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  • Are you "Available?": An Analysis of the Porco Appeal Before the N.Y. Court of Appeals

    On the morning of November 15, 2004, the quiet Albany suburb of Delmar, New York, awoke to the news of the murder and attempted murder of Peter and Joan Porco, respectively. Sometime in the night, while the two were sleeping, an intruder entered their home and savagely attacked the sleeping couple with an ax. Hours later, police investigators and paramedics arrived at the Porco residence to discover Mr. Porco murdered and Mrs. Porco in her bed barely surviving her traumatic head injuries. Soon after his arrival on the scene, Police Detective Bowdish began his investigation of the attack. Eventually, the investigator asked Mrs. Porco if her son Christopher had done this to her and her husband. As the investigator and paramedics would later testify, Mrs. Porco responded with an up-and-down “nod,” signaling, yes.

  • The Supremacy Clause versus S.B. 1070: Can Arizona's Strict Illegal Immigration Law Withstand Constitutional Challenge?

    Trackers searching for Rob Krentz could not locate him using a thermal imager. His body was too cold. Rob Krentz was dead. Mr. Krentz was a member of “one of the best-known and oldest ranching families . . . in southeast Arizona.” On March 27, 2010, he was found dead on his 35,000-acre ranch after suffering fatal gunshot wounds. Prior to his death, Mr. Krentz was riding around his property in an all-terrain vehicle when he radioed to his brother that he “was aiding someone he believed to be an illegal immigrant.” Presently, the authorities are unsure who killed Mr. Krentz. However, because of the “radio transmission . . . and heavy drug and illegal immigrant trafficking in that area,” it is widely suspected that Mr. Krentz was killed by a cross-border drug smuggler or human trafficker. Prior to Mr. Krentz’s death, the Support Our Law Enforcement and Safe Neighborhoods Act (S.B. 1070) was introduced into the Arizona State Legislature. This strict immigration measure was initiated largely “because border authorities [in Arizona] arrest more people and seize more drugs than . . . any other state.” After Mr. Krentz’s death, he became the “face” of the Arizona immigration debate. Some politicians even pushed to name S.B. 1070 the “Rob Krentz Law.” In fact, one month after Mr. Krentz's mysterious death, Arizona Governor Jan Brewer signed S.B. 1070 into law.

  • Funeral Sanctity Showdown in the Supreme Court

    A case is pending in the U.S. Supreme Court that will put to the test whether the First Amendment to the Constitution protects offensive speech just as rigorously as it protects the speech we value. On March 3, 2006, Lance Corporal Matthew Snyder was killed in the line of duty in Iraq. At his funeral, the Westboro Baptist Church, a Kansas-based church known for its “fire and brimstone” fundamentalist religious faith, protested with signs bearing phrases such as “God Hates the USA,” “God hates you,” “Semper fi fags,” and “Thank God for dead soldiers.” Albert Snyder, the deceased soldier’s father, filed suit against the Westboro Baptist Church and Fred Phelps, founder of the church, alleging five state tort claims—defamation, intrusion upon seclusion, publicity given to private life, intentional infliction of emotional distress, and civil conspiracy. A jury returned a verdict in favor of Snyder, awarding him $2.9 million in compensatory damages and a total of $8 million in punitive damages.

  • Are Two Judicial Systems Better Than One?: A Look at the Debate Between Military Tribunal Commissions verus Federal Civilian Trials in Terrorism Cases

    Khalid Sheikh Mohammed and four other individuals who are accused of planning and executing the September 11, 2001, attacks have been in United States custody since shortly after the attacks occurred and have yet to be prosecuted. Although proceedings for a trial by military commission had commenced, in November 2009, Attorney General Eric Holder announced that the four men would be moved to New York and tried in federal court. New York officials quickly objected due to concerns over security and the costs associated with such a trial. The Obama administration subsequently suspended its plans for federal civilian trials; however, more than a year later, no action has been taken to bring the five accused terrorists to justice.

  • Burdened by Life: A Brief Comment on Wrongful Birth and Wrongful Life

    In Roe v. Wade, the U.S. Supreme Court held that “[t]he right to privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Over the past several decades, prenatal torts like wrongful birth and wrongful life have developed from the judicially recognized right to have an abortion. Nearly all of the states recognize wrongful birth claims, and four accept wrongful life claims. What do these two actions entail? Although there are many permutations of how either action can arise, and sometimes they carry a different label, a typical fact pattern for both actions goes as follows: A woman becomes pregnant and begins the typical process for pre-natal care. She goes to the doctor for check-ups and the doctor monitors the pregnancy and guides the expecting mother through each stage. Then, during the pregnancy, a risk that the unborn child will be born with birth defects becomes apparent to the doctor. At some point, the doctor acts negligently in some way, perhaps by a failed diagnosis, failing to proscribe the proper course for the woman to take, proscribing an improper method, or simply failing to warn the mother of the risks of which the doctor is aware. Finally, the woman gives birth, but the baby is born with some kind of severe birth defect or impairment. This is where the two actions diverge.

