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New York Head Injury Attorney

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									                         L E G I S LAT I V E P R I O R I T I E S




                         New York State
                         Law Enforcement
                         Council


                         
                                                          New York State District
                                                          Attorneys Association


                                                          Attorney General of the
                                                          State of New York


                                                          Criminal Justice Coordinator
                                                          of the City of New York


                                                          New York State Association
                                                          of Chiefs of Police


                                                          New York State Sheriffs’
One Hogan Place
                                                          Association
New York, NY     
..                                              Citizens Crime Commission
.. f                                            of New York City
    TA B L E O F C O N T E N T S
     “ ”                           
  Penalize Unlicensed Drivers Who Cause               Non-Accidental Head Injury in Infants and
   Serious Injury or Death                               Young Children
  Enhance Penalties for Driving with a                Create a Felony Penalty for Reckless Assault
   Very High Blood Alcohol Level                       Include  in the Definition of Serious
  Stop Favoring Drivers Who Have Committed              Physical Injury
   Crimes in Other States                              NAHI is Already Recognized in New York and
  Expand the List of Those Who Can Draw Blood           Around the Nation
   from Drunk Drivers                                  Protection for Innocent Caretakers
  Enforce Existing Laws by Fingerprinting             Summary
   Unlicensed Drivers
                                                           
                         ,  ,  
                                                         
 Preventing Crime and Exonerating the Innocent        Businesses Support This Proposal
 Identifying Criminals                                When Business Records Are Needed in the
 Protecting Privacy                                     Grand Jury
 Saving Resources                                    Records Custodians Often Must Travel Long
                                                          Distances to Testify in Person
                                Economic Burden of Requiring a Live Witness
                                               Simply to Introduce Business Records
 The Unique Challenges of Methamphetamine            This Proposal Fits Squarely in Current New
 The Legislature Must Act Quickly                       York Law
 Punish the Manufacture of Methamphetamine
   and Other Controlled Substances as a Felony
 Criminalize the Possession of Precursors and
   Essential Chemicals with the Intent to
   Manufacture Methamphetamine
 Establish a Felony-Level Penalty for Engaging in
   Methamphetamine Manufacturing Activities
   Near Children
PREFACE


The New York State Law Enforcement Council           NYSLEC

                                                     New York State District
was formed in  as a legislative advocate         Attorneys Association
                                                     Kevin L. Wright
for New York’s law enforcement community.            President


The Council’s members represent the leading          Attorney General of
                                                     the State of New York
                                                     Eliot L. Spitzer
law enforcement professionals throughout the
                                                     Criminal Justice
State, including the Attorney General of the         Coordinator of the City
                                                     of New York
State of New York, the New York State District       John Feinblatt

                                                     New York State
Attorneys Association, the New York State            Association of Chiefs
                                                     of Police
Association of Chiefs of Police, the New York        Richard P. Carey
                                                     President
State Sheriffs’ Association, the New York City       John Grebert
                                                     Executive Director
Criminal Justice Coordinator, and the Citizens       John Poklemba
                                                     Counsel

Crime Commission of New York City. Since             New York State
                                                     Sheriffs’ Association
its inception, the Council has been an active        Peter Kehoe
                                                     Executive Director
voice and participant in improving the quality       Christopher O’Brien
                                                     Deputy Executive Director

of justice and in the continuing effort to provide   Citizens Crime
                                                     Commission of New
for a safer New York.                                York City
                                                     Thomas Reppetto
                                                     President

                                                     Counsel
                                                     Robert M. Morgenthau
                                                     District Attorney
                                                     New York County

                                                     Coordinator
                                                     Kristine Hamann
                                                     Office of the District
                                                     Attorney New York County
GET TOUGH ON            “ D E A D LY   DRIVERS”


New York had , traffic fatalities in . Of these,
% were alcohol-related, with % involving persons
with blood alcohol levels over .%. New Jersey, Rhode       
                                                              ’  
Island, Vermont, New Hampshire, Massachusetts, and             
                                                              , .. ’
Connecticut all had fewer fatalities per registered vehicle    ,
than New York. Additionally, New York had  pedes-            
                                                              :  
trian fatalities in . Only three states, Florida,           
California, and Texas, had more pedestrian fatalities.         
                                                                
    We must reduce New York’s traffic fatality rate by          
                                                                
keeping dangerous drivers off the road. New York’s             
laws fail to sanction drivers appropriately who violate       - ().

the law and cause serious physical injury or death. The       
                                                              Id.
almost-daily traffic accidents reported in the newspapers
attest to the fact that traffic safety is a problem in New
York that deserves the Legislature’s attention.

  




March , :
Van Driver Had DWAI Conviction; Girl Killed
in Skaneateles Crash was “Sensitive, Caring”




March , :
3 Killed in Car Accidents in Brooklyn and Queens
March , :
Driver Avoids a Felony Charge in Boy’s Death
November , :
Two Teenagers Die in L.I. Car Crash; Driver
Is Charged
                                                               The Council has chosen to highlight a few of the
                                                            many important “deadly driver” proposals that have
March , :                                              been discussed over the past several years.
Heartbreak at High School; Cold Spring Harbor
Students Returning from Vacation Learn Two                  We seek greater sanctions for the following types
Classmates Died in Accidents                                of deadly drivers:
December , :                                          • Unlicensed drivers who kill or seriously injure
DWI Charge in Crash That Injures 2                              another, and
                                                            • Drunk drivers with extremely high blood
                                                                alcohol content.


December , :                                          We also seek the following common-sense
“Drunk” Leaves Driver Fighting for Life                     amendments to make our roads safer:
                                                            • Drivers with prior out-of-state convictions for
                                                               driving while intoxicated must be treated the same
                                                               as drivers with prior New York State convictions.
November , :                                          • All licensed medical personnel must be allowed to
Alcohol Blamed in Several Holiday Crashes                      draw the blood of a drunk driver for the purposes
                                                               of testing for blood alcohol.
.....................................................       • Drivers convicted of Aggravated Unlicensed
                                                               Operation in the Third Degree must be
The Law Enforcement Council is pleased that two of             fingerprinted.
its  priorities, increasing the penalty for leaving
the scene of an accident involving death, and elimination       
of the criminal negligence requirement when drunk           Penalize Unlicensed Drivers Who Cause Serious
drivers cause serious injury or death, are poised to        Injury or Death
become law this year. With these new laws, the              When an unlicensed driver causes an accident and
Legislature has indicated that safe roads are a priority    seriously injures or kills someone, the victim’s family is
in New York. The legislation proposed below will send       often shocked to find that these drivers face the same
the message that deadly drivers will not be tolerated.      penalties as a driver who was driving without a license
                                                            but caused no injuries. Despite causing a serious
                                                            accident, a driver cannot be charged with the felony


                “             ”
crimes of vehicular assault or vehicular manslaughter         Leaving the Scene of an Incident without Reporting and, in
unless there is additional evidence of the driver’s crim-     relation to the unlicensed driving and accident, the misde-
inal negligence.                                              meanor of Aggravated Unlicensed Operation in the Second
    Criminal negligence is difficult to prove in a motor       Degree. People v. Mackay, New York County
vehicle collision case because independent witnesses          .....................................................

often do not see the actual collision, so no one can
describe exactly how the defendant was driving. Even          Enhance Penalties for Driving with a Very High
in those cases where evidence of criminal negligence is       Blood Alcohol Content
available, the legal standard of criminal negligence is       Drinking alcohol impairs reaction time, peripheral
complex and confusing to juries.                              vision, coordination, judgment, and the ability to
    Thus, some drivers are not held criminally respon-        concentrate. Over several decades, scientists have
sible in a way that is commensurate with their blatant        collected “overwhelming evidence showing that even
disregard for the law. Instead of facing prison time, as      s [Blood Alcohol Content] as low as .% impair
                                                                                                                            
is expected by families whose loved ones are killed or        driving skills.” These effects only worsen with higher       .. ,  ,
seriously injured by dangerous drivers, these drivers         blood alcohol levels.                                         ’ 
                                                                                                                             
can only be charged with misdemeanors. New York’s                 The average male with a blood alcohol content of          ,
                                                              .% has at least four drinks in his system, an amount           
statutes must recognize the enormous danger posed                                                                            
by unlicensed drivers and provide appropriate                 that most people would associate with unsafe driving.          , , 
                                                                                                                              (April ).
sanctions for those who cause serious injury or death.        On the other hand, if he had a blood alcohol content
.....................................................         of .%, he would have at least eight drinks in his
                                                                                                                            
Driver with 85 Suspensions Kills Pedestrian and Flees the     system. Since the body can process one drink per              ’ 
Scene: A New Jersey driver whose license had been             hour, a person with a  of .% either drank the             , ..,
                                                                                                                             
suspended eleven times in New York and 74 times in New        eight drinks within the past hour, or had about a dozen         
                                                              drinks within the last few hours.                             (Glen Evans ed., Facts
Jersey drove a car rented by his girlfriend into Washington                                                                 on File d ed. ).
Heights, where he struck and killed a man before fleeing the       Since the level of impairment increases signifi-
scene. The 42-year-old victim was flung onto the hood of       cantly with a high blood alcohol content, it is not
                                                                                                                            
the car and fractured his head on the windshield. After a     surprising that persons with higher blood alcohol             Zador, supra note .
long investigation, the defendant was identified through       content levels are more likely to be in accidents, and
                                                                                                                            
forensic evidence linking both him and the victim to the      more likely to be in an accident resulting in death. In      ’  
                                                                                                                             
same car. Despite the victim’s subsequent death, the defen-   , New York State witnessed  traffic fatalities in       , .. ’
dant could not be charged with any crime related to the       which at least one of the drivers in the accident had a        ,
                                                                                                                              
death of the pedestrian he struck. He was convicted only of   blood alcohol level of over .%. This accounts for          :  ().




