Judge Karen Peters

Judge Peters was one of the five justices of the Third Department who decided Nickel's appeal. However, she was the only one of the five who insisted that, rather than being reduced to 32 years, Nickel's sentence should remain at 54 years. (See State Appeal.) Thus, a careful look at some of her other cases is in order:

People v. Bryce, 571 N.Y.S.2d 638 (1991)

Peters did not take part in this decision (she apparently was not on the court yet); but she did take part in the 1994 (following) decision in this case. (The same is also true for Judge Thomas Breslin at the trial level.) Also noteworthy is the fact that Paul DerOhannesian, the original prosecutor in Nickel's case, also prosecuted Bryce.

[639] "Appeal from a judgment of the County Court of Albany County (Keegan, J.), rendered March 7, 1990, upon a verdict convicting defendant of the crime of murder in the second degree.

"On January 7, 1988, defendant's wife left for work at about 7:30 A.M., leaving defendant alone to care for their seven-week-old son in their apartment. Defendant was the sole witness to the events leading to the child's death. He testified at trial that at about 11 A.M., while he was holding the child on his left arm and attempting to spread a blanket with his right hand, the child shook or 'threw up' his head and fell to the floor. Defendant checked the child over and observed no visible signs of injury...After the infant began making
'choking' noises, defendant hit him twice on the back, shook him and held him upside down. Defendant thereafter called his wife at work, told her the child was sick and asked her to come home. When defendant's wife arrived home she took the child and told defendant to call for help, which he did. The infant was taken to the hospital where he was pronounced dead at about 1:12 P.M. on January 9, 1988. The cause of death was diagnosed by the treating physician as 'closed head trauma, suspected child abuse, and brain death.' He explained that while the injuries were consistent with a fall, they were also consistent with a 'violent' shaking...Throughout defendant maintained that the death of his son was accidental.

[640] "We...reject defendant's argument that he was unduly prejudiced by the failure of the People to preserve the deceased infant's entire skull and brain, thus precluding inspection of such evidence and denying him due process." [That's just astounding: This was a murder trial, in which the defendant maintained that the death was accidental. It's just common sense that all of the body should have been preserved; unless, that is, the prosecution was hiding something.

People v. Bryce, 620 N.Y.S.2d 579 (1994)

Judge Karen Peters wrote this opinion.

[580] "Appeal, by permission, from an order of the County Court of Albany County (Breslin, J.), entered December 28, 1993, which denied defendant's motion...to vacate the judgment convicting him of the crime of murder in the second degree, without a hearing. [Emphases added.]

"Following the unsuccessful appeal [see previous case], the body of the infant was exhumed and defendant's medical experts examined the skull. Defendant thereafter moved to vacate the judgment of conviction... He claimed that the People misrepresented the availability of the infant's skull and brain for defense examination, that the conviction was obtained as a result of false evidence since, upon exhumation, it was discovered that the physical evidence did not come from the alleged fracture site, and that the skull was not fractured. In support of the motion, defendant provided sworn statements from experts stating that the infant's skull was not fractured and that the portion of the skull admitted into evidence at trial, which purportedly bolstered the People's theory by evidencing a blow to the front of the infant's skull, was actually a piece of the side temple region of the skull.

"Defendant contends that the prosecutor and/or his experts were aware that the portion of the skull admitted into evidence at trial did not originate from the claimed fracture site...Defendant, however, fails to present any proof in support thereof...

[581] "Defendant next contends that he is entitled to vacatur of the judgment based on newly discovered evidence... Specifically, defendant contends that the portion of the skull admitted into evidence came from the side of the infant's skull as opposed to the front and that the skull is not, in fact, fractured.

"Most significantly, we conclude, upon review of the record, that the alleged newly discovered evidence does not establish the probability that a different verdict would result upon retrial..."

People v. Bryce, 643 N.Y.S.2d 516 (1996)

Here, in a unanimous (7-0) decision, the New York State Court of Appeals reverses Peters' above decision, and orders that a hearing be held to determine whether the prosecution withheld exculpatory material.

[516] "Defendant appeals from an order of the Appellate Division which denied without a hearing his motion...to set aside the judgment convicting him of murder in the second degree. He alleged several grounds for relief but we find merit only in his allegation that the People failed to preserve and deliver Brady material to him before trial after assuring him they would do so. Accordingly, we remit for a hearing to determine if the People made such representations, whether the material allegedly withheld [517] was exculpatory and if so, whether there is a reasonable probability that the verdict would have been changed had the jury heard about it." [Emphasis added.]

"The coroner's pathologists testified that they had observed a fracture on the front of the skull during the autopsy and other medical experts 
called by the People, relying on x-rays of the infant's head, confirmed the finding. The fracture was described as running from the anterior fontanelle of the head to the bridge of the nose: in the words the prosecutor used to the jury the 'frontal bone [of the infant's head was] split in half. Fractured. Cut in two. As a result of a traumatic blow to his head.'

"On direct [examination], the prosecutor elicited testimony from his medical experts that the fracture could not have been accidental and that the hemorrhage of the infant's brain resulted from excessive blows to the head. One expert concluded that a fracture like the one observed on the front of the infant's skull could result only from the application of force equivalent to that which a body might experience from being dropped from a second-story window or being involved in a high-speed auto accident.

"Defendant called two medical experts who testified that after examining the CAT scans, X-rays and autopsy results they found no evidence of a fracture to the frontal bone. They concluded that the medical evidence was consistent with defendant's assertion that the death was accidental.

"Although defendant had requested the skull and samples of the brain tissue for his experts to examine, and alleged that he was assured they would be available, the only physical evidence delivered to him was a small piece of bone, represented as evidence of the fracture in the middle of the victm's forehead...

"Although the judgment of conviction was affirmed by the Appellate Division, defendant obtained an order to exhume the infant's body and discovered that the skull had not been preserved for examination but had been buried along with the rest of the infant's remains. From an examination of it, witnessed by the People's forensic experts and representatives of the District Attorney's office, the defense medical experts determined that the infant had not sustained a fracture to the front of the skull. The People did not rebut that finding in their motion papers. Defendant further alleges without contradiction that it was apparent to all the experts examining the skull that the piece of bone originally turned over to the defense experts as evidence of the frontal fracture, actually came from the side of the skull. When advised of this, one of the People's pathologists produced another bone, never before shown to defendant's experts, asserting it was part of [518] the infant's skull. None of the experts, however, could relate it to the small bone previously examined or to the infant's exhumed skull." [Emphases added.]

In other words, it did not belong to the victim at all; DerOhannessian and his people had conjured it up out of thin air. Moreover, apparently none of this highly suspicious prosecution behavior bothered Judge Karen Peters at all.

"Based upon these observations of the infant's skull, defendant moved to vacate the judgment and for a new trial on the grounds of (1) misconduct by the District Attorney, (2) newly discovered evidence and (3) the violation of his constitutional rights, i.e., failure to preserve and deliver Brady material...County Court denied the motion without a hearing and the Appellate Division affirmed...

