Bashian & Papantoniou, P.C.

New York’s Same Sex Marriage Law Stands | Marriage Equality Act

New York’s highest court has dismissed a case challenging the administrative procedures that allows allow gay men and women to marry in New York State.  The Marriage Equality Act was challenged on the basis that the NYS Senate violated New York’s Open Meetings Law because it held closed-door meetings before voting on the Act instead of allowing citizens to attend and observe the meetings.  The purpose of the Open Meetings Law is to keep citizens informed of what their elected officials are deciding and their reasoning so as to “retain control over those who are their public servants.” Pub. Officers Law, Art. 7 § 100.  Last year, an appeals court struck down the Open Meetings argument, and in or around October, 2012, the Court of Appeals declined to hear the challenge, thus allowing the Marriage Equality Act to stand in New York.

US Court of Appeals, 2nd Circuit Finds Possession of Child Pornography in Temporary Internet Files

The 2^nd Circuit held that a defendant does not have to save Internet files containing child pornography to his hard drive to be criminally liable.    The decision comes on the heels of the May 8^th New York Court of Appeals decision which held that viewers of free online pornography are not breaking the law if they just look but do not copy, purchase, or exercise “dominion and control” over the child pornography images.   Governor Cuomo then quickly led a group of New York State legislators to prohibit the “knowing access with intent to view” sexual performances by a child.  Here, the US Court of Appeals held that under the circumstances the evidence was sufficient to prove the defendant of knowingly receiving and possessing child pornography, as “an individual who views images on the internet accepts them onto his computer, and he can still exercise dominion and control over them, even though they are in cache files.”

Tweets in the Malcom Harris matter are Subject to Manhattan DA’s Subpoena

Criminal Court Judge Matthew Sciarrino Jr. held in People v. Harris, 2011NY080152 that Twitter Inc. must produce tweets and user information in Wall Street protester case.  The Judge reasoned that the defendant lacked standing, at the time, to quash the subpoena, as the defendant had “no proprietary interest” in his account’s user information.  “If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy,” said Judge Sciarrino.  On May 17, 2012, Twitter incorporated a newly added portion of terms was incorporated onto the site, which states “You Retain Your Right to Any Content You Submit, Post or Display on or Through the Service.”

Pro Bono Requirements for Newly Admitted New York Attorneys

Chief Judge Jonathan Lippman is planning to require future New York attorneys to perform 50 hours of pro bono service before being admitted to practice law in New York.   Pro bono is a Latin phrase generally used to describe professional work undertaken without payment or at a reduced fee, as a public service. Judge Lippman has said, the presiding justices of all four appellate divisions have endorsed the new pro bono plan and that the 50 hours could be performed during law school or any time before admission to the bar.   The requirement is expected to help address the need for legal services for the poor, as well as, give law students practical experience before practicing in the profession.

Class Certified in NYPD Stop and Frisk Program

Judge Shira Scheindlin ruled “overwhelming evidence” exists that the NYPD is running a centralized “stop-and-frisk” program that has led to thousands of unlawful stops and arrests.   As a result the federal judge certified a 2008 class action lawsuit that challenges the NYPD “stop and frisk” program.  The class action plaintiffs’ allege the NYPD purposefully engages in the widespread practice of concentrating the “stop-and-frisk” program in minority neighborhoods based specifically on racial composition and quotas.  Judge Scheindlin reasoned the “Defendants cavalier attitude towards the prospect of a widespread practice of suspicionless sops displays a deeply troubled apathy towards New Yorkers’ most fundamental constitutional rights.”   The class action lawsuit challenges the Fourth Amendment’s right to be free from unlawful searches and seizures and the 14^th Amendment right to be free from discrimination.

If you or a loved one has been the victim of an unlawful search and seizure or arrest, please contact the New York criminal attorneys of Bashian & Papantoniou to schedule a consultation.

Hofstra Law Students Return from Cuba

A group of thirty-seven 2^nd and 3^rd year Hofstra law students recently returned from a trip to Havana, Cuba where they studied export laws and controls during their spring break.  The law students met with a Cuban Supreme Court justice and visited the National Union of Cuban Jurists, which is a professional organization for Cuban attorneys.  Hofstra Law apparently became the first law school in the United States to apply for accreditation in a study abroad program in Cuba.   Specifically, the Hofstra law website boasts that law students on their trip would have the opportunity to learn about the Export Administration Act (EAA), the International Emergency Economic Powers Act (IEEPA), and the amendments to IIEPA pursuant to the International Emergency Economic Powers Enhancement Act.  The students also were given the opportunity to discuss and learn about the Trading with the Enemy Act (TWEA), which is a United States federal law enacted in 1917 to restrict trade with countries hostile to the United States.   Since the 2008, Cuba is the only country still restricted under the act.   What is your opinion on the United States use of the TWEA with Cuba?  Should the act be lifted?  Do other countries, such as Iran and North Korea better fit the need for such emergency legislation?

See the program here: http://lawarchive.hofstra.edu/academics/programs/internationallaw/intlaw_cfs.html

NY State Preparing Large Expansion of DNA For Convicted Criminals

A deal between Governor Cuomo and state lawmakers for the expansion of the DNA database in New York for convicted criminals has been reached, which will create a database among the nation’s largest, according to the New York Times. Under current law, DNA samples are only required for less than half of the potential crimes in New York, including all felonies. This proposal will require New Yorkers convicted of any crime to submit a DNA sample to the state for entry into the state’s existing DNA database.

