*NEW* KNOWLEDGE OF CPL § 30.30 NETS DISMISSAL OF SERIOUS THEFT OF SERVICES CHARGE

Mr. Corletta  again exploited laxity by police in a relatively serious Theft of Services case, where his client allegedly reconnected an electric service meter three (3) times to improperly receive electrical service, in People v. B. H. (Rochester City Ct., 8/17/10).

The evidence against Mr. Corletta’s client was overwhelming. An RG&E investigator had gone to his residence at least three (3) times based upon reports of  illegal use of electrical service. A utility meter was disconnected twice, and then finally removed.

An Arrest Warrant was subsequently issued upon filing of the accusatory instrument.

 Despite these adverse facts, Mr. Corletta carefully examined the circumstances. The Information alleging Theft of Services was woefully defective on key elements of the charge, and contained blatant hearsay.

 Further, the Arrest Warrant was not executed for nearly seven (7) months; thereby raising Speedy Trial issues.

Mr. Corletta filed Motions to Dismiss on both grounds, and the District Attorney, who had previously been outraged by Defendant’s alleged behavior and requested bail, conceded without filing Answering papers.

Mr. Corletta’s client, although perhaps not deserving it, was saved well over $1,000.00 in restitution. 

Once again, this shows that proper representation in criminal cases involves knowledge of technical aspects of the law regarding accusatory instruments, filing thereof, and time periods for executing Arrest Warrants. Often, a criminal practitioner can get his/her client out of difficulty based upon the government’s failure to properly initiate a case.

*NEW* MR. CORLETTA WINS A COMPLETE VICTORY IN ASSAULT CASE; JUDGE SIMPLY CITES DEFENSE MOTION PAPERS IN SUPPORT OF DECISION  

In an utterly complete victory, the Judge cited Mr. Corletta’s reasoning and caselaw in dismissing an Assault charge against his client, a professional, in People v. Anonymous (Fairport Village Ct., 8/12/10).

Mr. Corletta’s client, a healthcare professional, was charged with Assault by an estranged, obsessed ex-partner. On the first go around, Mr. Corletta found a defect in the first accusatory instrument and earned a dismissal for insufficiency, as previously reported on this website.

The People then refiled the accusatory instrument, but surprisingly used sealed records in doing so, and the second accusatory instrument was therefore more defective than the first. The People made absolutely no effort to remedy the defects in the first accusatory instrument, or did they timely file it.

Mr. Corletta pounced on this and filed a second Motion to Dismiss on grounds of insufficiency, which was granted.

However, because the People in, “two bites at the apple,” had never filed a legally sufficient accusatory instrument, and took well over two (2) months between dismissal of the first case and refiling and arraignment of Defendant in the second, all without properly announcing readiness, Mr. Corletta further won a CPL § 30.30 dismissal, which was significant, since a speedy trial dismissal is with prejudice. The People will have no more chances to file a proper accusatory instrument.

The case demonstrated the intersection between the law regarding insufficiency of local criminal court accusatory instruments and speedy trial rights, and demonstrates that if the People are lax in refiling of a proper accusatory instrument, they will face the consequences of a speedy trial dismissal, as they did here.

Most striking about this case is that the Judge, in deciding the Motion, simply referred the government to Mr. Corletta’s Motion papers and the authority cited therein, and stated his Decision was based upon those authorities and Mr. Corletta’s reasoning.

This is certainly one of the highest compliments an attorney can receive.

Mr. Corletta’s impressed, grateful, and relieved client was spared a possible career threatening conviction as a result of Mr. Corletta’s efforts, all without having to risk a trial. Once again, careful review of the procedure utilized by the People and the accusatory instrument, coupled with knowledge of the law, can often spare the client the trauma of a trial. This was just such a case.

*NEW* KNOWLEDGE OF THE LAW LEADS TO TWO DISMISSALS BY CONSENT IN DIFFICULT CASES

Many criminal cases have so-called “bad facts”, which cause many lawyers to throw their hands up in despair. Not Mr. Corletta. 

It is equally true an examination of the accusatory instrument and knowledge of the law leads to many dismissals or favorable dispositions in so-called ‘difficult cases.”

Good examples of this are two recent cases handled by Mr. Corletta.

In People v. D.V. (Ogden Town Ct. 5/25/10), Mr. Corletta’s client was charged with Endangering the Welfare of a Child when his fifteen (15) year old son found cocaine concealed on a shelf in his client’s bedroom closet. The fifteen (15) year old was snooping where he was not supposed to be.

