Ithaca Watkins Glen DWI lawyer: SCARY TRUTH -You're not entitled to Police Report until AFTER Cop Testifies in NY!

SCARY TRUTH:  You're NOT entitled to get your Police Report until after the Officer testifies in NY... (for real)!

This issue shocked me when I first started practicing in NY.   I'm a licensed attorney in Massachusetts, Maine, and New York.   Both Mass and Maine have pretty similar laws when it comes to getting the evidence against from a Prosecutor if you're charged with a crime.  They give it to you immediately -- when I worked in the Boston District Attorney's Office we used to give defense counsel a copy of the entire contents of our file at the very first time in court...

NOT IN NEW YORK.

ARCHAIC DISCOVERY RULES IN NEW YORK

Criminal Procedure Law 240.44 governs the issue we're discussing --when the defense gets any "non-confidential written or recorded statement...made by the person the prosecution intends to call as a witness at trial and which relates to the subject matter of the witness' testimony."   This is known as "ROSARIO" material.  People v. Rosario  9 NY2d 286 (1961).  

Basically, a police report is ROSARIO material in almost every criminal case.  

Q:  So what does CPL 240.44 say about WHEN the prosecutor gives us this stuff?   

A:  The Prosecutor MAY give the defense this information at the conclusion of the direct examination of each witness...  

ARE YOU KIDDING ME?   

Essentially, this means that a NY prosecutor could not give necessary evidence until the first hearing (or trial if defense counsel forgets to ask for it)--and AFTER their first witness testifies...  

That's crazy.  It's also inherently unfair.  How do you defend a case if you don't know what the evidence against your client is... When I tell clients about these rules they're usually shocked and appalled. 

HOW WE DEAL WITH THIS PROBLEM...

Fortunately, even if you're up against an unethical prosecutor who refuses to give the necessary evidence in a case, the defense is entitled to "adequate time" to review and prepare cross-examination on any evidence.  

So, we ask the Judge to do one of two things:

a)  Toss out all the evidence and not allow the prosecutor to use it and  have the witness testify; OR

b)  Ask for a several day/week adjournment so that we can adequately prepare a proper cross-examination (and request to put it on the prosecutor's timeline for Speedy Trial Rules CPL 30.30)

Most DA offices are not going to abuse these rules and give us the necessary evidence in a timely manner.   Occasionally, we get surprised by something a Prosecution witness says, but we know to ask for any ROSARIO material pertaining to their testimony --and then request an adjournment if necessary.  If we know about an existing report that we have NOT seen yet, we can also make a discovery motion (to supplement the one we always give at the first court appearance) to make the Judge aware of the problem even before we get to the hearing stage.  There's lots of ways to deal with the issue.  

My point is:  we shouldn't have to do any of this stuff.  The prosecutor should willingly give us all the info on a case --and if they have a good case --then great / if they have a bad case, the defense should know.  Simple as that.  Justice is not done when somebody is convicted based on the withholding of evidence by a prosecutor.

My hope is that more people become aware of this problem and make their voices heard. 

By Mike Cyr

Newman and Cyr is a boutique DWI defense firm located in Ithaca, NY and serving the Finger Lakes region.

If you have questions about a marijuana charge, DWI, felony charge, misdemeanor charge or another violation in Ithaca, Watkins Glen, Elmira, Seneca, Chemung, Yates, Steuben County or the surrounding counties of Upstate New York , give us a call, shoot us an email, or fill out the form on our website:

607-229-5184

BY NEWMAN & CYR

Or find us online! 

www.ithacadwi.com

www.watkinsglendwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi

DISCLAIMER: If you or a loved one is charged with a crime in NY, we strongly urge you to consult with a local, licensed criminal defense attorney to help lessen the possible negative outcomes of the charge--including the potential loss of your freedom. 

*Attorney advertising



*Educational Purposes only. Copyright 2017 NEWMAN & CYR PLLC.

Ithaca Watkins Glen DWI lawyer: How a Blood Test DOESN'T test your actual Blood in New York!

(image courtesy picturequotes.com)

HOW YOUR BLOOD GETS TESTED IN NEW YORK....WITHOUT EVER TESTING

YOUR ACTUAL BLOOD...

Huh?  What you say?  

If you are suspected of drugged driving or drunk driving in New York, then you will likely be subject to a BLOOD TEST by the police.  

If you give or are forced to give a sample of your blood to be tested in a New York crime lab, then your blood itself... WILL PROBABLY NOT BE TESTED.  

Instead, the gas portion of a vial containing your blood will be tested. 

