Posts tagged with "intelligently"

State Supreme Affirms Contractual Waiver of First Amendment Rights was Intelligent and Voluntary

In a recent post-judgment divorce action, the Supreme Court of Connecticut upheld a lower court’s ruling that the waiver of free speech rights by a party pursuant to a confidentiality agreement was made intelligently and voluntarily, and the party could be sanctioned by the court for breach of the agreement.

The plaintiff husband filed for dissolution of his marriage to defendant wife. They entered into a confidentiality agreement that restricted the dissemination of discovery material and disparaging or defamatory information to the public or press that related to the litigation, and these terms would survive marriage dissolution. Of primary concern was that such action could potentially be harmful to the husband and his business interests. The court approved the confidentiality agreement and made it a court order. Soon after, the marriage was dissolved and judgment incorporated into a separation agreement. This agreement stated that it superseded any and all previously-made agreements between the husband and wife, and as such were without effect.

Over a year passed when the husband found out the wife planned to appear on a nationally broadcast television program to discuss him, their marriage, and a pending custody matter. The husband immediately filed for a restraining order, and a trial court found in his favor. The court noted that the separation and confidentiality agreements did not cover the same areas of party rights and interests. It further noted that because the confidentiality agreement became a court order, the separation agreement could not nullify it. The wife appealed this decision on multiple grounds, most notably her First Amendment claim. She argued that the confidentiality agreement constituted prior restraint in violation free speech rights, that waiver is not enforceable unless it is narrowly tailored to advance a compelling state interest, and even if it could be enforced, she did not validly waive her rights.

U.S. Supreme Court precedent has found that where private individuals voluntarily enter into an agreement that restricts their own speech, they also waive their First Amendment rights. There is no requirement that enforceability relies on the existence of a compelling state interest. The reasoning behind this is the very nature of contractual liability, which is consensual in nature: one party makes a promise, and the other party offers consideration in exchange for that promise. Therefore, the Supreme Court of Connecticut held in this case that because the husband and wife voluntarily defined the scope of disclosures that would trigger sanctions, the wife couldn’t complain when the court held her to her promise.

For a waiver to be effective, it must be made intelligently and voluntarily. The party must be aware not just what the right or privilege encompasses, but also the relevant circumstances and the consequences of such a waiver. There is no requirement that the words “First Amendment” appear in an agreement if it would not materially add to the parties’ understanding of the right being waived. In determining whether a waiver was intelligent and voluntary, a court will consider whether the parties had relatively bargaining equality, negotiated the terms of the contract, were represented by counsel, and the extent to which each party benefited from the agreement.

Upon review of the case, the Supreme Court of Connecticut ruled that the trial court properly concluded that the wife intelligently and voluntarily waived her First Amendment rights. The wife had relative bargaining equality with the husband and negotiated the terms of the confidentiality agreement. She was represented by counsel, and because of her waiver, she significantly benefited. The Supreme Court affirmed the judgment of the lower court.

Whether advancing or defending a motion seeking to enforce the terms of a confidentiality or separation agreement pursuant to a divorce, a divorced individual is best served by consulting with an experienced family law practitioner. Should you have questions regarding matrimonial matters, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or JMaya@mayalaw.com.
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

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Father Not Denied Right to Counsel in Pro-Se Termination Proceedings

In an appellate decision released last month, the court found that the petitioner was not deprived of his right to counsel during termination proceedings because he intelligently and voluntarily waived this right. The respondent father and his child’s mother had a tumultuous relationship that included a history of domestic violence. While pregnant, the mother had practically no prenatal care and abused drugs and alcohol. She went into premature labor in April 2008, and several days after giving birth to their child, the petitioner, the commissioner of children and families (commissioner), removed the child under an order of temporary custody. In August 2009, the minor child was declared neglected, and the commissioner submitted a petition to terminate parental rights, citing failure to rehabilitate, abandonment, and the non-existence of an ongoing child-parent relationship between the father and child.

At the preliminary hearing held in April 2010, the court-appointed attorney requested to withdraw from the case due to a breakdown in the attorney-client relationship. The court advised the father that it was in his best interest to have an attorney, but the father clearly stated he did not want counsel appointed for him. He filed a pro se appearance, though stated he might hire outside counsel. At a hearing ten days later, the father again declined the court’s offer to appoint counsel, though he was given standby counsel during a June 2010 hearing. The father did not make it clear whether he wanted this attorney to handle the case, instead asserting he would remain a self-represented party. At a September 2010 hearing, the father offered a conditional possibility that he might ask the standby attorney to represent him, but never revoked his right to self-representation. At the first day of trial, the father stated he could not handle the matter by himself and asked for a two- or three-month continuance so the standby attorney could prepare his case. The court denied this request, and upon completion of the trial, the court granted the commissioner’s motion to terminate parental rights.

