New York Injury Attorney Blog

Supreme Court of Ohio: City of Barberton v. Jenny

Maybe he wasn’t traveling faster than a speeding bullet, but defendant Mark Jenny was driving fast enough to catch the eye of Officer Santimarino. The question the court had to resolve: Was catching a speeder with your eyes enough to convict?

Officer Santimarino was with the Copley Police Department for 13 years. He was certified by the Ohio Peace Officer Training Academy, where he was trained to visually estimate vehicle speeds. In fact, to become certified, he had to show that he could estimate a vehicle’s speed “to within three to four miles per hour of the actual speed.”

PO Santimarino eyeballed Jenny at 70 mph in a 60.

He was also operating a radar gun at the time. He clocked Jenny at 82.

So much for estimating “within three to four miles per hour.”

He issued Jenny a citation for doing 79.

So much for modern math.

(In fairness to the cop, he testified he was doing Jenny a favor by reducing the speed on the citation so he wouldn’t have to make a personal appearance in court.)

At trial, Officer Santimarino could not produce a copy of his radar training certificate. That meant the radar results were precluded and that the only evidence in support of the speeding ticket was the visual observation of Jenny’s speed.

Jenny moved to dismiss arguing that the city failed to meet its burden of proof—or more accurately, that it had no proof of speeding at all. The lower court dismissed Jenny’s motion and found him guilty based only on the cop’s estimate of speed (which the court reduced to 70 mph on the citation since the speeding was now "clocked" at 70 mph by the only admissible evidence). That the court was aware of the radar result gave it confidence to convict, but it had no influence on its decision (wink, wink!). Punishment: a $50 fine plus costs.

Jenny appealed.

The court of appeals held that the state could not use the radar as proof of speed because there was no certification produced but that hearing about the radar reading was harmless error. There was still “sufficient” proof if a trained law man knew Jenny was speeding by seeing him do so. Conviction upheld.

Jenny appealed again.

Ohio's highest court resolved conflicting state court decisions without batting an eye:

We hold that a police officer’s unaided visual estimation of a vehicle’s speed, by itself, is sufficient to support a conviction for violation of R.C. 4511.21 (D) without independent verification of the vehicles speed if the officer is trained, is certified by the Ohio Peace Officer Training Academy or a similar organization…and is experienced in visually estimating vehicle speed.

For Jenny, not the blind justice he was hoping for.

This gives new meaning to the phrase “I’ll see you in court.”

Keep an eye on this trend. It may put a lid on your ability to ever meaningfully challenge a speeding ticket.

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Posted In: Brave New World , Crime and Punishment , Evidence , Other State Courts

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New York State Appellate Division, 3rd Department: Detraglia v. Grant

Cell phones continue to make law. Last month we looked to Ohio where the court concluded it is a crime to destroy the cell phone of someone calling authorities for assistance in an emergency where life or property are at risk. So how does New York view cell phone records after there’s been property damage and injury as a result of an auto accident.

Robert Grant was driving a company car owned by Hawkeye, his employer. His vehicle collided with defendant Detraglia’s car. Stephanie Detraglia, an infant passenger, was injured and brought this action against both drivers. Demand was made that defendants Grant and Hawkeye “produce billing records for all three of Grant’s cellular telephones and the Verizon wireless air card for his company-issued laptop computer for the date of the accident between 12:00 PM and 4:00 PM” (the accident happened at 2:57 PM). Defendants refused to comply. A motion to compel discovery followed.

Although Grant testified at deposition that he wasn’t using his cell phone or lap top at the time of the accident and that the lap top was secure in a bag, the tow truck driver at the scene submitted an affidavit stating that “he saw the laptop on the vehicle’s computer desk, with the screen flipped up and turned on” indicating recent use. That raised enough of an issue for the lower court to order defendants to turn over the records. Grant and Hawkeye appealed.

The Appellate Division agreed with the lower court, finding that “conflicting evidence raised questions as to whether Grant used any technological devices while driving, rendering the records relevant to the question of his negligence.” The court narrowed the window of discovery of such records to 2:30 PM to 3:30 PM and directed that the court do an in camera review first to protect privacy interests. If it turns out Grant was on the phone or on the computer at the time of the accident, he might have to hang up his defense.

Given how easy it is while driving to use a cell phone to text, get or send emails, surf the web, watch videos, and even make phone calls, such technological distractions are as likely to cause an accident as glancing at a map on the passenger seat or speeding through an intersection. Obtaining the details of a driver’s phone use seems fair game when trying to figure out what caused an accident. In fact, given the ubiquitous use of cell phones and the tendency of people to leave out important facts while being questioned under oath, it would seem that discovery of such records should be a matter of routine, denials of use notwithstanding. One suspects phone record discovery in accidents is well on the way to becoming the law of the land.

