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JUDGE REJECTS AGENT’S MOTION FOR DISMISSAL SAN JOSE — A state narcotics agent will likely stand trial for manslaughter after a Santa Clara County judge rejected a defense argument that criminal charges should be dropped against the officer. Superior Court Judge Edward Lee rebuffed defense attorney Craig Brown’s argument that jurors should have been instructed to consider evidence in the shooting death of Rodolfo “Rudy” Cardenas based on what “a reasonable officer” would have done instead of a “reasonable person.” Brown, a San Jose solo, argued in court documents that officers are subject to more stresses than average citizens and that officer Michael Walker should be held to a different standard. But Lee said the argument had no weight. “Logically, an officer is simply a person with additional training and experience,” Lee wrote in the nine-page decision released Monday. “Since the jurors were instructed to consider the defendant’s and reasonable person’s knowledge at the time of the shooting, the difference between ‘reasonable officer’ and ‘reasonable person’ in this case is immaterial.” Lee added that grand jurors were able to hear Walker’s testimony, which is uncommon in grand jury hearings since defendants rarely testify. Brown also argued that Deputy District Attorney Lane Liroff had been overzealous in bringing the case, a charge Lee did not consider. Liroff said he was just doing his job. Deputy District Attorney Neal Kimball argued the case because Liroff had been directly criticized. — Justin M. Norton N.Y. TO APPEAL RULING ON SAME-SEX MARRIAGE NEW YORK — The New York City Law Department intends to take the Manhattan Supreme Court decision ordering the city to permit same-sex marriages straight to New York’s highest court, the city’s chief attorney announced Monday. “We plan to seek permission to appeal directly to the Court of Appeals so that a decision on this important issue can be reached as quickly as possible,” Corporation Counsel Michael Cardozo said in a written statement. “Since courts of this state disagree whether or not the state marriage law is unconstitutional, it is essential that this issue of statewide importance be decided definitively by the state’s highest court, so that the law can be uniformly applied throughout our state,” he added, citing three recent state Supreme Court decisions that dismissed similar suits. The city can bypass the appellate division and take the case directly to the Court of Appeals under a narrow exception to New York’s Civil Practice Law and Rules. Under CPLR 5601(b)(2), an appeal may be taken straight from a trial court to the state’s highest court if the decision’s only issues involve the validity of a state or federal statute under the state or federal constitutions. Of the 130 civil appeals the court heard in 2003, the most recent year for which it has released statistics, only eight of the cases reached the court on this basis. Although the Court of Appeals is statutorily required to hear such cases, it may decline to do so on jurisdictional grounds. The court may find that the matter turns not on constitutional grounds, but rather on, for example, issues of statutory interpretation. — New York Law Journal

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