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In a DWI case with a twist, the Manhattan DA’ s Office announced on July 1 that it was filing perjury charges against a Navy officer who was acquitted of the DWI last year by a New York County jury. Petty Officer First Class Leonel Polanco-Colon, age 32, was found not guilty by the jury after he and a friend, Luis D. Nunez, age 29, who is also charged with perjury, purportedly concocted a story that a Mr. Nunez had been Polanco-Colon’s designated driver on the night in question, and that Polanco-Colon never operated or intended to operate the motor vehicle when he was stopped by police.

Under the New York Vehicle & Traffic Law, in order for prosecutors to prove a DWI charge, they must establish that the defendant driver operated the vehicle or intended to operate the car at the time of the alleged offense. The latter situation has come up frequently in our office’s experience, when, for example, a driver pulls over the side of the road either to “sleep off” the effects of alcohol or to wait for a period of time before driving after leaving a bar or other establishment which serves alcohol. If the keys are in the ignition, and the car is running, this is indicia of “operation” and will often be enough for prosecutors to obtain a conviction of driving while intoxicated.

In the Polanco-Colon case, he and his friend Mr. Nunez testified that on August 16, 2011, they had been together at two bars in Manhattan, and that when they were stopped by police, the only reason that Polanco-Colon was in the car was to charge his phone, not to drive. Mr. Nunez described in detail their trip down the West Side Highway from the Café Tabaco y Ron to the Gaslight Lounge. The jury believed the testimony of the two men, and found Mr. Polanco-Colon not guilty of DWI. Polanco-Colon cannot be retried on the DWI charge, as that is double jeopardy. However, the Manhattan District Attorney’s Office has apparently determined that Mr. Polanco-Colon and Mr. Nunez were never together on the evening in question, and has charged Polanco-Colon with 8 counts of perjury, a D felony that has a maximum sentence of 7 years in prison. Mr. Nunez has been charged with 6 counts of first degree perjury.

One of the ironies of this case is that had Mr. Polanco-Colon been convicted of the DWI, which is a misdemeanor, he would have faced a maximum of only 1 year in jail, rather than 7 years on the first degree felony perjury charges he is now charged with. The attorney representing Mr. Polanco-Colon is also implicated in the case as having apparently discussed coordinating the testimony of Mr. Polanco-Colon and Mr. Nunez. In announcing the charges, New York County District Attorney Cyrus Vance stated: Honest testimony is the bedrock of our legal system…The cover-up, is, in this case, more serious than the crime.”

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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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According to a study by Edmonds.com, in which they polled three police agencies, there are several traffic violations which police departments specifically look to issue tickets for. So if you are trying to avoid being pulled over on a traffic infraction, this article is for you.

Speeding

The police are always focused on stopping drivers who are speeding due to the safety of the drivers, their passengers, and the occupants of other cars on the road. According to Edmonds, for every one hundred additional speeding tickets issued per month, there are 14.3 fewer accidents and 5.6 fewer injuries. Fines are frequently heavy on speeding infractions, particularly in school zones, in active construction areas and on infractions for more than 20 miles per hour over the speed limit. Annually, thirty four million tickets are issued for excessive speed, so it would be wise to slow down. In New York, under the Vehicle & Traffic Law, drivers who are convicted of going between 1 and 10 miles per hour over the posted speed limit receive 3 points on their license, and for drivers driving between 11 and 20 miles per hour over the speed limit, that is a four point ticket. Driving 21-30 m.p.h. over the limit is a 6 point infraction, and 31-40 over is an 8 point infraction. Keep in mind that any driver with 11 points on their license will have their license suspended by the Department of Motor Vehicles.

Distracted Driving

Distracted driving includes driving on a hand held cell phone, texting while driving, sending or receiving emails while driving, personal grooming while driving, drowsy driving and attending to young children in the back seat. Texting while driving is obviously a huge societal problem, but it appears to be most significant among younger drivers. The National Highway Traffic Safety Administration (NHTSA) reports that 40% of teens admit that they were in a car being operated by a driver either texting or using a smart phone. A conviction or plea of guilty to texting while driving, sending or receiving emails while driving or using a hand held cell phone will also lead to 3 points on your driver’s license.

Following Too Closely and Unsafe Lane Changes

The Edmonds study found that these two traffic infractions were of equal importance to police departments than many other traffic violations. However, under the New York State Vehicle & Traffic Law, an operator convicted of following too closely receives 4 points on their license, and an unsafe lane change conviction leads to 3 points on their driver’s license. Unsafe lane changes that the police look for, according to Edmonds, include cutting another driver off, veering into another lane, and moving into another lane without looking.

