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Pro bono attorney plays Santa to his client

By: David Michael Ettlin//January 10, 2016

Pro bono attorney plays Santa to his client

By: David Michael Ettlin//January 10, 2016

For attorney Jeremy Peterman, People v Mark A. Smith was his first criminal case. But he was more than an appeals lawyer for his pro bono client.

After winning his appeal, Peterman turned into Santa Claus. He got Smith out of prison and home to Rochester the very next day — on Christmas Eve.

Smith, 28, had been imprisoned since his arrest in May 2011, a year before he pleaded guilty in Monroe County Court on two counts of possessing a controlled substance. The evidence was found in his underpants after a traffic stop by police, in what the New York State Supreme Court, Appellate Division, Fourth Department ruled a violation of the defendant’s Fourth Amendment right against unreasonable search and seizure.

The appeal centered on a 2012 hearing on a defense motion to suppress the evidence. A police officer testified that he had responded on a 911 call reporting that a man was selling drugs at a certain address, saw an occupied vehicle in the driveway, and followed as it was driven away. He stopped the vehicle because of its dark tinted windows, an apparent infraction, and asked the driver to step out when he said he did not have a license.

The search that ensued proved legally ticklish, and in a decision filed Dec. 23, the Fourth Department reversed a ruling by the county court judge that had allowed admission of the seized evidence. And that, said Peterman, was the only evidence in the case.

Pat search
As outlined in the appellate decision, the officer testified that he began a pat search at the waist area and, when he moved his hands toward the defendant’s back in that area, the man leaned forward. The officer told him to stand straight and, for safety, placed him in handcuffs.

Then, as he resumed the pat search and the man leaned forward again, the officer asked if there was something in the man’s pants that the officer “needed to know about.”

“The defendant did not respond, and the officer pulled open the front of defendant’s underwear, looked at his genital area and saw a plastic bag in the bottom of defendant’s underwear, which he retrieved.

“The [county] court determined that the search of that area constituted a visual cavity inspection, which was supported by ‘a reasonable suspicion to believe that defendant had secreted a weapon or contraband in the area that the officer was attempting to search.’”

The appellate court said that finding was an error — that there was no support in the record for a conclusion that the pat search was justified based on a “reasonable suspicion that defendant committed or was about to commit a crime” or that the officer had “a reasonable basis for fearing for his safety.”

Although a pat search was justified, since the officer intended to transport the man to the police station to charge him with traffic infractions, the appellate judges felt the search went too far.

Not a ‘common sanctuary’

Underwear, “unlike a waistband or even a jacket pocket, is not ‘a common sanctuary for weapons,’” they found — “and, in any event, the officer did not pat the outside of defendant’s clothing to determine whether defendant had secreted a weapon in his underwear after defendant leaned forward. Instead, he conducted a strip search by engaging in a visual inspection of the private area of defendant’s body.”

The Fourth Department, in dismissing the evidence, also vacated the indictment and Smith’s guilty plea. It remitted the case back to the county court.

Smith’s lawyer in the 2012 proceedings was Andre Vitale, special assistant public defender for Monroe County, who initially challenged the legality of the search. He took note of the successful appeal in an article on the Web site of the National Association for Public Defense that praised Peterman’s holiday efforts.

“In spite of the case against him being dismissed, Mr. Smith remained incarcerated in State Prison, where he likely would have continued to be held until his case was calendared before the trial court after the holiday break,” Vitale wrote. “Mr. Smith had been in State Prison for nearly four years. … Mr. Peterman decided that one day more in State prison for Mr. Smith was not acceptable.”

He outlined how Peterman changed his holiday travel plans, flying from Washington to Albany and then driving to the prison in the morning of Christmas Eve. “Mr. Peterman was initially stonewalled by inmate records, the superintendent, and Counsel’s office, but he was undeterred. Mr. Peterman continued to press for Mr. Smith’s release and late in the morning on Christmas Eve he was able to persuade the Department of Corrections officials that the Appellate Division decision entitled Mr. Smith to his immediate release.”

Fresh out of law school
Smith’s guilty plea in the case came about the same time that Peterman was graduating from the New York University School of Law.

Peterman since 2014 has been an associate in the Washington, D.C.-based law firm of Orrick, Herrington & Sutcliffe, LLP. His involvement in the Smith case resulted from the offer of pro bono help to the Monroe County Public Defender’s Office by a former Orrick attorney in New York, Brian Ginsberg.

Ginsberg had been scheduled to start work on the Smith appeal when he sort of switched sides, taking up an appointment as an assistant attorney general in the New York solicitor general’s office. He asked Peterman to take his place.

Drew Durbin, chief of the appeals bureau for the public defender’s office, said there are far more cases there than lawyers, resulting in a backlog of potential appeals that currently date back two years. Smith had been incarcerated for four years, including a year awaiting trial, by the time Peterman began work. He tried unsuccessfully to win a stay of the sentence and get Smith released during the appeal process, Durbin noted.

Peterman said the appeal had two basic arguments: that officers were not supposed to conduct such a search in a traffic stop, and that the search inside the defendant’s underwear was unreasonable. He said he called Smith at the Hale Creek Correctional Center west of Albany, expressing optimism after arguments were presented before the appellate court a month ago.

Set to go skiing
When the favorable decision came down about 3 p.m. on Dec. 23, Peterman had been readying for a Christmas Day flight from Washington to Wisconsin to join in an annual family skiing party. Instead, after contacting a counselor at the prison, he flew to Albany.

Peterman said it turned out not to be as simple as he had hoped, because of prison system procedures requiring verification of court decisions and release orders — a process that could drag on for days. Instead, he said, he pushed reluctant prison officials for quicker action, got them the necessary documents, and was waiting in his rental car on the prison parking lot when Smith walked out to freedom early that afternoon.

“He had a big smile on his face. He was so amazed he was getting out before Christmas.”

Smith, in an interview this week, said his first inkling came that morning after a prison counselor initially called out a fellow inmate also named Smith to say there had been developments in his case. Within a few hours, he had another surprise: Peterman was going to drive him home to Rochester.

“I asked what he wanted to eat,” Peterman recalled. “He said McDonald’s.”

After that pit stop, they arrived late in the day at the home of Smith’s mother, who had no idea they were coming. “She was just totally surprised and taken aback. She was screaming and crying, and neighbors came over to check if she was alright,” Peterman said.

Asked why he went to such lengths to get Smith home for the holiday, Peterman said, “I’m still young and not jaded yet. And it was my first criminal case.”
There was also a bonding over their age: Both are 28 years old.

Rebuilding a life

For his part, Smith was effusive in his thanks for the young lawyer.

Smith said he formerly worked for an area plastics company, and now was trying to rebuild his life, putting in job applications and getting his state identification card.

Smith was reluctant to discuss some aspects of his case, saying he was in talks with other lawyers about possible litigation relating to his arrest. But he said he had learned from his experience, including more than four and half years of incarceration.

Sentenced to six years, followed by two years of supervision, Smith said he was transferred in October to Hale Creek for alcohol and substance abuse treatment before his anticipated release next November. And suddenly, he was back home with the case dismissed.

“You got to enjoy your freedom, cherish your freedom,” he said. “It’s a different world in prison. People don’t get chances like this. I take this as a blessing. I’m just going to do right.”

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