Monday, November 17, 2014

Important Decision on Interrogation of Suspects with Low IQs - Providing Guidance to Courts and Counsel

Jill Paperno, Esq.
All too often, we represent defendants who are intellectually limited, due to genetic or birth defects, lead poisoning, traumatic brain injury or other causes. We struggle to persuade prosecutors and judges that these disabilities should be considered during plea negotiations. But sometimes we fail to recognize the effect that mental disabilities may have on a defendant's ability to understand Miranda warnings, knowingly and intelligently waive rights, and withstand coercive tactics of aggressive officers.

If a defendant with such disabilities has given a statement, or consented to a search, defense counsel must become familiar with the law relating to admissibility of statements made by these defendants. But knowing the law is not enough. We must obtain our clients' educational, psychological and social services histories, and consult with an expert, or even better, put on our own expert at suppression hearings and trial. We should consider whether the client had the capacity to understand the words of an officer reading Miranda, and whether the client had the capacity to understand abstract concepts such as constitutional rights.  We should consider whether the client is excessively compliant and more likely to simply agree with an officer's accusations. We should analyze the officer's questions and their impact on the particular responses. (Of course, this is all easier with a recorded interrogation.)

For a great example of the defense analysis and use of this information in a case in which the defendant, who had an IQ of 68, was convicted of numerous sex offenses, you must read the Fourth Department's decision  in People v Knapp (2014 NY Slip Op 07801 [4th Dept 11/14/14]).
In Knapp, Justice Peradotto, writing for a unanimous Court, provides a comprehensive analysis of the law relating to admissibility of statements of defendants who have mental disabilities.  The decision addresses both issues relating to Miranda as well as voluntariness, and recognizes the significance of defendant's highly compliant nature as tested by the expert, and the impact of the officer's tactics.  To repeat - it is a "must read."

Kudos to defense counsel and the expert, who understood the importance of testing and analyzing the defendant's intellectual abilities and compliance characteristics, and linked them to related aspects of interrogation.  The Court reversed the conviction, suppressed the defendant's statement, and dismissed certain counts, remanding others for retrial.

Sunday, November 16, 2014

As we wait . . .

The result of the Ferguson, MO grand jury investigation into the shooting death of Michael Brown is scheduled to be announced any time now (authorities indicated that the results could be made public as early as yesterday). No one but the grand jury knows what that result will be. That would not be the case, were the situation reversed.  If a black man in Ferguson had shot a police officer (who, unlike Michael Brown, would have been armed) then other black men - members of the shooter's gang - surrounded the area a prevented the officer's body from being removed from public view for hours, there would be no question of the outcome of any grand jury investigation.  Those men, if they lived through the ordeal, would be charged and the shooter would not be at home with his family on paid administrative leave. Maybe there would be reasons not to charge the shooter in that case, but is there any chance, really, that those reasons could ever result in a vote not to charge the shooter? Maybe there are reasons for the Ferguson grand jury not to charge Michael Brown's killer. But if the grand jury votes not to do so, claims that a different, and double standard was applied, will be hard to refute.   

Physical Helplessness, Mental Incapacity and the Difference Between the Two

Jill Paperno, Esq.

Sometimes our clients are charged with engaging in sexual contact with complainants who are old enough to consent, but claim that based on their mental or physical condition, they could not. The penal law provides for prosecution if a complainant is physically helpless or mentally incapacitated. The distinction between a complainant who is physically helpless and one who is mentally incapacitated. is very important because if a defendant is charged with sexual conduct with someone who is mentally incapacitated, and the incapacity was based on the complainant’s voluntary consumption of alcohol or drugs, the defendant may not be convicted. So it is important to understand the distinction between physical helplessness and mental helplessness, to raise the issues based on the distinction in grand jury motions, and to address the issues, when appropriate, at trial. 

Penal Law Section 130.05(3) states that “A person is deemed incapable of consent when he or she is: (c) mentally incapacitated.”  Mentally incapacitated is defined in Section 130.00(6) of the Penal Law as follows: “'Mentally incapacitated’ means that a person is rendered temporary incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent.”

This is the date-rape drug statute.  It’s intended to permit prosecution of those who, as they used to say, slipped someone a mickey (which has an interesting derivation – Mickey Finn – but I digress.)  This is a charge that we rarely see.