"[W]e conclude that a hearing should be held to determine whether the District Attorney misrepresented to defense counsel that the skull and brain tissue had been preserved and that they would be available for examination by his experts before trial, whether the skull constituted Brady material and, if it did, whether a new trial is required.

"The thrust of defendant's argument...is that the prosecutor, in violation of his statutory duty to facilitate the discovery of exculpatory evidence...prejudiced defendant's ability to obtain the evidence before trial by misrepresenting that it had been preserved and would be available to him...and that the prosecutor consistently represented to him that the evidence had been preserved and would be made available to him at the proper time. Two weeks before trial, however, the prosecutor delivered only one small piece of bone, claiming it evidenced the fracture of the frontal bone...

"Defense counsel contends that the evidence requested was exculpatory because the postexhumation examination established that the People's experts were in error when they claimed defendant was responsible for inflicting a massive fracture of the frontal bones. He contends further that the evidence was material because the prosecution [519] emphasized the frontal fracture to discredit defendant's claim of accident, that the jury relied upon it, as evidenced by their inquiries during deliberations, and that the court explicitly referred to the fracture when it imposed the maximum sentence of imprisonment.

"Whether other, sufficient evidence of guilt was produced in response to defendant's discovery demand is irrelevant if the skull was Brady material and representations were made that it had been preserved, when it had not, and was available for trial, when it was not. Nor is the prior Appellate ruling conclusive. At the time of the direct appeal defendant's arguments were necessarily restricted to the failure to deliver discoverable materials and the prejudice that accrued to him as a result. Notably, in rejecting defendant's claim of prejudice at that time, the Appellate Division stated that defendant had not claimed the evidence was exculpatory...Indeed defendant could not have made such a claim before seeing the skull." [Emphasis added.]

(Note that, though all of the above was not known at the time of the direct appeal (in which Peters did not participate), it most certainly was known when Peters issued her decision denying Bryce's motion to vacate his conviction.)

People v. Bryce, 685 N.Y.S.2d 808 (1998)

Here, Peters finally does join a majority in at least finding that Judge Thomas Breslin's rulings on remand denied Bryce due process.

[808] "Appeal from an order of the Albany County Court (Thomas A. Breslin, J.), entered October 15, 1997, which denied defendant's motion...to vacate the judgment convicting him of the crime of murder in the second degree, after a hearing.

[810] "At the hearing thus conducted, County Court permitted defendant to call Paul DerOhannesian, the Assistant District Attorney in charge of the prosecution of defendant, but refused defendant's request that DerOhannessian be declared a hostile witness and severely limited the scope of questioning.

[811] "[W]e are persuaded by defendant's second point, that County Court's evidentiary rulings so severely and impermissibly restricted the scope of his inquiry as to constitute a denial of due process...Under the circumstances, County Court had an obligation to permit a full and even-handed inquiry, reasonably calculated to bring out all relevant evidence, direct and circumstantial, concerning the representations that were made by the People. We conclude that County Court abused its discretion in refusing to permit defense counsel to examine DerOhannessian as a hostile witness...and in restricting defendant's questions to those reasonably calculated to elicit direct evidence of statements actually made by the prosecution. As defendant was denied the opportunity for a full inquiry, we are constrained to order a new hearing before a different judge." [Emphases added.]

[From Justice Mikoll's separate opinion, dissenting in part and concurring in part:] "Defense counsel's dogged determination has brought to light serious prosecution error, conclusively establishing that the State mishandled and misidentified important forensic [812] evidence and then presented to the jury a false medical opinion. I am at odds with the majority's premise that, notwithstanding this serious prosecution error, including mishandling, misidentifying and misrepresenting to the jury the critical medical evidence in the case, the question of whether defendant was deprived of a fair trial is reached only if a hearing court determines that affirmative misrepresentations were made by the prosecution. This would mean that even if the evidence was exculpatory (a determination which would never be made unless the first query was answered affirmatively), and even where, as here, defendant made a general Brady demand, the majority would hold the prosecutor under no duty to disclose it because defendant, by exhuming the child's body, could have discovered the evidence himself. I cannot subscribe to such a construction of a prosecutor's obligation under the Federal and State constitutions, and Brady...nor do I believe that it comports with the letter or spirit of the Court of Appeals opinion.

"I would reverse and remit for a new hearing before a different judge, permitting a full and fair inquiry designed to elicit the truth and determine whether defendant was deprived of a fair trial. [Note that Peters did not join this much stronger opinion.]

[FN1:] "At the hearing, defense counsel aptly characterized the questioning [of DerOhanessian] that County Court's [Judge Thomas Breslin's] rulings would permit to be as follows:

'[D]id you make representations to [defendant's trial counsel]?'


'Thank you. Let's go home.'" [Emphasis original.]

This so-called 'hearing' was a joke. It looks as if it lasted all of about 10 seconds. Breslin wasn't remotely interested in getting to the bottom of any possible (and indeed, veritably proven prosecutorial misconduct.

People v. Seaman, 657 N.Y.S.2d 242 (1997)

Four out of five members of this panel voted to reverse Seaman's child sexual abuse conviction; Peters was the sole dissenter.

[243] "Appeal from a judgment of the County Court of Essex County (Jung, J.), rendered June 10, 1996, upon a verdict convicting defendant of the crime of sodomy in the third degree.

"On April 28, 1995 defendant, a 53-year-old male, was indicted and charged with one count of sodomy in the third degree. The charge stemmed from allegations made by a then 17-year-old boy that defendant had anally sodomized him in a hot tub at defendant's cabin in the Town of Minerva, Essex County, in January or February 1992. At trial, the People's case rested primarily on the testimony of the victim. Expert testimony was adduced concerning the 'abused child syndrome,' and a good deal of evidence was presented concerning the 'sexual climate' at defendant's cabin, as well as his home in the skull Town of Cornwall, Orange County. At the conclusion of the trial, defendant was found guilty as charged and sentenced to six months in jail and five years' probation.

"We are...constrained to reverse the judgment of conviction and remit this matter for a new trial because defendant was deprived of a fair trial by the improper admission of both lay and expert testimony.

"It is axiomatic that evidence bearing on the 'sexual climate' of a household is inadmissible where it does not tend to prove a material element of the crime charged and is introduced simply in order to demonstrate a propensity to commit the subject offense...Here, the People introduced, inter alia, evidence of nudity at defendant's cabin, the availability of a 'Playboy' magazine, which defendant's son and his friends permitted him to view, the presence of the books 'Joy of Sex' and 'Freedom of Women's Pleasure' at defendant's residence, as well as the fact that defendant's son and his friends were permitted to go 'skinny dipping' in defendant's swimming pool. Such evidence bore no relationship whatsoever to the crime [244] charged and could only have been aimed at convincing the jury of defendant's sexual proclivity. Such testimony was clearly prejudicial 
and can hardly be considered harmless inasmuch as the determination of guilt or innocence rested primarily on a determination of the respective credibility of defendant and victim..."