                “             ”
                                                                                                      
                                                                                                           content. On the other hand, in New York a person                                         
                            Driving Abilities Impaired by Blood Alcohol Content                                                                                                                      Mothers Against Drunk
’                                                                                               convicted for driving with a  of two or three times                                    Driving, Statistics and
               (% in chart = Blood Alcohol Content)                                                                                                                                     Resources: High ,
, ..                                                                                       the legal limit faces the same penalty as a person                                        at
’  -                                                                                       driving at the legal limit of .%. New York’s law                                        http://www3.madd.org
,  ,                                                                                                                                                                                /laws/law.cfm?Law=
             .08%                                                                              should recognize the elevated risk that these drivers                                      (Apr. , ).
(April ).                                       Impaired: Concentrated attention, speed control        pose to themselves and to innocent drivers or pedes-
                         .07%
                                                                                                           trians. Driving with a high blood alcohol content
                         .06%                                                                              should carry higher penalties.
                                                    Impaired: Information processing, judgement
                         .05%
                                                    Impaired: Coordination
                         .04%                                                                                A Person with a Blood Alcohol Content of .15% or
                                                                                                             Higher is 88 Times as Likely to Be in a Car Accident
                                                    Impaired: Eye movement control, standing steadiness,
                         .03%                       emergency responses                                      as a Person with a Blood Alcohol Content of 0.0%                                       
                                                                                                                                                                                                     Zador, supra note ,
                                                    Impaired: Tracking and steering                                                                                                                  at . Data is for male
                         .02%
                                                                                                                                                                                                     drivers age -.
                                                                                                                                        100                                             (88.3)




                                                                                                            Risk of Accident Compared
                                                    Impaired: Attention, choice reaction time,
                         .01%                       visual function
                                                                                                                                        80




                                                                                                            to BAC of 0.0%
                                                                                                                                        60
                        half of the traffic fatalities in New York in which at
                        least one driver had consumed alcohol.                                                                          40

                             A person with a blood alcohol content over .% is                                                         20                              (12.74)
                                                                                                                                                  (6.25)
                        severely impaired. Although some alcoholics can
                                                                                                                                         0     .08% – .10%            .10% – .15%   .15% or Higher
                        mimic relatively normal speech or balance when
                        drunk, these drinkers are still impaired when it comes                                                                Blood Alcohol Content

                        to driving. The effects on the nervous system’s control
                        of factors such as vision and reaction time are involuntary
                        and cannot be controlled, even by an “experienced”
                        drinker. In fact, those who appear to walk and talk                                - 
                        normally after having many drinks are of special                                   Stop Favoring Drivers Who Have Committed Crimes
                        concern. These people are likely to be alcoholics, and                             in Other States
                        their schedule of regular drinking leads inevitably to                             Under Vehicle and Traffic Law Section , repeat
                        repeated incidents of drunken driving.                                             drunk or drugged drivers are subject to felony penalties.
                             Thirty-two states and Washington, D.C. have                                   However, these penalties only apply if the previous
                        additional penalties for drivers with high blood alcohol                           convictions were in New York. If the driver’s previous


                                        “             ”
                        convictions were in other states, he can only be                 A conviction for drunk or drugged driving in
                        charged with a misdemeanor. As a result, and contrary        another state should be considered a conviction for the
                        to other similar provisions of New York State law that       corresponding offense in New York. New York citizens
                        deal with repeat offenders, in-state drivers face stricter   have the right to be protected from repeat drunk
                        penalties than drivers with convictions in other states.     drivers, regardless of where the prior offense took
                             Under New York’s Criminal Procedure Law Article         place.
                        , prior felony convictions in other states are
                        considered when determining whether to sentence an           Expand the List of Those Who Can Draw Blood from

.. . . 
                        offender as a second felony offender, a second violent     Drunk Drivers
§ .()(b).         felony offender, or a second felony drug offender.       When a serious accident occurs, the police may suspect
                      Likewise, convictions for out-of-state crimes relating       that the driver is intoxicated. The officer may request,
.. . .     to sexual assault, including misdemeanors, are consid-       if the driver is being treated for injuries, that the
§ .()(b).
                        ered when requiring sex offenders to register in New         attending medical professional draw blood for the pur-

.. . . 
                        York. But in the Vehicle and Traffic Law, out-of-state      pose of testing for drugs or alcohol. This request may
§§ .()(b), (c).   convictions for impaired or intoxicated driving, even if     take place at a medical facility or at the scene of an
                      equivalent to a misdemeanor or felony offense in New         accident where emergency medical technicians are
.. .        York, are considered to be traffic infractions only, and      attending to the injured. Vehicle and Traffic Law
§ -a()(d).
                        cannot be used to charge a repeat drunk driver with          Section () lists the individuals who are permitted
                        a felony.                                                    to take blood for this purpose. Under this rule, only a
                             New York is bordered by five other states: New           doctor, a physician’s assistant, or a registered nurse may
                        Jersey, Connecticut, Pennsylvania, Vermont, and              take blood to test for alcohol or drugs. Others are
                        Massachusetts. Many residents from these states work         permitted to take blood only under the supervision of
                        in New York or come to New York for entertainment.           a physician.
                        This entertainment can involve drinking or drugs.                Because of the restrictions listed in Vehicle and
                        These drivers, if repeat offenders in their own jurisdic-    Traffic Law Section (), individuals who are
                        tions, should not face lesser penalties than those with      trained to draw blood and do so independently on a
                        prior convictions in New York. Likewise, New York            daily basis, such as emergency medical technicians
                        residents who work or socialize in neighboring states        or phlebotomists, cannot take blood without the
                        may have previous convictions for  there. These           supervision of a physician. If a phlebotomist, a profes-
                        offenders also deserve to face appropriate enhanced          sional trained in drawing blood, takes blood while
                        sanctions for repeat offenses.                               a physician is not present, this blood cannot be used



                                     “             ”
to prove that the driver was drunk or drugged. The                                   compelled by the statute to uphold the suppression of the
safety of New Yorkers is put in jeopardy by this                                     evidence. The appellate judges called on the Legislature to
needless restriction that allows drunk drivers to escape                             amend the statute to remedy what they saw as an unneces-
prosecution.                                                                         sary restriction in the law.                                 
                                                                                                                                                    “The People and am-
.....................................................                                .....................................................          icus curiae, New York
                                                                                                                                                    State Society of
Drunk Driver Faces No Penalty for Killing Former Olympian:                                                                                          Physician Assistants,
Jack Shea, a double Olympic gold medallist and 91-year-old                           Enforce Existing Laws by Fingerprinting                        argue that pursuant
                                                                                                                                                    to Education Law §
patriarch of a three-generation Olympic family, was killed                           Unlicensed Drivers                                             (), physician
on January 23, 2002 in a collision with a drunk driver.                              Drivers routinely disregard the law by continuing to           assistants, when prac-
                                                                                                                                                    ticing under the super-
Although            the        driver        was        indicted   for   vehicular   drive despite multiple license suspensions. In ,           vision of a physician,
                                                                                                                                                    may do everything
manslaughter, criminally negligent homicide, and driving                             New York City alone saw , arrests for Aggravated          that the physician
while intoxicated, ultimately the district attorney could not                        Unlicensed Operation.                                          could do and, thus,
                                                                                                                                                    the physician assistant
present proof of the driver’s blood alcohol content and the case                         Research indicates that drivers with suspended or          ought to be able to
was dismissed. The blood was drawn at a small regional clinic                        revoked licenses are nearly four times as likely to be         direct and supervise
                                                                                                                                                    the drawing of blood…
where the victim and the drunk driver were brought for treat-                        involved in traffic accidents as those with valid licenses.   We acknowledge that
                                                                                                                                                    this is a compelling
ment after the accident. No doctor was on duty to supervise                          According to federal data, % of drivers involved in          policy argument…
the drawing of the blood, only a physician’s assistant. As Jack                      fatal crashes in New York possessed an invalid license.        To the extent that the
                                                                                                                                                    statute, as written,
Shea was the more severely injured of the two men and in                             Of these, % had previously been involved in crashes,         fails to advance these
need of immediate medical attention, both the physician’s as-                        and % had previous speeding convictions. Getting           objectives, the solution
                                                                                                                                                    is…for the Legislature
sistant and the registered nurse at the clinic were occupied                         these drivers off the road could save hundreds of lives.       to adopt an appro-
                                                                                                                                                    priate amendment
with treating him. When the police officer requested that                                 The Legislature has recognized the serious nature          thereto.” People v.
blood be drawn from the driver, both the physician’s assistant                       of repeat offenders who drive with suspended licenses          Reynolds,  A.D.d
                                                                                                                                                    , - (d Dept.
and the nurse directed an emergency medical technician to                            by enacting enhanced penalties for repeat offenders            ).
draw the blood. The driver consented to the blood test, which                        and for those driving with multiple suspensions.
                                                                                                                                                    
showed a blood alcohol content of .15%, and the physician’s                          Unfortunately, these enhanced crimes are virtually             D DeYoung, R Peck,
                                                                                                                                                    and C Helander,
assistant later testified that there was no danger to the driver                      unenforceable, because individuals convicted of a first         Estimating the Exposure
in drawing the blood. Nonetheless, in October 2002, the                              offense of Aggravated Unlicensed Operation in the              and Fatal Crash Rates
                                                                                                                                                    of Suspended/Revoked
judge in the case ruled that the blood alcohol test was                              Third Degree are not fingerprinted. As a result, it is          and Unlicensed Drivers
illegally administered because it was not supervised by a                            nearly impossible to identify those with prior convic-         in California,
                                                                                                                                                      
physician, and all charges were dismissed. Although the                              tions, and almost as difficult to determine the number            -
                                                                                                                                                    ().
district attorney appealed the ruling, the appellate court felt                      of suspensions a driver has.




                “             ”
                                                                                            exceptions for laws for which a prior conviction brings
 
                          Unlicensed Drivers are More Likely to Be Involved                   an enhanced penalty. For example, any crime outside
  
,  ’        In Fatal Crashes (Estimated Likelihood of Being in
                                                                                              the Penal Law for which a repeat offense would be a
 ,        a Fatal Crash per 100,000 Residents) 
Fatality Analysis                                                                             felony requires a fingerprint. In addition, a conviction
Reporting System
Web-Based                                                                                     for the violation of loitering for the purpose of prosti-
Encyclopedia, at:              70
                                                                                    (65)
                                                                                              tution requires fingerprinting, because a repeat
http://www-
fars.nhtsa.dot.gov.            60                                                             violation for this crime is enhanced to a B misde-

                                                                                              meanor. In each of these cases, the fingerprinting is       
                                                                                                                                                           ..  
                               50                                  (49)
Estimated from                                                                                required to identify the repeat offenders who fall under     § .().
California census data         40
at www.census.gov and                                                                         the elevated statute. Unfortunately, no similar law
California accident                                                                           allows fingerprinting of the B misdemeanor of
                               30
data at www-
fars.nhtsa.dot.gov,                        (13)                                               Aggravated Unlicensed Operation in the Third Degree,
and DeYoung, supra             10
note .
                                                                                              even though a repeat offense constitutes the higher A
                                        Licensed             Suspended or        No License   misdemeanor of Aggravated Unlicensed Operation
                                         Drivers            Revoked License
                                                                                              in the Second Degree. Those who are repeatedly
                             Unlike in the criminal justice system, where defen-              convicted of unlicensed driving, and who are four
                         dants are identified by their fingerprints, at the                   times more likely to be in traffic accidents, pose a
                         Department of Motor Vehicles, drivers are identified                  significant risk to public safety. They should not be
                         by name and address. Drivers with common names,                      treated more leniently than prostitutes.
                         many addresses, or multiple entries with minor                           As long as New York’s laws continue to treat repeat
                         variations in their names, are all capable of avoiding               unlicensed driving as a minor offense, so will New
                         the current penalties associated with driving with                   York’s drivers, and unlicensed driving will only
                         multiple suspensions. It is conceivable that an unli-                increase. Without fingerprinting drivers with repeat
                         censed driver could be involved in two separate crashes              suspensions have little to fear from law enforcement.
                         causing fatalities, and the prosecutor investigating the
                         second crash would never find out about the first. This                Act Now to Prevent Future Deaths and Injuries
                         repeat offender who caused two deaths would not be                   The Law Enforcement Council urges the Legislature to
                         sentenced as a repeat offender and could be punished                 act swiftly on these important proposals. The passage

                         by as little as a  fine.                                        of these “deadly driver” priorities will save the citizens
.. .  . 
§ ()(b).                 In general, fingerprints are not required upon                    of this state from countless automobile-related deaths
                         conviction of a violation or a non-Penal Law misde-                  and injuries. The problem is clear and the solution is
                         meanor. However, the Legislature has made certain                    known: All that is needed is legislative action. New
                                                                                              Yorkers deserve to be protected from deadly drivers.