Anyway, the key to this prosecution is that the complainant cannot have become intoxicated voluntarily. See People v. Johnson, 23 NY3d 973 (2014). So what’s a prosecutor to do when a complainant who was really drunk says she was raped? Well, it seems that some actually charge defendants who have taken advantage of the voluntarily inebriated with an offense alleging physical helplessness.  But that’s a different charge.

Penal Law Section 130.05(3) states that “A person is deemed incapable of consent when he or she is:  (d) physically helpless. “Physically helpless” is defined in Section 130.00(7) as follows: “’Physically helpless’ means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.”  

See that?  UNCONSCIOUS OR…PHYSICALLY UNABLE TO COMMUNICATE – not mentally incapable of deciding.  In People v. Teicher, 52 NY2d 638 the Court of Appeals, in affirming the conviction of a dentist who had contact with his patients who were still under the effects of sedation, noted the aspect of physical helplessness:
Carson was heavily sedated at the time the initial touching occurred and, as a consequence, she was in an extremely weakened condition. Thus, although she had enough control over her body to pull her hand away after defendant had placed it against his penis, the trier of fact was entitled to infer that she lacked capacity to consent to the original touching because of her generally weakened condition. 

People v. Teicher, 52 N.Y.2d 638, 646.
With respect to another complainant in the same case, the Court stated, “the state of the victim's physical helplessness at any given moment is largely a question of fact which, in view of this and other testimony, we may not question upon this record.” 52 N.Y. 2d at 649. Although Teicher appears to support a conclusion that a person may be physically helpless and yet somehow attempt to foil the sexual conduct, the Court of Appeals concluded that in a voluntary intoxication case, the effort to stop the defendant established the complainant was not physically helpless:
The People thus argue, in substance, that Catherine was physically helpless at the moment she prevented defendant from fondling her. The argument is self-refuting; she could not have blocked him if she were helpless.  People v. Cecunjanin, 16 N.Y.3d 488, 492 (N.Y.2011).
The complainant in Cecunjanin was extremely intoxicated – a woman in a bar, slumped over, at times seeming physically helpless, at other times, not so much.  The Court noted her BAC of .26%, as well as the legal limit of .08%. The Court recognized the important distinction between sloppy, drunken conduct and physical helplessness.

For a good discussion and review of other cases comparing physical helplessness and mental incapacity, see People v. Battease, 74 AD3d 1571 (3rd Dept., 2010).

So here is the take-away as I see it:

If a complainant engaged in voluntary intoxication, the defendant cannot be charged under a theory of mental incapacity.  So maybe the prosecutor will charge physical helplessness to try to get around the statute. But if the complainant does not display the true indicia of physical helplessness – unconsciousness or a physical inability to communicate - then the charge should not be filed.  Period. We must scrutinize the allegations and the elements of the charges.  Sometimes poor judgment is just poor judgment, and an unsuspecting, perhaps equally intoxicated participant should not be criminally charged.  In fact, to take it a step further, I think that this is one of several examples of how our penal law has criminalized sexual conduct and branded large numbers of people in ways that are just…criminal.

Wednesday, November 12, 2014

Ethan Nadelmann examines the failure of the war on drugs

Here's a provocative TED Talk, published today, by Ethan Nadelmann, former professor at Princeton University and founding executive director of the Drug Policy Alliance, "the largest and most influential organization promoting drug policies grounded in science, compassion, health and human rights." Mr. Nadelmann contends that the drug laws have more to do with the sublimation and control of disenfranchised groups of our society than the control of drug use and sale, contending, among other things, that if middle-aged white men were the primary consumers of smokeable cocaine and teenage black men were the primary consumers of Viagra, you would be able to get smokeable cocaine from your pharmacist with a prescription from your doctor and Viagra would get you a 5-10 year prison sentence.  

The groundwork of this presentation was laid here, at a debate between Mr. Nadelmann and Peter Bensinger, President & CEO, Bensinger, DuPont & Associates, at the "Rethinking the War on Drugs" symposium at Northwestern Law School on Feb. 20, 2014.

Saturday, November 8, 2014

The Second Circuit revisits the concept of curtilage for Fourth Amendment purposes

The recent Second Circuit decision in Harris v. O’Hare, 2014 WL 5471749 [2nd Cir. 2014], decided on October 30th, addresses and expands upon the concept of curtilage, a topic infrequently addressed in judicial opinions (common though it may be in dinner party and happy hour conversation). The Court’s examination of curtilage was important in Harris (and may be useful in other cases) because it delineates an area in which an individual enjoys an expectation of privacy protected by the Fourth Amendment.

