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355 Comments by Publius

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Westhampton Beach Police remain mum on ongoing internal investigation of incident

When Chief Dean says he already initiated "the" investigation, did he really mean "an" investigation? Was the Chief doing his own, in house, investigation? OR, Had he already kicked it to an independent police agency?" Oct 3, 09 8:11 AM

Hurricanes knock off Miller Place

Way to go 'Canes !" Oct 4, 09 9:47 PM

Westhampton Beach Police remain mum on ongoing internal investigation of incident

"Chief Dean, who assured board members that they would receive a copy of the report as soon as it is available, said he could not discuss what prompted the internal investigation because the case is not closed yet. He said that a copy of the final report is expected soon."

The Trustees should receive the report before the Department under investigation, or, at the very, very least, at the same time as the Chief of Police so that the implications of that report can be considered in a timely and prudent manner." Oct 5, 09 7:54 AM

Seems pretty premature to make any judgment about who is right and who is wrong, until the merits of the investigation are disclosed. Did Chief Dean kick this to the SCPD on his on initiative, or at the behest of the Trustees? Too soon to tell, and we don't even know what the investigation is about. " Oct 5, 09 11:30 AM

The Chief and all of the Village Police Officers are employees of the Village and answer to the Board of Trustees.

The fact that the investigation had to be farmed out makes it clear that it is a matter over which the Trustees should retain oversight. If the Chief acts responsibly in the eyes of the Trustees, then he has nothing to worry about and the Trustees will have fulfilled their obligation to the community that elected each of them.

The Chief of Police can't have it both ways. He can't say he has Taylor Law protection because he is not managerial, and then expect to be treated as management. At the same time, it is very hard to justify his salary if he is not managerial.

The Trustees, as a board, need to know what their department is doing, or failing to do. OR, perhaps, the department is fine top to bottom and there will be a clean bill of health.

Who knows? Do you?" Oct 5, 09 5:33 PM

The Chief and all of the Village Police Officers are employees of the Village and answer to the Board of Trustees.

The fact that the investigation had to be farmed out makes it clear that it is a matter over which the Trustees should retain oversight. If the Chief acts responsibly in the eyes of the Trustees, then he has nothing to worry about and the Trustees will have fulfilled their obligation to the community that elected each of them.

The Chief of Police can't have it both ways. He can't say he has Taylor Law protection because he is not managerial, and then expect to be treated as management. At the same time, it is very hard to justify his salary if he is not managerial.

The Trustees, as a board, need to know what their department is doing, or failing to do. OR, perhaps, the department is fine top to bottom and there will be a clean bill of health.

Who knows? Do you? " Oct 5, 09 7:14 PM

Yikes for the Chief if, as you say, he has no Taylor law protection and can be terminated because, his contract expired last December. In fact, I tend to agree with you that the chief SHOULD be recognized as a managerial position who does not have Taylor law protection, but it is not that clear cut. Instead, we have a Chief of Police who claims that he has accumulated comp. time in excess of the express contractual limits, and a Mayor, a former Chief of Police, who refuses to correct the records.

If you look at the video of the meeting it is evident that the Chief was doing his own "investigation" and that his employers were not satisfied that it was being completed in a professional manner and referred it to an outside agency.

Hopefully, the SCPD investigation will yield results that are credible. It is always problematic to have police investigate police, or lawyers investigate lawyers, or doctors investigate doctors. There always seems to be so degree of sympathy between the investigator and the investigated that would not otherwise exist. But, as long as there are some Trustees who will shine the light in the darker corners, the public will pay attention reward those who seek the truth.

Chief Dean needs to make peace with the Trustees, it is evident that the old ways of doing things (or more accurately NOT doing things) will no longer be acceptable." Oct 5, 09 11:50 PM

Mr. Wheeler, you are mistaken on every point except your description of "the old ways" which continue to this day, and with 500 hours of claimed comp. time and the long term contract obtained from "good old boys" the old ways have been institutionalized by contract for the Chief of Police himself.

The Chief is just trying to keep a lid on it, but not correcting root causes, and the Trustees aren't having any of it. In my opinion, the Chief himself is a big part of the problem if he can't get a tiny Village Police force in line. It just isn't that hard for anyone with any measure of competence.

As an aside, this is not an endorsement of the one Trustee who himself was well versed in "the old ways."

Lets keep it civil Mr. Wheeler" Oct 6, 09 6:44 AM

I agree with Mr. Z, the Southampton Town police force, from my experience, does a very professional job. The contrary seems to be true in the village of WHB. As for bad apples, in a small department they can ruin the whole bunch in a hurry if they aren't plucked out. Chief Dean does not seem to have addressed that issue during his long tenure here." Oct 6, 09 5:44 PM

From the posts we have Mayor Teller, the former Chief of Police, protecting Jim Kametler, we also have the present Chief of Police politely having him retire. At the same time it appears that Mayor Teller is doing all he can to protect the present Chief of Police.

Do you really think the Westhampton Beach PD is getting the job done? Is there a lot swept under the rug that is just not pursued? Why isn't WHB PD NOT accredited with New York State Department of Criminal Justice Services? Is 9 years long enough to reform a little police department, or does the Chief need more time?

It seems like the same old, same old. Meanwhile, the two Trustees who are shaking it up a bit are the subject of attack, is that really surprising? " Oct 6, 09 10:16 PM

Curious: Our Chief of Police filed a notice of claim this past summer against the Village. That was a threat by him to sue you and me. Okay, everyone has the right to protect their legal rights, but examine the right he says was infringed.

The Board of Trustees passed a resolution directing the Village Clerk to calculate the hours of comp. time submitted and claimed by the Chief of Police. It should be evident to everyone that there was a problem. He claimed he was carrying 500 hours when his contract limited him to 200 hours.

Some might prefer that as an exercise of discretion the Board of Trustees permit the Chief to use 300 hours and simply reduce what he was carrying back to 200 hours. That would be a generous exercise of discretion, and it would no doubt help to keep good relations.

On the other side of that issue, the Chief of Police could just as easily say "Mea culpa, you know, I have a really good salary and benefits and it is reasonable for the Village Trustees to want to limit, in accordance with the contract, the accumulated liability represented by comp. time in excess of 200 hours."

The Chief could have said, "I worked hard over the years and feel I earned that compensatory time, but I recognize that to take off all of that time would leave the village without the leadership of a Chief of Police for more than 5 weeks if I were to take time off to reduce the accumulated time to be in accordance with the contract."

Neither of these things happened. Instead, the Trustees have sought to review the records of the claimed comp. time with the obvious eye towards reducing whatever amount is claimed above the 200 hours permitted by the contract.

This was the Trustee's right to exercise its discretion in this manner, and some might feel it an obligation to make sure the resident / taxpayers paid for those costs for which it originally contracted and budgeted. There was no "right" in the Chief of Police to the excessive comp. time he continues to this date to claim.

