People v Quiroga-Puma

[*1] People v Quiroga-Puma 2008 NY Slip Op 50242(U) [18 Misc 3d 1130(A)] Decided on February 12, 2008 Just Ct Of Vil. Of Westbury, Nassau County Liotti, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 12, 2008
Just Ct of Vil. of Westbury, Nassau County

The People of the State of New York, Plaintiff,

against

Rafael Quiroga-Puma, Defendant.



LX6701631



FOR THE VILLAGE:DWIGHT D. KRAEMER, ESQ.

Village Attorney and Prosecutor

342 Post Avenue

Westbury, NY 11590

FOR THE DEFENDANT:LAW OFFICES OF BERTRAM JORISCH

366 North Broadway

Jericho, NY 11753

Thomas F. Liotti, J.

Perhaps due to the publicity generated in this case,[FN1] the Court has received a letter request from defense counsel for increased security for himself and his client. This Court is concerned about the safety of the defendant, defense counsel, others in the court, court personnel, and [*2]itself.[FN2] The Court is well aware of both positive and negative opinions concerning its decisions. It respects the rights of all to agree, disagree or take no position at all.

This Court would require a metal detector and Court Officers to be placed in the courtroom or just outside of it. The Legislature created the Justice Court Assistance Program ("JCAP") in 1999 to provide critical financial assistance to towns and villages having Justice Courts in their communities (see L. 1999, c. 280). By that time, it had become clear that those Courts, funded locally, did not have the resources needed to meet increased reporting obligations, security demands and other responsibilities of a modern judiciary; and that, for those courts to remain viable institutions, some measure of supplementary State assistance was in order. Under JCAP, towns and villages were invited, on an annual basis, to apply to the Chief Administrative Judge for modest monetary grants to assist them in the purchase or procurement of computers, recording devices and other essential electronic equipment, small facilities' enhancements, training for their court personnel and legal materials for court use. The JCAP program covers up to $30,000 for a metal detector; however, JCAP procedure does not begin again until April, 2008 when the State Legislature passes the budget for the fiscal year. JCAP will not cover the cost of personnel additions, meaning that the Village of Westbury would have to foot the bill for Court Officers, as well as provide for training. As the security addition options are foreclosed to the Court at this time, the measures taken infra are justified for the security of the defendant, defense counsel, et alia.

Unfortunately, this Court has had some experience in dealing with individuals who have [*3]allegedly threatened or caused harm to lawyers,[FN3] elected officials,[FN4]or court personnel.[FN5] Their comments and actions obviously go beyond the pale of fair comment and appropriate First Amendment protection. There are others though whose conduct is borderline; where they are obsessed with an issue or a person; whose obsession consumes them to the point where they are pushed over the edge[FN6] beyond pandering to their electorate (if they are elected officials), and in [*4]some cases, into a delusional, episodic psychosis.[FN7] In this case, the racist rhetoric by or cowardly expression of persons, anonymous or not, will be reported to the police. When it comes to irrational behavior, the fact that this Court is just a lower Village Court with relatively minor matters before it is of no moment. This Court will not be intimidated into a renunciation of its opinions[FN8] and will never back down from them.

The hateful sentiments expressed by persons regarding non-citizens or undocumented Hispanic aliens, and that my previous decision on unlicenced operation of a motor vehicle somehow jeopardizes the foundations of civilization is an exaggeration beyond comparison and reinforces the Court's opinion that some of the views expressed are so out of proportion that they are racist and borderline delusional. One State Senator from Suffolk County, for example, called for my removal from the Bench without even having read my decision.[FN9] My decision does not pose a threat to our way of life; it is meant to enhance it by promoting safety on our highways. [*5]

Judging from some of the anonymous internet postings and letters which this Court is aware of or has received, I find that defense counsel's concerns about security are warranted. Fortunately, this Court has never had an incident of violence or even contemptuous behavior occur before it.[FN10] Our proceedings are largely uneventful, but when the Court makes a decision on legal issues before it as it did in this case, which some view as controversial, the frequency of communications and even anonymous threats directed at the Court or the parties increases.

This Court is mindful of the immortal words of Honorable Frank Santagata, the former Associate Justice of this Court for nearly thirty years, who often said that our judiciary must function "without fear or favor." This Court fondly remembers those words and strives to live by them.