So what is curtilage?  The curtilage of a dwelling house is the land immediately surrounding it, and excluding any associated “open fields beyond.”  In Harris, the Second Circuit noted that curtilage is a concept that “originated at common law to extend to the area immediately surrounding a dwelling house the same protection under the law of burglary as was afforded the house itself” (Id. at *7, quoting United States v. Dunn, 480 US 294, 300 [1987]).  Black’s Law Dictionary [1891] defines curtilage as:
The enclosed space of ground and buildings immediately surrounding a dwelling-house. In its most comprehensive and proper legal signification, it includes all that space of ground and buildings thereon which is usually enclosed within the general fence immediately surrounding a principal messuage [house] and outbuildings, and yard closely adjoining to a dwelling-house, but it may be large enough for cattle to be levant and couchant therein.  
To be what, you say? “Levant and couchant” (Black’s again): rising up and lying down, referring to trespassing cattle that have remained long enough to have lain down to rest and risen up to feed; generally for the space of a night and a day, or, at least, one night.

So generally, curtilage is the area around your house big enough for a trespassing cow to sleep in overnight.  What if you want to determine the size of your curtilage and don’t have a bovine-based measuring device handy? You could borrow one, or you could read Harris. Fast forward to December 20, 2006.  

Two City of Hartford police officers got a tip from a snitch that two illegal handguns were stashed under the front seat of an abandoned Nissan Maxima in the backyard of 297 Enfield Street in Hartford. Without making any efforts to corroborate this information (which turned out to be false), the officers went to the location, a single family dwelling occupied by Mr. Harris, his girlfriend, his twelve-year-old daughter K., and two St. Bernard dogs, Seven and Deuce. The home was surrounded by a chainlink fence that did not obstruct the officers’ view of the yard. There was an SUV in the driveway, but no Nissan to be found.  

The officers did not circle the block or the home to get a better view of the back yard, nor did they attempt to speak to the homeowner. Instead, the officers opened the gate and entered the fenced-in yard with guns drawn. As they did, K. was in the back yard with Seven, who she had let outside, on of her after-school chores. After relieving himself, Seven ran around the house in one direction and K. ran around the in the other direction. Officer JohnMichael O’Hare, seeing Seven running in his direction, believed the dog was chasing him.  He shot the St. Bernard twice at point blank range, shots that K. heard but did not see. As she rounded the opposite corner of the house, she saw Officer O’Hare, gun drawn, standing over Seven who was lying on the ground.  When K. begged O’Hare not to shoot her dog, he shot the dog again in the head, in front of her. No Nissan and no guns were ever found.

So after O’Hare has already neutralized the vicious St. Bernard, when 12-year-old K. asks him not to shoot her dog (who at that point is probably already dead), he shoots the dog again, in front of her. What an a-hole, eh? (the decision doesn’t say this exactly, but it might as well). K.’s father thought so too, and brought an action for damages stemming from the officers’ warrantless entry onto his property.

The central issue became: did the officers need either a warrant or probable cause plus exigent circumstances to enter the fenced-in yard? (i.e., was the fenced-in yard curtilage that was entitled to Fourth Amendment protection?). The trial jury returned a verdict for the defendants and, answering a special-verdict interrogatory, found that exigent circumstances justified the defendant’s warrantless intrusion into plaintiffs’ yard.  In response to plaintiff’s post-trial motions, the district court found both probable cause and exigent circumstances, and affirmed the jury’s verdict. 

