Articles Posted in Uncategorized

On May 23, 1957, in the Cleveland home of future boxing promoter Don King, three police officers demanded to enter to search for a man who they believed had been involved in a recent bombing. The tenant of the home, Dollree Mapp, refused to admit the police without a warrant. The officers left and returned several hours later, forcing their way into the home. Ms. Mapp called an attorney and again insisted that the officers produce a search warrant. A struggle ensued between one officer and Ms. Mapp over a piece of paper which the officer claimed was a warrant. The battle over the unwarranted intrusion into Ms. Mapp’s premises ultimately led to the one of the most important constitutional cases in U.S. history. On October 31, 2014, although only reported last week in the New York Times, Ms. Mapp died at the age of 90 in Conyers, Georgia.

After entering the house under false pretenses, the officers searched and discovered some sexually explicit materials, including books and drawings, which Ms. Mapp indicated were the possessions of a previous tenant. Ms. Mapp was handcuffed and arrested on obscenity charges. She was later convicted and sentenced to four years in jail. Her conviction was upheld on appeal to an Ohio appellate Court.

The U.S Supreme Court decided to hear the case originally on First Amendment issues and questions regarding what constituted obscenity. However, when the case of Mapp v Ohio was heard in June of 1961, it took on much greater significance, and became one of the most important decisions in the history of the Court. The issue the Court focused on was the role of the Fourth Amendment, which protects citizens against “unreasonable searches and seizures.” Due to the fact that the prosecutors had never provided a proper search warrant or proved that it ever existed, Ms. Mapp’s conviction was overturned. The Court, in a 6-3 decision, and in extending what is known as the “exclusionary rule”, held that evidence obtained by illegal means, which was previously suppressed only in federal Courts, would now be excluded in state Courts as well. Writing the majority opinion, Justice Tom C. Clark declared: “The state, by admitting evidence unlawfully seized, serves to encourage disobedience to the federal Constitution which it is bound to uphold.”

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On November 1, 2014, New York State increased the penalties and fines for drivers who stubbornly continue to drive while texting. Prior to 2011, texting and driving was a secondary violation in New York, meaning that a motorist who was caught driving and texting could not be issued a traffic infraction for this conduct unless he or she was also committing another traffic violation, such as speeding, following too closely or disregarding a traffic control device. Recognizing the dangerousness of texting while driving, the New York State legislature strengthened the law three years ago, making texting and driving a primary infraction with no requirement for another moving violation to be found guilty of the infraction.

Continuing in this vein, the points that are assessed on the drivers’ license for a texting and driving infraction have increased since 2011 from 2, to 3, and now the violation results in a five point assessment due to a strengthening of the law in 2013. The five points is also imposed if the motorist is using a hand held device to make a call, check or send emails, or use the device in any other way. Eleven points within an 18 month period leads to a suspended license, and 6 points in that period will result in a “Driver’s Responsibility Assessment” of $300.00, which must be paid in three annual installments or all at once to avoid a suspension.

Under the new texting law, a first time conviction or plea of guilty to a texting while driving offense for a driver under the age of 21 results in a 120 day suspension of their junior license. If the youthful driver commits a second violation within 6 months of being reinstated, he or she will be looking at a one year license or permit revocation. Fines have also been increased under the tougher new regulation. The maximum fine for a first time offense is now $200.00, increased from $150.00. A second offense committed within 18 months of the first will now carry a maximum fine of $250.00, up from $200.00. A third offense will lead to a maximum fine of $450.00, an increase of $50.00.

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This past Friday, July 26, 2013, was a celebration for Brian Bond, 35, and Lindsey Stewart, 30, childhood sweethearts who were due to be married on August 10, 2013. But celebration turned to disaster quickly. After dinner at Pier 701 in Piermont, NY, the couple, along with best man Mark Lennon and two other friends, joined skipper Jojo John, 35 on his 19 foot powerboat for a nighttime ride across the Hudson River from Piermont to Tarrytown.

As is well known by now, the Tappan Zee Bridge is in the very beginning stages of replacement, and as part of that massive 3.9 billion dollar project, barges containing construction supplies have been placed on the north and south sides of the bridge. Tragically, at 10:40 PM on the evening of July 26th, which by all accounts was a clear night, the boat skippered by Mr. John struck a construction barge on the south side of the bridge, tossing Ms. Stewart and Mr. Lennon off the boat and severely injuring the remaining four passengers on the boat, including the driver Mr. John. Ms. Stewart and Mr. Lennon’s bodies were found in the Hudson River, tragically dead at the age of 30. But what caused the accident?