                                      “             ”
E X PA N D T H E S TAT E D N A
I D E N T I F I C AT I O N I N D E X


New York’s  Identification Index has identified
nearly  offenders, while significantly reducing the
likelihood of wrongly convicting a suspect. However,
the full potential of  cannot be realized until the
Index, New York’s databank of convicted offender
, is expanded to include all crimes.


If New York’s DNA Identification Index were expanded
to include all criminal convictions, the number of violent
felonies solved through the DNA Identification Index
would increase by 70%.

    The Legislature has long recognized the impor-
tance of  in solving serious crimes. Upon the data-     
bank’s most recent expansion in , Governor Pataki      Press Release, Office
                                                           of Governor George
announced that “requiring more convicted criminals         Pataki, Governor,
                                                           Speaker, Senate
to submit a  sample will allow our law enforcement      Majority Leader
professionals to solve more tough cases and catch          Announce Agreement
                                                           on Bill to Expand
criminals before they commit more crimes.” Senate           Databank
Majority Leader Joe Bruno echoed this sentiment,           (June , ).

saying, “The expansion of the  databank is critically   
                                                           Press Release, Office
important to enhance it as a tool for law enforcement      of Assembly Speaker
to catch and prosecute violent criminals and make our      Sheldon Silver,
                                                           Assembly to Take
communities more safe.” Assembly Speaker Sheldon          Up Expansion of
Silver remarked, “ has revolutionized the way crimes    Sexual Offender
                                                            Database
are investigated and prosecuted in New York State.”       (June , ).
                            Last year, the Legislature expanded the state’s                       future investigations. The limited scope of New York’s
                        Identification Index to include samples from defen-                            databank prevents law enforcement from effec-
                        dants convicted of nearly  new crimes, including                        tively fulfilling its primary responsibility – to prevent

Chapter , -
                        misdemeanors. Nonetheless, hundreds of thousands                            crime.
Session.                of convicted criminals continue to pass through the
                        criminal justice system each year without having to
                        provide  samples. Because of the state-imposed                              Less than half of Penal Law offenses require a
                        limits on taking  samples from criminals, every day                         submission to the databank. Only a handful of
                        we miss countless opportunities to solve crimes and to                         misdemeanors require a submission to the databank.
                        prevent future crimes from occurring.
                                                                                                                                                                           DNA
                                                                                                                                                                       Misdemeanors
                         ’                                                                                                                  6%

                        
                        If New York’s  Identification Index were
                        expanded to include all criminal convictions, the                                   Non-DNA                                            Non-DNA
                                                                                                             Felonies          DNA Felonies                  Misdemeanors
                        number of violent felonies solved through the Index                                                       48%
                                                                                                               54%                                               94%
4                       would increase by %. However, the databank only
 ,
 . ,     contains  samples from offenders convicted of
 .  ,
...  
                        % of the felonies and % of the misdemeanors listed
         in the Penal Law. Under current law, only a “designated
, 
        offender,” as defined in Executive Law Section ,                           .....................................................
            must donate a sample to the New York State                                1997 Rapist Remains Free Despite Thirteen Convictions
  
(Jan. ).            Identification Index. It is only this limited group of                        After the Rape: In June 1997, a 29-year-old woman coming
                        “designated offenders” whose samples are regularly                           home from a night out was approached from behind, forced
                        compared to  from unsolved crimes. This is a                              into her building, and raped on the floor of her vestibule by
                        dangerously incomplete system.                                               Kevin White. At that time, White had twelve prior misde-
                            Because the group of convicted offenders who                             meanor convictions, mostly for “non-violent” thefts and
                        must provide  samples is limited, many violent                            marijuana sales, but could not be linked to the rape through
                        crimes cannot be solved through . Even multiple                           fingerprints or photographs. Between 1999, when the DNA
                        recidivists pass through the criminal justice system                         databank went into effect, and 2000, White was convicted
                        without having to submit a  sample, therefore                             four times for selling marijuana and once for criminal
                        impeding law enforcement’s ability to identify them in


                                                            
                          mischief. His DNA was not taken for any of these offenses, so                      When the Legislature created the  databank in
                          he could not be identified as the rapist through the databank.                  , the law was targeted at taking the  of those
                                                                                                                                                                         
                          In 2000, a police officer witnessed White reaching for a switch-                convicted of murder and sexual assault. However, in            Chapter ,
                          blade during an argument on the street. White was convicted                    , the law was amended to require a  specimen             - Session
                          of Criminal Possession of a Weapon in the Third Degree, an of-                 from persons convicted of any violent felony offense as
                          fense that at the time did not require the submission of a                     defined in Penal Law Section ., in addition to
                          sample to the DNA databank. He was subsequently convicted                      other “non-violent” crimes. The effect of the              
                                                                                                                                                                         Chapter , -
                          of resisting arrest in 2001 and another five times in 2002 of                   amendment, which expanded the databank to crimes                 Session.
                          selling marijuana. His DNA was still not taken, and he was still               such as robbery, burglary, larceny, drug sale, assault,
                          not connected to the rape. In 2003 White was finally linked to                  and weapon possession, was dramatic. Had the 
                          the 1997 rape after he was identified by a new victim as the                    databank been limited to only murderers and rapists,
                          man who broke into her home, robbed, and violently sexually                    as originally proposed, the number of hits would be
                          assaulted her. This crime, and the twelve others that White                    closer to  rather than .
                          committed since 1999, could have been prevented if White
                          had been required to give DNA for his “non-violent” offenses.                   Increases in Convicted Offender Samples
                                                                                                                                                                         8
                          People v. White, New York County                                                Correspond with Increases in Crimes Solved                      
                          .....................................................                                                                                          , ..
                                                                                                                                                                         ’  ,
                                                                                                          8000
                                                                                                                                                                          ’  
                                                                                                                                                                          
                                                                             6000
                                                                                                                            (6257)
                                                                                                                                              1500                       (). 
                                                                                                                                                               (1396)
                                                                                                                                                                -
                                                                                                          4000                                1000                       , .. ’
                          An Expanded DNA Databank Will Prevent Crimes                                                                                                    , 
                          Expansion of the  databank ensures that criminals                            2000                                 500                        
                                                                                                                 (1116)                              (363)                (),
                          are in the system at the outset of their criminal careers                              1999       2002                     1999      2002
                                                                                                                                                                         available at:
                                                                                                                                                                         http://www.fbi.gov/hq
                          so that those who choose to re-offend will be identified                                FBI Convicted Offender              FBI Crimes Solved   /lab/labannual02.pdf.
                          quickly and with greater certainty. In New York, of the                                Profiles Increased by 460%          Increased by 270%

                           offenders linked to sexual assault cases through a
                           databank hit, over % were required to be                                     The law was amended again in July  to
                          included in the databank based on a prior conviction                           include additional felonies, plus all misdemeanors that
                         for other than a sex-related offense. New York’s expe-                        require registration on the state Sex Offender Registry.
E-mail from John
Hicks, Director, ...   rience proves that  databank expansion will lead to                         In the first month after the new provisions went into
 Databank
(Apr. , )
                          the earlier apprehension of criminals and the preven-                          effect, eight rapes (one dating back to ), a homi-
(on file with ).        tion of future crimes.                                                         cide, and a robbery were linked to offenders who had


                                                                
                          been convicted of the newly -qualifying offense                             string of burglaries in Queens, but he left behind DNA on
9                         of Robbery in the Third Degree. If the databank were                          scarves at two scenes, shoes at another, a blood stain at
E-mail from John
Hicks, Director,          expanded to include all crimes, the results would be                           another, and flakes of skin left on a knife he used to prop
...  Databank                                                                                      open the window of the fifth scene, a church. Medina even-
(Apr. , )
                          even more dramatic.
(on file with ).                                                                                       tually was arrested again on January 31, 2004, after he was
                          Solving Burglaries                                                             caught breaking into a parked car. A fingerprint match tied
                               The  databank can be used to solve a wide                              him to the 2003 drug sale conviction and he finally was
                          variety of crimes, not just rapes and homicides. A new                         required to submit his DNA to the databank in connection
                          pilot project in Queens County funded by the                                   with that crime. The DNA connected him to the five burglaries.
                          National Institute of Justice has shown the high                               Medina pleaded guilty to five counts of second-degree            
                                                                                                                                                                         resource.com,
                          potential for success in identifying suspects in burglary                      burglary and was sentenced to concurrent sentences of           State  Database
                                                                                                         eight years' imprisonment. People v. Medina, Queens County      Laws Qualifying
                          crimes. Over ten months, police collected  samples                                                                                          Offenses as of
                          of testable  evidence from burglary crime scenes.                           .....................................................           December , at
                                                                                                                                                                         http://www.dnare-
                          Of these samples, % matched an offender in the                                                                                               source.com/Table%
                          database. Eight of the identified offenders were                               Other States                                                    of%State%%
                                                                                                                                                                         Laws%-
                          matched to multiple burglaries, one of whom com-                               Thirty-eight states are now collecting  from all             %.pdf
                                                                                                         convicted felons. Twenty-seven, including New York,             (visited Mar. ,
                          mitted five burglaries in seven days. In both New York                                                                                          ).
                          City, where crimes against property account for % of                         are now collecting  from at least some misde-
                          all crimes reported in the ’s Uniform Crime Index,                          meanants. Recent experience in these states has shown         
                                                                                                                                                                         Richard Willing,
                          and the remainder of the state, where property crimes                          that  collected from non-violent offenders has               Collection of Prisoner
                                                                                                                                                                         DNA Widens, 
                          account for % of all  Uniform Crime Index                                 resulted in the resolution of violent crimes. Virginia,         , May , ,

... Division of
                          crimes, a  databank that included samples from                            which has collected  since , has linked               at A.