When race and ethnic issues are involved, our country has shown its intolerance for minorities and its belligerence towards them. Abraham Lincoln was assassinated following the signing of the Emancipation Proclamation. John F. Kennedy, Medgar Evers, Robert F. Kennedy,[FN11] James Meredith,[FN12]and Martin Luther King, Jr. were all assassinated or assassination, [*6]in the case of Mr. Meredith, was attempted and each pioneered civil rights issues.

Justice Thurgood Marshall once wrote that "in recognizing the humanity of our fellow beings, we pay ourselves the highest tribute."[FN13] However, Justice Marshall also warned, "Even if all parties approach the court's mandate with the best of conscious intentions, ... that mandate requires them to confront and overcome their own racism on all levels a challenge I doubt all of them can meet."[FN14]

Fear is what enabled organizations like the Ku Klux Klan to flourish. Courage is what has essentially neutralized the effect of those groups.[FN15] As Dr. Martin Luther King, Jr. once said, "The ultimate tragedy is not the oppression and cruelty by the bad people but the silence over that by the good people." The fight against bigotry was not won quickly. Facing a tyrannical and oppressive system, people fought for their rights. It was a collaborative effort between the oppressed and those who took a stand to help them. They faced many failures along the way, but always persevered.

There is no accounting for the extremes to which some will go when they believe that their way of life is being threatened by foreigners or so-called undocumented illegal aliens. While this Court recently declared V.T.L. § 509-1, unlicensed operation of motor vehicles unconstitutional, this seemingly innocuous decision concerning safety on our highways, has fanned the fires of hatred and racism. This Court finds no difference in this extremism merely because it is occurring in the northeast rather than the ante bellum South.[FN16] Mississippi is not the only place where churches burn or where civil rights workers are killed or where lynch mobs gather. The migrant workers or poor Hispanics who often appear in this Court are not terrorists and pose no threat whatsoever to our form of government or national security. They are for the most part hard working, good people who have come here for a better life. They may be here illegally, but if given the choice, this Court believes that most would strive to become citizens [*7]and pay their taxes. But, we choose not to legalize them. Instead, we put barriers in the way.[FN17] Those who must work with their hands and backs, those with a darker skin tone or different features or who are shorter than us or do not speak our language may not fit neatly into our pristine, homogeneous communities, but why do they not deserve to be here? The feelings of nationalism and ethnocentricity keep them from being legalized. Instead of being three-fifths of a person as our Founders provided or as Justice Taney provided for in the abhorrent Dred Scott decision,[FN18] they are afforded no rights at all. In addition, they must fear arrest, deportation, eviction, and now, for their safety in our courthouses. While these issues are being debated in the ivory towers of Presidential debates and Lou Dobbs' television show, everyday people and courts of law must live with the miscalculations and errors in judgment by a government in Washington whose sole solution to this vexing problem is to build electronic fences at our borders, rather than dealing with the estimated 15-20 million undocumented aliens in this country and an estimated one million in New York State. "We have a lot of systemic, built-in bias and prejudice- not just against race, but against those others who are different than the majority of us in this country."[FN19] It is the oath and responsibility of this Court to endeavor to counteract such forces when those matters are before it.

While this Court does not have resources for increased security, it will not operate in secret either.[FN20] However, providing defense counsel furnishes the Court with an authorization to appear in his client's behalf and pay any fines that may be due thereon, all future appearances by this defendant will be excused unless defense counsel is otherwise notified. This Court is also ordering that the defendant's address shall be placed under seal and shall not be revealed to anyone without the Court's prior written order.

As for defense counsel, this Court will endeavor to provide for his security in a limited [*8]manner permitted by our budget. Those precautions are deliberately not set forth herein. The Court also again wishes to emphasize to our State government that Village and Town Courts have real security concerns that should be addressed forthwith and hopefully prior to any incidence of violence. The Village cannot afford to be saddled with additional costs for more security merely because its Court has decided a controversial legal issue. The State should act immediately to provide the necessary funds for equipment and personnel to ensure that safety in our court and all others is maintained.

