Judicial Errors Require New Trial in Nassau Theft Case, Panel Says

by Daniel Wise, printed on July 9, 2011
Several judicial errors require a new trial for a woman who was convicted of fleecing an elderly man of more than
$200,000, ostensibly while she was caring for him, a unanimous panel in Brooklyn ruled last week.

The panel in People v. Engstrom, 1442/08, faulted Nassau County Acting Supreme Court Justice Alan L. Honorof (See
Profile), for releasing a juror without conducting an adequate inquiry in a matter in which the prosecution’s case was
“not overwhelming.”

The unanimous panel also cited what it called Justice Honorof’s “perfunctory admonition” after the alleged victim made
“derogatory” and “unrelated” comments about the defendant, Lynn Engstrom.

Ms. Engstrom, 61, was sentenced to three to nine years in prison and has been serving time since June 2009.

Her lawyer, Joseph F. DeFelice, pointing to the two years she has been imprisoned, said it is “logical” that on remand
she will be released either “on her own recognizance or very low bail.”

According to both Mr. DeFelice and the prosecution, Ms. Engstrom and the alleged victim, Robert Obojski, then 74,
met in the fall of 2003, became good friends and planned to work together on a children’s book.

Mr. Objoski is the author of at least 11 books, six of them about baseball, according to a search on Amazon.com.

Ms. Engstrom, according to the brief Mr. DeFelice filed with the Appellate Division, Second Department, grew up in
Grosse Point, Mich., the daughter of a designer of U.S. Army tanks and the niece of a chief executive officer of General
Motors.

Mr. Obojski suffered a severe infection which resulted in the amputation of his foot above the ankle. He gave Ms.
Engstrom power of attorney and made her the sole beneficiary of his will.

Nassau County District Attorney Kathleen M. Rice said in a statement issued when Ms. Engstrom was sentenced that
Ms. Engstrom used the power of attorney from 2004 to 2006 to empty Mr. Obojski’s bank accounts, stealing $211,000,
leaving him with only $10.

Mr. DeFelice disputed Ms. Rice’s version, saying that his client had used the power of attorney to sell Mr. Obojski’s
home after he underwent an extensive stay in a rehabilitation facility.

With the $740,000 she realized from the sale of the home, Mr. DeFelice said, Ms. Engstrom paid $345,000 for a smaller
house and an additional amount to make it handicapped accessible. Mr. Objoski also gave Ms. Engstrom and her
daughters, who had also helped Mr. Objoski, $129,000, the lawyer said.

Ms. Rice in her 2009 statement characterized the $129,000 payments as “cash gifts” from Mr. Obojski in “appreciation
of her assistance in paying his bills and brokering the sale of his Port Washington home.”

Before the jury began deliberations, Justice Honorof, over the objection of the defendant, agreed to discharge a sworn
juror, a doctor who said he had to attend a conference. But the Second Department concluded that the judge should have
made a more thorough inquiry into whether the juror’s release was required by “illness, incapacity or unavailability.”

Further, when Mr. Obojski testified against Ms. Engstrom, the panel noted, he “prejudiced” her by making “derogatory”
comments which were “unrelated and unresponsive to the questions posed.” The trial judge’s mild response was
“inadequate to effectively dispel” that prejudice, the panel noted.

Also at issue was a charge that Ms. Engstrom had stolen four antique gold coins worth approximately $7,000, Mr.
DeFelice said.

The panel, consisting of Justices Peter B. Skelos (See Profile), John M. Leventhal (See Profile), Leonard B. Austin (See
Profile) and Sandra L. Sgroi (See Profile), wrote in an unsigned opinion that Justice Honorof erred in charging that Ms.
Engstrom’s claim that Mr. Obojski had entrusted the coins to her was an affirmative defense. His ruling that a “claim of
right” is an affirmative defense had the effect of improperly shifting the burden of proof from the prosecution to the
defendant, the panel concluded.

According to Mr. DeFelice, Mr. Obojski had given the coins to Ms. Engstrom to use in her artwork, with the
understanding that the two would split the proceeds from the sale of any of her works.

According to Amazon.com, Mr. Obojski has written a book entitled, “Coin Collector’s Guide” and coauthored a second,
“Illustrated Encyclopedia of World Coins.”

The case was argued on June 7, 2011.

On the appeal, the prosecution was handled by Nassau County Assistant District Attorneys Judith R. Sternberg, Tammy
J. Smiley, Barbara Kornblau and Samantha Alessi.

