The People, Respondent,v.Joseph W. Kislowski, Appellant.BriefN.Y.Nov 17, 2017 1 July 28, 2017 Honorable Janet DiFiore Chief Justice of the Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, NY 12207 Re: People v. Joseph Kislowski APL-2017-00036 Submission pursuant to § 500.11 Your Honor: The People submit this letter, pursuant to Section 500.11 of this Court’s Rules of Practice, in support of affirming the December 8, 2016 order of the Appellate Division, Third Department, affirming Defendant’s December 17, 2014 sentence of time served and continuation of a term of probation in satisfaction of the outstanding violation of probation petition. The People reserve all arguments made before the Appellate Division and respectfully submit the following responses to the arguments raised before this Court. 2 Point I The crux of Defendant’s argument revolves around the definition of “associate” as it is used in the defendant’s terms and conditions of probation. Specifically, Defendant “must not associate with any drug users or convicted criminals” (R 48). In the absence of New York precedent defining the word “association,” Defendant looks to Federal case law. Under Federal law, the term “associate” has been given a meaning of “something more than merely a fleeting or casual acquaintance.” Birzon v. King, 469 F.2d 1241, 1243 (2d Cir. 1972). Defendant argues that incidental contact would be outside of the scope of the definition of “associate” under Federal law. The term incidental does not appear to be defined in the relevant cases. However, Merriam– Webster defines “incidental” as, “1. Being likely to ensue as a chance or minor consequence, 2. Occurring merely by chance or without intention or calculation.” (Merriam–Webster Online Dictionary, incidental). This definition is wholly consistent with the Federal cases presented by Defendant, and helps clarify the present issue before the Court. The four instances alleged in the violation of probation petition are not the sum total of the association between Angela Nichols (hereinafter Nichols) and Defendant, but rather specific instances of an ongoing association of the two. Furthermore, when examining these interactions it is 3 clear that they are not chance encounters or without intention or calculation. Rather, these meetings between Defendant and Nichols are calculated and arranged. Nichols had known Defendant for 15 years, they previously had shops that were next door to each other, she and Defendant had a romantic relationship where they cohabitated on and off for a period of eight years, and they remained friends through the time of Nichols testimony (R 83-84). When the romantic relationship ended Nichols retained the dog that was co- owned by her and Defendant (R 88). Defendant would call Nichols to arrange times to take the dog for a walk. On four occasions during the period of his probation Defendant called Nichols and then met Nichols at her apartment, where he received the dog from Nichols and was given a time that the dog needed to be returned by (R 86). Nichols indicated that there were other times where Defendant would call Nichols and Nichols daughter would give the dog to Defendant because Nichols was at work (R 89). During this time Nichols knew that Defendant was on probation, but they “really didn’t speak a lot about his proceedings” (R88). The dissenting opinion defined “associate” as “to join as a partner, friend, or companion.” People v. Kislowski, 145 A.D.3d 1197, 1202 (3d Dept 2016) Quoting (Merriam–Webster Online Dictionary, associate). On 4 its face, the act of being given custody of a dog on four occasions may not normally reach the level of “join(ing) as a partner, friend or companion.” (Merriam–Webster Online Dictionary, associate). However, the instances of contact alleged in the violation of probation petition do not exist in a vacuum. Nichols was not a stranger, nor was she a client for whom Defendant was performing a dog walking service. She was an individual with whom Defendant had known for 15 years, had a romantic relationship with, and lived with for an extended period of time. Defendant knew where Nichols resided and was welcome there to take the dog for a walk. The dog in question was once joint property of Nichols and Defendant while they were romantically involved. More telling are the phone calls to set up times from Defendant to retrieve the dog. Calling requires that Defendant have the phone number for Nichols or Nichols daughter, a strong indicator of association and friendship. An even stronger indicator of association is Nichols taking Defendant’s phone calls while she was working. Nichols also knew that Defendant was on probation, but they “really didn’t speak a lot about his proceedings,” implying knowledge of Defendant’s legal troubles, and that some conversation about Defendant’s legal proceedings had occurred in the past (R 88). These types of conversations are not typically shared with strangers but rather friends, confidants and people with whom 5 one is associated. The strongest evidence of association is Nichols testifying that she and Defendant were still friends at the time of the hearing, fitting precisely into the dissent’s definition of association. Furthermore, defendant was on actual notice that unauthorized contact with Nichols was a violation. Michael Romanowski (hereinafter Romanowski) had a relationship with Nichols daughter and prior to being placed on probation, would come into contact with