Kamins: New Criminal Justice Legislation

Barry Kamins has the first of two Law Journal articles about new legislation affecting New York’s criminal justice system.  In the first (subscription required), he provides a thorough overview of the new Commission on Prosecutorial Conduct, including some of the constitutional controversies over the new commission.  For those unfamiliar with the commission, the article is worth a read.

Gay/Trans Panic Defense

Eric Lesh, the executive director of LeGaL, the LGBT Bar Association of New York, and James Castle, of Cozen O’Connor, have an article in today’s New York Law Journal calling on the Legislature to pass proposed legislation to outlaw the “gay and trans ‘panic defense,” which they summarize as, “a blame-shifting strategy upon which those accused of LGBT murder think they can rely in order to rally the anti-LGBT biases of judges and juries and mitigate their perceived culpability.”  Essentially, the accused uses the sexual orientation or gender identity of the victim as a “reasonable explanation or excuse” to establish extreme emotional disturbance, dropping a Murder charge down to Manslaughter.

Lesh and Castle argue:

Is mere presence at a crime scene itself a crime?

As every first year law student knows, mere presence at the scene of a crime is not sufficient to impose criminal liability on a defendant.  The actus reus requirement mandates that a person do something (or fail to comply with a duty imposed by law) or affirmatively aid and abet someone else in the commission of a crime.  

As we blogged about last week, new increased penalties have taken effect for Knowing Presence at an Animal Fight, N.Y. Agriculture and Markets Law § 355(5).  What was previously a violation is now a Class B misdemeanor.  It criminalizes: "[t]he knowing  presence  as  a  spectator  at  any  place  where  an  exhibition of animal fighting is being conducted."  It is, to my knowledge, the only crime on the books in New York that runs counter to the rule that mere presence is not a crime.  (The only other offense I can think of is Trespass, but even that statute requires an affirmative act of entering or remaining unlawfully.)

That is not to say that the statute is unconstitutional.  The "mere presence" rule comes from case law interpreting the actus reus and accomplice liability statutes.  The Legislature is free, I suppose, to make mere presence a crime under circumstances as it sees fit.  Here, punishing and, thus, deterring the audience to animal fighting is an important part of shutting down animal fighting rings.  Without an audience betting on and cheering on the fight, promoters of the fight will have little to gain.  (LC)

Criminalizing purchase of knockoffs?

Recent news articles have reported that a City Council member intends to introduce a bill to criminalize the purchase of counterfeit designer goods such as handbags and watches.  The proposed misdemeanor would carry up to a year in jail.  The bill has not been posted on the City Council's website yet, but a press release from the sponsor says, "The bill targets those who purchase goods which they should know are counterfeit, based on the cost or quality of the item or the conditions and location of the seller or sale." 

If this law is passed, enforcement will be difficult—if not impossible—and will no doubt result in a serious challenge for vagueness.  The mens rea appears to be negligence: whether the buyer "should have known" that the product was a knockoff.  Proving this beyond a reasonable doubt will be tough.  Every prosecuted buyer will claim that he or she was simply getting a good deal.  If the bill is passed, I predict most charges will be resolved at arraignment with ACDs.  I also see a lot of unhappy tourists.

If the City is serious about the problem, a better approach would be to target the sellers for sales tax and trademark violations rather than citing tourists for buying fake handbag.  (LC)

Kamins pens article summarizing new criminal justice legislation

Justice Kamins has a new article in the New York Law Journal summarizing recently enacted legislation concerning the criminal justice system. 

Among the new laws:

• a prohibition on large city police departments from keeping an electronic database of stops
• Leandra's Law, which make DWI an E Felony if a child under 16 was present in the car and requires an ignition interlock for every person convicted of DWI
• creation of a Statewide Office of Indigent Services, which will study and make recommendations for improving indigent defense
• creation of a new crime, Strangulation
• assaults on nurses or sanitation enforcement agents are now Class C felonies
• there is now a statutory right to "one phone call" (anywhere in the U.S. or Puerto Rico!) upon arrest
• probation reports are no longer required in misdemeanor cases where the judge does not impose more than 180 days (the previous limit was 90 days)
• VTL blood draws no longer require physician supervision
• unconstitutional provisions of the Loitering statute have now been removed
• OAG now has jurisdiction prosecute, criminally, Unauthorized Practice of Law

Take a look at Justice Kamins' well written article for more on these and other new laws.  (LC)