Equipment Violations

Equipment violations are easy tickets for officers to issue because there is no judgment involved. Younger drivers should be aware that excessive window tint is an obvious violation that the police are looking for and will not overlook. From an officer’s perspective, too much window tint creates a safety issue in that the officer cannot see what is happening inside the vehicle. Other equipment violations which are easy marks are broken tail lights, broken windshields and expired inspection stickers.

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In 1961, 51 year old Charles Gideon was charged with stealing wine and money from vending machines at a Panama City, Florida pool hall. At his arraignment, Mr. Gideon asked the judge to appoint him an attorney, as he was not able to afford one. However, in 1961, the State of Florida, as with other states in the nation, only provided criminal defendants with a Court appointed attorney in “capital” cases such as rape or murder charges.

Mr. Gideon was convicted of the larceny charges and sentenced to jail. The Florida Supreme Court upheld his conviction. While Mr. Gideon was incarcerated, he wrote out an appeal himself in pencil using prison stationery, and sent the appeal to the United States Supreme Court, which decided to hear the case. Upon receiving Mr. Gideon’s “pro se” appeal in 1962, the Court appointed Abe Fortas, who would become a U.S. Supreme Court justice two years later, to represent him. Gideon’s’ timing was excellent, as at the time of his appeal, the Supreme Court was seeking to address the issue of indigent defense.

Two months after hearing arguments in the case, entitled Gideon v. Wainwright, the U.S. Supreme Court reversed the Florida Supreme Court and ruled that all criminal defendants are entitled to be represented by counsel, even in non-capital cases, based upon the Fourteenth Amendment guarantees of due process. Judge Black, writing for the Court, stated: “In our adversary system of criminal justice, any person hauled into Court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.” Judge Black also quoted from an earlier Supreme Court opinion, in Powell v. Alabama, in which Justice Sutherland stated: “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law…He requires the guiding hand of counsel at every step in the proceedings against him. Without it, through he may be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”

The case was sent back to the Florida state Court five months later. Mr. Gideon was assigned a new lawyer, who was able to dismantle the prosecution’s case. The jury’s verdict: Not guilty. And history was made.

50 years later, although Gideon is a landmark case and was conceived with tremendous optimism, it is an unfortunate truth that many defendants who cannot afford to pay for an attorney are provided counsel by overworked and underfunded Legal Aid offices and public defenders who do not have the staff and resources to match the budgets of the prosecution. This is due to major budget cuts across the U.S. This often leads to plea bargains in cases where if there were sufficient staff and resources available to the defense, the prosecutors might be forced to meet their burden to prove each and every aspect of the case beyond a reasonable doubt at a trial. So the promise of Gideon back in 1963 has been hindered by budgetary considerations in 2013.

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Steve Katz, an Assemblyman from Yorktown who was first elected in 2010, was charged on Thursday, March 14 with unlawful possession of marijuana and speeding after being stopped by a trooper on the New York State Thruway near Albany, New York. Katz was ticketed for traveling at 80 miles per hour in a sixty five m.p.h zone. Apparently, when the trooper approached Katz’ car, he detected an odor of marijuana. Katz then handed over what is described as a small bag of marijuana to the trooper.

Mr. Katz is a member of the New York State Assembly’s Committee on Alcoholism and Drug Abuse. Last year, he was vocal in his opposition to the legalization of medical marijuana and voted against a bill to do so in the assembly. During the consideration of the legislation, Mr. Katz was quoted as stating: “Our community has been stricken with an increase in drug use and drunk driving by our youngest citizens.”

Katz was given an appearance ticket and must appear in the Coeymans Court on March 28, 2013. For the unlawful possession of marijuana violation, Katz could be fined $100.00. For the traffic infraction of excessive speed based on 15 miles an hour over the posted limit, Katz is facing a fine in the range between $90.00 and $300.00 in addition to a mandatory New York State surcharge of $85.00. Further, drivers who are convicted of or who plead guilty to driving 11-20 miles per hour over the speed limit will have 4 points assessed on their licenses. Drivers who accrue 11 points in an 18 month period will have their licenses suspended.

I would expect that Mr. Katz will retain an attorney to plead the speeding infraction to a non moving violation such as failure to wear a seat belt, which would still involve fines and surcharges of approximately $135.00 total, but not result in points on his driver’s license. As for the criminal violation of unlawful possession, Mr. Katz will probably seek what is called an “ACD”, or adjournment in contemplation of dismissal. This means that if has no other charges with a 6 month or one year time frame, the charges will be dismissed. A conviction on an unlawful possession of marijuana violation would result in fines with mandatory surcharge of approximately $200.00 for a first offense under the New York Penal Law Section 221.05.