Criminal Justice          all convicted felons and misdemeanants would be a                              from allegedly “non-violent” forgers and drug felons            
Services, Index Crimes
Reported: -,      crucial tool to reduce these serious crimes.                                   to rapes and murders. According to the Virginia               Commonwealth
                                                                                                                                                                         of Virginia Dep’t of
at                                                                                                       Department of Criminal Justice Services, only % of            Criminal Justice
http://criminaljustice.                                                                                                                                                  Services, 
state.ny.us/crimnet/      .....................................................                          their nearly , hits would have been made if the             Databank Statistics
ojsa/indexcrimes/                                                                                        database was limited to only violent offenders. Only            (), at
                          Serial Burglar Caught Through DNA: Although Robert
region_totals.htm                                                                                                                                                        http://www.dcjs.
(last updated Feb. ,     Medina was convicted of a drug sale, a DNA Index offense,                      % of Virginia’s offenders contributing to the databank         virginia.gov/forensic/
).                                                                                                                                                                   information/dna.cfm?
                          in January 2003, he absconded before sentencing and                            were previously convicted of a sexual assault, but %          menuLevel=1.
                          before his DNA could be taken. Meanwhile, he committed a                       of the crimes solved or assisted were sexual assaults.        (visited Apr. , ).




                                                                
DNA Analysis Will Exonerate the Innocent                                       identifications.  discovered at a crime scene is
The expansion of the databank will protect the                                 analyzed at a forensic laboratory, which develops a
innocent. The more convicted offender samples that                             “profile.” This profile is then matched to profiles of
are in the databank, the more likely it is that innocent                       known individuals in the  Identification Index. In
suspects will avoid arrest and conviction. As                               addition, the police may test the crime scene profile
testing has become faster, a person mistakenly accused                         against  taken from a person who is not in the
can be exonerated in weeks, rather than in the months                          Index, if that person voluntarily submits to the testing
and years required in the past.                                                or if the police obtain a search warrant.  from a
                                                                               victim may also be used as evidence in a trial, if, for
.....................................................                          instance, the victim’s  is found on an article of
Innocent Suspect Exonerated of B Violent Felony: In 2001,                      clothing owned by the defendant.
a man broke into an apartment, threatened the residents,
including children, with a knife, and demanded money and                       Comparing Crime Scene DNA and Convicted
jewelry. A suspect was arrested, identified by the victim, and                  Offender DNA
charged with Burglary in the First Degree. However, the                        Each month, the  profiles collected from crime
assistant district attorney was unsure about the identifica-                    scenes around the state are sent to the Police Forensic
tion and requested a DNA confirmation using blood left                          Investigation Center for comparison to the 
by the burglar at the scene. The DNA did not match the                         Identification Index. Here, trained scientists determine
arrested suspect, but instead identified a multiple violent                     whether  from any crime scene around the state
felon. As a result, the innocent suspect was freed and the                     matches  from a convicted offender. When such a
true burglar pled guilty and was sentenced as a persistent                     match occurs, it is known as a “hit.” The  “hit” is
offender to an indeterminate prison sentence of from                           communicated to local law enforcement officials, who
thirteen years to life. People v. Roberson, New York County                    independently confirm the results before proceeding
.....................................................                          further. In the five years since New York began
                                                                               entering and searching -profile data, there have         
                                                           been , convicted offender hits from the state data-    ... Division of
                                                                                                                                          Criminal Justice
How Offenders Are Identified Using DNA                                          bank. As more convicted offender samples are added       Services, 
DNA identifications are just like fingerprint identifica-                         to the databank, identification and exoneration of          Databank Statistics, at
                                                                                                                                          http://criminaljustice.
tions. When police find a fingerprint at a crime scene,                          suspects will increase.                                    state.ny.us/forensic/
                                                                                                                                          dnabrochure.htm#B
they try to match it to a fingerprint taken from a                                  In addition to solving crimes on the state level,      (last updated Apr. ,
known individual. The same procedure is used in                              profiles obtained from crime scenes and convicted       ).




                                      
                             offenders are shared with the Federal Bureau of                              ically picked for their tendency to be unique among
                             Investigation’s Combined  Index System ().                           individuals. In addition, these small portions of 
                             Through this sharing,  collected in New York can                          were chosen because they are considered “junk” 
                             be matched to other crime scenes or profile informa-                          that do not determine any known physical traits.
                             tion collected by the  or any of the other  states,

Federal Bureau of
                             Puerto Rico, and the U.S. Army. So far, there have                          
Investigation,  -       been  convicted offender and forensic hits in New                         DNA Samples Are Protected by Law and in Practice
Participating States, at
http://www.fbi.gov/          York State from the national  Index System.                             The information obtained from a  identification
hq/lab/codis/partstates.                                                                                  analysis is only useful for comparing  samples to
htm
(visited Mar. ,            What Is DNA?                                                                 one another. It cannot be used to tell physical traits of
).
                             DNA, deoxyribonucleic acid, is found in every cell of                        a person or to identify any genetic diseases carried by a
                           every person.  consists of a chain of four different                      person.
 Databank
Statistics, supra note .   chemical compounds (adenine, guanine, cytosine, and
                             thiamine) that appear in pairs known as base pairs.                          A DNA Databank Profile Contains No Information
                             The order of a person’s base pairs determines his or her                     About a Person’s Physical Traits
                             physical traits. Scientists have determined which
                             segments of  are responsible for certain physical                         Locus     D3S158     vWA      FGA     D8S1179    D21S11
                                                                                                          Alleles    11,12     11,13    24,26    12,14      28,30
                             traits, such as being male or female, or being prone
                                                                                                          Locus     D18S51    D5S818 D13S317    D7S820    D16S539
                             to some genetic diseases. However, there are many                            Alleles    15,16      13    11,13      9,11        11
                             segments of  whose function has not been deter-
                                                                                                          Locus      TH01     TPOX     CSF1PO
                             mined. In fact, scientists believe that some segments                        Alleles     8        9,11     11,12

                             of  may actually be “turned off,” or inactive,
                             contributing nothing to a person’s physical traits.                           collected by law enforcement is used exclusively to
                             These segments are sometimes known as “junk” .                            identify and prosecute criminals. The records kept by the
                                  A single person’s  contains approximately three                      Division of Criminal Justice Services in the 
                             billion base pairs. Scientists using  to establish the                    Identification Index are never used for other purposes, nor
                             identity of an offender take a tiny percentage of a                          are they shared with other government agencies
                             person’s  and catalogue the order of the base pairs.                      or companies, except for law enforcement officials
                             Only  base pairs, or less than one-millionth of the                       investigating a related criminal case. The security of the
                             total, are catalogued in the creation of a  profile.                        Identification Index is protected by law. An unautho-
                             The pieces of  used to create a profile were specif-                       rized disclosure of a  record in the Index is an E felony.



                                                                 
 
DNA Analysis Saves Investigative Resources
Through an expanded state and national  data-
bank, law enforcement will save precious time and
resources by utilizing defendant  in a wider variety
of cases. The number of hits will increase exponentially
as the databank grows. Police with  evidence can
narrowly focus their investigative efforts by quickly
implicating or eliminating potential suspects. The cost
of running down futile leads will be significantly
reduced.

DNA Analysis Has Become More Efficient and
Less Expensive
Although an expansion to include all convicted
offenders might quadruple the number of profiles to
over , per year, the science of  analysis is
becoming less expensive. The exorbitant costs associ-
ated with this science are a thing of the past. The
evolving science of  has dramatically lowered the
processing time for a single profile from six weeks to
about one day.




                                    
C O M B AT M E T H A M P H E TA M I N E
MANUFACTURE


The Law Enforcement Council urges the passage of
legislation targeting the growing threat of metham-
phetamine manufacture. In particular, the Council
urges immediate legislative action that will:

•   Penalize the possession of precursors with the
    intent to manufacture methamphetamine.
•   Criminalize the manufacture of methamphetamine.
•   Create specific statutes to address the dangers
    posed to children in methamphetamine labs.
•   Enhance the penalties for the theft of anhydrous
    ammonia.

Standing well to the east of a wave of methamphetamine
(“meth”) use that has swept across the rest of the country
has allowed us to understand better the nature of the
threat. We now know that we must act immediately to
prevent the spread of meth in New York. As the State
Commission of Investigation noted in its exhaustive study,
Methamphetamine Use & Manufacture, “Based upon a
comprehensive review of this matter, the Commission
concludes that the use and manufacture of methampheta-
                                                             
mine is a severe and urgent threat to New York State.”        
                                                              
                                                             ,
                                        
                                                ,
                                                             at v (January ).
Meth Ingredients Can Be Bought Over the Counter
Methamphetamine is a synthetic drug, requiring
unique approaches by law enforcement that do not
                          apply to more traditional crimes of drug trafficking                   Meth Use Is Associated with Violence                                           
                                                                                                                                                                              Lonnie Wright,
’          and use. Meth users can make the drug themselves,                     Methamphetamine users can be particularly violent                              Director, Oklahoma
 , ..                                                                                                                                                               Bureau of Narcotics
’  ,
                          using a host of chemicals and equipment that they can                 due to the physical and psychological effects of the                           and Dangerous Drugs
 , ,      purchase at grocery stores, gas stations or pharmacies.               drug. In particular, scientists have seen in some addicts                      Control, Statement
:, Jun. ,                                                                                                                                                               before the House
available at              A successful law enforcement response to this drug                    the condition of methamphetamine psychosis, which                              Committee on
www.drugabuse.gov/        epidemic requires criminalizing this manufacture and                  may be “pure paranoid psychosis or may mimic schiz-                            Government Reform,
–Notes/NNVol                                                                                                                                                             Subcommittee on
N1/comparing.html.        the steps leading up to it.                                           ophrenia.” Because of the value – both from an ad-                            Criminal Justice,
                                                                                                                                                                               Drug Policy and

