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Criminal 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



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