Dated:Westbury, New York

February 12, 2008

ENTER:

___________________________

Hon. Thomas F. Liotti

Village Justice Footnotes

Footnote 1: See Bill Sanderson, Judge Gives Alien Pass On License, New York Post, December 21, 2007 at 19; Laura Rivera, LI Judge Enters The License Debate, Newsday, December 22, 2007 at A8; Editorial, Judge Liotti Legislates, New York Post, December 26, 2007 at 30; Peter Sloggat, Decision Reignites Debate On Licenses For Illegal Immigrants, Westbury Village Justice Declares State Requirements Unconstitutional, The Attorney of Nassau County, December, 2007 at 1 and 2; The Roundtable, a publication of the American Board of Criminal Lawyers, published an article about this decision in their January, 2008 edition; Francisco Manrique, No Dar Licencias Es Discriminacion, "Es Inconstitucional No Darle Licencia A Indocumentados," La Tribuna Hispana USA, January 2-8, 2008 at 1 and 19; New York's Driver License Scheme Declared Unconstitutional...For Discriminating Against Illegal Aliens, India Weekly, January 6, 2008 at 23 and Decisions of Interest, New York Law Journal, January 11, 2008 at 1, 25, 29 & 30, VTL §509 Violative of Equal Protection, Privileges And Immunities Clauses; §509-1 Charge Dismissed and Luis M. Mostacero, Juey defiende derechos de inmigrantes, Parte acusadora apelara decision ante corte de Nassau, February 5, 2008 at p. 6, Noticia Hispano Americana "Un gran periodico para una gran comunidad."

Footnote 2:See generally, Toobin, Jeffrey. "Death In Georgia." The New Yorker, February 4, 2008, p.32, detailing the 2005 escape of Brian Nichols, a defendant being retried on rape charges, involving the shooting of the judge trying his case, the court reporter, and a deputy sheriff, before hijacking five cars, killing a federal agent, and taking a hostage, before surrendering to authorities.

Footnote 3:Grievance Comm. for the Ninth Judicial Dist. v. Mogil (In re Mogil), 97-04366, Supreme Court of New York, Appellate Division, Second Department, 250 AD2d 343 (1998) LEXIS 13540, December 16, 1998, Decided; Suspension and prosecution for disbarment ordered by the Appellate Division ,Second Department (By Mangano, P.J.; Bracken, Rosenblatt, Miller and Ritter, J.J.). The Appellate Division, among other things, stated: "The respondent also committed actions involving dishonesty, fraud, deceit, or misrepresentation in that he repeatedly gave false testimony under oath to the Commission on Judicial Conduct during its investigation and reported false information to the Nassau County Police Department." See New York Law Journal, August 1, 1997 at 23; See also, Former Nassau County Court Judge B. Marc Mogil, Removed From The Bench in 1996 for His Bizarre Harassment of Garden City Attorney, Thomas F. Liotti, Has Been Disbarred, New York Law Journal, December 28, 1998 at 1 and 9; Matter of Mogil, 88 NY2d 749, 673 NE2d 896, 650 NYS2d 611 (1996).

See also, People v. Zavaro, 126 Misc 2d 237, 481 NYS2d 845 (Nassau County Court, 1984); See also, People v. John Barr, (Nassau County, Hon. Harold Collins, 1983). Zavaro was convicted of killing an attorney and Barr was initially implicated in the homicide of an attorney although not convicted of it.

Footnote 4:U.S. v. Gold, 790 F.2d 235 (1986). Psychiatric commitment hearing held and the Court determined that defendant was insane. The defendant had mailed thirty-eight machetes and derogatory letters to thirty-eight prominent politicians, including the President of the United States. An appeal was taken by the defendant and the Circuit determined that commitment orders are appealable.

Footnote 5:See People v. Curtis Harris, 160 AD2d 726 (1990). Defendant was charged with murder and while awaiting trial he and co-defendant attempted to escape from the courthouse. They were involved in a shoot out with Court Officers. Mr. Harris, was shot in the head during the melee. Several Court Officers were wounded. Mr. Harris went to trial on the murder charge and was convicted. He pled guilty to attempted escape, receiving a life sentence. His intentional murder charge was reversed on appeal.

Footnote 6:The Diagnostic and Statistical Manual of Mental Disorders (4th Edition) defines "obsessions" as: "persistent ideas, thoughts, impulses, or images that are experienced as intrusive and inappropriate and that cause marked anxiety or distress." The most common obsessions are "repeated thoughts of contamination...repeated doubts...a need to have things in a particular order...aggressive or horrific impulses..." DSM-IV, p. 456. This Court has received numerous threats, via telephone, letter, and the internet, for its prior decision in this case. This Court has no choice but to take these threats as credible, as they display the symptoms detailed in the DSM-IV. Many of the threats involved racial and political statements, and most were xenophobic and anti-immigrant in nature.