Perhaps the Chief should have sent a letter to the Clerk and request that the hours carried be reduced to 200 hours and provide a copy of that letter to the Board of Trustees. It would have been in keeping with the terms of his contract, and it would have put him in a much better light.

Instead, the Chief filed a notice of claim which is a condition to commencing a law suit. True, he later withdrew the notice, but this was only after he was served with the notice to appear at a 50-h hearing where he would be placed under oath and subjected to inquiry about his claims. The only true amends he could properly make is to openly acknowledge that his comp. time should be 200 hours and request that the village records be corrected to reflect that fact.

NOW, comes the issue of a departmental investigation. In a small department how long should such an investigation take? In the first instance it would be appropriate for a Chief of Police to keep his own department in line and do any required investigation to accomplish that goal.

How long should Trustees wait for the completion of such an investigation, particularly when you know that there are time limits to taking action on the underlying conduct. That time limit applies whether such conduct warrants serious action, or only a letter in a personnel file. The Trustees have the right and obligation to make sure the Chief proceeded with the requisite dispatch so that any result could be properly acted upon, if it required any action at all.

At the village meeting where this issue was aired, it was evident that even the apologists for the Chief conceded that it was the Trustees who requested an investigation by an outside agency. But that wasn't even the topic of discussion. Trustee Tucker only made a motion that the results of that independent investigation be reported to the Trustees immediately. It was the Chief that took issue with who asked for that independent investigation. That would seem to be inconsequential, but it was important to him. It would be odd, however, for him to request that independent investigation.

When the SCPD is needed to do an internal investigation it means the the Chief of Police is unable to do that investigation himself. Is the argument being made that the Chief requested the SCPD to do the investigation because the Chief, himself, has concluded that he is unable to do it?

I can understand that it could be particularly galling to have former Police Officer Kametler, now a Village Trustee, taking a vocal stance on this issue. This does not, however, diminish either the legal or moral authority for the Trustees to request an independent investigation, and be provided with the results of that investigation.

In the final analysis, the real issue will be whether the investigation yields any result requiring action. If no results are obtained, whether that is a failure of evidence, or a conclusive determination that there was no problem at all.

SO, when the Chief of Police gets into a scrap with the Trustees over who initiated an investigation by the Suffolk County Police Department when the request made at the meeting was for him to simply provide the results, you have to wonder what it is he is so sensitive about.

When that Chief of Police files a notice of claim required to commence a law suit against the village, and when this must be referred to outside counsel for the village; and when his legal position on that issue is, to me, plainly without merit, he has lost a great deal of credibility.

Lawsuits by the Chief of Police against his employer (us taxpayers) fights over who requested an investigation by SCPD. All of this when contract negotiations are going on, and in the midst of that we also learn that the Mayor was having "unofficial" discussions about the Chief's future contract, when he was not designated to do that.

A fine mess, and the Chief of Police is in the center of all of it." Oct 8, 09 9:21 AM

Dune Road neighbor arrested for trespassing; claims he was protecting feral cats

Come on highhat,

"But even ignoring them won't necessarily keep lawyers out."

You are smarter than that. People love to bash lawyers, it has become something of a national pastime.

Having seen a variety of your comments, I would think you have a healthy respect for the role lawyers have in our society.

Just as in every trade or profession you will find the unscrupulous, but that should not diminish the important contributions many lawyers make towards helping people live civilly together." Oct 9, 09 8:10 AM

Westhampton Beach Police remain mum on ongoing internal investigation of incident

Jean: you argue that claiming 500 hours of comp. time when the Chief's contract limits him to 200 hours is no big deal. You point to abuses in other areas of government to excuse ignoring that which is under our own nose.

To quote you: "You REALLY need to look at the blatant ABUSE of SCPD overtime, Civil Service overtime, "disability," clocked hours not really served and our village school supervisor's outrageously HIGHER than the Police Chief's salary -before you start attacking an honest guy for a reasonable expectation of compensation."

I didn't say this particular claim by the Police Chief was on the magnitude of your references, or on parity with the TARP program for that matter. I even suggested that some might take your position and let the Chief take some time off to reduce the hours he claims to carry.

BUT, the Chief does not have a legal right to that generosity. NONETHELESS, The Chief filed a notice of claim, a threat by him to sue you and me. The Chief later withdrew the notice, but only after he was served with the notice to appear at a 50-h hearing where he would be placed under oath and subjected to inquiry about his claims.

The Chief had no "reasonable expectation of compensation" for comp. time above 200 hours, and he refused to defended, under oath, the hours he has claimed. Was it really the right thing to do to threaten a law suit against the village that has been feeding and housing his family for a decade, for something you say is of such nominal value when compared to his decade long compensation?

foundthefacts: you argue that the Chief is a terrific guy. I can't dispute that you might like him, he might even be a nice fellow, or not. you argue that we should place our trust in the SCPD (I doubt that Jean above shares your enthusiasm for their work.)

I am prepared to examine the results of any investigation with a critical eye, as should you. I did not, and do not, presume that an investigation of police, by police, will necessarily yield a reliable report. This was not a slight to the police, just recognition of human nature. I made the same observations for lawyers reviewing the work of lawyers, and doctors examining the work of doctors. There is a built in bias.

I would like to issue a friendly challenge that I made once before and that is that we all post comments that are constructive, thoughtful and made with every effort to be polite. The Press has afforded us a forum with their online paper that is valuable to everyone.

I know it is easy to fire off an e-mail or a post when an issue is important, but restraint would still be helpful.

The challenge to all who post is to respect the forum provided to us all. I don't claim to always meet that measure, but I agree to try." Oct 10, 09 8:06 AM

New court date set in Kabot case

Golfer: Speedy trials, particularly on a case without a breath test are there for the taking in the East End. However, most accused do not want a trial, they want a plea bargain, and there is no rush for that." Oct 16, 09 9:04 AM

Westhampton Beach school news, October 22

Congratulations students:

From the College Boards Web page:

AP Scholar Awards
The AP Program offers several AP Scholar Awards to recognize high school students who have demonstrated college-level achievement through AP courses and exams. Although there is no monetary award, in addition to receiving an award certificate, this achievement is acknowledged on any AP Score Report that is sent to colleges the following fall.

Award Levels
AP Scholar
Granted to students who receive scores of 3 or higher on three or more AP Exams.

AP Scholar with Honor
Granted to students who receive an average score of at least 3.25 on all AP Exams taken, and scores of 3 or higher on four or more of these exams.

AP Scholar with Distinction
Granted to students who receive an average score of at least 3.5 on all AP Exams taken, and scores of 3 or higher on five or more of these exams.

State AP Scholar
Granted to the one male and one female student in each U.S. state and the District of Columbia with scores of 3 or higher on the greatest number of AP Exams, and then the highest average score (at least 3.5) on all AP Exams taken.