Immediately after the accident, newspapers were quick to call the boat ride a “booze cruise”, and editorials in local papers such as the Journal News immediately made the assumption that alcohol was to blame. However, witnesses have asserted that little alcohol was consumed by the group before they entered the boat that fateful evening, and by all accounts they were all hard working people with jobs to go to the next day.

Blood was taken from Mr. John, he has been charged with vehicular manslaughter and vehicular assault, and while recuperating at Nyack Hospital, he has been handcuffed to his bed. But shouldn’t we be waiting until definitive results have been disclosed by the State Police laboratory before we determine that Mr. John is criminally responsible for this tragedy? The legal limit for intoxication is 0.08% in New York State. What if tests reveal that Mr. John’s BAC (blood alcohol concentration) was 0.02, or 0.04, the latter of which could be the equivalent of two beers?

It is known that prior to the accident, at least one citizen, Michael Hortens, a Nyack resident, had contacted a Nyack official, Mayor Jen Laird-White, to express concern that the barges were inadequately lit, and that poor lighting would lead to a tragic accident with all the boat traffic at night during the summer on the Hudson River. Ms. Laird-White apparently did forward the letter to bridge construction officials. Hortens noted “[The barges] just seemed so potentially dangerous that I had to say something.” Hortens, a Rockland County resident and owner of an 18 foot sailboat, noted that “it was an accident waiting to happen…just a matter of time.” He declared, “to me, it’s obvious that people should have been warned or there should have been adequate lighting….my thinking is that [the barges] should be lit up like Christmas trees.” No one ever responded to Mr. Hortens from the State or local governments.

Naturally, after the accident, the State has added dozens of extra LED solar lights and battery powered lights to the barges. An official for the New York State Thruway Authority claimed that the barges met all Coast Guard requirements, which mandate that the barges must be able to be seen from one nautical mile, the equivalent of 1.15 miles or 6,076 feet.

John Schumacher, a friend of Mr. Bond and Ms. Stewart, who survived the terrible accident with serious injuries including a fractured jaw, has stated definitively that no one on the boat ever saw the barge before the accident. However, the Rockland D.A., Thomas Zugibe, seems set on presenting a criminal case to a Rockland County grand jury when Mr. John recovers sufficiently to appear in Court, possibly in September. But the question persists, is this a case of criminal conduct by Mr. John, or a case of avoidable negligence attributable to the State of New York in failing to ensure that the barges were well lit? If Mr. John was in fact intoxicated, he must properly face prosecution. However, perhaps Mr. Zugibe, and local media, should await laboratory tests and more investigation before blaming Mr. John and purported alcohol involvement for this tragedy—it is only fair.

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Mookie Blaylock, the former NBA star point guard, has been charged with 2nd degree vehicular homicide charges as the result of a May 31, 2013 fatal car crash. Blaylock’s SUV apparently crossed a median in Jonesboro, Georgia and struck a van on the opposite side of the road. In the accident, 43 year old Monica Murphy, a passenger in the other vehicle, was killed, and her husband, Frankie, who was driving the vehicle, sustained a broken ankle and was released from the hospital thereafter. The Murphy family had recently moved from Mississippi to Georgia, and have five children, ages 3-15.

In addition to the vehicular homicide charges, which are felonies, Mr. Blaylock is charged with the misdemeanor of driving with a suspended license, and traffic infractions including an improper lane change, crossing the median, and driving on the wrong side of the roadway. Generally, these traffic infractions result in a fine and possible points on the driver’s license, but obviously they pale in comparison to the homicide charges Blaylock is facing.

Blaylock is 46 years of age and allegedly has been charged previously with operating a car with a suspended license. Under Georgia law, the suspended license charge could be upgraded to a felony if Blaylock has had four charges in five years.

Blaylock was critically injured in the accident and was initially placed on life support. His condition has been upgraded to serious. He has not yet spoken with Jonesboro Police investigators, and since he has been charged with vehicular homicide, it is not likely that he will do so anytime soon. In conjunction with the seriousness of the charges that Mr. Blaylock is facing, he has retained the same lawyers to defend him who successfully defended former Baltimore Ravens star Ray Lewis on manslaughter charges in 2000. Ultimately, Lewis pled guilty to the much lesser charges of obstructing justice in that case, allowing him to save his career.

Mr. Blaylock’s family claims that he has a history of seizures and appears to be suggesting that his physical condition may have played a role in the accident. However, a spokesman for the prosecution stated that this would not have any impact on the charges against him. If Blaylock is convicted or pleads guilty to the homicide charges, he would likely face a jail term of one year, followed by a term of probation.

