The Constitution Grows in Brooklyn

When Cy Vance became the first new District Attorney in New York County in a millennium, a change of guard was inevitable.  One fixture at risk was the Chief of Appeals (and SJ reader), Mark Dwyer, one of the smartest guys to ever grace Hogan Place.  When the changing of the guards took place, I wondered what would become of Mark.  By accident of Legal Blog Watch’s Eric Lipman, the answer appeared.

Governor Paterson, in a fit of thoughtfulness, appointed Mark Dwyer to the Court of Claims, and he’s been assigned as an Acting Supreme Court Justice in Kings County.  ADA Dwyer is now Justice Dwyer. 

Before anyone indulges in the knee-jerk prosecutor-to-judge-pipeline reaction, consider Justice Dwyer’s decision in People v. Abdul-Akim, suppressing the stop, search and seizure of a handgun and body armor,   In this extremely thorough decision, Justice Dwyer went through the entirety of the interaction, noting at each level where the police conduct failed to comport with constitutional mandates.

The police must be alert to possible violence and must safeguard the community from criminal activity. But crime prevention may not be effected at the expense of disregarding the constitutional requirement that citizens be free of unreasonable searches and seizures.

Of course, fine statements like this are one thing.  Backing them up with the goods is another. 

Justice Dwyer initially held the the police arrest of the defendant for mistakenly believing that the driver possessed only a Virginia learner’s permit rather than a temporary license was unreasonable, finding that

In short, in view of the “driver’s license” notation on the Virginia document, it was unreasonable for the police to conclude that defendant Ayala was not a licensed driver. All the evidence corroborated the conclusion that the document was a license, not a learner’s permit.

This is the “nobody could be that stupid” part of the decision, in which the court holds that if the “Temporary Driving Permit” says “driver’s license” rather than “learner’s permit,” that means it’s a driver’s license rather than a learner’s permit.  The “texting” excuse similarly falls, since it wasn’t unlawful at the time of the arrest.  But then comes a very interesting nuanced aspect of the decision, where Justice Dwyer rejected the reasonableness of using the purported cellphone/learner’s permit excuse to justify a full custodial arrest, and subsequent inventory search:

A custodial arrest may not be employed as a pretext to conduct a search. True, an objectively reasonable traffic stop is not invalidated because the primary motivation of the police was to investigate some other matter (see Whren v United States, 517 US 806 [1996]; People v. Robinson, 97 NY2d 341[2001]. However, the scope, duration and intensity of a seizure, and any subsequent search, “remain subject to the strictures of article I, §12, and judicial review” (People v Troiano, 35 NY2d 476 [1974]; People v Marsh, 20 NY2d 98 [1967]). A custodial arrest and impoundment for using the cell phone was not called for under the circumstances in this case.

To anyone offended by the Whren decision, approving pretext stops, this portion of the decision offers a fascinating counterpoint, that while the pretext stop may be authorized, that doesn’t necessarily mean that a pretext search follows, a critical distinction and one that serves to return sanity and integrity to constitutional doctrine.

Ironically, when Eric Lipman brought this decision to my attention, it was part of his snarky approach, reflected in his opening paragraph at LBW :

If you find yourself riding with a couple of your buddies around the Brooklyn neighborhood where your brother was recently murdered, wearing a bulletproof vest, with a loaded handgun in the glove compartment, well, I’m comfortable calling you a “bad guy.”

Not that it would occur to Eric that maybe the defendant feared he would be harmed by whoever killed his brother and had a weapon and vest for his own protection, but the whole constitutionality thing doesn’t seem to affect his comfort level in the slightest.  And Eric Lipman was never a prosecutor (though he was an associate at Cahill Gordon).  What does that tell you?

It would have been a terrible waste for someone with the experience of Mark Dwyer to end up in some Biglaw firm drawing millions in salary, as if money was something that might interest for him anyway.  But for anyone who thinks that a career prosecutor can’t make a good judge, I’ll take a brilliant mind and an honest man on the bench any day.

Congratulations, Justice Mark Dwyer.  It’s funny how people end up where they can do the most good.

8 thoughts on “The Constitution Grows in Brooklyn

  1. Greg D. Lubow

    Well reasoned, Judge Dwyer, (whom I have never had any dealings with while he was an ADA). Hopefully, he will continue to provide such gems and not succumb to the the pressure that law enforcement, prosecutors and his ‘peers’, and superiors may bring upon him (ala Judge Harold Baer). Are the People appealing the decision?