National AP Scholar
Granted to students in the United States who receive an average score of at least 4 on all AP Exams taken, and scores of 4 or higher on eight or more of these exams.

National AP Scholar (Canada)
Granted to students in Canada who receive an average score of at least 4 on all AP Exams taken, and scores of 4 or higher on five or more of these exams.

National AP Scholar (Bermuda)
Granted to students in Bermuda who receive an average score of at least 4 on all AP Exams taken, and scores of 4 or higher on five or more of these exams.

DoDEA AP Scholar
Granted to the one male and one female student attending Department of Defense Education Activity (DoDEA) schools with the highest average score on the greatest number of AP Exams. The minimum requirement is a score of 3 or higher on three exams.

International AP Scholar
Granted to the one male and one female student attending a school outside the United States and Canada that is not a DoDEA school with the highest average score on the greatest number of AP Exams. The minimum requirement is a score of 3 or higher on three exams." Oct 19, 09 3:37 PM

Westhampton Beach School Board bumps up budget to offset MTA payroll tax

Change in Policy?

If students are ready to move on to a college education, why should it be the policy of the District to keep them here in the district for another year?

Should we be encouraging college ready students who are ready to graduate early to stick around for another year, while the tax payers foot the bill?

Is there presently an identifiable student who is losing out on a superior class rank, and perhaps valedictorian status, and another who gains?

Shouldn't such a policy be implemented 3 or 4 years from now so there can be no concern that someone who has worked hard and relied upon the current policy is harmed?" Oct 21, 09 6:22 PM

Audit finds numerous errors in Southampton Town's accounting practices

When is the grand jury convening on this? At the very least it merits a grand jury report that is the product of sworn testimony from those directly involved. If there are no indictments, there could still be civil liability.

Making someone raise their hand, and take an oath is powerful medicine. Just ask Scooter Libby what happens if you don't cooperate with the prosecutor in the grand jury." Oct 27, 09 3:41 PM

Kabot's court date is pushed back to December

The rules of court for the conflicting engagements are as follows:

[W]here an attorney has conflicting engagements in the same court or different courts, the affected courts shall determine in which matters adjournments shall be granted and in which matters the parties shall proceed. In making such decisions, they shall, to the extent lawful and practicable, give priority to actions and proceedings in the order in which matters are listed below:

(1) child protective proceedings;

(2) criminal proceedings or juvenile delinquency proceedings wherein the defendant or respondent is incarcerated;

(3) proceedings based on acts which constitute felonies;

(4) proceedings based on acts which constitute misdemeanors;

(5) matrimonial actions and proceedings" Oct 29, 09 12:23 PM

Please look at

http://www.osc.state.ny.us/retire/members/pfrs_article14_for_members.htm" Nov 2, 09 7:30 PM

FROM THE NY STATE COMPTROLLER:

Police officers and firefighters in the 20-year retirement plan (Section 384-d and 384-e of the Retirement and Social Security Law) can now work until age 65, as long as they are capable of performing the duties of their positions. Previously, 62 was the mandatory retirement age.

Under the 20-year retirement plan (Section 384-d), you are eligible to receive a pension equal to 50 percent of your final average salary (FAS) after you complete 20 years of creditable service. (Please refer to your plan booklet for a list of creditable types of service.) If your employer has adopted Section 384-e, you will receive an additional 1.66 percent of your FAS for each year of creditable service in excess of 20 years. However, your total benefit cannot exceed 70 percent of your FAS if you are in Tier 2, or 75 percent if you are in Tier 1.

If you are in one of these plans, you must be separated from service on the last day of the month following the month you turn age 65, unless you withdraw from the special plan. For more information on your retirement plan and the benefits it provides, refer to your plan booklet, available on our website at www.osc.state.ny.us/retire/publications/index.htm#summarypfrs." Nov 2, 09 7:39 PM

§ 384-d. Optional twenty year retirement plan for certain firemen and policemen whose employer elects to provide same...

m. Notwithstanding any inconsistent provision of law, if the town board of the town of Southampton elects to make the benefits of this section available to the members of its police department, each member of such department shall be separated from service upon completion of twenty years of service, provided, however, that the town board may permit a member to continue in service on an annual basis after the completion of twenty years of service, but in no event shall such annual service be continued after a member has attained age fifty-five, except however, that members of such department who hold the rank of sergeant or higher within such department may be permitted by the town board to remain in service until the member has attained age sixty.


From Overton v. The Town of Southampton:

Retirement and Social Security Law § 384-d (b) permits a member who elects to participate in a 20-year plan to withdraw from the plan and enroll in another retirement plan. There is no language in subdivision (m) precluding the application of subdivision (b) to Town police officers. Nor is there any language in subdivision (m) which is inconsistent with the provisions of subdivision (b). Thus, the plain meaning of the statute, read as a whole, is that a Town police officer may withdraw from the 20-year plan and enroll in another available retirement plan.

Overton had the right to withdraw from the 20-year retirement plan and transfer to the 25-year retirement plan available to Town police officers with a mandatory retirement age of 70.

It would seem, but I don't know, that adopting a resolution pursuant to 384-d (m) only creates a mandatory retirement system for new hires, and then only if there is no other retirement plan available to that hire. Has Southampton Town eliminated all other retirement options? Wouldn't those officers on the payroll today be "grandfathered" in to whatever plan they elected?" Nov 3, 09 9:04 AM

Kabot attorney will represent two suspended Westhampton Beach Police officers

What did Keahon have to do with Tankleff ? Tankleff was prosecuted by ADA John Collins and was defended at trial by Robert Gotlieb. Keahon was not involved even post conviction aspects of this case.

One thing is for sure. The Village of Westhampton Beach Police Department will be subjected to scrutiny it has never experienced. No doubt there will be some unfair innuendo, the real question outside that Riverhead Town Justice Court, is whether there are other challenges to the integrity of the Department that will warrant further examination of this department and ALL of its personnel. " Nov 20, 09 8:10 AM

Pedro- I didn't want you or anyone else to infer that I know that there is something rotten in the Department, or with any one or more officers. There may or may not be.

However, once people have to start raising their hands and taking an oath lots can happen. That is particularly the case when that oath is followed by examination from an attorney that has a lot of experience both as a homicide prosecutor and now as a defense attorney. He knows the good the bad and the ugly from both sides.

In the end, maybe all concerned will withstand scrutiny.

Maybe, there will be small corrective measures needed to prevent future errors like missing video footage from the Kabot arrest, and missing video footage from the police locker room where the gun allegedly went missing.

Maybe, a defense lawyer serves as a conduit for all previously unspoken gripes (justified and unjustified) that are then aired in court if it advances his clients' purposes.

There are a lot of "maybes" and these will no doubt weigh on the minds of everyone noticed to testify.