  • Horsing Around with Conservation: How a Carousel Planned for a Brooklyn Park May Violate the Land and Conservation Fund Act and State Law

    The carousel is a universally beloved amusement ride. The very thought of a carousel evokes images of smiling children atop colorful faux galloping horses accompanied by the sounds of pleasing circus music. However, the federal government may not be child-like amused about a carousel planned for a park in northwest Brooklyn, New York. Enter David Walentas, a developer with enormous real estate holdings in Dumbo (Down Under the Manhattan Bridge Overpass), an area in northwest Brooklyn more or less bounded by the East River to the north, Brooklyn-Queens Expressway to the south, Brooklyn Bridge to the east and Manhattan Bridge to the west. Jane Walentas, Mr. Walentas’s wife, recently donated a restored carousel to be placed in Brooklyn Bridge Park, a green space that is under development along the coastline of the area. The carousel is destined for an area that was once known as Empire-Fulton Ferry Park, which was recently conveyed from the New York State Office of Parks, Recreations and Historic Preservation (OPRHP), to the Brooklyn Bridge Park Development Corporation (BBPDC), a state-city body. The nine-acre park, formerly maintained by the OPRHP, juts out to the east of the Brooklyn Bridge and features scenic views of New York City Harbor and the Manhattan skyline. The park also features a cove, one of the few places in New York that provides access to the waterfront and is a vibrant location for marine life.

  • Albany County Cyber Bullying Law: Is It Constitutional?

    The days of traditional bullying on the playground or school bus have transformed into a more technological type of bullying called “cyber-bullying,” as discussed in a recent article by Michael Telfer. Cyber-bullying has increasingly become an extremely serious problem as technology develops. Cyber-bullying not only includes written words in chat rooms and instant messages, but it also includes impersonation through the creation of fake Facebook and MySpace pages. In addition, “happy slapping” has developed as a new means of cyber-bullying. “Happy slapping” involves a victim being physically attacked while the attacker’s accomplice stands by and videotapes or takes pictures of the attack, and the video and/or pictures are then posted on an online site, such as YouTube. Another means of cyber-bullying is where an individual takes pictures of the victim in the locker room, bathroom, or other location, and then posts those pictures online. Online polls, in which readers are asked to vote on humiliating questions about the victim, are also used to cyber-bully.

  • Taking the Fight Against Cyber-Bullies Outside the School House Gates

    With the widespread use of the internet in the last decade and the creation of websites such as Facebook and YouTube, the ability for people to connect with one another across the globe and with people they have lost touch with has been enthusiastically welcomed. But with the great benefits that new technology brings also comes the ability for people to use it to the detriment of others. Bullying has existed “as long as schools have,” but today bullying is no longer confined to the school house gates or even prevented at one’s front door, as it can “follow students to their rooms . . . their cell phones[,] or online.” Through cyber-bullying, bullies can now “harass, threaten or intimidate others” by “email, instant messaging, blogs, chat rooms, pagers, cell phones, and gaming systems.” Specifically, bullies engage in cyberbullying by videotaping their peers with their cell phones and posting embarrassing videos online through YouTube, creating fake Facebook profiles to steal the identity of other students, and posting embarrassing comments on Facebook to humiliate other students. Reports of students who have been victims of cyberbullying have become nationwide news stories, such as the suicide of a freshman at Rutgers University in New Jersey who “jumped to his death . . . after his dormitory roommate and another student posted a video of sexual encounters he had with another man online.”

  • The Fate of the Marital Union: Is DOMA Approaching Its Last Day?

    The Defense of Marriage Act’s (DOMA) days might be numbered. U.S. Attorney General Eric Holder recently announced that the Department of Justice (DOJ) will no longer defend the constitutionality of DOMA in court. While the DOJ will continue to appear in litigation and “represent the interests of the United States,” it will no longer argue that section 3 of DOMA is constitutional as applied to same-sex couples. This decision has sparked heated debate and a flurry of proposed legislation. Though riddled with controversy, the facts support that the executive made an appropriate, and arguably necessary, decision.

  • People v. Devone: New York Offers Drivers More Protection from Warrantless Canine-Sniff Searches . . .or Does It?