The Appellate Division's use of in camera inspection to limit intrusion into the individual's phone or lap top stored data and contacts is entirely in keeping with the value we place on our right to privacy. In Ohio v. Smith, an unrelated case decided the same week, that state’s high court ruled that there is a “high expectation of privacy in a cell phone’s content” particularly because they are “capable of storing tremendous amounts of private data.” Under the circumstances, “an officer may not conduct a search of a cell phone’s contents incident to a lawful arrest without first obtaining a warrant.” In Smith’s case, looking at who he called (supposed drug dealers he was negotiating with) at the time of the crime without first obtaining a warrant, and introducing such evidence at the time of trial, violated his Fourth Amendment right to be free from unlawful search and seizure. Absent exigent circumstances which require an immediate search of phone records for the safety of law-enforcement officers, a warrant is required.

Used to be you were entitled to one phone call when charged with a crime. Nowadays, a valid warrant to search your one cell phone could be your downfall.

And in a civil action, if the evidence of phone use at the time of the accident is in there, it could turn out to be the ultimate collect call, at least for the plaintiff seeking money damages.

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Posted In: Auto Accidents , Brave New World , Crime and Punishment , Evidence , New York State Courts , Other State Courts

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Niagara County Court, New York: People v. Ryan S. Smith

Tasers electrified the nation last year with the famous, “Don’t tase me, bro” incident out of the University of Florida. The device is back in another story that is electrifying court watchers.

Defendant Ryan Smith was a suspect in a kidnapping and an armed robbery. DNA evidence had been obtained from a can of soda the kidnapper had helped himself to during the course of the crime. Through good detective work and a series of procedural moves, the DA’s office had a court order to take a buccal swab for DNA from the defendant’s mouth, obtained and lost the sample, then applied for and received a second order to do it again.

Defendant declined to submit to the swab when cops approached him on the street, so they took him to police headquarters. Detectives tried to convince defendant to cooperate but Smith “firmly and obstinately objected to submitting to the authority of the Order. He said he had already given a sample and that they would have to ‘tase’ him to get another swab.”

Wrong thing to say.

The detective on the case called and conferred with the ADA in charge, who approved the use of necessary “minimum force” to obtain the sample. Considering their options, the cops ruled out holding the defendant down and forcing his mouth open, believing it potentially injurious to defendant and risky for them. So they set their taser on stun (“drive stun,” the least powerful setting) and asked Smith to reconsider. They told him it would be unpleasant, but he refused to allow them to take a swab. They told him they didn’t want to hurt him. He still refused. And after a final warning and refusal, they tasered as needed (four seconds), recorded the proceeding and got their swab. They then arrested Smith for Obstructing Governmental Administration (as if he didn’t have enough problems).

Citing cases which authorize the use of reasonable force in other circumstances, the court ruled that no Constitutional prohibitions were violated by use of the taser to obtain the swab. This was reasonable force (even if during their pre-taser conference with the DA’s office detectives neglected to mention that they were considering using the device). Now had the taser been used to cause pain to obtain the desired result, this would have drifted into unlawful use of torture. But as the court stated, “The defendant was forewarned, steps were taken to limit his risk of injury, and the device was used one time for a brief burst. There was no lasting damage or injury.”

For the court, defendant amped up the problem and was shocked by the solution.

As the court noted,

This case is perhaps best described as the “perfect storm” where the crimes being investigated were egregious, the evidence sought highly probative, the intrusion required was minimal, and with a subject who steadfastly refused to comply with a lawful court Order. Further, the officers, armed with the Order issued, repeatedly sought the subject’s compliance, explored alternative methods of obtaining the sample, repeatedly warned the defendant of the consequences of his refusal and took steps to minimize the pain inflicted and the potential for injury. There was not malice or desire to injure the defendant.

Accordingly, defendant’s motion to suppress was denied and the People could use the evidence obtained from the swab.

A stunning decision which will no doubt cause sparks to fly all over the political spectrum.

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Posted In: Brave New World , Crime and Punishment , Evidence , New York State Courts , Strange but True

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Wisconsin Court of Appeals, District IV: State of Wisconsin v. Michael A. Sveum

Technology races ahead as most of us long ago gave up ever trying to program our VCRs. Now there are blackberries, blogs and links, text messages and twitter, GPS Navigation and GPS tracking. The latter is the subject of the case at bar.

Can the police secretly attach a GPS tracking device to a suspect's car in his own driveway without violating his Fourth Amendment right to be free from unreasonable searches and seizures? The Court concludes the cops can and that no Fourth Amendment search or seizure even occurs.