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After an extensive investigation by the Westchester County District Attorney’s Office and the Town of Yorktown Police Department, Brett Nelson, an 18 year old man from Yorktown Heights, has been indicted by a Westchester County grand jury for criminally negligent homicide in the death of Randy Zapakin, a 57 year old married father of three. The motor vehicle crash occurred on November 8, 2012 while Mr. Zapakin was walking his dog near his home on Farm Walk Road in Yorktown. Mr. Nelson was driving a 2002 Chevrolet Cavalier with two friends in the vehicle. The vehicle operated by Nelson allegedly struck Mr. Zapakin, veered off the roadway, and continued for approximately 100 feet before striking a tree.

When the police arrived at the scene, they allegedly smelled marijuana in the vehicle, and found the drug in the car and a marijuana pipe near the point of impact. The accident was reported by a neighbor of Mr. Zapakin when the vehicle came to rest on her lawn. Purportedly, blood tests tested positive for THC, the active ingredient in marijuana. Mr. Nelson has been charged with criminally negligent homicide, a felony under the Penal Law, the misdemeanor of reckless driving, the violation of unlawful possession of marijuana, and traffic infractions including driving left of the center line and failure to exercise due care.

In order to be found guilty of criminally negligent homicide, a person must be found to have driven recklessly, disregarding the known risks of his or her recklessness, resulting in the death of another person. Many people believe erroneously that this charge only arises when a driver is intoxicated or under the influence of drugs. However, it can also be charged if the driver is texting or otherwise disregarding the serious risks of driving without paying attention to the road in front of him or her. One of the issues in this case will be whether Mr. Nelson is offered a plea by the District Attorney’s Office to a reduced charge. Generally, if the defendant does not have a criminal record, a plea would be offered. Due to Mr. Nelson’s young age, and assuming that he has no previous criminal background, I would anticipate that the D.A.’s office will make an offer in an effort to obtain a guilty plea in exchange for a limitation on the jail time which Mr. Nelson will serve. Of course, the D.A. will take into account the wishes of Mr. Zapakin’s family, but the reality is that it is unlikely that this case will reach a trial, as Mr. Nelson would face the grim reality of autopsy photos and grieving family members.

Mr. Nelson was released on $25,000 bail. He is due back in Court on May 28, 2013. If convicted on the criminally negligent homicide charge, Mr. Nelson faces up to four years in prison.

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New York City Mayor Michael Bloomberg announced this week during his weekly radio address that there was an increase in the crime rate in New York City in 2012 as compared to 2011. In 2012, there were 108,432 major crimes reported, a 3.3 increase in major crimes reported in 2011, when there were 104,948. Bloomberg attributes a large percentage of this increase to a significant rise in thefts of IPhones and IPads. There were 3,890 more thefts of Apple devices in 2012 than in 2011. The mayor’s press secretary noted that “If you just took away the jump in Apple, we’d be down for the year.”

The 40% jump in reported thefts of IPads and IPhones was announced by the New York City Police Department in September of 2012. Apple products are apparently much preferred by thieves over similar devices such as the Samsung Galaxy according to Bloomberg.

In order to fight this dramatic increase, the NYPD has been conducting sting operations to apprehend thieves attempting to sell devices that they have stolen. Additionally, the police have initiated a service called “Operation ID” to assist people in locating mobile devices that have been stolen or lost. It appears that IPhones are frequently a target of thieves in the subways, since they can steal the device and then make a quick getaway as the train is entering or leaving the station. The NYPD utilizes decoy officers as one means to fight this trend, but due to the proliferation of the devices, so far the thieves have not been significantly deterred.

Apple is reportedly in the process of obtaining a patent for a theft detection system which would cause an alarm to go off if the device recognized that it was stolen, although it is not clear how the device would discover this fact. Mayor Bloomberg has requested that people keep their phones in an inside pocket in tighter clothes, where the device would be harder to reach and they would feel is someone placed their hand in his or her pocket. However, this is advice for users of IPhones or other hand held devices who are the victims of furtive thieves, certainly would not assist the user of an IPad who is confronted by a thief demanding that the IPad be handed over.

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Ophadell Williams, the 41 year old bus driver charged with manslaughter and criminally negligent homicide in the March 12, 2011 accident in which 15 were killed and many others injured, was found not guilty of all but one of 55 charges against him on December 7, 2012. The accident occurred on I-95 in the Bronx as a group from Chinatown was returning from the Mohegan Sun Casino in Connecticut. Prosecutors charged that Williams was “driving while drowsy”, a theory that has yet to be established in New York State.

