By Anna Mumford, Albany Government Law Review
The Fourteenth Amendment of the United States Constitution states that, “[n]o State. . . shall deprive any person of life, liberty, or property without due process of law.” As a cornerstone principle of the criminal justice system, this constitutional right requires the government to disclose all favorable evidence within their control to a criminal defendant. However, all too often in this country, prosecutors have suppressed key evidence that could potentially exonerate a defendant. Even right here, in the great Capital City, there have been instances where the accused have been deprived of the right to due process and a fair trial.
In October 2009, two local Albany men were indicted by the Grand Jury for murder, facing life in prison without the possibility of parole. Their case was scheduled to begin on November 1, 2010. However, during a pre-trial hearing, only four days before opening statements, it was discovered that the Albany County prosecutors had just turned over a key witness’s statement favorable to the defense. The statement, made by an eye witness, claimed that the shooter was not of the same race as either of the co-defendants. Prosecutors, sitting on this statement for the past three years, claimed to have turned over the statement in a “good faith,” timely manner.
Continue reading “Two Albany Men and a Motion for Brady: A look at exculpatory evidence and a right to a fair trial”
Written by Emily Ekland, Albany Government Law Review Member
New York law as it applies to same-sex partner rights is ambiguous. We know that same-sex partners do not have the same rights as married individuals, however, it has yet to be decided whether New York would be willing to recognize civil unions and same-sex marriages from other states in divorce actions. In 2010, the New York Court of Appeals cleared up some questions involving parental rights and responsibilities of same-sex partners who bring a child into their relationship. Today, a same-sex partner can be chargeable with child support, but does not have parental custody or visitation rights under New York law. These two holdings may appear contradictory, but the requisite law of New York State validates them. This is a discussion of the case law presented to the Court of Appeals in 2010 regarding same-sex partner rights.
H.M. v. E.T.
According to the record on appeal, H.M and E.T. were romantically involved for six years, from 1989 to 1995, and were living together for the majority of those years. While both women had discussed having a child early in the relationship, they did not conceive until 1993. Prior to H.M.’s pregnancy, the two discussed child rearing practices, methods of contraception, and whether to raise the child with E.T.’s other children. In 1994, H.M. gave birth and both women accepted responsibility for the care of the child. Shortly thereafter, the relationship ended and the two parties separated. E.T. continued to sporadically provide monetary support for the child, even after a failed attempt to reconcile with H.M.
Continue reading “Are You My Mothers: Parental Rights for Same-Sex Partners Under New York Law”
Written by David Szalda, Albany Government Law Review Member
On the morning of November 15, 2004, the quiet Albany suburb of Delmar, N.Y. awoke to the news of the murder and attempted murder of Peter and Joan Porco. Sometime in the night, while the two were sleeping an intruder entered their home, and savagely attacked them 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. Investigator Christopher Bowdish began asking questions of the attack. Eventually, the investigator asked Mrs. Porco if her son Christopher had done this to her and her husband. As Investigator Bowdish and the paramedics would later testify Mrs. Porco responded with an up-and-down ‘nod,’ signaling, yes.
Relying on the ‘nod’ and an abundance of circumstantial evidence the jury convicted the victim’s son, Christopher Porco, for the murder of his father and the attempted murder of his mother. Porco’s appeal to the Second Department was premised among several legal errors, most notably the trial court’s error in admitting the police detectives and paramedics testimony as to Mrs. Porco’s nod as an excited utterance. Upon appeal, the Second Department disagreed, and found the nod inadmissible hearsay. However, the court held that error harmless because since Mrs. Porco was ‘available’ to testify, Porco’s Sixth Amendment right to confrontation was not violated. On September 21, 2010, the New York Court of Appeals granted Porco’s defense motion for leave to appeal the Second Department’s holdings.
Continue reading “Are You ‘Available?’: An Analysis of the Porco Appeal Before the N.Y. Court of Appeals”
Alicia Dodge, Senior Editor, Albany Government Law Review Member
I. Historical Background
The legal doctrine of “tribal sovereignty” is known as “the right of Native American tribal nations to exercise their inherent power to govern their own internal affairs.”  Although this doctrine is well recognized by the federal and state governments alike, it has not been interpreted as broadly as the doctrine’s definition would lead one to believe. Congress is empowered through the Commerce Clause of the United States Constitution to regulate commerce between the states, with foreign nations, and with Indian tribes.  Similarly, states also retain the right to regulate the conduct of non-Native Americans on reservations.  For example, the United States Supreme Court has held that states may impose sales taxes on goods sold by Native Americans on reservation land to purchasers who are non-Native Americans.  In Snyder v. Wetzler,  the New York Court of Appeals also determined that New York State has the authority to impose such taxes.  Regardless of this authority, currently the more controversial issue is how to properly enforce such collections.
II. The Implications of New York State Tax Law § 471-e
In 2003, the New York State Legislature “enacted Tax Law § 471-e to require the collection of taxes on cigarettes sold by reservation vendors to non-[Native-Americans].”  This law was amended in 2005, and it outlined a tax exemption coupon system.  Cigarettes purchased by a tribe member on his or her reservation were to remain tax-free, but any cigarettes purchased by a Native American on another tribe’s reservation or by a non-Native American on a reservation were to be taxed, represented by a tax stamp. The Department of Taxation and Finance (hereinafter “the Department”) was directed to issue coupons to the tribes on a quarterly basis, with the amount determined based upon the “probable demand” of the tribe.
Continue reading “The Conflicts Between Tribal and State Sovereignty: Will Interference with Tribal Sovereignty be Tolerated?”