[from Peters' (lone) dissent:] [245] "I disagree with [my colleagues'] conclusion that defendant was deprived of a fair trial by the improper admission of lay and expert testimony...I...disagree that such evidence was introduced solely to demonstrate that defendant was predisposed to committing the offense. Rather, given the prestidigitation of counsel to create the seemingly impeccable moral character of this defendant, I find the admission of evidence describing the climate of this rural cabin to which these boys were taken to be entirely proper..."

People v. Johnson, 673 N.Y.S.2d 755 (1998)

[756] "Defendant, while pastor of the Calvary Baptist Church in the City of Ithaca, Tompkins County, became involved in a sexual relationship with a 13-year-old parishioner. The investigation leading to the prosecution and conviction of defendant was initiated by the victim's mother. The victim's participation in the entire process, from her interview with the police to her submission of a letter urging leniency for defendant upon sentencing, was unwilling.

"Suspicious about her daughter's increasingly close relationship with defendant, the victim's mother sought pregnancy testing for her daughter and, while awaiting the results thereof, brought her to the Ithaca Police Department to be interviewed concerning her relations with defendant. The victim was not initially told why she was at the police station. The interview lasted between four and five hours, during the first several hours of which the victim denied any sexual relationship with defendant. The police told her they believed she was lying and that she was going to remain there until the truth was revealed, regardless of how long it took. After several hours, the victim's mother, having just learned the results of the pregnancy test, informed the victim that she was pregnant and that defendant must be confronted with this fact. When the victim indicated she wanted go home, a police officer told her 'it's not over yet.' At one point, the victim's [757] access to the door of the interview room was blocked by a police officer.

"Finally, the victim admitted that she had been involved in a sexual relationship with defendant. She expressed extreme concern about his welfare and asked whether he would be arrested and sent to jail. There is conflicting testimony concerning the extent of representations made to the victim, but it is clear that at least one police officer promised her that he would talk to the Assistant District Attorney to make sure that defendant received counseling. The victim refused repeated requests made by the police and her parents that she telephone defendant and, while police listened, advise him that she was pregnant. The victim persisted in refusing to make the call despite various recriminations and threats by her mother that she would force the victim to have an abortion, have defendant removed as pastor of the church and 'splash this all over the newspaper.' She ultimately acquiesced, however, when her mother began to leave the room expressing an immediate intent to go to the church, disrupt its prayer meeting, and expose the defendant to the congregation.

"At trial, when the People called the victim to the witness stand, she refused to substantively answer any questions, repeatedly responding 'I have nothing to say.' She indicated that she did not want to be there, and would not explain her refusal to testify other than stating '[b]ecause I choose not to.' Upon her refusal to testify, the prosecutor sought to introduce her Grand Jury testimony into evidence as part of its direct case. County Court did not hold a...hearing on the issue...agreeing instead with the prosecution that such a hearing was unnecessary because sufficient evidence was already before the court; the court concluded that the victim's refusal to testify was induced by defendant. The victim's grand jury testimony was read to the jury during the prosecution's direct case, and reread to them during deliberations in response to their request.

"We cannot let this conviction stand, resting as it does principally on crucial testimony which was improperly admitted. We can discern no clearer requirements in the cases which have visited the issue than that a hearing is absolutely required as a condition precedent to the admission of Grand Jury testimony, and that at such a hearing the prosecution must establish defendant's responsibility for a witness's refusal by clear and convincing evidence of his misconduct.

[759] "[The alleged victim's] unwillingness to cooperate, indeed her untruthfulness about their relationship, her concern for her welfare and wish that he not go to jail, antedated defendant's very knowledge of the investigation. [Emphasis original.]

"As noted earlier, the victim's participation in the prosecution of defendant was, from beginning to end, unwilling. At sentencing, she submitted a letter to County Court decrying her characterization as a 'victim' in the prosecution, and contending instead that it more befitted her status as a result of the prosecution itself."

[The following paragraph could very well have been written about Nickel's prosecution as well:]

"[The defendant's] actions were reprehensible...We are constrained, by the fact that we sit not in moral, but legal judgment. However despicable defendant's conduct, however tragic its consequences, the legal process to which he is subject must maintain its own integrity. Were our task simply to determine whether in a particular case the end justifies the means, we could dispense with a major portion of our accumulated body of jurisprudence. Notwithstanding the many instances where our laws substantively reflect codified morality, we 
cannot extend the phenomenon to include matters of procedure, particularly those with constitutional implications; our system would then become another casualty of a case already replete with them."

[from Peters' dissent, which Carpinello joined:] "Using his unique position of authority as pastor of the family's church and the provider of pastoral/counseling services to this child, defendant took advantage of an emotionally fragmented family and became the dominant figure in this child's life, even to the extent that she called him 'daddy.' Upon his elevation to the status of surrogate father and religious icon, he then engaged in sexual relations with this child when she was just 12 years of age. After the victim's [762] mother discovered the relationship and determined that the victim was pregnant, defendant continued to demonstrate an unwillingness to admit his conduct and, instead, urged the victim to lie for him and protect him from jail, even blaming her for his downfall.

"Taken together, defendant's admissions, the victim's testimony and the testimony of the victim's mother establish the relationship between the victim and defendant to be one in which defendant, acting as religious adviser, surrogate father and sexual partner, totally controlled this child's life. His admonishment to her, that only her words could send him to jail, silenced this child as surely as if he had cut off her tongue."

Peters and Carpinello were also on the panel that affirmed Nickel's convictions.

Reading numerous decisions written by Peters and in particular, her dissenting opinions, one gets the strong impression that she decides ahead of time how she wants the decision to go, then working backwards to see how she can get there. This is not at all how judges are supposed to proceed.

(Also see In re Barbara O. in Judge Paul Czajka section.)

Subsequently (in People v. Johnson, 689 N.Y.S.2d (1999)), the New York State Court of Appeals unanimously (7-0) affirmed the above decision reversing Johnson's conviction. Therefore, every judge on the state's highest court disagreed with the dissent signed by Peters and Carpinello.

People v. Carroll, 695 N.Y.S.2d 154 (1999)

Although Peters did not write this decision, she did vote to affirm the conviction. This may well be the most publicized and controversial child sexual abuse case in the history of the capital (Albany) region. In her book 'No Crueller Tyrannies,' Dorothy Rabinowitz writes at length about what she believes is Carroll's innocence. In the (Schenectady) 'Gazette,' Carl Strock wrote several columns in a similar vein. Lastly, Ernie Tetrault, a former news anchor from Schenectady's WRGB-TV (Ch. 6) started a new organization, Justice Now the primary purpose of which was to highlight what he strongly believed to be a wrongful conviction.

