Wednesday, May 13, 2009

New York Court Extends State-Law Criminal Procedural Rights

As the New York Times reports, the New York Court of Appeals has held (in a 4-3 ruling) that police violate New York's constitution when they warrantlessly utilize GPS tracking devices to track motor vehicles. According to the Times:
The police had used the device to monitor the movements of the suspect, Scott C. Weaver, for more than two months. But the court ordered the evidence gathered from the device suppressed and ordered a new trial for Mr. Weaver.
This holding is interesting in light of United States v. Knotts, 460 U.S. 276 (1983). In that case, the Supreme Court held that the Fourth Amendment (under the United States Constitution) was not violated by the use of a "beeper" that revealed where contraband, driven around in public, was tracked. As the Knotts Court explained it, the use of the beeper did not constitute a search because "[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another." Id. at 281.

At first blush, the New York decision seems to afford broader criminal procedural rights than the federal Fourth Amendment, under Knotts, would require. However, in addition to some other factual differences, GPS devices are more intrusive than beepers in what they reveal. Thus, the New York high court noted that the issue was "unclear" based on federal law and "premise[d its] ruling on [New York's] State Constitution alone."

It will be interesting to see what happens if (or when) the Supreme Court takes up a similar issue. Of course, that question will have to wait for another day as the New York court's state law basis is independent of federal law, and adequate to sustain the judgment.


  1. Sadly,what the federal courts do has little effect on the courts in this state. New York goes its own way at its peril and is still festering in a stinking pit of corruption that needs addressing urgently.
    I am an advocate currently fighting to uphold the principles of due process in a most disturbing case concerning the rape, battery and near killing of woman left with a broken neck and permanently disabled.
    Barbara Bracci, a hard-working New York State corrections officer claimed she was brutally attacked by her work supervisor, Captain William E. Peek. Bracci had made tape recordings she alleged were of her remorseful attacker confessing to his crimes. The NY State Dept. of Corrections (DOC) took the tapes from her.
    The case went to the Division of Human Rights (SDHR). Bracci wanted her original tapes played in open court. DOC refused to give the tapes back to her and gave them instead, to the presiding administrative law judge (ALJ) who refused to let the court hear them.
    The ALJ then weighed the tapes unlawfully in secret (ex parte, in camera) and ruled they were ‘unreliable.’ So the case was dismissed. Bracci protested that her due process rights were denied and she was granted an Article 78 special proceeding.
    The case went before the Appellate Division, Third Department. Inexplicably, the tapes somehow became 'lost' and SDHR refused to give a verified answer in response to Bracci’s serious charges of corruption. So Bracci having proof her tapes were now destroyed and the opposing party declining to defend their actions, duly filed for summary judgment.
    However, the Appellate justices bizarrely dismissed the claim on May 14, 2009 upholding the lower court’s judgment. But nowhere in the Appellate decision does the term, ‘Article 78’ even appear.
    Shockingly, the higher court had not only condoned the weighing of evidence in secret and then its destruction, it had unlawfully removed Bracci's status as an Article 78 litigant.
    Even a layperson looking at the court’s website under ‘Bracci-v-State Division of Human Rights’ (Case no: 506150) can see that this raped, abused and permanently scarred woman was cheated of her most basic rights to due process rights.
    Now we shall see if the Court of Appeals will be as fair and just on Bracci as they were in the above case. Courts must be compelled to respect every citizen's constitutional rights to a fair hearing.
    You see, I’m British and I grew up with a worldview of American as an honorable civilization. Like most people in the English-speaking world I was greatly influenced by Hollywood movies. I confess to have learned that reality of what American Justice is quite different from what I saw in films. Forget the Sixth and Fourteenth Amendment of the United States, that Bill of Rights nonsense and the Constitution. The practice of law is very different. American Justice is a fiction told in Hollywood. In real life corruption is the methodology of the courtrooms.

  2. Whoa there John, that's a bold claim to make with little to no support. Can you expand ont hat?

  3. Thank you for your reply. Yes, I can expand in greater detail on this truly shocking case. We may reasonably infer corruption by those Appellate justice in conspiracy with the lower court, State Division of Human Rights (SDHR), because of their inexplicable actions and obstinate refusal to lawfully address Bracci’s claims as an Article 78 special proceeding, without any explanation.

    Barbara Bracci was granted her right to an Article 78 by Supreme Court order as issued by Hon. K O’Connor on 11.19.08. The necessary paperwork is held on file at the Albany Supreme Court.

    Prior to the hearing I had filed numerous motions for relief when the state defendant’s withheld the record and did not comply with the rules of an Article 78 to provide a verified answer with averments to deny or admit the charges. In response the Division merely issued a letter to the court on 01.27.09 which stated,” The Division will not be filing a brief and is submitting on the record.” By “submitting on the record” and giving no averments, the respondent was in default for failure to comply with CPLR 3018[a] and CPLR 7804(d) and (e). The laws of New York are very specific in this regard.

    CPLR §7804. Procedure(d) Pleadings, states: “Where there is an adverse party there shall be a verified answer, which must state pertinent and material facts showing the grounds of the respondent's action complained of.” While CPLR §7804(e) requires that; ” The body or officer shall file with the answer a certified transcript of the record of the proceedings.”

    With no verified answer, along with the Division refusing to submit the record in evidence or make stipulations to certification of the record, plus those omissions, SDHR were clearly in default. This is not a bold and conclusory statement; it is a fact of law.

    With SDHR giving neither an answer nor certified record Bracci was entitled to judgment. Thereby, the appellate justices were mandated to rule there were no facts in controversy and thus no issues for them to resolve; the court had no subject matter jurisdiction.

    Bracci’s hearing duly took place on 03.26.09 at the Appellate Division Third Dept. Albany and the justices ruled on this case as if it were a regular appeal, which this plainly was not!

    Nowhere in their corrupt decision of May 14, 2009 does the term ‘Article 78’ even appear. But anyone with a law degree can spot that something fishy is afoot. Look closer and read the judgment. The underlying matter was an employment law discrimination claim by Bracci against her former employers, the State Dept of Corrections (DOC). Yet in the Appellate case the respondent/defendant is no longer DOC but the Division of Human Rights. Therefore, even the heading tells us this case is not a regular appeal. It is clearly a challenge against the lower court (SDHR) and that may only be done by way of special proceeding.
    (see the heading;

    Upon the issuance of this woeful decision, I filed several motions pointing out to the justices their grave errors. I merely sought the right of appeal on a question of law or the rendering of a void judgment. But every single motion I have filed despite being unopposed has been denied.

    Thus Bracci has been deliberately and unlawfully denied due process without cause and her evidence destroyed and her special proceeding criminally removed. If that isn’t absolute proof of a judicial corruption then please correct me on where you believe I am going wrong.

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