On appeal, the Second Circuit rejected the findings of both probable cause and exigent circumstances, then went on to rule that the district court’s focus on exigent circumstances represented a finding, sub silencio, that exigent circumstances were necessary – i.e., that the fenced-in area around the house was protected by the Fourth Amendment. The Second Circuit agreed with this finding and went on to re-examine and clarify the concept of curtilage, holding that: 
At the time of the intrusion, it was also clearly established that a fenced-in side or backyard directly abutting a single-family house constitutes curtilage. Brucuglio v. Proulx, 67 Fed. App'x 58, 61 (2003) (“At the time of events giving rise to this action, it was clearly established that ... a fenced-in backyard is ‘curtilage’ entitled to Fourth Amendment protection.”) (citing Dunn, 480 U.S. at 300; Oliver v. United States, 466 U.S. 170,180 (1984)); see also United States v. Romero–Bustamente, 337 F.3d 1104, 1108 (9th Cir.2003) (holding that a yard that was “small, enclosed, adjacent to his house, and located behind his house; under Dunn, as a matter of law ... falls within the curtilage”). Curtilage questions are resolved with reference to four factors, including  
[1] the proximity of the area claimed to be curtilage to the home, [2] whether the area is included within an enclosure surrounding the home, [3] the nature of the uses to which the area is put, and [4] the steps taken by the resident to protect the area from observation by people passing by.
 Dunn, 480 at 301. The first three of the Dunn factors indisputably favor the conclusion that the side and backyard were curtilage. First, the area is in close “proximity ... to the home.” Dunn, 480 U.S. at 300. Second, the area is “included within an enclosure surrounding the home.” Id. Third, the officers had no reason to think that this area was put to any uses other than those associated with a home.
Furthermore, this Court’s prior reasoning in Reilly “clearly foreshadow[s] a particular ruling on the issue” of curtilage in the present case. Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010).  Nearly twenty years ago, we concluded that the curtilage of a criminal defendant’s home extended to a cottage located 375 feet from the main residence, because the entire property was enclosed by a single wire fence, some hedgerows, and woods, with no interior fencing separating the cottage from the main residence. United States v. Reilly, 76 F.3d 1271, 1277–79 (2d Cir.1996); see also Dunn, 480 U.S. at 301 n. 4 (“[F]encing configurations are important factors in determining curtilage.”).  And as in this case, the “actual use” of the land in Reilly included such “private activities” as cooking, swimming, Reilly, 76 F.3d at 1278, and other “intimate activity associated with the sanctity of a ... home and the privacies of life,” Dunn, 480 U.S. at 300. 
As the Supreme Court has explained, “for most homes, the boundaries of the curtilage will be clearly marked; and the conception defining the curtilage—as the area around the home to which the activity of home life extends—is a familiar one easily understood from our daily experience.” Oliver, 466 U.S. at 182 n. 12; see also Florida v. Jardines, 133 S.Ct. 1409,1414–15 (2013) (identifying a front porch as an “easy case” under the “ancient and durable” common law principles of curtilage, which would regard the porch as an “exemplar of an area adjacent to the home and to which the activity of home life extends”).  This case provides no exception.  Accordingly, it would not have been “objectively reasonable” for the officers to believe their acts did not encroach upon Plaintiffs’ protected curtilage. Okin v. Vill. of Cornwall On–Hudson Police Dep’t, 577 F.3d 415, 433 (2d Cir. 2009).  Based upon the foregoing, we conclude that the officers are not entitled to qualified immunity for their Fourth Amendment intrusion.
The Second Circuit then reversed the district court's judgment and remanded the case for a new trial on the issue of damages based on the officers' Fourth Amendment violation.

Friday, November 7, 2014

Why Innocent People Plead Guilty

Roughly 10% of those defendants who were later exonerated by DNA evidence through the efforts of the Innocence Project pled guilty to a crime they did not commit.  What would lead a person to do that?  Hon. Jed S. Rakoff, United States District Court Judge for the Southern District of New York examines that question in the above-entitled thought-provoking article (found here) in the November 20, 2014 issue of the New York Review of Books.  Judge Rakoff, both a prosecutor and a defense attorney before ascending to the bench, examines the institutional pressures that lead innocent people to plead guilty, including the threat of mandatory minimum sentences and the prosecutorial limitation of judicial sentencing discretion via charging (or not charging) offenses that carry such sentences, the imbalance of resources and available information between the prosecution and defense and, in federal court, the prohibition on judges' involvement in the plea negotiation process.  A short and interesting read. 

Tuesday, November 4, 2014

I Do Declare: Submission of Defendant's Affidavits/Declarations in Support of Suppression Motions

by Bill Easton

A defendant who files a suppression motion often faces a common dilemma in both state and federal court. Judges commonly insist on the submission of a defendant's affidavit or declaration before granting an evidentiary hearing in many instances, especially in the context of claims rooted in the Fourth Amendment. In many of these cases, the judge is wrong, and defense counsel should litigate the necessity and content of the affidavit before submitting a declaration from the client. If counsel finally decides to submit such an affidavit, the document should be cautiously drafted by the lawyer with an eye towards its possible use against the defendant should he or she not prevail on the suppression issue.