[155] "Appeal...from a judgment of the County Court of Rensselaer County (Sise, J.) rendered February 23, 1998, upon a verdict convicting defendant of the crime of rape in the first degree (three counts) and sexual abuse in the first degree (six counts).

"At age 13, four years after her stepfather separated from her mother, the victim reported that defendant had been touching her. During her first interview with police authorities, she told detective Steven Weber that defendant began touching her chest and vaginal area when she was six years old...At a second police interview, the victim met with Investigator Edmund Girtler where she revealed, in addition to the aforementioned acts, that she had felt pressure inside of her vagina since the age of 10. Girtler thereafter instructed the victim to telephone defendant for the purpose of eliciting incriminating statements which would be audiotaped. During that telephone conversation, defendant denied inappropriate conduct despite her continued accusations.

"Upon the request of Weber and Girtler, defendant came to the police barracks for questioning. During the interview, Girtler confronted defendant with a fake polygraph test indicating that the victim had been truthful in her allegations of rape and sexual abuse by him. Upon being shown the polygraph and asked if the victim was lying, defendant said she was not.

[156] "Similarly without merit is defendant's contention that the audiotaped conversation should have been admitted as an excited utterance...Rejecting all other evidentiary challenges to the exclusion of the audiotape...as without merit, we review the sufficiency of the evidence presented." [It would be a pretty good bet that if Carroll had admitted guilt on this call, the jury would have heard that tape.]

"Assessing legal sufficiency by viewing it in the light most favorable to the prosecution, as we must, we conclude that any rational trier of fact could have found the elements upon which the defendant was convicted proven beyond a reasonable doubt..."

People v. Carroll, 718 N.Y.S.2d 10 (2000)

This is a Court of Appeals ruling, again, 7-0, reversing Carroll's conviction.

[11] "The allegations against defendant came to light in early March 1997 after the girl told a friend about a dream in which someone named A.J. touched her. The friend spoke to the child's mother, who confronted her daughter about the dream. During the questioning, the mother mentioned the names of several men and asked whether any of them had ever touched her. Her daughter kept nodding no. Finally, she asked if defendant had ever touched her. She repeated the question after the girl did not answer, and the girl, after shaking her head no, began crying and responded yes. The mother called the police several days later.

"Girtler...instructed [the alleged victim] to telephone defendant for the purpose of eliciting incriminating statements which would be monitored and 
audiotaped. Confronted by his stepdaughter's allegations, defendant vehemently denied any inappropriate conduct, despite her continued accusations. The girl also asked defendant if he thought she was lying. He replied 'I don't think you're making it up, I think that you've got different ideas of what may have happened. . .You've had a rough life. A lot of things go through your mind.'

[12] "Prior to trial, County Court granted the People's motion to exclude the audiotape and prohibited any questions concerning the tape. The court concluded that the tape was hearsay and that the excited utterance exception did not apply.

"The only testimony concerning the facts of the three rapes charged in the indictment came from the child. She indicated that each rape occurred in an upstairs apartment at defendant's workplace. Two occurred in 1993 (spring and July) when the girl was nine and the third occurred in the summer of 1994 when she was 10. With respect to each incident, the girl testified that Carroll 'rolled me on my back and got on top of me, and I felt pressure between my legs and inside my vagina.' She did not remember what she was wearing, if her clothes were on or off, or if defendant had his clothes on or off during any of the three incidents. When asked if she remembered anything more about the feeling of 'pressure,' she answered 'no.' She did not recall if it hurt, stating that she 'just remember[ed] the feeling.' She indicated that she could not describe the vaginal 'pressure' she felt on the first two occasions because she didn't remember. She also stated she never saw defendant's penis.

"On cross-examination she admitted that at her initial meeting with Weber, she failed to tell the detective about the incidents of vaginal 'pressure.' She claimed that, at the time of the first police interview, she 'didn't remember exactly what happened,' and that prior to the second police interview, her memory was refreshed by visits to a 'doctor' and a counsellor.

"She also described several incidents during which defendant would come to her apartment after school and put his hands up her shirt or down her pants to touch her. These events [allegedly] occurred between January 1995 and February 1997 and constituted four of the six claims of sexual abuse.

"Two police officers testified about defendant's interrogation. When Weber was questioned on direct examination if he specifically asked defendant about the child's accusations against him, he stated that he 'asked [defendant] if [the girl] was lying and [defendant] replied that she wasn't lying.' Weber was also asked if defendant had denied the allegations 'in the beginning.' Weber replied, 'He never said he didn't do it, that's right.' Following Weber's testimony, defendant sought to introduce the audiotape to impeach Weber's statements on the ground that Weber falsely and unequivocally stated that defendant never denied the allegations. The court denied the application, finding that the only reference to be drawn from Weber's testimony was that defendant never denied the allegations in the context of the police interrogation." [Emphasis original.]

"On cross-examination, Girtler testified that defendant never denied the allegations against him, stating that 'He never said, I didn't do it.'

[13] "Defendant testified and denied all of the allegations against him. One of the defendant's former employees testified that the apartment in which the charged acts [allegedly] occurred was frequently entered by employees unannounced during the day for use as a break room.

"We first consider whether the evidence is legally sufficient to sustain the rape convictions. Defendant argues that the evidence was insufficient to establish the required element of penetration. We agree.

"Rape in the first degree is defined by statute as engaging in sexual intercourse with a female less than 11 years old...Sexual intercourse 'has its ordinary meaning and occurs upon any penetration, however slight'...

[14] "In this case, there was no testimony that defendant put his penis inside the girl. She vaguely recalled feeling 'pressure between [her] legs and inside [her] vagina.' She never saw defendant's penis and did not remember any other details about the incidents -- what the 'pressure' felt like, if it hurt, whether she was clothed or unclothed. She freely admitted she did not tell Weber about feeling 'pressure' when she first described the incidents and that, prior to her second interview in which she did recall the pressure, her memory was refreshed by visits to a 'doctor' and a counsellor. She also asserted during her first interview that she had never had intercourse, only to be told by Weber after Szary's examination that she was not a virgin. Indeed, even the trial court acknowledged that the girl 'couldn't tell' whether intercourse had occurred and suggested other explanations or sources of the pressure, for example, 'the weight of a male body on top of a child.' Moreover, there was no testimony from the child with respect to any instrumentality of penetration.

"The girl's inability to testify with respect to penetration is not, however, conclusive, if other evidence existed from which that fact could be established...The nurse indicated that any sudden, forceful entry would cause 'significant tearing and bleeding,' but the girl could not remember, and no other evidence established, that she was in any pain after these incidents or that she suffered any other adverse physical reactions consistent with forceful, sudden entry...According to the nurse practitioner's testimony, such a first-time act of forceful penetration would have produced significant tearing and bleeding, no evidence of which existed here. Because the nurse's testimony was not consistent with the facts and circumstances surrounding the alleged rape, it did not provide any proof of penetration...Thus, there was no testimonial or physical evidence establishing 

"Nor did defendant's statements constitute admissions from which a rational trier of fact could have found beyond a reasonable doubt that penetration did occur. Defendant's statements were not explicit admissions to sexual abuse in general, or penetration in particular... Indeed, defendant's statement that the girl was not lying is even less significant given that no specific allegations were ever revealed to him during the interrogation. Defendant was only told of vague, general allegations made by his stepdaughter.