Sveum was a repeat stalker. He did time for stalking Jamie Johnson in 1996 and began stalking her anew (with his sister’s help) even before his release from prison in 2002 (this guy may need a body cavity GPS installed). Police sought and received a warrant to covertly attach a GPS tracker to defendant’s car. Based on data collected, a warrant was obtained to search his home, and Sveum was charged and convicted of aggravated (second offense) stalking. He was sentenced to 7 and a half years. He appealed and challenged the use of the GPS tracking device to gather any evidence against him.

The GPS device in question is battery powered and was affixed to defendant’s car with a magnet and tape while it sat in his driveway. Defendant challenged the cops’ entry onto his driveway to install the device. The vehicle was then tracked for about five weeks. Sometimes the car was garaged at home, sometimes at work. The GPS unit was then physically retrieved to obtain a detailed satellite tracking history of its and its host vehicle’s whereabouts. The result was a complete itinerary of the defendant’s travels when he used his car and even where he parked it. He challenged the state's right to know where he parked in private.

What irony: The stalker stalked by satellite.

According to the court, “no Fourth Amendment violation occurred here simply because the police used a GPS device to obtain information about Sveum’s car that was visible to the general public.” Similarly, that the device was attached to the vehicle while in defendant’s driveway was not enough to render its use illegal; the driveway was not “protected ‘curtilage’” [enclosed land on the property]. And that garage locations were electronically noted hardly amounted to an improper search or violated any real expectation of privacy since old fashioned police observation could have netted the same results

The information gathered by the device gave probable cause for a search warrant of the home, and in the end, a jury found defendant guilty. So too did the Court of Appeals.

The Court did sound the warning about advances in technology, however, and acknowledge that it was

troubled the conclusion that no Fourth Amendment search or seizure occurs when police use a GPS or similar device as they have here. So far as we can tell, existing law does not limit the government’s use of tracking devices to investigations of legitimate criminal suspects. If there is no Fourth Amendment search or seizure, police are seemingly free to secretly track anyone’s public movements with a GPS device.

Good for the court. It ruled based on existing law but recommended that the legislature tackle the issue before technology runs amok by well-intentioned but overzealous law enforcement and other inquiring minds.

The rest of the details of this case are like the instructions to your VCR. Important but not relevant.

The bottom line is that there might be something on the bottom of your car and authorities may know exactly where you are at this very moment. So too may your wife or husband, your boss or your mother.

If you're worried, you would be well advised to look both under the hood and under the chassis the next time you pull out of your driveway or you could find your itinerary on YouTube, Google Earth or on a monitor at police headquarters or the Internal Revenue Service.

Welcome to the 21st Century.

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Posted In: Brave New World , Crime and Punishment , Evidence , Other State Courts

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Supreme Court, New York County: Sugarman v. Equinox Holdings, Inc.

For all the Gym-rats out there who prefer the health club to the basement or your building's own work-out room, rider beware.

Plaintiff Stuart Sugarman is a Spin Class enthusiast. His indoor cycling regimen brought him regularly to the Equinox Gym in the Wall Street area downtown. For the uninitiated, and if we take Mr. Sugarman at his word, spinners customarily like to cheer and shout during the class to pump up their psyche along with their sprocket. It was during one of these classes that Sugarman’s cheering got under the skin of fellow spinner Christopher Carter. Apparently, Mr. Carter was either having a bad day or he thought it bad form by the whooping Mr. Sugarman to disturb his peddling peace.

Carter first took it directly to Sugarman by yelling and cursing at him. When that diplomatic approach failed to dampen Sugarman’s enthusiasm, Carter dismounted and complained to the instructor about the boisterous biker. The instructor declined to intervene. This was followed by more yelling and cursing by Carter (who must have thought the first round of peace talks was too insubstantial to be effective), which was followed by even more enthusiastic cheering and shouting by Sugarman. Having apparently concluded that their conflict was at a stalemate, Carter “got off his bike again and ‘picked up the front of plaintiff’s cycle with plaintiff upon the unit and pushed him into the wall of the classroom leaving a hole in the sheetrock,’” injuring Sugarman’s back and neck and leaving him prone in the no-spin zone.

Sugarman sued and filed criminal charges against Carter. In the criminal case, Carter coasted and beat the rap. His civil case for damages is still pending. The same can no longer be said about the case of negligence against the Equinox Health Club.

Equinox moved for summary judgment to dismiss Sugarman’s case, claiming, among other things, that Equinox could not be held responsible for Carter’s violent outburst. Sugarman opposed. According to Sugarman the club failed to intercede at the argument stage and failed to remove Carter when he showed aggressive tendencies just before his “spin rage” occurred. It also failed to call the cops or EMS and was otherwise negligent in the way it ran the club, as demonstrated by Carter’s cycle sneak attack. But there in lies the rub.