In the State of Connecticut, courts must advise parties of their right to counsel when they first appear without counsel during termination proceedings. Upon request, the court will appoint counsel if the party cannot afford one, but a party cannot waive this right unless the court first explains “the nature and meaning of a petition for the termination of parental rights.” In other words, the party must fully understand the ramifications of self-representation, and must affirmatively and expressly relinquish the right to counsel. The court record must show that the party was “literate, competent, and understanding, and that he… voluntarily exercis[ed] his informed free will.” Once a right is waived, it cannot be regained by revoking the waiver. The right to counsel cannot be abused as a way of interfering with the fair administration of justice, including causing unwarranted delays.

In this case, the Appellate Court determined that the father was not denied his right to counsel, since he intelligently and voluntarily waived this right. It pointed to the repeated attempts by the lower court to appoint counsel and the father’s continuous refusals. At the preliminary hearing, the court properly advised the father of his rights and asked whether he understood them, to which he responded in the affirmative. In addition, the court determined that there was no abuse of discretion when the trial court denied the father’s request for a continuance, noting significant delays that had already taken place, which have a significant impact in child-related matters. Therefore, the court affirmed the judgment.

Whether advancing or defending a post-judgment motion regarding parental rights, a parent is best served by consulting with an experienced family law practitioner. Should you have questions regarding matrimonial matters, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.
________________________________________________________________________________
Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

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Appellate Court Reverses Conviction Due to Invalid Waiver

In a recent criminal law matter, the Appellate Court of Connecticut reversed a defendant’s criminal convictions, finding that his purported waiver of his right to a jury trial was not validly made.

In this case, the defendant was arrested and charged with sexual assault in the fourth degree, public indecency, and disorderly conduct. He never expressed his wish, either orally or in writing, to waive his right to a jury trial. However, at a status conference, defense counsel stated the defendant would be electing for a bench trial. The case was placed on the trial docket, and at the next court appearance, both the defense counsel and prosecutor assured the judge that the defendant was adequately canvassed with respect to waiver.

Thereafter, the court found the defendant guilty on all charges. He appealed his convictions, claiming that “the purported waiver of his right to a jury trial was invalid because the record does not reflect that he ever personally affirmed, either in writing or orally, his desire to waive this right.”

In order to constitute a valid waiver of a constitutional protection, a defendant must make it knowingly, intelligently, and voluntarily. The Supreme Court of Connecticut previously ruled that a defendant – and only the defendant – may waive his “fundamental right to a jury trial.” Even as a matter of trial strategy, defense counsel cannot make this decision. More importantly, the defendant must make an “affirmative indication” of his wish: “passive silence… while defense counsel purport[s] to waive the defendant’s right to a jury trial” provides an insufficient showing of a knowing, intelligent, and voluntary waiver.

The Appellate Court in this case determined that the record wholly lacked any indication that the defendant himself waived his right to a jury trial, and defense counsel’s actions simply were not sufficient to meet the strict standard imposed. Because the defendant did not personally waive his right, his convictions were reversed and a new trial was ordered.

When faced with a charge of sexual assault or any other criminal offense, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

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Though Defendant’s Statement Was Not A “Model of English Grammar and Spelling,” It Was Voluntarily Made

In a recent criminal law matter, the Appellate Court of Connecticut found that the trial court did not abuse its discretion in denying the defendant’s motion to suppress a written statement, claiming his Miranda waiver was not properly made.

This case arose from an incident that occurred on August 4, 2004 in Danbury, Connecticut. Following a roadway altercation, two victims were subject to a brutal beating inflicted by the defendant and his friends. One victim was repeatedly punched and kicked in the head, resulting in very significant head-related injuries, the need for an abdominal feeding tube for two months, and extensive physical, speech, and occupational therapy. The defendant was later apprehended in Rhode Island by federal authorities. En route to Connecticut, Danbury officers transporting the defendant stopped at a McDonald’s restaurant to get him food. There, the defendant wished to give a statement, which was taken after he was given his Miranda warnings and signed a waiver of rights form.