                                                                                                dictive and a financial standpoint – of their clandestine                       Human Resources
David Crary, Gays         Meth Is Highly Addictive                                              lab operations, meth cooks often store or carry guns                           (Nov. , ).
Mobilize Against Meth
Addiction,      Methamphetamine use produces physiological and                        and deploy booby-traps at their labs. The New York                             
, Apr. 4, .      psychological effects that are stronger than most other               State Police reported that, as of April , weapons                          Alan I. Leshner, Ph.
                                                                                                                                                                               D., Director, National
                         drugs, including cocaine. As one psychotherapist                     were found in  of  labs.                                                 Institute on Drug
Press Release,                                                                                  .....................................................                          Abuse, Address to the
American Chemical
                          recently noted, he “has yet to encounter anyone who                                                                                                  National
Society, Chemists         can use meth recreationally without developing an                     Paranoid Meth Cook Commits Murder: In 2004, David Lowin,                       Methamphetamine
Identify Immune                                                                                                                                                                Drug Conference
System Mechanism          addiction.” Recent research findings indicate how                     a meth cook, was convicted of Tioga County's first murder                       (May -, ),
for Methamphetamine       meth may trigger the body’s immune system to recog-                   case in almost four years.                       He compensated friends with   available at:
Binges (Mar. , ),                                                                                                                                                        http://www.ncjrs.org/
available at              nize the drug and induce the strong tolerance that                    meth to guard his lab-trailer while he slept following long                    ondcppubs/
http:www.eurekalert.
org/pub_releases/
                          requires ever-higher concentrations of the drug. As                  periods of use and he “frequently suspected people of
                                                                                                                                                                               publications/drug-
                                                                                                                                                                               fact/methconf/
2005-03/acs-              one researcher explained, people who abuse meth “may                  stealing from him.” His paranoia eventually led him to                        plenary2.html.
ii030705.php.
                          be vaccinating themselves against the drug.”                         execute Leo Camp Jr., whom he suspected of stealing anhy-                      
                              The strength of addiction to methamphetamine                     drous ammonia, in October 2003. Lowin was found guilty of                        
Jason Socrates Bardi,                                                                                                                                                           
A New Wrinkle in          explains how, as one law enforcement official                         twelve charges, including murder, criminal possession of                       ,
Methamphetamine                                                                                                                                                                supra note , at .
Abuse: Immune
                          explained, meth crimes “are not economic based                        stolen property and criminal possession of a weapon. In
Tolerance,          crimes, but rather addiction based crimes.” As a prac-               December 2004, he received a prison sentence of from 25 2/3                    
:                                                                                                                                                             Kara M. Conners,
              tical matter, meth manufacturers, or “cooks,” who                     years to life. People v. Lowin, Tioga County                                 Witness: Lowin
         engage in these crimes to support their own addiction                 .....................................................                          Worried About Thieves,
(Sept. , ), at                                                                                                                                                              --
http://www.scripps.       are more likely to re-offend within a short period of                                                                                                , Sep. , .,
edu/newsandviews/                                                                                                                                                              at B.
e_/janda.
                          time and be driven back to the drug without laws that                     
html.                     deter them strongly.                                                  Recent newspaper editorials from across the state echo                         
                                                                                                                                                                               Kara M. Conners,
                                                                                                the Law Enforcement Council’s concern that legisla-                            Lowin Sentenced in
                                                                                                tive action be taken quickly to fill the loopholes in                           Tioga Murder, 
                                                                                                                                                                                 -,
                                                                                                New York’s statutes regarding meth manufacture.                                Dec. , , at C.




                                                           
“New York may have the opportunity to slow the                           
spread of meth before the problem reaches the level it                  
has elsewhere in the country.”                                            
The Daily Star (Oneonta), March ,                               The Law Enforcement Council urges the creation of
                                                                      felony-level penalties for the manufacture of controlled
“Stiffer penalties for possession of [anhydrous                       substances. New York is the only state in the nation
                                                                                                                                      
ammonia] are warranted… [O]nce viable legal options                   without this essential law. As a result, effective prosecu-     
are identified, it is time for lawmakers to act by                     tion of meth cooks can only occur once the drug has              
                                                                                                                                      ,
keeping the criminal statutes up to date with evolving                actually been produced, a window of time that is                supra note , at .
crimes.”                                                              almost impossibly narrow because the final product is
The Ithaca Journal, September ,                                 often instantly consumed by the cook and his clients.
                                                                      The New York State Department of Health found that
“This proposal [to prohibit meth manufacture on one’s                 of the  clandestine lab events reported between 
premises], though, should supersede politics because                  and , at the time of identification, % had chem-
meth, like other deadly drugs, doesn’t care about parti-              icals onsite for cooking and % were actually cooking
sanship.”                                                             meth.                                                         
                                                                                                                                      New York State
The Star-Gazette (Elmira), March ,                                                                                              Department of Health,
                                                                                                                                      New York Hazardous
                                                                      Toxicity of Meth Labs                                           Substances Emergency
“Now the rest is up to the New York and Pennsylvania                  Methamphetamine manufacture turns houses, hotel                 Events Surveillance
                                                                                                                                      Summary.
legislatures, where members – even those not in meth-                 rooms, and other dwellings into areas of high toxicity.
                                                                                                                                      
making areas – ought to be scared stiff about the                     A first-of-its-kind study conducted in Denver in             John W. Martyny,
damage this drug can do to their communities.”                        shed light on just how dangerous meth manufacture               Ph.D., et al., Chemical
                                                                                                                                      Exposures Associated
The Star-Gazette (Elmira), March ,                              can make a residence. The study found that exposure           With Clandestine
                                                                      guidelines at clandestine meth laboratories were met            Methamphetamine
                                                                                                                                      Laboratories, National
“Foot dragging will only be an invitation for meth                    or exceeded for a host of compounds, including                  Jewish Medical
                                                                                                                                      and Research Center
manufacturers to keep exploiting and embarrassing                     phosphine gas, hydrogen chloride, and iodine vapor,             (Feb. ).
our state.”                                                           all of which can irritate the pulmonary system, eyes,
                                                                                                                                      
The Star-Gazette (Elmira), March ,                               and mucous membranes. In addition, methampheta-                 John W. Martyny,
                                                                      mine itself was shown to be generated as an aerosol             Ph.D., National Jewish
                                                                                                                                      Medical and Research
                                                                      during the cook and spread throughout the house. In             Center, Statement
                                                                                                                                      before the House
                                                                      some cases, high levels of meth were found even six             Committee on Science
                                                                      months after the house was last used for manufacture.         (Mar. , ).




                                 
                                 In addition, meth manufacture requires the                                                        
                                                                                                                                                               
                             use of highly toxic and explosive chemicals, which                                               , 
                                                                                                                                                              
                             significantly raise the prospect of a fire or explosion.                                                
                             A recent report by the Centers for Disease Control                                                               , 
                                                                                                                                                              :
                             and Prevention found that, of the events reported                     The Law Enforcement Council recommends that the            
                             to the Hazardous Substances Emergency Events                          possession of precursors and essential chemicals be         
                                                                                                                                                             ( ) (August
                             Surveillance system, “[m]eth events consistently had a                prohibited when the offender intends to manufacture       ), available at:
                                                                                                                                                             www.usdoj.gov/dea/
                             higher percentage of persons with injuries (i.e.,                     a controlled substance. Penal Law Section .          programs/forensicsci/

  
                             victims) than did nonmeth events.” To protect                       already recognizes the danger posed by offenders who      microgram/mg/
                                                                                                                                                             mg.html.
                   against these intrinsic dangers of a meth lab, every                  possess certain chemicals and intend to employ them       Gene Warner and
, ..                                                                                                                                         Dan Herbeck,
                  other state and the federal government have criminal-                 in drug manufacture, but the specific list of precursors
                                                                                                                                                             Alleged Ecstasy Lab
 ,              ized the manufacture of methamphetamine. The                        has become obsolete. A simple revision to this statute    Dismantled,
                                                                                                                                                 ,
              enactment of a similar law in New York is long                        could allow for its application to methamphetamine        June , , at B.
  ().
                             overdue.                                                              manufacturers, thereby restoring its use as a valuable    Telephone Interview
                                                                                                                                                             with Assistant District
                                                                                                 tool in the fight against controlled substances.          Attorney Kirk Martin,
  (a)()                                                                                                                                            Tioga County District
penalizes the                Flexible Statute                                                      Alternatively, a comprehensive statute targeting
                                                                                                                                                             Attorney’s Office
manufacture of a             The Law Enforcement Council recommends that any                       clandestine labs could include provisions outlawing       (Apr. , ).
controlled substance.
  (b)(1)(B)(viii)   legislation passed in response to the threat of metham-               the possession of such precursors and chemicals.
establishes a mandatory
minimum of five years
                             phetamine be flexible enough to allow for prosecution                  Again, care should be taken to ensure that amend-
in prison for the man-       of those who would manufacture other illegal drugs.                   ments or new laws remain flexible enough that the
ufacture of five grams
of methamphetamine.          Other states have enacted laws that prohibit the                      next synthetic drug to surge in popularity can be
A small toxic lab can        manufacture or preparation for the manufacture of                     combated as well. The possession of precursors of any
produce  to 
grams of methamphet-         “a controlled substance,” rather than singling out                    controlled substance with an intent to manufacture
amine in a cycle.
                             methamphetamine by name. One of the lessons of the                    should be prohibited in New York.
                             nation's meth epidemic is that law enforcement must
                             not be prevented from addressing emerging drug                          -  
                             threats. It is especially worth noting that labs creating               
                              (“Ecstasy”) and 2C-B (“Nexus”) were discovered                      
                             in New York State last year.                                        Across the entire country, social service and law
                                                                                                   enforcement agencies alike attest to the severe damage
                                                                                                   inflicted on children who are housed in methamphet-



                                                              
                          amine labs, exposed to toxic chemicals and potential                    putting the boy's life in danger. People v. Breese, et al,
                                                                                                  Tioga County                                               
                          explosions, and neglected by parents whose addiction                                                                                 Telephone Interview
                          renders them unable to provide adequate care. The                       .....................................................        with Assistant District
                                                                                                                                                               Attorney Kirk Martin,
                          New York State Department of Health reports that                                                                                     Tioga County District
                          approximately  percent of clandestine labs were                                                      Attorney’s Office
                                                                                                                                                               (Apr. , ).

Gary W. Howard,
                          found in residential properties. And, as the landmark                    
Sheriff of Tioga           report of the National Jewish Medical and                          
County, Statement
before the House          Research Center found, “If a methamphetamine cook                       One of the two most common methods of metham-
Committee on Science      has been conducted within a building, all children                      phetamine manufacture requires the addition of anhy-
(Mar. , ).
                          within that building are likely to have been exposed to                 drous ammonia, a liquid fertilizer that is stored in
                          methamphetamine and other chemicals and therefore                       tanks on farms across parts of New York State. Cayuga

John W. Martyny,
                          should be considered as exposed and contaminated.”                    County, home to many of the state’s commercial corn
Ph.D., et al., Chemical       While other states have moved quickly to address                    producers, has suffered a rash of anhydrous ammonia
Exposures Associated
With Clandestine          this problem legislatively, New York continues to                       thefts. Over one eighteen-month span in -,
Methamphetamine           restrain state prosecutors from appropriately punishing                 more than  anhydrous ammonia thefts were
Laboratories, National                                                                                                                                         
Jewish Medical and        meth cooks who put their children at risk. Often, the                   reported to the Sheriff ’s Office there. Even when          William Kates, Drug
Research Center
                          highest charge that can apply is Endangering the                        farmers have attempted to lock up their tanks securely       Demand Is Fueling
(Feb. ), at .                                                                                                                                            Rash of Fertilizer
                          Welfare of a Child, an A misdemeanor. The risks                         and prevent access to the chemical through valves on         Thefts,  
                                                                                                  the tanks, thieves have taken to drilling directly into       , Sep. ,
                          inherent in cooking meth and the resulting dispersal of                                                                              , at A.
                          the drug into the atmosphere of a home-lab mandate                      the tank to siphon off what they need and letting the
                          that felony-level sentences be available.                               remainder spill to the ground. As anhydrous ammonia
                          .....................................................                   may be fatal if inhaled, this tampering puts the health
                                                                                                                                                               
                          Boy With Cerebral Palsy Found Locked in Meth Lab:                       of farm workers and others at risk.                          
                          Investigators raiding a meth lab in the middle of the night                 Recognizing the critical importance of anhydrous          ,
                                                                                                                                                               .. ’ 
                          found an eleven-year-old boy with cerebral palsy locked in              ammonia to the manufacture of methamphetamine,               ,
                                                                                                  Congress has outlawed its theft or transportation             
                          his bedroom while his mother's boyfriend and three others
                                                                                                                                                                 
                          were in the middle of an active cook in the basement. The               across state lines, when the offender knows or intends       - (),
                                                                                                                                                               available at
                          stench from toxic fumes was powerful and unmistakable,                  that it will be used in the manufacture of a controlled      http://hazmat.dot.gov/
                          even 75 yards from the house. While all were convicted of               substance. A first-time federal offender faces up to        erg2000/g125.pdf.