In an unusually lengthy and involved decision, the court dismissed the case against Equinox. In order to hold the club responsible for Carter’s assault, it had to have notice that he had criminal tendencies, a pattern of criminal behavior or what the court considered a clue that an attack was imminent. The problem with making such a finding, however, was that plaintiff himself never feared for his safety or was ever intimidated by Carter, as demonstrated by Sugarman’s remonstrative good cheer in response to Carter’s vituperations. As the court observed, “Plaintiff’s own testimony fails to establish that even plaintiff foresaw the alleged assault by Mr. Carter.” So how could the club be responsible?

The court went on to find that “verbal tirades” don’t put the club on notice of a potential physical assault, that “heated words” without more don’t put the club on notice and that the exchange of jeers for cheers never rose to the level of dispute or argument, which might have created liability for the gym. According to the court, nothing that happened between Sugarman and Carter gave warning of the impending attack (which is a stretch in New York, since merely looking at someone the wrong way can get you killed). Under the circumstances, Equinox was not liable.

As for not calling the police or EMS at Sugarman’s request, the court observed the general rule that, “from time immemorial our courts have held that there is no legal responsibility to do so.” Well that’s a relief.

And as for the claim that Equinox negligently hired an instructor who failed to intervene before words turned to action, the same lack of notice that these exchanges were about to erupt into violence applies to the instructor, which means Equinox is off the hook on this theory as well.

No matter how you spin this case, Sugarman is not left with much to shout about. We’ll see if Carter steers clear of liability when he rides into court, or whether the ebullient Mr. Surgarman will finally get to salute Carter with a Bronx Cheer of victory.

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Posted In: Damages , Evidence , Injuries , New York State Courts , Speech , Strange but True

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Supreme Court of Delaware: Jianniney v. Delaware

Mapquest is great for directions. For restaurants along the way. And for finding your way to historic attractions like state prisons. But is Mapquest reliable enough to be considered evidence in a criminal case?

Jason Baker (the pseudonym the court gave him) was 13. He was home from school working outside his house. At about 11:30 a.m. a man later identified as Christopher Jianniney approached him. Young Baker ignored him and went indoors. Later that day, at bout 6:00 p.m. when Jason was taking out the trash, he was again approached by Jianniney who this time offered him $40 to show him his penis.

Baker ran into the house and got his mom. Jianniney beat a hasty retreat and mom and son drove the neighborhood looking for him without success. They called the cops and Jianniney was later arrested after neighbors ID’ed his car and placed him on the street at 6:00 p.m. on the date in question. Jianniney pleaded innocent and demanded his day in court.

At trial, Jianniney claimed he was at work at the time of the crime and couldn’t possibly be the perpetrator. His boss, Jerry Wilson, was called to testify. Jianniney, he said, was one of his fuel delivery drivers. He had punched in for work the morning of the crime. Based on the location of the truck yard, what his time card indicated and the deliveries he made, Wilson claimed Jianniney could not have been at Baker’s house at 11:30 a.m. By Wilson's own calculations, the drive would have taken way too long.

Prosecutors then cross examined Wilson about Mapquest. Wilson admitted that he was familiar with it and used it to determine how long it takes to get from one place to another. Yet Mapquest’s ETAs from the fuel yard to the scene of the crime were half what Wilson personally estimated for Jianniney to get to Baker’s house, which, the state argued, meant he could have been there on the morning in question. At the prosecutor’s request, the trial court admitted the Mapquest time estimates as an exception to the hearsay rule.

Jianniney was convicted.

Defendant then appealed claiming Mapquest’s time estimates between locations were not reliable enough to fall within the hearsay exception.

The Delaware Supreme Court agreed with the defendant.

It found that the state failed to show that Mapquest’s driving time estimates “are relied upon by the public or professional drivers.” In fact, the Mapquest website disclaims all warranties including that the information found there is free from defects. It also warns users that “weather, construction projects, traffic conditions, or other events may cause road conditions to differ from the listed results.” Given its own disclaimer and the variables that can make its time estimates inaccurate, Mapquest cannot be admitted as an exception to the hearsay rule. Apparently, the state took a wrong turn using it to convict Jianniney.

Unfortunately for the defendant, it was just a detour.

Mapquest had been used only to show that defendant could have made it to Baker’s house in the morning when his boss said he couldn’t. Mapquest wasn’t used to challenge defendant’s presence at Baker’s home when the child was propositioned at 6:00 p.m. and Wilson did not offer testimony in defense of Jianniney’s whereabouts at that time. Moreover, even if Mapquest should not have been admitted into evidence, two neighbors saw the defendant that day and placed him at the scene.

So Mapquest travel times were hearsay, but their use in court was harmless error. Well, maybe not for Jianniney, who's life may have taken a turn for the worse. As a potential guest of the state, he now runs the risk that his new friends will ask him the same thing that got him arrested in the first place.

One wonders if he appreciates the irony.

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Posted In: Crime and Punishment , Evidence , Hearsay , Minors , Other State Courts

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