A popular myth amongst the law and order ignorati is that while law-abiding citizens know little to nothing about how the “system” works, criminals know how to play it like a violin.  While I’ve always found a certain humor in this attribution of malevolent brilliance to criminals, it’s not even close to reality.  The Appellate Division, Second Department decision in Lapidus v. State of new York makes the point in a sad, pathetic case.

Suing the state for negligence, Barbara Lapidus was sent to prison as a predicate felon for sale of narcotics.  Her case was dismissed because of the “intervening event” of her failure to contest her status as a second felony offender.  The Second Department reversed.

Lapidus, now 54, lived the typical, miserable life of a junkie.  Broken home. Dropped out of school.  Turned tricks to buy heroin.  When she was arrested with her boyfriend in 1987, she was released and never came back.  The boyfriend went to trial and lost.  The clerk mistakenly marked the file that both Lapidus and the boyfriend were convicted of felony assault.  While she had many arrests and convictions, none were felonies.  Except this one.

Cut to 1997, when Lapidus was busted for sale. 

Prior to sentencing, the People filed a predicate felony statement (see CPL 400.21[2]) alleging that on January 9, 1989, Lapidus had previously been convicted of the felony of assault in the second degree in Kings County. When Lapidus appeared for sentencing on the New York County indictment on January 13, 1998, she was arraigned on the predicate felony statement, and advised of her right to controvert any of the allegations in the statement and to challenge the constitutionality of her alleged prior conviction. However, when asked if the allegations set forth in the predicate felony offender statement were true, Lapidus answered “[y]es,” and stated that she did not wish to challenge the constitutionality of her prior conviction. She . . . was sentenced, in accordance with the prosecutor’s recommendation, to [the minimum] term of 4½ to 9 years of imprisonment.

They way this generally works in the real world is that Lapidus’ lawyer would go through her rap sheet with her and find out about her priors.  He would expect her to have some clue about her previous convictions.  The frequency with which a defendant tells his lawyer that he doesn’t remember, or isn’t sure, or just admits or denies things that aren’t true is shocking.  Lapidus, when put through the mantra of the predicate felony allocution, acknowledged her prior felony conviction that never happened. 

One might expect that her lawyer would have, should have, done something to verify the prior conviction.  But in the absence of the defendant denying it, there would be no reason to pursue it.  Defendants with prior convictions are hardly unusual.

Prisons, like courts, are bureaucracies, and bureaucracies need their paperwork.  So the kind folks at Bedford Hills needed a transcript of the judgment of Lapidus’ prior conviction.  It was nowhere to be found, so a court clerk did what any good clerk would do.  Created a duplicate showing Lapidus having been sentenced to 1½ to 4½ years that she had never served, and DOCS calculated her total sentence to be 6 to 13½ years.

Cut to 2003.  Lapidus, now presumably sober and at the end of her sentence, started asking questions. 

At some point, Lapidus obtained assistance from a legal clinic operated by the Columbia University Law School. According to Lapidus, it was the inquiries made by two of the clinic’s dedicated law students that led the Kings County Supreme Court Criminal Term Clerk’s Office to conclude, in April 2004, that an error had been made, and that she had never been arraigned, convicted, and sentenced on the 1987 charges that resulted in her purported 1989 conviction. She was thereafter arraigned on the 1987 indictment on April 20, 2004. A few days later, on April 29, 2004, Lapidus pleaded guilty to assault in the second degree, and was sentenced to a term of 10 days of imprisonment. On May 4, 2004, she was resentenced, nunc pro tunc, on her 1998 conviction of criminal sale of a controlled substance in the third degree, to an indeterminate term of 1 to 3 years of imprisonment as a first time offender. Lapidus was released from custody that same day, having been imprisoned for more than six years.

Lapidus sued the state for negligence, both the original mismarking of the file to show that she had been convicted as well as the creation of the “duplicate” judgment in the absence of an original in the court file.  She explained that in 1987, when she pleaded guilty, she was “sick” as junkies often are, and just assumed and believed that she had been convicted.  She didn’t have a clue, and assumed that it had happened or the court wouldn’t have said so.

The trial court granted summary judgment to the state, based upon Lapidus’ failure to contest the predicate felony conviction.  The Appellate Division reversed.  After holding that the clerk’s failure was ministerial, and a discussion of the “elusive” concept of proximate cause and intervening events, the court held:

This is not a case where the alleged intervening act, as a matter of law, was independent of and divorced from the original negligence. Rather, as Lapidus argues, she never would have been placed in the position of having to admit or deny that she was a predicate felon had not a court employee mistakenly recorded on her court file that she had been convicted of assault in the second degree and sentenced to a term of imprisonment for that crime. Thus, the conduct alleged to be an intervening act flows from the original alleged negligence of the part clerk, and not, as the State asserts, from “the prosecutor’s and court’s mistaken recital to claimant in 1997 that she had a prior felony conviction.”

The outcome produces both positive and negative incentives.  Clearly, courts (and their clerks) should be responsible for getting things right.  This isn’t the sort of thing where sloppy recordkeeping should be condoned, given the impact that court records can have on people’s lives.  On the other hand, the point of the predicate felony hearing is to provide the defendant with an opportunity to controvert the allegation, and being a junkie shouldn’t be rewarded either by a pass on taking some modicum of responsibility for the number of felony convictions one has accumulated.

The Second Department, dealing with these very sticky facts, reached the right decision for two reasons.  First, because it was the failure of the system that set the wheels of error in motion and placed Lapidus in the position of making a grievous mistake.  And second, because we have, and should have, greater expectations in the accuracy of the court than in a junkie defendant. 

But if you think that defendants have a clue what happens in court, Barbara Lapidus can tell you that it’s just not true.

H/T Judicial Reports, the source for New York reversals.