"In sum, the evidence was not sufficient to establish beyond a reasonable doubt the element of penetration...[15] The rape convictions cannot be sustained; the three counts of rape charged in the indictment must be dismissed.

"Defendant also claims that the trial court erred in precluding the police-recorded audiotape of defendant's conversation with his stepdaughter. Under the circumstances presented here, we agree and hold that in light of the testimony that defendant 'never denied' the allegations, the trial court abused its discretion in failing to allow the tape or testimony related to the conversation.

"Initially, we reject defendant's contention that his taped statements were admissible under the excited utterance exception to the hearsay rule.

"Defendant's alternative argument that the taped conversation should have been admitted to refute the prosecution's claims that defendant never denied the allegations has merit.

"At trial, both Weber and Girtler testified that defendant never denied the allegations against him. The People argue that the officers' testimony established only that defendant never denied the allegations during the police interrogation. However, Weber and Girtler both testified that defendant never denied the allegations. Moreover, defendant's alleged 'failure-to-deny' became a major theme in the prosecution's theory of the case. The prosecutor's summation demonstrates just how important that theory was." [Emphasis original.]

"In her summation, the prosecutor stated that 'he didn't deny. He never said, you know something, I never touched that child. . .He's a salesman. That's what they do. That's his job, to sell a product. He was making a pitch in here. And he sat there and faced you. And, my God, members of the jury, he had nine months to think about that. He had all week to think about his story. He's a man who sells things for a living.' The prosecutor relied on and accentuated the perception that defendant never asserted his innocence prior to trial and defendant was never permitted to explain the context of his alleged admissions.

"Given the officers' testimony that defendant never denied the allegations against him and the exclusion of the taped conversation, the jury was left with the impression that defendant never, at any time, denied the allegations against him. The jury had no way of knowing that there was another point in time at which defendant had the opportunity to deny -- and did [16] deny -- the allegations.

"Defendant sought to introduce the tape not only to impeach the officers' credibility, but also to rebut the prosecution's stance -- pressed vigorously -- that he never denied the allegations made against him and that he admitted his guilt. The inference that the People wanted the jury to draw from their witnesses was that by never denying the allegations, and by stating that his stepdaughter was not lying upon being confronted by the police, defendant was unmistakably admitting his guilt. This issue was at the heart of the People's case.

"Given this setting, the fact that the court offered to give defendant a limited opportunity to explore whether or not he was specifically asked during the police interrogation if he denied the allegations did not cure the error in the court's evidentiary ruling. Defendant was not permitted to elicit any testimony regarding his prior denials. Thus, the trial court's decision under the circumstances was an abuse of discretion and 'resulted in a trial that was decidedly skewed in the People's favor' (People v. Hudy...538 N.Y.S.2d 197...)." [Emphasis original.]

[17] "Accordingly, the order of the Appellate Division should be reversed, the counts of the indictment charging defendant with rape in the first degree dismissed and, as to those counts of the indictment charging defendant with sexual abuse in the first degree, a new trial ordered."

People v. Carroll, 752 N.Y.S.2d 148 (2002)

After his retrial on the remaining counts, Carroll was again convicted. Peters joined in the affirmance of his convictions.

In re Arielle 'LL', 741 N.Y.S.2d 339 (2002)

Peters authored decision affirming Family Court finding that child had been sexually abused; 3-2 decision.

[339] "Arielle disclosed that while her mother was out of the residence, respondent inserted his finger into her vagina.

"Respondent did not testify. Notably, Arielle's mother testified on his behalf. She explained that Arielle had been previously abused by a babysitter with whom she had purportedly watched adult films and was thereafter 'caught' by respondent watching such films. She further testified that the child had difficulties in school and was not always truthful.

"Respondent's sole assertion on appeal is that Family Court's finding of sexual abuse is against the weight of the evidence. We disagree. Respondent did not testify, 'thereby permitting Family Court to draw the strongest inference against him as the opposing evidence would allow'...Working from this inference and considering respondent's written statement and Arielle's in camera testimony, we find sufficient corroboration of her previous out-of-court statements..."

[341] [Crew, dissenting, with which Mercure concurs:] "We respectfully dissent...[I]t is apparent that the majority is persuaded to some degree (as was Family Court) by the consistent nature of Arielle's disclosures to her great aunt, 
the police investigator and the child protective caseworker. This Court has repeatedly held, however, that 'the mere repetition of an accusation by a child is not sufficient to corroborate his or her prior statement'...Stated another way, the fact that Arielle repeated the same allegations of abuse to a number of individuals does not constitute sufficient corroboration of her out-of-court statements. Nor is it significant that the individuals to whom Arielle made such disclosures believed her, as such individuals plainly cannot vouch for the child's credibility...

"Finally, we note that no medical or expert validation testimony was offered at the hearing, and while Arielle did testify, she did so in camera and was not cross-examined by respondent's attorney. Moreover, although the record reflects that there had been episodes of sexual 'acting out,' at least some of these episodes predated the alleged incident with respondent, during which time Arielle previously had accused a babysitter of fondling her in a similar manner. Thus, there were other avenues via which Arielle could have become sexualized at such an early age...In short, based upon our review of the records as a whole, we simply cannot say that Arielle's out-of-court statements were sufficiently corroborated and, accordingly, we would reverse Family Court's finding of abuse and dismiss the underlying petition."

(Also see People v. Masucci in Judge Paul Czajka section.)

People v. Horner, 752 N.Y.S.2d 147 (2002)

Charged with possessing a sexual performance by a child. Chenango County Court granted defendant's motion to dismiss indictment, and government appealed. Peters wrote 3-2 decision holding that legally sufficient evidence existed to sustain indictment count.

[148] "The charges arose from defendant's motion to dismiss the indictment. In determining the motion, County Court inspected the grand jury minutes and all confiscated photographs and requested that the People select those photographs which it claimed depicted 'sexual conduct' as set forth in [penal law]. The People selected four such photographs marked as Exhibits A, B, C and D: Exhibit A depicts three nude boys playing on a beach, the genitalia of one appearing erect; Exhibit B is of a naked boy, casually propped against a tree, again suggesting an erection; Exhibit C is a grainy photograph of two boys lying together on a blanket, neither is nude; and Exhibit D depicts two shirtless boys on a couch, one reclines with his legs open while the second reposes upon his chest, nestled between his open legs, while the first boy is loosening the string of the second boy's swimwear as they both watch.

