The People, Respondent,v.Joseph W. Kislowski, Appellant.

Brief

N.Y.November 17, 2017

Indictment No.: 2013-164 C!Court of ~peals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK Respondent - against - JOSEPH KISLOWSKI Defendant I Appellant, LETTER BRIEF OF THE DEFENDANT I APPELLANT DOCKET NO.: APL-2015-00095 Dated July 10, 2017 WILLIAM E MONTGOMERY, III Attorney for Defendant-Appellant Kislowski 15 Pearl Street, P.O. Box 414 Glens Falls, New York 12801 Telephone: (518) 798-6885 Facsimilie: (518) 798-5974 Email: info@billmontgomerylaw.com TO: Warren County District Attorney's Office 1340 State Route 9 Lake George, New York 12845 WILLIAM E. MONTGOMERY, III Attorney at Law 15 Pearl Street P.O. Box 414 Glens Falls, NY 12801 Telephone: (518) 798-6885 Fax: (518) 798-5974 E-Mail Address: info@billmontgomerylaw.com Hon. John P. Asiello, Chief Clerk New York State Court of Appeals 20 Eagle Street Albany, New York 12207-1095 RE: People v Joseph W. Kislowski APL-2017-00036 My File No: 4-331 la Dear Mr. Asiello: July 10, 2017 Pursuant to the Courts correspondence May 1, 2017, please accept this as appellant's written comments and arguments. I have also enclosed the following: 1. 2 copies of this letter; 2. 3 copies of the Appellate Division briefs of all parties; and, 3. 3 copies of the Appellate Division record 4. 3 copies of the Appellate Division Memorandum and Order Page 1of12 Digital versions of each paper filing have been submitted. ARGUMENT IN SUPPORT OF DEFENDANT/APPELLANT'S POSITION POINT ONE Condition 1 7 of defendant/appellants probation required that he not "associate" with a criminal (R67). The crux of this appeal is whether defendant/appellant's incidental "contact" with a criminal was such that it rose to the level of "associating" with that individual so as to constitute a violation of a condition of his probation. Of note, there is no legal precedent in New York with respect to what level of "contact" constitutes "association" as the term "association" is used in the context of a condition of probation. However, the U.S. Supreme Court and Federal Courts have held that not all "contact" constitutes "association." The decisions have definitively held that, in the context of a condition of parole, incidental contact does not constitute "association," and that "association" requires more than a casual acquaintance. The Courts have relied upon the definition as set forth in Webster's Third New International Dictionary which defines "associate" as follows: "to join often, in a loose relationship as a partner, fellow worker, colleague, friend, companion or ally." Furthermore, the Courts have examined the nature and circumstances and frequency of the contact (e.g. In Arciniega v. Freeman, 404 U.S. 4 (1971), Page 2 of 12 association was not intended to apply to incidental contact; Birzon v. King, 469 F. 2d 1241 ( 1972), "With regard to the term "associate," we believe that the meaning that would more often occur to men of ordinary intelligence is something more than merely a fleeting or casual acquaintance"; US. v. Albanese, 554 F. 2d 543 ( 1977), association requires more than contact on a casual basis; DiMarco v. Greene, 13 Ohio Misc. 63 (1967), incidental contact, without more, is not sufficient to establish that a person is "associating" with another person. Refer to defendant/appellant's brief at Point III, pg. 12 @ pgs. 23 & 24). The majority opinion of the Appellate Division failed to follow the U.S. Supreme Court and Federal Court precedents. Specifically, the majority opinion erred in finding that the proof was sufficient (remembering that the burden of proof is on the People) to establish that defendant/appellant' s limited "contact" with Angela Nichols, considered a "criminal" based solely upon a singular DWI conviction, constituted "associating" with her, in violation of the condition of his probation, prohibiting defendant/appellant from "associating with a criminal." The majority relied on the following: 1. " ... on approximately four occasions during the month of August 2014, the defendant called either Angela Nichols or her daughter and thereafter went to Angela Nichols' apartment for the purpose of picking up and walking the Page 3of12 dog that the defendant and Angela Nichols once shared," Memorandum and Order, pg. 4. 2. "Notably, Nichols confirmed that she spoke with the defendant, with whom she remained friends, on the telephone to make arrangements regarding the dog and testified that she personally exchanged the dog with the defendant ' [a] about 4 times, ' stating, 'I would hand him the dog and he would take the dog and go down the street' ," Memorandum and Order, pg. 4. By contrast, the dissenting opinion correctly opined that the "contact" was clearly insufficient to establish that appellant "associated" with Angela Nichols, pointing out that the "contact" was limited to, the following: 1. " . .. the ' contact' consisted of defendant calling Angela Nichols on 4 occasions to arrange to walk her dog, which they had previously owned together," Memorandum and Order, pg. 6. 