You are viewing a read-only archive of the Blogs.Harvard network. Learn more.

f/k/a archives . . . real opinions & real haiku

December 13, 2007

w.a.s. legal news #1

Filed under: Haiku or Senryu,lawyer news or ethics,Schenectady Synecdoche — David Giacalone @ 11:11 am

Whether we’re reporting on dui cherry cordials and the motorist with the “wrong kind of hot chocolate,” or memorializing the hijinks of the Musty Money Mob, the widow sued for calling an aging counselor a “so-called lawyer,” the sad “man in a tree,” or the deadly argument over treating a seizure victim, f/k/a is known for sharing the strange legal news out of Schenectady, New York, and the nearby Capital Region. [And see the picture-frame burglar tale.] Now, thanks to the unveiling on Tuesday of the revamped, again-free Daily Gazette website, we can confidently begin a regular W.A.S. — Weird Around Schenectady — News roundup, letting you know when the Daily Gazette or other media sources in our neighborhood have uncovered remarkable stories from our local justice system.

after the verdict
the tireless lawyer speaks
in falling snow

first murder trial–
the D.A. arrives
in new gloves

…………………………………………. by Barry George, J.D.

Due to a minor slip-n-fall accident yesterday, the f/k/a Gang is nursing a bum arm and will have to start slowly (and visit a friendly orthopod) this morning, with just two tales out of criminal court.

W.A.S. News #1:

Hiring a Stripper Could Get You a Sex Offender Label: If James “Jed” Conboy, the D.A. in next-door Montgomery County gets his way, 22-year-old Greg L. Soucia will be slapped with the label Sex Offender for “using a stolen credit card to hire strippers.” The Gazette explains, in “Case is Montgomery County’s first under new sex law: Defendant must register as offender” (Dec. 13, 2007), that Soucia “is the first defendant in Montgomery County to be prosecuted under a new law that stiffens penalties for sexually motivated crimes.” Gazette reporter Edward Munger continue:

Soucia [of the Schenectady County village of Delanson] told an investigating deputy that he took a Visa credit card from inside the [burgled] house and while at the residence, he used the credit card to hire two strippers from Sheer Pleasure in Schenectady.

The investigation report states that the two strippers “performed in front of him for about an hour,” and charged him $600 for the service.

Since there was a sexual motivation for the crime, Conboy said, Soucia was prosecuted under the “Sex Offender Management and Treatment Act,” which became state law in April. . . . “If you commit a burglary and your goal is because of your own sexual gratification, it’s a sexually motivated felony,” Conboy said.

The law in question is the SEX OFFENDER MANAGEMENT TREATMENT ACT (Laws of New York, 2007, Chapter 7, Article 10), which our Division of Criminal Justice says “establishes an Office of Sex Offender Management and creates a new crime of a ‘Sexually motivated felony,’ and provides for enhanced terms of post-release supervision for all persons who commit felony sex offenses.” SOMTA’s § 10.03 gives us the following definition:

(s) “Sexually motivated” means that the act or acts constituting a
designated felony were committed in whole or in substantial part for the
purpose of direct sexual gratification of the actor.

Of course, I’m not an expert in criminal law like Scott at Simple Justice and Jeralyn at Talk Left, or professors Yung at Sex Crimes and Berman at Sentencing Law & Policy, but I’m going to go out on a limb and use some fancy legal terminology and analysis: No matter how much of a hard-on politicians have for sex offenders, “stiffening” the penality for crimes — and saddling people with the Sex Offender Label and all the consequent registration and supervisory obligations — whenever a prosecutor “proves” that a felony was motivated in “substantial part” for the defendant’s “sexual gratification” is simply un-American. It will throw a lot of cold water on a lot of immature male hormones. Increasing penalties because a person commits a non-sexual crime while presently or imminently horny, is a rather broad-sweeping approach to stopping sex abuse and sexual predation. Prosecutors should consider reading a constitution or two, or taking a cold shower, prior to drawing up charges under SOMTA.

D. A. Conboy told that Gazette, that in the absence of the sexually motivated felony, Soucia could have faced a prison term of one to three years. Instead, he faces a three-year determinate sentence with five years of post-release supervision.” As with the sex offender residency laws covered so often around here, I’ve got to say that, if this kind of law makes you feel more righteous and — especially — like you’re making our children and women-folk a lot safer, you appear to need a major reality check, and a significant boost in your EQ.

Final Note: A recent article in the Arizona Daily Star, “Arrest made in sexually motivated crime cases” (Nov. 2, 2007), suggests that law enforcement agencies may be applying the same over-reaching approach across the nation. The Tucson Police Department told the Star that: “a sexually motivated crime could include obscene phone calls, pictures or indecent exposure.

mid-argument –
Her Honor
catches me staring

……………………………………………….. dagosan

update (Dec. 16, 2007): Columnist Carl Strock of the Daily Gazette reported today that “Law creates new way to become a sex offender” (at B1, Dec. 16, 2007). Here’s a little of Carl’s analysis: “This means that if I, as a horny American crook, break into a house and steal money so I can wine and dine a woman I have my eye on, with a view to getting her into bed, she being entirely willing, I too would be a sex criminal, per New York law, and if the residents of Scotia, for example, learned I was later living on their block they would put up yellow caution tape on their hedges and would not allow their grandchildren to visit for fear I might attack while their backs were turned. Elected officials would flourish tape measures at public meetings to show how close I was living to innocent children.”