"In ruling upon the motion, County Court focused its inquiry on Exhibits A, B, C and D and determined that where the genitalia [149] are not displayed, the conduct will not fall within the parameters of the statute. As to the nude photographs, County Court concluded that [the law] contemplates activity of a more prurient nature than they depicted. Regarding the charge of attempted use of a child in a sexual performance, County Court found no evidence of 'sexual conduct, and, therefore, found insufficient evidence to establish an essential element of the crime. The People appeal.

"We do not agree with County Court's conclusion that both the exhibition of nude genitalia and activity of a prurient nature are required to make out a violation of this statute.

"One must consider the combined effect of the setting, attire, pose and emphasis on the genitals and whether it is designed to elicit a sexual response in the viewer..

"Where, as here, defendant is found to possess a series of 'crotch shots' of young boys, some clothed and some nude, a prohibited exhibition of the genitalia can be found...[W]e conclude, after reviewing all of the photographs before the grand jury, that this count of the indictment should have been upheld as supported by legally sufficient evidence."

[Mercure, dissenting in part, with which Spain concurs:] "We respectfully dissent from so much of the majority's determination as would reverse County Court's order dismissing count one of the indictment.

"A grand jury indicted defendant for, inter alia, possession of a sexual performance by a child...based on his possession of approximately 180 poor-quality black and white photographs of Internet web pages displaying photographs of boys alleged to be less than 16 years of age. Defendant moved to dismiss the indictment on the grounds that most if not all of the photographs failed to depict 'sexual conduct,' the exhibition to the jury of numerous photographs that failed to depict sexual conduct was prejudicial and tainted the grand jury process, and the grand jury may not have been properly instructed as to the definition of 'lewd' or 'exhibition.'

[152] "Describing Exhibit C as 'grainy' is something of an understatement. In fact, the photograph is of such poor quality that we are unable to distinguish any body parts other than human legs, and we are at a loss as to how any reasonable person could discern a lewd exhibition of the genitals therefrom. Although Exhibits A and B each depict a nude boy with his penis exposed, and notwithstanding the determinations of County Court and the majority that the photographs 'suggest[]' an erection, we believe that the children's poses and the poor quality and shading of the photographs make it impossible to determine whether either of them has an erection. Furthermore, in neither of these exhibits is the focal point of the visual depiction on the child's genitalia, the settings are not sexually suggestive in any way, the poses of the children are by no means unnatural, there is nothing about either of them that suggests sexual coyness or a willingness to engage in sexual activity, and we see no basis for a finding that either depiction is [153] intended or designed to elicit a sexual response from the viewer. Finally, 
although sexually suggestive, Exhibit D lacks any visual depiction of a child's genitals. To the contrary, the only genital area that can be viewed is covered by a bathing suit and...no erection or even an outline or other visual suggestion of genitalia can be discerned.

"[T]here may be some merit to defendant's claim that the District Attorney's mass submission to the grand jury of 180 photographs in support of his request that the grand jury return a single count of possession of a sexual performance by a child was highly prejudicial and rendered the resulting indictment defective...The sheer mass of the material put before the grand jurors, by far the greater part of which could not by any stretch of the imagination constitute a sexual performance, could have had the effect of inciting the grand jurors against defendant, especially when they were not instructed as to the definition of 'lewd.' This is particularly so in view of the District Attorney's initial statement to the grand jury: 'This deals with child pornography so if anyone feels that they can't stomach it [they may] leave the room for personal reasons.'"

People v. Kwiatkowski, 805 N.Y.S.2d 188 (2005)

Peters is the author of this decision. This is a Sexual Offense Registration Act ('SORA') case, involving the 'level' of dangerousness assigned upon one's release from prison, with '1' being the least dangerous, and '3' being the most.

Before any court hearing is held on the matter, a 'points' assessment is made, based on an algorithm which is meant to capture one's (supposed) sexual 'dangerousness' based on numerous factors. In this case, the 'presumptive' risk-level was 2. But in the court hearing, the judge has the discretion -- for good cause -- to upwardly or downwardly depart from that presumptive risk-level.

[189] "Here, County Court articulated that an upward modification was necessary due to, among other things, defendant's expressed desire to be a spokesperson for an organization which advocates allowing sexual contact between adult males and minor boys."

The organization at issue here was the North American Man-Boy Love Association ('NAMBLA'), which also figured prominently in Nickel's trial (see Propensity/Who Cares? section).

Therefore, Peters 'found' that this man's (alleged) interest in being such a 'spokesman' made him more likely to actually commit criminal acts. But why – exactly – was that (allegedly) the case?

Let's try a 'thought-experiment': Say there is a 'spokesman' for NAMBLA. Let's also assume that person has never been convicted of any crime. Should he be assigned a 'risk level' anyway? Of course not. This person -- like any member of any lawful organization -- is merely exercising his rights under the 1st Amendment.

Why, then, is it okay to -- in effect -- punish someone more severely not for what he actually did, but rather, for what he says, thinks, and feels? Clearly, that is not okay.

An analogy might be someone convicted of a firearm-related crime being punished more severely because he was a member of -- or wished to be a spokesman for -- the National Rifle Association (NRA).

In this country at least, we're not supposed to have thought-crimes.

People v. DeVito, 800 N.Y.S.2d 188 (2005)

This appears to be only one of two child sexual abuse cases that Peters ever voted to reverse (also see O'Neill, below); she also wrote the below opinion.

[255] "The prosecutor's remarks were highly prejudicial, did little to impeach defendant's testimony or credibility, were irrelevant to the crimes charged, appealed to the fears and prejudices of the jury...and were designed to sidetrack the issue away from defendant's guilt or innocence...They had no place in this trial."

Virtually all of the above would apply to Nickel's trial as well; and yet, Peters not only had no problem affirming all of his convictions; she even went so far as to insist that his maximum-possible sentence of 54 years should not be reduced. (Peters wrote the DeVito opinion just seven months after the decision in Nickel's case.)

People v. Romano, 845 N.Y.S.2d 151 (2007)

Peters joined in affirming this conviction, but did not actually write it.

[152] "Appeal from a judgment of the County Court of Rensselaer County (McGrath, J.), entered December 21, 2004, convicting defendant upon his plea of guilty of the crimes of attempted murder in the second degree (three counts) and reckless endangerment in the first degree (six counts).

