....November 3, 2:15 PM
 
 
   
Next Tuesday Is Election Day – Vote!

By MICHAEL SCHENKLER

As far as contested elections are concerned, in our great city, they barely exist. The two party sytem is at risk and the fine campaign matching system has proven to be ineffective in bringing competitive Election Day contests to the people.

Incumbents just can’t be beaten. Oh sure, with sexual harassment, lunacy or criminal indictment we do occasionally see a seat change hands in the city – occasionally. Even that’s not enough.

Except for term limits, the present election system just doesn’t work to offer alternatives to the people. Unless there is additional major Election System reform, those who wish to do away with term limits, might as well also do away with democracy. More and more we are seeing deals and self serving legislatures rendering the will of the people meaningless on Election Day. Those plotting to further erode it should be deemed enemies of the people.
Even though we encourage everyone to vote, sadly there are not real contests to attract us to the polls.

Citywide, in the Mayoralty perhaps there is what can be considered a race, however, the incumbent Democratic Public Advocate and Comptroller are not challenged by the Republican Party. While we support both incumbents, we believe the system only works if the other major party offers alternatives. The third party candidates just aren’t in the game.

The situation in the Queens Council races is no different. Only 4 of the 14 Council races have candidates from both parties. And in none of them is there real competition. The Dems have chosen, or struck a deal, to give the one Republican — who is a Council shining star – a free ride, while Republican County Chair Serf Maltese seems to do little to build a party, content being left alone and protected in his little southwest conservative corner of the borough. It is time for Republicans to rebuild their organization and find new direction. There’s little the voters can do about it. But if something doesn’t happen soon, someone will build a new second party in this borough.

As far as the Mayor is concerned, we don’t care what party he’s from, Mike Bloomberg’s performance has won our support.

Proposal Number One
While there are several items on the ballot worthy of discussion and your attention, there is one that overrides all the others.

We sat down to pen our strong opposition to Ballot Proposal One which modifies how the State Budget is adopted, but after reading the words of Henry Stern, our friend, former Councilman and Parks Commissioner and one of the brightest City fathers and good government gurus around, we’ve decided to borrow his. Henry explained our position quite well in his online NYCivic.com column last week; we present an edited version here:

“A sleeper proposal on the ballot would drastically change the way the State adopts its annual budget, and substantially alter the balance of power between the governor and the legislature.

Let us be clear, the way the budget is currently put together is deeply flawed. Twenty out of the last 21 state budgets have been months late. In 2005, the budget was on time for show purposes, but some issues were left unresolved. The sums appropriated in the budget exceed the revenues received, which results in increased borrowing and ever-rising debt service costs.

The State Legislature has come up with a proposal to deal with the budget problem. Their plan: to give themselves more power to adopt a budget and drastically reduce the governor’s role. Although the governor would still be allowed to propose a budget, if it were not adopted by a certain date, the legislature would take over and pass its own budget.

The power that would be stripped from the elected governor would be divided between two men. Their names are Joseph Bruno and Sheldon Silver. Bruno is majority leader of the state senate and Silver is speaker of the assembly. They control their branches of the legislature. They are elected, as all legislators are, from relatively small districts. They are not accountable to the public in any real way.

You may wonder how such a proposal could be put before the public. Well, the legislature has the authority to do just that, and exercised it, in its own self-interest.

Let us go to the heart of the matter. If you believe that Joe Bruno and Shelly Silver would do a more honest, more equitable and more efficient job than an elected governor and his professional staff, you should support this Constitutional amendment. If you, from experience or insight, doubt that will be the likely result of this amendment, you should oppose it.

That is not to say that the budget process could not be improved, by open, public hearings, conference committees and time constraints. There is plenty of room for genuine reform. But reform should not be used as a carrot to lure people and organizations to support the emasculation of the governor and the exaltation of the speaker and majority leader. In no way have our Democratic assembly members and Republican senators shown themselves worthy of such elevation.

It is remarkable to us that, after years of complaint about the budget and the bargaining process by which it is adopted, we will be faced at the polls by a plan to replace three men in a room with two men in a room, cutting out the one man who is elected by all the people of the State of New York. “

We adamantly oppose Proposal Number One — another sham and scam by the State legislature to bypass the present budget process for its own power — and urge a negative vote.

Michael Schenkler can be reached via this contact form.

 
 
Court Reads 4th Amendment: To Aid Man With Coke In Car

Henry Stern
By HENRY STERN

A decision issued last week by the Court of Appeals, the highest court in New York State, in the case of People v. Gomez in which, in a nutshell, Gomez, now indicted for drug trafficking, consented to a search of his car. The police, noting new carpeting on part of the floor and new painting on the undercarriage, pried open the gas tank with a crowbar and found one and a half pounds of cocaine.

The Court of Appeals reversed the Appellate Division and threw out the conviction on the ground that Gomez’s consent to a search of the car did not include permission to search the gas tank, In this case, external evidence indicated to the police that the tank had recently been altered.

The case was remanded to the Appellate Division for consideration pursuant to the Court of Appeals decision, so Gomez will not necessarily go free. The lower court will consider the extent of the consent, the effect of the defendant’s silence when the search was conducted in his presence, and the reasonableness of the police officers’ suspicion, which was based on the physical appearance of the car - the repainted undercarriage and a fresh carpet over part of the floor of the rear compartment.

Nonetheless, the Court of Appeals seems to have rejected the ‘reasonable man’ standard in favor of the protection of gas tanks, even when they contain cocaine. It would, however, be only fair that in the event no drugs were found in the tank, the city should have the obligation to repair the tank, refill it with gas, and reinstall or replace the carpet.

This is a case you are qualified to judge for yourself after reading what the judges wrote. Both opinions read like Talmudic disputations, parsing and twisting past precedents so they appear to govern this fact situation.
We, in our naiveté, see what we believe is the interest of the general public. It is better to interfere with the distribution of cocaine before it reaches the streets for resale than to collaborate with drug dealers by limiting the scope of their consent, or forbidding the police to follow clues which they discern because of their experience in dealing with subterfuge of this sort. Query, if a police dog had sniffed the cocaine, would that be reasonable cause for a search?

What we derive from this case is that these judges are erudite and display skills in reasoning and communication.
But the Court of Appeals majority, in our judgment, just doesn’t get the underlying situation. What if it were a terrorist transporting an infernal device? Should he get away with his crime just because the search of his car was more intense than the terrorist had anticipated when he consented to the search? What if he had said “Stop” in the middle of the search? That sounds ridiculous to us. But you will find that concept in the majority opinion, dealing with the nuances of defendant’s expectations, scope and extent of Gomez’ consent.

Clearly, most of the Court of Appeals is not persuaded by pragmatic arguments. They see the case as an exercise in the meaning and scope of consent. Others see People v. Gomez as a rebuke to cops using their jobs and doing their job by making a more thorough search than Gomez may have had in mind.

The New York State Court of Appeals has traditionally been even more protective of defendants’ rights than the United States Supreme Court. That may be a blue-state phenomenon.
Prosecutors can go too far, and the courts are a necessary check. Both opinions discuss a ‘bright line rule’ in different contexts to prove their point. The bright line can be drawn in different places.

Rules are helpful guides, as long as they can be modified by common sense. In People v. Gomez, we suggest that the Court has let technicalities impede reasonable judgment as to what conduct is appropriate for police officers. We train cops to use insight and to follow small clues. We should not disregard their findings when they do what we have hired and trained them to do.
Starquest@NYCivic.org

Not4Publication.com by Dom Nunziato
Michael Schenkler can be reached via this contact form.