                          felonies because of the amount of meth liquid they had                  four years’ imprisonment. Twenty-eight states currently      
                                                                                                  criminalize the unlawful possession, unauthorized               ().
                          created, the defendants could only face A misdemeanors for




                                                             
                         transportation, or theft of anhydrous ammonia or                      of meth cooks coming to New York to avoid                       
                                                                                                                                                             Arnold Hamilton &
  
                         other ammonia gases. In sharp contrast, state prose-                Pennsylvania’s penalties.                                       Mira Oberman,
                                                                                               .....................................................           Oklahoma Meth-Lab
             cutors in New York can usually charge only petit                                                                                      Busts Drop, 
,
supra note , at .     larceny, a misdemeanor, for the theft of anhydrous                    Meth Cooks Arrested Stealing Precursors from Chemung             
                                                                                                                                                               , June , .
                         ammonia, because its actual monetary value is so low.                 County Mall: The absence of effective laws in New York was      /
                                                                                               highlighted in February 2005 when four Pennsylvania resi-       (Fayetteville, AR),
                                                                                                                                                               Officials Announce
                         Precursor Laws in Other States Will Push Meth                         dents were reported to authorities for purchasing large         Tough Meth-Fighting
                                                                                                                                                               Bill, Nov. , ,
                         Cooks into New York                                                   amounts of cold medicine and lithium batteries from several
                                                                                                                                                               available at:
                         Many states have already amended their laws to                        stores in a mall in Chemung County. Their vehicle             http://www.thehome-
                                                                                                                                                               townchannel.com/
                         penalize the possession of methamphetamine precur-                    contained all but one of the necessary chemicals and equip-     print//detail.
                         sors with the intent to manufacture methampheta-                      ment to make several ounces of meth, and police recovered       html?use=print.
                                                                                                                                                               Steve Painter, Meth
                         mine. In , Pennsylvania penalized the possession                  a small amount of the drug from three of the four. In addi-     Makers Flock Here
                                                                                                                                                               for Ingredients,
                         of several precursors with the intent to manufacture                  tion, officers found the makings of pipe bombs. The three
                                                                                                                                                                 ,

S.B. , Act ,    meth, including pseudoephedrine, ephedrine, anhy-                     defendants who actually possessed meth could only be            Dec. , .
General Assembly
                         drous ammonia, red phosphorous, lithium, and                          charged with A misdemeanors. The fourth defendant was         
(eff. Sept. , )
(Pa. ).              iodine. Violating these provisions constitutes a felony               charged with Aggravated Unlicensed Operation of a Motor         Laura Kellams,
                                                                                                                                                               Proposal Targets Cold
                       punishable by up to seven years’ imprisonment and a                   Vehicle, also a misdemeanor. At the time of their arrest, the   Drugs, 
Trooper Nik Green,       fine up to ,. The fact that our neighboring                    four were under investigation in Pennsylvania for metham-
                                                                                                                                                                ,
                                                                                                                                                               Nov. , ,
Rocky Eales and
Matthew Evans Act ,      state has just enacted tougher laws to combat metham-                 phetamine manufacture. The Law Enforcement Council              available at:
ch. ,  Regular                                                                                                                                           http://www.nwanews.
Session, H.B. 
                         phetamine is of specific concern to New York.                         seeks legislation that would deter these defendants from        com/story/adg/.
(). This new law     Pennsylvania’s stiffer penalties will cause a rise in                 coming to New York to manufacture meth or to acquire the        Jacque Hilburn,
requires those                                                                                                                                                 Berman Wants Tough
purchasing certain       purchases and thefts of precursor chemicals in New                    ingredients to do so. People v. White, et al, Chemung County    Law for Meth Cooks,
                                                                                               .....................................................             ()
products containing      York State. This is what happened after Oklahoma                                                                                       ,
pseudoephedrine to
present valid identifi-   enacted tough new restrictions last year on access to                                                                                 Nov. , .
cation and to sign a
log at the register.
                         medicines containing pseudoephedrine. Oklahoma’s                                                                                    
A monthly limit of       neighbors, Kansas, Texas, Missouri and Arkansas, saw                                                                                  Telephone Interview
nine grams of pseu-                                                                                                                                            with Chief Assistant
doephedrine per          an upsurge in methamphetamine cooks traveling                                                                                         District Attorney
customer will be         across state lines to acquire supplies. In response,                                                                                Charles Metcalfe,
                                                                                                                                                               Chemung County
verified by a statewide
database that will       legislatures in those states are now contemplating or                                                                                 District Attorney’s
                                                                                                                                                               Office (Apr. , ).
retain the identities
of customers and be
                         have adopted tougher regulations. New York must
accessible to police.    do the same to blunt the full and predictable force                                                                                   
                                                                                                                                                               Criminal Possession
                                                                                                                                                               of a Controlled
                                                                                                                                                               Substance in the
                                                                                                                                                               Seventh Degree, ..
                                                                                                                                                                 § ..
                                                          
PROTECT YOUNG CHILDREN
AGAINST ABUSE


The Law Enforcement Council asks the Legislature to
eliminate a gap in the Penal Law that limits the ability
of prosecutors to address adequately the abuse of
young children. Specifically, the Council sees a lack of
appropriate penalty in cases where brain damage
results from recklessly shaking, slamming, or throwing
a child. Currently, under the Penal Law, if the child
survives such an episode, referred to in the medical
literature as “Non-Accidental Head Injury,” or ,
the only applicable charges fall under either an A
                                                            
misdemeanor of Assault in the Third Degree or a B          ..  
felony of Assault in the First Degree. Given the           § .

seriousness of the injuries and the violence of the         
actions that cause them, an A misdemeanor is an inad-       ..  
                                                            § .
equate penalty, particularly since the child is likely to
develop lifelong disabilities. On the other hand, a B
felony is sometimes too severe, given that the death of
a child due to  would typically be charged as the
C felony of Manslaughter in the Second Degree. The
Council asks that the Legislature create a provision
under the D felony of Assault in the Second Degree, to
provide an appropriate-level charge for reckless assault
of a child causing serious physical injury. In addition,
the Council asks that the signs of , retinal
hemorrhage, intracranial hemorrhage, and subdural
hematoma, be included in the definition of serious
physical injury.
                          -                            Children that survive infliction of  are likely to
                                                                       experience mental retardation, seizures, or difficulties
                                                                                                                                                                    
                          Because young children have large heads relative to          in motor function. Additional neurologic effects may                        A-C Duhaime, et al.,
                          their bodies, weak neck muscles, and developing              include cognitive and behavioral disturbances, cerebral                      Long-Term Outcome
                                                                                                                                                                    in Infants with the
                         brains, they are especially susceptible to brain injuries.   palsy, blindness, and epilepsy. The syndrome cannot                         Shaking-Impact
P Shannon, L Becker,
Mechanisms of Brain
                          Trauma that does not result in a skull fracture may          be caused by short falls, seizures, or vaccinations.                       Syndrome, 
                                                                                                                                                                     -
Injury in Infantile       nonetheless cause serious internal injury to a child. A                                                                                     ().
Child Abuse, 
  ().        child with a brain injury may not even have bruising          Time-Elapsed CT Scans Showing Brain Injury                                  
                          on the face or head. Typically, this syndrome is most        to Infant Victim of NAHI                                                    C Bonnier, et al.,
                                                                                                                                                                   Neuroimaging of
J Caffey, On the          common among children three years old or younger,                                                                                         Intraparenchymal
Theory and Practice                                                                                                                                                 Lesions Predicts
of Shaking Infants:
                          although it has been seen in older children as well.               CT Scan Immediately                     CT Scan Three                  Outcome in Shaken
Its Potential Residual         A body of literature has developed describing the                After Shaking                        Months Later                   Baby Syndrome,
Effects of Permanent                                                                                                                                                 (October
Brain Damage and          symptoms and causes of non-accidental head injury                                                                                         ) :, .
Mental Retardation,       (). The first significant study of “shaken baby
                                                                                                                                                         
         syndrome,” a prominent type of , was published                                                                                        A-C Duhaime, et al.,
  ,
 ().
                          in . Later studies sometimes referred to the                                                                                         Non-Accidental Head
                                                                                                                                                                    Injury in Infants –
                          condition as “shaken impact syndrome.” Some scien-                                                                                        the ‘Shaken-Baby
                                                                                                                                                                   Syndrome’, 
J Brown & R Minns,        tists believe that injuries can be caused simply by                                                                                        
Non-Accidental Head       shaking, while others hypothesize that the injuries are                                                                                    
Injury, with Particular                                                                                                                                             (June , )
Reference to Whiplash     caused by a combination of shaking and slamming                                                                                           :, .
                                                                                               Areas of Bleeding                    Areas of Brain Loss
Shaking Injury and
Medico-Legal Aspects,
                          against a soft surface such as a bed. However, all agree
           that the repeated violent jerking of a child’s head can
  
  ().     cause blood vessels in and around the brain to tear,            Source: The National Center on Shaken Baby Syndrome (www.dontshake.com)
                          causing bleeding. Shaken or slammed babies typically

Shannon, supra note ,    experience bleeding in the brain (intracranial hemor-
at .
                          rhage), bleeding underneath the outermost membrane
                         of the brain (subdural hematoma), and/or bleeding in              
R Alexander, et al.,
Incidence of Trauma       the retina (retinal hemorrhages). Shaking or slamming        
with Cranial Injuries     may also cause bruises or fractures to the ribs, where       The Council proposes that a D felony of Assault in the
Ascribed to Shaking,
               the baby was held during the shaking, and damage the         Second Degree be created to protect young children
  
  
                          cervical cord and low brainstem. Studies indicate that      against . This crime would only be charged when
().                   between % and % of these babies will die.               an adult acts “recklessly” – he disregards a risk to a


                                 
                 child, acting in a way that he and others would recog-           Busby’s actions “permanently and unalterably damaged this
                 nize as dangerous – and thereby causes a very serious            child,” and she was “lucky” not to face felony charges.    
                                                                                                                                               E Lynch, Assault on
                 injury. Reckless behavior that causes serious physical           People v. Busby, Dutchess County.                            Infant Nets Woman
                                                                                  .....................................................        Year in Jail,
                 injury has already been recognized by the Legislature                                                                         
                 as a felony-level crime under the aggravating circum-                                                                         ,
                                                                                                                                               Feb. , .
                 stance where the perpetrator uses a dangerous instru-                 