Nichols intermittently at family functions (R 78). Romanowski told Defendant that Romanowski needed special permission to be around Nichols because of her criminal history (R 80). In fact Romanowski could only have contact with her when it was approved by the Court (R 74, 79). The record before the Court clearly indicates that the Appellate Division decision is entirely consistent with the Federal cases supplied by Defendant. This is not a case of incidental contact at a place of employment (e.g. Arciniega v. Freeman, 404 U.S. 4 ). Unlike the present case, contact at a place of employment would be truly “incidental” in that the contact would not be the primary or intended result of traveling to that location, rather it would be a “minor consequence.” (Merriam–Webster Online Dictionary, incidental). Rather this is a case of calculated choice to engage in knowing and deliberate association with a longtime friend who is 6 more than a “fleeting or casual acquaintance.” U.S. v. Albanese, 554 F.2d 543, 546 (1977). This association between Defendant and Nichols was not casual or incidental, it did not occur merely by chance, without intention or calculation. Defendant’s conduct is the opposite of incidental. His continued association with Nichols was intentional. This is not a case of perfect strangers talking in a restaurant or riding on the same bus at the same time as defense counsel asserts. Rather this is a case of two longtime friends and former paramours continuing to associate and be friendly in violation of the terms and conditions of Defendant’s probation. Point II With respect to Defendant’s second point, the People reiterate and amplify their previous argument, which was accepted by the majority in the lower court. In order to provide “fair notice of the charged misconduct,” a violation of probation must “set forth the probation condition alleged to have been violated and ‘a reasonable description of the time, place and manner in which the violation occurred.’” People v. Turner, 136 A.D.3d 1111, 1113 (3d Dept 2016) (citing Criminal Procedure Law § 410.70). 7 Here, the amended violation of probation petition clearly charged that Defendant violated condition 17 which mandated that he “not associate with any known drug users or convicted criminals” (R 64). Thus, it “set forth the probation condition alleged to have been violated.” Criminal Procedure Law § 410.70 (2). As to his contact with Nichols, the petition specified that, “[o]n 8/17/14, 8/23/14, 8/28/14 and 8/30/14 the defendant [had] contact with [Nichols], a convicted criminal” (R 64). The record makes clear that this petition provided defendant with fair notice of the conduct which Probation Officer Corin Kelley had charged as occurring in violation of Defendant’s terms and conditions of probation. Indeed, when Defendant was arraigned on the first violation of probation petition, the defendant complained, “I hate to see me go to jail for something that - -if you’re talking about the person that owns the dog, a former girlfriend” (R 54). He also attempted to minimize the conduct charged, exclaiming, “I don’t see her. I go to get the dog, take it for a walk. I don’t even go upstairs to her apartment” (R 55). The People respectfully submit that these statements establish the defendant’s knowledge that the petition was based on him retrieving the dog from Nichols and then walking the dog. 8 Addressing Defendant’s miscellaneous arguments contained in Point II Defendant’s assertion that Probation failed to inform him that he could not have contact with Nichols is misleading. Defendant was not alleged to have associated with Nichols during the brief timeframe between discovery of the conduct and the filing of the violation of probation petition. Probation learned of Defendant associating with Nichols on September 2, 2014 (R 156). The violation of probation was filed on September 4, 2014 (R 45-51). Thereafter, the Warren County Court field a declaration of delinquency on September 4, 2014, and Defendant was arraigned on the violation of probation and declaration of delinquency on that same date (R 45-51). At some point between September 2, 2014 and September 4, 2014 the defendant met with Probation for an “office meeting” where walking Nichols dog was discussed (R 172-174). Any misconception by Defendant that “contact” between Nichols and himself was permitted was cleared up when Defendant was promptly arraigned on a violation petition within no more than 48 hours of being confronted by probation officers. Defendant argues that there was no proof at the hearing substantiating the specific days alleged in the violation of probation petition. However, the record shows that Probation Officer Corin Kelley testified that the specific dates were determined by information contained in the sign out log at the 9 half way house where Defendant was residing at the time (R 173 ). Kelly testified that a phone call was made to the halfway house in the presence of Defendant to ascertain the specific dates that Defendant had left to walk the dog. That testimony was corroborated by Nichols testimony describing four specific times she had contact with Defendant, though she herself was unsure of the exact dates. Conclusion For the foregoing reasons the People respectfully submit that the judgment of the Appellate Division, Third Department remain undisturbed. Respectfully Submitted, Benjamin R. Smith Assistant District Attorney Cc: William E. Montgomery, III, Esq.