Criminal law trials and appeals

People v. Robinson, 114 AD2d 120 (3d Dept 1986), reversed 68 NY2d 541 (1986) (Evidence of prior uncharged crimes)

On December 12, 1978, a teller at the Home Savings Bank on Central Avenue in the City of Albany was handed a manila envelope on which there was a smaller white envelope covered by a yellow withdrawal slip. The white envelope had written on it: “This is a holdup. Your life is in danger. Put 100s, 50s, 20s in bag. Keep hands in sights at all times”. The teller asked, “What do you want me to do with this?” and passed the envelope to the next teller. The man, described as a male with a mustache in his twenties, over 5 ½ feet tall, wearing a tan coat, a dark knit cap and a dark scarf over his chin, hastily left the bank after the note was passed. The tellers could not decide if it was a real holdup or a prank and waited to call the police. The teller and police could not identify a perpetrator from photographs, but latent fingerprints compared with the known prints of the defendant John Robinson were sufficient to obtain a search warrant of his dorm room at the State University of New York at Albany, where he was a student while on parole from state prison. The search revealed a box of white envelopes, a maroon scarf, a navy watch cap, black gloves, a blue ski jacket and a pair of work boots. Robinson was arrested for attempted bank robbery and prosecuted as a persistent felony defender.

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               Mr. Oliver was retained by Robinson’s family to represent him. The trial judge allowed the introduction of evidence from a different bank robbery on a different day. On December 5, 1978 the Central Savings bank in the City of Albany had been robbed by a perpetrator with a different but similar holdup note. The teller at the Central Savings bank also could not identify the perpetrator. The handwriting on both the notes was the same and the briefcase and clothing found in the search was identified by the teller at Central Savings bank. Robinson was not changed with the December 5th robbery. Mr. Oliver objected to the testimony concerning the Central Savings bank robbery on the grounds that admission of the evidence was erroneous under People v. Molineaux, 168 NY 264 (1901) because there was no proof Robinson had been the perpetrator of the Central Savings bank robbery, and therefore admission of the evidence to prove he was the perpetrator of the Home Savings bank robbery was erroneous and prejudicial and denied him a fair trial. Based on that evidence, after a two week trial Robinson was convicted of one count of attempted robbery in the third degree and sentenced to 20 years to life in prison as a persistent felony offender.

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             Mr. Oliver represented Mr. Robinson at his two week trial and on appeal to the Appellate Division, Third Department. The Appellate Division stated: “Conflicting testimony was resolved by the jury in favor of the People after lengthy consideration of all issues raised by competent and indefatigable counsel”, but affirmed the defendant’s conviction. In the New York Court of Appeals Mr. Robinson was represented by another attorney.

           

             The Court of Appeals sustained Mr. Oliver’s objections to the admissibility of the evidence about the earlier December 5 Central Savings bank robbery at the trial of the attempted Home Savings bank robbery and reversed the conviction. The Court of Appeals said that under People v. Molineux evidence of the prior uncharged crime at Central Savings bank might have been admissible in the trial of the Home Savings bank attempted robbery because both incidents showed a similar unique modus operandi by the perpetrator of both bank robberies, but held that in this case the uncharged crime evidence was prejudicial because the identity of the Central Savings bank robber was not established. The Court commented that the similarity of crimes “proves nothing”, unless there is proof that the prior uncharged crime was committed by the same perpetrator. In this case there was insufficient proof of the identity of the perpetrator of either bank robbery. The Court of Appeals established the principle that in order to be admissible there would need to be “convincing proof of both a unique modus operandi and of defendant’s identify as the perpetrator of the crime”.  On Robinson’s retrial the testimony about the Central Savings bank robbery was excluded from evidence and Robinson was acquitted.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Kyne et al v. Wolfowitz, et al., Unreported (Freedom to criticize police)

            In August 2004 the Republican National Convention was held in New York City and was met with large scale protests. Over 1,800 protestors were arrested and held at Guantanamo on the Hudson at the Chelsea Pier. Dennis Kyne, a Desert Storm veteran, spoke out across the country about the dangers of the United States use of depleted uranium in tanks and military ammunition, which he and other veterans had been exposed to in Iraq. At a protest outside the New York City Public Library, a New York Police Department (NYPD) captain gave dispersal orders to the gathered crowd which led to the arrest of several protestors. As Mr. Kyne walked down the stairs of the library, he saw police manhandling a teenage girl and shouted at the police several times “You fucking Nazis” and was promptly arrested. Kyne was compliant during the entire arrest as evidenced in a video of the incident.  NYPD Deputy Commissioner Hammerman recognized Kyne from a protest the night before at a restaurant where he yelled, “They lied to you, they lied to me, they’re taking away our civil rights” near police officers as the Governor of New York State and Republican National Committee ate inside. Hammerman recognized Kyne and wanted to keep him off the streets, so he ordered a police officer to trump up crimes against Kyne. Kyne was charged with riot in the second degree and resisting arrest. The arresting officers charged Kyne with charges that were among the most serious lodged in connection with the 2004 Republican National Convention.

            People v. Kyne was the first case of a protestor against the Republican National Convention to go to trial in New York County Criminal Court at 100 Centre Street. At trial, the arresting officers repeatedly denied that Kyne had shouted “You fucking Nazis” prior to his arrest. Several officers testified that Kyne was not compliant with their orders and that he was “screaming, yelling and moving around” throughout the arrest process. When asked specifically how he resisted, the arresting officer testified that his “mouth, heart and eyes” were moving, he lunged in different directions, that he “went to the ground himself”, and that the officers had to pick him up and physically carry him across the street.

            During a court recess, Mr. Oliver disclosed a videotape of the protest shot by a documentary filmmaker to the District attorney’s office that showed Kyne walking on the steps of the City Public library shouting “You fucking Nazis” several times. The citizen video showed that, contrary to the arresting officer’s testimony, Kyne had not resisted and had walked under his own power down the library steps and across the street to the police paddy wagon. The officer who testified he had arrested Kyne was not shown in the video, and was not even present when Kyne was arrested, and had committed perjury. 

             Based on the video, the Manhattan District Attorney’s office moved to dismiss the charges on the grounds the People could not prove guilt beyond a reasonable doubt. Mr. Kyne’s charges were dismissed that day. Afterwards, hundreds of other protesters arrested under similar circumstances had their charges dismissed because videos of police presented as evidence had been edited and removed images of those charged acting peacefully. See Jim Dwyer, “Videos Challenge Accounts of Convention Unrest”, The New York Times, 4/12/05, Section A, page 1. 

In response, members of the House Judiciary Committee wrote the Attorney General of the United States and requested “…immediate federal scrutiny by the Justice Department …of credible and troubling reports of police misconduct and perjury… as criminal deprivation of rights under color of law and civil violations of the police pattern and practice laws.”

Mr. Oliver and Gideon O. Oliver, Esq. as lead counsel, then initiated a civil rights lawsuit against the City of New York, NYPD officials and a former CIA operative hired as a consultant by the NYPD in crowd control technique such as kettling. The complaint alleged that the defendants had conspired to commit widespread civil rights violations to suppress protests against the Republican National Convention. The case was settled in favor of Kyne and seven other protesters whose civil rights were violated. This was one of the earliest cases where a citizen video showing police misconduct was used to prove police perjury in court. Today, cell phone videos by citizens have become a powerful tool to expose police brutality.

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