As a threshold matter, in both federal and New York State court, an affidavit/declaration submitted in support of a suppression issue can not be used affirmatively against a defendant by the prosecution in its case in chief at trial. (United States v. Simmons, 390 US 377, 394 [1968] [holding " ... it intolerable that one constitutional right should have to be surrendered in order to assert another."]). Such a prohibition, however, does not extend to use of the affidavit for cross examination or impeachment purpose against the defendant. (United State v. Jaswel, 47 F3d 539, 544 [2d Cir. 1995]). Further, under some circumstances, the government may attempt to make use of such an affidavit at sentencing to take away "acceptance of responsibility" points or even to mount an effort to establish obstruction of justice. Thus, whether to submit an affidavit/declaration is a critical decision, especially in the context of constructive possession cases--where defendant has to establish an expectation of privacy in the premises at issue for the hearing, while at trial the nexus between defendant and the premises may become a hotly contested issue. Most clients, although avidly in favor of suppression, are keenly aware of the need for caution in the submission of an affidavit linking them to the “hot premises” despite the constitutional assurances of Simmons.

Standard for an Evidentiary Hearing

There is no requirement that a defendant submit affidavit to trigger an evidentiary hearing, even in a Fourth Amendment context, in either federal or state court. In United States v. Pena, 961 F3d 333, 339 [2d Cir. 1992], the Second Circuit held that a defendant is entitled to an evidentiary hearing if his papers raised a "sufficiently definite, specific, detailed and nonconjectural" factual basis for the motion. Thus, it is the factual basis, not the source, that is the critical focus for whether a hearing is necessary. Accordingly, defense counsel should take efforts to include police reports and government source material in the motion in order to provide as many facts as possible.

New York Courts sometime insist on an affidavit from the defendant if he or she is contesting the admissibility of evidence, including a statement, taken from the defendant as a result of an illegal seizure. These Courts mistakenly rely on People v. Mendoza, 82 NY2d 415 [1993] for this proposition. Recently, in People v. Battle, 109 AD3d 1155 [4th Dept. 2013], the Fourth Department clarified that Mendoza poses no such requirement:

We agree with defendant that the court erred in ruling that defendant, in order to be entitled to a suppression hearing, was required to submit an affidavit in support of her motion. As the Court of Appeals has stated, "suppression motions must be in writing, state the legal grounds of the motion and 'contain sworn allegations of fact,' made by defendant or 'another person'" (People v. Mendoza, 82 NY2d 415, 421 [1993], quoting CPL 710.60[1] [emphasis added]). A suppression motion may be based on factual allegations made upon information and belief by defense counsel, provided that, as here, the sources of the attorney's information and the grounds of his or her belief are identified in the motion papers (see CPL 710.60[1]). The court also erred in suggesting that defendant was required to deny participation in the crime. It is well settled that a defendant must "deny participating in the transaction or suggest some other grounds for suppression" in order to warrant a suppression hearing (see Mendoza, 82 NY2d at 429 [emphasis added]).

(Battle, 109 AD3d at 1156 [emphasis added]).

In the context of suppression of a statement, in federal court the mere assertion that agents did not administer the Miranda warnings is enough to trigger a hearing. (United States v. Mathurin, 148 F3d 68, 69-70 [2d Cir. 1998]). Moreover, 18 USC §3501(a) requires that the government prove outside the presence of the jury that a defendant's confession is voluntary before it is admissible against a defendant. In state court, the “safe harbor” of a suppression hearing regarding a statement from a defendant or an identification procedure is even greater. CPL § 710.60[3][b] prevents a prosecutor from objecting to the factual basis for those hearings.


Even after Battle, some trial courts still insist on an affidavit from the defendant in the context of a Fourth Amendment claim. Defense counsel, then, must engage in the difficult calculus on how much to concede in order to obtain the evidentiary hearing on a case-by-case basis. 