Footnote 7:This Court is reminded of Hon. Allard Lowenstein, former Congressman and ambassador, who was murdered in his New York law office by a deranged former campaign worker. See generally, Chafe, William H. Never Stop Running: Allard Lowenstein and the Struggle to Save American Liberalism. HarperCollins (New York), 1973.

Footnote 8:See, U.S. v. Bayless, 913 F. Supp. 232 (1996), where Judge Baer from our venerated Southern District of New York, suppressed evidence seized during a cocaine and heroin distribution conspiracy. The decision produced a public outcry particularly among politicians against Judge Baer. The Judge then recanted his decision on a motion to renew and reargue by the Government. Se U.S. v. Bayless, 921 F. Supp. 211 (1996).

The Bayless case eventually found its way to the Second Circuit Court of Appeals where Judge Guido Calabresi wrote the opinion of the Court, affirming the conviction. But the Court described the political pressure faced by Judge Baer including that he could be impeached. The Court held:

"Judge Baer's ruling immediately drew heavy criticism in the press and from local political figures, including New York's Mayor and Police Commissioner, as well as Governor George Pataki. See Chester L. Mirsky, The Exclusionary Rule Was Appropriately Used, Nat'l L.J., Feb 26, 1996 at A21. The decision itself, and the language in the opinion, referring as it did to widespread police corruption, was perceived by many as an affront to the police and to victims of drug-related crime. An editorial in the New York Times called Judge Baer's decision "judicial malpractice," and accused him of "undermin[ing] respect for the legal system, encourag[ing] citizens to flee the police and deter[ring] honest cops in drug-infested neighborhoods from doing their job." Judge Baer's Tortured Reasoning, NY Times, Jan. 31, 1996, at A16.

"In February, the government filed a motion for reconsideration of the order granting the suppression motion. The decision, however, continued to attract attention and quickly became the focus of a nationwide controversy and a flashpoint for the 1996 Presidential campaign, as Democrats and Republicans competed to enhance their reputations as proponents of law and order by denouncing Judge Baer. In early March, more than two hundred members of Congress, led by Republican Representatives Bill McCollum, Fred Ipton, and Michael Forbes, sent a letter to President Clinton calling Judge Baer's ruling "a shocking and egregious example of judicial activism." John O. Newman, The Judge Baer Controversy, 80 Judicature 156, 156 (1997). The letter claimed Judge Baer had "sid[ed] with drug traffickers and against hard-working police officers and the frightened residents of violence-ridden communities," and that he had "demonstrated a level of ideological blindness that render[ed] him unfit for the proper discharge of his judicial duties." Id. The writers asked President Clinton to join them in calling for Judge Baer's resignation. See id. at 157.

"When asked about the letter at a White House press conference, President Clinton's spokesperson Mike McCurry said that the President would defer deciding whether to call for Judge Baer's resignation until the Judge ruled on the government's motion for reconsideration, adding that, while the President would evaluate Judge Baer's record "on the full breadth of his cases," the White House was "interested in seeing how he rules" in response to the motion. Id. The press interpreted McCurry's comment as a veiled warning. For example, the New York Times reported that "[t]he White House put [Judge Baer] on public notice today that if he did not reverse a widely criticized decision throwing out drug evidence, the President might ask for his resignation." Alison Mitchell, Clinton Pushing Judge to Relent, NY Times, Mar. 22, 1996, at A1. Subsequently, in a written response to Rep. McCollum, the White House disavowed any intent to ask for Judge Baer's resignation, saying that the issues should be resolved in the courts. See Newman, The Judge Baer Controversy, supra , at 160. Then-Senate Majority Leader and Presidential candidate Bob Dole joined the fracas by saying that if Judge Baer did not resign, he should be impeached. See id."

This Court also recalls the tribulations of Supreme Court Justice William O. Douglas at the hands of Representative and future President Gerald R. Ford. Justice Douglas voiced his concerns regarding the Vietnam War in the late 1960's. Ford, then the House-Minority Leader, at the request of President Nixon, led impeachment hearings in 1970 against Justice Douglas, with himself as the main witness. When it became apparent that the impeachment move would fail, Ford ended the hearings and no vote was ever taken.