..  
                 ment or deadly weapon. Targeting a young child as a              
§ .()      victim of assault should also be an aggravating factor           The Council believes that the Penal Law should clearly
                 leading to a felony penalty.                                     state that symptoms of  are “serious physical
                 .....................................................            injuries.” Evidence of intracranial hemorrhage,
                 Permanently Damaged Child: The loopholes in New York’s           subdural hematoma and retinal hemorrhage in a child
                 Penal Law were exposed clearly in 2003 by the tragic case of     under the age of seven by itself indicates a serious life-
                 Lavon Simpson, an infant in foster care. Lanisha Busby, the      threatening injury to the brain. Currently, in order to
                 twenty-four-year-old daughter of Lavon’s foster mother,          prove “serious physical injury,” prosecutors must
                 when left alone with the crying two-month-old boy,               demonstrate the extent of the suffering and impair-
                 violently shook the baby, then delayed in calling the para-      ment caused by the injury. However, unlike most
                 medics. Though the child had no external bruises, doctors        other injuries, an internal head injury cannot be
                 discovered subdural hematoma and retinal hemorrhages in          detected simply by looking at the baby. The long-          
                                                                                                                                               Brown, supra note ,
                 both eyes. Despite initially refusing to disclose what she had   term effects may not manifest themselves until years         at .

                 done, and insisting that Lavon had just been “acting weird,”     later, when the baby fails to reach age-appropriate
                                                                                                                                               
                 Busby ultimately admitted to shaking him. No provision of        developmental milestones. Thus, at the time of the         R Alexander, et al.,
                 the second-degree assault statute applied to this case, and      injury, even with excellent medical intervention,            Incidence of Impact
                                                                                                                                               Trauma with Cranial
                 the prosecutor was unable to show that the defendant's           long-term effects that are not presently evident may         Injuries Ascribed to
                                                                                  materialize in later years.                                  Shaking, 
                 conduct constituted depraved indifference, as required by
                                                                                                                                                 
                 the first-degree felony assault statute. Instead, Busby was            Unlike older children and adult crime victims, in-        ()
                                                                                                                                               , -, as cited
                 convicted of third-degree assault and endangering the wel-       fants and small children cannot testify about substan-       by H Keenan, et al.,
                 fare of a child, both class A misdemeanors, and sentenced to     tial pain and suffering, or about prolonged impairment       A Population-Based
                                                                                                                                               Study of Inflicted
                 one year in jail. While Busby has already completed her sen-     of their health. When adults sustain a head injury, the      Traumatic Brain Injury
                                                                                  impairment is evident: Speech is impaired, movement          in Young Children,
                 tence, Lavon will spend his third birthday this year under the
                                                                                                                                                (August , )
                 care of nurses brought to his home. He is blind and suffers      is limited, and they can tell you that their head hurts.     :, .

                 from multiple disabilities. As the sentencing judge noted,       Infants, on the other hand, cannot testify to or even




                          
                        exhibit these impairments. Likewise, a doctor cannot      reports of . The well-publicized success of this      
                                                                                                                                              Linda Vanderwerf,
                        conclusively testify to the long-term effects that will   program in reducing incidences of  has been             Grieving Their Own
                                                                                                                                              Loss, Parents Help
                        manifest in any given child. While  is associated     recognized around the nation. Lawmakers in                  Prevent Abuse,
                        with serious developmental disorders, at trial a doctor   Minnesota have proposed similar bills and cited New          ,
                                                                                                                                              Feb. , .
                        cannot state for certain which deficiencies a particular   York’s law as an inspiration. Though no other states      Scott Wente, Bill
                        infant will experience in the future.                     mandate that hospitals offer a video presentation,          Would Provide New
                                                                                                                                              Parents, Others With
                            In cases where babies recover from , the          many do require the creation and distribution of            Education on Shaken
                                                                                                                                              Baby Syndrome, 
                        recovery is the result of extraordinary medical proce-    informational materials warning against  to new          
                        dures and lifesaving measures that in the short term      parents, including California, Indiana, Pennsylvania,       (), Mar. , .

                        inflict enormous pain and suffering on the child. Brain    Tennessee, and Washington. Missouri recently passed       
                        surgery, induced comas, insertion of shunts, and pow-     a bill requiring educational efforts, and the Texas       .   
                                                                                                                                               § ;
                        erful medications may minimize long-term effects of       legislature is now considering similar legislation.       .  .
                                                                                                                                              § ---; 11
                        the shaking, but these procedures in themselves are           On the other hand, New York is behind other             . . . .
                        both painful and risky for the child. Defining the         states in addressing shaking under child abuse or           §§ , ;
                                                                                                                                              .  .
                        symptoms of  as “serious physical injury” would       criminal statutes. Arizona, Arkansas, Colorado, Idaho,      § --;
                        recognize the short-term trauma endured by the victim     Kansas, Massachusetts, Michigan, Montana, New               . REV. 
                                                                                                                                              . § ...
                        as well as the substantial risk of long-term damage.      Mexico, Rhode Island, Utah, Wyoming and the
                                                                                                                                              
                                                                                  District of Columbia have recognized the serious            . . . §
                                                  nature of  in their criminal codes. Indiana allows      ..

                                                                sentencing courts to consider as an aggravating factor      
                        New York has already recognized the dangers of        whether the injury or death of the victim was “the          Melanie Markley,
                                                                                                                                              Bill Would Teach
                        by requiring operators, directors, and employees of day   result of shaken baby syndrome.” Illinois requires its    Parents Dangers of
                                                                                                                                              Shaking Babies,
                      care facilities to undergo training regarding the         social service workers to report subdural hematomas,         ,
..   
§ -a().             “identification, diagnosis and prevention of shaken        as evidence of serious injury to a child, to law enforce-   Mar. , .


                        baby syndrome.” In addition, the Legislature passed a   ment. In Alaska, a defendant can be charged with          
M Dias, et al.,         bill last session mandating a state-wide education        endangering the welfare of a child if he or she leaves      .  .
Preventing Abusive                                                                                                                            § ---.(b)().
Head Trauma Among       campaign to remind parents, during the mother’s           the child with a third party who has previously
Infants and Young       maternity stay, of the dangers of shaking infants and     presented a risk to a child of subdural hematoma.         
                                                                                                                                               . . .
Children: A Hospital-
Based, Parent           young children. This legislation was in response to the   New York should join these states in appropriately           ⁄ .
Education Program,
 (April
                        remarkable success of a program of this kind in western   punishing child abusers who inflict .                    
), : -.    New York, which experienced a % drop in                                                                              . §§
                                                                                                                                              ..(a)(),
                                                                                                                                              (c)()(F).




                               
                                                                                                   accused behaved in a way that he and others would
                            The Inclusion of NAHI in the Criminal Statutes
                                                                                                   recognize as dangerous. Though this proposal catego-
                            of Other States 
                                                                                                   rizes certain injuries as serious physical injury, the
                            Mechanism                            State                             existence of these injuries alone is not automatic
                            Include “subdural hematoma”          Arizona, Colorado, Hawaii,        grounds for conviction nor for removal of a child from
                            within definition of abuse,           Idaho, Massachusetts, Michigan,
                                                                                                   his parent or guardian. If the child was injured
                            physical injury, bodily injury,      Montana, New Mexico,

                            or serious impairment.               Wyoming
                                                                                                 accidentally, and the injuries were not due to crimi-
... § -(F)();
. . .                                                                                 nally reckless behavior by the caretaker, this proposed
§ --()(a)(I);        Includes in definition of serious     Rhode Island
                            bodily injury, “Evidences subdural
                                                                                                   statute would not apply.
. . .
§ -()(H);         hematoma, intercranial hemorrhage                                           Medical tests, coupled with investigation of the
 § -()(a);
  ch. , § J;
                            and/or retinal hemorrhages as                                          circumstances surrounding the injury, can determine
 §§                     signs of ‘shaken baby syndrome’                                        whether a baby’s brain injury is non-accidental. As one
.b(1)(f ), ()(a),    and/or ‘abusive head trauma.’”
(4);  § --;                                                                               team of researchers has observed, “no other medical
.. . .                                                      
                            Includes in definition of serious     Utah                              condition fully mimics all the features of the shaking-
§ A--(f );
                            physical injury, “intracranial                                         impact syndrome.” Studies have shown that at least        
. . . § -
                            bleeding, swelling or contusion                                                                                                    Duhaime, et al., supra
-(a)(xii)(B)(ii).
                            of the brain, whether caused
                                                                                                   % of serious intracranial injuries during the first year   note , at .

                            by blows, shaking, or causing the                                      of life, and % of those during the first two years, are    
.. . 
§ -j-.(c)()           child's head to impact with an                                         the result of abuse. In a small number of cases, the      A Libby, et al.,
                                                                                                                                                               Costs of Childhood
                            object or surface.”                                                    brain injuries associated with , intracranial           Physical Abuse:

                                                                                                                                                               Comparing Inflicted
  .              Include intentional or knowing       Arkansas, Kansas,                 hemorrhage, subdural hematoma, and retinal hemor-           and Unintentional
§ --()(d)(ii).                                                            
                            “shaking” that causes injury         Washington, D.C.                  rhage, can also arise from car accidents and certain        Traumatic Brain
                            within the definition of child                                                                                                      Injuries, 
                                                                                                 medical conditions. However, if the injury is caused by     (July ) :, .
 § 9-27-                 abuse.
()(A)(vi)(c);  §                                                                            a serious accident, this information can typically be
-; D.C.                                                                                      verified by the presence of other injuries or an inde-
 . § -.
                                                                                                   pendent witness’s account. If the injury is caused by a
                                                                                                   medical condition, doctors can identify the cause
                                                                    through medical tests of the blood or spinal fluid. The
                           It is important to emphasize that the proposed law is                   assessment of the injuries, in combination with
                           not intended to penalize innocent caretakers of                         medical tests and the description of the circumstances
                           children who are accidentally injured. As in any assault                surrounding the injury, allows doctors to determine
                           case, the prosecutor must show that the accused caused                  whether shaking or slamming caused the baby’s
                           the injury, and in the case of reckless assault, that the               injuries.


                                  
                       
                       Given the tragic results of shaking or slamming very
                       young children, and the long-term disabilities associ-
                       ated with non-accidental head injuries, an apt penalty
                       should be available for the infliction of these injuries.
                       When injury to the brain is caused by the reckless
                       treatment of a young child, the law should
                       recognize the significant harm to the victim by
                       allowing a charge of Assault in the Second Degree.
                       Likewise, the law should recognize the unique circum-
                       stances surrounding the demonstration of mental
                       impairment of an infant who cannot testify nor exhibit
                       typical signs of mental disability. Adding the hallmark
                       signs of  to the definition of serious physical
                       injury will allow more effective prosecutions for what
                       the American Academy of Pediatrics recognizes as “a
                       clearly definable medical condition” and “a serious

American Academy of
                       form of child maltreatment.”
Pediatrics Committee
on Child Abuse and
Neglect, Shaken Baby
Syndrome: Rotational
Cranial Injuries -
Technical Report,
 ()
:, -.