The lawsuit is being brought by the plaintiff, Ron Davis, of 145th Street in New York, New York who was wrongfully arrested and charged by police but who at the time of his arrest was a kidney transplant patient taking thirteen pills in the morning and 8 pills in the evening.  A total of twenty one pills per day.  He has alleged that at the time of his arrest that he told the police he need to take his medication precisely in this manner to avoid rejection of the kidney and liver damage.  The police promised him medical treatment but did not give it to him.  He was told that he could not take his medicine with him.  He remained incarcerated for several days without medication and then had to be taken to the hospital where he remained for several weeks.  The kidney was saved but because of not receiving medication he has been informed by physicians that he will have to undergo dialysis much sooner than otherwise anticipated.  As a result, dialysis patients have a greatly shortened life expectancy and Mr. Davis has been told that is so in his case by many years.  Mr. Davis is 52 years old and of African American heritage.

Thomas F. Liotti and Joseph DeFelice stated: “Our client almost died and his life span is shortened.  This is a terrible, terrible situation that affects hundreds of new arrestees every year in the City of New York and nationally.  There should be a change in policy where new arrestees can take their medication with them and be immediately seen by Medical Doctors.  The police, Department of Corrections, City hospitals and the Courts must insure that new arrestees are receiving proper medical care, treatment and medication.”

A recent ABA Journal report noted that the District Attorney (Armando Villalobos) of Cameron, Texas has formally announced that his assistants will now check out the Facebook profiles of potential jurors on iPads claiming he did not want to give defense lawyers any edge in jury selection.

For those of you who haven’t checked your maps of Texas lately, Cameron County is the home of such places as Brownsville, Texas (a border town) and South Padre Island. Having been sent to Brownsville some years back for training when I worked with the Immigration & Naturalization Service, I have some familiarity with the area, terrain and its location. Aside from the oil wells, there  isn’t much there.^[1]

Of course, it is impossible to know whether other District Attorneys through out the Country are also secretely participating in this type of jury selection tool, but at least we know that this one District Attorney’s Office, which has made the formal announcement, is doing so. In any event, this writer thought the District Attorney’s idea was novel even if it is copying the apparent “voir google” work being conducted by the defense bar in Cameron, Texas, which caused the prosecutor to announce this new policy.

It struck me, however, that there doesn’t seem to be any Court rules or regulations in New York, and probably not in any other State including Texas, which could regulate the use of social media outlets in the selection of jurors. Certainly, in Civil cases in New York, where jury selection is done without the direct supervision of a Judge and lawyers may have time to google a potential juror or check Facebook or some other social media site, such searches can probably be utilized without much difficulty.

In Criminal matters, where the jury selection in New York is conducted in the Courtroom before a judge, a trial judge might have some restrictions on the use of computers and iPads during the selection process. As such, it would seem a bit more difficult to conduct this process in the criminal jury selection process. Further, this is especially true as the peremptory and cause challenges are, unless there is a luncheon recess, usually conducted immediately after conclusion of the voir dire by each side. This leaves little time for social media checking unless the attorney has an assistant at counsel table working on that task during voir dire.

It seems, however, that there should be some regulation or rules in the State on this practice and some thought might be given as to how this could effect challenges that are made under Batson v Kentucky, 476 US 79 (1986). Can challenges be based upon  matters which are outside the direct information the parties and Court obtain in voir dire? Could counsel, in circumstances where a Batson claim is made, when questioned as to his/her reasons for exercising a peremptory challenge which is claimed to be discriminatory, be able to point to statements or information counsel learned from the social media site? After all, such challenge(s) could have been made by one side, upon information known only by that party and without either side having an opportunity to question the juror as to that information. Information which may have been made by the potential juror on the social media site which is not necessarily accurate or true.

They say that “all is fair in love and war” and in this writer’s opinion the same is true here with the use of social media sites in jury selection. Attorneys, if they have the know how and ability can use social media sites and comments made therein to weigh on their jury selection decisions. But, if you are going to use that information to bolster your Batson claim, it would seem to this writer that your application, based upon that information, should be denied. That is because neither the Court (in Criminal cases or even in Civil matters where a Judge might be asked to rule on a challenge made by an opposing party)  nor the opposing counsel(s) had that information for use during the jury selection process. The juror could not be questioned about the information or the accuracy or truth thereof. Of course, some may argue this questioning could be conducted at that time as the juror could be called back for questioning.

However, this is not always possible because at times reference back to other jurors of the same race, gender etc. may be made as to the exclusion of those jurors to show a pattern and those jurors are often long gone by that time and unavailable. Further, as to the jurors who are still present, the selection process has already begun and strategic decisions have been made by opposing counsel based upon who he/she would prefer on the jury and who he/she may believe opposing counsel may challenge. So, it would be unfair to allow this social media information, known only by one party, to be utilized to substantiate that party’s defense to a Batson claim.

Nevertheless, using iPads or computers to check social media sites can be a powerful took for the attorney conducting voir dire and certainly provides an advantage if the opposing counsel is not using the same tolls.

