Ithaca DWI Lawyer: Should Bullying Lead to a Murder Charge?

The "Show Me" State is in
The Spotlight Once Again

You know sometimes you read stuff and you get mad. Well at least I do, I hate what I perceive as an injustice or an unfairness. Unfortunately, there is much of that in the world or as Gerry Spence loves to joke there is NO justice, there is Just Us!

For those of you who don't know the legacy of Mr. Spence, he is a legendary trial lawyer and advocate for people. I feel honored to have been at his college in Wyoming (the Trial Lawyers College), and to have had his mentoring. I think Gerry would hate what is going on today in Missouri.

A boy was bullied, at his school and at his work, the local DQ (Dairy Queen). He committed suicide by shooting himself in the head. The coroner demanded an Inquest, kinda like a Grand Jury but only 6 in Missouri to determine the cause. Apparently this "court" found that the primary cause of the suicide was the manager from Dairy Queen.

Now the District Attorney has charged the DQ manager (all of 21) with the criminal felony of Involuntary Manslaughter, which is like being charged with MURDER for Bullying. Now we don't or no one truly knows how many people have bullied this kid in his lifetime, or what degree each instance of bullying played in his decision to finally take his own life. It is a tragedy but I think to pin it one particular person or event is guessing at best.

I question the logic and reasoning behind bringing a murder charge under these particular circumstances. I question the fairness of all of this, but I'm starting to understand the larger purpose.

Ithaca Lawyer Getting Past the Reptile Brain in New York Assault 3rd

The Simple Reptile Mind from 1ms.net

We have a relatively primitive brain. I didn't come up with this, it's all that reading I do. We are at our base instincts, reptilian. We have brains wired for survival of our species. All else is as they say, is merely commentary.

The reptile brain thinks in duality. Hard and fast dichotomy, with no in betweens. Safe vs. Dangerous, flight vs. fight, good vs. bad, this brain is quick to make decisions and judgments. All hard wired and ready at an instant.

Legally Speaking from thinkingtoinking.com

Where this brain of ours doesn't serve us in when it comes to subtlety. I am one of those knuckle head guys that doesn't always read the signs (as my wife loves to quip). How did you miss that? It was so obvious? Me, like millions of other people don't always think in degrees, in those shades of grey, or those slight differences. Those colors all look the same, you already have shoes just like those, or why does it matter about what style you wear to that event. I think women think a little less reptilian as a general rule.

Law is Centered in Subtlety 

We have crimes based upon degrees. We have crimes based upon levels of harms. We have crimes based in mental states (intentional, negligent, and reckless). We have punishments in degrees as well, called in New York State, "graduated sanctions." In law, evidence and proof are measured and weighed (the scales of justice). Appropriate sentences are proportioned to fit the crime.

Degrees of Injury are Vital 

Defending Against NYS Assault in the Third

Which brings me directly to New York State Penal Law section 120.00 Assault in the Third Degree, aka assault 3, or assault 3rd.

The essential element of the Prosecution (the District Attorney) proving you guilty of assault 3 is the causing of a physical injury to another person.

Physical injuries vary greatly by degree. Are these "substantial" injuries? Are they lingering (permanent)? Are there any aftereffects from the injuries?

New York State law defines physical injury under Penal Law section 10.00 (9):

Physical injury is defined as one that causes impairment of someone's physical condition or substantial pain. So they (the DA) must SHOW (Demonstrate) impairing injuries or substantial injuries to prove you guilty of Assault 3rd.

This is an objective measure, not a subjective one. My wife is a nurse, and I can tell you what someone thinks (or feels) is painful varies greatly person to person. Some people think everything is a level 15 on a scale of 1 to 10, while others are bleeding profusely and feel fine.

Where the Court Found Guilt of Assault in the Third Degree

In one case, People v. Guzman, 260 A.D.2d 188 (1st dept. 1999) the court found Guzman guilty of assault 3rd based upon the physical injuries sustained, he appealed, and the higher Court upheld the conviction based upon the injuries sustained:

red streaks across the face that lasted for 2 weeks
cuts and bruises that lasted for days
large blood clot inside the mouth
soreness of the ribs, face, and mouth that lasted for days

KEY TAKEAWAY the injuries Lingered, they lasted for days or weeks.

Where the Court Found Innocent of Assault in the Third Degree

In People v. Rodriguez, 158 A.D. 376 (1990) the Appellate Court reversed a conviction of Assault 3rd because the injuries did not meet the objective level of either causing impairment or substantial pain. The injuries sustained:

three punches to the leg
bruises from the blows
No testimony of any aftereffects from the bruises

When is it just a Bruise? from coreconcepts.com

The Court did not feel the prosecution met the "substantial pain" threshold to warrant a conviction for Assault 3rd.

In another case, People v. Oquendo, 134 A.D. 2d (1987) the Appellate Court found insufficient evidence to sustain a conviction for Assault 3rd based upon the following injuries:

knocking someone down to the floor
hitting her ankle
kicking her
Bruised and black/blue ankle
NO aftereffects, NO lingering

The various New York State Courts have held that the following are merely minor injuries
(NO substantial injuries = NO Assault 3rd):

a one-centimeter cut above the lip
superficial scratches
abrasions requiring one stitch
blows causing red marks
even being struck in the head by a gun
pain experienced at the time of injury

The Courts are looking for aftereffects. 

KEY TAKEAWAY: Substantial pain requires more than slaps, kicks, punches, shoves, and blows.
Pictures of bruises in and of themselves will NOT meet the threshold.

The defense of many crimes lies in looking at degrees and subtlety. Proof is not usually a clear case of black or white in many situations. Looking at the law, the facts, and these shades can mean the difference between GUILT and INNOCENCE.