    Your praise of the judge is warranted, and we should not forget the attorney’s for the 2 defendants – For Defendant Marcus Ayala: Kleon C. Andreadis, Esq., New York, NY.; For Defendant Ali Abdul-Akim: Tarsha N. Ricks, Esq., The Legal Aid Society, Brooklyn, NY.

    Without their efforts in providing the proof necessary at the hearing to give J. Dwyer the opportunity to render his decision.

    An example of some damn fine lawyering, me thinks.


  2. SHG

    You are quite right, though that wasn’t the purpose of my post.  But given your attention on the lawyers, does that suggest that the NYSCADL might give them an award next year for doing such a fine job, as opposed to giving an award to a prosecutor as George chose to do this year?  

    It’s wonderful that you take the opportunity to praise defense lawyers.  It’s unfortunate that you do so here but not when it counts.

  3. EL

    For the record, Scott, I don’t disagree with the decision. The “crime prevention and unconstitutional police shenanigans aren’t mutually exclusive” principle is a two-way street.

    By calling the defendants “lucky bad guys,” I didn’t at all mean to suggest that they benefited from a bad court opinion, but, rather, from the right result where the cops bent (or flat out ignored) the rules. On balance I think it’s a good thing the cops got the gun off the street before anyone had a chance to use it. But based on the opinion, I agree it was a bad stop and arrest.

    [Guess my summer internship with the Nassau County DA’s office during college didn’t make me forever predisposed to be anti-defense. Will you now support my nomination for a judgeship?]

  4. Greg D. Lubow

    Ouch, Scott. That really hurt. For the record – being a member, and a member of the board of NYSACDL doesn’t mean that I agree with everything done or every position taken, and I have been known to voice my positions in board meetings – I certainly do not speak for NYSACDL when commenting on your blog. As you pointed out, the decision to honor a DA was made by George, the incoming president and caused great consternation within and outside the organization. Had you read the invitation to the dinner a little further you would have seen that NYSACDL did, in fact, on the same bill, honor the lawyers at Wilmer Hale who took up the cause of man wrongfully imprisoned for 25 years, pro bono, resulting in a 440 granted and his freedom; and the award was presented by David Steinberg, one of the trial lawyers from 25 years earlier.
    And as you are probably aware NYSACDL has over the past several years – I’d have to go back over the programs – honored numerous defense attorney’s – some with stellar careers and some with single victories reflecting extraordinary efforts and commitment.
    Why turn what I thought was a positive addendum to your post about a courageous new judge into a negative attack upon me and NYSACDL – I just don’t get.

  5. SHG

    No reason to take it so hard, or so personally if you were against the poor choice.    Wilmer Hale? Are they members?  Not a single criminal defense lawyer worthy of recognition for anything they’ve accomplished, except here?  What a shame the NYSACDL members are so unworthy.  Just a reminder to an old friend who continues to sit on a board that’s lost its way.

  6. Greg D Lubow

    There are hundreds of worthy criminal defense lawyers doing the job every day with notable efforts and results – just look at the attorneys who litigated before Judge Dwyer, and many who have dedicated their careers to the cause have been duly recognized by NYSACDL. The association has a long and proud history of also recognizing stellar efforts by non-criminal defense attorneys who take on, in many cases, pro bono, efforts to correct an injustice.
    Nice to see that we are still ‘old’ friends.

  7. SHG

    Indeed, there are many worthy criminal defense lawyers.  But let’s separate the bullshit from the reality.  So with these hundreds of worthy criminal defense lawyers floating around, who does the NYSACDL honor?

    Robert Morgenthau, District Attorney of New York County
    Wilmer Hale, Biglaw
    Ray Kelly, Past President

    Where are all those worthy criminal defense lawyers?  They would be sitting in the cheap seats, unrecognized because they aren’t important enough to serve the greater glory of the association (and it’s President) and bring in a couple of paid tables.  The association’s proud history is to give awards to, as Pat Marcus always called them, Mandarins.  It has a proud history of ignoring its own and their achievements.  The members are only good for paying dues, to cover the cost of the board allowing Assocication money to be squandered.  Forget the Pat fiasco, and think only of the $13,000 in Am Ex interest charges.  That’s a lot of dues.

    The last time anybody showed the slightest interest in the hard work of the members was when Dick Barbuto was president and gave out the “In the Trenches” awards.  But that died with him, since no President after that found it worthwhile to bother with recognizing the work of members.  There was no glory or cash in it for them or the Association.

    As an old friend, let me offer a word of advice.  When you’re in a hole, stop digging.  Rather than rationalize the Association’s failures, work to fix them.

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