2. "Put succinctly, Nichols testified that ' [defendant] would call [her] or [her] daughter . . . and he would go to the entrance of [her] apartment and be given Page 4of12 the dog and told when the dog was supposed to be home, and that was the brunt of it'," Memorandum and Order, pg. 6. 3. "There is no dispute that the described contact occurred, but we fail to see how such conduct falls within the prohibition ' [n]ot [to] associate' with a convicted criminal," Memorandum and Order, pg. 6. The gravamen of the majority opinion, is as follows: 1. The amended petition of violation of probation alleged that the defendant/appellant violated his probation by having "contact" with Angela Nichols, a criminal, (R45). The amended orders and conditions of probation did not prohibit "contact" with a criminal. Rather, it only prohibited "association" with the same. As such, the petition, on its face, was insufficient to apprise the defendant/appellant as to the nature of the charge, (R48). 2. The amended petition of violation of probation alleged that the defendant/appellant violated his probation by having "contact" with Angela Page 5of12 Nichols, a criminal, on the specific dates of 8/17114, 8/23/14, 8/28/14, and 8/30/14, (R45). The majority, in their opinion, correctly cite that the violation petition alleged contact occurred "on four specific dates," Memorandum and Order, pg. 2. By contrast, Angela Nichols testified on direct examination that she was not sure of the months, much less a specific date, testifying as follows : "I don't know if it was August or June or May, but basically he would walk my dog," (R85 & R86). And again, on cross-examination, Angela Nichols reiterated that she could only guess that the contact occurred sometime in May, June or August, (R88 & R89). As such, there was no proof that any "contact," (even "contact" that the majority opinion concluded rose to the level of "association") occurred on any of the specific dates alleged in the amended petition. Therefore, it is of no significance that the contact rose to the level of "association," in that there was no proof that it occurred on any of the specific dates alleged. The People made no motion to conform the pleadings to the proof. Page 6of12 3. Although the majority opinion relies on the fact that Angela Nichols testified she had remained friends with the defendant /appellant, said "friendship" was not relied upon by the People in support of their position, nor was it referenced in the People's amended petition of violation of probation. Similarly, at the probation violation hearing, the People did not elicit the extent of the so-called friendship (i.e. its nature and frequency). 4. Angela Nichols' testimony clearly established that the defendant/appellant's contact with her was limited to calling to request permission to walk the dog on four occasions over the period of four months. She testified that she had no other interaction with him of any sort. Specifically, she did not sleep with him; she was not involved in any sort of relationship with him; she did not socialize with him; she did not have any lunch or dinner with him; and he never came up into her apartment to visit, (R89 & R90). Angela Nichols further testified that, with respect to the walking of the dog, the interaction was limited to receiving the call, her walking down the stairs to the front door of her apartment building to give him the dog, and him returning the dog either to her or to her daughter, (R90 & R9 l ). Page 7of12 5. Importantly, at the violation of probation hearing, the probation officer testified that she had met with defendant/appellant prior to the filing of the petition for violation of probation. She testified that she had talked to him about his "contact" with Angela Nichols (i.e. walking the dog). Further, she testified that she never told him that he could not continue to have this "contact" with Angela Nichols, or that the "contact" constituted a violation of the terms and conditions of his probation, (R 173 & Rl 74). 6. Interestingly, defendant/appellant's probation officer was not permitted to testify on cross examination as to the scope or definition of the term "associating" in the context of how it is used as a condition of probation (Rl 68 & 169), which begs the question of how she could have apprised defendant/appellant of the terms and conditions of his probation and the meaning of the usage of the terms contained therein; that is, on direct examination testimony was elicited that the probation officer had gone over the terms and conditions of probation with defendant/appellant, (R 126). Hence, there was nothing in the record to delineate what conduct would rise to the level of "associating with a criminal," as this term was used in the context of the terms and conditions of