While prominent critics of this proposal include the New York Civil Liberties Union, defense attorneys and judges will have broader access to DNA evidence in order possibly exonerate defendants. Jonathan Lippman, the Chief Justice of the New York Court of Appeals, the highest court in New York, told the New York Times, “This legislation is a major step forward in eliminating wrongful convictions in New York…. The legislation takes an even-handed, balanced approach to this problem, particularly by expanding the access of convicted offenders — not only those convicted after trial, but also those who pleaded guilty — to DNA testing.”

Prosecutors, including Manhattan District Attorney Cyrus Vance, are largely for this measure. Vance told the New York Times, “I think the passage of this legislation speaks to something that clearly is in our control and that clearly is going to have a real impact on solving old cases, preventing future cases and hopefully exonerating the innocent.”

Teacher’s Termination for Posting “Repulsive” Comments to Facebook Overturned

A Manhattan court ruled that a teacher who posted comments to Facebook should not have had her employment terminated, since such a punishment “shocks one’s sense of fairness” and is “inconsistent with the spirit of the First Amendment.” The tenured teacher in this case, Matter of Rubino v. City of New York, posted a comment to Facebook after hearing news that a New York City student drowned during a field trip to the beach, in which she wrote “after today, I’m thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are all the devils (sic) spawn!” After a friend commented on her post, “oh you would let little Kwame float away!”, the petitioner responded “Yes, I wld (sic) not throw a life jacket in for a million!!”

After a concerned colleague viewed these posts, that colleague contacted the teacher’s school administration, which launched a formal investigation. The teacher admitted to posting those comments to Facebook and expressed regret for doing so. The investigation and subsequent hearing culminated in the termination of her employment.

However, in reviewing the teacher’s appeal from the hearing, Judge Jaffe ruled that while the decision to terminate her employment was neither arbitrary nor capricious, the punishment was disproportionate to the harm committed. Characterizing the teacher’s posts as “repulsive,” the court viewed this as an “isolated incident of intemperance,” and not as evidence of a pattern of conduct, instead focusing on the ease by which people may post to Facebook without regard to the privacy of those communications.

In overturning the termination and remanding for the imposition of a lesser penalty, the court wrote, “[w]hile students must learn to take responsibility for their actions, they should also know that sometimes there are second chances and that compassion is a quality rightly valued in our society.”

California Ban on Same-Sex Marriage Reversed by Ninth Circuit Court of Appeals

Proposition 8, the voter-approved referendum banning gay marriage in California, was recently ruled to be unconstitutional by the Ninth Circuit Court of Appeals. Proposition 8 was passed in California in 2008 with 52% of the vote.

In 2010, Federal District Judge Vaughn R. Walker ruled that preventing same-sex couples from marrying violates both the Due Process and Equal Protections clauses of the US Constitution. While the Ninth Circuit upheld Judge Walker’s decision, it framed the legal question more narrowly, focusing not on the right for same-sex couples to marry, but on the treatment of domestic partnerships. The Ninth Circuit ruled that the disparate treatment of domestic partners in California, when compared with married couples, violates the Equal Protections clause. 

Writing for the majority, Judge Stephen R. Reinhart wrote, “All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation ‘marriage’…. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California.”

 However, a stay imposed by Judge Walker preventing same-sex couples remains in effect for two weeks following the ruling, preventing same-sex marriages from taking place immediately in California. The final question regarding whether same-sex couples have a Constitutional right to marry in California is not likely to be answered until the Supreme Court rules on an appeal from the Ninth Circuit’s ruling, or declines to entertain an appeal, which would be viewed by many as a tacit endorsement of this decision.

Supreme Court: Police must obtain a warrant before attaching a GPS tracker to a suspect’s vehicle

In a unanimous decision, the U.S. Supreme Court has ruled that police must obtain a warrant before attaching a GPS tracker to a suspect’s vehicle.  However, the Court was split 5-4 in its reasoning behind the ruling, with Justice Antonin Scalia writing for the majority.  Justice Scalia reasoned that the Fourth Amendment’s protection of “persons, houses, papers, and effects, against unreasonable searches and seizures” would extend to private property, including one’s vehicle.  In contrast, the minority decision emphasized a more sweeping declaration that installing the GPS tracker not only trespassed on private property, but violated the suspect’s “reasonable expectation of privacy.” 

The case involves a narcotics operation allegedly run by the defendant, Antoine Jones.  During the course of the investigation, DC police and FBI agents tracked Mr. Jones, a nightclub owner, through several means of surveillance techniques, which included tapping his cellphone under a warrant from a federal judge.  Authorities also placed a GPS tracking device on his Jeep Grand Cherokee without a valid warrant, which the government argued was not constitutionally required.  The Justice Department argued that the FBI uses GPS tracking devices in thousands of investigations each year, and attaching a tiny tracking device to a car’s undercarriage was too trivial a violation of property rights to matter.  However, the majority shot this argument down, reasoning that even a small trespass, if committed in “an attempt to find something or to obtain information,” constituted a “search” under the Fourth Amendment.

This is a landmark case as far as constitutional rights in the digital age are concerned.   Justice Sotomayor joined in the majority opinion, but wrote separately to set out various privacy issues that emerging technology was presenting.  For example, smartphones have the ability to disclose a user’s location unless the internal GPS functions are actually turned off.  Unfortunately, the Court’s ruling provided no definitive answers as to whether the government must obtain a warrant for access to such private property.