One other issue related to social media sites and jurors but not to the jury selection process is that using such tools, after a jury is selected and during trial to monitor whether any particular juror is violating an oath by discussing the case is a completely different concern. In fact, this can be an effective tool to learn of juror misconduct and possibly result in convincing a Court to conduct a hearing or order a new trial. See People v Rios, 26 Misc.3d 1225(A) (Sup Ct, Bx County, 2010); People v Jamison, 24 Misc.3d 1238(A) (Sup Ct, Kings County, 2009); Wilgus v F/V Sirius, Inc., 665 F.Supp.2d 23 (USDC, D Maine decided October 27, 2009) and Juror Number One v State of California, No Civ 2:11-393 WBS JFM (USDC, E.D. Cal. decided February 14, 2011). A discussion of these cases can be saved for another day but it is enough to know that these issues are finding their way into the Court system from coast to coast.

In the final analysis, legislation on the use of social media sites while conducting voir dire should be considered for the purposes of setting ground rules in the jury selection process.

While this system has generally worked for both the incarcerated and the bail bond company, a new look at bail bond
laws by the New York Time has some questioning the regulations around these companies.

Interviewing a number of people on both sides of the practice, the Times finds that there are lax regulations that give bail bond companies great leeway in both the fines and charges they are allowed to levy, as well as the ability to send bailed out individuals back to jail for little or no reason.

For instance, the Times found a bondsman that charges fines for missing check-ins, fees for legal bond research, filing release papers and other such services.  These fees ad up in a service designed to give poorer New Yorkers a chance at justice.

Even more shocking is the rise of bondsmen that have been surrendering defendants for arbitrary reasons, effectively revoking bonds on individuals who have not violated any specific terms of their bond. Some bondmen have clauses in bond contracts that levies fees if the person has to be rearrested, effectively incentivizing bondsmen to surrender defendants back to the Court.

This puts many poorer individuals back in jail while awaiting trial with little money to fight their cases.  Being behind bars hampers cases, restricting access to legal and other counsel while awaiting their trials.  Further, complaints of bondsmen failing to return collateral in a surrender situation have increased.  Bondsmen holding on to the often thousands of dollars in collateral negatively impacts the ability of defendants to post further bail, and has set up numerous other legal troubles in trying to recover the money.

These complaints highlight the fact that the bond system in New York in need of a dire overhaul, re-balancing the power between bondsmen and defendants.

Further, the move states that the individuals receiving money from the “18-B” program in exchange for legal services will now have to provide more social services to their clients- including social work, paralegal work and investigators on their cases, a move that would drastically impact the services provided by the solo pracitioner attorneys who represent the city’s poor in criminal matters.

By shifting away form 18-B attorneys, the city will shift a greater proportion of its cases towards organizations like the Legal Aid society.  The legal aid society is by and large composed of younger, less experienced attorneys starting off their careers.  18-B Attorneys, or those in solo practices, are often much more experience with their cases and have lesser caseload than the socieities.  By shifting cases to these younger attorneys, the legal rights of the city’s poor will quickly erode as they are not given less experienced attorneys who have less time to work on their cases.

This is an incredibly naive move on the part of the City, cutting the city’s costs for legal expenses, while weakening the rights of those individuals that can least afford it. It is unfair to the Legal Aid society, in that it ties its financial well being with the City’s funding, causing a massive conflict of interest, while undermining the solo practitioner’s who partcipate in the 18-B program by pulling the carpet out from under them.

As an active and ardent supporter of the 18-B program, I am deeply opposed to this plan for indigent representation; I let Mayor Bloomberg know this at the forum held at City Hall on March 11 to discuss these issues.  I urge you all to stand up for the rights of the City’s poor and help continue the outstanding, professional representation provided by these individuals.

The overturning of the decision comes as Judge Margaret Clancy has found that the prosecution had failed to prove that neither the building owner nor the super were aware that the partitions were installed in that particular apartment, which was the crux of the initial criminal investigation.  Regarding this, Judge Clancy said  “An individual or entity cannot be convicted of a crime without evidence of actual knowledge”.

The decision is interesting in that a jury had last year had found the tenants who had actually constructed the illegal partitions not guilty in this matter, creating a legal showdown between the two decisions.  This current decision has left the families of firefighters, and the legal community trying to parse out what this decision means for criminal law.

This week New York City Mayor Michael Bloomberg has thrown his weight against having the trials in New York City, stating that the trials are “going to cost an awful lot of money and disturb an awful lot of people,” and has suggested using alternate sites for the upcoming trials.

Debate has raged since the announcement of the decision to try these individuals in open, Federal Court instead of a military tribunal, and has drawn many local New York residents into the debate over whether they would like both the attention, and potential security threats that would come with the trials.

On one hand, the trial would showcase the open trials that are the cornerstone of the American justice system, but would also pose a relative threat to those involved with providing the security, given the high profile nature of both the defendants, and the trial itself.

What do you feel about the upcoming trials?  Will this be an opportunity for the American justice system to be an example to the world? Or is this an unnecessary risk of the people of New York?

Check back often to see what’s new in criminal justice, as well as for important information on legal developments.