his probation. Nor was there anything in the record that established the defendant/appellant was apprised as to what conduct Page 8of12 would rise to the level of "associating with a criminal" as this term was used in the context of the terms and conditions of his probation. Importantly, the record clearly establishes that the probation officer certainly had little or no idea as to what conduct would rise to the level of "associating with a criminal." That is, she surmised that merely talking to a member of the public (who happens to have a prior DWI conviction) in a restaurant would constitute "associating with a convicted criminal," (Rl 68). However and to the contrary, she also surmised that riding a bus together with a convicted criminal would not constitute "associating with a criminal" (Rl 70). POINT TWO CPL 410.70 (2) requires that a petition for a violation of probation provide a reasonable description of the time, place, and manner in which the violation occurred. Likewise, the courts have held that the People must provide ample notice of the particulars of the violation charged so that defendant has the opportunity to fully prepare his defense. The amended petition of violation of probation was facially insufficient and so vague and overbroad that it denied defendant/appellant due process. Page 9of12 1. The amended petition of violation of probation only alleged defendant/appellant had "contact" with Angela Nichols, which if true, would not violate his probation: that is, his probation only prohibited "associating" with Angela Nichols, assuming she was a criminal. 2. The amended petition of violation of probation did not describe the nature, place or time of the alleged "contact," nor did it allege that defendant/appellant "associated" with Angela Nichols. The majority opinion attempts to cure the facial insufficiency of the petition, in part, by relying on the defendant/appellant' s statement made during his arraignment. However, defendant/appellants statement was limited to, "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," (R55). As the dissenting decision points out, the People gave no clarifying response at the defendant/appellant' s arraignment, and provided no further details, despite having filed an amended petition almost two months after the defendant/appellant's arraignment. Also, the People again failed to supplement or further clarify the amended petition prior to defendant/appellant's violation hearing held on November 14, 2014. More importantly, the majority's supposition was contradicted by testimony of the probation officer. She testified at the probation violation hearing that she had Page 10of12 met with defendant/appellant, prior to the filing of the petition for violation of probation. She further testified that she had talked to him about his "contact" with Angela Nichols (i.e. walking the dog) She further testified that she never told him that he could not continue to have this "contact" with Angela Nichols, or that the "contact" was in violation of the terms and conditions of his probation, (R 173 & Rl 74). As such, defendant/appellant very reasonably concluded that this "contact" with Angela Nichols (i.e. walking the dog) would not be the basis of a violation of the terms and conditions of his probation. 3. As set forth herein above, the amended petition of violation of probation alleged that the defendant violated his probation by having "contact" with Angela Nichols, a criminal, on four specific dates: 8117/14, 8/23/14, 8/28/14, and 8/30114, (R45). However, no proof was offered that any of the alleged "contact" occurred on any of these specific dates. The only proof offered was that of some contact over a four-month period. This four-month period was not stated or defined in the amended petition of violation of probation. Therefore, the petition was facially insufficient because it failed to apprise the defendant/appellant as to what other dates or time periods that the People would be presenting proof in support of their position that he had violated the terms and conditions of his probation. Page 11of12 In short, the following is respectfully submitted: First, that defendant/appellant had only extremely limited and incidental contact with Angela Nichols (i.e. only that which was necessary to walk the dog). Second, that said limited and incidental "contact" does not constitute nor rise to the level of "association" (as defined by U.S. Supreme Court and Federal Circuit Courts) for the purpose of violation of a condition of probation. Third, the amended petition of violation of probation was facially insufficient and failed to comport to the requirement of CPL 410.70 (2) and thus failed to provide due process to defendant/ appellant. Defendant/appellant respectfully requests that this Court overturn the decisions of the lower Courts. Respectfully, WEM/sle Cc: Jason Carusone, Acting Warren County District Attmney Client Page 12of12