    The U.S. Supreme Court directly addressed the constitutionality of using drug-sniffing canines for the first time in 1983, holding that a “search” under the Fourth Amendment did not take place when police used a canine to sniff a person’s luggage at an airport. The Court revisited the issue in 2005, unanimously concluding again that a police officer’s use of a canine to sniff the exterior of a driver’s vehicle to locate hidden narcotics did not constitute a “search” within the meaning of the Fourth Amendment. The result of these decisions is that under federal law police generally do not need any level of suspicion to use canines to sniff for drugs. However, the New York Court of Appeals, through its continued commitment to provide greater state constitutional protection from unreasonable searches, has decided to the contrary. In People v. Devone, the Court of Appeals decided “whether a canine sniff of the exterior of a lawfully stopped vehicle constitutes a search under Article I, Section 12 of our State Constitution and, if so, what level of suspicion is required before law enforcement can conduct that search.” In a 4-3 decision, the court found that a canine sniff does amount to a “search,” thus triggering the protection of the state constitution. Despite this, the court held that “reasonable suspicion” is not required, but instead, police need only a “founded suspicion that criminal activity is afoot” before such a search can take place.

  • Foreword

    The Albany Government Law Review Fireplace, the legal blog of Albany Government Law Review, is now in its third year of publishing student articles on wide-ranging topics, with a special focus on issues that impact New York state. While some might lay stake to the claim, the Fireplace is indeed the first studentwritten and -edited blog in the country to complement its sister print journal by extending into cyberspace. On a weekly basis, the Fireplace publishes student note and comments on recent developments in government law and policy.

  • Criminal Culpability's Wild Mens Rea: Use and Misuse of "Willful" in the Laws of New York

    Liability under criminal statutes prefers a culpable mental state. The Latin phrase actus non facit reum nisi mens sit rea, translated as “[t]he act does not make the person guilty unless that person’s mind is guilty,” illustrates the classic principle that some degree of guilty knowledge—or mens rea—is required to impose criminal penalties. Willful, one such mens rea, is perhaps the most conflated, confusing, and confounding of all criminal mental states. Willful is also often spelled as wilful, willfull or even willfull in various statutory texts. As Justice Jackson wrote in Spies v. United States, willful “is a word of many meanings, its construction often being influenced by its context.” In American criminal law generally, willful is the legal lizard of mens rea, a chameleon-like term that defies a single, constant definition in New York or any other jurisdiction, and is thus a “wild” term. When a statutory term has two different meanings, judicial interpretation turns on the intention of lawmakers, which is paramount. Absent legislative guidance, courts consider context, purpose, and spirit of the enactment and even dictionary definitions, giving force to particular words of a statute. In criminal statutes, willful is a moving target that defies a basic, long-established constitutional principle of explicitness.

  • Solving the HIW Testing Problem: An Analysis of New York's New Legislation

    Now, think of the human immunodeficiency virus (HIV) as the elephant in a room filled with civil liberties lawyers, medical care providers, and public health specialists: each person’s perspectives and prior experiences enables them to view the HIV testing, screening, and confidentiality problem in a different light. Balancing these extremely different viewpoints is a daunting task and is one which the New York State Legislature has attempted to address. In 2010, the New York State Legislature attempted to balance patient rights, public health safety, and the prevention of HIV with new legislation. As a result, Chapter 308 of the Laws of New York, amending the Public Health Law, was signed in to law by Governor David Paterson. This law implements a mandatory offering of HIV testing in hospitals, emergency rooms, and health care clinics. The main purpose of this law was to revise the informed consent requirements of HIV/AIDS testing while maintaining adequate patient protections. The law also requires that counseling information is tailored based on HIV test results and updates current testing requirements to reflect medical advances. Finally, Chapter 308 authorizes testing of certain occupational exposures to HIV infections.

  • Losing Power: Siting Power Plants in New York State

    Electricity powers our everyday lives, but many people never contemplate the source of this power. Only when there is a proposal to build a power plant do ordinary citizens seriously consider where and how electricity is produced. Many times local residents oppose the siting of an electricity generating facility in their area. People oppose “dirty” fossil fuel-burning plants as well as “clean” facilities such as hydro-electric dams and wind turbines. This opposition is one example of a phenomenon often referred to as “Not-in-My-Backyard” (NIMBY). NIMBY can lead to long, drawn-out fights over whether to build proposed projects such as residential developments or power plants. In an effort to avoid the effects of NIMBY, New York enacted a new Article X to the Public Service Law in 1992. This enactment set out to provide a statewide environmental review and permitting process which, among other things, preempted local land use laws in order to ensure that New Yorkers had an adequate supply of electricity. However, Article X expired seven years ago and efforts to renew the law have failed repeatedly.

  • "Forever Wild" A Legislative Update on New York's Adirondack Park

    Forever wild. The term immortalized in the protection of New York’s Adirondack Park can just as easily be applied to the state’s turbulent legislature, complex state and local agencies, and the conflicting interests of conservation and economic development in much of the area where the park is located. The new governor, Andrew Cuomo, comes into office at a time when the future of several important issues facing the Adirondack Park is uncertain. From reigning in the authority of the Adirondack Park Agency to regulating moose hunting, the 2011 legislature will hear a myriad of proposals affecting the park. This article serves as a primer for these issues as well as providing a review of current law and regulations.