© 2004 Susan Chana Lask All Rights Reserved.
CRIMINAL COURT OF THE CITY OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------------------------
The People of the State of New York
AFFIRMATION
-against- Docket No. 2002NY000000
JOHN DOE, Part F
Defendant.
---------------------------------------------------------------------------
TO: John Smith, Esq., Assistant District Attorney of New York County, and to the Clerk of the
Criminal Court:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
SUSAN CHANA LASK, an attorney duly admitted to practice in the Courts of this State, affirms the following to be true under penalties of perjury:
1. I am a member of the law Offices of Susan Chana Lask, attorneys for the defendant herein. I make this Affirmation in support of the within Motion.
2. This Affirmation is made upon information and belief except as to those matters wherein it is stated that your deponent has actual knowledge thereof, and is derived from the information provided in the information herein, consultation with representatives of the New York County District Attorney's Office, consultation with the defendant JOHN DOE, as well as other apparently reliable sources.
3. The defendant has been charged with (a) falsely reporting an incident 3rd degree, (b) Insurance Fraud 5th Degree and (c) obstruction of government administration 2nd degree. All charges are Class A misdemeanors.
4. The charges were filed in this court, Part F, on November 14, 2002 as reduced from original felony charges. On November 14, 2002, this court told the People to corroborate their information as to the Insurance Fraud charge by December 5, 2002.
5. On December 5, 2002 the People presented a new information apparently correcting the last paragraph to corroborate the insurance fraud charge. The new information states the affirmant as Detective Yani Smith; however, the signature and other handwriting is completely different than the original information filed. The information is not signed by the same deponent as the first information.
6. On December 5, 2002 the People delivered to Defendant written statements it intends to use against the defendant; however, each page is cut off at the top and bottom, missing crucial information. Defense counsel by letter (See Exhibit "A") and calls asked the People to provide complete documents. On January 23 this court instructed the People to deliver complete copies. The People have failed to comply. The Defendant's requests for copies of statements he is alleged to have made, whether oral or reduced to writing, should be granted as a matter of right for the preparation of his case.
7. On January 23, 2003 the People delivered at Part C a boilerplate Response to Defendant's Discovery Requests. Defendant brought to this court's attention that the People's boilerplate responses were insufficient, the People failed to deliver complete statements of Defendant and that there are 30.30 issues as well as Huntley issues. This court allowed for the present Motion.
8. This affirmation is made in support of the instant Omnibus Motion that seeks various relief including: discovery; bill of particulars; the dismissal of the indictment herein on the grounds that it is legally insufficient; suppression of any statements involuntarily made or illegally obtained from the defendant, to whomever made; for a hearing to determine the admissibility of recorded conversations or statements, dismissing the complaint as it is not signed by the proper deponent and dismissing the insurance fraud charge because no insurance existed so there can be no insurance fraud.
I. DISCOVERY
9. All of the discovery and inspection requested in the Defendant's Discovery Motion attached hereto (Exhibit "B"), is essential to the preparation of the defense of the charges herein and for the preparation of the normal pre-trial motions and hearings to be brought prior to trial. Without such right of discovery and inspection, I cannot safely proceed to trial in this action, and that the defense of my client will be greatly jeopardized by my failure to receive such information. Such information is within the control and knowledge of the District Attorney and that the same cannot be obtained from any other source.
10. The requests for information concerning police logs, booking slips, and police reports are important as this case involves two detectives, Yanti Smith and Detective Blue who were the only persons, other than two other arrests, who were present when defendant was arrested. Detective Blue proceeded to violate Defendant sexually by touching him as well as verbally harassing him, all of which has been reported to the sex crimes unit as well as Internal Affairs. Defendant needs specific information contained in the police reports, booking slips and records of other arrest's names so they may be contacted about what they may have witnessed that night, as well as to verify just what occurred in that precinct that night leading to Defendant writing a completely different statement than in his original police report.
11. There are also requests for phone records from the precinct to Defendant's phone numbers from date of arrest to the date of discovery. That request is made because Detective Blue, one of the arresting officers, sexually harassed Defendant during the arrest and he further made sexually explicit calls to Defendant during the course of this criminal proceeding. Defendant recorded some of Detective Blue's sexually explicit and inappropriate calls to him (which have been provided to the People).
12. The phone records should be provided as they will corroborate the calls made to Defendant and support Defendant's claim that he was forced to write an incriminating false statement because of his sexual mistreatment and violation of his civil rights while incarcerated by Detective Blue. The precinct phone records will substantiate the fact that an arresting officer and officer involved in this case intimidated the defendant during the course of a criminal case and abused his power to defendant's detriment.
13. There are discovery requests demanding exonerating evidence which the People have as there is an investigation with the DA's sex crimes unit in the same District Attorney's office against Detective Blue. All DA departments are in communication with each other. The sex crimes unit has been communicating with the AD on this case. The People must turn over exonerating evidence they discover and share from the sex crime allegations against Detective Blue. Nevertheless, the same information was imparted in detail to the ADA on this case, who assured your affirmant that he would investigate the facts presented to him as they relate to an involuntary statement made by Defendant.
