Are You ‘Available?’: An Analysis of the Porco Appeal Before the N.Y. Court of Appeals

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.[1] Sometime in the night, while the two were sleeping an intruder entered their home, and savagely attacked them with an ax.[2] 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.[3] Investigator Christopher Bowdish began asking questions of the attack.[4] Eventually, the investigator asked Mrs. Porco if her son Christopher had done this to her and her husband.[5] As Investigator Bowdish and the paramedics would later testify Mrs. Porco responded with an up-and-down ‘nod,’ signaling, yes.[6]

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.[7] 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.[8] 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.[9] On September 21, 2010, the New York Court of Appeals granted Porco’s defense motion for leave to appeal the Second Department’s holdings.[10]

Continue reading “Are You ‘Available?’: An Analysis of the Porco Appeal Before the N.Y. Court of Appeals”

Civil Commitment Report Card–Its Failings Being Overcome by Judicial Action

Ben Loefke, Staff Writer

Instead of committing three time sex-offender Daniel Gierszewski of Buffalo to civil confinement, New York State Supreme Court Judge, Richard C. Kloch Sr. decided that stringent parole conditions would suffice for the recently released convict.1 Each of Gierszewski’s convictions has involved sexual misconduct with young girls, aged sixteen, fifteen, thirteen, and ten.2 After serving his most recent sentence—a fourteen year stint for fondling a ten year old girl—Gierszewski, has been in an upstate psychiatric center pursuant to a New York law that allows for the commitment of recidivist sex offenders to be civilly committed if they are shown to have “mental abnormality” that prevents them from controlling their predatory urges.3

In 2007, at the prodding of then Governor Elliot Spitzer, the New York state legislature passed into law the bill that became section ten of the Mental Hygiene law.4 It was fourteen years coming, but finally the state decided to follow the example set by nearly twenty other states and adopt legislation that would enable civil confinement of sex offenders with mental problems that made it likely they would recidivate.5 The statute allows for civil confinement of detained sex offenders who can be proven by the attorney general to suffer from “mental abnormality.”6 The law’s stated purpose is “to protect the public, reduce recidivism, and ensure offenders have access to proper treatment.”7 The general idea behind the civil confinement is that mentally ill sex offenders should not be permitted to rejoin society when it is likely that they will victimize someone again because they lack control over their own conduct. Continue reading “Civil Commitment Report Card–Its Failings Being Overcome by Judicial Action”

A Wal-Mart at the Northgate Plaza: Political Reality in a Nutshell

Robert Magee, Lead Writer,

The Northgate Plaza is a run down shopping plaza in Greece, New York, a town seven miles northwest of Rochester.  The Northgate Plaza’s story isn’t unlike those of a lot of shopping plazas in the state.  It was built in 1953 during an economic upswing that was only able to carry the plaza for about 25 years.1 Though it was once home to big name stores like J.C. Penny and Woolworth’s,2 the plaza’s biggest draws nowadays are a Hallmark Store, a Citizen’s Bank, a Big Lots marked by a broken sign, and “what might be the slowest, 24-hour McDonald’s, in the history of mankind.”3 Much of the Northgate Plaza is vacant and all involved agree that the plaza has fallen into disrepair.  Like many such plazas in its situation, the Northgate’s owners, the Widewaters Group, have looked to Walmart to resuscitate it and Walmart is seeking to oblige.4 Walmart has agreed to build a “supercenter” in the plaza, which would require much of the existing plaza to be knocked down and the eviction of a handful of small businesses operating there.5 Like many such plans, it has drawn the ire of reside local residents, who have formed Residents Against Walmart (RAW).  RAW has vowed ardent opposition to its implementation, and insists that the Walmart will erode the character of their neighborhood.6

In September 2007, the Greece Town Planning and Zoning Board approved the plan over these protestations, and the Greece Zoning Board of Appeals followed soon after.7 RAW has appealed a Supreme Court dismissal for lack of standing to the Appellate Division, which will hear argument on the case within the month.8

“For the purpose of promoting the health, safety, morals, or the general welfare of the community,” town boards have the authority to enact zoning regulations which regulate development within the town board’s jurisdiction.9 Though the boards can do this directly, more often town planning boards, panels of five or seven members who are appointed by the town board, promulgate zoning regulations.10 The town board, in turn, is a governing body whose existence is mandated by the New York Constitution to govern most municipal corporations.11 A town board consists of the town supervisor and council members who are elected by the residents of the given town.12 The town board also appoints three to five people to a zoning board of appeals (ZBA)13, which holds public hearings on challenges to decisions made by administrative officials with authority to enforce zoning laws and rules on their validity.14 However, ZBAs are not vested with the authority to review zoning regulations in and of themselves.15 Since the Northgate Plaza is zoned for the commercial use that Wal-Mart would make of it, RAW is forced into the awkward position of appealing Greece zoning officials’ interpretation of existing zoning laws.  This RAW can only do by showing that “commercial use” within the existing law does not contemplate or would be violated by the presence of a Wal-Mart Supercenter.

Within its sphere, the authority of a duly constituted ZBA is functionally plenary.16 An aggrieved party with standing may initiate an Article 78 proceeding against a ZBA determination in the relevant division of the Supreme Court17 and will be entitled to a hearing there18 on an expedited basis.19 As with any Article 78 proceeding, the initiating party is limited to specific grounds for appealing the ZBA’s determination.  It can allege only that 1) the official failed to perform a duty required by law, 2) that the official acted without jurisdiction, 3) that the official failed to follow proper procedure,  misinterpreted the law or acted capriciously, or 4) that the determination (if it was made upon a hearing) was not based on substantial evidence.20 This, coupled with a judicial culture deferential to the on-the-ground-decisions of local officials, means that RAW faces a very high hurdle on appeal, even if they manage to overturn the lower court’s finding that they altogether lacked standing to bring the proceeding in the first place. Continue reading “A Wal-Mart at the Northgate Plaza: Political Reality in a Nutshell”