medbag Respected House-Call Doctor on Trial: Another story in the local news deserves a lot more attention than I can give it today, but should interest aficionados of either criminal law or health care reform. Dr. David Hornick, 64, was well known and appreciated for making house calls to his severely disabled patients, and basically operating out of his “mobile pharmacy” car. He was arrested 18 months ago and charged with serious drug-dealing crimes (see “Doctor Charged With Stealing Pills From Patients” (North Country Gazette, June 7, 2006). He is now, however, facing “only” eight misdemeanor counts, alleging he illegally possessed painkillers and failed to document them properly. You can get a good taste for the story from the Daily Gazette, in “Defense calls prosecution of doctor a ‘witch hunt’: Hornick accused of mishandling meds” (Dec. 12, 2007), and in the Albany Times Union, “House call doctor may take stand in drugs case” (Dec. 12, 2007).

Here’s how the Gazette described the government’s approach to the case:

Prosecutor Michele Schettino portrayed Hornick in her opening statements as a doctor who didn’t follow strict rules for handling, dispensing and destruction of such medication. That medication included morphine, Oxycodone and Fentanyl.

“This case is about one man who thinks his license to practice medicine extends to him a blanket shield from criminal prosecution,” Schettino told the jury, “and a blanket shield to disobey the law.”

The Fentanyl patches found in his trunk, according to testimony, were sealed, but not in their normal boxes and did not include the required information about where they came from.

Hornick’s attorney had quite a different take, per the Gazette:

In his own opening statement, defense attorney Joseph Gardner called Schettino’s account of the evidence “quite optimistic” and the prosecution a “witch hunt.” The evidence, he said, does not support the charges. “This is persecution, rather than prosecution,” Gardner said.

Hornick, he told the jury, has practiced medicine for nearly 40 years and runs an unconventional practice. He sees severely disabled patients, many of whom suffer tremendous pain. The drugs, Gardner told the jury, were for his patients.

That, Gardner said, is something that he is allowed to do under the law. The investigators from the state Bureau of Narcotic Enforcement don’t understand that, he said.

If convicted, Hornick faces up to a year in jail. The effect on his ability to practice medicine is unknown (at least to me and the local reporters).

his side of it
her side of it
winter silence

………………. Lee Gurga – from Fresh Scent (1998)

update (Dec. 18, 2007): Dr. Hornick was convicted yesterday on on seven misdemeanor counts of illegally possessing and dispensing prescription painkillers. According to the Daily Gazette, in “Doctor found guilty on drug counts: Jury’s decision surprises Hornick” (Dec. 18, 2007), “The decision came as a surprise to Hornick, who could have pleaded guilty to one count of misdemeanor improper record-keeping before the trial began. Hornick refused the deal, saying he would bring the issue to trial “no matter what.” His lawyer, Joseph Gardner says Hornick will appeal. He will remain free on bail until his sentencing, set for Feb. 12. He faces up to two years in jail or $7,000 in fines.

update (Dec. 19, 2007): Should Dr. Hornick be allowed to continue his medical practice? Schenectady D.A. Robert Carney seems to have the right approach. See “Prosecutor: Niskayuna doctor should keep license” (Daily Gazette, Dec. 19, 2007). “What they ought to be looking to do,” Carney said of the state Department of Health’s Office of Professional Medical Conduct, “is allow him to continue practicing, but ensure that he follows the rules.” According to the Gazette, “A [Health Department] spokeswoman said a criminal conviction itself was considered misconduct. What consequences there would be could be determined after a hearing.”

update (July 3, 2008):  See the Daily Gazette article, “Doctor fined over drugs in trunk of car: Judge says case is about following rules” (July 3, 2008)  Although he did not fault Dr. Hornick’s motives, City Court Judge Vincent Versaci decided that there had to be a punishment because rules were broken. The District Attorney had asked for no jail time, but wanted the maximum fine to be imposed, $4000. The Judge imposed a total fine of $1,000.  Defense council Deborah Feathers indicated that Dr. Hornick plans to appeal to County Court.

We’re pleased that no jail time was imposed, and that Judge Versaci, according to the Gazette, “also admonished Hornick for his practice of keeping medication in his car [where they could be readily stolen], especially the powerful painkillers.”  The state Office of Professional Medical Conduct will consider sanctions against the 65-year-old Hornick because of the conviction, but both the District Attorney and the Judge hope the doctor will be able to continue the practice of medicine.

don't forget To Help Your Favorite Holiday Hostess: We usually only “do” haiku-like poetry around here, but I really want to share a poem I discovered yesterday. It’s from the book Selu: Seeking the Corn-Mother’s Wisdom, by Marilou Awiakta (Fulcrim Publishing, 1993). Flipping through Selu yesterday at the Whitney Used Book Store, I found the following brief verse that underscored my traditional pangs of guilt this time of year — when I notice that my female friends and kin seem to be doing almost all of the preparations for the holiday season.

Awiakta says “I think most of what I learned about being a woman and a poet can be summed up in one poem.”

On Being a Female Phoenix

Not only do I rise
from my own ashes,
I have to carry them out!

As Ann Althouse said yesterday in a different context, “I hear you,” working women and female poets of the world. dagosan shared a similar sentiment recently:

men washing dishes –
an early alarm
ends her Thanksgiving dream

………………………………………. dagosan

No Comments

No comments yet.

RSS feed for comments on this post.

Sorry, the comment form is closed at this time.

Powered by WordPress