WHAT AM I TALKIN' BOUT? 

--------

Let me break it down.  There are two common ways to analyze and separate compounds in liquid like human blood.  

1.  Gas Chromatography (where the actual liquid is heated into gas form and tested) 

[see this post]

AND...

2.  HEADSPACE Gas Chromatography (where only the GAS from a liquid sample is tested)

I'm referring to #2.   

What is "Headspace Gas Chromatography" ?  

It is basically the same process as regular Gas Chromatography; however, only the vapor from a liquid is measured and broken down by the machine (instead of the liquid itself...).  

Why does that matter if they use this method of testing on your blood in a DWI or DWAI drugs case? 

...BECAUSE IT CAN BE INACCURATE.

Problems with Headspace Gas Chromatography

1.  Twice the amount of potential error as regular Gas Chromatography:

The blood is taken by a human from your arm (possible error), then the blood is warmed in a vial until the liquid sample reaches "equilibrium" with the gas inside the vial (possible error).  Then a human removes a sample of the gas inside the vial (possible error). 

2.  The principle of measuring the GAS instead of the Blood itself is the same as in breath testing.  It relies on a scientific principle called "Henry's Law."  

Henry's Law states: 

1. In chemistry, Henry's law is one of the gas laws formulated by William Henry in 1803. It states: "At a constant temperature, the amount of a given gas that dissolves in a given type and volume of liquid is directly proportional to the partial pressure of that gas in equilibrium with that liquid."  (Wikipedia)

From the definition, you can see that temperature can affect the validity of any sample.  Also, if the sample has NOT reached "equilibrium" then the sample itself would be invalid.  

3.  There are additional chemicals added to the blood sample to "help along" any alcohol rising into the GAS portion of the vial.  These are called "salting agents."  Chemically, it is possible that these added chemicals could create a HIGHER CONCENTRATION OF ALCOHOL in any gas sample... called a false positive. 

IF YOU ARE CHARGED WITH DWAI Drugs or DWI and you 

gave a sample of your blood to police, call us:  

607-229-5184

Send me an email:  mike.ithacadwi@gmail.com

Copyright Cyr & Associates 2015

By Mike Cyr

www.ithacadwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi

Ithaca Criminal Lawyer: Fingerprinting at the Ithaca Police Dept.

(Image courtesy cnycentral.com)

MY OBSERVATIONS/THOUGHTS
OF DIGITAL FINGERPRINTING
AT ITHACA POLICE DEPT.

My job as a criminal defense attorney is really interesting on a day-to-day basis.  I sometimes get to go places and see things that others are not able to see.  One of these instances happened to me this past week.  

I was wrapping up a case and my client was required to get "processed" by Ithaca City police before he could be sentenced by the Judge.  What does that mean? 

To be processed by the police involves a few things: 

-you give all of your personal information (name, age, address, height, weight, tattoos etc)
-you get your photo taken by the police for their computer
-and you get your FINGERPRINTS taken and uploaded into their computer
(and probably sent to BOTH state-wide and national databases --I asked two officers where they went, and they honestly were not sure what databases they got sent to...I can only assume that NSA, CIA, FBI, etc has access)

So, back to the story, my client and I went to IPD main building and waited to be processed.  In a few minutes, an officer came out and allowed us both to come back to the area in the station where people are processed.  I watched.  

This officer was a veteran of IPD and has been processing people for many, many years.  He was extremely polite and professional.  My client gave his info and had his picture taken without any kind of problem.  

Then, the officer started taking the fingerprints.  

I'll stop the story to explain that IPD uses a digital fingerprint scanner that is part of a computer --so the prints are uploaded to databases almost instantly--once they've been taken.  

Here is a picture of the closest thing I could find online that looked like the machine they have:  

(not IPD's scanner, just something that looked similar, image courtesy of ydr.com)

OK--so here is where the story gets interesting.  This very experienced officer began fingerprinting my client (who was very good-natured and patient) ... and the machine just wouldn't cooperate.  

I watched this officer unsuccessfully try to digitally fingerprint my client for almost AN HOUR.  They kept getting stopped on a particular finger (I think it was the right ring finger).  Apparently, your fingers have to be cool and not sweaty or the machine doesn't like to read the print.  

I thought that was less than ideal--since most people I encounter are nervous when they're dealing with the police and sweaty hands are a pretty common side-effect of being nervous. 

They kept wiping my client's hands with baby wipes and running them under cool water to reduce their temperature.  

After about a half hour of trying, a SECOND OFFICER came in to try to get the prints.  The first officer (who seemed to really know what he was doing), just said "I give up."  