Trials and Article 75 hearings can have a sanitizing effect. " Nov 20, 09 1:18 PM

Kabot's day in court is delayed a second time

Suspension for refusing to take a breath test requires that the stop and arrest be proper in the first instance. The legality of the stop and arrest are being directly challenged and Mrs. Kabot, like any other defendant, has the right to make that challenge. The fact that many others do not choose to fight and Mrs. Kabot does, does not make it special treatment or sinful.

It also doesn't matter what readers have presumed about her guilt, what matters is the evidence when it is finally presented both before a hearing officer with the DMV and before the criminal court judge.

The fact that the original suspension has been stayed pending appeal is evidence that Mrs. Kabot is fighting this as is her right, and as would be your right.

I think everyone involved in this case, as well as the public, will learn a lot from this experience and I am glad that the Press will continue to cover it as it unfolds." Nov 25, 09 8:18 AM

Supreme Court lifts injunction on use of Aldrich Park

For those interested in the constitutional side of the rights of aliens who are in our community:

http://balkin.blogspot.com/2009/11/privileges-or-immunities-clause.html#4364237924936323437" Nov 25, 09 2:21 PM

Oddone won't take stand; both sides rest, and closing arguments slated Tuesday

The following are: the legal definitions; lesser included offenses of charges in this case; and the standard instruction on the burden of proof.


§ 10.00. Definitions of terms of general use in this chapter...

9. "Physical injury" means impairment of physical condition or substantial pain.

10. "Serious physical injury" means physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.

11. "Deadly physical force" means physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury.


§ 15.05. Culpability; definitions of culpable mental states

The following definitions are applicable to this chapter:

1. "Intentionally." A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.

2. "Knowingly." A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists.

3. "Recklessly." A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.

4. "Criminal negligence." A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.


§ 125.25. Murder in the second degree

A person is guilty of murder in the second degree when:

1. With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution under this subdivision, it is an affirmative defense that:

(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime


§ 125.20. Manslaughter in the first degree

A person is guilty of manslaughter in the first degree when:

1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or

2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25.


§ 125.15. Manslaughter in the second degree

A person is guilty of manslaughter in the second degree when:

1. He recklessly causes the death of another person



§ 125.10. Criminally negligent homicide

A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.


§ 35.15. Justification; use of physical force in defense of a person

1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless:

(a) The latter's conduct was provoked by the actor with intent to cause physical injury to another person; or

(b) The actor was the initial aggressor; except that in such case the use of physical force is nevertheless justifiable if the actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force; or

(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.

2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:

(a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is:
(i) in his or her dwelling and not the initial aggressor; or
(ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter's direction, acting pursuant to section 35.30; or

(b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or

(c) He or she reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20.

Presumption of Innocence

Burden of Proof
(in cases without an affirmative defense)

Proof Beyond A Reasonable Doubt

We now turn to the fundamental principles of our law that apply in all criminal trials–the presumption of innocence, the burden of proof, and the requirement of proof beyond a reasonable doubt.

Throughout these proceedings, the defendant is presumed to be innocent. As a result, you must find the defendant not guilty, unless, on the evidence presented at this trial, you conclude that the People have proven the defendant guilty beyond a reasonable doubt.

In determining whether the People have satisfied their burden of proving the defendant's guilt beyond a reasonable doubt, you may consider all the evidence presented, whether by the People or by the defendant. In doing so, however, remember that, even though the defendant introduced evidence, the burden of proof remains on the People.

The defendant is not required to prove that he/she is not guilty. In fact, the defendant is not required to prove or disprove anything. To the contrary, the People have the burden of proving the defendant guilty beyond a reasonable doubt. That means, before you can find the defendant guilty of a crime, the People must prove beyond a reasonable doubt every element of the crime including that the defendant is the person who committed that crime. The burden of proof never shifts from the People to the defendant. If the People fail to satisfy their burden of proof, you must find the defendant not guilty. If the People satisfy their burden of proof, you must find the defendant guilty.

What does our law mean when it requires proof of guilt "beyond a reasonable doubt"?

The law uses the term, "proof beyond a reasonable doubt," to tell you how convincing the evidence of guilt must be to permit a verdict of guilty. The law recognizes that, in dealing with human affairs, there are very few things in this world that we know with absolute certainty. Therefore, the law does not require the People to prove a defendant guilty beyond all possible doubt. On the other hand, it is not sufficient to prove that the defendant is probably guilty. In a criminal case, the proof of guilt must be stronger than that. It must be beyond a reasonable doubt.

A reasonable doubt is an honest doubt of the defendant's guilt for which a reason exists based upon the nature and quality of the evidence. It is an actual doubt, not an imaginary doubt. It is a doubt that a reasonable person, acting in a matter of this importance, would be likely to entertain because of the evidence that was presented or because of the lack of convincing evidence.

Proof of guilt beyond a reasonable doubt is proof that leaves you so firmly convinced of the defendant's guilt that you have no reasonable doubt of the existence of any element of the crime or of the defendant's identity as the person who committed the crime.

In determining whether or not the People have proven the defendant's guilt beyond a reasonable doubt, you should be guided solely by a full and fair evaluation of the evidence. After carefully evaluating the evidence, each of you must decide whether or not that evidence convinces you beyond a reasonable doubt of the defendant's guilt.

Whatever your verdict may be, it must not rest upon baseless speculations. Nor may it be influenced in any way by bias, prejudice, sympathy, or by a desire to bring an end to your deliberations or to avoid an unpleasant duty.

If you are not convinced beyond a reasonable doubt that the defendant is guilty of a charged crime, you must find the defendant not guilty of that crime. If you are convinced beyond a reasonable doubt that the defendant is guilty of a charged crime, you must find the defendant guilty of that crime." Nov 27, 09 10:13 AM

I thought, if not you, that readers of these posts might want to know the law that will be considered by by the prosecution and the defense as it considers which lesser included offenses will be given to the jury to consider, and the specific charge on burden of proof / reasonable doubt.

In the age of computers, it didn't take much time and I thought it was worth the effort so that the task this jury will undertake could be considered. It won't be easy." Nov 27, 09 4:19 PM

Second juror dismissed at Oddone murder trial

§ 270.35. Trial jury; discharge of juror; replacement by alternate juror

1. If at any time after the trial jury has been sworn and before the rendition of its verdict, a juror is unable to continue serving by reason of illness or other incapacity, or for any other reason is unavailable for continued service, or the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case or has engaged in misconduct of a substantial nature, but not warranting the declaration of a mistrial, the court must discharge such juror. If an alternate juror or jurors are available for service, the court must order that the discharged juror be replaced by the alternate juror whose name was first drawn and called, provided, however, that if the trial jury has begun its deliberations, the defendant must consent to such replacement. Such consent must be in writing and must be signed by the defendant in person in open court in the presence of the court. If the discharged juror was the foreperson, the court shall designate as the new foreperson the juror whose name was second drawn and called. If no alternate juror is available, the court must declare a mistrial pursuant to subdivision three of section 280.10.