"In February 2004, defendant, who was 16 years old, wrote a suicide note and then took a loaded shotgun into the high school that he had previously attended. After entering a bathroom and waiting for approximately 15 minutes, defendant used his cell phone to send text messages to his friends informing them that he was in the school with a gun and warning them to leave. A few minutes later, while exiting the bathroom, defendant encountered Eric Farrell, a student. Defendant pointed the shotgun at Farrell, who ran into an open classroom. At that point, defendant saw two other students, Jeffrey Kinary and Kristopher Steponik, in the hall outside the bathroom. Kinary made eye contact with defendant, who pointed the shotgun directly at him and pulled the trigger. Kinary, who dropped to the ground as he saw a flash of fire from the barrel of the gun, was not hit. After Kinary and Steponik heard a second shot being chambered and attempted to run and crawl away, [153] defendant fired at them again and the wadding of the shotgun struck Stepanik in the leg. Defendant then entered a classroom with the gun but was pulled back out by Assistant Principal John Sawchuk, who attempted to wrestle the shotgun away from him. As a teacher, Michael Bennett, approached to assist 
Sawchuk, defendant swung around and the gun went off, striking Bennett in the leg. [Thus, he was the only person actually hit by gun-fire.] At Sawchuk's urging, defendant then agreed to give up the shotgun. Defendant was arrested and transported to the Rensselaer County Jail, where he was observed that night laughing at television news of the incident."

Assuming this last bit did occur, one wonders what relevance it's supposed to have; presumably, to make it more acceptable to affirm Romano's plea 'deal,' which sentenced him to 20 years.

Nickel also was heavily criticized for laughing, at one point in his trial, when the judge gave a little verbal jab to the prosecutor. Naturally, that was taken as clear evidence that Nickel was not taking the proceedings seriously. On the contrary: As if often the case, laughter -- there and then -- functioned as a badly-needed, pressure-release valve.

It may be recalled that during one of the 9/11 Commission's public hearings, after much discussion of extremely weighty issues, one of its members said something to lighten the mood a bit; and indeed, nearly the entire room broke out in laughter. Did that mean they thought 9/11 was funny? Of course not. As with the other two above examples, it is deeply dishonest to suggest otherwise.

"Defendant was subsequently charged in an indictment with three counts of attempted murder in the second degree, one count of assault in the second degree, and 82 counts of reckless endangerment in the first degree.

[156] "[D]efendant argues that his waiver [of the right to appeal] should be deemed involuntary due to his youth, history of mental illness and use of the medication Paxil -- which he claims caused impaired judgment and serious emotional side-effects -- at the time of the plea..."

Just one judge dissented from this affirmance: Justice Cardona. (By the way, Cardona had initially been assigned as one of the justices to hear Nickel's appeal. However, because of a possible conflict-of-interest -- due to the fact that Nickel's appellate lawyer had worked on Cardona's election campaign -- he recused himself.) The following is from Cardona's dissent in the Romano case:

[158] "At the time he purported to waive his right to appeal, defendant had just turned 17 years old, very nearly the youngest age at which defendant could be confronted with the critical decision at issue here. He had no prior experience with the criminal justice system. And, moreover, the record undisputably demonstrates that defendant had a documented medical history of severe depression and anxiety, for which he was still under treatment at the time of his waiver. In this context, defendant's youth, inexperience and psychological condition do not support the assumption that he grasped the distinction between those rights automatically forfeited by his guilty plea and those rights he was asked to separately waive.

[159] "Finally, I turn to the severity of defendant's prison sentence -- 20 years. In my view, under all the circumstances herein, that sentence is harsh and excessive and should be reduced...In arriving at that conclusion, I certainly do not diminish the gravity of the harm that defendant actually caused to the innocent victims of his actions. Indeed, we have all witnessed the devastating results of gun violence in schools; it is unacceptable. Nevertheless, justice and the law demand that each case be evaluated on its own facts. As previously mentioned, defendant has a documented history of mental illness. These illnesses led to his brief hospitalization in 2003, and his extensive course of treatment for these illnesses consisted of, among other things, numerous prescription medications, including Zoloft, Ziprexa, Effexor, Celexa, Paxil and Xanax. Here, it is apparent from the information in the record, which is largely undisputed, that defendant's suicidal thoughts and extensive mental health illnesses were inadequately or improperly managed. Alan Tuckman, a psychiatrist who evaluated defendant following [160] the subject incident, opined that, despite the fact that defendant suffered from a severe mental illness, he 'was essentially poorly and ineffectively managed in the months prior to the incident.' Tuckman went on to state that, had defendant been adequately treated, 'it is very likely that his depression could well have been kept under control and the incident leading to his arrest would have been averted.'

"In light of this uncontradicted medical proof and keeping in mind defendant's youth, lack of prior criminal history and numerous letters of support written on his behalf...20 years of incarceration can only be deemed harsh and excessive..."

But not as far as Judge Peters was concerned. Apparently, she only cares about young people when they're the victims of sexual crimes, as opposed to the perpetrators of non-sexual ones.

People v. O'Neill, 887 N.Y.S.2d 705 (2009)

This the second of only two child-sex-abuse cases Peters ever voted to reverse; she also authored this one:

[708] "[T]he victim's testimony was laden with inconsistencies, contradicted other evidence and, at times, strained credulity. For instance, although she initially reported that defendant had raped her 10 to 15 times and that most of the rapes occurred in defendant's car, her trial testimony differed dramatically, in that she claimed that she was raped and subjected to other related sexual conduct on six separate occasions while in defendant's office" [Emphases added.]

The above is directly analogous to Nickel's case as we'll: 'Arthur' wrong about literally each and every detail about Nickel's Home that he testified to, as well as the fact that he changed his stories as to where the two most serious incidents supposedly occurred. But, no reversal for 
Nickel. One wonders if four years later, she even remembered Nickel's case when she wrote the above decision. (Perhaps ironically, Peters was the only person on the above panel and Nickel's.)

People v. Fernandez, 903 N.Y.S.2d 176 (2010)

This is another child-sex-abuse case which was reversed. Here, however, Peters voted to affirm the convictions:

[178] "County Court improperly precluded defendant from presenting testimony of two family members regarding the complainant's reputation in their family for untruthfulness...The court's refusal to permit the testimony denied the jury the opportunity to perform its function in fully assessing the credibility of the complainant. This was particularly damaging to defendant considering that the only evidence presented to establish that the abuse actually occurred was the complainant's testimony and, therefore, 'her credibility was the central issue'...

Peters and one other justice dissented, arguing that the convictions should be upheld because no proper foundation has been laid for the proposed testimony.

State v. Donald DD, 967 N.Y.S.2d 186 (2013)

This is a sex offender civil confinement decision, written by Peters, affirming a county court decision to civilly commit this person.

[186] "[His] history of sexually inappropriate behavior began at the age of nine, when he admitted to molesting three young girls and was declared a person in need of supervision. Since then, he has amassed an eclectic criminal record that includes numerous sex-related convictions. In 2004, he pleaded guilty to [rape 2nd and att. rape 2nd] as a result of his sexual activity with two girls, aged 12 and 14. He was initially sentenced to a jail term of six months and a concurrent probation term of 10 years.

"[He] raped an adult acquaintance shortly thereafter...He...was sentenced to a prison term of 1 to 3 years. He was paroled in 2008 and, shortly thereafter, allegedly raped his wife and sexually abused their two children. [He] was then detained and charged with violating the terms of his parole by failing to register as a sex offender, disregarding his curfiew and being in the presence of his children." [Emphasis added; he was never actually convicted of these crimes.]