Immediately applying the law governing Endangering cases where drugs or guns are found by children, Mr. Corletta filed a Motion and Memorandum of Law with the Court citing relevant caselaw from the state’s highest court holding that where a parent secretes such items from the children’s view, does not tell the children about it, and the children find it because they are looking where they are not supposed to look, this does not constitute Endangering the Welfare of a Child.

Mr. Corletta’s Motion and Memorandum were so effective the District Attorney consented to dismissal, stating she “did not have a case.”

In People v. B.K. (Greece Town Ct. 6/10/10), Mr. Corletta’s client was charged with Criminal Tampering for stuffing rags down the toilet at a former employer, causing a flood.

Although such conduct was childish and inexcusable, Mr. Corletta once again examined the accusatory instruments and the statute and found the charge to be based upon rank hearsay and speculation.

Quickly filing a Motion to Dismiss, even the outraged District Attorney could not disagree with the legal basis for Mr. Corletta’s Motion. The result was an Adjournment in Contemplation of Dismissal (ACD) with a small amount of Community Service.

This was notwithstanding that the allegations were his client had caused tens of thousands of dollars of damage.

Once again, quick action and knowledge of the law, rather than hand wringing, resulted in favorable results for two (2) clients whose actions were arguably less than admirable. It is not a criminal defense lawyer’s job to judge; that is something left to the Prosecutors and Courts. It is the criminal defense attorney’s obligation, no matter what the client is alleged to have done, to give the best possible defense, and get the best possible result. That is the foundation of our adversary system of justice.     

*NEW* MR. CORLETTA DEMONSTRATES SKILL IN OBTAINING SUPPRESSION OF STATEMENTS

Dealing with a non-English speaking defendant is always difficult.  Dealing with a non-English speaking defendant who is elderly, and who has a hearing loss, is doubly difficult.  Coupling these infirmities with an alleged sex crime makes representation triply difficult.  This is what Mr. Corletta was confronted with, and overcame, in People v. Anonymous (Rochester City Ct., 3/10).

In this case, the primary piece of evidence against his client was an alleged statement, part of which was exculpatory.  It was obtained by a Spanish speaking officer, purportedly after reading defendant Miranda Warnings in Spanish.

However, at the Huntley Hearing, the Spanish Miranda card was not introduced into evidence, and there was inadequate proof Defendant both understood his rights and agreed to speak with the Spanish speaking officer.  Evidence of waiver was insufficient, even for an English speaking defendant.

In addition, the alleged written statement was transcribed in English, not Spanish, and allegedly read to the defendant.

In addition to all of this, Mr. Corletta’s client stated, at some point in the interrogation (the arresting officer gave two different versions, one on direct examination, one on cross-examination) that he did not wish to make any further statement. The officer persisted, characterizing the ensuing statement as “spontaneous”.

It is no wonder suppression resulted.  The officer made several errors in obtaining the statement, which would have been fatal even with an English speaking defendant, that were exacerbated by the fact he was dealing with an elderly, Spanish-speaking defendant.

Despite obstacles in interpreting and understanding what his client was telling him this, Mr. Corletta remained patient and obtained a favorable result in a serious sex offense case. 

NEW* MR. CORLETTA DEMONSTRATES EXPERTISE IN DISMISSAL OF ASSAULT CHARGE

Mr. Corletta again demonstrated his knowledge of the law as it pertains to accusatory instruments in obtaining a dismissal of an Assault Third Degree charge against his client in  People v. Anonymous (Fairport Village Ct., 3/18/10).

This case was unusual, because it involved a stalking of Mr. Corletta’s client by the alleged “victim,” an ex-boyfriend and “wannabe” police officer, who also bragged about the party’s personal relationship on his “Facebook” page.

Mr. Corletta’s client was alleged to have thrown a beer bottle at him in  a local tavern, causing  unspecified injuries. The “victim” then made other disparaging comments on his Facebook page and even brought a purported video of the alleged event to the Court, in an ultimate display of arrogance. He was not authorized to have ex parte contact with the Court, and his behavior was highly inappropriate.

Defending his client, Mr. Corletta promptly attacked the validity of the accusatory instrument, including the allegations as to his client’s intent to cause physical injury and the allegation of physical injury itself.

Mr. Corletta also obtained an instruction, to be conveyed to this “victim’ by the District Attorney that he was not to communicate with the Court in  any way pending trial.

Further, the Court examining the accusatory instrument, dismissed same for legal insufficiency despite the fact  this “victim” had given a statement to  police, along with two (2) of his drinking buddies.