14. All discovery requested regarding the Officer's name who read Defendant his rights is necessary as there is a claim that his rights were not read to him at anytime. This information is required in preparation for our Huntley hearing. Defendant made a second incriminating written statement involuntarily because first, he feared his safety due to misconduct of Detective Blue and second, he asked numerous times for his attorney. Your Affirmant knows Defendant personally for over a year and Defendant knows very well to contact me for any legal matter. He requested a call to me but was refused and then harassed by the police. His subsequent written statement to be used against him was made under duress and involuntarily. The People should provide information whether or not his rights were read to him and by whom.
15. The People's boilerplate Responses state they have tape recordings, photographs and photos of property. The People have the ability to reproduce such items and must provide them to Defendant. In fact, your affirmant was advised by the DA's office that they have a department that can reproduce any tape recording. Defendant has to date not received any such discovery from the People.
16. The defendant's requests for any material which is exculpatory or otherwise favorable to him is made in accordance with the United States Supreme Court decision in Brady v. Maryland, 373 U.S. 83, (1963), and should be voluntarily made available by the District Attorney.
II. BILL OF PARTICULARS
17. The Bill of Particulars, in the considered judgment of defense counsel, is essential to the preparation of a proper defense for trial and for the proper preparation of the appropriate pre-trial motions and hearings.
18. The information requested by the defendant is factual information not recited in the indictment. None of the items are evidentiary material, rather, defendant seeks, through particulars, to determine what his participation in the acts alleged in the information was alleged to have been. A reading of the Bill of Particulars shows that each question requests only factual information not provided in the information.
III. SUPPRESSION OF ANY ADMISSION, STATEMENT AND WAIVERS
19. The District Attorney's Office will attempt to offer, as evidence, statements allegedly made by the defendant. In fact, the People have delivered such statements but have failed since December 5, 2002 to deliver complete copies; the copies they delivered are cut off at the top and bottom of each page.
20. This court on January 23, 2003 directed the people to deliver a readable and complete copy. Your Affirmant has requested the same numerous times since January and to this date. The People have failed to deliver proper copies of the statements as directed by this court and requested by defense counsel.
21. Such statements should be suppressed for the People's continued failure and non-compliance to provide readable copies.
22. If this court does not order suppression, then attached hereto is Defendant's sworn statement of fact (Exhibit "C") as to the involuntariness of his statement made. If the People can not raise issues of fact disputing Defendant's Affidavit, then we ask for the statements to be suppressed. Otherwise, this court has agreed to a Huntley hearing and we ask for a date certain .
IV. 30.30 TIME
23. It has been three months and 1 day since reducing the charges to misdemeanor counts on November 14, 2002. Defendant has not yet been brought to trial upon the said information. Defendant has not been responsible for this delay. The People have procured this delay by (a) not corroborating their information, (b) by failing to respond to the defendant's discovery and providing boilerplate responses that do not even respond to the defendant's specific demands and (c) failing to provide complete statements they intend to offer as well as not being prepared.
24. This delay, for which the defendant is not responsible, has resulted in a denial of the defendant's right to a speedy trial, as guaranteed by section 30.20 of the Criminal Procedure Law and the Sixth Amendment to the United States Constitution as made applicable to the States by the Due Process Clause of the Fourteenth Amendment.
V. UNSWORN INFORMATION
25. The second information filed with this court has a completely different signature than the original filed information by Detective Smith. Each information has a completely different signatures, the second not being anything like the first--that of Detective Smith, to which this court can plainly see.
26. Your affirmant believes the information was signed by someone other than its deponent, Detective Smith. The information is thus unsworn and should be dismissed.
VI. INSURANCE FRAUD CAN NOT STAND IF THERE WAS NO INSURANCE
27. Defendant is charged with insurance fraud under PL 176.10. A fraudulent insurance act is defined at PL 176.05 as a person who submits a written statement based upon false information to obtain payment. First, there can be no insurance fraud charge when there was no insurance. Defendant's affidavit (Exhibit "C") affirms there was no insurance on his vehicle for over a year. Second, the information does not state there was a written statement made at anytime by defendant in accordance with PL 176.05.
28. Your affirmant has had numerous conversations with ADA Kowell and his supervisors regarding this issue since November 14, 2002. Your affirmant has been informed by the People that they would drop this charge if insurance did not exist as they can easily check if insurance existed. To date the People have failed to make that search.
VII. LEAVE TO FILE MOTIONS
29. Until the People provide Defendant with the matter requested in the "Discovery", "Brady Materials", "Bill of Particulars", "Dismissal of the Information" and other portions of this affidavit, he would be unable to ascertain whether additional relief should be prayed for. Thus, leave to file additional motions should be allowed.