"[He] contends that the jury's verdict [which found that he suffered from a mental abnormality as defined by Mental Hygiene Law] was against the weight of the evidence, specifically asserting that the jury could not determine that he suffered from a mental abnormality because he suffers from a mental condition without any sexual component, namely, antisocial personality disorder with psychopathic traits. We disagree. The statutory definition of mental abnormality does not require any specific diagnosis..."

State v. Donald DD, 996 N.Y.S.2d 610 (2014)

This is a Court of Appeals reversal (by a vote of 4-3) of the above decision.

[610] "[W]e hold that...evidence that a [person] suffers from antisocial personality disorder cannot be used to support a finding that he has a mental abnormality... when it is not accompanied by any other diagnosis of mental abnormality.

"Dr. [Stuart] Kirschner [a psychologist testifying for the state] conceded that ASPD [Antisocial Personality Disorder] could be found in most prison inmates ('probably...80 percent').

"On July 26, 2002...Donald DD., then 18, had sexual intercourse with a 14-year-old acquaintance... [He] then asked the girl whether her 12-year-old cousin would have sex with him. The younger girl was afraid, and did not resist when [he] partially inserted his penis into her vagina. [Emphasis added. Note that the Third Dept. decision written by Peters conveniently omits mentioning that Donald DD. was just barely old enough to have been charged with these crimes. (The minimum age requirement for that was 18.)]

"In the spring of 2008, [he] was evaluated for civil management under Mental Hygiene Law...A psychiatric examiner, Dr. Mark Cederbaum, opined that [he] suffered from ASPD, but did not have a mental abnormality within the meaning of Mental Hygiene Law..." [Emphasis original. Peters conveniently failed to mention this as well.]

"The Appellate Division reasoned that ASPD

'affects the emotional and volitional capacity of its sufferers by predisposing them to act upon their urges in an aggressive manner. [State] experts found [Donald DD.] to have inappropriate sexual urges given his pattern of engaging in sex offenses, and that the disorder caused him to disregard any restraints he may have had against acting upon them. Those experts further opined that [his] repeated commission of sex offenses demonstrated his serious difficulty in restraining those impulses, particularly because he acted upon them despite knowing that he was under supervision and having already undergone sex offender treatment.'

"Undoubtedly, sex offenders are not notable for their self-control. They are also, in general, not highly risk-averse. But beyond these truisms, it is rarely if ever possible to say, from the facts of a sex offense alone, whether the offender had great difficulty in controlling his urges or simply decided to gratify them, though he knew he was running a significant risk of arrest and imprisonment.

"We do not decide on this occasion from what sources sufficient evidence of a serious difficulty controlling sex-offending conduct may arise, but they cannot consist of such meager material as that a sex offender did not make efforts to avoid arrest and re-incarceration." [Emphasis added.]

"Donald DD.'s appeal presents us with an opportunity to decide...whether a civil commitment...may be based solely on a diagnosis of ASPD, together with evidence of sexual crimes. We hold that it cannot.

"We believe that an ASPD diagnosis has so little relevance...that 
it cannot be relied upon to show abnormality for [Mental Hygiene Law] purposes...Our conclusion is not based on research that is outside of the record, our own armchair psychology, or even common sense (although all of these point in the same direction). Instead, we base it on the expert testimony in the appeals before us."

This testimony was also 'before' Judge Peters. It would appear that she read it in such a way as to support the result that she was bound and determined to arrive at, no matter what. She played similarly fast and loose with the actual facts in Nickel's case as well, in arguing that his draconian sentence should remain unchanged. See State Appeal.


"'Serious' Effort Vowed on False Convictions," by Joel Stashenko, New York Law Journal, 7/15/09, pg.1.

"Chief Judge [of the New York State of Appeals] Jonathan Lippmann announced the formation of the 'Justice Task Force'...[H]e wants the panel to be a permanent, independent entity that will review police, prosecution, defense and judicial practices in cases where wrongful convictions have been confirmed.

"The goal is to determine why innocent people were convicted and to recommend ways to prevent future mistakes.

"However...the commission will focus on individual cases only after the courts and/or prosecutors have determined that there has been a miscarriage of justice. It will not investigate pending appeals in which defendants are challenging their convictions.

"Among those named to the task force [is Judge] Karen K. Peters..."

This seems rather like putting Prosecutor Peter Torncello in charge of the lawyers' ethics committee.


"Appellate Division on Appeal: The Justices' Rates of Agreement, Rejection, and Vindication by the Court of Appeals," by Jason A. Cherna, Jessica Blain-Lewis, and Vincent Martin Bonventre, 70 Albany Law Review 983 (2007).

"New York State's intermediate appeals justices vary widely in their rates of success on review by the Court of Appeals, the State's highest court. At one end, there are those justices whose votes and opinions, whether majority or dissent, are consistently ratified by the high court. At the other end, there are those whose opinions are regularly rejected. Analogously, when some of the justices dissent against the majority opinion of their court, they are [984] frequently vindicated by a reversal at the Court of Appeals. Other justices only see their minority opinions rejected a second time upon appeal at the state's highest court.

"The study examined every non-unanimous decision of each of the four departments of the New York State Appellate Division rendered between January 1, 2000 and December 31, 2005, which was in turn reviewed on appeal by the Court of Appeals by June 2006, the point at which the data collection for this study was completed.

[985] "Of the total 254 divided Appellate Division decisions reviewed by the Court of Appeals...30 decisions...were from the Third Department."

[989] Table 1 lists those justices with 'High Agreement Rates,' meaning that the Court of Appeals almost always agreed with their opinions, and 'High Rejection Rates,' meaning that the high court almost always rejected them.

Three Third Department justices are listed as having high agreement rates: Mercure (100%), Rose (76%), and Cardona (67%). None of them were on Nickel's appellate panel.

By the same token, three other Third Department justices were listed as having high rejection rates: Lahtinen (80%), Carpinello (70%), and Peters (68%). Unfortunately, the latter two were on Nickel's appellate panel. (Thus, had the Court of Appeals actually heard Nickel's case, perhaps it would have disagreed with their affirmance of Nickel's convictions as well.)

"The Third Department's Justice Carpinello had seven of his ten divided-decision votes rejected by the high court, or 70%, including all five of his dissenting votes. Justice Peters of the same department had a 68% rejection rate, representing thirteen of her nineteen votes, including eight of her nine votes in dissent."

[991] Table 2 lists -- of those cases with divided appellate opinions -- 'High Dissent Rates,' 'High Vindication Rates,' and 'Low Vindication Rates.'

The Third Department justices with 'high dissent rates' were Lahtinen (70%), Peters (53%), and Carpinello (50%).

The Third Department justices with 'high vindication rates' were Mercure (100%) and Cardona (50%).

Finally, the Third Department justices with 'low vindication rates' were Carpinello (0%) and Peters (11%) (just one out of nine).


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