It became abundantly clear all this “victim” was attempting to do was to get back at Mr. Corletta’s client, in a completely inappropriate use of the criminal justice system.

*NEW* MR. CORLETTA CAPITALIZES ON PROSECUTOR’S BASIC MISTAKE

Sometimes Prosecutors can be overly aggressive and arrogant, and in their over aggressiveness and arrogance, reveal their lack of knowledge of the law.  This is exactly what occurred in People v. Anonymous (Livingston County Ct., 12/23/09).

Mr. Corletta’s client was indicted on relatively serious Driving While Intoxicated and Aggravated Unlicensed Operation charges.  Mr. Corletta’s client had a long criminal history, including three (3) prior convictions for Driving While Intoxicated.

The government would hear nothing of any negotiated resolution, and demanded a State Prison sentence.  Mr. Corletta’s client, although having a long record, did not have a violent record and most of the prior offenses were misdemeanors.

The People obtained one Indictment, but due to fundamental mistakes at the Grand Jury, one of the felony charges was dismissed, as reported on this site previously.  Upon re-representation new charges were added out of vindictiveness, and a Probable Cause/Huntley hearing scheduled.

At the Probable Cause/Huntley Hearing, the People elicited that Defendant had been administered Miranda Warnings, and that Defendant understood those Warnings.  However, for some reason, the Prosecutor stopped eliciting testimony at that point, neglecting to elicit that Defendant waived the right to remain silent and right to counsel. The Prosecutor then further failed to elicit any post-Miranda statements.

The Prosecutor then made the remarkable argument, to justify the Peoples lack of proof that Defendant is an experienced criminal who has been arrested numerous times and therefore, “knows his rights”.  The Prosecutor further argued he had no obligation to even place the alleged post-Miranda statements in evidence. Both arguments were nonsense.

Therefore, the Court was left without a waiver of either the right to remain silent or right to counsel, and with no idea what the post-Miranda statements were.  The People showed no understanding of what their minimal burden of proof was at a Hearing challenging admissibility of statements.  They simply asked the Court to admit the statements ‘”on the CPL § 710.30 Notice,” which also was not in evidence, and is merely a pre-trial pleading.

Mr. Corletta submitted a Memorandum of Law on the subject to which the People failed to respond.  The Court, in a written Decision, stated the People had not met their burden of going forward to show the statements were voluntary beyond a reasonable doubt, which include proper waiver of the right to remain silent and right to counsel, and at a minimum, the content of the alleged statements and the circumstances under which they were made.  The Court stated that because the People failed in this minimal burden, all post-Miranda statements were suppressed.

What this case shows is that defense attorneys should not be discouraged by a seemingly “hopeless” case, or prosecutorial arrogance. Sometimes, prosecutorial arrogance is not backed up by performance. 

*NEW* MR. CORLETTA OBTAINS RARE NO JAIL SENTENCE IN CHILD PORNOGRAPHY CASE

Child pornography cases in Federal Court are amongst the toughest criminal cases to defend. The government utilizes sentencing “enhancements” contained in the United States Sentencing Guidelines, to increase  Defendant’s sentence to draconian levels; often resulting in ling prison sentences for people who have no prior criminal record and who have no history of any deviant behavior or sex offenses of any kind.

These “enhancements” fail to differentiate between offenders, and are primarily based upon generic factors such as use of a computer, number of images, and what the images depict. While child pornography in and of itself is horrible, studies show that most of it is produced overseas by individuals who are beyond the reach of authorities. Prosecution is of so-called “end users,” conjuring up memories of the draconian sentences handed out to minor drug offenders under the former “Rockefeller Drug Laws,” without ever reaching the suppliers of the substances.

After several United States Supreme Court decisions, beginning in 2004, the Federal Sentencing Guidelines, once binding upon Federal Judges except in the most extraordinary of circumstances, have been held to be advisory only, not mandatory. This has freed Federal Judges to consider what sentencing Judges have always done, the history, character, and condition of the Defendant.

Child pornography has caused great consternation amongst many Judges, many of them struggling with whether to impose these long sentences on a person with no prior criminal record. Some sentences can be longer than homicide sentences. Judges in places like Nebraska and Iowa, for example, have rejected the use of the Federal Sentencing Guidelines in child pornography cases. Many are troubled by the reduction of their discretion, under the Guidelines, to that of a calculator or bookkeeper. The result has been a difficult balancing act; ie. the inherent terrible nature of child pornography versus the Court’s obligation to consider the totality of Defendant’s circumstances after the aforementioned United States Supreme Court Decisions rendering the Federal Sentencing Guidelines advisory as opposed to mandatory. This has resulted in sentencing disparities throughout the country, as Judges struggle with this issue.