Footnote 9:See Rivera, Laura. LI Judge Enters The License Debate, Newsday, December 22, 2007 at A8;

Footnote 10:However, three cases of judges being assassinated for their judicial roles have been recorded in the twentieth century. In 1979, Judge John H. Wood of the United States District Court for the Western District of Texas was the first to be shot; known as "Maximum John" for his lengthy sentences, a drug trafficker placed a murder contract on the judge which was executed. In 1989, Judge Robert Vance of the United States Court of Appeals for the Eleventh Circuit was killed when a package containing a nail bomb was delivered to his home; the creator of the bomb had previously been sent to prison and was taking revenge on the judiciary as a whole. Closest to our area, in 1988, Judge Richard Daronco of the United States District Court for the Southern District of New York, was shot and killed outside his home doing yard work by a deranged ex-police officer defendant. Biographical Directory of Federal Judges, Federal Judicial Center.

Footnote 11:Hispanic civil rights leader Dolores Huerta, who worked with Cesar Chavez in forming the National Farm Workers Association, displayed concerns over RFK's security, and was on stage with him as he gave his victory speech in Los Angeles moments before he was shot. Huerta noted, "During this time we had so much violence around us. Cesar was always getting these death threats. I was very worried Bobby didn't have enough protection around him." Brokaw, Tom. BOOM! Voices of the Sixties. Random House (New York), 2007 at 422-23.

Footnote 12:Unfortunately, as this decision was being written, the Court learned of a tragedy in Kirkwood, Missouri where a disgruntled resident angered over alleged discrimination against him in his contracting business by City officials, entered City Hall during a public meeting there, shooting and killing five people, including two members of the City Council, before the police shot him dead. These and other irrational or psychotic reactions by some members of the public who are emotionally ill and unstable point to the need for security in the local courts. Even with some security in Kirkwood, two police officers and a Public Works Director were also killed. See, Gunman kills 5 at City Council meeting in Mo., Associated Press, February 8, 2008. See also, Man Is Given 25 Years in Prison for Firing a Rifle in Court, Associated Press, The New York Times, February 12, 2008 at B3. This extraordinary case in New City, New York involved a small claims case in a Village court in the upstate New York Village of Sloatsburg. The defendant, Leo Lewis, was convicted in December, 2007 of bringing a sawed off rifle into a Village Court and firing it, just missing the Judge, Hon. William Newman, by six inches. He was sentenced in February, 2008 to 25 years in prison. The sentencing Judge, Hon. Victor Alfieri stated at the time of sentencing that Mr. Lewis still posed a threat to Judge Newman and the defendant's adversary in the small claims case.

Footnote 13:Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726 (1972).

Footnote 14:Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986).

Footnote 15:See generally, Greenberg, Jack. Crusaders in the Courts. Harper Collins (New York), 1994.

Footnote 16:See generally, Winslow, Olivia and Barrios, Jennifer. "The Fight for Civil Rights: Seeking social justice in the world, and on Long Island." Newsday, Feb. 3, 2008, sec. G, p.6.

Footnote 17: See a book review by Thomas F. Liotti of Americans Without Law: The Racial Boundaries of Citizenship by Professor Mark S. Weiner, New York University Press (205 pp, $45.00). Lawyer's Bookshelf, New York Law Journal, January 18, 2008.

Footnote 18:Dred Scott v. Sanford, 60 U.S. 393 (1857).

Footnote 19:Morris Dees, of the Southern Poverty Law Center, in the keynote address at Utah Valley State College Twelfth Annual Martin Luther King, Jr. Commemoration in January, 2006.

Footnote 20: See Thomas F. Liotti, Closing The Courtroom To The Public: Whose Rights Are Violated? Brooklyn Law Review, Summer, 1997, 63 Brooklyn L. Rev. 501-506. This article analyzes the balance of First Amendment (access to the courtroom) and Fifth Amendment (right of confrontation) and Sixth Amendment (right to counsel) issues. The article addresses the circumstances under which the public and the press may be excluded from the courtroom. It also analyzes the legal impact of law enforcement witnesses testifying behind screens or otherwise not disclosing their identities to the defendant, his counsel, the audience in the courtroom or the press. Copyright © Brooklyn Law School 1997 Brooklyn Law Review Summer, 1997, 63 Brooklyn L. Rev. 501, 25061 words, The Second Circuit Review: 1996-97 Term. See Who's Who, The Attorney of Nassau County, March, 1998 at 2.