WHEREFORE, your deponent respectfully prays for an Order granting the defendant the relief requested in the annexed Notice of Motion and for such other and further relief as to this Court may seem just and proper.
Dated: New York, New York
February 13 ,2003 ______________________________
Law Offices of Susan Chana Lask
853 Broadway, Suite 1516 New York, New York 10003 (212) 358-5762
________________________________________________________________
CRIMINAL COURT OF THE CITY OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------------------------
The People of the State of New York
AFFIDAVIT of DEFENDANT
-against- Docket No. 2002NY075324
JOHN DOE, Part F
Defendant.
---------------------------------------------------------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
JOHN DOE, being duly sworn, deposes and says that:
1. I am the Defendant in the above -entitled action. I submit this affidavit in support of the motion to suppress the written statements the People intend to use as evidence against me.
2. I came to the _________ police precinct on October 25, 2002 at about 8 p.m. At the invitation of Detective Smith. He wanted me to write out a statement about a crime I reported over the phone some days earlier. After I wrote my statement he began asking me accusatory questions. I asked to call my attorney as I know her personally and I felt uncomfortable at the precinct. My request was refused.
3. At about 10 p.m. Detective Smith took all of my personal property from me and made me stay in a holding cell. Across the cell was Detective Blue. I asked him to let me call my attorney. He threatened that he can hold me for 72 hours and let me make a call 10 minutes before they let me go, that it was up to the police. He also threatened to throw me in "the dungeons" where no one will ever find me. He stated I should just tell Detective Smith whatever he wants to hear if I wanted to leave.
4. I asked again if Detective Blue would allow me to make my call. He took the keys for the cell, placed them across the room and said, if you can get these keys then I'll let you out, if you do not get shot. Detective Blue later took me to be fingerprinted. I asked him if I was arrested. He told me we could do this the easy way or the hard way, and if I wanted to leave that I should just tell Detective Smith what he wanted to hear. He also told me that if I told Detective Smith what he wanted to hear they would reduce the crimes to misdemeanors instead of felonies (which later was untrue).
5. Noone told me if I was arrested, what was going to happen to me and they refused to let me call my attorney. I wanted to get out of there. I told Detective Blue I would talk to Detective Smith and tell him what he wanted to hear.
6. Detective Smith interrogated me more while Detective Blue was present. Smith said I was with a woman the night I was car jacked. I explained that I was gay and not with a woman. Smith told me to write a statement that I lied about being car jacked. When he left the room Detective Blue told me "You have the most beautiful eyes and smile." It was disturbing to hear that after I knew he heard I was gay.
7. After writing what Detective Smith told me to write, he looked at the statement and then told me to add at the end that I made a false insurance report. I told him I did not even have car insurance but he insisted I write what he told me to write.
8. I wrote the statement at about 3 a.m., after some 6 hours of being locked up without food or water and being harassed in the process by Detective Blue (which he later forced me to touch him and he made sexually explicit calls to me during this proceeding.) I was only 20 at the time, was never arrested before and just wanted to get out of that precinct. The officers violated my rights by refusing to allow me to call my attorney whom I personally know for over a year and I wanted to call her and asked to call her at least four times but the police denied my requests.
9. I made the statement under duress and involuntarily. Also, at no time did anyone read me my rights nor follow my constitutional right to an attorney before I speak. I also asked them to stop their interrogation and let me call my attorney in the beginning. Instead I was locked up for making that request. I would have never made the second statement they intend to use against me if I had counsel as I requested.
Dated: February 13, 2003
New York, NY
Sworn to and Subscribed before me ________________________________
this 13th day of February, 2003 JOHN DOE
_____________________
NOTARY PUBLIC
--------------------------------------------------------------------------------------------------------------------------
Docket No. 2002NY000000000 Part F
CRIMINAL COURT: CITY OF NEW YORK
COUNTY OF NEW YORK
--------------------------------------------------------------------------------
The People of the State of New York
-against-
JOHN DOE, Defendant.
------------------------------------------------------------------------
__________________________________
DEFENDANT'S BRIEF
____________________________
LAW OFFICES OF
SUSAN CHANA LASK
Attorneys for Plaintiffs
853 Broadway, Suite 1516
New York, New York 10003
( 212) 358-5762
____________________________
PROOF OF SERVICE
STATE OF NEW YORK, COUNTY OF NEW YORK ss.:
I, the undersigned, an attorney admitted to practice in the courts of New York State and in good standing affirm under penalty of perjury that I am not a party to the action, am over 18 years of age and have offices at 853 Broadway, Suite 1516, NYC, 10003. On April, 2003 I served the within Omnibus Motion:
-------- mail I deposited a true copy of the papers, enclosed in a post paid wrapper, in an official depository under the exclusive care and custody of the US Postal Service, within New York State, addressed to the following:
X
--------personally upon:
John Smith, Esq., Assistant District Attorney of New York County, and to the Clerk of the
Criminal Court, One Hogan Place, New York, NY 10013
__________________________
SUSAN CHANA LASK, ESQ.