2. (a) In determining pursuant to this section whether a juror is unable to continue serving by reason of illness or other incapacity, or is for any other reason unavailable for continued service, the court shall make a reasonably thorough inquiry concerning such illness, incapacity or unavailability, and shall attempt to ascertain when such juror will be appearing in court. If such juror fails to appear, or if the court determines that there is no reasonable likelihood such juror will be appearing, in court within two hours of the time set by the court for the trial to resume, the court may presume such juror is unavailable for continued service and may discharge such juror. Nothing contained in this paragraph shall affect the court's discretion, under this or any other provision of law, to discharge a juror who repeatedly fails to appear in court in a timely fashion.

(b) The court shall afford the parties an opportunity to be heard before discharging a juror. If the court discharges a juror pursuant to this subdivision, it shall place on the record the facts and reasons for its determination that such juror is ill, incapacitated or unavailable for continued service.

(c) Nothing contained in this subdivision shall affect the requirements of subdivision one of this section pertaining to the discharge of a juror where the trial jury has begun its deliberations." Nov 30, 09 7:49 PM

A defendant has a constitutional right to a trial by a "particular jury chosen according to law, in whose selection [the defendant] has had a voice" ( People v Ivery, 96 AD2d 712; People v West, 92 AD2d 620, 622 [Mahoney, P. J., dissenting], revd on dissenting opn below 62 NY2d 708; see, NY Const, art I, § 2). To protect this constitutional right in criminal cases, the Legislature has enacted several procedural safeguards (see, CPL art 270). Under the statutory scheme, "[if] at any time after the trial jury has been sworn and before the rendition of its verdict * * * the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case * * * the court must discharge such juror" ( CPL 270.35 [emphasis supplied]). "This statutory test places a greater burden upon the moving party than if the juror was challenged for cause" ( People v Ivery, supra; see, People v Harris, 84 AD2d 63, 91, affd 57 NY2d 335, cert denied 460 U.S. 1047). Thus, HN2while a trial court "'should lean toward disqualifying a prospective juror of dubious impartiality'" when a juror is challenged for cause under CPL 270.20 (1) (b) 2 ( People v Blyden, 55 NY2d 73, 78; People v Branch, 46 NY2d 645, 651), the standard for disqualifying a sworn juror over defendant's objection (i.e., "grossly unqualified") is satisfied only "when it becomes obvious that a particular juror possesses a state of mind which would prevent the rendering of an impartial verdict" " Nov 30, 09 7:52 PM

It has been a common practice for the Court to make inquiries of a juror in secret when that juror's qualifications to continue as a sitting juror is challenged.

However, given the First Amendment right of the press to have access to the trial, and the defendant's Sixth Amendment right to a public jury trial, shouldn't such inquiries be public, or at the very least shouldn't the judge place on the record in public the compelling interest that requires the exclusion of the public and the press from what is presumptively an open process?

When jurors begin accusing one another of misconduct and jurors who already been determined to be acceptable to both the prosecution and the defense are discharged by the Court after a secret inquiry, the integrity of the process seems to be compromised.


Globe Newspaper Co. v. Superior Court, 457 U.S. 596
"Although the right of access to criminal trials is of constitutional stature, it is not absolute. But the circumstances under which the press and public can be barred from a criminal trial are limited; the state's justification in denying access must be a weighty one. Where the state attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest."

People v. Nieves, 90 N.Y.2d 426

"Although a defendant's right to a public trial under U.S. Const. amend. VI may give way to other rights or interests, trial courts should exercise their discretionary power to exclude members of the public sparingly and only after balancing the competing interests with special care. Before a courtroom may be closed, the party seeking closure must advance an overriding interest that is likely to be prejudiced, closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the courtroom and it must make findings adequate to support the closure."" Dec 1, 09 12:08 PM

Oddone jury will consider lesser charges

Not to put any cart before any horse, but rather to have an understanding how the jurors choices have been restricted, and the choice of possible sentences reduced:

Sentences:

For Murder in the Second Degree, as charged in the indictment:
An indeterminate Sentence of imprisonment is mandatory. Penal Law 60.05(2). The maximum term must be life, and the minimum term may be not less than 15 years nor more than 25 years. Penal Law 70.00. Thus, the least sentence is 15 years to life, and the greatest sentence is 25 years to life.

An indeterminate sentence has two components the minimum term and the maximum term. For example 20 to life. On this example the person would not come before the parole board until 20 years have been served in jail, and the parole board could parole him, or reject him each year thereafter for the rest of his life.


For Manslaughter in the First Degree:
A Determinate Sentence of imprisonment is mandatory. Penal Law 60.05(3). The term must be in whole or half years between 5 and 25 years. Penal Law 70.02(3)(a). The Determinate Sentence shall include, as a part thereof, an additional period of Post-Release Supervision of between 2 and one-half and 5 years. Penal Law 70.00(6) and 70.45(2).

A Determinate Sentence a one number sentence, for example a convicted defendant could be sentenced to 21 years in state prison.


For Manslaughter in the Second Degree:
An indeterminate Sentence of imprisonment having a maximum term of not less than 3 years and not more than 15 years, and a minimum term of not less than 1 year and not more than one-third the maximum term. Penal Law 60.01(3)(a) and 70.00. Thus, the least such sentence is 1 to 3 years, and the greatest such sentence is 5 to 15 years. -OR-

Probation for 5 years if (i) institutional confinement for the term authorized by law is or may not be necessary for the protection of the public, (ii) the defendant is in need of guidance, training or other assistance which, in his case, can be administered through Probation supervision, and (iii) such disposition is not inconsistent with the ends of justice. Penal Law 60.01(2)(a)(i) and 65.00.


For CRIMINALLY NEGLIGENT HOMICIDE:
An indeterminate Sentence of imprisonment having a maximum term of not less than 3 years and not more than 4 years, and a minimum term of not less than 1 year and not more than one-third of the maximum term. Penal Law 70.00. Thus, the least such sentence is 1 to 3 years, and the greatest such sentence is 1 and one-third to 4 years. -OR-

A Definite Sentence of imprisonment of up to 1 year, if the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that it would be unduly harsh to impose an indeterminate or determinate sentence. Penal Law 60.01(3)(a) and 70.00(4).

Probation for 5 years if (i) institutional confinement for the term authorized by law is or may not be necessary for the protection of the public, (ii) the defendant is in need of guidance, training or other assistance which, in his case, can be administered through Probation supervision, and (iii) such disposition is not inconsistent with the ends of justice. Penal Law 60.01(2)(a)(i) and 65.00. " Dec 1, 09 2:27 PM

Manslaughter in the Second Degree is reckless murder. Intoxication is a defense to the intentional murder, and would take it down to reckless murder.