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Julio Acevedo, the 44 year old suspected driver in the March 3 fatal car crash in the Williamsburg section of Brooklyn, was taken into custody in Bethlehem, Pennsylvania on March 6th. 21 year old Raisy Glauber, who was several months pregnant, and her 21 year old husband Nachman, were en route to a nearby emergency room for a medical examination when the fatal car crash occurred at the intersection of Kent Street and Wilson Street in Williamsburg. The Glaubers were passengers in a cab driven by Pedro Nunez Delacruz.

Mr. Delacruz was turning from Wilson Street where there is a stop sign; it is unclear if he stopped before making his turn. Mr. Acevedo who was traveling on Kent Street, which has no traffic control at the intersection, was driving a BMW at approximately 60 miles per hour. He struck the driver’s side of the cab with such force that the engine of the cab ended up in the back seat and Ms. Glauber was thrown from the vehicle. In addition to killing both Glaubers, the blunt force impact caused the baby to be delivered 3 months early by Caesarian section at Bellevue Hospital. The baby died of what was described as “extreme prematurity due to maternal blunt force injuries” by the New York City Medical Examiner’s Office on March 4th.

After the accident, Mr. Acevedo fled the scene and was charged initially with leaving the scene of an accident with serious injuries, which is a felony under the New York State Vehicle & Traffic Law. After the Glaubers and their baby died, the charges were upgraded to three counts of criminally negligent homicide, also felonies, (Criminally negligent homicide is an E felony with a maximum sentence of four years in prison) and one additional count of first degree involuntary manslaughter in the death of the baby, which is also a felony. It is uncertain if the Kings County D.A.s office will pursue the involuntary manslaughter charge against Mr. Acevedo, as it will be harder to prove.

The key evidence in the criminally negligent charges against Acevedo will involve a reconstruction of the accident by investigators to determine whether one or both drivers committed traffic infractions which led to the fatalities, including disregarding a traffic control device, speeding, and reckless driving. Additionally, officials will examine whether distracted driving such as texting, or alcohol was involved.

Acevedo may have fled the scene because he is presently facing DWI charges from a February 17, 2013 arrest in which his blood alcohol concentration (BAC) was allegedly 0.13%, well over the New York State limit of 0.08%. Additionally, according to reports, Mr. Acevedo served approximately 8 years in prison for a conviction of manslaughter in the death of a Brooklyn man known as “50 Cent”. The rap star Curtis Jackson later utilized this as his stage name.

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In a study conducted by the child protection advocacy group Safe Kids Worldwide and American Baby magazine, there were some very alarming results. 2,396 new mothers participated in a survey which revealed that 78% of mothers with children younger than 2 years of age admitted to speaking on a hand held cell phone while their babies were in the car, and 26% acknowledged that they had texted or checked their email while they were driving!

These distracted driving results are similar to percentages seen in teenage drivers. Although the mothers note that they have become more cautious since giving birth, 63% also stated that they had turned around while driving their vehicles to attend to their children in the back seat while driving, rather than pulling over to do so.

The survey also found that 10% of new mothers who were driving approximately 150 miles per week had been in accidents while driving with their children in the car. This accident rate is almost 3 times that of the general driving population and again approximates the accident frequency of teenage drivers, which is quite astonishing. Teenage drivers between the ages of 16 and 19 are involved in car crashes four times as often as drivers 20 or older. The president of Safe Kids Worldwide recommends the common sense measures of drivers leaving their cell phones in the back seat and pulling over if their children need to be attended to. Without question, there are emergencies which might require the use of a cell phone while in the car, (sudden health issue, for example). However, there can’t be any explanation for either texting or checking e-mails while driving, and this appears to be a prevalent issue in 2013.

The executive editor of American Baby, Laura Kalehoff, described that the idea for the survey was derived from her own experience in 2007, when she was driving with her 9 month old baby in the car. Kalehoff drove through a stop sign and stropped several feet later, when she was rear ended by another vehicle. She recognized that she was too tired and distracted to be driving, and decided to conduct a study to determine how common this issue was among new mothers. Apparently, it is a widespread problem.

One solution which has been mentioned recently is for the implementation of technology which would render cell phones inoperable while a vehicle is in motion. I have noticed that even with Bluetooth, having a serious conversation with a family member, friend or client while driving can cause a loss of focus on road conditions, traffic controls, and location, and have decided that if the conversation is important enough, I pull over or wait until at my destination to complete the call.

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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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