It took the SECOND OFFICER about 20 minutes to finally get the computer to accept the prints.  This involved several cooling attempts under water because my client apparently had "a hot finger!"  

I just silently watched this epic ordeal.  There was nothing I could do to protest or help, so I sat their thinking about this process and the machine being used. 

MY THOUGHTS ABOUT THIS PROBLEM:

More and more, the scientific reliability of using fingerprints as evidence of a crime has been questioned.  As a defense attorney, the most important thing in a criminal case is making sure that the methods used by police and police forensic labs are true and accurate (and based on good science).  

In the past several years, many police forensic techniques have been DEBUNKED --by other scientists--to prove that the police methods were faulty or HAD NO BASIS IN REAL SCIENCE. 

I'm talking about the FBI Hair matching scandal.  ARTICLE HERE

Or BITE-MARK analysis  (that's not a scientific thing either )  ARTICLE HERE

I'm a lawyer that believes that it is part of my job to constantly be learning about the science behind police techniques.  I attended a seminar last summer where a forensic presenter talked about FINGERPRINTS.  

It has been established that Fingerprint evidence is NOT considered full proof.  Scientists have determined that 2 different people could have the SAME print.  However, it is a small margin (but it is possible).  That's when analyzing full and COMPLETE fingerprints.  

In truth, in most criminal cases, police investigators are only able to get PARTIAL fingerprints from a crime scene.  This is where I get scared as a defense attorney. 

PARTIAL FINGERPRINTS --are WHOLLY UNRELIABLE as evidence. If a prosecutor tried to use them in court I would be objecting enthusiastically.  Here's why:

I've seen images of what appear to be the same partial print side-by-side.  They look identical.... then when the full image of the prints are revealed...they are CLEARLY different prints.  It's jarring.  However, if a jury sees the identical partial prints, how could they NOT convict the Defendant?  

This brings it back to IPD's digital fingerprinting... and the problems I saw this week with the machine.  

I'm a skeptic about most things -- but seeing the problems these two experienced officers had with the digital machine, my confidence in that machine's ability to take proper prints from ANYBODY is now in question.  

What if the machine takes a bad print from you?   Then it goes into a state and national database.   

What if somebody commits a crime someplace with a similar print to you and you get charged?   What if you can't account for your whereabouts that day?  What if you're convicted of something you didn't do because of faulty or unreliable technology (and so-called Fingerprint science)?  

These are big questions --but I think most people would agree that it shouldn't take an hour to get somebody's fingerprints.  Maybe IPD and the City of Ithaca should help finance a new fingerprint scanner.  I think that fingerprints are too important (based on the how they're relied upon by police) for a machine to get them wrong...

Just one lawyer's opinion.  

BY ATTORNEY MIKE CYR

Phone: 607-229-5184

www.ithacadwi.com

www.facebook.com/ithacadwi

Twitter:  @ithacadwi

Ithaca DWI lawyer explains: Lawyerin' in Watkins Glen Village Court

Watkins Glen Village Court, Copyright Cyr 2015

LAWYERIN' IN WATKINS GLEN VILLAGE COURT

I practice here often. Watkins Glen Village Court is right in downtown Watkins Glen on the main street through town. It's close to the bottom of Seneca Lake and is walking distance to several restaurants all along Franklin St.

The Courtroom is new and spacious.  You will be wanded by a police officer upon entering the courtroom.  It is customary when your case is called--to go all the way up to the Judge's bench to discuss your case.  The District Attorney, Joe Fazzary, is there on most days --so your lawyer can often conference or resolve the case by speaking with him in court.  It's a good set up.

Judge:  Connie Fern Miller (new justice this year)

Address:  303 North Franklin St, Watkins Glen, NY 14891

Phone:  (607) 535-9717

Fax:  607-535-7621

Email:  villagecourt@watkinsglen.us

Website:  www.watkinglen.us

COURT HOURS:  Thursdays at 3pm (may vary)

District Attorney Representative:  The DA himself ... Joseph Fazzary handles this court. 

District Attorney website:  http://www.schuylercounty.us/Index.aspx?NID=127

Bottom line:

Take this with a grain of salt (but it is still true), It is important to know the people in charge of the Court where you are appearing...having a lawyer who knows the people can mean the difference in a good outcome vs. a bad outcome for your case.

BY:  Attorney Mike Cyr 

P:  607-229-5184
E:  mike.ithacadwi@gmail.com
www.ithacadwi.com
www.facebook.com/ithacadwi

Twitter:   @ithacadwi