However, reckless murder is not before the jury for consideration. Intoxication is not a defense to reckless conduct. Both the DA and the Defense have refused this charge, and the judge has let them make their own bed, so to speak.

"A person acts Reckless with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.

A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto."" Dec 1, 09 2:56 PM

The law on lesser included charges:

§ 300.50. Court's charge; submission of lesser included offenses

1. In submitting a count of an indictment to the jury, the court in its discretion may, in addition to submitting the greatest offense which it is required to submit, submit in the alternative any lesser included offense if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater. If there is no reasonable view of the evidence which would support such a finding, the court may not submit such lesser offense. Any error respecting such submission, however, is waived by the defendant unless he objects thereto before the jury retires to deliberate.

2. If the court is authorized by subdivision one to submit a lesser included offense and is requested by either party to do so, it must do so. In the absence of such a request, the court's failure to submit such offense does not constitute error.

3. The principles prescribed in subdivisions one and two apply equally where the lesser included offense is specifically charged in another count of the indictment.

4. Whenever the court submits two or more offenses in the alternative pursuant to this section, it must instruct the jury that it may render a verdict of guilty with respect to any one of such offenses, depending upon its findings of fact, but that it may not render a verdict of guilty with respect to more than one. A verdict of guilty of any such offense is not deemed an acquittal of any lesser offense submitted, but is deemed an acquittal of every greater offense submitted." Dec 1, 09 3:11 PM

When you look at the choices given to the jury it is really a choice of:

murder in the second degree, criminally negligent homicide, or an outright acquittal.

MANSLAUGHTER IN THE FIRST DEGREE:
The other charge given to the jury, Manslaughter in the First Degree, requires that the jury find that the defendant intended to cause serious physical injury to Mr. Reister. The very nature of choking someone is to either kill them, by strangulation, or incapacitate them for the time being.

Intending to temporarily incapacitate a person is NOT intending to cause serious physical injury, and therefore a Manslaughter in the First Degree is not supported by the evidence.

THE OTHER CHOICES:
The choice of mental states given to this jury then is one of either intending to cause the death of Mr. Reister (Murder in the Second Degree), OR

that when Mr. Oddone choked Mr. Reister he failed to perceive a substantial and unjustifiable risk that he would cause the death of Mr. Reister (Criminally Negligent Homicide) OR

NOT GUILTY BY REASON OF SELF DEFENSE

Self defense does not really apply to the Murder in the Second Degree charge, if Mr. Oddone intended to use deadly force against Mr. Reister, it wasn't justified because he was NOT confronted with deadly physical force.

Self defense DOES apply to the criminally negligent homicide charge if the jury finds it reasonable that choking someone may under ordinary circumstances be less than deadly force, and that it was only by virtue of Mr. Reister's pre-existing heart condition, that non-deadly force happened to contribute to Mr. Reister's death. In this case, the jury will have to consider whether there is a reasonable doubt that Mr. Oddone may simply have met the non-deadly force of Mr. Reister with his own non-deadly force.

It is the burden of the prosecution to disprove self defense beyond a reasonable doubt. It is NOT an affirmative defense. Stated conversely, if the defense raises a reasonable doubt that Mr. Oddone may have been acting in self defense, then the jury must acquit the Defendant.

Was Mr. Reister's Hyoid bone fractured? The fracture of the Hyoid bone in the neck, which is a soft bone, is indicative the force used by Mr. Oddone. See http://en.wikipedia.org/wiki/Hyoid_bone



This is a difficult case, my guess is that there is no way there is an Intentional Murder conviction or Manslaughter in the First Degree conviction, and there may well a hung jury or a guilty verdict on the criminally negligent homicide count. The fight will be whether the judge will permit the jury to render a partial verdict as the case progresses.


§ 310.70. Rendition of partial verdict and effect thereof

1. If a deliberating jury declares that it has reached a verdict with respect to one or more but not all of the offenses submitted to it, or with respect to one or more but not all of the defendants, the court must proceed as follows:

(a) If the possibility of ultimate agreement with respect to the other submitted offenses or defendants is so small and the circumstances are such that if they were the only matters under consideration the court would be authorized to discharge the jury pursuant to paragraph (a) of subdivision one of section 310.60, the court must terminate the deliberation and order the jury to render a partial verdict with respect to those offenses and defendants upon which or with respect to whom it has reached a verdict;

(b) If the court is satisfied that there is a reasonable possibility of ultimate agreement upon any of the unresolved offenses with respect to any defendant, it may either:
(i) Order the jury to render its verdict with respect to those offenses and defendants upon which or with respect to whom it has reached agreement and resume its deliberation upon the remainder; or
(ii) Refuse to accept a partial verdict at the time and order the jury to resume its deliberation upon the entire case.

2. Following the rendition of a partial verdict pursuant to subdivision one, a defendant may be retried for any submitted offense upon which the jury was unable to agree unless:

(a) A verdict of conviction thereon would have been inconsistent with a verdict, of either conviction or acquittal, actually rendered with respect to some other offense, or

(b) The submitted offense which was the subject of the disagreement, and some other submitted offense of higher or equal grade which was the subject of a verdict of conviction, were so related that consecutive sentences thereon could not have been imposed upon a defendant convicted of both such offenses.

3. As used in this section, a "submitted offense" means any offense submitted by the court to the jury, whether it be one which was expressly charged in a count of the indictment or a lesser included offense thereof submitted pursuant to section 300.50.
" Dec 1, 09 6:58 PM

I agree. The prosecution could have had Man. 2, but because it is their burden of proof the case will fall on the crim. neg side of the fence, if this jury that has been marked by self accusation can even reach a verdict at all" Dec 1, 09 8:54 PM

Respectfully, you are mistaken about the partial verdict statute. " Dec 1, 09 8:55 PM

I did not suggest he could be found guilty of all three options.

The process is that the jury first considers Murd. 2, then Man 1, then Crim Neg. They may reach a not guilty verdict on the Murd. 2 (this is ordinarily not reported until deliberations on the lesser offenses are concluded)

If the jury gets hung on Man 1 or finds him not guilty of Man 1 but gets hung on Crim Neg., the Court may take a partial verdict of not guilty on the Murd. 2 and Man 1 and then direct continued deliberations on Crim Neg, or declare a mistrial.

By taking a partial verdict those counts would not be re-tried because there was an acquittal." Dec 1, 09 9:05 PM

The DA obtained an indictment that had two inconsistent counts. The depraved murder statute can not be charged in this case and never should have been.