In United States v. Anonymous (11/20/09), the United States District Court for the Western District of New York (Larimer, J.), was  confronted with such a situation. Defendant had pled guilty to one count of Possession of Child Pornography.  Possession of child pornography is the least serious of the child pornography offenses. The number of images was relatively small. Defendant had  no prior criminal record, was approaching sixty (60) years of age with a great deal of family support, an exemplary work record over a 40 year period, and a solid history in the community. Defendant had a great deal of community and family support. Further, a psychological evaluation revealed no abnormality.

Mr. Corletta, researching the law, not just in the District where the offense occurred, but across the country, formulated a sentencing argument that requested no jail. The projected sentence was 3-4 years. There had been a trend in other parts of the country in generic Possession cases not to impose jail; but to impose “time served” (usually the day Defendant was arrested and in custody for a brief period prior to arraignment) plus supervised release, a form of parole. However, these cases were primarily were centered in the Midwest.

Mr. Corletta also cited the lack of underlying empirical justification for the Federal Sentencing Guidelines “enhancements” in his argument.

United States District Court Judge David G. Larimer, in a well-reasoned  and thoughtful sentencing decision that was indeed the essence of “judging,” did not impose jail on Mr. Corletta’s client and instead imposed a ten (10) year period of supervised release, citing many of the factors Mr. Corletta argued in his Sentencing Memorandum and much of the legal precedent cited by Mr. Corletta.

A non-jail sentence in a child pornography case is exceedingly rare. As a result, Mr. Corletta’s client, who admittedly exercised very poor judgment in viewing child pornography, was literally given a second lease on life; by being allowed to continue to work, live, be with, and support family. Indeed, as Judge Larimer said, Mr. Corletta’s client should continue to live his life as in the past, with the exception of the lapse of judgment, because other than this blemish, it was a life well-lived.

Given the severe consequences of child pornography convictions, and the age of Mr. Corletta’s client, this was clearly a situation where the so-called “balance sheet”; ie. Defendant’s prior accomplishments through a well-lived life, outweighed the serious lapse of judgment in committing a child pornography offense. It was a case which took a great deal of research, nationwide, as well as advocacy, to obtain the proper result, against an adversary determined to send every single Defendant charged with tis offense to jail, regardless of the circumstances. It is a stern test of a lawyer’s duty to advocate and zealously represent the client within the bounds of the law.

*NEW* MR. CORLETTA EARNS TRIAL ORDER OF DISMISSAL USING CONSTITUTIONAL ARGUMENT

The Constitution and caselaw apply equally in little cases as they do in big cases.  Mr. Corletta demonstrated this in People v. B. T. (Roch. City Ct.; 10/30/09). 

In this case, Mr. Corletta’s client had previously been convicted of harassment and had an Order of Protection against her in favor of her neighbor.  After the Order of Protection expired, Mr. Corletta’s client was allegedly involved in another verbal altercation with the neighbor. She again had Mr. Corletta’s client arrested, and requested an Order of Protection.

There had been an ongoing feud between the two for several years.  The feud was petty and consisted of primarily verbal epithets. It was “decided” by who called the police first. The Judge wisely suggested Community Dispute Resolution, but Complainant flatly refused.

The Assistant District Attorney thought she had a “slam-dunk”. Mr. Corletta’s client had allegedly threatened the neighbor and called her a “bitch”.  It was each woman’s word against the other.

Listening carefully to the testimony, Mr. Corletta limited the Complainant’s testimony by requiring her to stick to the allegations of the written Accusatory Instrument, which she signed.   Her testimony boiled down to Mr. Corletta’s client calling her a “bitch” from approximately thirty (30) feet away.  Mr. Corletta further developed this on cross examination, and also attacked the woman’s credibility.

After the District Attorney rested, Mr. Corletta moved for a Trial Order of Dismissal, citing a 1990 Court of Appeals case; People v. Deitze, which held that if there is no immediacy to the threat and the threat only involved coarse language shouted at another person on the street, this did not constitute Harassment because the speech was Constitutionally protected.  The Court agreed with Mr. Corletta and dismissed the charge without Mr. Corletta’s client even having to testify.

The case is a good example of using knowledge of the law to extricate the client from a seemingly hopeless situation.  Mr. Corletta’s client escaped imposition of another Order of Protection, and perhaps the neighbor will be deterred from using the court system again to air petty disputes involving name calling that do not belong there and are a waste of time and judicial resources.