The accident was horrific, with Williams losing control of the bus, at which time it struck a guardrail, flipped over and the roof of the bus was sheared off. In addition to the fifteen passenger fatalities, many others were grievously injured, including one man whose arms were severed as he attempted to shield his head. Recent studies by the National Highway Traffic Safety Administration (NHTSA) and other traffic safety organizations have shown that driving without sufficient sleep can be just as dangerous as DWI or distracted driving, although prosecutors are clearly hampered by the lack of evidence in these cases, unlike the blood alcohol testing they have in DWI cases, and cell phone records in distracted driving cases.

Despite these evidentiary difficulties, prosecutors have been successful in proving the dangers of drowsy driving in other states. For example, a bus driver was recently convicted of involuntary manslaughter in Virginia after authorities claimed that he fell asleep prior to a crash in which four passengers were killed and dozens others injured. Drowsy driving cases have also been instituted in Florida, New Jersey and Texas.

In the Williams case, the prosecution introduced expert testimony from a sleep disorders specialist to establish that in the three days before the crash, Williams had only slept three hours per day, and that this was dangerous behavior which was likely to result in an accident, similar to a driver who takes the wheel when they know they have had too much to drink or is texting a friend while driving. Additionally, the prosecution offered evidence that Williams was operating the bus at a speed of 78 m.p.h just prior to the crash, more than 20 m.p.h. over the posted speed limit on I-95 in that area.

The defense contended that Mr. Williams had sufficient sleep to operate the bus safely, and had been cut off by a tractor-trailer seconds before the accident. However, there was no evidence of the cut-off, and many passengers testified that Williams was driving erratically, at an excessive rate of speed, and that they never saw a tractor trailer. Mr. Williams’ counsel also contended that at 5:00 AM, with little traffic on the road, a speed of 78 m.p.h was not reckless.

Mr. Williams faced 15 years in jail on the manslaughter charges, which were multiplied by the many victims on the bus. The only charge he was convicted on was aggravated unlicensed operation, a misdemeanor under the Vehicle & Traffic Law, for failing to pay numerous tickets. The jail sentence of 30 days on that charge was commuted due to time served, as Williams has been incarcerated from September of 2011 when he failed to make bail. He must also pay a $500.00 fine on the AUO charge. Despite the tremendous relief from his exoneration on the criminal charges, Mr. Williams is far from out of legal jeopardy, as he still faces several civil lawsuits from the families of the many victims. However, it is doubtful there is anywhere near the necessary insurance coverage to compensate the families, and equally doubtful that Mr. Williams has the assets to satisfy the many judgments that are likely to be obtained against him.

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On September 19, 2012, Ying Wai Phillip Ng and his wife, Pui Kuen Ng, both naturalized citizens from Hong Kong, pled guilty in the U.S. District Court for the Eastern District to conspiracy to commit wire fraud. The charges emanated from an elaborate scheme which the Ngs, both 47, developed though their driving school, known as N & Y Professional Service Line. The scheme worked as follows: Mr. Ng would target non-English speaking applicants who were seeking to obtain commercial driver’s permits but were concerned that they couldn’t pass the written portion of the exam because it is only given in English or Spanish. Many of the Ngs customers spoke other languages, including Mandarin, which they are fluent in.

The applicant for a commercial driver’s permit would be provided by Mr. Ng with jacket which contained a hidden camera in the sleeve. The applicant was shown how to point the camera at each test question, and an image of the question would then be transmitted to the ceiling of a van occupied by Mr. Ng outside of the DMV office. Using a pager, Ng would then provide the correct answer to each of the questions: two beeps for the letter a, four beeps for the letter b, and six beeps for a c.

The evidence showed that approximately 720 applicants were then able to obtain fraudulent commercial driver’s permits through the DMV. The Ngs charged $1,800 for their “services.” The fraud was apparently brought to a grinding halt when an undercover agent through the Immigration and Customs Enforcement Division of the Department of Homeland Security posed as an applicant, paid the $1,800 fee, was provided the jacket, obtained the answers fraudulently, and passed the exam.

In a tragic twist to the story, one of applicants who improperly procured his commercial permit was behind the wheel of a bus which crashed in Virginia in May of 2011, killing four passengers and injuring dozens of others.

The U.S. Attorney’s Office noted that “We must be able to trust that those who drive buses and trucks on our nation’s highways meet stringent standards for safety and competency. …the defendants put the public—passengers, pedestrians and drivers alike—at grave risk in order to line their own pockets. This office will vigorously investigate and prosecute those who seek to undermine public safety for commercial gain.”

The Ngs will be sentenced in January by Judge Leo Glasser. With their pleas of guilty, Mr. Ng faces up to 87 months in jail, and Pui Ng faces 30 months. In addition to their jail terms, the Ngs were ordered to close the school effective immediately and pay restitution of $175,000 to the government.

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