When the DA got a depraved mind murder count from the grand jury it was based on an illegal application of the law and the grand jury, that is instructed by the prosecutor without a judge, did what grand juries do. It indicted. By the way, the standard of proof in the grand jury is reasonable cause to believe, not proof beyond a reasonable doubt. Enormous difference.

The DA was forced to dismiss the depraved mind count. You want to know what would happen if she had not dismissed that count? A conviction on depraved mind murder as some form of compromise by the jury off of the Intentional Murder count would have been thrown out on appeal by the courts and Mr. Oddone would have walked with no conviction at all.

It happened on a murder case from Shelter Island just a few years ago.

Unfortunately, it does sound like a flea market and playing for an unfair advantage. The DA chose not to have a Manslaughter 2 charge given to the jury. If that is troubling to you, ask the DA himself why ? He is after all your elected official." Dec 1, 09 9:25 PM

http://abcnews.go.com/Primetime/story?id=2853532&page=1

Please read the article above about the case People v. Payne. In the past juries were instructed to first consider intentional murder and then if they had found the defendant not guilty proceed to depraved mind murder. They were never told that it was the same level crime. It often resulted in a compromise verdict that wasn't even a compromise, but a fraud on the jury. " Dec 1, 09 9:49 PM

From our New York State's highest court in 2005, People v. Suarez, 6 NY 3d 202

"Historically, depraved indifference murder had no application at all to one-on-one killings (see generally Bernard E. Gegan, A Case of Depraved Mind Murder, 49 St John's L Rev 417 [1974]). Accordingly, in Darry v People (10 N.Y. 120, Seld. Notes 246, 2 Park. Cr. 606 [1854]), this Court held that a conviction for "depraved mind" murder required conduct that endangered many people indiscriminately, reflecting cases in which the defendant did not wish to kill or injure any particular individual, but had no care for whether the life of any particular person was lost or not.

Since the enactment of the revised Penal Law, however, we have recognized that in rare circumstances, depraved indifference murder can also be found in certain unintentionalkillings involving only a single individual. These limited cases are those in which--although the intent to kill is absent--the defendant's utter depravity in causing the victim's death warrants punishment in excess of that available for manslaughter. Such cases will arise only when the acts of the defendant are "marked by uncommon brutality--coupled not with an intent to kill . . . but with depraved indifference to the victim's plight"

You are arguing that this is one of those rare cases in which the surrounding circumstances reflect an indifference to human life which permits a reckless murder to be elevated from what would otherwise be manslaughter in the second degree to a legal theory of Murder in the Second Degree.

It is evident that upon more careful consideration, the DA knew she could not do that in this case. She could not keep this count in the indictment. The old practice of indicting for both intentional and depraved indifference murder dies hard, but it is coming to an end.

If you were correct and this could properly be prosecuted as a depraved indifference murder that has no intent to kill, why would the DA abandon a lighter burden of proof on a different theory of murder.

It simply was not there on the facts of this case. This case was a Manslaughter 2nd from the beginning. That carries a maximum sentence of 15 years, not an insignificant time to spend in prison. Instead, the flea market approach prevails." Dec 1, 09 10:40 PM

Actually, any verdict other than intentional murder is a determination that the death was accidental. Some accidents are criminal in nature." Dec 1, 09 10:42 PM

Jame Catterson died, R.I.P. The current DA is Thomas Spota, he is making his own reputation." Dec 1, 09 11:09 PM

The order of consideration is Murder 2; Man. 1 and then Crim Neg. Homicide. If at any point the agree on a conviction, then they don't go on to the next offense. At each step if they agree on acquittal, then they go on to the next lesser offense, in the order above.

Sometimes a jury may reach a verdict of not guilty on a greater offense, but get stuck, in this case on either Man 1 or Crim Neg. That is when the question of a partial verdict arises.
" Dec 1, 09 11:36 PM

wondering & maryb123 have both demonstrated why jury selection is very important. It is essential that individuals with biases be excused from deliberations.

both maryb123 & wondering have made accusations that Mr. Oddone did something at some other time. If such accusations are to be tested with proof, have a trial on those accusations.

However, you can't bring untested, unchallenged, accusations about something else, from somewhere else, to prove the accusations in this case.

This case stands or falls on the evidence presented. In this case it is undisputed that Mr. Oddone choked Mr. Reister, what remains disputed is:

whether Mr. Oddone was meeting Mr. Reister's physical force with his own physical force (self defense which the DA must disprove); or as the DA contends,

whether Mr. Oddone intended to kill Mr. Reister and intentionally used deadly force to choke Mr. Reister to death.

One thing is certain and undisputed, the Reister family has suffered a tragic loss and no verdict in this case can change that." Dec 2, 09 8:41 AM

Jury now deliberating in Oddone trial

New York's Draw Shop Law may provide that Mr. Oddone is not the only person held to account in this case. A collateral issue to the case being reported upon, but nonetheless relevant to concerns over the family's concerns over the loss of a breadwinner. ("Exemplary" damages is another word for punitive")

§ 11-101. Compensation for injury caused by the illegal sale of intoxicating liquor

1. Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages.

2. In case of the death of either party, the action or right of action given by this section shall survive to or against his or her executor or administrator, and the amount so recovered by either a husband, wife or child shall be his or her sole and separate property.

3. Such action may be brought in any court of competent jurisdiction.

4. In any case where parents shall be entitled to such damages, either the father or mother may sue alone therefor, but recovery by one of such parties shall be a bar to suit brought by the other." Dec 2, 09 8:00 PM

The law is important. It is the law you have turned to punish the guilty. It is the law the accused turns to for protection from the mob.

This is not to say Mr. Oddone is guilty, or that those who believe he is guilty are a mob.

The law is the cornerstone of civilized society and serves to guide us when emotions run high.

I shared the Dram Shop Act, and yes there was a typing error it is not Draw Shop, so that those who are concerned for the family will know that the bar will no doubt be sued, and that action will probably be settled for some figure rather than litigate whether Mr. Oddone was intoxicated when he was in the bar in the early morning hours and dancing on a table.


You are right that intoxication is not a complete defense, but it is relevant to the Murder 2nd charge and the Man. 1 charge. Intoxication can negate the element of intent required in each of those charges before the jury. If a jury were to conclude that an intoxicated defendant could not form the intent to kill, or the intent to cause serious physical injury, then it would be required to return a verdict of not guilty of those two counts. Intoxication is not a defense to Manslaughter in the Second Degree.


See People v. Perry, 61 NY2d 849

"The order of the Appellate Division should be reversed, and a new trial ordered. The trial court's refusal to charge on intoxication denied defendant his right to have the jury properly consider the effect intoxication could have on the element of intent (Penal Law, § 15.25). A charge on intoxication should be given if there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis ( People v Orr, 43 AD2d 836, affd 35 NY2d 829; see, also, People v Lee, 35 NY2d 826). On the present record, although defendant testified that he was aware of his actions, there is undisputed evidence of defendant's intoxication at the time of the commission of the crime. Therefore, the trial court's failure to charge on intoxication constitutes reversible error."