                              
ENHANCE THE PROSECUTION OF
I D E N T I T Y T H E F T, C O N S U M E R F R A U D ,
AND CHILD PORNOGRAPHY AND
DECREASE THE COST


The Law Enforcement Council supports a change to
the Criminal Procedure Law that will eliminate unnec-
essary witness travel to the grand jury when the
witness’s only role is to state the origin of business
records. This would significantly improve the prose-
cution of identity theft, consumer fraud, and child
pornography cases. The Council proposes that
business records should be admissible in the grand jury
when accompanied by a sworn statement attesting to
the authenticity of the records. This proposal would
allow local governments to save significant resources
without compromising the rights of any defendants.


“We have seen the current law place excessive burdens
on third parties and make effective and efficient law
enforcement investigations more challenging than they
should be.” –Letter from eBay dated May ,  in support of this proposal.

     At a time when government and private industry
are being asked to do more with less, requiring out-of-
state witnesses to testify about routine and uncontested
matters is an unjustifiable expense. Problems securing
testimony regarding business records arise daily in
New York prosecutors’ offices in child pornography
and white-collar crime cases, as well as in newer crimes   have expressed support in writing for this proposal to
involving computers and identity theft. This unneces-      the Law Enforcement Council. Significantly, the ad-
sary burden makes it increasingly difficult to prosecute    mission of business records by sworn statement in
serious cases, as defendants learn that they can get       criminal proceedings is already allowed in other states,
away with crime when it is simply too expensive to         including Alaska, Florida, Hawaii, Idaho, Michigan,
                                                                                                                      
prosecute them.                                            Missouri, and Tennessee.                                   . . ;
    The proposed change does not give prosecutors                                                                     . . .
                                                                                                                      .(); . .
new powers in the grand jury and will not affect the                                      . §§ (b)(),
rights of any defendants. Defense counsel will                                                          (); ... . 
                                                                                                                      (); . . .
continue to have the right to contest, in pre-trial        The types of business records covered by this proposal     (), (); .
                                                                                                                      . . § .;
motions, the accuracy and authenticity of any and all      include bank records, credit card transactions, Internet   .  
evidence presented to the grand jury, including the        Service Provider (“”) subscriber information,           (), ().

business records. The proposed legislation in no way       telephone or cell phone subscriber and toll records,
expands the prosecutor’s authority to introduce            and customer mail order and Internet purchases.
business records that cannot currently be introduced       Though these records may simply list times and dates
into evidence. The sworn statement accompanying the        of business transactions, they can establish important
business records would contain precisely the same          facts related to illegal activity such as child pornog-
information which, under current law, must be elicited     raphy, luring children into sexual encounters,
through the testimony of live witnesses before the         corporate corruption, fraud, and identity theft.
grand jury.                                                    Although the records themselves are in hand,
    Importantly, this proposal does not affect the         prosecutors are frequently frustrated by the need to
presentation of business records at trial. If a case       obtain a witness, often from out of town, who will
proceeds to trial, a witness would authenticate the        establish the technical foundation for the introduction
records in person as required under current law.           of the records. The witness would only need to attest
                                                           that he is qualified to testify about the records, the
                              records were made in the regular course of business,
Local and national companies, including Amazon.com,        and the records were made at or near the time of the
Discover Financial Services, eBay, Independence            transactions listed in the record. Obviously, the grand
Community Bank, J.P. Morgan Chase & Co.,               jury need not hear these facts from a live witness.
America, and Time Warner Cable of New York City,




        ,
      ,    
       
                             witnesses to testify on the same day. Coordinating the
                               appearance of these witnesses complicates the work of
With the growth of technology, businesses that provide       prosecutors and creates the risk of missing important
local services, such as banks, telephone companies,          court dates.
and Internet Service Providers, are increasingly main-
                                                               Companies that Recently Submitted Business Records in D.A. Investigations
taining centralized records outside of the state. When
the modern criminal procedure law was adopted in
, records were paper and kept locally. Now
business records typically consist of computerized data
                                                                      Amazon.com
and are often maintained in centralized databases,                    (Seattle, WA)                                                                             Staples
                                                                                                                                                                (Boston)
which can be situated anywhere across the country. All
of the major Internet Service Providers, who can
                                                               Wells Fargo Bank
establish the important facts surrounding the defen-           (San Francisco, CA)
                                                                                                                                                            AOL
dant’s Internet activity, are located outside of New York           eBay                                                                Sprint              (Dulles, VA)
                                                                    (San Jose, CA)                                                      (Kansas City, MO)
state. As a result, a prosecutor must often introduce            Yahoo!
business records and secure witnesses from several               (Sunnyvale, CA)

different states in a single case. In the growing field of
                                                                                                                     Dell Computers
Internet crimes such as illegal drug sales, consumer                                                                 (Round Rock, TX)

fraud, identity theft, and child luring, this is an
especially troubling problem.
     In many cases, business records from multiple
companies are needed to “connect the dots” of a single                                                Bank of Hawaii
                                                                                                      (Honolulu, HI)
case. For example, when charging defendants with
crimes of identity theft, the need to relate stolen credit
cards to unauthorized purchases may require the
appearance of representatives from Internet companies,
retailers, and credit card issuers. To ensure that their     .....................................................

testimony and records, which are related, are presented      Defendant Absconds While Prosecutors Wait for Business
to the grand jury in a clear and logical way that helps      Records Custodians to Appear: A home healthcare aide
the grand jurors to understand the succession of             caring for elderly patients was stealing personal identifica-
events, it is often necessary for multiple business record   tion information from at least three of her patients. She




        ,
      ,    
       
                        opened wireless phone accounts and made fraudulent credit         stolen credit card. Given the large number of cases
                        card charges totaling nearly ten thousand dollars. She used       involving business records, the total amount of wasted
                        her own address as the billing address, preventing her            business hours is staggering. Alternatively, businesses
                        victims from learning about the charges. Prosecutors              may choose not to send an employee to testify in the
                        secured business records demonstrating her crimes from            grand jury, leaving the prosecutor with important
                        Cingular in Georgia, T-Mobile in New Jersey, and Capital          records that cannot be used as evidence.
                        One in Virginia, but had to delay presenting the case to the          Local governments also bear an enormous cost
                        grand jury in order to coordinate the required witness            when they pay for the travel and hotel expenses of wit-
                        appearances. During this period, the last living victim passed    nesses testifying to the uncontested authentication of
                        away. In addition, because the witnesses could not be             records. In Manhattan alone, prosecutors have paid
                        present at the grand jury within six days of the defendant's      nearly , per month just to secure the testimony of
                                                                                                                                                     
                        arrest, she was released from custody. After appearing in        representatives from Sprint. There are thousands of
Section . of the                                                                                                                                 The actual number of
criminal procedure      court on one date, she has not returned and a bench               felony cases annually throughout the state that require     victims is undoubtedly
law requires that a                                                                                                                                   much higher. These
                        warrant for her arrest is currently in effect. People v. Riles,   the introduction of business records. The Federal Trade     numbers represent
defendant be released
from custody if he or   New York County                                                                                                               complaints to the ,
                                                                                          Commission received , complaints of fraud and          the closest approxima-
she is not indicted
within six days of
                        .....................................................             identity theft in New York in , almost a % in-       tion available in the
arrest.                                                                                                                                               absence of any central
                                                                                          crease from . Fraud and identity theft are only a      reporting mandate.
                                                                 portion of the cases that require business records to        
                                                                                                                                                       ,
                                                             prosecute. Prosecutors’ offices are often unable to pay        -
                                                                           for witnesses to appear in the grand jury on these cases.   , 
                                                                                                                                                         
                        The requirement that a witness appear in the grand                As a result, often cases are compromised by a lack of         
                                                                                                                                                      :  ‒
                        jury solely to attest to accepted facts regarding the             necessary evidence, and criminals go unpunished.              
                        origin of the records is unnecessarily burdensome to                                                                          (Feb. , ).

                        both businesses and local governments who fund                                               
                        prosecutions. Large businesses around the country                                                                   There were , such
                                                                                                                                                      complaints in .
                        who provide communication and banking services in                 Written Authentication Is Used in the Grand Jury             
                                                                                                                                                       ,
                        New York are routinely asked to spare employees for               The proposal endorsed by the Council would allow the          -
                        days to travel for unexceptional testimony in the grand           witness to swear to the authentication information in       , 
                                                                                                                                                         
                        jury. Even worse, small local businesses must also suffer         writing rather than travel in person to answer the same       
                        the loss of employee work time to testify to a crime              questions. This is already authorized for other types of    :  ‒
                                                                                                                                                        
                        captured in their business records, such as the use of a          documents. Fingerprint and ballistics reports, valua-       (Jan. , ).




                                  ,
                                ,    
                                 
                          tion of property, and a victim’s “permission and            As explained above, the Council’s proposal does not
                          authority statement” can all be admitted to the grand       even go as far as extending this rule to the trial level,

.. . . 
                          jury without the testimony of a live witness. The          but rather only seeks it for the grand jury. Amending
§ ..                 sworn written statement would only be used to estab-        the Criminal Procedure Law as we recommend here is
                          lish that the records are authentic and are produced        a straightforward extension of the same logic that is
                          regularly in the course of business. If any contents of     applied in the Civil Practice Law and Rules.
                          the records require explanation, or if the grand jurors
                          have questions about the authenticity of the records
                          as asserted in the sworn statement, a witness would
                          of course appear to provide this explanation.

                          Grand Jury Rules Have Been Modified
                          to Accommodate Technology
                          This proposed change follows a precedent set by the
                          Legislature in recognizing that changes in technology
                          can affect grand jury proceedings. For instance, in 
                          the Legislature authorized the grand jury to hear
                          examination of child witnesses via closed-circuit televi-

.. . . 
                          sion. In , the Legislature accommodated changes
§ .().              in technology by allowing the electronic transmission
                         of a document to be presented to the grand jury.
.. . . 
§ .(-a).
                          Written Authentication Is Allowed in Civil Litigation
                          Business records unaccompanied by live witnesses are

.. .... .
                          admitted in civil trials already. In addition, last year
                          the Legislature expanded the ability to introduce cer-
                         tain medical test evidence under a physician’s affidavit.
Memorandum in             In passing this expansion, the Legislature expressed its
Support, Act of Aug.
, , ch. ,    recognition of the waste inherent in calling certain
.. Laws (expanding
admissibility of
                          witnesses to perform the “ministerial function” of
medical test evidence).   attesting that a piece of evidence is a business record.



                                  ,
                                ,    
                                 

								
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