No, Defendant’s Don’t "Know" the System
Simple Justice:
A popular myth amongst the law and order ignorati is that while law-abiding citizens know little to nothing about how the “system” works, criminals know how to play it like a violin. While I’ve always found a certain humor in this attribution of malevolent brilliance to criminals, it’s not even close to reality. The Appellate Division, Second Department decision in Lapidus v. State of new York makes the point in a sad, pathetic case.
Suing the state for negligence, Barbara Lapidus was sent to prison as a predicate felon for sale of narcotics. Her case was dismissed because of the “intervening event” of her failure to contest her status as a second felony offender. The Second Department reversed.
Lapidus, now 54, lived the typical, miserable life of a junkie. Broken home. Dropped out of school. Turned tricks to buy heroin. When she was arrested with her boyfriend in 1987, she was released and never came back. The boyfriend went to trial and lost. The clerk mistakenly marked the file that both Lapidus and the boyfriend were convicted of felony assault. While she had many arrests and convictions, none were felonies. Except this one.
Cut to 1997, when Lapidus was busted for sale.
Prior to sentencing, the People filed a predicate felony statement (see CPL 400.21[2]) alleging that on January 9, 1989, Lapidus had previously been convicted of the felony of assault in the second degree in Kings County. When Lapidus appeared for sentencing on the New York County indictment on January 13, 1998, she was arraigned on the predicate felony statement, and advised of her right to controvert any of the allegations in the statement and to challenge the constitutionality of her alleged prior conviction. However, when asked if the allegations set forth in the predicate felony offender statement were true, Lapidus answered…