I did NOT offer the Dram Shop Act in any way to have bearing upon the criminal action. It does not. It was presented only for the consideration of how it relates to the Reister family's future concerns. " Dec 2, 09 10:44 PM

If what you say is true, it looks like the only thing that stands between you and Judge Hinrichs is a subpoena on the Southampton Press, and perhaps another subpoena on some ISP related to your e-mail.

Both DA and the Defense have time on their hands at the moment and you can bet they are going to assess whether it is in their interests to advance this inquiry now, or after an adverse verdict. The DA would probably go now, hard to undo a verdict from that side of the case; Defense may hold it as insurance to attack any verdict of guilt.

The following link relates to privacy for bloggers:

http://writ.news.findlaw.com/hilden/20011129.html
" Dec 3, 09 8:18 AM

You can also probably expect an e-mail from the Southampton Press informing you that you should retain counsel to defend your privacy if you intend to do that.

It would be reasonable for the Press to afford you an opportunity to move to quash such a subpoena at your expense, but not at theirs." Dec 3, 09 8:33 AM

They wouldn't need to. Once you put a person in jail they are indigent and the taxpayers pay for the cost of the reproduction of the transcripts as well the costs of appellate counsel." Dec 3, 09 2:26 PM

Suspended Westhampton Beach Village Police officers return to work

The Village should consider abolishing the PD, at least it would cost less for absence of services. Of course excessed officers could work part time jobs doing security for the estate owners..

Maybe even John Roland will want to hire someone for that kind of work, if he doesn't already have someone on the job.

NY Village Law:

§ 8-800. Police departments

The board of trustees of a village may, by resolution, establish a police department in such village and appoint a chief of police and such personnel as may be needed, and fix their compensation

* * * * *

The board of trustees may abolish a police department established pursuant to this section by local law, subject to permissive referendum, and the department shall be deemed abolished as presented in such proposition.

* * * * *

The board of trustees of a village, upon establishing or abolishing a police department, shall notify the commissioner of the division of criminal justice services of such action within thirty days thereafter." Dec 3, 09 2:33 PM

Can't help that you are so disagreeable Mr. Wheeler.

But, do look at my post about the dissolution of the PD and my reference at that time to Greenport PD on June 7th. Maybe you remember that, maybe you don't. I guess you agreed with me then, but just didn't know it.

http://www.27east.com/story_detail.cfm?id=215194

For this Village to referee the infighting in the PD is a waste. The Chief carries no moral authority with Village residents, and that eliminates his ability to repair a department that has been dysfunctional for decades." Dec 3, 09 3:29 PM

Defense seeks mistrial; Judge rejects motion

That is like reading tea leaves. It is easy for me and anyone else here to pontificate about what the verdict should be, but we don't carry the responsibility of that verdict for the rest of our lives.

From what I have read here, after seven weeks of testimony, the jury is doing what it is supposed to do. Ask for charges it requires, ask for that evidence it thinks is important, and work their way through it.

This is not going to happen fast. It is a big deal to authorize the state to incarcerate a man for a long time, and it is just as big a deal to acquit him when a person has died.

I only offer that people interested in this case have patience. It will take time.

" Dec 3, 09 6:54 PM

The jury was instructed on self defense as it relates to both Murd 2 and Man 1.

It was MY own analysis that if the jury concluded that the defendant intended to kill Mr. Reister, the use of deadly force could not be justified because he had not been threatened with deadly force. You can't use deadly force unless threatened with deadly force.

With respect to Man 1 MY analysis was that when one person chokes another it is either with the intent to kill (guilty of Murd. 2) or to incapacitate, not cause serious physical injury as required to be guilty of Man. 1.

That brings the case next to Man. 2 and if not that then Crim. Neg Homicide.

Self defense applies to each of the four counts, but there are two types of force that must be considered deadly force, and ordinary force. As I understand it there was no justification for Mr. Oddone to use deadly force so if he intended to kill Mr. Reister, then justification will not result in an acquittal on that charge.

With the lower charges the jury could conclude that the force used was only physical force, not deadly force, and that it was this physical force that contributed to the death of Mr. Reister. That may or may not be justified as the jury assesses whether that force was to meet the force upon him.

It is a complicated process, and I have offered only a legal analysis, the jury has to make factual determinations that go with the law given to them.

I would not guess what is going on. I can't begin to think what the interactions of 12 unrelated people will produce in the way of jury requests." Dec 3, 09 7:54 PM

Sometimes a piece of evidence has both good and bad in it, such that neither party wants to put it into evidence.

You can bet both attorneys made an assessment, and made a conscious decision not to offer it into evidence. I would be surprised it it was an oversight. " Dec 3, 09 8:09 PM

The introduction into evidence of a document or a picture is ordinarily a two step process. First the item is marked for identification. Then questions are asked about that item in order to provide the foundation for admissibility and it can be referred to by counsel by its Identification number and the stenographer can record that, and the item is part of the record.

The second step after it has been marked for identification is to ask the questions and get the necessary testimony that renders it admissible. Once that happens it is offered into evidence and a ruling is made upon its admissibility. If admissible, then the ID marking number is changed and it is marked with that number as now in evidence.

Photographs are simple. Its marked for identification and the witness is asked whether the picture fairly and accurately represents a particularly thing, if the witness says it does, then the foundation has been provided and it can be offered and marked into evidence.

In order for a scientific article, book, or journal to be admitted into evidence there must be a witness who testifies that it is authoritative. For example, it would be difficult for a witness to say Grey's Anatomy is not authoritative.

However, in the world of publish or perish, not all things will be recognized as authoritative and without it being recognized as authoritative, it remains as hearsay, is inadmissible, and won't get passed being marked for identification.

If a witness being cross examined refuses to admit that anything is authoritative, that will weigh upon his/her credibility. If there is an article from some obscure journal, I don't think it would affect his/her credibility at all." Dec 4, 09 12:16 PM

Jury deliberations continue in Oddone murder trial

You seem to suggest that there is something in the Medical Examiner's autopsy report that you would have liked to have in evidence before the jury.

If there was anything in that report that was inconsistent with the ME's testimony, then it was admissible unless he admitted to those facts on cross examination.

Frankly, I have never seen a medical examiner testify in a manner that was inconsistent with his own report, but maybe something new happened here.

Are you saying that the ME testified in a manner that was inconsistent with his report, that the report was offered in evidence, and the judge refused to admit it into evidence?

The rules of evidence are designed to permit both sides to fairly examine witnesses and present evidence. Are you saying these rules were not followed?

To be certain there are rules that could be changed to improve the fact finding process, but is there something you have identified here that is so far off the beam that this is an unfair trial?" Dec 4, 09 9:29 PM

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