly vulnerable to these ruses, as well as to being followed into their homes by a stranger. In 2001, then-Assemblymember Jeffery Klein noticed a sharp spike in push-in robberies in the Pelham Parkway section of the Bronx, about 20 robberies in a two-month span accounting for a surge of about 60 percent. Most targeted the elderly, Klein recalled. Now a state senator, Klein said police found that many apartment doors did not have functioning peepholes and that that lead to many of the crimes. With support from a state grant, police and community organizations, and a local company, about 750 peepholes were installed, leading to a sharp reduction in push-in robberies, Klein said.

Robbers sometimes claim to be police in order to get people to open their doors, perhaps especially troubling to the actual police. But such an impersonation, while involving a separate criminal charge, does not typically lead to a stiffer sentence upon conviction, according to James Evangelou, chief of the Career Criminal Major Crime Bureau for the Queens County district attorney’s office. Neither does the law do much to distinguish between home invasions and street robberies, said Evangelou.

Several years ago, accordin g to the New York Times, some Manhattan residents worried that a strong police presence was keeping criminals off the streets but leading to an increase in push-in robberies. With Operation Impact, the a police effort to increase patrols in high-crime neighborhoods, dramatically increasing the police presence in some neighborhoods, the same concern might arise today. Police though point to statistics that show overall robberies have declined by about 26 percent in neighborhoods where Operation Impact has been in effect.

Terry Rodie, district manager for Brooklyn Community Board 14, which includes Flatbush and Midwood, expressed doubt about whether such a link between police and push-in robberies could exist in her neighborhood. But, she added, "that doesn't mean it couldn't be true. The same theory could be said for a snowstorm."“I think that’s more some kind of a [folk] tale…but I don’t mean to say it could not be true,” said Rodie. “The same theory could be said for a big snowstorm.”

 

 

 

 

 

 

 

 

 

 

Rockefeller Drug Law Reform and Drug Courts


When Governor George Pataki focused on crime in his 11th State of the State address, he talked about his plans to handle crime in the future -- creating a "New York's 100 Most Wanted" Web site; pushing an "aggressive anti-crime package, dealing with issues ranging from deadly drivers and gun trafficking to strengthening Megan's Law, and yes - ensuring that our state has a strong death penalty law." And he boasted of his decade-long track record in handling crime -- "108 new laws that toughened penalties or closed criminal-friendly loopholes."

But in his entire speech, he made no mention whatsoever of New York's so-called Rockefeller drug laws.

These laws, which include strict penalties for first-time drug offenders, have been criticized as unfair and unnecessary, and activists have lobbied state officials to revoke them. Finally, in December, after about a decade of trying, and just a couple of weeks before Pataki's speech, the legislature passed a measure to reform the laws. Now, more than 400 prisoners can apply for their freedom, and felons guilty of less serious crimes will get reduced sentences.

But the underlying problems remain - how to stop drug-related crime; what to do about drug-induced criminals. Nearly two-thirds of all prisoners in jail for drug-related offenses are repeat offenders.

Within the criminal justice system, there is an option being viewed more and more favorably, one that does not include prison time, and that many advocates hope to expand. That option is drug court - something else that Pataki did not mention in his speech.

The Rockefeller Law Reform

The Rockefeller drug laws were passed in the 1970s (under then-Governor Nelson Rockefeller), but the drug problem became even worse in the 1980s, spurring a second wave of tough drug laws that ensnared even more drug users and sellers.

Activists who criticized the lock-em-up approach focused on the sad stories of young people seemingly tripped up by their own personal problems more than any calculated plans to make an illicit profit, sentenced to more than 15 years.

Those tragedies may happen but "the lion's share of drug arrests are buy-and-bust operations that target $10 and $20 drug sales," said Valerie Raine, director of drug treatment programs for the Center for Court Innovation, the research group that advises the New York State Court System.

There are 15,600 drug felons in New York State prisons, according to the state Department of Correctional Services. Only about 2,600 of them are guilty of the most serious felonies, called Class A felonies.