Lawrence (Larry) Newman, D.C., Esq.

Doctor of Chiropractic
Attorney and Counselor at Law

http://www.ithacadwi.com

607-229-5184
newman.lawrence@gmail.com

Ithaca Cortland Lawyer: The Cost of Being Right: The Legal versus the Practical

 I love my wife, that's my mantra! from quickmeme.com

Being Right Can Be Sweet

Who doesn't love to be right? The sweetest words that my wife can say are not "I love You," they are "You are Right." That's sad, but oh so true. Afterall, in our 26 year relationship I am often wrong, yes, I know it is hard to believe but the husband often gets it wrong (or doesn't get it at all). Claims that I don't listen or have not listened clearly echo in my head constantly. What did you say?

The Law

So what does this have to do with law? Well, I recently did a blog post about the passage of a new New York Bill that allows (permits them) judges to give shorter sentences for probation. Did I mention passage? because that is the key here, this thing, this law has passed the legislature otherwise I would not have the excitement I have for it. Nice to know something is written but until it passes, let me just say "I'm from Brooklyn" so show me!

Here it is, let's call it THE PROBATION MODIFICATION BILL:

BILL NUMBER:S4664A

TITLE OF BILL:  An act to amend the penal law and the criminal procedure law, in relation to establishing terms of probation sentences and revocations thereof under certain circumstances; and to amend the criminal procedure law, in relation to pre-sentence investigations and written reports thereon in any city having a population of one million or more

SUMMARY OF PROVISIONS:

Section 1 of the bill would amend Penal Law ("PL") º 65.00(3)(a)(1) to provide the court with the discretion to impose a probation term of three, four or five years for a felony. This would only apply to felonies other than (1) Class A-II felonies defined in PL Article 220; (2) the Class P felony defined in PL º 220.48; (3) any other Class B felony defined in PL Article 220 committed by a second felony drug offender; or (4) any felony involving a sexual assault.

Section 2 of the bill would amend PL º 65.00(3)(b)(1) to provide the court with the discretion to impose a probation term of two or three years for a class A misdemeanor other than a sexual assault.

Section 3 of the bill would amend PL º 65.00(3)(d) to give the court the discretion to impose a probation term of two or three years for an unclassified misdemeanor, for which the authorized sentence of imprisonment is greater than three months.

I read about it through the New York State Defenders Association, Public Defenders Backup Center Report, May- July 2013. I love to keep up with changes to NYS law, especially favorable ones. btw It also helps me with my "being right" about more stuff.

I had shared this with a local attorney, and he was excited to share it with a local judge. The judge then called the DA (District Attorney) who told him it never passed. Now I believe that it is up to each, and every local attorney to keep up with their areas of law to best advocate for their clients. But knowing stuff (law) doesn't guarantee anything, it just gives you a leg up, nothing more.

Remember, Judges Believe What They Want To

Judges are people, and they have their own beliefs. The other fact is that 2/3 of all town and village judges in New York State are not lawyers. I have faced situations where ADAs (assistant district attorneys) in different counties have told judges "bubbe meises," my old Yiddish expression for grandmother's fairy tales ie. bullshit. They argued that there were exceptions to New York law for restitution in DWI cases, there aren't, and for YO (youthful offender) status in DWI cases, there aren't.

People don't always agree with you from theintersectionist.com

But the big take away, some judges listen, some judges read, and some judge don't care. I have filed motions on the law, and some judges have denied them. Even with the written statutes in their face, they flat out denied the law, and the legal and factual grounds for what I was requesting. Other judges followed the law to the letter. Sometimes trying to be RIGHT legally can be time consuming and costly. Is it worth chasing down $500 by spending $1,000's on legal appeals? Some law firms love to just keep appealing, hours and hours of time, and who pays? Hey you may win? It's like getting the bedroom set in a nasty divorce that cost you half your home equity. In my mind, often this proves to be both stupid and impractical.

 No Truer Words have been Spoken from wordofbalance.com

The Cost to Be Right

I have my share of innocent people, but what does it cost to prove true innocence?

Case in Point: I have a diabetic pulled over for truly erratic driving who refuses the breath test. I now must bring in a medical doctor to give expert testimony that his diabetes caused his failure on all the field side sobriety tests and the brain (mental) confusion of taking another breath test back at the station.

Unfortunately, You are "Guilty till Proven Innocent" in many situations like this. There is a NYS Jury Instruction called "The Presumption of a Consciousness of Guilt" which can be used by the prosecution because you refused the breath test. Meaning you are presumed to have not taken the test because of your feelings of guilt (guilty to be drunk driving).

We now need to explain the crazy driving, we now need to explain the imbalances, we now need to prove the cause of the confusion, and we now need to demonstrate the proof of our theory of the case. Being offered a guaranteed DWAI (driving while ability impaired) would be a win here in some people's minds. The chance or risk of going to trial are not for everyone. For others, going to trial at all costs (financial, emotional, and time) would be the only option.

And sometimes the battle costs more than the hopes or chances of winning the war. No guarantees that even if you bring in the experts to testify, even if you file the proper motions, even if you state the law, and even if you have all the right facts that you will succeed. And thats a lot of even ifs.

In marriage, and in law sometimes the cost of being right (much like the rent) is too damn high. Sometimes it is better to keep the peace (or remain unscarred) and be wrong.  

Lawrence (Larry) Newman, D.C., Esq.

Doctor of Chiropractic
Attorney and Counselor at Law

607-229-5184

newman.lawrence@gmail.com

http://www.ithacadwi.com