Sunday, November 2, 2014

A Simple Way to Insure That Applications for Leave to Appeal Exhaust All Federal Constitutional Claims Raised in the Intermediate Appellate Court

    Applications for leave to appeal to the New York Court of Appeals from a decision and order of an intermediate appellate court affirming a conviction often focus on the issue or issues which are most likely to appear worthy of the attention of the Court of Appeals. As that Court’s website explains, those are significant and yet unresolved issues, such as those in  in which the law is not well settled, or involve the impact in New York of a recent decision of the United States Supreme Court (see, The New York State Court of Appeals Criminal Leave Application Practice Outline, IX(B)).
    Yet, it is possible that the briefs below also raised other meritorious issues, including federal constitutional issues, as to which the law is not as unsettled, and are thus, not as likely o be the basis for a grant of leave to appeal. In drafting applications for leave to appeal, counsel needs to be careful to also raise these federal constitutional issues in the leave application, since failure to do so will preclude a client’s right to federal habeas corpus review of these meritorious issues.
    Federal statute expressly provides that “[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State” (28 U.S.C. § 2254(b)(1)(A)).  Interpreting this provision, the Supreme Court has held that claims not submitted to the state’s court of last resort in a petition for discretionary review are deemed to be procedurally defaulted (O’Sullivan v. Boerckel, 526 U.S. 838, 843-48 (1999)). Thus, counsel should draft the leave application to clearly submit all federal claims raised below.
    A claim will be deemed exhausted when: (1) the petitioner fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts; and (2) petitioner has presented his claim to the highest state court which can hear his claim. (Baldwin v. Reese, 541 U.S. 27, 30-31 (2004); Boerckel, 526 U.S. at 845-48). A claim is exhausted if it has been “fairly presented” to the state court. (Daye v. Attorney Gen of N.Y., 696 F.2d 186, 191 (2d Cir.1982) (en banc), cert. denied, 464 U.S. 1048 (1984).
    The Court of Appeals for the Second Circuit has long recognized that state “courts may be alerted to the constitutional nature of a claim in a number of ways.” (Daye, supra, at 193. Thus, there is no requirement that in the state court proceeding the petitioner cite the provisions of the United States Constitution which were violated.  The Second Circuit had repeatedly held that a state defendant may fairly present to the state courts the constitutional nature by
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.  
(Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011); Jackson v. Edwards, 404 F.3d 612, 619 (2d Cir. 2005) (finding petitioner had fairly presented his claim to the state court because “the substance of the federal habeas corpus claim [was] clearly raised and ruled on in state court” even though petitioner had failed to explicitly name it as a federal claim)).
    Compliance with these holdings can depend on how one phrases the leave application. Applying these rules, the Second Circuit has held that a petitioner had not fairly presented his claims to the Court of Appeals when the leave letter argued “a single claim at length and [made] only [a] passing reference to possible other claims to be found in the attached briefs.” (Jordan v. LeFevre, 206 F.3d 196, 198 (2d Cir. 2000)).  In Jordan, after  a thorough presentment of a Batson claim, the leave application urged the court to grant leave to appeal “[f]or all of these reasons and the reasons set forth in [petitioner’s] Appellate Division briefs.” (Id.)  The Second Circuit held that this letter did not “fairly present” other claims in the Appellate Division briefs to the Court of Appeals because the letter’s concluding language “might as easily have been a reference to additional reasons for reviewing the Batson claim as an incorporation of other, different claims asserted in the lower court.” (Ramirez v. Attorney Gen. of N.Y., 280 F.3d at 87, 97 (2d Cir.2001) (explaining Jordan’s rationale).
    Critically, and in contrast, to the holding in Jordan, the Second Circuit held in Morgan v Bennett,  204 F.3d 360, 369-70 (2d Cir. 2000), that a leave application which expressly urges that the Court “ review all issues outlined in defendant-appellant's brief and pro se supplemental brief” was “sufficiently specific to alert the Court of Appeals that Morgan sought review of all of the issues raised in his pro se supplemental Appellate Division brief.”
    Thus, the explanation for the difference in the holdings in Jordan and Morgan appears to be that the leave application in Morgan, while concentrating on one issue, expressly sought review of all other issues, while the leave application in Jordan, instead of expressly seeking review of the other issues, stated that Jordan was seeking review “[f]or all of these reasons and the reasons set forth in his Appellate Division briefs...” It appears that if counsel in Jordan had sought review of all of the other “issues” raised in the Appellate Division briefs,  instead of employing the more ambiguous phrase “the reasons set forth in his Appellate Division briefs” the exhaustion requirement would have been satisfied for all of the issues raised below.
    Consequently, a simple way to avoid exhaustion problems in leave applications is to include the sentence “Pursuant to O’Sullivan v Boerckel (526 U.S. 838 [1999]), it is expressly urged that leave to appeal be granted to review all issues raised in the briefs filed with the intermediate appellate court.”