Of the remaining 13,000, most (more than 9,800) are repeat offenders guilty of lesser crimes (so-called Class B, C and D crimes).

What the new reforms passed in December will do is reduce the sentences for certain non-violent offenders guilty of a Class B felony, from the current sentences of up nine years to as little as three years.

Drug Courts

Mike Magnani remembers what it was like before there were drug courts in New York City. First-time offenders guilty of small-time drug dealing did, pled or said whatever they had to do in order "to get out the door" and get back to the street, where they could feed their drug habit. Not too surprisingly, most would soon be back. Their second conviction would lead to serious jail time.

The first drug court, the Brooklyn Treatment Court, began in 1996, and it took a different approach -- treating people addicted to drugs before they became repeat offenders facing mandatory time in state prison. Drug users and sellers received supervised treatment instead of jail time. To be eligible for treatment in drug court, however, the defendants had to be found clinically addicted through a screening process, and had to plead guilty. Not every offender is eligible.

Drug courts have now expanded beyond Brooklyn to all five boroughs. Treatment typically lasts more than a year, with frequent trips to the judge to monitor progress. Judges use punishment as a motivator for offenders to complete the treatment program. A first slip-up might mean a weekend in jail; another slip-up three or four days. Positive reinforcement is also part of the program. "The judge becomes more than just the authority figure in court, if he says you're doing a good job, that means a lot to these people," said Magnani, who worked to help expand the Brooklyn Treatment Court, and continues to be involved in drug courts as the director of grants and program development for the New York State Court System.

A three-year study by the Center for Court Innovation found that New York drug courts sharply reduced recidivism rates. While treatment programs do exist within New York prisons, Raine said research has been done that shows treatment done outside of prison has a better success rate. Some research suggests that two thirds of drug felons are rearrested within three years after being released from prison.

Non-Adversarial; Not Perfect

Drug courts have grown in popularity, and in 2000 New York became the first state to announce a program that would greatly expand drug court to include nearly all non-violent criminals addicted to drugs.

A drug court is now operating in every New York county. About 7,000 New Yorkers have participated in drug court since its inception. There were 3,384 referrals to New York City drug courts in 2003, with 1030 pleas taken. If drug courts could theoretically now handle as many as 10,000 non-violent criminals a year statewide, drug courts have not handled nearly as much, said Raine.

Some see the next step as expanding drug court beyond drug cases. In New York, a new program began last year in Brooklyn called STEP, an acronym for Screening and Treatment Enhancement Part. The program expanded the criteria for drug court eligibility to include people accused of non-drug crimes. Magnani said that a similar program is scheduled to begin in the Bronx.

Robert Gangi, executive director of the Correctional Association of New York, has for years spoken out against the Rockefeller drug laws. He said that he hadn't studied New York drug courts closely, but "we have a generally favorable impression. The problem with the drug courts is that the decision about who is eligible…is controlled by the prosecutors."

Raine said that New York City offered a more formalized screening process to decide who should be eligible for drug court, but "at the end of the day, [the decision] lies with prosecutors." And prosecutors differ in their willingness to partner with drug courts. "In Brooklyn, [District Attorey Charles] Hynes has been a great partner and believer of treatment,"said Magnani. Hynes introduced a separate program apart from drug court called Drug Treatment Alternative to Prison in 1990, which gave repeat offenders facing mandatory prison time an option of residential treatment instead of prison.

Magnani said an important part of a successful drug court is that prosecutors, defense attorneys, judges and defendants must all agree on what the best course of action is. "We try to make the courtroom non-adversarial…we don't want lawyers arguing…If an addict hears that type of stuff, they think there's a crack that they can get through."

But it can be difficult to get all the players to buy in to the drug court concept. "If there is a first-time offender with a misdemeanor, there is no way a defense attorney is going to say, 'You need a year of treatment,'" said Raine.

Nevertheless, misdemeanor drug courts exist in New York City (treatment might typically last 90 days, said Magnani). Another type of drug court would work with youthful offenders. But Magnani cautioned that the typical drug court candidate was in their late 20s, and that the graduated punishment and reward system that works for adults might not be the best way to treat a younger population.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



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