Prior to trial, the defendant moved to suppress his statement. He claimed that he drank roughly one gallon of Hennessy cognac with a codefendant twenty hours before being arrested. The defendant argued he was still intoxicated at the time he gave the written statement, so his waiver was not voluntary. To bolster his position, he cited the statement, “which was replete with typographical and grammatical errors, evincing that he merely wrote what the police instructed him to write.”

The State countered that due to the passage of time, the defendant was not under the influence at the time he gave his statement. One Danbury officer testified that the defendant did not appear as such at the McDonald’s, and that he had eaten two meals while in custody prior to giving the statement. The trial court denied the motion, agreeing with the State’s argument. It noted the defendant’s express interest in giving the statement and that he voluntarily signed the form, among other findings. In addition, the court stated that the statement was “clear and not reflective of someone who was under the influence of alcohol.” Though it was not a “model of English grammar and spelling,” the statement was comprehensible.

The defendant was subsequently convicted of assault in the first degree, conspiracy to commit assault in the first degree, and two counts assault in the first degree as an accessory. Post-sentencing he appealed, arguing in part that the trial court abused its discretion in denying the motion to suppress. The defendant reiterated his previous arguments that the statement was not voluntarily made.

A waiver of Miranda rights must be made voluntarily, knowingly, and intelligently. It is the burden of the State to prove a valid waiver by the preponderance of the evidence, and a reviewing court will look at the totality of the circumstances to determine whether the waiver is valid. In this case, the Appellate Court determined that there was substantial evidence supporting the trial court’s findings that the statement was voluntary and the waiver valid. As such, the trial court did not abuse its discretion by denying the defendant’s motion to suppress the written statement.

When faced with a charge of assault or conspiracy, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

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Petition for Writ of Habeas Corpus Denied, as DUI Convict’s Claims Lacked Merit

In a recent criminal law matter, a Superior Court of Connecticut considered a petition for a writ of habeas corpus, in which the petitioner claimed that there was insufficient evidence to convict him of DUI and that he received ineffective assistance of counsel.

This case arose from an incident that occurred on the evening of December 24, 2005. State troopers on routine patrol observed the petitioner driving his vehicle erratically and initiated a traffic stop. The petitioner admitted that he consumed a few beers, but would not answer any follow-up questions. He smelled of alcohol, had slurred speech and glassy eyes, and had trouble handling his license and papers. Because the petitioner had one leg, troopers could only administer the horizontal gaze nystagmus (HGN) test, which the petitioner failed. He was arrested and transported to barracks, where he was belligerent and argumentative. In the processing room, the petitioner was seen slumped over his chair.

The petitioner was charged with operating a motor vehicle while under the influence (OMVUI) of alcohol, in violation of Connecticut General Statutes § 14-227a(a)(1). At trial, he was represented by the Chief Public Defender, a veteran in the practice of law. The petitioner wanted a bench trial for reasons of expediency, even though defense counsel both advised against this decision and explained the ramifications of waiver. In formulating a defense strategy, counsel chose to minimize the testimony regarding the HGN test. He was not convinced that asserting a head injury would discredit such testimony, and felt a motion to suppress would be unsuccessful. Defense counsel robustly cross-examined all of the troopers, and the petitioner agreed to testify on his own behalf regarding his head injury.

Nonetheless, the petitioner was convicted of OMVUI and sentenced to two years incarceration, one year probation, and 500 hours of community service. However, he did not appeal his decision and instead filed a petition for a writ of habeas corpus. The petitioner argued that there was insufficient evidence to convict him of OMVUI, that his constitutional right to a jury trial was violated, and that he received ineffective assistance of counsel, among other claims.

In a bench ruling, the Superior Court was not persuaded by any of the petitioner’s claims and denied his petition. It noted that even absent the HGN test evidence, there was sufficient evidence to prove the petitioner committed OMVUI. The petitioner knowingly, intelligently, and voluntarily waived his right to a jury trial: indeed, it was the petitioner who insisted on a bench trial, and defense counsel properly explained the consequences of going this route. Finally, the Court believed that petitioner failed to prove the existence of deficient performance by counsel and prejudice in the outcome of his case. Defense counsel employed sound trial strategy and zealously advocated on behalf of his client. As the Court explained, “An analysis of the record below indicates an experienced trial attorney who was not successful when faced with a strong case presented by the state.”

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence) or license suspension, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

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